text:
    Camden County Circuit Court.
    GUISEPPI CETANI AND MARY CETANI, HIS WIFE, AND DONATO DI MONA AND FRANCES DI MONA, HIS WIFE, PLAINTIFFS, v. VINCENZO DE NINNI, DEFENDANT.
    Decided May 1, 1928.
    For the plaintiffs, Louis B. LeDuc.

    For the defendant, C. Richard Allen.

   Donges, J.

This case was tried without a jury upon stipulated facts as to the record title and physical conditions existing upon the ground. Testimony was taken upon the question of use of the alleyway in dispute by the plaintiffs and by other occupants of the premises now owned by them.

This suit is brought to assert the right to use an alley running northerly into Cherry street from a five feet four-inch alleyway upon which plaintiffs’ properties abut.

The admitted facts are that one James K. Dugdale, being the owner of the premises involved in this case and other lands to the west thereof, conveyed properties 312, 314 and 316 Cherry street to William Scofield, who in turn conveyed to Joseph J. Hoey. The properties now known as 306, 308 and 310 Cherry street were conveyed by Dugdale to several grantees, none of whom ever had any interest in the properties here involved. The land which Hoey acquired on May 23d, 1906, extended forty feet on Cherry street by ninety-seven feet four inches in depth, and on this land were built three "houses, known as 312, 314 and 316 Cherry street. On the lands originally owned by Dugdale there were two alleys, each two feet six inches in width. The easterly of these alleys was within the limits of Hoey’s land, and was known as a box alley, that is, the second floor of house 312 Cherry street extended as a roof over the alley. Immediately adjoining this alley on the west was the other alley of the same width entirely on the land of one Schettinger, which alley was open throughout its entire length. A fence extending from Cherry street for the entire distance of ninety-seven feet four inches separated the two alleys, and each alley was marked by a fence, one fence to the east of Hoey’s alley and another fence to the west of Schettinger’s alley. These fences extended southerly to the northerly limits of two alleys each five feet four inches in width, the one on the west extended in the rear of Ho. 310 Cherry street, so that Ho. 308 Cherry street opened into it, and the easterly alley extended in the rear of 312 and 314 Cherry street to the westerly side of lot 316 Cherry street, which lot opened into it. It is apparent, therefore, that the properties to the east and west of the division fence between the land conveyed to Hoey and that conveyed to Schettinger had no access to the alley on the other side of said division fence. It is apparent that the owner of each of these pieces of land created for the nse of the houses built by him a separate alley in the rear thereof and a connecting alley extending from the rear alley to Cherry street.

On June 4th, 1906, Hoey sold the easterly thirteen feet of his property, known as 316 Cherry street, to Morris Devone, which deed was duly recorded. In the deed to Devone, the property is particularly described. Then follows: “Together with the free and common use of a five-feet wide alley in the southwest corner of said premises.” It will be noted that the five feet four-inch alley is located at the southwest corner of 316 Cherry street. This property by various deeds was conveyed to plaintiffs Guiseppi Cetani and Mary Cetani, his wife.

On the same day, Hoey sold the adjoining thirteen feet, being premises known as 314 Cherry street, to the other plaintiffs, Donato Di Mona and Prances Di Mona, his wife, who occupied the property for about ten years and from about 1916 have rented the property. In the deed from Hoey to Di Mona, the following language was used in the description: “(1) Southwardly at right angles to Cherry street and through said partition wall, the distance of ninety-two feet to the northerly line of a five feet four-inch wide alleyway running west and connecting with a passageway running north and opening into Cherry street,” and following the description, “together with the use of said alleyway at all times.”

Subsequently and on June 27th, 1906, Hoey conveyed premises 312 Cherry street to one Palese, the grantor of defendant. In this deed appears the following: “Together with the free use, right and liberty of said alley in common with others bordering thereon forever.

“Subject, nevertheless, to the rights and privileges of the owners and occupants of the two properties east of the above-described lot, being numbers 314 and 316 Cherry street, to the use of alley on the westerly side of the property herein conveyed for ingress and egress, which alley connects with a five feet four-inch wide alley in the rear and extends northwardly to the southerly side of Cherry street.”

Three questions are presented: First, was the defendant’s land charged with an easement in favor of premises 314 and 316 Cherry street? Second, was such easement located with sufficient definiteness? Third, if such easement was created, has it been lost through non-user?

1. I think there is no doubt that the conveyances by Hoey imposed upon the property retained by. him, namely, 312 Cherry street, an easement in favor of 314 and 316 Cherry street to use both passageways mentioned in the deeds and which were phjrsically existent at the time of said conveyances.

2. The defendant asserts that the-easement was not sufficiently definite. It seems to me that there can be no ques-tion that both the language used and the physical conditions clearly fixed the location of the two alleys over which a right of way was granted. The language used in the deed to the defendant expressly reserved the right of the owners and occupants of 314 and 316 to the use of “the alley on the westerly side of the property herein conveyed.” It is admitted and it is not subject to dispute that the alley in question was at the westerly side of defendant’s property, and was the only alley connecting with the five feet four-inch alley at the rear of defendant’s property and to which, by the description in the deed, defendant’s property extended.

3. Considerable testimony was taken upon the question of user. On behalf of the plaintiffs, one Michael Di Mona testified that from 1907 to' 1915 he used the alley regularly, he then being the owner of premises 316 Cherry street. Morris Devone, who owned the property before Michael Di Mona, testified that he used the alley during the year 1907, and the plaintiff Guiseppi Cetani testified that he had used the alley since 1922. The plaintiff Donato Di Mona testified that he used the alley from June, 1906, to sometime in 1916, and that he used the alley regularly. One Christine Eulli testified that she occupied the house 314 Cherry street from about 1916 to 1918 and that she used the alley two or three times each week during the time that she occupied the property. Mary Cetani testified that the alley from 1916 to date had been used regularly.

The defendant testified and produced some witnesses who testified that they never had seen the alley used by anyone except by the occupant of 312 Cherry street. All of these witnesses, with one exception, were occupants of the property 312 Cherry street.

I am not impressed with the testimony on this point offered by the defendant, and conclude that this alley was used from the time of the Hoey conveyances practically down to the present time by the owners and occupants of the premises 314 and 316 Cherry street. It is not disputed that the plaintiffs and their predecessors used the rear alley and it is not denied that they had a right to use the rear alley. Inasmuch as the rear alley admittedly opened and was part of the passageway in dispute leading into Cherry street, I think that it is very likely that the whole passageway was used as plaintiffs’ witnesses testified. Without the passageway in question, the rear alleyway was useless as an alley, because it would lead nowhere. There may have been some temporary obstructions to its use, by the placing of objects therein, as some witnesses testified, but there was no failure on the part of the occupants of 314 and 316 Cherry street to use it during all of this time as a matter of right.

I conclude, therefore, that plaintiffs are entitled to judgment.


source: Caselaw Access Project

author: Donges, J.

license: Public Domain

text:
    Camden County Circuit Court.
    HERBERT J. KOEHLER, RECEIVER OF J. R. TUCKER, INCORPORATED, PLAINTIFF, v. HENRY A. GILBERT, DEFENDANT.
    Submitted May 2, 1928
    Decided May 3, 1928.
    For the motion, Norman Harker.

    Contra, Louis B. LeDuc.

   Donges, J.

Defendant moves to strike out the complaint.

The objection is offered that the agreement in question is not sufficient to meet the requirements of the statute of frauds. Pamph. L. 1911, p. 703; Pamph. L. 1918, p. 1020.

The complaint alleges that the plaintiff, having authority to make sale of defendant’s property, effected such sale, and on September 1st, 1925, and thereafter, defendant executed and delivered to J. R. Tucker the following agreement:

“September Eighth
19 2 5
Mr. J. R. Tucker, Realtor,
313 Market Street,
Camden, N. J.
Dear Sir:
In consideration of your effecting a sale on the lot located at Haddon and Hopkins avenues, Haddonfield, I hereby agree to pay you a commission of two and one-half per cent., one hundred dollars [$100] of which is given you herewith, balance of four hundred and sixty-two dollars and fifty cents [$462.50] to be paid at time of settlement.
Yours very truly,
[Signed] Henry A. Gilbert.”

It is further alleged that Tucker procured the purchaser and in all respects performed the services for which the sum stated was to be paid.

In my opinion, the motion cannot prevail. In view of the language of the statute above mentioned, a written authorization to sell is not required, but a written recognition of the authority for selling, together with statement of the person to whom the payment is to be made and the sum due, &c., is all that is required. It seems to me that if the proofs support the complaint, that plaintiff will be entitled to recover, under authority of Clark v. Griffin, 95 N. J. L. 508, and Steinberg v. Mindlin, 96 Id. 206.

The motion is denied.


text:
    Camden County Circuit Court.
    LEON G. BUCKWALTER, RECEIVER OF GLOUCESTER FERRY COMPANY, PLAINTIFF, v. AETNA INSURANCE COMPANY, DEFENDANT. LEON G. BUCKWALTER, RECEIVER OF GLOUCESTER FERRY COMPANY, PLAINTIFF, v. GLOBE AND RUTGERS FIRE INSURANCE COMPANY, DEFENDANT.
    Decided May 4, 1928.

      For the plaintiff, Curry & Purnell.

    For the defendants, McDermott, Enright & Carpenter (James D. Carpenter, Jr).

   Donges, J.

These two cases have been submitted on stipulations. The facts in both cases are identical.

The facts, as stipulated, are that the defendants issued marine policies on the ferryboat “Dauntless,” of the Gloucester Eerry Company, which, among other things, covered loss by fire. Eor approximately two weeks prior to October 13th, 1922, the “Dauntless” had been undergoing repairs while moored to the company’s wharf adjoining its ferry slips at Gloucester city. The repairs had bee!n completed during that day and the boat was ready for service. There were no fires under the boilers, nor was there any crew on board. At about eleven-thirty p. m., on October 13th, fire was discovered on the boat. An alarm was given, and the Gloucester city fire department responded, but was unable to render assistance because the moorings of the boat had been burned and the tide caused the ferryboat to drift away from the wharf. The boat drifted to the Pennsylvania side of the river, where she was completely destroyed. The admitted facts are that the ferry company employed one Samuel Pine, whose duties were to sweep out the ferrvhouse, to assist in docking and tapping out the ferryboats from the ferry terminal, to make rounds of all the company’s property, including the ferry house and any vessels moored at the company’s several docks, and to perform other general duties about the ferry house at the Gloucester terminal. At about ten-thirty o’clock on the night in question, Pine, in the course of his rounds, went aboard the “Dauntless” and saw no signs of either smoke or fire. He then went into the ferry terminal and began sweeping, at the same time conversing with police officer Priekett, of the Gloucester city police department. About eleven o’clock another boat, the “Fearless,” came into the terminal from Philadelphia, and Pine went out on the bridge to make the boat fast. After the teams and passengers had been discharged, the “Fearless” took on passengers and teams and Mr. Pine tapped the “Fearless” off and she proceeded to Philadelphia. At about eleven-thirty, Officer Pricket and Pine-went from the ferry house to the street, when they noticed that the “Dauntless” was on fire.

The defense in each case is that the Gloucester Ferry Company breached the warranty in each policy that the vessel insured should at all times during the continuance of the policy have a competent watchman on board. This warranty is in the following terms:

“Warranted by the insured that the said vessel shall at all times during the continuance of this policy be tight and well found in anchors, cable, rigging, tackle and apparel, as is usual and customary; also in all other things and means necessary and proper for safe navigation according to the usage and custom; that she shall at all times have a competent watchman on board, and that whenever said vessel shall lie at anchor in the night time, she shall show one or more lights in a conspicuous place so as to warn and give notice to approaching vessels.”

Plaintiffs assert that inasmuch as Pine was engaged, among other things, to make inspection of all the property of the ferry company, that there was a substantial compliance with the terms of the policy, and that it is immaterial whether the watchman was on board at all times and that it is sufficient if periodic inspection of the property was made.

In 1 Arn. Ins. (11 th ed.) § 531, the rule is stated:

“In the case of a warranty, all questions of the materiality or immateriality of the fact warranted are entirely excluded'; the sole inquiry is whether it be or be not warranted that the fact is or shall be so and so. If it be warranted, then, however unimportant the fact may be to the risk, however little its existence or non-existence may have influenced the judgment of the underwriter as to the rate of premium, the thing ■warranted must • be absolutely true or literally performed; otherwise, the policy will be void as from the date of the breach of the warranty.”

The warranty in question has been construed a number of times in the admiralty courts, and in every instance that I have been able to discover, a strict compliance with the warranty has been sustained. Snyder v. Home Insurance Co., 133 Fed. Rep. 848; affirmed, 148 Id. 1021; Whealton Packing Co. v. Aetna Insurance Co., 185 Id. 108; Shamrock Towing Co. v. American Insurance Co., 9 Id. (2d ed.) 57; Manheim Insurance Co. v. Tyner, 133 S. W. Rep. 1000.

The admitted facts in this case being that there was no watchman on board at all times and that the duty of watching this boat was a very small part of the duties of the person who did visit it at intervals, I am of the opinion that the warranty in question was breached and that the plaintiff cannot recover.

Plaintiff has cited a number of cases in which policies of fire insurance required that a watchman should be in service, and in which cases a recovery was permitted, notwithstanding the watchman was not at the time of fire actually on the insured premises. In Sierra Milling, Smelting and Mining Co. v. Hartford Fire Insurance Co., 18 Pac. Rep. 267, it appeared that a watchman was engaged to be upon the premises at all times of the day and night and that he was in and about the premises, although at the time of the discovery of the fire he was sixty feet from the insured premises, but at a point where his view of the insured property was better than on the property. On the issue framed in that case, the court sustained a recovery by plaintiff.

In the cases of Hanover Fire Insurance Co. v. Gustin, 59 N. W. Rep. 375, and Spies v. Greenwich Insurance Co., 56 Id. 560, recoveries by the plaintiffs were sustained because of the peculiar issues framed in those cases. In none of these cases is the precise question raised that we have to meet here. Here the issue is square-cut, and we are called upon to deter1 mine whether the warranty imposes a duty upon the assured to have a watchman on board the insured premises at all times.

We are not called upon to determine whether the absence of the watchman contributed to the loss. The warranty is clear and definite. Has it been performed? The facts show that it has not.

As was said by Chief Justice Whelpley, speaking for the Supreme Court in School Trustees v. Bennett, 27 N. J. L. 513:

“No rule of law is more firmly established by a long train of decisions than this, that when a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident or inevitable necessity because he might have provided against it by his contract.”

And, in Kupfersmith v. Delaware Insurance Co., 84 N. J. L. 271, Chief Justice Gummere, speaking for the Court of Errors and Appeals, said:

“The law will not make a better contract for parties than they themselves have seen fit to enter into, or alter a contract for the benefit of one party and to the detriment of the other. The judicial function of a court of law is to enforce a contract as it is written.”

I find, as a matter of fact, that plaintiff breached the warranty in question, and that defendants are entitled to judgment.


text:
    Camden County Circuit Court.
    D. W. DAWSON, PLAINTIFF, v. E. FRANK PINE, DEFENDANT.
    Decided June 21, 1928.

      For the plaintiff, Frank Nelson Jess.

    For the defendant, A. Moulton McNutt.

   Donges, J.

This is an action in replevin by plaintiff, a chattel mortgagee, against defendant, who is in possession of property purchased at a sale by the sheriff of Camden county, on execution of a judgment of defendant against one Fredia E. Cotter, who mortgaged said chattels to plaintiff.

The facts are stipulated, and a single question is submitted, namely, whether the affidavit made by the plaintiff, as chattel mortgagee, is a sufficient compliance with the statute. That affidavit is as follows:

ss. "State oe New Jersey Camden County
D. W. Dawson, being duly sworn according to law on his oath says: That he is the mortgagee in the foregoing mortgage named; that the true consideration of said mortgage, which is hereby made part hereof for the purpose of explaining, amplifying or qualifying this affidavit, is as follows, viz.:
Contingent liability on endorsement of the note of [$400] four hundred dollars, made by Fredia E. Cotter, payable at the Merchant’s Trust Company at Camden, N. J.
One hundred fifty dollars [$150] advances made in cash by mortgagee to mortgagor prior to the ensealing of these presents.
Five hundred dollars [$500] paid at the ensealing of these presents.
And that there is due on said mortgage the sum of ten hundred fifty dollars [$1,050] besides lawful interest thereon from the thirtieth day of July, a. d. 1926.
D. W. Dawson.
Sworn and subscribed this 31st day of July, A. D. 1926, before me,
Frank Nelson Jess,
Att’y at Law of N. J.”

The defendant asserts that the affidavit is insufficient, and that the mortgage, therefore, is invalid, because it does not sufficiently set out the true consideration of the mortgage. Defendant asserts that the first statement relating to the contingent liability does not sufficiently apprize an intending creditor of the liability thereunder. I think that this point cannot be sustained. The language herein used is very similar to that passed upon by Vice-Chancellor Grey in the Court of Chancery, in the case of W. & B. Douglass et al. v. Williams et al., 48 Atl. Rep. 222, where a statement of liability, or contingent liability, upon a promissory note and the renewal thereof was not set forth with any greater particularity than in the case under consideration. This case was cited with approval by the Court of Errors and Appeals in American Soda Fountain Co. v. Stolzenbach, 75 N. J. L. 721.

The second objection, that the affidavit-does not state that the sum of one hundred and fifty dollars ($150) mentioned as the second item of consideration was due at the time of the affidavit is not borne out by the affidavit, which states that the three items, aggregating ten hundred and fifty dollars ($1,050) are all due at the time that the affidavit was made.

The third objection is that the affidavit does not disclose that the sum of $500 was advanced bj' the mortgagee to the mortgagor. It seems to me that when the whole instrument is read, it leaves no doubt that the money was advanced by the mortgagee to the mortgagor" at the time of the execution of the mortgage, and then states that it is still due on the mortgage. That the moneys were due to the mortgagee as claimed in the affidavit is not disputed.

In the case of Howell v. Stone & Downey, 75 N. J. Eq. 289, the Court of Errors and Appeals held that “in the case of a bona fide chattel mortgage, the statutory affidavit of consideration should be liberally, not technically construed.”

Judge Dill in that case said:

“Prior to the decision of this court in American Soda Fountain Co. v. Stolzenbach, 75 N. J. L. 721, the statutory affidavit of consideration of a chattel mortgage had been construed by courts below as ca statutory requirement of considerable technicality/ but in that case we squarely rejected that doctrine, holding that in the absence of fraud, instruments so common in the course of commercial transactions by laymen as chattel mortgages should be sustained-whenever there is an honest and substantial compliance with the statute.
“An affidavit of consideration is not to be tested by the rules of pleading nor treated as a technical requirement. On the contrary, it should be the aim of courts, when the mortgage is bona -fide, to preserve and not to destroy, and, as Sir Matthew Hale said, the court should be astute to find means to make such instruments effectual according to the honest intent of the parties.”

There is no allegation of fraud. There is no claim that the liabilitj"- set forth is not a true statement of the exact situation. The attack is purely technical and not based upon merits. It seems to me that no intending creditor could be misled, and that he would be put upon notice of the debt sufficiently to inform himself whether it was, in fact, just and owing, or whether it did not exist.

As was said in Howell v. Stone, supra, “the statement of the consideration was a summary of the facts rather than a detailed history of the transaction.” As was said in Strong v. Gaskill, 59 Atl. Rep. 339, “the affidavit stated the consideration with substantial truth and it is immaterial that it is inartificially drawn and not technically precise.”

Plaintiff is entitled to judgment.


text:
    Mercer County Circuit Court.
    NATIONAL RADIATOR COMPANY, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY, DEFENDANT.
    Decided June 21, 1928.
    For the plaintiff, Hutchinson & Hutchinson.

    For the defendant, Theodore Strong.

   Donges, J.

A jury having been waived, this case is before me on stipulated facts.

Between October 2d, 1920, and June 21st, 1921, plaintiff shipped over the railroad of defendant, sand originating at Vineland and South Vineland, New Jersey, and destined to Trenton, New Jersey. Defendant is a common carrier. Eor the service, plaintiff paid to defendant at the rate of nine (9) cents per hundred pounds, plus United States revenue thereon. This rate was in accordance with the existing tariffs for shipment of such commodity at the times of such shipments. This rate was put into effect on August 26th, 1920, after hearing by the interstate commerce commission as to interstate rates, and after the filing of a report by the New Jersey public utility commission, on August 18th, 1920, suggesting that such rates be filed, but recommending that they not apply “to intrastate shipments of sand, gravel and broken stone to be used for road building and repair, unless it appears more clearly than at present that this would be just and reasonable.” •Between June 25th, 1918, and August 26th, 1920, the rate on sand moving between Vineland or South Vineland and Trenton was six and one-half cents per one hundred pounds, under authority of General Order No. 28, issued by the director general of railroads. The carriers declined to adopt the board’s recommendation to carry materials for road building and repair at a lower rate, and asked for a hearing, and the public utility commission, on May 25th, 1921, found the rate of nine cents per hundred pounds “unjust, unreasonable and unduly discriminatory.” Thereupon, this defendant, on July 1st, 1921, filed tariffs in accordance with such conclusion of the public utility commission, carrying a rate of seven and one-half cents per hundred pounds for sand, irrespective of the use to be made thereof.

In its report of May 25th, 1921, made part of the stipulation in this ease, the utility commission said: “The shippers seek in these proceedings not only to have declared the proposed tariff to be unjust and unreasonable, but also seek to have the rate imposed under General Order No. 28 declared to be unjust and unreasonable. We recognize the force of this suggestion, but the matter of making any adjustment of the charges collected by the carrier under General Order No. 28 is impossible; that increase was permitted to become and has been in effect, and was not challenged nor attacked before this board prior to its becoming effective under the law. While, therefore, the board cannot adjust charges made under General Order No. 28 if they appear to be excessive, it can consider such excess in conjunction with its consideration of the justness and reasonableness of the proposed rates.”

The board found that the rates charged for the shipment of sand “are unjust, unreasonable and unduly discriminatory.”

It also said: “We conclude that the imposition of fifteen per cent, upon the rates existing and charged by the railroads prior to the increase authorized by the interstate commerce commission in ex parte 74 would be just and reasonable. The imposition of this percentage will remedy the discrimination caused by General Order No. 28 as between these commodities and all other commodities affected by that order, and will also bring the New Jersey rates into appropriate alignment with the rates on these commodities in adjoining states.”

This suit is brought to recover one and one-half cents for each one hundred pounds of sand shipped by plaintiff over defendant’s road between October 2d, 1920, and June 21st, 1921, when it paid the rate of nine cents per hundred pounds. This claim represents the difference between the then existing nine cent rate and the seven and one-half cent rate established by the tariffs filed on July 1st, 1921, in accordance with the public utility commission’s report of May 25th, 1921.

The complaint alleges that plaintiff paid nine cents per hundred pounds; that the board of public utility commissioners found, on May 25th, 1921, that such rate was unjust, unreasonable and unduly discriminatory, and that the imposition of fifteen per cent, upon the rate existing prior to the nine cent rate (namely, six cents) would be just and reasonable. Tariffs were filed carrying a rate of seven and one-half cents per hundred pounds.

Plaintiff alleges that the defendant refunded or paid back to certain other shippers of sand the difference of one and one-half cents per hundred pounds, plus tax thereon, between the rate of nine cents per hundred pounds plus tax thereon, and seven and one-half cents per hundred pounds plus tax thereon.

In the stipulation, it appears that between October 2d, 1920, and June 21st, 1921, defendant transported over its line of railroad between stations in the State of New Jersey, sand of similar quality for E. Riley Mixner and to T. J. Wasser, state highway engineer, and others, and collected at the rate of nine cents per hundred pounds, and that “subsequent to the finding by the board of public utility commissioners on May 25th, 1921, defendant refunded to E. Riley Mixner and to T. J. Wasser, the New Jersey state highway engineer, the difference between the nine cent rate and the seven and one-half cent rate, or one and one-half cents per one hundred pounds, on all shipments of sand made by or for them for road building or road repair between the period extending from August 26th, 1920, to June 21st, 1921, the payments amounting with interest to $786.98 in the case of E. Riley Mixner, and $906.51 in the case of T. J. Wasser;” “that defendants made no refunds except on shipments for road building or road repair, and that the shipments involved herein were not for road building or road repair,” that plaintiff made claim for a refund of one and one-half cents per hundred pounds on shipments between the dates of the refund to others, and defendant refused to pay same.

This case presents two questions, namely, (1) were the refunds to Mixner and Wasser unduly preferential and unjustly discriminatory as against the plaintiff? (2) If they were, can plaintiff recover its payments in excess of the rates charged others for-like service?

Plaintiff does not seek to have the rates imposed by defendant declared to be unjust and unreasonable, nor does it sue for reparation. The statute confers no power upon-the board of public utility commissioners to award reparation. It may declare an existing rate to be unjust, unreasonable, insufficient or unjustly discriminatory, or unduly preferential, and fix just and reasonable rates. Pamph. L. 1911, p. 376, subdiv. 0, § 16.

Subdivisions A, B, C and D (section 18 of said act) prohibit the making of any unjust or unreasonable rate, classification or practice, or the making or giving “directly or indirectly any undue or unreasonable preference or advantage to any person or corporation, or to any locality, or to any particular description of traffic in any respect whatsoever, or subject any particular person or corporation, or locality, or any particular description of traffic, to any prejudice or disadvantage, in any respect whatsoever.”

These provisions of the act of 1911 are only declaratory of the common law. The doctrine that all shippers shall be treated alike was enacted into English law in 1854 by 17 and 18 Viet., ch. 31, and by our state in the act of 1911 above referred to. The courts of this state have followed the common law in a number of eases. McGregor v. Erie Railroad Co., 35 N. J. L. 89; Messenger v. Pennsylvania Railroad Co., 37 Id. 531; Atwater v. Delaware, Lackawanna and Western Railroad Co., 48 Id. 55.

In the instant case, defendant had filed tariffs for the carriage of the commodities in question, and such tariffs made no change in rate for carriage of such commodities if used for a particular purpose.

The statute (section 18, supra) is explicit in requiring equal and exact treatment of all shippers. In the Messenger case, the duty was thus defined:

“A common carrier owes an equal duty to all, and it cannot be discharged if he is allowed to make unequal preferences and thereby prevent or impair the enjoyment of the common right.”

Mr. Justice Bedle, in that case, said:

“A want of unifprmity in price for the same kind of service under like circumstances is most unreasonable and unjust, when the right to demand it is common. It would be strange if, when the object of the employment is the public benefit, and the law allows no discrimination as to individual customers, but requires all to be accommodated alike as individuals, and for a reasonable rate, that by the indirect means of unequal prices some could lawfully get the advantage of the accommodations and others not.”

As above stated, the tariffs of. defendant made no change in the rates for carriage of the commodities in question, based upon the use to be made of such commodities. The fixing of rates, for interstate carriage, dependent upon the ownership of the goods tendered was held invalid by the United States Supreme Court in the Interstate Commerce Commission v. Delaware, Lackawanna and Western Railroad Co., 220 U. S. 235. The same court held in Interstate Commerce Commission v. Baltimore and Ohio Railroad Co., 225 Id. 326, that a difference in intended use of coal did not justify a difference in rate. In that case (at p. 342), Mr. Justice McKenna said:

“It is admitted that the fact that a railroad is the shipper or consumer is not a circumstance or condition that affects the carriage, nor can the different uses to which the coal may be put; and it would seem necessary that any other extraneous condition or circumstance could have no greater potency. Once depart from the clear directness of what relates to the carriage only, and we may let in considerations which may become a cover for preferences. May a carrier look beyond the service it is called npon to render to the attitude and interest of the shippers before, or their attitude or interest after, transportation? It must be kept in mind that it is not the relation of one railroad to another with which we have any concern, but the relation of a railroad to its patrons, who are entitled to equality of charges.”

Prom the stipulation of facts and from defendant’s brief, it appears that defendant did not acquiesce in the exception that the rates proposed by the order of the public utility commissioners, dated August 17th, 1930, should not apply to the carriage of the commodities in question for road building or road repair, and upon application of the carriers, a hearing was held, which resulted in an order fixing rates for such carriage, without the exception noted. It appears from the stipulated facts, therefore, that defendant was never required either by its tariffs or by order of any authority to carry sand, gravel or broken stone at a lower rate than fixed by its filed tariffs for any consignor or consignee. So far as appears in the stipulation of facts, its rebate or drawback to Mixner and Wasser was entirely voluntary.

The stipulated facts disclose that the service to plaintiff, and to Mixner and Wasser, was for the carriage of “sand of similar quality” * * * “over its line of railroad in the State of New Jersey and between its stations in the State of New Jersey.” Hence, it must be concluded that the service rendered to plaintiff and that rendered to Wasser and Mixner were under like circumstances.

It appears, therefore, that the defendant charged nine cents per hundred pounds for the carriage of plaintiff’s sand, and charged seven and one-half cents per hundred pounds to others for similar service. The charge to Mixner and Wasser was not the lawful rate. The rebate resulted in the giving of an undue preference and was an unjust discrimination against plaintiff, and was in violation of law.

At common law the courts had jurisdiction over the subject-matter. The passing of rate-regulating statutes which furnish no remedy to shippers for discrimination in rates do not take away the shipper’s common law right of action for damages for such discrimination. As above, stated, plaintiff is not seeking reparation. It is not attacking the reasonableness of the rate. It asserts the right to be put in the same position as to payment for like service as other favored shippers.

In the case of Great Western Railway Co. v. Sutton (L. R.), 4 H. L. 226, cited in Interstate Commerce Commission v. Baltimore and Ohio Railroad Co., 145 U. S. 277, and in Scofield v. Lake Shore and M. S. Railway Co., 43 Ohio St. 615; 3 N. E. Rep. 927; it was said:

“When it is sought to show that the charge is extortionate as being contrary to the statutable obligation to charge equally, it is immaterial whether the charge is reasonable or not; it is enough to show that the company carried for some other person, or class of persons, at a lower charge during the period throughout which the party complaining was charged more, under the like circumstances.”

I can find no ease in this state dealing with the question of the measure of damage recoverable in a case like this one. Unlike the acts of congress, which declare the measure of damages recoverable, our statutes merely prohibit the giving of preferences. The recovery must be in accord with the common law.

The doctrine of the common law as well as the provisions of our statute against undue preferences are for the benefit of the shipper. The law requires that there shall be equality 'between shippers. How may this equality be maintained if a less favored shipper has no remedy to put him in the same position as the favored shipper?

While all authorities agree that discrimination in rates for like service is unlawful, there is a conflict as to the measure of damages in such cases. According to one line of decisions, the damage is to be measured by actual loss. Pennsylvania Railroad Co. v. International Coal Co., 230 U. S. 184.

This decision rests, however, upon the peculiar terms of the act of congress. As the bill passed the senate on May 12th, 1886, section 2 provided that the carrier should be liable for the difference between the rate charged and the lowest rate charged for like service. This was changed before passage by both houses, and accounts for the adoption of another measure of damages.

Likewise, Hoover v. Pennsylvania Railroad Co., 156 Pa. St. 220; 27 Atl. Rep. 282, was based upon a finding that the services involved not being similar, there was no unjust discrimination.

By the other line of decisions, it is held that the measure of damages is the difference between the charges paid by plaintiff and those exacted from the more favored shipper.

Such a case is Union Pacific Railway Co., 149 U. S. 682, in which this measure of damages was sustained under the Colorado statute, which required all persons to be treated alike.

Likewise, in Cook et al. v. Chicago, R. I. and P. Railway Co., 81 Iowa 551; 46 N. W. Rep. 1080.

This question was fully discussed in a very enlightening opinion of the Minnesota Supreme Court, in Sullivan v. Minneapolis and R. R. Railway Co., 142 N. W. Rep. 3, in which the authorities are reviewed. In that case it was held:

“In such an action, whether based upon the common law or the statutory duty not to discriminate in rates, the shipper may recover the difference between the charges exacted of him and those accepted from the most favored shipper.”

As was said by Mr. Justice Philip E. Brown, in that case:

“As soon, therefore, as the duty of equality is established, by reference either to the common law or to statute, the general damages incident to a violation thereof obviously include the difference between the charges involved in the discrimination, whether, as in the English case cited, they be viewed as flowing from extortionate or excessive charges, or, as in our conception thereof, they be deemed as purely compensatory, by way of restoration of equality. The wrong complained of being unlawful discrimination, the damages inevitably incident thereto must include the difference between the amount paid by the shipper from whom the full rate is exacted and that accepted from the more favored one. Any other conclusion would, in many cases, deprive the shipper of the benefit of the rule of equality, and we would have the resultant anomaly of the invasion of a right coupled with the denial of a remedy.”

This conclusion seems to me to be supported by both reason and authority.

Finally, defendant urges that the payment to defendant was voluntary and therefore not recoverable.

I am unable to reach this conclusion.

When plaintiff made the payment, it was not aware that defendant was giving, or intended to give, a lower rate, by draw-back or refund, to any other shipper. It had a right to assume the carrier would charge all shippers in accordance with its filed rates. It obtained knowledge after the date when the last shipment involved in this suit was made. It did not make payment with full knowledge of all the facts.

Even if plaintiff had knowledge of the refunds to Wasser and Mixner, under authority of McGregor v. Erie Railway Co., 35 N. J. L. 89, and Cook et al. v. Chicago, R. I. and P. Railway Co., supra, plaintiff would not be barred from recovery, having made protest by demanding equalitjr, upon learning of the facts.

I.find, therefore, that the refund to Mixner and Wasser, and defendants refusal to treat plaintiff in like manner as to charges for like service, created and constituted an unjustly discriminatory and unduly preferential rate and charge, and subjected plaintiff to prejudice and disadvantage, and was contrary to law, and that' plaintiff is entitled to have from defendant the excess of such charges, being one and one-half cents for each hundred pounds shipped to it, as set forth in the agreed state of facts, amounting to the sum of $1,044.11, with interest thereon.


author: Katzenbach, J.

text:
    ISRAEL RICHMOND, TRADING AS THE TIRE SHOP, PLAINTIFF, v. THE MILLER RUBBER COMPANY OF NEW YORK, A CORPORATION, DEFENDANT.
    Argued June 28, 1928
    Decided July 26, 1928.
    For the motion, Louis Rudner.

    Contra, Hervey S. Moore.

   The opinion of the court was delivered by

Katzenbach, J.

This is a motion to strike out a complaint. The complaint contains four counts. The defendant seeks to have stricken out each of the four counts. The plaintiff is a retail dealer in automobile tires and tubes. The defendant is a manufacturer of tires and tubes. On February 10th, 1926, the plaintiff and defendant entered into an agreement by which the defendant granted to the plaintiff the right to sell the product known as “Miller casings, tubes and accessories,” in the city of Trenton, New Jersey. Upon the back of the agreement and made a part thereof were certain covenants and conditions. One of these is that the contract is not to be construed as constituting the dealer (the plaintiff) an agent for any purpose other than those stated in the agreement. A second agreement was made on the same day between the parties by which the plaintiff was given the right to sell in the city of Trenton Miller “geared to the road, heavy-duty, cord casings and tubes” of certain sizes (excepting to manufacturers of motor vehicles). The covenants and conditions of this agreement provided that the dealer (the plaintiff) has not the exclusive right to sell the company’s products in the territory specified.

The first count of the declaration reads as follows:

“1. That for a period of ten years plaintiff and defendant have been under contractual relationship, the terms of which provided that plaintiff was to act as dealer for the defendant’s products in the city of Trenton, county of Mercer and State of New Jersey; that these agreements operated as an exclusive agency for the Miller products. That the contract was to expire in 1930. That without any notice, or cause, the said defendant suddenly canceled the aforesaid agreement to the loss of the plaintiff of $10,000.”

The plaintiff, complying with a demand for a bill of particulars made by the defendant, predieatés this count upon the contention that the written contracts hereinbefore referred to are exclusive agency contracts. This position is not sound. The 'contracts speak for themselves. Their terms cannot be altered, waived or modified except in writing and with the approval and consent of certain designated agents of the defendant. This is so provided in paragraph 7 of the contracts. This, together with the provisions of the agreements already referred to, is conclusive as to the .fact that the contracts were not exclusive. It is an accepted rule of construction that a contract of employment does not give the broker an exclusive agency unless it is so specified either expressly or by implication in the contracts. Ettinger v. Loux, 96 N. J. L. 522; 4 R. C. L. 259. Eor these reasons the first count will be struck out.

The second count is in the following language:

“1. That plaintiff expended large sums of money for advertising purposes and that his damages in this regard is the sum of $1,556.85.”

This count, as amplified by the bill of particulars, is a claim for fifty per cent, of the advertising bills of the plaintiff upon the theory that the defendant paid fifty per cent, of the advertising bills of the plaintiff from October 16th, 1925, to January 15th, 1927, which was the approximate date when the plaintiff alleged that the defendant breached its contract. The terms of the contracts above referred to have a paragraph therein relating to advertising. This reads as follows:

“(3) Advertising. The company agrees to supply the dealer with such advertising and selling helps as the company may put out from time to time, such as folders, inserts, handbills, picture slides and special stationery bearing the dealer’s name, part of these advertising and selling helps to be supplied the dealer free of charge and part to be charged for at a nominal sum, which at no time shall exceed the cost of such material to the company, in addition, the company agrees to assist in planning, upon request, any advertising campaign for increasing the dealer’s sales.”

This limits the extent to which the defendant was reponsible for advertising under the contract. The plaintiff’s contention that it was a trade custom for the manufacturer to pay fifty per cent, of the cost of advertising has no foundation in law. The contract is clear and unambiguous on this subject and cannot be modified by a trade custom in a particular locality. Rodgers v. Rodrock, 98 N. J. L. 490; Schenck v. Griffin, 38 Id. 462. The second count will be struck out.

The third and fourth counts deal with the subject of readjustments. They are worded in the following language:

“third count.
“1. That plaintiff has made repeated demands on defendant for adjustments of tires and to date has received but little satisfaction. That plaintiff, despite the fact that defendant would not make proper adjustments was compelled to make these adjustments with his Miller customers. That plaintiff’s damages in this regard is the sum of $812.30.
“fourth count.
“1. Plaintiff has sold many tires and tubes which are coming back to his place of business daily for proper adjustment. Figured on a basis of ten years’ business experience plaintiff’s damages will amount to $477.13 on this account.”

With respect to readjustments the contracts have an express provision. It is as follows:

“(2) Adjustments. The dealer shall make no adjustments until authorized in writing by the company but shall return to the company at Akron, Ohio, or the company’s nearest branch, transportation charge prepaid, all tires and tubes which are received by the dealer for replacement under the ninety-day warranty accompanied by a “Standard Claim Form” filled out in detail and duly signed by the tire owner, it being understood and agreed that the company will, in accordance with its usual adjustment policy, examine said casings and/or tubes, and promptly advise the dealer of its decision.”

What the plaintiff desires to do is to recover upon a trade custom where there is a contract in existence between the parties covering the subject-matter complained of by the plaintiff. Upon the authority of the cases already quoted with reference to trade customs the third and fourth counts- are bad. They will be struck out.


author: Per Curiam.

text:
    ANTONIETTA DeFEO ET UX. v. PEOPLES GAS COMPANY OF NEW JERSEY.
    Decided July 26, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      For the appellant, Howard L. Miller.

    For the respondents, Thomas G. Tuso.

   Per Curiam.

This suit was instituted by DeEeo and his wife to recover compensation for injury to the health of the wife caused by drinking water from their well, which had become polluted by gas escaping from the pipes of the defendant company. The trial resulted in a verdict in favor of the plaintiffs, and the defendant has appealed from the judgment entered thereon.

The first ground urged for reversal is that a nonsuit should have been directed because the statute of limitations is a bar to the suit. The argument in support of this contention is that the averment of the complaint shows that Mrs. DeEeo became ill from drinking this polluted water more than two years prior to the institution of the suit. But this is an inaccurate statement of the averment, which is as follows: “The plaintiff [Mrs. DeFeo], by using the water from said well on or about January 1st, 1923, and thereafter, as a direct consequence of using the said gassed water, became, was and still is diseased,” &c. The word “thereafter” extends the beginning period indefinitely, and there is no indication that the terminal period is outside of the statutory limit. Where the tortious act is a continuing one, the fact that it-had its inception prior to the period fixed by the statute does not bar the right of recovery for injuries resulting from that continuation which are within the statutory limits. Morey v. Essex County, 94 N. J. L. 428.

It is next argued that the nonsuit should have been granted because of the absolute failure of proof showing either negligent construction of the defendant’s gas pipes or proper care after they were laid. This contention is based upon a misapprehension of the scope of the testimony. There was evidence that the pipes leaked, and that the gas escaped therefrom, killing the vegetation on the premises of the plaintiffs, and polluting the water in the well; that the plaintiffs had called at the office of the defendant company and notified the person apparently in charge of the existence ,of these conditibns; and that the defendant company took no steps to remedy them. This evidence made the question of liability one to be determined by the jury, and not by the court.

Lastly, it is contended that the motion to nonsuit should have been granted, for the reason that the proofs'conclusively showed that the sickness of Mrs. DeEeo was not caused by the drinking of the well water, but by the breathing of the gas. Our examination of the testimony satisfies us that this contention is not justified; in other words, that there was some proof that the water which Mrs. DeEeo drank from time to time was one of the producing causes of her illness.

These are the only questions argued, and for the reasons indicated we conclude that the judgment under review should be affirmed.


text:
    BENJAMIN A. MARGULIES ET AL., RELATORS, v. MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Submitted May term, 1928
    Decided July 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the relators, John W. Ockford.

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

   Per Curiam.

The situation existing in this matter is in the main quite the same as in Butvinik et al. v. Jersey City, No. 219 of the present term, and the writ is denied and the rule to show cause discharged for the reasons set forth in the memorandum filed in that cause.


text:
    THE STATE, ALEXANDER BORS, RELATOR, v. ALBERT E. DAVIS, Jr., RESPONDENT.
    Decided July 26, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the relator, Edmund A. Hayes.

    For the respondent, Thomas L. Hanson.

   Per Curiam.

The present proceeding was instituted by the relator to compel his restoration to the position of chief of police of the township of Raritan. On March 9th, 1923, the township committee passed an ordinance providing for the establishment of a police department within its territorial limits, which ordinance was introduced and passed on first and second readings on March 2d. Some two weeks later the township committee appointed Davis, the respondent, as assistant to the chief of police, and in 1924 appointed him the head of that department. In March, 1927, the township committee passed another ordinance regulating the police department, and a few days later adopted a resolution appointing the relator, Bors, as the chief of police in the place of Davis. On the 1st of July, 1927, the committee adopted a resolution, the purport of which was that the appointment of Bors was invalid, because it involved the removal from office of chief of police Davis, the present respondent, who was a veteran soldier, and as such was protected by the Veterans’ act from removal from office except for cause; and, for this reason, restored Davis to the position of chief of police. The relator claims that this action on the part of the township committee was without legal justification.

The basis of the relator’s contention is that the ordinance of 1923, and all municipal action based upon it, including the appointment of Davis as chief of police, were invalid because the ordinance was not passed in accordance with the provisions of the statute regulating the adoption of municipal ordinances, in that it was finally passed on an adjourned date, the adjourned day being the continuation of the day of the meeting at which the ordinance was originally introduced; and that, consequently, the restoration of Davis to an office the title to which was never vested in him was without legal warrant. This, however, is a matter which cannot be adjudicated in the present proceeding. A municipal ordinance enacted in pursuance of legislative authority cannot be attacked collaterally. It is presumed to be valid until it is held to be invalid by judicial determination. Overpeck Land Co. v. Ridgefield Park, 6 N. J. Adv. R. 501. And the judicial determination must be in a direct procedure against the municipality, that body being entitled to be afforded an opportunity of being heard in defense of its action in the passing of the ordinance.

This is the only gr'ound upon which the relator claims to be entitled to the writ, and, for the reason indicated, judgment will be entered in favor of the respondent.


text:
    RALPH M. SCALI ET UX. v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY.
    Decided July 26, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellants, Percy H. Penn.

    For the respondent, Henry H. Fryling.

   Per Curiam.

The female plaintiff sued-to recover compensation for injuries received by her from being struck on the lower part of her leg by a flying piece of wood caused by the fall of a pole belonging to the defendant company. She also claimed compensation for a miscarriage, which, she alleged wras the direct result of the personal injury. The husband’s claim was for loss of the wife’s services and the expense incurred by him as the result of her injuries.

At the trial of the cause the court charged the jury that there was no evidence which would support plaintiffs’ claim that the wife’s miscarriage resulted from a blow upon her leg, and that they should-not award her damages therefor. In accordance with this instruction, the jury awarded compensation for the personal injury only.

The principal ground upon which we are asked to reverse the judgment under review is that this instruction failed to take into account the fact that the wife’s miscarriage occurred within a few hours after her physical injury, and that this fact required the question of the case of the miscarriage to be submitted to the jury. We consider this contention unsound. The verdict of a jury must be based upon proved facts supporting it, and not upon mere guess or speculation. The correct principle is stated in the case of Houston v. Traphagen, 47 N. J. L. 23; namely, that where it is claimed that'the physical injury produced or excited disease, it should appear, in order to recover damages for the results of the disease, not only that the injury was a possible cause' thereof, but other causes should be excluded.

The only other ground urged for a reversal is that the court in its charge to the jury misstated the testimony of one of the witnesses. No exception, however, was taken to this portion of the charge, and the appellants cannot now take advantage of it.

Affirmed.


text:
    HERBERT J. KOEHLER, RECEIVER, ETC., v. AARON S. CADES.
    Decided July 26, 1928.

      Before Gummere, Chief Justice, and Justices Black and. Lloyd.
    For the appellant, Lewis Liberman and James M. Davis.

    For the respondent, Louis B. LeDuc.

   Per Curiam.

The plaintiff is the receiver of J. E. Tucker, Incorporated. He brought this suit to recov'er commissions which he claimed .to have been due to the bankrupt corporation under a contract with the defendant for the sale of the latter’s property in Camden. The Tucker concern assigned to the plaintiff all its rights under the contract. The trial resulted in a judgment in favor of the plaintiff, and the defendant has appealed.

The following are the material facts: On the 11th of September, .1925, the defendant delivered to the Tucker concern the following paper: “In consideration of your effecting sale of premises 115 North Third street, Camden, New Jersey, between your clients, Frank Levy and Diana Levy, his wife, and myself and wife, I agree to' pay you a commission of $1,000 at the time of final settlement, December 15th, 1925.” On the day that this paper was signed the Tucker concern negotiated a contract for the sale and purchase of the property between the defendant and his wife and Levy and his wife for $21,000.

The first contention on the part of the appellant, who was the defendant below, is that the judgment under review should be reversed because the agreement referred to was altered after its execution by the plaintiff, the alteration consisting in the insertion after the name “Frank Levy” of the words “and Diana, his wife,” and also the letter s after the word “client.” We consider this contention to he without merit. The proofs make it clear that a blank was left for the insertion of the name of Levy’s wife in case he was then married — a fact which neither of the parties certainly knew— and the evident purpose of the parties was to permit Tucker to fill in this blank after the fact was discovered. The law is entirely settled that if a person executes an agreement knowing that there are blanks in it to be filled up by inserting particular names, he is considered as consenting that the blanks may be thus filled after he has executed the contract.

It is further argued that this agreement was improperly admitted in evidence because it was never signed by Levy’s wife. The proof, however, was to the contrary; that is, the evidence showed due execution by Diana Levy.

Next, it is argued that the court should have directed a nonsuit. The first ground upon which the direction was asked for was that the paper heretofore referred to was without legal force. This matter we have already disposed of. The second ground was that the plaintiff had failed to show that the Tucker concern had produced a party able and willing to purchase. A conclusive answer to this contention is that the Tucker concern was under no such obligation. Its contract was that it should produce particular persons as the purchasers, namely, Levy and his wife; and the defendant agreed that, if these purchasers were produced, the Tucker concern should be paid the commission referred to.

The last ground upon which we are asked to reverse the judgment before us in that the charge of the court was erroneous in that it virtually required the jury to render a verdict in favor of the plaintiff and against the defendant if they did not find that the plaintiff’s assignee had been guilty of bad faith. This contention, however, is not based upon any of the reasons for reversal filed by the appellant, and, therefore, is not now entitled to consideration.

The judgment under review will be affirmed.


text:
    AMELIA SANTOS v. OSCAR ANDERSON ET AL.
    Decided July 26, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellant, Irving Siegler.

    For the respondent, Michael J. Bruder.

   Per Curiam.

This suit was instituted by the plaintiff on Eebruary 15th, 1927, to recover damages from one Anderson, her claim being based upon the alleged fraud of the latter. An order for a capias was issued against Anderson, and Morris Le Vor and Isadore Kaplan became the sureties on the defendant’s bond. By the terms thereof, they agreed that if the plaintiff should recover against Anderson and the latter should fail to pay the costs and condemnation of the court, he would render himself into the custody of the sheriff of Essex county; and that, upon his failure to do so, they would pay the costs and the condemnation, or else would render him into the custody of the sheriff. No answer was filed by Anderson to the suit, and judgment by default was entered against him. The court issued a rule to show cause against the sureties requiring them to bring in the body of the defendant Anderson or become amerced. A hearing was had on the return of this rule, at •which the sureties were present, with their counsel, and as a result thereof the rule was made absolute and the sureties were amerced in the amount of the judgment. A few days later this rule was amended by providing that the bail deliver the body of Anderson into the custody of the sheriff or cause new and sufficient bail to be put in-and approved in a short day, therein specified, and amercing them in the amount of the bond in the event of their failing to comply with this mandate. They paid no attention to this procedure, and the rule of amercement, was thereupon confirmed. Prom this rule of confirmation the present appeal is taken by Le Yor and Kaplan, the sureties on the bond.

The principal ground upon which the rule of amercement is attacked is that the proceedings against the bail were not justified under section 16 of the Practice act of 1903. This criticism is directed at the original rule of amercement and the subsequent amendment thereof. Assuming that this contention is well founded, we consider that it would not justify a reversal of the rule under review, for the reason that it becomes immaterial, in view of the fact that a writ of inquiry was thereafter issued and returned, and that final judgment was thereupon entered against the sureties and that these latter steps were in strict accordance with the provision of the statute relating to forfeiture of bail. This being so, section 21 of the Practice act of 1912, which provides that no judgment shall be reversed for error as to matters of procedure unless, after examination of the whole case, it shall appear that the error injuriously affected the substantial rights of a party, is a bar to a reversal upon the ground urged.

It is further argued that our statute relating to bail violates the fourteenth amendment of the federal constitution, so far as it applies to the present case, because it deprives the appellants of their property without due process of law; and that it is also violative of our own constitution in that it deprives the defendants of a right to trial by jury. We find nothing of merit in either one of these contentions, and consider that the argument in their support is without substance.

The rule of amercement will be affirmed.


text:
    DAVID LERNER, RELATOR, v. MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Submitted May term, 1928
    Decided July 27, 1928.
    Before Justices Minturn and Campbell.
    For the relator, Benjamin Gross.

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

   Per Curiam.

Relator seeks a writ of mandamus to compel respondents to issue to him a permit to erect an apartment house on Gifford avenue, Jersey City.

We have reached the same conclusion here as in Butvinik et al. v. Jersey City, No. 219 of the present term, and for the reasons there given the present application is denied and the rule to show cause is discharged.


text:
    ANDREW O. HORN ET AL., PROSECUTORS, v. BOARD OF ADJUSTMENT OF THE CITY OF NEWARK ET AL., RESPONDENTS.
    Submitted May term, 1928
    Decided July 27, 1928.
    Before Justices Minturn, Black and Campbell.

      For the rule, Michael J. Tansey.

      Contra, Jerome T. Congleton, J. Harry Henegan and Koehler & Augenblick.

   Per Curiam.

Finding no debatable question of law or fact involved the application for the writ of certiorari is denied and the rule to show cause is discharged, with costs.


text:
    ALVIN J. BALDWIN, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF EAST ORANGE ET AL., RESPONDENTS.
    Submitted May term, 1928
    Decided July 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Ira C. Moore, Jr.

    For the respondents, Walter C. Ellis.

   Per Curiam.

Under this writ we are asked to reverse the judgment of the board of adjustment of the city of East Orange, refusing to prosecutor a permit to erect an apartment house.

Koplin v. South Orange, 6 N. J. Mis. R. 489, and Bellofatto et al. v. Montclair, Ibid. 512, are controlling and the judgment under review is affirmed and the writ dismissed, with costs.


text:
    NATHAN BUTVINIK ET AL., RELATORS, v. MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Submitted May term, 1928
    Decided July 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the relators, Isaac Gross.

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

   Per Curiam.

Relators seek a writ of mandamus to compel respondents to issue to them a permit to erect an apartment house on Lembeck avenue in Jersey City, which, by the present ordinance of the city, is a district limited to residential uses.

Relators contend that their proposed building comes within this class, although it is an apartment house, because it is not designed to contain stores or accommodations for other business. Whether-that be so or not we think that under the circumstances relators should not at this time have the benefit of this writ but that respondents should, by virtue of this constitutional amendment which became effective October 18th, 1927, and the legislation thereunder (Pamph. L. 1927, p. 818), have an opportunity to adopt proper municipal legislation thereunder.

The rule to show cause is therefore discharged.


text:
    MORRIS BURG ET AL., PROSECUTORS, v. BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC ET AL., RESPONDENTS.
    Submitted May term, 1928
    Decided July 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutors, Andrew J. Foulds, Jr.

    For the respondents, Joseph J. Weinberger.

   Per Curiam.

The judgment and proceedings under review are affirmed and the writ of certiorari dismissed under authority of Bellofatto et al. v. Montclair, 6 N. J. Mis. R. 512.


text:
    PARK AND PROSPECT, INCORPORATED, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF ORANGE ET AL., RESPONDENTS.
    Submitted May term, 1928
    Decided July 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Edward L. Davis.

    For the respondents, William A. Calhoun.

   Per Curiam.

Under this writ we are asked to reverse the judgment of the board of adjustment of the city of Orange, refusing to prosecutor a permit to erect an apartment house.

Bellofatto et al. v. Montclair, 6 N. J. Mis. R. 512, is controlling, and the judgment under review is affirmed and the writ dismissed, with costs.


text:
    CLAREMONT BUILDING COMPANY, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF NEWARK ET AL., RESPONDENTS.
    Submitted May term, 1928
    Decided July 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Maurice J. Zucker.

    For the respondents, Jerome T. Congleton.

   Per Curiam.

The judgment of the board of adjustment of the city of Newark refusing to prosecutor a permit to erect an apartment house is sought to be set aside. We are controlled by Bellofatto et al. v. Montclair, 6 N. J. Mis. R. 512, and the judgment under review is therefore affirmed and the writ dismissed, with costs.


text:
    THE NATIONAL LOCK WASHER COMPANY v. ROYAL INDEMNITY COMPANY.
    Decided July 30, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Reed & Reynolds.

      Contra, John W. McGeehan, Jr.

   Per Curiam.

The rule in this cause was allowed for the purpose of testing the validity of a verdict rendered in favor of the defendant. The plaintiff sued upon a contract of insurance, the purpose of which was to protect it from loss resulting from the breaking down of a motor which was installed in its steel rolling mill, at Eiverside, New Jersey, for the purpose of furnishing power to its rollers. The case made by the plaintiff was that during the continuance of the policy, and while the motor was running at high speed, an accident occurred to it, which was indicated by vibrations and by failure to operate at its usual speed when running on high tension; and that when this condition was discovered the motor -was stopped, and an examination showed that it was out of order and needed repair. The plaintiff thereupon caused the repair to be made, and brought this suit to recover from the insurance company the expense of that repair, and also the loss resulting from the cessation of operation.

The rights of the parties depend upon the following provision in the policy, which, after declaring that the defendant company should be responsible for any loss resulting in the stoppage of work due to any indirect results of breakdown, then declares that ‘^breakdown shall mean sudden, substantial and accidental breaking or burning out of the machine, or any part thereof, while in use, or installed and connected ready for use, which immediately stops the functions of the machine and which necessitates repair or replacement before its functions can be restored.” The verdict of the jury was evidently based upon its conclusion that the proofs as submitted by the plaintiff failed to show that there had been such a breakdown of its motor as was covered by the policy; and, having so concluded, it was justified under the charge of the court, in returning the verdict which the plaintiff now attacks.

The law of the case was properly charged by the court, and there was no error in the refusal to charge certain requests submitted by the defendant except as they had been charged.

The rule to show cause will be discharged.


text:
    M. AUGENBLICK & BROTHER, INCORPORATED, APPELLEE, v. DANIEL C. WILNER, APPELLANT.
    Argued January term, 1928
    Decided August 7, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the appellee, Stein, McGlynn & Hannoch.

    For the appellant, Abraham Henig.

   Per Curiam.

The facts agreed upon are as follows: On June 20th, 1924, plaintiff entered into a lease with one William D: Jacobs, who subsequently became president of the United Furniture Factories, Incorporated, which lease was assigned to the United Furniture Factories, Incorporated, with the consent of the plaintiff. By the terms of the lease the plaintiff rented the building No. 28 Cherry street, Newark, for the term commencing the 1st day of August, 1924, and ending the 31st day of July, 1925, at the yearly rental of $2,700, payable in monthly installments of $225 in advance on the first of each and every month for said term.

On May 14th, 1925, a petition in bankruptcy was filed against the said United Furniture Factories, the tenant, and a receiver was appointed, who subsequently was duly elected trustee of the bankrupt estate.

On June 11th, 1925, the trustee in bankruptcy conducted a sale of all the assets of the bankrupt company, and as part of the assets sold the lease covering the said premises, which was bid in by the defendant, David C. Wilner, for the sum of $50. An order confirming said sale was thereafter duly entered in the proceedings.

The defendant, David C. Wilner, did not pay the said consideration of $50, and did not receive or accept the written assignment of the lease, and the said defendant never entered into possession or occupation of the said premises. A suit to recover the $50 bid on the sale as rent for the premises resulted in a judgment for the plaintiff, from which this appeal was taken.

The question propounded is whether the plaintiff can recover as rent for the premises the amount of defendant’s bid for the lease at the sale. Defendant did not pay the $50, nor did he receive or accept a written assignment of the lease, and neither did he enter upon or occupy the premises. There was therefore in the case neither privity of contract nor privity of estate upon which the legal relation of landlord and tenant can be predicated.

The accepted rule is that the purchaser of a leasehold at a judicial sale is liable to the lessor to the same extent as any other assigns, as soon as he secured the title, whether he takes possession or not. 16 R. C. L. 118, and cases cited.

So, in Catlin v. Jackson, 8 Johns. (N. Y.) 520, it was declared that neither a seizure of lands under a fi. fa. nor an auction sale by the sheriff divested the title of the debtor, until a deed was delivered by the sheriff.

In accordance with this rule this court held in Donovan v. Brenning, 79 N. J. L. 202, that even an action for use and occupation could not be maintained in the absence of proof of the relationship of landlord and tenant. “This inquiry,” we there declared, “must be answered in the negative,” citing Brewer v. Conover, 18 N. J. L. 214; Van Valkenburg v. Rahway Bank, 23 Id. 583; Freeman v. Headley, 33 Id. 523.

The result is that the judgment will be reversed.


text:
    THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, LESSEE OF THE MORRIS AND ESSEX RAILROAD COMPANY, AND THE MORRIS AND ESSEX RAILROAD COMPANY, PROSECUTOR, v. THE CITY OF ORANGE ET AL., DEFENDANTS.
    Argued January term, 1928
    Decided August 7, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Frederic B. Scott.

    For the defendants, William A. Calhoun.

   Per Curiam.

This writ reviews certain assessments levied for street improvements, in the city of Orange. Four of the assessments were levied against the Morris and Essex Eailroad Company one against the Delaware, Lackawanna and Western Eailroad Company, and one, by mistake, against the Hudson Eealty Company. It is conceded that the latter assessment should have been against the Morris and Essex Eailroad.Company.

In 1916 the city of Orange entered into a contract with the Delaware, Lackawanna and Western Eailroad Company, described therein as lessee of the Morris and Essex Eailroad Company, for the elevation of its railroad tracks throughout the city. It was necessary, as part of this work, to change the grade of a number of streets in order to provide for proper clearances under bridges to be erected by the railroad company; the contract also contained the following provision:

“The city shall, in connection with and as a part of this improvement, and without expense to the railroad company by assessment or otherwise, do all work of street paving, repaving, curbing, guttering, laying and relaying of sidewalks and crosswalks, constructing, moving or reconstructing municipal sewers and drains, catch basins, municipal pipes, lamps, electric light lines, poles, conduits and other municipal structures in, across and along the streets and public places affected by the work under this contract excepting, &c., &c.”

The track elevation was completed by the railroad company under the contract about January 1st, 1919, at which time Scotland road was an unimproved dirt road. In September, 1920, steps were taken by the city for the paving and curbing of Scotland road. The assessments in question were confirmed by the board of commissioners of the city on August 10th, 1926. On September 13th, 1926, the prosecutors appealed from all the assessments levied to the Essex Common Pleas, which appeal has not been discontinued, and on November 12th, 1927, this writ of certiorari was allowed.

Prosecutors claim exemption from the assessments by reason of the provision of the contract herein referred to. But it is manifest that this provision of the contract, properly construed, merely exempts the railroad company from liability for damage to city property or improvements existing at the time of the execution of the contract along, across or in streets and public places affected by the elevation work, and does not include subsequent improvements, not necessitated by reason of the track elevation.

The defendant raises the question (1) of laches, (2) of the election by the prosecutor of a remedy in the appeal to the Common Pleas, and (3) questions the right of the Morris and Essex Railroad Company to the benefit .of the contract.

Our examination of the contract, which presents the basis for the claim of the prosecutor is, as already stated, that it bears no relation to and was not intended to apply to the improvement in question.

The writ will therefore be dismissed, with costs.


text:
    PYRAMID PETROLEUM PRODUCTS COMPANY, APPELLANT, v. SAMUEL ABRAHAM, APPELLEE.
    Argued January term, 1928
    Decided August. 7, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the appellant, Lloyd C. Riddle.

    For the appellee, Insley, Vreeland & Decker.

   Per Curiam.

The case was tried in the First District Court of Jersey City, without a jury. The plaintiff sued to recover the price of three deliveries of oil to the defendant.

The written contract called for the delivery in wagon load lots of Pyramid light fuel oil, without mention of gravity. During the negotiations-leading to the consummation of the sale the plaintiff wrote to the defendant: “We are at present supplying fuel oil for several makes of burners, including the Williams Oilmatic, and we know from experience that Pju’amid light fuel oil (24/26 gravity) is the oil your burner will handle most efficiently and economically.”

The defendant filed a counter-claim, alleging the oil supplied was defective in quality and that its use damaged his oil burner and created soot and smoke which damaged his household furniture and decorations.

The counter-claim filed was in three counts, alleging — •

(1) Breach of warranty of fitness of purpose and intended use.

(2) Negligently supplying oil unfitted for defendant’s heating apparatus.

(3) Breach of contract in that a heavier oil of greater gravity than that called for in the contract was delivered.

The court found that the damage to the defendant’s property was occasioned by reason of the plaintiff supplying oil either dirty or not adopted for use in the defendant’s burner, and assessed the damage by deducting the cost of the oil from the amount allowed the defendant as damage, and entered judgment for the defendant for the amount of $112.44.

The plaintiff contends that there was no implied warranty as to the quality of the oil, because it was sold under the name “Pyramid Light Fuel Oil.”

The court doubtless found a breach of an express warranty. The evidence which is not before this court may have justified the court in finding a breach of the contract, in that oil other than Pyramid fuel oil was supplied, which was a heavier oil or adulterated with dirt. In the absence of the testimony we must assume that the facts necessary to support the judgment were properly in evidence. Upton v. Slater, 83 N. J. L. 373.

The judgment will be affirmed.


text:
    PENNJERSEY RAPID TRANSIT COMPANY, PROSECUTOR, v. THE CITY OF CAMDEN, RESPONDENT.
    Argued May term, 1928
    Decided August 7, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Starr, Summerill & Lloyd.

    For the respondent, Harold W. Bennett and Rocco Palese.

   Per Curiam.

This writ brings up for review an ordinance of the city of Camden, prohibiting the operation of double-decked auto buses, not equipped with pneumatic tires, in and along any street in the city of Camden, south of Eederal street.

The first reason assigned is that the prosecutor is engaged exclusively in interstate commerce, and that the ordinance is a regulation of such commerce, and therefore void. We think not. The rule is settled that “the highways are public property. Users of them, although engaged exclusively in interstate commerce, are subject to regulation by the state to insure safety and convenience and the conservation of the highways.” Clark v. Poor (1927), 47 Sup. Ct. Rep. 702.

It is next urged that the ordinance is discriminatory, and deprives the prosecutor of his property contrary to law, but upon that subject it has also been held that the mere fact that a company may not make a profit because of a regulation does not show that the regulation is discriminatory or unreasonable. Morris v. Duby (1927), 47 Sup. Ct. Rep. 548.

It is also contended that under the Motor Yehicle act, and the Home -Rule act, the city is without power to pass the ordinance. We think, however, that the power resides in the city to pass ordinances of this character, but in this instance consideration of that question is unnecessary, since we deem the ordinance in question is void as unreasonable.

The number of decks on an auto bus does not seem to present a substantial basis for classification for regulations to conserve the highways; the weight and not the height of the vehicle would seem to bear relationship to the evil designed to be prevented, for the preservation and proper maintenance of the streets of the city.

The ordinance will therefore be set aside.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALBERT SCHULZ, PETITIONER, v. WICKHAM COMPANY OF NEW JERSEY, RESPONDENT.
    For the petitioner, John P. Lloyd.

    For the respondent, Richard W. Baker.

   ijí if: í|í # sjc

The petitioner was called to testify on his own behalf and also Mrs. Emma Schulz and Dr. Gesswein testified as witnesses for the petitioner. At the end of the petitioner’s case, the attorney for the respondent moved that the matter be dismissed as the petitioner had failed to prove conclusively, as required by the hernia section of the Compensation law, the five points of that section, particularly the point in regard to the descent of the hernia immediately following the cause.

After carefully reviewing the testimony I find that the petitioner himself states that he did not notice any lump at the time of the alleged accident, and further, the doctor for the petitioner testified that when he saw the petitioner the following morning there were evidences of a brown callous mark showing the former use of a truss, and in his opinion the hernia was of long standing.

Accordingly, I find that the petitioner failed to produce conclusive proof covering the five points of the hernia section of the Compensation law and therefore the motion of the attorney for the respondent was granted and the case was dismissed.

Accordingly, I hereby order that the case be dismissed without cost to either party.

Charles E. Corbin, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HOWARD WILLS, Jr., PETITIONER, v. MASONIC ASSOCIATION OF BEVERLY, NEW JERSEY, RESPONDENT.
   A petition having been filed in the above-entitled cause, and the defendant having answered, and the matter being set down for formal hearing and the parties appearing together with their witnesses and counsel, and the court having heard the evidence, does hereby find and determine as facts that on April 20th, 1926, the petitioner, Howard Wills, Jr., was engaged in the act of digging a trench upon the property of the respondent at Beverly City, New Jersey, and that while so engaged and standing in the trench he was digging a boiler which he was to bury in said trench rolled into said trench and struck and injured the petitioner; that at the time of the injury the petitioner was suffering from rheumatism, that the petitioner suffered a short period of disability as a result of his injury and that he suffered a further period of disability because of his rheumatism, and that there was no relation between the injury and the disability caused by the rheumatism.

• The'court further finds and determines as facts that the defendant is an incorporated branch of a fraternal order, formed for the purpose of holding title to the property where the fraternal order holds its meetings; that this property is improved so that part of it is rented to commercial establishments; that there is a strip of ground about twenty feet wide adjacent to that owned by the respondent, and that this was purchased by the respondent for the benefit of the fraternal order, and that there was upon this strip of ground a frame building which housed a printing establishment, and that respondent by agreement of sale arranged with another for the removal of the frame structure, and that after the removal of the frame structure upon the newly-acquired piece of property there remained a large boiler which was the property of the former tenant; that the respondent wanted to have said boiler buried in the ground upon which it was standing, and that the petitioner agreed to bury the boiler, and was to be paid therefor, according to the number of hours necessary to complete the job; that the respondent was only interested in the result of its agreement with the petitioner and exercised no control over the manner in which he performed his work, and the petitioner entered upon the performance of his agreement free of any control or interferences by the respondent.

The court further finds and determines as- facts that there ‘was no agreement between the respondent and the petitioner other than that relating to the disposition of the aforesaid boiler, and that the contract did not contemplate any regular or continuous work, nor any work which would recur at regular intervals, and that the matter which brought the petitioner and respondent into a contractual relationship was the emergency which confronted the respondent in trying to dispose of the aforesaid boiler, and that when the boiler was buried, all relationships between petitioner and respondent would be at an end.

The court concludes as a matter of law from the pleadings and evidence and from the aforementioned facts that the petitioner was a contractor and not an employe within the meaning of the Workmen’s Compensation law, and that when the petitioner sustained his accidental injury, he was engaged as a contractor in the performance of an agreement wherein the petitioner exercised his own judgment and was not subordinate to the respondent in the manner in which his work was done, and the respondent was interested only in the result which was to be accomplished.

The court further concludes as a matter of law from the pleadings and evidence and aforementioned facts that there was no such regular, periodic or recurring employment of the petitioner by respondent as contemplated by the Workmen’s Compensation law, and that the task which the petitioner undertook was made necessary by an unexpected and unusual development, not in the regular course of the respondent’s business, and that if the petitioner could be held to be an employe, his employment was casual and not in the regular course of respondent’s business.

The petition is therefore dismissed.

W. E. Stubbs, Deputy Commissioner.


text:
    NATHAN STEINBERG v. MARTHA WISISCH.
    Argued January term, 1928
    Decided August 15, 1928.
    Before Justices Parker, Minturn and Campbell. ,
    For the appellant, Welanko & Strauss.

    For the respondent, Michael N. Steinberg.

   Per Curiam.

The plaintiff paid to the defendant the sum of $200 and received therefor the following document:

“August 29, 1923.
Received of Nathan Steinberg the sum of $200 as part of purchase price on property known as 281 Jeliff avenue, Newark, N. J.
The purchase price is $9,000. The seller agrees to accept a second mortgage of $2,000 second in lien to a first mortgage, and to be procured by purchaser and balance in cash. Purchaser agrees to pay $300 more when agreement of sale is drawn.
Ludwig Beegman and Hilda, his wife,
M% Wisisch, Agent.”

The agreement of sale called for was never executed, the property being sold to a third party at a higher price, whereupon the plaintiff brought this action against the defendant for breach of contract, and sought to' recover as damages a sum representing the amount of the deposit, and the loss resulting from the alleged bargain.

The court directed a verdict for the plaintiff, and the jury assessed the damages in the sum of $450.

The undisputed evidence was that the defendant was au-thorized to sell the property upon the terms mentioned in the writing given-to the plaintiff, and that whatever-money was received by the defendant in the transaction was by him turned over to his principals.

The plaintiff admitted that the paper was signed by the defendant, as the agent for disclosed principals, but proceeded upon the theory that the defendant was not, in fact, authorized to execute a contract of sale in behalf of his principals; and that such usurpation and false representation of authority rendered the agent personally liable upon the principal’s refusal to abide by the contract. But this so-called contract was silent as to the amount of the first mortgage, and as to the duration, the rate of interest and'the default clauses of both the first and second mortgages; no mention was made as to the kind of a deed to be given or when title was to pass; provision, however, was made for an additional payment when “Agreement of Sale is drawn.” This latter provision, together with the omission of the essential terms of a contract for sale of real estate clearly indicate that the writing was not a final contract, but was rather in the nature of a temporary receipt, and was so characterized by plaintiff’s attorney, who drew it.

When an agent for a disclosed principal has collected money for the latter, and turned it over to him, an action will not lie against the agent for a return of the money in the absence of a special contract by the agent upon which such liability can be predicated. Savage v. Vanderhoff, 4 N. J. Mis. R. 285.

The judgment will be reversed.


text:
    GREAT AMERICAN INDEMNITY COMPANY, PLAINTIFF, v. ROSSE GRONOWICZ ET AL., DEFENDANTS.
    Argued August 7, 1928
    Decided August 16, 1928.
    For the motion, William A. Goddington.

    Contra, Ryman Herr.

   The opinion of the court was delivered by

Katzenbach, J.

This is a motion to strike out the answer of the defendants and to enter summary judgment. The suit was instituted on May 31st, 1938, upon a note made by the defendants Eosse Gronowicz and Adam Gronowica, and endorsed by the defendant Peter Zachowkow. The note was for $857 to be paid in equal monthly installments. It ivas given for a Eeo-Wolverine Speed Wagon, purchased of the Ortman Motor Sales Company of Somerville. The purchase price was $1,337. Five hundred and seventy dollars was paid in cash and the note of $857 was given for the unpaid balance. The note is dated November 14th, 1937. On December 16th, 1937, the motor truck' was wrecked by collision with a trolley car. One payment on the note had been made prior to the accident and one payment was made subsequent to the accident. The note had been originally transferred by the said Ortman Motor Sales Company to the Keystone Credit Corporation. This latter corporation assigned all its right, title and interest in the note to the plaintiff. After the accident the car was taken to the garage of Carl Nagrodzki and is in his possession for Adam Gronowica. No effort has ever been made by anyone to take the car from the possession of Carl Nagrodzki.

The summons and complaint were properly served. When the answer was due it was filed. The defendants set up as the first defense that the plaintiff paid no consideration for the note and is not a holder in due course; as the second defense, that the truck was retaken by the seller under the conditional bill of sale, and as the third defense, that the seller and its assigns have not complied with the Conditional Sales act. The defendant Peter Zachowkow further sets up as a defense that he was merely a surety on the note and that the plaintiff was bound to proceed against him immediately upon the nonpayment of the note and by not doing so had lost its rights. The defendant Bosse Gronowiez further sets up as a defense that she was a married woman at the time of the signing of the note and received no consideration therefor and was not liable upon the note.

These defenses are all met by the affidavits submitted. They are either sham or frivolous. The difficulty, however, with striking out the answer at this time, and entering summary judgment, is that the plaintiff elected to file a reply reserving therein the right to strike out the answer on the ground that it was sham and frivolous.

The Practice act of 1912 (Pamph. L. 1912, p. 377) provides for the order of pleadings. This is in section 16. It is the same as rule 30 of the Supreme Court. It reads as follows:

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

Bule 40 provides as follows:

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

This court can, if in its opinion justice is defeated by the application of a rule, act contrary to the rule. Rule 30, however, is based upon and is the same as section 16 of the Practice act of 1913 and is therefore statutory. In my opinion the plaintiff having elected not to address a motion to the answer, and having filed a reply with the reservation mentioned, must be held to the election.

Rule 81 of the Supreme Court, which is section 58 of the Practice act of 1913, provides as follows:

“The motion to strike out shall be made upon affidavit of the plaintiff or that of any other person cognizant of the facts, verifying the cause of action, and stating the amount claimed and his belief that there is no defense to the action.”

An examination of the affidavits submitted by the plaintiff fails to show that the plaintiff, by an officer or authorized agent, has stated its belief that there is no defense to the action. This is necessary.

Eor these reasons the motion will be denied. The case has been noticed for trial at the September term of the Middlesex Circuit, and when called the plaintiff may make before the Circuit judge the present motion, in accordance with the reservation stated in the reply. No costs will be allowed to the defendants on this motion. The costs will abide the outcome of the suit.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    LEVY WALKER, PETITIONER, v. WAGNER PASTRY COMPANY, RESPONDENT.
    For the petitioner, Samuel Greenstone.

    For the respondent, Arthur F. Mead.

   1. That the petitioner, Levy Walker, met with an accident arising out of and in the course of his employment as a laborer while attempting to paint a ceiling on May 27th, 1926, and, that he suffered injury to both eyes as the result of paint that fell into them.

2. It appears from evidence that all of the physicians who testified both for the petitioner and respondent agree that the petitioner had had a diseased condition of his eyes prior to the accident. It does not appear, however, that this diseased condition had in any way affected his ability to work prior to the accident, hut it appears to be undisputed that the petitioner was unable to perform his duties after the accident as well as he could prior thereto. It appears further from the various tests given by the respective physicians who examined the-petitioner that the petitioner suffered an increasing loss of vision from about the time of the accident until four (4) months thereafter, when he was found to have industrial blindness in the left eye and about one-fourth vision left in the right eye. This latter condition was found somewhat improved by Dr. Sherman upon a recent examination. The dispute has been upon the question as to what caused this loss of vision since the accident. Was it the old diseased condition or an intervening cause due to the accident? It appears that three physicians had the opportunity to examine and observe the petitioner soon after the accident, one of whom was Dr. Sherman, for the respondent, who treated the injury suffered by the petitioner as a trivial one, and admittedly was not followed up by him. Dr. Mamlet and Dr. Failing also treated the petitioner shortly thereafter and they were of the opinion that the accident aggravated his previous condition and they followed up the case and had the opportunity to observe his condition. Dr. Dias, who testified as expert for the respondent, did not examine the petitioner. Dr. Paganelli, who testified as expert for the petitioner, examined the petitioner and he likewise agreed with both Dr. Mamlet and Dr. Failing that the petitioner’s previous condition was aggravated by the accident. Throughout the ramifications of expert testimony in this case I have been impressed with the fact that there was a definite loss of vision following the accident. The petitioner was obliged to wear glasses following the accident and his vision failed to such an extent that he had difficulty in getting about and came very near being seriously injured again since the accident because of his inability to see. If this were a trivial injury, as Dr. Sherman testified, it should not have affected the man in his work, and the condition should have cleared up as Dr. Sherman prognosticated and said it would, but instead of that it appears beyond dispute that his vision grew worse and he was finally unable to work. In this connection it is rather significant that Dr. Sherman admitted on cross-examination that the petitioner’s condition of conjunctivitis with pain could get worse if he did not follow it up, and he only gave him two treatments shortly after the accident. I am therefore of the opinion that the weight of evidence as to the opportunity for observation and expert opinion as to the medical status together with the lay facts in this case in favor of the petitioner.

f'.i # * :¡: £ #

Harry J. Goas, Deputy Commissioner.