author: Pee Cuela m.

text:
    FRANK SULLIVAN, PROSECUTOR, v. THE STATE OF NEW JERSEY, RESPONDENT.
    Decided April 16, 1925.
    Motor Vehicles — Reckless Driving Conviction — An Appeal to Common Pleas — Complaint May be Stricken Out as: Not in Conformance With Statute — Court Cannot Direct Complaint ■ Which Originally Charged No Offense, to be Changed into One Charging a Violation Under the Statute.
    On certiorari to the Essex County Court of Common Pleas.
    Before Justices Katjkch, Black and Campbell.
    For the prosecutor, Thomas Brunetto.

    For the defendant, J. Henry Harrison.

   Pee Cuela m.

The prosecutor was convicted in the recorder’s court of Cedar Grove, on a complaint charging him with a violation of section 16 of the Motor Vehicle act of April 8th, 1921, in that lie did “on the 26tli day of February, 1923, in the township of Cedar Grove, to wit, upon Fairview avenue, on a public street of the township of Cedar Grove, said street being a public highway of the State of New Jersey, operate and drive a motor vehicle^ a Chevrolet 1919 Sedan, to wit, upon Fairview avenue of the township of Cedar Grove, recklessly and in disregard of human life and property, all of which is contrary to: and in violation of said section 16 and against the form of the statute.”

From the judgment of conviction an appeal was taken to the Essex County Common Pleas Court, where1, by virtue of the statute creating the offense, the appellant was entitled to a trial de novo.

This court has repeatedly decided that the legal effect of such an appeal was to leave the complaint and initiatory proceedings prescribed by the statute undisturbed, and that they alone constituted the basis upon which the new trial must proceed. Therefore, the appellant, in the present case, was clothed with all the legal rights that pertain to an accused in proceedings originally initiated in the Court of Common Pleas, one of which such rights was to challenge the validity of the complaint, which he was called upon to answer. In this view of the accepted law on the subject counsel of the prosecutor was strictly acting within declared legal sanction when he moved to dismiss the case upon the ground that the complaint did not set forth any offense committed by the prosecutor under the statute. The trial judge conceded this to. be so-, but refused to dismiss the cause, because it did not appear that any objection was made to the sufficiency of the complaint in the court of first instance. The motion should have prevailed. Since.the complaint was the foundation of the action, and must conform to the statute, it may be properly objected to, for the first time, upon appeal. Roeber v. Society for Prevention of Cruelty to Animals, 47 N. J. L. 237, 239.

But a more glaring error was committed by the trial judge, when, against objection, he directed an amendment to be made and incorporated in the complaint, which originally charged no offense against the prosecutor into a complaint charging him with an offense under the statute.

Without stopping to consider the constitutional question involved in such a course of action, it is. sufficient to say, happily for a just and wise administration of the law, that there can be no precedent found for such judicial action. It will not be out of place in this connection to state a few of the reasons why, in the present ease, an amendment, in substance, as this was, could not be properly made. 1. The penal statute, underlying the proceeding, directs that the proceeding against an alleged offender shall be instituted in the magistrates’ courts upon a sworn complaint. 2. The Court of Common Pleas only obtains jurisdiction on appeal, ■ and is authorized by the statute to try the case de novo on the complaint made in the magistrate’s court. It is of no> particular consequence whether the court, on appeal, is sitting as a special tribunal, or as a court in the exercise of its common law jurisdiction, it was clearly without power to substitute, in a summary proceeding, on a penal statute, a, new complaint, and compel the accused to answer thereto'. 3. Since the statute requires that the basis of the proceeding shall be a sworn complaint, and it appearing that the complaint was amended, as has been pointed out, and was not sworn to, as amended, the entire proceeding coram non juAice.

Lastly, the validity of the judgment of conviction is attacked. The court affirmed the judgment. This was also error. The case was tried de novo.

The court was without power to affirm or reverse the judgment of the- magistrate. The statute has conferred the power upon the court to try the case upon tile facts and the law applicable thereto, and to make a determination on such facts and to pronounce judgment thereon.

For the reasons given the conviction is set aside and the judgment is reversed, with costs.


source: Caselaw Access Project

author: Pek Cukiam.

license: Public Domain

text:
    WILLIAM E. KETCHAM, PLAINTIFF-RESPONDENT, v. CITY OF NEWARK, DEFENDANT-RESPONDENT.
    Submitted November 6, 1924
    Decided April 13, 1925.
    Negligence — Injury to Person Entering Old Newark City Market — Market Conducted by City for Profit — Person Injured by a Fall Over Part of an Iron Gate to One of the Entrances Negligently Out of Order — Judgment for Plaintiff Affirmed.
    On appeal from the Essex Circuit Court.
    Before Gummere, Chiee Justice, and Justices Parker and Katzenbaoh.
    For the plaintiff-respondent, Benjamin M. Weinberg.

    For the defendant-appellant, Jerome T. Congleion and Charles M. Myers.

   Pek Cukiam.

This is defendant's appeal in an accident case, and no disputed question of law is involved. The plaintiff was injured by stumbling over an obstruction at one of the numerous side entrances of the old Newark market, and his claim was based on alleged negligence of the servants of the city in the maintenance of the building, and particularly of the entrance where he was injured. As it was apparently conceded that the municipality was running the market wholly or partly as a- business enterprise, the well-settled rule with regard to negligence of municipal agents in the performance of a public duty is not applicable.

The only points argued for the appellant in the brief submitted to us are that the trial court erred in refusing to direct a nonsuit, and further erred in refusing to direct a verdict for the defendant. We fail -to see any merit in either point. The old market was a very long and narrow building built over the Morris canal, and had a great number of entrances on both sides leading on the north into a. street, and on the south leading to a passageway on the other side of which were the fruit and vegetable stands and other stands of similar character. In each of these doorways or openings., to quote the language of the appellant's brief in stating the evidence for the plaintiff, “there was a pair of lattice or accordion gates about six feet in height and each a little less than three feet in width, one of which was attached to each side of the brick wall surrounding the passageway. At night these'gates in each, passageway were drawn together and a bar or rod about three feet in length, which was a part of the gate, was used as a runner for the gates to. rest upon when the gates were closed. When the gates were open the bar was upright and was fastened to its particular gate by a catch and button.” Plaintiff’s claim was that the bar or rod used as a runner, as above stated, was resting on the floor; that he did not see it and tripped over it. The evidence further tended to show that the reason that the bar or rod was on the floor was that the catch or button which was intended to hold it in position was. out.of order, and that a piece of string had boon substituted fox the pulpóse of tying it up into place when not in use, but that something was wrong even with the piece of string, and, as a result, the bar had been allowed to lie on the floor directly across, the opening, where people were constantly passing and repassing. Of course, this presented a. situation which, as the jury might with entire propriety find, should be discovered and rectified with reasonable promptness. The question, then, as regards negligence of the defendant, would be whether; under the conditions that the jury might find existed in the ease, the rule laid down in Schnatterer v. Bamberger, 81 N. J. L. 558, was fairly met. This question we answer, without hesitation, in the affirmative. There was considerable evidence to indicate a general condition of neglect o-f all these gates., including that in question; that the button catch bad been out of order for a long time; and that when the gate got out of order in this way it took a long time to have repairs made, the time being measured in weeks or months. In fact,- it. seems, to have been rather habitual to tie. these gates with string instead of attending to the repair of the buttons. One witness testified that the bar had been lying in the position that it occupied when the plaintiff fell over it for fully half an hour before the accident. In such a situation it became a rather dangerous trap, and, apart, from the original neglect of the mechanical appliance intended to make it secure, the jury were further entitled to conclude that, permitting a. thing of this kind to remain in such a situation even for half an hour, was a negligent act. So. far, therefore, as relates to the negligence of the servants, of the city, there was clearly a case for the jury. As to- contributory negligence, the question is whether the court, on the trial of such an issue, would be in a position to say as a court question that the plaintiff ought to have been watching the steps that he took, to. the extent o f seeing the bar lying across an opening, which he had the right to assume was clear and unobstructed. We think the question aswers itself.

The judgment is affirmed.


text:
    MANSFIELD v. COUNTY OF CAPE MAY.
    Decided April 16, 1925.
    Change of Venue — Such Changes are for Reasons of Practical Convenience and are Matters of Discretion — Reasons Alleged for Change Might Have Had Weight if Made in Due Season, but When Delayed for More Than a Year and Where Great Inconvenience Will Not Insure the Change Will Not be Made.
    On application for rule to show cause why venue should not be changed.
    Before Justice Parker, sitting above.
    For the plaintiff, Andrew J. Whinery.

    For the defendant, Palmer M. Way.

   Memorandum for information of counsel.

Plaintiff is a contractor residing in Bergen county, who built a bridge in Cape May county under contract with the board of chosen freeholders of that county. The present suit is the outcome of a disagreement about plaintiff’s compensation, and the venue was laid in Bergen county as the county of plaintiff’s residence. Defendant desires a change of venue to Cape May or an adjoining county on grounds of convenience, particularly that certain records of the freeholders must be brought to and kept at Hackensack during the trial, and that for the same period the county engineer and members of his staff will be detained at a great distance from their normal field of operation.

When an application of this kind is made in due season, such reasons as those suggested would, ordinarily, have much . weight with the court. Keeley v. Belmar, 97 N. J. L. 98.

But ifc appears that this suit was begun, in the summer of 1924, and was,«at issue in time to be tried at the September term, or, in any event, at the December term,; that it was regularly noticed and listed for trial at the present April term, and not until the trial of the calendar was begun and was in progress was any move made by defendant inconsistent with the idea of trying the cause where the venue had been laid.

A change of venue for reasons of practical convenience is necessarily a matter of discretion. Keeley v. Belmar, ubi supra. Section 203 of the Practice act permits a, rule to show cause “for good cause.”

Under the circumstances, I do not think good cause has been shown. A rule, if made now, would come up for argument at the next term of the Supreme Court, and almost certainly a trial; already delayed, could not he had until the fall. Opposed to this forcible dislocation of normal court procedure is placed the inconvenience of transporting witnesses and documentary evi deuce to Hackensack. Counsel for plaintiff stipulates that the documentary evidence will he admitted without formal proof by witnesses,, so that the only county officials needed will bo the engineer and those connected with his department. To the argument that they will be removed from their urgent work on county roads,, &c., the, answer is made that a trial anywhere would prevent their field work.

On the whole, I think the application comes, too late, and a rule toi show cause must therefore be refused.


author: Pee. Cukiam.

text:
    THE YOUNG MEN’S CHRISTIAN ASSOCIATION OF THE ORANGES, PROSECUTOR, v. CITY OF ORANGE ET AL., DEFENDANTS.
    Submitted March term, 1925
    Decided April 17, 1925.
    Taxes and Assessments — Y. M. C. A. Property, in Course of Construction, Not Yet in Use for Association Purposes — Tax Statutes Strictly Construed — Exemption Applies Only to Property “Actually Used” for Such Purposes.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    Eor the prosecutor, Fdmard T. Magoffin.

    Eor the defendant city of Orange, William A. Qalhoun.

   Pee. Cukiam.

This is an appeal from a judgment rendered by the state board of taxes and assessment, affirming a judgment of the Essex county board of taxation sustaining an assessment on the property of prosecutor known as lot No. 22, in book No. 3, 129 Main street, in the city of Orange; for $55,300. The assessment ivas made as of October 1st, 1923, under the statute. Pamph. L. 1918, p. 859, § 401. The state board sustained the assessment on the ground that the building was unfinished and not actually and exclusively used' in the work of the prosecutor at the time of the assessment, viz., October 1st, 1923. Citing Institute of Holy Angels v. Fort Lee, 80 N. J. L. 545; Longport v. Bamberger Seashore Home, 91 Id. 330.

The statute under which the prosecutor1 claims exemption from taxes is Pamph. L. 1922, p. 679; the pertinent provision of that statute is “all buildings actualfy and exclusively used in the work of associations',” &c. It is settled beyond further discussion that statutes granting immunity from taxation must be construed strictly. Mausoleum Builders of New Jersey v. State Board, 88 N. J. L. 592; affirmed, 90 Id. 163. The testimony of Mr. Clarence H. Potter shows that,.on the assessment date, the property was not “actually and exclusively” used in the work of the association. We are bound by the construction placed upon the words “actually used” in the tax statute by our courts, in the cases cited, in 80 N. J. L. 545, and 91 Id. 330, which are in point. Even so, it is conceded in the briefs, that on January 20th, 1925, the taxes now sought to be reviewed were voluntarily paid by the prosecutor.

The judgment of the state board of taxes and assessment is affirmed.


text:
    Decision of the Commissioner of Education.
    Herman Shapiro, appellant, v. Board of Education of the City of Paterson, respondent.
    [Decided April 7th, 1925.]
    Term of Office — School Teachers — Three Calendar Years’ Service Necessary — No Valid Written Contract Existing Between Board and Teacher — No Teacher's Certificate in Possession of Appellant at Time of Dismissal — Dismissal Affirmed.

      Mr. Isadora Rabinowitz, for the appellant.'

      Mr. Randal Lewis, for the respondent.
   The appellant in .this action who, on September 1st, 1921, was appointed a teacher in the Paterson public schools, contests the validity of the action of the board, of education of the city of Paterson in notifying appellant on June 27th, 1924, that his services as teacher in the public schools of that city would not be required after June 30th, 1924. Appellant contends that he has been for three years employed as a teacher in the school district of the city of Paterson, protests against what he alleges to be a dismissal without cause and without the preferring of charges or the granting of a hearing, and demands reinstatement in his position of teacher in the Paterson High School.

A hearing in tins case was conducted by the assistant commissioner in the city hall in Paterson, on Wednesday, March 11th, 1925, at which testimony of witnesses on both sides was heard. Opportunity for filing briefs, moreover, upon the legal points involved has been afforded counsel for both sides.

The decisions of tins department, as. well as those of the supreme court, notably that of Davis v. Overpeck Township Board of Education (filed in the office of the clerk of the supreme court and not reported), hold that three consecutive calendar years of service in the same district are necessary to place a teacher under the protection of the Teachers’ Tenure act.

The appellant, whom the testimony shows to have been appointed September 1st, 1921, could not, in the commissioner’s opinion, be deemed to have been under tenure at the time of his dismissal on June 30th, 1924, since he had not then completed the three consecutive calendar years of service necessary as above stated to' gain tenure. Neither, in the commissioner’s opinion, could be be deemed to have been in process of attaining tenure by virtue of a valid contract for a third calendar year, or, in fact, to have any valid contract of any kind for the third year, which the Paterson board of education could be considered to have violated. The appellant’s third appointment does not, from the testimony, appear to have been for a definite term; he was not, moreover, in possession of any written agreement, and the Paterson board of education did not, in lieu of such written agreement, have any written rules and regulations, governing the appointment of its teachers. The rules of the Paterson board of education, cited in the brief of appellant’s counsel, deal entirely with the licensing of its teachers and not with their appointment.

Section 154,, article 8 of the 1921 compilation of the School law, authorizes boards of education to make rules and regulations governing the engagement and employment of principals and teachers', and goes on to provide that “if a board of education shall not have made rules, and regulations as aforesaid, then no contract between such board of education and a teacher shall be valid'undess the same be in writing * * * in triplicate, signed by the president and district clerk or secretary of the board of education and by the teacher,” and one copy filed with the board, one with the teacher and one with the county or city superintendent.

Tlie appellant, as above stated, held no written contract at the time of his dismissal in June, 1924, nor did the Paterson board of education have any definite rules and regulations governing the employment, terms, &e., of its teachers.

In view of the above statute, therefore, it is the opinion of the commissioner that at tire time of appellant’s dismissal by the Paterson board of education in June, 1924, there was no valid and binding contract between him and the board of education either in the way of a written agreement or term of employment fixed by rules and regulations as required by law, and that the appellant cannot accordingly claim any violation of his rights..

Moreover, in order for a person to¡ be legally employed as a teacher in the public schools of New Jersey, both the law and the rules of the state board of education require that he possess a valid teacher’s certificate in full force and effect. Rule 4, page 359 of the 1921 compilation of the School law of the state board of education rules provides that “the responsibility for holding the proper form of certificate rests with the teacher.” Mr. Shapiro, the appellant in tins case, was eligible for a certificate to be issued by the Paterson city board of examiners, but at the time of his dismissal in June, 1924, he possessed no. certificate of any kind.

In view of the fact, therefore, that appellant at the time of Ms dismissal possessed no teaeliing certificate as required both by the law and the rules of the state board of education, and was serving no valid term of employment either by a written contract or under the rules of the Paterson board of education, his claim that he was. unlawfully dismissed on June 30th, 1924, by the Paterson board of education cannot, in the commissioner’s opinion, be sustained.

The appeal is accordingly hereby dismissed.

C. J. Stbahan, Assistant Commissioner of Education.


author: Peb Curiam.

text:
    NELLIE FITZGERALD, RESPONDENT, v. RICHARD A. DeMOTT, APPELLANT.
    Submitted January 16, 1925
    Decided April 16, 1925.
    Negligence — Motor Vehicle Ran Down Pedestrian Going in Same Direction — Under Circumstances Direction of Verdict or Non-suit was Out of Question.
    On appeal from the Bergen Circuit Court.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the appellant, Frank O. Turner.

    For the respondent, Charles W. Hulst.

   Peb Curiam.

Plaintiff and a party of friends, eight or ten in all, were walking on the right side of a county road at night, when plaintiff was run into from behind by defendant’s automobile going in the same direction with lights burning. Plaintiff had a verdict and judgment for damages, which we are asked to reverse on these grounds:

1. Refusal to nonsuit (a) because no negligence of defendant appeared; (b) because of contributory negligence of plaintiff.

2. Refusal to direct a verdict for defendant on the same grounds,

3. Refusal to order a mistrial because one of the witnesses, not responsively to any question, interjected something about photographs taken for an insurance company.

How a trial judge, under the circumstances of this case, could properly nonsuit or direct for the defendant on questions either of negligence or contributory negligence, is quite beyond our comprehension.

As to the casual mention of insurance, it is sufficient to cite Bashaw v. Eichenberger, 2 N. J. Adv. R. 1124.

Judgment affirmed.


author: Pee Curiam.

text:
    THERESA ULBRIGHT ET UX., PLAINTIFFS-RESPONDENTS, v. ONIST BAKING COMPANY ET AL., DEFENDANTS-APPELLANTS. J. EDWIN FERRIDAY, PLAINTIFF-RESPONDENT, v. ONIST BAKING COMPANY ET AL., DEFENDANTS-APPELLANTS.
    Argued March 4, 1925
    Decided April 17, 1925.
    Negligence — Runaway Horse — Evidence Raised Prima Facie Presumption .of Negligence — Jury to Determine Whether Negligence Ought to be Inferred — Questions Relating to Testimony Considered.
    On appeal.
    Before Justices Kalisch, Black and Campbell.
    Eor the appellants* William E. Holmwood.

    For the respondents* Jolm V. Laddey.

   Pee Curiam.

The trial of these cases resulted in verdicts for the plaintiffs for $5,500 and $3,000, respectively. The defendants filed twelve grounds of appeal in each case. Only two' of the grounds* however, are argued, viz., the second and the fifth. Error in refusing to grant a, motion for the direction of a verdict in favor of the defendants and error in permitting the plaintiff’s attorney on cross-examination to ask a witness, George E. Schaffer, the following question: “You had a runaway on Lyons avenue, didn’t jum?” A. “I do not remember; I just recall the Irvington runaway. It is really impossible for me to recall.”

The suit grew out of a runaway horse harnessed to a delivery wagon running unattended down Orange avenue near Speedway avenue, in Newark, on December 31st, 1923, at about five o’clock in the afternoon. Tlie horse and wagon ran into an, automobile driven by the plaintiff, J. Edward Ferriday, in which Mrs. Ulbright was, riding. The driver of the horse and wagon stopped at No. 507 South, Orange avenue to make a delivery. He left the horse and wagon at the curb unattended, but, before leaving the horse, ho locked the brakes, which acted on the rear wheels -of the wagon.

Quite independent of the statute — the Traffic act — the evidence presents a jury question under the cases- of Kokoll v. Brohm, &c., Lumber Co., 77 N. J. L. 169; Francois v. Hanff,. 77 Id. 364; Dennery v. Great Atlantic, &c., Co. 82 Id. 517.

The evidence raised a- prima facie presumption of negligence upon the part of the defendants. Tietje v. Catalona, 88 N. J. L. 63.

At the close of the entire case a question of facts was- presented. It was for the jury to- say whether negligence ought to be inferred.

It was not error for the trial court, to refuse to- direct a, verdict in favor of the defendants- — the Traffic: act (Comp. Stat. of N. J., 1st Supp., p. 1387; Pamph. L. 1915, p. 295, part 3, § 11) subdivision 14 provides, that “no- horse shall be left unattended in any street “unless securely fastened, or unless the wheels of the vehicle to which he is- harnessed are securely tied, fastened or chained.” The defendant may show, and did showy what he did to obey the statute. Evers v. Davis, 86 N. J. L. 205.

Nor is- there reversal error in the fifth ground of appeal.

The defendant called as a witness George Edward Schaefer, the treasurer of the- defendant company, and, at page 121 of the printed book, tlie defendant’s attorney asked the witness the following questions,: Q. “Did you say anything to him about a ho-rse running away?” A. “I did not.” Q. “What did you say to- him?” Q. “Was that ho-rse that ran away, &c.” Q. “That is not the same horse at all that was in this accident, &c.” Surely, after having introduced evidence as to- a runaway horse, the plaintiff cannot be deprived of a right of cross-examination on. the same subject. Bahrey v. Poniatishin, 95 N. J. L. 128. Even so, the answer was harmless. It falls within that provision of the statute. Pamph. L. 1912, p. 382, § 27. No judgment shall be reversed for the improper admission or exclusion of evidence, unless, after examination of the whole ease, it shall appear that the error injuriously affected the substantial rights of a party.

Finding no error in the record, the judgment of the Essex County Circuit Court in each ease is affirmed.


author: Pee Ctjeiam.

text:
    MILLVILLE ELECTRIC LIGHT COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF NEW JERSEY, DEFENDANT.
    Argued March 3, 1925
    Decided April 17, 1925.
    Public Utilities — Rule in Rate-Making Cases Stated — Value of Steam Plant Eliminated as in Excess of Cost of Current Otherwise Purchased — Court Will Not Merely Substitute Its • Judgment for That of Legislative Body — Rate Affirmed.
    On certiorari.

    Before Justices Kalis ch, Black and Campbell.
    For the prosecutor, Lewis Starr.

    For the defendant, Thomas Brown.

   Pee Ctjeiam.

We think the meritorious question involved in this case is determined by the application of the rule stated by the Supreme Court of Maine in the case of Kennebec Water District v. Waterville, 97 Me. 185, and approved by Vice Chancellor Pitnej1' in the carefully considered case of Long Branch Commission v. Tintern Manor Water Co., 70 N. J. Eq. 71, 83; affirmed, 71 Id. 790. That case was affirmed for the reasons stated, by Vice Chancellor Pitney. That rule summarized, so far as it applies to the facts developed in the record of this case, is as follows: The elemental principles are the right of the company to derive a fair income, based upon the fair value of the property at the time it is. being used for the public, taking into account the cost of maintenance or depreciation and current operating expenses, and the right of the public to have no more exacted than the services in themselves are reasonably worth, including a fair income to the stockholders on their investment.

The facts, to which this rule may be applied are these: The board of public utility commissioners on the 29th of October, 1923, by a formal order determined that the schedule of rates, or charges, for electric energy made by the prosecutor prior to September, 1923, to the territories served, were “unjust and unreasonable.” The board did in the same order determine and fix “just and reasonable” rates. This, is the order which is now under review in this court. The rates were made effective as of December 1st, 1923.

The board did by its order eliminate the value of the prosecutor’s steam plant, the value of which as found by the board aggregating upwards of $70,000 in excess of the cost of current, otherwise purchased, as constituting property not useful in the conduct of its business. The value of the steam plant was thus excluded by the board in determining the value of the property of the prosecutor.

It would serve no useful purpose to restate the facts on which the order of the board was based. The facts with schedules are clearly and somewhat minutely stated in the decision of the board, dated August 22d, 1923, covering in the printed book pages from 15 to. 31. The case was reopened for further hearing October 29th, 1923. A supplemental order and decision filed covering in the printed book pages from 36 to 40, dated October 29th, 1923.

Our reading of the record leads us to the same conclusion as that filed by the board. The order so made is supported by the evidence on which it is based.

In the case of the Atlantic City Sewerage Co. v. Board of Public Utility Commissioners, 125 Atl. Rep. 327, it was said the finding was made upon tangible and competent data and evidence. This case is in point. It1 was affirmed by the Court of Errors and Appeals, for the reasons- expressed in the opinion of the Supreme Court.

The courts will not merely substitute their judgment for that of a legislative body. Public Service Gas Co. v. Board of Public Utility Commissioners, 84 N. J. L. 468.

The value of the prosecutor’s-plant, as shown by the- engineers, is as follows.: The engineers of tlie municipality valued the plant at $157,02$; the engineers- of tlie prosecutor valued the plant at $362,106; the value adopted by the board of public utility commissioners was $205,506.

In the brief of the defendant it is estimated that by the different rates allowed by the board (record, pages 24 to- 26) there will be a net return of eight per cent, on the valuation of the plant as fixed by the board.

The .order of the defendant is affirmed, with costs.


author: Per Curiam.

text:
    ROBERT W. KENNEDY COMPANY ET AL., PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., DEFENDANTS.
    Argued March 3, 1925
    Decided April 17, 1925.
    Public Utilities! — Board Hasi Jurisdiction in Cases Where Railroad Company Has Leased Land to Private Parties — Order to Build Switch Connection With Private Side Track — Evidence Examined and Finding of Commission That the Request was Reasonable, Practicable, That Switch Can be Put in With Safety- and That It Will Furnish Sufficient Business, Sustained.
    On certiorari.

    Before. Justices Black and Campbell.

      Por the prosecutors, Henry M. Hartman and Charles E. Gwmmere.

    Eor the defendants Trenton, &c., Traction Company and Central Transportation Company, Edgar W. Hunt.

    Por the defendant Board of Public Utility Commissioners, Thomas W. Brown.

   Per Curiam.

The writ of certiorari in this case brings under review an order of the board of public utility commissioners, dated November 26th, 1924, directing and ordering the Pennsylvania Railroad Company to provide a switch connection for a side track, when constructed on the property of the defendant the Central Transportation Company, from a point where the land of that company joins land owned by the Pennsylvania Railroad Company. The land of the Pennsylvania Railroad Company is now leased and occupied by the prosecutor Robert W. Kennedy. Company for its coal and lumber business- The switch connection is to enable the two defendant companies to receive car load freight on a tract of land desired to be developed for the joint use of the two defendant companies as a car barn, a garage for motor coaches and a material yard.

The Robert W. Kennedy Company procured a writ of certiorari to review the order. The Pennsylvania Railroad Company was admitted and joined as prosecutor with the Robert W. Kennedy Company. Both companies attack the order and file1 six reasons for setting it aside. The reasons are argued under three points in the prosecutors’ brief.

Pirst. The board lacked jurisdiction to make the order.

Second. The order, in effect, takes the property of the prosecutors without anjr provision for just compensation.

Third. There was nu evidence to reasonably support the order made by the board.

The statute under which the order was made is an act concerning public utilities (Comp. Stat. of N. J., 1st Supp., p. 1278; Pamph. L. 1911, p. 378, part 2, § 16 E), which provides the board' shall have power; after hearing, upon notice, by order in writing, to direct any railroad engaged in carrying merchandise to construct, maintain and operate, upon reasonable terms, a switch connection with any private side track, which may be constructed by any shipper to connect with the railroad, ox street railway, where, in the judgment of the board, such connection is reasonable and practicable, and can be put in with safety, and will furnish sufficient business to justify the construction and maintenance of the same.

The objection that is urged and argued, however, is not to the validity of the statute under which the order was made. But it is the prosecutor Eobert W. Kennedy Company is in possession of the land over which' the defendants desire to cross with a side track. The interest of the Eobert W. Kennedy Company in -the land was. acquired from the Pennsylvania Eailroad Company bjr a lease dated September 24th’, 1923, Exhibit 1, terminable at the will of the Pennsylvania Eailroad Company upon sixty days’ notice, and that the Eobert W. Kennedy Company cannot be divested of its rights by the taking of any part of the land now occupied by it, except by condemnation. As the hoard of public utility commissioners has no power under the statute to condemn the interest in the land held by the Eobert W. Kennedy Company, the order of the board is therefore a nullity.

The answer made to this point is, the hoard is not proceeding under any assumed authority to condemn private property, hut is acting under express ^statutory authorization, and, therefore, the order made by it is legal. While it is conceded that the land is the private property of the Pennsylvania Eailroad Company, since it was acquired for its right of way, it is, nevertheless., charged with a public use. It does not under'the statute have the right, to. use the land in any way in which, it may desire to use' it as a private owner of real estate may d0‘, but may only use it for purposes consistent with the objects for which the railroad company was incorporated.

The Eailroad act (3 Comp. Slat, of N. J., p. 4220, § 3; Pamph,. L. 1903, p. 647, § 3) provides every railroad company shall have power to acquire, from time to time, and hold and use such real estate1 and other property as may, in the judgment of its directors, be necessary to accomplish the objects of its incorporation, and to sell land thus acquired when not necessary for such purposes and objects. So, section 13 limits the1 property which may be acquired by condemnation. So, it may lease or grant, for a short period of time, a part of its property for which it may have no immediate need. Armstrong v."Pennsylvania- Railroad Co38 N. J. L. 4.

While it is true the Pennsylvania Eailroad Company is the absolute owner of the land, the use to which it may be put is greatly restricted, the Pennsylvania Eailroad Company cannot by means of a lease create rights in the lessee, the Eobert W. Kennedy Company, superior to1 the rights which it has itself in the premises under the statute. The railroad company could not, -by means of a lease for. a long or a short -period of time, vest in the Eobert W. Kennedy Company the absolute right to use the land in the conduct of its coal and lumber business without being subject to tbe paramount duty to use tlie land for railroad purposes whenever the need therefor shall arise.

So, the Eobert W. Kennedy Company has always held tbe land subject to such use. The order of the board of public utility commissioners, therefore1, does not divest it of any rights which it formally had, for it merely requires the land shall now be put to that use.

This disposes of the point that the board had no jurisdiction in the premises, and that it was taking the property of the prosecutors without awarding just compensation, for which it had no power. The board, as stated, in making tbe order, was acting under express statutory authority.

The board found from the evidence before it the four conditions of fact to- exist, which justified the board in making the order under the statute, viz.:

1. That it was reasonable.

2. That it was practicable1.

3. That the switch can be put in with safety.

4. When put in it will furnish sufficient business to justify the construction and maintenance of the same.

The act (Pamph. L. 1918, p. 304) provides the order may be reviewed upon certiorari by the Supreme Court; such order may be set aside, in whole or in part, when it clearly appears that there was no evidence before the hoard to1 support reasonably the same, or that the same was without the jurisdiction of the board. The testimony under which the order was made has been returned with the writ of certiorari in the printed book. Our reading of it leads us to the conclusion that there was evidence before the board to support reasonably the order made. Hackensack Water Co. v. Board of Public Utility Commissioners, 95 N. J. L. 295. Hence, we cannot set the order aside for this reason., It would serve no useful purpose to restate the evidence from the printed book.

The two defendant companies attack that part of the order which provides the switch connection for a side track is made, “subject to the condition that petitioners shall bear any reasonable expense incident to the construction of the side track from the siding constructed upon the property of the Central Transportation Company to. the clearance point at the switch connection, and also the expense of any necessary rearrangement of the facilities of the Eobert W. Kennedy Company used by it in the conduct of its business., which facilities are located upon the land leased by it from the Pennsylvania Eailroad Company. If the parties cannot agree as to the reasonable amount of such expense an application may be made to the board to settle that aspect of the matter.” These companies obtained a writ of certiorari and were admitted-as co-prosecutors under the writ. They then filed four reasons for setting aside that part of the order attacked by'them. The attack is made upon the grounds.—

First. There was no evidence to support that part of the order.

Second. The board lacked jurisdiction to impose upon the applicants the conditions.

Third. The conditions imposed are unreasonable.

Fourth. It gives to the Robert W. Kennedy Company rights as lessee, which the law of the state does not entitle it to.

It seems quite unnecessary to further follow the argument on this point in detail. The statute provides the order may be made upon reasonable terms; the facts do not seem to' be contradicted.

We think there is no legal merit in the argument on this branch of the case.

The order of the board is therefore affirmed in its entirety, and the writs of certiorari are dismissed, with costs.


text:
    STATE, EX REL. NELSON BUILDING COMPANY, RELATOR, v. CHARLES A. BINDA, INSPECTOR OF BUILDINGS OF THE TOWNSHIP OF WEEHAWKEN, COUNTY OF HUDSON, AND THE TOWNSHIP OF WEEHAWKEN, IN THE COUNTY OF HUDSON, RESPONDENTS.
    Submitted March 23, 1925
    Decided April 18, 1925.
    Municipalities — Zoning—Inspector’s Refusal of Permit Sustained by Board of Appeals — Apartment-house in Zone “A” — Regulations as to Number of Families That May Occupy a Given Area so as to Limit to One and Two-Family Residences, Arbitrary — Township Without Building Code, and Regulates Building Through Zoning Ordinance! — Peremptory Mandamus Allowed.
    On mandamus. On rule to show cause.
    Before Justices Kalis ch, Black and Campbell.
    Eor the relator, William F. Burke.

    Eor the respondents, William S. Btuhr.

   Pee Curiam.

Relators being the owners of a plot of land on Boulevard East, near Duer place, in the township' of Weehawken, prepared plans and specifications for the erection of an apartment-house thereon, and applied to the respondent Binda, building inspector, for a permit for the erection thereof, which permit was refused upon the ground that the proposed building, if erected, would be in violation of the zoning ordinance of Weehawken.

The property of relator is in residence A zone, as established and fixed by the zoning ordinance, and the provisions of the ordinance are such as to restrict such zone to the erection of dwellings to be occupied by one family only.

After refusal of the building inspector to issue the permit, relator applied to the zoning board of appeals, obtaining no relief thereby. On the contrary, such board of appeals, by its report addressed to the township committee, recommended that such action be taken by that committee “as may be deemed advisable to enjoin a violation of section 9 of the zoning ordinance.”

Relator, having pursued the methods of relief fixed by statute, is in that respect in a position to ask relief of this court by way of mandamus.

We think relator is entitled to relief by our writ.

The township of Weehawken has no building code, but seeks to regulate building through and by the provisions of its zoning ordinance.

There are undoubtedly many provisions of such ordinance which are proper,’but there are some which in our opinion are not.

The regulations as to number of families that may occupy a given building per area of land covered are such as arbitrarily limit certain areas to one and two-family residences only.

This is so as to residence zone A, in which relator’s property is situate. We can find no reasonable ground for such restriction.

In the proofs taken under this rule it was attempted to be shown that relator’s land, situated on the edge of the Palisades, was an unsafe place upon which to erect the proposed building. This was not the reason for refusing the permit, and the evidence upon this -point is not satisfying.

As all the facts are as fully before us as if the matter were being heard under an alternative writ of mandamus, the relator is entitled to and may have a peremptory writ with leave on the part of respondents to have the pleadings molded in the event that it is desired to take an appeal.


text:
    THE STATE, EX REL. SOLOMON LOSICK, RELATOR, v. CHARLES BINDA, BUILDING INSPECTOR OF THE TOWNSHIP OF WEEHAWKEN, AND THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WEEHAWKEN, RESPONDENTS.
    Submitted March 23, 1925
    Decided April 18, 1925.
    Municipalities — Zoning—Allegation That Application for Mandamus is Premature Because Zoning Board of Appeals Had Not Acted — Board’s Function is to Advise Governing Body, and That Body Has Acted — Case Similar to Nelson Building Co. v. Binda, Present Term, and Peremptory Writ Will be Allowed.

      On mandamus. On rule to show cause.
    Before Justices Kalisch, Black and Campbell.
    Eor the relator, Merritt Lane.

    Eor the respondents,William 8. Stuhr.

   Per Curiam.

Relator is the owner of a plot of land on Park View avenue, in Weehawken. He made application to the respondent Binda, as building inspector, for a permit to erect an apartment-house upon said lands in accordance with plans and specifications prepared for such purpose, approved by the tenement-house commission.

Relator’s land is in zone A, as prescribed by the zoning ordinance of Weehawken, which, by its terms, precludes the erection of any buildings except one-family dwellings.

The permit was refused for the specific reason that the proposed building is prohibited by such zoning ordinance. As we said in Nelson Building Co. v. Binda, No. 207, of this term, such regulation and prohibition is, in our opinion, unreasonable.

Respondents urge that this application is premature, under Lutz v. Kaltenbach, No. 203, January term, 1925, in that relator did not appeal to the zoning board of appeals. But the testimony seems to be that he did do so through his attorney, although this is denied. However, the power of the board of appeals seems, under the ordinance, to consist only of the right to recommend to the township, committee, and it appears by the testimony of the township clerk that the action of the building inspector was approved by the township* committee. It would seem, therefore, that any action by way o*f appeal to the zoning board of appeals would have been futile.

Respondents further urge that the application is not bona, fide, but simply for the purpose of testing the validity of the zoning ordinance, and presents to the court a moot question only as we held in Muelberger v. Wisloh, 2 N. J. Mis. R. 962. There is testimony that is quite persuasive on this point, but we think the situation presented is quite different from that in Muelberger v. Wisloh, supra.

Relator urges that the zoning ordinance has no legal basis for its existence, as the statute under which it was enacted (Pamph. L. 1922, ch. 162) was repealed by Pamph. L. 1924, ch. 146. But section 6 of Pamph. L. 1924, ch. 146, continues the existence of all ordinances adopted under the act of 1922, except so far as they may be inconsistent with the provisions of the act of 1924.

As all the facts are as fully before us as if the matter were being heard under an alternative writ, the relator is entitled to and may have a peremptory writ with leave on the part of the respondents to have the pleadings molded in the event that it is desired to take an appeal.


text:
    THE STATE, EX REL. SAMUEL ROSENBAUM ET AL., RELATORS, v. THOMAS BUTLER, BUILDING INSPECTOR OF THE CITY OF PLAINFIELD, ET AL., RESPONDENTS.
    Submitted March 23, 1925
    Decided April 18, 1925.
    Mandamus — Awarded Only Where Right to Relief is Clear at the Time of Award — Right to a Strip of Land for Building Purposes in Question — This Question Must be Settled by Appropriate Proceedings Before Writ Can be Awarded.
    On mandamus. On rule to show cause.
    Before Justices Kalisch, Black and Campbell.
    Eor the relators, Winfield S. Angleman.

    For the respondents, Charles A. Reed and William F. Vosseller.

   Pee Curiam.

Relators leased the premises 126 to- 130 Park avenue, in Plainfield. One of the terms of such lease was that relators should extend the present building on said premises in line with other premises on Park avenue north of the- present building. The premises, 120 to 124 Park avenue, were also included in said lease, and relators applied for and obtained a permit to extend the building on such premises so' that they would be in line with buildings to the north. This required an extension of some three or four feet. Such work was completed.

The permit for the extension of the building, 126 to 130 Park avenue, was issued, aud relators entered into a contract for the work. The premises were occupied by a tenant who was paid $300 to vacate-. Subsequently, the permit was revoked upon the ground that the application therefor had not been verified as required by the building code. In all probability the real reason for its revocation was the discovery of an ordinance ol 1873 fixing a building line on Park avenue, and a contention thereunder on the part of the city that the extension of the proposed building some three■ or lour feet would be upon property of the city within the sidewalk line of Park avenue.

The parties in their briefs argue the matter1 as if such question as to this strip of three or four feet was one that could 'be decided upon this rule.

Of course, it cannot be.

"A writ of mandamus will, not be awarded unless the right of the relief is clear at the time of the award.” State v. Newark, 35 N. J. L. 396; Hugg v. Ivins, 59 Id, 139; Vanalla v. Smith, 61 Id, 188; Gliestman v. West New York, 74 Id. 74; Secaucus v. Kiesewetter, 83 Id. 227; Connolly v. Smith, 86 Id. 466.

From the proofs before us the right is not clear.

If the strip' of land in question is part of the roadway of Park avenue included in the sidewalk of that thoroughfare, then respondents have no right to build thereon, and would not be entitled to a permit for that purpose.

This matter must be settled by some appropriate proceeding before the writ of mandamus can be awarded.

The rule to show cause is dismissed, with costs.


author: Pee Cueiam.

text:
    JAMES FORD, PLAINTIFF, v. WILLIAM AZZOLI, DEFENDANT.
    Submitted March term, 1925
    Decided April 18, 1925.
    Verdict Clearly Against Weight of Evidence.
    On rale to show cause why new trial should not be granted.
    Before Justices Kaltsch, Black and Campbell.
    Por the rule, Kalisch & Kalisch.

      Contra, Robert H. Doherty.

   Pee Cueiam.

An examination of the evidence in the cause brings us to the conclusion that the verdict is clearly against the weight of the evidence.

, . A rule may therefore be taken malting this rule absolute and for a venire de novo.


author: Pdr Curiam.

text:
    CHARLES LOEBEL, PLAINTIFF-APPELLEE, v. MINNIE S. JEROLEMON, DEFENDANT-APPELLANT.
    Argued January term, 1925
    Decided April 23, 1925.
    Sale of Real Estate — Broker’s Commission — Oral Contract to Buy — Subsequently, Broker Resold Property at an Advance— Alleged That Non-disclosure of Resale Amounted to Fraud on Broker — Oral Agreement a Contract, Though Unenforceable Because of Statute Between Parties — To Invoke the Statute Would be to Work a Fraud on the Broker.
    On appeal from the First District Court of Newark.
    'Before Justices Trun chard, Mintürn and Lloyd.
    For the plaintiff-appellee, Frank Benjamin.

    For the defendant-appellant, .Edwin G. Adams.

   Pdr Curiam.

This- action was tried in the First District Conrt oí Newark, and resulted in a judgment by court for- $490 for the plaintiff.

The plaintiff, as assignee of one Charles Sehnell, brought action to recover commissions earned by Sehnell as a broker in the sale of, defendant’s realty. On December 5th, 1923, the defendant orally agred to sell, and the liroker’s customer, one Eisenberg, orally agreed to buy, the property in question for $14,000, the terms of the contract being settled. On December 7th, 1923, this contract was formally executed, and on the same dajr the authorization to sell and the- agreement to pay the broker’s commission was- also signed. After the oral contract of the sale was made, hut before it was reduced to writing, the broker effected a resale of the property from Eisenberg to one Frank Beyea, at an advance in price of $500, and received therefor a commission of $200.

The defendant now contends that non-disclosure of this resale, with the receipt of a commission thereon, amounted to a fraud by the broker upon the principal.

The broker produced a ready and willing purchaser, who orally entered into a contract to purchase on terms agreeable to the defendant owner. This constituted a contract, although unenforceable as between the parties to it by reason of the statute of frauds. If the contract had been reduced to writing when made, there could arise no question as to the broker’s right to resell the property for the purchaser, Eisenberg, and to. receive a commission for such service, as well as a commission upon the original sale.

To invoke the statute of frauds in such a situation, in order to deprive the broker of such commissions, would, in effect, work a fraud upon'the broker. Rauchwanger v. Katzin, 82 N. J. L. 340.

The judgment will be affirmed.


text:
    EDSON & COMPANY, PLAINTIFF-APPELLANT, v. LOUIS SHUSTER ET AL., DEFENDANT-RESPONDENT.
    Argued January term, 1925
    Decided April 23, 1925.
    Motor Vehicles — Replevin—Conflict of Motor Vehicle Bill of Sales Act With Garage Keepers’ Lien Act1 — Bill of Sales Act Contemplates Only Voluntary Sales, to Include Judicial Sales Would be to Render Nugatory the Lien Act.
    On appeal from the East Orange District Court.
    Before Justices Teenchaed, Mintuen and Lloyd.
    For the plaintiff-appellant, Harry Oreen.

    For the defendant-respondent, Irving Siegler.

   Per Curiam.

This appeal lies from an action oí replevin, tried without a jury, in the District Court of East Orange. The action was to recover possession of a Ford automobile, and resulted in a verdict for the defendant.

The sole question involved is whether legal title passed to the purchaser of a motor vehicle, sold by virtue of the Garage Keepers’ Lien act {Pamph. L. 1915, p. 556), the purchaser not having received a manufacturer’s bill of sale or assignments thereof from prior owners, as required by the Motor Vehicle Bill of Sales act. Pamph. L. 1919, p. 357.

The Motor Vehicle Bill of Sales act contemplates voluntary sales made by owners of vehicles, and, in the absence of fraud or collusion, does not comprehend sales under judicial or statutory authority, such sales not being within the mischief intended to be remedied by the act. To hold otherwise would render nugatory the Garage Keepers’ Lien act, and, in the absence of a clear legislative intent to accomplish such u result, that effect should not be accorded to the legislation in question. What was said by this court in the application of similar legislation to the Bulk Sales act of 1915 (at p. 15) is peculiarly appropriate to the situation here presented. Schwartz v. King Realty Co., 93 N. J. L. 111; affirmed, 94 Id. 134.

The judgment under review will therefore be affirmed.


text:
    INTERSTATE CORRUGATED BOX COMPANY, INCORPORATED, PLAINTIFF-APPELLEE, v. PETER STEIGER, TRADING AS UNITED PEPSIN GUM COMPANY, DEFENDANT-APPELLANT.
    Argued January term, 1925
    Decided April 23, 1925.
    Contracts — Judgment for Plaintiff for Breach of Defendant in Refusing to Accept Completed Boxes Ordered — NO Objection or Exception Taken to Witness’ Testimony Upon Which Error is Assigned — No Error jn Admitting Testimony Regarding Trade Customs — Original Contract Not Before Court —Answer and Counter-claim Not Printed in Record- — Judgment-Affirmed.
    On appeal from tire Essex Irvington District Court.
    Before Justices Tren chard, Minturn and Lloyd.
    For tlie plaintiff-appellee, Samuel M. Hollander.

    For the defendant-appellant, Abraham Henig.

   Per Curiam.

This is an appeal from a judgment of the District Court of the Second Judicial District of Essex county, in -which plaintiff obtained a verdict for damages in a suit based on defendant’s refusal to- accept certain completed boxes which defendant contracted to receive.

It is contended* that the court erred in admitting the testimony of one Saltzman. An examination of the record discloses either that timely objection was not made to- the admission of the testimony, or that no exception was taken to the ruling thereon when made. In either event, the objection is futile as a basis for reversal. Doran v. Asbury Park, 91 N. J. L. 651.

It is also urged that the court erred in admitting testimony as to the custom of tire trade. Here, again, there is no-legal presentation of the question. In all the evidence given by the witness upon the pages referred to there was but a single exception taken, and that was taken when no question was pending to which it was applicable. Besides, the objection was based on the ground that, in order to prove a custom, the adverse party must have had knowledge of it, while the witness, had already testified that defendant was familiar with the practice.

It is contended that the court, erred in permitting a witness to testify as to interstate commerce commission regulations. This was on cross-examination, and was an effort to test the accuracy of the witness’ statement that the boxes would not carry ninety pounds. Reference was made to the commission’s regulations, and the witness replied that, irrespective of what was prescribed, practical experience shows that the box will not carry that quantity. Here, again, it is difficult to invoke a proper«exception, but, in any event, the defendant was not harmed, because his. own counsel had already quoted the regulations.

The final contention is that the judge erred in charging the jury that, if they decided the boxes were capable of carrying the weight which the plaintiff said they would carry, then they should find for the plaintiff $367.95.

" This depends on the contract, and the original contract is not presented, being marked “uneipherable” ■ in the state of the case. I incline to1 think the presumption would be that, under the contract, if produced, the plaintiff would be fulfilling the contract if the boxes were of the capacity stated. The plaintiff had demanded a specification of defense. An answer and counter-claim appear to have been filed, but neither is printed in the record returned. Under these circumstances it is impossible to tell whether any question, except that of the capacity of the boxes, was involved in the issue. In the absence of such proof, or a record showing it, the presumption will be that the charge properly submitted all the issues to- the jury. Home Coupon Ex. Co. v. Goldfarb, 78 N. J. L. 146.

The other objections, where they arc not covered by the disposition of the specific objections dealt with, we deem of not sufficient weight or materiality to warrant special discussion.

The judgment will be affirmed, with costs.


text:
    GEORGE H. CLARK, PLAINTIFF-APPELLANT, v. NATHAN SWERSKY, DEFENDANT-RESPONDENT.
    Argued January term, 1925
    Decided April 23, 1925.
    Appeals — Case Previously Considered on Rule to Show Cause and Rule Discharged — It Does Not Appear That Any Exceptions Were Then Reserve^ — This Phase Not Discussed by Appellant — Countenance Should Not be Given to Proceeding Contrary to Spirit of Act and Practice of Superior Courts —Appeal Dismissed.
    On appeal from the East Orange District Court.
    Before Justices Tren chard, Minturn and Lloyd.
    Eor the plaintiff-appellant, Abraham M. Herman.

    For the defendant-respondent, Stein, Stein & Hannoch.

   Per Curiam.

The record shows that the case was tried before the East Orange District Court, June 10th, 1924, and judgment rendered for the defendant for $500 on its counter-claim.

The plaintiff’s demand was for $500 balance due as alleged on the purchase of two hundred and fifty shares of stock of the company.

■ The defense was (1) that defendant never agreed to purchase the stock, and (2), by way of counter-claim, that $500 paid on account thereof or in connection with the stock transaction which the plaintiff had agreed to return to the defendant on request had not been paid. It was on the latter claim that the judgment was rested.

It further appears that ten days after the verdict was rendered, on June 17th, 1924, the plaintiff obtained a rule to show cause why the verdict should not be set aside, and on July 1st the rule was discharged.

It is argued that the matters argued on the rule are the same as those argued on appeal.

This phase of the matter the appellant does not discuss, making no reference to it in his brief, for, obviously, it is clear that there can be no appeal from the order discharging the rule to show cause. The matters argued on the appeal are the failure to direc't a verdict; the charge of the court that the verdict was against the weight of evidence; the admission of evidence, and the failure of the court to charge as requested. Concerning these objections it is enough to observe that the ordinary rule applies that where a party sees fit to invoke the discretionary power of the judge to review the case on a rule to show cause, he waives the right of appeal excepting in so fax as the court sees fit to reserve such matters as a ground of appeal. Rossi v. Benedict, 98 N. J. L. 81.

Here it does not appear that any exceptions were reserved. It is also to be observed that the theory of the District Court act was to give a great mass of litigants an opportunity to obtain an expeditious determination of their cases in a convenient local tribunal. It would seem, therefore, that no countenance should be given to a proceeding which manifestly is contrary to the spirit of the act, and which is contrary to the practice of the superior courts, where this rule is rigidly enforced.

The appeal, therefore, should be dismissed and the judgment affirmed.


author: Pee Cubiam.

text:
    GEORGE BREW, ADMINISTRATOR, ETC., PLAINTIFF, v. LOUIS J. DAVIDSON, DEFENDANT.
    Submitted March term, 1925
    Decided April 23, 1925.
    Negligence — Motor Vehicle Collision — Death of Young Boy — Verdict Not Against Weight of Evidence, but Excessive — If Two Thousand Dollars be Remitted Rule Will Be Discharged.
    On rule.
    Before Justices Kalis ch, Campbell and Black.
    For the plaintiff, Robert H. Doherty.

    For the defendant, Messrs. Kalisch & Kdlisch.

   Pee Cubiam.

This action was brought to recover damages under the Death act. The trial resulted in a verdict of five thousand ($5,000) dollars for the plaintiff. The plaintiff’s intestate was Joseph Brew, a young boy four years eight months and ten days old when he was killed on June the 26th, 1924. He was crossing Harrison avenue, near Bergen avenue, in Jersey Cit3>-, about one o’clock, when he was struck b3’- the defendant’s automobile. The reasons urged for a new trial are, the verdict is against the weight of the evidence and it is excessive. Our reading of the printed book leads us to the conclusion that the verdict is not against the weight of the evidence, but it is excessive. If the plaintiff will remit two thousand ($2,000) dollars of the verdict it may stand for three thousand ($3,000) dollars, in which case the rule will be discharged; otherwise the rule will be made absolute and a venire de novo issue.


author: Pee Cukiam.

text:
    WILLIAM DOUGLASS MOORE, EXECUTOR OF THE LAST WILL AND TESTAMENT OF CHARLES E. W. HARVEY, DECEASED, PLAINTIFF, v. NEWTON A. K. BUGBEE, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided April 23, 1925.
    Taxes and Assessments — Transfer to Take Effect at or After Death — Conveyance Made to Educational Institution With Agreement to Pay Grantor Interest During Life and to Execute Lease Free of Rent — Held, to be Within Statute Imposing Tax.
    On certiorari to the Prerogative Court.
    Before Justices Kalisch, Black and Campbell.
    For the prosecutor, Andrew Foulds, Jr.

    For the defendant, Edward L. Kalzenbach, attorney-general.
   Pee Cukiam.

Charles E. W. Plarvey died July 9th, 1922, a resident of' Essex county, in this state. He left an estate of $93,000, exclusive of certain personal and real property transferred by him during his lifetime to the Moravian College and TheO'logical Seminary.

In «April, 1917, the testator, by agreement, in writing with the board of trustees of the Moravian College and Theological Seminary, agreed that he would pay it, within sixty days from the date of the agreement the sum of $25,000, and also, within the same period, convey to said seminary certain real property known as. No. 40 Hillside avenue, in Glenridge, Essex comAy, New Jersey. In consideration of these transfers, the said college and seminary agreed to pay to the decedent interest on the transfer of the $25,000, at the rate of five per cent, per annum, during his natural life, and, further, to execute a lease to the decedent for the Hillside avemíe property for life, for residential purposes, free of rent, with the provision he keep the premises in repair and pay all proper taxes and assessments thereon, with the further provision that he might sublease the said premises for his own benefit, in whole or in part. These provisions were fully performed and carried out during the life of the deceased. It is conceded that the total value of the property so transferred is $44,000.

The question for determination presented by the undisputed facts above related is whether ox not the trust grafted upon these transfers, as above mentioned, metamorphosed the transaction into a transfer intended to take effect in beneficial possession or enjoyment at death.

On behalf of the prosecutor it is urged that, because at the time the transfers were made to the college there was no statute imposing a transfer inheritance tax, it would not be assumed that there would be such a tax, and, therefore, it could not be fairly contended that there was any attempt to evade payment of a transfer tax thereon. But it seems to us to be inconsequential, in the admitted circumstances of the present case, whether or not it was an attempt to evade the provisions of subdivision 3, section 1 of the Transfer Inheritance Tax act, chapter 228, page 1, 1909, which provide as follows:

“Third. When the transfer is of property made by a resident * * * . by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor,- vendor or donor, or intended to take effect in possession or enjoyment-at or after such death * *

It seems dear, from the trust agreement, that the transfer of tire property was not to' take effect in beneficial possession and enjoyment until the death of the donor had happened. We do not think the question is an open one. The facts presented her© are controlled by the cases of Carter v. Bugbee, 91 N. J. L. 438; affirmed, 92 Id. 390; 98 Id. 84; 118 Atl. Rep. 700.

For the reasons stated the decree of the Prerogative Court is affirmed, with costs.


text:
    STEINER MANUFACTURING COMPANY, PLAINTIFF-APPELLEE, v. JOSEPH KOCHANIEWICZ, DEFENDANT-APPELLANT.
    Argued January term, 1925
    Decided April 23, 1925.
    Contracts — Agreement Contained Provision to “Ship as Soon as Convenient, Subject to Strikes, Accidents or Other Delay”.— Claim That Salesman Promised .Goods on a Day Certain— Not a Part of Written Contract — Evidence Falls Short of Establishment of Fraud.
    Before Justices Teenchakd, Min toen and Lloyd.
    For the defendant-appellant, Charles Bubenslein.

    For the plaintiff-appellee, B. Lewis Kennedy.

   Pee Cueiam.

The defendant below signed a contract to purchase a. meat chopper from plaintiff. The first words of the order, which was not accepted by the plaintiff, are: “Please ship as soon as convenient, subject to strikes, accidents or other delay.” The order was. dated February 28th, 1924. The plaintiff was in St. Louis, Missouri. The agent who took the order was not authorized to accept it for the company. The defendant'in the agreement acknowledged receipt of a duplicate of the agreement. The plaintiff proved the contract, payment of $31.50 of the purchase price and a tender of the machine on March 11th.

The defense was that defendant was. induced to enter into the contract on the false representation of the agent who made the sale. After the evidence on this point had been introduced, the judge, deeming it insufficient, directed a verdict for the plaintiff. From the judgment entered on a verdict, in accordance with the direction, this appeal is taken.

The defense, in its proof, falls short of the proof required to defeat the agreement. This evidence, in substance, was that the defendant told the salesman that the machine was to be delivered by Saturday, March 1st, when he intended to open his new store, which could not be opened without the machine, and that he would not buy the machine 'unless he could get it by that date. That the salesman replied that the machine was on hand, and delivery could be made the next day, or, the latest, March 1st.

That defendant went to his other store and the salesman followed, and said he had neglected to have defendant sign a paper which he needed to show he had made a sale. That the papers were filled out and prepared when the salesman came around. The man requested a check fox $31.50, which was given. When the salesman handed him the papers to sign, defendant asked if the paper provided that the machine would be delivered March 1st, and the saleman replied that it did. Defendant then signed without reading the paper. Not receiving the machine March 1st, defendant stopped payment on the check, and when the machine came, March 11th, he refused to receive it, because not delivered March 1st.

It is now claimed that March 11th (implied from the words “at your convenience”) presented a question for the jury under the written contract, and that the evidence of fraud should have been submitted.

The defendant, however, knew that he was dealing with a St. Louis concern, and that his contract could not be accepted by the salesman; that but two days intervened between February 28th and March 1st, one of which was Sunday. The defendant knew he was signing a contract, and it was his duty to read it before signing it. Not having done so, he was bound by all its terms, unless he made out by clear and convincing proof that material fraud was practiced on him. Edison Co. v. Thirty-two Defendants, 3 N. J. Mis. R. 174.

Had he read the paper he would have found that the salesman could made no representation binding on the plaintiff. The power to sell did not carry a power to make representations binding the plaintiff in the absence of proof of authority. A special agent to sell has only limited powers in this direction. Cooley v. Perrine, 41 N. J. L. 322; affirmed, 42 Id. 623.

Here the authority to hind the principal was forbidden by the contract, which the defendant signed and which, it was his. duty to read.

We think the proof therefore falls short of the legal standard required to establish fraud. It is a representation amounting only to the statement that the machine could be delivered by March 1st, and, further, that, the contract contained that provision when the first line, of the instrument informed the defendant that this was not so. It is clear that he saw enough of the contract when brought to him to know that fact, for he said the contract was. all made out. when the salesman brought it to him. This proof presented a case in nowise stronger than in Fivey v. Railroad, 67 N. J. L. 6'37, where it was held insufficient to. avoid the contract.

The judgment will therefore he affirmed.


author: Pee Cuetam.

text:
    LEON LOPER, PROSECUTOR, v. CITY OF BRIDGETON, DEFENDANT.
    Decided April 23, 1925.
    Municipalities — Violation of Ordinance in Driving Auto Bus Without License — Complaint Contained Three Offenses, Which Judgment was General, Holding Defendant Guilty as Charged, Not Showing Which Offense He was Convicted— Testimony Fails to Show Proof of Two of the Offenses— Summary Criminal Proceedings Strictly Construed and Never Supplied by Intendment of Matter Which Does Not Appear on the Face of Them.
    On certiorari.

    Before Justices Kalisctt, Black and Oamebell.
    For the prosecutor, Rex A. Donnelly.

    For the defendant, Walter TI. Bacon, Jr.

   Pee Cuetam.

The prosecutor, Leon Loper, was convicted in the “acting recorder’s” court of the city of Bridgeton on a. complaint containing three separate counts, charging him that, on the 4th day of February, 1924, at Bridgeton, being then and there the operator of an auto bus, operated an auto bus over the streets of the city of Bridgeton, namely, over Easjt Commerce street, between Pearl street and its easterly boundary line of said city, the said prosecutor, Leon Loper, not being then duly licensed by the city of Bridgeton under the provisions of section 1 of the' ordinance 298. of the city of Bridgeton, as amended by ordinance No'. 311, which amendment was approved December 7th, 1923, and December 12th, 1923.

The second count charged the same character of offense, being committed by the prosecutor on the 6th day of February, 1.924; and the third count charged the prosecutor with committing a like offense on the 7th day of February, 1924.

On this complaint a warrant was issued against the prosecutor, and he was apprehended and brought to trial before the acting recorder, who; after hearing the testimony, gave judgment as follows: “The decision after hearing the testimony — I adjudge Leon Loper, operator of an auto bus, before me, the said mayor, acting recorder of the city of Bridge-ton, guilty as charged in the complaint, namely, violation of section 1 of ordinance No. 298 of the city of Bridgeton, as amended by ordinance No. 311, which amendment was approved December 7th, 1923, and December 12th, 1923. The defendant is by me adjudged guilty, and that he pay a penalty for such violation of $150, and the sum of $17.10, costs of this proceeding. - Total, $167.10.”

Counsel of defendant in his brief says that the facts of the present ease are substantially the same as those reviewed in cases No. 244, 245 and 246 of the February term; that the reasons for reversal are exactly the same as the reasons assigned for reversal in the three cases above mentioned.. Most of the reasons assigned for reversal in the present case were assigned and decided adversely to the prosecutor’s contention. Mr. Justice. Parker, in his opinion in the Supreme Court in Bridgeton v. Zellers, Bridgeton v. Corson and Bridgeon v. Jones, 2 N. J. Adv. R. 856, considered and decided the reasons presented for reversal in those cases, and, as a matter of course, those like reasons, raised in the present case, are controlled by the views expressed in the opinion of tlie Supreme Court. Moreover, the judgment in the cases above referred to was affirmed by the Court of Erorrs and Appeals, so that the matters there decided are no longer open to discussion. In the cases referred to and decided there were seventeen reasons for reversal, whereas in the present case there are nineteen reasons, of which seventeen are identical with those presented and decided.

Of the nineteen reasons here presented only two are open for discussion and consideration. These are as. follows:

.12. “Because the proof in this case was that, as a matter of practice, operators’ permits or licenses to run buses into the city are granted only to the owners thereof, and that, hence, defendant was prosecuted for not obtaining a license which could not he obtained.

14. “The conviction is void, as complainant was charged with three offenses in the one complaint, while the judgment was general, that he was guilty as was charged in the complaint, not showing of which offense he was convicted.”

As. to reason No>. 12, above quoted, we think it is so barren of merit that it may be dismissed without comment. Reason 14 attacks the validity of the complaint, conviction and judgment, which attack appears to he supported by the evidence returned with the writ and by the law relating to complaints, convictions and judgments in penal action of the character under consideration.

A careful reading of the testimony fails to disclose any proof that the prqsecutor was operating the bus on the 6th and 1th days of February, as charged in the second and third count of the complaint. In view of the nature of the conviction and judgment rendered, the absence of any testimony tending to establish that the prosecutor operated the bus on the 6th and. 7th dajrs of February, materially affected the validity of such conviction.and judgment.

Before continuing a further discussion of the validity of the conviction and judgment, it is highly important to- point out here that the ordinance under which the prosecutor was convicted is purely criminal in its nature, but falls within that class of legislation which a municipality may properly exercise by virtue of the police power vested in it. The proceedings are summary. The accused is deprived of trial by jury. It is within the discretion of the magistrate to fine Mm in a sum not exceeding $200, or to sentence him to imprisonment for a term not exceeding ninety days. The proceedings are instituted by a complaint, under oath, following by a warrant, and on conviction by fine or imprisonment. Of such proceedings Lord Denman said: “Pror ceedings in cases of tMs nature, which are to deprive a man of his freedom in a summary way, without letting him be tried by Ms peers-, are alwaj^s construed strictly and never supplied by intendment of matter, which does not appear on the face of them.” Fletcher v. Calthrop. 62 B. 880, 891. The court ought to hold a tight hand over these convictions. Rex v. Corden, 4 Burr. 2281; per curiam, R. v. Daman, 2 B. & Ald. 378. Paley, in Ms learned treatise on Summary Convictions • (at p. 179), says.: “Mr. Sergeant Hawkins likewise assigns,.as a reason for requiring greater certainty in them than indictments, that the defendant has no- opportunity of pleading to these sumlnary forms.” 2 Hawk. c. 25, § 13. This reason is adopted by Lord Kenyon (R. v. Jukes, 8 T. R. 544), and by Lord Mansfield (R. v. Little, 1 Burr. 613), who says:' “Convictions must be taken strictly, and it is reasonable that they should be so, because, they must be- taken to- be true against the defendant, and, therefore, ought to- be construed with strictness.”

It seems to- us- that the present case falls, within the ruling in Asbury Park et al. v. Layton, 69 N. J. L. 559. In that case Mr. Justice Dixon, speaking for the Supreme Court, said: “An examination of the ordinance- as set out in the complaint shows that section 1, subdivision II of the ordinance could be violated otherwise by engaging in the business of carrying passengers for hire with a stage drawn by two horses without a license, and, consequently, the adjudication of the justice fails to show that the defendant was found guilty of the specific charge: made against him. The proceedings before the police justice were summary, and, hence, the record of conviction to be legal, must show with precision of what offense the defendant was convicted.” Killer v. Milledge, 4 Lab. 142; Hoeberg v. Newton, 20 Vr. 617.

And so here section 1 must be read with section 11 of the ordinance, which latter section provides for a penalty of a violation of section 1 as amended. The section could be violated other than by driving an unlicensed bus, for the section of the ordinance, not only provides that the auto bus shall be licensed, but that the driver thereof shall be licensed. A licensed driver of an unlicensed bus would incur a penalty as well as an unlicensed driver of a licensed bus. Now, the situation here is that the recorder found the prosecutor guilty as charged in the complaint. There was no testimony which tended to sustain the charges in the complaint of unlicensed driving on the 6th and 7th days of February by the prosecutor. One thing is made certain by the record of conviction that, though there was no testimony tending to establish the prosecutor’s guilt of any violation of the ordinance on February 6th and 7th, as charged in the complaint, he was, nevertheless, convicted thereof, and the logical assumption would be that, in imposing the penalty, the two unproven charges entered into the judgment pronounced upon the conviction.

The question has: also1 been mooted as to the legal propriety of charging the prosecutor with three distinct offenses in one complaint. While this was a common practice in cases of civil actions to recover penalties, we have not been referred to any case within this jurisdiction holding that distinct offenses, though of like character, committed on different days, can be grouped in one complaint. This cannot be done in indictments, and where it has^ been done in cases of embezzlement in this state, it was the result of express statutory authorization. We have already, pointed out that, because of the summary nature of the proceedings in cases like tire present, a stricter and more rigorous rule is. adopted than in indictment. But we need not decide this question, since we have reached the conclusion that the conviction is defective and should be set aside. See Salter v. Bayonne, 59 N. J. L. 129; Leeks v. Kreps, 70 Id. 121.

Judgment is reversed, with costs.


text:
    EARLINGTON REALTY COMPANY, PLAINTIFF-APPELLANT, v. DAVID BERKOW, DEFENDANT-APPELLEE.
    Submitted February 5, 1925
    Decided April 24, 1925.
    Landlord and Tenant — Action for Rent — Dissolution of Partnership of Leasee — No Evidence of Surrender of Lease as Trial Court Thought — Judgment for Defendant Reversed and Venire de Novo Awarded.
    On appeal from the Orange District Court.
    Before Justices Teenci-iard, Minturn and Lloyd.
    Eor the appellant, Bilder & Bilder.

    Eor the appellee, Carl Olson.

   Per Curiam.

On trial in the District Court the defendant below obtained a verdict of the jurjr on which judgment was entered. Erom this judgment plaintiff appeals.

The suit was to recover $162.50 rent for the month of July, 1923, on. a written lease signed by defendant and a partner. The lease was originally to J. ICordon and David Berkow, who were then partners.

In paragraph 28 of the lease it was provided—

“28th. The tenant is hereby permitted to sublease the said premises to a furrier with not more than the same number of machines, or a jobber without manufacturing, upon, condition,, however, that the tenants will in no manner be relieved from liability hereunder, and they shall be responsible at all times for the payment of the rent herein

And by the nineteenth paragraph—

“19th. The leasee has this day deposited with the lessor the sum of one hundred seventy-five 00/100 dollars, as security for the faithful performance of all terms, covenants and conditions in the within lease contained. It being expressly understood and agreed that if the lessee surrenders said premises or is dispossessed therefrom prior to the expiration of this lease, then, in that event, the said sum of one hundred seventy-five [$175] dollars shall belong to the lessor as liquidated and stipulated damages, and the parties hereto stipulate to treat said deposit as such liquidated damages because they cannot ascertain the exact amount of damage which the lessor would sustain in the event of any breach or violation hereunder. If, however, all terms, covenants and conditions are fully complied with, then, in that event, the said security shall be returned to the lessee at the expiration of this lease.”

The partnership was dissolved on January 20th, 1923, and the property was thereafter occupied by Kordon & Eosenblatt, who acquired possession under a paper-writing whereby the plaintiff consented “to the proper and legal assignment of the lease” to Kordon & Eosenblatt, providing “that none of the parties to the original lease are relieved from any liability under said lease by this consent,” and thereunder there was the written acceptance, signed by Kordon & Eosenblatt, of “the assignment herein before referred to,” and following which there was a writing saying that “the undersigned assigns the security to Kordon & Eosenblatt,” signed by the defendant.

The non-pa3'ment of the July rent was not in dispute, but defendant contended that the conditions and transactions above noted, together with the acts of the parties, constituted a surrender of the premises and released the original lessees. The acts of the parties • claimed to aid the defendant were wholly contained in a conversation between Berkow and, a representative of the plaintiff thus described in the record:

"Q. What was the conversation? .A. I spoke to Mr. Straussman that I am stepping out of the partnership, and Mr. Kordon takes in another partner. I said, ‘will, that release me?’ He said, U don’t care who pays the rent as long as the rent is paid.’ Those are the very words he told me.”

The plaintiff then asked for a direction of a verdict in its favor. This was refused and exceptions noted, and a verdict and judgment as above set out followed.

The question, therefore, for determination is whether under the facts above stated there was any evidence of a surrender of the lease, as the trial judge thought. We think there was no such evidence. It will be noted that the transfer, such as it is, was by one of the tenants onty with, the other tenant and another. The law is entirely settled in this state that while the assignment b3r the tenant of a leasehold to a third person with the assent of the landlord may terminate the privity of estate, it will not terminate the privity of contract in the original lease unless the acts of the parties are sufficient to indicate an abandonment of the contract with the old tenant and the substitution of a new contract with the assignee. Hunt v. Gardner, 39 N. J. L. 530; Wallace v. Kennelly, 47 Id. 242.

The evidence in this case does not disclose anything more than an assignment of the lease to the new tenants and the assent thereto of the landlord, the plaintiff herein, with the remark in response to a question from the former tenant that he did not care who paid the rent so long as it was paid. We think it impossible to extract from this a surrender of the premises by the former tenant, and, this being trae, the force of the contract between the plaintiff and the present defendant still existed and the defendant was liable for the rent.

Perhaps we should point out that the defendant’s “assignment of the security to Kordon & Bosenblatt” was made for the avowed purpose of transferring the defendant’s right or interest therein to the assignee of the lease, and not of vesting the right thereto in the plaintiff under paragraph .19 of the lease.

Of course, when the minds of parties to a lease concur in the common intent of relinquishing the relation of landlord and tenant, and execute this intent by acts which are tantamount to a stipulation to put an end thereto, there at once arises a surrender by act and operation of law. Miller v. Dennis, 68 N. J. L. 323. In that ease explicit proof of an agreement between the landlord and tenant to terminate the lease by a surrender was proven. Our difficulty in the present case is that by no reasonable inference can the conversation between the landlord and the defendant justify a jury in concluding that it was the intention of the parties to terminate the contract; in point of fact the consent executed by the plaintiff is expressly to the contrary.

The judgment below will be reversed and a. venire de novo awarded.


author: Pek Curiam.

text:
    MARY TOWNER, PROSECUTOR-RESPONDENT, v. MANSFIELD TOWNSHIP BOARD OF EDUCATION, APPELLANT.
    Decided April 23, 1925.

    Public Schools — Transportation.of Pupiisi — Question of Residence —Pupil Living at thé Home of Prosecutor in Township of Defendant — Defendant Claims New York as Pupil’s Home— Commissioner■ of Education Overruled Local Board — Township Procured Writ But Did Not Make Either Prosecutor or Pupil Defendant — In Such Case Judgment Will Be of No Effect So Far As Prosecutor’s or Pupil’s Rights are Concerned.
    On certiorari.

    Before Justices Kalis ch, Black and Campbell.
    Por the appellant, Joseph M. Roseberry & Son.

      For the respondent, Wall, Haight, Garey & Hartpence.

   Pek Curiam.

Application was made by Mary M. Towner to the Mansfield township board of education, in the county of Warren, New Jersey, to pay for the transportation of Lillian Baysdorf to the Hackettstown High School and tuition therein for the year 1923. The board of education, by resolution on July 28th, 1923, refused to pay for the transportation and tuition of Lillian Baysdorf upon the ground that she is not a resident of the said township of Mansfield

Thereupon, Mary M. Towner filed a petition with the state. commissioner of public instruction, setting forth that she was a resident of the township of Mansfield; that she stood in locus parentes to Lillian Baysdorf, a minor of the age of thirteen years; that the latter had continuously resided with her for the last two years in said township, and she appeals to the state board of education from decision of the board of education of the township of Mansfield declining to furnish transportation to the Hackettstown High School and tuition fees therein for Lillian on the ground that the board did not consider her a resident of the township, &c.

An answer was filed to the petition by the Mansfield township board of education, in which it set up that the petitioner kept a school advertised as the junior school for children to be educated as far as the eighth grade; that at present she has about ten or twelve pupils; that she makes it a business to furnish these children with board, and she teaches them as far as the eighth grade; that she follows this as a business and receives compensation for boarding said children; that Lillian Baysdorf is at her home, and the father pays for her board and teaching there; that the board does not consider Lillian a resident of the township, but is simply a boarder at petitioner's home; that Lillian’s home is with her parents, either in New York City or Brooklyn, &c. There was a hearing had by the state board, and the testimony of Mary Towner, Lillian and her father was taken, and that of another witness. The state commissioner reversed the decision of the board of education, and held that Lillian was a resident of Mansfield township^ and entitled to transportation and tuition. The board of education of Mansfield township sued out a writ of certiorari to review the decision of the state hoard of education, but neither Mary Towner nor Lillian is made- a party to the proceedings here.^ We think both should be made parties. In the present state of the case a judgment would be of no effect so far as Mary Towner’s or Lillian’s legal rights were concerned. If Lillian is made a party a guardian ad litem would be appointed upon application to the court. Until the record is put in proper shape no further action will he taken by the court.


text:
    EDWARD MEYERS, PLAINTIFF-APPELLEE, v. MORRIS POTOKER, DEFENDANT-APPELLANT.
    Argued January term, 1925
    Decided April 24, 1925.
    Contracts — Wages—Written Contract of Employment — Services Never Rendered Because of Discharge of Plaintiff by Defendant — Question of Grounds of Dismissal as Well as of Notice, Were Questions of Fact, and Since there was Some Evidence, Judgment Will be Affirmed.
    On appeal from the Orange District Court.
    Before Justices Then chard, Minturn and Lloyd.
    Eor the defendant-appellant, William A. Lord.

    Por the plaintiff-appellee, William L. Greenbaum.

   Per Curiam.

This action was tried in the District Court of 'Orange without a jury. The judgment was for plaintiff for $50, being two weeks’ wages. The state of the case, as settled by the court, shows that the action was brought to recover two weeks’ wages alleged to be due under a written contract of employment. The services for which claim was made were never rendered, because of plaintiff’s discharge by defendant. ‘The action, therefore^ should have been for breach of contract. The plaintiff’s duty under the contract was to act as driver or chauffeur of a motor truck, and to make deliveries and perform general work in a coal business.

The contract empowered the defendant to terminate the employment upon one week’s notice, if the plaintiff’s services were not satisfactory. The work to be performed was ordinary mechanical or manual labor, not involving personal taste or fancy, and, hence, the defendant had no legal right to arbitrarily dismiss the plaintiff.

The question of reasonable grounds of defendant’s dissatisfaction, as well as the question whether or not proper notice was given to the plaintiff, were fact questions for a jury, and since there was some evidence which would justify their submission to a jury, we will not review the finding on appeal.

The judgment will be affirmed.


text:
    ELIZABETH ATCHISON, PETITIONER-DEFENDANT, v. COLGATE & COMPANY, PROSECUTOR.
    Submitted March term, 1925
    Decided April 24, 1925.
    Workmen’s Compensation — Injury Resulting From Fall Causing Paresis, or Paresis Causing Fall — Evidence Sufficient to Justify Compensation Commissioner In Concluding Fall Caused Injury — Defendant Falls to Sustain Burden of Proof That Injury was Result of Previous Condition of Employe.
    On certiorari.

    Before Justices. Kaltsch, Black and Campbell.
    Eor the prosecutor, Wall, Haight, Carey & Hartpence.

    Eor the defendant, James R. Jirwin.

   Per Curiam.

This is a workmen’s compensation case. The meritorious question involved is a question of fact.

There was an award by the deputy compensation commissioner, in the workmen’s compensation bureau, of $3,362.56, for the death of William Joseph Atchison, which, on appeal, was affirmed by the Hudson Court of Common Pleas, and $350 allowed the attorney of the defendant in that court. The certiorari was allowed to review that judgment. The prosecutor files seven reasons for setting aside the award and the judgment based thereon.

The undisputed facts show that William Joseph Atchison had been in the employ of the prosecutor for some years as a laborer; that on October 26th, 1922, at about six forty-five p. m., while wheeling a hand truck, helping to unload a freight car, down an incline gang plank, and on the return trip to the car with the empty truck he fell from the gang plank to the sidewalk, some four feet, and was picked np> dazed or semi-unconscious. N o one saw him fall. He died on March 2d, 1924. During his lifetime Colgate & Company paid compensation, amounting to $825.88, under a belief, as the company says, that the paresis from which Atchison died resulted from the fall, but, as they now assert, the fall was the result of the paresis, which was neither caused nor accelerated by any injury or strain sustained while in the employ of the company. The prosecutor, to sustain its position, relies upon the testimony of three doctqrs called as witnesses, Dr. Arthur P. Hashing, Dr. Henry A. Cotton, Dr. George W. King. ■ The defendant relies in answer upon the testimony of Dr. John A. Botti. Robert J. Blair, who was coming up- out of the cellar, and Alexander HaHyburton, who was in the car at the time, were called as witnesses. Ilallyburton heard the truck fall; he got down and picked Atchison up> when Blair immediately came; Blair took Atchison upstairs and changed his clothes. From tins testimony it is legitimate to conclude, as the deputy coraraissioner did conclude, that the accident to Atchison arose out of and in the course of his employment. If the prosecutor seeks to avoid liability for a cause fox which it is not responsible, the burden of proof is on the employer to show such cause. The evidence does not satisfy us of that fact. The question is, whether the fall preceded the seizures and caused an acceleration of a pre-existing disease, which resulted in a general decline to death or whether the disease caused the fall? The testimony is returned in the printed book with the writ and the findings of the deputy commissioner. It would serve no useful purpose to restate the testimony. We think there is sufficient evidence to justify the findings of the deputy commissioner.

The judgment of the Hudson Court of Common Pleas will therefore be affirmed.