text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    STEWART CORIELL, PETITIONER, v. MADELYN WILSON VETTER (MRS. JOHN VETTER), AND MR. JOHN VETTER, HER HUSBAND, RESPONDENTS.
    Injury to Farm Employe — Farm was “Worked on Shares” and Respondents Were Owners — Evidence, However, Showed That the Owners Exercised Much Control Over the Management of the Farm, Hiring Employes (Among Them, Hired by Respondents, was Petitioner Himself) and Directing Their Movements — Held Liable for Injury.
    On determination and order of award.
    For the petitioner, Theodore Strong & Son.

    Eor the respondents, James J. Curran.

   This is a workmen’s compensation case heard at New Brunswick, New Jersey, May 18th, 1927, in the presence of the petitioner, both respondents and their respective counsel. The petitioner was injured November 12th, 1926, at about four-thirty o’clock in the afternoon on the one hundred and sixty-seven-acre farm admittedly owned by the respondent Mrs. Yetter, where he was employed as a farm hand.

Petitioner was carting apples. A lurch of the wagon he was driving threw him to the ground and a wheel passed over his right foot, fracturing the base of the fifth metatarsal. There was no question hut that the injury arose out of and in the course of his employment, hut it was contended by the respondents that the employer was one Frank Ayres, a man of no financial responsibility, and who was paid but $18 by the Vetters for managing the farm in question for nearly three months "on shares.”

Mrs. Vetter’s testimony shows that she left in her husband’s hands the handling of all affairs pertaining to the operation of the farm. It appears that Mr. Yetter exercised a very considerable control of who was to he hired, the amount of wages to he paid and to some extent the conduct of the work.

Mrs. Vetter, therefore, was not a silent partner in the arrangement under which the farm was to be worked upon shares. Moreover, Mr. Vetter paid the petitioner and the other employes with Mrs. Vetter’s checks, or the proceeds of her checks, the signature of Mrs. Vetter being first specifically exhibited to them. This alone would stamp the transaction as one for the benefit of Mrs. Vetter, with her husband acting as her agent. Otmer v. Perry, 94 N. J. L. 75. That Mr. Vetter exercised a very considerable control over the performance of the labor is evidenced by his having ordered petitioner to bring in the particular load of apples he was carting when injured, and that, too, after petitioner had informed him that he was quitting that work for the afternoon-to prepare for the milking and other chores. The husband exercising this control over the property of the wife, and in no third person’s employ, is presumed to act as her agent.

Similarly it was developed that Vetter, in his real estate office in New Brunswick, had hired petitioner and had fixed the amount of his wages.

Respondents maintained that petitioner was intoxicated and as a result received the injuries of which he complains, but the evidence is far from convincing that such was petitioner’s state. Vetter’s own testimony that he personally saw to it that petitioner brought in this load of apples, negatives this contention.

Petitioner, a man seventy-two years of age, was confined in a hospital from November 14th, 1926, to December 23d, 1926, and owing to his injury was unable to work until March 14th, 1927. He spent the time between his discharge from the hospital until shortly before his return to work in the county poor house.

His wages were $15 a month plus board and lodging. I will direct that, respondent Mrs. Vetter pay him compensation at the rate of $8 per week for twenty weeks; that since his need of medical service was known and not provided, but was procured by petitioner, she pay his hospital bill of $130 and doctor’s bill of $45, also a fee of $125 to his counsel.

W. E. Stubbs, Deputy Commissioner.


source: Caselaw Access Project

author: Charles E. Corbin, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MICHAEL MARTIN, PETITIONER, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, A CORPORATION (IMPLEADED AS PUBLIC SERVICE GAS COMPANY), RESPONDENT.
    Fracture of Foot Bone — Temporary Compensation Paid — Permanent Injury Claimed — Petitioner Returned to His Employment at Same Compensation Paid Before Accident — Evidence Showed That There was or Would be No Permanent Injury — Case Dismissed.
    On determination and order for dismissal.
    For the petitioner, Samuel Greenstone.

    For the respondent, James O. Boyd.

   >;<

From the evidence and stipulation it appears that the petitioner met with an accident arising out of and in the course of his employment with the respondent on July 11th, 1925.

His weekly wages were $29.70 a week.

As a result of the said accident the petitioner sustained an oblique fracture of the first metatarsus bone of the right foot.

The respondent paid the petitioner as temporary disability $162.71, which it was stipulated was all the temporary disability to which the petitioner was entitled.

The only question at issue in the case was whether or not any permanent disability resulted from the aforesaid injury.

The petitioner testified that he is still working for the same company, and that his work now is flagging automobiles to keep them from running into obstructions in and around the work that the company is doing; that his wages prior to the accident were $4.95 a day, and that his wages now are the same — $4.95 a day; that he does shoveling work and other things, but that his foot pains him after he returns home in the evening. The petitioner put one doctor on the stand who testified that in his opinion there was a permanent disability of fifteen per cent, loss of function of the right foot. He also admitted that the petitioner has sustained a remarkable result, and that there was good apposition of- the fragments of -the fracture — that they were firmly united, and that from the X-ray no permanent disability could be determined. The respondent produced three doctors who testified that there was no permanent disability as a result of the accident; that the X-ray indicated that there had been a firm union of the fracture, and that the petitioner should be able to do his regular work. It is my opinion, based on the evidence and the stipulations, that the petitioner is not suffering any permanent disability as a result of his accident of July 11th, 1925, and inasmuch as the petitioner and respondent stipulated that the petitioner was paid all the temporary disability to which he was entitled, the petition therefore should be dismissed.

It is therefore, on this 25th day of July, 1921, ordered that judgment final be entered in favor of the respondent and against the petitioner, and that the prayer of the petitioner be denied, and the petition dismissed.

Charles E. Corbin, Deputy Commissioner.


author: Per Curiam.

text:
    WARREN B. HUTCHINSON, RELATOR, v. JOSEPH McDERMOTT, CLERIC OF THE COUNTY OF MONMOUTH, RESPONDENT.
    Argued October 4, 1927
    Decided October 7, 1927.
    Elections — Filling Vacancies Among Candidates — Section 20 of Election Act is Only Applicable to Party Candidates Nominated by Petition to Run in Primaries for the Party Nomination — Since Relator Never Became a Candidate of the Party Now Proposing to Fill the Alleged Vacancy, and Since There was No Vacancy of a Candidate of That Party, the Writ Must be Denied.
    On application for m,andam,us.

    Before Justices Tbenohabd, Kaeisch: and Katzenbach.
    For the relator, Fred M. Burlew and Ward Kremer.

    For the respondent, Applegate, Stevens & Foster, Leonard <£- Eeussille.

   Per Curiam.

We are unanimously of the opinion that the relator is not entitled to the remedy he seeks.

The procedure outlined in section 20 of Pamph. L. 1922, p. 443 (upon which relator relies), for the filling of vacancies among primary election nominees, is only applicable to party candidates nominated by petition to run in the primaries for the party nomination. It provides for the filing of a certificate by the chairman and secretary of the state, county or municipal committee as the case may be, setting forth the cause of vacancy of a candidate nominated, the name of the person nominated and that he is a member of the same political party as the candidate for whom he is substituted, the office, and such further information as is required to be given in any original petition of nomination. It is thus seen that this section of the law clearly limits the right of the party organizations to fill a vacancy or vacancies of their candidates who preceding running in the party primary, filed their acceptances, and consented to stand as a candidate or candidates.

Since the relator never became a candidate of the party now proposing to fill the alleged vacancy, and since there was no vacancy of a candidate of that party, the peremptory writ sought in these proceedings must be denied and the rule to show cause discharged.


text:
    MINNIE PASHAYAN AND GEORGE PASHAYAN v. PETER KAZANJY.
    Argued May term, 1927
    Decided October 5, 1927.
    Assault and Battery — Attempted Rape — Verdict Held Not Excessive — Punitive Damages Were Warranted — Not Possible to Say That Award was Result of Passion or Prejudice.
    On rule to show cause, Bergen Circuit.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Butler & Butler.

    Contra, Levenson, Comen & Levenson.

   Per Curiam.

The case was tried before the court and a jury in the Bergen Circuit, and a verdict was rendered for the husband for one dollar, and for the wife, Minnie, for $1,000.

The action was brought for assault and battery with intent to rape the plaintiff wife.

The plaintiff’s evidence was that defendant entered her apartment at seven a. m. while the husband was at work, and attempted against her will to have intercourse with her, and that the struggle lasted five or six minutes.

The defendant denied the charge and assigned as a reason of motive for it the alleged fact that the plaintiff wife had threatened to get “even” with him, because he had refused her a loan of $100 with which to pay a physician for a miscarriage.

The first reason urged for the rule is that the verdict is against the weight of the evidence. This, we think, is without merit.

The next reason urged'is that the verdict is excessive. The case shows that the plaintiff, while not bruised or hurt, was made ill from nervousness resulting from the assault upon her, and consulted a doctor twice, and that in the assault her night dress was torn.

If the jury believed her testimony they were warranted in awarding punitive damages, and with that purpose in view we cannot say from the amount awarded that they were influenced by passion or prejudice, which is the determining factor in such cases.

We think the rule should be discharged.


text:
    ADRIAN CORNELLISSEE, PLAINTIFF-APPELLEE, v. JOSEPH RUST, EDWARD ALLESSO, DEFENDANTS, AND PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Argued May term, 1927
    Decided October 5, 1927.
    Negligence — Motor Vehicle Injured as Result of a Collision Between Garbage Truck and Trolley Car — Nonsuit as to Drivers of Garbage Truck — There was Evidence That There was Negligence on Part of Driver of Trolley Car — Judgment for Plaintiff Affirmed.
    On appeal from the Passaic District Court.
    Before Justices Parkeb, Mintubn and Campbell.

      Eor the appellant, Joseph Goudi.

    For the plaintiff-appellee, Joseph B. Btadlman.

   Per Curiam.

A judgment for the plaintiff for $350 was rendered in Passaic District Court without a jury.

The action was instituted to recover the amount of damages sustained by the plaintiff’s auto while the same was parked at the curb, the auto being injured by reason of a collision between defendant’s trolley car and a garbage truck. The owner and the driver of the garbage truck were joined as defendants, but a nonsuit was allowed as to them, and the suit proceeded against the railway company.

The defendant’s three points hinge on the contention that there was no proof of negligence as against the defendant company.

The defendant’s case‘was that the garbage truck was stopped diagonally in the street away from the car tracks; that as the car approached the truck it started suddenly, and ran into the trolley car, thus causing the damage.

There was, however, also evidence that the garbage truck had proceeded slowly to a point alongside the parked auto, so that the seats of the two vehicles were abreast of each other when the trollej'' car struck the garbage truck, and forced it into the parked car, thus causing the damage.

The photographs offered in evidence showed the parked car of the plaintiff damaged in the front and on the side, but not in the rear. We think that situation presented a question of fact which was within the province of the court, sitting as a jury, to determine, and there being a reasonable basis of fact to support the judgment we will not disturb it.

The judgment will be affirmed.


text:
    J. K. LARKIN & COMPANY, INCORPORATED, APPELLANT, v. JAMES B. MURPHY, APPELLEE.
    Submitted May 13, 1927
    Decided October 4, 1927.
    Contracts — Employment—Suit for Money Advanced Employe, a Salesman — Set-off for Wages — Memorandum of Indebtedness Made by Employe Basis of the Action — Memorandum Held Not to be a Contract — Set-off Allowed by the Jury— No Injurious Error in Allowing Subscribing Witness to be Cross-examined Regarding His Knowledge of Plaintiff's Business, Since He was Immediately Called as Defendant’s Witness — Judgment Affirmed.
    On plaintiff’s appeal from the District Court.
    Before Justices Parker, Minturn and Campbell.
    Eor the appellant, James P. Mylod.

    Eor the appellee, Sidney W. Pldridge.

   Per Curiam.

We find only one ruling of the trial court brought before us in such wise as to be entitled to examination on the merits, and that is the refusal to nonsuit on the counter-claim. The other “specifications” are either general, i. e., they do not specify (Nos. 1, 2, 3, 4) or point to no judicial action whatever (No. 6).

The first specification, that the court allowed the witness Hays to be cross-examined over objection regarding his knowledge of the custom of plaintiff’s business, is technically faulty, but we have examined the point on its merits. Hays was called by plaintiff as subscribing witness to a document. It was, of course, technical error to permit cross-examination outside of that point; but, practically, it was harmless, as a moment later defendant made Hays his own witness, and whether he was testifying on direct or cross meant nothing to the jury under the circumstances.

As to the refusal to nonsuit: Murphy had been in the employ of Larkin company and resigned March 31st, to take effect May 1st. The company discharged him as of March 31st. It was open to the jury to find that he was employed by the month, and hence entitled to a month’s notice, which was not given. Beach v. Mullin, 34 N. J. L. 343. Plaintiff had advanced Murphy moneys aggregating $266.66, and when he resigned exacted of him an I O U in the following language:

“March 31st, 1925.

“My resignation as salesman with J. K. Larkin & Co., Inc., 253 Broadway, New York City, has been accepted by them to-day and effective to-day.

“This is to state that I owe J. K. Larkin & Co., Inc., New York, the sum of $266.'66. This amount is due to $100 loaned me by the company quite some time ago, and $166.66 for advanced salary made by Mr. Brodhead, former treasurer of J. K. Larkin & Co., Inc.

“There are no legal defenses in the above amount of $266.66.

“James B. Murphy.

“Witness:

“Wm. C. Hays,

“Vice-President, J. K. Larkin & Co., Inc."

This paper was the basis of the plaintiff’s suit. Murphy filed a set-off for two weeks’ wages, amounting to $166.66, which the jury allowed, and awarded plaintiff the balance of $100.

It is argued that this paper is a contract. It is not; it is an admission of indebtedness but not conclusive, and subject to attack by parol testimony like a receipt, or a promissory note as between the parties maker and payee.

It is further argued that there was no consideration for the agreement alleged by Murphy in his testimony, that plaintiff promised him half a month’s wages in view of his quitting at once. But if Murphy was entitled to a month’s notice, or even if there was a fair question whether he was so entitled, the settlement of that was a legal consideration.

We find no injurious error properly assigned, and conclude that the judgment should be affirmed.


text:
    THE MODEL PLAN FINANCE CORPORATION, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. JOHN DEMPSEY, DEFENDANT-APPELLEE.
    Submitted May 13, 1927
    Decided October 4, 1927.
    Contracts — Check Given in Part Payment for Land — Payment Stopped on Check and Vendors Then Sold Land to Another —Check Long After Sale was Assigned to Plaintiff, who Now Brings Suit — Held, Mutual Rescission of Contract — If There Had Been a Consideration for the Check it Had Failed Long Before Plaintiff Acquired the Check by Assignment
    On plaintiff’s appeal from the District Court.
    Before Justices Pakkee, Mintubn and Campbell.
    Por the plaintiff-appellant, Corn & Silverman.

    Por the defendant-appellee, Benjamin S. Appel.

   Per Curiam.

The state of the case as made up by the trial judge is very short, and reads as follows:

“The case was tried before me, without a jury, on December 17th, 1926. The plaintiff sues as assignee of the State Land Company to recover on a check made by defendant, dated October 3d, 1925, drawn on the Springfield Avenue Trust Company to the order of the State Land Company, by John Dempsey for $300. The check was assigned long after maturity to the plaintiff. The defendant gave the check to the State Land Company as a deposit upon a contract for the purchase by him from the State Land Company of certain real estate. Within a day or two after making the contract and giving the cheek, the defendant stopped payment on the check at the bank. The said land company thereupon sold the land which it had agreed to convey to the defendant to another person for a greater price than it had agreed to convey the land for to the defendant.

“Suit upon the cheek was not begun until more than a year after the check was given. The plaintiff is not a holder for value of the cheek, but is mere assignee.

“In my opinion the acts of the parties to the contract for the sale of real estate constituted a mutual rescission of the contract.

“Judgment was given for the defendant.”

The argument for appellant proceeds upon the lines that the facts did not support a finding of mutual rescission, and that even conceding that they did support such finding, the defense of rescission was not specified in response to a demand, and hence was not tenable at the trial.

Conceding these matters for the sake of argument, we, nevertheless, think that the judgment was right. The fourth specification of defense was that there was no consideration for the check. This is broad enough to cover the defense that if there had been a consideration for the check it had failed long before plaintiff acquired such check by assignment; and that seems to have been the situation. Defendant repudiated the check and plaintiff’s assignor resold the property. If the vendor had held the property available, the situation would have been similar to that in Steinbach v. Pettingill, 67 N. J. L. 36. In that case, it is true, the deposit was made in money; but if it had been a check, vendor would have been entitled to recover on it; such is the clear implication in Thompson v. Kilheffer, 99 Id. 439.

The vendor, however, resold, and, so far as appears, without making any tender of a deed or demand on defendant to complete his purchase. The resale seems to have been made promptly, as the word used is “thereupon,” i. <?., upon the stoppage of payment. As the resale was for a larger sum, it is fair to infer that a second purchase was already in sight. Be this as it may, the court, having the evidence before it, found as a fact that there had been a mutual rescission, or, to put it in another way, that the vendor had abandoned the contract as well as the defendant, and in that posture of affairs the consideration for the check failed, and the fourth specification becomes available.

Whether in the absence of such a finding the vendor would be entitled to recover on the check is a matter on which the authorities are apparently not in accord, and which it is unnecessary to decide. See 27 R. C. L. 612, § 366; 624, § 378; Pierce v. Staub (Conn.), 62 Atl. Rep. 760; Sanders v. Brock (Pa.), 79 Id. 772; Portner v. Tanner, 216 Pac. Rep. 1069; 30 A. L. R. 624. But on the express finding of a mutual rescission, to which failure of the consideration is a corollary, we conclude to affirm the judgment.


text:
    ARTHUR T. DEAR, PLAINTIFF-APPELLANT, v. OSCAR MEIROWSKY, DEFENDANT-APPELLEE.
    Argued May term, 1927
    Decided October 5, 1927.
    Negotiable Instruments — Promissory Notes — Plaintiff was an Accommodation Endorser, Along With Defendant, on a Note of a Corporation of Which Defendant was President — Corporation was Insolvent and Plaintiff Paid the Note, Receiving Nothing From Claim Filed With Receiver — Plaintiff Now Contends That Judgment Should Have Been in His Favor for Full Amount Instead of a Reduced Sum in Contribution — Held, That There was Evidence That the Plaintiff Accommodated the Corporation, Not the Defendant Individually.
    On appeal from the First District Court of Jersey City.
    Before Justices Parker, Minturn and Campbell.

      Pro se, Arthur T. Dear.

    For the defendant-appellee, William T. Cahill.

   Per Curiam.

The case was tried by the First District Court of Jersey City, without a jury, and a judgment given for the plaintiff for $161.25.

The plaintiff, at the request of the defendant, became accommodation endorser upon a promissory note as follows:

“750.00. Jersey City, N. J., September 19th, 1924.

Three months after date we promise to pay to the order of Emil Schauble seven hundred and fifty dollars at the First National Bank, Jersey City, N. J. Value received.

MEIROWSKY BROTHERS, INC.,

O. Meirowsky, President.

The endorsements were as follows:

Arthur T. Dear,

O. Meirowsky,

Emil Sohauble.”

A payment in reduction of the note was subsequently made, and a renewal note given for the balance; the renewal note bore same personal endorsements as the original note, with the exception that the corporation signature was made by the defendant as president, and the plaintiff as treasurer, the plaintiff having acquired an interest in the corporation since the issuance of the first note.

On the due date, the company being insolvent, the plaintiff paid the note and filed a claim against the company with its receiver, but received nothing upon his claim because of a lack of assets for the purpose.

The plaintiff’s contention here is that the judgment should have been in his favor for the full amount of the note instead of a reduced sum in contribution.

We think there was ample evidence justifying the finding as a fact that the plaintiff accommodated the corporation at the instance of its president, this defendant, and that, therefore, the accommodation was not extended to the defendant individually.

The judgment will therefore be affirmed.


text:
    NEW JERSEY PHOTO-ENGRAVING COMPANY, A CORPORATION, PLAINTIFF-APPELLEE, v. JOHN VENEZIA, TRADING, ETC., DEFENDANT-APPELLANT.
    Argued May term, 1927
    Decided October 5, 1927.
    Agency — Goods Sold and Delivered — Agency Disputed by Defendant — Held, Where Goods are Bought by a Person Claiming to Have Authority to Order From the Plaintiff, and are Shipped to the Plaintiff in Cases Plainly Marked With His Address, and Bills and Demands are Sent to the Defendant to Which No Reply is Made, it is for the Jury to Judge of the Circumstances — Judgment for Plaintiff Affirmed
    On appeal from the Perth Amboy District Court.
    Before Justices Parker, Minturn and Campbell.
    Eor the defendant-appellant, Jacob B. Joselson.

    For the plaintiff-appellee, Karhus & Karhus.

   Per Curiam.

The action was brought in the Perth Amboy District Court, and was tried without a jury, and judgment was rendered for the plaintiff for $122.60.

The state of demand was on a book account, but was amended for goods sold and delivered.

The plaintiff’s evidence was that the goods were ordered and taken away by one Brower, and charged to the defendant on plaintiff’s books at Brower’s direction. That thereafter hills were sent to the defendant and never returned, objected to, or paid. That a few days before the trial some of the goods in question were bought from the defendant at the latter’s place of business.

The defendant’s evidence was that he bought the goods from Brower as principal, and paid him therefor; that he returned the bills sent to him by the plaintiff.

The defendant’s appeal is rested upon the contention that there was no evidence of agency. We think there was sufficient in the facts and circumstances to present a jury question. It has been held that “where goods are bought by a person claiming to have authority to order from the plaintiff, and are shipped by the plaintiff in cases plainly marked with his address, and bills and demands are sent to the defendant to which no reply is made, it is for the jury to judge of the circumstances.” Sturtevant v. Wallack, 141 Mass. 119; 4 N. E. Rep. 615. ■

The judgment will therefore be affirmed.


text:
    ELIZABETH ANDERSON AND WILLIAM H. ANDERSON, PLAINTIFFS, v. JOSEPH W. MITTUCH, DEFENDANT. GEORGE BOGGS, Jr., PLAINTIFF, v. JOSEPH W. MITTUCH, DEFENDANT.
    Submitted May 13, 1927
    Decided October 4, 1927.
    Negligence — Damages Alleged to Be Excessive — Verdict for Wife Reduced, for Husband Sustained.
    On rule to show cause.
    Before Justices Paekeb, Mintubn and Campbell.
    Eor the plaintiffs, Marie Townsend, Jr.

    For the defendant, Frank G. Turner.

   Per Curiam.

The sole ground urged for a new trial in these two cases is that the damages are excessive.

The award to William H. Anderson for damages per quod is not questioned.

His wife had a verdict of $2,800 for two broken ribs, which healed in due course, and for nervous shock. Without going into further detail, we conclude that this verdict is excessive and should not have been over $2,000. If the plaintiff concerned will consent to a reduction of the verdict to the latter amount the rule will he discharged, otherwise it will he made absolute.

The plaintiff, Boggs, had a verdict of $3,000. His arm was dislocated at the elbow, involving serious injury directly to the ulnar nerve involving material loss of function. It was the left arm, hut was used in typewriting and in driving a car. As he is a business man and travels much the loss of function is important. Taking all this in connection with pain and suffering, &c., we are unable to say that the verdict as to Boggs is excessive; so that in this aspect the rule will be discharged.


text:
    STELLA SUDOL, BY HER NEXT FRIEND JOHN SUDOL, AND JOHN SUDOL, INDIVIDUALLY, v. MAX GURTMAN AND IDA GURTMAN.
    Argued May term, 1927
    Decided October 5, 1927.
    Negligence — Injury to Girl by Fall of a Contractor’s Ladder on a Sidewalk Which was Being Used in Making Repairs— Held, That There was Evidence of Negligence Sufficient to Let Case go to Jury.
    On appeal from the Passaic District Court.
    Before Justices Pakkeb, Minturv and Campbell.
    Eor the defendants-appellants, Gurtman & Walker (Nicholas O. Beery, of counsel).
    Eor the plaintiffs-appellees, Feder liinzler.

   Per Curiam.

The Case was tried by the court without a jury, and judgment was rendered fox the plaintiff infant for $350 against both defendants.

The action was brought to recover for personal injuries • sustained by a fifteen-year-old girl in being struck by a leader pipe which fell from a building, as she was walking on the sidewalk. No damages were shown as to the father, and the judgment entered does not include him in the damages awarded.

The building from which the leader fell was a one-story structure adjacent to a three-story building, and was being erected by L. & G. Building Company, as general contractors. The building company engaged the defendant Gurtman as sheet metal subcontractor to repair or replace the leader. The latter sent two workmen to perform 'the work, one of whom testified that within five minutes after they arrived at the building they unloaded the truck, placed a ladder to the roof of the one-story annex, five or six feet away from the leader, whereupon the witness started to ascend the ladder when the leader fell and struck the plaintiff. He also testified that the leader had been leaning against the building with’ only a piece of wood underneath to support it.

The defendant Gurtman, who did not witness the accident, testified that the leader on the three-story building was in part removed as the work progressed on the new building, and that a piece of the leader was temporarily placed against the new building presumably by' workmen of L. & G. Building Company in order to carry rain from the walls of the new building. ■

The plaintiff’s evidence was that at the time of the accident workman on the sidewalk called to a workman on the ladder, “Why don’t you look out what you are doing?”

A workman on the sidewalk picked the girl up and gave her the address' of the defendant Gurtman. The plaintiff’s father testified that he called Gurtman on the phone and was informed by him that he would investigate the accident and report back; that in compliance with such promise Gurtman called the lather and advised him to give the child the best medical attention, and that he would pay the bill, and that he was insured against accidents. Gurtman denied ever calling the plaintiffs lather on the phone.

The first point argned is that there was error in not granting a nonsuit in favor of each defendant. Under points two and three it is argued that the court erred in not directing a verdict in favor of each defendant. Under point four it is contended that the case is devoid of any evidence of negligence, which contention is substantially presented under the first point. Under points five and six it is urged that the verdict is against the evidence and is excessive, hut this, manifestly, presents no proper basis for appeal.

Under point seven it is argued that the court erred in denying to defendant the opportunity to observe the scar on plaintiffs shoulder. That contention, however, is not pressed in the argument, and in any event the matter was discretionary with the court.

We think there was sufficient in the case to warrant the conclusion that both defendants were joint tort feasors and jointiy liable. We also conclude that the falling of the leader under the circumstances east the burden of proof upon the defendants to offer satisfactory proof in exculpation of their apparent negligence. Sheridan v. Foley, 58 N. J. L. 230.

Under the circumstances it was within the province of the court, sitting as a jury, to determine the facts, and the resulting liability.

The judgment will be affirmed.


text:
    GEORGE H. QUINN AND HENRY C. FARSON, Jr., PLAINTIFFS-APPELLEES, v. JOSEPH M. C. AMENDOLA ET UX., DEFENDANTS-APPELLANTS.
    Submitted May 13, 1927
    Decided October 4, 1927.
    Sale of Real Estate — Broker’s Commissions — Oral Agreements— If Agreements Call for Payment of Commission, They Must be in Writing — A Contract as Signed by the Parties Takes in All That They Have Agreed to, and Anything That is Not in That Contract Cannot be Added to by Somebody Giving Parol Testimony.
    On appeal from the District Court.
    Before Justices Parker, Mustturtst and Campbell.
    Eor the appellants, Charles Jones.

    Eor the appellees, Howe & Davis.

   Per Curiam.

The suit is for brokers' commissions on a sale of real estate. The contract between vendors and purchasers (each putting in real estate at an agreed valuation) contained the following clause:

“And the said parties of the first and second part hereby agree [sic] to pay to the licensed and authorized agents, George H. Quinn and Henry C. Parson; Jr., a commission of three and one-half per cent, on the purchase price aforesaid, as per separate agreements.”

The crux of the case lay in the last four words, “as per separate agreements.” On the trial it appeared that the “separate agreement” bearing on the liability of the Amendolas was oral and not written a feature which naturally raised a discussion of section 10 of the statute of frauds. Defendants insisted that by the oral “separate agreement” no commission was payable unless and until certain conditions precedent liad been met, and some testimony got into the case as to what that oral agreement was. The court charged the jury, and the instructions are assigned as the first two grounds of appeal:

“Here is an agreement in writing; they say “as per separate agreements.' If these separate agreements call for the payment of commissions, they must be in writing."

And again:

“A contract as signed by the parties takes in all that they have agreed upon, and anything that is not in that contract cannot be added to by somebody giving verbal testimony."

These instructions were manifestly correct. The writing was on its face incomplete; and the rule, as we think, is settled under the statute of frauds that such a contract cannot be completed by parol testimony. Johnson v. Buck, 35 N. J. L. 338; Schenck v. Spring Lake Assn., 47 N. J. Eq. 44. The legal effect of this incomplete contract is not before us, as there was no motion to nonsuit or to direct a verdict, and no request to charge. The rule in Naumberg v. Young, 44 N. J. L. 331, is inapplicable because of the statute of frauds.

Two other grounds of appeal are assigned. Of these, the first (No. 3) fails to point out any judicial ruling, and the last challenges a question as to whether a Mr. Hey made a certain statement. As the answer was that he did not, it is obvious that the admission of the question, if erroneous, was harmless.

The judgment is affirmed.


text:
    WILLIS R. SANDERS AND HERMAN TRAUNSTEIN, PARTNERS, TRADING AS REAL ESTATE SERVICE COMPANY, PLAINTIFF-APPELLEE, v. FANNIE FRIED, DEFENDANT-APPELLANT.
    Argued May term, 1927
    Decided October 5, 1927.
    Sale of Real Estate — Agent’s Commissions — Exclusive Agency for a Limited Time — Sale Consummated Within Time Through Another Agent — Held, Testimony That Agreement was Not to Become Effective Unless Pending Sale was Consummated was Within Rule Excluding Parol Evidence.
    On appeal from the Orange District Court.
    Before Justices Parker, Minturn and Campbell.
    For the defendant-appellant, Hubert J. Harrington (George B. Bailey, of counsel).
    For the plaintiff-appellee, William A. Lord.

   Per Curiam.

The case was tried by the court and a jury, and the court directed a verdict for $448 in favor of the plaintiff.

This action was by the plaintiff real estate agents, to recover commissions under an agreement with defendant appointing them exclusive selling agents for one month until the contract would be terminated by thirty days’ written notice, and it was therein agreed to pay them “a commission of * * * irrespective of by whom such sale ■* * * may be made or effected during such time.”

The evidence was that the plaintiff produced a buyer to whom defendant refused to sell, because the property had already been sold through another agent.

It was shown that this latter sale was in negotiation at the time the agreement between the plaintiff and the defendant was executed, and the defense was that the executed agreement was to become effective only if the existing negotiation failed to result in a sale of the property. The trial court excluded testimony tending to fasten this condition upon the agreement, and this ruling presents the substantial basis of the defendant’s appeal.

In Freeman v. Van Wagener, 90 N. J. L. 358, an attempt to make a similar agreement applicable only if the property was sold to a certain buyer, and this court held such an attempt to be within the parol evidence rule. Here, the contention is that the agreement was to become applicable only if a certain sale in negotiation would not be consummated. We think the same rule of exclusion is equally applicable, and that the trial court was correct in so holding.

The judgment will be aifirmed.


text:
    ALBERT LIFSON & SONS, INCORPORATED, A CORPORATION, PLAINTIFF-APPELLANT, v. NICHOLAS MELLO, DEFENDANT-APPELLEE.
    Submitted May 13. 1927
    Decided October 4, 1927.
    Sale of Goods — Plaintiff Sold Stove to Defendant — Stove Recommended to be in Good and Serviceable Condition — Stove “Blew up” Almost Immediately — Plaintiff Brought Suit — Defendant Counter-claimed for Damages — Judgment for Defendant by Court Without a Jury — Some Conflict of Testi mony, but Judgment Affirmed.
    On plaintiff’s appeal from the District; Court judgment awarding damages to defendant on counter-claim.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff-appellant, Stamler & Koestler.

    For the defendant-appellee, Sal-valore F. La Gorie.

   Per Curiam.

The suit was for the price of a “coal and gas cook stove” sold by plaintiff to defendant. The court, sitting without jury, rejected plaintiff’s claim and. awarded damages of $250 to defendant on his counter-claim. The facts, as the court was entitled to find and as we must assume did find in aid of the judgment, are that defendant purchased the stove at plaintiff’s store and at the time of the purchase was assured by the salesman that the stove was in first-class condition and adapted to its purpose, and that plaintiff’s employes would install the stove and make the necessary water and gas connections; that later, the stove was delivered by employes of defendant, who connected it with the chimney and performed other work on it, and before leaving told the defendant that it was in condition to use. Accordingly, after they left, defendant started a fire in the stove, and in a very few minutes it blew up, doing injury to the premises and to defendant’s young son.

No trial errors are assigned except that the court refused to find for the plaintiff and did find for the defendant.

There is some dispute on the facts, but in view of the finding we must accept the theory of facts most favorable to the defendant. In this aspect the case presented a situation which it was manifestly the duty of the plaintiff to explain; a stove warranted good and serviceable installed by plaintiff and which for no apparent reason blows up as soon as lighted. The evidence indicated that defendant’s chimney was in good order, and also that, in fact, the gas and water had not been connected. There was some evidence that it was not customary for plaintiff to connect such stoves, but the employe at the store and those making delivery might properly be assumed by defendant to have authority to make the representations that defendant’s evidence indicates they did make. Bridgeton v. Fidelity Co., 88 N. J. L. 645; Stuart v. Farmers Exchange, 90 Id. 584.

The judgment will be affirmed.


author: Walker, Chancellor.

text:
    Mary Elizabeth Mockler et al., complainants, v. Elizabeth Long et al., defendants.
    [Decided October 20th, 1927.]
    Partition — Wills—Construction—Testator Gave to Wife “the Use and Proceeds of Ail Real Estate of Which I may Die Possesed” — Held, to Convey Entire Exclusive and Complete Dominion — A Fee was Devised — The Rule That the Devise of an Estate, Generally, With a Power to Dispose of the Same Absolutely and Without Limitation, Imports Such Dominion Over the Property That an Estate in Fee Has Been Created, is Subject to But One Exception, Namely, Where the Testator Gives an Estate for Life Only, by Certain Express Words, and Annexes to it the Power of Disposal, the Devisees for Life Will Not Take an Estate in Fee — The Lands in Question, Belonging to the Widow in Fee, There is No Authority to Order a Sale Under the Partition.
    Oil bill, &o. On objection to master’s report.

      Messrs. Smith & Smith, for the complainant Annie Elizabeth Kellogg.

      Messrs. McDermott, Enright & Carpenter, for the complainant Mary Elizabeth Mockler and defendant Elizabeth Long.
   Walker, Chancellor.

The bill in this case is one for partition, or sale in lieu thereof, of premises in Warren county. The complainants are Mary Elizabeth Mockler (Thomas J. Mockler, her hust band) and Annie E. Kellogg. The defendants, who claim the fee with Mrs. Mockler, are Elizabeth Long and Leona Bombay. Title to the premises sought to be partitioned was developed as follows: William H. Kellogg, husband of the complainant Annie E. Kellogg, died seized of the property, leaving a will admitted to probate May 10th, 1888, and by the terms of that will gave his wife the use and all proceeds of all his real estate and appointed her sole executrix thereof. The case was uncontested and Charles B. Brady, Esquire, the special master, finds and reports that the estate, title and interest of the respective parties in the premises whereof partition is sought, are as follows:

“1. The complainant Annie Elizabeth Kellogg, widow of the said William EL. Kellogg, deceased, is seized of an estate in fee-simple in all of the said premises by virtue of the will of said William H. Kellogg, deceased, which will was dated January 11th, 1887, and duly admitted to probate in the office of the surrogate of the county of Warren, New Jersey, on May 10th, 1888. After all'of the testimony offered by the complainants and defendants had been produced before me, I made a careful examination of such testimony and particularly of the certified copy of the said will of said William H. Kellogg, deceased, hereinbefore referred to. That will reads as follows:

“ ‘I, William H. Kellogg, of the town of Phillipsburg and State of New Jersey, being of sound mind and memory, do make and declare this my last will and testament and hereby revoke all others.
“ ‘I give and bequeath to my beloved wife, Annie Elizabeth, the use and proceeds of all real estate of which I may die possessed.
“ ‘In lieu of dower, I give and bequeath unto my beloved wife, Annie Elizabeth, all personal property whatever of which I may die possessed, together with the use and proceeds of all my real estate as hereinbefore specified. And her acceptance of the same shall be in full release of dower.’

“It will be noticed that the testator, the said William H. Kellogg, gave his wife, Annie Elizabeth, in and by his said last will and testatment, ‘the use and proceeds of all real estate’ of which he might die possessed, and also all personal property whatever of which he might die possessed, ‘together with the use and the proceeds’ of all his real estate as therein-before specified. It is necessary that some construction of the word ‘use’ and some construction of the word ‘proceeds’ should be fiad. Under the authorities, where the intention in employing the word ‘use’ is to indicate complete dominion, the word is sufficient to convey a fee. The context of the will seems to indicíate conclusively that it was the intention of William H. Kellogg, in employing the word ‘use’ to give to his widow, Annie Elizabeth Kellogg, entire, exclusive and complete dominion. In other words, I think it was the intention of the testator to give and devise a fee, and that by the employment of the word ‘use’ the testator intended to grant and convey the entire use — that is to say, the entire dominion over the land. The use of the word ‘proceeds’ is, in my opinion, evidence of an intention to confer a power of sale upon the executrix. It might be argued that only a life estate was intended to be given by the testator to his widow. However, the devise by the testator to the widow cannot be said to be a devise expressly for life with a power of disposition annexed, because there is no indication of a devise expressly for life. I am of the opinion that the devise in the nature of a devise in general terms with a power of disposition annexed and under the authorities an estate in fee-simple passes. Downey v. Borden (Court of Errors and Appeals), 36 N. J. Law 460, 466; Tuerk v. Schueler (Court of Errors and Appeals), 71 N. J. Law 331, 332.

“It will also be noticed that the will of William II. Kellogg did not dispose of any remainder to others. In other words, neither all of his estate nor any part thereof was limited over to others. This further strengthens my opinion that it was the intention of the testator to devise his real estate in general terms, and that such devise should have annexed to it a power of disposition. Upon the foregoing reasons I have based my opinion that an estate in fee-simple in the lands and premises sought to be partitioned in the above-stated cause passed to Annie Elizabeth Kellogg, widow of William II. Kellogg, under and by virtue of the last will and testament of said William H. Kellogg, deceased, herein-before referred to. The word ‘bequeath,’ when expressly applied to real estate, is equivalent to the word ‘devise.’

“It is not within my province to comment upon the apparent lack of knowledge of the legal meaning of words on the part of the testator and also on the part of the scrivener who drew the paper, which was proved to be the last will and testament of William H. Kellogg, deceased. An estate in dower in testator’s estate was very much less than the devise and bequest contained in the said last will and testament. I am of the opinion that the testator intended to give to his wife an estate greater than dower, and that his estate should in no way be impressed with a right of dower in favor of his wife. What estate greater than dower then did the testator intend that his wife should take? The testator did not give and devise an estate expressly for life. Neither did he give an estate in fee-simple in express words. He did, however, make a devise which was in the nature of a devise in general terms. He, in and by the second paragraph of his said last will and testament, did give to her ‘proceeds of all real estate,’ and I have stated hereinbefore that the use of the word ‘proceeds’ in such connection implied a power of disposition and was evidence of an intention to confer a power of sale upon the executrix. The testator did, in my opinion, therefore, give to his wife a ‘devise in general terms with power of disposition annexed,’ and, in my opinion, under the authorities cited above, an estate in fee-simple passed to Annie Elizabeth Kellogg, the complainant.

“In the devise to Annie Elizabeth Kellogg the words ‘heirs and assigns’ and ‘heirs and assigns forever’ are omitted. There is no expression contained in the said last will and testament whereby it appears that the devise to Annie Elizabeth Kellogg was intended to convey only an estate for life. There is no further devise of the property after the decease of the devisee to whom the same was given. The devise to Annie Elizabeth Kellogg in the last will and testament of William H. Kellogg, deceased, brings the will strictly within the provisions of the thirty-sixth section of the Wills act, and is additional authority for the opinion that I have heretofore given that an estate in fee-simple in all of the said lands and premises passed to Annie Elizabeth Kellogg.

“2. None of the parties in the above-stated cause, either complainant or defendant, except Annie Elizabeth Kellogg, has any interest, estate or title in the lands and premises sought to be partitioned, and particularly described in the bill of complaint in the above-stated cause.

“I further report that the lands and premises mentioned and described in the above-stated cause are under the entire, exclusive and complete dominion of the complainant Annie Elizabeth Kellogg, widow of William II. Kellogg, deceased, and that under the circumstances, in my opinion, the court has no authority to order a sale of said premises.”

The master has correctly reported as above set out, and his conclusions are well reasoned. His report will be confirmed.

The bill was filed under a misapprehension that Mrs. Kellogg was tenant for life and that certain other parties were seized in fee of the premises in question, subject to her life estate. It makes no difference that the parties have mistakenly deemed Mrs. Kellogg to have been seized of a life estate only. They cannot make the law, they must follow it. In Buzby v. Roberts, 53 N. J. Eq. 566, it was held (at p., 568) that even by decree pro confesso a defendant who does not answer is entitled to the protection of the master’s report upon the rights of the parties, and the master must report their rights as they really are, irrespective of the admissions of the parties themselves.

The cases followed by the master bear him out. See, also, Brohm v. Berner, 95 N. J. Law 85, 86. See, further, Gaston v. Ford, 99 N. J. Eq. 592, in which Vice-Chancellor Buchanan cites the precedent cases.

By reason of the master’s report, Mrs. Kellogg is placed in a position of hostility to the other complainants, and Messrs. Smith & Smith, solicitors and of counsel for them, now represent her alone; and the complainant Mrs. Mockler joins with the defendant Mrs. Long, being interested in the same side of the question, and through Messrs. McDermott, Enright & Carpenter present the claim of a life interest only in Mrs. Kellogg, with remainder in fee in themselves and other tenants in common.

.For the parties claiming a life interest in Mrs. Kellogg and remainder in fee to the other parties, the case of Wooster v. Cooper (Court of Errors and Appeals), 53 N. J. Eq. 683, is cited, but in that case Chief-Justice Gummere, who wrote the opinion, said (at p. 684), that the rule that the devise of an estate, generally, with a power to dispose of the same absolutely and without limitation, imports such 'dominion over the property that an estate in fee is created; is subject to but one exception, namely, where the testator gives an estate for life only, by certain and express words, and annexes to it the power of disposal, the devisees for life will not take an estate in fee. The other cases cited are Roberson v. Shotwell, 55 N. J. Eq. 318, wherein this court said that the devise was “during her life, with power to sell;" also Deats v. Ziegener, 82 N. J. Eq. 605, wherein the devise was “for her sole use and benefit for and during her lifetime;" also, McDermott v. Zimmerman, 89 N. J. Eq. 215, wherein the will provided “for and during the term of his natural life, with full power and authority to sell,” &c.

The master being correct in his finding, his report must be confirmed.


text:
    ROMAN CATHOLIC DIOCESE OF NEWARK, PROSECUTOR, v. STATE HIGHWAY COMMISSION ET AL., RESPONDENTS.
    Decided October 18, 1927.
    Emident Domain — Certiorari to Review Act of Highway Commission — Application for Stay Pending Determination of Rights —Property Part of a Cemetery — Held, That Plaintiff’s Rights will be Protected if Highway Commission be Permitted to Proceed With Work of Filling in and Constructing Embankment, but That Other Work Should be Stayed.
    Oil certiorari.

    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, John Milton.

    For the respondents, Marie Sullivan.

   Memorandum.

The land of the prosecutor is a cemetery, and the highway commission is in possession of, and seeks to condemn for highway purposes a strip one hundred feet wide and one thousand two hundred and eighty feet long, about three hundred feet east of the center line of the whole tract, and is at this time filling in and constructing an embankment on such strip upon which it is proposed to construct the highway.

The writ of certiorari was allowed without a stay, and application is now made to this court for a stay pending the determination of the proceedings under such writ. We think the rights of the prosecutor will be fully protected if the respondent highway commission is permitted to proceed with its work of filling in and constructing the embankment upon which the roadway is proposed to be constructed, but that all other and further work and construction be stayed until the further order of the court.

An order for a stay, so limited, may be taken and entered.


text:
    MAX KAPELOWITZ ET UX. v. STILLMAN, DELEHANTY, FERRIS COMPANY ET AL.
    Argued May term, 1927
    Decided October 5, 1927.
    Negligence — Motor Vehicle Collision — Plaintiff Claims Award Inadequate — Facts Considered and Held, That They Presented a Jury Question, Which Should Not be Disturbed.
    On rule to show cause, Middlesex Circuit.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Wight, Wight & G-olenboclc.

      Contra, Wall, Haight, Carey & Hartpence.

    For the defendant Langen, David T. Wilentz.

   Per Curiam.

The plaintiffs, husband and wife, brought action to recover direct and consequential damages for personal injuries, sustained by the wife in an automobile collision.

The action was tried before the court and a jury in the Middlesex Circuit, and resulted in a verdict for $50 for the plaintiff’s wife.

There was no evidence that the husband suffered any damage, and the court so charged without any exception being taken thereto. The only reason advanced in support of the rule is inadequacy of damages.

The doctor testified that five or six visits, extending over a period of a month, were made; one visit to the plaintiff’s house and the rest -at the doctor’s office, for which he received twelve or fifteen dollars for his services from the wife.

The patient complained of pain in the thumb and chest. The doctor found a few marks on the chest and a swollen thumb which seemed like a partial rupture of a ligament on the inside of the right thumb. No X-ray was deemed necessary, but the physician prescribed lead and opium wash for the thumb. He concluded that the right thumb would remain permanently enlarged as compared with the left, and both thumbs were exhibited to the jury.

The plaintiff testified she was injured in the right thumb, the knee and chest; still suffers pain and was unable to work for a month. We are inclined to think that the situation thus presented was one entirely for the jury, and that their conclusion should not be disturbed.

The rule will be discharged.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNIE CZIEJKO, PETITIONER, v. MUTUAL CHEMICAL COMPANY, RESPONDENT.
    Petitioner Failed to Appear Either Personally or by Counsel— Petition Filed More Than a Year After Alleged Accident.
    On petition for compensation. On order dismissing petition.
   * * * * * * *

Messrs. Lindabury, Depue & Eaulks appearing for the respondent and no one appearing on behalf of the petitioner; and it further appearing that a special notice was duly sent to the attorney for petitioner by the attorneys for respondent, that on said day a notice would be made to dismiss said petition for lack of prosecution unless the case was moved; and it appearing that on said day neither the petitioner nor anyone on her behalf appeared, whereupon upon motion made said case was dismissed; and it further appearing that thereafter the signing of the determination for dismissal was postponed at the request of petitioner’s attorney in order to give him additional time to further investigate the case, and the cause having been renoticed for hearing for July 29th, 1927, which notice was duly served upon the attorney for petitioner, and the matter having again come on for hearing in the presence of Messrs. Lindabury, Depue & Eaulks, and no one appearing on behalf of petitioner; and it further appearing that said petition was filed more than one year after the accident alleged occurred and that no compensation has been paid; and it further appearing from the allegations contained in the petition filed in said cause that this court has no jurisdiction under the Workmen’s Compensation act.

It is, on this 1st day of August, 1927, upon motion of Messrs. Lindabury, Depue & Eaulks, attorneys for respondent, ordered that the petition be and the same is hereby dismissed without costs to either party as against the other.

Charles E. Corbin, Deputy Commissioner.


text:
    JAMES A. DOWNS, BY NEXT FRIEND, PLAINTIFF, v. JANE WILLIAMS FORCE CURRAN ET AL., DEFENDANTS.
    Argued May 4, 1927
    Decided October 27, 1927.
    Negligence — Motor Vehicle Accident — All Questions Held to Have Been Pure Questions of Fact — Judgment for Defendant Sustained.
    On rule, &c.
    Before Gummeee, Chief Justice, and Justices Black and Lloyd.
    For the defendant Lidie W. Oram, Heine, Bradner & Laird.

    For the plaintiff, Charles A. Ralhbun.

   Per Curiam.

This suit was brought to recover damages for personal injuries. The plaintiff, who was nearly four years old, on May 1st, 1924, while crossing Main street, in Wharton, New Jersey, was struck and injured by an automobile driven by Robert F. Oram. Robert F. Oram died leaving the defendants his devisees and legatees.

The trial resulted in a verdict for the defendants.

The plaintiff obtained a rule to show cause and writes down five reasons for a new trial. Our reading of the record and a consideration of the arguments of the respective counsel lead us to the conclusion that the points involved are pure questions of fact. We find no sufficient reason for disturbing the verdict of the jury.

The rule to show cause is therefore discharged.


author: Lawrence, J.

text:
    Monmouth County Circuit Court.
    MARY A. DeKYNE, PLAINTIFF, v. J. ANNA LEWIS AND J. ANNA LEWIS, EXECUTRIX OF THE WILL OF CARRIE LAYMEN, DEFENDANT.
    Ejectment — Plaintiff, Living Apart From Her Husband, Assigned Lease Without Husband Joining — Husband Afterward Gave Quit-claim Deed — Plaintiff Now Seeks, After Nineteen Years, to Have Lease Held Void Because Her Husband Did Not Join, Though She Deliberately Executed it for a Sufficient Consideration — Is the Court Permitted to Hold That Her Assignments of Lease was a Conveyance of Her Real Estate? — Lease Covered Land in Ocean Grove Where Leasing is the Prevailing Method — Facts Set Out at Length and Held That the Issue Must be Resolved Against the Plaintiff.
    On action at law. In ejectment. On finding of facts and rule for judgment.
   Lawrence, J.

This action was tried before the court, without a jury, by consent of the parties, and is decided on the law deemed applicable to the facts found.

The suit was instituted on May 24th, 1924, by plaintiff to recover possession of three certain lots designated as Nos. 564, 566 and 568 on a map of lots of camp-ground of the Ocean Grove Camp Meeting Association of the Methodist Episcopal Church, at Ocean Grove, Neptune township, in Monmouth county. She alleges that her right to such possession accrued on July 15th, 1903 (probably intended for 1904), 'but of which she has been wrongfully deprived by defendant.

The facts are:

1. Plaintiff was the daughter of Jessie L. Day, who was the owner of certain leasehold interests in the lots in question, and died seized thereof July 15th, 1904, testate. The latter’s will was duly admitted to probate by the surrogate September 22d, 1904, as appears by the record in his office in book N-2 of wills, on pages 364, &c. By it Mrs. Day gave the lots in question, upon which had been erected a boarding house known as the Bryn Mawr Hotel (also all the goods and chattels therein), to plaintiff, her heirs, executors, administrators and assigns, directing that the interest should vest immediately on the death of testatrix.

2. The muniments of title to the premises are as follows: To lot No. 566, indenture of lease, bearing date October 6th, 1871, made by the Ocean Grove Camp Meeting Association of the Methodist Episcopal Church to Smith E. Hughes, and recorded in the county clerk’s office, in book 337 of deeds, on pages 148, &e.; to lot No. 564, indenture of lease, dated August 10th, 1871, made by said camp meeting association to William JDolton, recorded in the county clerk’s office, in book 267 of deeds, on pages, 220, &c.: and to lot No. 568, indenture of lease, dated August 18th, 1875, made by the cam]) meeting association to Charles E. Dugan and recorded in the county clerk’s office, in book 328 of deeds, at pages 220, &c. Each of the instruments demised, leased and let the lots in question to the lessee, his executors, administrators and assigns, for and during the full end and term of ninety-nine years from the date thereof, renewable to such lessee, his heirs and assigns, for a like term of years, forever; paying therefor to the lessor (camp meeting association) as and for a yearly rent not to exceed seven per cent, of the consideration paid, at such time or times in each year of the term as the same may be required by such lessor, its successors or assigns. By a series of mesne written assignments of these leases, duly executed, acknowledged and recorded, the records of which were offered in evidence, Mrs. Day, mother of plaintiff, became the owner of these leasehold interests. Plaintiff then acquired them byr virtue of the will to which reference is made.

3. On January' 27th, 1906, plaintiff, then the wife of George A. DeKyne, but from whom she was living apart, assigned, transferred and set over the original leases, on sufficient consideration, to Leslie H. Crouch and Harry A. Eeeder, their executors, administrators and assigns, which assignment was in writing (the record was offered in evidence), duly acknowledged by her, privately, separate and apart from her husband, and recorded in the county clerk’s office, in book 766 of deeds, on pages 368, &c. Plaintiff was designated in this assignment as the “wife of George A. DeKyne,” but her husband did not join with her in executing it, the reason therefor not appearing other than the fact that they were not living together at the time. On January 29th, 1906, however, her husband made, executed and acknowledged a quit-claim deed to plaintiff’s assignees, Leslie H. Crouch and Harry A. Feeder, of all his right, title and interest in the lots of land in question, which deed was recorded simultaneously with plaintiff’s assignment, in book 766 of deeds, at pages 371, &c. Crouch and Feeder thereupon went into possession and subsequently (on March 14th, 1906) sold and assigned the original leases to John B. Sherman, to whom possession was given; said last-mentioned assignment of leases having been duly executed and acknowledged by the said assignors, and their respective wives, and recorded in the county clerk’s office, in book 768 of deeds, on pages 335, &c. Said Sherman remained in possession until March, 1918, when he died intestate, leaving as his next of kin and heirs, his widow, Lydia Sherman, and the following children: Elbert S. Sherman, Jennie T. Wolcott, Wilfred Sherman and Nelson Sherman. On October 21st, 1920, the above-named children of John B. Sherman, deceased (their respective wives joining; the daughter, Jennie T. Wolcott, being a widow), assigned, transferred and set over their interests in the premises to the widow, Lydia Sherman, by an assignment in writing (record offered in evidence) duly executed, acknowledged and recorded in the county clerk’s office, in book 1131 of deeds, at pages 428, &c. Said Lydia Sherman thereafter (on February 18th, 1922) married John N. Goodnow, and, on October 30th, 1922, they joined in an agreement in writing, undertaking to assign, transfer and set over, on sufficient consideration, the leasehold interests in the premises to the defendant, J. Anna Lewis and Carrie Laymen, which agreement for sale, duly executed and acknowledged, was recorded in the county.clerk’s office, in book 1204 of deeds, on pages 143, &c. Said Carrie Laymen subsequently died testate leaving her interest in said premises to the said J. Anna Lewis, whom she appointed executrix of her will. This will was duly admitted to probate by the surrogate on March 26th, 1923, and remains of record in his office, in book 82 of wills, on pages 65, &c. J. Anna Lewis, individually, and as executrix of the will of Carrie Laymen, was, at the institution of this suit, and still is, in possession of the premises involved.

4. The record of several certificates of tax sale of the lots in question which had been assessed to plaintiff’s mother made by the township of Neptune, within which taxing district the lands lie, was offered in evidence, together with the record of quit-claim deeds, covering the term of years for which they were sold for such unpaid taxes from the township to Grouch and Feeder, plaintiff’s assignees of the leasehold, interests in question, in which quit-claim deeds the taxes involved were certified as having been paid by them as consideration therefor.

5. Commencing with the possession of Jessie Day, mother of plaintiff, through the various assignments of the leasehold interests to the defendant, the several holders of such title executed mortgages upon the premises, evidence of which was offered at the trial, but which mortgages were paid by them or their successors in title and canceled of record with the exception of two — one for $6,000, bearing date May 10th, 1913, made by John B. Sherman and Lydia E. Sherman, his wife, and assigned to the Ocean Grove National Bank, which mortgage and assignment thereof were duly recorded, and the mortgage remains a subsisting lien on said leasehold interest in said premises; while the other, a mortgage dated May lltli, 1914, for $900, made by John B. Sherman and Lydia Sherman, his wife, to Elbert S. Sherman, has never been paid and is a lien and encumbrance thereon.

6. The defendant and her predecessors in title to the leasehold interests in question have had an uninterrupted and undisputed possession of the premises from the time of the written assignment by plaintiff in 1906 of the original leases made by the camp meeting association referred to in paragraph two hereof to the institution of this suit, no demand for possession ever having been made by plaintiff on the holders thereof, all of whom from time to time maintained and improved the buildings erected on the lots in question, paid the ground-rent annually assessed against the same under the terms of the leases, together with the state, county and local taxes, and generally exercised complete control of the premises as owners of the leasehold interests without notice of any actual claim of plaintiff to possession.

7. The usual and customary manner of selling and transferring the possession of lots belonging to the Ocean Grove Camp Meeting Association is in the form of written assignments of original leases made by the association. Plaintiff’s predecessors in title (including her mother) acquired their interests by such assignments of leases.

8. Plaintiff bases her claim of right to possession in this action on the ground that the original leases made by the camp meeting association were, in effect, conveyances in fee of the land, because of the long terms with the option to renew, which fee was vested in her by her mother’s will, and that the written assignment made by her (plaintiff) to Leslie H. Crouch and Harry A. Feeder, even though on sufficient consideration, was void under section 14 of the Married Women’s act (3 Comp. Stat., p. 3237), inasmuch as her husband, George A. DeKyne, did not join her in the execution thereof. No children were born of their marriage and said George A. DeKyne died before the institution of this suit.

The court is urged to hold that the original leases and the mesne assignments to plaintiff’s mother covered, in fact, the fee in the locus in quo or at least vested in the lessees and assignees an estate equivalent thereto, whereby the assignment made in 1906 by plaintiff was, in effect, a conveyance of her “real estate” and within the purview of section 14 of the Married Women’s act (3 Comp. Stat., p. 3237); that it was therefore void because her husband did not join therein, even though it was deliberately executed by her and acknowledged as required by section 39 of the Conveyancing act (2 Comp. Stat., p. 1547), upon a legal consideration and with intent to divest herself of whatever title she had. It is further insisted that the quit-claim deed executed by the husband and recorded simultaneously with the assignment is of no significance and should be disregarded. Plaintiff thus seeks to recover possession of the premises after a lapse of eighteen years notwithstanding the rights of innocent purchasers and mortgagees in good faith. To permit her to raise to her advantage at this late day what really amounts to a technicality with possible consequences so obviously unfair, to say the least, (‘alls for the closest scrutiny and she should not be allowed to do so unless the legal situation is perfectly clear. This is also so, since it is admitted that no children were born of the marriage of plaintiff and her husband — DeKyne— and that he died before the institution of this suit. No estate by curtesy initiate or consummate could be possibly involved. Hackensack Trust Co. v. Tracy, 86 N. J. Eq. 301; 17 C. J. 413.

Is the court permitted to hold, however, that her assignment of the leases in question was a conveyance of her “real estate” within the intent and meaning of the section of the Married Women’s act invoked? It is thought not. It is to be remembered that we are concerned with the definite term of ninety-nine years, not with the option to renew for a like term forever, since the time for the exercise of such option has not arrived and it may not be legally presumed that it will be so exercised. The leases in question are neither deeds nor conveyances within the commonly accepted definition and do not convey lands, tenements and hereditaments which comprehend only freehold estates. They are obviously leases for years and confer no estate in the lands demised beyond the recognized leasehold interest. Language appropriate to that end is used and no intent appears on the part of the lessor (camp meeting association) to divest itself of the fee. A term of years, while denominated a chattel real is not, when speaking with legal accuracy, considered “real estate,” but on the contrary is considered personal property, whatever might be its duration in years, whether for one or twenty or ninety-nine years. 22 R. C. L. 65, § 40. A lease for ninety-nine years or nine hundred and ninety-nine years is a chattel which the administrator may dispose of in the same manner as he may other personal property of his intestate. A lease for years under seal is not a deed or conveyance of lands, tenements and hereditaments. The latter means what it signified under the old rule of common law, viz., a deed or conveyance of a freehold estate, such estate as must be conveyed by deed and not a lease for years which may be passed by writing not under seal. Hutchinson v. Bramhall, 42 N. J. Eq. (15 Stew.) 372, 382, 384, 385. A married woman, for example, can, without the co-operation of her husband, create a term of years in her lands. Neither the word “convey” nor “encumber,” according to its ordinary signification, is expressive of the act of creating a tenancy for years in lands. The former is appropriate to the transfer of a title to a freehold, the latter to putting the property in pledge for the payment of money. That the word “conveyance” does not, when standing without assistance in a statute, signify its applicability to the passing of a chattel interest in realty is clearly indicated in the cases. Sullivan v. Barry, 46 N. J. L. 1 ; 47 Id. 339.

Moreover, plaintiff’s title could not rise above its source. We cannot be concerned with the option to renew because ii had not been exercised and could not have been at the time of the assignment. Her mother did not have a title in fee-simple, from which an estate of inheritance of that character could accrue to the daughter under her will. In the circumstances, it seems clear that the plaintiff could legally sell and dispose of the leasehold interest given and bequeathed to her by her mother in the same manner as a feme sole, with the qualification perhaps that the execution and acknowledgment be in compliance with section 39 of the Conveyancing act, as it was. Inasmuch as she did not become seized of or the owner of the fee in the land in question before or during coverture, her husband, DeKyne, had and could have no estate by curtesy initiate therein. Hackensack Trust Co. v. Tracy, supra. She acquired under her mother’s will an interest held to be a chattel real which is personalty, and the proviso of section 14 oí tlie Married Women’s act did not apply.

But if it be assumed that the consent of plaintiff’s husband was legally necessary, that is to say, that he should have joined in the execution of the assignment, which in all other respects, including execution and acknowledgment, was in due form under the statute, plaintiff can take nothing of the irregularity. Pamph. L. 1926, ch. 154, p. 258, being in terms retroactive, is applicable and curative in its nature, and even though enacted after the institution of this suit, is regarded as dispositive of the issue. Tin; court feels bound to take cognizance of it and apply it, especially as it became the law before trial of this action and rendition of judgment. 36 Cyc. 1221, 1222; Bonney v. Reed, Collector, 31 N. J. L. 133. This statute and a similar one were construed in Hannan v. Wilson, 5 N. J. Adv. R. 273, and Ely v. Pontieri, Ibid. 317. It is to be remembered that plaintiff’s interest in the premises was given and bequeathed to her by her mother. Such interest was a leasehold, became her own property, subject to her separate use as if feme sole free from control of her husband, subject, it seems, however, to sale with his assent. Porch v. Fries, 18 N. J. Eq. 204, 208. But it is not perceived why he could not just as effectively have given his assent through the medium of the quit-claim deed formally executed and acknowledged by him two days after the assignment of plaintiff and recorded simultaneously therewith as though he had joined her in such assignment. The purpose of both the wife and husband was to divest themselves of all interest in the premises. He has since died without issue of the marriage. The evidence in the ease, therefore, discloses cogent and excellent reasons for holding the Curative act of 1926, supra, applicable, especially as it clearly indicates a legislative intent to make it retroactive.

Tf, moreover, it be again assumed that plaintiff’s interest in the premises was in the nature of a fee and the assignment a deed, the evidence justifies the inference of fact that she and her husband were living apart in 1906, and at the time of her execution of the assignment, she appears to have had the legal right to dispose of her holding without her husband joining therein, since it came to her by gift or bequest of her mother; for by section 8-0 of the Married Women’s act (3 Comp. Stat., p. 3233) she was empowered to convey without the joinder of her husband, subject, it is said, to his interest, which interest, however, he almost immediately released. Hollander v. Abrams, 99 N. J. Eq. 254, 270. Indeed, a reading of this section would appear to justify the conclusion in fact without assumption that the joinder of the husband was not legally necessary to a valid assignment of plaintiff’s leasehold interest in the locus in quo.

For the foregoing reasons, the issue submitted must be resolved against the plaintiff. Exceptions will be allowed as ground for appeal. Judgment may be entered in favor of defendant, with costs.


text:
    FREDERIC ALSON-GARNER, PLAINTIFF-APPELLANT, v. JOE JENNETTE, DEFENDANT-RESPONDENT.
    Submitted May term, 1927
    Decided October 27, 1927.
    Contracts — Goods Sold — Verdict for Vendor — Vendee Claims the Amount is Due From Another — No Merit is Found in Grounds of Appeal.
    On appeal.
    Before Gummere, Cujee Justice, and Justices Black and Lloyd.
    For the appellant, Alexander Simpson.

    For the respondent, William F. Burke.

   Per Curiam.

This suit was brought to recover $550, the amount alleged to be due the defendant for gasoline, oil and alcohol furnished to the plaintiff, for use in, and storage of, a Lincoln automobile, described in the writ of replevin brought by the plaintiff.

The trial resulted in a verdict for the defendant for $550. The plaintiff appealed and filed three grounds of appeal— first, error by the trial court in refusing to grant a motion of nonsuit; second, error in refusing to direct a verdict in favor of the plaintiff; third, the verdict was against the weight of the evidence. This latter ground is not available to the plaintiff on an appeal. It is an appropriate reason under a rule to show cause for a new trial.

We find no legal merit in the first two grounds of appeal. Questions of fact were involved. The plaintiff does not deny that he owned the car, nor that he ordered the storage service, gasoline and oil, nor that the same was furnished. Nor does he dispute the amount due the defendant, but says it is due from the Mausoleum Company.

The judgment of the Hudson County Circuit Court is affirmed.


text:
    FRANK A. COOK ET UX., PLAINTIFFS, v. SAMUEL A. GRUVER ET AL., DEFENDANTS.
    Submitted May term, 1927
    Decided October 27, 1927.
    Negligence — Injury to Passenger in Taxicab in Collision With Another Car — Judgment Against Owner of Other Car and in Favor of Owner of Taxicab — Nothing Found in Reasons Alleged for New Trial.
    On rule to show cause.
    Before Gummebe, Chief Justice, and Justices Black and Lloyd.
    For the defendants, Harvey D. W. Shepard and Frank G-. Turner. a

    For the plaintiffs, Lum, Tam.blyn & Golyer.

   Per Curiam.

This was an accident case, in which the jury rendered a verdict in favor of Jane Cook for $6,000 and in favor of her husband, Frank A. Cook, for $2,000, against the defendant Harvey D. W. Shepard and in favor of the defendant Samuel A. Gruver, the owner of the taxicab in which the plaintiff Jane Cook was riding, when it collided with the automobile of the defendant Harvey D. W. Shepard, on January 31st, 1926, at Madison, New Jersey.

The defendant Harvey W. D. Shepard obtained a rule to show cause. We find nothing in the reasons alleged for a new trial which would justify this court in disturbing the verdict of the jury rendered in the ease.

The rule is discharged, with costs.


text:
    ALBERT MOORE, Jr., PLAINTIFF IN ERROR, v. THE STATE OF NEW JERSEY, DEFENDANT IN ERROR.
    Submitted May term, 1927
    Decided October 27, 1927.
    Crimes — Unlawful Sale and Possession of Liquor — No Legal Error Found.
    On writ of error.
    Before Gummeee, Chief Justice, and Justices Black and Lloyd.
    Eor the plaintiff in error, Robert Peacock.

    For the defendant in error, George M. Hillman, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error in this case was indicted, tried and convicted for the unlawful sale and the unlawful possession of liquor under the statute, in the township of Northampton, Burlington county, New Jersey, on May 16th, 1925. He issued a writ of error from this court to review the judgment of conviction. He filed eleven assignments of error. We have examined the record as sent up to us with the writ of error with the result that we find no legal errors.

The judgment of the Burlington County Quarter Sessions is affirmed.


author: Pee Curiam.

text:
    PETER McCARTHY ET AL., PLAINTIFFS IN ERROR, v. THE STATE OF NEW JERSEY, DEFENDANT IN ERROR.
    Submitted May term, 1927
    Decided October 27, 1927.
    Crimes — Conviction on Counts of Grand Larceny and False Pretenses, Directed Verdict for Defendants on Count of Receiving Stolen Goods — Whether Trial Court Erred in Not Directing Verdict on the False Pretense Charge is Immaterial, the Grand Larceny Charge Not Being Attacked.
    On writ of error.
    Before Gummeee, Chief Justice, and Justices Black and Lloyd.
    Eor the plaintiffs in error, Kessler & Kessler, and Mott & Bernheim.

    Eor the defendant in error, John O. Bigelow, prosecutor of the pleas.
   Pee Curiam.

The defendants in this case were convicted under the first and third counts in the indictment, which alleged that the defendants had obtained $1,500 by means of false pretenses. The court directed a verdict for the defendants on the second count — receiving stolen goods. It is now urged for a reversal that the trial court erred in refusing to grant the motion to direct a verdict on the third count — for false pretenses. Let this be as it may, it will not cause a reversal for the conviction on the first count of grand larcény, as that count is not attacked. That count is sufficient to support the judgment. State v. Huggins, 84 N. J. L. 254; State v. Rommel, 3 N. J. Mis. R. 204; affirmed, 3 N. J. Adv. R. 1401.

The judgment of the Essex Court of Quarter Sessions is affirmed.


text:
    MARGARET HUNT, PLAINTIFF, v. JAMES L. HEANEY, DEFENDANT.
    Submitted May term, 1927
    Decided October 27, 1927.
    Contracts — Money Expended in Supporting Defendant’s Wife and Child — Judgment for Plaintiff — Defendant Claims Verdict Excessive and Against Weight of Evidence — Held, Not so, Also That Verdict is Not in Disregard of Law as Charged by the Court.
    On rule.
    Before Gum mere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Quinn, Parsons £• Doremus.

    For the defendant, James R. McVermU and William V. Azzoli.

   Per Curiam.

This suit seeks to recover from the defendant for services rendered and for moneys expended in supporting the defendant’s wife and child. It is alleged in the complaint, in the first count, that at his request the plaintiff rendered services for the defendant, as a general housekeeper and manager, from May 1st, 1925, to September 1st, 1926, for which there is due $1,200.

The second count is for the same services, under an implied promise, and agreement to pay the reasonable value of such services. The third count alleges there is due to the defendant $13,000 as a reasonable value of the necessities furnished to the defendant’s wife and son.

The fourth and fifth counts allege a promise to reimburse the plaintiff for such expenditures.

The trial resulted in a verdict for the plaintiff for the sum of $9,024. The defendant obtained a rule to show cause reserving exceptions and writes down three reasons for a new trial — first, the verdict is against the weight of the evidence; second, the damages are excessive. We do not find this to be so; third, the verdict is clearly in disregard for the law as charged by the court to the jury. But the plaintiff argues that the charge of the trial court was more adverse to the plaintiff than the facts warrant. Freeman v. Ackerson, 94 N. J. L. 308. We think this point is not sustained by a reading of the testimony. It may also be added, the promise made by the defendant to reimburse the plaintiff for the expenses made by the plaintiff is not involved in any of the above reasons.

The rule to show cause is therefore discharged.


text:
    GUS PAPPAS, PLAINTIFF-RESPONDENT, v. MORRIS FRISH, DEFENDANT-APPELLANT.
    Submitted May term, 1927
    Decided October 27, 1927.
    Sale of Real Estate — Breach of Contract — Verdict for Plaintiff — ■ Seventeen Grounds for Appeal Filed — Held, All Without Legal Merit.
    On appeal.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellant, William Greenfield.

    For the respondent, Edward R. McGlynn.

   Per Curiam.

This suit was brought to recover damages for the breach of a real estate contract, dated February 10th, 1925. The contract appointed the plaintiff the agent for purchasing the property at the northwest corner of Court and Broad streets, Newark, New Jersey, for $144,000. The trial resulted in a verdict for the plaintiff for $1,150. The defendant appeals and files seventeen grounds of appeal. These grounds of appeal are argued under six heads in the appellant’s brief. Our examination of the record and briefs lead us to the conclusion that they are without legal merit and call for no extended discussion. It may not be amiss to refer to reason No. 5: “Because the court erred in admitting in evidence the contract dated February 10th, 1925, and produced by witness Ralph E. Lum, that being a contract entered into by the New Jersey Real Estate Company and one Laiues.”

The basis of this reason seems to be, as we understand it, is that the contract was not taken in the name of the defendant, but was in behalf of and for the use and benefit of the defendant, therefore it was illegal. As this was one of the means that the plaintiff took to carry out his contract with the defendant (it had been assigned to the plaintiff) it is difficult to see just why it was not admissible in evidence. The appellant has not made it dear why it was not admissible in evidence. It provided for the purchase of the property in question on the identical terms set by Mr. Frish.

Finding no error in the record the judgment of the Essex Countv Circuit Court is affirmed.


text:
    FLORA E. CLEAVES, ADMINISTRATRIX, ETC., PLAINTIFF, v. WILLIAM YESKEL ET AL., DEFENDANTS.
    Submitted May term, 1927
    Decided October 27, 1927.
    Negligence — Death Act — Second Trial — Reasons Not Sufficient to Disturb Verdict — Verdict for Plaintiff.
    On rule, &c.

    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Ralph O. Willguss and Fred G. Stickel, Jr.

    For the defendants, Mark Tovmsend, Jr.

   Per Curiam.

This suit was brought to recover damages under the Death act. The trial resulted in a verdict for the plaintiff for $15,000. The defendant obtained a rule to show cause why the verdict should not be set aside reserving to the defendant the exceptions taken at the trial. The defendant writes down five reasons for the granting of a new trial. The first four allege the verdict is against the weight of the evidence, and the fifth alleges the verdict of the jury is contrary to the charge of the court.

This is the second trial of this case. Cleaves v. Yeskel, 133 Atl. Rep. 393. There the essential facts are quite fully set out in the opinion of Mr. Justice Minturn, although there is some difference in the facts as made at the two trials. We are unwilling to disturb the verdict for any of the reasons alleged for a new trial.

The rule to show cause is therefore discharged.


text:
    FRANK J. BLOOM COMPANY, PLAINTIFF-RESPONDENT, v. HARRY KUEMMERLE ET AL., DEFENDANTS-APPELLANTS.
    Argued May 4, 1927
    Decided October 27, 1927.
    Contracts — Commissions Alleged Due for Procuring Loan — Verdict for Plaintiffs Included Interest — Held, No Error Found Except in Amount of Damages — No Legal Right to Interest Shown — Judgment Affirmed for Amount of Claim Excluding Interest.
    On appeal.
    Before Gum mere, Chtee Justice, and Justices Black and Lloyd.
    For the appellants, Gole c£ Gole.

    For the respondents, Lee F. Washington.

   Per Curiam.

This suit was brought to recover the sum of $1,600 commissions alleged to be due for procuring a loan in the sum of $50,000 to be used to take an assignment of a mortgage, then held against the property of the defendants, and a further sum of $150 interest on the $50,000 and interest on the sum of $1,600.

The trial resulted in a verdict for the plaintiff for $1,836.12. The defendant appealed and filed seven grounds of appeal, only two of which are argued in the appellants’ brief, viz., the sixth and seventh. We find no error, except in the amount of damages. There is nothing in the case to show that the plaintiff was under any legal obligation to pay the lender the interest sued for. Nor is there anything to show that the defendants agreed to pay interest by way of damages for a breach of their agreement to accept the loan of $50,000. But as we find the only question with respect to which the verdict is wrong is the amount of the verdict, which is senarable, the jury having settled the question of liability upon sufficient evidence, the judgment will be affirmed for $1,600 under the case of Robinson v. Payne, 99 N-. J. L. 135.

The judgment of the Atlantic County Circuit Court will be affirmed for $1,600.


text:
    W. J. DONNELL LUMBER COMPANY, RESPONDENT, v. STATE HIGHWAY COMMISSION OF THE STATE OF NEW JERSEY, APPELLANT.
    Argued May 5, 1927
    Decided October 20, 1927.
    Eminent Domain — Questions Asked Witnesses Regarding Value of Property — Qualification as Experts — Judgment for Plaintiff Sustained.
    On appeal.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    Eor the appellant, Edward L. Katzenbach, attorney-general of New Jersey, and Marie A. Sullivan.

    For the respondent, McOarter & English.

   Per Curiam.

This is an appeal from the verdict of a jury awarding the respondent, W. J. Donnell Lumber Company, the sum of $142,297 as compensation for lands taken and damages sustained, in a condemnation proceeding instituted by the State Highway Commission of the State of New Jersey. The appeal is taken by the State Highway Commission. It files four grounds of appeal. First, overruling this question to a witness, John E. Hogan: "Q. As the result of your examination, what would you say the present value of the dock is?” Second, third and fourth: Error in the charge of the trial court. The charge of the trial court is in harmony with the rule of law stated in the cases of Currie v. Waverly, &c., Railroad Co., 52 N. J. L. 394; Philadelphia, &c., Ferry Co. v. Inter-City Link Railroad Co., 76 Id. 50; Packard v. Bergen Neck Railway Co., 54 Id. 553.

We find no error here.

The question put to the witness John E. Hogan was overruled by the trial court on the ground that the witness had not qualified as an expert, as to what the present value of the dock is. This was not error under our cases. The decision of the trial judge is conclusive, unless clearly shown to be erroneous in matter of law. Manda, Inc., v. Delaware, &c., Railroad Co., 89 N. J. L. 327; Ross v. Commissioners Palisades Interstate Park, 90 Id. 461, and many other cases there cited.

The judgment of the Middlesex Circuit Court is affirmed.


text:
    THE STATE, EX REL. WILLIAM H. CAMPBELL ET AL., RELATORS, v. JOSEPH G. CHAMPION ET AL., RESPONDENTS.
    Argued October 4, 1927
    Decided October 26, 1927.
    Municipalities — Quo Warranto — Contest for Municipal Office— Writ Issued Under Section One of Act — Relators Were at Liberty to Invoke Provisions of Section Four — Motion to Quash on Ground That Notice Had Not Been Given — Held, That it Seems Needless to Enforce the Strict Practice Where the Relators Were Entitled as of Right to File Information Upon Giving Security for Costs — Motion to Quash Denied Upon Terms That Bond be Given to Secure Costs as Provided in Section Four.
    On motion to quash information in the nature of a writ of quo ivarranto.

      Before Justices Pakkeb, Mintukn and Campbell.
    Por the relators, Clarence L. Cole.

    Por the respondents, Emerson Richards.

   Per Curiam.

This is a contest for municipal office. Campbell v. Champion, 138 Atl. Rep. 539; 5 N. J. Mis. R. 889. Relators, instead of taking advantage of the act of 1884, page 330, now section 4 of the Quo Warranto act (Comp. Stat., p. 4212), dispensing with leave of the court, seem to have proceeded under section 1 of the latter act, for -they applied to Mr. Justice Campbell and obtained his consent to filing the information. They were at liberty to invoke either section 1 or section 4. Application was made to Mr. Justice Campbell to vacate his consent, which he refused to do, ubi supra, and similar application is now made to' the court. Key v. Paul, 61 N. J. L. 133.

The first ground of the motion is that the judicial consent was given without any rule to show cause or other notice to respondents, as required by the practice. Miller v. Seymour, 67 N. J. L. 482. It may be conceded that consent was improvidently given, and that in strictness the information might and probabty should be quashed. Miller v. Seymour (at p. 485). This, however, would only lead to a new application followed by a rule to show cause, and involving a reiteration of the arguments on the merits already had before Mr. Justice Campbell and before this court in banc; and if the relators have a meritorious case such rule should be made absolute. It seems needless to go through this procedure in a case wherein relators were entitled as of right to file an information upon giving security for costs, in view of the fact that respondents have twice been fully heard as though in opposition to the rule; and therefore, if we conclude that the case shows merit, it is convenient to let the allowance stand, saving to respondents all proper opportunity of defense.

On the merits the argument is that the proceeding is an attack on the office itself and not on the incumbent. This was decided adversely by Mr. Justice Campbell, and we agree with his views as unofficially reported.

The further point is made that no bond was made and approved as required by section 5 (Comp. Stat., p. 4213). But this requirement of a bond relates only to procedure under section 4, which is section 2 of the act of 1884.

The motion to quash the information will be denied, but without costs; on terms, however, that each relator forthwith furnish a bond to the defendants to secure costs as though this action rested upon section 4; and thereupon the cause may proceed as provided in sections 6, et seq.