author: Backes, V. C.

text:
    The Republic Fireproofing Company, Incorporated, complainant, v. Mo-Ray Realty Company et al., defendants.
    [Decided February 17th, 1927.]
    Mechanics’ Lien — Motion to Dismiss Bill — Court Reviews Complicated Situation and Holds That There is Enough to Require an Answer — Conspiracy Alleged.

      Mr. Charles L. Hedden, for the complainant.

      Messrs. Isserman & Isserman, Mr. Jacob L. Newman and Messrs. Saul & Joseph E. Cohn, for the defendants.
   Backes, V. C.

Motion is made to dismiss the bill. The bill discloses that the complainant furnished material for Mo-Ray Realty Company for the construction of an apartment-house, and on August 20th, 1925, filed a mechanics’ lien for $6,082.90 and commenced suit, which was still undecided at the time of the filing of the bill (judgment against the builder has since been entered — judgment special on the lien is held in abeyance). On October 14th, 1925, the Decker Building Material Company filed its mechanics’ lien for $6,701.29, and later other claims were filed; the liens in all amount to $23,000. The Decker company suit to enforce its lien went to judgment, general and special, on April 15th, 1926; was assigned to Spruce Realty Company and by the latter executed by sheriffs sale to the Lukens Holding Company, which was then the owner of the fee, for $1,500. At the time the complainant’s lien was filed the property was subject to advance-money mortgages, amounting to $192,500. Afterwards, and before the Decker lien was filed, additional advance-money mortgages,, amounting to $130,000, were recorded against the property. The sale to enforce the Decker special judgment was subject to the aggregate amount of mortgage liens of $332,500. A sale of the property under the lien judgment of the complainant would have been subject only to the mortgages of $192,500 ox less, it being alleged that the money on some of the mortgages was not, in fact, advanced, some $25,000 and upwards. Mechanics’ liens are concurrent, and the sale to enforce a judgment under any one of them conveys the owner’s estate at the time of the commencement of the building, subject to mortgages then of record, and to advance-money mortgages recorded thereafter but before the filing of the liens respectively. It is charged, in effect, that the holders of the $130,000 mortgage encumbrances, recorded after the filing of the Decker lien, conspired to defraud the complainant of its priority lien, and procured the entry of the Decker judgment,'the issuing of the execution and the sale of the- property to the Lukens Holding Company, which they organized for that purpose, and that as part of the conspiracy they organized the Spruce Realty Company to take over the assignment of the Decker judgment for the purpose of the sale. The scheme to defraud the complainant is admitted on this motion, and if the view of the complainant is correct, that the sale under the Decker lien and judgment bars a second sale under its judgment, then the scheme has been accomplished and the complainant has been injured, which equity alone can relieve. It suggests itself, however, that as the complainant’s judgment lien operates upon a different- estate from that which was sold under the Decker judgment it would be advisable for the complainant to prosecute its lien to special judgment and sell thereunder. It is further charged that complainant was unaware of the sheriff’s sale. Only the statutory notice was given, and it is questionable whether the sale is valid against the complainant, which had no actual notice of it and opportunty to protect itself. It may be that there is a trust relation between mechanics’ lien claimants, the same as between co-tenants in possession of land, and if so, the conduct of the defendants would be held to be the taking of an unfair advantage, which equity would redress. However, the bill presents enough to move the court to require the defendants to answer, and to reserve the motion to strike the bill until final hearing, when the prayer to vacate the sale and set aside the deed can receive more serious consideration. The temporary stay against the Spruce Realty Company restraining it from applying for distribution of the proceeds of sale under the Decker judgment will be continued. That company is implicated in the conspiracy and ought not to be permitted to further complicate the situation.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, EX REL. THE REITZEL ESTATE, INCORPORATED, RELATOR, v. REINHART O. OSTERMANN, BUILDING INSPECTOR OF THE TOWNSHIP OF MAPLEWOOD, RESPONDENT.
    Argued October 6, 1926
    Decided January 28, 1927.
    Zoning — Two-Family House in Restricted Territory — Case Within Rule in Nutley Case.
    On alternative writ of mandamus.

    Before Gummere, Chiee Justice, and Justices Teen-chard and Minturn.
    Por the relator, Qharles J ones.

    Por the respondent, Samuel D. Williams.

   Per Curiam.

This is a zoning case. In the stipulation of facts it appears that the relator was the owner of property in Maplewood, on which stood a one-family house. He applied for a permit to convert the same into a two-family house according to .certain plans and specifications. The building inspector declined to issue the permit for the erection and alterations of the building solely because a zoning ordinance of the township of Maplewood zoned the property in question as a single-family residence district.

Of course, under the authority of State v. Nutley, 99 N. J. L. 389, a peremptory writ should issue, and it is so ordered.


text:
    PUBLIC SERVICE TRANSPORTATION COMPANY, PROSECUTOR, v. TOWN OF WEST NEW YORK, RESPONDENT.
    Decided January 31, 1927.
    On certiorari.

    Before Justices Black and Campbell.
    Eor the prosecutor, Edward Ambler Armstrong and Frank Bergen.

    Eor the respondent, Hvrschberg & Rubenstein.

   Per Curiam.

This writ brings up for review an ordinance entitled “An ordinance to amend an ordinance entitled ‘An ordinance regulating the licensing and operating of motor vehicles used for the transportation of passengers for hire, in the town of West New York, in the county of Hudson and State of New Jersey,' adopted March 22d, 1921.”

This is the same ordinance that was the subject of consideration in cases 203, 204, 205, 206, 207 and 209 of the present term and for the reasons set forth in the opinion filed in those causes, the ordinance under review is set aside, with costs.


text:
    DELAWARE RIVER BRIDGE RAILROAD AND BRIDGE COMPANY, PROSECUTOR, v. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HADDON ET AL., RESPONDENTS.
    Decided January 31, 1927.
    Taxes and Assessments — A Certain Piece of Land was Assessed as a Part of the Right of Way of a Railroad Company— Municipality Has Assessed Benefits Against it For Paving, Guttering, &c. — Held, Not Subject to Taxation For Such Purposes — No Laches Found.
    On certiorari.

    Before Justices Black and Campbell.
    For the prosecutor, Bourgeois & Coulomb.

    For the respondents, Walter 8. Keown.

   Per Curiam.

The prosecutor is a duly incorporated railroad company operating a railroad from a point in the vicinity of Haddonfield to Delair, in the county of Camden. At a point where Maple avenue, a public highway, crosses the right of way of the railroad company, in the township of Haddon, the railroad tracks are laid in a cut, and the avenue is carried over the right of way by means of a bridge, which is approximately thirty-two feet wide and ninety feet in length. The bridge extends east and west and the right of way at that point runs north and south. At the west end of the bridge there is a twenty-six-foot strip of land and on the easterly end there is one twenty-three feet wide. Both strips are on a level with Maple avenue and form the shoulders of the cut through which the railroad tracks are laid and are used by the company for the purpose of protecting the slopes from erosion by rain, melting snows and the like and to likewise protect adjoining properties to the east and west.

There are no buildings or structures of any kind on such strips, and so far as the prosecutor is concerned they are a part of its right of way and are so considered and reported to the state board of taxation and are assessed by that board as a part of the right of way and main stem of the railroad as required by statute.

In improving Maple avenue by paving, guttering and curbing the respondent has caused these two strips of land to be assessed for benefits.

The prosecutor, contending that its property is not subject to assessment for such purposes, sued out this writ and seeks to have the assessments set aside and vacated.

Under New York Bay Railroad Co. v. Newark, 77 N. J. L. 270; 82 Id. 591, we think such contention of the prosecutor is sound and the lands in question were not subject to the assessments.

But the respondents contend that if that be so the assessments should not be set aside and that the prosecutor is not entitled to have this writ of certiorari because it is in laches under both Certiorari act (1 Comp. Stat., p. 407, § 15) and the Municipalities act (2 Supp. Comp. Stat. (1911-1924), p. 2209, §§ 136, 2057), in that a period of nearly eight months elapsed from the date the assessments were levied and the date of the allowance of the writ. The Certiorari act, supra, limits the allowance of the writ to sixty days after such assessments are confirmed, and the Municipalities act, supra, fixes such limitation at thirty days.

This would be so if the ground urged for setting the assessments aside was some irregularity in the proceedings, or for an undue or excessive amount of assessment or mistake in the manner of making them, but these limitations do not apply and laches cannot be successfully urged, where, as here, the lands were not subject to assessment. Benedictine Sisters v. Elizabeth, 50 N. J. L. 347; Meredith v. Perth Amboy, 63 Id. 520; Winants v. Jersey City, 42 Id. 349.

The assessments under review are therefore set aside.


text:
    LOUIS BERMAN AND ALBERT TURIN, PROSECUTORS, v. ABRAHAM GOLDSTEIN, RESPONDENT.
    Decided January 31, 1927.
    Landlord and Tenant — Basic Affidavit Found Not to Set Forth Facts Necessary to Clothe Court With Jurisdiction.
    On certiorari.

    Before Justices Black and Campbell.
    Eor the prosecutors, Mendelsohn & Mendelsohn.

    Eor the respondent, Louis Dworetz.

   Per Curiam.

This writ brings up for review the proceedings and judgment for possession of the Paterson District Court in a landlord and tenant proceeding.

It is contended that the basic affidavit does not set forth the -necessary facts to clothe the court with jurisdiction.

We find this contention to be well founded. Possession was sought of a store and cellar at 134 West Broadway, Paterson, New Jersey, and also of a large room at 132-134 West Broadway, in the same city.

As to the cellar and store at 134 West Broadway, the affidavit alleges the premises to be held under a certain agreement made December 1st, 1922, for a period of three years, at a monthly rental payable in advance. The time of the commencement of the tenancy is not set forth, and there are no facts from which it can be found unless it be assumed that the tenancy commenced at the date of the agreement, December 1st, 1922. If so, the term expired under the terms of the letting December 1st, 1925. Whether the tenants held over after the expiration of the term, and if so whether such holding over was with the consent of the landlord, express or implied, or not does not appear. Assuming, again, that the holding over was with the consent of the landlord, then a yearly tenancy was created terminating December 1st, 1926, if the facts previously assumed are correct.

The notice, however, required possession as of May 1st, 1926.

As to the premises known as the large room in 132-134 West Broadway, the affidavit is also deficient in fixing the letting as “made some time prior to August 1st, 1923.” From it there is nothing upon which to base the correctness of the notice requiring possession as of May 1st, 1926.

The requirements of such affidavits are definitely established by numerous adjudications such as Fowler v. Roe, 25 N. J. L. 549; Shepherd v. Sliker, 31 Id. 432; McWilliams v. King, 32 Id. 21; Wooley v. Lane, 51 Id. 504; Thompkins v. Starger, 52 Id. 350; Scheifele v. Irving, 53 Id. 180; Gray v. Reynolds, 67 Id. 169; Finkelstein v. Her-son, 55 Id. 217; Water v. Williamson, 59 Id. 337.

The affidavit in question clearly does not meet these requirements and the proceedings must be set aside and the judgment reversed, with costs.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JACOB ROSE, PLAINTIFF IN ERROR.
    Submitted May term, 1926
    Decided February 8, 1927.
    Crimes — Receiving Stolen Goods — Error, Alleging Failure of Court to Direct Verdict — In a Criminal Case, After the State Has Rested, a Motion to Direct is Discretionary — Where a Defendant Receives Goods Under Such Circumstances as to Satisfya Man of Ordinary Intelligence That They Were Stolen, the Jury is Entitled to Find Guilty Knowledge — Held, That Upon the Facts the Court was Fully Justified in Refusing to Direct a Verdict at the Close of the State’s Case and That There was No Error in Refusing to Direct at the Close of Defendant’s Case.

      On writ of error to the Court of General Quarter Sessions in and for the county of Hudson.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the plaintiff in error, Thomas F. Meaney.

    For the defendant in error, John Milton.

   Per Curiam.

This case is before this court upon a writ of error directed to the Court of General Quarter Sessions in and for the county of Hudson. The writ brings up the record of the judgment on the conviction of the defendant, Jacob Rose, under an indictment for receiving stolen goods, found under section 166 of the Crimes act. The entire record has been certified in accordance with section 136 of the Criminal Procedure act.

The evidence offered by the state was to the effect that one Elizabeth McAllister conducted a store at 526 Washington avenue, in the city of Belleville, in the county of Essex, in which she sold dresses and clothes for women and children. On May 25th, 1924, this store was broken into and a large part of the stock of dresses and clothes were stolen. One Royal Pride was tried and convicted for the larceny of the articles. The defendant, Jacob Rose, conducted a chicken and poultry store in the city of Hoboken. By reason of information received the store of 'Rose was examined. In a closet in the rear of the store were found twelve dresses which were identified by Elizabeth McAllister as goods stolen from her store.

The state’s case consisted of the testimony of Elizabeth McAllister above recited with reference to the theft of the dresses and the identification thereof, and the testimony of police officers to' the effect that these dresses were found in the store of Jacob Rose. Upon the conclusion of this testimony counsel for Rose moved that the judge direct the jury to acquit the defendant. This motion was denied. An exception was taken. This ruling is assigned as error.

The defendant’s testimony was to the effect that after Decoration Day of 1924 he went to New York with his daughter, Anna Rose; that they saw the twelve dresses upon a push cart, and that they purchased them for $142. Anna Rose, the defendant’s daughter, corroborated the testimony of her father. She further testified that she wanted the dresses for herself, and that she took size fourteen, and that six of these dresses were of this size. The dresses were then produced in court and none of the dresses were found to be size fourteen. All were a larger size, some of them running up to thirty-eight and forty. Anna Rose was small. The dresses were unsuitable for her to wear.

A motion was made to direct a verdict for the defendant at the close of the testimony. This was denied. An exception was taken. This is one of the assignments of error relied on for reversal.

In the brief of the plaintiff in error it is further contended that the crime was not committed in New Jersey but in New York. This contention is based upon the testimony of the defendant and his daughter that the dresses were purchased in New York City. There was proof that the stolen goods were found in the possession of the defendant in a closet on the premises occupied by the defendant. While it is true that the defendant claimed that he bought them in New York, this was not conclusive of that fact. A factual question for the determination of the jury was raised by +his testimony.

The two motions to direct a verdict for the defendant, one made at the close of the state’s case and the other at the conclusion of the testimony, were properly denied. In a criminal case after the state has rested a motion to direct is discretionary. Under the one hundred and thirty-sixth section of the Criminal Procedure act, the question may be considered on the whole case as certified. On strict writ of error it would not be considered. But after the entire case is in on strict error, exception and assignment, it is a matter of right. In State v. Lieberman, 80 N. J. L. 506, Chief Justice Gummere says:

“The refusal at the close of the state’s case to discharge a defendant in a criminal trial, although reviewable on error when the proceedings had upon the trial are brought up by the writ, will only justify a reversal of the conviction when there were no facts proper to be submitted to the jury which would support a conclusion of guilt.” An interesting review of this question is found in the case of State v. Bacheller, 89 N. J. L. 433.

When the state rested its case the evidence showed that the store of Elizabeth McAllister at Belleville had been entered and a part of the goods removed were the twelve dresses which were found in a closet on the premises of the defendant, in the rear of his chicken store, in the city of Hoboken. If no further testimony had been offered the jury could have inferred from these circumstances that the defendant had a guilty knowledge that the goods were stolen when he received them. When a defendant receives goods under such circumstances as would satisfy a man of ordinary intelligence they were stolen, a jury is entitled to find guilty knowledge. State v. D’Adame, 84 N. J. L. 386. We think the court was fully justified on this state of facts in refusing to direct a verdict of acquittal at the close of the state’s case, and that no manifest wrong or injury was done to the defendant by the trial court in its refusal to so direct.

At the close of the defendant’s case the same motion was made. The state’s case seems to us to have been strengthened by the testimony offered in behalf of the defendant. The defendant testified that he had purchased the dresses from a peddler on Orchard street, in the city of New York, for his daughter, and had hung them in his closet. The purchase price of the dresses was $142. The defendant’s daughter, in testifying for her father, stated that the dresses had been bought for her. The dresses were then produced and it was found as hereinbefore stated that the dresses were wholly unsuited for wear by her as they were not the size which she testified to she wore. The jury had a right to consider this testimony. They evidently did not believe it. They probably inferred that the defendant would not have paid $142 for dresses for his daughter which were of a size unsuitable for her to wear. We think, under the cases above cited, that the trial court ruled properly in letting the jury pass on the facts of the case and that the defendant suffered no manifest wrong or injury by the court’s refusal to direct a verdict in his favor at the close of the defendant’s testimony.

This disposes of the contentions made in behalf of the defendant below.

The judgment of conviction is affirmed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. AMIELLO RAIMONDI, PLAINTIFF IN ERROR.
    Decided February 7, 1927.
    Crimes — Burning Buildings to Defraud Insurance Company— Error in Charge — After Jury Retired the Court Had it Brought Back, Referred to the Error and Read the Statute to Them — Held, This Cured His Error — Other Alleged Errors in Charge Considered, and Judgment Affirmed.
    On error to the Essex County Court of Quarter Sessions.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the plaintiff in error, Harold Simandl.

    Por the defendant in error, John O. Bigelow.

   Per Curiam.

The plaintiff was indicted on two counts charging him with the burning of a dwelling-house in the city of Orange on the 10th of June, 1935. It appears there was insufficient proof with respect to the first count on the first trial of the case, and a verdict of not guilty was directed for the defendant on this count. At the second trial the jury was instructed to disregard the first count'and the state’s evidence was directed only to the establishing the allegations of the second count. This count charged that the plaintiff in error did “willfully and maliciously set fire to and burn and aid, procure and consent to the setting fire of, and burning of, the building known as number 138 South Jefferson street, in the city of Orange aforesaid, which building was then insured by the New Brunswick Eire Insurance Company and the American Eagle Insurance Company of New York, corporations, against loss and damage by fire, with intent to prejudice the said corporations,” &c. There was no direct evidence submitted by the state of the commission of the act charged against the plaintiff in error, the evidence being purely circumstantial.

The count of the indictment on which the accused was tried is founded upon section 136 of the Crimes act. The court, in charging the jury, obviously, by oversight, disregarded the section of the act on which the accused stood indicted and was being tried. In substance, the court instructed the jury that the gist of the indictment was the willful and malicious setting fire to or burning or aiding, counseling, procuring or consenting thereto, and that the plaintiff in error could be convicted for a violation of the section of the statute for which he stood indicted; of course, if the testimony adduced warranted a conviction. This was clearly an erroneous view of the situation present, and counsel of plaintiff in error took an exception.

After the jury had retired the trial judge’s attention having been directed to the criticised statement of the law, he recalled the jury and said: “Gentlemen, in charging you, I referred to two elements — as to one, the act, if done, must be done maliciously or willfully; second, it is necessary to prove that the defendant set fire to the building with intent to burn it,” and he goes on to say: “I will read the statute to you in its •entirety, so there will 'be no misunderstanding, and I will withdraw from your consideration my reference to the elements and ask you to follow the statute,” and thereupon he read the statute in its entirety. To this supplemental charge an exception was taken and allowed.

We think the trial judge had cured the error into which he had fallen. He specifically instructed the jury to follow the statute.

The circumstances alluded to seems to be the principal ground urged in the brief of counsel of plaintiff in error for a reversal of the judgment, and as to this ground we have reached the conclusion that it is without merit.

Next, it is urged that the court erred in charging the jury as follows: “Assuming the facts sworn to by the witness are satisfactorily proved, then the further inquiry arises whether the facts proved are explained or are explainable on any other ■rational conclusion than that the prisoner is the guilty person, whether the inference of guilt from such facts is, in the judgment of the jurors, sufficiently strong to justify a conviction that the prisoner is the guilty person, tested by the considerations whether the facts proved are capable of being reconciled with the hypothesis of innocence.”

We find no harmful error in this instruction, especially since it was followed by the court’s instruction that the defendant like all other persons is presumed to be innocent and the burden of establishing his guilt rested upon the state, and it is the duty of the state to establish his guilt beyond a reasonable doubt.

Lastly, it is argued that the verdict of the jury is illegal and void. The jury brought in the following verdict: “We find the defendant guilty of burning building to defraud insurers and recommend him to the mercy of the court, and so say they all.”

The criticism made on the verdict is that the statute required the burning to be done with intent to prejudice the insurance companies, or other persons, and that the finding of the jury that the intention to defraud was not the criminal act alleged in the indictment and as set forth in the statute.

We find no merit in this contention. In State v. Caporole, 85 N. J. L. 495, this court held that an indictment charging the setting fire to a building with intent to defraud an insurer is sufficient to charge the statutory offense denouncing the setting of such fire with intent to prejudice an insurer.

At page 497, the court said: “It is equally plain that the word 'prejudice’ is used in its generic sense, as to cause any harm or damage or loss to the insurer. That such insurer would be prejudiced by being defrauded is of course obvious.” Clearly the finding of the jury of the intent to defraud fully designated the intent to prejudice the insurance companies.

Judgment is affirmed.


text:
    SONGAR REALTY CORPORATION, RELATOR, v. W. HOMER AXFORD, DIRECTOR OF STREETS AND PUBLIC IMPROVEMENTS, AND THE CITY OF BAYONNE, RESPONDENTS.
    Decided January 31, 1927.
    Municipalities — Building Permits — Motion Picture House — Ordinance Required Consent of Certain Property Owners — An Identical Provision in an Ordinance in the City of Elizabeth Previously Held Void — Provision Creating Appeal of Building Inspector’s Decision to City Commissioners Held Optional, if Mandatory It Would ,be Ineffective.
    On rule for mandamus.

    Before Justices -Black and Campbell.
    For the relator, Aaron A. Melniker.

    For the respondents, James Benny.

   Per Curiam.

Relator made an application for a permit to erect a moving picture theatre on property known as 1010-1014 Avenue C, Bayonne. The building inspector of the city refused to issue the permit because the provisions of a certain ordinance entitled “An ordinance to amend the building code,” passed December 5th, 1922, had not been complied with, in that relator did not present with his application the consents of property owners required by section 1 of that ordinance. The pertinent portions of such section are: ■

“That no permit shall be granted for the erection or alteration of any structure to be used as a * * * moving picture theatre * * * which said structure is intended to be erected or established within five hundred feet in any direction along any street or avenue where three-fourths of the property on both sides is used or intended for use for residence purposes except there be filed with the inspector of buildings, accompanying the application for the permit for the building in question, acknowledged written consents to the intended use, such consents signed by those representing the owners of three-fourths of the property used, or intended for use, for residence purposes, within the five hundred feet distance above specified.”

An identical provision in an ordinance of the city of Elizabeth was the basis for the reason of setting aside the ordinance as unreasonable and invalid in Levy v. Mravlaq, 96 N. J. L. 367.

Bespondents further urge that an appeal from the decision of the building inspector to the board of commissioners of the city as provided for by section 115 of an ordinance entitled “An ordinance to provide a building code for the city of Bayonne, New Jersey,” passed August 31st, 1920, was not properly taken.

A reading of the section referred to would indicate that such an appeal is an optional right of the property owner. •

But had the ordinance made such appeal mandatory it would have been as ineffective as the appeal under the so-called zoning ordinance as held by the Court of Errors and Appeals in Losick v. Binda, 3 N. J. Adv. R. 1691, and the cases following it.

It is further insisted that relator is not entitled to the writ of mandamus because the fees required by the building code have not been paid. This, however, cannot stand in his way.

Eelator is entitled to and a peremptory writ of mandamus will issue as prayed for, the issuance of the building permit to be, however, upon the condition that the fees provided for by the building code be paid.


text:
    FRED MORRISON AND PUBLIC SERVICE TRANSPORTATION COMPANY, PROSECUTORS, v. TOWN OF WEST NEW YORK, RESPONDENT.
    Decided January 31, 1927.
    Auto Buses — Municipality Brought About Conviction of Prosecutors For Charging a Higher Fee Than Its Ordinance Provided For — Held, That at the Time, the Operation of the Buses was Under the Control of the Public Utility Commissioners in Accordance With the Act of 1926, and the Rates Must be Those Provided by That Commission.
    On certiorari.

    Before Justices Black and Campbell.
    For the prosecutors, Edward Ambler Armstrong and Frank Bergen.

    For the respondent, E'irschberg & Bubenstein.

   Per Curiam.

This writ, and five other writs, with the same corporate but different individual prosecutors, by agreement argued together, and in all of which the facts are the same except that in one two fines were imposed and in the other only one fine, bring up for review the proceedings and conviction of the individual prosecutors for alleged violation oí an ordinance entitled “An ordinance regulating the licensing and operating of motor vehicles and all other vehicles used for the transportation of passengers for hire in the town of West New York, in the county of Hudson and State of New Jersey,” adopted March 22d, 1921, and an amendment thereof adopted August 10th, 1926.

The individual prosecutors were employes of the Public Service Transportation Company operating motor vehicles for the transportation of passengers for hire.

The violations complained of were the receiving and demanding of ten-cent fares on Sunday, August 29th, 1926. Such rate was expressly permitted by the original ordinance of March 22d, 1921, but the amendment of August 10th, 1926, undertook to fix all fares at five cents.

On March 24th, 1926, which was prior to the adoption of the amended ordinance (Pamph. L. 1926, ch. 144) entitled “An act to amend the title and body of an act entitled An act concerning auto buses, commonly called jitneys and their operation in cities,’ approved March 17th, 1916,” and Pamph. L. 1926, ch. 146, entitled “An act to amend an act entitled 'An act concerning public utilities, to create a board of public utility commissioners and prescribe its duties and powers,’ approved April 21st, 1911, passed April 6th, 1921,” had been passed by the legislature and had become effective.

The effect of this legislation was to place buses, such as those operated by the prosecutor Public Service Transportation Company, under control of the board of public utility commissioners, and this control includes the fixing and regulation of fares to be charged.

This resulted in divesting the respondent of the power to fix and regulate fares and it was without such power on August 10th, 1926, when it attempted to adopt the amended ordinance and such legislative action was a nullity. We consider it unnecessary to consider any of the other reasons urged.

All the proceedings brought up for review are therefore erroneous and without legal authority and are set aside and reversed, with costs.


text:
    ALTEN S. MILLER, PLAINTIFF, v. THE BOROUGH OF BELMAR, JOSEPH A. MAYER AND LOUIS NORRIS, DEFENDANTS.
    Argued October 6, 1926
    Decided January 28, 1927.
    Assault and Battery — Plaintiff Engaged in an Altercation With Norris, a Policeman, Who Had Endeavored to Prevent Him From Bathing in a Dangerous Place — Plaintiff Finally Arrested — Convictions Followed on Charges of Violation of Ordinance and Disorderly Conduct — Both Convictions Set Aside — This Charge Then Brought and a Verdict of Six cents Rendered Against Norris, and No Cause of Action Against the Borough or Its Mayor — To This Plaintiff Objects —Ordered That Rule be Discharged.
    On plaintiffs rule to show cause.
    Before Gummere, Chief Justice, and Justices Trenohard and Minturn.
    Eor the plaintiff, Harry B. Cooper and James D. Carton.

    Eor the defendants, Edward A.-Markley, John J. Quirm, Gilbert Van Note and Joseph Silverstem.

   Per Curiam.

This is the plaintiff’s rule to show cause why the nonsuit with respect to the borough of Belmar and Joseph A. Mayer (the mayor of the borough) should not be set aside, and also why the verdict in favor of the plaintiff for six cents against Louis Norris, a policeman, should not be set aside as inadequate.

At the trial the evidence tended to show the following matters of fact (among others) : On August 10th, 1924, the plaintiff was engaged in bathing in the ocean at the borough of Belmar. This part of the beach where he was bathing was dangerous, several people having nearly lost their lives there. The borough authorities in recognition of that danger, had enacted an ordinance regulating bathing and establishing safety limits, and there was also maintained a life guard on the beach at this point. Plaintiff persisted in bathing at this dangerous point, being in the water at times over his head, and the beach guard undertook to get him to come in near shore and to observe the regulations. That the plaintiff refused to do. The beach guard, having other bathers to look after, telephoned to police headquarters to send down a policeman. The policeman sent down was Louis Norris, one of the defendants. He came down and at that time the plaintiff was sitting where the waves washed the beach. Norris and the guard undertook to get the plaintiff out of the water. He refused to come. Norris went down and touched him on the shoulder. The plaintiff became insolent and abusive, refused to come in, called Norris a “swine” and “thug,” and kept it up. Norris then endeavored to bring plaintiff in shore. The plaintiff resisted and denounced him and all the other police officers, loudly calling them “swine” and “thugs,” and a crowd collected, in the scrimmage the plaintiff pulled the policeman’s belt off, and got him down in the water, and as the policeman says, pretty well “mussed him up,” whereupon the policeman called others to help him and they got plaintiff, kicking and fighting, out of the water and carried him to an automobile and took him to police headquarters. There the abuse upon the part of the plaintiff of all police officers continued. A complaint for violation of the ordinance was made against him by Norris. He was released on bail, and was later tried and convicted on that charge. He also was tried and convicted on a charge of disorderly conduct made by Norris. These convictions were both reversed by a reviewing court (we surmise upon technical grounds), and a charge made against him by Norris for resisting an officer seems to have been ignored by the grand jury.

Following these proceedings, the plaintiff began this suit for assault and battery, false imprisonment and .malicious prosecution, with the result that we have indicated.

We have carefully examined the evidence, both that to which we have referred and that to which we have not referred. We do not think there was any liability shown upon the part of the borough. Tomlin v. Hildreth, 65 N. J. L. 438; Valentine v. Englewood, 76 Id. 509. The nonsuit was right as to it. We do not think there was any liability upon the part of the mayor. MacLaughlin v. Lehigh Valley Railroad, 93 Id. 263. The nonsuit was right as to him.

We think that the verdict of the jury of six cents against Norris was not inadequate nor contrary to the evidence or the charge of the court. Assuming that there was a technical infringement of plaintiff’s rights upon the part of the officer, in view of the fact (which we think was a fact) that the plaintiff suffered no physical injury at all (his only injury being an injury to his ankle which he inflicted upon himself by trying to kick the officers and hitting the boardwalk), we cannot say that the verdict of six cents should be disturbed, more especially in view of the fact, as we find it, of the abusive character of the plaintiff’s conduct and language, which in our judgment justified his arrest and a proper complaint against him.

We find no error prejudicial to the plaintiff in the admission or rejection of evidence, and no error raised on this record respecting the direction of a verdict in favor of Norris on the first count in so far as it alleged a cause of action for malicious prosecution, nor do we find any prejudicial error in the refusal to direct a verdict for the plaintiff on the first count in so far as it alleged a cause of action for false imprisonment, nor do we find any prejudicial error in the refusal to charge requests.

The rule to show cause will be discharged.


text:
    STATE OF NEW JERSEY, EX REL. MAYER HARTMAN, RELATOR, v. FREDERICK BIGELOW, BUILDING SUPERINTENDENT OF THE CITY OF NEWARK, AND THE CITY OF NEWARK, RESPONDENTS.
    Argued October 5, 1026
    Decided February 8, 1927.
    Zoning — Garages Within Two Hundred Feet of a Church — Held, That Such a Restrictive Provision in an Ordinance is Sound —Held, Further, That Board of Adjustment, as the Law Stood at Time of Its Action, Could Not Vary the Terms of the Ordinance.
    On alternative writ of mandamus, &e.
    Before Gummeke, Chief Justice, and Justices Tkenchaeu and Mtntubn.
    Eor the relator, Koehler & Augenblick.

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

   Per Curiam.

The pleadings in this case present for consideration the legal questions arising out of the matters of fact now to he stated.

The relator desired to erect a building subdivided into twenty-seven individual garages on a lot owned by him in the city of Newark. He applied to the building superintendent of the city for a permit. The building for which the permit is asked is within two hundred feet of a church. The building superintendent refused the permit because the zoning ordinance of the city expressly provides that “under no circumstances shall a permit be issued” for the erection of a public or commercial garage if any part of the lot in question is situated within a radius of two hundred feet of a church. The alternative writ was framed by the relator upon the assumption (and no doubt properly) that the building in question was prohibited by the terms of the ordinance. But the pleadings disclose that the board of adjustment, on his appeal thereto, varied the terms of the ordinance and “granted” the permit, and, therefore, the relator contends that a writ of mandamus should now issue to require the building superintendent to grant such permit, and that otherwise he is being deprived of a constitutional right.

We think the relator’s position is unsound.

An ordinance of a city prohibiting the erection of a public or commercial garage on any lot situated within a radius of two hundred feet of a church is a reasonable regulation touching public health, safety and general welfare and is within the scope of the police power of the city, and is consequently valid. Schait v. Senior, 97 N. J. L. 390; Bauer v. Paterson, 132 Alt. Rep. 515.

The remaining question is whether the decision of the board of adjustment, on the appeal to it, is effectual to require the building superintendent to issue a permit for the erection of the building.

We think that it is not. The section of. the ordinance which prohibits the building in question was adopted by the board of commissioners of the city of Newark in March, 1924, as an amendment to the zoning ordinance. The action by the board of adjustment was taken February 4th, 1926, and we are therefore not concerned in this ease with the powers conferred on the board by the act of March 31st, 1926. Pamph. L., p. 526. Now, it is true that under section 3 of the zoning ordinance, and by the statute (chapter 146 of Pamph. L. 1924, as amended by chapter 58 of Pamph. L. 1925) the board of adjustment has power to authorize, upon appeal in specific eases, “such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.” But we think that neither the section of the ordinance in question nor the statute authorize the board of adjustment to compel the building superintendent to violate the specific instruction of the ordinance that “under no circumstances” shall "a permit be issued for the erection of a public or commercial garage within two hundred feet of a church. We think it is apparent that the granting of the permit for the erection of a garage within two hundred feet of a church would he contrary to the public interest as declared by the governing body of the city in the ordinance in question.

The writ must be denied. The respondents are entitled to judgment.


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    FIRST NATIONAL BANK OF BELLEVILLE, A CORPORATION, PLAINTIFF-APPELLEE, v. NATIONAL BOX AND LUMBER COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October 16, 1926
    Decided February 8, 1927.
    Corporations — -Insolvency and Threatened Receivership — An Arrangement Made by Which Trustees Were Appointed and Defendant Gave a Bond in the Interest of the Other Creditors —Action on Bond Resulted in a Directed Verdict For Plaintiff — Judgment Affirmed.
    On appeal from the Essex County Circuit Court.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Eor the appellant, Schneider & Schneider (Jacob Schneider, of counsel).
    Eor the respondent, Kessler & Kessler (Samuel I. Kessler, of counsel).
   Per Curiam.

This was an action on a bond and resulted in a directed verdict for the plaintiff.

The Troy Realty Company was engaged in a building operation, arid while financially embarrassed gave a mortgage for $11,000 to one Camarata; whereupon, five creditors, including the plaintiff, with claims aggregating $65,000, threatened bankruptcy and a receivership, claiming that the mortgage to Camarata was a subterfuge to give the defendant, National Box and Lumber Company, a preference for its claim.

Several conferences between the defendant and the objecting creditors culminated in an arrangement whereby three trustees were nominated to complete the operations of the realty company and liquidate its debts. As part of the arrangement a bond was given by the defendant to the plaintiff and the other creditors, the latter of whom assigned their interest to the plaintiff before this action was brought.

The bond contained several provisions as conditions precedent to any liability thereunder, as follows: (1) That creditors refrain from applying for a receivership, and that a creditors’ committee be appointed; (3) that $11,000 due on mortgage be paid to Camarata; (3) that creditors shall not be paid in full their claims at windup of Troy Realty Company’s affairs. The three above conditions were fulfilled.

The obligation or penalty of the bond was that the defendant pay a sufficient amount (not exceeding $5,000) “to make the percentage of loss, if any, sustained by the parties of the second part (the creditors) no greater than if the said party of the first part had not received the sum of $11,000 on the mortgage hereinabove mentioned, but had shared equally its proportionate loss together with the parties of the second part.”

The defendant contends that there was error in the court’s refusal to grant its motion for a directed verdict and in granting a like motion in plaintiff’s behalf.

To this we deem it to be a sufficient answer to say that this contention is unsound, and that under the undisputed facts the verdict was properly directed for the plaintiff.

We find no error in the admission of evidence.

The judgments below will be affirmed, with costs.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. EDMUND JONES, PLAINTIFF IN ERROR.
    Decided February 7, 1927.
    Crimes — Slot Machines — Case Radically Defective — Appeal Dismissed.
    On error to the Morris County Court of Quarter Sessions.
    Before Justices Kalisoh, Katzenbach and Lloyd.
    Eor the plaintiff in error, Samuel G. Meyerson.

    For the defendant in error,
   Per Curiam.

The plaintiff in error was convicted in the Morris County Quarter Sessions on an indictment which charged, in substance, that on the 10th day of February, 1924, and from thence hitherto, he willfully and unlawfully kept on his premises at the township of Mount Olive, in the county of Morris, certain slot machines, nsed for the purpose of playing for money, &e., contrary to the form of the statute, &c.

The case is radically imperfect. The state of the case shows that a writ of error was sued out and a return made thereto. Nothing further seems to have been done. No errors have been assigned.

The appeal is dismissed.


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    BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF ESSEX, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF NEW JERSEY ET AL., DEFENDANTS.
    Argued January 19, 1927
    Decided February 7, 1927.
    Public Utilities — Order of Commissioners Dismissing Prosecutor’s Petition to Require Defendant to Repair Tracks Affirmed.
    On certiorari.

    Before Justices Black and Campbell.
    Eor the prosecutor, Arthur T. Vanderbilt.

    Eor the defendant board of utility commissioners, Thomas Brown.

    Eor the defendant Public Service Railway Company, William A. Speer.

   Per Curiam.

A certiorari was allowed to review an order of the board of public utility commissioners dated September 30th, 1926, dismissing the prosecutor’s petition praying for an order of the board directing the Public Service Railway Company to repair a portion of its tracks and surrounding pavements, on Springfield avenue and Seven Bridges road to Morns avenue, in the township of Millburn, Essex county, New Jersey.

When the order in this case was made, the board of commissioners filed a written decision stating the reasons, which moved the board to make the order. Record, page 11. In that decision, the facts are quite fully and clearly stated. The statute under which the order is sought is cited, viz., Pamph. L. 1911, p. 374, § 17, and the reasons given for the making of the order dismissing the prosecutor’s petition. We think no further discussions of the points involved is required, other than what is contained in the board’s written decision. Eor the reasons therein stated, the order of the board, dated September 30th, 1926, dismissing the prosecutor’s petition, is affirmed, and the writ of certiorari is dismissed.


author: Minturn, J.

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    MARY J. MENNONNA, ADMINISTRATRIX OF PASQUALE PRESTO, DECEASED, v. PENNSYLVANIA RAILROAD COMPANY.
    Decided February 7, 1927.
    Jurisdiction — Similar Case Pending in Federal Court — Case Will Not be Dismissed Here, but Stayed Pending Determination of Action in That Court.
    On motion to dismiss.
    For the defendant, Theodore Strong.

    For the plaintiff, Salvatore Muti.

   The opinion of the court was delivered by

Minturn, J.

The motion is based upon the .fact that a similar action for the same cause between the same parties is pending in the United States Court for this district and has been partly tried therein. Owing to amendment of the pleadings upon the trial the latter court ordered a continuance of the cause, and this suit was thereafter instituted.

An inspection of the pleadings in the two courts shows them to be essentially the same action, although that fact is controverted by counsel for the plaintiff. The motion to dismiss is supported by the decision of this court in Dengler v. Hays, 63 N. J. L. 14, which is based upon the recognized common law rule derived from the civil law. “Nemo bis vexari, debet pro eadeam coma.” While that rule has the traditionary force of antiquity to support it, nevertheless, the practice seems to have varied in this jurisdiction. Fulton v. Golden, 25 N. J. Eq. 353; Kerr v. Willetts, 48 N. J. L. 78. It is, however, flatly opposed to what may be called the modern rule as evidenced by the authorities in other jurisdictions. 1 C. J. 87, 89, § 128, and cases cited; Kline v. Burke Construction Co., 24 A. L. R. 1077; Wilson v. Milliken, 42 L. R. A. 449.

In view of the uncertainty as to the established rule of procedure in this jurisdiction, the motion to dismiss will not be granted; but since the suit in the federal court has been partly tried, and the plaintiff has thereby elected to accept that court as his forum, the suit here pending will be stayed until such time as the action in the federal court shall have been legally determined.


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    THE TRUST COMPANY OF NEW JERSEY, PLAINTIFF, v. FRIEDA SCHYLOSKY, DEFENDANT.
    Submitted October 16, 1926
    Decided February 8, 1927.
    Negotiable Instruments — Attachment—Defendant Having Endorsed For Her Sons, Pleads That She was a Married Woman —Evidence Tended to Show That She was in Business With Her Sons and Profited by the Loan — Verdict Against Her Not Interfered With.
    On appeal from the Hudson County Circuit Court.
    Before G-ummere, Chief Justice, and Justices Teen-chard and Minturn.
    For the appellant, Gross & Gross (Benjamin Gross and Leo Blumberg, of counsel).
    For the respondent, Benjamin B. Gordon.

   Per Curiam.

Plaintiff sued out a writ of attachment in the Hudson County Circuit Court against defendant, who is a non-resident, to recover $1,361.45, together with interest, &c. Defendant thereupon entered her appearance and contested the action. The trial resulted in the jury’s finding a verdict in favor of the plaintiff in the sum of $1,384.68.

The suit was based upon a promissory note for $1,290 which was given in renewal of a note originally for $2,000. The note was made by Jack Sehloss to the order of himself and was endorsed by Jack Sehloss, his brother, George Sehloss, and defendant, Frieda Schylosky, their mother.

The defense was that defendant was a married woman. At the trial the plaintiff bank official who made this loan testified, in effect, that the defendant came to the bank with her son and stated to that officer, in effect, that she and her sons were operating a, bakery; that they needed the money represented by the note very badly to use in the business; that she was financially interested in the business in which they all had an equal interest, and that she would obtain the use of the loan.

The defendant denied being at the bank at all, denied the making of the statement to the bank official, and, indeed, denied the truth of every matter of fact contained in such statement. But, in our judgment, her own testimony, as well as that of her son, tended in many essential particulars to support the plaintiff’s case.

In this posture of the evidence the defendant’s counsel moved for a direction of a verdict in her favor on the ground that there was no evidence that defendant’s separate estate was benefited by the loan as required by section 5 of the Married Woman’s act (Comp. Stat., p. 3226) in order to render a married woman liable.

To this we think it a sufficient answer to say that, under all the evidence, a direction of a verdict was properly denied.

That being the only ground of appeal, the judgment is affirmed, with costs.


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    PUBLIC SERVICE RAILWAY COMPANY, PROSECUTOR, v. HACKENSACK IMPROVEMENT COMMISSION ET AL., DEFENDANTS.
    Argued January 18, 1927
    Decided February 7, 1927.
    Certiorari — Record Did Not Show Personal or Property Interests of Prosecutor, Who it is or How Affected by the Acts Complained of — Unless Prosecutors Have a Personal or Property Interest or Unless it Appears They Will Suffer Special Injury Certiorari Will Not Lie.
    On certiorari.

    Before Justices Black and Campbell.
    For the prosecutor, Frank Bergen and Wendell J. Wright.

    For the defendant Suburban Bus Line, Winne & Banta.

    For the Hackensack improvement commission, James Be Turck.

   Per Curiam.

The record in this case reveals the following: A copy of a writ of certiorari allowed November 10th, 1926; copy of the return including schedules: “Schedule A•” copy of an ordinance (Revision of 1922) of the Hackensack improvement commission, consisting of twenty-eight sections. “Schedule B;” a petition of the Suburban Bus Line, Incorporated, dated August 17th, 1926. “Schedule C;” extracts from the minutes of the Hackensack improvement commission dated September 7th, 1926. Reasons for- setting aside the motion or order passed by the commission granting a license or consent to operate motor buses from Hackensack to Little Ferry, New Jersey.

The certiorari is attacked on the ground that nowhere in the record or state of the case does the right of the prosecutor appear to have allowed a writ of certiorari. There is nothing to show any personal or property interests of the prosecutor affected by the action of the Hackensack improvement commission, in granting the permit or license to the Suburban Bus Line, Incorporated. There is nothing to show who or what the prosecutor, Public Service Railway Company, is or how it is affected. This is imperative under the case of Tallon v. Hoboken, 60 N. J. L. 212, in the Court of Errors and Appeals. There the rule is stated, thus, “certiorari will not lie in favor of private prosecutors to review the action of public officials, unless such prosecutors have a personal or property interest which will be specially and immediately affected by the action complained of” or “unless he shows that he will suffer a special injury.” The writ of certiorari will therefore be dismissed, with costs.


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    JOSEPH PETRAS v. PUBLIC SERVICE TRANSPORTATION COMPANY.
    Decided February 10, 1927.
    Negligence — Injury to Plaintiff While Crossing Street Caused by Defendant’s Bus — Plaintiff was Reading Newspaper as He Crossed Street — Held, Contributory Negligence.
    On rule to show cause, Essex Circuit.
    Before Gummeee, Chief Justice, and Justices Teenchabd and Mintukn.
    For the rule, Joseph Coult and Henry II. Fryling.

      Contra, Lum, Tamblyn <£ Colyer.

   Per Curiam.

The plaintiff, while in the act of crossing Roseville avenue, in the city of Newark, about seven o’clock in the morning of May 1st, 1925, was struck by defendant’s automobile. He had proceeded some twelve feet and was near the middle of the street at the time when he was struck. He saw the bus, he says, when it was about one hundred and fifty to two hundred feet away, but, apparently, paid no more attention.to it. Instead of observing the highway, and its incidental dangers and hazards, he was reading a newspaper as he walked, and so proceeding walked in front of the bus without observing its proximity or taking heed of the traffic conditions which under such conditions endangered his life.

Under those circumstances he is clearly guilty of contributory negligence, which bars recovery, regardless of the inquiry whether the driver of the automobile himself was negligent in not observing the plaintiff. Brady v. Consolidated Traction Co., 63 N. J. L. 25; Newark Passenger Railway Co. v. Block, 55 Id. 605.

The rule will be made absolute.


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    TONY COLELLO ET AL. v. JOHN STABILE ET AL.
    Decided February 10, 1927.
    Negligence — Motor Vehicle Accident — Upon Verdict For Plaintiff Defendants Obtained Rule to Show Cause and Also Reserved Exceptions — Both Were Heard and Determined by Circuit Court — Appeal to Reargue Exceptions Will Not Lie.
    On appeal from the Bergen Circuit.
    Before G-ummebb, Chief Justice, and Justices Tkenchabd and Mintukn.
    For the defendants-appellants, Filomeno Sansone.

    For the plaintiffs-respondents, Armstrong & Mullen.

   Per Curiam.

It is unnecessary to review the legal history of this case more than to observe that it was a suit for damages, resulting from an automobile accident in which the plaintiffs obtained a verdict, after which the defendants obtained a rule to show cause, reserving exceptions. The rule was duly argued, including the exceptions reserved, and the learned Circuit Court determined the questions specifically raised by the rule, as well as the legal merit of the exceptions reserved against the defendants. It is now proposed by this appeal to re-argue the exceptions reserved, and so heard and determined by the Circuit Court.

The rule is settled that in such a situation the appealing party is barred from again presenting his exceptions for further discussion upon an appeal. The policy of the law is to so mould its procedure as to put an end to unnecessary and protracted litigation, to the end that the same problem, like a running sore, may be radically excised by one amputation. Interest respublica ut sit finis litvm. Famgossa v. Introcasso, 98 N. J. L. 583; 121 Atl. Rep. 773.

The appeal for that reason will be dismissed.


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    IN THE MATTER OF HENRY H. WITTSTEIN, ATTORNEY-AT-LAW.
    Argued February 9, 1927
    Decided February 10, 1927.
    Attorney-at-Law — Retention of Client’s Money — Majority of Bar Examiners in Report Recommend No Disciplinary Action— Minority Recommend Some Penalty — -Held, That a Penalty Should be Imposed — Suspension From Practice of the Law Until September First, 1927.
    On motion to confirm majority report, and cross-motion to confirm minority report of the board of bar examiners in a disciplinary matter.

      Before Justices Parker, Black and Campbell.
    Por the minority report, Theodore Baches.

    Por the majority report, Henry H. 'Wittstein, pro se.

   Per Curiam.

This attorney was charged with unlawful retention of moneys collected for a client on judgment and execution. The facts as stated in the minority report are concurred in by the examiners submitting the majority report. The disagreement is as to whether no disciplinary action should be taken by the court, as recommended by the majority, or whether some penalty be imposed, as urged by the examiner in the minority.

We have looked with care into the circumstances, and without repeating the statement of facts succinctly set forth by Examiner Joline, we concur in his view that some penalty should be imposed. There was without doubt an unauthorized and indefensible retention of a client’s money to the extent of several hundred dollars, and the fact that the fees to be deducted were not settled as between attorney and client is no excuse for retaining the whole fund, as was, in fact, done until a criminal complaint had been lodged and arrest had been made or threatened.

A rule may be entered, suspending the attorney from practice of the law in any form until September 1st. 1927.


text:
    AIME GREEN ET UX., PLAINTIFFS, v. COMFORT BUS LINE (AMENDED), DEFENDANT.
    Decided February 10, 1927.
    Negligence — Injury to Motor Bus Passenger While Alighting From Bus — Negligence of Defendant Shown — Contributory Negligence Not Shown — Verdict Not Against Weight of Evidence — Verdict Not Excessive.
    On rule to show cause, Passaic Circuit.
    Before Gummere, Chief Justice, and Justices Trexohard and Mixturn.
    Eor the rule, Frank G. Turner.

      Contra, Feder & Hinder.

   Per Curiam.

This suit was instituted to recover compensation for personal injuries sustained by the wife while she was in the act of alighting from a bus of the defendant company, in the borough of Wallington, when she alleged that the bus was stopped, but as she was in the act of alighting suddenly started forward, throwing her to the ground, and indicting the injuries alleged. The verdict in her favor was for $3,000 and that in favor of her husband for $500.

It is contended that the court should have directed a non-suit on the ground that there was no negligence shown on the part of the defendant. Manifestly, in view of the facts stated, there is nothing of substance in this.

The next point is that the court should have directed a verdict in favor of the defendant on the ground that the woman was guilty of contributory negligence. This is equally untenable, since the question of negligence and contributory negligence was entirely one of fact for the jury.

Nor is there any substance in the argument that the verdicts are against the weight of the evidence. Our review of the testimony leads us to the opposite view. Nor do we think the verdicts are excessive. The woman had a dislocated left ankle and a severely contused right ankle and leg about up to the knee; the injury to her ankle produced varicose veins, while the dislocation of the ankle impaired the ligaments on the outer side thereof; they are now weakened, and as a result, if she does not have some kind of artificial support she is likely to have more trouble with the ankle. She was in bed about five weeks, and she is not able to walk with any sense of security. Under these circumstances it does not seem that the verdicts are excessive within the legal meaning of that term as defined by the cases.

The rule will be discharged.


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    ANNA UKNOWICH, ADMINISTRATRIX AD PROSEQUENDUM, ETC., v. TILLIE SZOBO AND MAX SZOBO.
    Decided February 10, 1927.
    Negligence — Death of Thirteen-Year-Old Boy From Automobile Accident — Error in Court’s Charge Regarding Evidence Relating to Contributory Negligence — Plaintiff’s Rule Made Absolute.
    On rule to show cause, Middlesex Circuit.
    Before Gummere, Chief Justice, and Justices Trexchard and Minturn.
    For the rule, Collins & Corbin.

    Contra, Thomas Brown.

   Per Curiam.

In a cause of action involving a.n automobile accident, resulting in the death of a thirteen-year-old boy and terminating in a verdict for the defendant, the learned trial court charged the jury as • follows:

“The plaintiff can only recover by proving all the essential elements of his case, by a preponderance of the evidence, and proving that he did not know of the danger of the approaching car * * * and that ho was entirely free from blame, or that his actions did not contribute in any way to the accident which resulted in his injury.”

We think this application of the rule of contributory negligence was error, since it placed upon the plaintiff the burden of proving freedom therefrom, while the rule is settled that contributory negligence, where it does not manifestly or concededly appear from the plaintiff's case, is an affirmative defense, and must be supported by the weight of the evidence, as any other defense which the law imposes upon a defendant, in order to acquit him of blame, particularly where the person suffering the damage is dead and unable to respond in his own behalf. Durant v. Palmer, 29 N. J. L. 544; Danskin v. Pennsylvania Railroad, 79 Id. 526.

This conclusion requires that the rule to show cause be made absolute.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JACOB BRAUNSTEIN, PLAINTIFF IN ERROR.
    Decided February 10, 1927.
    Crimes — Selling and Transporting Liquor — Plea of Guilty and Sentence of Fine and Imprisonment — Imprisonment Suspended Upon Certain Condition — Conditions Afterward Broken — Court Then Imposed New Imprisonment Sentence Running From That Day — Held, Sentence Might be Suspended, and Afterward Made Effective, but That a New Sentence Cannot be Imposed.
    On error to the Cumberland Sessions.

      Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Por the plaintiff in error, Rex A. Donnelly.

    'Por the state, Thomas G. Fuso.

   Per Curiam.

The grand jury presented an indictment against Braunstein, containing two counts, one charging him with selling liquor for beverage purposes and the other charging him with the transportation of liquor for beverage purposes. He pleaded guilty to the indictment, and the court thereupon sentenced him to pay a fine of $200 and to be imprisoned in the county jail for a period of six months. The court suspended the execution of the sentence, so far as it related to imprisonment, as the result of a promise on the part of the defendant, to move out of the county-and remain out. He paid the $200 fine, but he did not resist the temptation to return quite frequently to visit his family. When this infraction of the order was known, defendant was again arrested on a bench warrant, and when he was brought before the court he was sentenced to six months in the county jail from that date. The writ of error is brought to review the legality of this second sentence.

We make no doubt of the power of the court to suspend sentence and afterward to direct that the suspension shall cease and the original sentence become effective. The suspension, however, must be of the entire sentence, and the court cannot suspend a part of the sentence and enforce the rest, and after the expiration of the time limit recall the sentence for the purpose of reviving it by imposing practically a new sentence for the same offense. The legality of that procedure was considered and determined adversely in the case of State v. Clifford, 84 N. J. L. 595.

This conclusion leads to a reversal of the later sentence.


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    BLANCHE DUGAN, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. PUBLIC SERVICE TRANSPORTATION COMPANY, DEFENDANT.
    Decided February 10, 1927.
    Negligence — Death of Pedestrian Caused by Being Struck by Motor Bus — Pedestrian was Not Using Street Crossing, but Motor Driver Saw Him, Blew His Horn, but Made No Further Effort to Avoid Collision — Held, Jury was Justified in Finding No Contributory Negligence — Verdict of $14,500 Not Excessive.
    On rule to show cause, Essex Circuit.
    Before G-ummbrb, Chief Justice, and Justices Trench ard and Minturn.
    For the rule, Joseph Coult.

      Contra, John W. McGeehan, Jr.

   Per Curiam.

The plaintiff sued as administratrix ad prosequendum of her deceased husband, who died as a result of being struck by a jitney bus owned and operated by the defendant company. The trial resulted in a verdict in favor of the plaintiff for $14,500.

While the decedent, in the daytime, was crossing from the east side of South Essex avenue, in the city of Orange, the automobile bus of the defendant, running in a southerly direction, struck the deceased while he .was on the street, near the middle of the block.

It is argued that there was no proof of any negligence on the part of the bus driver. We think that there was sufficient to go to the jury. The driver saw the decedent while he was crossing the street, and he should have used reasonable care to avoid injuring .him, either by slowing down or turning his bus to the left. He did neither of these things, but kept on his course, blowing his whistle as though his duty was satisfied with that act.

It is contended that the decedent was guilty of contributory negligence. He, undoubtedly, had a right to cross the street, even though he saw the bus approaching, provided he used due care and reasonable judgment in his effort to cross, in view of all. the incidental dangers of street travel confronting him. He was justified in presuming that the driver, after having seen him, would so handle his car as to avoid running him down. This made it a question for the jury to say whether the driver of the bus was negligent, and also whether the decedent was negligent. The jury found these facts in favor of the plaintiff, and it cannot be said that their finding was against the weight of the evidence.

The final contention is that the court erroneously refused to charge the jury the following request submitted by defendant: “A pedestrian attempting to cross a street at a place other than a crosswalk must exercise greater care for his own safety than one attempting to cross on a crosswalk, as a pedestrian crossing at a place other than a crosswalk has no greater preference than any other authorized user of the street.” The request was too general and comprehensive, since the question in every case is whether or not the foot passenger used care commensurate with the danger of his environment, whether at a crossing or in the middle of the block, for negligence in any circumstances is always a relative term, where the facts are capable of discussion and different inferences may be drawn therefrom. Napodensky v. West Jersey Railway Co., 85 N. J. L. 336.

This we think the learned trial court substantially charged the jury, was the obligation resting upon the decedent.

It is suggested, but not argued, that the deceased was earning between $3,000 and $3,500 a year. He had an expectation of life of eighteen to nineteen years, which, measured in financial terms, was well within the verdict.

The rule will be discharged.


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    ADELE ROGOZA, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. WILLIAM MAHONEY, DEFENDANT. ALEXANDER ZBOROWSKI, PLAINTIFF, v. WILLIAM MAHONEY, DEFENDANT.
    Decided February 10, 1927.
    Negligence — Death Resulting From Motor Vehicle Collision— Plaintiff’s Intestate was Repairing Car on Side of Road When Car was Hit by Defendant's Car — Defendant Claimed His Car Had Been Side-swiped by Another Car Also Going in Same Direction, Forcing Him Into Collision — Held, That There Were Ample Facts to go to Jury — Rule Discharged.
    On rule to show canse, Middlesex Circuit.
    Before Gummere, Chiee Justice, and Justices Trenchakd and Minturn.
    For the rule, Martin P. O’Connor.

    Contra, Jerome Alper.

   Per Curiam.

These two cases, the result of an automobile collision, were tried together at the Middlesex Circuit. Adele Bogoza, as administratrix ad prosequendum of her deceased husband, recovered a verdict of $8,000 for his death. Alexander Zborowski, the other plaintiff, received a verdict of $500 for personal injuries and property damage. The case presented an acute conflict of testimony.

A party of eight young men were returning upon a Sunday afternoon by automobile, in a long line of traffic, from a fishing trip at Barnegat bay. While driving on Burnett street, a highway leading to New Brunswick, the car was stopped on the right side of the road because of tire trouble. At this place the road consisted of macadam for a width of eighteen feet, on either side of which was a dirt shoulder. The testimony was conflicting as to whether or not the car was entirely on the dirt shoulder and off the improved portion of the road while repairs were being made to the tire. While the plaintiff’s car was thus situated, the defendant’s ear, also proceeding towards New Brunswick, collided with the left rear part of plaintiff’s car, pushing it ahead ten or twelve feet and overturning it, and striking the deceased in- the impact, from which injuries he subsequently died in the hospital.

The defendant’s ease was that his five-passenger Ford touring car had been purchased a month previous to the accident; that experience as a driver consisted of instructions during eleven days prior to obtaining a license, which was granted ten days before the accident; that in his car were six members of his family, he and his wife and her thirteen-year-old brother occupying the front seat; that he was proceeding on the right side of the road at a speed of fifteen miles an hour; that he saw the plaintiff’s car when over a hundred feet away with its left rear part protruding over about four feet on the macadam; that when within forty or fifty feet of it he swerved to the left of the road in order to give the plaintiff’s car a wide birth; that in so turning he sounded no signal; that by so proceeding he would have had a four-foot clearance; that when about four feet of plaintiff’s car he was sideswiped and pushed into plaintiff’s Car by a third automobile also- going in the direction of New Brunswick.

The reasons for the rule, argued by the defendant, are that the plaintiff failed to establish his case by a preponderance of evidence, and that the verdict is contrary to the weight of the evidence.

Our examination of the testimony leads us to conclude that the diversity of fact presented a jury question. The evidence was ample to justify the jury in finding that the proximate cause of the accident was the negligence of the defendant in swerving beyond the middle of the road without giving a signal to avoid injury to those who were clearly within his view. The weight of the evidence is determinable not alone by the number-of witnesses testifying, but by the credence a jury, in view of all the circumstances, attributes to their testimony.

Bowell v. Public Service Corp., 77 N. J. L. 231, determines all the legal questions raised adversely to the defendant’s claim in a case parallel in its essentials.

The rule will be discharged.


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    ANTHONY BALSAVAGE, PLAINTIFF, v. THE PENNSYLVANIA RAILROAD COMPANY, DEFENDANT.
    Decided February 10, 1927.

    Negligence — Injury to Passenger of Railway Train — Plaintiff Brought Suit in Hudson County For Injuries Sustained in Pennsylvania Where He Lives — Alleged Expulsion From Train by Drunken Passengers — Found Injured on a Bridge— Different Stories Told by Him Regarding How He Came to be There — Verdict of $15,000 Held to be Against Weight of Evidence.
    On rule to show cause, Hudson Circuit.
    Before Gummere, Chief Justice, and Justices Trenchahd and Minttjen.
    For the rule, Wall, Haight, Carey & Hartpence.

      Contra, Hershenstein & Finnerty.

   Per Curiam.

The suit was brought by the plaintiff, who resides near Shamokin, Pennsylvania, against the defendant company, to recover compensation for injuries which he claims to have received while traveling from Shamokin to Paxinus, where he resides. Instead of bringing his action in the Pennsyl-

vania courts, he instituted suit in the Supreme Court, Hudson Circuit, in this state, and delayed its institution until the statutory time limitation had nearly expired.

The following were the essential facts presented by the plaintiff’s case. The plaintiff entered a smoking ear on the train of the defendant company, and was followed, as he and his brother testified, by three men, apparently intoxicated. The brother was left standing upon the platform. One of the three men sat down on the seat in front of the plaintiff, and the other two in the seat immediately behind him; one of the men asked the plaintiff to give him some money, which plaintiff refused to do. After some conversation, this man requested the plaintiff to go outside of the car, and upon the plaintiff’s refusal to do so they seized him, pulled him out of the seat and dragged him to the door and then out upon the platform. The plaintiff says that when they seized him the conductor was in the car, collecting fares, and that he called to the conductor for help, but the latter did nothing except remark, “All right, mind your own business, I will be there;” and the conductor proceeded to collect the tickets, but did not interfere in any way. He further testified that the men, after they got him out on the platform, again asked him for money; that he refused, and that they then opened the platform door, and threw him out of the doorway as the car was crossing over the bridge near Paxinus. The conductor denied this story.

The proofs showed that a man named Miller, who lived in the immediate neighborhood of the bridge, heard the plaintiff’s cries for help; that he went out and found the plaintiff lying on the tracks by the end of the bridge; that he and some parties from the house of a Mrs. Richey, who lived in the neighborhood, picked up the plaintiff and carried him to the latter’s home, from which place he was taken to the hospital. Mrs. Richey says that while the plaintiff was in her house she asked him how he happened to get on the track, and he stated, “I came down to the weigh scales car, and I run and fell off the train. If I had been higher up on the steps, the bridge wouldn’t have hit me.” Mrs. Richey’s daughter, who was also present, said the plaintiff told them that he came down to the weigh scales on a street car; that he got there too late for the train, but he jumped on it, and was too far down on the step, and was knocked off at the bridge. The son, Boyd Richey, who assisted the plaintiff to the mother’s home, testified that the plaintiff said he was hurt by being knocked off at the bridge. A number of witnesses called from the hospital testified that the plaintiff’s story of the accident was practically that which the Richey family narrated. The only corroboration of the plaintiff’s story was that of a witness named Zarmika. Upon this state of the proofs the plaintiff obtained a verdict for $15,000, and this rule among other grounds presents the contention that the verdict is against the weight of the evidence. It must suffice to state that we think it is.

The rule will be made absolute.


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    THE STATE OF NEW JERSEY, EX REL. A. G. CONSTRUCTION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Argued October 6, 1926
    Decided February 8, 1927.
    Zoning — Chain of Public Garages in Restricted Area — Nature of Garages Considered at Length and Held That an Ordinance Restricting Their Erection is Reasonably Required For the Protection of the Health, Safety and General Welfare of the Public.
    On the alternative writ of mandamus, &c.
    Before Gummere, Chief Justice, and Justices TkblMcijtakd and Mintuen.

      Eor the relator, Isadore H. Colton,

    Eor the respondents, Walter C. Ellis.

   Per Curiam.

This case brings into court certain features of a zoning ordinance passed by the city of East Orange, in accordance with the various enabling acts of this state.

The matters with which we are herein concerned arise from the pleadings supplemented by a “stipulation of facts.”

The relator has filed with the building inspector of the city of East Orange certain plans and specifications for the erection of a large garage to be used by the general public as a public garage.

The permit was refused because of the fact that under the zoning ordinance, hereinafter referred to, and which was in effect at the time the relator bought its property, the erection of a public garage was prohibited in that district.

The relator’s property' is located on the westerly side of North Munn avenue, between Park avenue and William street, in a “medium volume residence district.”

At the time of the adoption of the amended ordinance, hereinafter referred to, which was on July 2d, 1921, the acts of the legislature of this state, authorizing zoning ordinances, were chapter 146, Pamph. L. 1918; chapter 274, Pamph. L. 1920; chapter 240, Pamph. L. 1920; chapter 82, Pamph. L. 1921. Since then chapter 146, Pamph. L. 1924, has been added.

The ordinance in question, after reciting that “for purposes of regulating and restricting the location of trades and industries, and the location of buildings designed for special uses, and also for the purpose of regulating and restricting the volume, height and area of buildings hereafter erected,” provides for the division of the city into six classes of districts— (1) small volume residence districts; (2) medium volume residence districts; (3) large volume residence districts; (4) medium volume business districts; (5) large volume business districts, and (6) large volume industrial districts; such districts being therein described and defined.

It appears from an examination of the ordinance that the character of the business in question (a public garage) is prohibited in the mediunm volume residence district in which relator’s lands are situated, and, as we have stated, for that reason the building inspector refused the permit, and, hence, these proceedings.

The precise question involved then is whether the ordinance limiting the districts in which public garages may be erected is a proper exercise of the police power.

The case of Schait v. Senior, 97 N. J. L. 390, as well as Johnston et al. v. Hague et al., 2 N. J. Mis. R. 77, recognize the right of the municipality to prohibit the erection of public garages in certain districts. The ordinances involved in the above cases prohibited public garages within a certain distance of certain public buildings, whereas the ordinance in question prohibits the erection of public garages within certain districts, but the principle seems to be the same.

The court recognizes the hazards connected with the business of public garages and the sale of combustibles at gasoline stations, and further recognizes the right of the governing body of each municipality to regulate this class of construction and business, and to prohibit it where necessar}'. The presumption is in favor of the fairness and propriety of the action of the governing body.

In the case of Hench v. City of East Orange, 2 N. J. Mis. R. 510, the present ordinance was passed upon by this court upon an application of the relator to erect two rows of garages, all under two roofs, and housing sixteen individual garages. The governing body of the city in that case, after investigation, had determined that the district was not a proper place for a public garage because of local conditions, and this court upheld the right of the city to refuse the permit. The court said: “It is contended on the part of the relator that, under the doctrine contained in some of our decisions, the zoning ordinance is invalid. We are not, however, upon this application, concerned with the question of the validity of the entire ordinance. The question presented substantially is reduced to the inquiry whether the ordinance is invalid so far as it prohibits the relator from erecting on this property sixteen separate garages, to be erected under two roofs.” The court further said: “The statute under which the zoning ordinance was passed authorizes the municipalities to pass such ordinances as may be reasonably required for the protection of the health, safety or general welfare of the public. The presumption is in favor of the conclusion that the purpose of the governing body was that indicated in the statute, and, so far as the ordinance affects the rights of the owner of a given piece of property, the burden rests upon him to show that the ordinance is not justified on any such theory, so far as his property is concerned. If it should appear from the ordinance, plus the admitted facts in a given case, that the ordinance has no such effect, its passage cannot be justified under the statute.” The court cited the ease of Ninth Street Improvement Co. v. Ocean City, 90 N. J. L. 107; affirmed, 91 Id. 703, and pointed out that in that case the Supreme Court says: “In our judgment, the erection and management of a garage, with all its incidental dangers and inconvenience to adjoining property and public travel, are manifestly matters properly cognizable by the-municipal governing body, as a subject for regulation in the public interest, under the police power expressly conferred, as, in this instance, or reasonably implied ex necessitate in aid of the general welfare against dangers recognized and obvious to persons and property;”

In the recent case of Long v. Scott, 4 N. J. Mis. R. 586, the Supreme Court in passing on a case involving this very ordinance refused a writ to relator for a garage permit, holding that the reasonableness of the ordinance is presumed and the burden is on the relator to show that it is not reasonable. The lands of the relator in the last-mentioned case are said to be within a few hundred feet of the lands involved in the present proceeding.

We have examined the record in the instant case with care and are of the opinion that the relator has not sustained the burden of making it appear that the provisions of the ordinance in question, or the exercise of the power in question, was unreasonable. In other words, it does not appear to ns “from the ordinance, pins the admitted facts of the case” (to nse the language of the Heneh case), that the provision of the ordinance was not reasonably required for the protection of the health, safety or general welfare of the public.

The writ will be denied.


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    TAYLOR-WHITE EXTRACTING COMPANY, PROSECUTOR, v. THE STATE HIGHWAY COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Argued January 18, 1927
    Decided February 7, 1927.
    Eminent Domain — State Highway Purposes — Certiorari to Review Proceedings of Commissioners — Two Reasons Alleged in Prosecutor’s Brief: First, That There was Question Regarding Sufficiency of Petition and Authorizing Resolution; Second, That There was Question Whether Property was to be Used For Road Purposes — Held, That There was No Justification For First Reason and That the Facts Seemed to Establish That the Property was Clearly to be Used For Road Purposes.
    On certiorari.

    Before Justices Blagic and Campbell.
    For the prosecutor, 8tarr, Summerill & Lloyd.

    For the defendant, Edward Ij. Eatzenbach, attorney-general, and Fred W. Le Vbe, assistant attorney-general.
   Per Curiam.

A certiorari was allowed by Mr. Justice Katzenbach on June 16th, 1926, to review an order made by him on the petition of the state highway commission of the State of New Jersey, dated March 29th, 1926, appointing commissioners to examine and appraise lands required to be taken by the state for a public use in the construction of the state highway in the city of Camden. The writ was allowed upon condition that it shall not operate as a stay of the proceedings under review.

The prosecutor writes down eleven reasons for setting aside the order.

These are argued under two heads in the prosecutor’s brief—

First. Whether the form and contents of the petition and the resolution authorizing the action are sufficient to justify the appointment of the commissioners.

Second. There is no authority under the law to justify the commission in taking lands of the prosecutor for any other purpose, than for the construction of a highway. This latter goes to the purpose of the condemnation and the ultimate use and disposition of the property sought to be condemned.

As to the first point: All jurisdictional facts are alleged and shown in the petition. It recites that the land is to be taken for the purposes recited therein, to wit, the construction, maintenance and repair of a state highway. The petition complies with the statute; the Eminent Domain act; 2 Comp. Stat. of N. J., p. 2183, § 2; Pamph. L. 1900, p. 79. This is sufficient, Philadelphia, &c., Ferry Co. v. Inter-City Link Railroad Co., 73 N. J. L. 96; affirmed, 74 Id. 594.

The petition and proofs presented to the justice are not required to make recitals of matters which the Eminent Domain act does not require to be set forth, such recitals are not essential. Id.

So, the resolution authorizing condemnation is in accordance with section 1 of the above act. 2 Comp. Stat. of N. J., p. 2182, § 1. The commission was appointed by an order of the Supreme Court justice on March 29th, 1926; the certiorari was allowed on June 16th, 1926, rather late to raise questions as to form or substance of the petition and resolution. There is no legal merit in this point. The prosecutor can take nothing under this head.

The petition of the state highway commission, to which is attached a map or diagram, describes the land to be taken as parcels 50A and 50B; also, described by metes and bounds containing eighty-nine thousand five hundred and fifty-one square feet of land. This is the same land as is designated by the numbers 50, 52, 55, 56, 57 and 58. Testimony taken under the rule of the Supreme Court which by consent is to be considered under the writ of certiorari. A proposed agreement was put in evidence and designated as entrance road section 2, parcels Nos. 50, 52, 55, 56, 57 and 58, Ex. P 2, between the Taylor-White Extracting Company and the State of New Jersey. This agreement provides that the Taylor-White Extracting Company will convey parcel No. 52 to the state highway commission. Parcel No. 55 to the state board of commerce and navigation. Parcels Nos. 50 and 56 to the South Jersey Gas and Electric and Traction Company. Parcels Nos. 57 and 58 to the S. H. French Company.

The agreement is conditioned upon the final acceptance of the proposed location of the highway after final approval of the plans by the United States war department.

The point made by the prosecutor is that parcels 50, 56, 5? and 58 are outside the graded limits of the highway, the graded limits of the highway being within the bounds of parcel 52, but the state highway engineer has determined that such parcels are necessary for the support of the new road. This is within the discretion of the commission.

The construction plans for such new road show that the sides of the road are to be sloped to or beyond the limits of parcels Nos. 50, 56, 57 and 58.

The powers of the state highway commission are found in Pamph. L. 1923, p. 521 (e), to construct, build, improve, widen straighten, &c., “and for any use incident thereto or connected therewith, to acquire any lands,” &c., “by gift, devise, purchase or by condemnation,” &e. These powers have been upheld by this court in Cox v. State Highway Commission. 4 N. J. Mis. R. 510. The act should be liberally construed to effect the purpose of the act for building of state highways.

We find no legal reason for disturbing these proceedings. The land is being taken for the public benefit and taken in accordance with the statute. The machinery of the law is adequate to provide just compensation for the value of the land taken and damages to the remainder, if any. The general scheme has been agreed upon, and to use the words of the brief of the attorney-general: “No one citizen should be permitted to upset these proceedings for any technical reason which does not interfere with his substantial rights.”

The writ of certiorari is dismissed, with costs.


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    SARAH W. HULSE, RELATOR, v. THE POLICEMEN’S PENSION COMMISSION OF THE CITY OF LONG BRANCH, RESPONDENT.
    Decided February 7, 1927.
    Municipalities — Policemen’s Pensions — Relator’s Husband Had Been Appointed For a Fixed Time, but Had Held Over Until He Had Become Too III to Work as the Result of Exposure in the Performance of His Duties — There Had Not Been Paid Into the Pension Fund the Per Centum Required by Law— Held, That He was a Policeman Within the Meaning of the Act, and the Failure to Pay in the Statutory Requirement Ought Not Defeat His Widow’s Rights.
    On rule for mandamus.

    Before Justices Black and Campbell.
    Eor the rule, William L. Edwards.

      Contra, Charles F. Sexton.

   Per Curiam.

John Lloyd Hulse was appointed a “chanceman” on the police force of Long Branch on June 4th, 1924; his certificate of appointment reading: “The commissioners of the city of Long Branch hath appointed and doth hereby appoint John L. Hulse a chanceman on the regular police force of the city of Long Branch for such time as his services may be required and not later than October 1st, 1924 * *

Hulse was assigned to patrol duty and eontinned in service, without interruption or reappointment until December 31st, 1925, when he was taken ill. He died March 13th, 1926, of tuberculosis resulting from grippe brought on by cold and exposure during the performance of his duties.

Prom January, 1926, be was paid one-half salary; the remaining one-half being paid into the pension fund. He was paid in full for six days in March, 1926, and then dropped from the payroll. This was seven days before his death.

Relator, his widow, having applied to respondent for a pension under chapter 160, Pamph. L. 1920, p. 324, and her application having been denied, obtained the present rule to show cause why a peremptory mandamus should not issue compelling the allowance and payment of a pension to her under the aforesaid act.

The first objection of respondent is that Hulse was not a member of the police department so as to entitle him to the benefits of the Pension act, supra. But we think he was a member of the police department.

An ordinance of the city, passed January 4th, 1921, entitled “An ordinance providing for, relating to, and regulating the police department of the city of Long Branch” by section 1, provides: “That hereafter there shall be in the city of Long Branch a police department which shall consist of the chief of police, two lieutenants of police, one sergeant of police, regular patrolman and such number of chancemen and special officers as the board of commissioners shall deem advisable to appoint and for which appointments the board by appropriation in any fiscal year may have provided.”

There is also an ordinance, passed May 6th, 1924, being an amendment of the ordinance of January 4th, 1921, which provides by section 1 as follows:

“That hereafter there shall be in the city of Long Branch a police department which shall consist of the chief of police, one lieutenant of police, assigned to detective bureau; one lieutenant of police, assigned to house duty; one sergeant of police, two acting sergeants of police, without increase of salary, to have such power as shall be defined by the commissioner of public safety and the chief of police, regular patrolman, and such number of chancemen and special officers as the board of commissioners shall deem advisable to appoint, and for which appointments the board of appropriation in any fiscal year may have provided.” This amendment (as does the original ordinance) fixes the salary of the chance-men, but goes further and provides for an increased salary after any such chancemen shall have served five years.

Respondent urges that as Hulse never became a patrolman he was not a member of the police force and relator contends that be became such by holding over after the expiration of his appointment. But neither contention, we think, is sound.

The first, because the ordinances before referred to clearly show chancemen to be members of the police force, and, the second, because, under similar conditions, it was held to the contrary in Freas v. Cape May, 77 N. J. L. 164.

The right of appointment of such men is provided for by article 15, section 3, chapter 152, Pamph. L. 1917, but this in nowise affects their status as members of the police department except that it permits of their discharge and removal without having charges preferred against them and a trial or hearing thereon. In other words, they are not protected in their tenure of office as are the permanently appointed members.

The final ground urged by respondent is that Hulse did not pay into the pension fund any portion of his salary as provided by sections 3 and 4 of the Pension act of 1920. supra.

Section 3 provides: “The widow * * * of any member of the police * * * department, having paid into the fund the full amount of his annual assessment or contribution, who shall have lost his life in the performance of his duties or who shall die from causes other than injuries received in the performance of his duties shall receive a pension * * *.”

Section 4 provides that a fund shall be created for the purpose of paying such pensions in the following manner: “There shall be deducted from every payment of salary to such member of the police and fire departments * * * two per centum of the amount thereof * * *.” And this section further requires the municipality to raise by taxation and pay into the fund yearly “an amount equal to four per centum of the total salaries paid to members” of such departments.

It is true that nothing was deducted from Hulse’s salary, but this should not defeat the right of the relator.

All of these questions seem to be clearly and definitely settled in favor of relator by Sheehan v. Lee, 96 N. J. L. 341; Van Horn v. Donnelly, Id. 345; affirmed, 98 Id. 909.

Delator is entitled to a peremptory writ of mandamus, and such writ may accordingly be issued.


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    SAMUEL A. MATEER, RELATOR, v. NEW JERSEY TELEPHONE COMPANY, RESPONDENT.
    Argued October 6, 1926
    Decided February 17, 1927.
    Corporations — Examinations of Books- — Status of Relator — Bad Faith on Both Sides Alleged — The Corporation's Books Having Been Examined and Relator's Status Established, Peremptory Writ Will Issue.
    On rule to show cause why writ of mandamus should not issue.
    Before Justices Parker, Black and Campbell.

      Eor the relator, Gross & Gross.

    Eor the respondent, George K. Lwrge.

   Per Curiam.

This is an application by a party, claiming to be a stockholder of record in the respondent corporation, for a writ of mandamus empowering him to examine its books. The application was vigorously resisted, charges of bad faith on both sides being made, and it was even denied that relator had the required status as a stockholder, although he claimed to own a majority of the shares.

In the form which the case took as originally argued and submitted, we considered it as not ripe for decision because the only evidence of the status of complainant as a stockholder was that appearing in affidavits and depositions. The relator, to have a proper status, must appear as a stockholder of record on the books of the company. Matter of Reiss, 30 N. Y. Misc. Rep. 234; 14 C. J. 859; Cook Corp. (6th ed.), § 516. The books of the corporation had not been put in evidence, and there was nothing even purporting to be a copy of them. In this situation the court took the short course of directing the production of the books before a commissioner and an examination thereof and report thereon by him. This has been done, and it appears without fear of contradiction that relator has the required status.

That was the only real difficulty encountered in the case. Granted the status, we are entirely clear that relator has shown sufficient good faith to be entitled to examine the books, and to have appropriate assistance in so doing. As in Feick v. Hill Bread Co., 91 N. J. L. 486, 490, the relator will be allowed to avail himself, if desired, of the services of a suitable expert accountant or accountants not connected with or interested in the company.

The rule to show cause will be made absolute, and a peremptory writ will issue accordingly.