text:
    CAROLINE M. DEVINE, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. RALPH L. CHESTER, DEFENDANT.
    Submitted May 11, 1928
    Decided January 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the rule, Bourgeois & Coulomb.

      Contra, Patrióle II. Harding.

   Per Curiam.

This case is before this court upon a defendant’s rule -to show cause. It is a death ease. Caroline M. Devine, as administratrix ad prosequendum of the estate of John Devine, instituted suit against Ealph L. Chester to obtain damages for the death of John Devine who was struck and fatally injured by the defendant’s automobile. The accident occurred on December 4th, 1926, at Fifth and Asbury avenues, in the city of Ocean City, Devine had ridden from Somers Point in a car owned by a friend and driven by a chauffeur, Asbury avenue parallels Ocean avenue, one block distant. It runs approximately east and west. It is crossed by streets designated as Fourth, Fifth, Sixth streets, &e. Devine lived, at 426 Asbury avenue, which is south of Fifth street. The ear in which he had come from Somers Point stopped on the right hand side of Asbury avenue. This is the ocean side. Devine alighted. He spoke for a brief space of time to those in the car. He then started to cross Asbury avenue to the other side of the street where he lived. He passed back of his friend’s ear which at that time started to move. Devine passed the center line of Asbury avenue and was approaching the opposite curb when he was struck by the automobile of Chester which was being driven by Chester. The righthand fender struck Devine. He died two days later at the Atlantic City Hospital. The defenses to the action were, first, contributory negligence on the part of Devine, and second, absence of negligence on the part of the defendant. The defendant contended that he was temporarily blinded by the bright headlights of an approaching automobile and was thus unable to see Devine.

With reference to the question of contributory negligence the facts presented are not similar to the case relied upon by the defendant of Conrad v. Green, 94 Atl. Rep. 390 (not officially reported). In this ease the plaintiff was crossing West State street in the city of Trenton and in doing so passed directly in front of a westbound trolley car which was stationary. Conrad’s vision of west bound vehicles was entirely cut off by the trolley car. As Conrad emerged on the far side he was hit by the defendant’s automobile. Conrad in his action was nonsuited. In the present ease Devine had crossed over half the street. He was in clear view of Chester who was driving his car. While the evidence would tend to show that Devine was not crossing at a crosswalk but near a crosswalk, this fact did not make the case one of contributory negligence per se. The question of contributory negligence was under all the evidence for the jury to decide.

The second ground is that the defendant was not negligent. The accident occurred in a closely built up part of Ocean City. There were several witnesses who testified that the speed of Chester’s car at the time was not less than twenty miles per hour and some gave the speed as between twenty-five and thirty miles per hour. The car was, therefore, being driven at an excessive speed. We see no merit in the defendant’s contention that he was absolved from negligence because of glaring headlights obstructing his vision. Under such circumstances it is necessary for a driver to stop or slow his car in order to avoid going where he cannot see. Hammond v. Morrison, 90 N. J. L. 15.

We have reached the conclusion that the verdict was not contrary to the weight of the evidence. No question is raised as to whether the verdict is excessive. The rule to show cause is discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JOHN J. TURLEY, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Decided January 16, 1929.
    Before Gummeee, Chief Justice, and Justices Parker and Katzenbach.

      Eor the rule, Henry H. Fryling.

    Contra, Francis A. Gordon.

   Per Curiam.

The plaintiff, a motorcycle officer on the police force of the city of Elizabeth, was run down by a trolley car of the Public Service Railway Company while on duty. He brought suit against the company to recover compensation for the injuries received by him, and the trial resulted in a verdict in his favor for $19,500. The present rule to show cause having been allowed, we are now asked to make it absolute upon the sole ground that the award is excessive.

The plaintiff was severely injured and is permanently disabled ■ to a considerable extent. But, although no longer physically able to serve as a motorcycle officer, he has been retained in the employ of the police department of the municipality as a telephone operator, at the same salary that he was receiving before the occurrence of the accident. In other words, he has lost nothing by way of salary, and apparently .there is no more likelihood of his doing so than if he had remained in service as a motorcycle policeman.. In view of the fact that his earning capacity has not been diminished, we think it plain that the award of the jury is excessive. If the plaintiff will consent to a reduction of the amount to $15,000, he may enter judgment for that sum. Otherwise the rule to show cause will be made absolute.


author: Oliphant, J.

text:
    Mercer County Circuit Court.
    HIGHTSTOWN TRUST COMPANY, PLAINTIFF, v. AMERICAN EQUITY CORPORATION, VERNON L. BUCHMAN, H. D. GORDON AND J. A. FRASER, DEFENDANTS.
    Eor the plaintiff, Theodore Baches and Herbert W. Baches.

    For the defendants, Frederic B. Brace and W. Holt Apgar.

   Oliphant, J.

This is a suit by Hightstown Trust Company as plaintiff, against American Equity Corporation, Vernon L. Buchman, H. D. Gordon and J. A. Eraser, as defendants, in the sum of $4,500 with interest and protest fees, based upon a promissory note in the following tenor:

“June 21st, 1927.
$4,500.00
Three months after date we promise to pay to the order of Vernon L. Buchman, H. D. Gordon and J. A. Eraser, Eorty-five hundred dollars, at Hightstown Trust Company, Hightstown, New Jersey.
Value received.
American Equity Corporation,
Vernon L. Buchman, Pres.
J. A. Eraser, Treas.
No. 701 Due Sept. 21st
(Endorsed)
Vernon L. Buchman,
H. D. Gordon,
J. A. Eraser,
American Equity Corporation,
Vernon L. Buchman, President.
J. A. Eraser, Treasurer.”

The defendant corporation maintained a bank account with the plaintiff company and had a line of credit of $10,000. A resolution of the board of directors, on file with the bank, provided that all checks must be signed by any two of the three officers of the corporation, who are the three individual defendants.

' In June, 1927, Eraser, the treasurer of the corporation, sent the note in suit to Buchman, the president of the corporation, at Wilkes-Barre, Pennsylvania, for his endorsement, explaining that it was a renewal of one for $5,000. Buchman signed the note as president of the corporation and endorsed it both individually and as president, and returned it. Gordon claims he never endorsed it or saw it until its authenticity was questioned. It was presented to the bank which discounted it and placed the proceeds thereof, $4,431, to the credit of the corporation on June 22d, 1927.

According to the bank records the exact amount of the proceeds of the note was withdrawn from the account of the corporation, as follows: On June 21st, $2,000; June 24th, $431; July 7th, $1,000, and July 19th, $1,000. Gordon and Buchman say that they never signed cheeks in these amounts on or about these dates, nor did they sign checks in blank. Eraser disappeared and after his disappearance four blank checks from the back of the corporation check book were found missing. There is no explanation of how the money was withdrawn. The bank regularly sent statements to the corporation, but the one showing a credit of $4,431 and the withdrawals before mentioned had been doctored and these items erased. The corporation had its books regularly audited and at the first audit after the 21st of June the discrepancies were discovered and immediately reported to the bank. The four checks above referred to were not among those returned nor examined by the auditors, and no explanation has been made in regard to them.

The plaintiff bank contents itself with showing on its own case an arbitrary charge against the American Equity Corporation account of the four items aggregating $4,431.

The defendants say' that the plaintiff is not a holder for value, that it is not a holder in due course, that it paid no consideration for the note in suit, and that the defendant corporation received no consideration therefor.

No ease directly in point has been furnished me by counsel, and after much research I have been able to discover none in this state; but the great weight of authority from other states, and the sounder rule, seems to be that “a bank giving credit for the amount of a note is not a holder in due course when such credit is not absorbed by the antecedent indebtedness or exhausted by subsequent withdrawals. 22 L. R. A. 718; and Brannans Negotiable Instrument Law, page 386, and cases therein cited. The question is also exhaustively considered in 6 A. L. R. 252, wherein it is stated that the courts in this country almost without exception have followed the rule above set forth.

It might be argued that there were subsequent withdrawals from the proceeds of the note, but the evidence clearly shows, and I am satisfied, that if there were withdrawals they were by means of forged checks, forged both as to maker and payee.

“The relation between a bank and its depositor is that of debtor and creditor, and the implied contract on the part of the bank is that it will disburse the money standing to the credit of the depositor only on his order, and in conformity with his directions. When, therefore, it makes a payment upon a check to which the depositor’s name has been forged, * * * it must be held to have paid out of its own funds, and cannot charge the amount against the depositor, unless it shows a right to do so on the doctrine of estoppel, or because of some negligence chargeable to the depositor.” Mechanics National Bank v. Harter, 63 N. J. L. 578.

Neither of these theories is open for use by the plaintiff under the facts as established by it in this case. Also see Camden Safe Deposit Co. v. Lord et al., 67 N. J. Eq. 489.

I therefore determine that the plaintiff bank was not a holder for value or a holder in due course, and that any charges against the account of the defendant corporation were improperly made.

There are several other questions involved, but under the circumstances the court heed not consider them.

A verdict of no cause of action must-be returned in favor of the defendants and against the plaintiff.


author: Peb Cubiam.

text:
    IN RE COMPLAINT AGAINST JOSEPH F. NARDIELLO, AN ATTORNEY-AT-LAW, OF UNPROFESSIONAL CONDUCT.
    Submitted December 3, 1928
    Decided January 16, 1929.
    Before Justices Tbenchabd, Kalisch and Katzenbach.
    Eor the applicant, Jacob L. Newman.

   Peb Cubiam.

The petitioner was disbarred by the Supreme Court by rule entered January 17th, 1928. This application for a rehearing we think must be denied, for the reason, among others, that relief of the applicant should be obtained, if at all, by the procedure outlined in In re Meyer, 127 Atl Rep. 698, and In re Harris, 88 N. J. L. 18.

The petition will be denied, but without prejudice to the right of the petitioner to take the course indicated in the cited cases.


text:
    JULIA TULENKO, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. EDWARD SIGMAN AND THOMAS NORRIS, DEFENDANTS.
    Submitted May 11, 1928
    Decided January 16, 1929.

      Before Gummere, Chief Justice, and Justices Parker and Katzenbaoh.
    Eor the rule, McDermott, Enright & Carpenter, and Carl S. Kuebler.

    Contra, Aaron L. Simon.

   Per Curiam.

This case is before this court on a defendants’ rule to show cause. The rule is addressed only to a judgment of $1,000 obtained by Julia Tulenko, administratrix ad prosequendum of the estate of William Tulenko, against the defendants. The case arose out of an automobile accident. The deceased was driving his mother, Julia Tulenko, in a Studebaker sedan owned by his father, Wasco Tulenko. At the intersection of First and Bloomfield streets, in the city of Hoboken, an accident occurred. The Tulenko ear collided with a car owned by Thomas Norris and driven by Edward Sigman. It was a Chevrolet touring ear and disappeared after the accident. Julia Tulenko was slightly injured. The car was slightly damaged. Verdicts of $500 in favor of Julia Tulenko and $250 in favor of Wasco Tulenko have been paid.

William Tulenko died on September 10th,. 1926, of tubercular meningitis. The accident took place in the month of May, 1926. It was contended that at the time of the accident William’s chest came in contact with the steering wheel and that his death was the result of this contact. The defendants claimed that he died of natural causes and that the accident did not aggravate any pre-existing condition. William got out of the car after the accident. He paid a young man $10 to drive them home. Mrs. Tulenko testified that her son, William, was in bed for about two weeks after the accident and that when he returned to work he was unable to work and was obliged to give up his position. She said he complained always of his chest where the wheel hit him. She testified that he was in bed all the day following the accident. It appears, however, that he went to the police station on this day. The medical testimony regarding the illness of William being attributable to the accident is not convincing. A medical examination revealed nothing. The doctor who made it testified that he could discover no pathological findings. He could not hear any rales. There were no abrasions. William complained of pains in the chest. The only evidence of such pains was what William told him. Later William signed a statement in which he said, “I was not injured in any way.”

In August, 1926, William went to the Passaic General Hospital. He was there treated by an interne and a physician. He was confined to the hospital from August 27th to September 3d. He referred to a strain received five years before. He also spoke of earaches. An examination revealed a history of gonorrhea for five years standing. He had bad teeth, cryptic tonsils, crackling rales, and myalgia of the legs and thigh. The cause of death assigned was, as stated, tubercular meningitis.

We are satisfied that the verdict should be set aside because it is contrary to the weight of the evidence that the death of William was the result of the accident.

The rule to show cause is made absolute.


text:
    BOROUGH OF ROSELLE PARK ET AL., PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, PUBLIC SERVICE RAILWAY COMPANY AND PUBLIC SERVICE TRANSPORTATION COMPANY, RESPONDENTS.
    Argued January 17, 1928
    Decided January 31, 1929.

      Before Justices Mirturr, ■ Black and Campbell.
    Eor the prosecutors, Charles H. Stewart, Martin P. O’Con-nor and Herrigel, Lmdabwry & Herrigel.

    - Eor the respondents, William H. Speer and John 0. Bigelow.

   Per Curiam.

On December 14th, 1926, the Public Service Railway' Company and the Public Service Transporttaion Company, filed with the board of public utility commissioners a joint petition which sets forth: that the Public Service Railway Company operates a system of street railways in one hundred and thirty-two municipalities of the state; that the Public Service Transportation Company operates a system of auto buses in the same general territory as the railway company; that all stock of both companies, except that necessary to qualify directors is owned by the Public Service Corporation of New Jersey and the management of both companies is the same and they are allied and affiliated and they are endeavoring to furnish a system of street railway and bus transportation so co-ordinated as to provide a maximum of efficiency at a minimum of cost.

The petition further gives an historical narration of the fare increase question and the financial difficulties of the railway company caused by increased cost of labor, &c., covering the period from 1918 forward, which is concluded as follows:

“Public Service Railway Company and Public Service Transportation Company seek the co-operation of the public and of the public authorities to achieve the objects herein set forth and to enable them to provide the best possible service for those who use their ears and buses. They have not hesitated to carry out their full duty. They have assumed losses that run into the millions and have, under circumstances that would have discouraged" other investors, put millions of new capital into the business in order to provide adequate and comprehensive service. But these companies cannot do the impossible; they cannot continue to provide transportation at less than cost nor can they give proper co-ordinated service without full co-operation on the part of the public authorities.”

Then follows what is, in fact, the prayer of the petition in the following language:

“The companies therefore at this time apply to the board for an adjustment of fare zones to enable the companies to maintain proper service and co-ordinate street railway and bus service where they are operated in the same territory.”

Then there are set forth seven districts wherein, it is said, there are zone discrepancies requiring re-adjustment.

We are here only concerned, with three of these and they are described in the petition as follows:

“1. Clinton avenue, Clinton Place, Springfield avenue and Lyons avenue bus lines operating from Newark to Irvington. The bus fare is five cents for the entire route. The street railway ride is divided into two five-cent fare zones, one in the city of Newark and the second after crossing the Irvington line. The bus zone should be changed so that the fare would be five cents within the city of Newark and five cents within the town of Irvington.”

“3. Eoselle Park bus route operates from Elizabeth to Eoselle Park. The bus fare is five cents for the entire ride. The street railway ride is divided into two five-cent zones; five cents in the city of Elizabeth and a second five cents in Eoselle Park. The bus zone should be changed so that the limits would be the same as on the street railway; five cents in the city of Elizabeth and a second five cents in Eoselle Park.”

“4. The Kenilworth bus route operates from Elizabeth, through Eoselle Park into Kenilworth. The first five cents includes Elizabeth and ■ Eoselle Park while the second five cents extends from Eoselle Park to Kenilworth. This bus line should be re-zoned into three five-cent zones; the first to cover that portion of the route within the city of Elizabeth, the second to cover the portion of the route within the borough of Eoselle Park and the third from the northerly boundary line of Eoselle Park into Kenilworth.”

The petition concludes with a schedule of rates, effective January 1st, 1927. Of such rates six are upon,the part of the Public Service Transportation Company, and one on the part of the Public Service Railway Company.

The first, second and third of these upon the part of the transportation eompanjr are the only ones affecting the matters before us. They are:

"1. A five-cent fare for a single ride within the city of Newark on the Clinton avenue, Clinton Place, Springfield avenue, Lyons avenue and Bloomfield bus lines and five cents beyond.

“2. A five-cent fare for a single ride within the limits of the city of Elizabeth on the Roselle Park bus line and five cents in Roselle Park.

"3. A five-cent fare for a single ride within the city of Elizabeth on the Kenilworth bus line; within the borough of Roselle Park five cents and from the northerly boundary line of Roselle Park, into Kenilworth, five cents.”

It will be seen that whether the re-zoning permission applied for was granted or the new rate schedule became effective the result would be the same and that result would be that the rates of fare by trolley and bus would be identical.

Whether this is a rate case or simply a co-ordinating of zones case appears to have been a matter calling for considerable attention by the contending counsel at both the oral argument and in their briefs. Whether it was both, or one or the other, we deem of no importance in reaching our conclusion.

Upon the filing of this petition the board of public utility commissioners fixed January 19th, 1927, for the hearing thereof, and suspended the operation of the schedule of increased fares for three months.

These hearings continued to June 1st, 1927, resulting in the taking of testimony, covering nearly thirteen hundred printed pages and a great number of exhibits.

At the conclusion of the hearings the board took the matter under advisement, the rate schedule in the meantime being suspended, and on August 4th, 1927, filed its conclusions and the order under review, which became effective August 14th, 1927.

The board did not by its order permit the adjustment of the zones of the trolley and bus routes in exact accordance with the prayer of the petition.

In its decision it says:

“With respect to the Newark-Irvington routes it appears that the Springfield avenue route and the Clinton avenue route leave the center of Newark and meet at Irvington center, the Springfield route continuing on to Eorty-third street and Springfield avenue, and the Clinton avenue route diverging at Ball street, Irvington, and arriving at the junction of Eortieth street and Stuyvesant avenue, returning by way of Clinton avenue to Irvington center. At present the railway lines have their fare zone at the Newark city line, a distance of approximately one-third of a mile east of Irvington center. The evidence does not demonstrate that either of the foregoing routes serve any common point of distribution at the Newark city line. This point was originally adopted for the trolley fare zone somewhat as an arbitrary point in the plan of installing a uniform five-cent fare as heretofore indicated. There is no question but that Irvington center is a common loading and distribution point for both buses and trolleys that operate over both of these routes. It will be in the public interest to the citizens of Irvington to have both buses and trolleys establish the fare zone at Irvington center. At the present time the trolley does little business between Irvington center and Newark city line due to the very short distance that would require an extra fare for those desiring to use the trolley to the center of Newark. To establish the fare zone at Irvington center for both buses and trolleys will equalize the service and fares and will offer a better service to the public.”

Accordingly the board by its order directed as follows:

“1. Clinton avenue bus route. That the Public Service Transportation Company shall establish the first fare zone limit on its Clinton avenue bus route at the intersection of Clinton avenue and Springfield avenue, in the town of Irving-ton, commonly known as Irvington center, on eastbound trips and at Clinton avenue and Ball street on westbound trips, thus dividing this line into two five-cent fare zones.”

“4. Springfield avenue bus route. That the Public Service Transportation Company shall establish the first fare zone limit on its Springfield avenue bus route at the intersection of Springfield avenue and Clinton avenue in the town of Irvington, commonly known as Irvington center, thus dividing this line into two five-cent fares;” and

“5. Springfield and Broad trolley lines. The Public Service Railway Company shall establish a zone point on what is known as the Broad line, operating in part on Clinton avenue in the city of Newark and the town of Irvington, and on the Springfield line at the intersection of Clinton and Springfield avenues in the town of Irvington.

■ “This shall be in lieu of the zone point on each of the aforementioned lines now located at the Newark-Irvington city line on Clinton avenue near Twentieth street on the Broad line and •on Springfield avenue, between Twentieth and Twenty-first streets on the Springfield line.”

Thus the zone limits and the consequent fares of the trolley lines and the bus lines were co-ordinated and equalized. The Springfield and Broad trolley lines and the Clinton avenue and Springfield avenue bus lines each having two zones between Irvington and Newark, such zones as to all four lines being co-extensive and centering in Irvington center, with the rates of fare the same on each.

The opinion of the board proceeds as follows:

“With respect-to the Clinton Place bus route and the Lyqns avenue bus route, it appears that neither line parallels the route of the trolley in the town of Irvington; that they reach the town of Irvington at points distantly removed from the center and serve a community which could not otherwise be served with facilities having Irvington center as a distribution point. To establish the fare zone as to these lines at the Newark city line would make these two routes about equal in length with the Springfield avenue line and the Clinton avenue line. It appears, however, that the Clinton Place line ends at Kuna Terrace and Chancellor avenue, one block away from the Clinton avenue route, which runs along Chancellor avenue. To establish a zone point at the city line as to this route would make an unusually short second zone. We are of opinion that the Clinton Place route should be continued along Chancellor avenue to Fortieth street, following the route of the Clinton avenue line and along Fortieth street to the end of the Clinton avenue line thereby substantially lengthening this line and affording better service for patrons of this route. It will be necessary for the town of Irvington to grant to the Public Service Transportation Company upon its application, in order to extend this line, the necessary municipal permit so that the Clinton Place line may be extended as hereto lore indicated from Kuna Terrace and Chancellor avenue to Fortieth street and Stuyvesant avenue. The Lyons avenue route has a relatively short zone by establishing a zone point at the city line. The board deems it in the public interest that this line be extended from its present connecting point at Springfield avenue along Springfield avenue to Forty-third street. This likewise will require municipal consent for this extension.”

Pursuant to such conclusions the order of the board was: .

“2. Clinton Place bus route. That the Public Service Transportation Company shall establish the first fare zone limit on its Clinton Place bus route at the Newark-Irvington city line, on Chancellor avenue; also that the Public Service Transportation Company shall apply to the town of Irvington for municipal consents to extend its Clinton Place bus route from its present terminus at Chancellor and Union avenues, in the town of Irvington westerly on Chancellor avenue to Fortieth Street, thence southerly on Fortieth street to the intersection of Fortieth street and Stuyvesant avenue, and upon receipt of such consent shall make application to this board for approval of same.”

“3. Lyons avenue bus route. That the Public Service Transportation Company shall establish the first fare zone limit on its Lyons avenue bus route at the Newark-Irvington city line on Lyons avenue between Cordier street and Fabyan Place thus dividing its line into two five-cent fare zones; also that the Public Service Transportation Company shall make application to the town of Irvington for municipal consents to extend the Lyons avenue bus route from the present terminus at Springfield avenue and Lyons avenue, on Springfield avenue to Eorty-third street and upon receipt of such consent shall make application to this board for approval of same.”

The result here is that, if the municipal authorities of the town of Irvington co-operate with the board and grant tjre necessary municipal consents to extend both of these routes, such routes will consist of two zones each, defined by the same line, namely the Newark-Irvington line with a fare, both within each municipality and from one into the other of the same amount or rate, with an increased route service in the town of Irvington.

This concludes the findings and the orders of the board so far as the matter before us has any reference to or affects the prosecutors, the town of Irvington and Alice M. Stewart.

As to the matters brought up by the writ at the suit of Roselle Park and Jacob Hergert the finding and conclusions of the board are :

“With respect to the Roselle Park route from Elizabeth to Roselle Park, it appears that at the present time this route extends from what is known as the Bayway section in the easterly end of Elizabeth through the city of Elizabeth to and into Roselle Park a total distance of five and seventy-nine one hundredths miles, all for one five-cent fare, the entire route comprising one zone. It is proposed to divide this line in two zones at the Elizabeth-Roselle city line. This route is paralleled on the same street over a considerable portion of its route by a trolley line. The trolley line comprises two zones, divided at the Elizabeth-Roselle city line. If the zone point of the bus route was established at the city line as prayed for by the petitioner, not only would the fare be equalized on both methods of transportation over this route but a five-cent fare would also be maintained within the city of Elizabeth to the benefit of the greatest number of the patrons of the line. It appears to the board that it is in the public interest through the preservation of the five-cent fare within the city limits of Elizabeth, that the zone point be established on the Roselle Park bus line at the Elizabeth-Roselle city line coincident with the trolley line zone point and it will approve this proposed change.”

The judgment of the board upon this matter was expressed in its order as follows:

“8. Roselle Park bus route. That the Public Service Transportation Company shall establish the first fare zone limit on its Roselle Park bus route on Westfield avenue at the Roselle Park-Elizabeth city line, thus dividing this line into two five-eent fare zones.”

By this the fare zones and the rates of fare from and to the Bay way section of Elizabeth and Roselle Park were equalized and made the same for both trolley and bus lines.

The remaining matter brought up by the borough of Kenilworth and James Orr, as prosecutors, is treated of in the conclusions of the board as follows:

“With respect to the Kenilworth route through Roselle Park to Kenilworth, this route extends from the city of Elizabeth, serving the general territory served by the Roselle Park line, and also the Elmora section. Prom this section the route continues along the Roselle Park route to Chestnut street in Roselle Park, thence on to Kenilworth. This route is at present divided into two zones, one including Elizabeth and Roselle Park and the other extending from Roselle Park to the terminal in Kenilworth. It is proposed to divide this route into three zones, one from the Elizabeth terminal to the Elizabeth-Roselle city line, another from this point to the northerly boundary of Roselle Park at Summer street and a third from this point to the terminal at Kenilworth. Coordination with the trolley route is not directly involved in this ease, no trolley route extending into Kenilworth, which is that portion of the route where the change in zoning is proposed. Prom the testimony it appears that the traffic on this line is very light and that more revenue must be obtained in order to maintain the service. The board is of the opinion, however, that in place of establishing the zone point at the Kenilworth-Roselle Park line, this point should be moved slightly further northward to the intersection of Galloping Hill road and Chestnut street. At this point the route also intersects that of an independent operating bus company and it appears in general to be a more logical location for a zone limit.”

In accordance with such opinion the order of the board was:

“9. Kenilworth bus route. That the Public Service Transportation Company shall establish on the Kenilworth bus route the following zone points at the intersection of Chestnut street and Galloping Hill road and at the Roselle PárkElizabeth city line, thus dividing this route into three five-eent fare zones.”

Under the. three writs of certiorari allowed to review the order of the board of public utility commissioners, and which three proceedings were consolidated, there are forty-two reasons for reversal filed in the proceeding by Roselle Park, twenty-three in that of Kenilworth and thirty in that of Irvington.

These may be, and,- in fact have been, by the prosecutors, grouped under a few heads or points.

First: That an application was made at the end of the petitioners’ case to dismiss the petition because of lack of proof to support it and

That the causes of the trolley company and the bus company be severed and each acted upon separately. Such motions were not determined at the time made and have not been passed upon or determined at any time and this was error.

With this we do not agree. The fact that the board proceeded to a determination of the matter was tantamount to a denial of the motions and lack of the mere formality of expressly denying the same certainly worked no prejudicial harm to the prosecutors if a denial of the motions was justified.

And we think such action with respect to these motions was correct.

Laying aside, for the moment, the question as to whether or not the increase of fares resulting from the re-zoning of the routes was justified by the facts before the board (which matter will be disposed of under a subsequent point) we find the proofs before the board fully justified its finding and order in respect thereto and we further find that a proper and satisfactory conclusion could best be reached (and perhaps onty so reached) by considering the matters as jointly affecting both classes of utilities, namely, trolley and bus lines.

Second: That the board had no jurisdiction to hear and determine an application for co-ordinating, as to fare zones, two utilities operated by independent corporations and particularly to co-ordinate the utilities in question so far as they serve Irvington, Eoselle Park and Kenilworth where the evidence shows that one utility (bus transportation) is receiving a fair return.

The prosecutors argue that, under the statute, the board is not given such power and therefore it has no power to make rates simply for the purpose of protecting the railway company from the competition of the newer and cheaper transportation.

If this was purely a rate case, which it is not, and the judgment of the board sustains our conclusion in that direction, the contention of the prosecutors must be said to be unsubstantial as measured by recent expressions of our courts. Hunter v. Public Utility Commissioners, 1 N. J. Mis. R. 408; Motor Transport Co. v. Board, 6 N. J. Adv. R. 582; affirmed, No. 109 May term (Court of Errors and Appeals), 1928; Fornarotto v. Board, 6 N. J. Adv. R. 1631.

Third: The next ground urged, and argued at great length and with much persistence, is that the board could not legally justify its finding without a valuation of the used and useful property of the transportation company.

We find that this contention is fully answered, adversely to the prosecutors, in Public Service Gas Co. v. Board of Public Utility Commissioners, 84 N. J. L. 463; 87 Id. 581; O’Brien v. Public Utility Board, 92 Id. 46, 587.

In the light of the rules laid down by these cases we hold that a valuation of the properties of the transportation company was not an absolute necessity or legal pre-requisite to a finding by the board and further that its conclusion respecting the re-zoning, or co-ordinating of the zones of the trolley and bus company, with the resulting increased revenue to either, or both, was warranted by the proofs and did not produce an unfair rate as to either company or the public.

It may be remarked that the trend of adjudication by the board of public utility commissioners approved by this court is that every reasonable effort should be made to maintain the service by trolley as well as by bus. Hunter v. Public Utility Commissioners, supra; Motor Transport Co. v. Board, supra, and Fornarotto v. Board, supra.

This, however, is upon the presently existing theory that it is wise and prudent that both means of transportation should be preserved and maintained for the benefit of the public.

Whether or not this is wise and economical depends largely upon what the future may demonstrate.

For the present, at least, such policy seems to be wise and prudent. The future will determine the wisdom or fallacy of it.

As was said by Mr. Justice Swayze in this court in Public Service Co. v. Public Utility Board, supra: “Fixing rates by public authority may secure to each individual the advantage of collective bargaining by or in behalf of the whole body of consumers and result in such rate as might fairly be supposed to result from free competition if free competition were possible. A just and reasonable rate, therefore, is necessarily rather a question of business judgment than one of legal formula, and must often be tentative, since the exact result cannot be foretold.”

In Motor Transport Co. v. Board, supra, we said: “Now, it is to be borne in mind that it is the duty of the board to protect from unreasonable and destructive competition existing facilities which are actually serving the public, so that the public may continue to have the benefit of such service.” Citing Hunter v. Board, supra.

And further, we said, in Fornarotto v. Board, supra, as to the power and duty of the board * * * that where there is evidence before the board * * * to justify their action and to reasonably support the same, in view not only of the direct evidence before it but in view of the entire situation of the case under the legislation which has committed the determination of these questions to the board, this court will not disturb their adjudication.”

This would seem to cover all the grounds urged by the prosecutors other than that the offer of the agreement of consolidation of the Public Service Railway Company into the Public Service Co-ordinated Transport was not relevant to the issue.

We consider the question raised as being entirely immaterial to the matter before us.

So far as the proceedings under review are concerned the board considered the two companies as entirely separate and distinct and as separate corporate entities, and this was proper and warranted by the facts. Some objection is made to the municipalities as proper parties to these proceedings.

In Public Service Gas Co. v. Public Utility Commissioners, and O’Brien and City of Trenton v. Public Utility Commissioners, supra, this question seems not to have been raised by any of the parties, nor the court,

Here it is not necessary to be decided because, in each case, a member of the public is joined as a party prosecutor.

We conclude that the order or judgment of the board of public utility commissioners should be affirmed and the writs of certiorari dismissed, with costs.


text:
    FLORENCE STRUENING, ADMINISTRATRIX, ETC., PLAINTIFF, v. WENDELIN NAGEL ET UX., DEFENDANTS.
    Argued January 18, 1929
    Decided January 30, 1929.
    Before Justices Mintukn, Black and Campbell.
    Eor the plaintiff, Palmer & Cooper.

    Eor the defendants, Heine & Laird.

   Per Curiam.

This suit was brought to recover damages under the Death act. The plaintiff’s intestate, Joseph E. Herold, on September 9th, 1927, was riding a bicycle northerly along Center street, approaching Irving avenue, in the town of South Orange, Few Jersey. He was struck by the defendant Wendelin Nagel, who was operating an automobile in a northerly direction, along Center street approaching Irving avenue, causing the injuries from which he died. The trial resulted in a verdict for the defendants, hence, a rule to show cause was allowed on behalf of the plaintiff. There are four reasons alleged for the granting of a new trial; first and second, error by the trial court in refusing to charge the plaintiff’s seventh and tenth requests to charge; third and fourth, the verdict of the jury is contrary to, and against the weight of the evidence. As we read the record none of these reasons are tenable. The record presents simply questions of fact. There is evidence on which the jury could and did base their verdict. The sharp question in the case is did the plaintiff’s intestate, while riding on the bicycle ahead of the defendant’s automobile, along Center street, turn sharply to his left in front of the defendants’ moving automobile ? Eeeord, page 60.

We find no sufficient reason for disturbing the verdict of the jury, the rule to show cause is, therefore, discharged.


author: Pee Cueiam.

text:
    LEHIGH VALLEY RAILROAD COMPANY, PROSECUTOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Argued January 16, 1929
    Decided January 31, 1929.

      Before Justices Minttjkst, Black and Campbell.
    Por the prosecutor, Edward A. Marlcley and Charles W. Broadhurst.

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

   Pee Cueiam.

On October 25th, 1928, an application, in writing, was made, on behalf of the prosecutor, to the board of commissioners of Jersey City for a permit to erect a reinforced concrete coal pocket with reinforced concrete trestle approach and scale house on Morris canal lot 22, block 60. This was received by the commissioners at a meeting held October 30th, 1928, and by that body referred to the superintendent of buildings. An application was also made on October 26th, 1928, to the superintendent of buildings.

On November 5th, 1928, the board of commissioners at a meeting held on that date by resolution directed that permits be issued to certain applicants including the prosecutor.

Pursuant thereto the superintendent of buildings, on November 19th, 1928, approved the plans filed with him by the prosecutor and issued the building permit. Prosecutor then proceeded with the work of construction and for that purpose entered into binding contracts.

On December 4th, 1928, owners of property and residents in the neighborhood of the proposed coal pockets made objection thereto at a meeting held that day by the board of commissioners and the latter by resolution directed that the work of construction be stopped and that a public hearing be had before the board on December 18th, 1928, at eleven A. M. On such latter date a public hearing was had and the result was the adoption of the resolution brought up by this writ for review.

By way of preamble such resolution recites the filing of a protest, that the permit in question was issued by the superintendent of buildings without first having referred the matter to the board of commissioners, and after such hearing it appears that the erection of such coal pockets would depreciate the property of the protestants and cause the residents inconvenience and disturb their peace and quiet and would otherwise be detrimental to their health and general welfare, and then resolves:

“That the board of commissioners of Jersey City hereby find as a fact that the erection, by the Lehigh Valley Railroad Company, of the coal pockets on lot 22, block 60 on Canal street, foot of Grove street, Jersey City, would depreciate their property and cause their tenants to vacate the premises they now occupy and would also cause the residents in that particular location much inconvenience and disturb their peace and quiet and would otherwise be detrimental to their health and general welfare” and

“That permit known as No. 37361, heretofore issued on November 19th, 1928, for the erection of said coal pockets and trestle upon lot 22, block 60, Canal street, foot of Grove street, in the said city of Jersey City, be and the same is hereby revoked and the application for a permit for the erection of the same is hereby denied.”

The contention of the prosecutor is that the permit or license having been issued and it having proceeded thereunder and expended and obligated itself to expend moneys it was irrevocable except for fraud or deception.

That this was and is the situation we think is controlled by the finding of this court in Citizens Holding Co. v. Board of Adjustment of Newark, 7 N. J. Mis. R. 61.

Respondent relies upon Freeman v. Hague et al., 7 N. J. Mis. R. 41, but that case is clearly distinguishable from the one now before us. In that case the structure contemplated was or might reasonably be said to be in violation of the provisions of an existing zoning ordinance and its inclusion with a number of others in a report of the building superintendent was clearly an error.

Here the structure contemplated was of a character clearly permitted by the zoning ordinance in the locality where it was proposed to be erected and the application was initially made to the board of commissioners, by that body referred to the superintendent of buildings and by that officer subsequently included with others and included in a resolution of the commissioners directing the issuance of a necessary permit.

Therefore the elements of error, and prohibition under the zoning ordinance, presenting the dominant and controlling elements in Freeman v. Hague, supra, are lacking here.

Respondents further urge that under a certain ordinance of the city entitled, "An ordinance to regulate the erection and alteration of all buildings and structures to be used for any purpose other than residences or for living apartments,” passed June 3d, 1924, it was a necessary prerequisite to the granting of the permit that a public hearing, upon notice, be had before the board of commissioners, and that board should thereupon have found that the granting of the permit would not result in the erection oí a structure that would jeopardize life, limb or public health or increase the fire hazard.

The answers to this are:

1. There is nothing in such ordinance requiring a public hearing such as was held on December 4th, 1928, and

2. The application in question was first made to the board of commissioners and by that body referred to the superintendent of buildings who, by reporting it to the commissioners at a subsequent date with a resolution directing the issuance of the permit without any showing to the contrary, must be considered as a recommendation from that officer that the permit be granted is, we think, in entire consonance with the provision of section 3 of the ordinance in question providing that "after the board of commissioners has inspected or caused to be inspected the premises mentioned in the applications filed * *

We conclude therefore that the resolution of December 18th, 1928, revoking the permit of November 19th, 1928, must be set aside.


author: Pee Ctjeiam.

text:
    CRADDOCK-TERRY COMPANY, PROSECUTOR, v. MAURO SCIALABRA ET AL., RESPONDENTS.
    Argued January 16, 1929
    Decided January 31, 1929.
    Before Justices Mintuen, Black and'Campbell.
    Eor the prosecutor, David 0. Kurlantziclc.

    For the respondents, no appearance or brief.
   Pee Ctjeiam.

' This writ brings up for review, a judgment in favor of a claimant of property for goods and chattels levied upon under an execution issued out under a judgment obtained in the District Court of the city of Paterson.

• The judgment for the debt was recovered May 24th, 1928. Execution issued thereon May 28th, 1928, and a levy was apparently made on the same date. The record does not contain the levy nor does it contain the claim of property.

On June 14th, 1928, an order appears to have been entered directing the trial of such claim of propertjr on September 19th, 1928. A notice of such trial was acknowledged some time in June by the attorneys for the plaintiff below. On September 19th, 1928, the attorneys for the- plaintiff below appeared but no one else did so and apparently the court was not in session. The proofs show that plaintiff below and its attorneys had no further notice of the proceeding until October 15th, 1928, when being at the office of the clerk of the court they casually learned that the matter was on for that day at two p. m. They appeared and upon the jury being called and sworn objected to proceeding because they had had no notice of such trial. This objection was overruled. The attorneys-for the judgment creditor were then obliged by the trial judge to open the cause and assume the burden of proof and although some papers were handed the trial judge by the attorney for the claimant, they were not actually introduced and admitted in evidence, offers of proof upon the part of the judgment creditor were refused and the trial judge directed the jury to find in favor of the claimant.

The proceedings are so thoroughly irregular as to require no comment but, perhaps, on the contrary, condemnation.

It is true that the records of a court are prima facie proof of its proceedings and cannot be overturned and set aside except by full and convincing proof.

Here, however, that situation, undoubtedly, exists.

The clerk of the court testified that the matter was not tried on September 19th, 1928, the date first fixed but was adjourned from time to time to October 15th, 1928. Against this is the positive proof of the attorney for the judgment creditor that there was no adjournment or other disposition of the matter on September 19th, 1928.

The records of the court are not helpful.

Such record as returned under this writ is :

“June 14th, 1928. Order filed directing trial of claim of property in above case September 19th, 1928, October 13th, 1928. Venire issued to try claim of property, returnable October 15th, 1928, at two o’clock p. m.”

So, too, with respect to the actual proceeding upon the trial held, October 15th, 1928.

The return is as follows:

“Two bills of sale, execution and notice of sale offered in evidence. The evidence being closed and submitted to the court and jury, judgment was rendered by the jury, by direction of the court in favor of the claimant.”

As against this the depositions taken establish a situation in no manner approaching a trial or judidical determination of the proceeding, but, rather, an arbitrary disposal of it.

The judgment under review is therefore set aside, with costs.


text:
    BOARD OF PUBLIC UTILITY COMMISSIONERS, RELATOR, v. LEHIGH VALLEY RAILROAD COMPANY, DEFENDANT.
    Argued January 17, 1929
    Decided January 30, 1929.
    Before Justices Mintuen, Black and Campbell.
    For the relator, John 0. Bigelow.

    For the defendant, Hobart & Minará.

   Pee Cueiam.

An application in this case is made for a peremptory, or in the alternative, for an alternative writ of mandamus to compel the defendant to begin actual work, within such time as the court may fix, required for making the crossing of the highway, known as South Bridge street or State Highway Route No. 16 in Hillsboro township, Somerset county, New Jersey, in compliance with an order made by the relator dated April 26th, 1927, and to complete the work to be done within one year thereafter. The application is based upon two affidavits; one by Alfred M. Barber, secretary of the board of public utility commissioners of New Jersey; one by Charles A. Mead, engineer; copies of two orders of the board of public utility commissioners, dated respectively, November 24th, 1926, and April 26th, 1927. Two answering affidavits, one by Ralph D. Van Duzer and one by William R. Johnstone, Exhibit B a petition for a rehearing before the board of public utility commissioners filed January 14th, 1929.

We cannot find any case in our reports, that would justify us in ordering a writ of mandamus in this case at this time. The power to issue the writ of mandamus is a discretionary one. Jones Co. v. Guttenberg, 66 N. J. L. 58; Ibid. 659; Sutton v. Champion, 101 Id. 569; 2 N. J. Mis. R. 1135.

The right to a writ of mandamus must be clear, it will be denied where it creates disorder and confusion. English v. City of Asbury Park, 115 Atl. Rep. 64; Hugg v. Ivins, 59 N. J. L. 139.

The public duty sought to be enforced must be clear and specific. Uszkay v. Dill, 92 N. J. L. 327.

The application is therefore denied at this time, but without prejudice to renew the same at a future time.


author: Pee Citkiam.

text:
    BEATTIE MANUFACTURING COMPANY, PROSECUTOR, v. TOWNSHIP OF LITTLE FALLS, DEFENDANT.
    Submitted January term, 1929
    Decided January 30, 1929.
    Before Justices Mintukn, Black and Campbell.
    For the prosecutor, Collins & Corbin.

    For the defendant, Gustav A. Hunziker.

   Pee Citkiam.

The writ of certiorari was allowed in this case to review a sewer assessment of $3,857.70 levied against the prosecutor’s property, located on the northerly side of Main street, known as lot two (2) block fifty-three (53) on the official assessment map of the township of Little Falls.

It is stipulated that the prosecutor was assessed on a basis of one thousand two hundred' fifty and forty-seven one-hundredths feet frontage at the rate of $3,085 per foot; equals $3,857.70; whereas in point of fact, it should have been assessed for nine hundred and seventy-nine feet only. The assessment • it is agreed should be reduced by the sum of .$837.48 leaving the assessment under review at $3,020.22.

The pertinent facts to this controversy are as follows, viz.: The property assessed extends along the north side of Main street, Little Palls, New Jersey, westerly from Union avenue, for a distance of about one-quarter of a mile and slopes rapidly from Main street to the Passaic river. At the time the sewer was laid and the assessment made the road was a state highway, and was paved partly with asphalt and partly with granite blocks on a concrete base, which are considered permanent pavements. The sewer line for which the assessment is made is an eight-inch sanitary sewer, constructed on the southerly side of the street, under the sidewalk, while the property of the prosecutor is on the north side of the.street, with the pavement intervening. The line of sewer in question is actually nine hundred and seventy-nine feet long. The character of the ground is trap rock in the bottom of the sewer trench, overlaid with soil in varying amounts; it is necessary to blast the rock to get through.

The buildings of the prosecutor, on the north side of the street, consist of a group of about twenty factory buildings, built closely together along the slope, from the highway down to the river. The buildings at present have a sewer connection with an existing sewer lying to the east of Union avenue, and by means of a collecting system shown on Exhibit P-1, the sewage runs into a tank on the edge of the river, from which it is pumped to a connection with the' existing sewer to the east of Union avenue. The tank in question is about thirty-two and one-half feet below the elevation of the sewer, which is the subject-matter of this litigation.

The first point made by the prosecutor is the lot or property assessed is located below the level of the street and the sewage from the buildings erected thereon will not run into the sewer. This we think is demonstrated as a fact from the testimony returned with the writ. The property receives and can receive no benefit from the building of the sewer.

Point two: the sewer is laid under the sidewalk on the opposite side of Main street with the state highway intervening ; it is either impossible or impractical to make sewer connections across Main street. The practical way to connect the property with the sewer, if such connection is ever desired, is by laying a sewer on the side of the street next to the mill property, at such time as the facilities may be needed.

Point three: the sewage from the lot assessed has been-already taken care of by a connection with the pre-existing sewer at the corner of Main street and Union avenue and there is no enhancement in the market value of the prosecutor’s property, by the construction of the sewer and there is no benefit to the prosecutor’s property derived from the sewer. This we think the testimony, also, amply demonstrates.

The only other point that calls for any discussion is that urged by the defendant, viz., the certiorari was allowed after thirty days shall have elapsed from the date of the confirmation of such assessment or award, in violation of Pamph. L. 1917, pp. 319, 404, art. 20, as amended by Pamph. L. 1921, p. 315, § 56.

The writ was issued on Eebruary 4th, 1928. The assessment for the improvement was confirmed July 6th, 1927. The writ, so it is urged, should be dismissed on this ground.

But this statute, the cases all hold, does not apply where the assessment is in violation of constitutional rights. Walsh v. Mayor, &c., of Newark, 78 N. J. L. 168.

This statutory limitation cannot be enforced for the protection of an assessment, which the legislature could not constitutionally authorize, i. e., where there is no benefit conferred on the propetry assessed, as in the present case. So, Mitsch v. Township of Riverside, 86 N. J. L. 603; Meredith v. City of Perth Amboy, 63 Id. 520.

As it is not shown that the prosecutor’s property received any benefit from the cosntruction of the sewer, but the contrary appears. The assessment and the judgment confirming the same must be set aside and vacated with costs, and such will be the order of the court.


text:
    PETER CUMMINGS, PROSECUTOR, v. TOWN OF MONTCLAIR, DEFENDANT.
    Argued January 17, 1929
    Decided January 30, 1929.
    Before Justices Mirtuer, Black and Campbell.
    Por the prosecutor, Thomas Brunetto.

    Por the defendant, George R. Beach and George S. Harris.

   Pee Cueiam.

A rule to show cause was allowed in this case, for the issuance of a writ of certiorari, to review a judgment of dismissal from the fire department of the town of Montclair rendered against the prosecutor, Peter Cummings, on April 24th, 1928.

Our reading of the record in this case leads us to the conclusion, that a writ of certiorari should he allowed to review the judgment of dismissal.


author: Backus, V. C.

text:
    Louis Frunzi, complainant, v. Mina B. Gromer et al., defendants.
    [Decided February 15th, 1929.]

      Mr. Harry L. Campion, for the defendant Mulligan, administrator.

      Mr. George A. Henderson, for the defendant Mina B. Gromer.
   Backus, V. C.

, The proceeds of three promissory notes made to the order of Rudolph Felder, now deceased, aggregating $2,525, were paid into court under a decree of interpleader. The administrator of Felder’s estate and Mina B. Gromer are striving for the fund—the latter claiming ownership of the notes by gift from Felder. The cause was referred to Special Master Lynch who found for Mrs. Gromer, to which the administrator filed exceptions.

The gift is satisfactorily established. Felder, of advanced age, lived with the Gromers as a member of the household for many years—a pay guest, and on Christmas Eve, 1925, during the festivities of exchanging gifts, he gave the three notes to Mrs. Gromer as his offering in grateful recognition of her past kindnesses to him. His estate, $16,000, consisting of bank accounts, building and loan shares, bonds and other securities, he gave or attempted to give to her on the day he went to the hospital where he died the following day, April 26th, 1926. Mrs. Gromer laid claim to the estate and retained one Mulligan, an attorney, to recover it, on a contingent fee. There is proof that Eelder intended she should have it, but as a valid and enforcible gift the case was weak. Two nephews of Eelder were entitled to it if Mrs. Gromer failed. Mulligan had himself appointed administrator and made a settlement with Mrs. Gromer for $4,000, retaining $1,000, which he claims to have divided with the party who brought him the case and with an associate in his office, his brother-in-law, who he says succeeded him as attorney when he became administrator; to the former $250—the latter $500, retaining $250- for his services as attorney before assuming the administration. He took a general release from Mrs. Gromer and she surrendered the bank and building and loan books and other securities of which she had possession under the alleged gift, causa mortis. The attorney-administrator now claims the notes were included in the settlement and that they were not given up at the time because they were lost. This is not made out by the proofs. The thing Mrs. Gromer was seeking and which she retained Mulligan to get for her was the property under the imperfect gift causa mortis. The general release of all claims against the estate is particularly of this claim, notwithstanding the release for some unexplained reason recites the settlement of a claim for personal services of $4,732—in all probability fabricated by the attorney-administrator. Mrs. Gromer had no claim against the estate for the notes, for the ownership of them was already in her, and consequently the release was neither in terms nor in spirit inclusive. Mrs. Gromer’s denial of the attorney-administrator’s insistence, that at the settlement it was understood the notes, which at that time were mislaid, were also to be handed over, finds support in a “slip” made by the attorney-administrator. while trying to justify his dual relation and the taking of a $1,000 fee out of the settlement. His statement was that it had been agreed that the amount recovered was to be split three ways, with the intermediary, himself and his office associate, and that when the settlement was made $250 was paid to the intermediary, $500 to the associate and $250 he retained for his services before he took over the administration. The three-way split, if that had been the arrangement, and it is denied, was wholly ignored. The “slip” is this: In explaining the division of the fee he said: “I then gave Miss Colmar [intermediary] $250 of the $500 which I was to give her and I told her that when the ease was settled and the notes were collected then I would see that she got the balance of the $500.” The “balance” from what source? Surely only if the notes were collected by him for Mrs. Gromer, for she had done nothing for the estate to earn it. The estate was not obligated to her, and so it is quite apparent that at that time the attorney-administrator regarded the notes as belonging to Mrs. Gromer and the collection was to be made for her. It is also singular that if the attorney-administrator regarded the notes as part of the settlement and the property of the estate, he did not take an assignment or some writing testifying a transfer or surrender of the notes, at that time mislaid or lost. That would have been the ordinary and careful course, and the failure to take it indicates his then notion that they were not part of the settlement.

If, however, the attorney-administrator understood, as he now says he did, that the estate was to get the notes, contrary to his client’s understanding, that they were not involved, it was because'of his failure of duty to her, for had there not been a divided allegiance there would have been no misunderstanding as to her attitude. His client is inexperienced and was without the benefit of the disinterested advice she was entitled to. Her attorney presumed to act as advisor and adversary at the same time, and this by the consent of the next of kin nephews, who, of course, knew of her claim. He bargained for his client with the nephews and with her for the estate and not to her full advantage, it may be assumed. His avowal that he disengaged himself as her attorney when he took upon himself the office of administrator is not acceptable, and that he divided the fee with his alleged substitute is doubtful. The substitute at no time consulted his supposed client, advised with her or, as far as appears, rendered her any service. The result of the misunderstanding, if there was one, must be resolved against him. The master’s finding that the settlement does not include the notes is amply supported by the proof and the reasonable inferences to be drawn from the established circumstances, and it is approved.

The ease was tried on the theory of a gift. The statement of claim filed by Mrs. Gromer alleges a purchase of the notes. This may have-been a misconception of counsel not chargeable to the client. The statement may be corrected.

Exceptions overruled.


text:
    HENRY BURRUANO, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE TRANSPORTATION COMPANY, APPELLANT.
    Decided February 4, 1929.
    Before Justices Tbenchakd, Kalisch and Lloyd.
    Eor the appellant, Henry H. Fryling.

    Eor the appellee, James F. F. O’Brien.

   Pee Cueiam.

There was a judgment below for the plaintiff and against the defendant for the sum of $50.

The defendant-appellant, by its servant, was operating a passenger bus along Springfield avenue, which vehicle struck a stone with such force as to hurl it from the street across the sidewalk and through the plate glass window of the barber shop of the plaintiff-appellee, causing damage to the plaintiff’s property therein.

That there was testimony that the stone was about six inches in size; that it reposed about four feet from the curb, in the roadway; there had been digging in the vicinity where the stone lay, and that the bus at the time it hit the stone was being propelled at a speed between eighteen and twenty miles an hour.

The appellant, in the brief of its counsel, concedes that the stone was lying in the roadway and was struck by the bus with its front tire, and hurled through the shop window of the plaintiff.

The ground relied on for a reversal of the judgment is, that the trial judge, at the close of the entire case, refused to find in favor of the defendant-appellant. The question presented was one of mixed law and fact. The accident happened in the daytime. The stone was lying on the surface of the roadway. The driver testified that he did not see the stone. If he had been on the alert to observe obstructions in the street, there can be no good legal excuse offered why he did not see it. He was propelling his bus at a speed from eighteen to twenty miles an hour in a neighborhood where the houses are close together, and at a place near which an excavation had been going on.

We think that the trial judge was warranted in finding that the driver was not in the exercise of that degree of care which a prudent person was called upon to exercise under the circumstances. Geise v. Mercer Bottling Co., 87 N. J. L. 224.

The fact, that the stone was hurled with such force from the place where it was lying in the roadway, so as to go through a plate glass window, and wound up its career by doing injury to the plaintiff’s property in the shop, leads to the inference that the bus must have been propelled at a high rate of speed, in order to give such impulse to the stone. If the driver had used ordinary prudence he would have seen the stone, and thus have governed the speed of his bus accordingly.

Judgment is affirmed, with costs.


text:
    RICHARD O. ZOBER, PROSECUTOR, v. BENJAMIN F. TURNER, DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY, CITY OF PASSAIC, NEW JERSEY, RESPONDENT.
    Argued January term, 1929
    Decided February 4, 1929.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Filbert L. Bosenstein, Frederick 8. Banzenhofer and Ward & McGinnis.

    For the respondent, Joseph J. Weinberjer and Merritt Lane.

   Per Curiam.

The writ of certiorari sued out in this case by Bichard 0. Zober, prosecutor, is designed to review the proceedings taken against him before Benjamin F. Turner, director of the department of public safety in the city of Passaic, which proceedings resulted in a judgment dismissing the prosecutor from his office as chief of police of said city.

The facts in the case substantially are that charges were preferred against the chief of police, Zober, on November 16th, 1927, upon which he was directed to appear for trial on November 29th, 1927, before Benjamin E. Turner, as director of the department of public safety of the said city of Passaic.

The complaint was quite extensive in character, but stated in effect five charges against the prosecutor, which were again subdivided into twenty-five charges. He-was tried upon these charges, and as the result of testimony thereon adduced, further charges were preferred against him, directing him to appear before Commissioner Turner for trial thereon. The additional complaint was made up of four charges, subdivided into twenty-four charges.

The prosecutor at the outset of the trial challenged the right of the commissioner to try him, on the ground that the said Turner was so prejudiced against him that he could not give him a fair and impartial trial, which could constitute the only basis for his dismissal from the police department. The prosecutor offered to give testimony in substantiation of this challenge, but the offer was rejected, and the challenge overruled.

Depositions were taken under the writ, by the prosecutor, which tended to show the relationship existing between the commissioner and the prosecutor. Turner and Zober are both members of the police department, Turner having entered the service in 1900, and Zober having become a member twelve years'thereafter. In due time he became chief of the department, during which period of time Turner held the rank of captain of the detective bureau of Passaic.

In April, 1924, after Zober had been captain of police for two years, the then chief resigned, and the commissioner, Mr. Preiskel, was called upon to fill the vacancy. ' Both Captain Turner and Captain Zober were rival candidates for the office, Zober becoming the chief of police.

A great deal of testimony has been taken under the rule and before the commissioner, showing that the relations which existed between these two men were anything but friendly, Turner haying repeatedly referred to the prosecutor in uncomplimentary terms, and on many occasions haying refused to hold friendly intercourse with him, with mutual friends, at public dinners and elsewhere.

It may be conceded, therefore, as a result of this testimony, that the two men were not friendly, and it may be conceded that for reasons of his own, which he considered satisfactory, Turner refused to assume that general friendly intercourse which should have existed between two men performing a substantially similar public service. Both the letters and the orders of Turner, as well as his language when speaking of Zober, indicate that condition of mind.

Under these circumstances the prosecutor was tried before Turner, as director of the department of public safety, with the result that the prosecutor was dismissed from his office as chief of police by the respondent, Turner.

The prosecutor now insists that because the commissioner of public safety was biased and prejudiced, the prosecutor did not have a fair trial, and for that reason alone the dismissal should be set aside and the prosecutor reinstated as chief of police. lie at the same time concedes that if Commissioner Turner could not try these charges leveled against the prosecutor, there would be no other tribunal to try them, and the discipline required of the police department of the city of Passaic under such circumstances would be without any means of vindication.

In the language of the respondent’s brief, if the director of the department of public safety be disqualified from trying a case against “a chief of police whom the evidence demonstrates has been guilty of knowingly acting as a ‘fence’ for the disposal of automobiles stolen by a gang of automobile thieves, one of which stolen cars was sold by the chief to one of his subordinates in the police department,” then the city and the department are without any recourse for the purpose of vindicating discipline in the police department.

This vindication of the action of the director of the department of public safety in dismissing the prosecutor from the police force, may be stated, in his own language, as follows:

“On or about the 29th day of January, 1926, a Cadillac car was stolen in Newark, New Jersey. This ear is known as the Kaufman car. On or about March 27th, 1926, Chief Zober purchased that car for what he says was the sum of $1,600; and on or about May 12th, 1926, he sold that car to one John J. Labash for $2,000.

“On or about April 12th, 1926, a Buick car, a Master-Six, known as the Chambers car, was stolen in New York City, and on or about the 16th day of July, 1926, Chief Zober purchased that car for $1,000, as he says, and that car wa.s in his possession, and taken out of his possession on the 25th day of October, 1927.

“On or about June 10th, 1926, a Buick car was stolen in. Summit, New Jersey, known as the Eider car; and on or about June 23d, 1926, Chief Zober purchased that car for what he sajrs was $1,100, and on or about the 28th day of June, 1926, he sold that car to one Matthias Winter, a patrolman in the police department for $1,200.

“On or about July 9th, 1926, a car which is known as the Perkins car was stolen in New York City, and on or about July 10th, 1926, that car was purchased by Chief Zober for what he says was $750, on or about the 14th day of October, 1926, that car was sold by the chief to one Carroll D. Hipp for $850.

“Each of these ears had either mutilated or changed motor serial numbers.”

It might properly be contended, as it is argued in the brief by counsel, that the business of buying and selling cars, irrespective of the knowledge of the chief of police that they were stolen, was a practice incompatible with the duties of the prosecutor as chief of police; and to further demonstrate the culpability of the chief of police in the matter, it is also shown by the evidence that he obtained licenses for the cars in his own name, and in some instances without signing applications therefor, and in other instances signing applications without having sworn thereto, in violation of the provisions of the Motor Vehicle act; and it is insisted that in this practice, and for the purpose of carrying on this business, he deliberately perjured himself before the commissioner.

It is also insisted that he had in his possession automobiles with mutilated numbers, in violation of the provisions of the Motor Vehicle act, which act makes the mere possession of an automobile having numbers which indicate mutilation, without giving notice thereof to the department of motor vehicles, a criminal act, the statute in question being intended to impose the burden upon the possessor of the automobile of ascertaining the fact, at the time of the purchase, whether the numbers have been tampered with, with an intent to evade the provisions of the statute. State v. Lee, 100 N. J. L. 203.

The chief of police must be charged with a knowledge of the law regarding these practices. The explanation of the chief of police that he did not know the law, or that he thought the matter could be fixed up, is not enough to relieve him of official responsibility in such matters, particularly in view of his long experience in the police department, in which it must be assumed he had obtained a varied knowledge of such practices. Our reading of the testimony indicates that he was aware of the illegal practices which were thus carried on, and that fact alone would be enough to sustain the charge made against him in this respect; and it is no answer to the sufficiency of such charges to allege that the trial court, or the director in this instance, entertained prejudices against him, or to concede, as the prosecutor alleges in this instance, that upon the testimony no fair-minded man could have done otherwise than to dismiss him.

The prosecutor in this case entered one hundred fifty objections to the admission of testimony against him, and to the exclusion of testimony offered for him, and these rulings he makes a basis of his objection, because the testimony was overruled, or excluded, on the ground that such action by the director left him without any basis for an appeal; although the prosecutor in insisting upon this fact as indicative of the prejudice of the commissioner, specifies no legal ground upon which may be rested an objection to the procedure of action of the commissioner, except in the case of the witness Shadd, which we have examined and have not found to be material to the question propounded to the witness.

The theory upon which the prosecutor presents his case is that rulings of this nature are not áppealable. With this manifestly we cannot agree, since this court, as the appellate tribunal under the circumstances, will examine the' testimony and pass upon its admissibility and relevancy, and if the evidence did not support the charges would necessarily, under the cases heretofore decided by this court, reverse the conviction, if legal error of a material nature were committed. If it were conceded that the director, from the testimony in the case, was shown to be absolutely prejudiced and disqualified by reason of bias, as is contended by the prosecutor, it would not follow that the duty imposed upon him by- law of trying the defendant upon the charges submitted could be evaded or avoided, for as was held by the learned chancellor in In re Hague, 6 N. J. Adv. R. 1770, “the interest which disqualifies a judge is a direct pecuniary one, or one which involves some individual right or prejudice in the subject-matters of the litigation.” And further, “a prejudice growing out of business, political or social relations is not sufficient to disqualify a judge.” 33 O. J. 1001. And “prejudice against the cause or defense of a party is not a disqualifying prejudice.” And in the same case it was stated that “erroneous rulings against a litigant, even when numerous and continuous, form no ground for a charge of bias or prejudice, especially when they are subject to review; nor are a judge’s expressions of opinion, uttered in what he conceives to be the discharge of a judicial duty, evidence of bias or prejudice.”

The cases generally upon this subject are to the same effect, following the statement contained in 33 G. J. 998, that “while there are di'cia to the effect that at common law a judge may be disqualified on the ground of his bias or prejudice, it is generally held, in the absence of statutory provisions, that bias or prejudice on the part of a judge, which is not based on interest, does not disqualify him.”

The prosecutor in any event, both under the rules of the common law and under the rules and regulations of the police department, quoted in his brief, is entitled to a fair and impartial hearing; and whether he has had such a fair and impartial hearing, upon the entire evidence, after a review by the commissioner, may be dealt with by this court as the reviewing tribunal in the light of all the testimony and the circumstances produced at the trial.

The Home Rule act (Comp. Stat. of N. J. 1911-1924), concedes to the defendant protection against removal for political reasons, or “for any other cause than incapacity, misconduct or disobedience of just rules and regulations, established or which may be established for the police force in such municipality.” Crane v. The Mayor and Aldermen of Jersey City, 90 N. J. L. 109; affirmed, 92 Id. 248; also, Reimer v. Freeholders of Essex, 96 Id. 371; Mannion v. Schwarzkopf, 100, Id. 22. In the latter case Mr. Justice Trenchard, speaking for this court, stated: “The mere fact that the superintendent, following a preliminary and informal investigation of the altercation, and before the formal charge of insubordination was made against the corporal, requested the latter’s resignation; did not disqualify the superintendent to sit as judge at the formal hearing of the charge, he being otherwise qualified to sit, as required by the State Police act.”

These decisions emphasize the fact, as stated in Crane v. Jersey Gity, that no such bias or prejudice as is here alleged can be said to have existed so as to bar or disqualify the trial tribunal from hearing charges against an employe where that tribunal is the only one authorized by statute to hear the charges. In Ayers v. Newark, 49 N. J. L. 170, it was observed that “a policeman under charge is not regarded by the statute as a criminal, but a public agent or servant whose efficiency and fitness for the discharge of his duties may be questioned at any time in the interest of the public, and no mere forms tending to chicanery and delay, rather than substantial justice, should be regarded. The purpose of the law is to secure the service of reliable men to preserve the public peace, not to keep inefficient and litigious men in office until all the forms of criminal cases are observed and every ingenious objection answered.” And, the effect of the finding of such a tribunal under the circumstances, where the testimony is sufficient to warrant the finding and to justify the result before an appellate tribunal, is, as was stated in the Grane case (ubi supra), where the admission of debatable testimony was con sidered, as follows: “The admission of illegal testimony in cases tried by a special tribunal, like the one whose proceedings we are now considering, will not have the effect to invalidate the finding of the tribunal, so long as it appears that there is competent evidence in the case to support such finding.”

The rule of this court has been consistently stated since the decision of Reilly v. Jersey City, 64 N. J. L. 508, as follows: “In reviewing the action of a board of police commissioners this court will not weigh the evidence taken before them for the purpose of reaching an independent conclusion on thé question of the guilt or innocence of the prosecutor.”

While the testimony in this case is very voluminous, we have given it full and due consideration, keeping in mind that, as the reviewing tribunal, the question before us really is not whether the director was biased, but whether upon the whole case there was testimony sufficient to justify his conclusion in removing the prosecutor. It is not within our province, under the decisions already referred to and others that might be cited, to review the entire evidence with a view of ascertaining whether or not we might reach a different' conclusion from that reached by the director, but, as was observed in another case, the rule is well settled as follows: “If the court were not circumscribed and limited in its duty in this instance by the well-settled rule of law applicable to cases of this character, it might properly be urged to weigh the testimony and, if possible, reach a conclusion different from that- which has been reached by the trial tribunal. But the settled rule of law is that if there be evidence upon which the trial tribunal may reasonably be found its conclusion of guilt or innocence, this court will not reverse the judgment by weighing the testimony for the purpose of forming an independent judgment. If the judgment of the trial court can be fairly supported by the record, the duty of this court is af an end so far as further investigation is concerned.” Martin v. Smith, 125 Atl. Rep. 142; citing Reilly v. Jersey City, and Crane v. Jersey City, ubi supra.

It is doubtful if we can conclude the opinion in the case at bar with a statement more applicable than that contained in the case of Martin v. Smith, as follows: “The police department of our cities, however, is built upon a plane of public efficiency which has ordinary truth and morality as its base; and when these essential elements of public probity be lost, the department shall have lost not only the confidence of the community but the fundamental mainstay and support which is necessary to its effective and satisfactory operation.”

Invoking this reiteration as to the finality of the rule of law we conclude that there is testimony in the case of bar sufficient to warrant the judgment of the director, and for that reason his judgment should be affirmed.


author: Pee Curiam.

text:
    PARAMOUNT UPHOLSTERING WORKS, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. MORRIS DAVID AND HELEN DAVID, DEFENDANTS-APPELLEES.
    Decided February 4, 1929.
    Before Justices Trenohard, Kalisch and Lloyd.
    Eor the appellant, George Rothstein.

    Eor the appellees, Samuel Hirschberg.

   Pee Curiam.

This cause came on for trial before Judge Carrick, sitting with a jury. The plaintiff-appellant sued to recover $442, the balance of the purchase price of two suites of upholstered living room furniture, consisting of six pieces, which were to be manufactured by it. At the time of the contract a deposit of $50 was paid by the defendant-appellees. The latter counter-claimed for the $50 alleging the contract had been breached by the plaintiff. The jury found a verdict on behalf of the defendants on their counter-claim for the sum of $50.

Counsel for the plaintiff below requested the court to charge as follows: “Sale of Goods act, page 4657, section 43; apart from contract, usage or trade, the place of delivery is the seller’s place of business.”

Page 4658, section 4'6: “Where, in pursuance of a sale, the seller is authorized or required to send the goods to the buyer, delivery of goods to the carrier for the purpose of transmission to the buyer is deemed to be a delivery of the goods to the buyer [except as in section 19, rule 5].”

Page 4659, section 47, rule 3 : “Where goods are delivered to a carrier by the seller, upon terms that the goods shall not be delivered by the carrier until he has paid the price, the buyer is not entitled to examine the goods before payment of the price.”

The court declined so to charge, to which ruling the plaintiff prayed, and was granted an exception.

It is to be observed that the plaintiff’s exception was, in substance, a general exception to the court’s charge.

The second request was not properly stated. It did not embody all of the instructions which the court was asked to give, but requested the court to incorporate in it section 19, rule 5, of the Sale of Goods act. Hence, that request was bad. We think the other two requests were good.

As has been observed, the exception taken was a general one, to the denial of the court of the requests, and of course, if one of the requests is bad, the exception fails. In Thibodeau v. Hamley (Court of Errors and Appeals), 95 N. J. L. 180, the headnote reads: “If an exception to the judicial charge embraces several legal propositions, and any of them be unpoint out the faulty one is fatal. See Gardner v. State, 55 exceptionable,, the exception fails. Counsel must put its finger on the erroneous proposition and thus point the mind of the judge to it; if he challenges any part of the charge in bulk assigning no reason for such challenge, and a bill is allowed on the point, the risk of any legal ingredient being found in such bulk is that of the party so excepting.”

This being true the converse would follow if several requests are handed to the trial judge, some of which are good and some of which are faulty, an exception which does not point out the faulty one is fatal. See Gardner v. State, 55 N. J. L. 18, headnote 6; State v. Contarino (Court of Errors and Appeals), 92 Id. 382.

The views expressed lead to an affirmance of the judgment.


text:
    THE SIXTY-SEVEN SOUTH MUNN, INCORPORATED, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF NEW JERSEY ET AL., DEFENDANTS.
    Argued January 17, 1929
    Decided January 30, 1929.
    Before Justices Mtntuen, Black and Campbell.
    For the prosecutor, Osborne, Cornish & Scheck and Merrilt Lane.

    For the defendants, J. 0. Bigelow and William, H. Speer.

   Per Curiam.

A rule to show cause was allowed in this case, why a writ of certiorari should not issue to review an order made by the public utility commissioners, dated December 13th, 1928. Our reading of the record and a consideration of the oral argument made at the hearing lead us to the conclusion, that a writ of certiorari should be allowed to review such order.

The writ of certiorari is, therefore, allowed.


author: Pee Cubiam.

text:
    BOARDWALK HOTELS CORPORATION, RELATOR, v. JOHN W. CONWAY, SUPERINTENDENT, ETC., ATLANTIC CITY ET AL., DEFENDANTS.
    Argued January 16, 1929
    Decided January 30, 1929.
    Before Justices Mintubn, Black and Campbell.
    Eor the relator, Merritt Lane.

    Eor the defendants, Joseph B. Pershie.

   Pee Cubiam.

A rule to show cause was allowed in this cause; wiry a writ of mandamus, alternative or peremptory, should not issue to the authorities of Atlantic City commanding them to issue to the relator a permit for the erection of an hotel, upon the property located _ in Atlantic City, known as the “Gordon Pier.”

Our reading of the depositions taken under the rule allowed in the case and to be used at the argument of the rule leads us to the conclusion that an alternative writ of mandamus should issue, and this will be the order of the court.


text:
    THE STATE OF NEW JERSEY v. THOMAS A. ARCHIPLEY.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintuen, Black and Campbell.
    Eor the state, Abe J. David and Walter 0. Tenney.

    Eor the defendant, John W. McGeehan, Jr.

   Pee Cubiam.

The application for the writ of certiorari is denied.


text:
    THE STATE OF NEW JERSEY v. JOHN W. KUGLER.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintuen, Black and Campbell.
    Eor the state, Abe J. David and Walter G. Tenney.

    Eor the defendant, John W. McGeehan, Jr.

   Pee Cueiam.

The application for the writ of certiorari is denied.


text:
    BENDETTO SCHEPS v. SCHUYLER C. VAN CLEEF ET AL.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintuen, Black and Campbell.

      Contra, John E. Toolan (Schuyler C. Van Cleef pro se).

    Eor the applicant, Thomas W. Brown.

   Pee Cueiam.

We conclude that the reasons and grounds urged under this rule are sufficient to warrant the allowance of the writ applied for.

' The writ will therefore be allowed.


author: Baches, Y. C.

text:
    Harry B. Goldenstein, complainant, v. Marlboro Construction Company, Incorporated, et al., defendants.
    [Decided March 2d, 1929.]

      Mr. Rudolph Hartman, for the complainant.

      Messrs. Burlaw & Currie, for the defendant Crouse.
   Baches, Y. C.

Crouse, a subsequent judgment creditor, attacks the priority of the mortgage under foreslosure on the ground that the execution of the mortgage, given by a corporation, was not properly proved, was therefore improperly recorded, and, hence, was not constructive notice. The mortgage was recorded May 23d, 1927; the judgment was recovered March 19th, 1928. Crouse purchased the premises under execution of his judgment. The certificate of proof of the execution of the mortgage is irregular, but that it is insufficient need not be passed upon for it conclusively appears that the judgment creditor had actual notice. In the suit in which his judgment was recovered, on a mechanics’ lien claim, he made the complainant a party and in the complaint recited the mortgage. Our recording acts invalidate unrecorded, and, of course, improperly recorded mortgages only as to subsequent judgment creditors without actual notice of the mortgage. Comp. Slat., pp. 1553, 3414; Brinton v. Scull, 55 N. J. Eq. 747; Majewski v. Greenberg, 5 N. J. Adv. R. 566. The priority of the mortgage is established. There will be a reference.