text:
    ROSE VAN SCOTEN AND CHARLES G. VAN SCOTEN, PLAINTIFFS-RESPONDENTS, v. FREDERICK O. LINDSLEY, Jr., DEFENDANT-APPELLANT.
    Submitted January 28, 1927
    Decided May 21, 1927.
    Contracts — Suit to Recover Deposit Made on Sale of Property Subject to Approval — Payment Made on Sunday by Check Dated on Saturday — Plaintiff Decided Not to Take Property and Sued to Recover Deposit — Judgment For Plaintiff— Held, That Plaintiffs Had Not Made Binding Contract, Also That There Having Been a Specification of Defenses Demanded and There Being No Defense Stated Regarding the Illegality of the Contract Because of the Payment on Sunday, That Defense Cannot Now be Employed — Also That the Contract was Not Completed Until the Plaintiffs Decided to Take the Property.
    On appeal from the East Orange District Court.
    Before Justices Kamsch, Katzenbach and Lloyd.
    Eor the appellant, David A. McBride.

    Eor the respondents, Harry W. Lindeman.

   Per Curiam.

Plaintiffs brought an action in the Orange District Court to recover a deposit of $500 made on a sale of property to be “subject to approval.” The check dated August 22d, 1925, was handed to the defendant on Sunday, August 23d, 1925, as a result of a conversation on the preceding day. A receipt was given by the defendant on Sunday (also dated the day before), in which were the words “subject to approval of contract.” The following day plaintiffs notified the defendant that they would not be able to take the property, and later demanded return of their money. The court gave judgment for the plaintiffs, and we think properly.

At the trial defendant made a motion to strike out the state of demand because the transaction took place on Sunday. The only real points are whether plaintiffs had made a binding contract to purchase from which they could not recede, and whether the court should have given judgment for defendant because the check and receipt transaction was on a Sunday.

We think the first is answered in the negative by the case of Thompson v. Killheffer, 99 N. J. L. 439. To the second point we think there are two answers. The first is that a specification of defenses was demanded and there was no defense alleging the illegality of the contract because made on Sunday. Mechler v. Fialk, 84 Id. 406; Comp. Stat., p. 1971. The second is that there was no completed contract until the plaintiffs decided to take the property. In the meantime the deposit of the $500 was simply a step in the negotiation, and the money was held in escrow until the sale was on or off; and if the latter plaintiffs were entitled to its return. Carter v. Allenhurst, 2 N. J. Adv. R. 909.

The judgment will be affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PASQUALLE MELLILO, TRADING AS FIRST STREET SERVICE GARAGE, PLAINTIFF-RESPONDENT, v. TIFFANY OIL BURNER COMPANY, A CORPORATION, AND SUPERIOR FINANCE CORPORATION, A CORPORATION (APPELLANT), DEFENDANT-APPELLANT.
    Submitted January 28, 1927
    Decided May 21, 1927.
    Replevin — Suit For Repairs to Motor Vehicle — Many Unusual Circumstances Apparent but Defendant-Appellant, a Finance Corporation, Notwithstanding the Irregularities, Appeared Generally and Participated In the Trial — Judgment For Plaintiff-Respondent For Amount of His Repair Bill — On Appeal, Appellant Cannot Now be Heard to Object to Jurisdiction of Court — Appellant Cannot Now Assert That Its Claim is Superior to the Garageman’s Lien Claim — Judgment Affirmed.
    On appeal from the Second District Court of Newark.
    Before Justices Kalisoh, Katzenbaoh and Lloyd.
    For the appellant, Green, & Green {Harry Green,, of counsel).
    For the respondent, flrnexl L. Quackenbunh.

   Per Curiam.

Pasqualle Mellilo, a garage keeper, obtained a judgment in the Second District Court of Newark, against the. Superior Finance Company, for the sum of $194.62, due him for repairs done to a truck claimed to be owned by the finance company under a conditional sales agreement From this judgment the finance company appeals.

The pertinent facts are that the truck being in the possession of Mellilo, was held by him for repairs made to it. The finance company demanded a statement of the (¡barges and was given an amount much in excess of the sum appellant conceded to he due. It, therefore, on December L7th, 1925, procured a writ of replevin to issue in the District Court in accordance with the Garage Keepers’ Lien act of 1915 (chapter 270), as amended in 1922 (chapter 231), entered a bond as required by the act and obtained possession of the truck. Mellilo, on January 15th, 1926, filed a statement of demand for the repair bill designating the finance company as the defendant. ' Appellant’s counsel then filed what it terms a special appearance for the defendant, assigning reasons therefor that it was not served with process and had never entered an appearance. Matters remained in this condition until October 11th following, when the case was called for trial. At that time a long discussion arose between the court and counsel concerning another action begun by Mellilo, but it finally resulted in counsel for the finance company appearing generally as stated to the court, “for the whole thing.” The ease then proceeded to trial, in which both sides called witnesses on the merits of Mellilo’s claim, and judgment was finally entered as above stated.

The appellant contends, first, that it was not legally in court because not served with summons. The statute is somewhat vague as to the method of procedure on the claim. It directs that the lien claimant shall file his state of demand or complaint within thirty days after the issuance of the writ of replevin and that the filing of a bond or depositing of cash by the plaintiff in replevin sháll be considered as the entry of a written appearance by the owner in the action which the lien claimant may bring within thirty days. The record shows that Mellilo did issue a summons in an action for his claim, but it was never served. The statement of claim was filed within thirty days (whether in the replevin or contract action does not clearly appear) and the case later proceeded to trial on its merits, both parties, as stated, calling witnesses as to the justness of the claim.

In this situation we think it unnecessary to pass upon the irregularity in the proceeding. The trial court undoubtedly had jurisdiction of the subject-matter, and by the appellant’s appearance generally and participation in the trial acquired jurisdiction of it as a corporation. Appellant will not now be heard to object to the jurisdiction to which it voluntarily submitted. State v. Rosenblum, 3 N. J. Adv. R. 1713; State v. Baker, 3 N. J. Mis. R. 324.

The second point argued is that the finance company was not permitted to show that it was the holder of a lien superior to the rights of the garageman's claim by virtue of a conditional sale contract; the court holding that the right to so claim was waived when the replevin was issued and based on the contention that the claim was unreasonable.

The offer was to show that the finance company was the assignee of the conditional sale agreement between the John A. McCrane Motor Company and the Tiffany Oil Company by assignment from the McCrane Motor Company. By the agreement the balance of the purchase price of the truck was to be paid in installments, and proof was tendered that default had occurred in the payment of: such installments, whereby the right of possession and property accrued to the plaintiff in the action of replevin. Eights reserved under conditional sales or held by virtue of chattel mortgages are declared by section 1 of the amendment of 1925 (chapter 96) to be superior to the garageman’s lien when such conditional sales or chattel mortgages are properly recorded.

It is contended by the respondent that the sale agreement was not properly recorded, and further that the replevin prescribed by the act in the present case does not contemplate its use as an instrument for testing such alleged superior rights, and that for this latter purpose the ordinary writ of replevin is alone available.

Offer was made by the plaintiff to show that the sales agreement was recorded and this offer was overruled. To this ruling of the judge an exception was taken, but it is not assigned for error here nor made a ground of appeal. The contract itself was offered in evidence, but fails to show that the instrument was ever recorded. This being true it is unnecessary to consider the view held by the court that the priority as between the claim of the garageman and the conditional sale of the vendor could not be litigated in this action.

The last point urged is that in claiming a larger sum than due the claimant was guilty of fraud and thereby lost his lien. This, if raised, would present a question of fact, the .determination of which this court cannot review.

The judgment is affirmed.


text:
    ABRAHAM J. ROVNER, PLAINTIFF-RESPONDENT, v. EVERREADY MORTGAGE COMPANY, DEFENDANT-APPELLANT.
    Submitted January 28, 1927
    Decided May 21, 1927.
    Sale of Real Estate — Recovery of Deposit — Purchaser Refused to Accept Title Because of a Lease Running For Some Years —District Court Refused Nonsuit and Gave Judgment to Plaintiff on Ground That Tenant Had an Interest in the Land — Held, That the Terms of the Lease Did Not Create an Encumbrance Other Than That to Which Vendee Had Agreed to Except From the Operation of His Contract.
    On appeal from the Camden District Court.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, David R. Rose.

    For the respondent, Carl Kisselman.

   Per Curiam.

Abraham Rovner was the assignee of a sales agreement dated October 23d, 1925, made between the Ever-Ready Mortgage Company, as vendor, and David G. Gades, as vendee, on which a deposit of $500 had been made. The agreement was to convey the property clear of all encumbrances and that “possession shall' be given the buyer subject to the present farm lease.” The farm lease was introduced in evidence. It is dated May 21st, 1924, between Connell, the then OAvner of the land, and Michael Winchstein, the tenant, and avus to run for five years at the rental of $30 a month. Incorporated in this lease is a provision to the effect that the tenant Avould surrender the agreement and all claims under it if the property should be sold for not less than $7,000 and that the lessor would pay to the tenant one-half of the amount received over $5,500 and the costs of sale and assessments. At the time the agreement of sale Avas executed, Winchstein was in possession and so continued at the time the contract was to be carried out at the expiration of six months from its date (time being made of the essence of the contract), and the title was refused by the purchaser on the ground of such possession.

.In an action to recover the deposit of $500, the District Court judge, conceiving that the tenant had an interest in the lands apart from leasing rights, denied a motion for nonsuit, and gave judgment for the plaintiff.

These rulings we think were Avrong. Condensed, the lease aauis simply a farm lease for fixe years with the privilege to the owner to sell out at a price not less than $7,000 and to obtain possession by payment to the tenant of one-half the proceeds of sale over and above $5,500. This weakened the term rather than gave the tenant any interest in the property itself. It certainly did not create an encumbrance on the property other than that to Aidiieh the vendee had agreed to except from the operation of his contract.

The judgment is reversed and a ueAV trial ordered.


text:
    ELSIE M. McBRIDE, PLAINTIFF-APPELLANT, v. DE COZEN MOTOR COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.
    Submitted January 28, 1927
    Decided May 21, 1927.
    Bailment — Plaintiff Left Motor Vehicle in Defendant’s Shop to be Washed — Defendant’s Watchman, Upon Returning, Found Rear Door Open and Plaintiff’s Car Gone — On Morning of That Day Ail Doors and Windows Were Locked and No Work was Done, it Being a Holiday — No Evidence That There Had Been a Forced Entry — Judgment For Defendant —Held, That There was a Prima Facie Case From Which Trial Judge Could Infer Negligence, but was Not Obliged to so Find — The Question was One of Fact, and No Appeal Will Lie From the Conclusion of the Trial Judge Sitting Without a Jury.
    On appeal from the Second District Court of the city of Newark.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor the respondent, John A. Bernhard.

    Eor the appellant, Joseph G. Paul.

   Per Curiam.

Judgment was rendered for the defendant by the judge of the Second District Court of Newark, sitting without a jury, and from that judgment the plaintiff appeals.

Erom the state of the case agreed upon it appears that the plaintiff, Elsie M. McBride, owned an automobile which on May 37th, 1935, she placed in the defendant’s shop to be washed and adjusted. On the 30th of May, at seven o’clock in the evening, the defendant’s watchman returned and found the rear door open and the plaintiff’s car gone. This constituted the whole of the plaintiff’s case.

The defendant proved that on the morning of May 3Qth, at seven o’clock, all the doors and windows were locked; that no employes were working on that day and no business was transacted; that on the return of the defendant’s watchman at five o’clock he found the back door open and the plaintiff’s car missing; that he examined the doors and windows and found no evidence of a forced entry; that all the bolts and locks were in good condition; that the office manager checked the cars in the garage on the night of May 29th, and again on the night of the 30th, and that the only car missing was that of the plaintiff; that about a year and a half before the plaintiff was employed by the defendant as a bookkeeper.

The plaintiff then called one Kirby who testified that he went to the garage the third day after the theft and there was no evidence of a. forced entry.

The judgment should be affirmed. The transaction constituted a, bailment for mutual advantage and the failure of the defendant to return the car made a prima, facie case from which the trial judge could infer negligence. Kittay v. Cordasco, 4 N. J. Adv. R. 1631. He was, however, not obliged to so find. Hughes v. Atlantic City Railroad Co., 85 N. J. L. 212. The question presented was one of fact and from the conclusion of the trial judge no appeal will lie.

The judgment will be affirmed.


text:
    STATE OF NEW JERSEY, EX REL. ANTLERS REALTY COMPANY, A CORPORATION, RELATOR, v. JOHN SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted October 15, 1926
    Decided May 21, 1927.
    Zoning — Stores and Apartments in Restricted Territory — Case Within Rule in Nutley Case.
    On application for mandamus.

      Before Justices Kalisch, Katzenbach and Lloyd.
    For the relator, Edward B. McGlynn.

    For the respondents, Walter G. Ellis.

   Per Curiam.

The alternative writ of mandamus issued in this case at the instance of the relator requires the respondents, the city of East Orange, and its building inspector, to show cause why a permit should not be given to the relator to' erect a building containing stores on the first floor and dwelling apartments on the second.

The return to the writ exhibits that the construction will be in contravention of a zoning ordinance of the city which prohibits such construction in the section of the city in which the relator seeks to build and upon this the respondents ask •that the writ be dismissed.

As we view the facts of this case they do not differ essentially from the facts in the case of State v. Nutley, 99 N. J. L. 389, in which a like response to an application for a writ of mandamus was held insufficient.

A peremptory writ of mandamus will therefore be awarded.


text:
    DANIEL SCHMIDIG AND ANNA SCHMIDIG, PLAINTIFFSAPPELLANTS, v. MARGARET O’BAGGY AND GIORDANO BRUNO BUILDING ASSOCIATION, A CORPORATION OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Submitted January 28, 1927
    Decided May 21, 1927.
    Landlord and Tenant — Under Lease Tenant Made Deposit to Secure Payment of Rent — Tenant Assigned Lease and Landlord Sold Property, Giving Credit For the Deposit — Tenant Defaulted and Landlord Distrained, Recovering Full Amount Due — Upon Suit to Recover the Deposit a Judgment was Given For Defendant — Held, That This was Wrong, That the Deposit was Security For Rent, Not a Forfeiture.

      Oil appeal from the Second District Court of Bergen county.
    Before Justices Kali,son, Katzenbach and Lloyd.
    Eor the appellants, Benedict Krieger.

    Eor the respondents, Richard J. BaTcer.

   Per Curiam.

Appellants brought an action in the Second Judicial District Court of Bergen county to recover the sum of $150 deposited upon a lease between George Demirjian, as lessee, and Giordano Bruno Building Association, as lessor, upon the following condition as contained in the lease:

"A deposit of one hundred and fifty ($150) dollars shall be made at the signing of this lease, the receipt of which is hereby acknowledged, which amount shall be held by the party of the first part until the expiration of the term of this lease as security for the pajnnent of the within mentioned rent, and for the performance of all or any of the covenants herein entered into on the part of the party of the second part/’

The rights of the tenant finally passed by assignment to the appellants, and Margaret O’Bagg}', bjr a series of conveyances, became the owner of the |)roperty, receiving a credit on account of the purchase-money of the $150 thus deposited by the original tenant. Upon default in the payment of the rents, the landlord distrained therefor, recovered the full amount then due with costs and terminated the lease.

Judgment in the District Court was given for the defendants. The respondents seek to uphold the judgment in the court below upon two grounds — (1) that the deposit became the property of the landlord upon default, and (2) that Mrs. O’Baggy was not liable for the return of the deposit, even though she had received allowance therefor in the purchase price of the property.

We think the judgment in the court below was wrong and cannot be sustained upon either ground. The deposit was as a security for the payment of the rent and the performance of the conditions of the lease. At the time the landlord terminated the' lease there was no rent due nor were there, of course, any subsequent conditions to be performed. The tenant’s right to the return of the deposit thereupon accrued. Hecklau v. Hauser, 71 N. J. L. 478; 36 C. J. 300, § 1083. Upon the default in the ‘payment of the rent, the landlord could no doubt have deducted the rent due from the deposit. He did not choose to do so but realized by distraint on the property of the tenant. To hold under the circumstances that he could retain the deposit would be to construe the agreement as effecting a forfeiture, which the law will not accord unless the right is clear. Nor do we think that the grantee who has received credit on the purchase price by reason of such deposit can escape liability. Kaufman v. Williams, 92 N. J. L. 186; 36 C. J. 229.

The judgment of the District Court will be reversed and judgment may be entered in this court for the amount of the deposit.


text:
    SIDNEY S. JORDAN, TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF CONRAD N. JORDAN, PLAINTIFF, v. THE TOWNSHIP OF TEANECK, IN THE COUNTY OF BERGEN, DEFENDANT.
    Submitted October 15, 1926
    Decided May 21, 1927.
    Trespass — Plaintiff Claimed Title to Land Subject to a Grant by a Former Owner to a Railroad Company to Use the Property For Railroad Purposes With Reversion When No Longer So Used — Held, That This Constituted a Grant of the Soil Itself, Not an Easement — During the Possession Under Such Grant, the Vendee Holds Title in Fee Subject to be Divested Upon the Happening of the Event Upon Which It is Determinable — Judgment For Defendant Affirmed.
    On plaintiff’s rule to show cause.

      Before Justices KAliscti, Katzexbacti and Lloyd.
    For the rule, William, B. Gourley (Albert Comstock, of counsel).

      Contra, Benjamin II Buffett.

   Per Curiam.

This was an action of trespass in the Supreme Court tried at the Bergen Circuit. There was a verdict for the defendant and the case is here on a rule allowed to the plaintiff to show cause why a new trial should not be granted.

The plaintiff below claims title as trustee of the premises upon which the alleged trespass was committed subject to the grant contained in a. deed from one George W. Smith to the New York, West Shore and Buffalo Railroad Company. The alleged trespass consisted in the construction of a sewer on the land of the plaintiff and against his protest. The defendant attempted to justify its right to construct the sewer on the grant to the railway company and also on the ground that the locus in quo had become a public highway. It also denied the plaintiff’s interest and right to sue.

The learned trial judge submitted the case to the jury as to whether the predecessors in the plaintiff’s title “did not give the right to the railroad company to use the land for all necessary purposes,” and if they did he instructed the jury that there was a right in the municipality with the railroad company’s permission to lay the sewer. The propriety of these instructions is before us on this rule.

The deed from Smith, the former owner, to the railroad company “grants and conveys to the railroad company, its successors and assigns, the right to use and occupy for the uses and purposes of a railroad station, including side tracks, switches, approaches, buildings and all the accommodations necessary for a station,” and in the habendum clause “to have and to hold the same to the railroad company and its successors and assigns for said uses and purposes.” The deed contains this further provision: “It is mutually understood, covenanted and agreed by and between the parties hereto that if the party of the second part, its successors and assigns, shall fail to construct, establish and maintain a station upon the lands hereinbefore first described or shall cease to use said lands for the uses and purposes of a railroad station that then and in that event the lands herein-before granted shall revert to the party of the first part, his heirs and assigns.”

The theory of the plaintiff was that this grant constituted a mere easement; that of the defendant that it was a determinable fee. We think the plaintiff’s contention is unsound. The authorities in this state are to the contrary. It was held by the Court of Errors and Appeals in Fitzgerald v. Faunce, 46 N. J. L. 596, dealing with a deed containing a grant “of the sole right, privilege, use and enjoyment at all times for all purposes of fishing whatsoever, and for no other purpose;” that it constituted a grant of the soil itself and not a mere easement. This enunciation was a reaffirmation of earlier decisions in that court. Southard v. Central Railroad, 26 Id. 14, and McKelway v. Seymour, 29 Id. 321. During the possession under such grant the vendee holds the title in fee, subject to be divested upon the happening of the event upon which it is determinable. This being true we think the question presented in the court below became one of law and not of fact, and that under the law, as we find it, it was the duty of the trial judge to have directed a verdict for the defendant. If, instead of doing so> he submitted the case to the jury for its determination, and the jury found as the judge would have been obliged to do, the error becomes harmless, and of the result the plaintiff has no right -to complain.

It is stated in the brief of counsel that the question has now become largely academic by reason of the fact that since the rendition of a verdict in this case the township has acquired through condemnation proceedings whatever of interest the plaintiff had in the land as a barrier to the construction of the sewer. As, however, the case must be determined on the record as it stands before us we proceed to determine it, and our conclusion is that until the deed ceased to operate as vesting an estate in fee the plaintiff was without standing to bring the action, and that the rule for new trial should be discharged.


author: Parker, J.

text:
    LEHIGH VALLEY RAILROAD COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., DEFENDANTS.
    Decided May 17, 1927.
    Grade Crossings — Under Track Passageway the Entire Sixty-six Feet of a State Highway in Line With the Lines of the Highway Directed by the Utility Commissioners — Railroad Asked That There be Allowed a Curve of Not More Than Six Degrees at Any One Point — Held, That Highway Lines Should be Straight and That the Passageway Should be the Entire Width of the Highway to Admit of Sidewalk.
    On application to Mr. Justice Parker, at chambers, for allowance of writ of certiorari with a stay to review order of the board of public utility commissioners requiring the railroad company to substitute for the present grade crossing an underpass on state highway No. 16, at Royce Yalley station, in the county of Somerset.
    Por the prosecutor, Hobart & Minará.

    Por the board, John O. Bigelow.

    Por the county of Somerset, Clarence B. Case.

    For the state highway commission, Breá W. He Voe.

   Memorandum by

Parker, J.

The importance of the matter calls for a speedy decision, especially as the allowance of a writ would accomplish little or nothing unless a stay be superadded, the writ, by statute, not carrying a stay ex proprio vigoro in these cases; and on the other hand, ií a stay were allowed, an important public work already delayed too long, would be further postponed.

The grade crossing at Royce Valley is one with which I am familiar, having passed it many times on state highway No. 16. It is a dangerous crossing on an important road, which all parties agree should be eliminated. State highway No. 16 leads from Somerville to Princeton, and the work of widening it to an uniform width of sixty-six feet is in progress. The railroad crosses it at an acute angle of twenty-nine degrees thirty minutes. Both railroad and highway are straight for some distance, the highway over three thousand feet south of the railroad, and about two thousand feet to the north of it. Any underpass means a more or less deep cut. The principal question in dispute before the board was whether this underpass and its incidental cut should be kept straight, and on the line of the present road, or, in order to cross under the railroad more nearly at right angles than at present, the highway (as one goes north from Princeton) should be deflected to the right or eastward, then to the left, crossing under the railroad at an angle of some fifty-four degrees, as I recollect it, then again to the left or westward, and finally to the right, joining the existing road north of the railroad. This would carry the highway to the east of the present station by a double-reverse curve of not over six degrees at any point. The board rejected this plan offered by the railroad, and as it appears to me with entire propriety. It is asserted in the affidavits that a six-degree curve is a perfectly safe curve. Very likely it is, where the road is on a level and the visibility is unimpaired; but between the walls of a cut, any curve is objectionable and usually dangerous. No recipe has yet been found for preventing the careless motorist, and all too many of them are careless, from hugging the inside of a curve, in whatever direction he may be going. The requirement of a straight road at such a place as this is essentially sound, and to turn a great state road at such a place from a straight line to a crooked one would be to court constant disaster. The view of the board on this point meets with my entire concurrence. The expense may be somewhat greater than by the railroad plan, but as noted by the board, the railroad figures omit important items which would go far toward equalizing matters.

This seems to be the crux of the application. I have no doubt whatever about the jurisdiction of the board. It is not claimed, I think, that it was challenged at the hearing. As to the alleged unreasonableness of requiring an underpass sixty-six feet wide, there are at least two answers. One is that this is the settled future width of the road, to which it is actually being worked. The other is that the railroad’s own plan called for this same width, merely at a less acute angle. Nothing is to be gained, and much is to be lost, by choking traffic at such a place. This is a permanent improvement, and an eye to the future requires that it be adequate to reasonably anticipated future needs. On the same theory the provision of space for sidewalks is justified. The rights of foot passengers on state roads have been too long overlooked, and they are receiving attention none too soon.

As to the Camp Lane phase of the matter, it is mainly incidental. Camp Lane appears to be a minor road, crossing the railroad at grade some one thousand two hundred feet eastward of the highway No. 16 crossing. The order requires the closing of Camp Lane crossing and the diversion of that road south of the railroad so as to join highway No. 16. This is quite within the jurisdiction of the board, and similar action has been taken by that body more than once. I see nothing vulnerable in this part of the case.

It may be well to add that it was stated on the argument that this underpass is to have a double use, for a new state highway is projected from Lambertville to a point on No. 16 south of the railroad, then following No. 16 to a point north of the railroad, and then diverging eastward toward Bound Brook. Such a situation, of course, emphasizes the need for ample room under the railroad.

I conclude that allocatur oí a writ should be denied, without prejudice, of course, to an application to the court in banc.


text:
    IDA SOHNIN ET UX. v. CELIA REINGOLD ET UX.
    Decided May 17, 1927.
    Negligence — Landlord and Tenant — -Landlord Had Opened a Trap-door Located on a Back Porch Through Which Plaintiff Had Fallen — Plaintiff Saw Landlord Open the Door— Held, That the Burden- of Proof of Negligence Is Upon Plaintiff, That Looked at in the Most Favorable Aspect to Plaintiff, Proofs Submitted are “Equally Consistent With the Absence as With the Existence of Negligence on the Part of Defendants” — Nonsuit Sustained.
    Oil appeal from the Essex Circuit Court.
    Before Gummerb, Chief Justice, aud Justice Teen-chard. ■
    For the appellants, Isidor Kalisch.

    For the respondents, Jacob Schneider.

   Per Curiam.

The plaintiff, Ida Sohnin, brought suit against the defendants to recover compensation for injuries received by her as a result of a fall through a trap-door located upon a porch at the rear of premises owned by the defendants. The husband was joined as a co-pl-aintiff, and sought to recover compensation for the expenses incurred by reason of his wife’s injury and for the loss of her services and society.

The plaintiffs had rented from the defendants the first floor of these premises, and were in the occupation thereof at the time of the accident. ■ The proofs submitted on the part of the plaintiffs showed that in the floor of this porch there was a trap-door, covering steps which led down into a cellar; that the female plaintiff had gone out upon the porch for some undisclosed purpose; that while there, according to Mrs. Sohnin’s testimony, the landlord, Harry Eeingold, opened the trap-door, and that she then fell down into the cellarway. It is evident from this testimony of Mrs. Sohnin that she saw the landlord open the trap-door. Whether he was on the porch when he did so, or whether he was coming np from the cellar, does not appear. The trial court considered that the mere fact that he opened this door, in her presence, and in her sight, was no evidence that in doing so he was guilty of a negligent act; and, as the result of this view, directed a judgment of nonsuit.

In our opinion, the action of the trial judge was entirely justified. The claim of the plaintiffs was that the injuries received by Mrs. Sohnin were the result of negligence on the part of their landlord. In order to entitle them to a verdict, the burden rested upon them to prove negligence, and, in the absence of proof of its existence, it will not be presumed. As' was said by the Court of Errors and Appeals in Alvino v. Public Service Railway Co., 91 N. J. L. 526: “When the plaintiff’s evidence is equally consistent with the absence as with the existence of negligence on the part of the defendant, the plaintiff must fail, because there is always a presumption against negligence and in favor of innocence.” Looked at in the aspect most favorable to the plaintiffs, the proofs submitted by them are, in the language of the opinion just referred to, “equally consistent with the absence as with the existence of negligence on the part of the defendants.”

Eor this reason, we conclude that the judgment under review should be affirmed.


text:
    UNITED STATES AGENCY v. METROPOLITAN LUMBER COMPANY.
    Decided May 17, 1927.
    Contracts — Breach of Contract by Defendant to Sell Certain Mortgages to Plaintiff’s Assignor — Judgment For Plaintiff —All Grounds Urged by Defendant For Making Rule Absolute Considered and Rule Discharged.
    On defendant’s rule to show cause.
    Before Gummere, Ciiiee Justice, and Justice Tren■chard.
    Eor the rule, Edward B. McGlynn.

    Gonira, Beed & Reynolds.

   Per Curiam.

This action was founded on a contract under which the defendant agreed to sell and the plaintiff’s assignor, the United States Mortgage, &c., Company, agreed to purchase, two mortgages of $60,000 each for the sum of $108,000. Both mortgages were first liens, one upon property known as 996 Broad street, Newark, and the other upon property known as 1076-1078, on the same street. The defendant refused to perform the contract, and the present plaintiff, who was the assignor of the United States Mortgage, &e., Company, brought suit to recover the amount of the loss sustained by its assignor by reason of such refusal. The trial resulted in a verdict in favor of the plaintiff for $4,800, and the defendant thereupon obtained a rule to show cause why this verdict should not be set aside.

The first ground urged by counsel for making the rule absolute is that the trial court erred in permitting the plaintiff to introduce evidence as to the market value of the mortgages at the time of the breaching of the contract. We consider that there was no error in the admission of this testimony.

Next, it is contended that the trial court erred in refusing to permit questions which, it is alleged, were pertinent upon the subject of damages. In o-ur opinion, the testimony referred to in support of this contention had no relevancy upon this subject, and was therefore properly excluded as being immaterial.

Counsel further argues that there were certain errors in the charge to the jury, and points out the excerpts in which, as he contends, such errors appear. It seems to us that, when read in connection with the rest of the charge, the instructions complained of contain no injurious error, and that, consequently, the rule ought not to he made absolute upon this ground.

The last point is that the court improperly refused to charge a certain request submitted by the defendant. Our examination of the request and of the charge leads us to the conclusion that the instruction prayed for was given to the jury, so far as it had any application to the subject-matter of the litigation under the proofs submitted.

The rule to show cause will be discharged.


author: Per Cuiam.

text:
    SHORE SERVICE, INCORPORATED, v. WEST JERSEY AND SEASHORE RAILWAY COMPANY.
    Decided May 17, 1927.
    Negligence — Motor Bus Collision With Railroad Train — Judgment For Owner of Motor Bus — Evidence Examined and Held, That There was a Question For the Jury, That the Finding For the Plaintiff was Not so Clearly Against Weight of Evidence That the Rule Should be Made Absolute, That There was Evidence of Negligence on Part of Railroad, and That the Verdict was Not Excessive.
    Ou defendant’s rule to show cause.

      Before Gummeee, Chief Justice, and. Justice Tbenohaed.
    Eor the rule, Bourgáois & Coulomb.

      Contra, Clifford A. Baldtvin and Bleakly, BtockweTl & Bur-ling.

   Per Cuiam.

The present suit was brought to recover compensation for the partial destruction of an automobile bus belonging to the plaintiff, resulting from a collision between it and a train of the defendant company at the Lincoln avenue crossing, in the city of Wildwood. The trial resulted in a verdict in favor of the plaintiff for $1,500, and the defendant was allowed a rule to show cause.

The first ground upon which we are asked to make the rule absolute is that the proofs clearly demonstrated that the accident resulted, in part at least, from the negligence of the driver of the plaintiff’s bus. Our examination of the testimony sent up with the rule satisfies us not only that this question was one to be left for the determination of the jury, but that its finding in favor of the plaintiff on this point was not so clearly against the weight of the evidence as to justify us in making the rule absolute.

Next, it is argued that the testimony clearly preponderates in favor of the conclusion that the employes of the defendants, who were operating the train, were not guilty of negligence. Our conclusion, after examining the testimony on this point, is that the finding of the jury to the contrary is not so clearly against the weight of the testimony as to justify us in setting this verdict aside.

Lastiy, it is argued that the verdict is excessive. We consider this contention without merit. The proofs showed that the expense of repairing the bus was $1,200, and that the plaintiff was deprived of its use during the busy season of the year, and that its loss resulting from such deprivation was at least $300.

The rule to show cause will be discharged.


text:
    HENRIETTA RAPP ET UX. v. BUTLER-NEWARK BUS LINE, INCORPORATED.
    Decided May 17, 1927.
    Negligence — Injury to Passenger of a Motor Bus — Judgment For Plaintiff — Rule to Show Cause Discharged — Case Then Appealed — No Exceptions Appear to Have Been Reserved and in Such Cases the Presumption is That There was No Such Reservation — Appeal Dismissed.
    On appeal from the Essex Circuit.
    Before Gummere, Outer Justice, and Justice Trenchard.
    For the appellant, Heine, Bradner & Laird.

    For the respondents, John A. Matthews.

   Per Curiam.

This suit was brought by Henrietta Eapp and her husband to recover compensation for injuries received by her while riding as a passenger in a jitney bus belonging to the defendant company, and also for the expenses incurred and loss of services sustained by her husband as the result of her injuries. The trial resulted in the rendering of a verdict in her favor for $3,350, and in favor of her husband for $750. Thereupon, the defendant company applied for and was allowed a rule to show cause why this verdict should not be set aside and a new trial granted. Upon the return thereof. Judge Dungan, after having heard the argument of counsel and having considered the merits of the application, discharged the rule. So far as the state of the case shows, no exceptions were reserved in the rule to show cause; and, in the absence of evidence to the contrary, the presumption is that there was no such reservation. This being the situation, the defendant, by suing out the rule to show cause, waived his right of appeal. See Supreme Court rule No. 139.

Eor the reasons indicated, the appeal will be dismissed.


text:
    STATE, EX REL. JULIUS BOOKBINDER ET AL., v. TOWN OF IRVINGTON AND GEORGE F. SCHMITT, BUILDING SUPERINTENDENT.
    Decided May 17, 1927.
    Zoning — Business and Apartment-houses in Residence Territory —Case Within Rule in the Nutley Case.
    On mandamus.

    Before Gummere, Chief Justice, and Justice Trek-chard.
    Eor the relators, Maurice J. Zuclcer.

    Eor the respondents, Charles H. Stewart.

   Per Curiam.

The relators are the owners of a plot of ground on the northwesterly side of Elmwood avenue and Headley Terrace, in the town of Irvington. They applied to the building superintendent of the town for a permit authorizing them to erect on this plot a building to be used for stores on the first floor and apartments on the second floor. The application was refused upon the sole ground that the zoning ordinance of the town prohibited the erection of such a building in that locality. The relator thereupon applied for and obtained an alternative writ of mandamus, calling upon the respondents to issue to the relator the permit requested or to show good cause to the contrary thereof.

In making return to the writ, the respondents made no attempt to justify the refusal of the building superintendent upon any other ground than that the ordinance of the town prohibited the erection of such a building upon the relator’s property.

The case thus presented is identical in its legal essence with that of State v. Nutley, 99 N. J. L. 389. As the decision of the case cited was by the Court of Errors and Appeals, it is controlling upon us.

A peremptory writ will be awarded to the relator, together with costs of suit.


text:
    DAVID A. PERLMAN, PLAINTIFF-RESPONDENT, v. MAX ZEABELLE, DEFENDANT-APPELLANT.
    Submitted January 28, 1927
    Decided May 16, 1927.
    Contracts — Auctioneer's Agreement to Sell on Commission-Defendant Alleged That His Conduct was so Negligent That There was No Sale, and Filed Counter-claim For Damages— Directed Verdict For Plaintiff — Held, That This was Not Justified, That a Jury Should Have Considered Defendant’s Story — Venire De Novo Awarded.
    On appeal from the Passaic County Circuit Court.
    Before Gum mere, Chief Justice, and Justice Teen-chard.
    Eor the appellant, Freeman & Freeman (Forster W. Freeman, Jr., of counsel).
    Eor the respondent, Peter Cohn.

   Per Curiam.

This action is founded upon a written contract wherein the defendant engaged the plaintiff, an auctioneer, to sell goods. The contract is as follows:

“Articles of agreement made this 13th day of May, 1925, made between David A. Perlman Companjr, of the city of Paterson, county of Passaic, and State of New Jersey, of the first part, and Max Zeabelle, of the city of Paterson, county of Passaic, State of New Jersey, of the second part, for and in consideration of the sum of one dollar and other valuable considerations the said party of the second part agrees to appoint said party of the first part as auctioneer for the sale of all goods and chattels in the premises at No’. 347 Main street, in the said city of Paterson, belonging to the said party of the second part, and further agrees to pay to the said party of the first part five per cent, of all sales made by the said parties, or its agents from the sale of said goods and chattels.

“The said party of the second part also agrees to pay the cost of all advertisements for said sale, and expenses during said sale, expenses to be $400 or less.

“In witness whereof, the said parties have hereunto set their hands and seals this 13th day of May, 1926.

“M. Zeabelle.”

The complaint sets out the engagement and agreement to pay five per cent, on all sales, besides expenses; that $283 was expended; that plaintiff sold the goods, &c., to defendant, or his agent, for $7,500; that plaintiff was paid on account of what was due him $127, and that there remains due $500.

In his answer -the defendant denied payment of $127, saying that the plaintiff took it without defendant’s authority, and by way of counter-claim defendant alleged that plaintiff neglected and refused to carry out the contract; that defendant was put to a large amount of expense; that the plaintiff so negligently carried on that no sale resulted; that thereafter, plaintiff, after the contract was canceled, proceeded to re-advertise the goods to the great damage of defendant’s business, all to defendant’s damage of $2,500.

The trial judge directed a verdict for the plaintiff for $500 and the defendant appeals.

It seems clear that the first, second, third, fourth, fifth, sixth and seventh grounds of appeal are unavailing. They relate to admission or rejection of evidence, but are in such general language that the evidence in question cannot be identified, and under well-settled principles will not be considered. Bowen v. State Highway Commission, 5 N. J. Mis. R. 10.

The only ground of appeal that we find requiring consideration is the eighth and last. It is because the judge directed a verdict in favor of the plaintiff and against the defendant, over the objection of defendant.

We think that this direction of a verdict cannot be sustained. We think that it was open to the jury, if they believed the defeiulanf/s evidence, to find, as contended by the defendant, that this pretended sale was so negligently and improperly conducted by the plaintiff as to result in no sale. There was evidence that the property was first bid in by the defendant; that thereafter, on the same day, by an arrangement between the plaintiff and the defendant, that bid of the defendant was disregarded and the property put up for sale again; and that then, without the knowledge or consent of the defendant, the property was knocked off by the plaintiff to one of his own men who had no intention of purchasing, and who had not even made a bid; and it is not contended, even by the plaintiff himself, as we understand it, that this was a sale, or was thought to be a, sale, and certainly it did not result in a sale.

Since, as we think, it was open to the jury to infer that this was not a sale, and was not intended to be a sale, but was a contrivance of the plaintiff for purposes of his own, we do not perceive upon what theory the judgment could be directed for the plaintiff for commissions, because by the language of the contract the defendant was only required to pay commissions of “live per cent, of all sales.” The case must therefore be sent back for retrial.

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


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    FARMER & OCHS COMPANY, PLAINTIFF-APPELLANT, v. DAVID GINSBURG AND CHARLES GINSBURG, DEFENDANTS-RESPONDENTS.
    Submitted October 15, 1927
    Decided May 16, 1927.
    Replevin — Motor Vehicle — Action Between Mortgagee’s Assignee and Purchaser Under Action Under Garage Keepers’ Lien Act — Judgment For Purchaser Under Lien — Mortgage was Properly Executed and Recorded in New York, Where the Sale was Made, but With Provision That the Vehicle was to be Kept in Morris County — No Official Record of Mortgage in That County nor in Any Other County in New Jersey — Held, That the Mortgage, Notwithstanding the Amendment of 1925 to the Garage Keepers’ Act, Cannot Prevail Here; That a Foreign Chattel Mortgage Can Have No Extraterritorial Effect Beyond That Which Specifically May be Given it by the Laws of This State, and That No Suc!h Effect is Given by Our Laws Relating to Chattel Mortgages.
    On appeal from the District Court of the First Judicial District of the county of Morris.
    Before Justices Kalisci-t, Katzenbaci-i and Lloyd.
    For the appellant, Braelow <& Tepper and George F. Laluy, Jr.

    For the respondents, Seih E. Ely.

   Per Curiam.

This is an appeal from a judgment of the District Court of the First Judicial District of the county of Morris. The action was one of replevin. The question involved was whether a chattel mortgagee’s claim to possession of an automobile truck was superior to a title to the truck obtained by a purchaser at a sale under a garage keeper’s lien. The facts necessary of a proper understanding of the situation were that on November 25th, 1925, the Bessemer American Motors Corporation, a Pennsylvania corporation with an office at Plainfield in this state, sold to Julius Turetsky and Harry Schwimmer, in New York Citj’, a Bessemer truck. The vendees gave to the vendor a chattel mortgage, which was recorded in the office of the registrar of New York county on December 17th, 1925. The mortgage contained the provision that the mortgagors were to maintain the truck at No. 120 McEarlan street, Dover, New Jersey, and would not remove the same without the written consent of the mortgagee. While the truck was being so maintained according to the terms of the chattel mortgage, the Dover Auto Supply Company of Dover, New Jersey, acquired a garage keeper’s lien for supplies. On February 15th, 1926, under proceedings to enforce the lien the truck was sold to Charles Ginsburg. The Farmer & Ochs Company, assignee of the chattel mortgage, then instituted the replevin action against Charles Ginsburg and David Ginsburg to recover possession of the truck. The siius of the truck was given in the chattel mortgage as Dover, which is in the county of Morris. The chattel mortgage was never filed or recorded in the Morris county clerk’s office. The chattel mortgage was in the form proper for a New York mortgage. Upon these facts the District Court gave judgment for the defendants.

The plaintiff has appealed to this court and contends that the truck and the parties to the chattel mortgage being in New York City at the time of the making of the chattel mortgage, the recording of the instrument in New York City was sufficient to make it a first lien o-n said truck and superior to the title which the defendants below obtained under the lien sale. The appellant further contends that it is protected by the 1925 amendment to the Garage Keepers’ Lien act (Pamph. L. 1925, p. 96), which provides that such lien shall not be superior to, nor affect, .any lien, title or interest of any person or corporation held by virtue of a prior conditional sale or of a prior chattel mortgage properly recorded.

We do not think that a mortgage in New York form, and recorded in New York, is entitled to the protection of this amendment of the New Jersey Garage Keepers’ Lien act under the circumstances of the present case. The Chattel Mort-

gage act (Pamph. L. 1902, p. 487) contains requirements which are obviously intended for the protection of the creditors and purchasers of property which is in the apparent possession and control of persons other than the mortgagee, and contemplates that notice of such reserved lien or title shall be brought home to such persons in this state by proper affidavit as to the purpose and consideration of said instrument, and by proper recording. That recording in this state is required of all chattel mortgages is evidenced and made clear from the provision of the act exempting the recording as a chattel mortgage a mortgage of rolling stock and personal property of a railroad company, if the mortgage is recorded or registered as a real estate mortgage in those counties where the railroad company’s real estate is located. If the law were otherwise as to chattel mortgages made and recorded in a foreign state it would be affording protection to a mortgagor in possession where, under similar circumstances, he would not be protected if the mortgage were made and recorded in this state. In other words, a chattel mortgage, valid according to the laws of New York, would protect the mortgagee in this state even though an affidavit of the consideration, &c., of the mortgage was not made a part thereof as required by the laws of this state. To hold, as the appellant contends, would also frustrate the requirements of section 5 of the Chattel Mortgage act, which requires that the mortgage shall be recorded in the clerk’s office of the county where the property shall be at the time of the execution of the instrument, and with the proviso that where the office of register of deeds is created then the mortgage shall be recorded in that office. These requirements clearly indicate that a recording of a chattel mortgage in a county in this state is required for the protection of a mortgagee against creditors and purchasers of the chattel mortgage.

A foreign chattel mortgage should have no extra-territorial effect beyond that which may be specifically given to it by the laws of this state. Inasmuch as a recording in this state is contemplated by our act, and inasmuch as the New Jersey act provides that it shall be void, unless the requirements of the act be complied with, as against all creditors, of which of course the garage man with a lien is one, it seems to us to follow that a recording in New York of a chattel mortgage of an automobile delivered in that state, but having its situs fixed in New Jersey by tlie terms of the mortgage, even though proper!}' recorded there, is not effective to defeat the lien created by the Garage Keepers’ Lion act of 1915, as amended in 1935.

If we are wrong in this conclusion there is another aspect of the case which we think leads to the same result. While the chattel mortgage was made in New York City, and the truck which it covered was at the time of its execution in the city of Xew York, yet the parties to the mortgage knew that the truck was to he immediately taken to New Jersey and had provided m the mortgage for a New' Jersey situs for the truck so that the truck was to be permanently located in New Jersey by the terms of the mortgage. With this knowledge as to the situs of the truck the mortgagee took no step to protect its interest by recording the mortgage in the county of the situs of the truck, assuming that the mortgage was draw'll in proper form. It would naturally be in New Jersey that storage and supplies for the truck, for which a garage keeper would have a lien, would be obtained. One who furnished storage, &c., would have no way of knowing, in the absence of any record of a lien, whether there was a superior lien against the truck. It seems to us that the mortgagee is estopped from asserting, as against a garage keeper’s lien, a claim of superior title, because the failure of the mortgagee to protect his interests by a proper recordation of the mortgage in New Jersey would create a situation which would result in loss to the garage keeper or an innocent purchaser under a sale to foreclose a garage keeper’s lien, if we recognized and gave to the New York mortgage the same force and effect' as if made and recorded according to the laws of this state.

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


text:
    MONTE FREUND v. ANNA CONA.
    Decided May 17, 1927.
    Contract — Judgment on Check Made by Defendant to Plaintiff— Defendant Alleged Lack of Consideration — Neither Defendant Nor Counsel Were Present When Trial was Moved— Case Tried Ex Parte — Rule to Show Cause Why Case Should Not be Reopened, Denied — Upon Appeal All Grounds For Reversal Considered and Judgment Affirmed.
    On appeal from the Essex Circuit Court.
    Before Gummere, Chief Justice, and Justice Teen-chard.
    Eor the appellant, Joseph C. Cassini.

    For the respondent, Michael J. Quigley.

   Per Curiam.

This action was brought by Freund, the plaintiff, to recover from the defendant the sum of $1,000, claimed to be due upon a check for that amount made by her to his order. The defendant in due course filed an answer setting up that the check sued upon was made without consideration. The case was listed for trial at the April term, 1926, and was reached on the call of the calendar on the 10th of June, and its trial moved by the plaintiff’s attorney. Neither the defendant nor her attorney was present when the case was moved, and it was, therefore, tried ex parte. The trial resulted in a verdict in favor of the plaintiff, and judgment was entered thereon. After the entry of the judgment, and on the application of the defendant, a jule was allowed requiring the plaintiff to show cause why the judgment should not be opened and the defendant permitted to interpose a defense. This rule, upon the hearing had thereon, was discharged. The defendant thereupon took the present appeal.

The first ground of attack upon this judgment is that it was “entered by default” and in violation of defendant’s legal rights. This contention is manifestly without merit. As has already been stated, it appears from the record of the judgment that it was entered on the verdict of a jury; and that the only “default” was that of the defendant in failing to appear when the case was called.

Next, it is contended that the judgment under review was entered against the defendant by surprise, and that, for this reason, it should be reversed. In support of this claim counsel asserts that he was absent from court because of sickness; but it does not appear that the fact was brought to the attention of the court when the case was moved, and it was because of his failure to see that this was done, coupled with his failure to be present personally, or, if he was unable to attend, then his failure to have another attorney there to represent him and move a postponement, that the case was tried ex parte. His own dereliction in the performance of the duty that he owed to his client constitutes no ground for reversing the judgment. Moreover, if the facts recited constitute a sufficient excuse for the failure both of his client and himself, or a representative, to attend when the caused was moved, this constitutes no grounds for an appeal. The remedy is an application to the court in which the judgment was entered to vacate it and grant leave to file an answer upon presenting to the court facts from which it would appear that there was a meritorious defense. Waller v. Keuthe, 98 N. J. L. 823. The course pursued by counsel for the appellant indicates his appreciation of this fact.

The only other grounds for reversal argued before us are directed at the refusal of the Circuit Court to open the judgment, the contention being that the rule to show cause above referred to should have been made absolute Instead of having been discharged. In the first place, this question is not before us for consideration. The appeal is from the judgment alone, and not from the rule dismissing the rule to show cause. In the second place, even if the appeal had been twofold, the refusal of the trial court to open the judgment is not a subject for appeal. The matter is one resting in the sound discretion of that court. Assets Development Co. v. Wall, 97 N. J. L. 468.

The judgment under review will be affirmed.


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    STATE, EX REL. WILLIAM EICHLER, v. TOWN OF IRVINGTON AND GEORGE F. SCHMITT, BUILDING SUPERINTENDENT.
    Decided May 17, 1927.
    Zoning — Stores and Apartments in Residence Territory — Case Within Rule in Nutley Case.
    On mandamus.

    Before G-ummeke, Chief Justice, and Justice Tkenchaed.
    For the relator, Ma/arice J. Zuclcer.

    For the respondents, Chaodes II. Stewart.

   Per Curiam.

The relator, William Eichler, is the owner of certain premises located at the southwest corner of Myrtle avenue and Woodlawn Place, in the town of Irvington. He applied to Schmitt, the superintendent of buildings of that town, for a permit to erect upon this lot a two-story brick building, containing three stores on the first floor and two apartments on the second floor. His application was denied by the superintendent upon the sole ground that the zoning ordinance of the town prohibited the erection of such a building in that particular locality. The relator thereupon applied for and obtained an alternative writ of mandamus, calling upon the respondents to issue to the relator the permit requested or to show good cause to the contrary thereof. In making return to the writ, the respondents made no attempt to justify the refusal of the building superintendent upon any other ground than that the ordinance of the town prohibited the erection of such a building upon the relator’s property.

The case thus presented is identical in its legal essence with that of State v. Nutley, 99 N. J. L. 389. As the decision of the case cited was by the Court of Errors and Appeals, it is controlling upon us.

A peremptory writ will be awarded to the relator, together with costs of suit.


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    CLARENCE H. CONOVER, PLAINTIFF-RESPONDENT, v. CHARLES E. SCHROEDER, DEFENDANT-APPELLANT.
    Argued January 18, 1927
    Decided May 16, 1927.
    Contracts — Architect’s Judgment, in Effect, Directed by the Court so far as a Liability For Damages was Concerned— Held, That Evidence was Not so Complete as to Justify Such a Position — A Venire De Novo Awarded.
    On appeal from the Atlantic County Circuit Court.
    Before G-ummerb, Chief Justice, and Justice Then-chard.
    Eor the appellant, Cole & Cole.

    For the respondent, Lee F. Washingioti.

   Per Curiam.

This is an appeal from a judgment of the Atlantic Circuit Court entered upon a verdict of a jury in favor of plaintiff, an architect, who sued Sehroeder in his lifetime to recover for services alleged to have been performed in the preparation of plans, &e. Sehroeder died, and his executor was substituted as defendant. ’

The complaint averred that the defendant agreed to pay plaintiff for his services, the “reasonable and customary charge of architects in Atlantic City for such services;” that plaintiff prepared such preliminary plans for defendant’s residence and garden almost to the point of final completion, when, without legal cause, defendant notified plaintiff to go no further with the work.

The answer, as we view it, in effect, denies that any work was done pw'suant to any agreement with defendant.

On this appeal the defendant’s main point is that there was error on the part of the trial court in precluding defendant’s counsel from arguing to the jury any question except the amount of damages to be recovered, and in effect directing a verdict for the plaintiff so far as a liability was concerned.

The trial judge took that position because he thought and said that the plaintiff’s uncontradicted testimony showed that the defendant ordered the plaintiff to perform the services.

No doubt there was evidence from which the jury could have inferred, if it saw fit, that Sehroeder employed the plaintiff to prepare the plans; but we do not think it was conclusive, nor that it compelled the inference that such work as plaintiff did, he did under an employment by the defendant, Sehroeder. The evidence, by reason of the death of Sehroeder, was necessarily circumstantial in character upon the question whether or not these plans were ordered by Sehroeder in his lifetime. Varying inferences might reasonably have been drawn therefrom, and we think it was error to withdraw this question from the consideration of the jury, leaving only the question of damages.

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


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    EMMA LEWITT, SAMUEL LEWITT AND KATHERINE DRURY, PLAINTIFFS, v. WALTER VOLLMAN, DEFENDANT.
    Submitted January 28, 1927
    Decided May 16, 1927.
    Negligence — Motor Vehicle — Defendant, in a Long Line of Vehicles, Cut Out of the Line, Passing Plaintiffs’ Car and Colliding With a Truck Ahead, Which was so Injured Thereby That it Collided With Car in Which Plaintiffs Were Riding — No Error in Trial Which Found a Verdict Against Defendant — Awards Not Excessive.
    On defendant’s rule to show cause Avhy plaintiffs’ verdict should not be set aside.
    Before Gttmhere, Chief Justice, and Justice Trenchard.
    Eor the rule, Frank G. Turner.

      Contra, Wilbur A. Heisley.

   Per Curiam.

This is defendant’s rule to show cause why plaintiffs’ verdict should not be set aside.

Plaintiffs were riding as guests in an automobile driven by one Grushkin, proceeding south on the road between Elizabeth and Rahway at two p. m., August 8th, 1925, on a clear day. The traffic was exceedingly heavy and formed a continuous line going south. The traffic in the other direction was light.

Defendant, Yollman, Avas driving a Buick car going south, in the same direction as the plaintiffs. Yollman, for some reason, turned out of the line of traffic and proceeded at a rapid rate along the center of the road, evidently intending to get into the line of traffic farther on. He passed the car in which the plaintiffs Avere riding on the left and then collided Avith a truck of the Gottfried Kreuger Breiving Company, which was proceeding north, about fifty or seventy-five feet away from the car in which plaintiffs were riding. Immediately after the collision the Kreuger truck cut diagonally across the road and struck the plaintiffs’ car, forcing it over on its side; and the evidence tended to show that the gyrations of the Kreuger truck resulted from the collision with Vollman’s automobile which inflicted some injury to the steering gear of the Kreuger truck.

The evidence also tended to show that this collision between the Yollman automobile and the Kreuger truck was the result of the reckless speed and reckless conduct of Yollman in trying this weaving-in undertaking.' In such condition of the proof it seems quite plain that the trial judge did not err in refusing to direct a verdict in favor of the defendant, Yollman, as contended by him.

The jury rendered a verdict against Yollman alone, although the brewing company was joined as defendant. They found for Mr. Lewitt, $1,500; for Mrs. Lewitt, $1,500, and for Miss Drury, $500. The defendant contends that these verdicts were excessive.

Manifestly, they were not. They were quite moderate. All of the plaintiffs were cut and bruised and were laid up for varying periods of time.

The rule will be discharged.


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    JOHN BECKER, BY HIS NEXT FRIEND, ROSE BECKER, AND ROSE BECKER, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. J. D. LOIZEAUX LUMBER COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.
    Submitted January 28, 1927
    Decided May 21, 1927.
    Negligence — Injury to Boy by a Truck of Defendant — Verdict of $250 For Boy, No Award For Mother — Existence of Negligence Question — Award Thought Inadequate — For These Reasons a New Trial Will be Awarded.

      On plaintiffs’ rule to show cause.
    Before Justices Kalisch, Katzejstbac h and Lloyd.
    Por the rule, Robert Newton Crane.

      Contra, Thomas Brown.

   Per Curiam.

These were actions by John Becker, a boy eleven years of age, to recover damages for injuries received when struck by a truck of the defendant, and by his mother to recover the damages sustained by her in consequence of such injuries.

There was a verdict for the plaintiff John Beck in the sum of $250. The record exhibits no verdict in the mother’s case.

The reasons in support of the rule are that the verdict was inadequate as to the boy, and that the jury awarded no damages to the mother.

As to the boy’s injuries it appears that he was knocked down, rendered unconscious and remained so for two days, with bleeding from the ears and mouth and vomiting spells. He had concussion of the brain with possibly a fracture of the skull. He remained in the hospital for two weeks and subsequently suffered headaches, lameness, affection of the eyesight, sore jaws and inability to eat hard substances; one tooth was broken and there was a scar upon his face. This condition continued from the time of the accident on May 15th, 1925, until the time of the trial, November 5th, 1925.

The damages seem to us so inadequate as to require a retrial of the case of the boy. It is suggested by the defendant that the small verdict was due to the meagreness of the evidence as to negligence. This, if true, would logically require a verdict for the defendant, and but emphasizes that the verdict should be set aside.

The rule on behalf of John Becker will be made absolute.

As to the plaintiff Eose Becker, there being no verdict, a mistrial resulted and the case will be retried.


text:
    WILLIAM DUNN, PETITIONER, v. THE EDWARDS CONSTRUCTION COMPANY, DEFENDANT.
    Decided May 26, 1927.
    Workmen’s Compensation — Award of Bureau Increased by the Common Pleas Court — Held, Sufficient Testimony to Justify Increase.
    On. certiorari to the Hudson Common Pleas.
    Before Justice Minturn, by consent.
    For the petitioner, William B. Sewell.

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

   Per Curiam.

The writ removes a judgment of the Hudson Common Pleas modifying an award of the workmen’s compensation bureau by increasing the award of the latter tribunal from seven and one-half per cent, to twenty-five per cent, as compensation for temporary and permanent disability suffered by the petitioner as the result of an accident arising out of and in the course of petitioner’s employment by the defendant while engaged in the erection of the structure finally completed upon what is known as “Boyle’s Thirty Acres,” in Jersey City.

An examination of the testimony presented to the Common Pleas, together with the briefs submitted by respective counsel, leads me to the conclusion that the Court of Common Pleas had before it sufficient testimony to warrant the increased award. The judgment of the Common Pleas will therefore be affirmed.


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    JAMES R. MOONEY, APPELLEE, v. ALDERMAN S. NEWBERN, IMPLEADED, ETC., APPELLANT.
    Argued May 4, 1927
    Decided May 24, 1927.
    Contracts — Construction—A Subcontractor Having Completed a Part of His Work was Directed by Contractor to Stop — He Finished the Work and Sued For Compensation — Held, That He May Stop and Sue For Damages or Continue and Sue For Contract Price.
    On appeal from the Orange District Court.
    Before Justices Parker and Campbell.
    Por the appellant, Abraham, M. Herman.

    Por the appellee, Edward L. Davis.

   Per Curiam.

Plaintiff was a subcontractor with defendant Newbern, principal contractor, on a house of the other defendant Dolson. We do not discover from the state of the case whether plaintiff’s contract with Newbern was in writing; probably it was not, as there is a dispute on the evidence whether the contract price was $530 or $535, a question which is immaterial because the action was in the District Court and the excess over $500 was waived as required by the statute. The contract of Dolson with Newbern was apparently in writing, and fil'd. After the plaintiff was about half through the work on his subcontract he needed money, asked Newbern lor a payment on account, but failed to get it. He served two stop-notices in succession on Dolson, the owner, and the suit against the latter is based on these stop-notices and on Dolson’s separate express promise to pay him if he would go on and finish the subcontract. There was a judgment against Dolson with which wo are not concerned, as he does not appeal.

Plaintiff also pressed his claim against Newbern and had judgment for $500 of the contract price above noted, and this is the subject-matter of the appeal. The grounds of appeal are that the court refused to nonsuit, and that the court directed a verdict for the plaintiff.

It appeared without contradiction that plaintiff had proceeded to finish the work after receiving the express promise of Dolson to pay him for so doing; and it is claimed that this amounted to a novation releasing Newbern, and that this required a nonsuit. We do not regard it as a novation, but as a supplemental contract by the owner superadding his responsibility to that of Newbern. There is nothing to show that Newbern was consulted at all in the negotiations between plaintiff and Dolson. In a novation involving three parties, such as an old debtor, a new debtor, and the creditor, it must appear that all three concurred in the substitution of the new debtor for the old and the release of the latter. 29 C. J. 1136. The case is barren of any assent between plaintiff and Newbern to the release of the latter and the acceptance of Dolson's obligation in lieu of that of Newbern. The nonsuit was property denied.

As to the direction of a verdict, the case was this: the original subcontract was not denied. It was asserted by Newbern, and denied by the plaintiff, that Newbern had notified plaintiff not to finish his work. This was, of course, a jury question if material, but the judge considered it was not, and we agree with him. The judge properly held that one party to an entire contract not completely performed by the other cannot cancel or reduce his liability by notifying the other party not to complete. There is a line of cases (Wilson v. Borden, 68 N. J. L. 627, &c.) in which the contractor is in effect turned off the premises by the owner; but that is not this case. If Dolson had told Newbern to stop work, a different situation would arise. But when Newbern told plaintiff to stop’ halfway on a job in another man's house, it was optional with plaintiff to stop and sue for damages, or to go on and complete his original contract and demand the stipulated price. We see no substantial distinction between this case and a case where A agrees to pay B $50 for making a suit of clothes, or a table, or whatnot, and tells B to stop work before he has finished the job. B may stop- if he chooses, and sne for damages; or refuse to stop, and hold A for the contract price.

There being no dispute about the material facts, the verdict was properly directed.

It is intimated in the brief that plaintiff refused to proceed with the work unless he received a payment on account, but we do not find this in the state of the case and therefore have given it no consideration.

The judgment will be affirmed.


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    LEHIGH VALLEY RAILROAD COMPANY, A CORPORATION, PROSECUTOR, v. THE BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., DEFENDANTS.
    Argued May 21, 1927
    Decided May 31, 1927.
    On application for writ of certiorari.

    Before Justices Treno hard, Kalisch and Katzenbaoh.
    Pot the applicant, Hobart & Minará.

    Eor the board of public utility commissioners, John O. Bigelow.

    Eor the county of Somerset, John F. Reger.

    Eor the township of Hillsborough, Clarkson A. Cranmer.

   Per Curiam.

The application for the writ of certiorari is denied.


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    FRANK VOLLINGER, PLAINTIFF, v. SCHWARZ & SON, A CORPORATION, AND ANDREW J. HARFORD, DEFENDANTS.
    Submitted January 28, 1927
    Decided May 25, 1927.
    Negligence — Motor Vehicle Collision — A Truck, on a Dark and Rainy Night, in Attempting to Enter a Garage Along the Roadside was Injured, Resulting in the Impairment of the Lighting System — Truck was Backed Part Way Across Road and While Being Repaired was Run Into by Car of Plaintiff — No Effort Made to Warn Those on the Road of the Injured Truck — Held, No Evidence of Contributory Negligence, and That That is a Jury Question Any Way.
    On defendants’ rule to show cause why plaintiff’s verdict should not be set aside.
    Before Gummere, Chiee Justice, and Justice Trenchard.
    Eor the rule, Kalisch & Kalisch.

      Gonlrn, Hirschberg cf; Rubensiein (Samuel L. Hirschberg, of counsel).
   Per Curiam.

This is defendants’ rule to show cause why plaintiff’s verdict should not be set aside.

At the trial, by a preponderance of the evidence, the following matters of fact appeared:

The defendant Harford was driving a truck for defendant Schwarz & Sion on the highway, out in the open country, and was about to deliver some merchandise to a garage. It was in the night time, and the night was dark, misty and foggy. He was turning into the driveway of the garage when he ran into a telephone pole which was off the road by the side of the highway. This accident put out his lights. He backed under Ms own power from the pole, and his truck, in a diagonal position, rested partly upon the paved part of the highway. A few minutes thereafter, while his car was standing there without lights, and while he was endeavoring to have the injury to his car repaired, the automobile driven by the plaintiff at about twelve miles an hour ran into the rear of the standing car and plaintiff was injured.

The jury returned a verdict of $3,500 against both defendants.

We think there was no error in the refusal to grant motions to nonsuit and to direct a verdict in favor of defendants. The questions of negligence and of contributory negligence were clearly jury questions. Rearing in mind that it was a dark, misty and foggy night, we see nothing from which it can be said that plaintiff was guilty of: contributory negligence as a matter of law. The fact that the automobile truck was left for a considerable time standing on the highway without lights and without any effort whatever to warn the traveling public of its presence, we think clearly justified a finding of negligence upon the part of the defendants.

We think the verdict not excessive. The plaintiff was rendered unconscious, was taken to the hospital, where ho remained for two weeks, and was fourteen weeks at Ms home. He appears to be crippled through an injury to his back which interferes with anything in the way of lifting or heavy work. His loss in wages was $608. He is now earning $11 a week less than he formerly earned. The testimony is that if he recovers completely the injury will take at least a year to clear up; and, considering the pain and suffering, the verdict does not seem to be excessive.


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    CHRISTIAN PAVLIKA, INDIVIDUALLY AND AS NEXT FRIEND OF ANITA PAVLIKA, AN INFANT, PLAINTIFFS-RESPONDENTS, v. ERNEST GIGLIO, DEFENDANT-APPELLANT.
    Submitted January 28, 1927
    Decided May 25, 1927.
    Negligence — Injury to Young Child by Automobile — No Error Found in Admission of Testimony — No Harmful Error in Charge That a Child Under Age of Seven Cannot be Charged With Contributory Negligence, Since Contributory Negligence is a Defense Under Rule 57, and it was Not Pleaded as a Defense — No Error Found in Charge Relating to Provisions of Motor Vehicle Act — Excessive Nature of Award Not Considered on Appeal.
    On appeal from the Hudson County Court of Common Pleas.
    Before Gummere, Chief Justice, and Justice Trenchard.
    Eor the appellant, Parleer, Emery & Ycm Piper.

    Eor the 'respondents, Alexander Simpson.

   Per Curiam.

This action was brought by a father as the next friend of a child about five and a half years old, to recover for injuries received by her through being run down by' an automobile of the defendant, and also to recover loss sustained by him individually because of the injury to the child. The trial resulted in a verdict for the infant of $5,000 and for the father $500.

The first ground for reversal is that the court erred in permitting the following question to be answered by the physician of the injured child over the objection of the defendant: “Was her condition dangerous; would such a wound be fatal if not properly attended to?” This contention is ill-founded in point of fact. The question was not answered by the witness. That which followed it was qnite different in its meaning, and was not objected to. It was as follows: “That wound, if not properly attended to, is a dangerous one ?” The answer was, “Any wound, if not properly attended to, can he dangerous.” Even if the latter question had been objected to, and the objection was well taken, the answer rendered it harmless.

The next point is that the court erred in charging the jury that, under the law, “a child under the age of seven years old cannot be charged with contributory negligence.” This instruction was not entirely accurate. The law presumes that a child under that age has not contributed by her negligence to the happening of the accident; but this presumption may be rebutted by proof to the contrary. Altieri v. Public Service Railway Co., 101 N. J. L. 241. The instruction, however, was harmless. Contributory negligence is a defense, under rule 58 of the Supreme Court, and it was not pleaded as a defense; but, even if it had been, the legal situation would have been the same, so far as the defendant was concerned; for there was no evidence produced at the trial which rebutted such presumption or from which contributory negligence could have been charged to this infant in the circumstances of the case. This being so, the error was harmless and would not justify a reversal. Practice act of 1912, section 27.

Next, it is said that the court erred in charging the jury as to the provisions of the Motor Vehicle act relating to the driving of such a vehicle. We see nothing of error in this. It is true that the violation of the statute does not necessarily speak negligence; but it is, nevertheless, a factor to be considered by the jury in determining the question of whether or not the defendant was negligent.

Next, it is contended that there was no basis for the charge of the court that the mother was entitled to recover any expense which she might have gone to as a result of the injury, for the reason that there was no evidence whatever that any expense of any kind had been incurred, and, moreover, the mother was not a party to the suit. We think that this is so, and that the court was in error in permitting the jury to pass upon that matter. The result is that the judgment in favor of the father individually should be set aside. But, óf course, this does not affect the judgment entered in favor of the child.

Lastly, it is argued that the verdict in favor of the child was excessive. Of course, that cannot be considered on the appeal from a judgment.

The judgment in favor of the infant plaintiff for $5,000 will be affirmed, and the judgment of the father for $500 reversed, and as to the latter a new trial awarded.


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    HENRY POSNER, PLAINTIFF, v. DAVID NUTKIS, TRADING AS NATIONAL PIANO COMPANY, DEFENDANT.
    Submitted January 28, 1927
    Decided June 4, 1927.
    Negligence — Motor Vehicle Accident Injuring Plaintiff, Who was Either an Invitee or Licensee of Defendant, Who was His Brother-in-law — Verdict for Defendant — No Error in Asking Plaintiff if Defendant Talked to Him About Insurance, the Answer Being a Negative One — No Error in Permitting Defendant to Offer in Evidence a Statement Made by Defendant Himself for the Purpose of Discrediting Defendant’s Direct Testimony, Counsel Having Pleaded Surprise — Defendant was Clearly Friendly to Plaintiff’s Side of Case— Rule of Plaintiff Discharged.
    On plaintiff’s rule to show cause.
    Before Justices Kalisch, Katzrnbach and Lloyd.
    Por the rule, Saul Nemser.

      Contra, John TV. McGeeh.an, Jr.

   Per Curiam.

This is the plaintiff’s rule to show cause why a new trial should not be granted. The action was by David Posner against David N utkis, his brother-in-law, to recover damages for injuries received in a collision alleged to be due to the negligence of the defendant’s chauffeur. It resulted in a verdict for the defendant, and the present rule was allowed by the trial judge.

In support of the rule the plaintiff files as reasons for making the rule absolute alleged trial errors in the rulings of the court, and that the verdict was against the weight of the evidence.

Taking up the last reason first, there were two questions involved in the trial — (!) whether the plaintiff was an invitee or licensee, and. (2) whether the defendant’s chauffeur was guilty of negligence in the operation of the defendant’s automobile.

•The plaintiff’s testimony was that in August, 1925, he was about to take his summer vacation and that the defendant sent him up in his (defendant’s) car. That arriving at his destination the plaintiff did not like the place and started back, and while on the return the accident happened by reason of the car running into a pole. Parts of the defendant’s testimony corroborated the plaintiff, but other parts indicated that the car and chauffeur were loaned and were not at the time of the accident under the defendant’s control.

As to the accident itself, the plaintiff testified that the car was going from thirty to thirty-five miles an hour, and that he did not know whether the car skidded or how the accident happened, but that the pavement was wet at the time; that he told the chauffeur to stop and that he did not stop but ran into a pole. The chauffeur testified that he was going eighteen or twenty miles an hour as he approached the top of a hill, of the existence of which he was ignorant, and after reaching the crest the car went faster, and that they proceeded about one hundred to two hundred feet down the hill before the accident happened; that there was a curve; that his car wheel got caught in a rut and his car skidded,-running into the pole.

Assuming that there was evidence of negligence to be extracted from this testimony, whether there was, in fact, negligence presented a fair question for the jury’s determination.

Of the alleged trial errors one was that in the progress of the case the defendant was asked if he talked with the plaintiff about insurance. Objection was made and exception noted, but to the question the witness gave a negative answer. Apart from the fact that the answer rendered the question nugatory in its effect, the situation more nearly paralleled that of Day v. Donohue, 62 N. J. L. 380, than that in Sutton v. Bell, 79 Id. 507.

The only other point raised was that the trial judge erred in permitting the defendant to offer in evidence a statement made by the defendant himself for the purpose of discrediting defendant’s direct testimony, counsel pleading surprise. The defendant was clearly friendly to the plaintiff’s side of the case (the reason for which it is not difficult to surmise) and therefore hostile to his own. It was the right of counsel, under these circumstances, to offer in evidence the contradictory statements under the case of State v. D’Adame, 84 N. J. L. 386. The question of surprise was one for the trial judge. We think there was sufficient to indicate that the defendant’s counsel was surprised, and this laid the ground for the introduction of the contradictory proofs.

Finding that the verdict is not against the weight of the evidence on either the relation of the defendant to the chauffeur of the car, or of negligence in its operation, and that there were not trial errors justifying a new trial, the rule is discharged.


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    AGATINA CORALILLO, PLAINTIFF-APPELLANT, v. WILLIAM KAISER, DEFENDANT-APPELLEE.
    Decided June 7, 1927.
    Landlord and Tenant — Judgment for Defendant — Defendant Alleged Loss on Account of Plaintiff’s Failure to Prevent Another Tenant from Competing With Defendant in His Business — Held, That the Agreement was in Contravention of the Statute of Frauds — Held Further, That it Clearly Appeared that the Parties Did Not Come to Any Agreement on the Terms of the Lease and That the Damages Claimed by Defendant were Based Upon the Term of a Proposed Lease, Which Could Not be Agreed Upon — Held Further, That the Nature of Damages Sustained by the Defendant was Highly Speculative — New Trial Ordered.
    On appeal from the First District Court of the city of Newark.

      Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Joseph Zemel (Harry Green, of counsel).
    For the defendant, Hotue & Davis (Edivard L. Davis, of counsel).
   Per Curiam.

This is an appeal from a judgment of the First District Court of the city of Newark, entered upon the' verdict of a jury, in favor of the defendant below, against the plaintiff below, for the sum of $280 damages and costs of suit to be taxed.

The plaintiff had been the defendants landlord and on the theory that the defendant held over, at the expiration of his term for a period of four months, brought her action against him to recover for use and occupation of the premises occupied by the defendant, at a rental value of $70 a month.

To this action the defendant filed a counter-claim, setting up that on the first day of March, 1925, the defendant entered into a lease of the premises, of the store and four rooms on the second floor, at 487 Lakeside avenue, Orange, New Jersey, for a term of three years, at a certain stipulated rent; that in and by this said lease, it was agreed'that the plaintiff would cause to be removed from the store on the premises directly adjoining the premises, being 294 Watehung avenue, Orange, New Jersey, the tenant of the plaintiff occupying the same, or would cause him to discontinue selling the same line of goods as that sold by the defendant, the said goods consisting of confectionery, stationery, soft drinks, dry goods, notions, patent drugs, cigars, tobacco, cigarettes, and the like; that retying on the plaintiff’s agreement to cause the said tenant to discontinue the sale of these goods, the defendant entered into the lease and has duly paid the rent thereunder; that the plaintiff has not caused the said tenant to discontinue the sale of this line of goods, but has permitted him to continue selling the same, as a result of which the defendants profits at his own business have greatly decreased, amounting at the present time upward to $500.

In response to the demand made by the plaintiff for a bill of particulars, the defendant, in substance, stated in writing the following: “(1) The plaintiff should lease the defendant the premises now occupied by him, for the term of three years, including the store and four rooms at 487 Lakeside avenue. Orange, at the rental of $70 a month for the first year and $75 a month for the second and third years; plaintiff to do all nec.essarv repairs inside and outside, to paint the store and rooms inside and outside, and to repair sewer in cellar. Defendant was to use the premises to sell stationery, confectionery, dry goods, drugs, notions, cigars, cigarettes, tobacco, ice cream soda, &e., as a stationery store. The premises directly next door were not to bo used for the purpose of selling anything sold by the party of the second part. Said adjoining premises were to be used for the sale of meats, vegetables, fruits, groceries and delicatessens. (2) Said lease was oral. (3) The occupant of 294 Watehung avenue, was not to sell any of the goods forbidden during the entire occupancy of the premises by the defendant.”

On the trial of the ease, the defendant admitted that he owed the plaintiff $280 for rent, as is claimed in her state of demand.

On behalf of the defendant, testimony was introduced tending to establish the making of the oral lease, and by way of damages, that the defendant’s sales were less than they had been when there was no competition by the plaintiff’s tenant, who occupied the adjoining premises, in the same line of business. The defendant having rested, plaintiff’s counsel moved to strike out the counter-claim and the testimony introduced for the purpose of establishing the counter-claim. It is true that the counsel’s motion to strike out the counterclaim was postulated on the ground that the lease was not in writing and hence came within the statute of frauds; that the contract respecting the tenant of the adjoining premises from selling certain goods was a part of the lease and was not to be performed within a year and hence was void. There was no motion made to strike out the counter-claim on the ground that it was fox unliquidated damages, and therefore could not be properly set up in an action for rent.

It has been held by this court that a cause of action in tort for injuries to an automobile was not a proper subject of counter-claim to an action for broker’s commission and that it was not aided by the Practice act of 1912, section 12. See Rebenfeld v. Friedburg, 3 N. J. Mis. R. 94, and cases there cited. It is clear that the agreement to make a lease for three years with an option of two years more was a contract relating to and concerning an interest in land, tenements and hereditaments, and in order to. be enforceable, the statute of frauds requires that there should be some memorandum or note thereof in writing and signed by the party to be' charged therewith or some other person thereunto by him or her lawfully authorized. Cooper v. Aiello, 93 N. J. L. 336 (at p. 338).

Prom the testimony in the cause it appears, to. us, taking the testimony of the defendant as true, that the terms of the proposed lease were of such a nature, especially those relating to the undertaking, on part of the plaintiff, as landlord, to prevent the adjoining premises, owned by her, to be let or used in competition with the defendant’s business, that they cannot be separated from the lease itself, and if the lease was unenforceable, the terms on which it was to be made became unenforceable also. Por.it must be borne in mind that the contract for the lease was an entirety including the conditions upon which the lease itself depended, and therefore it could only be enforced as a whole and if not enforceable as such it cannot be properly enforced in part.

But this view would not be dispositive of the case if it appeared that the defendant had aliunde, a right to maintain his action against the plaintiff for a breach of the latter’s agreement to execute the lease, and as claimed. The defendant’s testimony in this regard is, as follows: “The agreement was that I was to carry a three-year lease, and two-year privilege. The first year was to be $70 and the second year $75 and the third year $75 and the two years’ privilege to carry on the $75 and she was to clean the store and the house, and she agreed to do that.” This arrangement for a lease appears to have been made in the month of December, 1924, and the term of the lease was to begin in March, 1925. Thus, it appears that the new lease was to commence in futoro, and as there was no part performance of the lease by the defendant, so as to take the case out of the operation of the statute of frauds on the theory that he was in possession of the premises at the time of the commencement of the term of the new lease agreed upon, it follows that the agreement to give the defendant, a lease was unenforceable. Eor the stream can rise no higher than its source. An agreement not in writing, to make a lease for a term of more than three years which the law requires to be in writing is of no more validity than an oral lease for a term exceeding three years, unless it appears that some act was done to take it out of the operation of the statute.

The testimony was undisputed that the oral arrangement for the lease was made three months before such lease was to go into effect.

The trial judge was requested to charge as follows: "If you find as a fact that the parties, although they had agreed on all the terms of the contract, meant to have them reduced to writing and signed before the bargain should be considered as complete, and that the contract was not reduced to writing and signed, you will find for the plaintiff on the counter-claim,” which request was refused and an exception was taken to such refusal. The trial judge was also requested to charge: "If you find that the parties had intended to enter into a lease but did not or could not agree upon all the material terms thereof, you will find for the plaintiff on the counter-claim, which request was refused and an exception taken thereto.

We think that the plaintiff was entitled to have both of those requests charged, since it clearly appeared from the testimony that the parties did not come to any agreement on the terms of the lease and since it further appeared that the damages claimed by the defendant were based upon a term of the proposed lease, which could not be agreed upon, and which was to the effect that the plaintiff would cause a tenant, occupying an adjoining store, to discontinue selling the same line of goods, as that sold by the defendant. It is therefore difficult to see how the loss sustained by the defendant as a result of the competition of the plaintiff’s tenant, could properly be made the basis for the recovery of damages by the former.

Moreover, there is an absence of probative testimony tending to show that the defendant sustained any loss by reason of. the failure on the part of the plaintiff to cause her tenant, occupying the adjoining store to the defendant’s, and in which the latter was carrying on his business, from carrying on and selling the same line of goods as that which the defendant was engaged in. The testimony adduced as to the damages sustained by the defendant is highly speculative and remote and not'a proper basis for the award of damages.

Eor the reasons above indicated, the judgment of the District Court is reversed, and a new trial ordered.