author: Bergen, J.

text:
    PERTH AMBOY IRON AND METAL COMPANY, PROSECUTOR, v. HERMAN ELLIS, DEFENDANT.
    Decided March 20, 1923.
    Landlord and Tenant — Dispossession of Tenant — Jurisdiction of District Court to Remove Tenant Continuing in Possession After Expiration of Lease.
    On certiorari to review the aclion of a District Court in dispossessing a tenant.
    Before a single justice.
    For the prosecutor, Thomas Brown.

    For the defendant, Wight, Wight & Golenbock.

   The opinion of the court was delivered by

Bergen, J.

A writ of certiorari was allowed to review the proceedings and judgment of the District Court of the city of Perth Amboy on the ground that the jurisdictional affidavit did not set out “demand made and notice in writing given for delivering the possession” of the demised premises where the tenant held over after the expiration of his lease. The District Court is given jurisdiction to remove a tenant under section 107 when any person shall hold over and continue-in possession of the demised premises, after the expiration of his term, and after demand made and notice in writing given for delivering the possession thereof by the landlord, the demand to be made and notice given as is particularly set out in the act. The jurisdictional affidavit does not set forth any such demand, and it is not claimed by the landlord that it was. I have been furnished with an elaborate brief by defendant citing numerous cases holding that a notice to quit is not necessary when the tenancy has expired by the term of the letting, but counsel fails to notice the distinction between a notice to quit and the statutory demand for possession which is necessary to give the District Court jurisdiction to dispossess a tenant who is a mere holder over. These proceedings are summary in their nature, and to authorize the District Court to enforce them the statute must be strictly complied with and every required step proven. No such demand was proven and could not be under the affidavit on which this judgment is based. The District Court had no jurisdiction for want of a proper affidavit. The judgment and proceedings will be set aside, with costs.


source: Caselaw Access Project

author: Berger, J.

license: Public Domain

text:
    EMIL WILHEIM, RELATOR, v. CARRIE E. DRAKE, DEFENDANT.
    Decided March 20, 1923.
    Office — Term of Overseer of Poor in Boroughs — Construction of Statutes of 1911 and 1922 Relating Thereto.
    Before a single justice.
    For the relator, John E. Tooland.

    For the defendant, Emil Stremlau.

   The opinion of the court was delivered by

Berger, J.

This is an information in the nature of a quo warranto, to test the right of defendant to oust relator from the office of overseer of the poor of the borough of Carteret.

The facts are all stipulated and show that relator was duly appointed to his office, in which defendant intrudes, on the 1st day of Janua^, 1922, and being duly qualified entered on the duties of the office at once and served during the year 1922; that on January 1st, 1923, the defendant was appointed to the office and at once began the performance of its duties. The only question argued was whether relator’s term of office was for five years, as he claims, or only one year as defendant contends.

In the year 1911 the legislature by a general act made the term of office of overseer of the poor five years. (Pamph. L., p. 392), and on January 1st, 1912, relator was appointed overseer of the poor, which by law was for five years, but in 1913 (Pamph. L., p. 345) the legislature amended the Borough act and provided that an overseer of the poor might be appointed in boroughs to hold office during the pleasure of the municipal governing body, provided that no person should be removed without a hearing, and, unless sooner removed, should hold office for one year and until his successor shall have qualified. January 1st, 1917, relator was appointed to the office-and held without further appointment until January 1st, 1922; he was again appointed under the act of 1921, and, if his contention is correct, his term will not expire until January 1st, 1927, and defendant is a usurper of the office. I am disposed to think that relator was serving under the Borough act of 1913 from January 1st, 1917, until the legislature adopted the act of February 1st, 1921, which re-enacted the act of 1911, and being general in its terms repealed the Borough act of 1913, as was held in Shullise v. O’Neill, 85 N. J. L. 15. But the defendant urges that the statute of 1922 (Pamph. L., p. 248), amending the Borough act, which was practically a re-enactment of the act of 1913, with some additional matter not pertinent to this question, limits the term of overseer of the poor to one year, and this shortens the term of office of the relator to one year.

The answer of the relator is that the act is not retrospective and therefore does not apply to persons in office for a fixed term, but only to one to be thereafter appointed when the term of office of those holding for a fixed term expires. There can be no doubt of the power of the legislature to shorten the term of a statutory office, but it must appear that it intended to do so. There is nothing in' the act of 1922 indicating any such intention, nor that it is retrospective in its application, as it has been held repeatedly in this state; laws are supposed to only act in the future unless the act by its terms, or plain purpose to be drawn from the act, it clearly appears that it was not the intention of the law maker to limit it to future conditions. In other words, it must clearly appear that the legislature intended to deprive an officer of a portion of the term for which he was then holding under a lawful appointment. Spencer v. Middlesex Tax Board, 95 N. J. L. 5. The relator is entitled to judgment.


author: Per Curiam.

text:
    DANIEL GYORFY, PLAINTIFF, v. LOUIS LEVY, DEFENDANT.
    Submitted March 8, 1923
    Decided March 17, 1923.
    Damages — New Trial Limited to the Amount of — Application of Supreme Court Ruie 132, also 130 — Limitation of Powers, of Justices.
    On application for a general rule to show cause.
    Before Justices Kalisch, Black and Katzenbach.
    For the defendant, Freeman Woodbridge.

    For the plaintiff, Jacob S. Karkus.

   Per Curiam.

On February 20th, 1923, a jury at the Middlesex Circuit returned a verdict for the plaintiff in this case1 for $5,029.50. The attorney for the defendant applied to the circuit judge for a rule to show cause. The application was granted but the rule was limited to the question of damages. The rule, as granted, contained the following statement: “The verdict on the question of liability being approved by me, the rule thereon is refused.” The attorney of the defendant now moves to enlarge the rule so as to remove the limitation therein, apparently barring the consideration of the weight of the testimony upon the question of liability when the case is presented to this court. In other words, the defendant’s attorney desires what is known as a general rule. He bases in part his contention upon a recent per curiam opinion of this court, filed February 26th, 1923, in the case of Moorey v. Black, in which this court said: “The rule allowed in this case by the trial judge requires the defendant to show cause why the verdict should not be set aside as to the amount of damages awarded, and a new trial granted,'limited to the question of damages only.

“The learned trial judge was probably influenced by the language of rule 132. Buie 132 applies only to case's when a new trial is ordered because the damages are excessive or inadequate ; it does not apply to the mere allowance of the rule as in this case. The trial judge, even a justice of the Supreme Court, sitting at nisi prius, does not assume to limit the action of the court in dealing with the rule. Our power cannot thus be limited .by any inferior tribunal. Whether it is wise or not, in ease the rule is made absolute, to limit the power of this court to this single phase of the verdict is not important. It is enough to say that the legislature has not conferred the power upon any single judge unless in the infrequent cases where he sits for the court.”

We do not think the court by this language meant, as the defendant’s attorney in this case insists> that the circuit judge to whom the case was referred for trial did not have the power to limit the rule,' but that this court was not necessarily limited in its power in dealing with the rule by the action of the circuit judge. The circuit judge has the same powers in a case referred to him for trial as a Supreme Court justice. In the schedule annexed to “the Practice act of 1912” (Pamph. L., p. 377) it is stated (rule 83) that: “A rule to show cause why a new trial should not be granted may, in the discretion of the court, be special, and then-the question shall be heard and decided on the grounds upon which the rule was allowed.” This has béen embodied in Supreme Court rule 130, which reads: “A rule to show cause why a new trial should not be granted may, in the discretion of the court, be special, and then the question shall be heard and decided on the-grounds upon which the rule was allowed.” This rule, we think, gave to the circuit judge the power to make the rule to show cause special. This would not necessarily deprive this court, however, of its power to broaden the rule, if it desired to do so, either upon application or when the case was presented to the court for final disposition under the rule.

The action in the present case grew out of a collision between the milk wagon of the plaintiff and the defendant’s automobile. They were traveling in opposite directions on the same highway. The plaintiff turned to the left to enter a lane. The defendant’s car struck the rear of plaintiff’s wagon, throwing the plaintiff therefrom and injuring him. The plaintiff insisted that the accident was the result of the defendant’s negligent operation of his ear. The defendant contended that the accident was caused by the plaintiff’s turning his vehicle so suddenly and without warning across the path of the defendant’s car that it was impossible for him to avoid the accident. It is a fact case. The defendant had in his car, including himself, six persons, of whom five testified to the defendant’s version of the accident. The plaintiff’s version depended upon his own testimony. Erom a reading of ■ the testimony we do not think the case presents such unusual features on the question of the defendant’s liability or the weight of the evidence in this regard that we are at this time justified in enlarging the rule. The mere number of witnesses testifying upon one side of a case is no guide for the determination of the weight of the evidence. O’Brien v. State, 63 N. J. L. 49. The credibility of the witnesses is for- the determination of the jury. Clark v. Public Service Electric Co., 86 Id. 144.

The motion to enlarge the rule will be denied, with costs.


author: By Mr. Jess.

text:
    State Board of Taxes and Assessment.
    IN THE MATTER OF THE APPEALS OF THE MAYOR AND ALDERMEN OF JERSEY CITY FOR THE CANCELLATION OF ASSESSMENTS LEVIED FOR THE YEAR 1922 ON PROPERTY IN THE TOWNSHIPS OF HANOVER AND MONTVILLE AND TOWN OF BOONTON, IN THE COUNTY OF MORRIS; THE TOWNSHIP OF LYNDHURST, IN THE COUNTY OF BERGEN; THE TOWNSHIPS OF CALDWELL AND CEDAR GROVE AND THE TOWN OF NUTLEY, IN THE COUNTY OF ESSEX, AND THE TOWNSHIP OF LITTLE FALLS AND THE CITY OF CLIFTON, IN THE COUNTY OF PASSAIC.
    Filed March 20, 1923.
    Taxes and Assessments — Municipal Property Located Outside' the Municipality Devoted to Public Use Taxable Under Act of 1918.
    For the city of Jersey City, Frank J. Reardon.

    For the township of Hanover, Nathaniel C. Toms.

    For the town of Boonton and the township of Montville, Claude Garrison.

    For the township of Lyndhurst, Luther Shafer.

    For the town of Nutley, William P. Hurley.

    For the township of Cedar Grove and township of Caldwell, J. Henry Harrison.

    For the township of Little Falls, Alexander M. McLeod.

    For the city of Clifton, William B. Gouriey.

   By Mr. Jess.

These appeals bring np for review assessments for taxation made by several municipalities in the counties of Morris, Essex, Bergen and Passaic upon property owned by the city of Jersey City. The property consists of lands, buildings and pipe lines used for -the purpose of and in connection with Jersey City’s water supply system.

The assessments are attacked on two grounds. The first is that they are levied against property which is entitled by law to immunity from taxation, and the second, that, if taxable, some of the property has been overvalued. It was agreed at the hearing that the question of exemption should first be decided, and that if the board’s decision should be adverse to the city’s contention, the parties would then be heard on the question of value.

The question of exemption must be determined with reference to the provisions of the General Tax act (Revision of 1918). Pamph. L. 1918, p. 84-7. That act provides in section 202 that “all property, real and personal, within the jurisdiction of this state, not expressly exempted by this act, or excluded from its operation, shall be subject to taxation annually under this act at its true value.” All acts, general and special, inconsistent with its provisions are repealed. The Supreme Court has held that the obvious, effect of similar provisions in the Tax act of 1903 was to repeal all exemptions except those allowed by that act, save only such exemptions as had been granted by irrepealable contracts with the state. Hanover Township v. Camp Meeting Association of Newark Conference, 68 Atl. Rep. 753. Unless,, therefore, the property in question is exempted by the Tax act of 1918, or its supplements or amendments, the city’s petition must be dismissed.

Section 203 of the Tax act, subdivision 2, exempts from taxation “property of the respective counties, school districts, and taxing districts, when located therein and used for public purposes.” The threefold requirement set up by this provision is public ownership, public use and ownership and location in the same taxing district. The requirement as to location was not in the Tax act of 1903, and by writing it into the Eevision of 1918, the legislature manifestly intended to change the law in that respect by making the location of publicly-owned property the basis of classification.

The property here sought to be exempted is not located within the taxing district of Jersey City, and, therefore, is not within the class to which exemption is granted'. That grant is limited to property situated within the taxing district levying the tax.

We are not unmindful of the fact that our Court of Errors and Appeals has held that attempts to classify lands of counties and taxing districts for the purpose of taxation by reference to the location of such lands, is in contravention of the constitution. Essex County Park Commission v. Town of West Orange et al., 73 Atl. Rep. 511. The decision in that case would seem clearly to indicate the invalidity of the limitation attempted to be set up in the provisions of the Tax act by virtue of which "the appellee taxing districts levied the assessments under review. This board, however, must take the law as it finds it, remitting to the proper judicial authority any question as to constitutional infirmity.

We have considered what effect, if any, chapter 276 of the laws of 1922, page 683, has upon the situation presented in these cases. . That statute amends section 203 of the General Tax act, which is the section providing for the exemption of certain property. It makes no change in subdivision 2, before cited, but provides in section 2 as follows: “This aet shall take effect immediately, but this act shall hot be held to repeal or affect any exemption from taxation heretofore granted by any act of the legislature not expressly heretofore repealed/’ It was urged by the appellant that the effect of this enactment ’was to revive chapter 118, laws of 1910, which was a supplement to the Tax act of 1903, and which, provided that the lands of counties, municipalities and public agencies of the state, used for the purpose and for the protection of public water supply, should be subject to taxation in the taxing districts' where situated, without regard to any buildings or other improvements on such lands. As all exemptions not expressly granted by the Tax act of 1918 were repealed by that act, chapter 118, laws of 1910, was impliedly repealed so far as it had the effect of exempting buildings and improvements on lands publicly owned for water supply purposes. We cannot construe the amendatory act of 1922 as evincing a legislative intent to give new: vitality to the 1910 act, especially in view of the fact that in the same statute the legislature was careful to repeat the precise requirements for the exemption of public property set up in the tax revision of 1918.

In any event, the act of 1922, approved March 21st of that year, could have no effect upon the assessments in these cases, which wrere made as of October 1st of the preceding year. Exemptions from taxation must be- as of the date of assessment, namety, October 1stl Jersey City v. Township of Montville, 84 N. J. L. 43.

Two other statutes remain to be considered. One is chapter 289, laws of 1918, and the other chapter 27, laws of 1919. The first of these acts amended the exempting section of the 1903 Tax act. The amendment left unchanged that subdivision of the section dealing with publicly-owned property, which subdivision-did not contain the provision that, to be exempt, such property must be located within the taxing district levying the tax. As this amendatory act was approved on March 6th and took effect immediately, it is suggested that it repealed by implication inconsistent provisions in' the tax revision passed at the same session and approved March 4th, two days earlier. The answer to this argument is that the revision by its terms did not take effect until October 1st, 1918, and that at that date it took the place of the 1903 act, together with all of its amendments.

Chapter 27, laws of 1919 (Pamph. L., p. 57), is a further supplement to the tax revision of 1918, and provides that the property of a taxing district located outside of such district and in the same county and used for the purpose of a public water supply, shall be exempt from taxation, except as to lands so used. This act, it will be noticed, attempts to extend the limit of location essential to exemption from the taxing district to the entire county. It can, however, have no application to the property involved in these appeals, as all of such property is located outside of Hudson county.

The result is that the present state of the law compels us to find that the city of Jersey City is not entitled to the exemption which it seeks, and that the assessments should be affirmed. Unless the appellant wishes to be heard on the question of valuation which has been reserved, judgment will be entered dismissing the appeals.


author: Foster, Vice-Ordinary.

text:
    In the matter of the appeal from the probate of the will of George A. Ohl, deceased.
    [Submitted February 26th, 1923.
    Decided March 12th, 1923.]
    Wills — Probate—Undue Influence.

      Messrs. Stein, Stein & Hannoch, for the appellants.

      Mr. John Trier, for the appellee.
   Foster, Vice-Ordinary.

This appeal is from a decree of the orphans court of the county of Essex, admitting to probate a paper purporting to be the last will and testament of George A. Ohl, deceased.

This appeal, and an action pending in the court of chancery, attacking the validity of certain conveyances, whereby decedent, in April, 1921, changed the title to real estate then held personally by him, into an estate by the entirety, by placing title thereto in himself and wife, have at the request of counsel for all the parties been heard and considered together upon the record made in the orphans court on the hearing of the caveat against the probate of the will, supplemented by the evidence offered in this court on the hearing of this appeal and of the cause pending in the court of chancery.

Prom my consideration of the record thus made, I find that decedent possessed and exercised proper testamentary capacity in the preparation and execution of his will; and that the will is not the product of undue influence exercised over testator by his wife, or any one else. Because of the detailed recital and review of the essential evidence in this cause, contained in the opinion filed by Judge Stickel in admitting the will to probate, I have not deemed it necessary to make a repetition of such recital and review here, particularly in view of the fact that the evidence offered upon the hearing of the appeal was in effect merely cumulative or in rebuttal of evidence offered in the orphans court. And, as I fully concur in the conclusions reached and the judgment announced in the orphans court admitting the will -to probate, I will advise that the- "decree appealed from be affirmed.


text:
    HENRY J. HARRINGTON, PROSECUTOR, v. THE BOROUGH OF CARTERET ET AL., DEFENDANTS.
    Decided April 11, 1923.
    Offices — Removal of — Tenure During Good Behavior — Chief of Police Under Act 1917, p. 319 — Salary not Only Distinguishing Feature of Office.
    On certiorari.

    Argued before a single justice.
    For the prosecutor, John E. Toolan.

    For the borough of Carteret, Emil Slremlau.

    For John J. Donovan, Russell A. Watson.

   The opinion of the court was delivered by

Bergen, J.

The prosecutor was the duly-appointed chief of police of the borough of Carteret and had held that office for some years. He was protected in.his office by the statute entitled “An act concerning municipalities” (Pamph. L. 1917, ¶. 319), section 3 of which declares that the officers employed in any police department shall hold -their respective offices during good behavior, efficiency and residence in the municipality where respectively employed, and shall not be removed from office for any cause other than incapacity, misconduct, non-residence or disobedience of rules and regulations, and not then except on written charges and after notice and hearing.

The prosecutor was removed from his office, ’while he was a resident, without charges, notice or hearing, by the mayor and common council of the borough, which is the action prosecutor assails by this writ. The facts proven are that February 19th, 1923, the common council of Carteret amended an ordinance relating to the police department so that the officers were chief of police, a detective with the rank of sergeant, a roundsman with the rank of lieutenant, and two desk sergeants, the lieutenant being a new office; the mayor then appointed and the council confirmed the defendant Donovan to be chief of police, and the prosecutor as lieutenant. The effect of which was to remove prosecutor from his office without charges being preferred or hearing granted.

The defendant seeks to justify this on the ground that the salary of lieutenant was made the same as prosecutor was being paid as chief of police. But salary alone is not enough to authorize the removal from the office of chief of police. The statute above referred to forbids the removal from office of an officer, except for one of the reasons stated in it. On the theory urged by defendants the chief of police could be demoted to a roundsman if his salary was continued at the same rate, although his powers are decreased and his duties made more menial, and would afford an easy method by which to deprive one of his office contrary to law.

The action of the mayor and common council was clearly taken to remove the prosecutor from his office of chief of police, without warrant of law, and the proceedings to accomplish this, and particularly the appointment of the defendant Donovan to the office of chief of police, must be set aside in order that the obstruction to the performance of his duty as chief of police by the prosecutor be removed, and he permitted to perform without interference his duty as such officer in the office from which it is attempted to unwarrantably remove him.

The prosecutor is entitled to costs.


text:
    FELIX FERENGA v. EMANUEL MOSKOWITZ.
    Decided March 31, 1923.
    Bail — Cash—Application of on Judgment — Proof of Fraudulent Intent — Discharge from Custody.
    For the plaintiff, Freeman Wood-bridge.

    For the defendant, Harry Unger.

   The opinion of the court was delivered by

Bergen, J.

The plaintiff caused defendant to be arrested and held to bail based on an order for bail allowed by a Supreme Court’ commissioner. Instead of giving a bond, with surety, defendant deposited, as the statute permits, cash to the amount of bail fixed by the commissioner, which was paid to the clerk of the court, filed his answer to the complaint, and defended on the merits against plaintiff’s claim, which resulted in a judgment for plaintiff, who then obtained a rule to show cause why the deposit should not be applied towards the judgment so far as it wordd extend. The defendant objects upon the ground that at the trial the judge refused to allow him to contest the question of fraud in the inception of the debt, on which the order to hold to bail was founded, as permitted by section 166 of the Practice act, and that plaintiff’s counsel waived the question of fraud. The difficulty with defendant’s position is that the record before me fails to show any offer of such proof or any ruling by the judge to which exception was taken, and if there was, it could not be reviewed by me on this proceeding. As to the alleged waiver, the record does not show it, beyond proof by a, bystander that he understood it was waived, but the verity of a judgment record cannot be assailed in that way.

The defendant should have offered his proof, obtained a ruling, and if dissatisfied, taken an exception, as was done in Kein v. Katz, 92 N. J. L. 406. This he did not do, but attempted to dispute the record by unsatisfactory evidence. The defendant also holds a rule to show cause why the order to hold to bail should not be set aside and seeks to sustain it by proof that the facts stated in the affidavit on which-the order for bail was made are untrue. This can only be done under section 62 of the Practice act, not later than thirty days after the arrest. That period has long since elapsed and bars defendant from invoking section 62 of the act referred to. Realizing this, defendant rests his claim to a discharge on section 61, and argues that the order to hold to bail should be discharged, after judgment, because the affidavit is entitled in a cause of action not commenced, and relies on Potter v. Cook, 30 N. J. L. J. 206. Without determining whether this holding is good in law when applied to the affidavit laid before the commissioner on which his order was founded, it is sufficient to say it comes too late after general appearance, trial and judgment. Watson v. Noblett, 65 N. J. L. 506, in which the Supreme Court said: “In Logan v. Lawshe, 33 Vroom 567, this court passed, without deciding, the question of the right to challenge the sufficiency of the affidavit on which a capias had been ordered and. issued, where the motion to quash was made after the defendant had appeared .and filed special bail; but it has never been sirpposed that such right exists.”

My opinion is that the sufficiency of the original affidavit, at least as to form, cannot be assailed by a motion to quash after appearance by, and a judgment against, defendant. The next point defendant raises is that the proof of fraudulent inception of the debt does not show such fraud. If this be considered on a motion of this character, after general appearance, it is my opinion that the affidavit justifies the order.

The motion to discharge defendant from custody under the sixty-first section of the Practice act comes too late. Section 62 is not available because of lapse of time, and there is not proper record before me available to defendant under section 166. This leads to a discharge of defendant’s rule to show cause, and the making absolute of plaintiff’s rule, and it is so ordered.


author: Parker, J.

text:
    PATERSON CONTRACTING COMPANY, PROSECUTOR, v. CITY OF HACKENSACK ET AL., DEFENDANTS.
    Decided April 10, 1923.
    Lowest Bidders — Public Contract — Award Refused on Ground of Irresponsibility.
    On certiorari.

    Before Parker, J., sitting alone under the statute.
    For the prosecutor, Randal B. Lewis.

    For the defendants, Wendell J. Wright.

   The opinion of the court was delivered by

Parker, J.

This is a certiorari brought' by an unsuccessful bidder for a public contract against the municipal body which awarded it to another bidder, and such other bidder is made a party defendant. The law required the contract to be let to the lowest responsible bidder, and the plaintiff corporation claims that it fulfilled those conditions and that its bid was wrongfully rejected and the award wrongfully made to the competitor, wherefore it prays to have such award set_ aside. There seems to be no question but that the prosecutor’s bid was the lowest, and the ground on which the award was justified is that the board of commissioners having jurisdiction in the premises concluded that the prosecutor was not responsible in the sense intended by the statute.

This same award was before me a short time ago as between the same parties, and I then held that the award to the competing contractor, G. Di Napoli & Company, was illegal, and would have to be set. aside because it was plain to my mind that on the question of responsibility the prosecutor did not have a fair hearing. The parties accepted this decision and proceeded to hold a formal hearing, with due notice to all concerned, and opportunity to present evidence and appear by counsel, and after that hearing was concluded, the municipal body came to the same decision as before, namely, that the prosecutor was not “responsible,” and again awarded the contract to the competitor. I am now asked under this writ to set aside this second award on the ground that the conclusion of the commissioners was not justified by the evidence.

Notwithstanding the earnest and forceful argument of prosecutor’s counsel, I do not feel justified in so doing. It is true, as counsel says, that the commissioners heard only the evidence presented by the prosecutor as to its responsibility and decided against prosecutor on that evidence alone. It is also true, I suppose, that counsel for the commissioners was prepared with a resolution already drawn for action at the end of the hearing. This latter fact means little or nothing, because all diligent counsel, where action of this kind is to be taken, are likely to prepare themselves with such a paper as they think is likely to represent the result of the action to be taken. So I make nothing of this.

On considering the testimony and other evidence to indicate prosecutor’s responsibility, and the conclusions of the commissioners thereon, it must be confessed that they might well have decided that prosecutor was responsible and awarded the contract to him; but that, after all, their judgment is a judgment to be given upon what they find to be the facts in the particular case in view of the conditions to be met, and I am unwilling to say that they exercised their judgment either corruptly, fraudulently or erroneously in any other way. The contract is a contract of considerable magnitude, requiring a special character of work, and it does not satisfactorily appear that the prosecutor corporation is either experienced in this class of work, or at the time of the award had, or showed itself possessed of, the means to acquire the necessary equipment. It is said that they were able to give a satisfactory bond, but something more is required in these cases than a mere bond, and the financial responsibility of the bidder, as well as its equipment, experience and skill, are all considerations which enter into the determination as to whether the bidder is to be responsible in the sense intended by law.

The question whether, sitting as the Supreme Court, I should now overrule the finding of fact of these commissioners, may be tested by the consideration that, if I should do so, it would involve an immediate application for a mandamus directed to them, and requiring them to award the contract to the prosecutor. Now, a mandamus is never awarded unless the legal right is perfectly clear, and I am free to say that I should have a great deal of hesitancy in undertaking to direct thesé commissioners to make such an award as that on the facts that would be before me in the mandamus case, which would be the same as in the present case.

I do not feel justified, therefore, in overruling the action of the commissioners under this writ and it will accordingly have to be dismissed. ' “


text:
    ARMAND MENAQUALE, PLAINTIFF-RESPONDENT, v. ANTONIA DI PAOLO, DEFENDANT-APPELLANT.
    Submitted December 8, 1922
    Decided March, 5, 1923.
    Contracts — For Erection of Building — Modification of Agreement — Jury Questions — Excessive Damages.
    On defendant’s rule to show cause why a verdict in favor of the plaintiff should not .be. set aside.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, Albert S. Woodruff.

    Contra, John H. Switzer and Howard L. Miller.

   Per Curiam.

This is defendant’s rule to show cause why plaintiff’s verdict for $5,000 should not be set aside.

The plaintiff and the defendant entered into a contract whereby the plaintiff was to build a building for the defendant. As that contract originally stood, the defendant reserved to himself certain tile work, and in the contract the plaintiff had to do the heating work. Subsequently, and before the contract-was actually signed, it was modified, whereby the plaintiff undertook to do the tile work, and the defendant took over the heating work.

This action is to recover two elements of compensation- — ■ the first is for extras over and above the contract; the other to recover upon a special contract said to have been made after the contract was signed, based upon what plaintiff claims was a misrepresentation by the defendant as to the cost of this tile work, and an agreement between them at that time that he should go ahead and that the defendant would pay the difference. And as to this special contract the plaintiff’s claim was this: It seems that when this change was made, the plaintiff claims that the defendant had before him an estimate of the Philadelphia Tile Company, and that he told the plaintiff — this is the plaintiff’s story — that he had this estimate, and it was $802, and then that he showed him figures indicating $802, and that, he says, was all he saw; that on the strength of that he took the contract, and he proceeded to get his tile, and when he went to the tile people, they told him that $2,488 was the price that they had estimated: that he then went back to the defendant and told him of the very marked difference -in the price of the estimate and the figure which he claimed the defendant had given him as the amount of the estimate, and that the defendant then, recognizing that he had misled the plaintiff, agreed to abandon that part so far as the obligation went, and agreed that he would pay the difference. Now, that is denied absolutely by the defendant.

We have no doubt, however, that under the evidence there was a fair jury question presented respecting plaintiff’s right to recover upon this so-called special contract, but the recovery on this phase of the case was necessarily limited by the proofs to a sum not exceeding $1,759.

It remains to consider the claim for extras. Without going into the evidence or figures in detail,'it is sufficient to say that upon no reasonable view of the evidence can a verdict for extras be sustained for more than $1,330.75.

Since upon no reasonable view of the evidence could a verdict in excess of $3,089.75 be reached, it follows that the verdict of $5,000 is without evidence to justify it and is excessive.

The rule will be made absolute.


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    JOHN FUREY, PETITIONER-RESPONDENT, v. THOMPSON-STARRETT COMPANY, DEFENDANT-PROSECUTOR.
    Decided April 7, 1923.
    Workmen’s Compensation — Liability for Injury Where Employe of General Contractor was Injured While in Employ of Subcontractor.
    On certiorari to the Atlantic County Court of Common Pleas.
    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Howard L. Miller.

    For the respondent, Katzenbach & Hunt.

   Per Curiam.

There was an award of compensation made, by Charles N. Corbin, a referee of the Workmen’s Compensation Bureau, under the Workmen’s Compensation act in favor of the petitioner-respondent, and upon appeal by the defendant-prosecutor to the Atlantic County Court of Common Pleas, the award made was there affirmed. The legal propriety of the award is now before us on writ of certiorari. '

The referee and the Common Pleas Court both found that at the time of the petitioner’s injury he was in the employ of the prosecutor and that the accident arose out of and in the course of the former’s employment. If there is any testimony which tends to sustain these findings, the award should not be. disturbed. That the petitioner was injured in an accident arising out of and in the course of his employment was and is not disputed. The disputed question, which is one of mixed law and fact, is, in whose employ was the petitioner at the time of his injury ?

The prosecutor, Thompson-Starrett Company, was the general contractor who was engaged in constructing the annex to the Ambassador Hotel in Atlantic City. James Eerry & Sons were subcontractors to do the concrete work on the building. The petitioner- on February 1st, 1920, was in the employ of the prosecutor, as a structural iron worker. On-the night of the accident Mr. Ferry, the president of James Ferry & Sons, asked the superintendent of the prosecutor to let him have the company’s derrick and men to operate. It further appears after the petitioner had finished his work for the day for the prosecutor, the petitioner was directed by the prosecutor’s foreman to assist in the concrete work which was being done by the subcontractor, • and while the petitioner was performing such work he met with his injury which was caused by the falling of two planks, across which he was necessarily walking in the discharge of his duties. The accident happened at six forty-five p. m. after his usual working hours which appear to have been four-thirty.

The contention of counsel of the prosecutor is that the petitioner at the time of the accident was not in the employ of the prosecutor, and in support of this contention argues, that the petitioner had ceased his day’s labors -with the prosecutor at five p. m. ; that he was under the control and direction of Ferry & Sons or their agents at the time of the accident; that he was doing concrete work which is afield from his services for the prosecutor; that he was not under the control of the prosecutor, after five p. M., the union hours for ceasing labor and was not its to be loaned; that he knew Ferry & Sons had the concrete work and had been employed by them before, and that the lure of additional compensation was the magnet that continued his labor into the night.

We think the facts of this case fall within the decision of this court in Rongo v. Waddington, 87 N. J. L. 395, which case is controlling upon us.

Here, the prosecutor consented that the petitioner do the extra work, the effect of which was to enlarge the petitioner’s scope of employment. No relation of master and servant could have arisen between Perry & Sons and the petitioner under the Workmen's Compensation act since the work to be performed was only casual. No such relation could have arisen under the common law, because it was not the intention of either party that such relation - should be created. If an injury had happened to a third person through the negligence of the petitioner, an entirely different question would be presented in an action at law by the injured party.

Judgment is affirmed, with costs.


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    LEO W. NEWELL AND PAUL NEWELL, PLAINTIFFS-RESPONDENTS, v. AETNA INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Decided April 7, 1923.
    Insurance — Misrepresentation in Description of Property — Automobile Described as a Model 1917 When in Fact it was a Model of 1912 — Right to 'Recovery Defeated.
    On appeal from the Hudson Circuit.
    Before Justices Kalisoh, Black and Katenzbach.
    For the appellant, William Huck, Jr.

    For the respondent, Alexander Simpson.

   Per Curiam.

This is an appeal from a judgment entered in the Hudson Circuit in favor of the plaintiffs in an action brought by the plaintiffs against the defendant to recover the sum of $1,600 on an insurance policy issued .by the defendant company to the plaintiffs on their automobile truck which was destroyed by fire. The defendant had a rule to show cause why a new trial should not be granted, reserving exceptions taken to the refusal of the court to grant a motion for a nonsuit and a motion to direct a verdict for defendant. The rule to show cause was discharged.

The plaintiffs’ truck was insured by the defendant company on June 28th, 1921. On July 27th, the truck was destroyed by fire. The policy had, printed on it, under the caption, “Warranties” the following:

1. Assured’s occupation or business is ................

2. The following is the description of tiie automobile:

The appellant’s single contention is that the answer, of the assured, under 2 requiring a description of the automobile, that the Model Year, of the automobile was 1917, whereas the undisputed fact is that it was manufactured in and was a model of 1912, was a breach of warranty as to its description, and was a misrepresentation of a material fact, thereby-defeating plaintiffs’ right to any recovery. ,

In Flakes v. Aetna Insurance Co., 119 Atl. Rep. 277, it was held by this court that a statement in a policy of insurance on an automobile against theft that automobile was a model of 1916, whereas it was a model of 1913, was a breach of warranty as to its description, within the express terms of the policy, and was of such a material nature as to defeat a recovery on the policy. The principle enunciated in that case is controlling upon us here.

Judgment is reversed.


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    THE STATE, PLAINTIFF IN ERROR, v. ALEXANDER WERNER, DEFENDANT IN ERROR.
    Decided April 7, 1923.
    Receiving Stolen Goods — Alleged Error in Charge to Jury and in Admission of Testimony.
    On error to Passaic County Quarter Sessions.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff in error, Abram Klenert (Weinberger & Weinberger of counsel).
    For the state, J. Willard De Yoe, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was convicted in the Passaic County Quarter Sessions Court on four indictments for receiving stolen goods on October 5th, November 7th, December 6th and December 18th, 1921. The cases were tried together and a writ of error was sued out in each case to bring the judgments here for review. The cases were argued together in this court.

The first point argued in the brief is that the court erred in its charge in stating to the jury, “There is a dispute as to whether the defendant received these goods that is charged in these cases, in these indictments, knowing them to have been stolen.”

The trial judge charged the jury at the outset of his charge, as follows: “In order to convict the defendant on these indictments or any of them, there are three necessary ingredients which must be proven. The first is that the goods were stolen. The second is that the defendant in all, is one or more or less of these indictments received the goods [as in original], and the third is that the defendant knew the goods had been stolen at the time he received them.”

Immediately preceding the portion of the charge excepted to, the court charged: “You have-heard the proof here. You have heard the testimony of the witness Hagens as to how he stole the goods. There does not seem much dispute about the fact that he did steal goods on these premises.”

The argument advanced by counsel of plaintiff in error is that the excerpt from the charge excepted to and assigned as error was harmful and prejudicial to the defendant below, in that, “It could not help but convey the impression to the jury that the goods mentioned in the indictment had been stolen, that the defendant had received the goods, and that the only controverted question of fact or dispute whether the defendant received the goods knowing them to be stolen,” and especially because the court further instructed the jury, that that was the point in the case to be decided upon.

But a reference to the assignments of error and specification of causes for reversal shows that the language of the instruction relied on as error is this: “There is a dispute as -to whether the defendant received these goods that is charged in these indictments knowing them to be stolen.” No other portion of the charge is assigned as error or specified as cause for reversal.

What the court said was accurate. There was a dispute, according to the record, as to whether the defendant received any of the alleged stolen goods. There was proof on part of the state tending to show that the defendant did receive some of the stolen goods. He denied receiving any of them. The indictment charged the defendant with receiving the stolen goods knowing them to have been stolen. We are unable to perceive any inaccuracy or error in that portion of the charge excepted to.-

The only other assignment of error argued in the brief is, “That the court committed reversible error in allowing state’s witness, William O. Yoorhies, to testify, over objection of counsel, as to the amount of sills: he found missing and as to its value.”

In the brief of counsel of plaintiff in error it is stated that this contention takes up assignments two and three and reasons for reversal likewise.

Turning to the record we find the question, “What did you find then?” objected to and an exception taken. The assignment of error is based upon the exception. But it appears from the record that the question was not answered and seems to have been abandoned by the state’s counsel, and immediately following he put this question: “What did you find missing?” No objection was made to this question.

The only other question objected to1 and to which an exception was taken and upon which exception an assignment of error is based, was this: “Q. What would be the value of the silk in your establishment?” No ground was stated on which the objection was founded. Preceding the putting of the question objected to, the witness testified to the quantity of silk which he found missing, some eighty-nine pieces. The question sought the value of the amount of silk found missing. The goods were stolen by Hagens who was an employe of the B. Edmund David Mill and of which the witness was the manager. Hagens confessed the thefts and claimed.that he disposed of some of the stolen goods to the defendant. There must be proof of value in order to establish the offense. The testimony of the value of the goods missing was competent as it was connected up with Hagen’s confession of the quantity of goods stolen by him. The value of the goods had a bearing on the questiop of knowledge of the person alleged to have received stolen goods, as for instance, if the goods were offered for sale and bought, for a ridiculously low price, that fact would be an element for a jury to consider on the question whether or not the defendant ha"d knowledge that the goods were stolen.

The argument of counsel of plaintiff in error that the testimony was highly prejudicial to the defendant in that it placed before the jury $6,900 worth of silk was missing, is without any legal force since the mere fact that testimony is prejudicial is no legal ground for reversing a judgment, unless it also appeared that such testimony wás erroneously admitted.

Judgment is affirmed.


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    JULIUS GROSS, PLAINTIFF, v. AGOSTINO A. STRAZZA ET AL., DEFENDANTS.
    Decided April 19, 1923.
    Lease of Property — Terms of Breach — Measure of Liability.
    Before Justices Parker and Berger.
    For the plaintiff, Thomas Brunetto.

    For the defendants, Emil Klein.

   Per Curiam.

The defendants have a judgment on a counter-claim, from which plaintiff appeals.

The defendants, father and son, were the owners of a building which plaintiff desired to lease, and, after some negotiations ivith the father and son, he paid to the father $100, Avhieh he claims was a loan, and as no lease, as plaintiff claims, was ever made, the latter sued the father to recover the loan, and defendants filed a counter-claim for loss of rent because, as they allege, plaintiff refused to execute a lease.

When plaintiff paid the $100 the father gave him a receipt reading: “In consideration of one hundred dollars paid on deposit for rent to a large store and apartment on Grlenridge avenue and Bay street, we do hereby promise and guarantee that the said store and apartment shall be ready and completed for occupancy on the first day of September next. The terms of lease to he drawn as follows: Eighty dollars ($80) for the first three years of a five-year lease, with five dollars ($5) increase for the' last two years of said lease. The lessee shall have an option for two more years, 'terms of said renewal lease to be agreed upon by the parties.” After this the parties disagreed as to the terms of the lease, the defendant preparing, signing and tendering a written lease which plaintiff refused to sign, and which, admittedly, contained provisions not contained in the receipt given for the payment, in which certain terms are recited. Manifestly, the receipt was only an agreement to make a lease according to its terms, and when defendant tendered a lease which contained terms beyond those set out, he was asking plaintiff to execute a lease which embodied terms not agreed on by the parties, if the receipt be taken to be a binding agreement.

The first point appellant makes is that a jury should not have been empaneled because the demand was not made in time, and that it did not appear that the demand was made on the day of trial. There was a demand for a jury made in ample time, and it is not required that a new one must 'be filed to meet an adjourned day. There is nothing in this.

The next point is refusal to direct for the plaintiff. Manifestly, the court could not do this on plaintiff’s testimony that the $100 was a loan, because there was contradictory evidence on this point, and the written receipt was to the contrary. Another point is that the premises were not completed by the 1st of September, but that was a jury question, the evidence on this point being in dispute.

Another point by appellant is that the court charge the jury that if plaintiff failed to comply with his agreement to make a lease defendants were entitled, on their set-off, to the rent which would have accrued if made. This was error under Cooper v. Aiello, 93 N. J. L. 336. The measure is the difference between the rent fixed by the agreement and the rental value of the premises, for all the landlord can lose is the difference between the rental value and the amount the landlord was able to realize on the property after the breach of the agreement.

Eor this error there should be a reversal. Many other points are raised by appellant but they have no legal standing. The judgment will be reversed.


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    HEIDRITTER LUMBER COMPANY, PLAINTIFF-APPELLANT, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Decided April 19, 1923.
    Common Carriers — Measure of Loss to Shipper.
    Before Justices Parker and Bergen.
    For the plaintiff, Rusinow & Parvin.

    For the defendant, De Voe Tomlinson.

   Per Curiam.

The plaintiff delivered a carload of coal to the defendant at Nottingham, Pennsylvania, to be forwarded to the defendant at Elizabethport, New Jersey, and when it was delivered to the plaintiff it was found five and four hundredths gross tons of coal were missing, and the plaintiff brought this suit to recover the value of the shortage. The District Court gave a judgment for the plaintiff for the market value of the coal at point of shipment, as well as the freight and war taxes. From this the plaintiff has appealed and the question presented is whether the plaintiff was entitled to the value of the coal at destination rather than at the point of shipment, which was higher than at the point of shipment. It is not denied that the retail price of coai at Elizabethport was higher than at the point of shipment, and the real question at issue is whether the plaintiff was entitled to recover the retail value at destination 'rather than the wholesale value at the point of shipment. In Blessing v. Central Railroad Co. of New Jersey, 91 N. J. L. 398, the Supreme Court laid down this rule, “At the common law the measure of damages in the case of a total loss1 of shipment was, first, the value of the goods at the time and place of destination, and secondly, • any incidental damages which were the natural and proximate result oí the breach of the contract of carriage.” If this rule be applied then the plaintiff in the present suit was entitled to recover the value of the goods at the place of destination, and any Incidental damages resulting from the breach of contract of carriage. In Chi., M. & St. P. Ry. Co. v. McCaull-Dinsmore Co., 171 C. C. A. 561, which was a suit to recover the difference between the value at point of shipment and destination on a shipment of grain, in which the plaintiff recovered, the defendant claiming that by the contract of shipment the damages should be computed on the 'basis of the value of the property at the place and time of shipment. To which the court said, “We deem such contention unsound. There was no uncertainty as to the time or place of estimating value under the rule of common law — it Was the destination. The evident purpose of the provision in the bill of lading was not to introduce certainty but to avoid the. rule existing at law for the obvious object of escaping the higher valuation which would often arise at destination. Such a provision is unquestionably a limitation since it forbids application of the established rule,” and held that notwithstanding the bill of lading the plaintiff was entitled to recover the value at destination. The case last mentioned was affirmed by the Supreme Court of the United States under the same title (253 U. S. 97), in which Mr. Justice Holmes said, “the rule of the common law is not a fiat but an embodiment of the plain fact that the actual loss caused by the breach of contract is the loss of what, the contractee would have had if the contract had been performed.” We think the cases cited establishes the rule that the measure of damages in such cases is to be assessed as of the value of the cargo at destination. The defendant argues, however, that as the entire quantity was purchased at wholesale, and there being no wholesale market at Elizabethport the value must be the wholesale price at the point of shipment, and cites some ■cases which seem to hold with the defendant. But that is not the rule either in this state, nor that enforced hy the Supreme Court 'of the United States. To have supplied this lost coal at Elizabethport would have cost the plaintiff more than the wholesale price >it the mines, or point of shipment. The plaintiff was entitled to replace the coal at its value at destination because the quantity that was lost could not be bought at wholesale rates anywhere. Our conclusion is that the trial court applied an erroneous measure of damages and for that reason the judgment wil-1 be reversed.


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    HARRY KRICH, PLAINTIFF, v. MEYER ZEMAL ET AL., DEFENDANTS.
    Decided April 19, 1923.
    Trespass — Rights in Building Wall — Contract to Use Wall to Rest Beams of Another Building — Foreclosure of Mortgage on Building.
    Before Justices Parker and Bergen.
    For the plaintiff, Herbert J. Hannoch.

    For the defendants, Benjamin M. Weinberg.

   Per Curiam.

In 1912 Walter H. Meier was the owner of' No. 306 Market street, Newark, New Jersey, and S. B: and W. A. Baker, of 304, same street, and Meier contracted with the Bakers to put up a building for his use on 306. Meier, in writing, agreed with the Bakers that they might rest the roof beams of the building on 306 on the adjoining wall of the building standing on 304, and this wras done. The agreement, which was recorded, provided that these beams should rest there as long as the building put up on 306 should stand. The building "was put up and ioof beams inserted in the wall of the buildings standing on 304. - At the time this was done there was a„ mortgage on No. 304, which was subsequently foreclosed and the owners of No. 306 made parties and their rights foreclosed. The property was sold under foreclosure and purchased by the plaintiff who brought a suit in trespass, based on the projecting beams in the west wall of -304, and has a judgment for six cents, from which defendants appeal. The grounds of appeal beingi that defendants were entitled to a nonsuit, or direction of a verdict in their favor, the defendants being successor in title of the Bakers to lot 306. It would seem from these facts that defendants were using a part of plaintiff’s wall to support their roof beams without title, or color of title and trespassed to the extent of the encroachment. But defendants claim that by virtue of the foreclosure sale the plaintiff became the owner of so much of defendant’s building as is included in the wall, that is the ends of the beams, and that as defendants have now no ownership in the ends of the beams imbedded in plaintiff’s wall they are not trespassers. The evidence shows that in addition to the inserted beams of the roof, the building of defendant encroaches on plaintiff’s land an inch and three-eighths in the front and one inch in the rear. This is enough to support the action of trespass, and the only answer to it by defendants is that the action was only brought to recover damages because the building of defendants leans against that of plaintiff. An examination of the complaint shows that the encroachment of the building is one of the grounds of complaint, as well as the insertion of the roof beams into the wall. What relief defendants may have in equity is not to be considered, in an. action at law, for a plain occupation of plaintiff’s land against his protest.

The defendants also argue that the foreclosure transferred the title to the ends of the beams to the purchaser. But apart from the encroachment of about one inch as above set out, the right given to the Bakers was strictly an easement which was cut off by the foreclosure, and the use of the wall for support, which still continues, is a clear tresspass. The Bakers had no interest in Meier’s land except the right to put the beams on the wall, which right was cut off by foreclosure of the mortgage .and the beams remaining constitutes a trespass.

There was evidence to support the findings of fact and the judgment should be affirmed, with costs.


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    VIOLET M. ROBINSON ET AL., PLAINTIFFS, v. JOHN BARTON PAYNE, DIRECTOR GENERAL OF RAILROADS, DEFENDANT.
    Decided April 19, 1923.
    Negligence — Arrest of Judgment — New Trial Limited to Damages Only.
    Before Justices Parker and Bergen.
    For the plaintiffs, Jacob L. Newman and Lionel P. Kristeller.

    For the defendant, Frederic B. Scott.

   Per Curiam.

This suit was instituted August 2d, 1920, to recover damages suffered by plaintiff through the alleged negligence of the Delaware, Lackawanna and Western Bailroad Company. The plaintiff has a judgment and the motion now made is to arrest the judgment, -which must be considered on the record, containing only the pleadings, an order making absolute a rule to show cause, held by defendant, as to damages onto, a postea setting out the result of the new trial, and the judgment.

The only.point necessary to be considered is the objection that the new trial was limited to damages only. It appears in the record that the new trial was so limited, but it does not appear that any effort was made by the defendant to try any other question, nor the offer of evidence, which was refused. The error complained of is that the court refused to make defendant’s rule absolute to the extent desired, but defendant accepted the rule and went to trial. We think the question cannot be raised in this way. In other words, defendant cannot speculate on the result of a new trial and if dissatisfied complain of the rule he obtained. He should have offered the proof he desired .and obtained a ruling thereon, and, if adverse, taken an exception.

, Another point made by defendant in its brief, is, that John Barton Payne, as Director General of Railroads, was not a proper defendant, because he had been succeeded in office by another person. The cases cited by defendant’s counsel seemed to sustain that contention, but subsequently it came to the notice of defendant’s counsel that a statute had been passed by the congress of the United States which removed this trouble, and to which defendant’s counsel courteously called our attention by supplemental brief. The act was of such recent date, March 3d, 1923, that except for the kindness of counsel it might have escaped our attention.

The motion in arrest of judgment will be denied, with costs.


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    The Surprise Store, complainant, v. Julis Mintz, defendant.
    Decided May 1, 1923.
    Trade Names — Property Right in — What Constitutes Improper use of.
    On bill for injunction.
    Before his honor, James E. Fielder, vice-chancellor, at Jersey City chancery chambers, April 30th and May 1st, 1933.

      Mr. Joseph Autenreith, for the complainant.

      Mr. Edward Hollander, for the defendant.
   The court (orally at close of argument) — The sole ground’ on which complainant claims to be entitled to relief is that it has’ the exclusive right to use the word “Surprise” as a trade name in connection with its stores which, are located in New York City, for the sale of men’s and boys’ furnishings and that no one else, including defendant, may use that name in connection with a store located so far away from New York as Passaic, in which the same class of goods is sold. It is not shown that when the defendant adopted the same word, several years ago, as a trade natoie for his store, he knew of complainant’^ stores,or of complainant’s use of that word, nor is it shown that defendant adopted it because of its resemblance to complainant’s trade name, with the fraudulent intent of deceiving the public into believing that 'his place of business was connected with complainant's. There is no simulation or imitation of the appearance of complainant’s stores, or of the signs or advertisements used by complainants, calculated to lead the public into thinking that defendant’s store is operated by complainant, or to mislead them into patronizing defendant’s store in the mistaken belief that it was one of the complainant’s stores they were patronizing; nor is this the case of imitation of complainant’s goods. Complainant is entitled to protection against unfair competition by defendant and against defendant passing off his goods? or his business, as complainant’s. In the absence of fraud on the part of the defendant, the test is whether the public doing business with defendant is deceived by the use of the word “Suprise,” into believing that it is doing business with complainant and whether complainant is damaged or likely to be damaged thereby. This is not a ease of operating a store in the immediate neighborhood of the place where the complainant has previously established its place of business and built up a trade reputation, but it is a case of operating a store in another state, at a place fifteen miles or more distant. from. complainant’s stores and at a place from which complainant’s stores can be reached only by railroad, or a long trolley trip, continued by transfer to tube trains or ferryboats and in a comparatively small factory and rural community as distinguished from a metropolitan district.

The question I must consider is whether complainant has the exclusive right to the use of the word “Suprise^’ in every community in which it maintains no store, but to which knowledge of the existence of its stores might be carried in any way and especially by New York newspapers in which it advertises, through the circulation of those newspapers in surburban communities even to a small extent.

The fact that complainant advertises its goods one day a week in New York newspapers having a daily circulation of perhaps three thousand in a territory served by defendant’s store, which, has a population of probably one hundred thousand, does not convince me that complainant’s business has become- so well known in-the community now under consideration, that the use' by defendant of the word “Surprise” affects the business which complainant might do with that part of the public which reads those newspapers and which deals with defendant, or that defendant is selling goods to that public on complainant’s reputation. If complainant’s advertisements are read by the people of Passaic and neighboring towns, they are informed thereby that complainant’s stores are located in New: York City and not in Passaic.

I am unable to believe that the defendant is a, competitor of coimplainant. The parties do not deal with the same purchasing public. Surely no part of the New York City public comes to Passaic to buy from defendant, upon the belief that they are dealing with complainant and complainant has not convinced me that any part of the Passaic public would go to New York to buy from complainant, were it not for defendant’s store. It does not appear that the corporate name of complainant has become associated in the minds of the people of Passaic and its environs-, to such an extent that they believe that defendant’s store is connected with complainant’s and that when they deal with defendant they are buying complainant’s goods. The greater part of the; merchandise in which defendant deals is* not of the kind sold by complainant and the same line of goods in which both deal can be purchased at many men’s furnishing stores. Defendant’s trade is with a class of people who buy usually on Saturday nights after receiving their weekly wages and who do not travel to New York at such time, to buy goods which can readily be purchased at home, because the items of expense1 — time and money — are considerations with, them.

It is my opinion that the complainant’s right to the use of the word “Surprise” as a trade mark does not extend so far into this state as Passaic and I do not believe that by the use of such word in connection with defendant’s store, the defendant is placing before the people of his section of the state, a familiar name associated solely with complainant’s stores and I cannot say that the continued use by the defendant of the word in the way in which he has used it in the past, will result in probable injury to the complainant. Therefore, I shall advise a decree dismissing the bill of complaint.


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    In re will of Theodore A. Stephenson, deceased.
    [Submitted March 31st, 1923.
    Decided April 19th, 1923.]
    Wills — Probate of Testamentary Capacity — Execution in Conformance to Statute — Undue influence.

      Mr. Spaulding Frazer, for the appellant.

      Messrs. Durand, Ivins & Carton and Mr. J. Henry Esser (of the New York bar), for the respondents.
   Foster, Vice-Ordinary.

This is an appeal from an order of the orphans court of Monmouth county dismissing an appeal from an order of the surrogate of that county, admitting to probate a paper purporting to be the last will and testament of Theodore A Stephenson, deceased.

Mr. Stephenson, a resident of Spring Lake, died: May 22d, 1919, over seventy-two years old, leaving him surviving his widow, now past seventy-six years of age, an unmarried daughter, about forty-four years old, and a son, the appellant.

The will was executed on December 2d, 1918, and by its provisions, testator created a- life estafé for his widow,, including the use of the principal, if necessary, and on her death, he gave the entire estate, estimated to be worth $15,000, with the exception of a gold watch, given to his son,» to his daughter Bertha; and in explanation of this disposition of his estate,- testator in the will states, “I have purposely omitted any bequest or devise to my son * * * kno-wing not only that he has had large sums of money both from his mother and from me, but because I am confident that my daughter Bertha, his sister, will do all that she justly can in his behalf.”

In the orphans court probate was resisted on the grounds (1) of lack of testamentary capacity; (2) that the will was not executed in conformity to the statutory requirements, and (3) that it was executed as the result of undue influence exercised over testator by his daughter.

The first and second of these grounds have apparently been abandoned, as ho direct reference to or contention respecting either of them is made in the brief filed on behalf of the appellant, and if they have not been abandoned, as I have assumed, then they should be, for there is nothing of substance in the record to support cither of them.

The remaining objection, viz., the undue influence charged to have been exercised over testator by his daughter, is sought to be established by the following circumstances:

That testator for some time prior to his death had been suffering from somie Iridney or bladder ailment which gradually impaired his health and made him physically and mentally incompetent to understand the nature and effect of his act when he made his will; that his daughter, in the last year of his life and possibly for a longer period, attended to most, if not all, of his business affairs and dominated the home; that testator at the time of making his will had the erroneous impression that he and his wife had advanced large sums of money to the son and had assumed large financial liabilities as endorsers on the son’s promissory notes; that the daughter during the war was aggressively pro-German, while testator and his wife and son were ardent Americans; that the daughter became very angry when she learned her brother had enlisted in the American Army in July, 1918, and had sailed for Europe in October, 1918, about a month before the Armistice was declared; that in her anger and for her own purposes she took advantage of her brother’s absence in Europe to have this will hurriedly executed on December 2d, 1918, in order that testator’s estate would be assured to her if anything happened to her father before her brother returned to this country; and that with same purposes in view she had her mother, about the same time, convey to her what real estate and leasehold interest stood in the mother’s name.

These are the principal- features stressed by appellant to support his contention of undue influence, and while it is true that Dr. Trout, who treated testator when he called at the physician’s office on one occasion, about a month before he died, stated that in Ms opinion testator was then incompetent to make a will -or to understand any business transaction, and that he had been in this condition for more than a year, the fact, clearly and convincingly established by the scrivener who drew the. will, some months'before, and by the attesting witnesses to the will, and by the testimony of other witnesses, who then and both before and after this visit to Dr. Trout saw and talked with testator, is that, he was fully capable and competent to understand what he was doing in any and all matters; and the proofs further show that testator’s sole anxiety in the preparation and execution of the will was to make all the provision he could for his widow from his small estate, by giving her both.the income and principal, if necessary, for her support, and to protect her, should she continue her improvident conduct of making and endorsing notes in blank for the son; and the proofs also show that because of the son’s neglect and incompetency, the advanced age of the parents and the financial transactions in wMch .the assistance they had given the son had involved them, made it necessary for .the daughter to assume the management of their household as well as of most of their financial and business affairs.

The daughter apparently was pro-German, or at least she did not appear to approve of this country taking part in the war, and she objected to her father’s espousal of the allies’ cause, and assuming that she severely denounced, as claimed, the conduct of her brother in enlisting, I am at a loss to understand, in view of testator’s pronounced. and outspoken Americanism, how she could have influenced him at this particular time when they -were at serious odds over the War, to make the will in question if testator had no other satisfactory reason for doing sc.

The record further shows that testator was not laboring under any misapprehension of the facts when he recited in his will that one reason for1 making no provision therein for his son was because the son “has had large sums' of money both from his mother and from me,” for it appears that from young manhood the son had been assisted financially by both parents, and to such extent that both parents and their properties became involved in litigation over indebtedness they had assumed for him. About the time the son enlisted, litigation affecting him and one or both parents to the extent of $22,000 was then pending in the courts of New York, of the details of which he was the only (member of the family who had complete knowledge, and without attending to this litigation, and without notice or farewell to either parent, the son enlisted in the Army and left the burden of this litigation upon his aged parents, who were then obliged to rely upon the daughter to help them effect a settlement of the same.

From my consideration of the record I am convinced it was this conduct on the part of the son, coupled with testator’s desire to provide for and to protect his widow that produced the will in question, for testator about the time the will was made' was worried and justly incensed at what he regarded as his son’s desertion of him, at a critical stage of the family’s financial affairs; — a desertion that was both uncalled for and unnecessary on the part of this son, who had a Wife and parents, who were in some degree, at least, dependent upon him, and a desertion that threw upon the parents the burden of defending this important litigation, arising solely out of the son’s transactions, and with the details of which both parents were unfamiliar.

Comment could be extended on many other features of this record, but enough has been recited to show that testator was competent to make this will, that he executed it in due form and that it is not tire product of undue influence exercised over testator by his daughter or by anyone, and I will advise that the order of the orphans court dismissing the appeal be affirmed.


author: INGERSOLL, Vice-Ordinary.

text:
    In the matter of the appeal from the decree of the orphans court of the county of Camden admitting to probate a certain paper writing purporting to be the last will and testament of Thompson A. McClure, deceased.
    [Submitted March 5th, 1923.
    Decided April 16th, 1923.]
    Wills — Evidence Justifies Probate of.
    On petition of appeal.

      Mr. Arnold J. Beckenbach and Mr. Herbert A. Drake, for the proponents.

      Mr. Thomas B. Hall, for the caveator.
   INGERSOLL, Vice-Ordinary.

In addition to the testimony taken in the orphans court, a great volume of evidence has been taken before me.

The proctors of the proponents and of the caveators have been indefatigable in their arguments and in their presentation of the law.

After consideration of the evidence and of the law, I am convinced that the finding of the orphans court was "correct, and that the will of the said Thompson A. McClure should be admitted to probate, for the reasons stated in the opinion delivered in the orphans court.


text:
    MICHAEL A. VIRACOLA, PROSECUTOR, v. COMMISSIONERS OF THE CITY OF LONG BRANCH, BOARD OF HEALTH AND NORMAN S. TICE, RESPONDENTS.
    Argued April 26, 1923
    Decided May 3, 1923.
    Municipal Contracts — Under Act of 1917 — Ordinance' Relating to Removal of Ashes — Budget Provisions — Filing Trade Name — Liability for Failure — Contracts not Affected Thereby.
    On application for writ of certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, William L. Edwards and Leo J. Warwick.

    For the city of Long Branch, Thomas P. Fay.

    For Norman S. Tice, Reilly, Quinn & Parsons.

   Per Curiam.

This is an application for a writ of certiorari to review the award of a contract for the disposal of garbage and ashes made by the board of commissioners of the city of Long Branch to Norman S. Tice, trading as Norman S. Tice & Company. The-contract is for a period of five years. The payment for the first j^ear is $21,000. Thereafter there is an annual increase of $500.

The prosecutor contends, first, that under an amendment of article 11 of the Home Buie act of 1917, known as chapter 163 of the laws of 1918 (Pamph. L., ¶. 178), the'board of commissioners of Long Branch were without authority to make this contract, because prior to the making thereof the board of commissioners had not passed an ordinance authorizing an appropriation sufficient to meet the costs of carrying out the provisions of such contract. It is conceded by the prosecutor that the board of commissioners had power to make a five-year contract, provided the ordinance was passed.' The 1918 amendment, so far as pertinent, reads as follows:

“No municipality shall enter into any contract whatsoever, the cost of which is to be met by funds other than those included in the budget of appropriations for the year, unless prior thereto there shall have been regularly adopted by the governing body of such municipality an ordinance authorizing an appropriation sufficient to meet the cost of carrying out the provisions of such contract; provided, this section shall not affect the use of funds of departments, such as water departments, for the operation of which budget appropriations are not made.”

The amount required to pay for the removal of garbage and ashes for the first year is included in the budget for the year 1923. We are of the opinion that the above section does not require the passage of an ordinance, whereas, in this case, the sums necessary to meet the obligations under the contract are included in the annual budget, and that this is the meaning of the clause in the section above quoted, reading, “the cost of which is to be met by funds other than those included in the budget of appropriations for the year.”

The second point contended for by the prosecutor is that the contractor, Norman S. Tice, who traded as Norman S. Tice & Company, had not, at the time of the awarding of this contract to him, complied with chapter 240 of the laws of 1906, which provides that any person who transacts business using the distinction “& Co.” shall file a sworn statement in the office of the clerk of the county within which such business is conducted, stating the nature of the business and the full names and residences of all persons, if any, who are members of the partnership. The failure of Norman S. Tice to comply with this statutory provision did not invalidate the contract. It merely subjected him to the penalty provided in the statute. Ruthkowsky v. Bozza, 77 N. J. L. 724.

We see no sufficient grounds for the awarding of a writ of certiorari to review this contract. The application is therefore denied.


author: Flannagan, J.

text:
    Essex Couhty Okphahs Coukt.
    In the matter of the probate of a paper writing purporting to be the last will and testament of Theodore Gaddis, deceased.
    [Decided April 30th, 1923.]
    Wills — Testamentary Capacity — Undue Influence Considered at Length — Probate Denied.
    On caveat.

      Mr. Abner Kalisch, for the proponent.

      Messrs. Heine, Bostwich & Bradner (by Mr. M. Casewell Heine), for the caveators.
   Flannagan, J.

A paper writing purporting to be the last will and testament of Theodore Gaddis, deceased, was offered to the surrogate of Essex county for probate by Alice Cox, the sole beneficiary thereunder. Caveats having been filed by the next of kin of the deceased, the matter was certified by the surrogate to this court.

Among the grounds of contest urged by caveators is that of undue influence.

The deceased, Theodore Gaddis, was at the time of his death a man about sixty-four years of age. Up to about two and one-half years of his death he had been a prosperous merchant in the city of Newark, keen and alert in business and natty in dress.

About that time, however, when he was some sixty-one to sixty-two years of age, he met with serious business reverses, resulting in his bankruptcy and the loss of all his possessions. The effect of this upon Mr. Gaddis, mentally and physically, was one which is not uncommon in men of that age under such circumstances — with such men the spirit is broken— they lose all initiative, confidence, ambition and hope — weakness, fear and inertia takes possession of them. To those who knew them in the heyday of prosperity they become pathetic.

Such a man was the deceased, from his bankruptcy until the day of his death. His utter transformation as a business man was demonstrated when he started again in his old line of business in association with a former employe. He sat in the office for a large part of the time inert, dejected and complaining and the venture failed.

When Mr. Gaddis’ bankruptcy left him practically penniless,'his niece, Mrs. Eppele and her husband, took him and his wife to their home and kept them there until the death of Mrs. Gaddis and kept him thereafter until he saw fit to leave under circumstances which will be related later.

Mr. Eppele was a successful and capable business man, the president of a bank and of a large manufacturing industry, and he undertook to, and did, handle Mr. Gaddis’ business affairs for him, becoming his business adviser.

During Mr. Gaddis’ business career the proponent, Miss Cox, was a privileged employe in his office. After his bankruptcy she set up a claim against him for moneys given him for investment for her account, but diverted to his own use. Mr. Eppele, as the person in charge of Mr. Gaddis’ affairs, arranged with Martha .G. Limberger, Mr. Gaddis’ aunt (known as Aunt Pet), to pay- this claim, but Mr. Gaddis declined to sanction such payment, denying the claim and stating that he had given Miss Cox money for years and her family coal for years and the matter was dropped.

Later on, while Mr. Gaddis and his wife were living with Mrs. Eppele, it was found that Mr. Gaddis was engaged in secret correspondence with Miss Cox, and when his wife had suffered a stroke and lay unconscious in the house he wrote Miss Cox telling her that his wife remained unconscious, and that the conclusion would certainly not be long and telling her that every day he was thinking of her, i. e., of;how she would enjoy the beauties of the country where he was. He addressed her as “Dear Mudder,” and concluded with “Au revoir, L. & K., Yours Daddy.” The context and the cir-cum stances, especially in the absence of any explanation by Miss Cox, suggest that the letters L. & K. stand for love and kisses.

Some time after his wife’s death, Mr. Gaddis left the Eppele’s home, and though apparently remaining on affectionate terms with them, took up his residence secretly with Miss Cox, continuing to keep from them the knowledge of his whereabouts until Mr. Eppele discovered it through a common business connection, at whose place of business he was accustomed to meet Mr. Gaddis in connection with the latter’s business affairs. ’ • 1

After his wife’s death, Mr. Gaddis came into possession of her property and also received a legacy from his said aunt, known as Aunt Pet. This property is the subject of the paper writing offered by Miss Cox for probate.

In December Mr. Gaddis had a conversation with Mr. Eppele on business matters and the matter of a will was discussed. In that conversation Mr. Gaddis said he intend'ed to leave his property to his relatives (excluding certain of them by name), and on another occasion asked Mr. Eppele to take certain investments in his (Mr. Eppele’s) name, saying that he (Gaddis) did not want the people in Newark he was staying with (Miss Cox and her family) to know that he had the money.

About a week before his death, and during his last illness, Mr. Gaddis sent for Mr. Eppele, getting not Miss Cox but a sister of hers to write him to come and see him at Miss Cox’s house.

During the interview thus brought about between Mr. Eppele and Mr. Gaddis, business matters were discussed and the matter of a will was mentioned, apparently in passing, but no indication of any change of testamentary intention was given. During the talk Miss Cox was discovered by Mr. Eppele eavesdropping at the door.

On the day before the night when Mr. Gaddis died he was visited at his room in the hospital by the witness Buckley. Mr. Buckley was sent by Mr. Eppele to get Mr. Gaddis’ endorsement on one check and to leave another check with him. He found Mr. Gaddis, very nervous, weak and his speech thick — it took about ten minutes to get Mr. Gaddis to understand the object of the witness’ visit. .It was later, in the same day about five p. me., that the will was executed. Mr. Gaddis expired during the night, February 8th.

■ The circumstances connected with the execution of the will were these: -

The will was drawn and the execution supervised by Mr. Werner, an attorney associated with former Judge Quigley, the latter having been Mr. Gaddis’ lawyer in connection with the bankruptcy matters. Mr. Werner received two telephone calls on the day he drew the will, each of them requesting that he come to Mr. Gaddis at the hospital. One of these calls was received during Mr. Werner’s absence from his office, but the second one he received in person. The calls were “very urgent,” and the second call was in a lady’s voice. Mr. Werner testified that he suspected a will was to be drawn and went prepared. He found Mr. Gaddis and Miss Cox in Mr. Gaddis’ room alone. She opened the door and admitted him. When Mr. Gaddis said he wanted a will drawn, Mr. Werner asked Miss Cox to leave the room. The drafting of the will took twenty to twenty-five minutes, and when Mr. Werner w!ent out of the door to' get a witness, he found Miss Cox standing alongside of the door to the left. He asked Miss Cox to get a nurse for a witness, but she was apparently unsuccessful, for he went himself for one, leaving the will in Mr. Gaddis’ room. He returned with the witness, the young man, Cecenia, a visitor at the hospital, whom he found down stairs, and who was a stranger to all concerned. The witness Cecenia testifies that when he arrived in Mr. Gaddis’ room Miss Cox was there; that she did not want to go out when asked by Mr. Werner' to do so, but after being twice asked by him went out. Mr. Gaddis did not say anything while Ceeenia was in the room, and when he left Miss Cox was just outside.

Mr. Werner states that during the time he was there no nurse came in, but there was ministration by Miss Cox; Mr. Gaddis was in pain and she would hold him up and he would spit in a cup or receptacle, but these ministrations did not occur during the period the will was being prepared.

On the next day and after Mr. Gaddis’ death, Mr. and Mrs. Eppele and Miss Cox met at the undertakers. M'r. Eppele asked Miss Cox if she had any knowledge of there being a will, and she said that she did not have any knowledge of a will at all, but had heard Mr. Gaddis say that if anything happened to him that any information in regard to his affairs could be obtained from Judge Quigley. Mr. Eppele thereupon went out and telephoned to Judge Quigley’s office and came back and told Miss Cox he had been advised that Mr. Gaddis had made a will the day before in her favor — she made no reply.

On the trial Miss Cox still remained silent, electing to leave all of these things unexplained. The question is, Was the burden cast upon her to explain ? The contestants urge that the testimony raises a presumption of undue influence.

While certain guides have been laid down by the courts for the decision of will contests based on undue influence, each ease must of necessity turn on its own particular facts and circumstances.

In re Cooper’s Will, 75 N. J. Eq. 177 (at p. 181), it is said: “Slight circumstances, in addition to such relation [viz., a confidential relation], will throw iipon the beneficiary the burden of showing that the testator’s mind was not unduly influenced.” See, also, Wheeler v. Whipple, 44 N. J. Eq. 141 (at p. 115); In re Morrisey’s Will, 111 Atl. Rep. 26 (at p. 28); Zelozoskei v. Mason, 64 N. J. Eq. 827 (at p. 328); Koch. N. J. Pro. Law 163. Confidential relations and opportunity to exercise the influence thej'- import do not alone raise any inference of undue influence, but there must be in addition other and further circumstances pregnant with inference or suggestion thereof. If the confidential relation exist, do those additional circumstances appear from the evidence in this case ?

The evidence shows that the relations between Mr. Gaddis and Miss Cox were carried on under subterfuge and secrecy. The testator was a married man living with his 'wife, and Miss Cox, a single woman, knowing him to be so situated.

Some relations had exisicd prior to his bankruptcy when she was a privileged employe. He wrote her in terms reprehensively affectionate from the shadow of his wife’s death bed. He left his own flesh and blood to go and live clandestinely with her. Under these and the other circumstances I find the relation to have been confidential. The opportunity was abundant. It is not necessary that these “slight circumstances” should be in the nature of proof of actual imposition. If they have the appearance of inconsistency with frankness, honesty or fair dealing in procuring the will, they may turn the scale; selecting a witness to the will, barring 'or making uncomfortable the visits of visiting relatives, selecting the scrivener of the will, possession of the will, presence at its execution, concealing the existence of the will, an abrupt face about in sentiment and the selection by the deceased of his custodians as the objects of his bounty and various other circumstances, have been declared by the courts of this state to be potent.

The language in the Morrisey Case, supra, aptly showrs that the words “slight circumstances” are not used in any strained sense and do not involve anything more than these •words naturally imply. In holding that the burden of explanation was, under the circumstances of that case, cast upon proponent, the learned vice-ordinary says: “There is no direct evidence of undue influence * * *. Whether the request of Mrs. Morrisey (the testatrix) to Mr. McAdams (the scrivener) for a will in favor of the O’Briens were spontaneous or unlawfully procured is conjectural. There was abundance of opportunity and a susceptible and pliant and fruitful subject for exploitation but that advantage was taken rests in surmise.” Morrisey Case, supra.

The evidence is abundant that the relation between Mr. Gaddis and Miss Cox was confidential, and that he was “a susceptible, pliant and fruitful subject for exploitation,” enfeebled in mind and body and that ample opportunity presented.

I will refer to several circumstances which I consider potent ones:

First. Within a short time of his death Mr. Gaddis told Mr. Eppele what his testamentary intentions were and they did not include Miss Cox as a beneficiary. At that time he was living with Miss Cox, relations had existed with her for years, all the apparent inducements to prompt him to make a testamentary disposition in her favor existed in full force. It is stated that at the time he executed his will he said that his relatives had plenty of money; that Miss Cox had taken care of him and he wanted her to have what he liad. These considerations existed at the time he made the declaration to Mr. Eppele that he wished his property to go to certain of his relatives. The relative prosperity of his relatives and Miss Cox was the same at that time as it was at the time of his death. The inquiry is if these considerations had not been sufficient to inspire a testamentary desire towards Miss Cox up 'to that time, what influence intervened during the last wteek, when testator was in the hospital very sick and entirely miserable, to induce him to make a sudden and complete reversal of testamentary intent and give everything to Miss Cox to the entire exclusion of his relatives ? So complete a change in so short a time without any material change in the apparent inducing circumstances suggests that some explanation on the part of the proponent should be forthcoming.

Second. Miss Cox was possessed of the power to exercise a strong influence over Mr. Gaddis. Although broken in spirit and finance and lacking in initiative or independence and though, living with relatives who had shown him-and his wife most admirable kindness, he elected to leave these surroundings with the disguised purpose, which he fulfilled, of taking up a secret abode with Miss Cox.

Third. The scrivener, though not positive, states that he thinks Miss Cox was not in the room while the will was being drawn, but his testimony does not convince that his recollection is clear and his statement that no nurse came in at all .while he was there and his account of Miss Cox’s ministration make it likely that his recollection is not clear and that her ministration continued during that period. Stenog. pp. 25, 26. The fact that the scrivener states that he asked Miss Cox to go and get a witness for the will seems to make her presence more likely. Stenog. p. 17. At least these circumstances leave the mind in a state of uncertainty as to her whereabouts at that time. If not actually present during the time the will was being drawn Miss Cox was in close touch and proximity. When the scrivener came by unexplained summons to draw the will he found Miss Cox there and he states that she left the room at his request during the actual preparation of the will but we find according to the. witness, Cecenia, she was in the room during the interim when the scrivener after completing the draft went down stairs to find a second testamentary witness. Thus it is shown that while the will was drafted and in final form ready for execution but before it had been executed it remained in the room with Miss Cox and Mr. Gaddis alone. It seems to me that while this may not be in one sense presence during the preparation of the will it is too close to it to remain unexplained.

Fourth. Mr. Gaddis made a bill of sale of his household furniture to Miss Cox. This transaction evidences at least a receptive disposition on her part. This disposition was further manifested by the rejected claim she set up against Mr. Gaddis for money claimed to have been entrusted to him by her for investment. On occasion when Mr. Gaddis received certain funds he indicated to Mr. Eppele a desire to-place part of this property in Mr. Eppele’s namie, giving his reason for this desire that Miss Cox or her people might not know that he had the money. These circumstances suggest that even the bill of sale of the furniture may not have been entirely without reluctance and that the receptive attitude 'of Miss Cox was fully appreciated by Mr. Gaddis. The facts and circumstances are at least all within Miss Cox’s knowledge but she does not come forward and explain them.

Fifth. I think the evidence raises a strong inference that the will was found in Miss Cox’s possession — she was engaged in ministration to deceased at the period the will was drawn. The will was left by the scrivener at the place where she and the testator were left alone together and within a few hours of his death. The next that is seen of the will is when she offers it for probate. While I do not decide that the deceased did or did not possess testamentary capacitjq his faculties, mental and . physical, were so broken that it is impossible to believe that the will did not come under Miss Cox’s control in the light of the disposition shown by her and of the interest manifested by her in a will, both at the "time at ■which the will was executed, when she had to be twice requested to leave the room and at the time she was eavesdropping on the occasion when a will was mentioned in the» discussion between testator and Mr. Eppele in Miss Cox’s home.

Sixth. After Mr. Gaddis’ death, Miss Cox definitely concealed the fact that she had any knowledge1 of his having made a will, falsely stating that she did not know! anything about it. The facts of this episode at the undertaker’s establishment have already been fully discussed.

Seventh. The facts, as far as they are disclosed, in regard to the calling of an attorney to draw the will, leave Miss Cox under a legitimate inference that she was the active instrumentality. The evidence showrs that two very urgent calls were made to the scrivener’s office and that the second call was in a woman’s voice. When the scrivener arrived he found Miss Cox alone with Mr. Gaddis in his room at the hospital.

All of the various circumstances which I have recited, taken all together are sufficient in my opinion to east upon one in the situation of Miss Cox, the burden of neutralizing by believable evidence the presumption; of undue influence which arises from them. She has elected hr sit silent without any explanation whatsoever and the probate of the alleged will must therefore be denied. /