author: Siegler, J.

text:
    Juvenile and Domestic Delations Ct., Essex County.
    IN THE MATTER OF THE SUPPORT OF ELIAS BEDFORD IN THE ESSEX COUNTY HOSPITAL FOR THE INSANE AT OVERBROOK.
    Decided July 10, 1933.
    Before Judge Joseph Sieglee.
    Eor the petitioner, county of Essex, Arthur T. Vanderbilt, county counsel.
    Eor the respondent, Seymour '& Seymour (by Arthur B. Seymour).
   Siegler, J.

This is a proceeding on a petition filed by the county of Essex, praying that an order dated May 8th, 1928, committing Elias Bedford as a patient at the Essex County Hospital for the Insane at Overbrook, be amended to read— first, that Elias Bedford had sufficient estate for his support and maintenance at the time of his commitment and, therefore, was non-indigent at the time; second, that the estate of Elias Bedford be charged for the payment of the board and maintenance of Elias Bedford at the per capita cost rate from the time of his commitment, on March 19th, 1928, when a temporary order of commitment was made; and, third, that an order be made requiring Clifford E. Bedford and Edward J. Bedford, guardians of Elias Bedford, to pay the county of Essex such amount as shall be ascertained to be due the county of Essex for such board and maintenance.

A brief recital of the facts upon which this application was made will serve to a better understanding of the issues involved. Elias Bedford was admitted to the Essex County Hospital at Overbrook, as an insane patient, on a temporary order of this court, on March 19th, 1928, and confined there until final order of commitment entered by this court on May 8th, 1928. He was committed to the Essex County Hospital as an indigent patient, and has been such patient since March 19th, 1928, and has been supported as an indigent patient, at the charge and expense of the county of Essex, as was provided for in the order of commitment. The order of commitment and the finding made by the court that Elias Bedford was indigent were based upon the testimony of his then wife, Anna Bedford, taken before the Esssx county adjuster on May 8th, 1928. The county of Essex now contends that the testimony of Anna Bedford, the wife, was false and a fraud on the court, and that Elias Bedford, in fact, had financial ability and an estate which could pay for his board and maintenance at the hospital. The respondent, here represented by Clifford E. Bedford and Edward J. Bedford, filed an answer admitting the fraudulent testimony of Anna O’Brien Bedford, the wife, in the following allegation in paragraph 3:

“The commitment of said Elias Bedford to the Essex County Hospital for the Insane as an indigent patient was procured by the fraudulent testimony of said Anna O’Brien Bedford, and her estate should be charged with the support of said Elias Bedford at the time of his commitment, if such a charge can legally be made.”

This admission disposes of the question of fraud upon the' court when the commitment was made. It is immaterial, for the purposes of this proceeding, whether the order was obtained through the testimony of respondent’s wife or some other material witness. The fact remains that the finding of Elias Bedford as indigent was fraudulently obtained. This leaves the question of the indigency of Elias Bedford as of the time of the order open for adjudication now. Respondent further sets up in his answer the claim that the estate of Anna O’Brien Bedford, the wife of respondent, should be charged with the support of Elias Bedford from the time of his commitment. There has been no authority furnished me, nor have I been able to find any, that will support this contention. There might have been some merit to this claim were it established that Elias Bedford had no estate which could have been made liable for his board and maintenance. This is not such a situation.

The answer further sets up the claim that Elias Bedford is not legally chargeable with the payment of the per capita cost rate from the time of his commitment, nor for his board and maintenance, nor are his guardians so liable, and that the per capita cost rate is not a reasonable sum for the support of the said Elias Bedford, and the per capita method is not the proper method for ascertaining such reasonable sum, and, further, sets up the claim, which is not embraced in the answer but will be considered as part of the answer, that this court has no jurisdiction to determine the amount due for board and maintenance excepting by plenary action at law and a trial by jury. This practically presents the position of both sides in this controversy.

The answer admits paragraphs 1, 2 and 3 of the petition, and these are the facts upon which the first question is involved; that is, whether or not Elias Bedford was indigent or non-indigent. It appears that, in 1918, Bridget Bedford, the respondent’s first wife, died intestate and left a two-family house, the title to which descended to Clifford F. and Edward J. Bedford, sons, subject to the curtesy right of this respondent. On October 23d, 1919, respondent remarried with one Anna O’Brien. For a period of eight years following this marriage, Elias Bedford accumulated money savings, which were deposited in a bank in the joint names of himself and his then wife, amounting to over $5,000. Upon the death of Anna O’Brien Bedford, on October 13th, 1930, the sum of $5,000 or more was claimed by one Mary Kennedy, as beneficiary under the will of Anna O’Brien Bedford. This claim was litigated by the two sons of Elias Bedford in a proceeding brought in the Court of Chancery of Mew Jersey. This suit did not go to issue, but was adjusted, or compromised, resulting in the payment of $5,000 out of Mrs. Bedford’s estate, which was placed in the estate of Elias Bedford, represented by Clifford F. Bedford and Edward J. Bedford as guardians. There is now in the estate of Elias Bedford the sum of $4,000, subject to such liabilities as are or may become outstanding against his estate.

It is clear, therefore, and I find as a fact, that Elias Bed-ford was non-indigent and was financially able, at the time of his commitment to the Essex County Hospital at Over-brook for the Insane, to pay for his board and maintenance. The order of indigency made by this court was obtained by false testimony, and, therefore, is invalid. I hereby declare it void and of no effect. An order will be entered changing the status of Elias Bedford from indigent to non-indigent.

The next point to be considered is the liability of an insane patient for support. In 32 Gorp. Jur. 686, § 373:

“Liability for supporting insane persons may be, and often is, imposed by statute upon various public authorities upon certain conditions. This liability being statutory, the particular public authorities can be held liable in no case, and in no other manner, except as prescribed by statute.”

Citing, with approval, Mercer County v. Warren County, 23 N. J. L. 415.

32 Corp. Jur. 687, § 374: “While there is some dicta to the effect that, under the common law, the estate of a lunatic was liable lor his maintenance at public expense, the statutes conferring the right on public authorities to sue, being merely declaratory of the common law and providing a remedy for the collection of an existing debt, it is generally held that at common law, and in the absence of express contract or deception as to the ability to support himself, the public authorities may not recover from the lunatic or his estate the expenses incurred on his account, neither can they recover from those liable to support him; but the right of action may exist only by statute imposing a personal liability for such support.” Citing, with approval, Jones County v. Norton, 91 Iowa 680; Warren County v. Harden, 95 N. J. L. 122; 112 Atl. Rep. 196; Oneida County v. Bartholomew, 82 Hun 80; affirmed, 151 N. Y. 655.

Quoting further from the same section:

“It being the policy of the state that the estates of lunatics shall be appropriated to their proper maintenance before they can be supported at public expense, the legislature may, and they often do, permit the public authorities to recover the expenses incurred in support of an indigent insane person from his estate, or from those liable for his support, or from other public authorities liable therefor. * * * The right of recovery being statutory, the authorities must bring themselves within the purview of the statute.” Citing, with approval, State v. Ikey, 84 Vt. 363; 79 Atl. Rep. 850; Chapin v. Kelly, 196 Mass. 66; Warren County v. Harden, 95 N. J. L. 122; 112 Atl. Rep. 196; Burlington County v. White, 105 Atl. Rep. 730; Camden County v. Ritson, 68 N. J. L. 666; 54 Atl. Rep. 839.

This being the established rule at common law, we must look to the statute for guidance and direction with respect to the liabilities, if any, owing from the estate of an insane patient committed to a public institution for reimbursement for maintenance and care. Elias Bedford was committed and admitted to the Essex County Hospital at Overbrook by virtue of the provisions of chapter 147, section 430, laws of 1918, which provide as follows:

“430. If the judicial officer shall determine that the patient is insane and has sufficient estate to pay for his full maintenance as fixed by the board of managers or board of chosen freeholders, as the case may be, or if the person or persons legally liable for his support as herein provided, are able to pay for his maintenance, fixed as aforesaid, said judicial officer, after determining the legal settlement of such patient, may, in his discretion, commit such patient to any state or county institution for the care and treatment of the insane in this state. In the final order of commitment he shall direct that the care and maintenance of such patient in the institution designated in said order shall be paid out of the estate of the patient or by the person or persons chargeable by law with his support, or by contract, as the case may be, and such order shall specify the amount per week which shall be paid thereunder, and shall, in the discretion of the judicial officer, contain such direction as may seem proper concerning security to be given for such payment. Provided, however, that nothing contained herein shall be construed to prevent such judicial officer from ordering the payment out of the estate of such patient, or by the person or persons legally liable for his support, of any part of the cost and expense of the care and maintenance of any indigent patient in any state or county institution, and such sums shall be collected by the county collector of such county and shall be paid to the state treasurer in the case of state indigent patients, or to the board of chosen freeholders in the case of county indigent patients.”

This section, as amended by chapter 332, paragraph 1, pages 751, 752, laws of 1929, among other things, provides:

"In the final order of commitment, he (the judicial officer) shall direct that the care and maintenance of such patient in the institution designated in said order shall be paid out of the estate of the patient or by the person or persons chargeable by law with his support, or by contract, as the case may be, and such order shall specify the per capita cost of maintenance as fixed from time to time by such institution, which shall be paid thereunder,” &c.

It is the clear policy of the state, under this statute, where a patient has an estate, that the order be for full payment against his estate upon a per capita cost basis as fixed from time to time by such institution. To the extent authorized by this statute, the rule is in derogation of the common law.

An examination of section 441, as amended by chapter 322, laws of 1929, at page 753, shows:

“The minimum rate of payment for the maintenance of any non-indigent patient shall be fixed by the board of managers or the board of chosen freeholders, or a committee thereof, .at the per capita cost rate of maintenance at said institution, and shall be construed to be a reasonable charge for the care and treatment of any such patient and for necessaries advanced to any such patient.”

This statute, in unmistakable language, gives us the method by which the court is governed in fixing the cost of maintenance of the insane. It is not left to guess or speculation, nor is it placed within the discretion of the court. It must be based on evidence from those at the institution who are charged with the responsibility of disbursing the money appropriated for its care and maintenance. The petition in this cause is supported by such evidence. The county of Essex produced, as a witness, Herbert Walker, who gave his testimony and was subjected to cross-examination before this court in this proceeding. Mr. Walker is the chief clerk of the Essex County Hospital at Overbrook, the place of confinement of the respondent. He has charge of compiling and making up what are frequently termed the per capita costs, for the maintenance of patients at that institution. He explains how he arrives at the per capita costs, and illustrates how the per capita cost is established. He fixes the per capita cost for this patient over the period of his confinement by showing that, in 1927, it cost the county of Essex $1,336,035.05 to operate the institution; that the average daily number of patients in the wards was two thousand forty-five and five-tenths; he divides this number into the larger amount and then multiplies it by seven, which gives the weekly amount, and arrives at the per capita cost per week for the year 1928, $12.89; 1929, $12.63 per week; 1930, $12.04 per week; 1931, $11.68 per week; 1932, $10.39 per week.

The authority of this court to fix an order is governed by the method provided in the statute, and when, as in this case, the estate of the inmate is sufficient to meet this responsibility, the court has no alternative but to base the order on the minimum rate, which the statute clearly intends to be the per capita cost rate of maintenance, “which shall be construed to be a reasonable charge.”

The respondent claims that a reasonable cost should be ascertained by a method other than that provided for in the statute, and that the court has the right to fix any amount that may be just and equitable after consideration of the ability of the inmate or his estate. There is no merit in either of these contentions, for the reason that, where an inmate is non-indigent and has an estate sufficient to pay, the provisions of the statute apply, and no other method can be adopted; and for the further reason that, only in a case where the patient or his estate is found unable to pay the per capita cost, can the court fix a lesser amount consistent with the ability and the capacity of the estate to pay. If these two methods fail, then those secondarily liable under the statute can be made to pay according to their ability; that is to say, the sons and daughters or others liable for his support.

The next point raised by the respondent is that the court cannot make an order which will oblige the respondent to pay for his support from the time of the commitment, but that this must be from the time of the change of status (from indigent to non-indigent). There is no merit in this contention, because this is fully provided for, in clear and unmistakable language, in section 444, chapter 147, laws of 1918, page 393, as follows:

“444. When any patient shall he committed to any state or county institution as an indigent patient, and it shall subsequently appear that such patient, or some person chargeable with his care and maintenance as provided for in this act, is able to pay all or any part of his care and maintenance, mcludmg arrearages, it shall be the duty of the attorney-general pr the county counsel, as the case may be, as soon as he shall obtain such information, to apply to the judicial officer for the reopening of the matter, and such judicial officer shall have the power at any time, in his discretion, to reopen the case, take additional testimony and inquire into the facts, and may commit such patient as a non-indigent patient if there shall be sufficient moneys to pay his full maintenance, as fixed by the management of the institution, and!, make such further order requiring the estate of such patient or the person or persons so chargeable by law to pay such amount for the care and maintenance of such patient as shall be specified in said order, and shall make such further order as may be necessary.”

To the court is given express power, in this provision, to “make such further order requiring the estate of such patient or the person or persons so chargeable by law to pay such amount for the care and maintenance of such patient as shall be specified in said order, and make such further order as may be necessary.” This court, therefore, derives the power from this statute, not only to order arrearages for maintenance of the inmate to be paid, but to make such order requiring the estate of such patient so chargeable by law to pay such amount for the care and maintenance of said patient. This obligation is legally the responsibility of the estate of the inmate, and is to be paid by the guardians. It was so intended when the following statute was enacted: Section 433 of the laws of 1918, page 388, which provides as follows:

“433. In all cases where, on final hearing, it appears that the patient is possessed of real or personal property and no arrangements have been made for the payment of such patient’s maintenance, and no application has been made for the appointment of a guardian of the estate of such patient, an application may be made to the Court of Chancery, and such court shall have power to appoint some competent person, resident in this state, guardian of such estate during such commitment, whose duty it shall be to conserve such estate for the purpose of maintaining such patient in the institution in which he may be lawfully confined, and such guardian is hereby authorized to pay such maintenance under the direction of such court * *

By an earlier statute, it was also declared the policy of the state that the personal estate and income from real estate of an incompetent should not be preserved for inheritance by others while the costs of maintenance and debts of the incompetent are unpaid. Revision of 1877, page 601; 2 Comp~ Stat., p. 2781.

The estate under consideration in this case has $4,000' in cash in its possession, which is responsible for any debt or obligation of Elias Bedford and continues to be liable so-long as there are sufficient funds in the patient’s estate to pay for support and maintenance on the basis provided for in the statutes outlined here. It is the duty of the guardians to use all of the money for that purpose. It is no answer to this claim to say that all of this money would be exhausted if the accumulated arrearages were to be satisfied out of this fund, for the reason that, if the fund in the hands of the guardian is used up, the statute makes provision for the reopening .of the case to reduce the payment to such sum as might be able to be paid by the estate of the patient or those secondarily liable — in this case, the patient’s children — and makes further provision that, if the patient or those secondarily liable are unable to pay, then the court is obliged, under the law, to change the status of the patient to that of an indigent patient ■ and direct that the costs and expense of his maintenance be placed upon the county. The statute merely declares that which is moral and just and which, without the statute, should dictate itself as a proper thing to be done when society undertakes to care for the mental or physical deficiencies of its inhabitants when they have financial capacity to pay for this care, support and attention. There is nothing new or novel in this responsibility. This is the acceptable standard in all relationships in society.

The last point made by the respondent was that he would be deprived of the constitutional guaranty of a right to trial by jury. There is no merit to this contention. This is not the type or the kind of action considered recognizable under this guaranty. This right depends entirely upon the recognition that was afforded.at the common law before the constitution was adopted or upon anjr legislative sanction expressly provided for in the statute. It is well settled that our constitutions did not enlarge the right to trial by jury which existed at their adoption; they- were designed merely to preserve it inviolate in cases where it was previously enjoyed. McGear v. Woodruff, 33 N. J. L. 213; Howe v. Plainfield, 37 Id. 145.

This kind of action did not exist at the time of the adoption of our own state constitution nor at the time of the adoption of the federal constitution. The language of Mr. Justice Depue, in McGear v. Woodruff, supra, is pertinent here:

“ ‘The right of trial by jury shall remain inviolate/ * * * It was not intended to introduce trial by jury in cases where it did not exist before, but merely to preserve it inviolate in cases where it existed at the time of the adoption of the constitution.”

This was adopted, with approval, in In re Application for Drainage of Lands, &c., 35 N. J. L. 507; Edwards v. Elliott, 36 Id. 449; Howe v. Plainfield, supra; Sparks v. Stokes, 40 Id. 487; Shivers v. Newton, 45 Id. 469.

The only case which, at first blush, seems to conflict with the foregoing authorities, but which, on examination, will be found not out of accord, is Greely v. Passaic, 42 N. J. L. 429.

In the case of Slate Board of Medical Examiners v. Buettel, 102 N. J. L. 74; 131 Atl. Rep. 89 (at p. 91), this court adopts the language of McGear v. Woodruff, supra: “The fact that the suit is a civil suit does not settle the question of the right to trial by jury. There may be cases where it would be competent for the legislature to prescribe a summary proceeding in a civil suit even where, as at common law and at the time of the adoption of the constitution of 1844, penalties were recoverable by the ordinary action of debt.”

“Our business at present is to ascertain how far the right to a trial by jury extended — to what controversies it was applicable. It was a right — the title to which was founded upon usage — and its measure is therefore to be sought in the usage which prevailed at the time when it was asserted. But never in England was there any usage, and, consequently, was there any right in the subject, that every litigated question of fact should be submitted to a jury. In all that large class of cases which are cognizable in courts of equity, there never was any right of trial by jury, nor did the right extend to many other,civil and criminal proceedings. Summary convictions for petty offenses against statutes were always sustained, and they were never suffered to be in conflict with the common law right to a trial by jury. The ancient as well as the modern British statutes at large are full of acts of parliament authorizing such convictions, without referring to those which have been passed against non-attendance upon public worship of the established church, against refusal to take oaths of allegiance, against profaneness, and embezzlement, all of which provided for conviction and punishment of offenders without the intervention of a jury, it may suffice to notice the vagrant acts and the proceedings under them.” Howe v. Treasurer of Plainfield, supra; Byers v. Commomwealth, 42 Pa. St. 89.

Appropriate language was used on this question in the ease of Minneapolis and St. Louis Railway Co. v. Bombolis, 241 U. S. 211 (at p. 219), speaking through Chief Justice White:

“It is true that the right to a jury trial which the seventh amendment secures is a substantial one, in that it exacts a substantial compliance with the common law standard as to what constitutes a jury, but this truth has not the slightest tendency to support the contention that the substantial right secured extends to, and is operative in, a field to which it is not applicable and with which it is not concerned. A statutory proceeding before a special tribunal, to determine claims against a city which have no legal obligation, is not a suit at common law within the meaning of the United States constitution, seventh amendment.” Citing Guthrie National Bank v. Guthrie, 173 U. S. 528.

It was said in the case of Ex parte Wall, 107 U. S. 289, 290, that:

"It is a mistaken idea that due process of law requires a plenary suit and a trial by jury in all cases where property or personal rights are involved. (Italics mine.) The important right of personal liberty is generally determined by a single judge on a writ of habeas corpus, using affidavits or depositions for proofs, where facts are to be established; assessments for damages and benefits occasioned by public improvements are usually made by commissioners in a summary way; conflicting claims of creditors, amounting to thousands of dollars, are often settled by the courts on affidavits or depositions alone; and the courts of Chancery, bankruptcy and admiralty administer immense fields of jurisdiction without trial by jury. In all eases, that kind of procedure is due process of law which is suitable and proper to the nature of the ease, and sanctioned by the established customs and usages of the courts. ‘Perhaps no definition/ says Judge Cooley, ‘is more often quoted than that given by Mr. Webster in the Dartmouth College case: “By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial.” The meaning is that every citizen shall hold his life, liberty and property and immunities under the protection of the general rules which govern society.’ The question of what constitutes due process of law within the meaning of the constitution was much considered by this court in the case of Davidson v. New Orleans, 96 U. S. 97, and Mr. Justice Miller, speaking for the United States Supreme Court in that case, said: ‘It is not permissible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has by the laws of the state a fair trial in a court of justice according to the mode of procedure applicable to such a case.’ ”

There is no authority that was presented by respondent’s counsel to support his contention; nor was the court able, after a searching investigation of the authorities on this subject, to find any ease, in this state or elsewhere, that justifies the claim made by the respondent. The great weight of authority is that no such right was recognized, and, therefore, the constitutional provision of the federal constitution and of the state constitution does not apply to this kind of action. There was no such right recognizable at the common law, and certainly there is no statute which creates such a right under which the respondent can claim support, and, therefore, there cannot be a denial of trial by jury.

There will be an order entered upon the estate of Elias Bedford to pay the county of Essex the per capita cost of his maintenance for 1928 at the rate of $12.89 per week; for 1929 at the rate of $12.63 per week; for 1930 at the rate of $12.04 per week; for 1931 at the rate of $11.68 per week; for 1932 at the rate of $10.39 per week; the calculations to commence' from March 19th, 1928.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CARL H. LOENNECKER ET AL., PLAINTIFFS-RESPONDENTS, v. BENJAMIN CASSER, JULIUS CASSER AND NATHAN EISGROU, DEFENDANTS.
    Submitted January 27, 1933
    Decided July 10, 1933.
    Before Justices Bodine and Donges.
    For the appellant, Abram A. Lib son.

    For the respondents, Joseph Frederick Bratt.

   Per Curiam.

This is an appeal from the Bergen Common Pleas. The suit was for the balance due plaintiffs on the purchase price of certain shares of stock of Westwood Bus Lines, Incorporated, alleged to have been sold to defendants. The trial judge sat without a jury and found for the plaintiffs against the defendants Benjamin 'Casser and Nathan Eisgrou. Casser appeals.

Four grounds of appeal are written down but the appellant states that the sole question is whether he participated in the transaction as a principal, who would be liable on the contract of purchase, or as agent for Eisgrou, in whose name the stock was taken. The trial judge found as a fact that he was a principal, and if there be evidence, however slight, to support this finding, it will not be disturbed on appeal. There was evidence to the effect that Benjamin Casser was the actual purchaser and that the stock was put in the name of Eisgrou as an accommodation to Casser because of some agreement he had with the Public Service Corporation growing out of the sale by him to the Public Service Corporation of another bus line.

The judgment is affirmed, with costs.


author: Jayne, C. C. J.

text:
    CONSTANCE K. SAWICKI, AN INFANT, BY HER NEXT FRIEND, JOSEPH SAWICKI, PLAINTIFF, v. STEPHEN SLAHOR, DEFENDANT.
    Union County Circuit Court.
    Decided July 21, 1933.
    For the rule, Joseph B. Sugrue.

      Gonim, Julius E. Ealprin.

   Jayne, C. C. J.

The complaint in this action alleges that on or about December 1st, 1930, both the plaintiff and the defendant were unmarried, and that on or about that date, the defendant, with intent to deceive the plaintiff, falsely and fraudulently promised and agreed to marry the plaintiff, and thereby induced the plaintiff to promise and agree to marry him and to have sexual intercourse with him; that the plaintiff thereafter became pregnant and ultimately gave birth to a child, and the defendant has refused to marry the plaintiff, all to the damage and injury of the plaintiff. More succinctly stated, the complaint alleges a mutual promise of marriage between the parties procured by the fraud of the defendant, the seduction of the plaintiff by means of the false promise of marriage and the refusal of the defendant to marry the plaintiff.

This action was regarded at the trial, and properly so, as an action ex contractu and not ex delicto. To this complaint, an answer was filed in behalf of the defendant in which tfye allegations of the complaint are generally denied and in which the infancy of the defendant is asserted as an additional defense.

The trial resulted in a verdict in favor of the plaintiff in which she was awarded $7,500 damages. The defendant has a rule to show cause why this verdict should not be set aside, pursuant to which it is argued in behalf of the defendant that the verdict is contrary to law and to the weight of the evidence, and that the damages so allowed are excessive.

It must be assumed that the jury concluded from a consideration of the testimony that an agreement was in fact entered into between the plaintiff and the defendant arising •out of their mutual promise to marry and that the defendant, without justifiable cause, demonstrated his unequivocal intention not to perform the agreement to marry. To this extent, the conclusion of the jury cannot be said to be so manifestly •contrary to the weight of the evidence as to justify its disturbance. To argue to the contrary would be but a mere banquet of words. In the witness chair, the denials of the defendant were obviously artificial. The real pressure of the argument now made for the defendant is applied more particularly to the contention that the uncontroverted testimony disclosed that the defendant was an infant at the time of the alleged promise to marry the plaintiff, and that accordingly his plea of infancy should have liberated him from all liability to the plaintiff for the breach of any such promise. It may well be that the infancy of the promisor at the time •of the making of the promise to marry may be available, subject to recognized exceptions, as a defense in an action against the infant for a breach of promise to marry. Corbin v. Gomes, 142 Atl. Rep. (R. I.) 328; 9 C. J. 323; 57 L. R. A. 684. The privilege of infancy will not enable an infant to escape liability on his contractual obligations in all cases and under all circumstances. The classification of such contracts and the lines of distinction separating the enforceable from the unenforceable are readily harvested from the books. It is sufficient here to say that a youth of sufficient age and capacity to fully comprehend the nature, significance and probable consequences of his contractual undertaking, who has procured the making of such agreement by fraud, acquired the benefits thereof and retained them, may encounter, even in a court of law, the doctrine of estoppel in his effort to escape liability. LaRosa v. Nichols, 92 N. J. L. 375; 105 Atl. Rep. 201. In the instant ease, the defendant was nineteen years of age at the time of his alleged promise to marry the plaintiff. The plaintiff was seventeen years of age.. Testimony was adduced evidencing those, associations between the plaintiff and the defendant which customarily forecast a future intermarriage. The romance began in the summer of 1930 and definitely terminated in February, 1931. The story in this case which the jury was justified in accepting as true is that in the fall of 1930, the defendant began to assure the plaintiff of his love and affection for her and of his desire to marry her. His attentions became more affectionate and he enlarged his claim upon her society to the exclusion of other . possible suitors. On the night of December 5th, 1930, the parties motored to some suburban place of seclusion,' where the defendant is said to have more vehemently protested his love for the plaintiff and to have assured her that he was “old enough and strong enough to take care of her; that he had already accumulated $300 and that he would marry her.” With such assurances of future wedlock, the plaintiff yielded to his embraces.. Her surrender was obviously not unconditional. . She. relied upon the terms. At the moment, no. oath could have been holier to her than his.

The defendant continued to “keep company,” with the plaintiff until , the mother of the plaintiff, in a .somewhat, volcanic manner, imparted to him the knowledge of the pregnancy of the plaintiff. His adventure had resulted disastrously. He terminated. his .associations with the plaintiff at once. He declined to financially assist the plaintiff in defraying the expense of her prospective, confinement because he had. no money. His story about the $300 was. fiction. He informed the plaintiff herself that he had never intended to marry her. It will thus be observed that there was testimony from which the jury might reasonably and legitimately infer that the defendant had promised to marry the plaintiff with no then present intention to do so; that he seduced her by means of this false promise, and that he has persistently refused to perform his promise. Such conduct on his part was fraudulent. Perry v. Orr, 35 N. J. L. 295; Polhemus v. Melides, 96 Id. 105; 113 Atl. Rep. 593. The law, therefore, must be applied to the facts deemed to be established by the testimony. Incidentally, it is the existence of different facts in the many cases that prevents the adoption of a fixed and uniform rule. Assuming the facts to be as hereinbefore related, the privilege of infancy would assume more of the appearance of a sword than of a shield. Restoration is impossible. The question of fraud on the part of the defendant was specifically submitted to the jury under instructions most liberal to the defendant. The solution of this question by the jury, unfavorably to the defendant, is abundantly supported by the testimony. The defendant accomplished his desired purpose to the irreparable injury of the plaintiff by virtue of an agreement, the making of which he knowingly procured by his own willful fraud. In the circumstances of this case, he was' estopped from successfully availing himself of the privilege of infancy. The verdict is therefore neither contrary to law in the respect claimed nor contrary to the weight of the evidence.

Moreover, it is argued that the damages awarded to the plaintiff by the jury are excessive. In actions for breach of promise to marry, the award of damages cannot be judged by the application of the rules that ordinarily govern the allowance of damages in contract cases. The award in a breach of promise case such as this may embrace compensation to the plaintiff for the injury to her affections, reputation, future prospects of marriage, for her altered social condition, her shame, mortification, mental distress and suffering. In the instant case, the jury was made aware of the seduction of the plaintiff. Coil v. Wallace, 24 N. J. L. 291. Verdicts as high as $20,000 in such cases have not been regarded as excessive. Campbell v. Fitzsimmons, 4 N. J. Mis. R. 937; 134 Atl. Rep. 898. The moderate social and financial standing of the parties to this action is emphasized as a reason for the reduction of the damages. The allowance of $7,500 may be generous, having regard to the circumstances of the parties and their social positions, but the award is not so large as to justify the interference of the court.

The rule to show cause must accordingly be discharged.


text:
    GILBERT WILSON, BY NEXT FRIEND, AND WILLIAM WILSON AND ABIGAIL WILSON, RESPONDENTS, v. JOSEPH DESCHNER ET AL., TRADNG AS J. DESCHNER & G. SCHRIEVER, APPELLANTS.
    Submitted May 12, 1933
    Decided July 20, 1933.
    Before Justices Paekeb, Lloyd and Peeskie.
    For the appellants, Collins & Corbin.

    For the respondents, no appearance.
   Per Curiam.

The case was submitted on briefs, and we have only that for the appellants.

Appellants were partners in the bakery business, and the plaintiffs’ case was that the infant plaintiff sustained injury by a nail which through negligence of defendants had gotten into a roll sold by defendants to Mrs. Wilson and eaten by the son Gilbert; that the nail became embedded in one of Gilbert’s tonsils and that after it was extracted an operation was required to rectify the damage done. The state of demand laid the damages at $300 for the infant plaintiff, and $200 for his parents per quod.

We take .up first the meritorious points, the first of which (No. 2) is that no negligence was shown, and that the court erred in refusing to direct a verdict for defendant. There was no jury, bnt passing the technical anomaly of the motion we are clear that a fact question was presented. The argument appears to be that there was no proof that the roll contained any nail. But the evidence that the child, sitting at the supper table, took a bite of the roll, choked, spit blood, the doctor was called at once, came promptly, and pulled the nail out of the child’s throat, seems to raise a fair inference that the nail came out of the roll. We are not here concerned, in dealing with a motion predicated on total failure of proof, with questions of weight of evidence and impeachment by prior inconsistent statements. The case resembles Corin v. S. S. Kresge Co., 10 N. J. Mis. R. 489; 159 Atl. Rep. 799; affirmed, 110 N. J. L. 378; 166 Atl Rep. 291.

Point Ho. 3 is that it was error to admit the nail in evidence, as the proof was not sufficient to show that the particular nail was in the roll. Here again reliance is placed on inconsistent prior statements, which might be well enough to consider on a motion for new trial, but on appeal merely raise a conflict of evidence. The testimony on the trial was of the mother, already discussed in part. She said further that the doctor handed the nail to her. The doctor testified to the same effect. The mother said she had handed the nail to counsel and identified it when produced at the trial. Thus it was adequately traced from the boy’s mouth to the court room.

Point 4 is the technical point that the plaintiffs had been nonsuited in a prior action based on the same cause, and had not paid the costs of the nonsuit; and that it was error for the court to refuse to stay the trial when thereto moved. The general rule is of course well settled that a second action will be stayed until the costs of a prior nonsuit are paid; and in this case if the motion had been pressed in due season, no doubt the stay would have been granted. The motion was noticed for a date long prior to the trial, but was not then made, and adjourned from time to time. When the case was actually moved for trial some five months later, defendant then moved for a stay, saying the matter had been carried along by consent adjournments.

We incline to think that there was no legal error in the denial of the motion under the circumstances. To a certain extent, the granting of a stay is discretionary; and if the defendant wishes to invoke the rule, he should do so with reasonable promptness. In 2 Arch. Prac. 993 (7th Eng. Ed.) we read that “the application to stay the proceedings on any of these grounds should be made as soon as possible, and before the plaintiff has incurred further expenses.” In 15 C. J. 307, the text reads (section 755): “According to the earlier decisons, an application for a stay of proceedings might be made at any time before trial, or' even after verdict, but not after judgment, unless in conjunction with a motion to vacate the judgment. Such laxity of practice is not now permitted; the application comes too late when made after the second action has been called for trial, or after pleading to the merits. The application should be made at a period as early as is practicable, to prevent surprise and the unnecessary accumulation of costs.” The old New York cases are somewhat at variance, but in Cuyler v. Vanderwerk, reported in Coleman & Caines 93, and again in 1 Johns Cas. 247, the court said “the defendant is never too late, pending the second suit, before trial, to make his application to stay the proceedings.”

We think it was fairly within the discretion of the District Court to deny a stay, the application for which was delayed until the trial was actually moved, and consequently no error is made to appear.

The judgment must be reversed, however, for error in the record. It has been noted that the damages claimed for the infant were $300 and for the parents per quod, $200. The judgment is that “the said plaintiffs recover against said defendants the sum of $500, and $29.20 costs.” This is a joint judgment in favor of all the plaintiffs for $500 and costs, and the state of demand does not support it. The court below could not apportion it between the claimants nor can we do so in this court, there must therefore be a reversal and remand.

In view of the technical nature of the reversal, we have deemed it advisable to advert, even if somewhat obiter, on the merits of the case.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE PALLITTA ET AL., PLAINTIFFS IN ERROR.
    Submitted January 27, 1933
    Decided June 29, 1933.
    Before Justices Bodine and Donges.
    Eor the plaintiffs in error, J. Victor D’Aloia.

    Eor the defendant in error, Joseph L. Smith.

   Per Curiam.

This writ brings up the conviction of the plaintiffs in error upon an indictment for possession of liquor after a trial at the Essex Quarter Sessions before Judge Yan Biper.

The single question here presented is the propriety of the actions of the court clerk when the jury came in to render ■ a verdict.

What happened was this: After the jury retired to deliberate, Judge Yan Biper instructed the clerk to receive the verdict in his absence and left the court house. Sometime later the jury came into the court room and announced it had reached a verdict. The foreman announced the verdict as “guilty with leniency.” Counsel for defendants demanded that the jury be polled. Nine jurors answered “guilty with leniency;” two “guilty with extreme leniency;” and one “not guilty.” Thereupon the clerk telephoned the judge and was told to send the jury back to reach a verdict.

Later the jury returned and announced a verdict of guilty with leniency. Upon a poll, ten so answered and two mentioned extreme leniency.

The contention is that the clerk usurped, or the judge delegated to him, a judicial function, and that the action was in contravention of the rule in Sockolowski v. Olkowski, 102 N. J. L. 50; 130 Atl. Rep. 514; Folkner v. Hopkins, 100 N. J. L. 189; 126 Atl. Rep. 633, and other cases cited. However, in those cases the jury did return a verdict, that is, some finding upon which they unanimously agreed, and the clerk refused to accept it because, in his view, it did not meet the issues submitted by the proofs and the charge of the court. In the instant case we have no such thing. After the jury was polled it was evident that they had agreed on nothing. It was then the duty of the clerk to send them back, and his action in doing so was ministerial and not judicial. He could do nothing else. The fact that he communicated with the judge and received instructions from him makes no difference one way or the other.

The judgment is affirmed, with costs.


author: Parker, J.

text:
    GUARANTY CONSTRUCTION COMPANY ET AL., PROSECUTORS, v. TOWN OF BLOOMFIELD, CHARLES H. DEMAREST ET AL., RESPONDENTS.
    Decided July 21, 1933.
    Before Justice Parker at chambers, pursuant to statute.
    For the prosecutors, Simon M. Seley.

    For the respondents, Edtoard O. Pettit.

   Parker, J.

The writ brings up an amendment by the municipal body of Bloomfield to the general zoning ordinance of that town. From the zoning map in evidence I gather that in the extreme southeast corner of the town’s territory, bounded east by Newark, and southwest by East Orange, there is a section of some twenty-five blocks restricted as “medium volume residential” with five or six more blocks restricted as “small volume residential.” Except for a hundred foot strip of “large volume business” on the south side of Bloomfield avenue, and two parts of blocks adjoining that strip marked “medium volume business” the whole area bounded north by Bloomfield avenue, south by East Orange, east by Newark and west by La France avenue is zoned as residential.

Defendant Pierdominici owns a lot forty-nine and one half by one hundred feet on the southeast corner of First avenue and North Fifteenth street, in the extreme southerly angle of the zoned territory, and two thousand feet from the nearest business on Bloomfield avenue. He wished to build a row of five stores on this four thousand nine hundred and fifty square feet, and permit being refused by the building inspector, he applied to the board of adjustment for a nonconforming permit. There was a hearing, and a number of the neighbors protested, but the board recommended the town council to grant the permit. A resolution to that effect was lost on September 19th, 1932. On the 30th, Pierdominici began again with another application, which, in turn, was rejected by the inspector, approved by the hoard of adjustment, and lost before the council on October 17th. On November 21st the Council reconsidered the matter and concurred in the recommendation of the board and on the 23d permit issued. The prosecutors promptly obtained a writ of certiorari from the late Chief Justice G-ummere, but no return was ever made to the writ. However, on January 17th, 1933, rule was entered in this court, by consent, setting aside the action of the board and the concurrence of the council. No copy of this rule is before me, but I take the fact from the stipulation of attorneys.

While that first certiorari was pending, the council, without notice to prosecutors other than the statutory advertisement, proceeded to introduce and pass, at the meetings of December 5th and 19 th, the amendment now brought up, and which simply adds to the medium business zone, the nearest tract of which is over half a mile away (scaling the distance on the zoning map), a lonely lot of one hundred feet depth, and forty-nine and one half feet front, on a corner and surrounded on all sides by the residential zone.

This historical sketch of the matter is interesting, suggestive, and to me persuasive. It is a fundamental theory of the zoning scheme that it shall be for the general good, to secure reasonable neighborhood uniformity, and to exclude structures and occupations which clash therewith. The statute (Pamph. L. 1928, p. 696) provides that the territory be divided into districts of such number, shape and area as may be deemed best suited to carry out the purposes of the act. But this amendment to the general ordinance does not create a district: it merely undertakes to add one isolated lot to a district the nearest part of which is half a mile away, and in the midst of a totally inconsistent neighborhood.

Taken by itself, this ordinance gives the impression of a fundamental disregard of the statute. Taken in connection with its antecedents, that impression is confirmed and intensified. I think the amendment is utterly unreasonable, and that it was enacted in disrespect of this court and apparently to work out a new way of attaining an unworthy and illegal result.

The amending ordinance and all proceedings in connection therewith will be set aside, with costs.

As to the suggestion that one of the prosecutors owns stores already situated on the opposite corner, it does not appear how long they have been there or that they had not been built before any zoning took effect. No doubt there is jurisdiction in the board of adjustment to make an exception of the forty-nine foot lot in the manner marked out in the statute; but such a proceeding as this ordinance is not justified by that jurisdiction.


text:
    FRANK WINTERS, PLAINTIFF-RESPONDENT, v. JULIUS DOROVITZ, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided July 10, 1933.
    Before Justices Bodine and Donges.
    Por the appellant, Frank G. Turner.

    For the respondent, McCarter •& English.

   Per Curiam.

This is an appeal from a judgment of the Essex Common Pleas entered upon the verdict of a jury after a trial before Judge Flanagan. Plaintiff was a traffic officer and on February 22d, 1931, he was stationed at his post at Clinton avenue and Bergen street, Newark. He was standing almost in the center of the intersection permitting a trolley to turn from a southerly course on Bergen street to its left in an easterly direction on Clinton avenue. He was holding up his hand stopping east and west traffic. Defendant came east on Clinton avenue, continued across the intersection and struck plaintiff, inflicting serious injuries to his left arm.

1. The first point is that it was an abuse of discretion for the trial court to refuse a mistrial after certain remarks were made by the plaintiffs attorney. It is sufficient to say that no exception was taken to the court’s refusal to grant the motion.

2. The second point has to do with an overruling of an objection to a question asked of plaintiff, but the record discloses that the question was not answered, so there could he no possible harm.

Points 3 to 8, inclusive, are not argued and are, therefore, taken as having been abandoned.

Points 9 and 10 have to do with the refusal to charge requests on the subject of damages. There was testimony from a physician connected with the police department that plaintiff was unfit for continued service as a patrolman and would have to be retired as disabled. The requests under consideration sought to charge damages for such a contingency out of the case, but under the proofs this was a proper matter to be submitted to the jury.

11. That the court should have charged:

"Defendant was not under a duty to anticipate that the plaintiff would be standing between the rails of a trolley track near a trolley car that was switching from the north to the east, from one public street to another.”

Defendant knew this corner was regulated by a traffic officer. He saw that traffic was moving on the cross street. He was under a duty to exercise reasonable care. The charge was properly refused.

12. That it was error to refuse to charge:

"If the plaintiff changed his position in the street because a trolley car was making a turn, then it was his business and duty to use ordinary care to see that he did not collide with a moving automobile proceeding along Clinton avenue.”

This request disregards the admitted facts of the case. There was no evidence that he had moved, and further he was entitled to rely upon traffic on Clinton avenue obeying his signal and stopping.

13. That it was error to charge the jury respecting compulsory retirement on half pay because of disability. The plaintiff asserted such a claim in a bill of particulars. There was evidence that he was unfit for further service and would have to be retired. There was, therefore, no error in stating the law on this subject and telling the jury it was a matter for them to take into consideration.

The judgment is affirmed, with costs.


text:
    JOHN A. BOEHME, PLAINTIFF-RESPONDENT, v. SOPHIE SHAPIRO, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided July 15, 1933.
    Before Justices Bodine and Donges.
    For the appellant, William Newcorn.

    For the respondent, Solomon Lautman.

   Per Curiam.

This is an appeal from a judgment of the Monmouth County Court of Common Pleas entered upon the verdict of a jury after a trial before Judge Gallagher. The suit was by a real estate broker to recover commissions in accordance with a written agreement for services in connection with renting a property of defendant in Bradley Beach. Plaintiff recovered and defendant appeals.

The original grounds of appeal attempted to raise questions as to the verdict being contrary to the weight of the evidence, the law and the charge of the court. These were struck out on motion and an amended ground of appeal permitted to be filed raising the sole question of the admission into evidence of a paper (called the white paper) attached to a lease entered into between defendant and the parties whom plaintiff alleged he procured in pursuance of the brokerage agreement.

The lease was for five years from May 1st, 1924, and called for rental beginning at $1,800 for the first year and increasing thereafter. The white paper provided that if the tenants should desire, the defendant would make additions and alterations to the premises and the rent would be $1,000 per year more than provided in the body of the lease. This white paper was signed by the lessees but not by the lessor, the defendant. There was also attached to the lease a yellow paper, embodying terms of an agreement subsequently entered into between the parties. This was not signed and was not admitted in evidence.

When the lease was offered, counsel for appellant said “I object to the appending papers.” fSTo reasons were given. When the court ruled that the lease and white paper would be admitted and the yellow paper excluded, an exception was taken.

The objection now made is that the white paper was not signed by the defendant and was not binding upon her. There was testimony by the lessees, however, that the paper attached to the lease was a part thereof, and embodied terms of the original agreement of letting.

However, it seems clear that the paper, if erroneously admitted, was harmless. The plaintiff’s suit was upon an agreement to pay a commission of seven and one-half per cent, of the rents. The uncontradicted testimony is that the defendant made alterations to the premises, other than those provided for in the white paper, and received an annual rental of $4,000 which is a sum greater than that provided for in the white paper.

The judge in his charge told the jury that if they found for the plaintiff, the amount he would be entitled to was $1,235, plus interest. This apparently was the basis of the verdict. The fact that no exceptions were taken to the charge is evidence that no harm was done in the admission of the disputed paper, which could affect only the amount of the judgment and not the question of liability. The issue tried was the question of whether or not plaintiff had procured the lessees. The amount of damage, if plaintiff was entitled to the verdict, was not in controversy, inasmuch as defendant did not except to the court’s charge on that point.

The judgment is affirmed, with costs.


text:
    EDWARD C. REEVES ET AL., PLAINTIFFS-RESPONDENTS, v. STANDARD FIRE INSURANCE COMPANY OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided July 15, 1933.
    Before Justices Bodine and Donges.
    For the appellant, Huston Dixon and Louis B. Levine.

    Por the respondents, John L. Heher and Hrwin B. Marshall.

   Per Curiam.

This is an appeal from a judgment of the Mercer County Court of Common Pleas entered upon the verdict of a jury after a trial before Judge Bobbins. Plaintiffs sought to recover on a policy of fire insurance for damage alleged to have been caused by fire to premises owned by them. The contention of the defendant was that the damage and the fire were caused by an explosion, and therefore there was no liability under the terms of the policy.

The fire occurred early in the morning of January 27th, 1930, in Kane, Pennsylvania. The witness Cartwright, assistant fire chief, testified that he was awakened by an explosion; went to plaintiffs’ house; found fire burning and evidences of more fire which had been burning; he arrived ten minutes after the explosion and said the appearances would indicate a fire had been burning as much as forty-five minutes. The claim of the plaintiff was that the fire preceded and caused the explosion, which was caused by illuminating gas.

Three points are argued. First, that the court erred in admitting testimony of a builder as to the cost of replacing the building because the loss was caused by explosion and not by fire. As stated above, the plaintiffs’ claim was, and there was evidence to support it, that the fire was the cause of the explosion and the damage done by both the explosion and the flames was actually caused by fire. Appellant relies upon Ross v. Liverpool and London, &c., Insurance Co., 83 N. J. L. 340; 84 Atl. Rep. 1050, but there the fire which caused the explosion was from a match struck in a garage and not a fire which was actually burning the insured premises. In view of the testimony, the evidence objected to was properly admitted.

Second, that there should have been a nonsuit or directed verdict in favor of defendant. Here the contention is that there was no evidence that the damage resulted from a fire within the terms of the policy. However, a question of fact was clearly presented by the evidence as to whether or not the fire preceded and caused the explosion, and was, therefore, the proximate cause of the damage done. This issue was properly submitted to the jury.

Third, that the court erred in refusing to charge certain requests and in what he did charge with respect to determining whether the fire was the cause of the loss. The refusal to charge the requests was excepted to but seems not to be argued. There was no exception taken to the charge, so the portion set out in the brief cannot now be complained of. At any rate, the ground of objection involves the same point as above discussed and the action of the court was proper.

The judgment is affirmed, with costs.


text:
    HILL CONSTRUCTION COMPANY, PLAINTIFF-RESPONDENT, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January term, 1933
    Decided July 28, 1933.
    Before Justices Trenchard, Case and Brogan.
    For the respondent, Palmer & Powell.

    For the appellant, William A. Barlcalow.

   Per Curiam.

This appeal brings up for review a judgment in favor of the plaintiff entered in the District Court of the First Judicial District of the county of Burlington. The amount of plaintiff’s damage was stipulated between the parties at $304.08 and a judgment for that sum plus costs was entered against the defendant.

The defendant-appellant seeks a reversal on two grounds which we shall consider together, namely, that the court erred in denying defendant’s motion for a directed verdict and that the court erred in rendering a verdict for the defendant against the plaintiff.

The facts are these: on December 26th, 1930, the plaintiff, Hill Construction Company, through its servants, was transporting a concrete mixer and pump on a truck belonging to it along the state highway leading to Washington, Hunter-don county, New Jersey. The height of this vehicle, with its load, was eleven feet eight inches. The defendant maintains a bridge for railroad traffic over this highway, which has been erected for over twenty years. The clearance between the surface of the road and the bridge was eleven feet eight and one-half inches on the left-hand side and eleven feet eight inches on the right. In the center the clearance was only eleven feet five and one-half inches. One of the girders in this bridge struck the loaded truck, knocking off the concrete mixer, damaging it.

The bridge was erected in 1910, and it was proved that the township, wherein it is located, had at the time approved of the plans and specifications as to minimum height. At the time we may assume it had a minimum clearance of twelve feet and the difference in clearance that existed at the time of the accident is doubtless accounted for by the fact that the highway was resurfaced and slightly built up.

The state of demand of the plaintiff charges the defendant with negligence as follows: That the bridge did not provide a legal and proper clearance and, further, that there was no notice of warning to users of the highway of the fact that the “bridge was not of a sufficient height or clearance.”

The Motor Vehicle act, by section 21, paragraph 4 (1 Cum. Supp. Comp. Stat. 1911-1924, p. 1998), provides: The height of commercial motor vehicles shall not exceed twelve and one-half feet.

Section 42 of the Traffic act, which may be found in Pamph. L. 1928, ch. 281, p. 757, provides: That all obstructions shall be clearly marked with black and white, as follows: (a) alternate lines three to six inches wide with a slope of forty-five degrees; (b) checkerboard square six to twelve inches on a side.

The bridge of the defendant railroad company had no markings whatever on them and no legend showing the clearance. The operation of the truck was lawful. There was no negligence asserted. It was within the maximum height prescribed by section 21 of the Motor Vehicle act.

The defendant could not be charged with negligence in the building of the bridge since it was constructed under statutory authority and its plans approved by the local authorities and therefore its obstruction of the highway was what our cases have termed a legalized obstruction.

On the other hand, the public highway is presumed to be free from obstruction. Durant v. Palmer, 29 N. J. L. 544. But such legalized obstruction is of course subject to the provisions of any and all statutes which provide for the safety of the traveling public and it is obvious that the provisions of the Traffic act apply to all obstructions including railroad bridges.

The argument that supervision of railroads is confined to the public utility commission is without merit, for, while the legislature may of course delegate to a commission, or any other instrumentality of government, the right to regulate a particular operation, such as utilities, it cannot be said to have divested itself of the right to enact laws which would supersede the powers given any such commission, agency or instrumentality not in contravention thereof but entirely in addition thereto.

The provisions of the Traffic act, above mentioned, impose a duty upon the defendant to so mark the obstruction (in this case a railroad bridge) that it will arrest the attention of the traveling public and, so to speak, put people using the highway on their guard. This the defendant admittedly did not do. While the violation of that direction of the statute is not negligence per se, yet it is an incident of negligence from which negligence may be legitimately inferred. Kuczko v. Prudential Oil Co., 110 N. J. L. 111; 164 Atl. Rep. 308; Kolankiewicz v. Burke, 91 N. J. L. 567; 103 Atl. Rep. 249; Evers v. Davis, 86 N. J. L. 196; 90 Atl. Rep. 677. Whether this negligence was the proximate cause of the damage sustained is a fact question and the court, sitting without a jury, was entirely within its province in determining that the defendant was guilty of negligence and that such negligence was the proximate cause of the happening and consequent damage.

Appellant finally contends that the negligence charged was not proved and that the Traffic act was not pleaded. A reading of the state of demand discloses that the defendant well knew the charge it had to meet. The charge made is plainly pleaded. It was not necessary for the plaintiff to specifically plead the Traffic act. The court is obliged, as it did in this case, to take judicial notice of the statute pertinent to the inquiry.

The judgment under review will be affirmed, with costs.


text:
    BLOOMFIELD MOTOR SALES COMPANY, A CORPORATION, PLAINTIFF-RESPONDENT, v. VIOLA K. DELANEY, DEFENDANT-APPELLANT.
    Submitted January term, 1933
    Decided July 28, 1933.
    Before Justices Trenci-iabd, Case and Brogan.
    For the respondent (no appearance or brief filed).
    For the appellant, ’William, F. Delaney (George D. Mulligan, of counsel).
   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff below in the sum of $100. The case was tried in the District Court of the First Judicial District of Essex county.

The state of demand discloses that the plaintiff below sued on a book account, alleging the sum of $100 to be due and owing for repairs to an automobile. The record comes before us on an agreed state of case and it appears that the defendant’s automobile was in collision with another car and damaged; that the car was sent to the shop of the plaintiff company and the defendant testifies that the plaintiff, through its president, gave her a price of $175 as the cost of making repairs and the defendant then authorized plaintiff to proceed with the work. After the repairs were made plaintiff sent Mrs. Delaney, the defendant, a bill for $275. She immediately phoned, reminding the garage company that it had agreed to do the work for $175 and that the bill was incorrect and that the president, Mr. O’Mara, then said: “That is all right, Mrs. Delaney, I quoted you $175 but to the insurance man $275.” The ■ defendant received a further bill of-$275 and a demand for payment. Thereupon an intermediary, a Mr. Kirby, at the request of the defendant, went to see the plaintiff about the bill and thereafter on October 10th, 1930, the defendant received a letter from the plaintiff which in part reads-as follows:

“Mr. Kirby called this morning and gave us his check for $175 to be applied on your account.

“We told Mr. Kirby that we would agree to accept settlement of this claim for the unpaid balance based on the following agreement, that is, if you receive the total amount of the bill, $275, from the company (meaning an insurance company) that writes your collision insurance and otherwise, and in addition to that $200 for depreciation to your automobile, that you in turn reimburse us for the remainder of the bill $100. * * *”

Mr. Kirby thereupon reported to the defendant that he had paid $175 to the plaintiff by his check and the defendant immediately reimbursed him. It was then shown that the defendant had received from the insurance company $375 in settlement of her property damage. This evidence was objected to. However, as we view the case, it was clearly material since by the letter above quoted, the plaintiff agreed that it would claim the additional $100 only, if $275 were allowed for repair and $200 for depreciation.

The check of the insurance company for $375 was offered in evidence and received as an exhibit in the case. While it is true that the plaintiff denied that it had made any agreement with the defendant to-do the work in question for the sum of $175, yet it is obvious that there was dispute between these parties as to whether or not such an agreement, in fact, was made. The defendant so testified in court that such agreement was made while the plaintiff, so far as this record goes, was content to merely deny that an agreement was made. He does not testify that he quoted any price nor does he say what the conversation was between himself and the defendant. This much, however, is clear from the plaintiff’s letter, quoted above, that after the dispute arose the plaintiff did agree that if the defendant received a settlement of $475 from the insurance company, that is, $275 for repairs and $200 for depreciation, it would expect to receive the additional sum claimed. It is evident, from the exhibit above referred to, that the' minds of the parties met on a new proposal, the plaintiff making it and the defendant acquiescing, that if the defendant’s claim against the insurance company was settled for $375 instead of the larger amount, that the payment of $175 already made would be in satisfaction of the plaintiff’s claim, but that conditionally, if the defendant received the large amount the additional claim of $100 would be honored by the plaintiff.

The effect of the defendant’s settling with the insurance company turned out adversely to the plaintiff’s proposition. Therefore, in our view, the plaintiff could not justly demand the extra sum, contrary to its own proposal.

Here the amount of the claim was in dispute, the price quoted being sharply in issue and the acceptance of the amount paid (although acknowledged merely as on account of the whole bill) coupled with the inescapable inference from the plaintiff’s own proposal that it would be in full satisfaction unless the defendant received a settlement of $475 from the insurer, made for a complete accord and satisfaction when it appeared that the defendant settled with the insurer for the lesser sum.

Where a claim is in dispute, payment and acceptance of a less sum than claimed in satisfaction operates as an accord and satisfaction. Decker v. Smith, 88 N. J. L. 630; 96 Atl. Rep. 915.

The judgment will be reversed and a venire de novo may issue.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM D. SCULLY, PLAINTIFF IN ERROR.
    Submitted October 14, 1932
    Decided July 26, 1933.
    Before Justices Bodine and Donges.
    Eor the plaintiff in error, William, A. Wachenfeld and Samuel I. Kessler.

    Eor the defendant in error, Joseph L. Smith.

   Per Curiam.

The plaintiff in error was indicted with one other designated person and several fictitious persons for conspiracy to sell certain tickets by false pretenses and by fraudulent means, to several named persons and to the public generally. He was convicted, after trial.

It appears, that the defendant Scully was engaged in promoting a dance for Newark Post No. 101, of the American Legion, and that he had some persons employed in the sale of tickets for the dance.

It was charged that defendant and others did knowingly, unlawfully, willfully and designedly represent to John Pfeiffer, and others named, that they were Captain Erank O’Neill, attached to the Newark police department, and thereby obtained various sums of money for tickets for the dance.

The testimony of the persons produced by the state was that someone called them on the telephone and introduced himself by various names. In several instances the name of “Captain O’Neill” was used; in others the name of “Captain Mitchell” and “Sergeant Reilly” was used. In one instance, it was testified that the person calling said he was “Captain O’Neill, captain of the seventh precinct.” Who the persons who made the several calls were did not appear, nor did it appear that, except in the one instance, the caller made any representation as to the identity of the “Captain O’Neill” calling. In the one instance, the testimony of the witness upon that point is not satisfactory or persuasive of such identification. The thing being sold was tickets for the legion dance. There was no charge that defendant or anyone else attempted to procure any money for any other purpose, or upon representation of any other benefit or return. In each instance, tickets for the dance were delivered with a letter from the legion post. Nor was it charged that they defrauded Captain O’Neill, of the seventh precinct, of anything or endeavored to do so.

Defendant denied that he either authorized the use of the name of Captain O’Neill, of the police department, or had knowledge of its use by any person associated with him in promoting the dance for Post 101.

Prom the testimony it appears that the tickets were purchased by each of the persons produced at the trial because they believed the project a worthy one.

We conclude that there was no testimony from which it appeared that the person who used the name of “Captain O’Neill of the police department” was associated with plaintiff in error or that he had any knowledge of such conduct.

The trial judge charged the jury that to convict it must appear that the persons soliciting sale of the tickets “represented themselves either impliedly or expressly as Police Captain O’Neill,” and, secondly, “whether or not the defendant authorized those means.” Without passing upon the legal correctness of the court’s charge in this and other respects, it is enough to say that a careful reading of the testimony leaves no doubt that these things were not established by the proofs, and that the proofs do not support the verdict under the law as charged by the trial judge.

The judgment under review is reversed.


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    GERARD PUORRO, PLAINTIFF-RESPONDENT, v. THOMAS KASKENAS AND TONY COLLITO, DEFENDANTS-APPELLANTS. VITO ABBATTCOLO, PLAINTIFF-RESPONDENT, v. THOMAS KASKENAS AND TONY COLLITO, DEFENDANTS-APPELLANTS. CARMELO RACHIELE, PLAINTIFF-RESPONDENT, v. THOMAS KASKENAS AND TONY COLLITO, DEFENDANTS-APPELLANTS. VINCENZO PENTIMONE, PLAINTIFF-RESPONDENT, v. TONY COLLITO, ANTHONY COLICOVA AND THOMAS KASKENAS, DEFENDANTS-APPELLANTS.
    Submitted January 18, 1933
    Decided July 25, 1933.
    Before Justices Trenchard, Case and Brogan.
    For the respondents, Pearce B. Franklin and Joseph J. Duma (Pearce B. Franklin, of counsel).
    For the appellants, Samuel H. Nelson.

   Per Curiam.

This case is brought before us on appeal, to review four judgments recovered in the Second District Court of the city of Newark by the several plaintiffs below and against the defendants Collito and Colicova. The jury found a judgment of no cause of action against the defendant Kaskenas.

The plaintiffs below were passengers in the automobile taxicab of the defendant Collito, the operator of which was the defendant Colicova, both of whom are the appellants here.

After the verdict was returned the defendants-appellants obtained a rule to show cause which was heard by the trial court and after argument, discharged. The reasons in support of the rule are not made part of the state of the case by the appellants but they are set forth in the brief of the respondents and since they are not challenged by the appellants in any way we must assume that they are accurately stated.

Said reasons in support of the rule are: First, that the verdicts were contrary to the evidence as to damages allowed. Secondly, the verdicts were the result of passion and prejudice, and thirdly, that the verdicts were the result of mistake, “the jurors or one or more of them being too ignorant to understand the rather complicated issues involved.”

All of these reasons apparently were argued and the court, in discharging the rule, said, “no cause for a new trial had been shown.” We do not find in the state of the case any further information as to the judge’s reason for discharging the order to show cause.

The appellants, in addition to the appeal filed in the main case, file an appeal also from the order discharging the rule to show cause.

The appellants argue their appeals here on two grounds. The first one, briefly, is that the court abused its discretion in not granting new trials because the verdicts were the result of prejudice and bias on the part of the jurors.

There is nothing whatever to indicate the trial court abused its discretion in discharging the rule to show cause. The mere fact that the verdicts seem to counsel for the defeated party to be extravagant is no reason for the charge that the court abused its discretion. Gaffney v. Illingsworth, 90 N. J. L. 490; 101 Atl. Rep. 243; Gee v. Moss, 108 N. J. L. 160; 156 Atl. Rep. 458.

The appellants complain that one witness, on being asked who Mr. Farkash was, replied, “Mr. Farkash is one of the representatives of our insurance company.”

This testimony, even if it should be considered improper, was in no way objected to by appellants’ counsel; no request made that it be stricken; no suggestion that there be a mistrial declared, nor was there any request to charge submitted, concerning it. This ground of appeal therefore fails.

The second ground is that in the case of the plaintiff Pentimone, the court erred in charging the jury that if this plaintiff was entitled to recover he could recover moneys lost as the result of inability to work and loss of salary or wages therefrom, and it is argued, and quite correctly, that there was no testimony with respect to loss of salary in the case of this plaintiff. The difficulty with this ground of appeal, however, is that even if. the court had been in error in charging the jury in the manner complained of, none the less the substance of this court as appears from the reasons advanced for the rule was argued on the return of the rule to show cause and decided adversely to the appellants. This ground of appeal is likewise unavailable to the appellants.

A question cannot be reserved for appeal which has been urged in support of or argued on the return of a rule to show cause. McMichael v. Horay, 90 N. J. L. 142; 100 Atl. Rep. 205; Faragasso v. Introcaso, 98 N. J. L. 583; 121 Atl. Rep. 773; Goeckel v. Erie Railroad, 100 N. J. L. 279; 126 Atl. Rep. 446.

The judgments will be affirmed, with costs.


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    EDWARD W. DANIEL, PLAINTIFF-RESPONDENT, v. LYLE ELMER, DEFENDANT-APPELLANT.
    Submitted January 28, 1933
    Decided July 25, 1933.

      Por the appellant, Durand, Ivins & Carton.

    Por the respondent, Quinn, Parsons & Doremus.

   Per Curiam.

This is an appeal from a judgment of the Monmouth County Common Pleas entered upon the verdict of a jury. The suit was for personal injuries sustained as the result of a fall when a plank leading into a building under construction slipped and threw plaintiff to the ground. Defendant was a subcontractor doing the mason work on a building of the Long Branch Country Club. Plaintiff was a salesman of Ideal Lumber and Coal Company, from whom defendant had ordered coloring material for mortar.

On May 16th, 1930, plaintiff arrived at the building with the coloring. It was necessary for him to see defendant to explain that the material was double strength. Opposite the main entrance the defendant had placed inclined planks for ingress and egress, which planks were properly fastened in accordance with custom. At the north end of the porch planks were placed against the building which were not fastened in place. Plaintiff testified that he entered the building by these planks at the north end of the porch and looked for defendant. Being unable to find him inside the building, he came out on the porch and saw him on the ground near the planks. He called to defendant and was invited by him to descend. When he stepped on the planks, they slipped and threw him to the ground causing painful injuries, for which recovery was had.

1. The first point is that it was error to sustain an objection to the following question to plaintiff: "Q. Did you ask him for any compensation?” That is, had he made any claim for compensation from his employer. Plaintiff said that he had not received any workmen’s compensation. Appellant claims this question was admissible on the question of whether or not the plaintiff was actually injured. However, this matter was not in dispute, since the defendant admitted knowledge of the accident and of an injury to the plaintiff. The question of compensation is not relevant in a suit for personal injuries against a third person. Gilbert v. Junior Trucking Corp., 104 N. J. L. 608; 141 Atl. Rep. 776; Freschi v. Mason, 108 N. J. L. 272; 156 Atl. Rep. 758.

2. It is next argued that there should have been a nonsuit on the grounds (1) contributory negligence; (2) no negligence shown on the part of defendant; (3) liability should be co-extensive with invitation, which was not -shown. The questions of negligence and contributory negligence were clearly for the jury. There was testimony that the planks were not properly secured and that defendant admitted someone had been careless. It was for the jury to' say whether or not plaintiff was entitled to walk upon the planks without examining them, in view of the fact that he was admittedly an invitee upon the premises.

As to invitation, it cannot be said as a matter of law that plaintiff was under a duty to ascertain which entrance was the one safeguarded in the proper manner. Moreover, there was testimony that defendant orally invited plaintiff to use the planks upon which he fell. The refusal to nonsuit was proper.

3. That it was error to admit certain X-rays in evidence. The complaint is that these pictures were taken the day before the trial, July 19th, 1932, whereas the accident occurred on May 16th, 1930, and no claim was made that plaintiff was disabled after 1930. This argument goes not to the admissibility of the X-rays, but to their weight as evidence. They were properly proved and it was not error to admit them as evidence of the injuries claimed by plaintiff.

4. That it was error to refuse to admit a certain affidavit made by plaintiff in Eeno in the year 1930. Plaintiff had testified as to his disability during 1930 and had said that a certain trip to Eeno, asked about by defendant’s counsel, was made in 1931. Later in the trial defendant produced the affidavit and showed it to plaintiff who then admitted his previous testimony was erroneous and that he had been in Eeno on the date of the affidavit. In view of this admission, there was no harm to defendant in rejecting the evidence.

The judgment is affirmed, with costs.


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    LUCY MELBER AND FRANK MELBER, PLAINTIFFS-RESPONDENTS, v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, A CORPORATION, AND WILLIAM STROHMEYER, DEFENDANTS-APPELLANTS.
    Argued January 18, 1933
    Decided July 25, 1933.
    Before Justices Tbenchaed, Case and Bbogan.
    For the respondent, Joseph H. Gaudielle (James A. Major, of counsel).
    For the appellants, MacTcay & MacTcay (Howard MacTcay, of counsel).
   Per Curiam.

This appeal discloses that the plaintiff Lucy Melber recovered a judgment against the defendants The Great Atlantic and Pacific Tea Company, a corporation, which conducts a chain grocery store business, and William Strohmeyer, the manager of the store.

It appears that Mrs. Melber came into the Little Perry store of the defendant company shortly before noon on Monday, November 2d, 1931, to make some purchases, when she fell, suffering painful injuries. Her testimony disclosed that the floor was wet with oil, which, on the previous Saturday evening, had been applied to the floor surface.

The court, sitting without a jury, heard Mrs. Melber testify without objection that an employe of the defendant company said, when she had fallen, that she was “the second woman who had fallen this morning,” and that after her accident sawdust and gravel was sprinkled over the floor.

A verdict of $400 was found in favor of the plaintiff Lucy Melber and the defendants appeal on three grounds. Pirst, that the plaintiff should have been nonsuited.

We do not think this point is well taken. The motion for a nonsuit of course admits the truth of the plaintiff’s evidence and of every legitimate inference that might be drawn therefrom favorably to her. Barry v. Borden Farm Products Co., 100 N. J. L. 106; 125 Atl. Rep. 37. The motion for a non-suit was properly denied.

The second point upon which appellants rely is that the court erred in refusing to direct a verdict in favor of the defendants. This point has no efficacy for the reason that no motion was made to direct a verdict. Consequently, this ground of appeal fails. Ciccone v. Colonial Life Insurance Co., 110 N. J. L. 276; 164 Atl. Rep. 444.

The third ground of appeal is that the court erred in entering a judgment for plaintiffs in the sum of $400 without designating the amount awarded to each of the plaintiffs.

The suit is brought by the plaintiff Mrs. Melber and her husband, Prank Melber, she suing for damages for her injuries and he suing for loss of services and medical expenses. While the suit was in the name of both plaintiffs, husband and wife, the husband’s suit, to all intents and purposes was abandoned. He didn’t testify; no evidence was received concerning loss of services and the plaintiff wife testifies that she paid the doctor’s bill.

An examination of the record clearly discloses that only the case of Mrs. Melber was tried and the court, in its certificate giving judgment for plaintiff, speaks in the singular number, saying, “judgment for plaintiff $400.”

The ease of Warner v. Public Service Co-ordinated Transport, 9 N. J. Mis. R. 328; 153 Atl. Rep. 711, on which appellants rely, is not in point. There the court rendered a judgment in the sum of $500 in favor of more than a single plaintiff without determining particularly how much of the verdict was allotted to each claimant. Here there was a state of demand containing two counts only one of which was tried. The difference between the instant case and the case relied upon by appellants is manifest.

The judgment will be affirmed, with costs.


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    MAX MARX, PLAINTIFF-RESPONDENT, v. ABRAM S. CORNISH, DEFENDANT-APPELLANT, AND JOHN HUNT AND HENRY KOOPMAN, DEFENDANTS.
    Submitted January 18, 1933
    Decided July 25, 1933.
    Before Justices Trenchard, Case and Bbogan.
    For the respondent, Harry Steiner.

    For the appellant, Pearce B. Franklin.

   Per Curiam.

Abram Cornish, the defendant below, appellant here, was the owner of an automobile which he had loaned to Harry Koopman, his son-in-law. Arrangements had been made that the car was to be repaired and that a garageman, Hunt, co-defendant below, should receive the car at the home of Mr. Koopman. Hunt received the car at about eleven-forty-five on the night in question, which was March 10th, 1932, and in driving it to his garage a collision occurred between this car and the car of the plaintiff, Max Marx, the respondent here.

It also appears that Cornish brought suit in another District Court against Marx and it was stipulated that the cases be tried together, and that the damages of Mr. Cornish were $259 and that the damages of Mr. Marx were $78. The cases were tried and the court, sitting without a jury, found in favor of the plaintiff, Marx, and against the defendants Cornish and Hunt in the sum of $78.

Cornish appeals, setting out five points, only one of which need concern us here, the other four being factual in nature and not, in our judgment, proper grounds for appeal. The single point is that the District Court erred in determining that the defendant Hunt was the agent or servant of the defendant Cornish in driving the car to the garage.

Hunt’s testimony was that on March 10th, 1932, he had received word to call at the residence of Mr. Koopman for the purpose of receiving Mr. Cornish’s automobile for repairs ; that he arranged to receive the car, did receive it, and drove away and that at the intersection of Central avenue and South Thirteenth street, in Newark, while making a left-hand turn into the latter street, the collision occurred.

Mr. Cornish testified that he had allowed Koopman to use the car on this day on his own business and gave him instructions to have Hunt call for the car to make the repairs.

The court found as a fact that Hunt was guilty of negligence. The court also found that Hunt was the agent of Cornish and because of that finding entered judgment against both Hunt and Cornish for the sum of $78.

In entering judgment against Cornish, we think the court below was in error. Hunt, the garageman, was not on Cornish’s business, but on his own. He undertook to call for this car, take it to his garage and repair it. Cornish, the owner, exercised no control whatever over him or his operation of the car. From the time that Hunt took the car over under his control he was on his own business and not on the business of the owner. Reinhardt v. G. W. Tisdale, Inc., 4 N. J. Mis. R. 527; 133 Atl. Rep. 523.

The judgment therefore in favor of the plaintiff against Abram Cornish will he reversed, and a venire de novo awarded.


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    IRVING ELOWITZ AND ANNA ELOWITZ, PLAINTIFFS-RESPONDENTS, v. MAX WINARSKY, DEFENDANT-APPELLANT.
    Submitted January 18, 1933
    Decided July 25, 1933.
    Before Justices Teenchaed, Case and Bbogan.
    For the respondents, Maurice H. Pressler (Herman Marx, of counsel).
    For the appellant, Schotland & Schotland.

   Per Curiam.

The plaintiff in this ease rented an apartment from the defendant and it appears that after she moved her household goods into the premises they were damaged by the escape of steam from one of the radiators therein. This damage occurred the first time plaintiff started up a fire in the cellar furnace. It appears that the pipe leading into the radiator at the valve was either broken or disconnected.

The plaintiff further testified that the defendant, at the time she rented the apartment, represented to her that everything was in first-class condition but that she must furnish her own heat and that the heating system was ready for use and in good order. She paid him the rent on January 19th, 1932, moved in, and on the following day started a fire in the furnace, remaining away from her apartment for about an hour, during which interval she busied herself watching the progress of the fire in the furnace and cleaning up the cellar, and, upon her return to her apartment, found the place filled with steam and her furniture damaged.

Suit was brought in the District Court of East Orange charging that the defendant represented that the heating system was in good condition when in fact it was not, to her consequent damage.

The case was tried by the court, without a jury, and the court found a verdict in favor of the plaintiff awarding damages in the sum of $200, from the entry of which judgment against him defendant below appeals.

Four reasons are written down for reversal. Two of them are not argued; consequently, they must be treated as having been abandoned. Sargeant Bros. v. Brancati, 107 N. J. L. 84; 151 Atl. Rep. 843.

The remaining points are: First, that it was error for the court to have denied defendant’s motion for a nonsuit and that it was error not to have granted defendant’s motion for a directed verdict.

Eeither point, in our judgment, is well taken. It is elementary that on motion for nonsuit the truth of the plaintiff’s evidence is admitted and should be regarded by the court in the light most favorable to the plaintiff, with all its legitimate inferences. Barry v. Borden Farm Products Co., 100 N. J. L. 106; 125 Atl. Rep. 37.

Applying this principle to the facts presented here, the court could find, as it probably did, that the plaintiff received the assurances of the defendant that the premises were tenantable and the radiators in proper condition. The motion was based on the grounds that there was no duty of care on the part of the defendant and no proof of negligence or notice of the break in the pipe chargeable to the defendant. True it is, that had these representations not been made, there would have been no duty of this kind resting upon the defendant, but where the plaintiff, as here, relied upon the representations made, it was a legitimate inference from the testimony that the defendant was negligent. That being so, the motion was properly rejected.

As to the second point, that there should have been a verdict directed in favor of the defendant, it seems that the father of the defendant testified that he was the owner of the premises; that the apartment in question had been idle for only a month and that only a few days before the plaintiff’s occupancy he had had repairs made to the premises, and that they wore in good condition. As to this, it will suffice to say that the defendant’s testimony merely raised a fact issue between the parties under which circumstances a direction for the defendant could not have been granted.

In order to justify a directed verdict the facts must not only be undisputed but the inferences from those facts must be so clear that fair-minded men ought not to differ about them. Podolshy v. Sautter, 102 N. J. L. 598; 133 Atl. Rep. 199.

It is well settled that a landlord will be held responsible for injuries caused by the defective condition of the demised premises where he undertakes to do the work and it is done negligently. Broame v. New Jersey Conference, &c., 83 N. J. L. 621; 83 Atl. Rep. 901, and it likewise follows that where one makes representations upon which a tenant relies as to the good condition of the fixtures or appliances of the demised premises that he, too, will be held responsible. Le Pichard v. Thurber Co., 84 N. J. L. 193; 86 Atl. Rep. 953; La Brasca v. Hinchman, 81 N. J. L. 367; 79 Atl. Rep. 885.

The point is made, although not specifically, as a reason for a directed verdict, that the defendant was not the owner of the premises but that his father, Jacob Winarsky, was such owner. It may well be that this plaintiff might have joined Jacob Winarsky as a defendant but she did not see fit to do so. The fact that the defendant here was not the owner, if indeed it be the fact, is immaterial and it was not error to refuse a direction of verdict for that reason.

The judgment is affirmed, with costs.