author: Pee Curiam.

text:
    FELIX R. SANTANGELO, PROSECUTOR, v. CIVIL SERVICE COMMISSION, DEFENDANT.
    Submitted October 13, 1933
    Decided January 26, 1934.
    Before Justices Case, Boding and Donges.
    For the prosecutor, Carr & Carroll.

    For the defendant, Creen <& Creen.

   Pee Curiam.

This is a proceeding by which the prosecutor, Felix B. Santangelo, seeks to challenge the appointment of Harry B. Crook as chief of county detectives by the prosecutor of Monmouth county.

Originally certiorari was instituted to review the action of the civil service commission in certifying Crook on the eligible list as a veteran. This was never submitted to the court, and subsequently Crook was added as a party defendant and motion made to amend the proceedings to form the basis of relief either in the form of certiorari or quo warranto, whichever be proper. This latter motion is still pending before this court.

It appears that Santangelo is a veteran of the world war and as such is entitled to preference if his name be among the first three on the eligible list, provided there be no other veteran in such three. Crook served with the Hnited States army along the Mexican border in 1916 during the disturbance caused by the Mexican bandit Villa. The civil service commission regarded this service as entitling him to the ranking of a veteran with the preference given veterans by the statute.

It appears that there are several questions raised or sought to be raised in this case. 1. Is certiorari a proper remedy? 2. Should an amendment into quo warranto be permitted? 3. Should the proceedings be dismissed for lack of diligent prosecution? 4. Is Crook entitled to be classed a veteran by reason of his service? 5. Is prosecutor qualified to compel his appointment to the office of chief of county detectives ?

The eligible list, as certified to the prosecutor of the pleas, contained two names, Santangelo and Crook, both of whom were classed as veterans. The prosecutor of the pleas is not a party to these proceedings and his reasons for selecting Crook are not given.

It does not seem necessary to deal with the first four questions above enumerated for the reason that the proper ground for a decision is found in the fifth question. . We recently held in Horowitz v. Civil Service Commission, 12 N. J. Mis. R. 190, and McGlinchey v. Martin, Tax Commissioner, Ibid. 188, that a certain discretion was reposed in the appointing official with respect to the business qualifications, fitness and character of candidates. In the instant ease it appears indisputably by the record that Santangelo served as county detective under Prosecutor Quinn, the predecessor in office of Mr. Turnen; that he was discharged on charges of having assisted in the escape of persons. sought for crime and of having padded an expense account; that he appealed to the civil service commission and his dismissal was sustained on the charge of presenting an improper expense account. It cannot be said that it is an unwarranted exercise of discretion to decline to appoint a person who has been adjudged to be unfit to be a county detective as chief of county detectives. Prosecutor argues that the civil service commission was aware of this record when it certified him and, therefore, this question is not properly in the case. But the discretion to be exercised with respect to matters of this kind is in the appointing official and not in the civil service commission.

We conclude that the prosecutor has not made out a case which entitled him to the assistance of the prerogative writs of this court, and that the certiorari should be dismissed and the motion to amend to afford the relief of quo warranto should be denied. It is so ordered, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WILLIAM LESTER, APPELLANT, v. BENJAMIN KARASIK, RESPONDENT.
    Submitted October term, 1933
    Decided February 6, 1934.
    Before Justices Parker, Lloyd and Perskie.
    For the appellant, Joseph F. Mattice and Henry K. Golenboclc.

    For the respondent, Turnen & Turnen.

   Per Curiam.

The action arose out of a collision between the automobiles of the respective parties. To the suit brought by the appellant the defendant filed a counter-claim for damage to his automobile in the sum of $54.7.50. On objection that the counter-claim was in excess of the jurisdiction of the court, the trial judge permitted it to be amended to the end that the damages of the several counts should aggregate but $500. The case was tried twice, the second trial resulting in a judgment in favor of the defendant on his counter-claim for $400.

The plaintiff-appellant contends that the amendment was improperly allowed, and that a nonsuit on the counter-claim should have been granted on the ground that defendant was guilty of negligence contributing to the accident on which the counter-claim was based.

Both of these contentions we think are without merit. As to the amendment, it is not claimed that the counter-claim in itself was improper, but that the judge erred in permitting the amendment to bring its amount within the jurisdiction of the court. It may be conceded that a counter-claim in excess of $500 cannot be tried in the District Court or its excess waived by the defendant. Ward v. Hauck, 87 N. J. L. 198; 93 Atl. Rep. 583, but as was there indicated it might be amended to meet the requirements of the statute. To the same effect is the case of Harris v. Roth, 6 N. J. Mis. R. 1006; 143 Atl. Rep. 557 (not officialy reported).

As to the contributory negligence of the defendant, this was clearly for the judge passing on the facts. The accident occurred on a dark rainy night at the intersection of Bond street and Monroe avenue in Asbury Park, plaintiff proceeding south on Bond street and defendant proceeding east on Monroe avenue. The defendant testified that he approached Bond street driving at twelve miles an hour, that he had'a clear view and saw no one approaching although he looked both ways. When more than two-thirds of the way across Bond street his car was hit in the left rear and the damages inflicted. While the plaintiff testified that the defendant was driving without lights, the defendant’s evidence was to the contrary. Obviously the responsibility for the collision was one for the judge sitting without a jury, and his finding on the facts cannot be disturbed here.

The judgment is affirmed, with costs.


author: Case, J.

text:
    YOMA KENZI YOSHIDA, PETITIONER-PROSECUTOR, v. C. W. NICHOLS, RESPONDENT-DEFENDANT.
    Submitted October 13, 1933
    Decided February 7, 1934.
    Before Justices Case, Bodine and Donges.
    For the petitioner-prosecutor, David Boskein.

    For the respondent-defendant, Colie & Colie (Frederic B. Colie, of counsel).
   The opinion of the court was delivered by

Case, J.

Yoma Kenzi Yoshida, an employe of C. W. Nichols, was assaulted and injured by Hikisuki Lakamoto, a fellow employe. Yoshida filed a petition for compensation under the Workmen’s Compensation act. Pamph. L. 1911, p. 136; Cum. Supp. Comp. Stat., p. 3868, § **236-1, et seq. The workmen’s compensation bureau found that the injuries were not caused by an accident arising out of the employment and dismissed the petition. On appeal the Essex Common Pleas affirmed that order, and the judgment in the Pleas is now before us on writ of certiorari.

Petitioner seeks to present, as the issue, the question, novel in this state, whether an employe injured by a fellow employe in a fight in which the first mentioned is not the aggressor, the fight growing out of an altercation concerning the manner of doing the work of the respective employments, may recover compensation as for an accident arising out of his employment. We think that the facts do not present that issue.

Yoshida was, technically, the butler, and Lakamoto the houseman, and some of their duties dovetailed. There was a duty upon Yoshida of decorating certain rooms, and upon Lakamoto of decorating certain other rooms, with flowers procurable from the defendant’s greenhouse at the hands of the gardener. Yoshida made a request for flowers. Later the gardener left flowers at the house, and Yoshida, understanding that they were intended for him, presently undertook to do his decorating. Missing some of the flowers, Yoshida searched the rooms for which Lakamoto was responsible and recognized the decorations there as “his” flowers; though the flowers were all to come from the same source and how the identification to be made it does not appear. At any rate, he called Lakamoto to task, and the latter, as Yoshida testified, was “mad” at him. That was on September 6th. The record is silent as to what the two did, either generally or with respect to each other, until Yoshida summoned Lakamoto to lunch on September 11th. When Lakamoto, in answer to that call, entered the kitchen where the meal was to be eaten, he asked about a flower basin which, because of house repairs, had been moved to the rooms under his care. A non-provocative reply was given. Lakamoto then caused Yoshida to go out doors and there assaulted him, first with fists and then viciously with a knife.

The prosecutor contends that the assault is directly traceable to the dispute of September 6th, but we do not find the supporting proof. There is no proof of what transpired between the two men either before the incident of the sixth or following that and until the eleventh. Those matters were easily susceptible of full proof.

We are asked to find that Lakamoto made the assault because five days before, he resented something that Yoshida had then said to him; but we conclude that the causal connection has not been established either by direct proof or by reasonable inference. In other words, we are unable to trace the act to the employment in terms of causation. That being so, it is beside the point to consider whether, so connected, the act would be an accident arising out of the employment within the meaning of the statute.

Deputy Commissioner Stahl, sitting for the workmen’s compensation bureau, found that “the assault was the result of a personal motive and not the result of a risk of the employment.” Judge Yan Riper, in the Common Pleas, concluded that the injuries were “the result of a personal feud.” Both determined that the injuries did not arise out of the employment. When two independent and distinct tribunals have examined the facts a conclusion so reached should not be lightly disturbed. Mountain Ice Co. v. Durkin, 6 N. J. Mis. R. 1111; 144 Atl. Rep. 6; affirmed, 105 N. J. L. 636; 147 Atl. Rep. 451. Our separate study brings us to the finding that neither by direct proof nor by reasonable inference has an accident arising out of the employment been established.

The judgment below will be affirmed, without costs.


text:
    NATHANIEL A. JACOBY, PROSECUTOR, v. THE GOVERNING BODY, TO WIT, THE MAYOR AND COUNCIL OF THE BOROUGH OF CARTERET, RESPONDENT.
    Submitted October term, 1933
    Decided February 7, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Nathaniel A. Jacoby, pro se.

    For the respondent, Rimer R. Brown.

   The opinion of the court was delivered by

Case, J.

The writ brings up the following resolution adopted by the mayor and common council of the borough of Carteret on February 23d, 1933 :

“Whereas, there now exists in the borough of Carteret the office of borough recorder, and whereas the duties of this office are such that same can be readily handled through the police department and tried by a local justice of the peace, and whereas cases that require action by the grand jury are paid for by the county of Middlesex, and whereas the salary of this office for the year 1932 there was appropriated the sum of $1,500 and whereas the revenue realized amounted to $255.11. Therefore in the interest of economy be it and it is hereby resolved by the mayor and borough council that the office of recorder be abolished and be it further resolved that this resolution shall take effect-immediately.”

The prosecutor had, by resolution passed November 17th, 1930, under the authority of Pamph. L. 1927, ch. 260, been appointed to a five-year term as borough recorder. He contends that the bias of partisan polities was the real reason for the abolishment of his office; that the asserting of economy was but a subterfuge; that the borough government had not the legal right to pass the resolution under review and that he should be reinstated in office. Nevertheless, he concedes that the borough council had the power to abolish the office provided such action was taken in good faith and in the public interest; and that is in line with our cases. Paddock v. Hudson Tax Board, 82 N. J. L. 360; 83 Atl. Rep. 185; Doyle v. Secaucus, 10 N. J. Mis. R. 334; 159 Atl. Rep. 399.

The prosecutor was first appointed borough recorder in 1923 or 1924 and had served continuously from that time. It does not appear for what term he was then appointed or what intermediate appointments there had been. The election in November, 1930, was such that the political complexion of the borough administration, effective January 1st, 1931, was changed. On November 17th, 1930, immediately following the election, a resolution was passed declaring the office of borough recorder vacant and appointing the prosecutor to that office for a term of five years from January 1st, 1930. The salary, theretofore $1,900, was simultaneously increased to $2,500 per annum. In March, 1931, there were a number of borough salary reductions, and prosecutor’s salary was reduced to $1,500. In April, 1932, a contribution, perhaps compulsory, of a sum equal to one month’s salary was made to the borough by all employes and appointees, including the prosecutor. Again, in March, 1933, subsequent to the removal resolution, the annual salaries of borough employes and appointees were uniformly reduced by one-fourth, later, in order to correspond with the reductions made by the board of education, modified to one-fifth. The borough of Carteret was, in common with all other governmental units, suffering from the financial depression. Borough salaries were in arrears for lack of funds. Taxes due from the borough to other governmental instrumentalities were unpaid. That there was urgent need for economies cannot be gainsaid. Drastic reductions were made in all departmental budgets. The depletion in revenues from the recorder’s office is shown by this graphic statement of receipts: 1929, $3,137.20; 1930, $3,323.29; 1931, $1,115.51; 1932, $225.11; 1933 (January 1st to February 23d), $26.71.

Prosecutor learned from unofficial sources of the resolution of February 23d, 1933, forthwith upon its passage, but nevertheless continued to serve, without interference, until May 1st, 1933, or immediately thereafter. On May 1st the borough made payment of arrears in salaries to its employes. Prosecutor, receiving no payment, made demand for the same and was refused. He accepted this refusal, he says, as his official information of the passage of the resolution and thereupon informed the police authorities that he would no longer act.

In charging that the pursuit of economy was a mere scheme for divesting him of his office, prosecutor leans upon the facts that the borough government did not designate a justice of the peace to hear the police matters, but in June, 1933, passed an ordinance creating the office of “police justice,” the incumbent to serve without salary but to retain his fees and costs, and made an appointment to that office. The assertion is, and the truth of it is admitted, that the duties earlier performed by the recorder are necessary to the welfare of the borough and are now performed by the police justice. Nevertheless the prosecutor is not, in our opinion, entitled to prevail.

Whatever right the prosecutor may or may not have had to continue in his office after the passage of the resolution of removal, he had knowledge—however obtained—of the passage. He had as much knowledge in February as in May. The significance of the latter date is that he was then assured that he was to receive no compensation, and the fair inference is that he was unwilling to perform the duties of the office without a salary. We cannot say that the resolution was not passed in good faith in the effort to save, as it apparently did save, a considerable sum to the borough treasury. Prosecutor, on full notice that the council intended to have the recorder’s duties performed without compensation other than the statutory fees and costs incident to the matters handled, at no time intimated that he would serve for such emoluments or for their equivalent in salary. It is reasonably demonstrated that at the time of the passage of the February resolution the borough council did actually intend to have police matters disposed of by a justice of the peace. The later introduction and passage of the police justice ordinance do not disprove the good faith of the council. The compensation accruing to the police justice under the ordinance is precisely the compensation that would have accrued to a justice of the peace, namely, the fees and costs incident to the several proceedings. It was said in Buckley v. Guttenberg, 87 N. J. L. 434; 95 Atl. Rep. 120, that to establish a charge of fraudulent conduct against a legislative body in passing an ordinance, the proof must be clear and convincing. The proofs here do not meet that test. The case falls on its merits.

In addition there is this: With knowledge of the resolution from the time of its passage the prosecutor remained quiescent until late in July, a period of five months, before suing out this writ of certiorari to review the borough action, the council meanwhile having, by ordinance introduced on June 7th, advertised on June 9th, adopted on June 21st, set up, without remonstrance from the prosecutor, a new scheme for administering the functions of the office. Whatever doubts he entertained as to the underlying motive of the borough council, he knew that the municipality was in serious financial straits and that the removal resolution formally recited the depletion in income and the need for economy as the reasons for its passage. He was an attorney, learned in the law and now argues his case in his own behalf. It was not for him, in a public and private financial emergency that was perhaps without precedent in both degree and universality, to loiter while the borough government was taking successive steps toward the goal, at least ostensible, of limiting outgo to income. What constitutes laches in applying for a discretionary writ must vary as the cases vary, but in that period of financial stress, when all governmental bodies were sweating under the load, it was, we think, laches for one in the prosecutor’s place to wait as he waited.

The writ is dismissed, without costs.


text:
    ABRAHAM SOBEL, RESPONDENT, v. LINCOLN CONSTRUCTION COMPANY, APPELLANT.
    Submitted October term, 1933
    Decided February 6, 1934.
    Before Justices Parker, Lloyd and Perskie.
    For the appellant, Nalhan Zinader.

    For the respondent, Sachs & Sachs.

   Per Curiam.

Plaintiff’s proofs tended to show that he fell over a piece of pipe which extended from a lawn belonging to the defendant over an alley leading to its building. The action was to recover damages for the injuries received as a result of the fall, and resulted in a judgment in his favor.

At the conclusion of plaintiff’s proofs a motion was made for nonsuit and at the conclusion of the entire case a like motion for direction of a finding in defendant’s favor was made. Both motions were based on the ground that the plaintiff had failed to show negligence in that neither actual nor implied knowledge was brought home to the defendant. These motions were denied and defendant appeals.

Examination of the proofs convinces us that the learned trial judge fell into error. The facts briefly, as testified by plaintiff, were that in the early morning of September 12th, 1932, he was attempting to deliver milk to the occupants of defendant’s building (apparently an apartment house), and as he entered the alleyway leading thereto he fell over a piece of pipe which extended about a foot out into the alley. The case is devoid of proof that this condition was known to the defendant or that it had existed a sufficient length of time to charge the defendant with knowledge.

In this posture of the proofs liability is not shown. Cases establishing this principle are numerous and it is only necessary to refer to Schnatterer v. Bamberger, 81 N. J. L. 558; 79 Atl. Rep. 324.

It is argued by respondent that the pipe in question extended into the public highway and that the doctrine of a public nuisance controls. While at one point in his testimony the plaintiff stated that the wire fence surrounding the pipe extended over the sidewalk, he repeatedly stated that the pipe itself extended into the alley, that it was in the alley that the accident happened, and in no part does he state that the pipe or any part of it was in the highway.

If, as seemed to be contended, a different standard of proof would be required if the pipe extended into the highway, we find no evidence to indicate such extension.

The judgment is reversed.


author: Porter, S. C. C.

text:
    HELEN DZIADOSC, BY HER NEXT FRIEND, FRANK DZIADOSC, AND FRANK DZIADOSC, INDIVIDUALLY, PLAINTIFFS, v. AMERICAN CASUALTY COMPANY, A CORPORATION OF THE STATE OF PENNSYLVANIA, DEFENDANT.
    Decided January 12, 1934.
    For the plaintiffs, Armstrong & Mullen (Arthur G. Mullen, of counsel).
    For the defendant, Goult, Sah & Tomlinson (John J. Francis, of counsel).
   Porter, S. C. C.

This case was tried by the court without a jury, by agreement of the parties.

The facts not in dispute are that the infant plaintiff Helen Dziadosc was injured by Charles Keir while he was operating his automobile on October 29th, 1921. Suit was brought by the plaintiffs against Keir in the Hudson County Circuit Court, and on March 12th, 1931, verdicts were recovered against him by the plaintiff Helen Dziadosc in the amount of $3,000 and costs and by the plaintiff Frank Dziadosc in the amount of $100. Neither judgment has been paid. Execution was issued and was returned unsatisfied. The writ of execution was introduced in evidence written on the back of it are the words “returned unsatisfied at the request of plaintiffs’ attorney.”

It further appears that at the time of the accident a policy of insurance was in force, issued by the defendant, insuring Keir against loss from certain liability in the operation of his automobile. One of the provisions ofothe insurance policy reads as follows:

“This policy does not cover the assured, (3) if rented or leased to others, or used to carry passengers for a consideration, actual or implied.”

The defendant disclaimed liability under the policy and returned the premium to Keir.

Another provision of the policy follows:

“IX. Insolvency or bankruptcy of the assured hereunder shall not release the company from the payment of damages for injuries sustained or loss occasioned during the term of this policy, and in case execution against the assured is returned 'unsatisfied’ because of such insolvency or bankruptcy * * * then an action may be maintained by the injured persons * * * against the company, under the terms of the policy, for the amount of the judgment in said action, not exceeding the limit of the company’s liability as specified herein.”

At the close of the plaintiffs’ case the defendant moved for a nonsuit on the ground that there was no proof of the insolvency or bankruptcy of the assured or the return of an execution unsatisfied because of such insolvency or bankruptcy. Decision was reserved on this motion.

The defendant then offered to prove through Charles W. Linfonte, an employe of the defendant, that Mr. Keir had advised him on November 14th, 1927, that at the time of the accident he was taking some friends home from work in his automobile, and that they had each paid him $1 every week for gas and oil. A written, signed statement by Keir, dated November 14th, 1927, to the same effect was introduced in evidence.

Counsel for the plaintiff objected to the testimony of Mr. Linfonte and to the admission of the statement, on the ground that the same was hearsay. Decision on those objections was reserved.

Briefs have been submitted on the matters as to which decision was reserved, and the court has considered those briefs.

If it be true that Keir violated the terms of the policy by transporting passengers for a consideration at the time of the accident, there would be no liability on the part of the insurance company under the terms of its policy to Keir. Certainly in that event third parties could have no possible rights against the company under the policy.

The admissibility of the testimony of Mr. Linfonte, therefore, goes to the very core of the question at issue—the liability of the defendant to the plaintiffs. If Keir were a party to this suit, the testimony would clearly be admissible. While he is not actually a party, the plaintiffs stand in privity to him and derive whatever rights they have by reason of such privity. Por the purpose of determining the issues here and the rights of the parties, the situation is as though Keir were a party. Therefore, the testimony is admissible and binding on the plaintiffs. Being admissible, it is competent because it is an admission against the interest of Keir, who is privy with the plaintiffs as above stated, and is also competent to establish the fact of the carrying of passengers for a consideration.

Having reached this conclusion, which is dispositive of the issue, it is unnecessary to pass on the other questions raised at the trial.

Counsel for the defendant argues an additional ground for judgment—namely, that this suit was not instituted within sixty days after the entry of final judgment against the assured, and is therefore not maintainable under one of the provisions of the policy. This defense was not set up in the answer, and counsel asks for leave to file an amended answer setting it up. Counsel.for the plaintiff objects. Perhaps, in view of my above conclusion, the matter may now be of no importance. However, as this new defense is solely a matter of law and requires no additional testimony, I feel that the amendment should be allowed so that in the event of any further proceedings in this suit the entire matter as argued before me may be available. The amendment will be allowed.

Judgment will be in favor of the defendant and against the plaintiffs.


text:
    SUBURBAN HOME COMPANY, RESPONDENT, v. GEORGE MATULEWICH, IMPLEADED, ETC., APPELLANT.
    Argued January 16, 1934
    Decided February 9, 1934.
    Before Justices Parker, Lloyd and Perskie.
    Por the appellant, George H. Rosenstein.

    Por the respondent, William A. Schilling.

   Per Curiam.

There are seven specifications of alleged error in the trial court which we have examined with care. Not one of them points out any erroneous ruling in the conduct of the trial, or in the giving of judgment as permitted by the supplement of 1916 to the Practice act. There is therefore nothing on which this court could reverse: and the judgment is consequently affirmed.

It may do no harm to add that we have also examined the evidence, and find that a fair question of fact was presented for the decision of the trial judge sitting as a jury, and decided by him. With that decision, on well settled principles, we do not interfere.

The judgment is affirmed, with costs.


author: Paekbb, J.

text:
    JOSEPH A. CARBONE, APPELLEE, v. CALIFORNIA PACKING CORPORATION, APPELLANT.
    Submitted October 13, 1933
    Decided January 8, 1934.
    Before Justices Pabkeb, Lloyd and Pebskie.
    Por the appellant, Paul J. Duffy.

    Por the appellee, Joseph L. Freiman.

   Paekbb, J.

The suit is rested on a claim of negligence in putting up a can of peaches for human consumption, as in Tomlinson v. Armour & Co., 75 N. J. L. 748; 70 Atl. Rep. 314. Prom the plaintiffs testimony it appeared that he had bought a sealed can of “Del Monte” peaches at a local grocery store, opened it and ate part of the contents, noticed a peculiar odor and taste, poured out the rest of the contents, and discovered a medicated finger bandage of gauze, strongly impregnated with some drug. That he became sick in consequence, and claimed damages. That he complained to defendant by letter, and received a reply, which was admitted in evidence apparently without objection, and which stated that the matter had been referred to the National Canners’ Association, whose investigator would undoubtedly call. That an investigator did call and that the can and bandage had been shown t'o him. They were not produced in court, plaintiff explaining that he had mislaid them. He testified (apparently without objection or question) that the can and peaches were prepared and sold by the defendant. Both sides rested, and defendant asked for judgment on three grounds: The appeal is based solely on the denial of that motion.

The second ground is properly considered first, viz., “that no proof had been offered that the defendant prepared or sold the can and contents in question.”

As to this, it is sufficient to say that plaintiff specifically testified that defendant did that very thing. As his statement was in nowise challenged, we can only assume that he spoke with actual knowledge.

The first ground was “that no negligence on the part of defendant had been proved.”

As to this, it suffices to cite DeGroat v. Ward Baking Co., 102 N. J. L. 188; 130 Atl. Rep. 540.

The third ground was “that plaintiff had generally failed in his burden of proving the material allegations contained in his demand.”

If this means anything, it means that plaintiff had not sustained the burden of proof: which is something not considered on appeal except where there is no legal evidence to support the claim or some, essential element thereof.

The judgment is affirmed.


author: Pee Cubiam.

text:
    EDMUND HECKEL, PLAINTIFF-RESPONDENT, v. FRED J. GRIESE, DEFENDANT-APPELLANT.
    Submitted October 14, 1933
    Decided February 15, 1934.
    Before Bbogan, Chief Justice, and Justices Tbenchakd and Hehek.
    Por the appellant, Edgar Leiss.

   Pee Cubiam.

This is the defendant’s appeal from a judgment entered in the Essex County Common Pleas Court for the plaintiff, after the answer of the defendant had been stricken out by the judge on notice and affidavit.

The factual situation, as exhibited by the pleadings and affidavits, is not in substantial dispute.

On Pebruary 20th, 1928, plaintiff in writing leased to the defendant certain premises for a period of one year and eight months beginning March 1st, 1928, and ending October 31st, 1929, at an annuai rental of $1,800 dollars payable in monthly installments of $150 in advance. The defendant entered the premises on March 1st, 1928, and vacated them sometime in the month of June, 1931, and has paid the rent up to and including October 31st, 1931. Suit was started against the defendant for rent for the seven months ending May 31st, 1932, on the theory that he was a hold-over tenant. A motion was made to strike out the answer filed by the defendant, as sham and frivolous, and for final judgment, and after a consideration of the affidavits filed by both sides and after argument, the Common Pleas judge granted the motions and defendant appeals.

We find no merit in the appeal.

The defendant, by reason of his holding over and paying the rent, became a tenant from year to year of the demised premises (Maier v. Champion, 97 N. J. L. 493; 117 Atl. Rep. 603), and in order to terminate such tenancy, the defendant would have had to serve upon the plaintiff a six months’ notice of his intention to terminate the tenancy. Zabriskie v. Sullivan, 80 N. J. L. 673; 77 Atl. Rep. 1075; affirmed, 82 N. J. L. 545; 81 Atl. Rep. 1135. Thus far, there is no-dispute.

It is quite apparent, considering the pleadings and the affidavit of the plaintiff presented at the hearing, that the action of the Common Pleas judge was entirely justified unless the affidavits presented by the defendant raised a jury question entitling the defendant to defend. We think they did not.

The plaintiff’s affidavit was to the effect, among other things, that the rent in question had not been paid, and this was not denied by either of the defendant’s affidavits.

The defendant’s first affidavit was that on June 29th, 1931, he gave notice that he would quit the premises on October 31st, 1931. Manifestly that was not six months’ notice and was ineffective.

His second affidavit was that on April 22d, 1931, “I notified Mr. Heckel (plaintiff) that I was going to move from the premises,” but when he was going to move he did not state. Obviously that notice, if given, was ineffective. Steffens v. Earl, 40 N. J. L. 128. This latter affidavit also states that “I sent a prospective tenant to Mr. Heckel, who was desirous of renting the premises formerly occupied by me, and Mr. Heckel absolutely refused to permit him to rent the same, informing this prospective tenant, that the same was under lease to me, and would not rent them to anyone.”

The affidavit was silent as to when this occurred. The lease, pursuant to which the defendant went into possession, contained a covenant of quiet enjoyment. It is immaterial ■whether the defendant actually physically occupied the demised premises during the seven months’ period in question, lie had a legal right so to do and if he did not do so, that was solely his own affair. The plaintiff landlord was under no ■obligation to re-enter the premises when the tenant vacated, and no one, in the circumstances, had any right to interfere with the defendant’s possession of the premises. Muller v. Beck, 94 N. J. L. 311; 110 Atl. Rep. 831.

The assertion that the plaintiff refused to show the demised premises to prospective tenants and refused to rent the same, is immaterial. The lease provided that the tenant would not assign, let or sublet the demised premises without the written consent of the landlord, and of course the plaintiff, landlord, was not bound to seek a tenant or to rent the premises in ■order to minimize the damages of the tenant. Muller v. Beck, supra.

The judgment will be affirmed, with costs.


author: Pbk Ctjkiam.

text:
    FRANCES HEINIGE, AN INFANT, BY HER NEXT FRIEND AND NATURAL GUARDIAN, ALEXANDER HEINIGE, AND ALEXANDER HEINIGE, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. LITTLE FERRY BUS LINE, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Submitted October 14, 1933
    Decided February 15, 1934.
    Before Bbogan, Chief Justice, and Justices Teenchabd and Hbheb.

      For the appellant, Aaron A. Melnilcer.

    For the respondents, Charles Schmidt (George F. Loscher of counsel).
   Pbk Ctjkiam.

■ This is defendant’s appeal from a judgment of the Bergen County Court of Common Pleas in favor of the infant plaintiff Frances Heinige for damages for personal injuries, and also in favor of her father, Alexander Heinige, for resulting damages to him.

The infant plaintiff testified that she was fifteen years of age at the time of the trial which was on February 7th, 1933, and the accident happened on April 1st, 1932. The testimony tended to show that, accompanied by a relative, she boarded the defendant’s bus and paid her fare; that when the bus reached its regular stopping place at a point where they desired to alight, the infant plaintiff and her relative alighted; that when the infant plaintiff alighted, she placed her foot on the lower step and as she was going to take it off something caught the toe of her shoe and she was thrown on the sidewalk and injured; that the step was worn and had an iron band around it; that there were screws loose which allowed the step to sag below the iron band; that when the step sagged and the iron band bulged up this iron band would make a person trip, as it did the infant plaintiff; that the defendant had notice of this condition and had neglected to repair.

The only questions argued relate to the charge of the court said to be raised by two exceptions.

The first exception was this: “We except to that part of the charge in which the court said that the defendant could have known or should have known of the defect in the step.”'

The only part of the charge, if any, brought up by this exception, and made a ground of appeal, is this: That the plaintiff “must further prove that the injuries of the plaintiff were caused by the visibly defective condition of the lower step on the bus, and which, in the exercise of a high degree of care, could or should have been discovered by the defendant company.”

We see nothing prejudicial to the defendant in that instruction. Of course it was essential to plaintiff’s recovery that there be proved what the judge told the jury must be proved, and, of course, it was proper to charge that the defendant was obliged to exercise a high degree of care. The defendant was a carrier for hire of the infant plaintiff and in that situation was bound to exercise a high degree of care. Schott v. Weiss, 92 N. J. L. 494; 105 Atl. Rep. 192.

The second exception was as follows: “And also to that part of the court’s charge in which the court told the jury that they could consider the age and experience of the plaintiff in arriving at the question of whether or not she was guilty of contributory negligence.”

The only part of the charge brought up by this exception, and made a ground of appeal, reads as follows:

“And in considering the question as to whether the infant plaintiff was negligent, you must consider her age and her experience, because the law of this state is that an infant under the the age of twenty-one years is not to be held responsible to the same degree of responsibility as an adult, but the care which she must use is that degree of care that would have been exercised by a child of similar age and experience in such ease.”

There was no error there prejudicial to the defendant. It contains nothing harmful or prejudicial, for such in effect is the law as applicable to the facts of this case. Thus in Nichols v. Grunstein, 105 N. J. L. 363; 144 Atl. Rep. 593, the Court of Errors and Appeals held:

“The degree of care required of a child old enough to be capable of negligence, is such as is usually exercised by persons of similar age, judgment and experience. In order to determine whether such a child has been guilty of contributory negligence, it is necessary to take into consideration the age of the child, and its experience and capacity to understand and avoid danger to which it is exposed in the actual circumstances and situation under investigation; and it is usually a question for a jury to determine whether the child has been guilty of contributory negligence. David v. West Jersey and Seashore Railroad Co., 84 N. J. L. 685; 87 Atl. Rep. 440.”

The judgment will be affirmed, with costs.


author: Bkown, S. C. C.

text:
    GEORGE S. DALTON, PLAINTIFF, v. MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, BERNARD F. McFEELEY, WILLIAM GILFERT, JOSEPH CLARK, MICHAEL M. KEARINS AND ADOLPH CARSTEN, DEFENDANTS.
    Decided February 20, 1934.
    For the plaintiff, Sigmund Auerbach.

    For the defendants, Horace L. Allen.

   Bkown, S. C. C.

The plaintiff moves to strike out the defendants’ answer as sham or frivolous and the defendants move to strike out the complaint as not stating a cause of action. The complaint alleges that the plaintiff is the Ciholder” of four improvement certificates of the city of Hoboken in a total sum of $1,800; that the certificates are long past due and though demand was made payment was refused. The defendants deny the allegations in the complaint and by way of separate defenses charge that the improvement certificates were issued without consideration or authority ; that the consideration mentioned in the certificates was paid to the person to whom they were issued and that the certificates were issued over sixteen years past. The plaintiff in his reply denies the allegations in the separate defenses and reserves the right to move to strike the answer at or before the trial as not a “good and sufficient legal answer.”

The proof submitted on the motions made includes a stipulation that the improvement certificates were all dated in the year 1886. Photostatic copies of the certificates annexed to the stipulation discloses that they were signed by the mayor of the city of Hoboken and attested by the city clerk and 'issued to Patrick T. Plunkett. The certificates on the reverse side bear the endorsement “pay to the order of Robert J. Dalton, 250 Washington street, Jersey City,” and signed P. T. Plunkett. An affidavit was also submitted by the plaintiff to the effect that he is thirty-five years of age and that he is the holder of the certificates in question.

Considering first in order the plaintiff’s motion to strike out the answer of the defendants on the ground “that the same is sham or frivolous and merely filed for the purpose of delay.” A motion to strike an answer on such grounds should be made before a reply is filed. Under rule 30 of the Supreme Court it is provided that:

“The order of pleadings shall be (1) complaint; (2) motion addressed to the complaint; (3) answer; (4) motion addressed to the answer; (5) reply. Further pleadings may be had, if necessary until issue is joined. Unless otherwise ordered by the court, pleadings must be filed and motions made in the order mentioned above.”

Rule 40 of the Supreme Court provides:

“Any pleadings may be struck out on motion on the ground that it discloses no cause of action, defense, or counter-claim, respectively. The order made upon such motion is appeal-able after final judgment. In lieu of a motion to strike out the same objection, and any point of law (other than a question of pleading or practice) may be raised in the answering pleadings, and may be disposed of at, or after the trial; but the court, on motion of either party, may determine the questions so raised before trial, and if the decision be decisive of the whole case the court may give judgment for the successful party or make such order as may be just.”

Those rules of the Supreme Court were construed in the case of Apfelbaum v. Pierce et al., 2 N. J. Mis. R. 1150; 126 Atl. Rep. 738, as requiring the motion to strike out a complaint to be made before an answer is filed. While demurrers are abolished and the motions mentioned in the rules are substituted therefor, the principles of the common law method of pleading are essentially followed. It was the former practice after the declaration was filed for the defendant to either demur or plead. Now the defendant must decide either to' move to strike out the complaint or answer the complaint. When he makes a decision he must abide by it. He cannot decide to answer the complaint and then afterwards move to strike out the complaint. Klughaupt v. Acquackanonk Water Co., 2 N. J. Mis. R. 1188; 126 Atl. Rep. 739; Wright, Admr., v. Kroydon Co., 9 N. J. Mis. R. 287; 154 Atl. Rep. 195. The reservation in the reply filed by the plaintiff to the defendants’ answer would not justify the plaintiff in moving to strike the answer under rule 30. Under rule 40 there can be determined only questions raised by the pleadings. Lehigh Valley Railroad Co. v. United Lead Co., 102 N. J. L. 545; 133 Atl. Rep. 290. In the case of Great American Indemnity Co. v. Gronowicz et al., 6 N. J. Mis. R. 821; 142 Atl. Rep. 897, the plaintiff filed a reply reserving therein the right to strike out the answer on the ground that it was sham and frivolous. The court in that case held the plaintiff having elected not to address a motion to the answer and having filed a reply with the reservation mentioned must be held to his election.

It is quite evident that the motion to strike on the ground that the answer is sham or frivolous cannot be sustained because of the election made by the plaintiff. The plaintiff in his brief argues that the court should dispose of the motion under the objection reserved in the reply. The notice of the motion made did not relate to this reservation and all that could be considered under the objection contained in the reservation are questions of law arising out of the pleadings. Eule 40 of the Supreme Court; Lehigh Valley Railroad Co. v. United Lead Co., supra; Klughaupt v. Acquackanonk Water Co., supra. The first separate defense alleges that the certificates were illegally issued and issued without consideration. There has been no proof advanced on the motion to answer this defense and construing the pleadings under rule 40 this is a legal defense requiring proof at the trial. The same disposition is made of the second separate defense wherein it is alleged that payment was made to the payee of the certificates. The third separate defense amounts to a plea of the statute of limitations. The statue of limitations is a proper defense and is not available unless asserted in a plea. Callan v. Bodine, 81 N. J. L. 240 (at p. 242); 79 Atl. Rep. 1057; Knabe v. Hudson Bus Transportation Co., 111 N. J. L. 333; 168 Atl. Rep. 418. The plaintiff attempts to meet the defense of the statute of limitations by producing an affidavit showing that the plaintiff was an infant during the running of the statute. It is a settled rule under the British statute of limitations as well as like statutes in our state that when the statute has once begun to run its course will not be impeded or its operation suspended by any subsequent disability. Clark v. Richards, 15 N. J. L. 347; Freeman v. Conover, 95 Id. 89; 112 Atl. Rep. 324; Thorpe v. Corwin, 20 N. J. L. 313. The disability of infancjr in the case sub judice occurred after the statute began to run. The motion to strike the answer will be denied. Considering the counter-motion of the defendants addressed to the complaint on the ground that the complaint fails to disclose a cause of action, this motion will be denied for the reason that it was made after answer filed. There has been no reservation of objection filed with the answer whereby the motion could be considered under rule 40 of the Supreme Court. The authorities cited in considering the motion of the plaintiff are applicable to the motion of the defendants. It follows under those authorities that the motion of the defendants to strike the complaint should be denied. An order may be entered in accordance with the above determinations.


text:
    HARRISON FONTAINE, PETITIONER-DEFENDANT IN CERTIORARI, v. UNITED ENGINEERS AND CONSTRUCTORS, INCORPORATED, RESPONDENT-PROSECUTOR IN CERTIORARI.
    Submitted October term, 1933
    Decided February 7, 1934.
    Before Justices Case, Bodine and Donges.
    Bor the respondent-prosecutor in certiorari, Henry H. Fryling (Elmer W. Romine, of counsel).
    Bor the petitioner-defendant in certiorari, Arthur A. Melnik (Meyer C. Fllensiein, of counsel).
   The opinion of the court was delivered by

Case, J.

Harrison Bontaine petitioned for, and was granted, compensation from his employer, United Engineers and Constructors, Incorporated, under the provisions of the Workmen’s Compensation act. Pamph. L. 1911, ch. 95, p. 134; Cum. Supp. Comp. Stat., § **236-1, et seq. The award carried allowances for both temporary and permanent disability. The fact of the employment, the details of the accident and the question of temporary disability are not in dispute. The controversy is upon the amount of the award for permanent disability. The employer appealed from the determination of the workmen’s compensation bureau to the Essex Common Pleas and, that court having affirmed, now brings up the record by writ of certiorari.

On August 13th, 1930, Bontaine was engaged in the construction of a manhole and was injured while working therein at a depth of from seven to nine feet by a rock that fell from the edge of the manhole and struck him a glancing blow on the back. There was a temporary disability for a period of fifty and five-sevenths weeks, for which the injured man was compensated even before the order of the workmen’s compensation bureau fixing that allowance was made.

Prosecutor’s first point is that the award and judgment in favor of the petitioner is against the weight of evidence and is unsupported by any legal evidence. But the answer submitted by the employer in response to the petition filed with the bureau admitted that there was a two per cent, permanent disability. This established the fact of permanent disability. The extent will be presently considered.

Prosecutor presents as its second point that “the original award and judgment and as affirmed by the Essex County Court of Common Pleas is illegal and void.” We understand this to be a charge that the determination by the commissioner was illegal and that this illegality was not cured by the affirmance in the Common Pleas; and from the context we gather that the illegality laid against the original determination is that it did not set forth the facts upon which it was founded. Gianfrancisco v. Public Service Co-ordinated Transport, 11 N. J. Mis. R. 219; 165 Atl. Rep. 419, and other cases being cited in support. With this we do not agree. Bearing in mind that the only issue was that of the nature and extent of the permanent liability, we note that the commissioner summarized the medical testimony of both petitioner and respondent on that point, that he announced the factual finding reached by him from the study of that testimony and that he particularized the nature and extent of the permanent disability and determined the relationship of the acciclent to those conditions. He further, briefly but sufficiently, gave the reasoning upon which the result was reached; and he followed this, in logical sequence, with eight numbered paragraphs succinctly setting forth the findings and leading up to the formal order with which the document concludes. While the factual finding was not elaborated, we consider that it was adequate, particularly in the light of the commissioner’s observations shown by the certified transcript to have been made when the case was submitted.

Counsel comments upon the fact that the commissioner, immediately at the close of the hearing, expressed oral dissatisfaction with the proofs but nevertheless subsequently decided the case without obtaining further testimony. Counsel does not point out legal error in this and we discover none.

Counsel also finds fault with the absence, from the order of the Common Pleas, of a detailed finding of the facts upon which the judgment rested. But the cases cited by him relate to a period when that court had original jurisdiction of this class of cases. The present procedure involves chapter 25 (Pamph. L. 1932), whereby the original determination by the commissioner goes, with the transcript, to the Court of Common Pleas on appeal, and is within the reasoning of Dreyfus v. Lutz Co., 6 N. J. Mis. R. 608; 142 Atl. Rep. 433.

Prosecutor presents as its third point that “the award and judgment is excessive.” There was competent testimony to sustain every finding of fact made by the commissioner. To say that there was testimony contra is merely to say that there was a litigated issue. The respondent’s contention, in short, was that the petitioner’s crippled condition is due to the progressive development of an arthritis that existed before the accident. As against this was the insistment that whatever the underlying condition, whether of arthritis or hypertrophic changes in the spine, the petitioner was, until and at the time of the accident, a robust, active man, uncrippled and in apparently good physical condition, doing, without pain or bodily hindrance, the arduous work of a day laborer and that the accident, without which the concealed ailment might never have lighted up, was the precipitating cause of his present condition. The fact was resolved against the respondent, and for this there was support in the proofs. As to the extent of disability the testimony, again, is widely divergent. Of the petitioner’s medical witnesses, one testified that the permanent disability, measured in percentages, was seventy-five to eighty per cent.; another, that the vocational disability of the petitioner as a laborer was ninety to ninety-five per cent., that he was “useless;” and another, that he was “totally disabled for his laboring work,” that the disability was “a hundred per cent, for industrial occupations.” The commissioner found that the disability suffered by reason of the accident was equivalent to seventy-five per cent, total and permanent disability. Likewise, the Common Pleas Court. Thus, two separate and distinct tribunals have considered the evidence and reached the same result. We have examined the testimony and conclude that the findings of fact are grounded in competent evidence; and we think that those findings should not be disturbed.

The fourth point is that “the award and judgment in favor of petitioner was made on the theory of aggravation which was not pleaded.” But whether the principle on which the award was made was or was not pleaded, it was thoroughly controverted and tried out in the case. Moreover, it was plainly stated by tbe commissioner at the close of the testimony while there was yet time for the respondent, if it was surprised, to say so and to make application for opportunity to meet the issue. There was no such presentation.

Finally, it is said that the award and judgment in favor of petitioner should be set aside and reversed, and the reason alleged in support of the point is that it is incumbent upon the petitioner to prove his claim by a fair preponderance of credible testimony and that he did not do. We need only repeat that in our opinion the proofs sustain the findings made thereon by the two lower tribunals.

The judgment below will be affirmed, with costs.


author: Pek Curiam.

text:
    BERTHA ACKLEY, A MINOR, BY HER NEXT FRIEND BERTHA ACKLEY, AND BERTHA ACKLEY, INDIVIDUALLY, PLAINTIFFS, v. FRANK HANNAWACKER, DEFENDANT.
    Submitted October 14, 1933
    Decided February 15, 1934.

      Before Bkogar, Chief Justice, and Justices Teenchakd and Hehek.
    For the appellant, William A. Moore.

    For the respondents, Charles Quinn.

   Pek Curiam.

Bertha Ackley, mother of Bertha Ackley, a minor, instituted this suit on her own behalf and as next friend of her daughter, for damages sustained by herself and her daughter as a result of her daughter’s being struck by an automobile owned and driven by the defendant, Frank Hannawacker.

The jury rendered a verdict for the plaintiffs and the defendant appeals, and argues that the judgment should be reversed because of (1) the refusal of the trial judge to non-suit, and (2) the refusal to direct a verdict for the defendant.

Both questions may be considered together since they raise 'the same questions, namely: (1) Did the evidence justify the inference of negligence upon the part of the defendant, and (2) did the evidence show contributory negligence upon the part of the minor Bertha as a matter of law.

'The evidence reasonably tended to show that the plaintiff Bertha Ackley, a minor sixteen years of age, was crossing Lawrence street at the crosswalk, where it intersects Olden avenue in the city of Trenton, on October 20th, 1931, at about seven-fifteen p. M., walking in a southerly direction. She was within one or two steps of the opposite curb when the car driven by the defendant, going in a northerly direction on Olden avenue, made a sharp right-hand turn into Lawrence street, striking and throwing her “into the air,” and injuring her. Before starting to cross she looked both to her right and to her left but did not see any car. The defendant’s car approached on Olden avenue at thirty miles an hour and was traveling twenty miles an hour as he rounded the corner and hit the girl, without giving any warning of his approach, nor of his intention to make the sudden turn, although his headlights disclosed to him her presence on the crosswalk. There was nothing to obstruct his vision or confuse or embarrass him. In short, nothing appeared to account for the accident except the speed at which he was driving, and the sudden turn that he made without warning.

Such were the matters of fact which the jury, if they saw fit, might and no doubt did find.

We think the question of defendant’s negligence was for the jury, as was likewise the question of the alleged contributory negligence of the girl. Puorro v. Salerno, 109 N. J. L. 381; 162 Atl. Rep. 527.

The judgment will be afSrmed, with costs.


author: Pee Cuelam.

text:
    JAMES D. COLYER, RECEIVER OF THE BELVIDERE NATIONAL BANK, RELATOR, v. FRANK PIERSON, ALBERT L. SMITH AND THOMAS B. LANTZ, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WHITE, IN THE COUNTY OF WARREN AND STATE OF NEW JERSEY, DEFENDANTS.
    Submitted October 14, 1933
    Decided February 15, 1934.
    Before Brogan, Chief Justice, and Justices Trenchakd and Hbher.

      For the relator, Charles B. Brady.

    For the defendants, Roseberry & Son (Joseph M. Roseberryof counsel).
   Pee Cuelam.

This case was noticed for argument before Part II. It was not argued there, but upon the theory that it had been submitted on briefs, it came to Part I in the distribution of brief cases.

Our examination of the records shows that it was not regularly submitted on briefs.

A case may be submitted on briefs without oral argument, according to rule 155 of the Supreme Court: (1) “by written stipulation” and that certainly was not done; (2) “by consent in open court,” and that does not appear to have been done, the plain indication being to the contrary.

The only other way in which a case may be submitted on briefs under rule 155.is (3) “by filing five copies of the state of the case and of the briefs on both sides with the sergeant-at-arms within ten days of the first day of the term.” This was not done, since the respondents filed no brief. True, the relator submitted a state of the case prepared by him, and his brief, to the sergeant-at-arms, with copies thereof, within ten days of the first day of the term; but as we have indicated the respondents did not submit any brief to the sergeant-at-arms, but on the contrary, filed objection to the argument.

Now rule 155 further provides that “unless the briefs on both sides are filed within the time limited, the cause will not be considered.”

In these circumstances it seems apparent that this case, involving not only important private interests, but also the interests of the public as represented by the municipality, should not be considered at this time in view of the situation of the matter, especially in view of the objection of the respondents.

Of course the relator is at liberty to bring the case on properly, according to rules, either for oral argument or on briefs, at the next term of the court.

No costs to either party as against the other are allowed at the present time.


text:
    THE MAPLEWOOD BANK AND TRUST COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CARRAGHER CONSTRUCTION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AND JOHN J. CARRAGHER, DEFENDANTS-APPELLANTS.
    Submitted October 14, 1933
    Decided February 15, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the appellants, Edwin G. Adams.

    For the respondent, Smith & Slingerland.

   Per Curiam.

This is an appeal from the judgment of the Essex Circuit Court giving summary final judgment to plaintiff-respondent against defendants-appellants for $1,575 damages, entered upon an order for summary judgment, which order struck out the answers of both defendants and two of the three counterclaims filed by defendant Carragher Construction Company, and denied that part of the motion to strike out the third counter-claim of defendant corporation.

The complaint was based upon a promissory note dated September 1st, 1932, payable one month after date, to “The Prospect Trust Company, a corporation of the State of New Jersey,” for $1,575, made by defendant Carragher Construction Company, and endorsed by that company and defendant John J. Carragher. The complaint alleged, among other things, that on or about September 28th, 1932, The Prospect Trust Company merged with The Maplewood Bank and Trust Company, and by virtue thereof that note became the property of The Maplewood Bank and Trust Company, the plaintiff-respondent; that on the due date of the note it was presented for payment “at the place where it was payable,” but it was not paid. The answer of the corporation defendant Carragher Construction Company admitted the giving of the note to The Prospect Trust Company, and the endorsements thereon, but put plaintiff to its proof upon all the other allegations of the complaint. That defendant also filed three counter-claims. The answer of the defendant John J. Carragher, admitted the making and endorsement of the note, and put the plaintiff to its proof upon all other allegations of the complaint. His answer also set out three separate defenses, each of them based upon the fact that the defendant Carragher Construction Company, the maker of the note, possessed three separate counter-claims against the plaintiff, and averred that the corporation defendant not being liable to the plaintiff because of such counter-claims, the defendant John J. Carragher, as endorser, was not liable.

Plaintiff-respondent gave notice of a motion before the Circuit Court for an order to strike out the answers “on the grounds that the allegations contained therein are untrue in fact and sham, or that they are frivolous, argumentative and uncertain;” to strike out counts one and two of the counterclaim of the corporation defendant, “on the ground that said counts are untrue in fact and sham, or that they are frivolous and do not disclose a cause of action;” and to strike out count three of the counter-claim “on the ground that said counter-claim is for unliquidated damages and therefore not the proper subject of a counter-claim, and on the further ground that said counter-claim arises out of an entirely separate transaction and raises a separate issue which would embarrass or delay a fair trial of this cause.” The notice further stated that at the same time motion would be made for summary judgment, which motion would be supported by two affidavits attached, being the affidavits of Walter G-. Seymour and Samuel M. Lightholder.

IJpon the hearing of the motion defendants presented no affidavits. After argument the Circuit judge, as above stated, made an order striking out all the pleadings of both defendants except the third counter-claim of defendant Carragher Construction Company, and granting summary final judgment. From this judgment defendants appealed.

Several grounds of appeal are argued, but for present purposes it seems necessary to consider only one, which we think is well taken.

We think the learned Circuit judge erred in ordering a final judgment for plaintiff upon its claim while allowing a counter-claim in an amount exceeding plaintiff’s claim, to stand.

The order for summary judgment directs: “that the motion to strike out the third count of said counter-claim be denied,” and further orders that: “final judgment be entered in favor of the plaintiff and against the defendants Carragher Construction Company, and John J. Carragher, for the sum of $1,575,” &c.

How the third counter-claim of the defendant Carragher Construction Company is in the amount of $9,159.32, far exceeding plaintiff’s claim.

Rule 67 of the Supreme Court says: “If the amount found due on the counter-claim of the defendant exceeds the amount found due to the plaintiff, the defendant shall have judgment for the excess.”

Apparently the Circuit judge considered the order for final judgment justified by rules 82 and 83. But we do not take that view. WTe think the situation presented in the present case did not justify the final judgment entered, since such final judgment runs counter to the spirit and purpose of rule 67.

The judgment will be set aside, with costs.


text:
    ANNA KINDERVATER (BY HER NEXT FRIEND RUDOLPH KINDERVATER), ANNA KINDERVATER, INDIVIDUALLY, AND RUDOLPH KINDERVATER, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. WILLIAM SIMONI, DEFENDANT-APPELLANT; DAVID DOYLE, DEFENDANT-RESPONDENT.
    Submitted October 14, 1933
    Decided February 15, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the plaintiffs-respondents, Frederick Siman.

    Por the defendant-appellant, Green & Green (David Green, of counsel).
    Por the defendant-respondent, Goult, Satz & Tomlinson (Gerald T. Foley, of counsel).
   Per Curiam.

This is an appeal from a judgment entered upon a verdict in the Union County Court of Common Pleas in favor of the plaintiffs. The suit was brought by three plaintiffs against two defendants, William Sirnoni and David Doyle. The verdict as taken was against the defendant Sirnoni and in favor of the defendant Doyle.

The appellant, Sirnoni, contends that the judgment should be reversed because of improper conduct upon the part of the clerk in connection with the verdict. It is not contended that the clerk was without power to receive a verdict in the absence of the judge. The contention is that the clerk improperly returned the jury to the jury room for further consideration after they had in effect disagreed as to their verdict.

The record laid before us shows without substantial dispute that what occurred was this: After the jury retired to deliberate the judge left the court house. Sometime later the jury came into the court room and indicated that it had reached a verdict which the foreman announced, stating the various amounts of the verdicts for the several plaintiffs and against the defendant (appellant) and a verdict of no cause of action as to the defendant Doyle. Thereupon counsel for the appellant, Simoni, demanded that the jury be polled. That was done with the result that eleven of the jurors announced the verdict as stated by the foreman, whilst one of the jurors announced a verdict in favor of the several plaintiffs in amounts differing from that announced by the foreman, and also differing from it in that this juror’s verdict was against both defendants. Thereupon counsel for the appellant, Simoni, informed the clerk that these verdicts was in effect a disagreement of the jury. The clerk then endeavored unsuccessfully to communicate with the judge. Thereupon counsel for the appellant and other counsel conferred with the clerk, with the result that the jury was returned to the jury room for further consideration of their verdict. That was done without any objection upon the part of counsel for the appellant and apparently with his acquiescence. Later the jury returned into court with the verdict from which this appeal is taken.

The appellant argues that the clerk usurped a judicial function in thus returning the jury to the jury room for further deliberation.

We think this contention is without merit. The appellant relies upon the rule in Sockolowski v. Olkowski, 102 N. J. L. 50; 130 Atl. Rep. 514; Folkner v. Hopkins, 100 N. J. L. 189; 126 Atl. Rep. 633, and similar cases cited.

Those cases we think are not in point. In those eases the jury did return a verdict, that is, some finding upon which they unanimously agreed, and the clerk refused to accept it because in his view it did not meet the issues submitted by the proofs and the charge of the court.

In the present case we have a far different situation. After the jury was polled at the demand of the appellant, it was evident that they had agreed on nothing. It was then the duty of the clerk to send them back, and his action in doing so was ministerial and not judicial, and was without objection and apparently with the acquiescence of the appellant.

Such in effect are the views expressed in State v. Pallitta, 11 N. J. Mis. R. 612; 167 Atl. Rep. 20, a very similar case to the present, and indeed controlling here.

The judgment will be affirmed, with costs.


author: Pise Curiam.

text:
    VINCENT GELCZIS, ADMINISTRATOR OF THE ESTATE OF SOPHIE GELCZIS, DECEASED, PLAINTIFF-RESPONDENT, v. THE PREFERRED ACCIDENT INSURANCE COMPANY OF NEW YORK, A CORPORATION, DEFENDANT-APPELLANT.
    Argued October 3, 1933
    Decided February 15, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    Por the appellant, Brenner & Eresch (Alfred Brenner, of counsel).
    Por the respondent, Edward J. Madden.

   Pise Curiam.

The plaintiff below has a judgment entered on a verdict in the Hudson County Court of Common Pleas.

The subject-matter of the suit was the liability of the defendant insurance company on an automobile liability policy of insurance issued by the defendant on October 1st, 1930, to one Fred W. Puller, the named assured.

The point at issue, as we see it, is whether or not Puller was covered by the policy on October 9th, 1930, the date of the accident. That this is the only question in issue is apparent by reason of a stipulation made by defendant at the trial that "the only dispute is whether Pred W. Puller was covered by the policy of the Preferred Accident Insurance Company of New York at the time this accident took place” and defendant’s stipulation also said "we concede that the policy was issired by the Preferred Accident Insurance Company of New York. The only question is the question of delivery.”

The defendant contends that there was no proof that it delivered the policy of insurance to Puller. We think there was. It was delivered to Mr. Stiasny, who was the agent with whom Puller dealt in procuring the policy, and who received and held it, according to the testimony and admission of the defendant, as the agent of Puller.

The defendant further contends that when this policy was delivered to the agent Stiasny, Puller refused to receive it. We think that the evidence justifies the contrary inference and that he accepted it; that he wanted it and accepted it, but that he could not pay for it all at once but would pay for it on installments, in like manner as he had paid for the prior policy issued by the same company to him.

The defendant further contends that Stiasny had no authority to enter into such an arrangement in view of the terms of the policy.

But that contention we think it is idle to consider because the evidence is quite clear, we think, that the company waived any such provision subsequent to the accident by sending a notice of cancellation to Puller on February 26th, 1931 (five months after the issuance of the policy), and enclosing therewith a bill for the earned premium which Fuller paid.

The defendant, however, contends that the trial judge erred in admitting in evidence such notice of cancellation and the accompanying receipted bill for the earned premium.

We think not. The evidence was uncontradicted that such notice and bill were sent out from the home office of the defendant in the usual course of business and came through the mail addressed to Fuller and that the envelope in which they were contained indicated on its face that it came from such home office, as did likewise the notice of cancellation and the bill for premium, both being under the headings of “The Preferred Accident Insurance Company of New York, 80 Maiden Lane, New York, N. Y.” Both notices stated the New Jersey agency of the defendant as “A. W. Marshall & Co.,” of Newark. And it is also to observed that A. W. Marshall & Co., countersigned the policy as “Authorized Agent.” The evidence also shows that on March 2d, 1931, Fuller paid the bill for earned premium to A. W. Marshall & Company, as shown by their receipt on the bill for earned premium. It was not objected that A. W. Marshall & Company had no authority to receipt for earned premium. The objection was that they had no authority because the policy had not been delivered to Fuller. We have already indicated that the evidence tended to show that it had been delivered.

It was therefore competent for the jury, to infer, in the absence of any denial, that after the accident, the defendant company had sought to cancel the insurance, had rendered a bill for the earned premium, and through its duly authorized agent had received the money. And the testimony and evidence also tended to show that this was all done with complete knowledge of all of the material circumstances.

In this situation, as pointed out in New Jersey Rubber Co. v. Commercial Union Assurance Co., 64 N. J. L. 580; 46 Atl. Rep. 777, “clearly the defendant could not assert a right ■to the premium for valid insurance and at the same time insist that the insurance had never been effected. By claiming and maintaining such a right, with full knowledge of all material circumstances, it unequivocally affirmed the validity of the insurance for the period covered by the premium and definitely waived every objection on which its validity could be denied.”

Our conclusion is that the motion for the direction of a verdict for the defendant was properly denied, and the objection to the admission in evidence of the notice of cancellation and the receipted bill for the earned premium was properly overruled.

The defendant further says that there was error on the part of the trial judge in charging the jury: “Well, of course, if the defendant agreed to waive the prepayment of the premium, that would bind the company.”

We think that was not prejudicial error, as is demonstrated by the case of New Jersey Rubber Co. v. Commercial Union Assurance Co., supra.

The judgment will be affirmed, with costs.


author: Pek Cueiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ISADORE B. GLASS, PLAINTIFF IN ERROR.
    Submitted October term, 1933
    Decided February 20, 1934.
    Before Beogast, Chief Justice, and Justices Tbenchaed and Hehek.

      For the plaintiff in error, Sliebell •& Edelson (Harry Edelson, Theodore D. Parsons and John J. Quinn, of counsel).
    For the defendant in error, Jonas Turnen (J. Victor Gar-ton, of counsel).
   Pek Cueiam.

The plaintiff in error was convicted of the crime of arson. The charge of the indictment was two-fold, the first count being that the defendant willfully and maliciously burned and caused to be burned a dwelling house, &e., and the second count that the defendant below willfully and maliciously did aid, counsel, procure and consent to the setting fire and burning of said dwelling house, &c. The jury found the defendant guilty as charged in the second count.

The defendant below appeals to this court setting up various reasons for reversal, which he reduces to five particular points, the first one of which is that no evidence was produced, either direct or circumstantial, upon which a conviction of the defendant could be found. With this contention we cannot agree. Ko good purpose will be served by reviewing the evidence in detail. It will suffice to say that at the end of the case the conclusion that the defendant was guilty of having procured the burning of this dwelling house was supported by the evidence in the case. The issue, as it frequently happens in matters of cases of this kind, was determined by the jury altogether on the question of credibility. If the jury believed the state’s witnesses, as it did, there was plenty of evidence upon which to convict the defendant. If the jury disbelieved the state’s witnesses and believed those of the defendant, and the defendant himself, it could have found sound reason for acquitting the defendant.

The second reason for reversal is that the trial court erred in striking out the testimony of Dr. Silverstein as to the reputation of the defendant. It appears that this witness testified as to the good reputation of the defendant and upon his saying that his testimony was based on his personal knowledge of the defendant and not upon what other people said about him, the court, on motion oi the state’s attorney, struck out the testimony. In this we think the court was right. Testimony as to a person’s reputation, in the very nature of things, is and must be predicted upon what kind of man the person is reputed to be. The witness particularly stated that his testimony was based on his own knowledge of the defendant and not on his reputation. We think the testimony was properly stricken.

The third reason for reversal is that the trial court erred in charging the jury concerning the evidence. We think this point is entirely without merit. Assuming for the sake of argument that the trial court did misstate the evidence, the court, comprehensively and with great definiteness, instructed the jury not to be guided by what the court said the facts were, but to take their own recollection of the facts as they found them. The court fully instructed the jury on this point and there was no error there committed “so long as the right of the jury to decide disputed questions of fact is pointed out in the charge, the judges’ comments on evidence, even when they embrace actual misstatements of fact, afford no ground for reversal of a criminal conviction.” State v. Kaskevich, 98 N. J. L. 23; 118 Atl. Rep. 701.

As to the next reason for reversal, that the court erred in his charge, this is what the court said:

“You may bring in a verdict of guilty as to the first count and not guilty as to the second count, or you may bring in a verdict of guilty as to the first count and not guilty as to the second count. You may bring in a verdict of guilty as to the second count and not guilty as to the first count.

“It seems to me, as I recall the testimony—and I want you to understand you are the judge of the facts entirely in this case—that there is no real evidence before you that the defendant did set the place afire himself.”

We find no harmful error here nor does counsel for the plaintiff in error point to any authority that persuades us that this language was error. The first sentence of that part of the charge complained of, is repeated. The court then goes on to state fairly that he didn’t recollect any evidence that would justify a conviction of the defendant under the first count in the indictment, because as he says, he does not remember any testimony that the defendant himself set the house afire. It will be observed the court merely says that he doesn’t recall any such testimony. He does not foreclose the jury from considering it if, according to their recollection, such evidence was in the case.

The final point relied upon by the plaintiff in error is that the court erred in charging the jury as to the law on circumstantial evidence. The plaintiff in error points out that the court charged the jury as follows:

“This is a good example of a case of circumstantial evidence, and circumstantial evidence is passed on to the jury for you to to determine what weight you will give to it, and if a person would have to be convicted by direct evidence without any doubt whatever circumstantial evidence would be excluded altogether.”

The language complained of correctly states what was in the court’s mind. It is, we believe, comprehensible and free from error. The defendant below did not request a definition of circumstantial evidence nor do we find any exception to the court’s charge. The court was charging the jury about circumstantial evidence, giving to it a place in the deliberations of the jury and telling the jury that circumstantial evidence was efficacious to convict because if it was not it would have to be excluded entirely, if the law required that direct evidence was necessary to convict in all cases. The court then charges the jury that it was their duty to give the defendant below the benefit of reasonable doubt. We think the charge was fair and free from prejudicial error.

We find nothing of merit in the assignments and the reasons for reversal and we conclude that the conviction must be affirmed.


author: Baches, Y. C.

text:
    Cornelia D. English, complainant, v. John T. English, defendant.
    [Decided February 13th, 1934.]

      Messrs. Eraemer, Siegler & Siegler, for the complainant.

      Messrs. Child é Shipman, for the defendant.
   Baches, Y. C.

Immediately after the complainant’s former suit for maintenance was decided against her, in January, 1932, in which she alleged cruelty, and at the hearing charged adultery, she sought a reconciliation. Rejection of her advances, regarded as not in good faith, is the basis of this second suit, alleging abandonment and refusal to support. The defendant counterclaims, alleging extreme cruelty, praying a divorce. The testimony of adultery was repeated in this suit to neutralize the proof of extreme cruelty.

They were married in 1914. He was a physician; she, a trained nurse. He returned from overseas after the war and established himself well in his profession in Irvington. They lived together until April 25th, 1931, when she drove him from the house, after assaulting him with an ice pick. There was some trouble in 1926. At a week-end party, over the Labor Day holiday, at their summer bungalow, one of their female guests, an intimate friend of both, is supposed to have told another female guest, upon their first meeting, that she and the doctor had been criminally intimate for the then past four years. She is also supposed to have later repeated the same story to the complainant on a visit to the chic sales at midnight. The complainant says she forgave her hubsand after he had admitted one act of adultery, and then it passed out of their lives until revived in the divorce court. That the female guest flaunted her shame is highly improbable; the underlying facts are denied. The defendant says that after he had gone to sleep on the porch, the female guest, in frolic, pulled his toe to get him up to join the rest, and that the complainant accused him of an impropriety, which led to unhappiness and considerable irritation. The rift that gradually expanded and led to the final separation began February 15th, 1930, when, upon coming home late at night, she accused him of being out with a nurse, and, told by him the next morning where he had been, accused him of committing adultery with the woman upon whom he had called, claiming that she had found him at her apartment, heard the clinking of glasses, and saw him leave by the back door about midnight. She then accused the woman to her husband and, aroused, he telephoned and then called upon the defendant. The complainant knew he was coming, and fearing bloodshed, had a police lieutenant present. The husband called a second time, after giving the defendant three days to get out of town, accompanied by the same police lieutenant. They talked over the situation, and to the satisfaction of the husband that it was mischief of the complainant. The husband and wife were friends of the complainant and defendant; the latter had been their physician for eleven years, brought their children into the world, and had performed an operation upon the wife at or about the time of the last child’s birth. On the day of the call upon the woman, he was attending their infant son, who was suffering from an ear trouble, and returned at nine or ten o’clock in the evening to see him again. The call was purely professional. The woman has the appearances of respectability and of honor. She was genuinely candid on the stand, distressed as she was by the wicked implication of unchastity. The complainant’s story, that she saw them together at midnight, was an invention, like others in her testimony, to molest the defendant.

Nightly thereafter, often far into the morning, she upbraided, taunted and tormented him with the accusation, threatening to kill him if she again found him with the woman. Distracted and alarmed, he, from time to time, called in brother physicians to observe and to quiet her, and her apprehension that he intended to commit her to an asylum only added to her frenzy. Forty harrowing days and nights of this, and she suggested a vacation as a healing means. They returned after a two-weeks’ trip, and there was some betterment. The sixth day at home, overhearing a telephone message from a patient in the apartment house where the woman lived, she accompanied the defendant on his sick calls, and as they approached the house she rushed out of the car into the woman’s apartment, hurling the same accusations against her, and then, over the telephone, to her husband. She went a third time to the apartment, to the husband and wife, repeating the accusations, adding that the defendant was dragging the woman’s name in the mud, broadcasting that she had had an infection, the result of a venereal disorder, when he operated upon her. She also carried this scandal to the woman’s mother. She demanded the defendant’s discharge as their family physician, and it was sent in letter form, to be rid of her. But there was no peace for the defendant. She kept on nagging and accusing, and, under the grind, he landed in a hospital in the latter part of May, suffering from ulcers of the stomach, due, it is said, to “nerves”’ brought on by worry. During his stay there for a month, she annoyed him and he was taken to a sanitarium where she couldn’t get in. He continued sick at his home during the summer; she persisted and finally, in August, a separation agreement was made. They remained under the same roof, ate at the same table, but ignored each other for a while until there was an easing up; in the week of and before the episode next to be told, they visited friends at Eatontown, during the hunting season, and stayed overnight in the same room.. There was no reunion, for both sides say the separation agreement was kept until the final break.

After the woman and her husband heard of the agreement, they re-engaged the defendant as their family physician, and this coming to the notice of the complainant, through a telephone call for his services, in the latter part of March, 1931, she telephoned the husband that his wife and the defendant were approaching their former illicit relations. He told her he knew all about the call, that he did not care to hear any more from her, and that if she didn’t stop molesting his wife he would take action. And then, after returning from a hurried visit to the defendant’s brother, to whom she accused the defedant of resuming criminal intimacy with the woman, she renewed the accusations to the defendant, hurling magazines at him, witnessed by the maid, and when he took hold to stop her, she scratched and he quit, bleeding behind the ears. She blamed their airedale, but there is little doubt who did the scratching. There was much ill feeling and unrest until April 25th, when, with a concealed ice pick she chased him, ordering him from the house. Her tale is that after some sharp words, he made a dive at her, and, under his advance, she retreated to the kitchen where she grabbed the weapon, using it in self-defense. She hurried out when she thought he was dialing for the police, and when she returned, having been to the police herself, and, as she says, advised by them, ordered him from the house. He left. Belief in his version finds substantial support in her then arrogance and in her previous generally belligerent attitude. That she was •constantly the aggressor is only too plain from her repeated disdainful references to his passiveness, “you can’t fight with Dr. English.” It probably enraged her to more.

This narrative does not picture the complainant in her tan-drums, in her attacks upon the defendant and in her encounters with the woman and her husband. Her profanity and her revolting pet curses for the defendant, may be found in the record; they are not fit for print.

• Wantonly charging a spouse with adultery, may in itself be extreme cruelty. The slander is more odious when leveled .at a virtuous wife, and more poignant is the suffering, for, socially, in her the sin is mortal, and true to tradition, she becomes an outcast as of old, when the adulteress was stoned to death and philandering went unpunished. The gravamen, •on this score, is not the accusations of adultery to the defendant, for, in all probability they would have been passed off as insults, but the constant attacks and their virulence and the maligning and scandalizing publication as a weapon to inflict injury and to ruin, were intolerable. The physical assaults in March and April, 1931, were culminations of her viciousness.

And that which occurred after the separation is yet to be told. While the incidents are not pleaded causes of action, they manifest the deep-seated hatred animating those charged in the counter-claim. To the state agent of an insurance company, for which the defendant was an examiner, the complainant told that he was a heavy drinker, patronized speakeasies, &c., and wondered that he considered him a proper examiner for the company. He lost his position as physician to an industrial plant because of her derogatory statements to the superintendent, upon three or four visits, that he was •crazy, had been gassed in the war, was unfit to practice, and that he disclosed to others the secret disorders of his patients; and she cursed him roundly. To another she said she would give $25 to have him beaten up. In a collision of their cars on Park avenue, where she had gone at night to spy on him, which she untruthfully denied, she let out her usual oaths. Later she accused him over the telephone. Within the month of the hearing of this cause, she went to a relative’s home, where the defendant was being entertained, and made a scene; foully berating him. And at the present hearing she kept spewing her rancor, to defame the defendant and to destroy him professionally; and she did not stop at romancing. Adding infamy, she accused him of having a venereal disorder in 1921, and that he infected her, but had at that time satisfied her of his innocence, and she was content with the •absurd explanation that he had contracted it in unclean surroundings at a convalescent home. She,'a trained nurse? And she accused that he had the disorder again in 1927, and after suffering with it and treating himself for a long spell and thinking himself clean, communicated it to her with the result, as she claims, that she was subjected to an operation and the removal of the ovaries and fallopian tubes. The operation, it is proved, was for appendicitis; the organs were involved and were removed to avoid complications. The •defendant was at the time daily in the operating room, where cleanliness is the first law. His practice, before entering the operating room, was to strip complete^, and thus, exposed to his associates, the condition could not have escaped them, and they, as one, say it did not exist. Eeactions to tests of his blood and urine were negative. Another thing that stands in refutation. The complainant wanted to go to the Oity Hospital; the defendant insisted that she go to the hospital in which he operated and that his fellows operate upon her. If she were at that time acutely suffering from the disorder, as she says she was, he surely would not have laid himself open to the shame. She says the defendant told her his last infection was contracted from the woman while delivering her child—that he was careless. The complainant knew this to be untrue and she admits that eight months before she testified, she .discovered that the woman’s baby was delivered a year after the defendant’s supposed infection, and yet, unabashed, she told the scandal. The thing that stamps it as invented since the hearing in the previous suit is that she did not tell it at that time. Her explanation that her lawyer wanted that case to be a clean one is attenuated, for she there left nothing untold that would serve her. Since then she cooly calculated the harm to the defendant from the notoriety of exposing his patients to a loathesome disease; to ruin him as she had threatened.

There was a half-hearted effort to account for the misconduct, to a mental upset resulting from menopause. Mental disturbance is not uncommon, but the complainant stopped functioning more than two years before misbehaving, and she showed no signs in the meantime. Physicians pronounced her responsible.

Divorce for extreme cruelty is seldom sought by husbands. Whether this may be accounted for by better manners of wives or greater fortitude of husbands will not be debated. Naturally their methods of cruelty differ. Just how cruel a husband or wife may be and still escape the consequences will always be a vexed question, but if she is as misbehaved as this one was, her conduct comes within the accepted definition of extreme cruelty.

The defendant is entitled to a decree.