author: Newman, J.

text:
    Passaic County Circuit Court.
    Merchants Bank of Passaic, plaintiff, v. Garret Roosma, defendant.
    Judgments — Summary—Notesi—Endorser’s Liability — Notice and Protest — Alleged Release of Accommodation Endorser — Use of Collateral Security Before Action Against Endorser.
    On motion to strike out answer and for summary judgment.

      Mr. Henry G. Whitehead, for the plaintiff.

      Mr. Winfield •/. Schleich and Mr. J. Willard Be Toe, for the defendant.
   Newman, J.

This is an application to strike-out an answer as sham and frivolous and for summary judgment in behalf of plaintiff on four promissory notes made by 54 ATest 57th Street Company, Inc., a corporation, payable at the place of business of plaintiff, and endorsed by defendant, and of which notes plaintiff became a bona fide holder for value in due course before maturity.

The facts as alleged by the respective parties are set forth by the affidavits presented, and, if the affidavits presented by defendant controvert any fact alleged by plaintiff essential to a recovery, the motion must be denied.

The moneys upon these notes was loaned by the bank to the maker upon the strength of the endorsement of the defendant, who was its originator and chief stockholder, as well as a director of the plaintiff bank.

The first point urged by defendant bank in his answer and argument is that he is not liable as endorser upon the notes for $1,500 and $2,000, because they were not properly protested by one Haekett as a notary public, and no notice of protest, or dishonor was given.

The uncontradicted affidavit of Lauffer as to- each note shows that on the day of maturity “deponent as agent for Merchants Bank of Passaic [the plaintiff], and representing Edward P. Haekett, notary for said hank, presented the said note to the teller of the Merchants Bank of Passaic, and demanded payment therefor, and the said teller refused to pay the same, saying ‘not good/ and that on the same da.y he mailed notice of dishonor and protest to defendant at his address,” the address being given. The notice is set forth in full and purports to he signed by Edward P. Haekett, notary public.

Tn support of this contention, counsel for defendant in their brief argue that “there is no evidence that the notes were protested by the notary. No demand was made by him for the payment of these notes. There is no authority given by the statute for a notary to delegate his duties.”

This argument seems to he based upon the somewhat prevalent, but, nevertheless, errnous assumption that to hold an endorser upon a promissory note, it is necessary that a notary shall protest it.

The engagement of such an endorser is that if the note is presented for payment at the time and place of maturity and payment demanded and refused, and proper notice given to such endorser of such demand and refusal, he will pay the note to the holder.

The statute providing for the protest of a promissory note by a notary was not intended to make such a protest, a condition precedent to liability of the endorser, but to'supply a convenient means of proving demand and notice of dishonor by the certificate of the officer performing the service, Mackintosh v. Gibbs, 81 N. J. Law 577.

In the ease of Sussex Bank v. Baldwin, 77 N. J. Law 487, the demand was made by one who- was the clerk fox one who was the agent of the notary, bjr whom the notice was sent, being one step further removed than in the case at bar, and yet the endorsers were held liable.

That defendant received no notice of protest presents no defense. Battery Park Bank v. Ramsay, 100 Atl. Rep. 51. This defense is therefore sham.

Defendant in his answer alleges ignorance of the ownership of the notes by plaintiff, and in his argument further urges that plaintiff must prove that it is the holder of .the notes and that they are unpaid. A sufficient answer to this contention is that plaintiff's affidavits so state, and, in addition to that, possession is primp facie proof of ownership, and payment is a defense. This defense is sham.

The first separate defense alleges that defendant was released from' liability on the notes by the plaintiff.

It appears that Robert D. Kent, the president, and Edward E. Hackett, the treasurer, of plaintiff bank, personally and with others (including defendant) took over all the capital stock of said 54 West 57th Street Companj', Inc. Defendant' then alleges in his affidavit "at the time that said company was taken over by the aforesaid parties, it was understood ’ between deponent and Robert D. Kent, president of the Merchants 'Blank of Passaic, Edward E. Hackett, treasurer and cashier of the Merchants Bank of Passaic, that deponent was not to be held accountable to the bank by reason of his endorsement being on the former notes or any renewals thereof.”

This does not present any evidence of a legal release on the part of plaintiff. The consideration, if any, passed to these men personally, and the allegation ought not to be construed as an attempt to bind plaintiff.' If it was so' intended by defendant it would be nugatory, since there was no consideration to plaintiff to support it, if intended as a release by the bank made by 'its officers for a consideration passing t'o them personalty, it would be a fraud upon it, to' which defendant knowingly was a party. In either'event it would'be unaváiling to defendant.

This defense is therefore sham.

Defendant by his second and fifth separate defenses alleges that he was an accommodation endorser, but that is no defense to an action by a holder for value, notwithstanding such holder at the time of taking the note knew him to be such. Comp. Stat. p. 3738 § 29.

‘Phese defenses are therefore frivolous.

By his third and fourth separate defenses defendant alleges that plaintiff held collateral security of the' maker, which it declined and refused to dispose of, and apply the proceeds in reduction of its indebtedness on said notes.

There was no such legal obligation on the part of plaintiff. Defendant, on paying the notes, was entitled to be subrogated to the rights of plaintiff as to the collateral. Brick v. Freehold, Bank, 37 N. J. Law 307; Polhemus v. Prudential Realty Co., 74 N. J. L. 570. Nor can his rights be affected by any delay on the part of plaintiff in bringing suit. Brick v. Frehold Bank, supra.

These defenses are therefore frivolous.

The sixth separate defense charges that the officers of the bank and of the maker are the same and are chargeable with notice.

This is likewise frivolous, as there is nothing in this case of which the plaintiff is of any importance.

Plaintiff having presented affidavits verifying its cause of action, stating the amount claimed and expressing the belief that there is no defense to the action, and defendant having failed by affidavit or other proofs to show such facts as are deemed by me to be sufficient to> entitle him to defend, and the whole of said answer being either sham or frivolous, the answer will be struck out and judgment entered for the amount due plaintiff as shown by the affidavit of its president, Robert D, Kent, except protest fees claimed on the notes of $1,500 and $2,000, respectively, together with accrued interest thereon to date of entry of said judgment.


source: Caselaw Access Project

author: Buchanan, V. C.

license: Public Domain

text:
    Elmora Development Company, complainant, v. Morris Horwitz et al., defendants.
    [Decided July 25th, 1924.]
    Specific Performance — Agreement to Exchange Property — Numerous Terms to the Contract — Inflated Values on Both Sides — Financial Reverses of Defendant Not Ground for Denying Performance. — Concessions on Part of Defendant.
    On final hearing.

      Mr. Charles Jones, for the complainant.

      Messrs. Stein, Stein cG Hamnoch, for the defendants.
   Buchanan, V. C.

Complainant’s bill is for specific performance of a contract, dated April 17th, 1923, between it and defendant for the sale and conveyance by each party to the other of real estate, respectively, owned by each. (Horwitz’s wife is also a party defendant, but need not be considered in these conclusions. )

Complainant’s property comprises building lots in Elizabeth, to be conveyed unencumbered except by restrictive building covenants. Defendants property is a building in Newark, comprising a theatre and five stores, all leased to tenants. It was to be conveyed subject to a $70,000 mortgage, covering also- an adjoining property of defendant (consisting of a garage and stores), the payment in full of which mortgage was to. be assumed by complainant, and subject to the leases (the benefits of which were also to. be assigned to complainant).

Agreed (gross) valuations were placed on the respective properties for the purposes of the exchange, complainant’s at $63,389.75 and defendant’s at $135,000.

Defendant’s theatre property and his adjoining garage property were also encumbered by a $10,000 second mortgage, and by mechanics’ liens and other building claims amounting to approximately $10,000. Complainant agreed to pay (and did pay) defendant at the signing of the agreement $10,000, to be used in [laying off all these building claims and liens, and agreed to pay $10,000 more in cash, at the date fixed for consummation (two months after the date (<f the agreement, or earlier, at complainant’s election), to be used in discharging the $10,000 second mortgage.

Defendant was also indebted to tenants in the sum of $14,100 for advance rents or security deposited against rents accruing: this liability was assumed by complainant. This sum, together with the $20,000 above mentioned and the $70,000 first mortgage, aggregated $104,100, deducting which from the agreed valuation of $135,000, left a balance of $30,900. Setting off this last sum against the agreed valuation of complainant’s property, $63,389.75, left a balance due complainant of $32,489.75, for which defendant was to execute and deliver to complainant a purchase-money bond and mortgage, payable in one year, covering the premises to be conveyed by complainant to defendant.

Complainant agreed to “sewer, grade and flag” the streets on which the building lots fronted. This has been done.

Defendant further agreed “that within a, reasonable time after the execution of this agreement they will commence the erection and construction of at least ten dwelling-houses” on the building lots to he conveyed to defendant; and complainant agreed to advance to defendant temporary construction loans of $3,500 for each of said houses, to he advanced in specified installments as the building progressed. These loans were to he for six months, and the gross amount was to be added to the $32,489.75 purchase-money bond and mortgage above mentioned. Releases from this mortgage were to be given at certain prices per front foot, and when one of the houses was to be released, the $3,500 temporary construction loan was also to be repaid.

There was another provision of the agreement, that at the time of the execution thereof, in consideration of the advance payment of $10,000 to pay off the mechanics’ liens, defendant should execute to complainant a “security mortgage” in the sum of $10,000, covering defendant’s theatre property and also his adjoining garage property (which was worth about $84,000); that a.t the date of consummation the theatre property should be released from this mortgage, but not the garage property; that the mortgage should “be canceled” as against the garage property when defendant had completed the ten houses and repaid complainant the temporary construction loans and paid the stipulated amount for the releases from the purchase-money mortgage of the lands on which the ten houses were erected (which would mean a total payment to complainant of $61,250, or all bxxt some $6,000 of the total mortgage indebtedness). It was further agreed that if the ten houses should not be erected and completed, and if there should be a foreclosure of the purchase-money mortgage and a deficiency thereafter remaining, the $10,000 mortgage should be collateral security for such deficiency.'

There were a number of other provisions in the agreement, which are not material to the present determination.

The agreement was partly carried out on both sides. The $10,000 was advanced by complainant, and was used to pay off the mechanics’ liens, and defendant executed and delivered the $10,000 mortgage in return therefor. Complainant “sewered, -graded and flagged” the streets in front of the lots, and defendant commenced the construction of the ten houses. The consummation of the agreement did not take place by June 17th, but was extended once or twice, by mutual consent, but, finally, in July, defendant refused to-consummate the contract, this determination being caused apparently by defendant finding himself, with the limited resources and credit available to- him, unable to complete the construction of the houses even with the help of' the ternporary construction loans to be advanced by complainant. Complainant’s bill was promptly filed.

Complainant’s proofs show that it is, and has always been, ready, willing and able to carry out all of the provisions of the contract. Enforcement of the contract is resisted on two grounds — first, that the contract comprises, a building contract, which this court cannot and will -not attempt specifically to enforce; and second, that enforcement would work undue hardship and oppression upon defendant.

It is, at least, doubtful if defendant’s first contention be well founded. As is pointed out in a recent opinion of Vice-Chancellor Baekes in a somewhat similar case, complainant is not asking this court to- compel specific performance of the defendant’s promise to build. That is a promise which was to be performed in futuro, and no provision in regard to it is necessary in the decree which is the object of complainant's present suit. Moreover, to remove this objection, complainant at the hearing announced that it waived the provisions of the contract relating to the construction of the ten houses, and the giving of the mortgage to cover the $35,000 of construction loan moneys. It would seem that this offer is sufficient to eliminate defendant’s first objection.

One of the elements of defendant’s claim of undue hardship and oppression is an alleged inadequacy of consideration, an over-valuation of complainant’s property to- the extent of more than $30,000 (or about one hundred per cent.). Indeed, it is contended that there was an actual misrepresentation in this behalf by one Tannenbaum, alleged to be complainant’s agent.

I am unable to find any fraud or misrepresentation attributable to complainant, or relied on by defendant. Tanneubaum was produced as a witness by complainant. He was the broker employed or authorized by defendant to negotiate a sale of his theatre property. I believe from the testimony that he had told defendant that complainant’s property was worth the $63,389 asked by complainant, But it does not appear that Taur.enbaum was an agent of complainant. All that appears is that he “is 1o receive a commission” from complainant; it does not appear that complainant made any such promise before the contract, or that complainant authorized him-to negotiate a sale of its lots. Moreover, such a statement — a mere statement of the worth or value of the lots — is not such a representation as defendant was entitled to rely upon, even if made by complainant. Cf. Mount v. Loizeaux, 86 N. J. Law 511 (at p. 517). Still further, as will be seen, it was not in fact relied on by defendant.

Complainant concedes that thei valuation of $63,389 on the lots was about $30,000 in excess of their fair value, or the price for which it would have sold them for cash, at the time of the contract, but says that this over-valuation was made to correspond with an equal over-valuation by defendant of his property, and that defendant knew this; that the fair value of defendant’s propeiiy was only $105,000.

That there was an over-valuation by defendant of his property, and that defendant knew that complainant was over-valuing its lands, I am constrained to believe, in spite of defendant’s denial, from the testimony of Mr. Larkey, -deiendant’s own lawyer, and called by defendant as a witness. He says that Horwitz had told him that he would sell his theatre property fox $110,000; and, further, that Horwitz had said to him that he knew the complainant’s property was being over-valued; that the part that was valued at $100 a foot was worth about $60, and the part that was valued at $75 a foot was worth $45 or $50, but he was satisfied to go through with it on .'that basis, because he felt he would “make out clear ,and have the garage property left for him.”

I am inclined to believe, however, that there was in fact some inadequacy of consideration. Mr: Larkey’s testimony, and the fact that Horwitz said he would sell for $110,000, must be considered in connection with Horwitz, circumstances at the time, to wit, that he had these $10,000 of mechanics’ liens and claims against the property which were being pressed; that he had no< money with which to meet them; that he had made efforts for some time to raise money by mortgage or sale; lie was in a, situation where he had to- do- the best he could and do- it quickly. It would seem from Mr. Larkey’s testimony abo-ve mentioned that Horowitz believed the price of the lots was inflated only about sixty-six per cent, instead of one hundred per cent., which would be about $22,000 instead of $30,000. Considering that he raised the value of his own property an equal amount, lie was figuring- that ho was getting the equivalent of $113,000 for his poperty, under these circumstances amounting practically to- a forced sale.

-Admittedly, the annual rentals from his property were $14,100. This would not, however, indicate that $140,000 would be a fair valuation for the premises, for there would bo a higher rental basis in the case of theatre property than ordinary property. Air. Linnett, a disinterested witness, a real estate expert- of Newark, places the value of the theatre property at $125,000, exclusive of the seats (for which Horwitz says he paid o-vcr $7,000, but the present value- of which does not appear).

Air. Feinswo-g, complainant’s president, testified that he told Horwitz he had had an appraisal made of the theatre property, and that the report placed its value at $105,000, but this appraiser was not called to testify. It appears that complainant sold the property to its treasurer for $105,000, and that the latter sold it to another party, in an exchange, at a valuation of $128,000. (Complainant was, of course, in the business of developing and selling its lots, not operating a theatre building.)

From all the evidence I am inclined to- believe that the fair value of defendant’s property was abo-ut $120,000 to $125,000, as against a fair value of about $35,000 for complainant’s property. This would mean an inadequacy of consideration to- the extent of about $15,000. -I repeat-, however, that I am satisfied that there was no fraud or sharp practice on the part of complainant.

Inadequacy of consideration, unless through fraud, o-r so great as to amount to- constructive fraud, is not alone ground for refusal of specific performance, but it will be given consideration and weight, if there be other circumstances tending to" make such a decree inequitable.

It is argued by defendant’s counsel that there are such additional circumstances in the present case. He points out defendant’s age, and his partial physical disability, which are material in connection with the fact that what he was relying on “to come out clear” in the transaction, was the construction and sale of the ten houses within a year, and in the same connection, his financial inability to carry out this project; he has no' income except from the theatre and garage property; his daughter has had to give up her employment in order to take care of her father and mother and the household; a judgment of some $30,000 has recently been recovered against him; his brother (or son) for the assistance of whose experience in building he had hoped has left and gone to California; he cannot hope to sell the lots (even disregarding the competition of complainant), because, admittedly, he has to pay for a release of each lot from the lien of the purchase-money mortgage more than the lot could be sold for; and the purchase-money mortgage, which was to be payable in one year from June 17th< 1923, would mature due practically immediately, and defendant would be unable to meet it.

Defendant’s situation naturally elicits some sympathy, but I am unable to conclude that it .is such as to call for a denial of decree for specific enforcement, at least, in view of complainant’s offers to modify the terms of the contract at defendant’s option. The main factor in defendant’s argument, when it is boiled down, is his financial inabilit}1' to complete the building prograan. This, however, is eliminated ' by complainant’s offer to waive that requirement, which eliminates also whatever force the question of his physical infirmity might otherwise have (which, from his appearance in court, did not seem to me so great as to prevent Ms supervision of building construction). Aside from all this, it is simply a matter of financial reverses, and I have never known that that was a sufficient reason for denying specific enforcement.

Tlie contract has already been partially performed on both sides, which is to my mind an added reason for enforcement. The arguments now made against enforcement were not the reasons for defendant’s refusal to complete performance. The evidence shows that the value of the property to he conveyed by complainant to defendant has appreciated since the contract, and in all probability will continue to appreciate. There is a credit due to defendant on the $70,000 building and loan association mortgage of about $7,000.

Complainant offers, as has been said, to waive the contract provision as to the building of the houses and the construction loan addition to the mortgage. It also similarly offers, at defendant’s election, to extend the maturity date of the purchase-money bond and mortgage to six months from date of consummation or decree, and to reduce ihe amounts to be paid for releases of lots to $50 per front foot on Jersey avenue and $40 per front foot on the other streets.

These offers should, of course, be made by amendment to the bill. Complainant may have an order permitting such amendment, and defendant may have ten days after such filing (and service of copy on defendant) to signify its election in respect of the several offers. Pinal decree will then be made in accordance with the situation as it then exists.

I think the case is one in which costs should not be awarded to either party.


author: Foster, Y. C.

text:
    Lilla M. Flournoy, complainant, v. Harry H. Flournoy, defendant.
    [Submitted June 11th, 1924.
    Decided July 14th, 1924.]
    Divorce — Rights in Property of the Two Parties — Title in Name of Husband — Independent Funds of Wife — Joint Contributions to Purchase Price — Titles of Certain Property in Name of Both.
    On bill, &c.

      Mr. Harold Bouton, for the complainant.

      Mr. |íilton M. TJnger, for the defendant.
   Foster, Y. C.

This controversy relates to- the respective rights of the parties in a property known as No. 53 Bleecker street, in the city-of Newark, and-also in certain property in Tampa, Florida.

The parties were husband and wife until divorced by a decree of this court, in favor of the defendant herein, which was entered on November- 23d, 1922.

In the pleadings certain issues were joined respecting loans or notes -for $500, $200 and $200, respectively. During the pendency of the hearing the $500 claim has been paid to defendant, and counsel for defendant in his brief states “there would seem to be no good reason for now contending that she [complainant] is obligated on the Hawkins and Blacklock notes, and these two- items are abandoned, and the court need not, so far as the defendant is concerned, consider them.”

This concession confines the issues to the rights of the parties in the two properties mentioned, and the dispute relating to the Bleecker street property will he first considered.

In this consideration the following facts are found established by the proofs:

The parties first became acquainted about the year 1906, and complainant was then the wife of one Tichenor, by whom she had two children. Complainant had independent means, acquired through inheritance, and between 1906 and '1912 she purchased several parcels of real estate and title thereto was taken in the name of the defendant in trust for her.

On June 10th, 1911, complainant purchased the Bleecker street property for $5,600, title being taken in l:he name of the defendant.

About three months later, on September 6tli, 1911, complainant obtained a decree of divorce against Tichenor in Texas, and the following day she married the defendant. No children have been horn of this marriage.

From June. 1911, until the parties separated in 1919, the defendant collected the rents from the property and paid its fixed charges therefrom, and they used the surplus income for their living expenses. After the separation complainant collected the rents for about one year, and from November 20th, 1920, defendant, as receiver, resumed their collection, and has continued to do so, and he has accounted for his receipts and disbursements up to April. 1923. Exceptions were taken by complainant to this accounting and they were overruled.

Defendant admits that the Bleecker street property belongs to complainant, but claims that her right thereto is subject to his claim for $183.46 found to be due him on an accounting had herein for $75 paid by him on account of the purchase price of the property, and the balance for repairs, &c., 'made by him to the property, and also subject to one-half of the profits that may be realized from the sale of lire property.

This division of profits he alleges was orally agreed upon between him and complainant at the time of the purchase.

Assuming; as claimed, that such an agreement is not within the statute of frauds, there is no proof, aside from defendant’s testimony, to establish it. Complainant denies any-such agreement or arrangement, and in this she is corroborated by the fact that defendant never asserted any such claim until this litigation commenced, and also by the fact that he had never made claim for any share of the profits in the seven or eight other properties which complainant had purchased and placed in his name and had disposed of before their separation.

My conclusion respecting the Bleecker street property is that defendant should he decreed to convey this property to complainant, subject to all encumbrances placed thereon with her consent; that defendant is entitled to be paid the .amount found due him on the accounting of $183.46, and, in addition, should receive an allowance for his services as receiver from November 20th, 1920; that he should.file a supplemental account of his receipts and disbursements to date, and that the surplus of receipts, after the payment of the amount .above mentioned and the allowance to him as receiver, should be paid to complainant.

The established facts relating to the Florida property, which complainant claims is hers and in which defendant claim's a half interest, because he asserts he paid part of the purchase price, show that, aside from defendant’s testimony, there is not the slightest proof that he paid one dollar of his own money for the purchase of this property. He has attempted to' show that from his own funds he gave complainant and her attorney checks amounting to $1,182.12, with which she purchased the property-and had title thereto1 placed in their joint names, and he suppresses -or disputes the fact, which is clearly established by his own and by her bank account, that the money he gave her was her own and part' of the proceeds of the- sale oí -her property on Fifth street, Newark. Complainant- purchased this property in 1900; she sold it by a deed dated August 19th, 1911, and recorded on August 25th. On -this latter date defendant deposited in his own hank account $1,999.50, the proceeds of this sale; with $1,000 of this money he opened an account in his own name in a Tampa, Mori da, bank, and also drew $350 for the expenses of their trip to Tampa.

The Tampa property was bought for $1,200 in March, 1912, about six months after the parties were married. Complainant paid the entire purchase price by checks on her own bank account, viz., one for $500, dated March 2d, 1912, and the other for $700, dated March 28th, 1912, and, in addition, she personally has paid taxes and assessments amounting to over $500.

Defendant at first claimed a one-half interest in the property subject to a' $700 mortgage; later, apparently recalling that complainant had paid this $700, he enlarged his claim to an absolute half interest in the property.

Title to the property was taken in the name of both parties at the suggestion of defendant, and on the assurance to complainant from him and the real estate' agents through whom the property was purchased, that it made no difference, as defendant would have to join in the conveyance if complainant ever sold the property.

While this cause was pending in 1923, and without the knowledge of complainant, and without the knowledge of his own counsel, defendant conveyed his alleged one-half interest in this property to one of the real estate agents from whom is was purchased, and he is unable to tell whether he realized $300 or $400 from this sale, and in order to stop partition proceedings by tire purchaser and to obtain complete title to the property complainant was obliged to pay the purchaser $1,077 for .the reconveyance of defendant’s alleged one-half interest in the property.

Erom defendant’s attitude upon the stand, and from his shifty, evasive and unsatisfactory answers, I am convinced he made this sale and conveyance of his alleged interest in the property in utter defiance of the power of the court, and for the purpose of defrauding complainant, and in furtherance of an understanding with the purchaser by which advantage could be taken of complainant, a non-resident of Florida., Vlio they thought would not learn of this sale and conveyance in time to protect her interests.

The proofs conclusively show that defendant has not now, and never had, any right, title or interest in tins property, except such as the law gave him as the husband of complainant. The proofs further show that by his fraudulent conduct and his false assertions of an interest in this properly, he has caused complainant a loss of at least $1,077, with the interest thereon from the date she paid this amount, for the reconveyance of his alleged interest in this propertjr, and a decree will he advised that he be directed to pay to complainant this amount, with interest.

The termc of the decree may be settled on three days’ notice.


author: Foster, V. C.

text:
    Gorrell v. Gorrell.
    [Decided June 25th, 1924.]
    Divorce — Alimony—Allowance on Financial Condition of Wife as they Appeared — Imposition on Court — Order Vacated and Repayment Directed.

      Mr. B. II. Schenck (of J/Vwm. King & Yogi), for the petitioner.

      Messrs. Levitan & Levitan, for the defendant.
   Foster, V. C.

(orally).

This is an application to vacate an order advised by me on the 13th of November last — October 13th or November 13th, 1923 — counsel for the respective parties differ as to the month.

The substance of the order was to require Mr. Gorrell to pay his wife at the rate of $15 a- week until the further order of the court, in weekly payments.

There was a direction contained in the order, as the result of the contest before me on the application, that if it should appear at any time that Mrs. Gorrell's financial condition— at the time the order was advised and the amount fixed— was not as she represented the same to he, and was materially different from what she represented it to he at the date of the application and the date of the affidavits filed in support of her application, that then I would vacate the order for almonv, and would advise an order directing the repayment to Mr. Gorrell of all payments made on account of the alimony order.

Mr. Schenek — You did say that. Then what you said was, that if the $2,300 worth of Liberty bonds that were in suit before Vice-Chancellor Eielder were awarded to the wife, you would then vacate the order.

Court — I am satisfied from the evidence that has now been offered that Mrs. Gorrell imposed upon the court in her affidavit; that her affidavit was false, in suppressing from the court the fact that she was the owner of certain stocks and personal property amounting to about $4,000, in addition to'the Liberty boards, at the time she made her affidavit, in which she recited the fact that she was without funds and was being supported by the charity of friends, which I also- find to- be untrue; and as a result of that imposition upon the court, aird the fraudulent representations contained in her affidavit, I will now advise an order vacating the order for alimony, and directing that she may be required to repay from the date of the o-rder any moneys that Mr. Gorrell has paid to- her in o-bediearce to the terms of that order, and execution for the collectioai thereof may be had in the ordinary course.

I shall also award counsel the costs of this application, and will give him a counsel fee of $50.


author: Per Oüeiam.

text:
    GEORGE J. RULOFSON v. MAYOR AND COMMISSIONERS OF THE BOROUGH OF OAKLYN.
    Decided July 8, 1924.
    Taxes — Apportionment Against Certain Lots — Demurrer Admits Truth of Facts — Writ of Mandamus Issued.
    On mandamus. On demurrer to alternative writ.
    Before Gumhere, Chief Justice, and Justices Miktttjen and Black.
    For tlie relator, Thomas J. Hamm.

    The borough of Oaldyn not represented by counsel at the 'argument.
   Per Oüeiam.

The alternative writ in this case directs the mayor and commissioners of the borough of Oaldyn to apportion certain taxes and municipal liens assessed against certain lots belonging to the relator and located in said borough, or to show cause why it should not he ordered to do so.

The demurrer admits the truth of the facts set out in the alternative writ, and our examination and consideration of those facts leads us to the conclusion that the relator is entitled to the relief which he seeks. A peremptory writ will be issued against the mayor and commissioners of the borough, directing them to make the apportionment in the manner specified in the alternative writ.

The relator is entitled to costs.


author: Minturn, J.

text:
    MICHAEL J. LYONS AND ELIZABETH C. LYONS, PROSECUTORS, v. MARY F. ARMSTRONG, EDWARD F. ARMSTRONG, JOHN J. McGOVERN, CLERK OF THE HUDSON COUNTY COURT OF COMMON PLEAS, ADAM O. ROBBINS, ACTING JUDGE OF HUDSON COUNTY COURT OF COMMON PLEAS, DEFENDANTS.
    Decided July 17, 1924.
    New Trial — Verdict Against Weight of Evidence — Discretion of Trial Court on Two Previous Occasions.
    Ob rule to show cause why certiorari should not issue.
    Eor the rule, Mark Townsend, Jr.

      Contra, O'Brien & Tartalsky.

   The opinion of the court ivas delivered by

Minturn, J.

The Common Pleas had this matter before it upon rule to show cause why a new trial should not be granted upon two occasions, and in each instance reached the same result and set aside the verdict. There is no question of jurisdiction in the case, the only issue presented being whether the trial court, in setting aside the verdict as against the weight of evidence, abused the discretion reposed in it. I have no means of determining that question since the evidence is not before me, but if it were I should-hesitate long before granting this writ after the trial court in the exercise of its undoubted discretion had upon two occasions exercised it to the best of its judgment. State v. Potter, 83 N. J. L. 428.

The rule will be discharged.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, EX REL. PLYMOUTH COMPANY, RELATOR, v. FREDERIC BIGELOW, SUPERINTENDENT OF BUILDINGS OF THE CITY OF NEWARK, DEFENDANT.
    Decided July 22, 1924.
    Ordinances — Zoning—Business Block on Leading Business Street in a Part Set Out by Ordinance for Residence Purposes — Ordinance Not for Health, Safety or General Welfare, but the Contrary,
    Oil motion for a peremptory writ of mandamus.

    Before Justice? Katascu, Black and Campbell.
    Eor the relator, Spaulding Frazer.

    For the defendant, Charles 21. Myers.

   Per Curiam.

The facts agreed upon between the counsel of the respective parties, and on which the relator bases his right to a peremptory writ of mandamus to he directed to Frederic Bigelow, superintendent of buildings of the cifcy of Newark, commanding him to issue a permit to the relator for the erection of a four-story apartment-house and store building on land owned by the1 relator on South Orange avenue, in Newark, New Jersey, are as follows :

1. The Plymouth Company, the relator, is the owner of premises known as Nos. 1076-1086 South Orange avenue, Newark, New Jeisey.

2. That on or about May 28th, 1924, application was made on behalf of the Plymouth Company to Frederic Bigelow, superintendent of buildings of the city of Newark, for a permit to erect a four-story apartment-house and store building at premises 1076-1086 South Orange avenue, Newark, New Jersey.

3. That the plans and specifications so submitted complied with the provisions of the building code and ordinance of the city of Newark and other ordinances relating to the material and manner of construction of buildings of the type for which permit was applied.

4. That said Frederic Bigelow, superintendent of buildings as aforesaid, refused to grant a permit to said relator for such a building.

5. That the reason for the refusal of said Frederic Bigelow to grant said permit was that an ordinance of the city of Newark, commonly known as the zoning ordinance, prohibited the carrying on of business upon the portion of South Orange avenue for which said permit was asked, such portion of South Orange avenue being what is known as a residence zone.

6. The zoning ordinance of the city of Newark prohibits in residence districts buildings exceeding thirty-five feet in height, and has certain requirements as to the area which may be covered by buildings. These provisions are violated by the proposed building, which is four stories in height, and substantially more than thirty-five feet, and which covers a greater space than is permitted in residence districts.

7. The type of building proposed to be erected is under the zoning ordinance of Newark permitted to be erected both as to height and area restrictions on all parts of South Orange avenue, other than the portion to the west of Sandord avenue.

8. That South Orange avenue, in the city of Newark, is a street devoted to business purposes under the zoning ordinance of the city of Newark throughout the whole length of said street westerly from its beginning at the junction of Springfield avenue to Sanford avenue. From Sanford avenue westerly to the city line, a matter of four or five blocks, the zoning ordinance of the city of Newark prohibits the erection of any building for business purposes.

9. That there are operated upon South Orange avenue throughout its entire length, in the city of Newark, three trollejr lines. That one of said trolley lines has a turnout within the so-called residence zone upon property owned by the trolley company outside the boundaries of South Orange avenue; that at approximately the same point there is the termination of a jitney bus line which operates throughout the length of South Orange avenue, in the city of Newark.

10. That the present buildings on the portion of South Orange avenue to the west of Sanford avenue consist of a church building on the corner, at Sanford and South Orange avenues, and an orphan asylum directly opposite, and five dwelling-houses. That there are at the present time no stores on such portion of South Orange avenue.

11. That the buildings on the portion of South Orange avenue to the west of Sanford avenue, with the exception of the church and orphan asylum, confoim to the requirements as to use, height and area in residence districts, and the same is true of the streets intersecting South Orange avenue and parallel thereto, both to the north and south of said avenue, west of Sanford avenue.

Upon what sound practical theory one of the leading business arteries of a populous city may he severed and the undeveloped severed part restricted to residential use, and •thereby barring the street to further business extension and development Is beyond the power of plain sense to discover. We think this attempted classification of South Orange avenue is purely arbitrary. In order to warrant such a classification it must be made to appear in what way the health, safety or general welfare of the public is conserved or advanced by the restriction. This has not. been done. On the contrary, in the light of the agreed state of facts, it appears to us that to restrict four or fire blocks of this business thoroughfare to residential use, is an act against the general welfare of the public and serves none of the ends contemplated by the statute. A business artery, leading from the heart of a growing and thriving city, cannot properly have an impassa created to bar its further progress and improvement, by a zoning ordinance, unless it clearly appears that the restriction is within the authorization of the statute, for example, necessary to conserve the health, safety and general welfare of the public.

A writ of peremptory mandamus is allowed.


text:
    CHARLES SINGER AND PAUL B. MOOS, RELATORS, v. CHARLES F. JUECHTER, WALTER B. WALSH, HENRY ERXMEYER, CONRAD F. KEIM, JOHN J. WADE, PHILIP GEIST, WILLIAM BIMER, WILLIAM RANNENBERG, JOHN J. BOLT; EDWARD MEYER, FRANK GERLACH, PHILIP J. REINER, LOUIS HAGEL AND BERNARD HUFNAGEL, RESPONDENTS.
    Decided July 22, 1924.
    Mandamus — Rule- Granted But Not Entered on Mlnutesi — Mandamus Issued — Motion to Quash — Rule of Court Relating to Entry of Rules — Purpose to do Justice — Counsel Had Reason to Believe Rule Had Been Entered — Ordered that Rule be Entered Nunc Pro Tunc.
    On rule to show cause why the peremptory writ of mandamus should not he quashed.
    Before Justices Kalisch, Black and Campbell.
    For the applicants, McCarter & English.

    For the respondents, Emil Walscheid.

   Per Curiam.

A rule to show cause was made returnable before this court at the May term, 1924, why a peremptory writ of mandamus should not be allofred. On May 7th, argument was heard on the rule, and on the 8th or 9th dajr of May, in a per curiam opinion, the rule was made absolute, and a peremptory writ of mandamus was granted. It appears that the court’s order was not entered in the minutes. It is a conceded fact that without the order having been entered in the minutes, on the 12th day of May, 1924, a writ of mandamus was issued out of this court.

It further appears that the rule to show cause why a peremptory mandamus should not be granted, and was subsequently argued on May 7th, as already stated, had been granted by a single justice, but was not entered in the minutes of the court. So, that the matter as appearing before us is, that neither the rule granted by the justice nor the rule granted in open court had been entered in the minutes of the court at the time of the issuance of the writ of mandamus, nor has there been any entry of the rules since then. .'Because of this posture of affairs, counsel of respondents moves to quash the writ on the ground that under rule 214 of the Supreme Court, both oiders by reason of their not having been entered in the minutes of the court as required by the rule became void and of no effect, and, therefore, the issuance of the peremptory writ was without warrant of law.

Buie 214, under the new Practice act, which was rule 40 of: rules of 1905, provides: “Every rule taken in open court or allowed by a justice shall be entered in the minutes of the court and shall take effect only from the time of such entry, and the true date of such entry shall be stated at the foot of such rule, provided, however, that the justice allowing snch rules may nevertheless order in the said rule that the same shall take effect forthwith, in which case such rule shall take effect from the time of signing the same; and all rules, whether granted by the court or a justice, shall be entered in the minutes within ten days from the granting of the same, and in default thereof shall be of no effect.”

The operation of this rule and the effect to be given to it was considered and determined by the Supreme Court, in Jersey City v. Davis, 80 N. J. L. 609. It was. there held, “under Supreme Court rule 40, any rule granted by this court or a judge thereof, if not entered in the minutes within ten days thereafter, is a nullity.” And it was further held, then, when a rule is made to show cause why a. peremptory or alternative writ of m,andamm should not issue, and on argument of the rule a writ is awarded, such writ cannot issue until further rule to that effect has been entered in the minutes. The writ in that case was quashed. Counsel for respondents relies on that case as dispositive of the right of the respondents to have the writ of mandamus quashed in the present case.

It is to be observed that the case relied on was decided at the November term, 1910, and that the court rested its decision on the rules of this court as adopted in 1905. Bnt in 1912, on the adoption of the new Practice act, certain rules were originated and adopted-in'order to facilitate the proper and uniform operation of the act, among which rules we find rule No. 5, which provides as follows: “These rules shall be considered as general rules for the government of the court and the conducting of causes, and, as the design of them is to facilitate business and. advance justice, they may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work surprise or injustice.”' This rule was copied from rule 41 of the Court of Errors and Appeals. Under the revisions of the rules of 1913, rule 40 of the rules of 1905 became rule 214, and rule 5 of the new Practice act become rulé 218.

In order to preserve the efficacy of rule 214, it should be strictly enforced. To warrant its suspension it must convincingly appear that an adherence to its enforcement will work surprise or injustice.

In the instant case it appears that the rules were drawn and filed by counsel of relators with the clerk of the court in ample time for the latter to enter them in the minutes of the court within the time required by law, but by some oversight he failed to do so. Counsel of the relators had good reason to believe that the orders which he had obtained and delivered to the clerk had been actually entered in the minutes.

It can, therefore, be safely said that counsel of relators was not only overtaken by surprise, in which event the relators would be entitled to relief under rule 218, but, also, grave injustice would be done them if they were compelled to start the proceedings anew, which would be the case if the writ were quashed.

At the hearing of the motion to quash, counsel of relators moved for leave to enter the orders heretofore granted by the justice and this court, nunc pro tunc.

We have reached the result that the rule to show cause why the peremptory writ of mandamus should not be quashed should and is hereby discharged, and that the orders, heretofore made, namely, the rule to show cause, allowed by the justice, and the order made by this court discharging the rule to show cause and granting the peremptory writ of mandamus may be entered in the minutes ol the court nunc pro tunc.


text:
    GLADYS HODSON ET AL., PLAINTIFFS-APPELLEES, v. ROBERT McDOUGAL, DEFENDANT-APPELLANT.
    Decided July 24, 1924.
    Malicious Prosecution — Defendant Having Brought Action Against Plaintiff Requested Court to Adjourn His Suit Without Day, Which Was Done — Defendants Claim that Plaintiff Failed to Show that the Prosecution was at an End at the Time this Suit was Brought Not Sustained.
    On appeal from the Second Judicial District Court of Morris county.
    Before Justices Kalisch, Katzenbaoh and Lloyd.
    For the appellant, Seth H. Ely.

    For the appellees, King & Vogt.

   Per Curiam.

This is an appeal from a judgment of the District Court of the Second Judicial District of the county of Morris, rendered in favor of the plaintiffs and against the defendant-appellant.

Tlie plaintiffs, husband and wife, brought an action for malicious prosecution against the defendant for causing the arrest of Gladys Hodson, without probable cause, on July 6th, 1923, the court sitting with a jury.

The only specification presented for reversal and argued in appellant’s brief is that the court erred in refusing to direct a verdict for defendant, as requested by defendant’s counsel.

. The gróund of this motion, as disclosed by the state of the case agreed upon between the counsel of tlie respective parties, was that the plaintiffs failed to show that the prosecution was at an end in the magistrate’s court, before whom the proceedings were instituted, at the time the plaintiffs brought their action.

Erom the state of the case it appears that the magistrate before whom the plaintiff Gladys Hodson was taken, fixed a day for the hearing of the cause, but that none was had because Mr. Ely, who appeared for the complainant, the defendant in the present action, telephoned the magistrate that the complainant was not going on with the matter, and to adjourn the ease without date, with which request the magistrate complied.

Prom the complaint in question, it appears that the offense attempted to be charged was one of which the magistrate had jurisdiction to hear and determine. 2 Comp. Stat,, § 3, p. 1927; § 37, p. 1937. The complaint upon which the female plaintiff was arrested is not before us and was without any information whether it contained all the essential elements constituting the offense of disorderly conduct under section 3, supra.

There is no provision in the act concerning disorderly persons which' confers on the magistrate authority to adjourn the hearing to a day to be fixed later. The adjournment of the cause without day, by the magistrate, was tantamount to a dismissal thereof. The case was at an end. The refusal of the trial judge to direct a verdict for defendant upon the ground that there was no proof that the case was at an end at the time the plaintiffs brought their action was therefore proper.

Judgment is affirmed, with costs.


text:
    JOHN SCHERRER, PLAINTIFF. v. PATRICK MACKIN, DEFENDANT.
    Decided July 24, 1924.
    Negligence — Motor Vehicle Collision — Defendants Not Present at Trial — Alleged Agreement of Counsel Not in Writing— Surprise of Defendants — New Trial Granted on Payment of Costs.
    On defendant’s rule to show canse.
    Before Justices TCvusch, Katzhxjuch and Lloyd.
    For the rule, Gross & Gross.

      Contra, Wiltiitm C. Gebhardi £ Gon.

   Per Curiam.

A judgment was entered in the Supreme Court on a verdict of jury, rendered in the Warren County Circuit, for the sum of .$5,3 33, hi favor of the plaintiff and against the defendant.

The action was brought by the plaintiff to recover damages alleged to have been sustained by him in a collision between an automobile driven by one Daniel Gruendvke, and in which plaintiff was riding, and a truck operated by defendant’s servant. On the dav set for trial neither the defendant nor his counsel appeared, and plaintiff’s counsel moved the trial of the cause in their absence, whereupon a jury was impaneled ; testimony was taken and resulted in the verdict as above stated. From the depositions taken under the rule it appears that originally there were five separate actions instituted against the defendant by distinct plaintiffs, all of whom were riding in the automobile at the time of the collision with the truck, and claimed that they sustained injuries. That three of the five cases were tried together, and in one there was a verdict for the defendant, while in the other two there was a verdict of $300 for the present plaintiff and a verdict for the sum of $100 in favor of Charles A. Deremer.

The plaintiffs obtained a rule to show cause why the verdicts should not be set aside on the ground of inadequacy of damages only, the Supreme Court, however, in a per curiam opinion, declared that the situation was such that it required a new trial unlimited in scope, including both liability and damages. The verdicts were set aside and a new trial was ordered. The cases were noticed for trial at the Warren Circuit. Mr. George, who is the defendant’s attorney, was at the time assistant prosecutor of. the pleas for Hudson county. Hi& deposition is to the effect that because of his official position, which engrossed much of his time in giving attention to public business, he made an arrangement with Mr. Gebhardt that the latter would notify him, Mr. George, a few days in advance of the day the cases were to be moved for trial, so that the latter could prepare his case for trial, and that he received no notice. This arrangement is denied by Mr. Gebhardt. The court will not take notice of a stipulation between counsel unless such stipulation is in writing.

We are satisfied from the depositions that counsel of defendant was taken bjr surprise that the trial took place in his and his client’s absence. We are also satisfied that the defendant has a defense on the merits of the case both as to liability and the amount of damages. We think it would be a grave injustice to deny to defendant his day in court to be heard on both questions.

We have reached the conclusión that the judgment entered should be vacated and set aside, 'and that a new trial be granted upon these terms, that the defendant pay to the plaintiff the costs, duly taxed, incurred by him, by reason of the trial and entry of the judgment and under the rule to show cause.

Eule will be made absolute.


author: Backes, V. C.

text:
    William B. Bilse, complainant, v. Art Store Fixture Manufacturing Company, defendant.
    [Decided August 4th, 1924.]
    Specific Performance! — Question of Acceptance of Terms and Notification — Dispute Between Parties and Counsel.
    On final hearing.

      Mr. Clarence H. Alexander and Mr. W. B. Crosson, for the complainant.

      Mr. Maurice J. Zucher, for the defendant.
   Backes, V. C.

This bill is for specific performance. The parties negotiated for the sale of the complainant’s property to the defendant and reached an agreement upon the main terms. The matter was then handed over to their lawyers to mould into legal shape. The complainant’s lawyers prepared a contract and forwarded it November 2d, 1923. He sent another November 20th, and a third, in duplicate, December (ith, presumably because the earlier ones were not satisfactory. The duplicates were returned by defendant’s lawyer with corrections, signed by defendant, December 13th. They were flatly turned down and returned two days later. They were again sent to complainant’s lawyer in the same shape the next day, December 14th, with direction, “if Mr. Bilse still refuses to sign these contracts will you destroy them and write mo tolling me that yon have destroyed the same.” The complainant says he signed them December 20th or 21st, and his lawyer testifies that he promptly informed defendant’s lawyer by ’phone, and on December 31st wrote defendant personally. A manifold copy of the letter was produced. Defendant’s lawyer denies receiving the telephone message, and defendant denies receiving the letter. On January 3d, 1921, defendant’s lawyer wrote complainant’s lawyer that due to the delay in getting the contracts signed by the complainant his client did not care to purchase the property, and requested that the contracts be destroyed. Then followed recriminating letters between the lawyers, and this suit.

The contract signed by the defendant and sent to the complainant was an offer to purchase, and to be binding required an acceptance within a reasonable time. If it was, in fact, signed December 20th or 21st, as complainant says it was, and notice thereof given promptly, as complainant’s lawyer says he gave, the time was not unreasonable in view of all the circumstances, but it approached the limit. The testimony does not satisfy me that defendant’s lawyer was informed by telephone that the contracts were signed. Nor am I satisfied that the letter of December 31st was sent to the defendant. Why communicate with them personally when all previous communications were had with their law-years? And why send them a letter sounding in first news that the contract had been signed if, in fact, their lawyer had been told of it ten days before? The burden is on the complainant to establish, by a preponderance of proof, acceptance within a reasonable time, and before the withdrawal of the proposal, and, having failed, the hill will he dismissed.


author: Fielder, V. C.

text:
    Adelaide Shay, complainant, v. Ina L. Shay et al., defendants.
    [Decided August 5th, 1924.]
    Sale of Land — Title in One of Two or More Purchasing Parties— Resulting Trusts' — Question of Judgments Against Title Holder Obtained by Another Defendant for Alienation of Husband’s Affections.
    On bill, &c.

      Messrs. McDermott, Enright & Carpenter, for the complainant.

      Mr. Warren Dixon, for the defendant May E. Schlie.

      Mr. John W. Ocford, for the defendant Ida Geise.
   Fielder, V. C.

There is no controversy between the complainant and her daughter, Tna L. Shay, defendant. The daughter disclaims any interest in the two-family dwelling-house and lot to which she holds the record title, and no reason appears why she could not and would not convey the title to her mother, and thus avoid the expense and delay of this suit, except that the defendant May E. Schlie has recovered a judgment against Miss Shay for $10,000 for alienating the affections of Bernard Schlie, husband of May E. Schlie. The controversy is really between the complainant and the defendant May E. Schlie, the complainant seeking, in this suit, a decree that Mrs. Schlie’s judgment is not a lien on the premises in question and that Miss Shay convey the same to the complainant, freed and discharged of the judgment.

The case made as between the complainant and her daughter is one easily concocted and difficult to disprove. Under the circumstances here present it must be examined with suspicion and the complainant must be required to establish her claim by clear and convincing proof.

The bill of complaint alleges and the complainant testified that after she had decided to purchase the property she consulted an attorney, who advised her not to take the title in her own name, but in the name of her daughter, because she (complainant) was not living with her husband, and that upon such advice the attorney prepared a contract which named her daughter as the vendee. This attorney, called as a witness for the complainant, testified that the complainant asked for and was given no1 advice by him, but that the complainant and Schlie gave him the particulars for the contract, and that under their instructions he prepared a contract of sale, which named Mrs. Geise as the vendor and Miss Shay as the vendee. The attorney also testified that under instructions from the same source, he prepared the bonds and mortgages hereinafter mentioned afnd attended to their execution.

The facts of the transaction seem to he that the property was first brought to Mrs. Shay’s attention by Schlie, who had contracted, in the name of his sister, Mrs. Geise, to buy it, with three other parcels. Although then married and living with his wife, Schlie was a frequent visitor at the Shay home, and his relations with Miss Shay were the basis of the suit subsequently brought by Mrs. Schlie, in which she recovered the $10,000 judgment above mentioned against Miss Shay. He took Mrs. Shay to the attorney’s office and he and Mrs. Shay told the attorney the form of contract of sale which they required and after it was drawn it was signed by Schlie, as agent for Mrs. Geise and by the complainant, as agent for her .daughter. The terms of .sale, as arranged by Schlie and the complainant, were that the purchase price should be $6,000, of which $1,500 was to he paid in cash, $4,000 to be raised by a first mortgage on the property, and Schlie to take a second mortgage for $500. At this time Mrs. Shay had two savings bank accounts, both standing in the name 'of “Addie M. Shay for Ina L. Shay,” from which she drew. $1,500, which she paid on account of the agreed purchase price. She testified that she kept the bank accounts under this title because, in case of her death, she wanted her daughter to have all the money so on deposit, and that she had been advised that while she was alive her daughter could not draw against the accounts. Miss Shay testified that she was not aware that her mother liad these hank accounts and that'she had no interest in them. The complainant further testified that all the money deposited in these accounts came to her from relatives, either by way of gift or as legacies, and while her testimony hi this point is indefinite it is 'uncontradicted and I accept it as proved, that the complainant put up $1,500 of her own money which was used for the purchase of the property. To complete the purchase under the Geise contract, Miss Shay executed two bonds, secured by her two mortgages on the premises, one to a Mrs. Muller for $4,000 and the other for $500 to Schlie, and the $4,500 thus loaned by the mortgagees was paid, with Mrs. Shay’s $1,500, to the grantor, who thereupon delivered her deed drawn to Miss Sliay as grantee. At the same time, pursuant to arrangement made by Schlie and Mrs. Shay, Miss Shay also executed and delivered to her mother her bond for $1,500, secured by her third mortgage on the premises in question. If Mrs. Shay was the real purchaser of the property, as she and her daughter now claim, it is difficult to understand why Schlie and Mrs. Shay should have required the daughter to execute a bon'd and mortgage to secure the payment of $1,500 advanced by Mrs. Shay. They did all they could to make it appear that Miss Shay was really the purchaser, and had borrowed the whole purchase price on her personal obligations and had secured the lenders by mortgages on her property. The complainant’s only explanation of the $1,500 mortgage is that it represented the money she had put up, and the daughter testified that her mother told her that this mortgage was given to protect her (the mother’s) interest.

My view of the transaction is that Schlie considered the purchase of this property a good business venture, and was willing to give Miss Shay the benefit of it. He could borrow $4,000 for her on her bond and mortgage and was able to loan her $500 himself on the same kind of security, but he was $1,500 short of the amount required for the purchase, and this sum he induced the complainant to advance from her savings bank funds, upon pointing out to her that she could be secured by her daughter’s bond and a third mortgage, and the result of Schlie’s plans is that Miss Shay is personally liable on her three bonds for $4,000', $500 and $1,500, respectively, by means of which $6,000 was raised to enable her to take title to the property in her name.

Where two persons advance the purchase price of real estate and the title is taken'in the name of one, a resulting trust will arise to the extent of the part of the purchase price advanced by the other, if it is established that the money advanced bjr that other was for a specific part or interest in the real etsate, otherwise that other can have no more than a lien upon the real estate for the portion of the purchase price advanced by him. -My conclusion is that the title was not taken by Miss Shay for the benefit of the complainant alone, nor for the joint benefit of the complainant and herself in proportion to the amount of the purchase price advanced by each, but that the title was taken by Miss Shay for her sole benefit, and that the $1,500 mortgage given by her to the complainant was intended and should be decreed to be security to the complainant for the $1,500, with interest thereon.

The bill of complaint will be dismissed as to the defendant May E. Schlie, and the complainant may have a decree, if she desires it, that the defendant Ina L. Shay holds the title in question in trust for the complainant, subject to the liens and encumbrances of record.

The complainant also prayed a decree that the deed from the defendant Ida Geise to the defendant Ina L. Shay be reformed so as to describe the grantee therein as trustee for complainant. This prayer could be granted only in case it is made to appear that it was the intention to so' describe the grantee in the conveyance, and that by mistake the intention was not carried out. The proof is to the contrary, and the bill will be dismissed as to the defendant Ida Geise.


text:
    FELIKS DRAGUN, PROSECUTOR, v. JOHN R. CONNOLLY, JUDGE, AND ROBERT T. SKINNER, CLERK OF THE DISTRICT COURT OF THE CITY OF PLAINFIELD, EDWARD DOOLING, WILLIAM DOOLING, JOHN DOOLING AND DENNIS DOOLING, DEFENDANTS.
    Submitted March 13, 1924.
    Landlord and Tenant — Dispossession for Disorderly Conduct— Rights of Tenant Under Statute — Tenure Letting and Monthly Payments.
    On certiorari.

    Before Justices Kalisoh, Katzpxbach and Lloyd.
    For the prosecutor, Arthur T>. Seymour.

    For the defendants, Joseph F. S. Fitzpatriclc.

   Per Curiam.

This case conies before us on certiorari directed to the' District Court of thei city of Plainfield, and involves the right of the owner of premises situated in Plainfield to recover possession of the property for disorderly conduct in the tenant. The facts were that the Doolings, being the owners of the premises at the, northeast corner of Walnut street and North avenue, in the borough of Larwood, in Union county, leased them to Feliks Dragun, the prosecutor of this writ, for a term of three months, from August 1st, 1923. At the expiration of the term Dragun remained in possession and paid rent for the month of November in the amount stipulated in the lease for a monthly rental. The action to dispossess the tenant was instituted on the 28th day of December, 1823, and was based upon an allegation of disorderly conduct in the premises by the tenant. The statute upon which the suit was brought is the act of 1884, page 178, as amended by the act of 1888, page 426. This act provides in its essential parts as follows:

“That in any letting where no definite term is agreed upon and the rent is payable monthly, so long as the tenant pay the rent as agreed, it shall be unlawful for the. landlord to dispossess the tenant before the 1st day of April succeeding the commencement of such letting, without giving the tenant throe months’ notice in writing to quit: provided, however, that in case any such, tenant shall be so disorderly as to disturb the peace and quiet of the other tenants living in the neighborhood, or shall willfully destroy, damage or injure the premises, or shall constantly violate the said landlord’s rules and regulations governing said premises, and a copy of which regulations the said landlord has caused to be conspicuously posted on said premises; in any such case the landlord may cause a written notice of the termination of such tenancy to be served upon said tenant and a demand that said tenant remove from the premises so occupied by him within three days from the service of such notice, and in case said tenant shall not remove it shall be lawful for the said landlord or his agent, after the expiration of said three days, to make and file with any 'justice of the peace an affidavit setting forth either or any of the causes for removal as above set forth and of service of such notice, and thereupon it shall be lawful for such justice to issue his summons in ejectment such as now provided under an act entitled ‘An act concerning landlords and tenants holding over after the expiration of his term,-and on proof before said justice, on the return of said summons, of any one of the causes for removal aforesaid, it shall be lawful for the said landlord to issue his warrant for such removal and take such other proceedings as is now provided by law for the summary removal of tenants.’ ”

It will be observed that the right of the landlord to dispossess the tenant is dependent upon the term being indefinite in its duration, the language of the statute being “where no definite term is agreed upon and the rent is payable monthly.” In this case there was first a definite term of three months, and the rent was payable monthly. The landlord had the option to demand the possession at the end of the term or, as he did in this case, continue the relation of landlord and tenant by accepting the1 rent for another mouth. There was therefore, within the terms of the statute, a rent payable monthly, but was the tenancy created by the acceptance of The rent for an indefinite term? We think the law is settled that it was not. On the contrary, it renewed the tenancy for another term. When the tenancy expired at the end of the term it was the right of the landlord to the possession of the property, and upon the failure of the tenant to surrender the same he could regard him as a trespasser and assert rights against him as such. On the other hand, he could waive the holding over and renew the tenancy either by formal language to that effect or by acts effecting the same result. By acceptance of the rent the landlord assumed the valid holding of the tenant and created a new tenancy. By operation of law this became a tenancy for a new term, but it could not. become such without the implied agreement of the parties. An agreement such as contemplated by the statute may be express or by implication. In this case it was by implication, and therefore a term created by the acts and agreement of the parlies. The rental, it is true, is at a monthly rate, and therefore thus far within the requirements of the statute, hut the term is not indefinite. On the contrary, it was for a definite period, and that through the agreement of the parties as implied from the payment of rent on the one side and acceptance by the. other.

An attempt was made to sustain the proceedings in the court below upon evidence alleged to have been introduced at the trial tending to show that the landlord had refused a new lease, but agreed with the wife of the tenant to permit her to remain in the premises until the tenant himself should return from Europe, and under this agreement accepted the rent for the month of November. We have no record of this testimony, and if we had it would not have the effect contended for. It would be at variance with the jurisdictional facts set forth in the case, upon which alone we must rely in order to accord jurisdiction in the trial court to hear ' the case.

The result we reach is that the judgment must be reversed.


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    JOHN MENDLOVITZ, PLAINTIFF-APPELLANT, v. ANDREW NOVAKY AND STEPHEN NOVAKY, PARTNERS, TRADING AS NOVAKY BROTHERS, DEFENDANTS-APPELLEES.
    Decided July 31, 1924.
    Negotiable Instruments — Series of Notes Given in Payment of a Single Bill of Goods — -Passage Into Hands of Innocent Bona Fide Holder for Value — Error for Trial Judge Apply Rule that Suing on One Note Separately was Splitting Original Cause of Action.
    On appeal from the Perth Amboy District Court.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor the appellant, Jacob B. Joselson.

    Eor the appellees, David T. Wileniz.

   Per Curiam.

There was a judgment given by the judge of the Perth Amboy District Court in favor of the defendant and against the plaintiff, from which judgment the plaintiff appeals.

The state of the case agreed upon between the counsel of the respective parties discloses the following facts:

“The action was to recover the amount due on a certain promissory note dated at Perth Amboy, New Jersey, March 10th, 1923, due in four months from date, payable to the order of the New York Casing Company at the Raritan Trust Company, at Perth Amboy, New Jersey, made by the defendants-appellees, in the sum of two hundred and seventy-eight dollars and fifty cents ($278.50), with interest, which promissory note was transferred by the Now York Casing Company to John Mendlovitz, the plaintiff-appellant, an innocent bona fide holder for value before maturit}', and which note was protested for non-payment on its due date.
“The New York Casing Company sold a bill of goods to Stephen Novaky and Andrew Novaky, partners, trading as Novaky Brothers, on or before March 10th, 1923; that in payment of said bill, Novaky Brothers gave to the said New York Casing Company a series of three promissory notes, all bearing date of March 10th, 1923, all in like amount of $278.50, the first note being due three months from date, the second being due four months from date and the third being due five months from date; that the New York Casing Company, before their due date, transferred all the notes to John Mendlovitz, the plaintiff-appellant, before maturity, and that the said John Mendlovitz was and is an innocent bona fide holder for value of all of said notes.
“That on July 24th, 1923, an action was commenced in the Perth Amboy District Court by the said John Mendlovitz against the defendants-appellees, to recover the amount due oil the note due June lltli, 1923, and judgment was recovered thereon on November 26th, 1923; that said judgment has not jret been fully satisfied. On November 30tb, 1923, an action was commenced by the said John Mendlovitz against the makers of the note, the present defendants-appellees, in the Perth Amboy District Court, to recover the moneys due on the note due July 10th, 1923, which action is ease No. 16999 in tiie Perth Amboy District Court files. Said note was duly protested, has not been paid, and is the second of the notes above referred to.
“That the defendant’s attorney moved that a judgment be rendered for the defendant on the ground that the notes mentioned were given in payment of one sale or transaction, and that the action on the note in question was barred because it become due on July 10th, 1923, which was at a time prior to the commencement of the action on the note due June 11, 1923, upon which action was instituted on July 24th, 1923. and on which judgment was recovered on November 26th. 1923. That the judge held that as the two notes were due before July 24th. 1923, and were given in payment (together with one other note) of one bill of goods or transaction, that the plaintiff in suing on each note separately was splitting the original cause of action and was barfed from bringing suit on the second note, since “all claims or causes of action arising out of the same transaction or contract must be included in one suit, or all that are not so included will be deemed to be waived.”

The trial judge fell into error. He applied a familiar legal rule to a state of facts which did come within the scope of the rule. We are not concerned with the proposition whether or not the vendors of the goods were entitled to sue the vendee on each separate note given in the transaction of the sale, even though all of the notes were due at the time the first note was sued upon, because no such case is before us.

On what sound legal theory an “innocent bona fide holder for value,” as was the plaintiff, who purchased the three notes before maturity, can properly have impressed upon him a legal obligation which primarily rested upon the original holders of the notes arising out of the single sale of goods by them to the vendee, who executed the three notes in question, has not been demonstrated. Whatever majr have been the legal situation as existing between the original holders of the notes, we are of the opinion that the three notes constituted three separate and distinct obligations so far as the plaintiff, the purchaser of the notes, was concerned, and upon which he could properly maintain separate actions, even though all of the notes were due at the time.

Judgment is reversed and a vemre de novo awarded.


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    HARRY MARSELLA AND THOMAS MARSELLA, PARTNERS, TRADING AS MARSELLA BROTHERS, PLAINTIFFS-APPELLEES, v. FANNIE BLOCH, DEFENDANT-APPELLANT.
    Submitted March 13, 1924
    Decided May 28th, 1924.
    Sale of Land — Agents’ Commissions — Contract in Writing to Secure Purchaser — Revocation of Authority — Conversations Between Contracting Parties — Evidence Regarding Prospective Purchaser’s Ability — Admission of Evidence Relating to Partial Ownership.
    Before Justices Kaltscii, Katzkybacu and Lloyd.
    For the defendant-appellant, B (heard Stover.

    For the plaintiffs-appellees, William R. Stites.

   Per Curiam.

This is a defendant’s appeal from a judgment rendered in the "Hoboken District Court. The plaintiffs below were real estate brokers. They instituted this suit to recover a commission of two and one-half per cent, on the sum of $13,500. The defendant, Fannie Bloch, had signed the following authorization:

“Dated Sept. 18, 22.
“'Marsella Bros.
“In consideration of vonr listing and undertaking to sell my premises described above for the sum of $13,500 dollars or any other sum which I may accept. T hereby authorize you to sell same, and agree to pay you of the purchase price as your commission, upon procuring a purchaser, or having notified the purchaser of property for sale'’ as listed, in the event of him or her purchasing said property.
‘'I also agree to give you sole and exclusive right to sell the above premises for the term of 30 days, and further agree that your exclusive right to sell shall not terminate at the expiration of said term unless' I notify you in writing to that effect.
“Signed Mrs. E. Bloch.”

This authorization had been left with Mrs. Bloch by the plaintiffs, and later it was delivered to them, signed by the defendant. The plaintiffs claim that they procured a purchaser, Mr. Walter, for the property for the sum of $13,500, which was the price fixed in the authorization. The state of the case was settled by the judge of the District Court. He found that the contract had been entered into by the defendant; that it had not been revoked prior to the day the plaintiffs produced the purchaser, and that the plaintiff had produced a purchaser ready, .able and. willing to purchase the property for $13,500. Erom the judgment rendered for the plaintiffs for $337.50 and costs, the defendant below has appealed to this court.

The first ground of appeal argued is that the court refused to admit in evidence a notice dated August 9th, 1923, revoking the authorization for the sale of the property. This was signed for the defendant by her daughter, who- was an attorney-at-law. It was "drawn up-' and served during the interview when Harry Marsella, one of the plaintiffs, informed the defendant that he had a purchaser, Mr. Walter, ready, willing and able to take the property at the price fixed in the authorization. It was excluded because the court found as a fact that the notice was written and served after the plaintiffs had rendered their service in finding a purchaser in accordance with the terms of the authorization, and the revocation could not affect their rights.

The second ground of appeal argued is that the court erred in refusihg to permit the defendant to testify respecting conversations had with the plaintiffs which would tend to show that she was told that the contract ran only for two weeks. The trial court ruled properly in excluding this testimony. This testimony contradicated the written instrument. Parole testimony to contradict a written instrument is not admissible. Naumberg v. Young, 44 J. J. L. 331; Loxley v. Studebaker, 75 Id. 608.

The next ground of appeal argued is that the court erred in examining Mr. Walter at the trial as to his willingness and ability to purchase the property. We think the court was within its rights in this respect and see no error in this resped.. Furthermore, there appears to have been no objection made to the examination. There is therefore no determination from which an appeal can be taken.

The fourth ground of appeal argued is the refusal of the court to admit in evidence a deed for the purpose of showing that Mrs. Bloch was not the sole owner of the property. The defendant had made a demand for specifications. It, therefore, was proper for the trial court to refuse to admit the deed on this ground. Moreover, if the court had admitted the deed, its admission would not have relieved Mrs. Bloch from the obligation of her contract. Kruse v. Ferber, 91 N. J. L. 470.

The issues were questions of fact. The District Court decided these questions in favor of the plaintiffs. These findings will not be disturbed in this court where, as in this ease, there appears to have been evidence to sustain them. Resky v. Meyer, 119 Atl. Rep. 97.

The judgment is affirmed, with costs.


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    KENNETH JEFFREY AND WALLACE JEFFREY. PARTNERS, TRADING AS JEFFREY BROTHERS, PLAINTIFFS-RESPONDENTS, v. HOWARD KENNEDY, DEFENDANT-APPELLANT.
    Argued February 21, 1924
    Decided July 31, 1924.
    Appeals — From District Court — Adjournment of Case in Discretion of Trial Judge — Not Urged Below that Discretion was Abused — Diligence in Procuring Counsel — Ground of Appeal Must be on Some Question of Law or Evidence.
    Before Justices Kalisci-i, Katzenbacii and Lloyd.
    For the defendant-appellant, ilI ary Wooster Sutton.

    For the plaintiffs-respondents, Reilly, Quinn & Parsons.

   Per Curiam.

This is a defendant’s appeal from a judgment of the District Court of the Second Judicial District of the county of Monmouth. The plaintiffs’ suit, according to the state of demand, was “for labor done and material furnished,” $104. The defendant employed counsel. The case was adjourned to August 6th, 1923. On August 4th, 1923, defendant’s counsel notified the defendant that he would have to get another attorney. August 4th was on Saturday. On Monday, at nine A. m., the defendant endeavored to get his present attorney. She could not attend court on that clay. She also’ considered the time for preparation for trial was too short. The defendant went to court, asked for an adjournment of his case, and the court refused to grant the adjournment. One of the plaintiffs was sworn and testified. The defendant did not testify. A judgment for the plaintiff was rendered by the court. The defendant sought to obtain a new trial. He filed a petition and obtained a rule to show cause, and an order to take, depositions was granted. From the record we are unable to tell what disposition was made of this rule, but presumably it was discharged as the defendant has taken an appeal from the judgment. The case was settled by the court. The court, in its findings, says that evidence of the plaintiffs’ claim was given; that the defendant appeared but. was not sworn, and that judgment was given for the plaintiffs. The defendant, in his grounds of appeal, claims, first, that the state of demand is insufficient, as it did not fairly apprise the defendant of the state of facts which it was intended to prove. This point was not raised in the lower court. It is not, therefore, available in.this court. In order for a ground of appeal to be available in this court, in an appeal from a District Court, it must be upon some question of law or upon the admission or rejection of evidence, upon which the District Court has ruled, and to which ruling the party appealing fias entered his objection to the court’s determination.

It is urged in the second place in behalf of the defendant that the District Court should have granted the defendant’s request for an adjournment. Whether or not a trial shall be postponed is a matter within the discretion of the trial court. In the present case it was not urged below that it was an abuse of judicial discretion not to have granted an adjournment, and no objection to the court's ruling was entered. This ground of appeal we are constrained to find is not available to the appellant. From the facts as printed in the state of the case it seems to us that the defendant acted witli diligence in the matter of obtaining another attorney to represent 1dm. Under such circumstances it is customary, we think, to grant a short adjournment.

The appellant further contends that there was no written evidence presented by the plaintiff who testified. This was not necessary. This point was not raised in the court below". It is not available here.

The judgment will lie affirmed.


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    JOHN C. BUECHELE, PLAINTIFF-APPELLEE, v. GEORGE L. VOGEL, DEFENDANT-APPELLANT.
    Submitted March 13, 1924
    Decided July 10, 1924.
    Architects — Fees—Contract for Services as Draughtsman and as Architect — License as Architect Obtained While Plans Were in Course of Preparation.
    Before Justices Kaltsoi-i, Katzenbach and Lloyd.
    Eor the defendant-appellant, Orlando II. Bey.

    Eor the plain tiff-appellee, Gaetano M. Belfatio.

   Per Curiam.

The defendant below appeals from a judgment rendered by the Orange District Court. The suit was instituted to recover the reasonable value of the plaintiff’s services in drawing plans for a bungalow which the defendant desired to erect at Maplewood, Yew Jersey. The plaintiff had been a draughtsman since 1903. He became a licensed architect on April 27th, 1922. The defendant abandoned his plan of building a bungalow due in part to certain restrictions contained in a zoning ordinance of Maplewood. Yo price had been agreed upon between the parties for the plaintiff’s work. The suit was based upon a quantum meruit. The defense was that the plaintiff was not entitled to recover for his services because he was not a licensed architect. The argument advanced in behalf of the defendant-appellant is that as the act entitled “An act to regulate the practice of architecture (1 Comp. Stat., p. 110) makes it a misdemeanor to practice architecture without the issuance of a certificate or license to practice, no recovery of foes can be had by one who has not received a license.' We find it unnecessary to pass upon this question. The case is before us on a state of the case settled by the court. The court found as facts that there was an employment of tlie plaintiff by the defendant, and that the services involved were first as a draughtsman, and that the employment extended over and beyond the time the plaintiff was licensed as an architect. A judgment was rendered for $100, which was $50 less than the plaintiff demanded. The findings of fact made by the District Court, which we cannot disturb, sustain the judgment as one rendered in part for services as a draughtsman and in part for services as an architect after the plaintiff had obtained his license. It would, therefore, be a work of supererogation in view of these findings of fact to consider the ground of appeal urged by appellant, for if we found that an unlicensed architect was not entitled to recover for services rendered, it would not affect a judgment based in part upon services rendered as a draughtsman and in part for services rendered as an architect after the architect has obtained his license.

The judgment below is affirmed, with costs.


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    JOHN C. BUECHELE, PLAINTIFF-RESPONDENT. v. GEORGE L. VOGEL, DEFENDANT-APPELLANT.
    Argued February 20, 1924
    Decided July 9th, 1924.
    Architects — Fees—Court’s Finding of Facts — Reasonable Value for Services — Arbitrary Percentage for Fixing Fees — Splitting Cause of Action Into Two Suits — Plaintiff a Licensed Architect.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the defendant-appellant, Orlando II. Dey.

    For the plaintiff-appellee, Gaetano M. Belfatto.

   Per Curiam.

This is an appeal by the defendant below from a judgment of the Orange District Court. The suit was instituted to recover architect’s fees for plans submitted by the plaintiff to the defendant at the latter’s request for a one and one-half story dwelling-house. The defendant, after the submission of the plans, abandoned the idea of building. The plaintiff was a licensed architect at the time he was employed. He claimed as his fee two and one-half per cent, on the estimated cost of the building, which was $20,312. This made $507.80. The excess of $7.80 was waived to give the District Court jurisdiction. The District Court found as facts — first, that the plaintiff was employed by the defendant to draw the plans and specifications; second, that he revised the same at the request of the defendant; third, that he did the work, and fourth, .that the defendant did not pay the plaintiff; fifth, that the revision was not made necessary by any error or incompetence of the plaintiff, and, sixth, that the reasonable value iof the work done by the plaintiff was $416.62. There is, in our opinion, evidence in the case which- justifies these findings. They will not be disturbed.

The appellant contends, first, that the plaintiff did not prove the reasonable valne of Ms services. The plaintiff did prove what the house would cost approximately. This is ■some evidence of one of the factors necessary to determine the value of the plaintiff’s services. A witness, Joseph E. •Cook, an architect, testified that the plaintiff’s charge for the work was reasonable. This, we think, sufficient evidence to support the finding of fact made by the trial court.

The second ground of appeal is that the nse of an arbitrary percentage for fixing an architect’s fee was erroneous. This is the customary method of ascertaining the value of an architect’s services. We see no error in the admission of this •evidence or in its use in arriving at the finding made by the District Court.

The third ground of appeal is that the plaintiff split a single cause of action against the defendant into two suits. The evidence shows that the plaintiff had instituted another suit against the defendant for plans for a bungalow. While all causes of action arising out of the same contract mu'st he included in one suit, we tMnk this rule not applicable to the present, ease, as there were two separate and distinct contracts made between the parties. This created in the plaintiff two causes of action for which he was entitled to institute two separate actions.

The fourth ground of appeal is tiiat the plaintiff was not -a. licensed architect. The evidence shows that the work in controversy was not undertaken until after the plaintiff had received his architect’s license. He was therefore entitled to recover architect’s fees.

The judgment of the District Court is affirmed, with costs.


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    THE STATE, EX REL. JOSEPH JARDOT, RELATOR, v. THE CITY OF RAHWAY ET AL., RESPONDENTS. THE STATE, EX REL. GEORGE McINTYRE, Jr., RELATOR, v. THE CITY OF RAHWAY ET AL., RESPONDENTS.
    Decided July 31, 1924.
    Police Officers — Suspension—Reinstatement'—Relationship to Municipality that of an Officer, Not of a Contracting Party— Earnings during Period of Suspension — Substitutes During Such Period.
    Oil motion to strike out parts of return to alternative writs of mandamus.

    Before Justices Iyalisci-i, Iyatzenbacii and Li.oyd.
    For the relators, Hyer & Armstrong.

    Fox the respondents, Edward A. 2Iarhey.

   Per Curiam.

A writ of alternative mandamus was allowed to each of the relators. The cases involved the same questions and were argued together. The respondents made a return to each writ. The matter is here on a motion on behalf of the relators to strike out parts of the return to each writ. The facts on which the writs were allowed are as follows: The relators are police officers of the police department of the city of Rah-way. On March 31st, 1923, each was suspended pending charges of a serious nature against them. They were charged that they assisted in robbing a truck loaded with “Nero,” supposed to be beer. They were arrested, taken to the Rahway police court, and arraigned before the magistrate, who discharged them for failure of proof connecting them with the robbery. Subsequently, however, the charges against the officers were investigated by the grand jury of Trnkm county, which body, at the May term, 3923, presented an indictment against them. The case was set down for trial. On the day fixed the relators appeared with their witnesses ready for trial, but at the instance of the state the case was postponed to another day, and the relators, with their witnesses again appearing ready for trial, the state having no evidence to sustain the charges made against the accused, the indictments were nolle prosequied. It appears that within a month after the suspension of the relators, and after the hearing and dismissal of the charges against them in the police court, their counsel wrote a letter to the board of commissioners requesting that the- relators be reinstaied. On November 27th, 1923, after the indictment against the accused has been nolle prosequied, the same request was repeated, but no heed was taken.

The board not having acted in the matter on December 31st. 1923. the alternative writs of mandamus were applied for and allowed. After the service of these writs on the respondents, written charges against the relators were served upon them, and on January loth, 1924, one day before the writs were returnable at Trenton, the relators were acquitted by the boards.

The present proceedings was brought to compel the city of Rahway to reinstate the relators as patrolmen and to pay them their salaries from March 31st, 1923, to the date of their reinstatement.

The answer to the writs sets up, two grounds why the city of, Rahway should not pay them.

The first reason given is that they earned money by-working elsewhere during the period of their suspension, and that there must hv an action at law establish their claim against the city. Second, that the work was done by somebody else during that period, and that therefore they are not entitled to their pay. The motion to strike out is directed against this trait of the returns to- the. writ. Tt is obvious, therefore, that the motion affects the very essence of the respondents’ defense, as set up in their answer.

We are of the view that the returns to- the writ do not sei 'up a valid defense to the relators’ demands, and are frivolous.

It has been declared by the decisions of the courts of this ' "state that a police officer holds an office, and that a contractual relation does not exist between a municipality and its police officers. City of Hoboken v. Gear, 27 N. J. L. 265; Love v. Mayor and Aldermen of Jersey City, 40 Id. 456, 459; Kenny v. Hudspeth, 59 Id. 320, 322; Van Sant v. Atlantic City, 68 Id. 449.

It is and was not contended in this ease that the mandamus proceeding instituted by the relators is not a proper remedy. The return’admits that the relators were acquitted of the charges preferred against them, and avers that they were reinstated, which, as has already been pointed out, was done after the alternative writ of mandamus had been served upon the respondents. But the insistence on behalf of the respondents appears to be that the relators must first establish their claims at law. What claims were to be established by them are not disclosed. The relators were wrongfully dismissed from office, and there can be no question that the period of suspension continued from the date of •dismissal till the date of their reinstatement. The salary which each was to receive was fixed by law, so that there was ■a sum certain due to each from the municipality.

The allegations in the return that the relators had' been working at certain times during the period of their suspension and earning large sums of money, are not only indefinite and uncertain in character, but, as a matter of law, •constitute no defense to the claims of the relators to the salary which AVere payable to them, as police officers.

The respondents, in theiri brief, discuss at great length the doctrine as to the legal rule applicable to a case where an officer de jure sues an officer de facto to recover the salary paid the latter, of which salary the officer de jure was wrongfully deprived. But no such case is presented by the pleadings. Moreover, it does not appear that the temporarily vacant offices were filled during the relators’ suspension.

We think the just and equitable rule is laid clown by 1 Dill. Mun Corp. 745 (5th ed.), § 429, where he says: “When an officer entitled by law to a fixed annual salary has been prevented for a time through no fault of his own from performing the duties of his office, and has during that time earned wages in another and different employment, he cannot be compelled, in an action to recover his unpaid salary, to deduct the amount earned.”

In Fitzsimmons v. City of Brooklyn, 102 N. Y. (57 Sickels) 536 (Court of Appeals), the question was whether the plaintiff, who was a police officer, and had been unlawfully removed from office, but was afterwards reinstated, and who, during his suspension, worked for others and earned wages, could properly recover from the municipality the salary accruing during his suspension, without allowing any deducting for his earnings from other -sources, and the court held that he could.

We adopt the reasoning of Mr. Justice Finch (at p. 538), where he says: “We have often held that there is no contract between the officer and the state or municipality by force of which'the salary is payable. That belongs to him as an incident of his office and so- long as he holds it, and when improperly withheld he may sne for it and recover it. When he does so he- is entitled to- its full amount, not by force of any contract, but because the law attaches it to the office, and there is no question of breach of contract or resultant damages out of which the doctrine evoked has grown.”

These views lead do- the result that the motion of relators’ counsel to strike out the return to each of the alternative writs must prevail, and that a peremptory writ of mandamus issue.