author: •> Pee Ctjeiam.

text:
    PUBLIC SERVICE ELECTRIC AND GAS COMPANY, A CORPORATION, PETITIONER-RELATOR, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF ALLENTOWN, A MUNICIPAL CORPORATION, RESPONDENT.
    Argued January 23, 1930
    Decided June 9, 1930.

      Before Justices Teenohabd, Lloyd and Case.
    Eor the petitioner, Franlc Bergen (William H. Speer, of counsel).
    Eor the respondent, James 8. Turp.

   •> Pee Ctjeiam.

This is an application for a writ of mandamus either alternative or peremptory, or in the alternative for a rule to show cause why such a writ should not be issued.

The allegations of the petition and accompanying affidavits tend to show that the borough of Allentown is the owner of certain poles, wires and other equipment constituting an electric light and power system in the borough of Allentown, in the county of Monmouth; that at a meeting of the borough council held on September 3d, 1929, the council adopted a resolution in pursuance of the provisions of section 2 of article 35 of the “Home Rule act” by which it determined that it was advisable to sell the electric light and power plant and system; that council directed the borough clerk to advertise for bids for the sale of the plant to be received by the borough council on the 11th day of October, 1929, at eight p. m:., and provided that each bid must be accompanied by a certified check upon a New Jersey bank or trust company for the sum of $5,000; that the borough clerk did so advertise and on the 11th day of October, 1929, the time and place fixed, the Public Service Electric and Gas Company (the relator) bid for the electric light plant in accordance with the terms of the resolution, offering to pay therefor the sum of $30,500; that after the bid was received an ordinance providing for the sale of the electric light and power plant and system to the Public Service Electric and Gas Company for the sum of $30,500, was introduced; that this ordinance was duly advertised for final passage at the meeting to be held on October 25th, 1929; that at the meeting of October 25th, 1929, after consideration, the ordinance was duly adopted, approved and duly advertised, and thereupon the borough council called a special election in accordance with the provisions of section 3 of article 35 of the “Home Rule act” to be held on November 26th, 1929, for the purpose of voting upon the question submitted, in accordance with the provisions of the statute, to wit: “Shall the electric light plant of said borough be sold for the sum of $30,500?” that the election was duly held and the return of the board of registry of elections showed that there were four hundred and ninety-one registered voters in the borough; that there were a total of three hundred and thirty votes cast of which sixty-two were rejected, and that the question received one hundred and forty-one votes in the affirmative and one hundred and twenty-seven votes in the negative; that thereupon the Public Service Electric and Gas Company sent to the borough certified check for the balance of its bid, to wit, $25,500, and fixed December 23d, 1929, as the time and the borough hall of the borough of Allentown as the place for the consummation of the sale; that the borough council, however, refused to carry out the sale and attempted to return the checks and notified the Public Service Electric and Gas Company that it would not sell the electric light plant for the price set forth in the bid and ordinance and that it had rejected the bid; that no attempt was made to rescind the resolution determining that it was advisable that the plant be sold, either before the introduction and passage of the ordinance or since that time, and neither has any attempt been made to repeal the ordinance; that whatever action has been taken by the borough council in refusing to consummate the sale has been by motion or resolution.

At the hearing in this court on such petition and affidavits of the relator, the respondent borough appeared by counsel and resisted the grant of any relief. Since there was no agreement as to the facts, but on the contrary it was insisted that the facts were not fully stated and some of those stated were in dispute, it seems to us the proper course, as matters now stand, is to grant an alternative writ, and it is so ordered.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    ALBERT W. VAN SAUN, PROSECUTOR, v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PEQUANNOOK ET AL., DEPENDANTS.
    Decided June 12, 1930.
    Before Justice Parker, sitting alone under the statute.
    Por the prosecutor, W. Eugene Turton.

    Por the defendants, King & Vogt.

   Memorandum by

Parker, J.

The new township committee of the township of Pequannoek organized on the first day ,of January, 1930, and immediately passed a number of resolutions, one of which is now before me on this writ. It recites that certain portions of the former township had been set .off and organized into separate municipalities and that a recorder of the township of Pequannoek was no longer necessary and it would be in the interest of economy (to abolish the office) and proceeds: “Now, therefore, be it resolved that the office of recorder of the township of Pequannoek, in the ■county of Morris, be and the same is hereby abolished. This resolution to take effect immediately.”

Previous to this resolution, the prosecutor had held office 'as recorder of the township of Pequannoek by virtue of an 'appointment resting on the act of 1914, chapter 74 (Pamph. A., p. 112), which provides, among other things, that “in any township * * * the township committee may in its discretion appoint a fit person residing in such township to be recorder, to hold office for three years and may fix the compensation to be paid such recorder in lieu of all fees allowed 'by law in such cases * * *.” The prosecutor had been in receipt of a salary of $250 a year for his services as recorder and had also been paid certai n additional moneys for expense account and rental of a room in -which to hold hearings. The resolution is attacked on the sole ground that it was not passed in good faith but as a mere political manoeuvre.

This act of 1914 was discussed in the case of Shoemaker v. Center Township, 3 N. J. Adv. R. 1180, decided by the late Mr. Justice Katzenbach sitting alone. So far as applicable, this decision should be taken as controlling in the present case. It was there argued that the office was created by the statute, but the court held otherwise, viz., that the office was one created by the township committee pursuant to a power given by the legislature. Mr. Justice Katzenbach further held that the statute also gave the power to abolish the office if such power were exercised in good faith; and that the presumption is that it was so exercised. I deem it my duty to follow this decision in the present case.

The prosecutor undertakes to show, by depositions o£ some length, that the abolition of the office was not in good faith. I have read the depositions through and while it seems to be quite plain that the three members of the township committee constituting a majority, who voted “aye” on the resolution were politically opposed to the prosecutor, there is a groat deal in the testimony to indicate that there had been a great deal of complaint about the large budget of the township and that these three had been elected upon a platform of proposed economy in administration. Furthermore, the depositions indicate that they had succeeded in cutting down the township expenditures by several thousand dollars, or at least had cut down the budget by that amount, and that the tax rate had gone down from six and thirty-four hundredths to five and twenty-two hundredths.

There are other features but it should not be necessary to go into them in detail. After considering all the evidence in the case, I am clearly of the opinion that the prosecutor has not sustained the burden of proving that the recital that the abolition of the office was in the interest of economy was a mere political subterfuge, and as this is the only ground on which the action of the committee is attacked the writ must be dismissed, with costs.


author: Sieglee, J.

text:
    Essex County Juvenile Court.
    HATTIE LOWING v. SAMUEL LOWING.
    For the complainant, Louis B. Freund.

    For the defendant, Herman Waldman.

   Sieglee, J.

This is a complaint made by Hattie Lowing against Samuel Lowing, her husband, for refusing and neglecting to properly and adequately provide and maintain her, and their child.

This defendant was indicted September, 1926, by the Essex count}’ grand jury, and on December 20th, 1926, pleaded guilty in the Quarter Sessions Court of Essex county for the crime of desertion, and sentenced to probation for three years, to pay the sum of $12 per week, which was to be applied toward the support of his wife and child.

The first point made by the defendant is as to the jurisdiction of this court, to wit, that it has no jurisdiction to modify or change the terms of an order of support made by the Essex County Court of Quarter Sessions. This court receives its authority under chapter 83 of the act of 1918, which reads, “An act to provide for the hearing and determination of disputes and matters affecting the domestic relations and welfare of children, and conferring jurisdiction upon the County Juvenile Court;” and then proceeds by section 2 to define what is meant by “disputes involving the domestic relations and welfare of children.”

The proceedings in the Quarter Sessions Court is one in which the State of New Jersey is the complainant, and provides for offenses against the State of New Jersey, punishable according to the Crimes act. The proceedings in this court are purely civil in nature, and in which the complainant is the wife, who is the moving party. It is elementary that a person may offend against the state, and also be liable for civil damages or other relief growing out of the same offense. It has been held in the United States Supreme Court that a person may be punished for an offense against the laws of the state, and also be punished by the United States for the same offense, inasmuch as the one act has offended the laws of both. Citing Murphy v. United States, 272 U. S. 630, and Herbert v. Louisiana, 272 Id. 312. It is no argument that because this defendant has been punished by way of weekly payments of money used for the support of his family, for a criminal offense, that he is not liable in another jurisdiction which has authority to deal with the same kind of offense, praying for other relief. The complaint before this court is that the wife is not receiving adequate support and maintenance for herself and her child, and under our laws, if the wife can sustain that contention she is entitled to further relief here. The motion to dismiss this complaint on the ground that this court has no jurisdiction is denied.

The next question is whether or not the complainant is receiving adequate support from her husband, taking into consideration what income she has from her husband, and from any source whatsoever, and whether or not he has refused to supply further and additional support for his family. The inquiry here is limited as to these two questions. I find that the defendant is a jeweler, and has been such for many 3'ears. He has been in business for himself, and has shown the capacity, in years gone by, to make seventy-five to eighty dollars a week. He has gone to Chicago, as the evidence shows, while under an order of this court, which was then in force, and there fraudulently procured a divorce, which was later set aside on the ground of fraud, on the application of the wife. He has bee^ engaged in the jewelry business since being brought back from Chicago to answer the criminal complaint, and all conditions now exist that existed several years ago, satisfying me that he has a capacity to earn substantial money in his trade.

I find that the wife is sick, and unable to work, and that the $12 a week that she has been receiving is inadequate in her present condition for the support of herself and child. I find that the defendant is able to pay more money for the support of his family, but he has willfully refused to recognize the needs of his family, without any justification whatsoever. I make an order that he pay $6 a week in this court on this complaint. This will give the wife $12, which she now receives from the Quarter Sessions Court, and the $6 from this court, making a total of $18.

I will sign an order in accordance with the views herein expressed.


author: Berry, Y. C.

text:
    Sarah Gorsch, complainant, v. Lena (Lina) Birkhahn et al., defendants.
    [Decided July 1st, 1930.]

      Mr. Charles Gorsch and Mr. Harry Levin, for the complainant.

      Mr. Milton M. Unger, for the defendants Samuel Heller-man and David Klein.

      Mr. Michael J. Quigley, for the defendant Louis Steiner.
   Berry, Y. C.

The complainant is a judgment creditor of the defendant Lena Birkhahn. The judgment was entered November 26th, 3 929. The debt, however, was of long standing, having arisen out of a foreclosure suit about fifteen years ago. The suit which resulted in the judgment was begun in the Essex county circuit court September 28th, 1929. At that time the defendant Birkhahn was the owner of property in Newark valued at $16,000 or $17,000, subject to a mortgage o£ approximately $5,000, and which is the subject of this present suit. The bill seeks to set aside as in fraud of creditors, a mortgage in the sum of $5,100, executed by the defendant Birkhahn to her son-in-law, Samuel Hellerman, on October 8th, 1929; a mortgage of $6,000 to Louis Steiner, friend of Hellerman, executed on October 24th, 1929; a deed from the defendant Birkhahn to David Klein, dated October 25th, 1929. The consideration named in the deed is one dollar. The bill also seeks to restrain the prosecution of a suit at law by Samuel Rotter, against the defendant. Birkhahn on a note of $1,650. Rotter is the brother-in-law of Lena Birkhahn.

The testimony taken in this cause is voluminous and it would serve no useful purpose to recite it in detail or to attempt an analysis of it. It discloses clearly, however, a wild scramble on the part of the defendant Birkhahn, some members of her family and friends, to render this defendant execution proof with all possible speed after the institution of the suit at law against her by the complainant. The entry of a judgment in the suit at law was delayed by the filing of an answer, later struck out by the court as sham and frivolous, and pending the disposition of that matter and the entry of the judgment, this defendant disposed of all of her real estate, withdrew all money in bank, and withdrew or assigned all building and loan stock of which she was possessed in this state, and removed to the State of New York to the home of her son-in-law, Hellerman. The whole series of transactions involved in this controversy is marked with such unmistakable badges of fraud that it is almost inconceivable that any defense of the transactions would be offered except upon the belief that the tell-tale tracks had been conpletely covered. Mrs. Birkhahn herself did not appear at any of the hearings in this cause, although she filed an answer generally denying the allegations of the bill. The excuse for her non-appearance was that she was suffering from high blood pressure, but no physician testified as to her physical condition, nor did the defendant Rotter interpose any defense to the action. He did not appear at any of the hearings. It is alleged that his suit at law against Mrs. Birkhahn was settled after this bill was filed, but a discontinuance was not filed until the last hearing in this cause. It is said that the Hellerman mortgage is valid because given in part to secure an antecedent debt of $2,100 and in part to secure a present loan of $3,000. Eecords and checks are produced evidencing the loans both antecedent and present, but I am convinced that at the time the mortgage was taken it was with full knowledge on the part of the mortgagee Hellerman that it was intended to thereby defeat Mrs. Birkhahn’s creditors. As to the Steiner mortgage, it is true that checks are produced to show that $6,000 was advanced by Steiner and that settlement was made in the usual manner, but the circumstances surrounding this transaction are suspicious and I believe that the money which passed in the transaction came from Hellerman in the first place, and that Steiner was a mere dummy in the matter. As to the sale to Klein the eonvejranee was made subject to encumbrances then aggregating about $16,000 and the consideration which he paid was approximately $500, $400 of which was for furniture in the Birkhahn apartment which was repurchased by Mrs. Birkhahn’s daughter a few days later, and the property is still occupied by the son and daughter in the same condition in which it existed prior to the mother’s departure for New York, although it is alleged that she pays rent to Klein in an amount as to which there seems to be some uncertainty. A large part of the testimony in this cause was taken before a master, but I have examined it with care, and taken in connection with that portion of the testimony which was taken before me in open court I have no hesitancy in saying that the entire series of transactions complained of was in pursuance of a fraudulent scheme designed and carried out with the intention of making the defendant Birkhahn execution proof and that it was all done with the connivance and the knowledge on the part of the parties to the various transactions as to its fraudulent nature.

It is true that the testimony and documentary evidence presented, if reliable, might be said to furnish a complete defense to this suit, and I apprehend that a dismissal of the bill on that ground would be sustained, but I am not obliged to believe all the testimony that has been given, and I do not. In fact, the defense is too complete, in view of the self-evident fact of Mrs. Birkhahn’s wild scramble for cover immediately after the complainant’s suit at law was begun, and her failure to testify. The conduct and transactions of the parties in an affair of this kind must be gauged and interpreted according to standards applicable to the ordinary every-day man or woman, and in the light of human experience. It is not usual for men to exhibit such keenness or willingness to invest (P) in second and third mortgages as is here indicated, especially where the funds for such investments must be obtained in the unusual and roundabout manner here disclosed. It is not in accordance with common business experience that such a transaction as the sale of the Birkhahn property and furniture is consummated, especially with no physical change of conditions except the removal of the principal debtor from the jurisdiction. It is true that the due formalities of all the various transactions were observed—too closely, I think; but that is just what is to be expected when the actors in a fraudulent transaction seek to cover their trail of fraud. Equity is not bound by the apparent form—“it looks at truth and reality through whatever disguise it may assume.” Commonwealth v. Hunt, 4 Mt. (Mass.) 111.

I have no doubt that the fee paid to Mr. Quigley by Steiner was repaid a few days later by Hellerman even though his wife’s check was used for that purpose, and Steiner’s actions were not those of the ordinary investor. He depended too much upon Hellerman and Daniels, and Daniels did not testify.

In connection with the law action of the defendant Rotter against Mrs. Birkhahn, the original order to show cause issued herein on November 8th, 1929, contained restraint against further proceedings in that suit and subsequent orders of this court contained restraint against the parties and their attorneys from “proceeding therewith in any manner.” Any settlement of that suit by the parties themselves or their attorneys, pending the final decision in this cause, was in direct violation of the orders of this court and the restraint thereby imposed, and will'not be permitted to prejudice the rights of the complainant. I will advise a decree in accordance with these conclusions.


author: Per Curiam.

text:
    THE STATE, EX REL. CATHERINE JACOBS, RELATOR, v. JOSEPH H. ELWELL, BUILDING INSPECTOR OF CAPE MAY CITY, RESPONDENT.
    Argued May 6th, 1980
    Decided June 26, 1930.
    Before Justices Parker, Campbell and Bodine.
    Por the relator, Lewis T. Stevens.

    Por the respondent, S. Busting Leap.

   Per Curiam.

The holder of this rule to show cause is the owner of a plot of land in the city of Cape May, fronting on Beach avenue, and having made application to the building inspector and the governing body of Cape May City for a permit to erect a building on the “beach strand” in front of her property and such applications being denied now seeks the aid of the prerogative writ of mandamus to compel the issuance of such permit to her.

The riparian commissioners of the State of New Jersey, pursuant to a statute approved April 11th, 1864, entitled “A further supplement to an act entitled 'An act to ascertain the rights of the state and of riparian owners in the lands lying under the waters of the bay of New York and elsewhere in this state/ ” granted or attempted to grant certain riparian rights to William Weightman, Jr., in and to lands of which the lands of relator are a part, lying between high and low water mark of the Atlantic ocean but made such grant specifically subject “to any rights theretofore granted by the legislature of this state to the city of Cape May in and over the beach strand lying between high and low water mark of said Atlantic ocean, &c., * * *.”

This reservation and exception has reference to a grant and authority, made and extended to the city of Cape May by an act of the legislature of May 3d, 1875, entitled “An act to revise the charter of the city of Cape May,” in and by section 19 whereof'it is enacted and provided:

“* & * that the city council shall have power within the city to make, establish, publish and modify, amend or repeal ordinances, rules, regulations and by-laws for the following purposes:

To ascertain and establish the boundaries of all streets, avenues, highways, lanes, alleys and leach strand in said city and prevent and remove all encroachments on said streets, avenues, highways, lanes, alleys and leach strand.”

Under and pursuant to such legislative authority the city of Cape May on May 27th, 1878, adopted an ordinance entitled “An ordinance to ascertain and establish the boundaries of the beach or strand in the city of Cape May and for the prevention and removal of encroachments thereon.” The .lands described in such ordinance include all the beach strand along the Atlantic ocean from Cold Spring inlet to the west limits of the city of Cape May, which includes the strand, or the land between high and low water marks in front of the premises of the relator.

On July 18th, 1927, what is called á confirmatory grant of riparian rights was made to the owners of upland, including the lands of which the relator is now the owner. Such grant is specifically made “subject to any rights heretofore granted by the legislature of this state to the city of Cape May in and over the beach strand, lying between high and low water marks of said Atlantic ocean * *

Several questions are raised by the relator, the principal ones amongst which are the power of the legislature to grant to the city of Cape May the powers which were attempted by the act of 1875, supra; that such act is unconstitutional; that the ordinance of the city of 1878, supra, is uncertain as to the lands attempted to be brought under control and that such attempted control of the strand by the city under such ordinance is invalid because it is the taking of private property without compensation.

We think there is nothing of legal substance in any of these contentions and for that reason the application for the writ should be denied.

If, however, upon the other hand it can be said that these grounds are substantial then serious and important legal questions are raised by them reaching toward and into valuable property rights creating a situation where the right to the permit sought by the relator is uncertain, doubtful and not clear, and for that reason the discretion of this court should be exercised in the direction of refusing the writ applied for. Board of Public Utility Commissioners v. Lehigh Valley Railroad Co., 7 N. J. Mis. R. 160, and cases therein cited.

The application for the writ of mandamus is, therefore, denied, and the rule to show cause is discharged, with costs.


text:
    JONATHAN HAND, PROSECUTOR, v. THE MAYOR AND BOARD OF COMMISSIONERS OF THE CITY OF WILDWOOD, RESPONDENTS.
    Argued May 7, 1930
    Decided June 26, 1930.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutor, William Elmer Brown, Jr.

    Eor the respondents, Albert 8. Woodruff..

   Per Curiam.

By the present writ the proceedings to remove the prosecutor as city solicitor of the city of Wildwood are before us for review.

The city of Wildwood is incorporated under Pamph. L. 1897, p. 46 (1 Gomp. Stat., p. 1297), and in September, 1912, adopted the commission form of government under the statute commonly known as the Walsh act {Pamph. L. 1911, p. 462), and has, because of its population, three commissioners, who are Eobert G-. Pierpont (mayor), Alfred Taylor and Ealph L. Carll. At the organization of the present commissioners on May 15th, 1928, the mayor, Eobert Gf. Pierpont, was designated and there were assigned to him the duties of “director of the department of public affairs and public safety and as such president of the board of commissioners,” and amongst the officers particularly assigned to him and placed under his control was the city solicitor. The prosecutor being appointed to such position at the aforesaid organization meeting.

After certain alleged charges for neglect of duty had been ' preferred against the prosecutor he was brought to trial thereon, or an attempt to do so was made, and a so-called hearing was had in the presence of the mayor and the other two commissioners. This resulted in the adoption of a resolution by the commissioners “that Jonathan Hand, Esquire, be dismissed as city solicitor of the city of Wildwood, he having been tried and found guilty of neglect of duty, and that his compensation cease immediately upon the adoption of this resolution” and “that the office of city solocitor of the city of Wildwood be and the same is hereby declared to be vacant.”

It is urged that the proceedings and judgment should be set aside because the attempted trial or hearing was attempted to be held before the city commissioners whereas the sole right to hear and determine the matter resided in the mayor and further because the proofs did not substantiate the charges.

It is urged by the respondent and resisted by the prosecutor that the latter was appointed for an indefinite term and therefore subject to dismissal at any time, with or without cause, and there is the further insistence by the prosecutor that his term was that of the life of the board of commissioners, namely, four years, which is resisted by respondent who argues that the term is that fixed by the act of 1897, supra, namely, three years.

This part of the controversy is non-important and we pass it by because the sole ground upon which prosecutor was attempted to be removed from office was that he had been found guilty, after hearing, upon charges of neglect of duty.

We conclude the proceedings and the resolution of ouster must be set aside for the following reasons:

1. Because the duty and power to try the prosecutor was solely in the director of public affairs and public safety. This seems to be conceded by the respondent. Certainly it has not been open to doubt since Crane v. Jersey City, 90 N. J. L. 109, and Foley v. Orange, 91 Id. 554. But respondent urges that although all the commissioners sat at the hearing yet the action was by the director of public affairs and public safety. The record before us, however, does not substantiate this. There is no finding by the director in question. The formal finding and judgment is the resolution of the commissioners (supra) as a body.

2. Because the proofs do not justify the finding of guilt and judgment of ouster. It is difficult to characterize the hearing and no attempt in this direction will be made.

Respondent urges that if there is any proof to sustain the finding this court will not disturb it; citing Ayers v. Newark, 49 N. J. L. 170; Ackerly v. Jersey City, 54 Id. 310; Cavanagh v. Police Commissioners, 59 Id. 412, and Bowlby v. Dover, 68 Id. 97. It is to be noted, however, that all of these adjudications are prior to the adoption of section 11 of the Certiorari act (1 Comp. Stat., p. 405), which in causes of this character imposes upon this court the duty to "determine disputed questions of fact as well as of law.”

In doing this the conclusion cannot be escaped that the proofs furnish no rational basis for the judgment.

The proceeding and resolution, or judgment of ouster, are therefore set aside, with costs.


author: Pee Cubiam.

text:
    ABRAM APPEL, CLAIMANT-APPELLEE, v. PETER FLEUCHAUS, BUILDER AND OWNER, APPELLANT.
    Argued January 21, 1930
    Decided July 1, 1930.
    Before G-ummebe, Ciiiee Justice, and Justice Campbell.
    Eor the appellant, Samuel Bosenfeld.

    Eor the appellee, Feder & Kinder.

   Pee Cubiam.

This is an action upon mechanics’ lien claim and the appeal is from a judgment entered upon a report of a referee, the cause haying been referred under section 155 of the Practice act. 3 Comp. Stat., p. 4101.

The first ground for reversal is that the order of December 3d, 1928, confirming the referee’s report, is erroneous, because no notice of the filing of the report was given as required by rule 100 of this court.

The record is silent upon the question as to whether or not such notice was given.

However, notice of application to confirm the report was given and appellant filed what are denominated objections to confirmation of referee’s report and these were heard and fully considered. No prejudicial harm is pointed out as coming to appellant because of the alleged failure to give notice of the filing of the report of the referee and under the circumstances we are entirely unable to see how appellant was injured or prejudiced by such failure to observe the rule of this court if there was in fact such a failure, which the record of the case fails to disclose. Furthermore such failure would seem to be a ground for setting aside the report and for a new trial and not a ground of appeal. Clayton v. Levy, 49 N. J. L. 577; Camp v. Kennedy, 7 N. J. Mis. R. 1060.

The second ground for reversal is that it was error to confirm the report of the referee because he failed to take the necessary oath of office and therefore was without jurisdiction.

Upon this question the record before us is silent.

The Circuit Court judge held that appellant could not be-heard to complain becatise, without protest or objection, he had submitted himself to the jurisdiction of the referee and had participated in the proceedings before him.

We think this together with the fact that in the absence of a showing in the record that the referee had taken such oath raises a presumption that he had done so makes this ground untenable. 23 R. C. L. 293, § 11; Runyon v. Hodges, 46 N. J. L. 359; Taylor v. Thornton, 81 Id. 7.

Grounds of appeal 3, 4, 5 and 6 are directed to the refusal of the referee to nonsuit because of insufficient proofs.

None of these makes for a ground of appeal. Camp, &c., v. Kennedy, 7 N. J. Mis. R. 1060.

Finally it is urged that the judgment below should be reversed because the defendant below verbally requested or reserved the right of trial by jury. This is entirely without merit. Such reservation is fixed and regulated by the statute-(3 Comp. Stat., p. 4101, § 155), the requirements of which not having been observed, the appellant is without remedy here.

The judgment below is affirmed, with costs.


author: Pee Cukiam.

text:
    WILLIAM WENTZELL, RELATOR, v. CHARLES E. STEELMAN, ETC., ET AL., RESPONDENTS. THE STATE, EX REL. CELIA CHAMPION, v. WILLIAM WENTZELL.
    Argued May 7, 1930
    Decided July 1, 1930.
    Before Justices Paekee, Campbell and Bodine.
    Eor the relator in mandamus and respondent in quo warranto, Oole <& Cole.

    Eor the respondents in mandamus and relator in quo warranto, lligbee ■& lligbee.

   Pee Cukiam.

Without going into details as to the facts these two proceedings present but one common point of contest, and that is, on the merits, was William A. Wentzell qualified for and eligible to appointment as a member of the police force of Somers Point on April 9th, 1926, he then being admittedly of the age of forty-four years. It is insisted that he was not because under Pamph. L. 1926, ch. 324, p. 600, approved March 31st, 1926, nine days earlier, it is provided that no person shall be appointed who is under twenty-one years or over thirty-five years of age at the time of his appointment.

This act was amended by Pamph. L. 1927, p. 495, and again by Pamph. L. 1928, ch. 215, p. 387, such amendment retaining the same age qualifications.

This court recently considered this legislation in State, ex rel. Mulsoff v. Sloat, No. 268, January term, 1930 (not yet officially reported) and declared that these statutes have no validity or vitality.

We held in Mulsoff v. Sloat, supra:

"Pamph. L. 1915, ch. 373, p. 688, by section 2, fixes the ages of such appointees at twenty-one to fifty-five years. By the Home Rule act (2 Cum. Supp. Comp. Stat., p. 2154, §§ *136-1604) this provision of the act of 1915 was carried into that act and by Pamph. L. 1917, ch. 204, p. 575 (at p. 665), the act of 1915, supra, was specifically repealed. By Pamph. L. 1926, ch. 324, p. 600, the legislature attempted to amend section 2 of the repealed act of 1915, supra, by fixing the ages of twenty-one to thirty-five years. This was ineffective, being constitutionally inhibited. Again by Pamph. L. 1928, ch. 215, p. 387, there was a like, ineffective and constitutionally prohibited attempt to amend and revive this repealed act of 1915, supra. This leaves paragraph 4, article 15 of the Home Rule act, as amended by Pamph. L. 1920, ch. 184 (2 Cum. Supp. Comp. Slat., §§ 136, 1604), as the only valid existing legislation upon this subject and it fixes the age limits at twenty-one to fifty-five years.”

It becomes apparent, therefore, that the appointment of Wentzell is legally free from attack because of his age at the time of such appointment.

We have thought it advisable to indicate our view of the very right of WentzelPs claim to the office, although in neither of the cases at the head of this memorandum is that view available as a basis of decision because of procedural reasons.’

Mandamus by Wentzell will not lie, as another is in occupation of the office of chief of police which Wentzell claims. Leeds v. Atlantic City, 52 N. J. L. 332. Quo Warranto against Wentzell will not lie, because he is not in occupation of the office to which his right is challenged by Mrs. Champion, the relator in quo warranto.

The result is that the rule to show cause for a mandamus, and likewise the rule to show cause for leave to file an information, must be discharged, with costs.


author: Pee Cueiam.

text:
    S. SANTILLO, INCORPORATED, PLAINTIFF, v. CHARLES W. HARLOW COMPANY, DEFENDANT.
    Submitted January term, 1930
    Decided July 1, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell.
    Eor the rule, Frank P. McCarthy.

    Contra, Charles Turndorf.

   Pee Cueiam.

This was an action to recover upon a contract for unloading from railroad cars, curb stone, and hauling same to the points or places where the same were to be used in construction work. The defendant counter-claimed for breach of the contract, alleging as damages for such breach the cost of demurrage paid to the railroad company for cars detained because of delayed unloading. The total claim of the plaintiff appears to have been $1,137.54, and the total demurrage claimed by the defendant under its counter-claim was $1,166.

The jury returned a verdict in favor of the plaintiff in the full amount of its claim, $1,137.85, and in favor of the defendant, on its counter-claim, for $600.

These verdicts we are asked to set aside because, the defendant contends, that the verdict in favor of the plaintiff is against the weight of the evidence; that in favor of the defendant is also against the weight of the evidence in particular because it is inadequate.

It seems to us that the proofs leave these contentions without merit. The finding in favor of the plaintiff was fully justified, and, on defendant’s counter-claim for damages for breach of the contract, upon the ground that the plaintiff did not unload the ears as expeditiously as his contract required, the proofs are such as to clearly leave it as a fair question for the jury to find whether the damage was the full amount of the demurrage paid or something less, there being a dispute as to whether the entire delay was, or was not, chargeable to the plaintiff.

The rule to show cause will therefore be discharged, with costs.


text:
    IN THE MATTER OF THE APPLICATION OF THE TOWN OF HARRISON ET AL., FOR WRITS OF CERTIORARI TO REVIEW AN ORDER APPOINTING COMMISSIONERS TO APPRAISE THE PROPERTY OF THE PASSAIC CONSOLIDATED WATER COMPANY AND THE AWARD BASED THEREON.
    Argued May 8, 1930
    Decided July 1, 1930.

      Before Justices Parker, Campbell and Bodike.
    Eor the applicants, McCarter & English.

    Eor the respondents, William I. Lewis.

   Per Curiam.

Originally this application, pursuant to the language of the notice, would seem to have been intended to be for a writ of certiorari to review the action of Mr. Justice Black, of May 25th, 1929, appointing commissioners to ascertain the compensation, &c., to be paid the Passaic Consolidated Water ■Company for the taking of its properties by the Passaic Valley Water Commission.

As the matter is now urged it is not only for a writ to review this order but also to review the award of such commissioners.

Perhaps the language of the notice may be extended this far. Such language is “to grant a writ or writs of certiorari removing the order made by his honor, Charles C. Black, justice of the Supreme Court, on the twenty-fifth day of May, 1929, appointing commissioners in the matter of the application of Passaic Valley Water Commission for the appointment of three commissioners to fix the compensation to be paid for the water works, rights, franchises and property of Passaic Consolidated Water Company to be taken and condemned for public use and all things touching and concerning the same.”

Whether or not the award or report of such commissioners, if that was material, was included within the language and terms of this notice, might be extremely doubtful.

The factual situation is that pursuant to Pamph. L. 1923, ch. 195, the cities of Paterson, Passaic and Clifton, upon notice as required, to the town of Harrison and other municipalities served by the Passaic Consolidated Water Company, made application to the said Honorable Charles C. Black, a justice of the Supreme Court, on July 2d, 1927, for the appointment of a commission under said act to acquire by purchase or condemnation the water works of said Passaic Consolidated Water Company and such appointment was duly made on such date so noticed.

Such commission duly organized and proceeded with its work under the statutes and negotiated with said water company for the purchase of its works, &c., in which it was unsuccessful because of disagreement as to price. Such commission thereupon concluded, under the authority of the aforesaid act to take proceedings to condemn such property, including “the interest of said company in all contracts for the purpose of supplying water or water rights to or for the sale of water to or by the Passaic Consolidated Water Company” and did make application to said justice of the Supreme Court for the appointment of commissioners to fix and assess the compensation for such taking and in such application did, among other things, set forth:

“13. The purpose of this application is to acquire all of the property of said Passaic Consolidated Water Company except moneys and securities, bills and accounts receivable and except its franchise as a corporation to the end that the petitioner, on behalf of the said cities of Paterson, Passaic and Clifton, may own said property free and clear from all encumbrances thereon and supply said cities with water for domestic and public use and perform such obligations in relation to supplying water which are binding at the present time upon said Passaic Consolidated Water Company.” And such petition did by paragraph 14 set up the municipalities supplies, outside of Paterson, Passaic and Clifton, including therein the town of Harrison.

By order of Mr. Justice Black of April 12th, 1928, commissioners in condemnation were appointed.

It is said, and appears not to he denied, that at such time the present applicants for this writ appeared and objected to such appointment upon the same grounds as now relied upon, but notwithstanding such objection the commissioners were appointed.

Application was thereafter made to this court on October 4th, 1928, by the present applicants, for writs of certiorari and they were allowed.

In the meantime the water company had made application for and obtained writs of certiorari upon grounds quite different from those invoked by the present prosecutors for their former writs and reiterated in this case, and the Court of Errors and Appeals eventually set aside the proceedings. Passaic Consolidated Water Co. v. McCutcheon, 7 N. J. Adv. R. 335.

To meet the findings of this latter court remedial and corrective legislation was adopted by Pamph. L. 1929, ch. 31, amending the original act of 1923, supra. The writ or writs of certiorari of the present applicants were not pursued or prosecuted, although as just pointed out, they had no logical relation to the reported case.

Subsequent to such amendatory legislation application by the Passaic Yalley Water Commission was again made for the appointment of condemnation commissioners and by order dated May 25th, 1929, Mr. Justice Black again appointed such commissioners. This is the order now challenged.

It is again asserted that the present applicants then appeared before Mr. Justice Black and again presented the objections here urged to the appointment of the commissioners and to the proceeding. This appears not to be denied.

The condemnation commissioners proceeded with their work and a majority of them made their report on April 28th, 1930, awarding to the Passaic Consolidated Water Company for the value of its lands, water works and other property and its damages the sum of fourteen millions of dollars.

The notice of the present application is said to have been given before the coming in of this report, although the notice bears no date nor is there anything in the record before us to show when it was served upon the several parties in interest. This however is not material.

Prom the oral argument and the brief of counsel for the applicants it appears that the ground upon which the application is made is that the New York, and New Jersey Water Company and the Suburban Water Company, either or both,, are the owners of mains, &c., by and through which they serve the town of Harrison and other consumers and have made contracts with such municipalities based upon contracts they, in turn, hold with the Passaic Consolidated Water-Company, all of which contracts, as they presently exist, are-subject to control, as to price to be paid for water, by the public utility commissioners and because of this taking over of such contracts by the proceedings in question by the Passaic Valley Water Commission, the terms of these contracts-are abrogated or interfered with or impaired inasmuch as-after such taking the rates for the water supplied will not be under, or subject, to the control and regulation of the public-utility commissioners, and therefore the acts of 1923, and 1929, supra, are unconstitutional, and in violation of section-3, article 7, of the state constitution.

Prom the facts and representations before us this appears-to be unsubstantial and does not present a probable and imminent situation. At best, the condemnors take over nothing more than the contracts as they presently exist and these-appear to have a term of years to run before they expire. We are entirely unable to see how in this respect the acts of 1923' and 1929, supra, transgress and come within the constitutional prohibition. Naturally and inevitably the acquisition by the public, or a public agency, of a water supply owned by a. utility removes it from the field of utility regulation. A. similar result follows when a city condemns the plant of a-, local water company.

It is urged upon the part of the Passaic Valley Water-Commission that the present applicants are ini laches in the-present application.

We think that is so. It is disputed by the applicants, and. for several reasons.

For instance they say that at all times they have objected and protested against the proceedings in eminent domain for and upon the same grounds as urged here, and consequently when the condemnors proceeded they did so at their peril.

Assuming that to he true, the applicants here have had intimate notice of the intentions and purposes of the condemnors since about May 2d, 1927, and the extent of their activities is to have entered their objections to the appointment of commissioners on April 12th, 1928, and obtaining a writ on October 4th, 1928, which they failed, for the reason before indicated, to prosecute and thereafter entered their objections to the appointment of commissioners on May 5th, 1929.

Since this last demonstration, upon their part, they have permitted the condemnation proceedings to proceed to a conclusion and report without any further attack. Here is a great and important and, immediately necessary, public improvement in which three municipalities, of large population, are vitally and, from a sanitary standpoint, highly interested and in the furtherance and consummation of the purpose of securing a public water supply, have expended at least the sum of $266,000, which expenditure is entirely aside from the large expenditure of the North Jersey District Water Supply Commission in acquiring and constructing the Wanaqne river water works and reservoir from which the supply of water, in large part at least, is to be obtained by the Passaic Valley Water Commission for the cities of Paterson, Passaic and Clifton; said Wanaque supply being largely, if not entirety, unusuable until, and if, the properties of the Passaic Consolidated Water Company are obtainable and actually obtained.

It is elementary and fundamental in the law of laches that mere protests, and even threats, or anything short of invoking a legal remedy, will not suffice to bar the application of the rule.

It is further urged by tbe applicants that laches cannot be charged against them because they are seeking a writ to review the report of the commissioners in condemnation, which right of review they have as laid down in Stewart v. Hoboken, 57 N. J. L. 330. We think the situation in that case is radically, and entirely, different from that here, so much so, in fact, as to make it entirely inapplicable. In the case before us the only possible interest that two of the applicants have in the subject-matter of the condemnation is that as to certain contracts which they have with the water company, and which Harrison has with either or both of these applicants, the condemnor is assuming and taking over the property in them and the obligation of performance by the Passaic Consolidated Water Company.

There is no provision in the statutes of 1923 and 1929, supra, for awarding compensation or damages to the applicants for such taking as there was in Stewart v. Hoboken, supra.

For these reasons the court in the exercise of its discretionary power concludes that the application should be denied. Such will be the order.


text:
    THE STATE, HOME BUILDERS REALTY AND MORTGAGE COMPANY, A NEW JERSEY CORPORATION, PROSECUTOR, v. THE STATE BOARD OF TAXES AND ASSESSMENT AND THE BOARD OF ASSESSMENTS AND REVISION OF TAXES OF THE CITY OF ELIZABETH, DEFENDANTS.
    Submitted February 1, 1930
    Decided July 1, 1930.

      Before Justices Tkenchard, Lloyd and Case.
    Eor the prosecutor, William E. Sandmeyer.

    For the defendant Board of Assessment, &c., of Elizabeth, Edward Nugent.

   Per Curiam.

This writ of certiorari, sued out by the prosecutor, brings up for review two judgments of the state board of taxes and assessment, the state board having on appeal from assessments levied by the board of taxes of the city of Elizabeth, reduced the assessments.

The assessments were levied by the city of Elizabeth on property on Pingry Place and on another property on Salem avenue, in Elizabeth, for the year 1928. They were levied as of October 1st, 1927. The assessment on the Pingry Place property was on a total valuation of $617,500. The assessment on the Salem avenue property at a valuation of $400,000.

Appeals were taken by the owners to the county board, and the appeals were there dismissed; and then appeals were taken to the state board and the state board reduced the assessment on the Pingry Place property $50,000 and reduced the assessment on the Salem avenue property $17,000.

The only question involved before this court relates to the proper valuation of the buildings on each property as of October 1st, 1927, and that in turn largely depends upon testimony as to the state or degree of completion of the properties as of October 1st, 1927. In this way the matter was presented and argued.

The witnesses for the prosecutor testified, in effect, that the Pingry Place building was about seventy-five to eighty per cent, completed and the other property only fifty per cent, completed.

This testimony was met by witnesses testifying on behalf of the city- of Elizabeth to the effect that the Pingry Place building was practically one hundred per cent, completed and the Salem avenue eighty per cent, completed.

It is quite apparent that if the testimony on behalf of the city was substantially correct, then the assessment cannot be said to be in excess of true value. We think that the state board was justified in accepting the testimony of the city as to completion, and if that be so, then the judgment of the state board is quite justified. There was much testimony tending to throw light upon the question of the degree of completion on October 1, 1927, some of which supported the contention of the prosecutor and some of which corroborated the contention of the city as outlined by its witnesses. It is idle to discuss the evidence in detail. The impression made upon the mind is that the testimony of the prosecutor does not so preponderate as to overcome the judgment of the state board and the testimony that supports it. Our conclusion upon the whole is that the assessments in question are right and they will be affirmed, with costs.


text:
    WILLIAM GROTH, PROSECUTOR, v. BOROUGH OF MAYWOOD AND CITY OF HACKENSACK, DEFENDANTS.
    Submitted February 1, 1930
    Decided July 1, 1930.
    Before Justices Trenchard, Lloyd and Case.
    Eor the prosecutor, Morrison, Lloyd & Morrison.

    For the defendant city of Hackensack, Maclcay & Maclcay {Howard Maclcay, of counsel).
   Per Curiam.

This writ of certiorari brings up for review a contract in writing between the borough of Haywood and the city of Hackensack, dated March 5th, 1923, wherein and whereby the borough of Maywood agreed for a cash payment of $23,000 to receive into its trunk sewer and dispose of the sewage from a part of the city of Hackensack, which part of the city was more particularly described in the contract, the contract being entered into pursuant to an ordinance enacted by the Hackensack improvement commission (now the city of Hackensack), which ordinance, however, is not brought up for review by this writ.

Looking at the record it appears that the sewer and disposal plant was originally constructed by Maywood in 1916 at a cost of about $54,000; that it was estimated that in 1923 (the year in which the contract now in question was executed) the cost of the construction of the sewer and disposal plant would represent an expenditure of $81,200, and it was this plant that the city of Hackensack obtained for use in part.

The main point argued by the prosecutor is that the contract is illegal because it purports to bind the borough of Maywood in perpetuity and was an act of gross indiscretion upon the part of the municipality of Maywood.

The prosecutor (a resident and taxpayer) argues that the contract, being in perpetuity, should be condemned as beyond! the powers or as a gross abuse of the powers of the municipality conferred by the Home Rule act. As will be seen the Home Rule act gave in express terms the power to make a contract but was silent as to the duration of the contract.

The agreement was entered into between the two‘municipalities by virtue of article 21, section 7 of the Home Rule act (Pamph,. L. 1917, p. 400), which provides: “The governing body of any municipality may contract with the governing-body or bodies of one or more other municipalities.” Subdivision B: “To receive and care for or dispose of the sewage of such other municipality or municipalities; or (C) to have its sewage received and disposed of by any other such municipality or municipalities.” Section 1 of this article 21 provides that such a contract may be provided for by ordinance.

It is by no means clear that the contract made pursuant to such statutory authority is to be condemned because without express limitation as to time. The territory to be served by this sewer was limited in extent and no doubt that was taken into account when the contract was made. The original cost of the plant of course was known; of course its capacity was known, and no doubt its unused capacity was known, and these things all had a bearing upon the terms of the contract. No doubt it was contemplated that as time went on additional expenditures would have to be made for upkeep and perhaps for extensions, but that, we suppose, was considered to be counter-balanced by the fact that the money was paid at once to Maywood and from that time forward the money was either being used or was increasing in amount by accumulations of interest.

But opart from all that, we think that we are bound to say that this prosecutor cannot-now be heard to challenge the validity of this contract, because of laches. The plain implication from the record is that since the execution of the contract in March, 1923, the prosecutor knew, or is deemed to have known, all about the matter, not only as to the making of the contract, but as to what was being done pursuant thereto. It appears without dispute that the prosecutor, with this knowledge, stood by for seven years and made no complaint or attempt to review the ordinance, or the contract, and meanwhile has permitted Maywood to have the use of the $23,000 which was paid to it by the taxpayers of the city of Hackensack, and has permitted Maywood to expend $2,600 of this fund for improvements on the plant, &c.

It seems to us that the mere statement of the matter shows .the prosecutor to have been in laches; and we think that since his delay in applying for the writ has resulted in the expenditure of public moneys and the altered situation of the parties, the writ must be dismissed, with costs, and it is so ordered.


text:
    ELMER APGAR, PLAINTIFF, v. GEORGE W. CAMPBELL, DEFENDANT. EZRA APGAR, PLAINTIFF, v. GEORGE W. CAMPBELL, DEFENDANT.
    Submitted January term, 1930
    Decided July 1, 1930.
    Before Gummere, Chief Justice, and Justice Campbell.
    Eor the rule, McCarter & English.

      Contra, Byman Herr.

   Per Curiam.

This is an action for damages growing out of an automobile collision on the highway leading from Chester to Mendham, in Morris county. The plaintiff Elmer Apgar was the owner and operator of the car in which his brother, Ezra, was a passenger, by his, the owner’s and operator’s, invitation.

Elmer has a verdict for $750 and Ezra for $7,500. These verdicts are attacked upon the ground that they are against the weight of the evidence, because the court erroneously excluded a report of the witness, State Tropper Leon, and because the verdict in favor of Ezra is excessive. We think that none of these grounds is substantial.

The plaintiffs were proceeding easterly from Chester toward Mendham, and the defendant was traveling in the opposite direction. In front of the latter and proceeding in the same direction was a red Ford runabout; The defendant had negotiated, a left-hand turn and was about making another when the Ford roadster turned to its left across the roadway and into a lane or driveway, crossing the path of both defendant’s and plaintiff’s car.

The contention of the defendant is that plaintiff’s car was cut off by this roadster and veered to the left of the roadway directly in front of defendant’s car, which latter, in order to avoid a collision, turned to its left, resulting in the collision and that the driver Elmer Apgar was not looking where he was going, but directed his attention to the roadster that had turned across the highway. The contention of the plaintiffs is that this Ford roadster had crossed the highway far in advance of its car and had not impeded or obstructed it and that they were proceeding on their right-hand side of the road, when defendant’s car, impeded by the roadster crossing immediately in front of it, suddenly veered to its left and was driven directly into plaintiff’s car.

This contrariety of proof presented a fair, jury question and a finding thereon in favor of -the plaintiffs should not be disturbed.

Upon the question of the refusal of the trial court to admit the report of the state trooper, Leon, we think there was no error. This party was not an eye-witness of the happening. He testified to skid marks upon the pavement and also to an alleged admission against interest by the plaintiff Elmer Apgar, upon the question of negligence. He referred to a written report he had made, the originals of which had been filed at Trenton and Morristown; and said he had a copy in his possession. This plaintiffs’ attorney demanded from him and it was produced. Thereafter counsel for defendant offered it in evidence. To this there was an objection that was sustained, that it was not the original, which latter could have been produced by subpoena and further that such report was based upon hearsay. The latter contention was supported by an interrogation of the witness by the trial judge and the witness admitted such to be the case.

We think there was no error in the refusal to admit such copy of the report. At least such refusal was not harmful or prejudicial to the defendant, particularly because the witness testified fully and completely as to all matters alleged to have been contained in such report.

The final ground for setting aside the verdict as to the plaintiff Ezra Apgar is that it is excessive.

We think it is not. He received a painful, serious and permanent injury to his face as well as a partial paralysis to his arm and the impairment of the vision of one of his eyes.

The rule to show cause will be discharged, with costs.


author: Pee Cubtam.

text:
    JENNIE S. GROVE, PLAINTIFF, v. EDWARD O. VIERING ET AL., DEFENDANTS.
    Argued January 21, 1930
    Decided July 1, 1930.
    Before Gummebe, Chief Justice, and Justice Campbell.
    Por the rule, Joseph R. Megill.

    Contra, Harry R. Cooper.

   Pee Cubtam.

Plaintiff was the owner of a certain lot of land in Neptune City which she had purchased from one Gray in 1923. At that time, and for many years prior, there seems to have existed a brook or water course leading from Gorman’s pond to Duck creek, which, as it reached the location of plaintiff’s lot, seems to have lost its form and character as a brook or stream and to have become a small pond overflowing and covering a portion of the rear of plaintiff’s lot and other lands. When Gray purchased, for development, a tract embracing plaintiff’s lot, and when he negotiated the sale to plaintiff, he suggested and agreed, and that agreement seems to have been carried out, that the propery at the site of the pond should be filled in so that the water would be confined to a ditch or brook, corresponding to the brook or waterway as it existed elsewhere.

In the present' action plaintiff charges that on November 14th, 1928, a ditch was dug through her property at the direction of the defendant Yiering, who was a member of the council and chairman of the street committee of the borough of Neptune City and under the direction and control of the defendant Gouldy, who was chief of police of the borough. It appears that the borough council, by resolution of September 28th, 1928, directed its street committee to clean out this ditch or water course.

The defendant Yiering, chairman of the street committee, in accord therewith, directed one Hulse, the street superintendent, to do so. The plaintiff brought an action in trespass against Yiering and Gouldy, and a trial of that cause resulted in nominal verdicts of six cents in favor of the plaintiff and against the defendants.

These verdicts we are asked to set aside because, it is urged, they are contrary to the weight of the evidence, the charge of the court and the law applicable.

Our examination and consideration of the proofs brings us to the conclusion that these verdicts are not warranted nor justified by a clear preponderance of the evidence and the rule to show cause must, therefore, be made absolute.


author: Lstgersoll, Y. C.

text:
    Rulon W. Baker et al., complainants, v. Benjamin F. Shimp et al., defendants.
    [Decided July 9th, 1930.]

      Mr. Francis A. Sianger, Jr., for the complainants.

      Mr. William A. W. Grier, for the defendant Benjamin P. Shimp, administrator.
   Lstgersoll, Y. C.

This is a bill to foreclose three certain mortgages, one made by Benjamin P. Shimp and Florence D. Shimp, his wife, to the City National Bank and Trust Company of Salem, New Jersey, to secure the payment of a certain promissory note in the sum of $11,750, and by said bank assigned to the complainants. The second made by Raymond L. McG-argle and wife to Benjamin P. Shimp in the sum of $1,000, which mortgage was duly assigned to the said City National Bank and Trust Company of Salem, New Jersey, as security for the payment of the said promissory note above referred to. This mortgage was later assigned to the complainants, and no defense is made thereto. The third is to foreclose a chattel mortgage made by Benjamin E. Shimp to the City National Bank and Trust Company of Salem, New Jersey, as security for the payment of said note referred to, which said chattel mortgage was duly assigned to the complainants.

The facts of this ease, as developed, are that Benjamin E. Shimp and Frank H. G. Shimp, his father, individually and as partners, trading as F. H. G. Shimp & Son, made a certain promissory note dated March 15th, 1926, to the order of the City National Bank and Trust Company of Salem, New Jersey, for the sum of $11,750, which note was endorsed by the complainants and discounted at the said bank, and the proceeds thereof went to the benefit of the said Benjamin F. and Frank ”H. G. Shimp and the partnership of F. H. G. Shimp & Son.

On February 5th,» 1928, Frank H. G. Shimp died intestate, survived by said Benjamin F. Shimp as his only heir-at-law. On March 3d, 1928, upon the demand of the said City Nation Bank and Trust Company of' Salem, New Jersey, the mortgage first above referred to was executed and delivered by the said Benjamin F. Shimp and Florence D. Shimp, his wife, on the express condition that such conveyance should be void if the said Benjamin F. Shimp should pay or cause to be paid unto the City National Bank and Trust Company of Salem, New Jersey, on demand, the principal and interest of the promissory note heretofore mentioned, together with attorney fees, commissions, protests, or of any renewal or renewals given thereafter.

This mortgage covered a great many tracts of land. On the same day, that is, March 3d, 1928, Benjamin F. Shimp, by written assignment, assigned the said bond and mortgage secondly referred to as collateral security also for said note or any renewals thereof, and on the same day said Shimp executed the chattel mortgage above referred to also as security for the same note.

On the 13th day of June, 1928, Benjamin F. Shimp was appointed administrator of the estate of his father, Erank H. G. Shimp, and duly qualified as such. On October '15th, 1928, payment of said note was duly demanded by said City National Bank and Trust Company of Salem, New Jersey, and was duly protested for non-payment, and the complainants, on October 22d, 1928, paid to the City National Bank and Trust Company of Salem, New Jersey, the sum of $11,750, together with $421.20 interest then due, and on the date of the payment of said note, said assignment of mortgages were duly made by the City National Bank and Trust Company to the complainants. On August 6th, 1929, judgment was entered in the Salem county court of common pleas at the suit of complainants as plaintiffs against Benjamin E. Shimp, for the sum of $12,806.76. The complainants claimed the sum of $12,171.20, with interest from October 22d, 1928, to be due.

At the time of the execution of the mortgage first above referred to, title to the lands and premises therein described was an undivided one-half interest thereof in the said Benjamin E. Shimp, and the remaining one-half interest thereof in the estate of Erank H. G-. Shimp, deceased.

After the appointment of the defendant Benjamin E. Shimp as administrator, a rule to bar creditors was entered on the 13th day of December, 1928. On the 11th day of April, 1929, an order was made directing the administrator to sell the undivided one-half interest of the decedent’s in the lauds set forth in the complainants’ mortgage for the payment of debts of the deceased. This was more than fourteen months after the death of the decedent, and no sale has yet been made or attempted to be made.

There can be no question but that although no consideration passed as between Shimp and the bank, the undivided one-half interest held by him at the time of his father’s death was subject to its lien. The question arises, however, has he, in his dual capacity of administrator of his father’s estate, any defense to this action? Chapter 322 of the laws of 1920, supplement to an act entiled “An act respecting the orphans court, &c.,” laws of 1920, page 577, reads:

“The lands, tenements, hereditaments and real estate of any person who shall die seized thereof or entitled to the same, as well as any share or shares, or part or parts of a share of property of undivided rights or warrant to locate lands in this state, shall not be liable for the payment of his or her debts beyond one year after his or her decease, unless such decedent by his or her last will and testament shall specifically state or provide therein, in express language, that any such debt or debts shall be and remain a lien thereon for a longer term than one year after his or her decease; and any statement in any last will and testament directing the payment of the just debts of any such decedent shall not hereafter be construed as making any such debt a charge or lien upon any such lands, tenements, hereditaments or real estate beyond the period of one year from the date of the death of such decedent, unless such last will and testament shall otherwise specifically state, in express language, that any such debt or debts is to be and remain a lien or charge thereon beyond said period of one year; provided, however, that the heirs and devisees of any such decedent shall be and remain liable for any such debts to the same extent as heretofore under the act entitled ‘An act for the relief of creditors against heirs and devisees,’ Kevision of New Jersey, Compiled Statutes, Yol. 2, page 2739; and provided further, that this act shall not affect in any way the right of inchoate right of dower or the right of curtesy.”

The act therein referred to reads:

“That all and every creditor or creditors, whether by simple contract or specialty, and whether the heirs are mentioned therein or not, shall and may, by virtue of this act, have and maintain his, her and their action and actions, against the heir and heirs-at-law of any debtor who hath already died, or shall hereafter die intestate, seized of any messuages, lands, tenements or hereditaments, and against the heir and heirs-at-law, and devisee and devisees of such debtor, in case such debtor made any last will and testament; and such heir and heirs, devisee and devisees shall be liable and chargeable for a false plea by him, her or them pleaded in the same manner as any heir should have been for any false plea, by him pleaded, in any action of debt upon specialty, or for not confessing the lands or tenements to him descended; and moreover, all such creditors shall be preferred as in actions against executors and administrators.”

Vice-Chancellor Pitney, in McMahon v. Schoonmaher, 51 N. J. Eq. 95, held, “that a bona fide mortgage, given hy a devisee upon lands devised to him, and executed before suit brought against such devisee upon the debt of the testator, is an alienation pro tanto of the lands, and will take precedence over a judgment recovered against the devisee upon the debt of the testator.”

A decree will be advised in favor of the complainant, in so far as the first count is concerned. The sale, of course, as always, can only be of such right and title as the mortgagors had in the premises at the time of making the mortgage. The bill must be dismissed in so far as the third cause of action is concerned. There was no title in the mortgagor at the time he made the chattel morgage.


author: Ingersoll, Y. C.

text:
    The Automobile Insurance Company, a corporation of the State of Connecticut, complainant, v. Sarah Conway, defendant.
    [Decided July 9th, 1930.]

      Mr. Arthur T. Vanderbilt, for the complainant.

      Mr. Albert A. F. McGee, for the defendant.
   Ingersoll, Y. C.

On the 7th day of January, 1924, the Automobile Insurance Company of Hartford, Connecticut, insured the premises known as 3512 Pacific avenue, Atlantic City, New Jersey, against loss by fire, to the amount of $19,000, said policy being the standard fire insurance policy under the State of New Jersey and others.

One Elizabeth M. Lutz held a mortgage of $19,000 upon said premises, and the policy contained a New Jersey standard mortgagee clause that “loss or damage, if .any, under this policy, shall be payable to Elizabeth M. Lutz (whose name is now Elizabeth M. Lutz Ross) as mortgagee, as interest may appear.”

On the 2d day- of March, 1925, said lands and premises were conveyed by Elizabeth Claire Haggenbotham and her husband to the said Sarah Conway and her husband, James F. Conway, subject to the operation of the mortgage above referred to in the sum of $19,000.

There appears attached to the policy of insurance an endorsement as follows:

“Elizabeth Clave Haggenbotham 3-1-25. James E. Conway is hereafter recognized as assuz-ed and owner of the property covered under this policy, subject nevertheless to all the terms and conditions herein contained. Attached to and forming part of policy No. 2278 Automobile Insurance Company of Hartford, Conn. R. Saslaff, Agents.”

It will be noted that the original policy, after the signatures of the president and secretary reads: “Countersigned at Atlantic City, New Jersey, this 8th day of January, 1924, R. Saslaff, Agent.”

Sometime after said purchase and prior to the 24th day of March, 1927, policies were taken out on the said premises in the name of the complainant, Sarah Conway, and her husband, James F. Conway, one policy being No. 1303 of the National Liberty Insurance Company of America, in the sum of $7,500, and another policy, No. 1225, in the same company in the sum of $20,000, a total amount of insurance in the three policies of $46,500.

On or about the 24th day of March, 1927, a fire occurred in the premises known as 3512 Pacific avenue, and the damage was estimated at the sum of $20,192.90. By reason of the clauses in each of the said policies, which read that—

“Tliis company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto.”

The National Liberty Insurance Company of America paid over to the owners the sum of $11,532.02, and the Automobile Insurance Company of Hartford, Connecticut, should be responsible for the balance of $8,250.88. The Automobile Insurance Company of Hartford, Connecticut, paid to the said Elizabeth M. Lutz (now Elizabeth M. Lutz Eoss) the amount due upon the mortgage held by her amounting to $19,000, and took from the said Elizabeth M. Lutz Eoss an assignment of said mortgage, which mortgage it is now attempting to foreclose, claiming that they are subrogated to the rights of the said Eoss and that inasmuch as James F. Conway was not the owner in fee of the premises, being only a tenant in the entirety, that no amount is due to him from the insurance company.

Although James F. Conway has died since the time of the fire and the payment of $19,000 plus has been made by the insurance company to the mortgagee and an assignment taken thereof, $8,250.88 was the amount of enforceable loss to be credited to Conway, he having an insurable interest in the land.

Quoting from the brief of the defendant, citing 26 C. J. 582: “Where one of two or more joint owners or owners in common of property insures his interest separately against loss by fire, he is entitled in case of loss to receive and retain the insurance.” Corpus Juris, however, continues: “In such a case the insurance does not inure to the benefit of the co-tenant.” Ibid. § 582. “A husband and not his wife is entitled to the proceeds of a policy taken out in his favor, notwithstanding she has an interest in the property; and although she in fact owns the property, she cannot, it is held, recover on such a policy.” This, of course, is based upon the general rules as to rights to proceeds of a policy, as set out in 26 C. J. If 581: “As the policy is a personal contract between the insurer and the insured, and not a contract which in any sense runs with the property, the insurance money is generally payable to the person whose interest is covered by the policy, without regard to the nature and extent of his interest in the property, provided he had an insurable interest at the time of making the contract and also at the time of the loss.” Weinberger v. Agricultural Insurance Co., 80 N. J. Law. 202.

And it can make no difference in equity whether this payment was actually made by the insurance company before or after the death of Mr. Conway for the loss and the responsibility of the insurance company accrued in his lifetime. The complainant must, therefore, credit upon the said mortgage the sum for which it was responsible to the insured, James E. Conway, at the time of the fire, and a decree will be so advised. Mrs. Conway will, by this method, have received all the full payment for the damages suffered by fire, which was fixed at $20,192.90, by the payment of $11,532.02, the balance due from the National Liberty Insurance Company of America and by the payment on account of the mortgage in the sum of $8,250.88, the proportionate amount due to her husband, James E. Conway, and paid on account of the mortgage.

The act of Mr. and Mrs. Conway in taking out additional insurance immediately reduced the liability of each company proportionately, as provided for in the policies. It will be noted that there is no assignment of the insured’s interest in this policy to the Conways, nor to either of them, although there appears the endorsement above quoted.

Justice Van Syckel in Millville Mutual Marine and Fire Insurance Co. v. Mechanics’ and Workingmen’s Building and Loan Association, 43 N. J. Law 652, speaking for the court of errors and appeals (at p. 658), said, after stating the facts and conditions both: “In this aspect of the case it is manifest that the insured was justified in drawing the inference that nothing more was necessary to be done on his part to continue the life of the policy. Until notice was given to him to do some further act, he had a right to rest securely upon the agent’s assurance. The company cannot thus lull their policyholder into a false security, and take advantage of an omission on his part thereby induced, to work a forfeiture of their contract/”

The insurance company makes no claim, however, that Saslaff, the agent of the company, exceeded his authority in attaching said clause to the policy, and in the absence of proof, it will be assumed that his authority is conceded.


author: Backes, Y. C.

text:
    Frank Edisis, complainant, v. Hyman Solomon and American Mattress Company, a corporation, defendants.
    [Decided July 10th, 1930.]

      Mr. Israel B. Greene, for the complainant.

      Messrs. Stein, McGlynn & Ilannoch, for the defendants.
   Backes, Y. C.

Edisis and Solomon associated as sole stockholders of the American Mattress Company in May, 1928. Edisis had previously operated a company engaged in the same line of business, of which he was the single stockholder. His interest in the company, supposedly worth $1,000, was to be turned over to the new company and Solomon was to match that sum. Edisis’ interest was later surcharged, reducing it to $4,500. Solomon contributed $5,300. They apportioned the capital stock accordingly. They were together six months when Solomon bought Edisis’ interest for $1,500 in cash, $500 in company merchandise, a quilting machine, a cap machine, a Eord truck, all yard goods used for making quilts, and the cancellation of a $4,000 company debt due by another concern owned by Edisis. Six months later Edisis filed this bill to set aside the sale for fraud, claiming that he was induced to sell by Solomon’s repeated false representations of the financial condition of the company “that we are not making any profit in this business and if this business stays long the way it is, we will have to go into bankruptcy,” and that “one of us will have to go out.” It is also charged that Solomon secretly appropriated $600 of commissions due the company, and that between the sale and delivery of the quilting goods Solomon stole $600 worth of it.

Edisis was in charge of the factory; Solomon was the outside man. They had a bookkeeper and an accountant who came in monthly. They had done but $50,000 of business and earned but $1,356.50. Each had drawn $15 a week wages, and not with regularity, for lack of funds. The representations attributed to Solomon as to the company’s affairs, which he denies, if made, were evidently casual expressions of disappointment over two in a business so small in capital and limited in capacity for money making, and not as a statement of the company’s condition, for Edisis knew of its affairs quite as well as Solomon; the business was not extensive; the office was in the factory and. he was, .as was Solomon, in close touch at all times with the bookkeeper and accountant, and he was no novice. He was not misled by Solomon’s “lamentations” and he cannot now translate them into representations.

Complicated and confusing computations made by accountants, offered on either side, upon analysis, are persuasive that Edisis got the lion’s share of the deal, after driving a hard bargain, at which it is surmised he was not inept. Iiis complaint that he acted without independent advice cannot be serious. He was quite the equal of Solomon; both are young, alert and circumspect. They themselves completed their negotiations, then went to their lawyer._ He did not counsel them, he was simply their scrivener, reducing to writing their understanding, and correctly. He was Solomon’s brother, but also he was or had been Edisis’ lawyer, as he had been his father’s.

The bookkeeper, Aaronson, who continued with Solomon for some months after Edisis quit, gave testimony that while the two were at the lawyer’s office, November 22d, to have the contract drawn, Solomon telephoned him that they had concluded to separate and that Edisis was to get all the quilting material and asked him to hide some of the better quality because he hated to see Edisis get the better of the settlement; that he took out some $600 worth; that when the two returned he gave Solomon a knowing wink, and that later in the evening Solomon took the stolen goods away. Edisis says when he returned from the lawyer’s office to get his merchandise, the woman in charge told him of the discrepancy in the stock; that what remained was sent to him, about $300 worth; that Solomon said there must have been a robbery and called the police.

The bookkeeper’s testimony comes from an unreliable and unworthy source, low in moral sensibility for, he says, that at the time he helped steal the goods he thought it was right, and, at the hearing, would concede only that it was “crooked in a way.” Remorse was not the motive for this scamp’s self-implication. He “informed” after he was discharged for disloyalty and there is evidence of a monetary consideration. The woman in charge denies she told Edisis that the goods were missing. Solomon denies the bookkeeper’s tale. He says that Edisis packed and took away all his goods after they returned from signing the contract, November 22d, and that the next day Edisis complained of missing twenty-eight yards of silk worth $1.75 a yard, and the police were then, called. The police support him in this; they say the complaint came to them on the morning of the 24th and when they responded, Solomon reported that twenty-seven yards-of silk, seventy-five cents a yard, had been stolen and that, an employe was suspected, as he had been before. Two outstanding facts lend discredit to the charge: That Solomon, repeated to the bookkeeper, when he telephoned him from, the lawyer’s office to steal the merchandise, that he and Edisis had concluded to separate and that Edisis was to get the quilting material. These facts he admits he knew from Solomon before the two went to the lawyer’s office. Why repeat the information P The other: That Edisis closed the deal and executed releases to Solomon and the company after-the theft, knowing of it, and not protesting that Solomon should share the loss; and never afterwards complain. The* charge is not sustained though no brief can be held for Solomon’s sense of honesty. Workmen, later, in tearing down shelfing, found two pieces of silk which Solomon appropriated and returned to the firm from which they were bought, receiving a credit of $21. He was dishonest in not sending-them to Edisis; but the attempt to link them to the supposed stolen quilting goods fails, for proof comes from the-workmen that they accidentally discovered them later. However, whatever the truth may be, the supposed theft cannot be a ground for rescission because of a part failure of consideration. Edisis affirmed the contract with knowledge of the deficiency.

The charge, that Solomon wrongfully appropriated commission belonging to the company, which should have appeared on the book as an item of the assets, and that to that extent there was misrepresentations as to the company’s, condition, is not made out. Solomon had worked for a bed manufacturing concern, and when he took up with the company he agreed with his employer to continue to serve his old. ■customers on a commission basis. This netted him about $600. The claim is, that the commissions belonged to the company on the theory that he was a company official and had agreed to give his time exclusively to the company’s affairs. Solomon says it was understood that he was to continue his agency, within the limited scope, to partly make up his loss of a $5,000 a year job he had given up for a $75 •a week wage and the prospects. This defeats the implication.

The bill will be dismissed.


text:
    PETER JENSEN, PLAINTIFF, v. DANIEL R. KINSLEY, DEFENDANT. PAULINE C. JENSEN, PLAINTIFF, v. DANIEL R. KINSLEY, DEFENDANT.
    Submitted January term, 1930
    Decided July 1, 1930.
    Before Gummere, Ci-iiee Justice, and Justice Campbell.
    Eor the rule, Greis <& Milstead.

    Contra, T. Millet Hand.

   Per Curiam.

Pauline Jensen and her husband were driving in a car owned and operated by the latter on a highway in Gloucester county. Preceding them was a car owned and operated by the defendant. The complaint is that this car suddenly and without any warning turned to its left across the higlrwuy, in order to enter a driveway just as the plaintiff’s car was in the act of overtaking and passing it. The result was a collision in which the plaintiff Pauline Jensen was injured, and both cars were damaged.

Pauline Jensen sued for damages for personal injuries, her husband, Peter Jensen, for damages to his car and the defendant, Kinsley, counter-claimed for damages to his car.

The result of a trial of the cause was a verdict of no cause of action against all of the parties. Such a verdict demonstrates that the jury found that both Peter Jensen and Daniel R. Kinsley were negligent and their negligence produced and caused the happening.

However, from the proofs, it is impossible for us to find how the jury was justified in finding against the plaintiff Pauline C. Jensen.

The rule to show cause will therefore be made absolute.


author: Pek Ctjbiam.

text:
    E. R. WILLETS, APPLICANT, v. THE BOROUGH OF SEA GIRT, RESPONDENT.
    Decided July 1, 1930.
    For the applicant, Quinn, Parsons & Doremus.

    For the respondent, Durand, Ivins & Carton.

   Pek Ctjbiam.

This is an application for a writ of ceHiorari to review an ordinance authorizing the construction of a boardwalk, along the beach, in front of the property of the applicant.

Application for such writ was previously made to Mr. Justice Bodine, and denied.

We have considered the grounds presented and urged and have concluded that the application should be denied as we fully approve and concur in the conclusions of Mr. Justice Bodine in denying the writ when application was made to him. His conclusions are fully set forth in a memorandum filed June 3d, 1930.


text:
    EDWARD BRUCE, PLAINTIFF, v. BENJAMIN P. KRYSIAK, DEFENDANT.
    Submitted January term, 1930
    Decided July 1, 1930.
    P>efore Gummeee, Chief Justice, and Justice Campbell.
    For the rule, Kellogg & Chance.

    Contra, Feder & Rinzler.

   Pee Cueiam.

Plaintiff, while proceeding to cross Main street, in Paterson, from west to east, at its intersection with Madison avenue, was struck by, or came in collision with, an automobile owned and driven by the defendant. He has a verdict for $10,000, which we are asked to set aside—

1. Because it is against the weight of the evidence upon the question of contributory negligence.

2. Because it is excessive.

Upon the question of the acts, of the plaintiff, from which it is said that he was guilty of negligence contributing to the happening, the proofs are in conflict, but, nevertheless, present a fair jury question and we cannot say that the finding of the jury is against the weight thereof.

We think, however, the verdict is excessive.

Plaintiff’s injury was a slight fracture of the fibula, the small bone of the lower leg, at or near the ankle. He lost three month’s wages, which together with his medical bills, &c., caused him a money loss of $873. He still complains of pain in his ankle, particularly in damp and rainy weather, and he walks with somewhat of a limp.

We think a verdict of $6,000 would have been ample, and if within thirty (30) days from date of service of a proper order hereunder plaintiff will file his consent to the reduction of his verdict to $6,000, then this rule will be discharged, otherwise it will be made absolute and a venire de novo issue.