text:
    STIVALY BROTHERS, PROSECUTORS, v. AUGUSTA BARTOLOZZO, RESPONDENT.
    Submitted October term, 1930
    Decided January 20, 1931.
    Before Justices Paekee, Campbell and Boduste.
    Eor the prosecutors, Ernest F. Xeer, Jr.

    Eor the respondent, Fmnlc G. Masini.

   Pee Cueiam.

This writ brings up for review the findings against the prosecutors under a rule to show cause in garnishee proceedings under Pamph. L. 1924, p. 429.

On April 2d, 1929, the respondent, being the plaintiff in an action in a District Court against Prank Gramo, obtained judgment against him for $95 and interest and costs of suit. Subsequently an execution was issued and thereafter an alias-writ.

Thereafter a rule to show cause was allowed directed to prosecutors, Stivaly Brothers, requiring them to shovf cause why they should not pay the amount of a certain debt said to be due and owing from them to the judgment debtor, Gramo, for and toward the satisfaction of such judgment.

Upon the return to such rule the matter was heard and determined by the judge of the District Court upon two affidavits; one by Angelo Stivaly, one of the prosecutors, in which the existence of a debt from Stivaly Brothers to Gramo was positively and unequivocally denied; and the other by Martin H. Eeldman, who served the rule to show cause, wherein he says that when he went to the place of business of Stivaly Brothers for that purpose he made inquiry of them as to a debt due from them to Gramo in the sum of $150 and they admitted it was due and owing. Thereupon and thereon the judge of the District Court made the order under review, dated February 21st, 1930, requiring the prosecutors, Stivaly Brothers to pay the debt said to be owing by them, or so much thereof as should be necessary to satisfy the execution, to the constable, forthwith in one payment. Because of refusal, or default, in payment under such order a rule issued to the prosecutors to show cause why they should not be adjudged in contempt.

We conclude that the order of February 21st, 1930,- here under review, must be set aside upon the ground that under the proofs submitted it is not justified by the statute. The .applicable portion of Pamph. L. 1924, supra, is section 9, and it is as follows:

"After levy shall have been made under this act upon any debt due or accruing from a third person [herein called the garnishee] to the judgment debtor, the court may make an order upon such garnishee and the judgment debtor to show cause why the said debt [to an amount not exceeding the sum necessary to satisfy said execution] should not be paid to the officer holding the execution, or to the receiver. Upon return of the order to show cause, or at any time to which the hearing may be continued, an order may be made requiring the garnishee to pay said debt, if he admits it, to the officer holding the execution, or to the receiver * *

Prom the brief of the respondent it appears that the trial judge construed this to mean that he was legally justified in making'the order if he believed, from the affidavit of the officer, that the garnishee had admitted the debt in question to him, notwithstanding the emphatic denial thereof by the affidavit of the garnishee presented upon the return to the rule to show cause. The words "to the officer holding the execution” following the words "if he admits it” will not and do not permit the construction so placed thereon by the court below. The undoubted meaning of this section is that such an order as that in question can be made, and made only, if upon the return of the rule, or at such time as the hearing thereon is continued, the garnishee admits the alleged debt to be due from him to the judgment debtor, or, what is tantamount thereto, does not deny it or stands without answer upon that question at the hearing under the rule. Sections 5 and 7, of the same statute, provide, under other circumstances, for the liquidating and collecting of such rights and credits by the officer holding the execution, or the receiver, if one has been appointed.

Any other construction of section 9, supra, would place it in great jeopardy as a piece of warranted and justified legislation.

The order under review is therefore set aside, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MARJORIE FALLON ET AL., PLAINTIFFS, v. GEORGE E. PETERSON ET AL., DEFENDANTS.
    Submitted October term, 1930
    Decided January 20, 1931.
    Before Justices Parker, Campbell and Bodine.
    Por the rule, David Cohn.

      Contra, Fdwin F. Smith and Andrew 0. Wittreich.

   Per Curiam.

This is an action growing out of collisions between two automobiles upon a highway.

The defendants have a verdict which we are asked to set aside upon the grounds that it is against the weight of the evidence and contrary to law. The second of these conveys no legal reason requiring consideration. An examination and consideration of the proofs brings us to the conclusion that the jury was fairly within legal bounds in finding as it did.

The rule to show cause is discharged, with costs.


author: Pee Cubiam.

text:
    MARION LOUISE HUGHES, PLAINTIFF, v. GEORGE RUCKLE ET AL., TRADING AS RUCKLE BROTHERS, DEFENDANTS.
    Submitted October term, 1930
    Decided January 20, 1931.
    Before Justices Paeicee, Campbell and Boduste.
    Eor the rule, Isidor Kalisch.

      Contra, Joseph F. X. Malloy.

   Pee Cubiam.

This is a negligence action and the plaintiff has a verdict. The defendants have this rule and urge a setting aside of the verdict and a rule for new trial for several reasons:

1. Error in refusing to nonsuit.

2. Error in refusing to direct a verdict in favor of defendants.

The foregoing upon the contention that the party extending to the plaintiff the invitation to enter and be upon the premises had no authority binding the defendants; that having no such authority, the plaintiff acted upon an implied invitation and exceeded the bounds thereof, and plaintiff was guilty of contributory negligence.

We conclude the proofs were such as required all these matters to be referred to and settled by the jury, and, therefore, there was no error in the rulings complained of.

3. That the plaintiff assumed the risk of injury.

This, we also find, was a matter to be submitted to the jury-

4. That the trial court erred in refusing to charge certain requests of the defendants dealing with the exceeding of the bounds of invitation, contributory negligence and assumption of risk.

In this respect we find no harmful error because we conclude the trial court properly charged as to each of these rules and principles.

5 and 6. That the verdict is against the weight of evidence and the jury disregarded the court’s charge as to the law of the case.

We find this to be not so.

The rule to show cause is discharged, with costs.


author: Ingersoll, Yice-Ordinary.

text:
    In the matter of the appeal from the decree of the orphans court of the county of Atlantic, dated November 16th, 1929, reversing and setting aside the probate of certain paper-writings as the last will and codicils of Carrell Doughty, deceased, and revoking letters testamentary issued thereon by the surrogate of said county.
    [Decided November 25th, 1930.]

      Messrs. Endicoti & Endicoti and Mr. Lewis Starr, for Phebe E. Doughty, proponent and appellant.

      Mr. Lewis P. Scott, Mr. Thomas G. Siddall and Mr. William I. Garrison, for Louis T. Doughty, caveator and appellee.

      Mr. Emerson L. Richards, for Lydia M. Johnson, appellant.
   Ingersoll, Yice-Ordinary.

The surrogate of the county of Atlantic admitted to probate a certain will, and four codicils thereto, of one Carrell Doughty. Louis T. Doughty, a son, appealed from such probate to the Atlantic county orphans court, which court reversed and set aside the said order of probate. The orphans court also allowed a counsel fee of $30,000 to counsel for the appellant and a counsel fee of $10,000 to counsel for the respondent, and allowed certain other costs.

On the 16th day of August, 1918, the decedent, Carrell Doughty, made his will. This will was prepared and executed in the presence of the late Judge Allen B. Endicott. This will gave to his son, Louis T. Doughty, $1,000 in cash and certain property in which he, the son, then lived, in Atlantic City, New Jersey; to his daughter, Elora Bell Meyers, certain other premises in Atlantic county, and to a daughter, Phebe Emma Doughty, certain premises in Ocean City, and provided that if, at his death, there be any mortgage or other lien on said properties, or any of them, the executrix should discharge such lien from any money belonging to the estate available for that purpose. He also provided for certain other bequests to his housekeeper and others. He further provided that “because of the many years of faithful service and devotion on the part of my daughter, Phebe Emma Doughty, I have given her the property above mentioned” and allowed her to retain six per cent, of all moneys that should come into her possession as executrix.

A most careful examination of the testimony leads me to the conclusion that Doughty was at that time competent to make this will and that there is no proof of any undue influence on the part of anyone to make this will, and that there is proof that no undue influence was exercised to induce the making of this will.

On the 23d day of June, 1922, Doughty made a codicil to said will in which he revoked paragraph 5 of said will, “the said Annie S. Eeddington [the beneficiary thereunder] having died since the making of said will.” He revoked paragraph 9, in which he had devised to his son the property in Atlantic City, “the same having been sold by me since the making of my will,” and provided “in place and stead” of said provision in paragraph 9, a fund of $10,000 in trust for the benefit of the said Louis T. Doughty, the son, and also made a provision that in case of ill health of said son, the executrix could make certain payments to the said Louis T. Doughty. This codicil was prepared in the same law office, but by Allen B. Endicott, Jr., the son of Judge Endicott, who had died in the meantime.

No criticism of the provisions of this codicil can he made. It shows clearly the mental aptitude of Doughty and there is nothing therein, if the will be valid, to indicate, nor is there any testimony concerning the same, that would indicate undue influence.

On the 19th day of July, 1922, an additional codicil was prepared and executed, in which he revoked the devise to his daughter, Plora Bell Meyers, of the land in Atlantic county, and provides for a trust fund of $10,000 and permission to make payments of the principal thereof in her favor, in the same terms as had been provided for Louis T. Doughty in the former codicil. This apparently was done to make equal provision for these two children. He also provided that in the event the boardwalk in Ocean City should be moved oceanward from its then location, that the property devised to his daughter, Phebe Emma Doughty, should be the land lying oceanward of the boardwalk as relocated, and the land on the inland side of the boardwalk as relocated should belong to and be a part of the residuary estate. This change, in effect, only located the land given to his daughter, Phebe Emma Doughty, and in fact increased the amount of his residuary estate by reason of the increased value of his property in Ocean City, which increase in value would result from the relocation of the boardwalk.

On the 18th day of March, 1926, he made an additional codicil in which he gave the property in which he was then living to Lydia M. Johnson, his nurse and attendant, for the term of her life, and directed that the estate should pay the taxes, keep the buildings in repair and pay curbing and sidewalk assessments. Upon the death of the said Lydia M. Johnson, the same to become a part of the residuary estate.

There is criticism of this codicil, the respondents insisting that it was the result of undue influence by Phebe Emma Doughty, the intimation being that it was for the purpose of having the friendship of and testimony by Mrs. Johnson in favor of the will and several codicils. I cannot find that there was undue influence exercised in the making of this codicil. Doughty’s increasing age, his increasing infirmities, particularly of the eyes, caused him to rely for his physical comforts more and more upon his nurse or attendant, and it is only natural to believe that as time went on he felt the urge to be more generous to the one so contributing to his physical comfort.

On the 23d day of January, 1928, Doughty made a fourth codicil, in which he creates, in the event of Louis T. Doughty’s wife surviving her husband, a trust fund of $5,000 for her, and revoked the provision for special payment to Louis T. Doughty and Flora Bell Meyers in case of their illness. He further provided that the property bequeathed to Phebe Emma Doughty should extend oceanward from the boardwalk as then located, and not limited to the land oceanward of the boardwalk as it should be thereafter located. He also further provides for an additional gift to Mrs. Johnson, the nurse, of $5,000.

Shortly before Doughty’s death a fire destroyed the buildings upon his land in Ocean City. New and more expensive buildings were erected upon the line of the new boardwalk, it having been relocated oceanward. To finance these buildings, Doughty placed a mortgage thereon in the sum of $65,000. Doughty died shortly thereafter, without having paid said mortgage or having made any provision for the payment thereof other than that provision of the will dated the 16th day of August, 1918, wherein he directed that any mortgage or other liens existing on the property devised by him should be discharged from any money belonging to the estate available for that purpose, the result being that to give Phebe Doughty the property devised to her, free and clear of all encumbrance, it would probably require the sale of all, or at least a substantial part, of the residuary estate.

This changed condition, after the making of the codicil, was occasioned by the occurrence of the fire and the rebuilding occasioned thereby, and if the codicil was valid at the time of the making thereof, these occurrences, with the result incident thereto, did not affect that validity.

I am convinced, as heretofore stated, that the will is valid, and I am unable to find any time in the making of these respective codicils where I can say that proof exists of undue influence on the part of Miss Doughty. I have little if any hesitancy in stating that at the time Doughty made the last codicil he did not expect his daughter to receive practically the entire estate. Certainly he could not anticipate the fire which destroyed the buildings which he had expected to be able to move to the new location of the boardwalk, and the necessity of erecting new buildings at such a great expenditure, and the creation of the mortgage to finance the same, thereby creating a liability chargeable to the residuary estate. It may well be said that had this fire occurred when Doughty was in possession of greater vigor that a further codicil would have been made. It is apparent that such action was in his mind, as upon a number of occasions he caused his attendant, Mrs. Johnson, to read to him the then existing codicils; that such action upon his part indicates his knowledge of the situation and his deliberation concerning the same, and certainly his failure to change the terms of his will after the changed conditions arose cannot influence the court in saying the codicil was invalid.

The opinion of the orphans court states:

“The following circumstances have been proved to exist in this case, which tend to show that the testator was unduly influenced by his daughter, Phebe E. Doughty, and which circumstances have not been satisfactorily explained by the proponents, namely:

First. There existed a confidential and fiduciary relationship between the testator and his daughter, the said Phebe E. Doughty;

Second. The testator’s mind was enfeebled to the extent that he could not resist the improper influence of said daughter, Phebe E. Doughty;

Third. The efforts of the said Phebe E. Doughty to exclude the natural objects of her father’s bounty from his society;

Fourth. The concealment of the making of the will, or the fact that the will had been made, by the said Phebe E. Doughty;

Fifth. The said Phebe E. Doughty’s long-standing animosity toward her brother, by which she exerted an influence over her father, to such an extent as to create in him resentment toward the said brother, Louis T. Doughty, or false impressions; and finally

Sixth. The will itself, with its four codicils, showing a continuous subtraction from the portion of the estate to be received by Louis T. Doughty, and his sister, Flora Bell Meyers, and a continuous addition to the said Phebe E. Doughty’s portion until she became the principal beneficiary under the will.”

There can be no doubt of the first circumstance. The fourteenth clause of the first will refers to “the many years of faithful service and devotion on the part of my daughter, Phebe Emma Doughty.” The proponents insist that by reason of the conduct of Phebe E. Doughty, she exiled herself from her family and from this country for a number of years, returning only shortly before the death of her mother. While this conduct caused an estrangement between Louis T. Doughty and Phebe E. Doughty, it did not result in an estrangement between her father and herself, as she took up her home with her father and remained upon intimate relations with him until his death. His wife had, for many years, acted as secretary to Doughty, and upon the wife’s death, this duty was taken up by Miss Doughty, and her services in assisting her father in his business affairs increased from time to time until at the time of his death she was performing almost all of the active duties of his business.

I am unable to agree with the judge of the orphans court that Doughty’s mind was enfeebled to the extent that it could not resist the improper influence of the daughter. I have found that she did not exercise undue influence in the preparation of the will, nor can I find the point where such influence, if it ever existed, became undue. I cannot find that Phebe E. Doughty excluded the natural objects of her father’s bounty from his society. It is claimed that she excluded Louis T. Doughty from the father’s society. The testimony is clear that she did not do so. Her reason for asking that Louis telephone when he was going over to Bakersville appears to be reasonable, and I cannot help but believe that Louis T. Doughty went to see his father as often as he, Louis, desired, and that the father was not prevented from calling upon Louis when he desired to do so.

Much testimony has been given concerning the father’s relations with Louis T. Doughty. It is manifest that the father never considered his son Louis as a business man or one in whom he would place responsibility or in whose judgment he, the father, would depend. In the business in which the son participated with his father, the father had absolute control, with the single exception of the seafood business which Louis conducted after his father left Atlantic City, and which thereafter resulted in failure. The value of the estate attests to the business ability of the father. The deceased was manifestly satisfied with the daughter’s business conduct, which she testified was under his control and direction, and there can be no question that the father had much greater confidence in the business ability of the daughter than that of the son.

The fourth and fifth circumstances are based upon the ill-feeling which manifestly began many years ago between Louis ■and Phebe and which, without doubt, exists to the present day. Louis resented the immoral life his sister was living, and without doubt, this resentment on his part resulted in animosity toward him. The father, however, evidently forgave her.

The sixth circumstance has been considered.

Criticism is also made of the manner in which she conducted her father’s business. He was satisfied with her conduct of it and apparently, if she did so conduct it under the advice of her father, as she testified, his advice was good, and if she conducted it upon her own initiative, her business judgment appears to have been good.

“The influence which the law denominates ‘undue’ must be such as to destroy the free agency of the testator and amount to moral or physical coercion. It must be proved, moreover, that the act done was the result of such coercion. There must be a control exercised over the mind of the testator or an importunity practiced which he could not resist.” Clifton v. Clifton, 47 N. J. Eq. 227; In re Tunison’s Will, 83 N. J. Eq. 277; Loveridge v. Brown, 98 N. J. Eq. 381.

It is unnecessary for me to determine whether the burden has been cast upon the proponents to show that undue influence has not been exerted, as I am able to find that undue influence was not exerted. It would be useless in this finding of fact to cite cases, as the law in force is not questioned.

After a careful review and consideration of the testimony and the laws of this state, I am convinced that said wiR and the codicils thereto were not the product of undue influence exercised by the said Phebe E. Doughty over the testator. At the time of the making of the last codicil, the residuary estate amounted to a considerable sum, to be divided between the three children, and although circumstances arose thereafter which, in effect, gave to said Phebe E. Doughty the benefit of $65,000, which sum was to be taken care of by the residuary estate, that result cannot change the effect of the codicil.

Innumerable instances occur from time to time where a changed condition and the failure of a person to change his-testamentary disposition results in unintended disposition of a decedent’s property, but it cannot for an instant be considered that the sale by the testator in his lifetime of property or personalty devised or bequeathed would result in the cancellation of a will. This statement is so manifest that-the legislature, deeming that if one certain changed condition should arise, a will should be declared void, and provided by statute “that every last will and testament made when the testator had no issue living, wherein any issue he might have is not provided for or mentioned, if at the time of his death he leave a child, children or issue, or leave his wife enciente of a child or children which shall be born, such will shall be void, and such testator be deemed to die intestate.” 4 Comp. Stat. p. 5865 § 20.

An appeal is also taken from the order for allowance of counsel fees. The court below allowed $30,000 fees to counsel for Louis T. Doughty and $10,000 for counsel for Phebe E. Doughty.

Chancellor Walker, as ordinary, In re Wandell, 92 N. J. Eq. 195, held: “An allowance made by the orphans court of counsel fees on a contest over the probate of a will ought not to be overthrown by this court on appeal, unless it quite conclusively appears that the allowance was excessive (in which case it should be reduced), or that the contest below developed no reasonable ground for further litigation, and where the decision of the orphans court that the unavailing contest was reasonable in that tribunal can be upheld, it should be, and where the judge of the orphans court, who tried the cause and saw and heard the witnesses, concludes there was reasonable ground of contest there, he should be upheld, if he may be, without doing violence to the case as it appears upon the record.”

“One provision of the statute is that the contesting party shall pay the costs and expenses of the litigation unless he ■offers no evidence other than that of the subscribing witnesses. Therefore, a party who would inherit in case of intestacy may, in any event, examine the subscribing witnesses without peril of costs being visited upon him; but, where he goes on with an affirmative contest, he shall not have costs out of the estate (unless the trial court concludes that there was reasonable ground therefor); and, although the contest may be reasonable in the orphans court, yet, if the losing party is not satisfied with its judgment and appeals to this court, as is his right, this court will determine whether or not the contest here was reasonable, quite irrespective of the decision in the court below as to the reasonableness of the contest there.”

It is manifest that there was sufficient ground for the appeal by Louis T. Doughty, as the orphans court sustained it. It is likewise manifest, in my view, that the proponents of the will had just cause, as well as a duty, to present the will for probate, but I cannot believe that counsel for the appellant below should be entitled to receive so much greater a fee than allowed in proponent’s case. I take it that the orphans court judge was governed in his allowance to the proponents, to a great extent, upon their public announcement that they did not feel they were entitled to more than $10,000 and made his allowance accordingly. I cannot believe that counsel for appellant below should be entitled to receive three times the amount allowed the proponent.

I will advise that the fee of $30,000 be reduced to $15,000' and will make no change in the allowance to the other counsel. The judge of the orphans court, of course, had an opportunity of knowing, by actual presence, the labor performed by counsel for each side, and although I am inclined to believe that an equal allowance to each would be justifiable, I feel that I am justified in accepting his view that the counsel for Louis T. Doughty, who was the moving party in the appeal below, should receive a greater amount than should the counsel for the proponent.


author: Bigelow, Vice-Ordinary.

text:
    In the matter of the estate of Thomas Coyle, deceased.
    [Decided January 16th, 1931.]

      Mr. Andrew E. Nolan, for the appellant-executor.

      Mr. John J. Hoffman and Mr. Robert H. Brenner, for the respondents.
   Bigelow, Vice-Ordinary.

At the time of the death of Thomas Coyle, a savings account in the Highland Trust Company of Union City stood in the name of “Thomas Coyle in trust for Albert Bodden.” Mr. Bodden is the executor of Mr. Coyle’s will. He withdrew from the trust company the amount of this deposit. The orphans court decreed that he charge himself as executor with the amount so withdrawn.

The testator made his home with Mr. Bodden and his wife from 1921 until his death, April 28th, 1928. In 1923 he had a slight stroke of apoplexy and on several occasions thereafter he was again stricken. In 1926 and 1927 his condition was very bad. Eor years prior to his death ho was quite helpless, according to appellant. Prom the time of his first stroke he was unable to work, although he continued to be in receipt of a salary of $37.50 a week. At the beginning of this period, he had an account with the trust company in his own name. Sometime between April 14th, 1924, and April 7th, 1926, he had the title of the account changed on the books of the trust company by adding the words “in trust for Albert Bodden.” On the last mentioned date, he withdrew from this account $200. Thereafter, no further withdrawals were made, but Mr. Coyle made eleven deposits totaling $1,450. The balance at his death was $8,247.37. His gross estate, exclusive of this account, amounted to $1,359.87.

The special master permitted the executor to testify to conversations and tranusactions with the deceased. This evidence W'as admitted over the objection of the respondents and was incompetent and should be disregarded. In re Atkinson’s Estate, 86 N. J. Eq. 178; 98 Atl. Rep. 269; In re Fulper’s Estate, 99 N. J. Eq. 293; 132 Atl. Rep. 834.

Appellant contends that there was a valid gift inter vivos or else the creation of a valid and enforceable trust. “Proof of a gift inter vivos must establish three things: (1) A donative intent on the part of the donor, (2) an actual delivery of the subject-matter of the gift, and (3) a stripping of the donor of all ownership and dominion over the subject-matter of the gift.” Besson v. Stevens, 94 N. J. Eq. 549; 120 Atl. Rep. 640; Jones v. Westcott, 8 N. J. Mis. R. 312; 150 Atl. Rep. 50.

The elements by which is tested a voluntary declaration of trust as distinguished from a declaration made upon consideration, are the same as the tests of a gift. Nicklas v. Parker, 69 N. J. Eq. 743; 61 Atl. Rep. 267; affirmed, 71 N. J. Eq. 777; 71 Atl. Rep. 1135.

I think that when the principles discussed in Dunn v. Houghton, 51 Atl. Rep. 71, are applied to the present case, it appears that the second and third elements of a valid gift have been proved. But the question remains whether the executor has sustained the burden of proving a donative intent. The evidence is scanty and conflicting.

The opening of a bank account by one person in his own name in trust for another does not, standing alone, show donative intent. Nicklas v. Parker, supra; Jefferson Trust Co. v. Hoboken Trust Co., 107 N. J. Eq. 310; 152 Atl. Rep. 374. Furthermore, it is not enough that the appearance of a donative intent be shown, but it must be proved that the intent was real and not the product of the weakness or necessity of the donor, or the dominating influence of the donee. The donor was a sick and elderly man, helpless, living in the household of the donee. He acted, as far as is shown, without independent advice. He stripped himself of the greater part of his property. A gift or a voluntary trust under these circumstances should not be sustained.

There is a suggestion that the trust was created not as a gift but upon consideration. Mrs. Bodden testified that Mr. Coyle “always told me that the money in the bank was Al’s for taking care of him.” She testified further that when the doctor told Mr. Coyle he should go to a hospital and asked if he had any money, Mr. Coyle said “he didn’t, that he gave everything to Al and that he would take care of him.” Dr. Reich corroborated this evidence. The principal evidence to the contrary is the will itself, dated July 22d, 1927, in which the testator directs that $800 be spent for a monument at the cemetery and for the maintenance of the cemetery lot, and in which he gave the residue of his property in equal shares to his nine nephews and nieces. This certainly indicates that Mr. Coyle did not think he had bargained away his entire estate. I find that the consideration for the alleged declaration of trust has not been proved. The result is that the decree of the orphans court should be affirmed.


text:
    ETTA WOLFSON, RELATOR, v. COMMISSIONERS OF ASSESSMENTS FOR STREET IMPROVEMENTS OF THE CITY OF PERTH AMBOY, AND THE BOARD OF COMMISSIONERS OF THE CITY OF PERTH AMBOY, RESPONDENTS.
    Submitted October 17, 1930
    Decided January 21, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the relator, David T. Wilentz.

    Por the respondents, Harry S. Medinets.

   Per Curiam.

This is an application for a mandamus to require the commissioners of assessment of Perth Amboy to award to Mrs. Wolfson the damages sustained by her by reason of a change of grade in Payette street, on which her property fronts.

Relator concedes that she is not entitled to damages unless by virtue of some statute. In 1858 the Road act changed the common law and allowed damages, but this was expressly repealed in 1918. See Sommer v. State Highway Commission, 148 Atl. Rep. 171. Consequently, relator falls back on section 65 of the charter of the city of Perth Amboy, which dates from 1870, and provides that a grade shall not be altered except by application of three-fourths of the owners, nor without paying to the owners of any buildings where damages are sustained by the alteration of grade, the amount of the damage determined by the commissioners of assessment, and that these expenses shall be assessed upon the lands of those applying for the change of grade. The answer made to this is that it was repealed by the Home Enle act; and that is a question to be here determined. As is well known, the Home Eule act established an alternative method of doing this sort of work. One method is, by regarding it as a local improvement • and assessing the benefits upon the property benefited; the other way is to consider it a general improvement and have the cost borne by the municipality at large. In the present case the improvement was a general improvement and the argument for the respondent is, that whatever might- be said about it, if it were a local improvement, the fact that it is a general improvement under the Home Eule act takes it entirely outside the provisions of the charter, which are restricted to cases where the cost is assessed upon the property, so that even if section 65 is still in force and unrepealed as to assessable damages, it is not in force with respect to general improvement.

It is mmecessary to adopt this view of the matter, which might result in the conclusion that Perth Amboy can evade liability for damages by making a general improvement when it would be liable for damages if the improvement were local. It cannot be doubtful that the Home Eule act establishes an entirely new scheme of operation, and is intended as a general new regulation relating to all municipalities; and that in consequence the provisions of the charter entitling the owner to damages have been repealed by the Home Eule act whether the improvement be a general or a local one. Harrington’s Sons Co. v. Jersey City, 78 N. J. L. 610; Board of Education v. Tait, 81 N. J. Eq. 161.

The rule to show cause will be discharged.


author: Pee Cuetam.

text:
    THE STATE, JOSEPH J. KISH, PROSECUTOR, v. ALBERT G. WATERS, COMMISSIONER OF PARKS AND PUBLIC PROPERTY OF THE CITY OF PERTH AMBOY, NEW JERSEY, ET AL., RESPONDENTS.
    Submitted October 17, 1930
    Decided January 21, 1931.
    Before Justices Pabkeb, Campbell and Bodine.
    Eor the prosecutor, Thomas L. Hanson.

    For the respondents, Harry 8. Medinels.

   Pee Cuetam.

The prosecutor seems to have been emploj’ed as a sort of a general handy man nncler the commissioner of Parks and Property of Perth Amboy. He was summarily dismissed from his employment and claims that the dismissal is illegal because of the Exempt Firemen’s act of 1911 (Pamph. L., p. 444), which provides, among other things, that no person then holding a position or office under the government of any city, &c., of this state, or may thereafter he appointed to snch position, whose term of office is not fixed by law and receiving a salary, &c., who was an exempt fireman, &e., shall be removed except for canse and after a hearing.

The prosecutor was not appointed by any ordinance or resolution; but was employed by the commissioner as a sort of general utility man working at trimming trees, painter, carpenter, &e. At first he was paid by the day but later was placed on a salary. We do not think that he held either a position or an office. The distinction of the three classes of service is contained in the leading case of Fredericks v. Board of Health, 82 N. J. L. 200, which cites, among other cases, McLaughlin v. Jersey City, 51 Id. 240; Evans v. Hudson County, 53 Id. 585, and Kreigh v. Hudson, 62 Id. 178.

We are clear that the prosecutor is not entitled to the protection of the statute invoked and, consequently, the rule to show cause will be discharged.


text:
    WILLIAM ZIPPER, EXECUTOR OF THE LAST WILL AND TESTAMENT OF MARIE KIRCHEIS, DECEASED, PROSECUTOR, v. JOHN McCUTCHEON, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, RESPONDENT.
    Submitted October 17, 1930
    Decided January 21, 1931.
    Before Justices Parker, Campbell and Bobine.
    Eor the prosecutor, Addison P. Rosenlcrans.

    Eor the respondent, William A. Stevens, attorney-general.
   Per Curiam.

Two points only are raised in this case. The first is that the comptroller should have allowed an exemption of the entire cost of a mausoleum directed by the deceased testatrix to be built to contain her body and that of her deceased husband, which cost amounted to $9,000; and the other point is that the comptroller taxed a one-half undivided interest in a piece of real estate which had been owned by the executor and the testatrix as tenants in common and which undivided one-half, belonging to the testatrix, she devised to the executor. The mausoleum item is within the language of the clause exempting “a reasonable sum for funeral expenses and last illness.” Pamph. L. 1926, p. 490. It has been generally considered that a reasonable provision for the sepulchre of the body of the deceased is proper. The argument is, however, first, that the $9,000 spent for the mausoleum does not pass to any one either under the will or by the intestate law and, inasmuch as the tax is a succession tax and not a property tax, which, as such, would be unconstitutional, the $9,000 so spent is not taxable. However, the courts seem to have uniformly regarded any unreasonable provision for funeral expenses as taxable to the extent that it is considered unreasonable, and no doubt on the theory that to the extent that it is unreasonable it deprives the next of kin or residuary legatees of property which would naturally come to him or them. Manifestly, this is so in a case where there is no provision in the will fixing the amount of such expenses and the executor undertakes to be extravagant in this particular. In such a case the interested parties may challenge the expenditures and the executor may be surcharged with it and be obliged to pay. The fact that the testator prescribes an extravagant amount would seem not to call for any difference in the application of the rule. We agree with the comptroller that the expenditure of $9,000 for burial purposes out of an estate not exceeding $37,000 was unreasonable and that he properly taxed $8,000 of that amount.

The other point presents no difficulty whatever. This is not a case of tenancy by the entirety or a joint tenancy, or any case in which there is ownership of two parties and one takes by right of survivorship. The lands were conveyed to the testatrix and the executor as tenants in common. If she had died intestate, her undivided one-half would have gone to her heirs-at-law. As it was, she devised that undivided half to the executor and clearly it was taxable and something that he would not have been entitled to but for that devise. It is intimated that the comptroller placed too high a valuation on the one-half interest, but the argument does not seem to be pressed seriously and we do not find any substantial evidence to support it.

The writ will be dismissed.


text:
    INTER-STATE MACHINERY CORPORATION, PLAINTIFF, v. OLIMPIO AGABITI AND ARMANDO AGABITI, TRADING AS AGABITI BROTHERS, DEFENDANTS.
    Submitted October 17, 1930
    Decided January 21, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the-plaintiff, 8. Lewis Davis.

    Eor the defendants, J. Albert Homan.

   Per Curiam.

The suit was on a promissory note made by the defendants to the plaintiff at three months for the sum of $2,314. The defense was that the note was a mere receipt in.that the plaintiff had sold to the defendants a gasoline shovel of a new type for about $7,400, and had agreed to take in trade the defendant’s old steam shovel at a value of $2,314 and $5,000 in cash, which was paid less discount. The defendants further claimed that the steam shovel had been left in their possession until such time as the plaintiff would be able to make a sale of it, not over three months, and that in order to evidence that fact on paper the defendants, at the solicitation of plaintiff, made out and signed the note. Naturally, there was inquiry as to why it was a note instead of a receipt, or some paper which expressed the true situation, and the testimony indicated that the real difficulty in the case was a man named Corcoran, who held himself out, as claimed by consent of plaintiff, as being “general manager” of the company, although he held no stock in the company. According to the testimony of defendants, Corcoran, by using his powers of persuasion and by assuring the defendants that the note was merely formal and a substitute for the old steam shovel, induced them to sign it. Then he seems to have turned in the note to the corporation as though it were a straight transaction. At the trial the main questions of law related to the admission of evidence touching the extent of Corcoran’s agency. His connection with the plaintiff as agent was admitted but the extent of his authority was denied. Another question of law was whether the trade in of the old machine was a transaction covered by the statute of frauds and invalid because not in writing. There is also the question of weight of evidence as to Corcoran’s authority and what happened between him and the defendants, and the claim that the verdict was the result of passion and prejudice, and contrary of the charge of the court. We see no indications of passion and prejudice; and with respect to the charge of the court, it was entirely open to the jury under the charge to find the verdict that it found for the defendants on the main claim, and against the defendants on the counter-claim for the value of the old steam shovel; in other words, the jury left both parties where it found them.

The reasons are not very well framed The first reason is that the court erred in admitting improper testimony to prove the authority of plaintiff’s agent. This is most vague and indefinite and violates our recent rule that the reasons must state legal points with the precision required in grounds of appeal. Under this rule counsel copies into his brief about five pages of testimony bearing on the holding out of Corcoran as a general agent. We do not feel called upon to search in this long excerpt for testimony to support the reasop.

Counsel challenges the allowance by the court of testimony that Corcoran told the defendants that he was agent and the extent of his authority. This was illegal, of course, but the sting was taken out of it by the production of Corcoran on the witness-stand and his testimony under oath to the same effect, which was, of course, competent.

The question of the statute of frauds may properly be answered on the theory that the transaction was an entire one involving the sale and delivery of a new steam shovel, and the payment of cash and the old one in lieu of cash.

The third reason assigned is the refusal to direct a verdict for the plaintiff. We are clear that there was a jury question and therefore there was no error in refusing to direct.

The last reason is that the verdict was against the weight of evidence. We do not think that it was.

On the whole we see no reason to disturb this verdict. Certain alleged testimony about the extent of Corcoran’s authority is invoked in support of this reason, but we are unable to find it at the place cited in the brief or elsewhere in the case.

The rule will be discharged.


author: Per Ctjeiam.

text:
    THOMAS F. JOYCE, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF JAMES J. JOYCE, DECEASED, PLAINTIFF, v. CHARLES ENGLEHART AND JOHN TREMBLY, DOING BUSINESS AS YELLOW CAB COMPANY, DEFENDANTS.
    Submitted May 16, 1930
    Decided January 21, 1931.

      Before Justices Pabker, Campbell and Bodine.
    For the plaintiff, Robert H. Doherty.

    For the defendants, George F. Seymour, Jr., and Orlando II. Dey.

   Per Ctjeiam.

The plaintiffs intestate was killed by collision with an automobile at the place where Milton avenue in Bahway passes under the railroad track elevation. He was running across the street from south to north, or in that general direction, for the purpose of reaching the news-stand near the station and getting a newspaper before the train should arrive. Somewhere in the street, before he completed his crossing, he and the automobile collided with fatal results. There was a verdict for the plaintiff of $10,000 which is attacked as against the weight of evidence and also as excessive. We shall dispose of the matter of weight of evidence first.

The primary negligence of the driver of the taxicab which struck the deceased does not seem to be denied; but the contest is over the contributory negligence of the deceased. On a careful reading of the evidence, we are satisfied that such contributory negligence appeared beyond reasonable peradventure, and, consequently, that the verdict was against the weight of evidence in this particular. Ordinarily, when a person is killed under these circumstances there is primarily a presumption that he was in the exercise of reasonable care, but this presumption, like others, may be overcome by proper proof. In the present case we have not only the testimony of the driver of the taxicab, but particularly that of the sister of the deceased from whose testimony the conclusion is almost inescapable that deceased was running across the road without exercising any care to see what was coming from either direction. She said that she screamed to direct his attention to the cab and he just had time to lift his head up and pull his foot back; also that she looked to find out where he was so that she could warn him and at this time he was looking in the direction of the newspaper stand.

We conclude that the verdict was against the weight of evidence and that the rule must be made absolute. Consequently, it is unnecessary to deal with the question of damages, although we have examined into that point also and conclude that, under the circumstances of the case, they were excessive.


text:
    MAX POLITINSKY, PROSECUTOR, v. ANDREW E. BRENNAN, REGISTER OF LICENSES, AND THE CITY OF PATERSON, DEFENDANTS.
    Submitted October 17, 1930
    Decided January 21, 1931.
    Before Justices Parker, Campbell and Bodine.
    Por the prosecutor, Edward F. Merrey.

    Por the defendants, Charles H. Boemer.

   Per Curiam.

The first point made against this conviction is that the imposition of a license fee of $50 in the ordinance is invalid because it is avowedly imposed for revenue. It is argued that such a license fee cannot be imposed for revenue but the point seems not seriously pressed, and we think it unsubstantial in view of recent statutes, and especially of the Home Rule act of 1917.

The next proposition is that assuming the power exists, it is not vested in the board of aldermen of Paterson under the somewhat peculiar constitution of that city, but that it is vested in the board of finance so far as relates to the imposition of a license fee for revenue The prosecutor seems to concede that if such license fee was not imposed for revenue, the board of aldermen would have jurisdiction, but that because the revenue element is involved, the matter falls into the hands of the board of finance, a statutory body created by the act of 1907, page 89, and whose powers seem to be prescribed in section 26 of the “act to provide for the more efficient government of the city of Paterson.” Pamph. L. 1871, p. 808. The only powers that seem to approach the matter of licensing are: No. 1, general management of the city finances, and No. o, levy and collection of taxes. We do not think that either of these powers should be interpreted as ousting the board of aldermen of its former jurisdiction of licensing junk yards which, in a general way, is peculiarly within its province. We also take the view that when the Home Eule act enlarged the powers of the governing body in the matter of licensing to impose license fees for revenue, this did not have the effect of shifting the jurisdiction over junk yard licenses from the board of aider-men to the board of finance.

Consequently, the conviction will be affirmed.


text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, RESPONDENT, v. GEORGE MAZA, PROSECUTOR.
    Submitted October 17, 1930
    Decided January 21, 1931.

      Before Justices Parker, Campbell and Bodine.
    Por the respondent, William A. Stevens, attorney-general.
    Por the prosecutor, Nathan H. Berger.

   Per Curiam.

The prosecutor was convicted under the Medicine and Surgery act of practicing medicine and surgery without a license, and sues out this writ to review that conviction. He claims that he merely practiced chiropractic—for which he had no license—and that this was not practicing medicine and surgery within the intendment of the act. The proofs show nothing but spinal manipulation, and direction that the patient procure an X-ray photograph, which was done.

The precise question therefore is whether chiropractic is a branch of medicine or surgery. Evidently the legislature elected so to regard it, when after passing the “Act to regulate the practice of chiropractic,” chapter 4 of the laws of 1920, it repealed it the following year by chapter 136 of the laws of 1921 (Pamph. L., p. 268), and provided for “limited licenses” under the Medicine and Surgery act and by section 12 for the appointment on the board of medical examiners of “a reputable chiropractor practicing chiropractic in this state,” who “shall represent the school of practice to which he belongs in said board.” We consider that it was entirely within the power of the legislature to label chiropractic as a branch of medicine or surgery; and if the great Dr. Lorenz of Vienna, who treated disease of the joints by manipulation and received fees therefor, was practicing his profession of medicine and surgery, it would seem quite reasonable for the legislature to take a similar view of chiropractic.

This is the only real point in the case, and we deem it not well taken. The judgment and proceedings under review will be affirmed.


author: Macea y, S. C. C.

text:
    MARINUS DRIESSE, GENERAL ADMINISTRATOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF AARON DRIESSE, DECEASED, PLAINTIFF, v. TUNIS VERBLAAUW, DEFENDANT.
    Eor the plaintiff, Louis 0. Friedman.

    Eor the defendant, Jacob Siam.

   Macea y, S. C. C.

The complaint in this case alleges that Marinns Driesse was duly appointed administrator ad prosequendum and general administrator of the estate of Aaron Driesse, deceased.

Tunis Yerblaauw, the defendant, owned and operated a hardware store at Prospect Park, Passaic county, New Jersey, and had in his employ a clerk who acted as salesman and sold goods and merchandise for him. At a time when this employe was in charge of the store and defendant was not present in person, one Nicholas Sinning, fifteen years of age, went to defendant’s store on March 29th, 1930, with a .22 calibre revolver and purchased three boxes of loaded cartridges, known as .22 calibre shorts, for the sum of seventy-five cents, without the permission of his parents and in violation of chapter 225 of the laws of 1912, which makes it a misdemeanor to sell cartridges of this kind to a boy under the age of sixteen years without the written consent of his parents. The defendant claims that while his clerk was in charge of the store-two young men entered who appeared to be well over age; that one of them exhibited a revolver for which he ordered cartridges for target practice; that these young men engaged in target practice; that when they finished, one of the young men, Sinning by name, put the gun in his pocket and they then had a friendly wrestling match, in the course of which the gun went off and wounded the other young man, Driesse, who died the following day, March 30th, 1930, from the bullet wound received.

The following allegations are set out in the first count of the complaint: that the natural and proximate cause of the death of Aaron Driesse was the violation of the statute, &e.; that Aaron Driesse left him surviving certain persons, and that the action has been commenced within twenty-four calendar months from the date of death.

The second count charges that defendant employed an incompetent servant whose incompetency was well known to the defendant from the date of his hiring to the time of the selling of the cartridges in question; that he permitted the incompetent clerk or employe to have control and possession of dangerous instrumentalities and sell and dispose of the same to minors without the minors’ parents’ consent; that the defendant negligently, carelessly and wrongfully failed to advise his servant (the employe) of the inherent danger of the loaded cartridges and ammunition which was in the store, and carelessly, negligently and wrongfully permitted dangerous instrumentalities to be within reach of his servant or employe ; that the defendant carelessly, negligently and wrongfully permitted a minor to be in charge of dangerous instrumentalities in his store in his absence, knowing that the minor in charge of his store would dispose of the cartridges, and carelessly, negligently and wrongfully failed to advise the minor or employe in charge in his absence not to sell any loaded cartridges to minors, and carelessly, negligently and wrongfully permitted dangerous instrumentalities to get into the hands and possession of Nicholas Sinning, a minor inexperienced in the handling of firearms, loaded cartridges, &c., and by reason thereof Nicholas Sinning purchased three boxes of cartridges.

The third count pleads the paragraphs in the first and second counts and then claims damages as general administrator, the claims in the first and second counts being those of the administrator ad prosequendum for damages.

The defendant contends that the complaint should be struck out because:

(1) The complaint admits that the defendant was not present and in charge of the hardware store at the time of the alleged sale of cartridges.

(2) The natural and proximate cause of the death of plaintiff’s intestate, Aaron Driesse, could not have been the alleged violation by the defendant of the statute set forth in paragraph thirteen of the first count (and likewise in the subsequent counts) in that the complaint shows that the defendant did not violate the statute, but the complaint alleges facts to show that defendant’s clerk violated the statute.

(3) The natural and proximate cause of the aforesaid death was not the alleged violation of the statute by the defendant and/or his clerk, because of the intervention of an independent human agency in that the aforesaid death was caused by one Nicholas Sinning, as described in paragraph eleven, first count, of the complaint

(4) The section of the Crimes act recited does not require parents’ permission for the sale of cartridges but only for the sale of the revolver. The complaint does not allege how the gun came into Sinning’s possession; does not allege that it came into his possession unlawfully; and defendant’s clerk had the right to presume that it was in Sinning’s possession lawfully, with his parent’s consent, and that he had the right to sell cartridges therefor.

(5) Yiolation of a criminal statute by a clerk does not per se make the employer guilty of a violation of the criminal statute, and does not make him liable for damages in a civil suit except under the ordinary rules of negligence, and such liability is not shown in said complaint.

(6) The complaint does not allege, nor set forth facts to show that Sinning was of such tender years or imperfect understanding that he did not have the capacity to estimate or appreciate the dangerous nature of his act, and therefore Sinning’s act was the proximate cause of the injury

(7) There are no allegations in the complaint showing that the injury ought to have been anticipated as a consequence of the acts of defendant and/or his clerk.

(8) In the second count the complaint does not set forth wherein the defendant made improper selection of his clerk, but merely recites a conclusion of law without supporting allegations of fact.

There is no merit in the first and second contentions of the defendant because it was not necessary that the master (defendant) should be present at the time of the sale of the cartridges.

. It is alleged that the clerk or employe was the servant of the master acting within the scope of his authority in the master’s service. That would be a sufficient allegation to hold the master in this case. Doran v. Thomson, 66 Atl. Rep. 897.

There is no merit in the third contention because it has been held that there would be a liability under the circumstances.

The Crimes act, as I read it, prohibits the sale of loaded or blank cartridges or ammunition. That disposes of the fourth reason.

The fifth reason must fail because our courts have held:

“Penal statutes that give no private right of action may nevertheless affect private rights upon common-law principles applicable to the action of negligence.” Evers v. Davis, 90 Atl. Rep. 677.

The complaint alleges that Sinning was fifteen years of age. The statute provides that where the infant is under the age of sixteen he must obtain permission from his parents before procuring any firearms, cartridges, &c. Therefore, there is no merit in the sixth contention

Beferring to the seventh and eighth reasons, it seems to me that the complaint fully sets forth facts showing that the injury ought to have been anticipated as a consequence of the act of the clerk or employe. It alleges that the defendant negligently and wrongfully permitted the clerk to sell the cartridges and to sell them without the consent of the minor’s parents, and negligently and wrongfully failed to advise the clerk or employe of the inherent danger of loaded cartridges, and negligently and wrongfully permitted dangerous instrumentalities (the cartridges) to be within reach of the clerk or employe, and carelessly and negligently permitted him to have control, charge and supervision of the hardware store in his absence.

In the case of Bernard v. Smith (Rhode Island Supreme Court), 90 Atl. Rep. 657, the court said:

“In an action by a person against a dealer who sold a rifle to an eleven-year-old boy, for injuries sustained from the gun in the latter’s hands, a declaration based on a statute prohibiting the sale of firearms to children under fifteen except on the written consent of parent or guardian, or a common-law duty not to sell to minors, need not allege negligence or willfulness on the part of the child, or negative his want of due care.

“Since the only question in issue in an action against a dealer for injuries sustained by a person from the discharge of a gun sold a child in violation of a statutory or common-law duty, is the negligence of the dealer in making the sale, whether the child exercised due care in handling the gun or acted negligently or willfully, is immaterial.” Bernard v. Smith (Rhode Island), 90 Atl. Rep. 657.

This case (Bernard v. Smith) was first tried in the Superior Court on the defendant’s demurrers to the declarations. The demurrers were overruled. The demurrers did not point out or suggest in what respect the plaintiff’s declarations failed to state a cause of action. The Supreme Court, on appeal, said: “We conclude from the rescript of the Superior Court that the grounds of demurrer were more particularly set forth in the argument of defendant’s counsel, who claimed that the declarations were defective in failing to allege that the child who discharged the rifle did so in ignorance of the danger, and while he was in the exercise of that degree of care of which he was capable. As the Superior Court said, in overruling the demurrers, if the injury alleged had been to the child to whom the dangerous article was intrusted, there might have been some force to the argument; some allegations might have been necessary to show that he was not guilty of contributory negligence. But here, where the injury was to a third person, it is not necessary to negative due care or even the willful action of the child. The negligence of the child in handling-the dangerous weapon or even his willful use .of it was one of the natural consequences of intrusting him with it. We think the demurrers to the declarations were properly overruled.”

In the case of Bernard v. Smith, supra, the declaration' contained two counts. The negligence charged in the first count was the violation of the statutory duty imposed by section 7, chapter 134, general laws of 1909, which prohibits the sale of firearms to minors under the age of fifteen years, without the written consent of the parent or guardian. The second count sets up the sale and delivery of the rifle to Armand Boucher in violation of the common-law duty; the said Boucher being under the age of twenty-one years, to wit, of the age of eleven years, and unused to and inexperienced in the use of firearms, all of which the defendant knew or should have known. Bernard v. Smith, supra.

It might be well for the plaintiff to add a count similar to that above mentioned, charging the defendant directly with the violation of the common-law duty, &c.

I will advise an order denying the motion to strike out the complaint.


text:
    SEYMOUR KATZ, BY MEYER KATZ, HIS NEXT FRIEND, AND MEYER KATZ, PLAINTIFFS, v. HYMAN & OPPENHEIM, A CORPORATION OF THE STATE OF NEW YORK, DEFENDANT.
    Decided January 23, 1931.

      Before Justices Parker, Campbell and Bodike.
    Eor the plaintiffs, Karkus & Karkus (Jacob S. Karkus, of counsel).
    Eor the defendant, Ackerson & Van Buskirk (Cecil S. Ackerson, of counsel).
   Per Curiam.

This case was tried at the Middlesex Circuit Court. The plaintiff’s father and son sued for injuries suffered by reason of an automobile accident on April 12th, 1928, at Highland Park, New Jersey. The sole question briefed is whether a verdict of $5,000 in favor of the plaintiff, Seymour Katz, is excessive. His left cheek was badly cut by flying glass. There were other superficial wounds requiring no sutures. The wound on the left cheek required dressing for nearly two months. Twelve stitches were taken. Neither nerves or muscles were seriously involved.

A verdict for $1,000, in favor of a young girl, who received wounds on the nose and chin requiring eight stitches was held not inadequate in Schwartz v. Pyle, 144 Atl. Rep. 323. The court there indicated that a larger recovery might have been justified. We think the recovery in the present case was excessive.

A rule absolute will issue, unless within twenty days from date of the entry of an order hereon the plaintiff consents to reduce the verdict to $1,500, in which case the rule will be discharged.


text:
    FRED GORMAN, PETITIONER-DEFENDANT, v. MINER-EDGAR CHEMICAL CORPORATION, RESPONDENT-PROSECUTOR.
    Decided January 23, 1931.
    Before Justices Parker, Campbell and Bodine.
    For the respondent-prosecutor, Kalisch & Kalisch

    For the petitioner-defendant, Haines & Chanalis.

   Per Curiam.

The case arises under the Workmen’s Compensation act. The commissioner found seventy-five per cent, of total disability. The Common Pleas Court on review found this view supported by the evidence. Petitioner was suffering from Paget’s disease, which prevents the uniting of bones. As a result of the accident, of which he complains, he broke his-leg. The medical testimony is undisputed that the bones, will never knit. The prosecutor contends that at the most there is a loss only of a leg. The testimony, however, supports no such conclusion. The man cannot work and cannot rest, or sleep because of the pain.' The fact that part of this trouble may be due to pre-existing disease does not inure to the benefit of the employer. Combination Rubber Manufacturing Co. v. Obser, 95 N. J. L. 43.

The judgment will be affirmed, with costs.


author: Per Curiam:.

text:
    TRUEY OLSEN, PLAINTIFF, v. WHITE WAY TOURS, DEFENDANT.
    Decided January 27, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the defendant-appellant, Norman W. Harker.

    Eor the plaintiff-appellee, Carr & Carroll (Walter R. Carroll, of counsel).
   Per Curiam:.

The plaintiff recovered a verdict of $6,000 at the Camden Circuit. The real question presented for our determination is whether the verdict was against the weight of the evidence. We do not think it was.

The plaintiff resided in Elwood, New Jersey. On Sunday, May 12th, 1929, he had, with several others, driven toward Atlantic City in a Dodge car. This car having broken down, it was pushed off the main highway, and the plaintiff, the license plates having been removed, started for Philadelphia, in order to return with another automobile belonging to one of the party, so that the trip to Atlantic City might be continued. The license plates were removed lest they be stolen.

Plaintiff stationed himself at the southeast corner of New Orleans avenue and the White Horse pike in order to signal a passing bus. Two went by without stopping. The third struck Olsen and caused more or less serious injuries. Olsen saw the driver of the bus pull over as though he would come to a stop. However, instead of doing so he seems to have pulled in and struck Olsen. The bus driver and a number of witnesses, called for the defendant, explain that the injuries suffered by Olsen were due to the fact that he made an attempt to jump upon the bus while it was still moving. The fact questions, in a short but comprehensive charge, were clearly presented to the jury.

The witnesses, in behalf of Olsen, were relatives. However, they told straightforward stories and were cross-examined at length. The bus driver, passengers and an automobilist or two, who testified to a running jump by Olsen at the front righthand side of the bus, present also convincing and disinterested testimony. One circumstance, however, in the case which makes us more certain that the jury’s verdict was supported by the weight of the evidence, is the circumstance of the license plates. Olsen was carrying these plates. They were later found in the center of the highway. It seems unlikely that he would have thrown the plates away and then made a jump for the bus with both hands free. The testimony of the defendant’s witnesses is to the effect that he grabbed for the bus with both hands. It seems more likely that he was struck and so lost the plates, than that he threw them down. The details of the occurrence are not clearly fixed on Olsen’s mind. This, of course, as so often happens, may be due to the occurrence. The verdict, we believe, is supported by the weight of the evidence.

The rule will be discharged, with costs.


text:
    JOSEPHINA DEROSE, ADMINISTRATRIX OF ESTATE OF ALPHONSA DEROSE, DECEASED, PLAINTIFF, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT.
    Decided January 27, 1931.
    Before Justices Parker,, Campbell and Bodine.
    Eor the plaintiff, John 0. Benson.

    For the defendant, Frederic B. Scolt.

   Per Curiam.

The plaintiff brought suit under the Federal Employers’ Liability act and had judgment at the Passaic Circuit for $16,00C)'.

The defendant procured the rule and reserved exceptions in particular to the court’s refusal to nonsuit and to direct a verdict for the defendant.

The grounds for the motion for a nonsuit and a directed verdict were as follows: “First, if the accident occurred by the deceased coming in contact with train 66, the accident was caused by the sole negligence of the plaintiff’s decedent, and therefore his sole negligence was the proximate cause of this accident.

“Second, that there has been no negligence shown on behalf of the railroad company.

“Third, that the plaintiff’s decedent assumed the risk of the accident which happened to him.”

The nonsuit and direction having been denied, the court was requested to charge, and did charge: “If you find that Derose was an experienced trackman and that when he was working alone he had been instructed to look out’ or ‘watch out’ for trains, then your verdict must be for the railroad company, for his injuries, if he received them by coming in contact with a train of the defendant, was a risk which under the law he assumed.”

It is now argued under reasons I and II, that the verdict was contrary to the charge as above quoted, and against the evidence and the weight thereof and the above-quoted portion of the court’s charge. In other words, it is sought now to review the case on the theory that the verdict was contrary to the charge of the trial court, in that the evidence demonstrated as a matter of law that decedent had assumed the risks incident to his employment. The question so presented was reserved by the exceptions taken when the motion for a nonsuit and a directed verdict on this ground was made. However, it is argued here and it may as well be decided. The case was submitted to the jury on the theory of a custom to give warnings to track workers which was not followed. Although the deceased’s superior testified to warning him to look out for trains and cars there was no way in which the plaintiff could negative this testimony. The burden of proving such warning as a foundation for assumption of risk was on the defendant; and although the testimony was in the nature of things not negatived, the jury were entitled to pass on it and were not required to believe it. Schmidt v. Marconi Wireless Telegraph Co., 86 N. J. L. 183. It may well be that the point is not material here, since the theory on which the case was submitted was whether the engineman failed to give a usual and customary warning. We cannot say that the case was barren of evidence to support the verdict on the theory on which it was submitted to the jury.

The second point argued is that the trial judge was in error in that portion of his charge in which he discussed the rule of diminution of damages because of contributory negligence. It is not apparent to us that he was, but we do not consider the point because no exception was taken.

The rule will be discharged.


author: Pee Ctjeiam.

text:
    HARRY M. GEISLER ET AL., PROSECUTORS, v. EDWARD L. DAVIS, JUDGE OF THE POLICE COURT OF THE CITY OF ORANGE, DEFENDANT.
    Decided January 27, 1931.
    Before Justices Pabicee, Campbel and Bodine.
    Eor the prosecutors, Edwin G. Adams and Daniel J. Brennan.

    Eor the defendant, William A. Calhoun.

   Pee Ctjeiam.

The writ of certiorari in this case brings up a conviction for operating a miniature golf course without a license in violation of an ordinance of the city of Orange. The violation occurred on Sunday, October 10th, 1930. The ordinance permits those who hold a license to operate on Sunday. Hence, a conviction and fine for transacting business without such a license cannot be sustained, since the license would have conferred no right to carry on such business on Sunday. Singer v. Criminal Court of Newark, 79 N. J. L. 386.

The conviction will, therefore, be set aside.


author: Pee Curiam.

text:
    STATE OF NEW JERSEY, CHARLES A. OLIVER, PROSECUTOR, v. NEW JERSEY STATE HIGHWAY COMMISSION, RESPONDENT.
    Decided January 27, 1931.
    Before Justices Parker, Campbell and Bodine.
    Por the prosecutor, Edmund A. Hayes.

    Por the respondent, William A. Stevens and Walter H. Bacon, Jr.

   Pee Curiam.

The prosecutor was a junior inspector in the state highway department. On October 31st, 1928, he was discharged and seeks by certiorari to review this action. The application for the writ was made in February of 1930. The rule was continued and the application was submitted to the Supreme Court in October last on briefs and a meagre stipulation of facts.

It is to be noted that the prosecutor failed to take any steps for a review of the action of the commission for more than a year. The failure for so long to apply for & certiorari, wtihout any excuse, is unreasonable and the rule will be discharged. Glori v. Board of Police Commissioners, 72 N. J. L. 131.


text:
    IN THE MATTER OF BENJAMIN WILLIAM MILLER.
    Decided January 27, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor tbe motion, Joseph L. Smith.

   Pee Curiam.

In 1922, there was a plea of non-vult to charges of obtaining money under false pretenses and embezzlement. Sentence was served in the Essex county penitentiary. For three or four years after release no professional occupation is said to have been pursued. In 1927, or 1928, the practice •of law was resumed. In at least two instances since, clients’ money has been retained improperly. No reason exists for the continuance of a professional calling when neither trust ■or confidence exists.

The report of the board of bar examiners is confirmed, and rule of disbarment will accordingly be entered.


author: Pee Cukiam.

text:
    FRANK VANBUEREN, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE CITY OF WILDWOOD, RESPONDENT.
    Decided January 27, 1931.

      Before Justices Paekee, Campbell and Bodine
    Eor the prosecutor, Lewis T Stevens.

    Eor the respondent, Harry Tenenbaum and Carl Kisselman.
   Pee Cukiam.

This writ brings up a conviction for violating two ordinances of the city of Wildwood. One ordinance forbids display of merchandise upon the boardwalk; the other forbids the conducting of any merchandise business without a license.

The prosecutor was arrested and convicted on Sunday, and it is his contention that the proceedings were void because of section 5 of the Vice and Immorality act as follows: “That no person or persons, upon the first day of the week, commonly called Sunday shall serve or execute, or cause to be-served or executed any writ, process, warrant, order, judgment or decree (except in criminal cases or for breach of the peace), but that the service of every such writ, process, warrant, order, judgment, or decree, shall be void to all intents and purposes whatsoever; and the person or persons so serving or executing the same, shall be as liable to the suit of the-party grieved, and to answer damages to him for doing thereof,, as if he or they had done the same without any writ, process,, warrant, order, judgment or decree.” 4 Comp Stat., p. 5715. If a civil proceeding, the action was illegal. Jewett v. Bowman, 27 N. J. Eq. 275.

Our statute is almost an exact copy of 29 Car. II., ch. 7, §6. It has been held by virtue of that statute a warrant of commitment for a penalty cannot be executed on a Sunday,, and that the apprehension on that day is wholly void, and defendant entitled to be discharged out of custody. The King v. Myers, 1 T. R. 265.

Actions for penalties under municipal ordinances have, in this state, been held qui tarn actions, and, therefore, civil proceedings. Brophy v. Perth Amboy, 44 N. J. L. 217. See cases-collected under heading “Penalties,” New Jersey Digest, § 6.

The convictions will therefore be set aside, with costs.


text:
    W. S. DAVIDSON, INCORPORATED, A CORPORATION, PROSECUTOR, v. THE MAYOR, ETC., DEFENDANTS.
    Decided January 27, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutor, Seufert & Elmore.

    Eor the defendant, Wright, Vander Burgh & McCarthy.

   Per Curiam.

The borough of Tenafly adopted an ordinance to provide for the improvement of three streets: Sussex road from Knickerbocker road to Westervelt avenue, Burlington road from Knickerbocker road to Westervelt avenue, and Westervelt Court from Burlington road to Westervelt avenue. The ordinance provides for the establishment of the grade, curbing, paving, drainage, sewer, water and gas mains, and makes the improvements a local one. There is one general specification for the entire work, and the official maps referred to in the ordinance are combination maps used for three purposes: (1) to establish the grade; (2) setting forth the plan and detail of the work to be done, and (3) the assessment map showing the properties assessed and the names of the owners.

The work was completed about December 5th, 1927. On December 12th, 1927, a resolution determining the expenses was adopted. The commissioners of assessments, after hearing, made their report. The hearing on the report was held July 9th, 1928, and objections being made, the matter was referred back to the commissioners for further consideration. The commissioners made a new report decreasing some assessments and materially increasing others. This report was adopted and confirmed by resolution but no hearing was held.

It is first argued that the improvement and the assessment therefor was treated as a single improvement and a single assessment; whereas in fact it was three separate improvements on three separate roads or streets, and that a single assessment was therefore improper. We do not deem it necessary now to determine this question, because it is apparent that the assessment was not made, confirmed and levied in the manner provided by law.

At the meeting of the commissioners of July 9th, 1928, of which the property owners had notice, the report of the assessment commissioners against which prosecutor protested, was referred back to that commission for further consideration and report. The property owners were afforded no further notice of what the assessment commissioners had done in the matter. But on July 30th, 1928, without notice and without opportunity to be heard, the increased assessments as made by the commissioners of assessment were approved and adopted by ordinance.

Pamph. L. 1925, p. 235, amending section 21, article 20 of the Home Rule act does not seem to require notice of the hearing on the second report after the same has been sent back to the commissioners of assessments. But we believe that when the property owner protested against the assessment he had the right to assume the assessment would not be increased without giving him a hearing. Obviously, there is a distinction between adopting an assessment as made without further notice and adopting an increased assessment without any notice at all.

It seems to us that the property owner was deprived of all hearing on the new assessment, and that he was entitled to-the judgment of the city commissioners on the new assessment and to a hearing at which he might support his allegations. Breakenridge v. Tichenor, 95 N. J. L. 436.

The assessment proceedings are therefore set aside, with, costs.


author: Ingebsoll, V. C.

text:
    In the matter of the Vineland Trust Company, in charge of the commissioner of banking and insurance, under the provisions of chapter 171 of the laws of 1913.
    [Decided February 18th, 1931.]

      Mr. Herbert G. Bartlett, for Vineland Trust Company.

      Mr. Russell S. Henderson, for a committee representing certain stockholders of the Vineland Trust Company.

      Mr. Albert R. McAllister, for Prank EL Smith, commissioner of banking and insurance of New Jersey.
   Ingebsoll, V. C.

On the 11th day of June, 1930, the doors of the Vineland Trust Company were closed and the commissioner of banking and insurance therewith took possession of the property and business of said trust company.

On the 7th day of October, 1930, the Tradesmen’s Bank and Trust Company of Vineland, New Jersey, made to the said commissioner, in writing, an offer to purchase the real estate owned by the Vineland Trust Company, on Landis avenue, in the borough of Vineland, Cumberland county, New Jersey, comprising the banking house, store and office building adjacent thereto, the frame dwelling in the rear of these buildings, together with the banking fixtures and equipment, the title department and the records and equipment pertaining thereto, and the good will of the trust department, for the sum of $100,000 in cash, and to purchase, at par, all mortgages and notes now held by the Vineland Trust Company, which, in the opinion of its board of directors, have a present worth equal to the face value thereof, to the amount of $400,000, or such, other sum as shall represent such face value of such securities in excess of such sum of $400,000.

Thereafter, on the 23d day of December, 1930, the said commissioner of banking and insurance filed a duly verified petition, praying this court to authorize and permit the acceptance of such offer of the Tradesmen’s Bank and Trust Company. An order to show cause was advised, returnable on the 27th day of January, 1931, notice thereof being duly published in newspapers printed and circulating at Vine-land, in this state.

On the 22d day of January, 1931, a committee of the stockholders of said Vineland Trust Company applied to the commissioner of banking and insurance and submitted a proposition for the rehabilitation of said trust companjq which proposition the said commissioner of banking and insurance declined to approve. On ihe return day, January 27th, 1931, representatives of the said committee of the stockholders appeared and through their solicitor, Albert A. F. McGee, Esquire, applied for a continuance of said hearing, alleging that they were endeavoring to obtain financial support which would enable them to make or cause to be made a greater offer than that of the Tradesmen’s Bank and Trust Company. Said hearing was thereupon continued until Friday, the 6th day of February, 1931, at Millville, in the county of Cumberland. Testimony, however, was taken as to the value of said real estate.

Prior to the said 6th day of Februarjr, 1931, the said committee relieved Mr. McGee of the duty of further representing it, and at the time of the hearing on said Fébruary 6th, Eussell S. Henderson, Esquire, of Bridgeton, New Jersey, represented said committee, requesting further adjournment upon three particular grounds—first, that he had so recently been called into the case that he was unable to prepare himself in the matter; secondly, that the committee was still negotiating for the financial support necessary for them to proceed; and thirdly, that the said committee had been unable to obtain from the representatives of the commissioner of banking and insurance the details concerning the assets of the trust company in liquidation.

All of these reasons were considered by me as unsubstantial. Eour months had elapsed since the oiler of the Tradesmen’s Bank and Trust Company was made, and by due diligence, the committee would have had sufficient time to have taken up the matter. The continuance was, therefore, refused, and all persons interested were notified by the court to express their reasons for the acceptance of such offer or ¿my objections they might have thereto, in person or by counsel. The only material objection presented was that the real -estate and the good will of the title and trust department .should be of greater value than $100,000. The committee of the stockholders above referred to requested an opportunity to present a statement which had been by them prepared in writing, although this committee was represented by counsel, who announced that he had presented all of the matters he 'had been called upon to do. I again announced that the matter was open, permitting any person interested to be heard. The committee then read a written statement, in which they .specifically appeared as “not in opposition to offer made by 'Tradesmen’s Bank, and submits that unless circumstances :aud facts warrant otherwise, that Tradesmen’s Bank offer be approved and accepted,” and end their statement by saying: “The committee feels that it was its duty to present the desire and hope of the group of depositors which it represents, also the sentiment of a majority of the stockholders ■of the Yineland Trust Company—that the bank building, and facilities, good will and assets, be preserved to the depositors as a body—in preference to liquidation thereof, and further feels that it dare not shoulder the sole responsibility of requesting an adjournment or dismissal of the offer made by the Tradesmen’s Bank.”

The recommendation of the commissioner of banking and insurance, together with the testimony of the value of the real estate, heard by me, together with the statements made hy interested parties before me in open court, convinces me that it is the duty of this court to approve the acceptance of the offer, and I will advise an order in accordance with these views.


text:
    ISADORO I. WERBLIN, PROSECUTOR, v. C. BENSON WIGTON, E. K. MORSE, SEYMOUR PERKINS, M. D. O’KEEFE, AND LESLIE L. VIVIAN, MEMBERS OF THE BOARD OF ADJUSTMENT OF THE CITY OF PLAINFIELD, ET AL., RESPONDENTS.
    Submitted October 17, 1930
    Decided January 21, 1931.
    Before Justices Parker, Campbell and Bobine.
    For the prosecutor, William Newcorn.

    For the respondents, J. Henry Grane.

   Per Curiam.

The city of Plainfield is zoned pursuant to an ordinance whose validity is not questioned in the present case. The prosecutor is the owner of a piece of property at the northeast corner of Grant avenue and West Forth street, which is zoned as residence “C” property. He desired to use the property, or a portion thereof, for a grocery store and to build one on the property. The board of adjustment held a hearing, at which the facts were fully presented, and the conclusion reached by the board was that no special permit should be granted, but that the prohibition of the zoning ordinance should remain unaltered. The two points now made are— first, that the denial of the board was arbitrary and unreasonable. Naturally where a property is in a restricted zone immediately joining one that is less restricted, as in this case, the owner of such restricted property feels that the ordinance is unnecessarily severe on Mm and that the board of adjustment is unreasonable in refusing to alter it. The case is simply within the large class of cases wherein a fair-minded and conscientious board is required to exercise its best judgment and decide the application according to that judgment in connection with the legal situation of the case. We have looked over the testimony and see no reason to say that the board was in any way delinquent in its duty.

The next point is that the act of 1928, page 696, section 7, is unconstitutional because the object of the legislation in section 7 is not expressed in the title. The act was that passed in pursuance of the constitutional amendment of 1927 and considered at some length by the Court of Errors and Appeals in the case of Durkin Lumber Co. v. Fitzsimmons, 147 Atl. Rep. 555. The effect of section 7 is generally that where a municipality has adopted a zoning ordinance before the passage of the act, such ordinance shall continue in effect as though it had been adopted under the provisions of the act of 1928; and it is now claimed that the title of the act of 1928, viz.: “An act to enable municipalities to adopt zoning ordinances limiting and restricting to specified districts and regulating therein buildings and structu res according to their construction and the nature and extent of their use, and the repeal of sundry zone laws,” does not constitutionally express an intent to validate for the future zoning ordinances-passed before the act took effect. We are not impressed with this argument, particularly as the Court of Errors and Appeals in three very recent cases distinctly held that this-statute validated pre-existing zoning ordinances. Steinberg v. Board, 146 Atl. Rep. 318; Paramount Realty Co. v. Schmitt, 146 Id. 319, and Marlyn Realty Co. v. West Orange, 146 Id. 320. In the case of Durkin Lumber Co. v. Fitzsimmons, already cited, which was a carefully argued and fully considered case, the point does not seem to have occurred to either counsel or the court. In view of these decisions, we consider it to be sufficiently settled, at least so far as concerns this court.

The writ of certiorari will accordingly be dismissed.


text:
    YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF HARVEY CEDARS, NEW JERSEY, PROSECUTOR, v. ELSIE H. PELHAM, COLLECTOR OF TAXES OF THE BOROUGH OF HARVEY CEDARS, RESPONDENT.
    Submitted October term, 1930
    Decided January 20, 1931.
    NOTE.—Women’s Christian Association of Philadelphia v. Lippineott, has now been reported in 9 Ar. J. Mis. R. 133.
    Before Justices Parker, Campbell and Bodine.
    Por the prosecutor, George W. G. McCarter.

    For the respondent, Howard Ewart.

   Per Curiam.

This writ brings up for review a tax assessment for the year 1929 against the lands and buildings and personal property therein contained of the prosecutor, which is a corporation organized under “An act to incorporate associations not for pecuniary profit,” approved April 21st, 1898. It claims exemption under “An act for the assessment and collection of taxes (Revision of 1918).” Pamph. L. 1918, p. 847, § 203, If 4. The property consists of about seven acres, on which is one large main building and some small outbuildings, and is conducted as a summer home for working girls and without effort or intent or purpose of profit. It is open only during the summer months. A weekly charge of thirteen dollars is made and the total receipts are not sufficient to meet the expenses; the deficit being made up through voluntary donations by charitably disposed persons. Originally the prosecutor was a Pennsylvania corporation, but in order to meet the requirements of the Tax Assessment act of 1918, supra, it became incorporated under the laws of this state in the manner before stated, and the Pennsylvania corporation conveyed to it the property in question.

We conclude that the proofs establish that the prosecutor is an association of the character entitling its lands and property to the exemptions provided for by the Tax act, supra. The facts and situations seem to us to be identical with those in the unreported ease of Women’s Christian Association of Philadelphia v. Lippincott, collector, cited verbatim by the prosecutor.

While it is freely admitted that prosecutor became incorporated under the laws of this state for the purpose of meeting the requirements of our Taxing act, it should not be denied such exemption upon the ground that this was a subterfuge to escape taxation. It did not thereby change its fundamental character as a charitable or benevolent association not conducted for profit, as was the situation in In re Dwight School, 51 N. J. L. J. 148; Montclair v. State Board, 86 Id. 34; Carteret Academy v. Board, 102 Id. 525, cited by respondent.

While we are satisfied that the buildings and personal property of the prosecutor are exempt from taxation, and, therefore, as a necessary result of such finding, some part, if not all, of the lands are also exempt, yet, an insurmountable difficulty stands in the way of a complete finding in this direction. The statute relied upon provides for the exemption of all buildings coming within the prescribed use; all furniture and personal property devoted to such use, and “the laud whereon any of the buildings hereinbefore mentioned are erected and which may be necessary for the fair enjoyment thereof, and which is devoted to the purposes above mentioned and to no other purpose, and does not exceed five acres in extent * * *.”

The prosecutor’s contention appears to be that as there are two or more buildings devoted to an exemptible use and as there are only seven acres in the tract, a proper construction of the statute requires an exemption of the entire seven acres, as in no instance could there be more than five acres to any building.

The respondent seems to urge that in no event more than five acres of the tract can be exempt, and cites Institute of Holy Angels v. Bender, 79 N. J. L. 34.

The proofs before us do not show or establish, with any certainty, the total number of buildings, nor the character, uses or locations of those which are referred to as “small outbuildings.” Based upon anything appearing in the proofs before us it would be the height of speculation for us to find that all these buildings were not located upon a tract with the main building and included within five acres surrounding it, or even if that should in fact be so, that such tract of five acres was necessary to the fair enjoyment thereof. In a case of this character the burden is upon the prosecutor to establish its right to exemption.

The proofs may be searched, and in vain, to find anything showing how much of the tract of seven acres is necessary to the fair enjoyment of the buildings for the charitable and benevolent purposes to which they are dedicated. Were it not for what appears to us to be an admission, in the brief of respondent, that if the lands 'are at all entitled to be exempt, then five acres is the total extent, we should have to say and find that the record before us does not present proof warranting the exemption of any land other than that upon which the buildings are actually and physically located.

The statement in the brief of counsel of the respondent to which we refer is (page 4) : “It is apparent that there was more than one building on the tract. It would be ridiculous to assume, as the prosecutor’s brief would apparently have us assume, that five acres of land was necessary to the fair use and enjoyment of each little outbuilding used in connection with the main building. Especially is this true by reason of the constant repetition of the courts that statutes such as that involved here are to be construed with the greatest strictness against the party claiming the benefits of such statutes.”

Construing this strictly against the respondent as an admission that if the prosecutor’s lands and properties are entitled to exemption, at least and only five acres of land are thereby exempt, and extending to the prosecutor the widest liberality in this direction, we are moved to find that five of the seven acres of the tract are subject to exemption.

We therefore find that the buildings, personal property and five acres of the tract are subject to exemption under the statute, and the assessment and tax against the same are set aside and the remaining two acres are subject to the assessment and tax against the same, and that such assessment and tax in respect to such two acres are affirmed.


author: Pee Ctteiam.

text:
    MORRIS SWISSMAN, PROSECUTOR, v. CALIFORNIA GRAPE PRODUCTS COMPANY ET AL., RESPONDENTS
    Submitted October term, 1930
    Decided January 20, 1931.
    Before Justices Pabicee, Campbell and Bodine.
    For the prosecutor, Brenner & Kresch.

    For the respondent, Isador Saber.

   Pee Ctteiam.

Frank Gualtieri and William Massari, partners, trading as Colony Grape Products Company, being indebted to the respondent California Grape Products Company, Incorporated, in the sum of $5,265.55 and being non-residents of this state, were made defendants by its said creditor in a proceeding in attachment; the writ issuing out of the Hudson County Circuit Court, and, under it, the sheriff of that county attached ten vats of wine, containing eight thousand gallons, and two filters, as the property of such defendants. It is admitted that the wine has an alcoholic content of more than one-half of one per cent, and that the vats and filters were used to prepare and preserve the wine.

After the execution of the writ a motion was made before a judge sitting at Circuit to quash it, and the return made thereon, upon five grounds:

1. A proper levy was not made.

2. The sheriff did not and could not possess himself of the goods mentioned in the return.

3. The goods specified in the return are not the subject of attachment.

4. The sheriff, to whom the writ is directed, is without authority to seize, possess himself of or advertise for sale the goods specified in the return.

5: The attachment, seizure and levy and return are illegal and contrary to the provisions of an act commonly known as the “National Prohibition act.”

The learned judge who heard the matter made an order refusing to quash the writ. He seems to have reached the conclusion, bringing forth this order, which is now here under review, upon the ground that any liquor possessed for any of the purposes prohibited under the National Prohibition act or State Enforcement act ceases to be property “and in such instances c.ould not be sold by any person, officer or otherwise, but when as in this case it is being manufactured under a permit granted for the purpose and is being manufactured for other than beverage purposes as in this case, it retains its quality as lawful property and as such can be levied upon the same as any other chattel in satisfaction of a judgment.”

Without expressing any opinion upon the reasoning of the learned Circuit judge, whatever force it has, falls, for the reason that from the facts stipulated the defendants in attachment had no permit to manufacture and sell the wine attached. Therefore the goods attached cannot be said to be property in the hands of the defendants in attachment. It appears that the prosecutor claims to be the owner of the goods attached and that he holds a government permit to manufacture and sell alcoholic beverages.

The parties have stipulated: “The ownership of such chattels is claimed by prosecutor, Swissman, but for present purposes, the ownership is not in dispute.”

The evident purpose of this stipulation was to draw from this court its opinion upon the question as to whether or not beverages having an alcoholic content exceeding one-half of one per cent, can be the subject of levy, attachment and judicial sale.

Such opinion we decline to express for the reason that the present prosecutor is not before us with such an interest shown as permits him to have the benefit of this writ and for that reason the writ might well bo dismissed, and that would be our disposition of the matter if it were not for the public policy involved under the national and state enforcement acts and, of equal importance, the fact that legality of the acts of a public officer, the sheriff, who made service of the writ, are concerned.

For these reasons, alone, we express ourselves upon the merits but to the limited extent only that under the facts before us, and already adverted to, the property in question is not subject to attachment and therefore the levy and return must be set aside. We clo not see that this carries with it a quashing of the writ of attachment. It may make it a useless process in the hands of the attaching plaintiff for lack of goods and property of the defendants, but it is enough to say that no cause is advanced against it as a proper writ of process. The attack is made against the levy and return thereunder, which we find must be set aside.

To that extent the order under review is reversed and modified, with costs to be taxed.


author: Pee Cueiam.

text:
    MARGARET GRANT, PROSECUTOR, v. METROPOLITAN ICE COMPANY, RESPONDENT.
    Submitted October term, 1930
    Decided January 20, 1931.
    Before Justices Paekee, Campbell and Bodine.
    Por the prosecutor, Joseph Goult and Gerald T. Foley.

    Por the respondent, Henry Harris.

   Pee Cueiam.

This writ brings up for review the judgment of the Common Pleas Court, upon an appeal from the findings of the workmen’s compensation bureau, affirming such finding.

The sole question presented appears to be that the finding that the accident arose out of and in the course of employment was not established by competent and sufficient proof, but was based entirely upon hearsay evidence.

Our examination of the proofs causes us to concur in this contention to the extent that in some large measure this is so, and necessarily so, but also that there was corroborative proof, more or less circumstantial, warranting and justifying the findings below upon this point.

The judgment below is therefore affirmed, with costs.