text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEFA LORENZO FERREIRO, PETITIONER, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, A CORPORATION, RESPONDENT.
   The petitioner, Josefa Lorenzo Eerreiro, has filed a form of petition for compensation, in behalf of herself, and two minor children, each dependents of Francisco Lorenzo Ferreiro, who was employed in his lifetime by the respondent, at Englewood, New Jersey.'

The petitioner is the widow of the above-named Francisco Lorenzo Ferreiro, and was born on October 16th, 1894. There were two children born of the marriage, Carmen Lorenzo Ferreiro, born on February 26th, 191?, and Josefa Lorenzo Ferreiro, born on March 2d, 1923.

The decedent was employed by the respondent as a laborer, and on August 2?th, 192?, while so employed, and while assisting in the connection of gas pipes, the decedent was overcome by leaking gas and died as a result thereof.

The petition was heard by me, and testimony was given in behalf of the petitioner and in behalf of the respondent. After examining the entire testimony and the proofs offered by both the petitioner and the respondent, I am satisfied that the petitioner and the two minor children aforesaid were dependent of the decedent during his lifetime, and at the time of his death, and that the petitioner was receiving regular sums of money for her support and maintenance, and that of their children from the decedent.

After hearing the testimony offered on behalf of the petitioner and the respondent there appear but two questions to be determined by me. First, as to whether or not the accident arose in the course of, and during the scope of decedent’s employment, and secondly, as to the cause of death of the decedent. As to the first I find that the decedent met his death in an accident arising out of the course of his employment, and during the scope thereof. Testimony was offered on behalf of the petitioner, and on behalf of the respondent, as to whether or not the decedent was instructed to connect or not to connect a certain pipe, from which gas leaked, and which it was alleged caused the decedent’s death. From the examination of the entire testimony, I find that the foreman employed by the respondent on this particular work did not give the decedent an unequivocal command not to make any connection of those pipes during his absence, but that he said, as by certain statements entered in evidence by the respondent, that the foreman said something about not trying to make the connections. It is established by the witnesses that the foreman was continually assisted in making the connections by laborers, and that what the decedent was doing at the time preceding his death was in accordance with his employment. Two statements were taken by the respondent of the witness produced by the petitioner, which statements were taken within several days of each other, and that in both of these statements the word try is used with reference to the connecting of the pipes. I am satisfied from all of the testimony that the decedent met his death during the course of his employment, and out of the scope thereof.

As to the second question, I am satisfied that the decedent met his death as result of being asphyxiated by leaking gas from the pipes, which he was connecting, because from the position of his body, with reference to the pipes, and from the inferences that are drawn from the testimony, and the previous good health of the decedent, it is my conclusion that the decedent met his death by asphyxiation.

* * * . * * * *

Harry J. Goas, Deputy Commisioner.


source: Caselaw Access Project

author: Harry J. Goas, Deputy Commisioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CATHERINE HAMILTON, PETITIONER, v. CONGOLEUM NAIRN, INCORPORATED, RESPONDENT.
   A petition having been filed under the Workmen’s Compensation statute of New Jersey entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, with the several acts amendatory thereof and supplemental thereto, and the matter having come on for hearing before me as deputy commissioner of compensation on the 26th day of January, 1927, and again on the 9th day of February, 1927, the 28th day of February, 1927, and the 18th day of March, 1927, and the 4th day of April, 1927, at the compensation bureau at 9 Franklin street, Fewark, New Jersey.

The petitioner and the respondent being represented by their attorney, Samuel Greenstone, for the petitioner, and Mark Townsend, Jr., for the respondent, and having heard the testimony adduced on behalf of each of the parties — I do find and determine from the evidence and stipulations as follows:

1. That William Hamilton, the petitioner’s intestate,. was employed by the respondent as a laborer on the 10th day of May, 1925.

2. That the said intestate of the petitioner received for his services as wages the rate of $33 per week.

3. That on the 10th day of May, 1925, the petitioner suffered injuries in an accident arising out of and in the course of his employment by the respondent when he fell from a scaffold, a distance of about sixteen feet, and suffered a compound fracture of the upper part of his right leg near the hip joint and also concussion of the brain and injuries to his head.

. 4. That there was ample-testimony adduced to show that the petitioner had been suffering for a number of years from an advanced stage of syphilis and that there were periods of remissions of this disease. That previous to the accident he had worked regularly with the exception of several days’ loss of time during the period of about ten years while in the respondent’s employ, and that for two weeks immediately prior to the accident he worked about one-third of the time overtime; that he was treated at the West Hudson Hospital from the day of the accident a period of over four months and then taken home, where he stayed a few weeks, and then treated at the Newark City Hospital several weeks, and finally treated at the Overbrook Hospital for the insane, where he died on the 24th day of January, 1926.

That there was ample testimony that the condition of the petitioner was aggravated by the severe trauma suffered as described in said accident and that the decline of petitioner’s health and mentality was rapid and markedly accelerated following the accident until he died about eight months later.

That it is well established in this state that there may be acceleration or exacerbation of a pre-existing disease by trauma. Feldman v. Westinghouse Electric and Manufacturing Co., 36 N. J. L. J. 48; Hanglin v. Swift & Co., 37 Id. 81; McManus v. The Barbour Flax Spinning Co., 40 Id. 118; Voorhees v. Smith Schoemaker Co., 86 N. J. L. 500; 92 Atl. Rep. 280; Winter v. Atkinson Frizelle, 88 N. J. L. 401; 96 Atl. Rep. 360; Atchison v. Colgate & Co., 3 N. J. Mis. R. 451.

$ $ $ $ $ $ $

Harry J. Goas, Deputy Commisioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY SCHAUBLE, PETITIONER, v. H. LAUER & SONS, RESPONDENT.
    For the petitioner, Arthur C. Dunn.

    For the respondent, Charles W. Broadhurst.

   ❖ # * #

1. That Joseph E. Schanble, Jr., was, on the 22d day of Fovember, 1926, in the employ of H. Laner & Sons, the respondent, as a sheet metal worker, which employment was subject to the compensation section of chapter 95, laws of 1911, and amendments and supplements thereto, and that his wages were $18 per week.

2. That on the aforesaid date the said Joseph E. Schauble, Jr., met with an accident arising out of and in the course of his employment, resulting in his immediate death; that the employer had due notice of the injury which was not self-inflicted nor due to intoxication.

3. That the deceased was survived by the following members of his family:

(Mother) Mary Schauble, forty years; (father) Joseph Schauble, forty-one years; Charles Schauble, born July 16th, 1912; Erancis Schauble, borh January 25th, 1914; George Schauble, born Fovember 25th, 1915; Anthony Schauble, born July 10th, 1917; Reinhard Schauble, born July 4th, 1919; John Schauble, born October 4th, 1922; Mary Schauble and Leona Schauble, born Eebruary 17th, 1925.

The facts show that the brother William, at the date of the death of the deceased, was over sixteen and was earning $11 a week, so that no claim for compensation can be entertained for him. The facts further show that all of the members of the family lived together at 79 Maple street, Paterson, New Jersey, which premises were owned by the parents of the deceased, subject, however, to a mortgage for the sum of $4,200. All of the moneys received as wages by the deceased, his father and other wage earners of the family, as well as the income from the rented part of the premises owned by the parents of the deceased, were turned over to the mother, the petitioner. She made all disbursements for the family, and due to the large number in the family it was impossible for the petitioner to specify exactly the individual expenses of her deceased son, except in a general way.

Under the cases of Conners v. Public Service Electric Co., 97 Atl. Rep. 792, and Bogdoll v. J. P. White, 4 N. J. Mis. R. 774, and under the facts in these cases, the status of the other members of the family are definitely established as partial dependents.

In the present case, the total weekly income of the family, eliminating the sum of $2.50 per week, which deceased used for himself, is $79.19.

The testimony showed that all of this money was spent for necessaries for the maintenance of the family. There were in 'the family at the time of the death of the deceased, twelve persons, ten of whom were in the dependency class as defined by the statute, and the fair general average shows that the cost of maintenance of the deceased was $7.50 per week, which, deducted from his weekly contribution of $15.50, leaves a balance of $8, which represents his contribution for the support of the other members of his family who were partially dependent upon him for support, which figure must be used as a basis of the calculations in determining the weekly compensation rates.

4. I do therefore find and determine that the deceased left him surviving the following, all of whom were partially dependent upon him for support, to wit:

Joseph Schauble, father; Mary Schauble, mother; Charles Schauble, brother; Erancis Schauble, brother; George Schauble, brother; Anthony Schauble, brother; Eeinhard Schauble, brother; John Schauble, brother; Mary Schauble, sister; Leona Schauble, sister.

It is therefore, on this ninth day of September, 1927, ordered that judgment final be entered in favor of the petitioner, and that the respondent pay or cause to be paid to the petitioner compensation as follows:

Three hundred weeks, at $4.80, $1,440; forty-six weeks, at $4.40, $.202.40; one hundred and three and three-sevenths weeks, at $4, $413.71; one hundred and sixty-nine and five-sevenths weeks, at $3.60, $610.97; one hundred and twenty-three and six-sevenths weeks, at $3.20, $306.34.

This compensation shall begin as of November 22d, 1926, the first weekly payment due November 29th, 1926. All the compensation which has become due since November 29th, 1926, shall be paid in one sum. The respondent shall also pay to the petitioner $150 on account of burial expenses and also $200 as counsel fee to petitioner’s attorney.

Harry J. Goas, Deputy Commisioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DMYTHO HITOTA, PETITIONER, v. PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION, RESPONDENT.
    For the petitioner, Julius H. Halprin.

    For the respondent, James O. Boyd.

   % %

Erom the evidence and stipulations entered into between the parties, it would appear that the petitioner was employed by the respondent as a trolley car cleaner at its car house at Nineteenth street and South Orange avenue, in the city of Newark.

The petitioner alleges that on the evening of October 23d, 1926, he slipped off a step of the trolley car which he was cleaning, and sustained an injury to his left hip and leg. He was first treated by a -doctor on the 23d of December, 1926, and at that time was given a treatment which is ordinarily given for rheumatism. The petitioner put this doctor on the stand, and while this doctor was evidently telling the truth, his answers were so evasive that his testimony led me to believe that he did not think that the petitioner was suffering disability from an accident. The doctor further testified that the history which he received from petitioner indicated that he had the same pains in the same leg about three years previous. Two other doctors were placed on the stand by the petitioner who had seen the petitioner subsequent to December, 1926, and they testified that they believed the petitioner was suffering from a permanent disability, and in answer to a hypothetical question testified that they believed the condition from which he was suffering was due to an accident.

The respondent put on as witnesses the foreman, assistant foreman and the petitioner’s helper, who testified that the petitioner complained of rheumatism, and did not say anything to him about an accident at any time. Even the helper, who was working with the petitioner, stated he was not told of any accident happening to him at the time the petitioner alleges that his accident happened. The foreman and the assistant foreman both testified that they had never received any notice from the petitioner that he had been injured.

The petitioner had met with a previous accident to his finger, and knew the procedure to go through to obtain compensation.

Two physicians for the respondent testified that there was no disability to the left leg, but that the right leg had quite a number of varicose veins, which caused an enlargement of that leg, and therefore, the left leg appears smaller than the right leg. They also testified that if the petitioner had sustained a tearing of the muscles of the left leg, he would have been immediately incapacitated, and would not have gone from October to December without medical treatment.

In view of the testimony I have come to the conclusion that the petitioner did not report this accident to his employer within ninety days from the happening thereof, and also that he is not suffering any permanent disability as a result of an accident.

^ % * *

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    OVID GILBERT, PETITIONER, v. BOARD OF CHOSEN FREEHOLDERS COUNTY OF BERGEN, RESPONDENT.
   A petition having been filed in the above-stated cause, ■praying for the compensation to which the petitioner may be entitled, by virtue of the terms and provisions of an act of the legislature of the State of New Jersey, entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the several acts amendatory thereof and supplemental thereto; and a time and place having been fixed for the hearing of said petition, and petitioner and respondent having-appeared on August 11th, 1927, before deputy commissioner Harry J. Goas, at the court house in Hackensack, New Jersey, the petitioner by David Harrison and respondent by Florence M. Brown, and testimony having been taken, I do find and determine as follows:

Petitioner, Ovid Gilbert, was employed as a porter and handy man at the Bergen Pines Isolation Hospital of Bergen county, located at Oradell, New Jersey. He worked under the direction and supervision of the warden of that institution, Guy McKellop. On March 28th, 1927, petitioner was engaged during the morning in carting garbage to the disposal plant on the hospital grounds and that afternoon was detailed by Mr. McKellop to carry loads of dirt from one part of the grounds to another section of the grounds which was being filled in. Petitioner was driving a Ford truck. He got one load of dirt and was sent back by Mr. McKellop to get another load. This was at about one or one-thirty p. M. The task should have taken about thirty to forty-five minutes, and when petitioner did not return in that time, Mr. Mc-Kellop went looking for him and seached all over the hospital grounds but could not find him. About two and a half hours later petitioner, Gilbert, was brought in with his right ankle broken and showing signs of having been drinking.

In the meantime on the way to get the second load of dirt for Mr. McKellop, petitioner met one William Eoberts, employed as electrician, who some times in the absence of Mr. McKellop from the institution gave certain orders, acting, as he described it, “as Mr. McKellop’s mouthpiece.” On this afternoon he met Gilbert and said to him, “we will go to Madden’s for some cider. If you do not want to stay you can bring the truck back.” As a matter of fact they went to Madden’s, which, was about a mile away and outside of the hospital grounds, and remained there for about two and a half hours. There, as Mr. Roberts himself testified, he and petitioner and another man bought and drank about a quart of wine and a gallon of cider. Roberts admitted he was intoxicated. Petitioner might have been intoxicated but it is not necessary to pass on that point.

On the way back from Madden’s, at about four p. m., Roberts, who was driving, lost control of the car and ran it into a ditch at the side of the road. To avoid serious injuries Gilbert jumped from the truck, breaking, his right ankle. Roberts and the other man who remained on the truck escaped with a few scratches.

I am of the opinion that the petitioner, in not obeying the explicit instruction of Mr. McKellop, went out knowingly with Mr. Roberts on what might be termed a joy ride or joy expedition to the Madden farm house for the purpose of obtaining drinks, thereby taking himself out of the employment, and that, therefore, the accident did not occur in the course of and out of his employment.

í£ }& # ❖ ❖

Harry J. Goas, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY A. LESSIG, PETITIONER, v. LEHIGH AND NEW ENGLAND RAILROAD COMPANY, RESPONDENT.
   Claude W. Lessig, the deceased husband of the petitioner, on May 25th, 1926, was employed in the capacity of a locomotive engineer by the Lehigh and New England Eailroad Company, respondent, and was in charge of a pusher engine which had on the morning of that day been oredred from the Pen Argyl engine terminal of respondent, situate at Pen Argyl, Pennsylvania, for the purpose of assisting two eastbound trains over a portion of the railroad system of the respondent, which, so far as pertinent to the facts involved in this record, may be considered as extending from Pen Argyl, Pennsylvania, eastward to the Delaware river at Portland, Pennsylvania, and Columbia, New Jersey, from which points it extends to Hainesburg Junction, New Jersey, thence by virtue of trackage rights over the New York, Susquehanna and Western Eailroad Company to Swartswood Junction, and from the latter point over the rails of the respondent via Augusta and Sussex, New Jersey, to a point in Orange county, New York state. The trains actually pushed or assisted by the locomotive of which Lessig was the engineer were a train pulled by engine Fo. 304, assisted by Lessig’s locomotive from Pen Argyl, Pennsylvania, to Augusta, New Jersey, and a train pulled by engine Fo. 306, assisted by Lessig’s locomotive from Hainesburg Junction, New Jersey, to Augusta, New Jersey. Both of these trains were interstate trains, having originated in the State of Pennsylvania and moving from that state through New Jersey to a point in New York, and, in fact, contained interstate freight.

Upon the completion of the second assist eastward, which ceased at Augusta, New Jersey, a point situate on the rails of the respondent, the deceased employe received a train or operating order from the train dispatcher of the respondent to return with his engine westward to Swartswood Junction, the eastern junction point of the tracks of the respondent with those of the New York, Susquehanna and Western Railroad Company. Upon arrival at that point he received from the latter-named company a train or operating order requiring him to move with his engine westward over the tracks of the New York, Susquehanna and Western Railroad Company to Hainesburg Junction, the western end of the trackage rights of the respondent over the tracks of the New York, Susquehanna and Western Railroad Company. The last-named point was never reached by the decedent, owing to the fact that by reason of his disobedience of the provision of the operating order requiring him to take a siding with his engine, he collided with a New York, Susquehanna and Western train and was killed, the accident occurring in the vicinity of Marksboro siding, New Jersey, which siding the decedent had been ordered to take but which he failed to do.

The order covering the movement westward from Swartswood Junction to Hainesburg Junction was the last train movement or operating order ever received by Lessig. In other words, at the time of the accident no order had been issued by the respondent or anyone else covering the decedent’s movements with his locomotive subsequent to his arrival at Hainesburg Junction. The record, however, does show that the day’s work for Lessig and his engine had been completed in that two assisting movements require more than a day’s regular time, and overtime is encountered when two assisting movements are made, so that, in fact, lessig was returning his engine to its terminal, a point in the State of Pennsylvania, situate at Pen Argyl, even though the train dispatcher of respondent had not at the moment of the accident issued the order which would have been received by Lessig had he reached Hainesburg Junction. That a day’s work had been completed and that the engine was returning homeward is shown not only by the testimony of the witnesses of the respondent but is corroborated by a member of the engine crew who was with Lessig at the time of the injury and who testified in behalf of the widow. This witness testified they never made more than two assists eastbound in one day and that upon the completion of their day’s work they invariably returned to Pen Argyl, Pennsylvania.

Petitioner has introduced evidence to show that there was sufficient trackage space in the way of sidings, &c., belonging to the respondent at Hainesburg Junction to permit the placing of the engine thereon, and presumably argues therefrom that Lessig and his engine might have completed their day’s work and the engine stored at Hainesburg Junction over night or for an indefinite period, taking it entirely out of its entire day’s engagement as an instrumentality of interstate commerce, for it will be noted that no intrastate work was performed by the engine on May 25th, 1926.

In the brief filed on behalf of the petitioner, considerable emphasis is laid upon the fact that no train or operating order had been issued governing the movement of Lessig and his engine upon arrival at Hainesburg Junction. This fact is not denied by the respondent but the chief train dispatcher of the latter explained in detail the method of placing these orders and that it is not good railroad practice to place an order at a junction point long in advance of the arrival of the engine or train thereat. He further testified that, had the accident not happened, Lessig’s further homeward movement upon the completion of his work would have been governed by a train order placed by him (the train dispatcher) at Hainesburg Junction, requiring Lessig either to run light, that is, without pulling or assisting any train, to his terminal at Pen Argyl, Pennsylvania, or that, had another train westbound been in the vicinity of Hainesburg Junction, he might have been required to assist that train westward to Pen Argyl, the engine terminal. In either event Lessig was to have been returned to Pen Argyl terminal and would have received an order governing that movement upon his arrival at Hainesburg Junction had the fatal accident not intervened.

The record is clear that respondent maintains no facilities at Hainesburg or elsewhere in the State of New Jersey where Lessig’s engine could have been returned for care and hostlering upon the completion of its day’s work, and that engines operating out of Pen Argyl terminal for work of the character which Lessig was performing upon the day of his death are invariably returned to Pen Argyl at the end of the day.

The law applicable to facts substantially the same as those involved before us was declared by the Supreme Court of the United States in Chicago, Rock Island and Pacific Railroad Co. v. Lizzie, L. Wright et al. (1916), 239 U. S. 548, where the facts briefly stated were as follows: An engine was on the way from Phillipsburg, Kansas, to Council Bluffs, Iowa. The train order governing the deceased employe’s movements at the time of the accident read: “Engine 1486 will run extra, Eairburg to Albright,” both of which points were within the State of Nebraska. It was intended that the -engine moving light at the time should proceed to a repair point in the adjoining state and an order covering that movement would have been given had the deceased employe reached Albright. A contention similar to that made by the petitioner here in reference to the significance of a train order covering a movement between two points within the same state was made by the petitioner in that case and the state courts sustaind the contention. The Supreme Court of the United States, in reversing and commenting thereon said (at page 550) : “In this they [the state courts] misconceived the meaning of the train order and the effect of the decisions cited. The order was given by a division train dispatcher, and meant that between the points named therein the engine would have the status of an extra train, and not that it was going merely from one of these points to the other.” The Supreme Court of the United States held that the deceased employe was at the time of his injury employed in interstate commerce within the meaning of the Eederal Employers’ Liability act of April 2d, 1908, notwithstanding the wording of the train order just quoted. If the employe is engaged in interstate commerce, it has been repeatedly held that remedies extended by the Federal Employers’ Liability act are exclusive and the State Workmen’s Compensation laws are not applicable. New York Central v. Winfield, 244 U. S. 147; New York and Erie Railroad Co. v. Winfield, 244 Id. 170.

Much as we may deplore the condition of this widow with her husband and means of support suddenly taken away from her and that of the six small children left without the care and financial assistance of a father, we are compelled under the law as it exists to-day to find that Claude W. Lessig, at-the time of his injury on May 25th, 1926, was, in fact, engaged in interstate commerce and that the workmen’s compensation bureau of the State of New Jersey is without jurisdiction to make any .award for the relief of the widow and her1 children. '

In view of the record and the findings of fact necessary thereon, as above set forth, the claim must be disallowed and the petition denied.

W. E. Stubbs, Deputy Commissioner.


author: Per Curiam.

text:
    MICHAEL A. EMMA, RELATOR, v. LOGGIA FASCI ITALICI NO. 16 ORDER SONS OF ITALY IN AMERICA ET AL,. RESPONDENTS.
    Submitted April 12, 1928
    Decided April 30, 1928.
    Before Justices Trenchard and Katzenbach.
    For the motion, Anthony R. Finelli.

      Contra, Charles C. Ciffoniello.

   Per Curiam.

This is a motion to quash an alternative writ of mandamus. On May 3d, 1927, argument was had upon a rule to show cause why a writ of mandamus should not issue in the above case. On November 11th, 1927, this court decided that upon the facts presented by the relator an alternative writ of mandamus should be allowed. It now appears that counsel for the relator failed to enter in the minutes of the court within ten days after said decision a rule to the effect that an alternative writ of mandamus had been granted. The entering ■of such a rule is the practice prescribed in the case of Jersey City v. Davis, 80 N. J. L. 609. This case was decided on June 30th, 1910. The decision of the court in this respect was based on rule 40 of the rules of this court as they then existed. The same rule is now known as rule 214. On March 15h, 1928, an alternative writ of mandamus was issued out of this court. An application was then made before the Chief Justice on March 31st, 1928, to quash the writ upon the ground mentioned. He referred the matter to part 3 of the Supreme Court. Part 3, believing that the court which heard the rule to show cause why a writ of mandamus should not be issued, should determine the question herein involved, requested part 2 to dispose of the motion, which was submitted on briefs.

Assuming that rule 214 of the rules of this court required the entering in the minutes of the court of a rule to the effect that an alternative writ of mandamus had been directed by the court to issue in the above ease within ten days from the filing of the opinion of this court, which was on November 25th, 1927, we are of the opinion that the motion to quash should be denied. Eule 5 of the Practice act of 1912, which was enacted after the decision of the case of Jersey City v. Davis, supra, and which is now embodied in the rules of this court and known as rule 218, provides as follows:

“218. Eules May be Suspended. These rules shall be considered as general rules for the government of the court and the conducting of causes; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work surprise or injustice.”

We feel that the advancement of justice requires that the relator in the present case should have an opportunity to present his case under the alternative writ of mandamus allowed. The counsel of the relator has permission to enter a rule nunc pro tunc in the minutes of this court with reference to the allowance of the alternative writ of mandamus under the decision of this court filed November 25th, 1927. The case of Singer v. Juechter, 2 N. J. Mis. R. 714, supports the ruling which we make in the present case, although the facts in that case are slightly different from those which exist in the present ease. In that case the oversight was the fault of a clerk. In the present case the failure to enter the rule was an inadvertence of counsel. No costs are allowed on this motion.


text:
    THE FARMERS’ LOAN AND TRUST COMPANY, EXECUTOR UNDER THE LAST WILL AND TESTAMENT OF ALICE MULLER, PROSECUTOR, v. NEWTON A. K. BUGBEE, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, AND WILLIAM T. READ, TREASURER OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Argued January 17, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Minton & Rogers.

    For the defendants, Edward L. Katzenbach.

   Per Curiam.

The question relates to the imposition of a succession tax upon a portion of the estate of one Alice Muller, a resident of New York, who died in 1922.

In 1908 she and her husband made an instrument of transfer to two of his brothers in Germany, covering one hundred and thirty shares of'the United States steel, preferred, $3,000 in United States steel sinking fund bonds, and twenty shares of Western Union telegraph, reserving the income on these securities for the lives of the grantors and the survivor of them, and lodging the securities with the prosecutor, the Farmers’ Loan and Trust Company, until the death of the survivor. The husband died first, and after Mrs. Muller’s death the trustee applied for a New Jersey waiver on the steel stock, and the comptroller imposed a tax which is contested in this case.

The first point made by the prosecutor which we shall consider is that the statute is not retroactive, and that, if this tax be sustained, it would amount to taxing vested interests and would be unconstitutional. The answer-to this is that, while the paper purports to vest title at once in the two brothers, it does not vest such title in possession and enjoyment until the death of the survivor, and, consequently, the property would be subject to a tax imposed by an act in force at the time of the death of such survivor. This rule is well settled. Carter v. Bugbee, 91 N. J. L. 438; In re Harvey, 129 Atl. Rep. 393; 98 N. J. Eq. 638; 128 Atl. Rep. 679; 135 Id. 919.

The other point is that the evidence shows that the transfer was for a valuable consideration adequate in amount, and that it was therefore a sale. This is the burden of the argument. The paper itself recites one dollar and other valuable considerations in hand paid. But admittedly nothing was paid at the date or delivery of the paper; the consideration claimed is outside the paper, namely, an agreement to pay the grantors and the survivors of them the sum of two thousand four hundred marks a year in monthly payments until the death of the survivor.

Assuming for present purposes, what need not be decided, that such consideration can legally be shown, when the evidence is examined, it seems nebulous in the extreme. Without doubt, there was an agreement of some kind to pay $600 a year. This agreement, apparently, was not in writing, or, if it was, has not been placed before us. A written paper printed in the case recites such an agreement, and uses this language: “The property of our sister-in-law Alice and our brother Eichard was to pass to us after their death.” The paper does not say what property was to pass, and it is very clear from a reading of the evidence that there was other property. The consideration must be an adequate one in order to escape the tax. In re Hall, 94 N. J. Eq. 398, 404; In re Bottomley, 92 Id. 209. We consider that the prosecutor has failed to show satisfactorily that the alleged consideration oí $600 a year (two thousand four hundred marks) was a consideration for the transfer of this stock and nothing else.

Onr conclusion is that the prosecutor has failed to show a proper case for exemption, and, therefore, the tax brought up by this writ will be affirmed.


text:
    STELWAGON MANUFACTURING COMPANY, A BODY CORPORATE, PLAINTIFF, v. ALBERT C. HARRISON, Jr., DEFENDANT.
    Argued January 27, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff, Quinn, Parsons & Doremus.

    For the defendant, Mary Wooster Sutton.

   Per Curiam.

This suit is based on a trade acceptance drawn by a corporation known as the Waterproofing Company of America upon the defendant Harrison, and which he accepted in writing, payable at a stated bank. The state of demand does not show any endorsement of the trade acceptance by the payee who was also the drawer; it sets up protest, but does not set up notice.

The first point urged is that the state of demand was insufficient because it did not show the plaintiff to be a party to the trade acceptance. The difficulty about considering this point, however, is that it does not appear to have been made at the trial; on the contrary, it is expressly stated in the state of the case that the paper was transferred to the plaintiff by endorsement and delivery, and it was marked in evidence without objection. No point was made about the proof of notice, and properly not, as an .acceptor is not entitled to notice any more than the maker of a note. Rand. Com. Paper, § 1238; 8 C. J. 641, §§ 900, 901. The first point we conclude is without merit.

The second point is that the trial court should have admitted evidence as to what inquiries plaintiff as endorsee had made from its customer, the endorser, concerning the circumstances under which defendant signed the trade acceptance. Inasmuch as the plaintiff brought the suit as a holder in due course, this would seem to have been legitimate cross-examination. De Jonge v. Woodport Land Co., 77 N. J. L. 233. But the error, if any, was harmless, because the same witness was called by the defendant and gave full details on this point.

The next point is that the court ought to have admitted evidence as to the agreement relating to the taking over by the plaintiff of fifty trade acceptances at one transaction. This refers to the ground of appeal challenging the rejection of a question to the witness Joseph Stelwagon as to an alleged agreement with the Waterproofing company about fifty trade acceptances. The inquiry was relevant; but the witness had already testified that he made no inquiry as to the circumstances, that he took the acceptance in the usual course of business, and further on the plaintiff’s case, that his company supplied material to the drawer, shipped it direct to the drawer’s customers, and accepted their acceptance in payment; that if and when this draft was paid, his company would owe the Waterproofing company $56.28 of it. The general question, “What was the agreement?” was therefore already answered.

The fourth and last point is that on the evidence the court could not lawfully find the plaintiff was a holder in due course. To this we cannot agree. Perhaps the plaintiff was not a holder in due course as to $56.28 of the draft, but it may well have been a holder in due course as to the rest, and there was no separation of these two parts of the draft anywhere in the case. Counsel for the appellant relies particularly upon the case of Williams v. Wiltz, a Connecticut decision, in 137 Atl. Rep. 759. We have examined that case and find it is not in point. It appears from the report that the question whether the plaintiff was a holder in due corase was left to the jurjq and that the jury found for the defendant.

The judgment will be affirmed.


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    ABE ROCKAWAY, PLAINTIFF-APPELLEE, v. BENJAMIN HIRSCH OR BENJAMIN HIRSCHOWITZ, DEFENDANT-APPELLANT.
    Submitted January 27, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff-appellee, Sidney A. Bierman.

    For the defendant-appellant, Klein & Klein.

   Per Curiam.

The principal point made on this appeal is that the judgment awarded to the plaintiff below was based upon a theory of the case that did not appear in the state of demand; and if it appeared that that objection had been made at the trial, it is possible that we should feel obliged to reverse this judgment. The state of demand was in two counts. The first count is based upon a written agreement for the sale by the plaintiff to the defendant of the plaintiff’s confectionery business for $4,500. The first count says that the defendant deposited $100, remained in the store four or -five days, and then quit and refused to go on; that plaintiff was compelled to pay a broker $225 commission, and that because of the breach of contract he lost this sum of $225 paid to the broker. The second count repeats all the allegations of the first and says that, after the defendant took possession of the store, plaintiff introduced the defendant as the new owner of the business, and that the defendant’s occupancj'' resulted in a depreciation of the value of the store. Also, that during the said four or five days the defendant and his family used up stock in the. store and did not pay for same, all to the damage of the plaintiff. This is all there is to the plaintiff’s claim. The written agreement is attached. The defendant counterclaimed on the ground that plaintiff guaranteed to the defendant that the store would show an income of $400 for a stated period of one week, and that if the income fell short of that, everything was off and the deposit was to be returned. It goes on to say that the income was not up to that $400', and, therefore, defendant lawfully refused to complete.

The judge refused to consider the counter-claim on the ground that it appeared that the defendant had not occupied the store for a full week, and, therefore, there was no way of ascertaining whether it would show an income of $400 a week or not. This seems to have been a correct, practical way of deciding the matter, although the court might well have taken the stand that the original agreement being in writing, and the counter-claim being based upon an alleged collateral agreement of defeasance, parol evidence of such a collateral agreement was inadmissible. See Levy v. Rothchild, decided at the present term. The theory of the decision was that because the defendant refused to complete the contract of purchase, the plaintiff was obliged to resell the property, which he did through another broker for $4,200, paying $200 brokerage, and, therefore, his next return was only $4,000; that there was testimony to indicate that the plaintiff sold the property for the best price obtainable under the circumstances, and he, accordingly, awarded the plaintiff a judgment of $400, being the original contract price of $4,500, less $100 paid on account, and the net amount of $400 received on a resale. As already noted, if objection had been made in due season at the trial, the court would have been in error to deal with the case on this basis without an amendment of the state of demand, and, perhaps, a continuance; but the state of the case, which was prepared by the respective attorneys, fails to show that any objection whatever was made to the evidence bearing on this point or to the general treatment of the case on that theory; so that under the well-settled practice, the court should not reverse where the whole matter has been thoroughly tried out on the theory of the decision and without any objection.

The judgment will be affirmed, and, if necessary, the suitable amendment may be made in this court, although we hardly deem it necessary at this stage of the case.


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    GEORGE HESSE, PLAINTIFF-APPELLEE, v. JOSEPH CLARK, DEFENDANT-APPELLANT.
    Submitted January 27, 1928
    Decided May 1, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the plaintiff-appellee, Nicholas S. Schloeder.

    For the defendant-appellant, Leland Taliaferro and William E. Speer.

   Per Curiam.

According to the testimony of the' plaintiff in the court below, he was engaged in driving an auto bus when the defendant, Clark, accosted a policeman and asked to have the plaintiff locked up, stating that he was not allowed to run the bus. The officer boarded the bus and caused the plaintiff to drive down to the police station, which he was made to enter, the defendant accompanying him and the policeman, and the defendant made a complaint against him. He was paroled to come back the next day, at which time a written complaint was sworn to by the defendant charging the plaintiff with operating a jitney bus in violation of the ordinance without a permit. The complaint was tried and dismissed, and the plaintiff brought this suit.

The first paragraph of the state of demand charges that while plaintiff was operating his bus under local consent, one Patrick Lane, a police officer, by the order, direction and instigation of the defendant unlawfully placed him under arrest without warrant or process and forced him against his will to accompany the said police officer and defendant to the police station, where he was detained upon oral charge of operating an auto bus in the city of Hoboken without a permit.

The second count charges that later the defendant, Clark, made a written complaint of the same character, that .said charge was unfounded and made maliciously and without probable cause, that a hearing was had and the charge was dismissed, and laying damages by reason of the premises.

Much of the argument for the appellant is predicated upon the proposition that the action is an action of malicious prosecution; and we are frank to say that if it were only an action for malicious prosecution, we should probably he unable to sustain this judgment. But it will he observed that the state of demand charges two things, both an unlawful arrest without warrant or process, and later on a complaint and charge of a criminal offense. The two things are entirely separable, and we consider that in an informal pleading like the state of demand in a District Court, the first paragraph charging the unlawful arrest may well stand as one count for false imprisonment, and the subsequent paragraph as a count for malicious prosecution. Of the grounds of appeal, the only ones that need to be considered are that the court failed to direct a verdict for the defendant, and erred in awarding a judgment for the plaintiff. Those that go to malicious prosecution we disregard as immaterial, under the circumstances.

The only remaining point is that the court awarded $50 as a counsel fee; but this is not true in fact. The judge, in discussing the case at the time of giving judgment, concluded as follows: “So, it does not seem to me that it is a case where I should give any really heavy damages, or anything except, possibly, a small sum that might enable the plaintiff to pay his counsel. That is about all. I think I will give a judgment for $50 for the plaintiff.” There was no exception to this; there was an exception to the refusal of the court to direct the verdict, but that is all.

This is not the award of a counsel fee. It is the award of a judgment for damages; and while it might be said that the award of $50 was based on a wrong principle, it cannot be said that the plaintiff was not entitled to damages, or that the damages were at all excessive. In cases of this kind, where a man is deprived of his liberty, even temporarily, the element of punitive damages, of course, inheres, and it is not necessary to prove any compensatory damages.

We find no error and the judgment will, accordingly, be affirmed.


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    MARTIN FORD, PROSECUTOR, v. VILLAGE OF RIDGEWOOD, DEFENDANT.
    Argued January 18, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Frank Bergen.

    For the defendant, J. Willard De Yoe.

   Per Curiam.

This case is controlled by the views expressed by us in the case of Public Service Electric and Gas Company against the same defendant, number 273 of the present term; and, for the reasons given in that case, the conviction under review will be set aside.


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    PHILIP GAUDIOSI, PLAINTIFF-RESPONDENT, v. ANTHONY S. MICONE AND EDWARD M. LEAHY, DEFENDANTS.
    Submitted January 27, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff-respondent, Jacob Lipman.

    For the defendants, Sorg, Duncan & Bailey.

   Per Curiam.

Plaintiff’s theory of the case as indicated in the state of demand, was that the defendant Leahy, as sergeant-at-arms of the East Orange District Court, had wrongfully levied on rents of a parcel of real estate owned by the plaintiff, and that this was done at the instance of defendant Mieone, the plaintiff in execution in the East Orange court. At the trial an amendment was suggested and allowed by the court.' We have been unable to find the amendment itself in the printed book, but appellant states in his brief that by it the action was changed to one for money had and received. We may say at this time that the claim of error in permitting this amendment is without merit, as the facts of the case were fully understood on both sides and no surprise was possible.

The court absolved Leahy, the sergeant-at-arms, and awarded judgment against Mieone, who appeals.

The material facts are as follows: On Pebruary 8th, 1927, plaintiff, G-ancliosi, acquired by deed legal title to the real estate mentioned; he did not place his deed on record until June 16th, 1927. In the meantime, on March 16th, one Carrera undertook to make a written lease in his own name to a tenant named La Eera, of part of the property, acting, as he testified, as agent for plaintiff, Gaudiosi, but without telling Gaudiosi what he had done. Carrera collected (and, as he says, paid Gaudiosi) the La Pera rents up to the point where the defendant Micone recovered judgment in the East Orange District Court against Carrera, discovered the existence of the lease in Carrera’s name as landlord, levied on the rent under the act of 1915, page 182, and on July 7th took out an order requiring La Pera to pay rents subsequently accruing, to the sergeant-at-arms to be applied to Micone’s judgment. This seems to have been done, and the present suit is for the rent of August, September and October, 1927, collected by Micone through the sergeant-at-arms as the property of Carrera. The case is substantially that of the real owner of chattels wrongfully levied upon and converted as the property of another, suing the sheriff and plaintiff in execution for such conversation.

There are only three grounds of appeal. The second, relating to the allowance of an amendment, we have already disposed of. The first is that the court erred in giving judgment for the plaintiff; the third, that the court “erred in reviewing orders of the District Court of the city of East Orange, and in nullifying the orders of said court.” We see no merit in either of them. As to the third, the orders were res inter alios actae, to which plaintiff was not a party and by which he was in nowise bound. They were predicated on the assumed ownership of Carrera, and amounted to no more than the merely formal procedure required to make effective a levy on rights and credits, not the subject of manucaption like a tangible chattel. We repeat, that in all essentials this is the case of the real owner of a chattel holding the sheriff and an execution creditor of another for a wrongful levy; as, for example, in Harris v. Krause, 60 N. J. L. 72. In fact, an action of this kind (apart from the statutory claim of property, if applicable to rights and credits, which we do not decide) is the only adequate remedy, as the plaintiff in this action could not properly intervene in the suit against Carrera. Murphy v. Borden, 49 Id. 527.

These considerations dispose also of the first ground of appeal, which is general in character.

The judgment will be affirmed.


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    ROBERT G. CLARE, PROSECUTOR, v. VILLAGE OF RIDGEWOOD, DEFENDANT.
    Argued January 18, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Frank Bergen.

    For the defendant, J. Willard De Yoe.

   Per Curiam.

This case is controlled by the views expressed by us in the case of Public Service Electric and Gas Company against the same defendant, number 273 of the present term; and, for the reasons given in that case, the conviction under review will be set aside.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ESTELLE RONEY, PETITIONER, v. GRIFFITH PIANO COMPANY, RESPONDENT.
   A petition having been filed in the above-stated cause, praying for the compensation to which the'petitioner may be entitled, by virtue of the terms and provisions of an act of the legislature of the State of New Jersey, entitled “An act prescribing the liability of an employer to make compensation for injury received by an. employe in the course of the employment, establishing an elective schedule for the determination of liability and compensation thereunder,” approved April 4th, 1911, together with the several supplements thereto and acts amendatory thereof, and a time and place for hearing of said petition having been fixed, and the court having had the testimony offered in behalf of the parties hereto, and counsel having been heard, which said case was held in abeyance and mutually agreed upon until the case would be finally disposed of in the Supreme Court in the State of New Jersey, which said court rendered the decision in its May term of 1936, and on October 7th, 1936, a decision Avas rendered by the justices of the May term, upholding the findings of Harry J. Goas, commissioner of compensation, and Newton H. Porter, judge of the Court of Common Pleas.

It seems that no compensation has been paid in this cause, and it is urged by the respondent-appellant that, as the petitioner has died there is now no person to whom any compensation is properly payable. The authorities cited in support of this view do not sustain that contention. On the contrary, the law is settled that the personal representative of the deceased is entitled to the compensation which had accrued up to the date of death of the petitioner. Erie Railroad Co. v. Clara Callaway, Executrix, 91 N. J. L. 32, 102, A. 6.

It is also contended by the respondent-appellant that the right of the widow of petitioner to recover compensation is barred by statute; no claim having been filed by her in time. As the widow is not a party to the proceeding under review, that question is not an issue in this proceeding.

The respondent paid temporary compensation to the widow of the above-named deceased from the date of the accident, December 29th, 1924, up to the day of his death, January 7th, 1925, plus counsel fee, court cost and medical expenses.

This procedure was brought on by Estelle Roney, widow of the deceased, as a dependent, and the case was heard and disposed of on the 29th day of October, 1926, in the workmen’s compensation bureau, city of Newark, county of Essex and State of New Jersey, the petitioner or widow being represented by Charles Becker and the respondent by Clarence B. Tippett. Estelle Roney testified as to the marriage and cohabitation, and also testified that she had not remarried and there were no children born of the said marriage. The marriage and death certificates were offered in evidence and consented to by the respondent. Louise Gordon testified that she knows Estelle Roney for many years and had been in personal contact with her during the six or eight months of her marriage to the deceased.

I do hereby find and determine from the evidence taken in this cause as follows, to wit:

First. The decedent was on the 29th day of December, 1923, in the employ of the respondent in the capacity of a piano mover, and while in the course of his employment met with an accident which ultimately brought on his death, due to a cancer.

Second. The decedent, William Roney, died on the 7th day of January, 1925, and the petition filed by Estelle Roney, wife of the deceased, was filed July 31st, 1925, on the dependency claim which is within the one year period from the date of the last payment of compensation.

Third. It was admitted by the respondent’s attorney that the deceased, William Roney, was injured while moving a piano, and Estelle Roney testified as to the date of death of her husband. The witnesses also testified as to the marriage and cohabitation of the petitioner, and proved that Estelle Roney was the widow of the deceased, William Ronejr, and at the time of the injury, and up to the date of death. The deceased received wages while in said employment amounting to $30 per week and the widow of the deceased is entitled to receive thirty-five per cent, of the $30 or $10.50 per week for three hundred weeks, or a total of $3,150.

The accrued compensation shall be paid in lump sum from the date of hearing, 29th day of October, 1926, to the day of signing of the order and determination and also the sum of $150 for funeral expenses, plus $300 counsel fee and $10 court cost are also to be paid by the respondent.

It is therefore, on motion of Charles Becker, attorney for the petitioner, ordered that the respondent herein pay or cause to be paid to the said petitioner the sum of $3,150 for compensation in the above matter.

It is further ordered that Charles Becker, attorney for the petitioner, is entitled to and shall receive the sum of $300 as counsel fee herein, the said sum to be paid by the respondent, and also the cost to be paid by said respondent.

Harry J. Goas, Deputy Commissioner.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PETER J. CANNON, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, RESPONDENT.
    For the petitioner, James J. Cannon.

    For the respondent, James O. Boyd.

   ❖ # # %

The only question at issue in this case is whether the petitioner has any disability as the result of an accident, and, if so, to what extent.

Peter J. Cannon, the petitioner, is sixty-four years of age, and for years and to the time of his accident was actively engaged in his occupation of plasterer. It appears that on January 12th, 1926, he was plastering the elevator shaft while standing on the top of the cage, when an iron! bar fifteen inches long and weighing approximately six pounds, became dislodged from overhead in some manner and struck him in the region of the left shoulder and back.

Dr. Carlongh, who treated him, first testified that he was brought to his office suffering from shock, he was white and his pulse was high. He treated him nine times to January 31st. His injury was over the left shoulder and back, which were extremely sensitive the first three or four days. He had to be helped around in bed. He did not order an X-ray to be taken, as, in his opinion, there was not enough evidence to warrant it. There was very little discoloration on his back, although he complained of pain around the shoulder blade down to the fifth and sixth vertebrae. When he saw him last he told him to try and do some light work, he didn't think he was suffering any permanent disability. On cross-examination he admitted he might have been wrong in his diagnosis.

Dr. Andrew E. McBride testified that he treated the petitioner dozens of times, beginning with two months after the accident until recently. He found him very tender over his spine four to five inches below the shoulder blade. After strapping him he referred him for an X-ray to Dr. Wilkinson. Dr. McBride testified to some arthritic changes over the lower dorsal vertebra, that he could not any longer do the usual work of a plasterer except very nominal work, that the pain was most intense below the left scapula, and in answer to a hypothetical question, he was of the opinion that the accident caused his present condition.

Dr. Wilkinson interpreted the X-rays which he took at the instance of Dr. McBride. He found arthritic changes around the eleventh and twelfth dorsal vertebrae, cloudiness of the intervertebral spaces, and a slight lipping at the anterior edges of the seventh and eighth vertebrae.

Dr. Bryan O. McG-inniss concluded the testimony for the petitioner. In his one examination he found marked tenderness and muscular spasm on the left side of the spinal column from the eighth or tenth vertebrae to the lower part of the dorsal region. In answer to a hypothetical question, he was of the opinion that the accident caused his present condition, and concluded his direct testimony by estimating a permanent disability of twenty-five per cent, in terms of total disability. On cross-examination, he admitted that from his examination alone, and without a history of accident, he could not tell whether disease or trauma was the cause of his condition.

Dr. J. H. Wyatt was the first witness for the respondent, and, in his interpretation of the X-rays he took for the respondent, he was practically in accord with Dr. Wilkinson, who testified for the petitioner. He also -found lipping between the seventh and eighth dorsal vertebrae and bridging between the eleventh and twelfth dorsal vertebra. No evidence of fracture or bone destruction was revealed by his X-ray and lie was unable to find any disability as a result of the accident. The lipping is the usual condition in his opinion in people who have worked all their lifetime.

Dr. Charles E. Baker, an X-ray specialist, interpreted Dr. Wyatt’s X-rays, and his opinion was, in substance, the same as that of Dr. Wyatt.

Eour medical witnesses then testified in succession for the respondent, and they were all unable to discover anything abnormal objectively, and concluded that no permanent disability was in evidence as a result of the accident in question.

Dr. Walter Washington admitted the petitioner complained of pain on his examinations, and that on both occasions it was located between the shoulder blades.

Dr. Thomas M. Pascal testified that Mr. Cannon was unable to isolate the area of his pain with any degree of reliability, and that his examination was practically negative, as he found no objective evidence of injury.

Dr. Russell examined the petitioner solely on the day of the hearing and found that he complained of pain, not between the shoulder blades, but that the area of tenderness was below this region. He concluded by expressing the opinion that the petitioner had a condition of senility and beginning arterio sclerosis not induced by the accident.

The testimony of Dr. N. E. Eure, the concluding witness, was, in effect, the same as the preceding witness. He also found no objective evidence of back injury, and that his complaint was due to his senile condition.

It will be observed that of all the medical witnesses but two physicians actually gave him treatment. The rest, with the exception of the X-ray specialists, simply examined him one or more times. There is some testimony of his complaints of pain not being consistently located at all times in the same area. It does not always follow that the pain complained of must necessarily be confined to the exact point of impact. It may be referred to a reasonable distance from the location of the trauma. Depending on the circumstances of each case, it often cannot be located with mathematical exactness. Such, I think, is the situation in this case. Otherwise the medical testimony resolves itself into no objective symptoms on the one side compared to a positive finding of some disability as a result of the accident on the other side.

At this juncture the testimony and demeanor of the petitioner is important. He testified that he was active in his occupation of plasterer up to the time of the accident, which testimony was corroborated by two other witnesses, that now he cannot do the work he was able to do before the accident, that he is unable to lie on his left or injured side, and that he is able to sleep very little at night.

In my opinion, senility does not manifest itself over night. There would be a gradual slackening in effort, whereas in the case at issue, the petitioner was able to do the hardest kind of plastering, such as ceiling work, before the accident, and thereafter he was confined to the lightest sort of employment such as pointing up. He impresses me as being a truthful witness, and gives evidence of being in pain as a result of the accident. It is well known that pain is subjective and often is not indicated by exterior symptoms. While physicians often can find no real objective basis for pain, neither can they positively testify to the absence.

I am accordingly making a finding in favor of the petitioner of permanent disability equal to twenty-five per cent, of total disability or one hundred and twenty-five weeks.

Harry J. Goas, Deputy Commissioner.


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    PUBLIC SERVICE ELECTRIC AND GAS COMPANY, PROSECUTOR, v. VILLAGE OF RIDGEWOOD, DEFENDANT.
    Argued January 18, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Frank Bergen.

    For the defendant, Willard L. De Yoe.

   Per Curiam.

The writ in this case brings up for review an alleged ordinance enacted by a body calling itself the board of health of the village of Ridgewood, in the county of Bergen, and entitled “An ordinance establishing rules and regulations for plumbing, drainage, water supply and ventilation of buildings in the village of Ridgewood.” This so-called ordinance is attacked on several grounds, one of which is that at the time it was attempted to be enacted, there was no legal board of health of Ridgewood; secondly, if there was a legally constituted hoard of health, it had no power to pass such an ordinance; thirdly, that if there was a lawful board of health and it had the power to pass a plumbing code, it had no power to include therein provisions relating to the installation of gas piping. These are all that need be mentioned for the present; for their consideration, it will be necessary to give some general account of the facts.

Prior to 1911, Ridgewood had a board of health. In that year the Walsh act was enacted (Pamph. L. 1911, p. 462), and Ridgewood immediately adopted it. In November, 1911, after such adoption, the village undertook to establish a board of health under color of the Walsh act which, according to the decisions, it had no power to do. Istvan v. Narr, 84 N. J. L. 113. However, the board, so attempted to be established, seems to have continued to function de facto, although by the amendment of 1913 (Pamph. L., p. 581), existing boards and bodies were wiped out. Corb v. Nutley, 101 N. J. L. 50; Schmeidler v. Atlantic City, 4 N. J. Adv. R. 983. This legislation refers to boards existing at the time of adopting the act, and it may well be said that it had of itself no effect on the board that was undértaking to function under the ordinance of November, 1911; but it seems fairly plain that such ordinance created no valid new board when it was passed in 1911, and, if not, then certainly the act of 1913 did not give such de facto board any status.

This situation seems to have continued until 1925, when the commissioners undertook to amend the ordinance of 1911 in terms apparently intended to create an entirely new board. This seems to be an action of the board of commissioners of Ridgewood authorized by the Walsh act; and, while it is true that it purports to be merely an amendment to an ordinance probably inoperative, nevertheless, we see no reason why that fact should invalidate the amendment itself; as it has been held that a statute amending a repealed statute is to be given effect, if practicable. Abrams v. Smith, 98 N. J. L. 319, 320 ; McDonald v. Freeholders, Ibid. 388. Eor present purposes, we consider that by virtue of the amendment of 1925 a valid board of health was set up.

The next point is that, assuming such a board was in existence, it had no power to pass the present ordinance. We think this point is well taken. The supplement of 1913 to the Walsh act (at p. 581), transfers all powers and duties devolved by law upon said boards to the board of commissioners. The proviso in that statute saves the creation of subordinate boards, but apparently does not purport to endow such subordinate boards with legislative powers. Hence, we conclude that only the commissioners themselves had power to pass a new health ordinance such as that now under consideration.

Whether the statute confers any specific power to deal with gas piping is an interesting question which, however, we think need not be decided. If such power exists, if there were a valid ordinance purporting to regulate gas fitting, in the manner prescribed by article 19 of the ordinance under review, it might well be said that gas fitters, whether working independently or under the employ of someone else, must obtain a license of the kind contemplated in such ordinance before undertaking to do gas fitting within the limits of the village; but no decision on this is required.

The conclusion that we have reached in this general attack upon the ordinance is that it is valid because not enacted by the board of commissioners, and on that ground the entire ordinance will be set aside.


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    BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLEE, v. SAMUEL ABRAMOFF, DEFENDANT-APPELLANT.
    Submitted January 27, 1928
    Decided May 1, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the plaintiff-appellee, Edward L. Kalzenbach, attorney-general.
    For the defendant-appellant, Peter Cohn.

   Per Curiam.

This is an appeal from a judgment in a penal action in the District Court for an alleged violation of section 2 of the Pharmacy act. Comp. Btat., p. 3944. The facts are that the defendant, being a grocer or an ordinary tradesman, undertook to sell a small bottle of camphorated oil, corked and sealed, and bearing the imprint of a regularly licensed druggist. The statute seems to forbid even this, and the court found against him and fined him. It is now argued, first, that one isolated sale is not a violation of the statute. We think, however, that this point is not well taken. Second, it is argued that this one act is not within the object of the Pharmacy act. We think that it is. Third, that section 8 of the act provides that nothing therein shall be construed to-making and vending of non-poisonous patent or proprietary medicines. The answer to this is that camphorated oil is not either a patent medicine or a proprietary medicine, and, consequently, irrespective of the question whether section 8, supra, should not properly be invoked as a defense putting the burden of proof on the defendant, a complete case of violation of section 2- not within the saving clause of section 8 was made out.

It is argued that the District Court erred in directing a verdict for the plaintiff. There seems to be absolutely no-question of fact involved, and as this is simply a penal and not a criminal one, we think that no error was committed by directing a verdict where there was no dispute upon the-facts.

We have considered this case on the merits, although we are fully satisfied that.an appeal in cases of this kind will not lie. In similar actions for the violation of the statute relating to practice of medicine without a license, it has been definitely laid down that certiorari is the only method of review. State Board v. Buettel, 131 Atl. Rep. 89; 3 N. J. Adv. R. 1860; State Board v. Roach, 132 Atl. Rep. 86; 4 N. J. Adv. R. 417; State Board v. Gese, 132 Atl. Rep. 926; 5 N. J. Adv. R. 373. The present case is not in any way different in principle, and the bar is accordingly advised that appeals of this nature are liable to be dismissed by the court of its own motion. This practice was followed, and correctly, in Harman v. Board, 67 N. J. L. 117.

Por these reasons, and on the merits, the present writ will be dismissed.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRY R. DOUGLAS, PLAINTIFF IN ERROR.
    Submitted January 27, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff in error, Harry Kay.

    For the defendant in error, Poseph L. Smith and Joseph E. Conlon.

   Per Curiam.

Plaintiff in error was convicted under an indictment charging him with a violation of “An act to provide for the payment of wages in lawful money of the United States every two weeks.” Pamph. L. 1889, p. 69.

There are several grounds urged for reversal of this judgment of conviction, but we need déal with that only which urges that the proofs in the case were not sufficient under the statute to warrant the conviction.

This we find to be so.

Section 3 of the statute upon which the indictment was based provides: “The department of labor of this state shall be and hereby is authorized and directed to enforce the provisions of this act, and the commissioner of labor shall make complaint against any employer or employers who neglect to comply with the provisions of this act within two weeks after having been notified in writing by the commissioner of labor of the violation of this act * *

There was proof that the complaint was made by the commissioner of labor, but there was no proof of notice to the plaintiff in error as required by the statute.

This, by the express terms of the statute in question, was necessarjq and failure to give such notice and of proof upon the trial of an indictment under such statute is fatal.

The judgment under review is therefore reversed.


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    MARGARET THIEL AND RAFFAELE MAZZONI, PROSECUTORS, v. TOWN OF GUTTENBERG AND CURTIN BROS., INCORPORATED, RESPONDENTS.
    Submitted January 27, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.

      For the prosecutors, J. Emil Walscheid.

    For the respondents, Warren Dixon, Lichtenstein, Schwartz & Friedenberg (William Boorstein, on the brief).
   Per Curiam.

This matter comes before us upon a rule to show cause why a writ of certiorari should not issue at the suit of Margaret Thiel, a taxpayer, and Eaffaele Mazzoni, a bidder, to review an award of a contract for the improvement of seven streets in the town of Guttenberg, Hudson county..

In presenting the matter to the court it was agreed that if the court found that the writ should be allowed, then the cause should be considered and determined as if the writ had actually been allowed and the cause submitted thereunder.

We have no difficulty in reaching the conclusion that the matter is one in which a-writ should be allowed.

Considering the matter upon its merits as if upon a review under the writ, we conclude that the proceedings and award of contract brought up for review must be set aside.

A narration of the facts is unnecessary.

We reach our conclusion upon three grounds which are applicable to both prosecutors—

1. That under Pamph. L. 1917, p. 461, art. 37, If 24, which applies to all improvements, local and otherwise, the ordinance did not become operative until ten days after its final passage, and the award of the contract was made prior to the time such ordinance became effective.

2. That the plans and specifications upon which the bidding was invited and contract awarded were not properly adopted by the governing body.

3. That Pamph. L. 1918, p. 478, § 6, requires the making and creating of an appropriation for the cost of local improvements before any contract for such improvement can be entered into. In the matter under review there is no such action shown to have been taken.

The proceedings and award under review are therefore set aside.


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    BENNETT REALTY COMPANY ET AL., PROSECUTORS, v. MAYOR AND ALDERMEN OF JERSEY CITY ET AL., DEFENDANTS.
    Argued January 18, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutors, Warren Dixon.

    For the defendants, Thomas J. Brogan and Frank J. Reardon.

   Per Curiam.

This ease is controlled by our decision in Kelly v. Jersey City, number 296 of the present term, and for the reasons stated in the per curiam of this court in that case, the confirmation of-the assessment in the present case will be set aside.


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    TOWN OF KEARNY AND SAMUEL MARSHALL, PROSECUTORS, v. FRANK L. CLEARY, JUDGE HUDSON CIRCUIT COURT, ET AL., RESPONDENTS.
    Argued January 19, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.

      For the prosecutors, Robert Carey, John H. Cooper and Harry Lane.

    For the respondents, Thomas E. Fitzsimmons.

   Per Curiam.

This writ brings up for review an order of the judge of the Hudson Circuit Court, correcting assessments for local improvements in the town of Kearny upon appeal to that court under the Home Rule act (chapter 152 of the laws of 1911), .and particularly under the amendment of that act. Pamph. L. 1925, p. 233, § 42.

The order under review affects about one hundred lots out of a total of some three hundred and eighty lots assessed and in each instance reduces the amount of the assessment as made by the commissioners of assessment and confirmed by the council of the town of Kearny.

There is no question but that the proceedings upon assessment, confirmation and appeal to Circuit Court are valid and regular, nor is there any question but that certiorari is the proper procedure to review the order of the Circuit Court.

We are asked to reverse and set aside the order under review upon the ground that the weight and conclusiveness of the proof before the judge of the Circuit Court are not such .as to warrant the order made by him.

These proofs are before us and amount to over three hundred printed pages.

The question before the Circuit Court under section 42 ■of the amendment of the Home Rule act, supra, was: “Said court shall have power to prescribe rules to regulate the practice in taking and conduct of such appeals, and on the hearing thereof said court shall determine whether or not the ■assessment for benefits * * * appealed from upon * * * .any parcel of land and real estate is a just and fair assessment * * * and if not, shall make an order correcting the same, or if the assessment * * * is sustained shall •so order.”

Now, in reviewing these proofs we are called upon to say whether or not the Circuit Court judge erred in this eonelusion that its weight was satisfying that the assessments as made and confirmed were not just and fair. Our examination and consideration of these proofs do not satisfy us that the Circuit Court judge was in error in the conclusions that he- reached therefrom or that after such an extensive and exhaustive inquiry and investigation this court is warranted in setting aside the order under review upon these grounds. Hoboken v. Greenberg et al., 2 N. J. Mis. R. 505; affirmed, 101 N. J. L. 406.

It is admitted that appeals were not taken with respect to lot 2, block 95 B, and lot 44, block 95 B, both of which are therefore improperly, in the order under review and for that purpose the order under review must be sent back to the Circuit Court judge for correction.

It is also complained of that the order does not direct that a certified copy thereof be served upon the tax collector and clerk of the municipality as required by section 42 of the Home Rule act, supra. The order in quetsion is lacking in such respect but such omission is not fatal if the order is otherwise valid and justified. This also requires the sending back to the Circuit Court judge of the order for the purpose of amendment and correction in this particular.

For the purpose of correction and amendment in the manner herein indicated the order under review is sent back to the Circuit Court judge, and upon the merits it is affirmed and the writ, of certiorari is dismissed.


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    ERNEST C. RISTOW, PROSECUTOR, v. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, RESPONDENT.
    Argued January 18, 1928
    Decided May 3, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Martin P. Devlin.

    For the respondent, Edward L. Katzenbach and Richard Stockton, 3d.

   Per Curiam.

This writ brings before us for review the judgment of the civil service commission, affirming the dismissal of prosecutor, a tower man, in the state’s prison, at Trenton, for neglect of duty resulting in the escape of a prisoner.

We are asked to reverse and set aside this judgment for three reasons.

1. That from all the evidence there are no facts upon which to base a conclusion of neglect of duty.

2. That the duties of prosecutor were performed to the fullest extent of his ability and the escape was in no manner due to lack of reasonable care on his part.

3. That there is no evidence of neglect of duty. This is practically the same as reason number one.

Our examination of the proofs brings us to the conclusion that there was ample evidence to sustain the judgment under review.

Prosecutor was provided with a revolver and - a whistle in addition to a riot gun, which latter was kept in the tower.

He went into the tower to remove his overcoat. His revolver was in the pocket of this coat. Where his whistle was does not appear. Just at this time prosecutor saw Hammock, the convict, go across the prison yard, place a ladder against the wall, climb up and over the wall into the public highway and make his escape.

Either the riot gun was out of order or prosecutor was not skilled in handling it, because it is said to have jammed and refused to fire, although after the prisoner had gained the highway prosecutor succeeded in discharging the gun.

He made no attempt to use either his revolver or whistle.

Much of the argument is directed at the inefficiency of the riot gun and the lack of instruction given to prosecutor in the use thereof. There may be much substance in this, but there is nothing excusing him for not having in his immediate possession his revolver and whistle and making use thereof in the emergency caused by the jamming of the riot gun.

His very position required of him preparedness and promptness of action in an emergency. He displayed and exercised neither of these attributes.

As was said in Drill v. Bowden et al., 4 N. J. Mis. R. 326, “a person placed in a position of such responsibility occupies a status not unlike that of a sentry at guard in a military sense, charged with the duty of patrolling and protecting his post until relieved.”

The writ of certiorari is therefore dismissed.


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    HARRY FRANK, PROSECUTOR, v. MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Argued January 18, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Warren Dixon.

    For the respondents, Frank J. Reardon.

   Per Curiam.

This writ brings before us for review assessments for the improvement of Lexington avenue, between Mallory and Marcy avenues in Jersey City, and the order of the Hudson County Circuit Court confirming such assessments.

Several reasons are assigned why the assessments and proceedings under review should be set aside.

These reasons may be grouped and considered as follows:

1. That the return does not show that any notice was given to the property owners of the hearing held by the commissioners of assessment, and that the Circuit Court confirmed the assessments without proof of such notice having been made.

Under section 5, chapter 52 {Pamph. L. 1925), amending section 42 of the Home Rule act {Pamph. L. 1917), chapter 152, the presumption is that all necessary notices have been given. The burden is upon the prosecutor to overcome this presumption, and we do not find anjr showing in that direction.

2. The Circuit Court confirmed the assessments without first directing and causing notice to be given to property owners of a time and place for hearing objections to the assessments.

Here, too, the presumption is that such notice was given and the order confirming recites that notice was given. There are, however, proofs showing that there is no record of any such notice which we think is sufficient to overcome the presumption that notice was given.

Por this reason the order confirming must be set aside and back to the Hudson Circuit Court so that a proper hearing upon notice may be had.

3. The order of confirmation was filed in the tax collector’s office without first having been entered in the minutes of the Circuit Court as required by section 3, chapter 72 {Pamph. L. 1925).

This is a mere matter of procedure, and would be of no importance in the matter before us except for the fact that respondent urges that the prosecutor was in laches in securing the present writ, and should not have the benefit of it, because he did not apply for it within thirty days from the date of the order confirming.

It is difficult to understand how this can be so if he had no notice of the hearing before the court and the order of the court was not entered in the minutes of its clerk. The question of laches is therefore without merit.

The remaining reasons are directed at the inequitableness and unfairness of the assessments and are not of importance, inasmuch as the order of confirmation must be set aside and the matter sent back to the Hudson County Circuit Court for proper action thereon.

Such will be the order and judgment herein.


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    WILLIAM ZAKUTYNSKI, RESPONDENT, v. MARY LIVESE, APPELLANT.
    Submitted January 27, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Charles W. Broadhurst.

    For the appellee, J. S. T. Stranahan Ely.

   Per Curiam.

This was an action for labor and materials furnished and delivered for various prices of work performed by appellee for appellant.

The total demand was $608.26, of which all above $500 was waived. There was a counter-claim for $495 for defective work. The judgment is in favor of appellee for $364.95, being the amount of his claim of $500, less $135.05 under appellant’s counter-claim.

The cause was heard and determined by the judge of the District Court, sitting without a jury.

We are asked to reverse and set aside this judgment:

1. Because it was error to admit into evidence certain bills against the appellee marked Exhibit Pi to PI, for the reasons—

(a) They were hearsay.

(b) The prices charged were not proven to be reasonable.

(c) Because being in excess of $500, the transaction is in violation of the statute of frauds.

(d) They are irrelevant, immaterial and incompetent.

We think the admission of these bills was not error. The mere introduction of them with nothing more would have been error and would have transgressed the rule against hearsay and self-serving evidence, but here they were used much as a book or memorandum of account, the items testified to having been purchased and used in and about the work of appellant and that the prices charged were reasonable. This we think took them out of the prohibited rule. The statute of frauds was not violated, because, and if for no other reason, none of the bills amounted to the sum of $500.

2. Because there was no legal evidence to support the judgment. We find, however, that there was legal evidence supporting it.

3. Because certain evidence respecting the breaking of a sidewalk was hearsay and the court erred in refusing to strike it out.

No doubt this evidence was based upon hearsay, but it was all brought out by the attorney for the appellant upon cross-examination, and while, notwithstanding this, it very properly should have been stricken out by the trial judge, yet we do not find it to have been error prejudicial to appellant not to have done so.

4. Because the court erred in inspecting only one of the premises after electing to inspect the entire work.

This does not appear to be so. The trial judge spoke of it as “the job/’ referring to the garage on Jackson avenue, Rutherford. That was inspected, and furthermore there is nothing showing that the balance of the work was not inspected.

The judgment below is affirmed.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MICHAEL GIRAZIANO, PLAINTIFF IN ERROR.
    Submitted January 27, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the defendant in error, John Milton.

    For the plaintiff in error, Thomas F. Meaney.

   Per Curiam.

The defendant was convicted of the statutory crime of carnal abuse committed upon a young girl of fourteen. Of the somewhat numerous assignments and specifications of causes for reversal, only one is argued, namely, that the verdict is against the weight of evidence.

A recital of the circumstances would anwer no useful purpose. It is sufficient to say that we have examined and considered the evidence with care, and are clearly of opinion that the verdict was not against the weight of evidence.

The judgment will, accordingly, be affirmed.


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    J. EMERSON JACKSON, PROSECUTOR, v. MAYOR AND COMMON COUNCIL OF GLOUCESTER CITY, RESPONDENTS.
    Submitted January 27, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Frank F. Neutze.

    For the respondents, Charles W. Letzgus.

   Per Curiam.

The writ of certiorari brings up for review the proceedings of the mayor and common council of the city of Gloucester upon the adoption of an ordinance entitled “An ordinance creating and establishing clerk of the water department of the city of Gloucester, defining his duties and fixing fees therefor.”

At a meeting held December 1st, 1927, the ordinance, by reading of its title, was passed upon first reading, and at the same meeting, by a reading, section by section, was passed upon its second reading.

Notice was published of a hearing upon such ordinance to be had at a special meeting to be held December 29th, 1927, at eight p. m. This was also the date of an adjourned meeting of the governing body. The special meeting was called for seven p. m., although the hearing upon the ordinance was noticed for eight p. m. The special meeting was actually opened shortly before eight p. m., and the proceeding upon, hearing and final passage of the ordinance was concluded shortly after eight p. st.

The first reason .urged for setting aside the proceedings and ordinance is that in violation of the statute the ordinance was passed upon first and second readings prior to public hearing thereon.

In Haske v. Norwood, 99 N. J. L. 479, it was held that the reading of an ordinance and its passage upon first reading, as shown by the minutes of the governing body, was a consideration of such ordinance in violation of the statute (Pamph. L. 1918, p. 484), requiring the giving of notice of intention to consider, after introduction.

The statute in existence at the time of the proceedings in question was chapter 228 (Pamp'li. L. 1926), and so far as is applicable to the present question is in the following language :

(a) “Every ordinance after being introduced and having passed a first reading shall be published at least once in a newspaper published and circulating in the municipality, * * * together with a notice of the introduction thereof and the time and place when and where such ordinance will be further considered for final passage.”

(d) “At the time and place so stated in such publication, or at any time and place to which such meeting or the further consideration of such ordinance shall from time to time be adjourned, all persons interested shall be given an opportunity to be heard concerning such ordinance.”

(e) “At or after such hearing the governing body may proceed to give such ordinance a second reading or amend the same, and thereupon pass or reject such, ordinance with or without amendment * * *.”

It is apparent that the proceedings under review violated this statute.

The next reason is that a special meeting could not be called between the regular meting of December 1st, 1927, and the date of its adjournment December 29th, 1927, at eight T. M.

As a general, proposition we think this is without legal merit. The fact that this special meeting was called for seven p. m., and the hearing upon the ordinance in question was advertised for eight p. M., and the proceedings of such special meeting, being actually under way prior to eight p. M., might, upon a showing that such hearing was undertaken before eight p. m., have raised a serious question, fatal to the proceedings under review. In view of our findings under the previous reason, and of the fact that the proofs do not definitely show that any proceeding upon the ordinance in question was had before eight p. m., we feel that this question is not important.

The final reason urged is that the prosecutor has no standing to prosecute this writ, because the proofs do not show that he is a citizen or taxpayer of the city of Gloucester.

But we think this point is not well taken. Where, as here, the prosecutor seeks the review as a citizen and taxpayer, and his status as such has not been attacked by the proofs or other proceeding prior to the argument on final hearing, we think the weight of authority in this state is that his qualification as a prosecutor are beyond attack.

In Athletic Association v. New Brunswick, 55 N. J. L. 279, this court held that the objection to prosecutor’s standing not being presented by way of motion to vacate the allocatur or to dismiss the writ but upon the hearing of the cause, it was not necessary for the prosecutor to take affidavits to establish such right to prosecute as such standing must be presumed from the allocatur.

In Avon v. Neptune City, 57 N. J. L. 362, this court also held that the allowance of a certiorari is an adjudication that the prosecutor therein has a right to the writ which will maintain his standing in court until it is attacked by evidence. Citing Athletic Association v. New Brunswick, supra.

To the same effect is Biddle v. Riverton, 58 N. J. L. 289, and West Jersey Traction Co. v. Shivers, 58 Id. 124.

West Jersey Traction Co. v. Camden (Court of Errors and Appeals), 58 N. J. L. 362, would seem to be to the contrary, but in that case the prosecutor did not appear as a citizen and taxpayer, and its standing was attacked by the proofs taken under the writ.

Following this we have Tallon v. Hoboken, 59 N. J. L. 383, where this court followed West Jersey, &c., v. Camden, supra, but this again is a case in which the standing of the prosecutor seems to have been attacked and contested by the proofs.

In Smalley v. Raritan, 63 N. J. L. 201, this court said: "The differing opinions read in the cases of Avon v. Neptune, 28 Vr. 701, and West Jersey Traction Co. v. Camden, 29 Id. 362, have left involved in some doubt the question of the duty of the prosecutor of a certiorari to prove on final hearing his interest in the controversy he incites, but I understand it to be settled that whenever it does in fact appear that a prosecutor has no such interest the writ should be dismissed as to him. Tallon v. Hoboken, 31 Id. 212.”

In White v. Atlantic City, 62 N. J. L. 644, this court, through Chief Justice Gummere, spoke, we think, most definitely, as follows:

"The rule that the plaintiff in certiorari must prove his status is not universal, and those cases in which he prosecutes as a citizen and taxpayer are exceptions. In those cases his right to prosecute will be presumed to exist without proof in the absence of any call for evidence on the subject. West Jersey v. Camden, 29 Vr. 362.”

From thence forwarded the cases in this court and in the Court of Errors and Appeals appear to be in accord and harmony with this pronouncement.

Lantry v. Sage, 69 N. J. L. 560; Rehill v. East Newark, 73 Id. 221; Bergen Bus Line v. Hackensack, 4 N. J. Mis. R. 167, where the prosecutor was not a taxpayer, but one having a personal and property interest especially and immediately affected by the action complained of, and there was no attack upon such status, the rule in Tallon v. Hoboken, supra, and Montgomery v. Trenton, 36 N. J. L. 79, was applied.

But in Jordan v. Dumont, 6 N. J. Mis. R. 311, where' the prosecutor stood upon his rights to prosecute as a citizen and taxpayer, and it appeared that the writ was granted ex parte and no proofs taken thereunder, and objection was made to the standing of the prosecutor on the argument this court dismissed the writ. This was upon authority of West Jersey v. Camden, supra.

As before stated, however, we conclude that the weight of authority in this state is that in a situation such as that before us the status of the prosecutor is not open to attack in the manner here attempted.

The ordinance and proceedings under review will be set aside.