text:
    MORRIS MARGOLIN, RELATOR. v. BAYONNE STAR LODGE, No. 212, INDEPENDENT ORDER OF BRITH SHOLEM, ET AL., RESPONDENTS.
    Argued February 19, 1924
    Decided April 10, 1924.
    Corporations — Membership in Lodge — By-Laws of Lodge and Regulations Relating to Membership Discipline- — Facts in Instant Case Uncertain.
    On rule to show cause why mandamus should not issue.
    Before Justices Trenchaed, Parker and Campbell.
    For the relator, Aaron A. Melniker.

    For the respondents, Charles Rubensteain and Alfred Brenner.

   Per Curiam.

Relator was a member of the respondent lodge. Charges were preferred against him. upon which a trial was had, and the determination made against him “unanimously was that Brother Margolin was to- be taken away his voice for one year’s time.”

From that an appeal was taken within the order to the executive board of the Grand Lodge, in which the decision was “that there should be nothing of the charges against Brother Margolin, and he shall be given back his voice, and if Brother Margolin shall from to-day on not behave himself or insult a brother, or he shall be only under a charge, the lodge shall have a right to expel him from membership and also from the order.”

Later, a further complaint was made against relator, who was notified to appear before the committee of the respondent lodge. He appeared, but, instead of consenting to trial, filed a notice that he desired that the matter be heard by the executive board, pursuant to section 5, article 24 of the bylaws.' Thereafter the respondent lodge acting, as is contended, within the authority conferred upon it by the exeeutive board above recited, expelled relator from membership in the lodge.

It seems that relator then pressed his appeal to the executive board asking for a final decision, and there is evidence tending to show that his appeal was being considered by that bodjr, and was undetermined at the time when the rule to show cause now before us was obtained upon the theory that he had been improperly deprived of his membership in the organization without due notice and hearing. On the other haud, there is evidence tending to show that the appeal has been in effect determined adversely to the relator. In this uncertain state of the evidence upon the question whether or not his appeal has been in effect determined adversely, or, in other words, whether or not the relator has been expelled, it seems quite manifest that the most relator can properly have at this time is an alternative writ of mandamus.

Such a writ avüI be awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ADAM GRAUZAUSKAS, PROSECUTOR, v. STATE OF NEW JERSEY, RESPONDENT.
    Argued February 19, 1924
    Decided April 10, 1924.
    Motor Vehicles — Conviction for Drunkenness — Conviction Regardless of Fact That “No Complaint Had Been Made or Signed” — Appeal to Common Pleas.
    On certiorari, &c.
    Before Justices Trexchard, Parker and Campbell.
    For the prosecutor, Cole & Cole.

    For the respondent, Grover G. Richmond, assistant attorney-general.
   Per Curiam.

This writ brings up for review the action of the Common Pleas Court of Atlantic county on an appeal taken pursuant to the Motor Vehicle act. Pamph. L. 1921, p. 643.

The return shows that the prosecutor was convicted and sentenced by a justice of the peace for driving an automobile while under the influence of intoxicating liquors. It also shows that he was thus convicted regardless of the fact that “no complaint had been made or signed” against the defendant, the prosecutor here. That conviction was therefore illegal. Watt v. Wallerius, 2 N. J. Adv. R. 508.

From that conviction the defendant look an appeal to the Court of Common Pleas, and that court fixed August 8th, 1923, for the trial de novo, to which the Motor Vehicle act entitled the defendant upon his appeal Such a trial he did not get. Upon the day fixed for such hearing his counsel moved to reverse such conviction and dismiss the proceeding (then under review), for the reason (among others) that “no complaint in writing was made or signed before the hearing.” That motion was resisted by the assistant prosecutor of the pleas of Atlantic county, who then appeared for the state below, and the motion was denied. Counsel for the defendant then moved that the trial proceed. That motion likewise was resisted and was denied, and the trial judge, without more, ordered that "the appeal bond be and the same hereby is declared forfeited,” because the defendant was not actually in court, although represented by counsel.

It is to review the denial of these motions and the forfeiture of the bond that this certiora/ri was allowed.

As we have pointed out, it seems quite plain that the defendant was improperly convicted by the justice of the peace. That being so, we perceive no reason why the motion addressed to the infirmity in the proceeding should not have been granted by the Common Pleas Court. _ And we think that the mere fact that the defendant was not actually in court when such motion was made, by his counsel, did not justify the forfeiture of his appeal bond in the: circumstances of the case.

The order of forfeiture will be set aside, but without costs.


author: Oaepebiy, J.

text:
    Essex County Orphans Court.
    In the matter of the application of Bloomfied Trust Company as guardian of Anna Taft Peloubet, a minor, for permission to expend a portion of the corpus of said minor.
    Guardianship — Use of Corpus for Education of Ward — Where Necessary, Guardian May Use Corpus Without Application to Court.

      Mr. Robert M. Boyd, Jr., for the petitioner.
   Oaepebiy, J.

Petitioner is the guardian of Anna Taft Peloubet, a minor of the age of seventeen years, and has m its hands as such guardian the sum of six thousand five hundred ($6,500) dollars.

The total income derived from the estate of said minor is about three hundred and eighty ($380) dollars. The minor is about to graduate from high school and desires to acquire a college education. The father of said minor is not able to assist her financially, and petitioner is seeking an order of this court authorizing the expenditure from the principal of said minor’s estate of the sum of one thousand ($1,000) dollars for her support and maintenance at college for the ensuing year.

It is settled that in case the income from the ward’s estate-is insufficient for her maintenance and. education, the principal may be used for that purpose, if necessary, without application to the court. In re Hannah Barry, 61 N. J. Eq. 135, 139. It is further settled that wh'le it is the duty of a father to support, educate and maintaii his infant children, the court, in determining the question of the extent of a parent’s duty to support his or her inf mt child, will take into consideration all the circumstances, including as well the parent’s liability as the child’s fortune. Alling v. Alling, 52 N. J. Eq. 92.

When a person assumes to act as guardian, trustee, executor or administrator, he assumes certain responsibilities, and it is his right and duty to use his discretion within legal limits, to the extent of the circumstances of which a particular case warrant at the time. He does not need any order of the court to do any of these things, and, as has already been said, there is no doubt of the authority of a guardian to expend even the whole of a ward’s funds for his education and maintenance if the circumstances of the case are such as to warrant such expenditure.

A full consideration of applications of this character will be found in the opinion by Vice-Chancellor Emery in the case of In re Hannah Barry, supra. The subject is disposed of in his concluding words in that opinion, in which he says r “The general policy of the statutes and decisions in this state upon the question now presented has been to leave the question of the necessity of the expenditure of the personal estate, both income and principal, to the judgment of the guardian in the first instance, subject to affirmance by the orphans court on the settlement of his accounts, and in all ordinary cases this course [which has been followed for over a century] affords protection both to the guardian and the infants.” See, also, In re Vieweger, 93 N. J. Eq. 527.

The course above outlined has been consistently followed in this court for many years.

In the case under consideration the father of the ward is financially unable to assist her in procuring a college education, and it appears that the ward has shown a high degree of scholarship in the past, and will, in all probability, be successful at college and attain her ambition to render herself self-supporting, and it is the duty of a guardian, in the exercise of the discretion which the law imposes upon him, to provide for the education of his ward from the principal of her estate, if necessary. The case is barren of any special circumstances justifying the intervention of this court.

The application will therefore bo denied.


author: Eieldee, V. C.

text:
    George Gonzales, complainant, v. Harrington Company, Inc., defendant.
    [Decided December 7th, 1923.]
    Taxes — Sale of Land for Taxes — Complainant Holding Mortgage on Delinquent Lands Desires to Redeem — Right to Redeem — Procedure in Redemption.
    On bill to redeem from tax sale.

      Mr. Anthony P. La Porta and Mr. John D. Pierson, for the complainant.

      Mr. Harry B. Broclchurst and Mr. Merritt Lane, for the defendant.
   Eieldee, V. C.

Complainant, holding a mortgage on the premises described in the bill of complaint, filed his bill December loth, 1922, alleging that the owner of the premises failed to pay taxes and other municipal liens affecting the premises, and, as a result, the same were sold to the defendant from time to time by the collector of taxes. The bill states that when complainant expressed to defendant his desire and willingness to redeem from these taxes sales, defendant demanded that complainant pay an excessive and illegal amount, and that complainant is willing to pay defendant such amount as this court may fix. The bill prays that defendant he restrained from disposing of the premises, and that it he ordered to convey or assign to complainant any interest it has under its tax deeds or certificates of sale, upon payment to it of such sum as this court may find due.

Defendant contends that the only question raised by the pleadings is whether complainant has the right to redeem from the last sale, to wit, the sale of May 17th, 1922. I do not so read the bill and the answer. The latter does not deny that defendant was the purchaser at several tax sales, and the cause was tried on the theory that complainant is seeking to redeem by paying defendant such sum as may be justly due under all tax sales, and if the bill of complaint does not show clearly that such is its object, it may be amended accordingly.

One of the tax sales was made April 14th, 1919, for unpaid taxes of 1917. On October 11th, 1922, defendant served complainant with notice to redeem from such sale, stating in such notice that unless complainant redeemed on or before December 15, 1922, his right to redeem would be barred. Complainant had intrusted a sum of money to an .attorney to invest for him and the attorney had assigned to complainant a mortgage which the attorney held on the premises in question. This fact was not known to complainant until after the notice to redeem was served on him and he had examined the records to ascertain what interest he had in the premises. Upon learning what his interest was, complainant endeavored to ascertain from defendant’s officers or representatives the exact amount of its lien under all tax sales, and informed defendant that it was ready to pay such amount. Defendant gave complainant a memorandum, which consisted solely of a column of figures and its total, and notified complainant it would accept nothing less than such total. Complainant also- procured an official tax search which showed that the premises had been sold for unpaid taxes for eight years, but showed no amount for interest, costs or other charges, and from which the total sum due could not be computed. Defendant subsequently sent complainant a more complete statement, which did not correspond with the list of figures first furnished, and which statement included an excessive amount for interest and expenses, a claim for moneys expended for repairs on the property anti certain principal sums paid at tax sales of other property sold with the premises in question. It also appears that certain moneys, the amount of which was not stated, have been paid to defendant by owners in redemption o£ other property included in the sales of the premises in question, for which money so received by defendant it gave no credit on its claim made against the complainant. On the trial of this cause defendant’s secretary was called as a witness by complainant. He was familiar with these sales and had defendant’s books in court, but he was unable to even approximate the correct amount due from complainant to defendant under the tax sales. No attempt was made by defendant’s officers to accede to complainant’s request before suit commenced, that they meet him or his representative in an endeavor to solve what was a complicated situation, and to state an account for the purpose of ascertaining the exact amount which complainant should pay to redeem from all tax sales, and so complainant filed his bill to redeem on the last day for redemption as fixed bjr the notice served on him. Three days after the bill was filed, defendant recorded its certificate of the 1919 sale, its notice and the proceedings thereunder, in the manner provided by the statute, and it set up in its answer, and now insists, that under the statute such record constitutes a deed or conveyance of complainant’s interest in the premises, and that he is now a stranger to the title and has no right to redeem. I shall assume that such recording was clone before defendant had knowledge of the filing of this bill of complaint, but I feel that the conduct of defendant in demanding a grossly excessive sum from complainant, and in refusing to meet with complainant fox the purposes of arriving at the correct amount due, was a fraud on complainant, perpetrated with intent to force complainant to pay defendant’s illegal claim, and that complainant is entitled to come into this court for relief. Nugent v. Hayes, 120 Atl. Rep. 38.

The notice to redeem served on complainant states that the tax sale upon which it is founded was made under the act of 1903 (Comp. Stat. p. 5079) and its supplements, and it requires complainant to redeem within sixty days as provided by that act (section 59), or on or before December loth, 1922. By supplement (P. L. 1913 p. 821) to the act of 1903, where the time to redeem from a tax sale has expired, and the failure to redeem shall be due to a dispute between the purchaser and a party in interest, concerning the costs and charges to which the purchaser is entitled, this court is given jurisdiction to determine the amount due the purchaser for taxes, interest, costs and charges. If complainant’s time to redeem had expired when his bill was filed, he would still be entitled to relief in this court, unless the act of 1903 and its supplements have been repealed, as defendant contends, by implication by the act of 1918. P. L. 1918 p. 883. I do not think it' necessary to determine the question of repeal, because if the sale in question (made April 14th, 191.9) was under the act of 1918 and not under the act of 1903, complainant was entitled by the act of 1918 (section 46) to six months’ notice to redeem, and the notice served on him was of no effect. However that may be, I think that in a case such as this, where defendant demanded an excessive sum, and where the true amount due could not be ascertained from the collector of taxes, as I shall hereinafter show, or from the official records and where resort must be had to defendant’s books, this court has jurisdiction to entertain complainant’s prayer that an account be taken for the purpose of permitting him to redeem the property in which he has an interest.

Defendant contends that complainant should have made tender of the amount due prior to filing his bill. It is a fact that no sum of money whs ever offered by complainant to defendant. As I have stated, the situation with regard to the tax sales was complicated and involved. The amount claimed by defendant from complainant was not the correct amount due, and complainant made efforts to arrange an interview with defendant’s officers for the purpose of determining the, actual amount to be paid. Defendant stated it would accept nothing less than the total sum it demanded, and therefore complainant is excused from making an actual tender (Thorne v. Mosher, 20 N. J. Eq. 257; Trenton Street Railway v. Lawlor, 74 N. J. Eq. 828), and the filing of this bill is a sufficient tender of payment.

Defendant next contends that the statute requires that payment of the amount due be made to the collector of taxes, and that complainant made no such payment or tender of payment. Complainant did call on the collector of taxes and endeavored to ascertain from that official how much he was required to pay to redeem the property from all the tax sales. The collector declined to- inform him or to accept any money from him, and referred complainant to defendant for settlement and payment. Complainant was entitled to the information he sought from the collector, and failing to obtain it, he was practically refused the right to redeem, and it would have been idle for complainant to have tendered the collector any sum of money after the collector had declined to deal with complainant. Mitsch v. Riverside, 86 N. J. Law 604, 609.

It should be referred to a special master to take and state an- account of the amount due defendant o-n all its tax sales covering the premises in question, and, after such amount is ascertained, complainant will be given a reasonable time within which to pay the same to- defendant, whereupon defendant will be ordered to- convey and assign to complainant all its interest in the premises in question under such tax sales.


author: Fielder, Y. C.

text:
    George Gonzales, complainant, v. Harrington Company, Inc., defendant.
    [Decided December 7th, 1923.]
    Taxes — 'Sale of Lands — Right to Redeem — Case Similar to Preceding Case.
    On bill to redeem from tax sales.

      Mr. Anthony P. La, Poria and Mrs. John D. Pierson, for the complainant.

      Mr. Harry B. Brochhurst and Mr. Merritt Lane, for the •defendant.
   Fielder, Y. C.

Complainant, holding mortgages on the premises described in the bill of complaint, filed his bill October 7th, 1922, alleging that the owner of the-premises failed to pay taxes and other municipal liens affecting the premises, and as a result the same were sold to the defendant, from time to ime, by the collector of taxes. The bill states that when complainant expressed to defendant his desire and willingness to redeem from these tax sales, defendant demanded that complainant pay an excessive and illegal amount, and that complainant is willing to pay defendant such amount as this court may fix. The bill prays that defendant be restrained from disposing of the premises, and that it be ordered to convey or assign to- complainant any interest it 'has under its tax deeds or certificates of sale, upon payment to it of such sum as this court may find due.

Defendant contends that the only question raised by the pleadings is whether complainant has the right to redeem from the last tax sale, to wit, the sale of May 17th, 1922. I do not so read the bill and the answer. The latter alleges that defendant is the purchaser under several tax sales from which complainant has taken no legal steps to redeem, and it denies complainant’s right to redeem from any or all of them by this proceeding. Moreover, the cause was tried on the theory that complainant is seeking to- redeem by paying defendant such sum as may be justly due under all tax sales, and if the bill of complainat does not show clearly that such is its object, it may be amended accordingly.

Before filing his bill complainant knew that defendant claimed to hold several tax sales covering the premises. He made several efforts to- ascertain from defendant’s officers or representatives the exact amount defendant claimed thereunder, and informed defendant that he was prepared to pay the full amount justly due. Defendant gave complainant a statement of the amount it claimed and notified complainant it would accept no- less. This statement included an excessive amount for interest and expenses, a claim for moneys expended for repairs on the property and certain principal sums paid at tax sales o-f other property sold with the premises in question. It also appears that certain moneys, the amount of which was not stated, have been paid to defendant by owners, in redemption of other property included in sales of the premises in question, for which money so received hv defendant complainant is entitled to credit on the amount demended by defendant. On the trial of this cause defendant’s secretary was called as a witness by complainant. He was familiar with these sales and had defendant’s books in court, but he was unable to even approximate the correct amount due from complainant to- defendant under the tax sales. No attempt was made by defendant’s officers to accede to complainant’s requests that they meet with him or his representatives in an endeavor to solve what was a complicated situation, and to- state an account for the purpose of ascertaining the exact amount which complainant should pay to- redeem from all the tax sales.

Defendant had taken no- steps prior to the filing of the bill of complaint to perfect title by notices to- redeem under any of its tax sales. One of such sales had been made April 14th, 1919, for unpaid taxes of 1917. After hill filed, defendant served complainant with notice to redeem from the 1919 sale. Relying on the statute and the notice, defendant claims that complainant’s time to redeem expired December 15th, 1922. After that day, and upon complainant’s failure to redeem as required by the notice, defendant recorded its. certificate of sale, notice and proceedings thereunder in the manner directed by the statute, and it now claims that,, under the statute, such record constitutes a deed or conveyance of complainant’s interest in the premises, and that he is now a stranger to the title and has no right to redeem. If, when defendant served such notice to redeem, it was aware of the filing of the bill in this cause, I Would regard its conduct as an affront to this court. It recorded its proceedings under its notice to redeem after it had filed its answer herein, and such step was certainly trifling with this court and an attempt at fraud on complainant, because by filing its answer, in which it made no mention of the notice it had served, it led complainant to believe that it did not intend to rety on its notice, but would’ submit to the determination of this court, if this court had jurisdiction. By such conduct it is estopped from setting up in this suit any claim, or right under its notice -to redeem. Clift v. Frenche, 83 N. J. Eq. 437; Nugent v. Hayes, 120 Atl. Rep. 38. I shall disregard the legal- proceedings taken by defendant after this suit was commenced, and the rights and equities between the parties will be determined as of the date of filing the bill of complaint.

Defendant contends that complainant should have made tender of the amount due prior to filing his bill. It is a fact that no- specific sum of money was ever offered by complainant to defendant. As I have stated, the situation with regard to the tax sales was complicated and involved. The amount claimed by defendant was not the correct amount due, and complainant made several efforts to arrange interviews with defendant’s officers for the purpose of determining the actual amount to be paid, but said officers avoided a meeting with complainant, apparently with the idea of forcing payment on its terms. Defendant stated it would.accept nothing less than the total sum it demanded, and therefore complainant is excused from making an actual tender. Thorne v. Mosher, 20 N. J. Eq. 257; Trenton Street Railway v. Lawlor, 74. N. J. Eq. 828. The filing of this bill is a sufficient tender of payment.

Defendant next contends that the statute requires that payment of the amount due be made to- the collector of taxes, and that complainant made no such payment or tender of payment. Complainant did call on the collector and endeavored to- ascertain from that official how much he was required to pay to redeem the property from all tax sales. The collector declined to inform him or to accept any money from him, and referred complainant to defendant for settlement and payment. Complainant was entitled to the information he sought from the collector, and, failing to obtain it, he was practically refused the right to redeem, and it would have been idle for complainant to- tender tlm collector any sum of money after the collector had declined to deal with complainant. Mitsch v. Riverside, 86 N. J. Law 604, 609. Complainant procured official tax searches which were practically transcripts of the tax sale records. They show sales to the defendant for twelve years against each of the two tracts described in the bill of complaint, some interest items, but no costs or other charges. The searches also show5 that in some of the sales other property was included, and that in those cases the premises in question and the other property had been sold together for a lump sum. It was therefore impossible for complainant or the collector of taxes to determine from the tax records what sum should be paid by complainant to the collector in redemption of the property in which complainant was interested.

It should be-referred to a special master to take and state an account of the amount due defendant on all of its tax sales covering the premises in question, and, after such amount is ascertained, complainant will be given a reasonable time within which to pay the same to defendant, whereupon defendant will be ordered to convey and assign to complainant all its interest in the premises in question under-such tax sales.


author: Stein, J.

text:
    Union County Court of Common Pleas.
    State of New Jersey, complainant, v. Cyrus P. Wilcox, defendant.
    Motor Vehicles — Driving While Intoxicated — Proceedings irt Issuance of Warrant — Jurisdiction of Court.

      Messrs. Reed & Crane, for the complainant.

      Mr. Robert N. Crane, for the defendant.
   Stein, J.

The defendant was convicted by William Demeza, city judge of Plainfield, for violation of section 14 'of article 3 of the laws of 1921, chapter 208, and the amendments and supplements thereto. Hie was charged with having on the 23d day of Eebruary, 1924, at the city of Plainfield, operated a motor vehicle while under the influence of intoxicating liquor, or narcotics or habit-forming drugs, and upon such conviction was sentenced to the county jail for a period of thirty (30) days, and, in addition thereto> his license was revoked.

Appeal was taken to this court, and, as required by the statute, the order, complaint and transcript of the proceedings below are now before it. It is contended by counsel for defendant that the record and the transcript of the proceedings fail to give the court jurisdiction — -firstly, because the conviction is not in the form provided for by chapter 137 of the laws of 1923, and, secondly, because no warrant was' issued as provided for in section 31 of the act of' 1921.

As to the first point, it is without merit, because under section 28, when an appeal is taken to the court of common pleas, the act provides that this court shall, “dé novo, and in a summary way, try and determine all such appeals,” so that if the form of conviction below was improper a proper form of conviction could be entered by this court, if, upon the trial de novo, the defendant was found guilty.

As to the second point, the defendant was arrested by State Trooper Apgar on February 25th, without a warrant, for a violation of the law committed in his presence. The law provides, among other things, that an officer,, upon satisfying himself that an offender is a resident of this state “may,” instead of arresting such offender, * * * serve upon him a summons to appear before any police court, recorder’s court or other court of competent jurisdiction in the county, city, town, township, village, borough or other municipality wherein such officer is authorized to discharge his duties, hut, when an arrest is made without a warrant, the person so offending “shall” he detained in the office of the magistrate until the officer making such arrest “shall” make oath or affirmation, “which he shall do forthwith,” declaring that the person under arrest has violated the provisions of the law, “whereupon said magistrate shall issue a warrant returnable forthwith,” and proceed summarily to hear or postpone the case, as provided in sections 2(5 and 27 of the act.

It appears from the transcript that, although the defendant was taken into custody by Trooper Apgar on February 25th, 1924, and the hearing postponed from time to time until March 21st, 1924, that in the interim, no complaint was made until March 21st, 1924, the day of the hearing, and no warrant was in fact ever issued.

The presumption is that the word “shall” in a statute is used in an imperative and not a directory' sense. If a different interpretation is sought, it must rest upon something in the character of the legislation or in the context, which will justify a different meaning. Hayethorn v. Van Kuren & Son, 79 N. J. Law 101.

There is nothing in the language of the section to indicate that the word “shall” was used in a permissive sense— indeed, the legislature plainly distinguished between mandatory and directory language, for in the same section the legislature- was quite clear in -giving -the' officer permission to serve the defendant Avith- summons, instead of arresting him, for it-says he “may/- upon satisfying himself that the offender is a resident of the state, serve him with summons to appear.

Further, the Motor Vehicle -act is a penal statute, and is, therefore,' gwsi-criminal in character. Watt v. Wallerius, 2 N. J. Adv. R. 508. While section 28 provides that this court shall, de novo, and in a summary way try and determine such cases on appeal, it must do so on the transcript of the proceedings beloAV. If that court had no jurisdiction, none can be acquired in this court to hear the case de novo. The- -motion of the counsel'-for the defendant addressed to the infirmity in the proceedings beloiv is proper. Grauzauskas v. State, 2 N. J. Mis. R. 307. No' warrant having been 'issued, the judgment of the city court of Plainfield Avill be reversed.


author: Eieldeb, V. C.

text:
    Alexander Rubinstein, complainant, v. William Kasprzak et al., defendants.
    [Decided October 30th, 1923.]
    Corporations — Transfer of Stock — -Question of Ownership of Shares Bought With Corporate Funds Which Appeared as a Loan to a Director and was Afterward Repaid to the Corporation by the Director.
    On bill, &c.

      Messrs. Ward & McGinnis and Mr. Wood McKee, for the complainant.

      Mr. William I. Lewis, for the defendants.
   Eieldeb, V. C.

Complainant claims to be the owner of forty shares of the Stanley Silk Dyeing Co. by purchase from former owners thereof, which stock he presented to the proper officers of the company for transfer to his name, and transfer was refused. He filed his bill against the company- and its officers (who are the only other stockholders), praying that the secretary be directed to transfer said shares to his name on the company’s books, and that pending this suit the stockholders and directors bé restrained from holding meetings. The defense is that the shares in question were purchased by the company and retired, and that the certificates of «tock are held by complainant as custodian for the company.

This is a close corporation, all stock issued being “held by Stanley Krasprzak, who is treasurer; William Krasprzak, who is secretary : Veronica Kasprzak and complainant, who is president. Stanley and William Kasprzak and complainant constitute the present board of directors. If the shares in question belong to complainant and are added to other shares he owns, he has a majority of the capital stock, but if the shares were purchased by the company and should be retired, the Kasprzak family has the stock control, so that the Kasprzaks ar.e the persons really interested in resisting complainant’s claim.

The admitted facts are that prior to August, 1918, the forty shares in question were owned by Albert Walzak, John Lingelbach, Stanley Olterzcwski and John Harsche; that such shares were purchased-from the owners and paid for by the company’s cheeks and notes dated August 5th, 1918, to the order of the owners', for a total of $7,200; that the certificates were assigned by the owners thereof and delivered to complainant, who held them in his possession until August, 1922, when he presented them to the company’s officers with the request that they be transferred on the company’s books to his name as owner, and a new certificate delivered to him, which request was refused on the ground that the shares belonged to the company. As to practically everything else of importance in the case alleged by the one side, there is a flat denial by the other, and it -is difficult to determine where the truth lies, but relying largely on the minutes of the company and on its books of account, all being records kept at a time when the relations between the parties were harmonious and when it does not seem probable that complainant was laying a foundation for a claim which he waited four years to assert, I have reached the conclusion that the complainant’s story of the transaction is the true one and that he is entitled to the relief he seeks.

. The company was incorporated October, 1916, Rubinstein, the complainant,, Stanley Kasprzak, Harsche, Lingelbach, Walzak and William Kasprzak were on its first board of directors,* which was completed by the election of Olterzcwski, December; 1916. Rubinstein was elected president and Stanley. Kasprzak treasurer, and by-agreement with the company Kasprzak was employed as superintendent and manager of the business, and Rubinstein was employed as its soliciting agent. As early as April, 1917, the other stockholders and directors were complaining o£ the management of Kasprzak and Rubinstein, and at a meeting of the board, held April 30th, 1917, four dissatisfied stockholders expressed a desire to dispose of their shares and were informed that the company would not buy because it did not have the money. At five directors’ meetings prior to June 24th, 1918, the subject of the sale of this stock to the company was discussed and it was reiterated that the company had not the money and would not buy. From the minutes of six other directors’ meetings, during the same period, it appears that the company’s business was poor; that many repairs to, and replacements of, machinery were required, and that because of lack of funds a frequently discussed dividend could not be paid. At the meeting of June 24th, 1918, William Kasprzak informed the board that he had sold his shares to Rubinstein, and the secretary asked why he had sold his shares without notice to the company. Rubinstein replied that the company had not the money and that because certain shareholders had stated they proposed to buy he, Rubinstein, had bought the shares from William Kasprzak. For some undisclosed reason this sale of stock did not go through. About this time the four dissatisfied stockholders took their troubles to Attorney Benson, who, after' several interviews with Rubinstein, arranged with Rubinstein for a sale of the stock. In the minutes of a directors’ meeting, hold July 29th, 1918, it is recorded that Rubinstein, upon being asked about these stockholders, stated that he had been called to Benson’s office July 20th with Olterzcwski, Walzak and Stanley Kasprzak had made arrangements to purchase the stock. Rubinstein testified that after his first meeting with Benson, he consulted Stanley Kasprzak, who told him that the company could not take the stock, and that he then asked Kasprzak if ho, Kasprzak, would buy, and Kasprzak said he would not, and told Rubinstein to purchase it; that Rubinstein then asked Kasprzak if he could borrow the necessary money from the company, and that Kasprzak consented, and thereupon Rubinstein informed Benson that he would buy. This is denied by Kasprzak, but because at the directors’ meetings it had been uniformly officially decided that the company -was not in funds and could not buy, and because of other circumstances to which I shall refer, I feel that Eubinstein’s story is corroborated.

The sale was consummated August 5th, 1918, at Benson’s office. Harsche, one of the stockholders who sold, had previously signed the form of transfer endorsed on his certificate and had given his certificate to Walzak to deliver for him, and was not present at the transfer. Walzak, Lingelbach and Olterzcwski, who were at Benson’s office when the sale was closed, testified that they signed the assignments of their certificates in blank and delivered the certificates to Benson in exchange for their checks and notes. Benson had not known Eubinstein prior to this transaction and he was acting in the matter for Walzak, Lingelbach, Olterzcwski and Harsche. He is a disinterested witness and he testified that the body of each assignment, including Eubinstein’s name as assignee, is in his (Benson’s) handwriting, and that he is quite sure that the assignments were filled in as they now appear, before the assignors signed. Eubinstein’s testimony is to the same effect. Whether Benson filled in the assignments before or after the assignors signed, it is apparent from his testimony that his understanding of the transaction was that Eubinstein was purchasing the stock, and hence he named Eubinstein as the assignee in the assignments, and this in spite of the fact that the checks and notes which were delivered at his office in payment for the stock were made by the company. The certificates of stock were then delivered to Eubinstein, who has had them ever since.

The checks and notes which paid for the stock were prepared by Veronica Kasprzak, daughter of Stanley Kasprzak, who was then the company’s bookkeeper. These disbursements of company’s funds were entered in the cash book by Veronica Kasprzak under date of August 5th, 1918, as payments to the respective stockholders who sold, with the amount paid each opposite his name, the total being $7,200, and the four entries were bracketed by her, and outside the bracket she wrote the words "a loan.” Bubinstein repaid the money to the company in three installments, as follows: October 21st, 1918, $3,500; November 23d, 1918, $2,000, and May 3d, 1919, $1,700, each of which payments is credited to Bubinstein in the company’s cash book in the handwriting of Veronica Kasprzak, and to each of which she added the words "return of loan.” Veronica Kasprzak says that when she made the entry of August 5th, 1918, she knew that the transaction was a purchase of the stock in question, but that she did not know Rubinstein to be the purchaser, and that she made all the entries in the cash book, including the words "a loan” and "return of loan” under Rubinstein’s direction, without understanding the reason for or meaning of such entries. This Rubinstein denies, and he says she was with her father when he and Kasprzak discussed the proposed loan to Rubinstein.

Miss Kasprzak graduated from a Paterson grammar school in 1914, and after being employed in a mill, went to work as bookkeeper for the company in July, 1918, when she was about seventeen years old. She is an intelligent young woman, speaking and writing the English language perfectly, and throughout the trial of this case she sat with defendant’s counsel and was frequently consulted by, and -she advised with, him in connection with the trial. Before and after the purchase of the stock she resided with her father. It seems improbable that the purchase of this stock was not discussed in her presence in the home and in the office, and that she did not understand the whole transaction and did not know that the first entry she made in the cash book indicated that the company was loaning $7,200 to Rubinstein to pay for the stock purchased from the four stockholders, nor does it seem probable that when she made the first entry of repayment by Rubinstein and added the words "return of loan” October 21st, 1918, after she had kept the company’s books nearly four months, she did not know that Rubinstein Avas returning part of the money loaned him by the company to purchase the stock in question.

A bookkeeper not regularly employed by the company, but called in from time to time to keep the company’s ledger, posted the entries from the cash book. He testified that in posting the first entries to which I have referred, he charged Rubinstein’s loan account with the $7,300 paid the stockholders, because Miss Kasprzak told him that the amount should be so charged and that he credited the loan account with the three payments made by Rubinstein, because the cash book entries showed they should be so credited. The ledger was kept in the office of'the company and Miss Kasprzak had access to it, and it does not seem'probable that she did not know of Rubinstein’s loan account and the entries therein.

The minute record of a directors’ meeting of August 36th, 1918, shows Stanley Kasprzak, Rubinstein and Bieszczad as the only persons present, the latter being then secretary and a director, but having since sold his stock, to Veronica Kasprzak. At this meeting Rubinstein reported that on August 5th, 1918, he had paid the four stockholders $7,300 for their shares, whereupon Bieczczad asked Rubinstein who paid for the shares. Kasprzak answered the question by saying that the stock had been paid for "with the company’s money.” Rubinstein then stated "to the company” that he would like to have the forty shares divided equally between Kasprzak and himself, and Bieszczad asked Kasprzak if he agreed to this, and the minutes show that Kasprzak replied "that he isn’t.” It is contended by Kasprzak that the wnrd last quoted as originally written in the minutes was "is” and that it has been changed by some person, who, it is inferred, is Rubinstein, to “isn’t.” Rubinstein, who signed the minutes, says that it was originally written “isn’t,” while Bieszczad, who took the minutes in Polish and whose son afterward translated them into English and wrote them in the minute book, says that the word was originally "is.” The disputed word has a different appearance from the other words in the sentence, but I am not convinced that the handwriting is different, but rather that the difference in appearance is due to a greater quantity of ink having been used in writing the word.

Kasprzak, by his filed answer and by his testimony, contends that the stock was not purchased by or for the benefit of any'individual, but by the company, and was retired, notwithstanding that, up to the time of the purchase, the minutes show that the board of directors had refused several times to purchase for the company, and that the company apparently did not have the money with which to purchase. It therefore seems to me that at the meeting of August 26th, 1918, after Kasprzak had stated that the stock ha,d been paid for “with the company money,” and Rubinstein, speaking as though he had the right to dispose of the shares, had stated “to the company” that he would like to have Kasprzak take half of them, Kasprzak could not have said he was willing, and the secretary who took the minutes could not have noted that Kasprzak said “that he is,” because Kasprzak’s natural reply to Rubinstein’s proposition would he a statement to the effect that Rubinstein was not the owner of the stock and could not make any disposition of the shares. The books of account show that the money used for the purchase of the stock was loaned to Rubinstein and that the loan was repaid by him. The certificates for the forty shares have always been in Rubinstein’s possession. The fact that Kasprzak never paid, or offered to pay, Rubinstein for twenty shares, and never made demand on Rubinstein for any shares, also negatives his claim that at the meeting in question he agreed to take half of them. If, however, at this meeting, Kasprzak did agree to an equal division of the forty shares between Rubinstein and himself, it must have been his understanding that Rubinstein and not the company had purchased, because if he believed the company to be the owner of the stock, he must have known that he and Rubinstein could not take the stock purchased with company funds and for the company, to the exclusion of the other two stockholders, William Kasprzak and Biesczcad.

Defendants call attention to a dividend amounting to $2,050, which was paid by the company November 21st, 1918. At that date the stock outside of the forty shares was held as follows: Rubinstein, ten shares; Stanley Kasprzak, seventeen shares; Biesczcad, ten shares, and William Kasprzak, five shares. Of this dividend Rubinstein arid Stanley Kasprzak received equal amounts, and -the defendants argue that -if Rubinstein was then the owner of the forty shares in question, he would not have consented to share equally in this dividend with Kasprzak. Rubinstein’s explanation is that he and Kasprzak were friends when they formed the company, and that they then agreed to share equally in all amounts drawn.’from the company, whether for-salaries or profits, regardless of their stock holdings. They did share equally in salaries and in other amounts draAvn by them from the company under resolutions passed by the board of directors, and while his' explanation of an equal sharing of dividends, when, as he claims, he owned fifty shares and Kasprzak owned seventeen, appears on its face improbable, yet if the situation was as Kasprzak claims, namely, that the forty shares had been retired, and he owned seventeen shares and Rubinstein owned ten, he, Kasprzak, was consenting to an equal apportionment of the dividend between Rubinstein and himself, notwithstanding the difference in the number of shares held by each, so that the manner in which the dividend was paid out does not affect my opinion as to the merits of Rubinstein’s claim.

In explanation of his holding the certificates purchased, from August-5th, 1918, to* August, 1922, and failing to present them to the secretary for transfer, Rubinstein says he did not know it was necessary to. have the shares transferred, and that his ignorance continued until he learned that Veronica Kasprzak had purchased Biesczcad’s shares and had presented them for transfer in August, 1922, whereupon he presented his shares. None of the stockholders had had any experience with' corporations or with stock ownership and all were more or less ignorant of business methods, so that Rubinstein’s explanation appears to me to be reasonable.

Section 48 of the Corporation act (Comp. Stat. p. 1630) provides: .

“'Nothing but money shall be considered as payment of any part of the capital stock of any corporation organized under this act, except as hereinbefore provided, in the case of the purchase of property, and no loan of money shall be made to a stockholder or officer thereof; and if any such loan be made the officers who made it, or assent thereto, shall be jointly and severally • liable, to the extent of such loan and interest, for all the debts of the corporation until the repayment of the sum so loaned.”

The connection in which the prohibition against a loan to a stockholder or officer is placed in this section would indicate that it hears some relation to- the requirement that only-cash shall he considered as payment for stock, but, however that may be, the statute seems to have been enacted for the benefit of creditors to secure them for their debts as against the dissipation of corporate funds through loans to stockholders and officers, by making the officers, who- assent to such a loan, liable for the repayment thereof in case the borrower fails to pay. If such a loan he made and be repaid no creditor can complain, and the penalty prescribed by the statute is ended. The defendants insist that a loan, such as the one in question, is prohibited by the statute, and, if it was made, Rubinstein became trustee for the company, not only of the money borrowed, but of the stock purchased bv the loan as Well. “The company” in this case is Stanley Kasprzak. William Kasprzak and Veronica Kasprzak, and they and not the artificial person, the corporation, will benefit by the position they assume. There is no- doubt but that Rubinstein returned the money which they sav lie held in trust, and the individuals mentioned, representing “the company,” say they also want the benefit of the stock he purchased. That is, that “the company” having refused to buy the stock and having permitted Rubinstein to purchase and assume the risk of loss, may now change its position and for the advantage’ of individuals, two of whom actively participated in the transaction, and the other of whom probably knew of it and did not disavow it until four years later, demand the stock for “the company.” It is my view of the testimony that, in borrowing from the company and purchasing the stock, Rubinstein acted in good faith, and that Stanley Kasprzak and Veronica Kasprzak knew that Rubinstein was borrowing the money for such purpose on his oto account. William Kasprzak was in the employ of the company and was at its place of business daily. While he was not at the meeting of August 26th, 1918, at which the sale of the stock was reported, he was a director of the company and knew that Walzak, L.ingelbach, Olterzcwski and Harsche had been endeavoring to sell their stock, and that, having been directors, they ceased to hold such office, and he, himself, had been negotiating with Rubinstein for the sale of his own stock. He attended the annual meeting October 28th, 1918, at which he was elected a director and secretar}', and as such secretary the minute book came into his possession. It does not seem probable that as an employe, stockholder, director and secretar}', and as a brother of Stanley Kasprzak, he was not familiar with the proceedings of the directors and the minute record thereof, and did not know of the loan to Rubinstein, its purpose and its repayment. Under these circumstances, I do not consider it equitable for Stanley Kasprzak, William Kasprzak and Veronica Kasprzak to insist that Rubinstein holds this stock as trustee for the company.


author: Fieldek, Y. C.

text:
    Margaretta Fort et al., executors, &c., complainants, v. Josie D. Field, defendant.
    [Decided February 26th, 1923.]
    Sale of Lands — Restrictions in Deeds — How Far They Bind After Reason for Their Inclusion Have Been Removed.
    On bill, &c.

      Mr. Jehiel G. Shipman, for the complainants.

      Mr. Horace O. Grice, for the defendant.
   Fieldek, Y. C.

Complainants are the vendors of lands in the village of South Orange under a written contract of sale wherein defendant is the purchaser. The contract covers more land than is involved in this controversy, defendant haying accepted title to a part of the land she contracted to purchase, paying a portion of the purchase price but having refused to take title to the balance thereof on the ground that the title thereto is not marketable, and the bill is filed to compel defendant to specifiealfy perform her contract by taking title to the remainder of the land agreed to be conveyed.

Complainants’ title and power to convey come through the last will and testament of former Governor John Franklin Fort, who died November 17th, 1920, seized o£ all the land described in the contract. His will was duly admitted to probate in Essex county, and it is conceded that complainants can convey a good and marketable title, if the title held by Governor Fort was good.

John G. Yose owned a tract of land two hundred and fifty feet front on the easterly side of Charlton avenue by two hundred feet deep on the northerly side of Raymond avenue, in which is included the two lots hereinafter called the Jewett lot and the Durbrow lot. The tract two hundred 'and fifty feet by two hundred feet was conveyed by Yost to Erneline M. Griffen, by deed dated April 10th, 1873, recorded May 13th, 1873, in book T-16 of deeds for Essex county, page 490, by which deed the grantee, for herself, her heirs and assigns, covenanted with Yose, his heirs and assigns, that the land conveyed should not at any time thereafter be used (among other things) “for the erection of any buildings of any kind.or description, excepting one dwelling-house with the appropriate gardens, cottage, &c.,” designating a number of outbuildings and structures which would be included within the exception, and concluding with the words, “and other buildings and offices appropriate for a gentleman’s country residence.” The covenant provided that it should attach to the land and run with its title and be inserted in all future conveyances and other instruments whereby the title to the lands conveyed should be transferred or affected and that the covenant should forever thereafter be recognized, sustained and upheld, and that it should be lawful not only for Yosé, his legal representatives or assigns, but also for the owner or owners of any of the property mentioned in the deeds thereinbefore recited (meaning ten deeds by which the land in question and surrounding lands, comprising in the whole a tract of about two hundred and ten acres which had been conveyed to Yose), to institute and prosecute any suit or proceeding at law or in equity for a violation, or threatened violation, of the covenant.

The tract two hundred and fifty feet front by two hundred feet deep, conveyed by Yose to Griffen, was subdivided by subsequent conveyances. Governor Eort acquired title to that portion of it involved in this controversy by two deeds, one from Ivate R. Durbrow and husband, dated July 19th, 1915, recorded July 19th, 1915, in book H-56 of deeds for Essex county, page 244, which conveys a plot on the northeast corner of Charlton and Raymond avenues, having a frontage of one hundred and twenty-five feet on the easterly side of Charlton avenue, by one hundred and eighty-eight and sixt}rnine hundredths feet deep on the northerly side of Eaymond avenue and the other, for the lot adjoining on the north, from Josephine G. Jewett and husband, dated May 28tli, 1914, recorded May 28th, 1914, in book M-54 of deeds for Essex county, page 272, having a frontage of one hundred and eight and thirty hundredths feet on the easterly side of Charlton avenue, by one hundred and ninety-four and twenty-four hundredths feet in depth. The land conveyed by both deeds formed a plot of land with a total frontage of two hundred and thirty-three and three hundredths feet on the easterly side of Charlton avenue, by one hundred and eighty-eight and sixtv-nine hundredths feet in depth on its southerly side along Eaymond avenue, and one hundred and ninety-four and twenty-four hundredths feet in depth on its northerly side, being but slightly less in area than as originally conveyed by Vose to Griffen.

The deed from Mrs. Durbrow contains a clause that “the lands herein described and conveyed herein are conveyed by express agreements between the parties hereto-, subject to building and other restrictions of record affecting the said lands and premises, if any.”

The deed from Mrs. Jewett contains a clause that “the party of the second part for himself, his heirs and assigns, hereby covenants and agrees that this conveyance is made subject to the covenants and restrictions set out in the deed recorded in book T-16 of deeds for Essex county, on pages 490, &c., in so far as said covenants and restrictions may, at the present time or hereafter, be operative or valid.”

The lot purchased by Governor Eort from Mrs. Jewett was vacant, and immediately after its purchase he commenced the' erection of a dwelling-house thereon, which was completed about March, 1915, and in which he thereupon took up his residence and continued to live until his death. When he purchased the adjoining corner lot from Mrs. Durbrow, in July, 1915, there was a dwelling-house on that lot, facing Charlton avenue. Governor Eort moved that house from its foundation to the rear of the Durbrow lot, placing it on a new foundation facing Raymond avenue, and leaving the old foundation remaining. The present situation with respect to the plot conveyed by Yose to Griifen is that the portion of it acquired by Governor Port is now occupied by two dwelling-houses and the foundation for a third.

The contract to convey set out in the bill of complaint included the Jewett lot and a portion of the Durbrow lot, with other property. Defendant accepted a deed from complainants for the Jewett lot and such "other property,” but refused to accept a deed for the portion of the Durbrow lot covered by the contract, the sole ground for her refusal being that the erection of two dwelling-houses and the foundation for a third, contitute a violation of the covenant contained in the deed from Yose to Griifen restricting the lands therein described to a single dwelling-house and that such covenant will prevent her from erecting a dwelling-house on the corner of Charlton and Raymond avenues.

That the letter of the covenant has been violated must be conceded, but complainants contend that the covenant is a nullity and unenforceable as to the lands in question, because the population of South Orange has greatly increased since the restriction was imposed by the Yose deed in 1873, and the character of the neighborhood has so changed that the original plan or scheme of large country estates which Yose had in mind cannot be carried out, because it would be against public policy and in restraint of trade, considering the increase in population, housing conditions and the change in the character of the neighborhood, now to enforce a restriction limiting the use of a plot of land two hundred and fifty feet by two hundred feet to 'a single dwelling; because persons deriving title through deeds from Yose have indicated no intention to enforce this restriction and similar restrictions affecting their adjacent property and have acquiesced in and .permitted a violation of this particular restriction and of similar restrictions affecting adjacent property and because there has been a general violation of covenants and restrictions similar to the one in question, by those entitled to enforce this covenant and a general acquiescence in such violation by those concerned, which violation and acquiescence amount to an abandonment and estoppel.

It is alleged in the bill of complaint, admitted by the answer and shown by the evidence, that Vose conveyed various parcels of the two-hundred-and-ten-acre tract, without uniformity as to restrictions governing the number of dwelling-houses to be erected upon the parcels thus conveyed and in many instances without any restriction of such nature; that the owners of lands embraced within the two-hundred-and-ten-acre tract have permitted and acquiesced in many violations by others, of similar restrictions governing the number of dwelling-houses to be erected upon separate plots within said tract and have, themselves, violated such restrictions, and that such building restrictions have been generally ignored by their violation; that Governor Port violated the restriction in question in 1914 by erecting a dwelling-house on the Jewett lot, and that such violation was permitted and has continued without objection from anyone, although all property owners in the vicinity had ocular notice of his intention to violate it and of his actual and continued violation of it; that since 1873 the population of South Orange has increased from less than two thousand to over seven thousand, and housing conditions in the village are congested; that the village, because of the increased number of inhabitants and the limits of its area is no longer suitable for the ownership of large country estates; that many dwelling-houses have been erected within the two-hundred-and-ten-acre tract and in the immediate neighborhood of the property in question, on lots having a frontage of one hundred feet or less, and that the average frontage of lots within said tract upon which single dwelling-houses are now being erected is one hundred feet.

I conclude that the admitted facts disclose an intent on the part of Yose and those claiming under him, for whose benefit the restrictive covenant in question was made, not to observe the spirit and intent of the covenant and to abandon it, and to generally acquiesce in its violation,' and that it would be inequitable, under such conditions and because of the departure from the neighborhood scheme or plan as originally contemplated, to now enforce it, and that such covenant, in so far as it restricts the use of that part of the Durbrow lot which is described in the contract in this suit to the erection of a single dwelling-house, is a millitjr, and unenforceable. Page v. Murray, 46 N. J. Eq. 325; Ocean City Assn. v. Chalfant, 65 N. J. Eq. 156; Chelsea Land, &c., Co. v. Adams, 71 N. J. Eq. 771; Sanford v. Keer, 80 N. J. Eq. 240; Fisher v. Griffith Realty Co., 88 N. J. Eq. 204. Defendant’s contention that because of the covenant as applied to the number of dwelling-houses to be erected upon the Jewett and Durbrow lots the title tendered to her is not marketable, is without force and she will be decreed to specifically perform her contract.


text:
    UNITED STATES BATTERY COMPANY v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA.
    Submitted November term, 1923
    Decided February term, 1924.
    Insurance — Burglary—Schedules Did Not Include All Articles Stolen — Fixtures as a Part of Property — Policy Held to Cover Loss.
    On rule to show cause from the Passaic Circuit.
    Before Gummeke, Chief Justice, and Justices Mintukn and Black.
    Por the rule, Samuel T). Williams.

      Contra, Ward & McGinnis.

   Per Curiam.

The suit was upon a burglary insurance policy, which by its terms protected the plaintiff against all loss by burglary of merchandise described more particularly in the schedule annexed thereto, as well as furniture or fixtures on the premises. The schedule contains the following: “Description of stock to he insured, including [description of] furniture and fixtures, is storage batteries and parts, including raw materials for the manufacturing of same.” The articles stolen were appliances used in the manufacture of the plaintiff’s automobile product, and most of them were attached to the premises. It is now contended that these articles were not covered by the policy — (1) because they were not included in section 10 of the schedule', and (2) because if they were so included they were not fixtures within the meaning of that term. We think the policy covers fixtures, notwithstanding the omission of the description thereof in section 10 of -the schedule. The first section of the policy shows that it protected, not .only the merchandise-, but furniture and fixtures; and the fact that the fixtures were not specifically described in the schedule does not relieve the defendant from liabilily under the main provision of the policy, for it issued the policy in general terms, and it is responsible for the absence from the description of specific or detailed enumeration of items. It cannot take advantage of its own neglect so as to deprive the insured of the right given to him under the first section of the agreement, which comprehends in general terms the articles in question. The policy in this respect must be construed most strongly against the insurer. Connell v. Commonwealth Casualty Co., 96 N. J. L. 510.

As to the second contention, that the articles stolen were not fixtures, it must suffice to say that undoubtedly some of them were within the meaning of the terms “fixtures,” 'and as the only argument made before us in support of the contention that the-rule should be made absolute is that the court should have directed a verdict or ordered a nonsuit, the fact that same of the articles were fixtures will support the refusal of the court to so charge, the rule being that when the request is too favorable, and therefore partly erroneous to the party making it, the court is justified in refusing it. Schreiber v. Public Service Railway Co., 89 N. J. L. 183.

The rule will be discharged.


author: Campbell, J.

text:
    PHILIP LEVINE v. LAZAR KLURE.
    Decided April 17, 1924.
    Liens — Attorneys—Act of 1914 — Settlement of Matter Between Client and the Other Party was Known to Attorney.
    On rule to show cause why plaintiff’s lien for compensation should not be enforced.

      Eor the plaintiff, M. Joseph GreenblaM.

    Eor the defendant, Frank Kotok.

   The opinion of the court was delivered by

Campbell, J.

Plaintiff seeks to have enforced a lien for compensation for services to. plaintiff amounting to $61.95 as against the defendant under the act entitled “An act to give any attorney, counselor-at-law or solicitor in Chancery a lien upon any cause of action, verdict, report, decision, decree, award or final judgment.” Pamph. L. 1914, ch. 201.

The amount is not in dispute or contested as being unreasonable.

Erona the proofs before me I am not satisfied that the settlement of the action took place without the knowledge and consent of plaintiff’s attorney. If, with, the consent of the attorney, then I take it he may not have the benefit of the provisions of the act. Ferraro v. City Hall Garage, 94 N. J. L. 209. Certainly not, unless he acts so promptly as to find defendant with sufficient amount of the settlement in hand and unpaid to plaintiff from which the amount for services for which the lien is impressed may be paid.

And if the settlement in question was arrived at and settled upon without the knowledge and consent of the attorney of the plaintiff, still the proofs show that plaintiff’s attorney had knowledge thereof a sufficient time before final payment to have moved and impressed his lien before final payment.

This was not done, and in that respect he was in laches, and for that reason must be denied the relief he seeks.

The rule to show cause will be discharged, with costs.


text:
    TITLE GUARANTEE AND TRUST COMPANY, EXECUTOR, ETC., OF CHARLES S. BAYLIS, DECEASED, PROSECUTOR, v. HOWARD ISHERWOOD, SURROGATE, DEFENDANT.
    Argued February 19, 1924
    Decided May 6, 1924.
    .Taxatópini — Succession—Residence of Deceased Involved — Evidence Held to Indicate that He was a Non-resident and Estate Not Subject to Tax.
    On certiorari to order appointing appraiser for succession tax purposes.
    Before Justices Teen chard, Parker and Campbell.

      For the prosecutor, George W. O. McCarter.

    For the defendant, Theodore'Rurode (Edward L. Xatzenbach, attorney-general, on the brief).
   Per Curiam.

The question for determination is whether the general estate of Charles S. Baylis, deceased, is liable to succession tax under our- statute, as in force at the time of his death. He died in March, 1903, and the statute applicable is section 1 of the act of 1894 (Pamph. L., p. 318), appearing in the general statutes of 1895 (at p. 3339). If at the time of his death he was “a resident of this state” the estate is generally liable to the tax provided in the act of 1894, otherwise not. For the purposes of administration and settlement of that estate, it seems to have been assumed that he was a resident of New York; his will was proved there, and the executor accounted to the authorities of this state for such property as had its situs here, and was taxable as property of a non-resident. But in 1923 the defendant, as surrogate of Essex comity, inaugurated proceedings to tax the entire estate as that of a resident. The present writ was allowed, and the disposition of it turns on the mixed question of law and fact as to the residence of Mr. Baylis at the time of his death. Testimony was taken on this point and has been duly considered.

Mr. Baylis was born in Brooklyn, and up to ihe time of his marriage was eoncededly a resident of New York state. In 1897 he married one of the daughters in a prominent Newark family; bought a home in Newark, voted there, and this status continued for several years.' Unquestionably,- his legal residence changed to New Jersey. His will, made in 1901, declares that he is “now’ residing” in Newark. So the inquiry develops into an ascertainment whether this residence was later changed or abandoned. The settlement of this question, after it has lain dormant for twenty years, is a troublesome one, but the legal representative is in no- way to blame for that; and while the burden of showing a change of residence may be on the executor, it is entitled to- some consideration, under the circumstances, on the quantum of proof after the lapse of so- long a period.

It appears without question that Baylis and his wife tired of Newark, found tho social life there uncongenial, and in the spuing of 1902, sold their house, and having no family ties took up their abode at a hotel in New York City. He had purchased from his wife’s family a summer cottage on the Jersey shore, at Low Moor, and occupied it in the summer of 1902, hut only for summer purposes, In the fall they went hack to tho same hotel in New York, and remained there until January, 1903, when they started'on an extended Foreign trip ; and he died while they were abroad.

On tho question of intent to change the state of resilience, a sister of Mrs. Baylis testified in part:

“Q. Do you recall any statements or declarations made by 'Mr. Baylis, or by Mrs. Baylis, in his presence, with-respect to their moving away, or as to why, or for how long, and all about it?

“A. They had gone for good; they sold their house; they had no idea of coming back, and they went because they got tired of Newark.

“Q. It was a declaration to that effect which you heard ?

“A. Yes.

“Q. Can you recall any more specifically what'was said?

“A. Yes; my sister was very fond of society, and she said, cWe like everybody here, but no one returns it/ and she was bored; she would like to go where she had more of something doing.” * * *

“Q. Are you able to say whether or not Mr. Baylis, after the sale of the house, 1023 Broad street, in Newark, intended to make his home in Newark thereafter?

“A. Never.

"Q. After they moved away from Newark, where did Mr. Baylis intend to make his home?

“A. At the Waldorf, I think; that is where he was up to the time he went to Egypt.

“Q. You say T think’; have you any doubt that it was in New York City?

“A. Not the slightest; they went to New York for the rest of their lives. * * *

“Q. Did he ever say anything to you about his residence and where it was after he sold his Newark house?

"A. Yes. He never expected to come back to Newark. They moved to New York.

"Q. But didn’t they, as a matter of fact, move to Low Moor, after they sold their Newark house?

“A. They went there for the summer.

“Q. Did Mr. Baylis ever state to you directly where he expected to continue his residence after he sold the Newark house, in 1902?

“A. Yes, often.

“Q. Well, what did he say?

“A. They said they were going to New York to live. Going' to New York to live.

“Q. When was that?

“A. When they left Newark. They left Newark because they wanted to live in New York.

“Q. Well, can you remember Mr. Baylis’ exact words with reference to that ?

“A. No, I couldn’t sajr I do. It is twenty some years. I couldn’t swear to his exact words. * * *

‘Q. And when the Newark house was sold in the spring of 1902, you said that Mr. Baylis intended to go and live in New York?

'Li. Yes.”

And a brother of Mrs. Baylis testified:

“Q. Do you know wdiethor he had any other home than the Low Moor home at the time of his death ?

“A. Well, I cannot call the Low Moor house a home, because it was a mere summer residence, and when ho moved to New York he made his home there, as I understood it.”

Testimony of statements made by Mrs. Baylis tends to corroborate the above, but we prefer, not to- rely on it, because of doubt as to the technically evidential character. Pacts are lacking as to where Mr. Baylis voted and paid personal tax after selling the Newark house, though there is positive testimony that he never voted at Low Moor or treated it otherwise iban as a temporary summer cottage.

We have no difficulty, however, in concluding on the testimony and other evidence that the testator in 1902 definitely abandoned his residence in New Jersey with intent to become, as he had been before his marriage-, a resident of New York. As a result of this finding, the o-rder and proceedings thereunder will be set aside, but without costs.


author: Pee Curiam.

text:
    JOHN A. KINLIN, RELATOR, v. STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, RESPONDENT.
    Submitted March 20, 1923
    Decided May 7, 1924.
    Medicine — License to Practice — Chiropractic—Act of 1923, c. 161 — Providing that Persons Serving in World War Entitled to Practice Upon Graduation Sustained.
    Before Justices Teenohabd, Parker and Campbell.
    For the relator, Frank A. Mathews, Jr.

    For the respondent, Edward L. Katzenbach, attorney general. ....
   Pee Curiam.

Relator applied to the respondent for a license to practice chiropractic in this state and was refused such license, because he neglected to furnish proof of his good moral character and because he refused to submit to an examination pursuant to chapter 136. Pamph. L. 1921.

Relator contends that under the provisions of chapter 161 (Pamph. L. 1923) he is entitled to the license applied for without submitting to an examination or furnishing proof of good moral character.

Chapter 136 (Pamph. L. 1921) is a supplement to an act entitled “An act to regulate the practice of medicine and surgery, to license physicians and surgeons, and to punish persons violating the provisions thereof,” and section eleven (11) thereof repeals an act entitled “An act to regulate the practice of chiropractic,” approved March 3d, 1920. Pamph. L. 1920, ch. 4.

Chapter 161 (Pamph. L. 1923) is an amendment of chapter 136 (Pamph. L. 1921) amending section eleven (11) thereof, which repeals the Chiropractic act, chapter 4 (Pamph, L. 1920, supra), and contains, amongst other things, the proviso, “that any person, who served in the military or naval forces of the United States in the world war, and who is now a student or in training in a legally-incor-. poratod college of chiropractic under the jurisdiction of the federal board of vocational training, shall, upon being graduated from any such institution and furnishing evidence thereof satisfactory to the board of medical examiners, be-entitled to a license under the provisions of this act.” Relator furnished the respondent, the board of medical examiners, with satisfactory proof of all the matters set forth in the foregoing proviso, but respondent, nevertheless, contends that relator must furnish satisfactory proof of his, good moral character and submit to an examination.'

It will be noted that the- other provisos in this act relating to variously qualified persons permit them, when qualified as therein provided, to take the examination as provided by statute, while the proviso in question makes no- reference to an examination or any other qualification than those specifically set forth in said proviso-.

The undoubted intention of the legislature was, by the said proviso, to provide that any person who- served in the military or naval forces of the United States in the world war, and who on March 22d, 1923, when said act became effective, was a student, or in training in a legally-incorporated college of chiropractic under the jurisdiction of the federal board of vocational training, upon being graduated from any such institution and furnishing evidence thereof satisfactory to the board of medical examiners, should, without any further qualifications or requirements, be entitled to- have a license, issued by respondent, to practice chiropractic.

This being our view of the only construction that can be-placed upon this statute, relator is entitled to the award of a peremptory writ of mandamus..


author: Pek Cukiam-.

text:
    MARTIN HUPPERT AND HARRY TEITELBAUM, RELATORS, v. FRANK HAGUE ET AL., BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, RESPONDENTS.
    Submitted March 20, 1924
    Decided May 7, 1924.
    Ordinances — Zoning—Ignaciunas v. Risley, Followed.
    'On application for mandamus.

    Before Justices Tbenchakd, Pabicek and Campbell.
    Ror the relators, Benjamin Gross.

    Ror the respondents, Thomas J. Brogan.

   Pek Cukiam-.

This is a rule to- show cause why a mandamus should not he awarded.

Relators being the owners of lands at the corner of the Hudson county boulevard and Clendenny avenue, in the city -of Jersey City, applied to the proper authority for a permit to convert certain garages into stores and erect stores on the property, and the permit was refused solely upon the ground that the zoning ordinance of the city of Jersey City restricted the premises in question solely for residential purposes.

We think this case is controlled by the rules and principles laid down by Ignaciunas v. Risley, 1 N. J. Adv. R. 1023, and, -under the authority thereof, an alternative writ of mandamus should issue.


text:
    CHARLES SINGER AND PAUL B. MOOS, APPLICANTS, v. CHARLES F. JUECHTER ET AL.
    Decided May 8, 1924.
    Mandamus — Writ Allowed on Consent.
    On ritle to show cause for mandamus.

    Before Justices Kalisch, Black and Campbell.
    For the applicant, J. Emil Walscheid.

    For the respondents, Robert H. McCarter.

   Per Curiam.

It has been consented to that the application for a peremptory writ of mandamus should be granted. The application to have the pleadings moulded so as to permit an appeal to the Court of Errors and Appeals is denied.

Let the writ of mandamus issue as prayed for.


text:
    FRED J. SMITH, PLAINTIFF-APPELLEE, v. ELVIRA M. CRUSE, DEFENDANT-APPELLANT.
    Decided May 7. 1924.
    Leases — Term® Included Rent of Garage with Heat — Termination of “Heat” Clause Disputed — Defendant Held Liable for Failure to Supply Sufficient Heat.
    On appeal from the First District Court of Newark.
    Before Justices Kalisch and Katzenbach.
    For the appellant, Michael J. Tansey.

    For the appellee, Julius E. Ealprin.

   Per Curiam.

The plaintiff’s action was originally brought against Violet 'Cruse and Charles Weber, in tort, but by written stipulation between counsel of the respective litigants, the cause of action was amended to an action on contract, a discontinuance was entered against Charles Weber, and the name of Violet Cruse was amended to that of Elvira Cruse. The court, sitting without a jury, gave judgment for the sum of $400 in favor of the plaintiff and against the defendant, from which judgment the latter- has appealed to this court.

The state-of the ease which was settled by the judge shows that he based his findings upon testimony which raised disputed questions of fact which were peculiarly within his province to determine, and that there is testimony in support of his findings, and, therefore, as has been repeatedly declared by our decision, such findings are not reviewable. The state of the case shows that the plaintiff rented from the defendant a compartment in her garage, in Newark, New Jersey, for the storage of the plaintiff’s automobile, and gave him a key to the compartment, and that the defendant had no control over the plaintiffs automobile; that the defendant had agreed with the plaintiff to heat the garages; that the plaintiff’s automobile sustained a cracked cylinder due to the cold weather in February, 1923, prior to February 7tli, 1923, freezing the water in the radiator and around the motor of the plaintiff’s automobile while stored in defendant’s garage, because the latter failed to provide heat to do away with the danger of freezing; that the defendant put in testimony that she was unable to obtain coal, except with difficult}', and sometimes none at all, due to a coal shortage, and, that early in December, 1922, caused a printed notice, twelve by fourteen inches, to- be posted in the garage to the effect that on account of the coal situation the tenants held the cars in the garage at their own risk and further put in testimony that the persons storing cars, including plaintiff, had been notified to take their cars elsewhere, if they were not satisfied to assume the risk of freezing; that the plaintiff denied ever having seen the printed notice or ever having been told that the defendant did not expect to be able to heat the garage; that under the evidence the car was worth $400 less after the cylinder had been cracked than it was before, and therefore gave judgment for that amount.

The appeal is wholly without merit.

Moreover, the appeal, according to the record before us, shows no legal basis for a review. It does not appear that there was any request on part of counsel for defendant for a finding, of law or fact, or law and fact, and exception taken thereto. Hence, there is no point presented which can be reviewed on appeal.

But even if it be assumed that the points presented properly challenged the findings of the judge on the law and the facts, nevertheless, we must accept the state of the case as settled by the judge to be controlling upon us as to the facts established by the testimony. We have considered these points, measured by the test just indicated. The appellant’s first point is, that there was no testimony upon which the sum of $400 could be found for plaintiff. The state of the case says that there was testimony which warranted the finding. The second point relied on is that there was no neglect shown of the landlord which was the proximate cause of the injury. The judge found, on the testimony before him, that the failure of the landlord to supply heat for the garage as contracted for was negligence, and that the failure to supply the heat was the proximate cause of the cracking of the cylinder. According to the testimony of the defendant, she did not supply heat for the garage as contracted for. The third point made is that the landlord is not liable if timely notice was giren plaintiff. The plaintiff, according to the state of the case, denied that he ever had such notice. The next point is that the plaintiff assumed the risk. But it cannot be fairly said that one assumes a risk of which he had no knowledge or notice. Plaintiff testified that he had no notice. The fifth point is that the plaintiff was negligent in not protecting his car from a known danger. The plaintiff had a right' to assume that the garage would be properly heated according to the contract. The sixth point relied on is that the landlord was not a warehouseman or bailee, and had no custody of plaintiff’s car, and that the landlord cannot be held liable as such. We are not concerned with what the landlord was not. There was a contractual relation by which the defendant was to supply heat to the garage, and this she failed to do.

Lastly, it is urged as the seventh point that there was no express contract to furnish sufficient heat to keep the car from freezing. The judge, on the testimony, according to the state of the case, found to the contrary.

Judgment is affirmed, with costs.


text:
    LOUIS L. LEHRHOFF, PLAINTIFF-APPELLEE, v. JACOB SCHWARTSKY AND HARRY R. GOLDBERG, DEFENDANTS-APPELLANTS.
    Decided May 7, 1924.
    Sale of Land — Agents’ Contract for Commission — Purchaser Found But Sale Not Consumatedi — Liability of Owner Under the Contract.
    On appeal from a judgment of the Second Judicial District Court of the county of Essex.
    Before Justices Kalisch and Katzenbach.
    For the'appellants. Jay £ McTague (William O. McTague. of counsel).
    For the appellee, Abraham TIenig.

   Pee Curiam.

The plaintiff’s action in the court below tras founded upon the following agreement:

“We, Jacob Sehwartsky and Harry 1Í. Goldberg, do hereby agree to pay Louis Lehrhoff and Jacob Steinberg three hundred dollars ($300) as commission for services rendered in the sale of premises No. 241 Chadwick avenue, Newark, N. J., said amount to be paid to the above Louis Lehrhoff and Jacob Steinberg on the date of closing title to said premises.
(Signed) Jacob Schavartsky,
Harry R. Goldberg.”

The state of the case, as settled by the judge, shows that he found from the testimony before him that the plaintiff and Steinberg procured the purchaser and brought the prospective vendor and vendee together, which fact was not in dispute. The court further found from the testimony that the vendor was to convey the property to the vendee by warranty deed, free from all encumbrances, except a mortgage of $10,000, held by the Atlantic Building and Loan Association, and that the title to the property was to pass on June 15th, 1922. The title did not pass on the date fixed, as appears from the finding of the court, for the reason that there were some imperfections in the title and that the vendor refused to convey, though the vendee then and there tendered to the vendor the purchase price of property as agreed upon.

The only ground upon which pajunent of the plaintiff’s claim was resisted, by appellants, was resented by the motion for a nonsuit, and rested entirety upon the construction to be given to the contract for commissions. Eor the appellants, the contention was that the commissions were not' to be paid unless the title to the property had actually passed from the prospective vendor to the prospective vendee. This argument is builded upon these words in the commission contract, “amount to be paid to the above Louis Lehrhoff and Jacob Steinberg on the date of closing title to said premises

We think the court adopted a construction consonant with sound sense, in holding that the words imported that the commissions should be paid on the day set for closing the title, and that the payment of commissions was not made dependent upon the actual passing of title to the property. This ruling was in liare with the decision by this court in Ranchwanger v. Katzin, 82 N. J. L. 339, where words of a similar nature were used in the contract. The motion for a nonsuit was property refused. Uiadoubtedly, a vexidor may protect himself against paying commissions until air actual sale of the property has been made by the passing of title by using words to that effect, but even then it might be questionable whether he could properly escape liability if he capriciously refused to carry out his bargain.

No'such case, however, is before us and, therefore, requires no expression of opinion.

Judgment is affirmed, with costs.


author: Church, V. C.

text:
    Peter Sudowsky, petitioner, v. Antonio Sudowsky, defendant.
    [Decided May 7th, 1924.]
    Divorce — Desertion—Evidence Conflicting' — Master’s Report Confirmed.

      Mr. Harry Teildbaum, for the petitioner.
   Church, V. C.

This is a case of exceptions from a master’s report in a divorce case.

The case was one of desertion by the husband against the wife. The husband and the wife were both on the witness-stand and they told entirely different stories, she accusing him of desertion and he insisting on his story of the desertion. The corroborating witnesses have no knowledge of the facts surrounding the actual desertion, and there is no corroboration whatever of the fact of the desertion.

i shall therefore advise that the exceptions be dismissed and that the resport of the special master be confirmed.


text:
    R. AND B. REALTY AND CONSTRUCTION COMPANY, INCORPORATED, RELATOR, v. JOHN JELLEME, BUILDING INSPECTOR OF THE CITY OF PASSAIC, RESPONDENT.
    Submitted March 20, 1924
    Decided May 7, 1924.
    Ordinances — Zoning—ignaciunas v. Risiey, Followed.
    On application for mandamus.

    Before Justices Trenchard, Parker and Campbell.
    For the relator, Nicholas O. Berry.

    For the respondent, Harry H. Weinberger.

   Per Curiam.

This is a rule to show cause why a mandamus should not be awarded.

The relator desires- to erect three two-family houses on lands owned by it and situate on Grace terrace, in the city of Passaic, and having complied in every respect with the rules, laws and requirements regulating the construction of said buildings applied to- respondent for a building permit or. permits which was refused upon the ground that the erection of such buildings would be in violation of the zoning ordinance of the city of Passaic.

We think this case is controlled by the rules and principles laid down by Ignaciunas v. Risley, 1 N. J. Adv. R. 1023, and under the authority thereof an alternative writ of mandamus should issue.


author: Peb Cubiam.

text:
    JOSEPH A. WHITE, RELATOR, v. HENRY F. BOWER, BUILDING INSPECTOR OF THE BOROUGH OF RIDGEFIELD, AND THE BOROUGH OF RIDGEFIELD, RESPONDENTS.
    Submitted March 20, 1924
    Decided May 7, 1924.
    Ordinances — Zoning—Ignaciunas v. Risley, Followed.
    On application for mandamus.

    Before Justices Tbenchabd, Pabkeb and Campbell.
    For the relator, William J. Morrison, -Jr.

    For the respondents, Howard Muckay.

   Peb Cubiam.

This is a rule to show cause why a mandamus should not be awarded.

On October 10th, 1923, relator applied to the respondent Bower for a building permit to erect a frame office building on Linden avenue, in the borough of Ridgefield. Such permit was issued to relator and work upon such building was commenced. On November 10th, 1923, the said permit was revoked and relator was required to stop the work of construction.

The revocation of such permit and the requirement to discontinue the construction of the building were solely upon the ground that such building, if erected, would be in violation of the zoning ordinance of the borough of Ridgefield, inasmuch as the area or zone in which the building was boing erected was restricted against buildings, trades and industries other than one-family dwellings and accessory buildings, farming, gardening or horticulture.

We think this ease is controlled by the rules and principles laid down by Ignaciunas v. Risley, 1 N. J. Adv. R. 1023, and, under the authority thereof, an alternative writ of mandamus should issue.


text:
    SIMON KING ET AL., RELATORS, v. LOUIS M. FAVIER, BUILDING INSPECTOR OF THE TOWNSHIP OF LYNDHURST, RESPONDENT.
    Submitted March 20, 1924
    Decided May 10, 1924.
    Ordinances — Zoning—Ignaciunas v. Risley, Followed.
    On application • for mandamus.

    .Before Justices Teen chard, Parker and Campbell.
    Eor the relators, Augusta E. Malay.

    Por the respondent, Luthar Shafer.

   Per Curiam.

This is a rale to show cause why a mandamus should not be awarded.

Relators are the owners of property No. 200 Valley Brook avenue, in the township of Lyndhurst, and at the time of the purchase thereof there was located thereon a frame dwelling-house. Subsequent tO' such purchase it was in part converted into use as a grocery and' candy store. On November 1st, 1923, relators applied to respondent for a. permit to alter said building so as to make it more suitable for a grocery and candy store, and such permit was refused solely upon the ground that such use of the building would be in violation of the zoning ordinance of the township of Lyndhurst.

Respondent, amongst other things, urges that, as the zoning ordinance was not introduced in evidence, there is nothing before this conrt to show its scope and purpose, and therefore the application must he denied.

Not so'. The sole ground for refusing the permit as advanced by respondent, is that the building converted into a store, or partly for store arid dwelling purposes, would he in violation of such ordinance, and giving to' such ordinance the widest scope and purpose, the case is, nevertheless, controlled by the rales and principles laid down by Ignaciunas v. Risley, 1 N. J. Adv. R. 1023, and, under the authority thereof, an alternative writ of mandamus should issue.


text:
    MARIE ACQUADRO, PLAINTIFF-APPELLEE, v. ROBERT BIERI, DEFENDANT-APPELLANT.
    Decided May 7, 1924.
    Negligence — Treating the Sick — Defendant, Not a Physician, Must Use Reasonable Care in Connection With Mechanical Healing Appliances He is. Operating.
    On appeal from the First Judicial Court of Hudson county.
    Before Justices Kaltscii and Katzenbach.
    For the appellant, Edwards & Smith, Edwin F. Smith, and Norman R. Wynne, of counsel.
    For the appellee, Lionel Isaacs and (Leo Blumberg on the brief).
   Per Curiam.

Marie Aequadro, the plaintiff below, an elderly lady, recovered a judgment, in the said District Court, against the defendant below, for the sum of $430, in an action for damages, for injuries sustained by her through defendant’s negligence. The case was tried before the court, sitting without a jury.

The plaintiff was suffering from pains in one of her legs, and was advised by her family „physician to go to the defendant, a neuropathist, to1 undergo a series of baking treatments. ,Slie, according-to the advice given, went to the defendant’s establishment and purchased a ticket for twelve treatments and paid therefor $30. In the course of this treatnient, on July 15th, 1922, the defendant used a baking device consisting of a collapsible, semi-cylindrical metal frame heavily' lined with asbestos. The heat for the baking was supplied by twenty thirty-two candle-power lamps controlled by switches. When a baking treatnient is to he given where there are pains in the leg, as was the case in the present instance, the patient is seated and the‘ailing leg is stripped ‘and covered with toweling and the apparatus is then adjusted over the leg, and is covered with a towel or a blanket so that uniform heat will be evenly distributed. On the day in question the plaintiff underwent this process, and, after adjusting the plaintiff to the frame, the defendant left the room leaving his wife in charge.

The plaintiff testified that while she was undergoing this treatnient at that time she felt a severo burn which made her cry out, and that when the defendant came back into the room he took the metal off and massaged her leg. There was testimony that there were burns which developed rapidly into sores known as sloughs. There was also testimony to the effect that the defendant admitted that the plaintiff received a burn during the treatment, giving as a reason therefor in these words, “that fool patient, she pulled the towel up and it burned the leg.” There was a sharp conflict between the plaintiff’s and the defendant’s testimony, he saying that when he returned to the room lie found that the plaintiff had pulled the towel off her log, hut the plaintiff denied this.

The two grounds relied on by appellant’s counsel for a reversal of the judgment are — first, refusal to- nonsuit, and secondly, refusal to- direct a verdict for defendant.

The defendant was not a physician. He kept an establishment to which physicians sent patients, for the purpose of massaging, baking and sweating. In performing these duties he was required-to exercise such degree of care as was commensurate with the lurking’ danger of the treatment administered. The only reasonable inference from the testimony is that the defendant was familiar with the likelihood of a patient being burned unless properly protected and the heat uniformly circulated.

Notwithstanding the precautions necessary to be used, the defendant, by his own admission, left the room after he had adjusted the patient to the treatment, and. remained 'away seven or eight minutes. It was while he was out of the room the patient • received the burn and cried out. We think the testimony tended to show that the plaintiff’s hurt was the result of defendant’s negligence in failing to properly protect her from being burned while undergoing the treatment, and that the motion for a nonsuit was properly refused. The defendant’s defense, according to the testimony, rested largely upon the statement that he had properly prepared the plaintiff for the treatment, and that she was solely to blame for what happened if she was burned, because, when he returned to the room where she was, he found that she had pulled the towel off her leg.

On his direct examination he was asked :

“Q. When did you first ascertain the fact that there was a burn in this case ?

“A. On the third visit, two days after, she came hack to our office.”

On recross-examination he was asked:

“Q. Then how do you account for the burns that Mrs. Acquadro sustained ?

“A. The burns she sustained on removing the towel.

"Q. Did you see her remove the towel?

“A. I did not, but the towels were removed when I came back there.

“Q. In what position were they?

"A. They were all np against her abdomen.”

We are unable to discover anything in the testimony of the defendant which had the effect of doing anything more than to raise a factual question which was for the judge to decide, and his finding is not reviewable.

Judgment is affirmed, with costs.