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    MAY SMILEY, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF WINIFRED DEMAREST, PLAINTIFF, v. REID ICE CREAM CORPORATION AND STEVE SILINSKI, DEFENDANTS.
    Submitted May term, 1926
    Decided November 11, 1926
    Filed January 6, 1927.
    Negligence — Death of Child Less Than Nine Years Old Caused by Automobile on Public Highway — Evidence Clear There was Negligence on Part of Driver — Verdict of $5,000 For Plaintiff Held Not Excessive.
    On defendants’ rule to show pause.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the defendants, Marshall Tan Tfinkle.

    For the plaintiff, Charles A. Rooney.

   Per Curiam.

This case is before us on a defendant’s rule to show cause. The action was brought under the statute to recover, damages for the death of a child. The case was tried at the Hudson Circuit. The jury returned a verdict for the plaintiff in the sum of $5,000. Application was made by the defendant Eeid Ice Cream Corporation to the trial judge for a rule to show cause, which he denied. Later, application was made to this court by the same defendant. The rule was granted.

The plaintiff’s intestate, Winifred Demarest, was killed by a truck of the Eeid Ice Cream Corporation on August 22d, 1925. Winifred Demarest at the time of her death was eight years and eleven months of age. Her father was dead. Her mother had remarried. The child lived with her mother. On the day of the occurrence of the accident the mother and daughter were upon a trolley car which was going south on Jackson avenue, in the city of Jersey City. Jackson avenue runs approximately north and south. It was crossed by an avenue known as Armstrong avenue, which runs east and west. The child was going to take a message to her mother’s sister, who lived on Ocean avenue, an avenue which was parallel with Jackson avenue and off of Armstrong avenue. The car stopped on Jackson avenue at the north side of Armstrong avenue. Winifred alighted from the car at this point by passing out of the front door. Her mother remained on the car. The child then walked over the crossing towards the northeast corner of Jackson avenue and Armstrong avenue. The car proceeded south on Jackson avenue. Just as Winifred was within a few feet of the northeast corner of Jackson avenue and Armstrong avenue, a truck of the defendant company was proceeding north on Jackson avenue. When the child was five feet from the east curb on Jackson avenue the truck was ten feet from the southerly line of Armstrong avenue. Armstrong avenue was forty feet in width. The truck hit the child before she reached the northeast corner of Jackson and Armstrong avenues, so that while the child was going less than five feet the truck had proceeded about fifty feet. The driver of the truck blew no horn. The right front portion of the automobile struck the child, throwing her a distance of about five feet. The street was dry. The pavement after-wards showed signs of being burned by the application of the brakes. The truck, according to one witness, went from fifty to sixty feet after it struck the child before it was stopped. Another witness testified that the truck went twenty-five feet after it struck the child. The driver had a good view of the street in front of him. He was on his way home at the end of his day’s work. The child was crossing the street, where she had the right to cross, at a crosswalk.

The first contention of the defendant is that the trial court should have granted either the motion to nonsuit or the motion made by the defendant for the direction of a verdict in their favor. We think the facts recited show evidence of negligence which required the question of the defendant’s negligence to be submitted to the jury. The court ruled properly, in our opinion, when it denied these motions.

.The second point contended for by the defendant is that the verdict is excessive. The testimony showed that the deceased child was prepossessing in her personal appearance. She had blonde hair, big eyes, rosy cheeks, a fair, natural complexion, and a fine physique. She was healthy. She had a good voice. While a number of cases can be found in our reports where verdicts have been- rendered for lesser amounts, yet there are reported a number of cases in which verdicts for the death of a child have been sustained in the amount of $5,000 and upwards. In the case of Kopko, Admr., v. New York Live Poultry Trucking Co., 3 N. J. Mis. R. 498, a verdict of $15,000 for the death of a body twelve and one-half years was sustained. A verdict of $5,000 is in no sense so excessive as to shock the conscience or to lead to the belief that the jury were prejudiced against the defendant company.

The defendant also contends that it was improper to admit evidence to the effect that the child could sing well and that she had sung at a vaudeville show where she had obtained a first prize, and that she was of good personal appearance. Evidence of this nature has been quite generally received. Kopko, Admr., v. New York Live Poultry Trucking Co., supra. Jurors are entitled to know the talents, abilities and personal appearance of the deceased, in order to guide them in assessing the amount of the damages as to pecuniary loss. The pecuniary loss would be greater if the child had the talents and earning ability of Jackie Coogan, for example, than if the deceased child were an idiot or of mediocre ability. The only way to arrive at the pecuniary loss sustained is by testimony as to the abilities, &c., of the child.

The rule to show cause is discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ANGELO DIME, PLAINTIFF IN ERROR.
    Argued May 4, 1926
    Decided November 11, 1926
    Filed January 5, 1927.
    Crimes — Writs of Error — Trial Judge Died Without Having Sealed the Exceptions or Certified the Entire Record to the Supreme Court — Judgment Should Not be Set Aside Because of the Impossibility of Obtaining Court’s Signature to Exceptions or Certification of Record — Neither Should Defendant be Deprived of Having His Cause Reviewed Because of the Death of the Judge — Held, That the Record May be Sent to This Court Under the Writ of Error With the Certification by the Stenographer.
    On defendant’s rule to show cause.
    Before Justices Kalisch and Katzenbach.
    For the plaintiff in error, Richard, Doherty.

    For the defendant in error, John Milton.

   Per Curiam.

This case is before us on a rule to show cause allowed by a justice of this court why a judgment of conviction entered in the Hudson County Court of Quarter Sessions against the prosecutor of the rule should not be set aside. The circumstances presented by the record are unusual.

The prosecutor of the rule is Angelo Dime. He was indicted by the Hudson county grand jury at the September term, 1924, for feloniously, unlawfully, willfully, and maliciously taking, stealing and carrying away the sum of $27 belonging to one George McCarty. Dime was tried in the Court of Quarter Sessions upon this indictment. On October 15th, 1924, he was convicted. On October 16th, 1924, he was sentenced by the trial judge, Honorable Hyman Lazarus, to the state prison at hard labor for a maximum period of seven years and a minimum period of four years. On the day he was sentenced Dime sued out from this court a writ of error. On October 24th, 1924, his counsel made a request in writing to the trial judge that the entire record of the proceedings had upon the trial of said indictment be certified and returned with the said writ of error. The writ of error was returnable on November 5th, 1924. On November 14th, 1924, Judge Lazarus died without having sealed the exceptions or certifying the entire record to this court. There appears to have been nothing done in the case until June 19th, 1925, when the rule to show cause mentioned was allowed.

We find no precedent which warrants the setting aside of a judgment of conviction in the Quarter Sessions under a rule to show cause allowed by a member of this court. We are of the opinion that no new trial should be allowed to the defendant merely because it is impossible to obtain the signature of the trial judge to the exceptions taken and to the certification of the entire record. The state ought not be obliged, through the death of the judge, to retry the case. It may be that through the delay incident to the "present situation the state has lost evidence which it could not again obtain. On the other hand, we are of the opinion that Dime should not be deprived of having his cause reviewed through the death of the trial judge. While the statutes require the certification by the judge, we have reached the conclusion that under the maxim of the law which holds that where there is a right there is a remedy, the course we should take in this case is to have the record sent to this court under the writ of error which has been taken out with a certification by the stenographer that it is the entire record. This is, in effect, waiving the signing of the exceptions and the certification by the trial judge that the record is the entire record of the proceedings had before him.

This leads to the discharge of the present rule to show cause, which is accordingly discharged. If counsel for Dime will present to this court such an order as is suggested in this opinion it will be signed by the court and can then be embodied in the record which will be presented to this court under the writ of error taken by Dime.


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    THE BARRETT COMPANY (UNITED STATES FIDELITY GUARANTY COMPANY, ASSIGNEE), v. UNITED BUILDING CONSTRUCTION COMPANY (BOROUGH OF LODI, GARNISHEE).
    Decided December 27, 1926.
    Contracts — Judgment Creditor a Subcontractor — Borough Retained Funds of Contractor Under the Contract to Make Good Defects Which Might Develop — Borough Claimed Such Defects Existed — Held, That a Case For Summary Order Has Not Been Made — Held, Further, That the Rights and Credits Levied on Must be Liquidated by a Suit Either in the Name of the Sheriff or of a Receiver.
    On rule to show cause why moneys in the hands of garnishee should not he paid to assignee of the judgment.
    Before Parker, J., at chambers.
    Por the rule, McDermott, Enright & Carpenter.

      Con Ira, Winnie & Banta.

   Memorandum for the information of counsel.

The judgment creditor was a subcontractor of United Building and Construction Company, principal contractor with the borough of Lodi. Upon the entry of judgment and issue of execution, levy was made pursuant to the supplement of 1915 to the Execution’s act (Pamph. L., p. 182), upon a retained percentage in the hands of the borough applicable to the making good of defects in the contract work, which might develop within the stipulated period after it was accepted as complete, subject to such later claims. The amount is something over $700. The borough showed cause, claiming that defects developed which have not been made good by the eon • tractor; and they appear not to have been made good by th“ borough as permitted by the contract. In view of this last fact, and of the other facts, the assignee of the judgment claims that the court should order the balance paid over to the sheriff in part satisfaction of the judgment.

I do not think a case for a summary order has been made. Section 9 of the supplement (Pamph. L. 1915, pp. 183, 184) authorizes the court to make such an order if the' garnishee “admits” a “debt.” But the garnishee has not admitted it. If thé principal contractor were suing the borough it would be met by a counter-claim of defective work not made good, and the balance due it, if any, would have to be ascertained in the usual manner by a trial.

I consider that this case comes within section 5 of the supplement, and that the rights and credits levied on (in this case the claim to a retained percentage) must be liquidated, to use the language of the statute, by a suit, either in the name of the sheriff or of a receiver. This was the course pursued in Sebring v. Pratt, 91 N. J. L. 393, and seems to be the only way of judicially settling the question whether the borough is liable to those claiming under the contractor, and if so, to what extent.

This leads to a discharge of the rule to show cause. If the assignee of the judgment desires a receiver I will appoint one, although it should be fully as convenient to conduct the litigation through the sheriff, after indemnifying him against costs.


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    SAMUEL KROOP, PLAINTIFF-RESPONDENT, v. AMADEO SCALA AND ANTONIO LEONE, DEFENDANTS-APPELLANTS.
    Submitted May term, 1926
    Decided November 11, 1926
    Filed January 5, 1927.
    Contracts — Contract For the Performance of Labor and the Supply of Materials in Painting Defendant’s House — Defendant Leone Contracted to Build House For Defendant Seala, and Agreed With Plaintiff to do the Painting — Seala, After Work was Partly Finished, Refused to Allow Plaintiff to Continue — After Notice to Both Defendants to Allow Work to Continue, Suit was Brought in District Court and Judgment For Plaintiff — Held, That There was Ample Evidence of Contract, That it was Not Necessary, as Defendants Averred, to Call Either Police Protection or Institute Chancery Proceedings — Sufficient Evidence to Justify Finding of District Court.
    On appeal from the District Court of Perth Amboy.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the defendants-appellants, Karkus & Karkus.

    For the plaintiff-respondent, Jacob M. Klein.

   Per Curiam.

This is an appeal from a judgment of the District Court of the city of Perth Amboy, rendered in favor of the plaintiff below (hereinafter referred to as the plaintiff). Amadeo Seala entered into a contract with Antonio Leone for the erection of a house upon land belonging to Seala in the city of Perth Amboy. The contract between Seala and Leone required that the house be painted. Leone entered into a contract with the plaintiff to do the painting required under his contract with Seala. The agreed price was $1,025. The plaintiff proceeded to clean up the interior of the house, preparatory to painting it. He sandpapered the inside. He primed the outside. He bought a supply of white lead and oil. While he was doing this work Seala informed him that he was a shoemaker and not a painter. The plaintiff quit work. He went to Leone and told him what Seala had said. Leone told the plaintiff to go back to work, lock the doors of the house, and keep Seala out of it. The plaintiff returned to- the house. Seala approached him and told him that if he went into the house to work he would cut his head off. Seala waived his arms and became highly excited. The plaintiff left the premises. He then caused to be served on Seala and Leone notices to the effect that unless they would permit him to continue with- the work he would hold them responsible for the loss of profit on the contract. When Seala was served with the notice he stated to the constable who served him that the plaintiff could not work on the job.

The plaintiff then instituted the present action to recover his loss of profits. The plaintiff testified that it would take one man fifty days to do the work. This made the labor cost $500. The materials would cost $190. The plaintiff testified that he had lost a profit of $336. Seala contended at the trial that he was dissatisfied with the color that the plaintiff was to use. The plaintiff denied that he gave Scala»any color samples. He testified that the work had not progressed sufficiently at the time of Scala’s action to make a final selection of the colors. This, in substance, is the evidence set forth in the state of the case which was agreed upon by the attorneys of the respective parties.

The court, after considering the testimony, gave judgment for the plaintiff in the sum of $395.6.1 damages, and costs. Prom this judgment the defendants have appealed.

The first ground urged by the appellants for a reversal is that the court erred in concluding that a contract existed between the plaintiff and Leone, which was broken by the defendants. On this question there was ample evidence to justify the court in holding that the contract for the work had been made between the plaintiff and Leone. We do not, however, gather from the record that the gravamen of the complaint is that this contract was breached. The claim of the plaintiff is that he was prevented by the interference of Scala from performing the contract, and that it was the duty of Leone who had made the contract with him to afford him the opportunity to perform it. Judgment was given against both defendants. Upon this theory of the case we feel that the evidence submitted to the court justified the court in finding as it must have done to arrive at the decisions which it made that a contract did exist between the plaintiff and Leone, and that Scala prevented the plaintiff from performing his contract, and that Leone, who was under duty to see that the plaintiff had access to the house, had failed to perform this obligation.

The second contention of the appellants is that the plaintiff could have avoided the damage which he sustained by the exercise of reasonable diligence. The reasonable diligence appears from the brief of the appellants to be the obtaining of police protection or a restraining order from the Court of Chancery to prevent Scala from interfering with the performance of the plaintiff’s contract. We are not impressed with this argument. We are of the opinion that it was the duty of Scala to afford the plaintiff an opportunity to enter upon the premises and perform his contract. The plaintiff was not obliged to either call for police protection or institute proceedings in the Court of Chancery for an injunction against Scala. From the evidence submitted we are of the opinion that the court was justified in holding as it must have done that there Avas sufficient evidence of Scala’s interference with the plaintiff to justify the plaintiff in failing to proceed with the Avork. It Avas also the duty of Leone to afford the plaintiff an opportunity to perform his contract. The evidence shows that Leone did nothing to secure for the plaintiff a peaceable entrance upon the premises. The findings of the District Court were findings of fact from Avhich the legal right of the plaintiff floAved. Where there is any evidence to support a finding of fact by a District Court, this court will not reverse the finding of fact on appeal. Breitbart v. Lurich, 120 Atl. Rep. 11 (not officially reported).

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


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    PETER SHIELDS (HARRY DARLINGTON, Jr., ASSIGNEE), PLAINTIFF, v. CAPE MAY REAL ESTATE COMPANY (FRANK D. SCHROTH, RECEIVER, SUBSTITUTED), DEFENDANT.
    Submitted May 14, 1926
    Decided January 18, 1927.
    Judgments — Vacation—Judgment on Bond and Warrant Executed by a Corporation, Through Its President, Upon the Authority of a Majority of the Directors, Afterward Ratified by the Entire Board, to Himself For Moneys Expended For the Corporation’s Benefit — Several Technical Grounds For Vacation Advanced, None of Which Can Impeach Its Validity— Such Judgments are Voidable at the Instance of the Corporation Itself, but Only if the Action is Taken Within a Reasonable Time.
    On rule to open judgment.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor the rule, Lvndley M. Garrison:

    Contra, McCarter & English.

   Per Curiam.

This is an application to the court to open and declare void a judgment in favor of Peter Shields (now assigned to Harry Darlington, Jr.) against the Cape May Real Estate Company. The judgment was entered October 24th, 1917, on a bond and warrant dated October 20th, 1917, in the penal sum of $62,083.50 conditioned for the payment of $31,041.75. The bond itself was executed on behalf of the company by Peter Shields, its president, upon the authorization of a majority of the board of directors present at a meeting held October 20th, 1917, and this action was afterward ratified by the entire board.

The rule to show cause is dated October 28th, 1920, and was obtained by the defendant itself. It was not pressed at the time it was granted, but at a later date, a receiver being appointed, the latter’s counsel, substituted as attorney for the defendant, prosecuted the rule.

The attack on the judgment is based upon several grounds of highly technical character, none of which in our opinion successful impeach its validity or the meritorious basis on which it rested. It was given by the corporation for moneys expended by Shields for its benefit and for services rendered in effecting an advantageous sale of a portion of its property.

While it was confessed by Shields as president he acted by authority of the board of directors. Such a judgment, it is claimed, is voidable at the instance of the corporation itself, but this is only true if the action to annul is taken within a reasonable time. Stewart v. Lehigh Valley Railroad Co., 38 N. J. L. 505. The record shows that a number of meetings, annual and special, of the stockholders were held subsequently; that at none of them was there objection to the giving of the judgment or repudiation of the action of the directors or officers of the corporation in thus securing Shields’ claim. After the granting of the rule it was permitted to lie dormant until the fall of 1925, when depositions were taken under it.

Such a record exhibits laches in the extreme and is not a repudiation within the reasonable time contemplated by the decisions of our court of last resort.

The ride to show cause is discharged.


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    No. 231.
    BOROUGH OF CLOSTER, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT AND HACKENSACK WATER COMPANY, DEFENDANTS. BOROUGH OF HAWORTH, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS. BOROUGH OF EMERSON, PROSECUTOR, v. STATE BOARD OF TAXER AND ASSESSMENT ET AL., DEFENDANTS.
    No. 232.
    No. 233.
    Argued October 5, 1926
    Decided January 19, 1927.
    Taxes and Assessments — Taxes Assessed by Three Boroughs Against a Water Company — State Board Held Them to be Duplicate Assessments, and Whose Findings are Concurred in and Certiorari in Each Case Discharged.
    On rule to show cause. On certiorari.

    Before Justices Paekbe, Black and Campbell.
    For the prosecutors, F. Hamilton Reeve and Frank H. Hennessy.

    For the defendants, Wright, Fancier Burgh c§ McCarthy.

   Per Curiam.

Rules to show cause were allowed in each of the three cases why a writ of certiorari should not issue to review the judgment of the slate board of taxes and assessment cancelling the assessments levied against the Hackensack Water Company by each of the three boroughs, viz.: By the borough of Closter an assessment of $80,000, called reservoir, intake and improvements. By the borough of Haworth an assessment of $117,700, called reservoir and intake. By the borough of Emerson an assessment of $150,000, called reservoir and improvements. Those assessments were canceled by the state board of taxes and assessment on the ground that they were duplicate assessments. With this conclusion of the state board we agree. The state board filed a memorandum stating its reasons for the action taken. That memorandum in part is as follows: “We are now asked by the respondent to add this assessment [i. e., the borough of Closter] to the value of the lands already assessed and on which taxes have been paid. This should not be done, as there is nothing before us to indicate whether or not such a course would increase the assessment of the lands beyond their true value. There was no testimony taken relative to the value of these lands. The appellant contends that we are dealing with a duplicate assessment, while the respondent insists that the board should correct the misnomer, revise the assessment and add the amount in dispute to the assessed value of the land. We prefer to regard this assessment as a duplication, with the result that it is canceled and the action of the Bergen county board of taxation reversed.” We concur in the above reasons of the state board. Hence, the judgment in each of the three cases is affirmed and the rule to show cause why a certiorari should not issue heretofore granted in each ease is discharged.


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    MORRIS BURG ET AL., RELATORS, v. FRANK I. ACKERMAN, SUPERVISOR OF BUILDINGS OF THE CITY OF PASSAIC, RESPONDENT.
    Decided January 18, 1927.
    Zoning — Apa'rtment-House in Restricted Territory — Relator’s Contention That Questions Involved are Outside the Jurisdiction of Board of Adjustment, Not Sustained — Neither Can Relators Stand Successfully Upon the Contention That the Ordinance is an Unreasonable Exercise of Police Power — Presumption is That it is Reasonable Unless Contrary is Shown —Application Denied.
    On rule for mandamus.

    Before Justices Black and Campbell.
    For the relators, Andrew Foulds, Jr.

    For the respondent, Frederick S. Banzenhofer.

   Per Curiam.

Relators applied to respondent on April 29th, 1926, for a permit to erect a four-story, forty-four family apartment-house on lands owned by them and known as Nos. 98 and 100 Passaic avenue, Passaic.

The application was refused because the building, if erected in accordance with the plans submitted, would not conform to the provisions of the building and zoning ordinances of the city with regard to set-back and side and rear yard requirements applicable to buildings in the zone or area in which relators’ lands are located.

Respondent contends that relators are not entitled to a writ of mandamus because they have not taken an appeal to the board of adjustment seeking that body’s judgment under Pamph. L. 1926, p. 526, as construed by Chancellor Development Corp. v. Senior, 4 N. J. Mis. R. 633.

Belators contend that the questions involved in this proceeding are not such as the board of adjustment are given jurisdiction over, even by the' above statute (Pamph. L. 1926, p. 526), and that the provisions of the ordinances invoked are an unreasonable exercise of the police power, and, therefore, ineffective.

We think the first contention of relators is not tenable, but that the board of adjustment has jurisdiction to determine from proofs brought before it whether or not the proposed building erected on the lands in question, and in noncompliance with the before specified provisions of the ordinances, would constitute a menace to the public health, safety, morals and general welfare of the city.

Neither can relators stand successfully upon their second contention, because the presumption is that the requirements and regulations in question are reasonable unless the contrary be shown, and there is before us no proof upon that question.

The application is therefore denied, and the rule to show-cause is discharged, with costs.


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    ADAM HABERLAND, RELATOR, v. TOWNSHIP OF MAPLEWOOD ET AL., RESPONDENTS.
    Decided January 18, 1927.
    Zoning — Prohibited Buildings in Restricted Territory — State of Case Does Not Bring Before Court the Ordinance, nor is There Proof That Provision Has Been Made For Board of Adjustment — These Matters Not Raised on This Application and a Peremptory Writ Awarded.
    On rule to show cause for mandamus.

    Before Justices Parker, Black and Campbell.

      Eor the relator, Frederic W. Schlosstein.

    Eor the respondents, Samuel D. Williams.

   Per Curiam.

Relator applied to the building inspector of the township of Maplewood on May 28th, 1926, for a permit to erect a two-story brick building containing four stores and three flats, upon lands owned by him situate at Lincoln Place and Yalley street, in that municipality. The agreed state of facts shows that the application, plans and detail specifications are in accordance with the building line ordinance and the building code, and that the only reason for the refusal of the permit was the fact that the area in which relator’s property is situated is zoned against stores and flats.

This application for permit was made after the supplement to the act entitled “An act concerning municipalities” (Pamph. L. 1926, p. 526) became effective, enlarging powers of boards of adjustment.

The state of ease, however, does not bring before us the zoning ordinance of the township, nor have we before us any proof that such ordinance makes provision for a board of adjustment, and, therefore, we are unable to determine whether the rule laid down by Chancellor Development Corp. v. Senior, 4 N. J. Mis. R. 633, applies.

As this matter has in no manner been raised upon this application by authority of' the repeated decisions of this court and of the Court of Errors and Appeals, the relator is entitled to, and there is awarded to him, a peremptory •writ of mandamus.


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    HAROLD PRICE, Jr., PLAINTIFF, v. CARLO CERCLIEO AND JAY AITKEN, DEFENDANTS.
    Decided January 18, 1927.
    Assault — Damages—Punitive Damages Not Asked, but Tria! Court Said They Might be Allowed — Held, Error, but Verdict Need Not be Set Aside on That Account — Examination of Proofs Brings Court to Conclusion That Plaintiff Will be Fairly Compensated by a Verdict of $1,750, the Verdict of the Jury Being $2,000 — If This Amount is Accepted the Rule Will be Discharged.
    On rule of defendant Aitken for new trial.
    Before Justices Black and Campbell.
    Eor the rule, Winne & Banta.

      Gon Ira, Peder & Rinzler.

   Per Curiam.

Plaintiff was assaulted and beaten in a road house operated by the defendants. The act was committed by the defendant Cerclieo in the absence of the defendant Aitken. Cerclieo was not served with process, and although Aitken filed an answer he was not present or represented at the trial of the cause.

Plaintiff has a verdict of $2,000, which we are asked to set aside for three reasons:

1. Punitive damages were not demanded, but, nevertheless, the trial court instructed the jury that they might allow them.

2. The court charged the jury that the defendant Aitken was liable in punitive damages.

3. The court charged the jury that the defendant Aitken was responsible for all the acts ’of his partner.

It must be conceded that the trial court was in error in instructing the jury that they might find punitive damages, but that does not necessarily require a setting aside of the verdict because the error can be urged only upon the question of the excessiveness thereof.

An examination of the proofs brings us to the conclusion that excluding the element of smart money the plaintiff will be fairly compensated by a verdict of $1,750.

If, therefore, the plaintiff will consent to a reduction of the verdict to $1,750, the rule to show cause will be discharged, otherwise it will be made absolute.


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    FRED TOSCANI, BY HIS NEXT FRIEND, ANTHONY TOSCANI, AND ANTHONY TOSCANI, PLAINTIFFS, v. ABE LITSKY, DEFENDANT.
    Decided January 18, 1927.
    Negligence — Boy Injured While Employed in Work Prohibited by Statute — Judgment Against Both Employer, Corporation, and These Defendants, the Employing Superintendent— Judgment Not Yet Paid by Employer Corporation, and This One Will Not be Set Aside — Other Grounds For Rule Not Sustained.
    On defendant’s rule for new trial.
    Before Justices Black and Campbell.
    Eor the rule, Harry H. Weinberger.

    Contra, Feder & Binzler.

   Per Curiam.

The action was brought to recover damages for injuries to the minor plaintiff, a boy of fourteen years of age, and the resulting loss to the other plaintiff, his father.

The injuries resulted while the boy was engaged in work prohibited by the statute, known as “An act regulating the age, employment, safety, health and work hours of persons, employes and operatives in mercantile establishments” (Pamph. L. 1911, p. 194), and the supplements and amendments thereto.

The infant plaintiff has a verdict for $800 and his father for $200.

We are asked to set these verdicts aside for several reasons:

3. Because plaintiffs already have a judgment against the National Compo Company in a suit based upon the same cause of action. This company was the employer, while the defendant in the present action was’ its superintendent and agent who actually employed the infant and directed the work to be performed by him. The proofs are that the judgment against the Compo company has not been paid either in whole or part. This ground is therefore unavailing.

2. Eefusal to nonsuit upon the ground that the liability is that of the employer and not that of this defendant.

But this is without merit because the prohibition of the statute before referred to reaches not only to the employer but the officers and agents of a corporation and the members of any firm.

3. That the verdicts are excessive. They clearly are not.

4. That the court erroneously permitted testimony as to improper ventilation of the working place.

This was alleged in the complaint, and although there was proofs thereof, it was not pursued and no reference was made thereto by the trial court in the instruction to the jury.

5. That court erred in charging that there was no disputed facts. We find the charge legally correct in respect to this complaint against it.

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


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    ATTILLIO RICCI, RELATOR, v. FRANK A. MEYER ET AL., BUILDING COMMITTEE OF THE BOROUGH OF CLIFFSIDE PARK ET AL., RESPONDENTS.
    Decided January 18, 1927.
    Building Permits — Apartment-House—Building Code Examined and Held Violative of Constitutional Rights — Peremptory Writ Awarded.
    On rale for mandamus.

    Before Justices Black and Campbell.
    Eor the relator, John H. Sheridan.

    For the respondents, Arthur M. Agnew.

   Per Curiam.

This is an application for a writ of mandamus to compel the issuance to relator of a building permit for the erection of a four-story, thirty-four family apartment-house on lands of relator, situate on the southerly side of Knox avenue, in the borough of Cliffside Park. Application was made to the building inspector, who denied it, and then the matter was brought before the borough council at a meeting held September 13th, 1926, which body also denied the application upon the ground that the proposed apartment-house, if constructed, would violate the set-back regulation of the building code as well as the provisions of the zoning ordinance.

The zoning ordinance regulates and restricts development in Knox avenue, in the section where relator’s property is situated, to one and two-family houses.

Section 18 of the building code provides as follows: “Where at least one-half of the buildings situated on either side of the street between two intersecting streets conform to a minimum set-back line, no new buildings shall be erected and no existing building shall be reconstructed or altered to project beyond such set-back line.”

Such a provision in an ordinance we think so clearly violates the constitutional rights oí property owners as not to permit of argument or require citation of authority.

The other reasons assigned by respondents against the allowance of the writ applied for are such only as have been repeatedly passed upon by the Court of Errors and Appeals and this court, adversely to respondents’ contentions.

The question of appeal to the board of adjustment is not raised by respondents nor have we before us any proof that such a board or body exists in the borough of Cliifside Park.

A peremptory writ of mandamus is therefore allowed, with costs.


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    EDO VAN WINKLE, RELATOR, v. JOHN QUIGLEY, INSPECTOR OF BUILDINGS OF THE CITY OF PATERSON, ET AL., RESPONDENTS.
    Decided January 18, 1927.
    Zoning — Apartment-Houses in Restricted Territory — Court Without Advice Regarding the Existence of Board of Adjustment —Respondent Filed No Brief — Peremptory Writ Awarded.
    On rule for mandamus.

    Before Justices Black and Campbell.
    Eor the relator, Evans, Smith & Evans.

    Pot the respondents, Randal B. Lewis.

   Per Curiam.

Eelator applied to the inspector of buildings of the city of Paierson, oil May 25th, 1926, for a permit to erect an apartment-house five stories in height, to accommodate fifty families, on premises owned by him on the northeast comer of Broadway and East Twenty-seventh street. The permit was refused solely upon the ground that the zoning ordinance of the city prohibited such a structure as proposed in the location or area in which relator’s lands are located. It is admitted that relator had complied with all other conditions and regulations entitling him to such permit. ■

As this application, and its refusal, was made and. took place after the supplement to the Home Rule act (Pamph. L. 1926, p. 526), increasing the jurisdiction of boards of adjustment, the procedure laid down in Chancellor Development Corp. v. Senior, 4 N. J. Mis. R. 633, should have been followed if the zoning ordinance of the city creates a hoard of adjustments or a like body.

The case as presented to us does not show us anything upon this point, and as the respondents have filed no brief we have' no assistance in that direction.

In view of this situation and in line with the long line of cases both in the Court of Errors and Appeals and this court, the peremptory writ of mandamus is allowed.


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    ANTHONY LUCA, BY VINCENTINE LUCA, HIS NEXT FRIEND, AND VINCENTINE LUCA, PLAINTIFFS, v. C. H. WINANS COMPANY, DEFENDANT.
    Decided January 18, 1927.
    Negligence — Injury Caused by Contact of a Motorcycle With a Pile of Sand Left In the Roadway by a Reconstruction Contractor — Verdict Asked to be Set Aside Because Road was Closed to Traffic and Plaintiff was a Trespasser or at Best a Licensee — Other Reasons Alleged — Held, That the Verdict Should Not be Disturbed.
    On defendant’s rule to show cause for new trial.
    Before Justices Black and Campbell.
    Eor the rule, Mark Townsend, Jr.

      Contra, Francis A. Gordon.

   Per Curiam.

The defendant was engaged, under contract with the board of freeholders of the county of Union, in repairing or resurfacing Springfield avenue from Summit to the Passaic Eiver bridge.

On September 25th, 1924, the plaintiff, Anthony Luca, a minor aged seventeen years, while riding on the rear seat of a motorcycle operated by one Olsen, was injured by being thrown as the motorcycle struck a pile of crushed stone placed by the defendant partly upon the roadway of Springfield avenue, and left, as is contended, unguarded by a light or other proper barrier. The accident happened after night fall. Action was brought against defendant and upon a trial thereof at the Union Circuit the infant plaintiff obtained a verdict of $5,000 and his father a verdict of $2,000.

Three reasons are urged why these verdicts should be set aside.

1. Error in refusing to direct a verdict for the defendant because Springfield avenue had been closed to traffic by the board of chosen freeholders of Union county, and, therefore, the infant plaintiff was a trespasser, or, at best, a mere licensee, and there was no evidence of willful wg:ong-doing.

2. Refusal to charge requests 3, 4, 5 and 7 of defendant, and error in -charging plaintiffs’ request No. 6.

Our examination and consideration of the proofs and these reasons brings us to the conclusion that the verdicts should not be disturbed.

In some respects this case is not unlike that of Sadlon v. Jannarone, 132 Atl. Rep. 749.

The rule to show cause is discharged, with costs.


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    MORRIS BERMAN, PLAINTIFF, v. SINDEL, SCHIFF & COMPANY, INCORPORATED, DEFENDANT.
    Submitted May 14, 1926
    Decided January 18, 1927.
    Contract's — Employment—Employment For One Year — After a Short Time Employe was Discharged — Proofs Examined and Held, That the Verdict For the Plaintiff Should Not be Disturbed.
    On rule to show cause.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Por the rule, Barison & Kriegel.

    Contra, Jacob 8. Spiro.

   Per Curiam.

This was an action in the Supreme Court tried in the Hudson Circuit. There was a verdict for the plaintiff and a rule for a new trial was allowed by the Circuit Court judge. On this rule the defendant seeks to have the same made absolute because the court refused to control the case by the entry of a nonsuit or the direction of a verdict for the defendant, and because the verdict was contrary to the weight of the evidence.

The plaintiff had previously been employed by the Woodbine Clothing Company, at Woodbine, New Jersey, as its foreman and manager. The plaintiff’s evidence indicates that while so employed he was sent for to visit Isaac Sindel, president of the defendant company, at his residence in Atlantic City, and was there asked by Sindel if he would go to work in the defendant's clothing factory at Egg Harbor City, with general supervision over it. To this Berman assented and was promised a written contract. On the following day he was taken to the defendant’s factory at Egg Harbor by Sindel in the latter’s automobile and introduced to the employes as the new manager, his services commencing at once. Shortly after this interview he received from the defendant company a written paper dated January 2.1st, 1925, and signed by it, purporting to be a contract between the defendant and the “party of the second part” for the employment of the “party of the second part” from January 26th, 1925, to January 26th, 1926, at a salary of $500 per month. Berman further testified that, at the end of seven weeks he was discharged without cause: that he did not get new employment until June 5th, 1926, when he went to work at $100 per week.

The action was to recover for the consequent loss based on the breach of the term of his employment from January 26th, 1925, to January 26th, 1926. The motion for nonsuit was rested on the grounds that the purported contract was not complete on its face in that it referred to a party of the second part without name; that there was no proof that the agreement was signed by the defendant, and that the plaintiff failed to prove that the contract was ever delivered to him. The motion for a direction was on the same grounds, to which was added that it was not signed by the party to be properly charged with the contract.

To the grounds presented to the trial judge it is now sought to add that the contract was within that provision of the statute of frauds which requires that any contract not to be executed within a year must be in writing. This point was not made to the trial judge, nor was the statute pleaded, and while it was perhaps permissible that the defendant avail itself of the statute by virtue of a denial of the contract, yet we think it was incumbent on the defendant to raise this ground in the motions made for a nonsuit and for a direction if it is to be availed of here.

Our reading of the testimony convinces us that the jury was justified in finding that the plaintiff left a satisfactory employment to go with the defendant; that he was employed by its officers for a year; that he remained with it for a considerable period of time; that he was then dismissed, and that this dismissal was without adequate cause.

Nor are we convinced that the proofs were not sufficient to prove that the contract was made with authority of the defendant. It was an employment in the line of the company’s business by the president and vice-president, and such would seem to be a legitimate function of executive officers.

Under all the circumstances we conclude that upon none of the reasons assigned should the verdict be distributed, and the rule to show cause is accordingly discharged.


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    ELIZABETH OLLEMAR, PLAINTIFF-RESPONDENT, v. BOARD OF EDUCATION OF IRVINGTON, IN THE COUNTY OF ESSEX, DEFENDANT-APPELLANT.
    Submitted May 14, 1926
    Decided January 18, 1927.
    Eminent Domain — Legal Tender — Award Paid by Check of Board of Education — Plaintiff Refuses to Accept on Two Grounds, Lack of Legal Tender Nature of Payment, and Because of the Particular Endorsement Required — Defendant Claims Under the Statute That it Can Disburse Money Only by Check — Check Passed Back and Forward Several Times, and Finally Remained With Defendant — Held, That the Endorsement Required, Raised Questions of Doubt Sufficient to Justify Refusal, and That Since the Statute Requiring Payments by Check Also Required Endorsement by Person Entitled to Receive the Amount, the Verdict of the Trial Court Will Not be Disturbed.
    Oil appeal from the Essex Circuit Court.
    Before Justices Kalisch, Katzbnbacii aiul Lloyd.
    For the appellant, Charles H. iUewarl.

    For the respondent, Aaron M arder.

   Per Curiam.

The action in the trial court was to recover the amount of an award in condemnation. In January, 1920, the board of education of the town of Irvington sought to purchase for the price of $20,000 a tract of land on South Grove street, in the town, property of Elizabeth Ollemar, but the price was not acceptable to Mrs. Ollemar and condemnation was resorted to by the board; a petition to that end being filed on July 17th, 1920. This resulted in an award of $27,000 for the property, which award was filed September 29th, 1920.

The award was not paid to the owner, but a check was drawn on the 15th day of October, 1920, to the order of Mrs. Ollemar for $27,000, and containing the endorsement “for and on account of the purchase of property corner South Grove street and Berkley Terrace.” This check was later in the same month delivered to Adrian Riker, Mrs. Ollemar’s attorney in the condemnation proceedings, who in turn handed it to his client. No appeal was taken from the award, nor was the check cashed. It was, however, retained by the respondent until January, 1921. In the meantime, during the month of December, 1920, Albion C. Christian, president of the board of education, learning that the check had not been cashed, called on the respondent and was told that she declined to accept the cheek because of the Berkley Terrace notation and that she also wanted the interest. It resulted in Christian offering to give her another check, but this she refused. Negotiations between a Mr. Erazier, a member of the bar, and the board 'then took place looking to an adjustment of the differences, but respondent repudiated Erazier’s authority and declined to accept checks which he had received from the board.' The matter dragged along, the original check passing back and forth between appellant and respondent and finally remaining in the possession of the latter. Nothing further being done the present action was brought to collect the principal of the award, with interest from July 17th, 1920. It was heard by Judge Mountain without a jury and resulted in a verdict and judgment for the plaintiff for $35,410.50, being the amount of the award with interest from its date, September 29th, 1920. Erom this judgment the defendant appeals.

The issue made by the pleadings was confined to that made by the plea of payment.

The question, and the only one, presented on the record is whether the giving of the cheek by the appellant and its receipt and retention by the respondent constituted payment. The learned trial judge held that it did not.

Appellant offers a number of reasons in support of its contention that the award was paid. The first is that it was obliged under the law to pay the award by check and not in the usual legal tender mode by delivery of cash. The controlling statute it claims is the act of 1903, section 62 of article 6 of the School law of 1903, page 23, and section 184 of the same act as amended in 1915, page 644. The first applies only to city school moneys and can have no application here. The second provides that “in each school district there shall be a custodian of school moneys who shall receive and hold in trust all school moneys belonging to such school district, and shall pay out the same only on orders signed by the president and district clerk or secretary of the board of education. Each order shall specify the object for which it shall be given and shall be made payable to the order of, and shall be endorsed by the person entitled to receive the amount named therein.”

In this situation it is appellant’s contention that it could only pay in the manner in which it did. The difficulty with this contention is that the check was finally rejected by Mrs. Ollemar partly on account of the absence of interest, but primarily because of the endorsement; she claiming that the words “for and on account of the purchase of property corner South G-rove street and Berkley Terrace” might effect a larger interest in the property than could be acquired by condemnation. We think there is much force in this objection. The statute requiring the order to specify the object also requires the endorsement by person entitled to receive the amount, and this would seem to be a valid reason for refusal on the part of Mrs. Ollemar to accept the check in that form.

It is next contended that the check itself was legal tender unless objection to for the reason that it was a check and not cash. The answer to this is that there was no plea of a tender which could affect only the running of interest and the payment of costs in any litigation to recover to award.

It is also claimed that the retention of the check of $27,000 by the respondent for a period of two months before any objection was made to it, and thereafter for a further period of one and a half months, constituted, in substance, an acceptance of the check in lieu of cash, and numerous authorities are cited which it is claimed support this contention. A number of these authorities, analyzed, pertain to the law of tender rather than the law of payment. Some of them, however, deal with the direct effect of the retention of a check as payment of the indebtedness, such as Columbus Life Insurance Co. v. National Life Insurance Co. (Supreme Court of Ohio), 125 N. E. Rep. 664. The receipt of the check and its retention and the circumstances under which it is received and retained may well present in its effects a mixed question of law and fact. In the present case the check was received by respondent’s attorney in the condemnation proceeding. It was shortly thereafter forwarded to the respondent and. retained by her for approximately a period of two months. It was minus a small amount of interest computed at any date from which interest might be payable,-and contained the objectionable endorsement. Whether upon receipt the respondent was obliged to affirmatively protest against its insufficiency or its improper form within that period at the peril of having the same constitute a payment in full of her award, and thereby substituting the check as a basis of liability only, we think presented at least a question of mixed' law and fact for the trial judge. Inasmuch as the judge’s conclusion is in favor of the respondent, plaintiff below, all findings necessary to support that judgment are necessarily findings in favor of him for whom judgment is rendered, if the evidence will support such findings. Practice act of 1912, section 75, page 255. To the findings of the trial judge,' expressed or implied, there is no exception in the record, and inasmuch as our conclusion is that the judgment was justified on all the facts or blended law and facts, which it was permissible for the judge to determine under the evidence in favor of the plaintiff, the judgment should not be disturbed. Webster v. Freeholders, 86 N. J. L. 256.

It is accordingly affirmed.


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    WILHELMINA POWELL, PROSECUTRIX, v. CITY OF CAPE MAY ET AL., DEFENDANTS.
    Submitted May term, 1926
    Decided January 13, 1927.
    Municipalities — Ordinances—Conviction For Peddling Without License.
    Oil certiorari.

    Before Justices Pabkeb, Black and Campbell.
    Eor the prosecutrix, Wescott & Weaver.

    For the defendants, Ernest W. Lloyd.

   Per Curiam.

The writ of certiorari in this case was allowed to review the alleged conviction of the prosecutrix for violating an ordinance of the city of Cape May, for peddling farm produce, without first having taken out a license, in compliance with a city ordinance.

The record shows as follows: Transcript from the docket. “September 5th, 1924, complaint filed. Defendant brought in by Chief of Police Jefferson Gibson, without warrant. Defendant pleaded guilty to the complaint and therefore was fined $50 and costs. Bail taken orally, with J. Clarence Gallagher as surety; no bond signed, for further hearing. Case dismissed and no fine or cost paid.

Charles B. Shields,

Justice of the Peace.”

There is no judgment in this case and there is nothing for us to review in the record.

The writ of certiorari is dismissed.


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    HYMAN GREENSTEIN, PLAINTIFF, v. SAMUEL DEMBLING, DEFENDANT.
    Decided January 18, 1927.
    Negligence — Inadequacy of Verdict — Plaintiff Seriously and Permanently Injured — Verdict Will be Set Aside Only as to Inadequacy of Award.
    On plaintiff’s rule for new trial.
    Before Justices Black and Campbell.
    Por the rule, Benjamin M. Weinberg.

      Contra, John W. McQeehan, Jr.

   Per Curiam.

Plaintiff has a verdict of $6,500. Under the rule to show cause and the reasons assigned the sole ground urged for setting aside this verdict is its alleged inadequacy. The plaintiff was seriously and permanently injured. His hip was fractured and the injury resulted in a shortening of'his leg two and one-quarter inches and a paralyzing or loss of function of a foot.

His medical and hospital bills amounted to $736.35 and his loss of earning up to the time of trial amounted to about $5,000, thus leaving him, by the verdict, less than $1,000 for pain and suffering and disability.

We think the verdict is clearly inadequate. The defendant argues that if set aside the verdict should be set aside in all respects as the evidence of negligence is doubtful. We conclude that this is not so, but that on the contrary the proofs in that direction are most convincing.

The rule to show cause is made absolute, and a venire de novo awarded as to the question of damages only.


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    RAHLE BLOOM, RELATOR, v. THOMAS J. DOWLING, INSPECTOR OF BUILDINGS OF THE CITY OF ORANGE, AND THE CITY OF ORANGE, RESPONDENTS.
    Submitted May 14, 1926
    Decided January 18, 1927.
    Zoning — Stores in Restricted Territory — Case Within Ignaciunas v. Risley — Peremptory Writ Awarded.
    On writ of, mandamus.

    Before Justices Kalisch, Katzenbach and Lloyd.
    For the relator, Phillip J. Scholland.

    For the respondents, William A. Calhoun.

   Per Curiam.

This matter is before us on demurrer to the respondents’ return to an alternative writ of mandamus. The relator applied to respondent, the building inspector of the city of Orange, for a permit to erect a two-story building containing a ground floor of six stores and a second floor of four apartments on a lot owned by him at the corner of Park avenue and Day street, in that city. The application was refused by the building inspector on the ground that the lot upon which the building was to he erected was in a part of the city zoned by ordinance for residences only. The present writ was then allowed.

An examination of the petition for the; writ and of the return to the writ itself evinces that the case falls squarely within the decision of the Court of Errors and Appeals in Ignaciunas v. Risley, 98 N. J. L. 712.

The facts not being in dispute, a peremptory writ will be awarded.


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    NEW JERSEY POWER AND LIGHT COMPANY, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS.
    Submitted October term, 1926
    Decided January 19, 1927.
    On certiorari.

    Before Justices Black and Campbell.
    Eor the prosecutor, King & Vogt.

    Eor the state board of taxes and assessment, Francis H. McGee, assistant attorney-general, and Edward L. Katzenbach, attorney-general.
    Eor the township of Greenwich, William P. Tollman.

   Per Curiam.

By a writing, it is stipulated that this case and No. 209, Eastern Pennsylvania Power Co. v. State Board of Taxes and Assessment, are to be argued together in one brief; the same question being involved in both cases.

The taxes of the prosecutor are confirmed and the judgment of the state board of taxes and assessment is affirmed, for the reasons stated in our opinion in that case No. 209.


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    ANDREW PECZAR, PETITIONER-RESPONDENT IN CERTIORARI, v. RYAN LEATHER COMPANY, RESPONDENT-PROSECUTOR IN CERTIORARI.
    Decided January 18, 1927.
    Workmen’s Compensation — Artificial Limbs — Act of 1919 Specifically Provided For Artificial Limbs, but the Amendment of 1922 Omits Such Specific Language — Held, That the Legislative Purpose was to Eliminate Any and All Provisions For Them in Later Enactment.
    On certiorari.

    Before Justices Black and Campbell.
    Eor the prosecutor, Jacob Schneider.

    For the respondent, Alfred G. Nowalcoshi.

   Per Curiam.

This writ brings up for review the judgment of the Essex County Common Pleas, affirming the judgment of the deputy commissioner of compensation, requiring the prosecutor to provide the respondent with an artificial hand for the right arm, and awarding a counsel fee to his attorney.

In an accident arising out of and in the course of his employment, respondent lost his right hand at the middle third of the forearm.

He was awarded for such injury full compensation under the statute. He then made an application to the compensation bureau for an order requiring his employer to furnish him with an artificial hand. Such order was made and, upon appeal, affirmed by the Essex County Common Pleas Court.

The correctness of the judgment under review depends upon the construction placed upon paragraph 1, chapter 245, Pamph. L. 1922, amending paragraph 14, chapter 93, Pamph. L. 1919. Pamph. L. 1919, ch. 93, ¶ 14, specifically provides for “artificial limb or other mechanical appliances.” This language is omitted from the act of 1922 above referred to. The nearest approach thereto is the use of the word “appliances” in the following connection: “* * * unless the

injured workman or the physician who treats him or any other person on his behalf shall file a petition with the workmen’s compensation bureau stating the need for such physician’s or surgeon’s services in excess of $50 aforesaid, and such hospital services or appliances in excess of $50 as aforesaid, and the workmen’s compensation bureau, after investigating the need of the same, and giving the employer an opportunity to be heard, shall determine that such physician’s and surgeon’s treatment and hospital services are or were necessary, and that the fees for the same are reasonable, and shall make an order requiring the employer to pay for or furnish the same.”

In view of the fact that the act of 1919, supra, specifically provides for artificial limbs, and its amendment of 1922, supra, omits such specific language, leads us to the conclusion that the legislative intent and purpose was to eliminate any and all provision for them in the later enactment.

The judgment '-ikler review is therefore reversed.


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    CONSTANCE BOTYRIUS AND JOSEPH BOTYRIUS, HER HUSBAND, AND JOSEPH BOTYRIUS, INDIVIDUALLY, PLAINTIFFS, v. PETER SUBACHIS, DEFENDANT. GEORGE KATELUS, Jr., BY NEXT FRIEND, GEORGE KATELUS; ELLA KATELUS AND GEORGE KATELUS, HER HUSBAND, AND GEORGE KATELUS, INDIVIDUALLY, PLAINTIFFS, v. PETER SUBACHIS, DEFENDANT. DOROTHY SMITH, BY NEXT FRIEND, JOHN SMITH, AND JOHN SMITH, HER HUSBAND, AND JOHN SMITH, INDIVIDUALLY, PLAINTIFFS, v. PETER SUBACHIS, DEFENDANT.
    Decided January 18, 1927.
    Negligence — Automobile Collision — Contributory Negligence Not Shown — Verdict Not Against Weight of Evidence and Verdict Not Excessive.
    On application for rule for new trial.
    Before Justices Black and Campbell.
    For the rule, Frank G. Turner.

      Contra, Isidor Kalisch.

   Per Curiam.

These three causes were tried together at Union County Circuit, The actions were for personal injuries and also damages to an automobile resulting from a collision on Richmond avenue, Staten Island, on July 7th, 1925. Each of the plaintiffs obtained verdicts. Application was made to the trial judge for rules to show cause, and such application was denied by him. The application for such rules is now made to this court.

The points urged are:

1. A nonsuit should have been granted because no negligence was established against the defendant and because of the contributory negligence of the plaintiffs.

2. The verdicts are against the weight of the evidence.

3. The verdicts are excessive.

Our examination of the matter satisfies us that the application for the rules should be denied, and it is therefore denied, with costs.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. TONY MILOSH, PLAINTIFF IN ERROR.
    Submitted May 14, 1926
    Decided January 18, 1927.
    Crimes — Carnal Abuse — Not Necessary For Indictment to Aver That Defendant was a Male — Though Case Rested Largely on Testimony of the-Girl, it Does Not Appear That Jury Acted Improperly or Made a Mistake — Refusal of Trial Court to Allow Greater Part of Defendant’s Testimony to be Taken Through Interpreter was Not Error, in View of Defendant’s Ability to Speak English When He so Desired.
    On writ of error.
    Before Justices Kalisoh, Katzenbach and Lloyd.
    For the plaintiff in error, Benjamin Gordon (Louis J. Beit, of counsel).
    For the defendant in error, Abe J. David.

   Per Curiam.

Appellant was indicted, tried and convicted of carnal abuse of a woman child under the age of twelve years. The entire record is here for review, and a number of reasons are assigned for reversal.

The first reason assigned is that the indictment did not aver that the defendant was a male. The statute makes no such averment necessary. It reads, “any person who shall have carnal knowledge,” &e. No motion was made to quash the indictment, and we do not see that appellant has been prejudiced. There is no doubt of his sex, ’and, of course, he was in nowise misled by the absence of such averment.

It is next contended that the verdict was against the weight of the evidence. Our reading of the testimony does not lead us to this view. While the state’s case rested largely on the testimony given by the girl the defendant was charged with assaulting, we are not convinced that the jury -were actuated by any improper motive or that it committed a mistake in giving credence thereto, especially when taken in con • nection with the unsatisfactory evidence and demeanor oí the defendant.

At the trial the judge, deeming the defendant able to speak English, refused to permit the greater part of his testimony to be taken through an interpreter, and this refusal is assigned for error. Our examination of the proofs leads us to the conclusion that no error is exhibited in the ruling. Such an application is addressed to the discretion of the trial judge who in such cases must determine the ability of the witness to speak and to make himself understood in the English language. 16 C. J. 808. There was evidence that the defendant could speak well enough in English when it suited his purpose, and the application for an interpreter bears the earmarks of desire rather than that of a necessity therefor.

During the cross-examination of the defendant he was pressed by the prosecutor as to a conviction of crime, and in doing so the prosecutor endeavored to make clear to the witness’ understanding the particular crime as to which he was being interrogated. We find no error here.

Complaint is also made of some questions and comments of the trial judge directed to the defendant while on the stand, but there was nothing in them that calls for comment or that was not justified by the conduct of the defendant himself.

The judgment is affirmed.


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    SAMUEL RACHELS, PROSECUTOR, v. ANNIE PEPOON, RESPONDENT.
    Decided January 18, 1927.
    Workmen’s Compensation — Death of Employe While on Way to His Employment in His Own Hired Conveyance, Which He was Occupying Instead of That of His Employer, With Employer’s Consent — Held, That Accident Occurred While in the Course of Employment — Employe was Accustomed to Go From Passaic to Hoboken in Employer’s Car — On Night in Question Employe Asked Permission to Attend to Private Business Which Would Detain Him Beyond Time of Departure of Employer’s Car — Permission was Granted Upon Understanding That Employe Would be in Hoboken in Time to Take Up His Work — He was on His Way When Accident Occurred.
    On certiorari.

    Before Justices Black and Campbell.
    For the prosecutor, Franlc G. Turner.

    For the respondent, Jacob I. Jaffe.

   Per Curiam.

This writ brings up for review a judgment of the Passaic Common Pleas Court, affirming a judgment of the workmen’s compensation bureau, awarding respondent compensation for the death of her son, Robert Louis Pepoon.

Pepoon worked for Rachels, who was a wholesale newspaper dealer, taking delivery of his papers in Hoboken, and distributing them by trucks to his customers who were local, retail dealers. Pepoon was a helper on one of these distributing trucks. The trucks were hired by Rachels and the drivers were furnished by the truck owners. Pepoon’s practice and duty was to ride on one of these trucks from Passaic to Hoboken, there assist in assorting and preparing the papers, and from there accompany a truck over a route and assist in the distribution and delivery to Rachel’s customers.

On the night of his injury, he requested Rachels to grant him leave to attend to some personal affair that would detain him beyond the time of the departure of the trucks from Passaic for Hoboken. This privilege was accorded him upon his promise that he would be in Hoboken at three a. m. to take up his work and duties there. He attended to the item of business which required his attention, and then undertook to go from Passaic to Hoboken in an automobile, which he hired, or borrowed, and which he drove himself. While on his way from Passaic to Hoboken, he traveled over the Paterson plank road, the route he would have gone over by means of one of the trucks. His ear came in collision with another car and he received injuries from which he died.

We think the accident, causing the injuries resulting in death, arose out of and in the course of the employment of Robert Louis Pepoon. It did not happen while he was about his own business and personal affairs, but after the conclusion thereof. Under the facts in this case we think his service began when he left Passaic and proceeded toward Hoboken. While Ms actual work began in the latter place, yet, to reach there was an act within and necessary in his service toward his employer. Such would seem to have been the practice and custom on all other occasions when his means of transportation was one of the trucks in his employer’s service.

Such would seem to be the conclusion to be reached from two recent cases in this court: Theresa Bolos v. Trenton Fire Clay and Porcelain Co., 4 N. J. Adv. R. 1211, and Ramsey v. Leahey, 4 N. J. Adv. R. 1296.

The judgment under review is affirmed and the writ dismissed.


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    HENRY GREENSTEIN, RELATOR, v. FREDERIC BIGELOW, SUPERINTENDENT OF BUILDINGS OF THE CITY OF NEWARK, ET AL., RESPONDENTS.
    Decided January 18, 1927.
    Zoning — Slaughtering and Dressing of Poultry in Restricted Territory — On Proofs Before Court, Held, That Zoning Ordinance Provisions Prohibiting Use of Building For Such Purposes are Not Unreasonable, but are a Reasonable Exercise of the Police Power.
    On' rule to show cause for mandamus.

    Before Justices Black and Campbell.
    Eor the relator, Borden D. Whiting.

    Eor the respondent, Jerome T. Congleton and Charles M. Myers.

   Per Curiam.

No record has been sent up to us under this rule showing the rule or any proceedings prior or subsequent to its allowance. All that is before us are the depositions taken under the rule, and no exhibits offered, and admitted, are printed.

It would appear, however, that relator made application to the superintendent of buildings on November 10th, 1925, for a permit to erect a building to be used as a poultry market, including the slaughtering and dressing of poultry on lands owned by him at Jeliff avenue and West Rúnyon street, in Newark, and that the permit was refused because a building to be put to such intended purposes was permitted by the zoning ordinance of the city in a heavy industrial zone only, and relator’s land is located in a light industrial district.

Erom the depositions it would appear that after the application for the permit was rejected by the superintendent of buildings, relator filed an appeal with the board of adjustment and that board approved the application but the permit was never issued.

The application for the permit, the appeal to the board of adjustment and its finding were all prior to the supplement to “An act concerning municipalities” (Pamph. L. 1926, p. 526), and the holding in Chancellor Development Corp. v. Senior, 4 N. J. Mis. R. 633, based upon such act and the proceeding upon appeal to, and the judgment of, the board of adjustment is ineffective under Losick v. Binda, 3 N. J. Adv. R. 1691.

Erom the proofs before us we conclude that the provisions of the zoning ordinance prohibiting a building to be erected upon the property in question, for use as a place for the slaughter and dressing of poultry, are not unreasonable, but on the contrary are a reasonable exercise of the police power of the city of Newark.

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


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MORRIS BRESSLER, PLAINTIFF IN ERROR.
    Decided January 18, 1927.
    Crimes — Receiving Stolen Goods — Eleven Specifications of Causes For Reversal Alleged and Those Not Abandoned Considered by the Court — They Include a Verdict Against Weight of Evidence, Several Errors in Charge and in Examination of Witnesses — No Error Found and Judgment Affirmed.
    On error to the Union County Quarter Sessions.
    Before Justices Black and Campbell.
    Eor the plaintiff in error, Maurice C. Brigadier.

    Eor the defendant in error, Abe J. David.

   Per Curiam.

The plaintiff in error was indicted and convicted at the Union County Quarter Sessions Court of the crime of receiving stolen goods.

The judgment of conviction is before us for review under section 136 of the Criminal Procedure act, and eleven specifications of causes of reversal are assigned. These are presented in the brief of the plaintiff in error under ten points, the eleventh specification being abandoned.

The first point is that the verdict is against the weight of the evidence. This we conclude is not so.

The second and third points are that the trial court erred in charging the jury that one Gillespie was an accomplice. The point attempted to be made is that by the court SO' referring to Gillespie the jury could draw the inference therefrom that the plaintiff in error must have received stolen goods if Gillespie was his accomplice. But we can get no such thought or suggestion from a reading of the portions of the charge complained against, and find the point to be without merit either in fact or law.

The fourth point is that there was prejudicial error in that part of the charge where the court said: “But there were several other witnesses produced by the state who, if you believe their testimony, corroborate Mr. Gillespie in many important details.” The objection is directed not at the statement that there was corroborative testimony but that it was “in many important details,” as that was for the jury to determine.

We have been unable, however, to find anything improper in this respect or that the plaintiff in error was harmed or prejudiced thereby.

The fifth specification of causes is also abandoned.

The sixth point is that the trial court committed prejudicial error in interrupting the cross-examination of Martin Striefler.

While neither approving or disapproving of the action of the trial judge we are unable to discover harm or prejudice suffered by the plaintiff in error.

The seventh point is error in permitting the witness Charles Gillespie to answer the question — “What was said by Joe, Mush, you and Spora?”

The complaint against this is that against the protest of counsel for plaintiff in error the court permitted an answer before ascertaining whether the conversation was in the presence and hearing of the accused. It later developed that it was not, and the answer was thereupon stricken out with proper and complete instructions to the jury to disregard it. The completeness and care with which these instructions were given precludes the creation of harmful error and prejudice.

The eighth point is that the trial court erred and prejudiced the cause of the plaintiff in error by wrongly accusing his counsel of being in contempt of court.

We find no merit in this.

The ninth point is that error was committed in permitting the following question to be put to and answered by the wife of Gillespie — “After your husband began to associate with Bressler and Spora did he have extra money?”

The complaint is that conceding that he did have extra money it might have come from any number of sources other than Bressler and Spora. Admitting the force of this, still the question was proper because from all of the circumstances the jury would not have been unjustified in finding that such extra funds were derived from the unlawful transaction charged.

The tenth and final point is error in permitting the following question to be put by the state to, and answered by, the witness David Clark — “Didn't you tell me they told you this is Mr. Friedman?”

We, however, find no error in this.

The judgment under review is affirmed.


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    HUGO ROSEBERG ET AL. v. AMERICAN HOTEL AND GARDEN COMPANY ET AL.
    Decided January 19, 1927.
    On defendant’s rule to- show cause.
    Before Gummere, Chief Justice, and Justices Tren chard and Minturn.
    For the rule, John C. Reed and Clarence L. Cole.

      Contra, William Elmer Brown, Jr., and Emerson L. Richards.

   Per Curiam.

The verdicts in this case in favor of Eoseberg and of Allen are so grossly excessive as to make it plain that they are the result either of prejudice or ignorance on the part of the jury-

Eor this reason the rule to show cause will be made absolute.


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    ARTHUR E. ARMITAGE, PROSECUTOR, v. CITY OF CAMDEN ET AL., RESPONDENTS.
    Decided January 18, 1927.
    Municipalities — Ordinances in Conflict With Provisions of Vice and Immorality Act — Sunday Baseball — Ordinances Cannot Legalize Acts Prohibited by Supreme Law-Making Body of State.
    On certiorari.

    Before Justices Black and Campbell.
    Eor the prosecutor, Walter Garson.

    Eor.the respondents, Howard L. Miller.

   Per Curiam.

This writ brings up for review á resolution of the board of commissioners of the city of Camden, passed August 12th, 1926, submitting to the legal voters of that city for their action, by approval or disapproval, a proposed ordinance permitting baseball games, either amateur or professional, on Sundays.

There are several reasons argued why this resolution should be set aside, but the matter can be disposed of under a single one of these, and that is that no action taken or to be taken by the authorities of the city of Camden, or the legal voters thereof, in the face of an emphatic and positive legislative declaration of policy, can be effective. This is so fundamental that no citation of authorities is called for.

The proposed ordinance, if adopted, would by its terms legalize acts in the city of Camden which the supreme law making body of the state has prohibited by that legislation known as the Yice and Immorality act.

The resolution under review must therefore be set aside, with costs.


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    ISABEL McKEAG ET AL. v. FRANKLIN CONTRACTING COMPANY ET AL.
    Decided January 19, 1927.
    Negligence — Motor Vehicle Collision — Whether Driver of Defendant’s Car was Negligent or Whether He was at Time of Accident in Defendant’s Employ, Both Questions For Jury— Rule Discharged.
    On defendant Franklin Contracting' Company’s rule to show cause.
    Before Gummere, Chiee Justice, and Justices Trenchard and Minturn.
    For the rule, Charles Stoclcdell Gray.

      Contra, Lehlbach <6 Van Duyne.

   Per Curiam.

This suit was brought by the plaintiffs to recover compensation for injuries received by each of them in a collision between an automobile, which the husband was driving, and a trailer belonging to the Franklin Contracting Company, which was attached to a Pierce Arrow truck driven by one Yannitte, the other defendant. The trial resulted in a verdict in favor of each of the plaintiffs against the Franklin company.

The only grounds upon which we are asked to make the rule absolute are that the trial court erred in refusing to nonsuit the plaintiffs, and also in refusing to direct a verdict in favor of the defendant the Franklin company.

Our examination of the proofs in the case satisfies us that there was no error in the rulings complained of. The question whether Yannitte was negligent, and whether his negligence if it was proved, was the sole cause of the collision, were clearly question^ of fact to be determined by the jury. So, too, the question whether Yannitte at the time of this accident was an employe of the Franklin company, and then engaged in the latter’s service, was also a question for the jury. The rule to show cause will be discharged.


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    MAX MARGOLIS, RELATOR, v. TOWNSHIP OF MAPLEWOOD ET AL., RESPONDENTS.
    Decided January 18, 1927.
    Zoning — Apartment-House in Restricted Territory — Ordinance Contained No Provision For Board of Adjustment, but Council Undertook to Amend Ordinance to Exclude Relator’s Property — Relator Contends This Places Governing Body in Same Position as Board of Adjustment — Held, Not so — Application to Admit as Parties to Suit Adjacent Owners, Denied — Peremptory Writ Allowed.
    On rule for mandamus.

    Before Justices Pakkek, Black and Campbell.
    For the relator, Edward L. Davis.

    For the respondents, Samuel D. Williams.

   Per Curiam.

Relator on June 8th, 1926, applied to the building inspector for a permit to erect a four-story apartment-house for thirty-two families on property owned by him and situate on the southerly side of Burnett street, in Maplewood. The permit was refused because under the zoning ordinance of the township, relator’s lands are in a district restricted to single-family dwellings. The rule to show cause is dated July 26th, 1926, and was returnable October 5th, 1926.

The respondents contend that as the zoning ordinance, by section 12, provides for amending and repealing its provisions upon public notice of such proposed action, relator should have applied to the township committee to amend the ordinance so as to relieve his property from the prohibition now contained therein against it, before applying for or having the benefit of a writ of mandamus.

On August 18th, 1926, after the present rule was applied for and allowed, relator did apply to the township committee for a modification of the ordinance, and an ordinance having that purpose in view was prepared and introduced on October 5th, 1926, the return date of this rule to show cause.

The township zoning ordinance does not provide for a board of adjustment, but relator urges that 'the foregoing referred to provision for amendment contained in the ordinance places the township committee in the same position as a board of adjustment.

We conclude to the contrary. Whether the ordinance should or should not be modified was a pure matter of judgment and discretion not required to be based upon proofs, nor was the township committee compelled to act nor could they be. Until Pamph. L. 1926, p. 526, and Chancellor Development Corp. v. Senior, 4 N. J. Mis. R. 633, it was held that boards of adjustment were without jurisdiction in this direction. It is true that this court did hold to the contrary in Eaton v. Newark, 3 N. J. Mis. R. 363, but that holding was subsequently overruled in the Court of Errors and Appeals in Krumgold v. Jersey City, 3 N. J. Adv. R. 1546, and Lutz v. Kaltenbach, 4 Id. 341.

After the argument upon this rule application was made to amend the proofs by the addition of certain restrictive covenants affecting relator’s lands and other and also a specific reservation or restriction contained in the deed to relator. All parties consenting this was permitted. Application was also made to bring in as parties to this proceeding owners of property adjacent and in the neighborhood of relator’s property as being parties in interest. This latter application was held for consideration, and by permission of this court Mr. A. P. Bachman was given leave to file a brief for such parties, amicus curiw, which he has done.

The application of these property owners as parties to this proceeding must be and is denied, as no authority exists for their admission as such.

The question of restrictive covenants has been settled in this court in Pumo v. Fort Lee, 4 N. J. Mis. R. 663.

The peremptory writ of mandamus applied for will therefore be allowed.


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    RUSSELL C. KLEMANN, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ELLA L. KLEMANN, DECEASED, AND RUSSELL C. KLEMANN, IN HIS OWN RIGHT, PLAINTIFF, v. ATLANTIC CITY RAILROAD COMPANY, A CORPORATION, DEFENDANT. CLARENCE E. WILLIAMS, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ISABELLE M. WILLIAMS, DECEASED, AND CLARENCE E. WILLIAMS, IN HIS OWN RIGHT, PLAINTIFF, v. ATLANTIC CITY RAILROAD COMPANY, A CORPORATION, DEFENDANT.
    Submitted May 14, 1926
    Decided January 18, 1927.
    Negligence — Death at Railroad Crossing — Two Married Women in Automobile Killed — Evidence That Signals Were Not Given Sufficient to Let Gase go to Jury — Contributory Negligence Not Shown — Verdict of $15,000 For Death of Each Person Held Excessive — Reduced to $8,500 in Each Case or Rule Made Absolute.
    On rules to show cause for new trials.
    Before Justices Kalisch, Katzenbach and Lloyd.

      Eor the rules, French & Richards (Floyd H. Bradley, of counsel).

      Contra, Albert 8. Woodruff.

   Per Curiam.

The cases arose out of a collision at the Seventh street crossing of defendant’s railroad, Camden, between an automobile driven by Mrs. Ella L. Klemann, wife of one of the plaintiffs, and a train of the defendant. In the car at the time were Mrs. Klemann and two friends, Clarence E. Williams and his wife, Isabelle M. Williams. Both women were killed and Mr. Williams was injured.

Actions were brought by the plaintiffs to recover damages in their own right and as administrators for damages resulting from the death of their respective wives. Verdicts and judgments were rendered for the plaintiffs in the trial court to Williams individually for $500; as administrator of Mrs. Williams’ estate, $15,000; and to Klemann as administrator of Mrs. Klemann’s estate, $15,000. They are brought before us for review on rules to show causé why a new trial should not be granted. The cases were tried together and are argued together upon a number of reasons for making these rules absolute.

It is first urged that the court should have granted motions for nonsuits or for directed verdicts for the defendant on the ground of contributory negligence. It is also urged that the verdicts were against the weight of the evidence, and that those for the deaths of Mrs. Williams and Mrs. Klemann are excessive.

Our examination of the evidence convinces us that the trial judge could not have granted the motions to withhold the cases from the jury, and that the verdicts were not so clearly against its weight on the question of liability that they should be set aside as exhibiting improper motives or mistake in the jury’s determinations.

The accident occurred at night. At the crossing were gates and a crossing bell, but the hour was one at which the gates were not operated. A train going west had passed over the crossing when Mrs. Klemann started the automobile across the tracks in a southerly direction. As she reached the second track she came into collision with a train going east, and she and Mrs. Williams were killed and the car demolished. There was evidence that the crossing bell did not ring, and also that there was no warning from the engine of the approaching train. The most impressive as to the crossing bell was that of the driver of another automobile waiting opportunity to cross after the westbound train had passed, who testified that the bell at the crossing did not ring nor did he hear a signal from the locomotive. Williams, the only surviving occupant of the car, gave similar testimony. Other witnesses, though less favorably situated for hearing, corroborated these. Opposed to this was the evidence of members of the two train crews and of one Schools; that given by the latter, however, being somewhat discredited by proof that he was intoxicated and had to maintain his equilibrium by holding on to a pole along the highway. It all presented a case for the jury’s consideration and a verdict either way we think could be justified. So holding, we cannot disturb the verdicts as to liability.

The verdicts appear to us, however, to be grossly excessive. A curious parallelism runs through the two cases. Mrs. Williams was at the time of her death twenty-nine years old, and her husband twenty-seven. He worked on a salary and she had continued after marriage in the employment in which she was engaged at the time of their marriage three years before. With their joint savings they had bought a home for $4,200 and had reduced the encumbrance on it. Mrs. Klemann was, when killed, thirty years of age; her husband twenty-nine. They have been married six years, were also paying for a home costing $4,200 by the earnings of both, and had likewise materially reduced the original cost. Neither couple had any children.

While the evidence evinces that it would be difficult to differentiate as to damages, we think the amounts awarded in each case are so clearly excessive, and equally so, that they cannot be sustained in their entirety. It must be ever borne in mind that the damages for death are limited to those of a pecuniary character. Viewing the cases in this light, as we must, we cannot shut our eyes to the probability that each surviving husband may remarry and thus obtain pecuniary benefits akin to those lost through death of the respective wives. Hence, we conclude that the verdicts must be materially reduced if the rules are not to be made absolute.

Other reasons pressed upon us are that the court erred in denying each plaintiff a right to six peremptory challenges to jurors; in refusing certain requests (Nos. 3, 4, 8 and 13), and in permitting certain testimony to be given bjr plaintiffs in rebuttal as to the condition of the witness Schools.

As to the first, it may be said that inasmuch as the record does not show that any challenges to jurors were interposed, the ruling, right or wrong, did the plaintiffs no harm. The requests Nos. 3 and 4 were charged in substance; Nos. 8 and 13 did not present correct statements of the law applicable to the cases. The evidence as to the intoxicated condition of the defendant’s witness Schools was clearly competent in rebuttal.

If the plaintiff, Russell O. Klemann, will remit all of the verdict in his favor as administrator above $8,500, the rule in that case will be discharged; otherwise it will be made absolute.

If the plaintiff, Clarence E. Williams, will remit all of the verdict in his favor as administrator above $8,500, the rule in that case will be discharged; otherwise the rule will be made absolute.

The rule in the case of Clarence E. Williams is discharged.


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    FRED KALITA ET AL., PROSECUTORS, v. THE CITY OF PERTH AMBOY ET AL., RESPONDENTS.
    Decided January 18, 1927.
    Municipalities — Review of Ordinances — Municipal Improvements —Certiorari to Review Asked For on Several Grounds, One of Which is That Ordinance was Passed on First Reading Before Notice of Intention to Consider was Published — This Would be Fatal Unless Laches Appear — Evidence Showed Grossest Laches — Act of 1921 Provides That No Certiorari Shall be Allowed to Set Aside an Improvement Ordinance After Contract Therefor has Been Let — Writ Denied.
    On rule to show cause why certiorari should not be allowed.
    Before Justices Black and Campbell.
    For the rule, Leo S. Lowenkopf.

    Contra, Harry 8. Medinets.

   Per Curiam.

This is a rule to show cause why a writ of certiorari should not be allowed to review an ordinance adopted by the city of Perth Amboy, on September 5th, 1922, entitled “An ordinance to authorize a local improvement, to wit, the paving of Amboy avenue from Myrtle street, running northwesterly to the city line as relocated by an ordinance adopted the 21st day of August, 1922, and to provide for the issuance of not exceeding $165,000 temporary improvement bonds of the city of Perth Amboy,” and also to review the assessments made against the owners of property for benefits received from such improvement.

Several reasons are advanced why the writ should be allowed-—

1. Because the ordinance does not state that assessments to be levied upon properties, in the vicinity of the improvement, that will be benefited or increased in value by reason thereof. Section 8, article 20 of the Home Rule act (Pamph. L. 1917, p. 374) is cited in support of this ground, but this is not so, because it applies only when general appropriations are made for a particular class of work, or for any combination of classes of work.

The ordinance does provide by language both in its title and section 1 that the work shall be done “as a local improvement,” and section 1, article 20 of the Home Rule act defines a local improvement as, “* * * one, the cost of which, or a portion thereof, may be assessed upon lands in the vicinity thereof.”

2. Because the ordinance does not state what proportion of the cost of the improvement is to be assessed against the property in the vicinity thereof, benefited or increased in value, by reason thereof.

Section 15, article 20, Home Rule act, supra,, is cited as the basis of this contention. Reference to the section will, however, immediately force the conclusion that its provisions are not mandatory. The preamble to the ordinance also recites the fact of an agreement of the state highway commission to contribute $75,000 toward the cost of the improvement.

3. Because no notice was given to the owners of property in the vicinity of the improvement of the intention of the governing body of the city to consider the undertaking of such improvement.

Section 4, article 20, Home Rule act, supra, is cited in support of this reason. The contention is not well founded, however, for two reasons — first, because the section cited applies only when the municipality attempts to require house connections for gas, water, sewer, &c., prior to undertaking a street paving improvement; and, second, because in the amendment of such section (Pamph. L. 1920, p. 584), the requirement to mail notices to property owners is omitted.

4. Because the ordinance was passed upon its first reading before notice of intention to consider was published.

This is true and is in violation of section 9 (Pamph. L. 1918, p. 484), as construed in Haake v. Norwood, 99 N. J. L. 479, and would be fatal unless laches can be considered.

The prosecutors are guilty of the grossest laches. The ordinance was adopted September 5th, 1922, and work upon the improvement commenced soon thereafter. The assessments were confirmed February 8th, 1926, and this rule applied for February 9th, 1926, and allowed March 10th, 1926. During all this period of years prosecutors stood by, allowed the work to proceed, and permitted the expenditure of public funds to be made without making an effort to test the validity of the ordinance, or the proceedings of the city authorities, until the improvement was completed and assessments against their lands made and confirmed. In Haake v. Norwood, supra, the question of laches was not considered because the writ of certiorari, was applied for and allowed before the contract for tiie improvement was entered into.

The positive provision of Pamph. L. 1921, p. 515 (supplement to Home Rule act), is that no certiorari shall be allowed to set aside an improvement ordinance after the contract therefor has been let. This legislative prohibition is too plain to permit its meaning and intent to be questioned.

The final ground is that the ordinance does not meet the statutory requirement by briefly describing the improvement. We find no foundation for this objection.

Our conclusion is, that finding none of the grounds urged presenting reasonably debatable questions, the application for the writ of certiorari is denied, and the rule to show cause is discharged, with costs.


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    PETER MIK, APPELLEE, v. WALTER KOSPRISKI, APPELLANT.
    Submitted May 14, 1926
    Decided January 19, 1927.
    Malicious Prosecution — Plaintiff was Charged by Defendant With Having Stolen His Money, Arrested, Indicted and Indictment Nolle Prossed — Held, That While Malice is Basis of the Action and Must be Proved, it is Inferable From Want of Probable Cause and the Nolle Pros, was Some Evidence of Want of Probable Cause — Other Evidence of Malice — Judgment For Plaintiff Affirmed.

      On appeal from the Essex Circuit Court.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor the appellee, Cohen & Klein.

    Eor the appellant, Meyer M. Semel. ■

   Per Curiam.

This is an appeal by the defendant bringing to this court for review a, judgment against him in the Essex County Circuit Court. The action was to recover damages for malicious prosecution.

The first, second and fourth points raised on the defense are that the court erroneously refused to grant motions for a nonsuit and to direct a verdict in defendant’s favor on the grounds that malice and want of probable cause were not proved, and that the criminal prosecution was nolle prossed by agreement of the parties.

We think the motions were properly refused. The criminal prosecution arose upon a complaint sworn to by Krospriski charging Mik with stealing $270 from Kospriski’s person. Warrant, arrest and indictment followed in sequence. When the indictment came up for trial a nolle pros, was entered.

There was evidence in the present case tending to show that at about eleven o’clock on Saturday night, October 11th, 1924, Kospriski, who kept a saloon at 123 Belmont avenue, Newark, returned from a dance hall in an intoxicated condition; that he remained in his saloon about ten minutes and then went to the rear of the saloon premises. Mik was at this time in the saloon drinking with a friend. He went to the toilet, returned to the saloon, found his friend had left and then left himself for his own home. Thé next day Kospriski accused Mik of stealing his money the night before and requested a detective to arrest him, but the 'latter refused, stating that he had no proof. A week later, as Mik was coming from his work, he was arrested on a complaint sworn out by Kospriski, taken to police headquarters and locked up. The following morning he was released on bail. An indictment being found against him, he pleaded not guilty, and the case was set for trial on a number of occasions but each time adjourned. Finally, a nolle pros, was entered on motion of the prosecutor of the pleas. The present action was then instituted.

While malice is the basis of the action and must be proved, it is inferable from want of probable cause, and the nolle pros. of the indictment was some evidence of want of probable cause. Dalton v. Godfrey, 97 N. J. L. 455.

In addition, there was evidence of malice to be found in the fact that Kospriski said before the arrest that he was going to fix Mik, who had stolen his money, and in the further fact that Kospriski claimed the money was stolen from him by “a man/’ but that he was unable to prevent the money being taken. If so, the jury could infer that he knew whether Mik, with whom he was well acquainted, was the person who took it. We conclude that there was sufficient evidence of malice to go to the jury, and our examination of the state of the case does not disclose that the nolle pros, in the criminal court was by agreement of the parties to this action.

It is next complained that the court’s refusal to permit Kospriski, who had been called to prove bis signature to the complaint, to be cross-examined on matters irrelevant to the examination in chief, was error. We think not under the cases of Teel v. Byrne, 24 N. J. L. 631, and Risley v. Ocean City Development Co., 75 Id. 840.

Nor did the court err in refusing to charge the jury that the failure of the prosecution was not evidence either of the defendant’s malice or want of probable cause. Dalton v. Godfrey, supra.

The judgment is affirmed.


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    SALVATORE TUCCILLO v. JOHN T CLARK & SON, INC., ET AL.
    Decided January 19, 1927.
    Negligence — Injury to Longshoreman While in Employ of Defendant — Verdict Held Not Unduly Excessive.
    On defendants’ rule to show cause.
    Before Gummere, Chief Justice, and Justices Tren chard and Minturn.
    Eor the rule, Edward A. Markley.

    Contra, Nathaniel Kent.

   Per Curiam.

The plaintiff sued to recover compensation for personal injuries sustained by him while working as a longshoreman for the defendant John T. Clark & Son, Inc. The trial resulted in a verdict in his favor and against that defendant. The other defendant, who was the owner of the steamship' upon which the accident happened, was exonerated by the jury. The plaintiff’s damages were assessed at $3,000.

The only question argued before us on this rule is the alleged excessiveness of the verdict. Our examination of the testimony leads us to the conclusion that the award of the jury is not so plainly excessive as to justify our setting it aside.

The rule to show cause will be discharged.