author: Per Cubiam.

text:
    MILDRED SANDLER, BY NEXT FRIEND, ET AL., PLAINTIFFS-APPELLEES, v. HUDSON AND MANHATTAN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted January term, 1930
    Decided July 1, 1930.
    Before Gummere, Chiee Justice, and Justice Campbell.
    Eor the appellant, Edward A. Marlcley.

    For the appellees, Fredm,an <& Fredman.

   Per Cubiam.

The plaintiff below, Mildred Sandler, a young woman of twenty years of age, was injured at the Journal Square station, Jersey City, of the defendant-appellant as she was about to board an uptown New York train on September 28th, 1928, at about eight-ten a. ii. She has a judgment for $1,300 and her father, the other plaintiff below, for $50, as a result of verdicts of a jury in the trial of an action for damages resulting from the alleged negligence of the appellant.

The defendant below appeals and seeks a reversal of such judgments upon fifteen grounds argued under eleven heads or points.

1. The first ground is that the trial court erred in refusing to direct a verdict in favor of the appellant.

This is urged upon authority of Miller v. West Jersey and Seashore Railroad Co., 71 N. J. L. 363; affirmed, 79 Id. 499; Lehberger v. Public Service, 79 Id. 134; Hoff v. Public Service, 91 Id. 641; Kalleberg v. Raritan, &c., Railroad Co., 91 Id. 222; Lerner v. Public Service, 83 Id. 64, and Exton v. Central Railroad Co., 62 Id. 7.

The principle running through all of these cases is that a common carrier of passengers must use reasonable care to protect passengers from dangers known or which ought to be known or anticipated by reasonable foresight. Such rule is firmly established.

But the situation in the present case is not one where some unexpected and unforeseen happening or act of a fellow passenger was, necessarily, the proximate cause of the injury to the plaintiff below. The proofs here were that from eight A. m. to eight forty-five A. it. or thereabouts was the so-called “rush” period at this station; that large crowds of passengers were usually and regularly to be found there during that time, and, as trains came in the crowds of passengers would rush to the cars to gain entrance. This the proofs would tend to show was the condition on the morning in question. It further appears that, ordinarily, the appellant at that time in the day and on that platform, had four or five guards to control the crowd. Although appellant sought to establish that guards to this number were on duty on this platform on the morning in question there is also proof, if believed, that there were none there at the time of the happening complained of and that the crowd of passengers, uncontrolled, pushed and shoved each other in an effort to board the train and that the plaintiff was pushed and carried along to the edge of the platform and off of it and into a space between two cars of a train then in the station.

Not only was there proof upon the part of the appellant that the usual number of guards were on duty at the time but that one of these, whose station was at the point where plaintiff claimed to have been injured, testified that he was on duty, at his post, and that he saw no rushing, pushing ■or disorder and saw no one injured.

Under such condition of proofs a jury question was undoubtedly presented and it was open to the jury to find that the appellant was or was not negligent in not using reasonable ■care to provide guards or platform men of a reasonably sufficient number and that if such men and to such number were actually on duty then whether or not they exercised due care for the safety of the passengers.

We think, therefore, that there was no error in refusing to direct a verdict upon this ground.

2. It was error to refuse to direct a verdict in favor of appellant because no negligence, if any was established, was the proximate cause of the happening complained of.

This is urged upon the idea or theory that the happening was a sudden, unexpected and extraordinary one, which the defendant company in the exercise of reasonable care was not ■called upon to anticipate and which no amount of precaution •or foresight could have protected the plaintiff against.

This might have been spelled out of the proofs hut there were also proofs from which an opposite conclusion could he reached and it was for the jury to find thereon. This question was therefore properly referred to the jury by the trial court.

3. That it was error to have refused to nonsuit the plaintiff upon the allegations of negligence contained in the original complaint.

We are quite unable to see how such action of the trial court prejudiced the appellant.

From the proofs there is, at least, a strong suspicion that the happening did not take place as the plaintiff urged at the trial but happened by her stepping into a narrow space between the edge of the platform and the side of the car where she proposed and sought to enter.

. Again we are constrained to say that from the proofs this was very properly a jury question.

4. That it was error to refuse to charge appellant’s requests numbered 23 and 24.

These were—

“23. You cannot find any negligence on the part of the defendant simply because there was a small space between the side of the car and the side of the station platform. There is no evidence in this case that that construction was improper and in the absence of such evidence you cannot find the defendant negligent in that respect. It is self-evident that there must be some space between the side of the platform and the side of the cars, otherwise the train could not run into the station and out again. Because of such space the defendant cannot be held liable in this case.”

“24. If you find that this accident happened simply by the plaintiff putting her foot in between the side of the car and the side of the platform then the plaintiff cannot recover, and your verdict must be for the defendant.”

While, in the abstract, these requests present established principles of law, they were not proper requests under the theory upon which the ease was tried and submitted to the jury.

It is true that one of the grounds of negligence asserted in the original complaint was that the “platform was constructed in a careless, negligent and dangerous manner without regard for the safety of passengers using the same,” and it is also true that there was no proof that such platform was not of the customary and standard construction, and it further appears that appellant endeavored to establish that the injury to the plaintiff was caused by her stepping into a space between the platform edge and the car she was attempting to enter and the trial court referred the jury to all the charges of negligence including the one above stated, nevertheless the court instructed the jury that the plaintiff claimed “that when she went down the stairs there was a large * * * and unusual crowd, and that the train came in practically at the same time that she got on the platform and when she went to get over on the train that she was carried along with this crowd and pushed in such a position that her leg went down between the edge of the platform and the side of the train. Now, whether that is so, or whether her foot went between the edge of the platform and the middle of two ears, is' for you, and you alone, to decide * *

It seems to ns that this instruction was more favorable to the appellant than anything it was entitled to. Of course, if without anything else appearing the fact was that plaintiff being upon the platform and attempting to board this train liad stepped into a space between the platform and the train, not shown to have been an unusual space according to standard construction she would not have been entitled to recover and the requests under consideration would have been proper and it would have been error to refuse to charge them. The proofs here, however, presented a situation from which it could be found that the appellant was negligent in not providing any or sufficient guards and if this were not so that such guards as were provided were negligent in their efforts to control the prospective passengers upon the platform so that plaintiff against her will was physically forced to the edge of the platform and between it and the train then standing in the station. If this was the trae situation then it would seem to ns to be entirely immaterial whether her leg went down between two cars or between a standard opening or space between the platform and the entrance to the car which she entered.

The requests in question by their language made no provision for nor did they set up such a situation.

We conclude, therefore, that it was not error to refuse to charge as requested.

(5) Refusal to charge appellant’s request number 7. This-was an excerpt from Miller v. West Jersey Railroad Co., 71 N. J. L. 363, 365, and as worded did not fit the facts in the present case and it was not error to refuse to charge it.

(6) Refusal to charge request number 8 of appellant, which, was—

“In the present case the evidence of the plaintiff herself' shows that she used this particular platform of the Hudson, and Manhattan Railroad for five years, daily; immediately preceding this accident, and that she boarded the train each, morning about the same time at the same place and that at. no previous occasion had she ever been pushed or shoved by any passenger or passengers. You must therefore consider whether, under the circumstances, the defendant can be held to any responsibility to the plaintiff and that depends on., whether the defendant had any reasonable ground to anticipate that the occurrence in question would happen. If the-defendant did not have any reasonable ground' to anticipate-the occurrence of which the plaintiff complains, then the-plaintiff cannot recover and your verdict must be for the-defendant.”

This request was patently improper. The fact, if such it was, that the plaintiff bad made use of this particular station for-some period of time prior to the happening complained of, and had never before been pushed or shoved by a crowd of passengers was not the measure of the defendant’s liability nor the guide for its care of its passengers.

(7) Refusal to charge request number 11 of appellant, as follows:

“There is no evidence in this case that any passenger on-any previous occasion was pushed or shoved from the platform to a position between the cars and in the absence of any evidence that the defendant might have reasonably anticipated' this occurrence, there is no liability on the part of the defendant and your verdict must be for the defendant.”

While we are entirely unable to subscribe to the contention contained in this request that there was a burden upon the-plaintiff to show that other passengers at previous times had. met up with and been subjected to a happening like unto that visited upon her, in order to make the defendant liable in her case, nevertheless the instruction of the trial court upon this point seems to us to have been amply sufficient.

(8) Eefusal to charge appellant’s request number 17.

This was simply a rule for measuring the credibility of witnesses and the charging of it was entirely a matter within the sound discretion of the trial judge. It presented no rule or principle of law and it was not error to refuse to charge it.

(9) Eefusal to charge appellant’s request number 21.

This was a caution to the jury not to be swayed by sympathy, &c. Here again the sound discretion of the court was called into action and no principle of law was involved.

(10) Eefusal to charge appellant’s request number 22.

This was directed to the question of contributory negligence of the plaintiff.

The trial court fully and correctly charged upon this question and therefore it was not error to refuse to charge the request in question.

(11) Eefusal to charge appellant’s request number 25, which was:

“If you find that this was merely an accident which could not be avoided by the exercise of reasonable care by the defendant, then your verdict must be against the plaintiff and in favor of the defendant.”

We think this was sufficiently and completely covered by appellant’s request number 1, which was charged and the trial court’s general charge.

The judgments below should be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    S. KOSSON & SONS, A CORPORATION, PLAINTIFF-APPELLEE, v. MARTIN D. HARRIS, DEFENDANT-APPELLANT.
    Submitted January term, 1930
    Decided July 1, 1930.
    Before Gummere, Chief Justice, and Justice Campbell.
    Eor the appellant, Filbert L. Rosenstein.

    For the appellee, Aaron Heller.

   Per Curiam.

This is an appeal from a summary judgment for $1,633.37, entered upon the striking out of an answer.

The plaintiff-appellee brought suit against the defendant-appellant for $1,770. The action was based upon a written contract between the plaintiff-appellee and the Roman Realty and Construction Company under which the former furnished glass in a building being erected by the latter at Springfield avenue and Forty-second street, Irvington. The payment of the consideration under this contract by the Roman Realty and Construction Company was guaranteed by the appellant in a written undertaking.

We can pass by the issues raised, or attempted so to be, by the pleadings.

Upon the motion to strike out the answer the following facts were brought forth.

The plaintiff-appellee asserted that it had fully performed its contract by furnishing the materials called for; that the agreed price was $1,850, against which $100 was credited as the result of a mutually agreed change, leaving a balance of $1,750, and that there was an agreed upon extra item of $20, making the total amount due and demanded $1,770. Further, that appellant requested the appellee to sign a postponement of its right of lien against the lands to the lien of a mortgage, which appellee refused to do until appellant guaranteed its claim of $1,770, which he thereupon did.

The appellant admitted that the appellee had substantially performed its contract except that it had omitted to place certain grills, the installing of which would cost $300 and denied that the appellee was requested to execute a postponement of its lien and that to secure such postponement, he, the appellant, had guaranteed the account. But, asserted the appellant, “the true facts are that after the plaintiff executed its contract with Eoman Eealty and Construction Company it refused to proceed with its work and insisted that I guarantee the contract although it had already been signed by plaintiff and the Eoman Eealty and Construction Company. What guaranty I did sign was signed two days after the original contract was signed and hence without any consideration whatsoever.”

Appellant further asserted in his affidavit that the copy of the contract and guaranty as annexed to the appellee’s affidavit was not correct in that the date of the guaranty as April 5th, 1928, was false, but that the truth was that Irwin Kosson of the appellee company came to his home on the afternoon of April 7th and requested him to sign the guaranty, which was after its contract with the Eoman Eealty and Construction Company had been signed.

The Circuit Court judge, before whom the matter was heard, ordered the entry of summary judgment against the appellant for $1,450 and interest from September 10th, 1928, this being the full amount of the claim of $1,770, less the extra item of $20, admittedly not covered by the guaranty and the sum of $300 asserted by the appellant as the cost of installing certain grills which it is said should have been but were not installed by the appellee.

This order of the learned trial judge is based upon the admission of the appellant that his guaranty was given when the appellee refused to perform its contract unless and until the consideration was guaranteed and secured.

While the appellant urges a reversal of this judgment in a rather voluminous brief, under several points the gist of the argument is that the guaranty of the appellant was without consideration and therefore nudum pactum.

The theory or principle upon which the learned Circuit Court judge based his order was that where an executory contract exists which before performance the contractors refuse to perform unless the consideration thereof is secured or guaranteed by a third party, such a contract of guaranty is to be regarded as made contemporaneously with the main contract and is supported by the consideration of the principal contract. Citing Garland v. Gaines (Conn.), 49 Atl. Rep. 19, and Kirsch v. Chicago Carpet Co., 82 Ill. App. 234.

In this conclusion we concur and to the authority cited by the court below may be added 28 C. J. (Title Guaranty) 917, &c.

The judgment below is^ affirmed, with costs.


author: Pee Cueiam.

text:
    CITY BANK FARMERS TRUST COMPANY, EXECUTOR, ETC., ARCHIBALD D. RUSSELL, DECEASED, PROSECUTOR, v. JOHN McCUTCHEON, COMPTROLLER, ETC., ET AL., RESPONDENTS.
    Argued January 22, 1930
    Decided July 1, 1930.
    Before Gummebe, Chief Justice, and Justice Campbell.
    Por the prosecutor, Walter E. Cooper (Henry C. Elbert and Russell L. Bradford, of the New York bar, on the brief).
    Por the respondents, William A. Stevens, attorney-general.
   Pee Cueiam.

This writ brings up for review that portion of a decree of the Prerogative Court of July 25th, 1929, which affirms-a transfer inheritance tax assessment upon certain real and personal property of Archibald D. Russell, deceased, who died, intestate, November 29th, 1919, a resident of Princeton, Mercer county, this state. The net estate subject to the jurisdiction of this state was $7,152,325.59, which includes $392,800 of value of real and personal property transferred by decedent to his four children by deed dated May 15th, 1918, and which is the subject of the tax now under review.

The records show that Archibald D. Russell, on May 15th, 1918, then being the owner of real property located at Princeton, as well as the contents of the homestead situate thereon, conveyed such property, by warranty deed, bearing that date, to his four children. On May 16th, 1918, the day immediately succeeding such, conveyance, they executed and delivered a lease to their father of the same premises and property for a period of ten years at a nominal rental of one dollar per year. The father died, approximately, one and one-half years thereafter and down to the time of his death he was and from the date of the before-mentioned transfer or conveyance remained in full possession and enjoyment of the property, both real and personal.

The comptroller found and held that his deed and lease constituted and made for a single transaction and was one, intended by the decedent, to take effect in beneficial possession and enjoyment, only at and after the decease of the donor.

The learned vice-ordinary confirmed this and found that at the time of the transfer, the decedent, Russell, was sixty-five years of age with a life expectancy of eleven years. That he died in one and one-half years after the transaction in question, of diabetes, a progressive disease; that there was sufficient proof to support the conclusion that at the date of the gift, the donor was not in average health, but much below it, and that this he knew, and hence he contemplated that a term of ten years, in all probability, would be greater, than his remaining years of life.

In this finding we think the vice-ordinary was justified upon the proofs before him and the decree under review should be affirmed.

The prosecutor now seems to contend, and devotes a large portion of its brief thereto, that if there should be a tax against this property the present assessment is made upon an improper and illegal basis as it is made upon the actual, market, value of the lands and chattels and should have been made only upon the value of the leasehold thereof in the estate of Russell.

We think this is without legal or factual merit, and furthermore this question does not appear to have been raised or argued in the Prerogative Court and therefore may not be raised here.

The decree below and the assessment under review should be affirmed, with costs, and the writ dismissed.


text:
    ADAM B. LYCZAK, PLAINTIFF-APPELLEE, v. BENJAMIN A. MARGULIES ET AL., DEFENDANTS-APPELLANTS.
    Argued January 23, 1930
    Decided July 1, 1930.
    Before Gummbbe, Chief Justice, and Justice Campbell.
    Eor the appellants, John W. OcTcford.

    Eor the appellee, Paul G. SupinsM.

   Pee Cueiam.

This is an appeal from a judgment in favor of the plaintiff below in an action for breach of a covenant against encumbrances.

The matter was heard and the judgment in question was entered upon findings of the trial judge, sitting by consent, without a jury. Such findings are said to be based upon a stipluation of facts. Such stipulation does not appear in the state of case before us.

Appellant’s first ground for reversal is that there are no findings of fact by the trial court and therefore there is no legal support for the judgment under rule 113 of this court.

Under the circumstances of the present case this is without merit. The memorandum filed by the trial judge and made a part of the record before us (state of case, pages 14, 15 and 16) contains what amounts to a finding of facts, and about which facts, as it happens, there is no dispute between the parties.

These facts are—

The appellants-defendants conveyed certain lands to the appellee-plaintiff by a deed dated March 15th, 1926, acknowledged March 19th, 1926, and delivered March 23d, 1926. This deed contained a covenant against encumbrances excepting a first and second mortgage therein particularly described and set forth. Prior to the execution and delivery of such deed the city of Jersey City had undertaken and completed the improvement of Stegman street between Bergen and Jackson avenues, as a local improvement, the costs of which was to be assessed upon the properties benefited to the extent of the special benefit received. The lands conveyed fronted upon the improvement and the assessment thereon, together with those upon other parcels, had apparently been reported to the Hudson County Circuit Court, under Pamph. L. 1925, ch. 72, because, it appears, that on March 15th, 1926, the date of the deed from appellants to appellee, a judge of the Circuit Court had signed an order confirming such assessments so reported. It also appears, however, that such order was not filed with the clerk of that court and entered in the minutes until April 6th, 1926, and a copy thereof was not forwarded and filed with the collector of taxes of Jersey City until the same date.

Shortly stated the controversy is this—

Plaintiff-appellee contends, and that contention was accepted by the court below, and is the basis of the present judgment, that such assessment became a lien against the lands in question on March 15th, 1926, and therefore was a lien and encumbrance at the time of the delivery of the deed and consequently there was an immediate breach of the covenant against encumbrances and particularly so because the appellee-grantee paid such assessment on July 23d, 1926, and, therefore, he is entitled to have his judgment for the amount so paid together with interest from the date of payment.

On the contrary the appellants-grantors contend that such assessment did not become a lien and encumbrance on the lands conveyed until the actual filing and entry of the order confirming by the Circuit Court on April 6th, 1926, and, therefore, was not a lien or encumbrance upon the delivery of the deed on March 23d, 1926, and consequently there was no breach upon their part of the covenant against encumbrances and no right of recovery existed in favor of the appellee-grantee as a basis for the judgment appealed from.

The statute applicable is Pamph. L. 1925, ch. 72, and the pertinent provisions thereof are—

Section 3. After providing for the giving of notice and hearing objections by the Circuit Court “* * * until a report shall be made or returned which the said court shall confirm and such report when confirmed shall be final and conclusive, as well upon the said city * * * as upon the owners of any land and real estate affected thereby, and said court shall cause said report, together with the original orders or rules confirming the same to be transmitted to and filed with the tax collecting officer of said city * * *. The orders or rules confirming such assessments shall be entered in the minutes of the Circuit Court confirming the same before such report is transmitted to said tax collecting officer.”

Section 4. “Immediately after confirmation of any such assessment, the original report, together with the original orders or rules confirming the same shall be delivered to the tax collecting officer of such city * * * and the assessment shall be payable immediately upon delivery to such collecting officer * *

Section 5. “Every assessment for local improvements * * * shall upon confirmation of the same by the Circuit Court of the county in which such city of the first class is situated be a first and paramount lien upon the lot of land described in such assessment and paramount to all prior or subsequent alienations and descents of such lands or encumbrances thereon, except subsequent taxes or assessments, notwithstanding any mistake in the name or names of the owner or owners or other person or persons having a lien upon or interest in any such lot of land; all assessments for local improvements shall be presumed to have been regularly assessed and confirmed and every assessment or proceeding preliminary thereto shall be presumed to have been regularly made and conducted until the contrary be shown.”

It seems to us that the adjudications of our courts can only be known through the records thereof, perpetuated in the minutes of such tribunals and other established places of record. Generally, if not universally, rules, orders and judgments are not effective unless and until properly and publicly enrolled.

Eeasonableness establishes such a principle without citation of authority.

Eule 214 of this court, applicable to the Circuit Court, is in point and is as follows:

“Every rule taken in open court, or allowed by a justice, shall be entered in the minutes of the court and shall take effect only from the time of such entry, and the true date of such entry shall be stated at the foot of such rule, provided, however, that the justice allowing such rule may nevertheless order in the same rule that the same shall take effect forthwith, in which case the said rule shall take effect from the time of signing the same, and all rules, whether granted by the court or a justice shall be entered in the minutes within ten days from the granting of the same or in default thereof shall be of no effect.”

Whether or not this rule is directly applicable to an order confirming assessments for local improvements is of no concern and it is not cited because of any pertinency in that direction but particularly for the purpose of indicating the particular case called for in requiring the entry of court proceedings in order that they shall become and be effective.

The appellee cites, with much reliance, in support of his contention, Frank v. Jersey City, 6 N. J. Mis. R. 446. This was upon certiorari to review certain assessments where this court held:

“The order of confirmation was filed in the tax collector’s office without first having been entered in the minutes of the Circuit Court as required by Pamph. L. 1925, do. 72, § 3. This is a mere matter of procedure and would be of no importance in the matter before us except for the fact that respondent urges that the prosecutor was in laches in procuring the present writ, and should not have the benefit of it, because he did not apply for it within thirty days from the date of the order confirming. It is difficult to understand how this can be so if he had no notice of the hearing before the court and the order of the court was not entered in the minutes of its clerk.”

In this case it was found and held that the property owner, whose lands were assessed, had no notice of the application to confirm by the Circuit Court and for that reason the confirmation was set aside and the matter remanded to the Circuit for further hearing and because of lack of notice the prosecutor was not chargeable with laches. We think this case gives no substantial support to the judgment under review.

On the contrary it seems to us that under the statute of 1925, supra, no lien was created against the lands in question, so as to constitute an encumbrance unless and until the order of the Circuit Court confirming the assessment was actually entered in the minutes and records of that court. To hold otherwise would seem to us to trespass upon every known and recognized principle and rule. We would not be justified in holding that the statute expressed a legislative intent and purpose to create a lien, amounting to an encumbrance upon the lands without a record of such judicial action.

The judgment under review is therefore reversed, with costs.


text:
    THE STATE, EX REL. JOHN MULSOFF, RELATOR, v. EDWIN C. SLOAT, RESPONDENT.
    Argued January 23, 1930
    Decided July 1, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell.
    For the relator, Burlew & Currie.

    For the respondent, Merritt Lane.

   Pee Cueiam.

This is an application .for leave to file an information in the nature of quo warranto, by relator, as a citizen and taxpayer, under section 1 of the Quo Warranto act. 3 Comp. Btai., p. 4310.

On January 13th, 1936, the respondent was reappointed as a police officer of the borough of Matawan, and four days later, although there had not then been created any office such as chief of police or acting chief of police, he took an oath of office as chief of police and thereafter wore the uniform, &c., of that office.

On March 9th, 1936, an ordinance was adopted creating the office of acting chief of police. No one was appointed to this position, but the respondent continued to act as such and perform the duties of that office theretofore exercised by him. On May 8th, 1929, this ordinance was amended by creating the office of chief of police, and on the same day respondent was appointed to that position and has since been acting as such officer.

On April 13th and 14th, 1927, he was tried in the Monmouth County Quarter Sessions Court under an indictment charging him with assault and battery upon one Geran in August, 1926; such acts being committed in making the arrest of Geran, the respondent being charged with using excessive force in making such arrest. lie was convicted and sentenced to pay a fine of $500 and costs. More than two years later, on September 17th and 19th, 1929, he was tried before the mayor and council, upon charges preferred by a citizen, one of which charges was that he had forfeited his office because of the conviction before referred to, and was acquitted. Now three and one-half years after his conviction at the Monmouth Quarter Sessions and three to four months after trial and acquittal before the mayor and council, the present application is made, at the request of a citizen who is a constable by appointment of the mayor and council of the borough.

The basis of the contemplated action is Pamph. L. 1913, ch. 74, p. 116, which provides:

"1. Any person holding an office, elective or appointive under this state, or any county or municipality thereof, who shall be convicted upon, or who shall plead guilty non vult or nolo contendere to, an indictment or allegation charging such person with the commission of a misdemeanor or high misdemeanor touching the administration of his office, or which involves moral turpitude shall forfeit such office and cease to hold the same from the date of such conviction or entry of such plea as aforesaid.”

It would seem that under the plain language of this statute there can be no doubt but that respondent, automatically, upon his conviction, on April 14th, 1927, lost and forfeited the office he was then occupying which was that of member of the police force and perhaps that of acting chief of police under the • ordinance of March 9th, 1926; that ordinance being rather peculiar in its language in providing for the appointment of an acting chief “if upon the passage of this ordinance the borough has not already an acting chief of police, who may be selected from the members of the police force or not * *

On May 8th, 1928, this ordinance was amended, providing inter alia:

“(b) There shall be appointed an acting chief of police or a chief of police, if, upon the passage of this ordinance, there is not, already, an acting chief of police or chief of police appointed * * * and who, if upon the passage of this ordinance the borough has not already an acting chief of police or a chief of police, may be selected from the members of the police force or not * *

Upon the date of the adoption of this amendment, respondent was appointed chief of police and qualified by taking the oath of office.

Respondent urges that, assuming under Pamph. L. 1913, supra, he forfeited his office at the date of his conviction, April 14th, 1927, he again became an officer of the police department, as chief of police, subsequent to such forfeiture, and on May 8th, 1928, when he was appointed to the latter office and qualified, and that there is nothing in such statute which imposes a future or continuing disqualification to hold the same or any other office.

But the relator urges that the appointment of respondent to the office of chief of police on May 8th, 1928, has no force and advantages him in nowise because at the time of1 such appointment he was above the age of thirty-five years which is the maximum age for appointees as members and officers of police departments.

This would be so if the statute relied upon by the relator was effective. Respondent, however, urges that the situation as to this legislation is:

Pamph. L. 1915, ch. 373, p. 688, by section 2, fixes ages of such appointees at twenty-one to fifty-five years. By the Home Eule act (2 Gum. Supp. Gomp. Stat., p. 2154, §§ *136-1604) this provision of the act of 1915 was carried into this act and by Pamph. L. 1917, ch. 204, p. 575 (at p. 665), the act of 1915, supra, was specifically repealed.

By Pamph. L. 1926, ch. 324, p. 600, the legislature attempted to amend section 2 of the repealed act of 1915, supra, by fixing the ages at twenty-one to thirty-five years. This was ineffective, being, constitutionally, inhibited. Again by Pamph. L. 1928, ch. 215, p. 387, there was a like, ineffective, and constitutionally prohibited, attempt to amend and revive this repealed act of 1915, supra.

This leaves paragraph 4, article 16 of the Home Eule act, as amended Pamph. L. 1920, ch. 184 (2 Gum. Supp. Gomp. Slat., §§ *136-1604) as the only valid existing legislation upon this subject and it fixes the age limits at twenty-one to fifty-five years. At least our attention has not been directed to any other legislation upon the subject.

This seems to be admitted by -the relator, but he urges that this court will take judicial notice of the intention of the legislature to make these acts of 1926 and 1928, supra, amendments of the Home Eule act and not of the repealed act of 1915, supra, and cites in support thereof Fautz v. Juvenile Court, 6 N. J. Mis. B. 586, where it was held: “It is quite obvious from what has been stated that the statute in question is improperly designated as a supplement to the act of 1918, whereas it is a supplement to the act of 1912',, since the statute of 1918 is simply an amendment to the act: of 1912 and, therefore, became incorporated in that act. But this is not fatal to the validity of the statute.” The situation there was radically different from that presented here, where the attempts are to revive, by amendment, a repealed statute in face of the prohibition of article 4, paragraph 4, section 7, of the state constitution: “No law shall be revived or amended by reference to its title only, but the act revived or the section or sections amended shall be inserted’ at length.”

Apart from this, however, this court has a wide and broad discretion in granting or withholding its permission to a desiring relator under the Quo Warranto act. Mitchell v. Tolan, 33 N. J. L. 195; Housman v. Earle, 98 Id. 379; Reihl v. Wynne, 105 Id. 507.

It seems to us that the present case is one distinctly calling for the exercise of sound discretion resulting in a denial of the permission prayed for.

In the first place there is great doubt that the relator would be successful in his proposed action and therefore no good purpose would be served but on the contrary public anger would be excited and municipal turmoil would be created.

In the second place the municipal authorities of the borough have for some reason, which we must assume was good and substantial, refrained from taking steps to oust the respondent and they are taking no part in the present proceeding.

Finally, and although very guarded language is employed, and the relator protests that he makes no claim to the office held by respondent, yet the stipulation of facts shows that he “is a marshall of the borough of Matawan, and a constable of the county of Monmouth. He has been such for many years. Prior to 1925 he was practically the only such officer' so acting in the borough of Matawan. Since that time his duties have been taken over by special officers working full time and more recently bjr the organized police force of said borough, which organization was effected on March 9th, 1926.”

This strongly raises the question as to whether the relator is moved, in his proposed proceeding, by a bona fide desire to serve the public or rather by 'a personal and selfish desire either to secure for himself the position from which he seeks to oust the respondent or, if not, that then to satisfy a desire for retribution against the governing body of the borough.

The leave prayed for is denied.


text:
    EDWARD A. O’LEARY, PROSECUTOR, v. COMMON COUNCIL OF THE CITY OF SOUTH AMBOY ET AL., RESPONDENTS.
    Argued January 23, 1930
    Decided July 1, 1930.
    Before Gummere, Chief Justice, and Justice Campbell.
    Eor the prosecutor, George L. Burton.

    For the respondents, Henry St. G. Bavin.

   Per Curiam.

This writ brings up for review proceedings for the dismissal of the prosecutor from the police department of South Amboy.

The admitted facts are that the prosecutor was appointed as a policeman on April 16th, 1921. On August 24th, 1928, he was served with charges that had been made against him by a Mrs. Yiola Schultz, for violation of certain provisions of the police ordinance and at the same time he was served with notice that a trial of such charges would be had on September 10th, 1928. The trial was held on that date before four of the five members of the city council and the prosecutor was found guilty of three of the four charges preferred against him as shown by the following resolution:

“Whereas officer O’Leary has been given a fair and impartial trial of the charges preferred against him by Mrs. Viola Schultz, and

“Whereas, after full and due consideration of these charges we find officer O’Leary guilty beyond a reasonable doubt of three of the four charges preferred against him, therefore, be it

“Resolved, that in view of which we recommend dismissal from the force for the betterment of the police department of the city of South Amboy.”

Eollowing such action unsuccessful attempts were made to bring about a reinstatement of the prosecutor and on November 3d, 1928, he sued out a writ of certiorari to review the proceedings upon and under which he had been ousted. These proceedings were discontinued January 21st, 1929.

Subsequent to prosecutor’s dismissal, one Morris Reiner was appointed in his place and has since performed the duties and received the compensation therefor.

The prosecutor urges five grounds for setting aside his conviction and removal.

1. That the council was, without jurisdiction to try the charges against him.

South Amboy being a third class city is governed by Pamph. L. 1897, p. 46; Comp. Stat., p. 1297.

Under section 4 of that statute the mayor, is the head of the police department and has exclusive power to appoint, suspend and remove policemen.

Section 5 of the Police Tenure act (Pamph. L. 1885, p. 163; Comp. Stat., p. 2467) provides for a hearing, upon charges, “publicly examined into by the appropriate municipal board, officer or authority * * Practically the same provision and requirement is written into the Municipality (Home Rule) act. Pamph. L. 1917, ch. 152; Cum. Supp. Comp. Stat., p. 2153) under article 16, section 5.

Against this the respondent urges that section 30 of the act of 1897, supra, gives to the common council power to enact ordinances (as does also the Home‘Rule act, supra), “to establish, maintain, regulate and control a police department * * and that pursuant to such authority, an ordinance exists, in South Amboy, which provides for the trial of charges against members of the police force by the council of the city.

The prosecutor’s contention is that under the Charter act (1897, supra) the power of appointment, suspension and removal of policemen being definitely and exclusively placed in the mayor the power to try charges is also definitely and exclusively in him, and that the power to pass the ordinance before referred to, under the provision of that act and the Home Rule act does not reach the point of permitting a designation of the council for that purpose. The contention of the respondent is to the contrary, and that the ordinance in question is authorized by the before-mentioned statutes and the designation of the council as the trial body was proper. We think the contention of the prosecutor is sound and that the council was without power or jurisdiction to hear the matter and pass judgment. Carey v. Plainfield, 53 N. J. L. 311; Darmstatter v. Passaic, 81 Id. 162.

2. That there is no evidence before us upon which the judgment of dismissal can be rested.

This is based upon the fact that the state of case does not show that the testimony was taken by a competent and properly designated stenographer and is not certified as required by Pamph. L. 1914, ch. 208.

This objection we think is unsubstantial, inasmuch as it appears that on November 22d, 1929, a motion was made to strike out such testimony from the state of case and such motion was denied by this court.

3 and 4. Because the prosecutor was not served with a notice of dismissal and the resolution setting forth the findings of the council does not, in language, amount to a judgment of dismissal.

We think there is no substance in these contentions and the prosecutor points out to us no injury or disadvantage suffered by him, nor are we directed to any statutory or other requirement of formal notice.

5. There was no proof of any rules of the police department that the prosecutor was charged with violating.

Such an ordinance was introduced and admitted in evidence although it was not included by being printed in the return to the writ.

We think this ground is without substance.

For and because of the first reason urged the judgment and proceedings would, of necessity, be required to be set aside. The respondent, however, urges two grounds, the second of which, laches, we think is so pronounced and substantial as to stay the hand of this court.

The trial and finding upon the charges was September 10th, 1928. A writ of certiorari was allowed November 3d, 1928, and withdrawn January 21st, 1929. The present proceeding was not instituted until September 7th, 1929, almost exactly one year after the proceedings and action complained of and sought to be reviewed, and the present writ was not allowed until October 5th, 1929. In the meantime another has been appointed as a member of the police force in the place of the prosecutor and has performed police duty and been paid for such services.

Drill v. Bowden, 4 N. J. Mis. B. 326, is much in point except that was heard and disposed of upon a rule to show cause why a writ of certiorari should not be allowed.

We conclude, therefore, that the writ of certiorari should be dismissed, with costs.


author: Ingebsoll, V. C.

text:
    Workingmen’s Building and Loan Association, complainant, v. Anthony Del Vecchio et al., defendants.
    [Decided July 18th, 1930.]

      Mr. Albert G. Abbott, for the complainant.

      Mr. William Elmer Brown, Jr., for the defendant Anthony Del Vecchio.

      Mr. Henry 8. Alvord, for the defendant Holland Furnace Company.

      Mr. 8. Paul Ridgway, for the defendant Bozarth Lumber Company.

      Mr. T. Harry Rowland, for the defendant David G-lick.
   Ingebsoll, V. C.

The bill was filed in this cause on October 7th, 1927. On March 28th, 1928, the defendant Holland Furnace Company filed a counter-claim alleging that a warm air furnace with certain of its pipings and connections were personal property and that an accounting be had of the amount due therefor, and that said furnace and piping be decreed to be personal property not encumbered by the complainant’s mortgage and.that the defendant be permitted, by a decree of this court, to remove from said house said furnace and piping.

The difficulty in this ease is two-fold, first, that prior to the filing of the cross-petition the sheriff had levied upon and made sale of the property in, question, and secondly, that the mortgage being foreclosed has been paid and that the complainant has no further interest in the cause. “The-doctrine of retaining jurisdiction to settle the entire controversy is confined to the determination of rights dependent upon, or at least germane to, the subject-matter and main purpose of the bill; jurisdiction will not be retained to-adjust independent controversies between the parties or controversies beyond the scope of that raised by the bill.” 21 Corp. Jur. 118, cited by Chancellor Walker in Caruso v. Caruso, 101 N. J. Eq. 350.

The cross-bill will be dismissed.


author: Pee Curiam.

text:
    IRVINGTON TRUST COMPANY, PLAINTIFF-APPELLEE, v. ASHER MAURER, DEFENDANT-APPELLANT.
    Submitted January term, 1930
    Decided July 1, 1930.
    Before Gummere, Chief Justice, and Justice Campbell.
    Eor the appellant, Maurice 8. Maurer.

    Eor the appellee, Adam J. Rossbach.

   Pee Curiam.

This is an appeal from a summary judgment entered upon the striking out of an answer in an action to recover upon a promissory note, made by the defendant to the order of Helene Weiss and by her negotiated to and discounted at, and held by the plaintiff, bank.

The complaint in the action is in the usual form, setting up the note, averring that upon its due date it was presented for payment at the place where it was made payable and it was not paid, that the note was the property of the plaintiff, bank, had not been paid and demanding the amount thereof, $1,000 and interest from its due date, June 10th, 1929. A copy of the note was attached to the complaint.

The answer of the defendant maker, which was struck out, admits the execution of the note but denies there is anything due thereon, denies the plaintiff is the holder in due course, and for value, and denies that the defendant, maker, owes anything thereon either to the payee, Helene Weiss, or the-plaintiff, bank. In addition nine separate defenses are setup:

1. That plaintiff is not the holder for value.

2. That plaintiff is not the holder in due course and was-chargeable with knowledge of all defects in the note.

3. That plaintiff is not a holder in due course and is-chargeable with all defenses available to defendant against the original holder.

4. That the defendant, maker, owes to Helene Weiss, the original payee, nothing on the said note.

5. That Hew Jersey Lamp Works, Incorporated, is indebted to the estate of Morris Weiss, deceased, in the sum of $1,000 and has given prior notes therefor, and the note sued on was intended to be a note of that corporation, of which the defendant is an officer, but the corporate designation was, by error, omitted: that Helene Weiss, administratrix of said estate, with full knowledge of said error in the execution of the note and with full knowledge that the-defendant owed her nothing, took said note and discounted it at the plaintiff bank and took the proceeds for her own personal use.

6. That Helene Weiss has placed with the plaintiff bank securities to insure to it pajunent of the said note and of the moneys received by her thereon, and said plaintiff is not a holder of said note for value.

7. That the defendant received no consideration from said,Helene Weiss for said note.

8. That said Helene Weiss cannot maintain any claim or recover judgment against the defendant upon said note and for that reason he is not liable thereon to the plaintiff.

9. That plaintiff having on deposit, as security for the payment of such note, moneys and assets of Helene Weiss it cannot hold defendant for the payment of such note. Defendant claims that Helene Weiss is alone responsible to the plaintiff for the moneys received by her from it as proceeds. of the discount of the note and urges that she be made a party defendant.

Upon motion, upon notice, affidavits and counter affidavits, the answer was stricken out and summary judgment entered in favor of the plaintiff below, from which judgment the defendant below appeals and urges for reversal several grounds.

1. That the note was executed to Helene Weiss by mistake in that it was executed by the defendant, as maker, individually instead of as an officer of the New Jersey Lamp Works, Incorporated, and this being so to the full knowledge of Helene Weiss she took the note fraudulently and dishonestly, therefore her title is defective, and that defect makes it impossible for the plaintiff bank to be a holder in due course, and consequently the defense of error in execution is open to the defendant-appellant, as it would have been to him against the original payee, Helene Weiss.

But there is nothing in the proofs showing that the plaintiff-appellee had any actual notice of such alleged defect or error nor that its taking of and discounting of the note amounted to bad faith. The note is entirely regular upon its face and there is no language contained in it that would suggest, even slightly, that it was intended to be a corporate obligation. But appellant says the plaintiff-appellee had such facts putting it upon notice because its treasurer says in his affidavit used upon the motion to strike “that the note sued on is a renewal note of a succession of two prior notes, representing the same amount of money; the first given on September 10th, 1928, for $1,000, which note was signed by Asher Maurer, the defendant herein, made to the order of Helene Weiss and negotiated to the plaintiff; a renewal of said note was given on December 10th, 1928, for $1,000, signed by Asher Maurer, payable to the order of Helene Weiss and discounted with the plaintiff bank for $1,000; that the note in suit is the third note in the series or succession of notes and is made in the same manner, is signed in the same way, and is for the same amount as the prior notes * * Against this the appellant in his counter affidavit asserts that he “has read the affidavit of Maxwell A. Cox (appellee’s treasurer) and states that it is not true that the notes referred to were those of this deponent, but that they were the notes of the New Jersey Lamp Works, Incorporated, and further, that it is not true that the Irving-ton Trust Company had no notice or knowledge of the error set forth hereinbefore by this deponent, but that said Irving-ton Trust Company has in its possession in its files copies of the letters, notices and memoranda showing the relation of the New Jersey Lamp Works, Incorporated, to the entire transaction, and that the debt is that of the New Jersey Lamp Works, Incorporated.” Attached to this affidavit are two letters of the appellee; one under date of June 8th, 1928, to New Jersey Lamp Works, which no doubt accompanied a return of a note or some other item of $1,000 of Helene Weiss, and the other under date of December 12th, 1928, to Helene Weiss, referring to the return to her of a note of the New Jersey Lamp Works for $1,000, which the trust company had recalled. The former of these is of too early a date to have reference to either of the notes set up in the affidavit of appellee’s treasurer. The latter may refer to the note first referred to in such affidavit as falling due December 10th, 1928. These communications being without explanation can be of little value except to invite conjecture. But, be the situation what it may, and asume that the assertion in the affidavit of the treasurer of appellee respecting the notes preceding the one in suit, and who the maker of such notes was, as being erroneous, and the before-quoted statements in appellant’s affidavit to be true, we are unable to see how any factual question is thereby raised permitting the appellant to defend. Neither fraud nor knowledge of facts amounting to bad faith upon the part of the appellee are shown.

Two of the requisites making one a holder in due course, under section 52 of the Negotiable Instruments act (3 Comp. Stat., p. 3734), are—

“3. That he took it in good faith and for value.

“4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

A defect in title is defined by section 55 of the same act to be:

“The title of a person who negotiates an instrument is defective within the meaning of this act when he obtained the instrument or any signature thereon by fraud, duress or force and fear or other unlawful means, or for an unlawful consideration, or when he negotiates it in breach of faith or under such circumstances as amount to a fraud.”

Notice of such a defect or infirmity as to charge one to whom the instrument is negotiated is defined by section 56 of the act to be:

“To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

The most that is urged is that Helene Weiss, the payee named in the note, took it with knowledge that the appellant had made an error in signing it personally, when, in fact, as he asserts, he should have executed it as an officer of the New Jersey Lamp Works, Incorporated. If this be so and constitutes such bad faith upon the part of Helene Weiss as to amount to fraud, which question we pass by, it is entirely impossible to spell out of any of the proofs in the case actual knowledge or knowledge of such facts as make for bad faith of the appellee.

In Rice v. Barrington, 75 N. J. L. 806, it is held: “Bad faith, not merely notice of suspicious circumstances, must be brought home to the holder for value of a negotiable note whose rights accrued before maturity in order to defeat his recovery upon the note on the ground of fraud in its inception.” In Montvale v. Bank, 74 Id. 464, it is held: “The fact that a mayor of a municipality negotiates bonds which he had signed as mayor, was not sufficient to charge a bank, receiving them as collateral, with notice of the defect in his title, where the bank had no knowledge of his lack of authority to dispose of them.”

We conclude, therefore, that this ground is without factual or legal merit.

2. The next ground urged is that there was sufficient proof in the affidavit of appellant to raise the question of invalidity of the note, and therefore there was a factual question to be presented to a jury.

This has been fully answered under ground one, and adversely to the contention of appellant.

3. The third ground is quite to the same point as the last preceding ground and appears to be that appellant, personally, does not and never did owe Helene Weiss any sum of money, and that she took and negotiated the note in question dishonestly and in bad faith, and that appellee had knowledge of such facts, therefore is not a holder of the note in due course, and against it appellant is entitled to all defenses he would have had against the original payee.

Whatever may have been the actual situation between appellant and Helene Weiss, as has already been pointed out, there were no facts presented sufficient and necessary to charge the appellee.

4. The next ground is that Helene Weiss discharged and paid the note and therefore there was no liability as between the appellant and the trust company, appellee.

This is based upon the assumption and assertion of the appellant that Helene Weiss had a certain line of credit with the trust company, secured, collaterally, by certain securities which she had deposited with it, and that being so the trust company either did or should have charged against her account or collected from her through such collateral securities the note in question, as and when it fell due, and therefore may not look to appellant for payment therefor.

To state the proposition is to dismiss it for lack of legal support.

5. The final ground is that it was error to strike out the answer as being both sham and frivolous.

Ordinarily this would be technically true, but where, as hero, there are several defenses pleaded and attacked, some of which are sham, that is untrue, and others frivolous, that is presenting no legal defense if true, it is entirely proper and appropriate to strike them without particularizing which are sham and which are frivolous.

The judgment under review is affirmed, with costs.


text:
    DOMESTIC CREDIT CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. CLIFFORD V. CHAPMAN AND DAVID G. READER, TRADING UNDER THE FIRM NAME AND STYLE OF MATAWAN RADIO SERVICE, DEFENDANTS.
    Decided July 2, 1930.
    Eor the plaintiff, Julius E. Ditirmr.

    Eor the defendants, Karhus & Karhus.

   In suit No. 1 on various notes the language of the endorsement is noteworthy—“Eor value received the undersigned hereby warrants payment of the within note.” Certainly •there is no obligation to sue the maker before proceeding ■against the guarantor. There is an absolute guaranty of payment of the obligation, and there is no necessity to sue <on the primary obligation as a condition precedent to the maintenance of the suit upon the guaranty. Pfeiffer v. 'Grossley, 91 N. J. L. 433.

In suit No. 2 on the assignments of various accounts receivable, the assignor agrees to act as agent for collection and there is a guaranty that he will collect the amount due. Obviously, the assignee has a right of action for breach of the contract of collection, and he is not obliged to resort to a suit on the original ■ obligation since there is a duty upon the assignor to collect.

The answers will therefore be struck.


text:
    SADIE DOLGIN, PLAINTIFF, v. SPENCER MCDONALD, DEFENDANT.
    Decided July 11, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell,
    Eor the rule, LoRoy Vander Burgh.

      Contra, Aaron L. Simon.

   Pee Cueiam.

The plaintiff, a young woman twenty-four years of age and unmarried, brought this suit to recover compensation for injuries received by her in a collision between a car driven by one Horowitz, in which she was riding, and a car belonging to the defendant, McDonald, and ivhich he was driving. The accident happened in the town of Carlstadt at the intersection of Hackensack street and Hoboken road. The trial resulted in a verdict in favor of the plaintiff, the award to her being $10,000.

The first contention submitted, as a basis for directing a new trial is, that the finding of liability on the part of the defendant was contrary to the great weight of the evidence. Onr examination of the testimony, sent up with the rule, leads us to the conclusion that this contention is without merit.

The only other ground upon which we are asked to set aside the verdict is that it is grossly excessive. Counsel for the defendant devotes about six lines of his brief to the discussion of this contention. It seems from this that he had very little faith in the soundness of it. Leaving that aside, our examination of the testimony with relation to the character and permanency of the injury, which included the destruction of the eyesight of the plaintiff’s left eye and her inability to proceed with the work in which she was engaged before the happening of the accident and the scarring of her face, satisfies us that the award was a reasonable one.

Eor the reasons indicated the rule to show cause will be discharged.


text:
    WILLIAM BUCHAN, PLAINTIFF, v. JOHN CHISMAR, DEFENDANT.
    Decided July 11, 1930.
    Before Gummebe, Chief Justice, and Justice Campbell.
    Eor the rule, John E. Toolan.

    Contra, Thomas Brown.

   Pee Curiam.

The plaintiff brought suit to recover compensation for injuries resulting from a collision between a motorcycle, upon, which he was riding, and the car of the defendant. Tim accident occurred on Grace avenue, in the city of Perth Amboy. The proofs showed that the defendant was returning from church at the time of the accident; that when he-reached a point on Brace avenue, opposite the driveway to his own home, he stopped on the farther side of the road to permit a friend, who was riding with him, to leave the-car; that after his friend had disembarked, the defendant-started his car up to swing across the street into his driveway; that while doing this the plaintiff, who was a policeman in Perth Amboy, and who was riding upon his motorcycle along the street in the same direction in which the-defendant had been traveling, ran into the latter’s car. - The-plaintiff’s claim was that the collision was due to the negligence of the defendant and was not in any degree the result, of negligence on his part. Whether this was the fact depended upon whether the story of the accident told by the-plaintiff was a true description of the conditions under which it occurred, or whether that told by the defendant and his witnesses was true. Evidently the jury believed the-testimony of the defendant’s witnesses, or at least considered that the proofs showed that the accident was due partly to-the negligence of the plaintiff, and having reached this conclusion they rendered the verdict for the defendant the validity of which is now challenged by the plaintiff.

The only ground upon which we are asked to set this-verdict aside is that it is contrary to the weight of the evidence. Our examination of the testimony sent up with the-rule satisfies us that the jury was justified in its finding that, the collision was due in part, if not altogether, to the negligence of the plaintiff, and for this reason we conclude that, the rule to show cause should be discharged.


author: Peb Cueiam.

text:
    STEELMAN HARRIS, Jr., RESPONDENT, v. JOSEPH KLINE, APPELLANT.
    Decided July 11, 1930.
    Before Gummebe, Chibe Justice, and Justice Campbell.
    For the appellant, Douglas V. Aitken.

    For the respondent, Marlin J. Oreenblatt.

   Peb Cueiam.

This was an action for personal injuries. The plaintiff, while driving his car on the main road between Bridgeton and Millville, was run into by a truck belonging to Kline, which was being driven by one Lounsbury. He was an employe of the defendant. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him $684; and from the judgment entered on this award the defendant Kline has. appealed.

The sole ground upon which the appeal is rested is that the trial court erroneously denied the defendant’s motion for a verdict, which motion was rested upon the ground that the uneontroverted proofs in the case showed that the defendant’s truck at the time of its collision with the plaintiff’s car was not being used by the defendant’s servant while engaged in the service of his employer, but solely for his own pleasure.

In the case of Tischler v. Steinholtz, 99 N. J. L. 152, Mr. Justice Trenchard, delivering the opinion of the Court of Errors and Appeals, after stating that proof of the defendants ownership of the car raised a presumption that the employe who was driving it was acting within the scope of his employment, then stated that this presumption might be overcome by uneontradicted proof to the contrary; and if so overcome by uncontradicted proof that the automobile was not being used by the servant within the scope of his employment, then that the motion for the direction of a verdict for the defendant owner should be granted, but that if the evidence is contradictory or reasonably subject to a contradictory interpretation, the question of liability is for the jury. In the present case the testimony of the defendant and of his employe was that the iatter was driving the car for his own pleasure and not on the business of his employer. This testimony was uncontradicted and no attempt was made to impeach the credit of either witness. Consequently, under the doctrine of the cited case, we conclude that the motion for the direction of a verdict should have been granted.

The judgment under review will be reversed.


author: Pee CuniAii.

text:
    KRONSTANTINE CHOJINSKI, RESPONDENT, v. NEW YORK CENTRAL RAILROAD COMPANY, APPELLANT.
    Decided July 11, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell.

      Eor the appellant, Wall, Haight, Carey & Ilartpence.

    For the respondent, Archie Elkins.

   Pee CuniAii.

This suit was brought under the Federal Employers’ Liability act. By it the plaintiff seeks to recover for personal injuries received by him while engaged in interstate commerce in the service of his employer, the defendant railroad company. The proofs showed that the plaintiff was employed to unload a car of wheat at the grain elevator of the defendant company at Weehawken; the car being a part of an interstate shipment. The method of unloading the car was by means of an automatic shovel which was fastened to a rope, the rope passing through a pulley which was located about fourteen inches outside of the door of the car, and operated by an automatic spool attached to a power motor. The apparatus was geared to pull the shovel forward from the farthest corner of the ear to the door, and then the rope was automatically released to permit the pulling of the shovel back to its original position in the far corner of the car. The duty of the plaintiff was to guide the shovel while it was being pulled forward and to pull it back when the machinery released it. This he did by grasping two handles which were on the shovel. While engaged in this work, as the shovel was being pulled forward automatically and was nearing the door, it struck a stick which had been nailed to the floor of the car and which was about two feet long, two inches high, and one inch thick, and as a result thereof the shovel jerked in such a way as to cause the plaintiff to lose his balance. Trying to prevent himself from falling, he grasped the rope, which was dragging the shovel toward the door of the car, and his hand was drawn into the pulley and quite severely injured. The plaintiff’s claim was that the defendant was responsible for this injury, the stick being covered to such a depth by the wheat that it was not visible. The trial resulted in a verdict in favor of the plaintiff, and the appeal is from the judgment entered thereon.

Only one ground of reversal is submitted by the defendant in its brief; namely, that there was error in refusing to grant the motion of the defendant for a nonsuit. There were two grounds upon which the motion was rested.

The first was that the defendant was not required to make such an inspection when the ear was placed for unloading as would reveal the presence of the cleat which was nailed to the floor, and that consequently its failure to make such inspection at that time was no evidence of negligence on its part. In our opinion the motion to direct a verdict upon this ground was properly denied. It is of course true in the present ease that the defendant was not required to make an inspection of the floor of the car when it was placed for unloading, for the proofs showed that when it was so placed it was filled with wheat almost to its top. But as the car belonged to the defendant, it was for the jury to say whether its failure to make a reasonably careful inspection before the ear was loaded for the purpose of ascertaining whether it could be unloaded without danger to the employe engaged in the performance of that duty, constituted actionable negligence on its part.

The second ground upon which the motion was based is that the mere presence of the cleat, one-half inch thick by two inches wide and two feet long, nailed to the floor of the box car, was not evidence of negligence on the part of the defendant even if it was chargeable with knowledge of that fact. It seems to us that this contention is equally without merit. If the defendant permitted this car to be loaded while the strip of wood was nailed to the floor thereof, so that it would be likely to catch the shovel when the car was nearly unloaded, thus jeopardizing the safety of the employe who was engaged in that work, and failed to notify its employe of the danger arising therefrom, it was for the jury to say whether such knowledge, coupled with the defendant’s failure to notify the plaintiff of the presence of the strip, did not constitute negligence on its' part which was a producing cause of the accident.

Eor the reasons indicated, we conclude that the judgment under review should be affirmed.


author: Pee Cubiam.

text:
    GRACE B. WOODRUFF, ADMINISTRATRIX, PLAINTIFF, v. WESTERN UNION TELEGRAPH COMPANY ET AL., DEFENDANTS.
    Decided July 11, 1930.
    Before Gummebb, Chief Justice, and Justice Campbell.
    Eor the rule, Peter Baches and Francis B. Stark (of the New York bar), on the brief.

      Contra, Ward Kremer.

   Pee Cubiam.

The plaintiff, Grace Woodruff, administratrix, &e., was the wife of George Woodruff, whose death occurred on the 4th of July, 1928. He was then a lineman in the employ of the New Jersey Bell Telephone Company. That company, under a contract with the Western Union Telegraph Company, had certain wires strung upon a pole belonging to the latter and which was located at the corner of Asbury avenue and Bond street, in Asbury Park. While attending this pole for the purpose of arranging certain wires of the telephone company, the pole broke owing to its rotten condition, throwing Woodruff to the pavement; and the injuries received by him from the fall were so severe that he died within a few hours afterward. The trial resulted in a verdict in favor of the plaintiff and against the defendant the Western Union Telegraph Company, the amount of the award being $30,000.

The only ground upon which we are asked to set aside this verdict is that it is excessive. Our examination of the proofs taken at the trial leads us to the conclusion that this contention is well founded. The award, however, is not so grossly excessive as to justify a peremptory rule directing a new trial on the question of damages. If the plaintiff will consent to a reduction of the verdict to $25,000, judgment may be entered for that amount. Otherwise a rule absolute will be directed.


text:
    ISABELLE DOWNEY, PLAINTIFF, v. STEPHEN KONRAD, DEFENDANT.
    Decided July 11, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell.
    Eor the rule, Joseph Coult, Jr.

      Contra, James Mercer Davis.

   Per Curiam.

This was an action for personal injuries. The trial resulted in a verdict in favor of the plaintiff; the jury awarding her $1,000. The basis of the present rule is that this award is grossly inadequate.

The injuries received by the plaintiff were the result of a collision between a car in which she was riding and a car belonging to the defendant. The collision npset the car in which the plaintiff was riding, with the result that her right foot and the upper part of her right leg were severely injured. She was taken to the hospital, where she remained for several weeks. Her leg improved very considerably under the treatment, but the uneontradictory testimony shows that her nervous system was quite severely affected; that she has lost some fifteen pounds since the happening of the accident; that although she is now able to walk again without the aid of a crutch or a cane, she is obliged to walk sidewise when coming downstairs; that she walks with a limp which, according to the uneontradieted testimony of the physician, will exist as long as she lives. In view of the seriousness of the injury, and its character, we have reached the conclusion that the award is clearly inadequate and that for this reason a new trial should be directed limited to the question of damages.


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    HAMILTON BROWNLEE, PLAINTIFF, v. FRED B. DECKER ET AL., DEFENDANTS.
    Decided July 15, 1930.
    Before Gummeee, Chtee Justice, and Justice Campbell.
    For the rule, Harry E. Waliurg.

      Contra, Addison P. Rosenkrans.

   Pee Cueiam.

This action was instituted to recover compensation for personal injuries received by the plaintiff as the result of the negligence of the defendants. The jury awarded him $3,500. He claims that this award is grossly inadequate and seeks to have the verdict set aside for that reason and a new trial granted limited to the question of damages only.

; The finding of the jury that the injuries received by the plaintiff were the direct result of negligence on the part of the defendants is not challenged by any action taken by the latter to test the validity of that finding. We are consequently only concerned with the question whether the amount of the jury’s award is plainly inadequate. We think it was. The plaintiff’s right eye was so seriously injured that it had to be removed. The right side of his face over the cheekbone was badly cut. His nose was fractured, the bridge being pushed over to the right side of the face and preventing him from breathing easily through the right nostril. These injuries caused the plaintiff a great deal of pain for a long time, and he still suffers from them to some extent.

The verdict will be set aside .and a new trial ordered; the trial to be limited to the question of damages only.


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    MARIA BURKHARDT, ADMINISTRATRIX AD PROSEQUENDUM, ET AL., PLAINTIFFS, v. EDWARD WHALEN ET AL., DEFENDANTS.
    Decided July 15, 1930.
    Before Gummeke, Chief Justice, and Justice Campbell.
    Eor the rule, George F. Seymour, Jr.

      Contra, David C. Cole.

   Per Curiam.

The plaintiff’s decedent, George Burkhardt, was driving along a public highway in the township of Caldwell, in Essex county, in company with his sister Elizabeth. At the intersection of that road with state highway No. 12, he was run into by a taxicab driven by one of the defendants and owned by the others. George Burkhardt was killed in the collision and his sister was quite seriously injured. The present suit was brought under the Death act to recover compensation for the loss sustained by George Burkhardt’s next of kin resulting from his death, and also for injuries received in the collision by Elizabeth Burkhardt. The trial resulted in verdicts in favor of the plaintiff as administratrix ad prosequendum and in favor of Elizabeth Burkhardt for the injuries suffered by her.

The principal ground upon which we are asked to set aside these verdicts is that the collision was due in part to the negligence of George Burkhardt and not of the driver of the defendants’ taxicab, and that the finding of the jury to the contrary is against the clear weight of the evidence.

If the testimony submitted on the part of the plaintiffs is to be believed, the collision was the result solely of the recklessness of the defendants’ driver; if, on the other hand, the testimony submitted on the part of the defendants truly describes the conditions under which the accident happened, they were not in anywise responsible for the collision. The jury saw and heard the witnesses. They believed the testimony submitted by the plaintiffs. There is nothing in the case to justify the conclusion that they erred in doing so, and we cannot, therefore, say that the verdicts are against the weight of the evidence.

It is further urged as a reason for making the rule absolute, that the verdict is contrary to the charge of the court. It is enough to say in disposing of this contention, that the court properly charged the jury on the questions of liability and damages; and that the verdict was in harmony with those instructions.

Counsel for defendants further argues that the present rule should be made absolute for the reason that the trial judge erred in the charge to the jury with reference to the bearing of the mortality tables on the question of the extent of defendants’ liability for the death of George Burkhardt. Our examination of this portion of the charge leads us to the conclusion that this ground also is without merit.

Lastly, it'is urged that a new trial should be ordered because of the fact, as counsel claims, that the court erred in refusing defendants’ motion to nonsuit and in refusing the motion to direct a verdict. These motions were based upon the theory that there was no evidence of any negligence on the part of the driver of the defendants’ taxicab which was a producing cause of the accident. What has already been stated with relation to the contention that the verdict is contrary to the evidence is dispositive of these two matters.

The rule to show cause will be discharged.


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    SUNOCO SERVICE CORPORATION, RESPONDENT, v. COCHRANE MOTORS, INCORPORATED, ET AL., APPELLANTS.
    Decided July 15, 1930.
    Before Gummebe, Chibe Justice, and Justice Campbell.
    For the appellants, Harvey T. Satterihwaite.

    For the respondent, Joseph J. Felcone.

   Pee Cueiam.

This suit was brought to recover compensation for the breach of a contract entered into by the respective litigants and resulted in a judgment in favor of the plaintiff. The only ground upon which the defendants seek to reverse the judgment is that the trial court erroneously refused to strike out the plaintiff’s complaint upon the motion of defendants’ counsel.

By the terms of the contract between the parties the plaintiff was to do certain concrete work, including curbing and grading upon the premises of the motors corporation for a specified sum, the payment of which was guaranteed by the defendants J. Eoy Martin and Chester W. Martin. The complaint avers default by the Cochrane concern in making a payment due to the plaintiff for work and labor done and materials furnished by it under the contract, and the refusal of the defendants J. Eoy Martin and Chester W. Martin to comply with the terms of their contract to guarantee and make the payment upon which the Cochrane Motors Company had defaulted. Clearly, these averments, if true, disclose liability on the part of the defendants and entitle the plaintiff, in the absence of any defense to the merits being interposed, to a judgment against them.

The judgment under review will be affirmed.


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    FRANCES R. TAYLOR, PLAINTIFF, v. GILBERT ANDERSON, DEFENDANT.
    Decided July 15, 1930.
    Before Gummere, Chief Justice, and Justice Campbell.
    Por the rule, Frederick A. Pope..

      Contra, John F. Reger.

   Per Curiam.

This suit was brought to recover compensation for personal injuries resulting to the plaintiff from an automobile collision. The car in which Miss Taylor, the plaintiff, was riding was being driven by one Davis in a southerly direction along the state highway leading from Somerville to Princeton. As it approached the school house at' South Somerville, the defendant, Anderson, who had parked his car opposite the school, got into it and then started to turn it for the purpose of proceeding in the opposite direction from that in which it was headed when it was parked. As he was making the U-turn, the car in which Miss Taylor was riding and which was traveling on its right side of the road, approached, and Davis, observing the action of Anderson, undertook to swing around behind the latter’s car and thus avoid a collision, this being necessary, as he considered, in order to prevent being struck with the front of the Anderson car which practically blocked the side of the road along which Davis was driving. There, however, was not sufficient room for Davis to pass to the rear of Anderson’s car, and his attempt to do so resulted in a collision. The jury, after a hearing and consideration of the testimony, found a verdict in favor of the plaintiff and awarded her the sum of $3,000 as compensation for her injuries.

The first ground upon which we are asked to set aside the verdict under review is that the negligence of Davis in the driving of his car was the sole cause of the collision. Our examination of the testimony satisfies us that the jury was justified in reaching the opposite conclusion.

It is further contended that the present rule to show cause should be made absolute because the proofs demonstrate that the carelessness of Davis in the driving of his car was at least a contributing cause of the accident. Assuming this to be so, it constitutes no bar to the plaintiff’s right of recovery. Davis was not her employe and she had no control over him in his driving of the car, and, consequently, was not responsible for his carelessness.

The only other ground argued by defendant’s counsel for making the rule absolute is that the verdict is excessive. We think not. The proofs showed that a piece of flesh about the size of a silver dollar was sliced off of the plaintiff’s forehead at the base of the hair line, leaving a raw opening which destroyed the flesh and resulted in a permanent scar at that point. In addition, there was a cut across the bridge of the nose, leaving another scar. Her left eyelid was cut open, necessitating four stitches to be taken in it, and there was a cut on the left side of her face, necessitating a couple of stitches there. The cuts healed in the course of time, but left permanent scars, thus seriously disfiguring the plaintiff’s face. In view of this permanent disfigurement and of the pain and suffering resulting to the plaintiff from the accident, we consider the award moderate.

The rule to show cause will be discharged.


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    AUTOGRAPHIC REGISTER COMPANY, RESPONDENT, v. ALFRED LIRIO, APPELLANT.
    Decided July 15, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell.
    Eor the appellant, Charles P. Brewer and LeBoy W. Loder.

    Eor the respondent, Edwin F. Miller.

   Pee Cueiam.

The plaintiff sued to recover the price of certain registering machines manufactured by it and sold and delivered to the defendant. The latter claimed in his answer that by the terms of the sale the plaintiff was to set up the machines in the defendant’s shop and adjust them so that they would work properly before the purchase price should become due; and that the plaintiff had not performed this agreement. The case being at issue, it was regularly set down for trial. When it was called, counsel for the defendant moved for a postponement upon the ground that his client was quite sick arid unable to be in court. In support of his statement he produced what purported to be a doctor’s certificate. He did not, however, submit any affidavit either of the doctor or of anyone else supporting his claim that his client was ill. The application for postponement was opposed, plaintiff’s counsel stating that he had a number of witnesses from New York and Philadelphia who were present to testify, and for that reason he could not consent to the adjournment asked for. The court then inquired of counsel for the defendant if he had an affidavit to support the doctor’s certificate. He said that he had not. It appeared that he knew several days before the case was moved that it had been set down for trial on the day when it was called, and that he had asked counsel for the plaintiff whether he would consent to postpone the trial. This counsel for the plaintiff refused to do. In view of the situation we have outlined, the trial court refused to grant the application for the postponement and the case was then tried ex parie, the jury rendering a. verdict in favor of the plaintiff.

The present appeal is based upon a contention that the trial court abused its discretion in refusing to postpone the' trial so as to permit the defendant later to appear and defend! the suit. In our opinion the action of the trial court in refusing the application for a postponement was eminently proper under the circumstances above outlined, and that, consequently, there is no valid ground for the present appeal-

The judgment under review will be affirmed.


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    LILLIAN BENEDETTO ET AL., RESPONDENTS, v. EDWARD F. FLECKENSTEIN ET AL., APPELLANTS.
    Decided July 15, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell.
    Eor the appellants, M. Qasewell Heine.

    Eor the respondents, Julius A. Kepsel.

   Pee Cueiam.

This suit was brought to recover compensation for injuries received by Lillian Benedetto, an infant, in a collision between the car in which she was riding and an automobile belonging to the defendants. Her father also joined in the suit to recover compensation for the expenses to which he was put by reason of the child’s injuries. The suit was brought in 1927. No answer was filed by the defendants, and in June, 1929, an interlocutory judgment by default was entered. Damages were assessed by a jury drawn from the general panel, and judgment final was entered upon the jury’s award. In September of that year an application was made by the defendants for a rule to show cause why the judgment should not be set aside and the defendants allowed' to file an answer. The hearing of the rule resulted in its discharge, and the defendants thereupon appealed from the judgment, the only ground upon which the appeal is based being that the refusal of the trial judge to open the judgment and grant the defendants a trial on the merits, was an abuse of judicial discretion.

The general rule relating to a situation like the present, is stated by the Court of Errors and Appeals in Assets Development Co. v. Wall, 97 N. J. L. 470, viz., that an application to open a judgment regularly entered is addressed wholly to the discretion of the court in which it was rendered, and that, consequently, a writ of error will not lie to review the determination of that court. Assuming that this doctrine does not apply where it is manifest that the discretion of the court has been abused, we find nothing in the present case which is even suggestive of the existence of such a condition.

We conclude, therefore, that the judgment under review should be affirmed.


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    CARL DAVIS, PLAINTIFF, v. PURITY BAKERIES CORPORATION, DEFENDANT.
    Decided July 15, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell.
    For the rule, William K. Flanagan.

      Contra, John F. Ryan.

   Pee Cueiam.

This suit was brought to recover compensation for injuries received by the plaintiff, in a collision between a car in which he was riding and a truck belonging to the defendant corporation, and driven by its employe. The accident happened at the intersection of Park avenue and Fifteenth street in the city of East Orange, shortly after seven o’clock in the morning of December 20th, 1927. The automobile in which the plaintiff was riding was being driven by one McCarthy. Both the plaintiff and the driver were employed in Dietz’s butcher shop in Belleville, and were on their way to that place when the collision occurred. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him $12,500.

We are asked to set this verdict aside—first, because it is contrary to the weight of the evidence;. secondly, because it is excessive.

Our consideration of the testimony satisfies us that the collision was due in large part, if not altogether, to the carelessness of the driver of the defendant corporation. But, assuming that McCarthy was partially to blame for the condition, that fact does not relieve the defendant from responsibility to the plaintiff for the injuries received by him, for he cannot be charged with the negligence of the driver of the car in which he wa.s riding, unless he had control over him or they were engaged in a joint enterprise. Neither of these factors was present in the case now under consideration. It is suggested by counsel for the defendant that the plaintiff himself was guilty of negligence contributing to the accident. We find nothing in the evidence which justifies this contention.

The only other ground upon which a new trial is urged is that the verdict is excessive. We do not consider it to be so. Both legs of the plaintiff were -broken; he suffered lacerations and bruises about his head and body; there was a comminuted fracture of the large bone of the left leg, just above the ankle joint, and a dislocation of that joint, which has resulted in a shortening of the leg about a quarter of an inch, causing him to walk with a limp. Before the accident he was in fine physical condition and was earning $50 a week. Since the accident which, as has already been stated, occurred on the 20th of December, 1927, up to the date of the trial on the 19th of July, 1929, he was practically unable to do work of any kind. His physical condition still makes it impossible for him to earn anything like the amount of money which he did before the accident; and it is at least doubtful whether he will ever be able to do so in the future.

The rule to show cause will be discharged.


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    THE PLAINFIELD TRUST COMPANY, AS SUBSTITUTIONARY ADMINISTRATOR WITH THE WILL ANNEXED OF THE ESTATE OF ALBERTINA T. RUSSELL, DECEASED, PROSECUTOR, v. JOHN McCUTCHEON, AS COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, AND ALBERT C. MIDDLETON, AS TREASURER OF THE STATE OF NEW JERSEY, RESPONDENTS.
    Argued May 7, 1930
    Decided July 16, 1930.
    Before Justices Paekek, Campbell and Bodine.
    Por the prosecutor, Walter E. Cooper.

    Por the respondents, William A. Stevens and William A. Moore.

   Per Curiam.

This is a review of a transfer inheritance tax assessment made by the comptroller. Mrs. Albertina T. Russell, late of Princeton, New Jersey, March 10th, 1916, created four separate trusts for the benefit of each of her children. Prom her separate property she transferred to herself and her husband, the late Archibald D. Russell, as trustees, certain stocks and bonds. Each instrument is in similar form and provides for the payment of the income from securities set apart to each of the children during the lifetime of two of the other children with remainders over unless sooner terminated. The settler’s thought is apparent. She sought to provide an income for each child, but nevertheless retained the purse strings.

The third paragraph of each of the instruments, so far as pertinent, is as follows: “Notwithstanding any of the provisions to the contrary, * * * the trustees herein named or the survivor of them [Mrs. Russell and her husband], whether serving along or otherwise [but not any succeeding trustee appointed as herein authorized] are authorized and empowered at any time after the execution of this agreement, by instrument in writing duly signed and acknowledged by said trustees or the survivor of them, to direct the distribution of said trust estate and any part or parts thereof * * * to and among the issue then living of the grantor and the husbands and wives then living of any issue and to and among any other person or persons or corporations whatsoever

It is apparent from this clause that the power of Mrs. Russell and her husband, or the survivor of them, to absolutely defeat the interest of the beneficiaries named existed. True, neither of them could retake in their own hands the funds set apart but both were very rich. The deed enabled the parents, or the survivor, to bring absolute financial pressure upon their children. They, or the survivor, had the same control over the funds as though no settlements whatsoever had been made except in this, that neither could personally absorb the fund. Mrs. Russell died February 11th, 1918; her husband November 29th, 1919.

The stipulation of facts states that the tax was imposed “on the ground that the decedent had transferred and conveyed the res during her lifetime to take effect in possession and enjoyment after her death, and not on the ground that the said transfers were made in contemplation of death.”

A power reserved to revoke, alter or amend a declaration of trust is sufficient to make the transfer one intended to take effect in possession or enjoyment at or after death within the purview of the Transfer Inheritance Tax law. In re Fosdick Estates, 139 Atl. Rep. 318; 6 N. J. Adv. R. 28.

“An outstanding power residing exclusively in a donor to recall a gift after it is made a limitation on the gift which makes it incomplete as to the donor as well as to the donee, and we think that the termination of such a power at death may also be the appropriate subject of a tax upon transfers.” Chase National Bank v. United States, 278 U. S. 327, 336.

“So long as the privilege of succession has not been fully exercised it may be reached by the tax. See Cahen v. Brewster, 203 U. S. 543; Orr v. Gilman, 183 Id. 278; Chanler v. Kelsey, 205 Id. 466; Moffilt v. Kelly, 218 Id. 400; Nicke v. Cole, 256 Id. 222. And in determining whether it has bet'll so exercised technical distinctions between vested remainders and other interests are of little avail, for the shifting of the economic benefits and burdens of property, which is the subject of a succession tax, may even in the case of a vested remainder be restricted or suspended by other legal devices. A power of appointment reserved by the donor leaves the transfer, as to him, incomplete and subject to tax. Bullen v. Wisconsin, 240 Id. 625. The beneficiary’s acquisition of the property is equally incomplete whether the power be reserved to the donor or another.” Saltonstall v. Saltonstall, 276 Id. 260.

It is urged that no power of revocation being reserved that the power in trust to revoke in the case sub judice stands on a different footing and does not operate so as to make the transfer one intended to take effect at death. This seems a distinction without a difference. The settler was Mrs. Russell. The trustees were Mr. and Mrs. Russell. The power to strip the life tenant and the remaindermen of all right and to choose a new object of their bounty ran to the trustees, or to the survivor.

Yice-Chancellor Buchanan said, with clarity, In re Fosdick Estates, 6 N. J. Adv. R. 28: “It is true that there is an actual transfer of the legal title to the trustee, and of some-equitable interest to the equitable donee at the time of the-delivery of the trust deed. But that equitable interest of thedonee is not an absolute interest. It is defeasible at any moment the donor decides to revoke. The situation is perhaps a little clearer—though the principle is of course the-same—if we suppose the interest of the equitable donee to-be a term for years instead of a life estate. The present value of an interest consisting of the absolute right to the-income from a fund for fifty years would be susceptible of fairly easy calculation and ascertainment. But what value (other than the income already accrued) would there be to-such an equitable term for years, if it was subject to termination at any moment? Looking at it from the opposite-standpoint, the interest of the donor in the trust fund, in view of this right to revoke, is not a mere equitable remainder after the' equitable life estate. It is that plus a. right to repossess and own and enjoy, absolutely, the entire-fund at any moment he chooses. The value of such a right is obviously practically the same as the value of the trust fund; and the value of the defeasible life estate is little or nothing, until the termination of the right to revoke, by and at the death of the donor. At that time, and not before, does the life tenant come into possession and enjoyment of the absolute right, which is the thing of real value.” ’

Obviously, no permanent right accrued to the life tenant,, or the remaindermen, until after the death of the settler and her husband. The mere fact that the settler could not retake made the interest of the beneficiary no more secure.. In fact, the beneficiaries had no security until after the death of both parents. The case is obviously different from Reinecke v. Trust Co., 278 U. S. 339, where the beneficiary must consent to the revocation. The mere naming of two-trustees did not enlarge the rights of the beneficiaries.

Nothing vested in permanent enjoyment until after the death of Mrs. Russell. True, she could not retake either principal or income for her own benefit, but she could grant both principal and income to any one she chose, if her husband acquiesced, so that in no sense was there a transfer until after her death. Saltonstall v. Saltonstall, 276 U. S. 260; New England Trust Co. v. Abbott, 205 Mass. 279.

Further, though the transfer of permanent enjoyment was not effected until after the death of Mr. Russell the situation is precisely the same as though the transfer occurred at Mrs. Russell’s death. The taxing statute is levied upon transactions to take effect at or after the death of the transferor. No part of Mrs. Russell’s property passed to the beneficiaries named in the trusts save the income they were permitted to take until after her death, and that is the test of taxability.

In view of a number of eases in this state, notably Carter v. Bugbee, 91 N. J. L. 438; affirmed, 92 Id. 390, and Farmers Loan and Trust Co. v. Bugbee, 6 N. J. Mis. R. 415, we think it unnecessary to consider the prosecutor’s arguments that the Transfer Inheritance Tax act contravenes the constitutions of this state or the United States.

The tax as levied will be affirmed.