author: Bodine, J.

text:
    DANIEL B. FRAZIER COMPANY, A CORPORATION OF NEW JERSEY, PROSECUTOR, v. TOWNSHIP OF LONG BEACH, IN THE COUNTY OF OCEAN, ETC., DEFENDANTS.
    Decided March 28, 1932.

      Por the motion, Howard Ewart.

    Contra, Joseph H. Carr.

   Bodine, J.

Por all practical purposes all five cases involving the taxation of lands of the Daniel B. Prazier Company-in Long Beach township, Ocean county, New Jersey, stand on the same footing and are here dealt with.

The township of Long Beach filed five separate bills in equity to foreclose certain tax sale certificates acquired in December of 1929, covering lands of the prosecutor which had been sold pursuant to law for unpaid taxes. The answers in Chancery challenged the validity of the tax sales. Under chapter 202 (Pamph. L. 1925, p. 480), the answer will be struck unless the defendant obtains a writ of certiorari to review the validity of the tax sale within four months from the date of the filing of the answer in the Chancery proceeding. In order that the defendant should not be deprived of such rights as might exist by the mere passage of time, the application being tardy, and because it was apparent that by reason of the delay a rule to show cause might not be effective, the writ was allowed on ex parte affidavits.

The right of the municipality to move for the vacation of the allocatur is clear; also the right of the justice granting the same to vacate the same. Rule 110, of the Supreme Court (Winegrath v. Fairview, 77 N. J. L. 448; 72 Atl. Rep. 91), where Mr. Justice Minturn said: “The statute 5 and 6 (W. & M.) expressly established the practice of applying for the writ to the justice at chambers, and required him, if he allowed it, to endorse thereon his allowance, to which act the term allocatur was applied. It will be perceived, therefore, that the allocatur to the writ is, in effect, but a substitute for the earlier common law fiat, which, like all orders or rules made by a single justice of the king’s bench, was, until return made to the writ, within the power of the justice granting it to amend, modify or recall.”

No return was made to any of the writs and counsel for the defendant asked for further time for this purpose, if the allocatur was not vacated, as he had a right so to do under rule 170.

The application for the writ of certiorari was predicated upon the following grounds: (1) The tax sale was invalid; (2) the notice of the tax sale'was invalid as it contained no statement of the years the taxes became payable for which the sale was being made; (3) the amount of interest stated was excessive; (4) the description was insufficient; (5) the notice of sale was not posted in five of the most public places; (6) no list was made up pursuant to sections 17, 18, 23 and 26 of chapter 237 Pamph. L. 1918; (7) no record of the sale was made as required by law; (8) the sale was ineffective because the attempt was made to sell for 1927 taxes; (9) the certificate of sale contains no adequate description; (10) the certificate contains no averment that there were no other bidders.

The facts developed by the defendants’ depositions indicate that the Daniel B. Frazier Company is a persistent and continuous evader of tax obligations, and that the property in question is sand dunes held for speculative purposes. The assessment of the taxes in question was appealed to the county board of taxes and reductions secured.

The tax sale was held November 19th, 1928. Previous to the sale, the collector of taxes made up a list in which the lands subject to sale were described according to the description set forth in the 1927 duplicate, together with the name or names of the owners of said premises and the amount of all taxes and assessments which were a lien on July 1st, 1928. This list was subsequently turned over to the printer and a notice of sale made np. A copy of this notice of sale was thereafter used b3r the collector of tazes as his list and on it was noted the record of properties redeemed before or at the sale and the results of the sale itself. The notice of sale was published in the Tuckerton Beacon, a newspaper circulating in the township of Long Beach, once in each of the four calendar weeks preceding the sale. Copies of the notice of sale were posted in seven public places within the township on or before October 27th, 1928, and further copies of the notice of sale were mailed to each of the owners.

There were no other bidders than the township at the sales in question.

The tax sale certificates were made up' for each of the properties sold and delivered to the township of Long Beach subsequent to the sale and were recorded. Notations to the effect that sale was made to the township were made by the collector on the taz duplicates for 1927, and on the duplicates for 1928, 1929 and 1930.

The Tax Sale Revision act of 1918 provides as follows: “No sale of lands for municipal liens heretofore or hereafter made, shall be set aside * * * because of insufficient description in the original entry of the lien, or in the list made up for the sale, or because of a mistake in or omission in the name of the owner, or because of the failure of the clerk or any municipal officer to record the proceedings, relative to the sale, if it shall appear by other legal evidence that the land sold was in fact that assessed, and that the sale was made pursuant to law * * Comp. Stat. 1924, p. 3538, §§ 208-44a (56); Pamph. L. 1918, ch. 237, p. 898.

The proofs show that there was substantial compliance with the legislative requirements in that all acts necessary to be done by the collector of tazes were in fact done with the exception of actually making up a complete record of the proceedings. Such substantial compliance brings the proceedings within the terms of the statute and they were in all respects legal and binding on the prosecutor.

It was proved and not controverted that the township officers frequently requested the payment of the taxes in question and made known to the prosecutor the embarrassment incident to the delay in payment, because of the inability of the township to meet tax anticipation notes which it had negotiated and which were long overdue to the great detriment of banks affording accommodation to the township.

The delay in resorting to foreclosure proceedings was due to the repeated promises and assurances of the president of the Frazier company that the taxes would be paid and that accommodation had been secured from out of town banks to refinance the Frazier company and provide the money needed for settlement of the taxes.

The Frazier company owes about sixty-five or seventy per cent, of the townships’ unpaid taxes. The attempt to challenge the validity of the taxes, in the light of the admission of liability frequently made, seems without merit. Having recognized the validity of the obligation and, the manner in which the township’s right has been asserted it is now too late to assert a right to a discretionary writ to review that which the Frazier company has conceded imposed a valid and binding obligation upon it which it was more than willing to pay, if like Mr. MacCauber, it could have borrowed the money.

The fanciful irregularities suggested in the township proceedings for the collection and sale for taxes seem due to the circumstances that the township is not a large municipality with voluminous records kept by skilled clerks. The essential records were, however, kept. The precise form and style •of writing the records is immaterial under the statute above referred to, but at all events since there was an absolute recognition of the obligation and the rights arising from the •sale and repeated requests for further time to secure the funds to make the payments due, it would seem that the allocatur "was improvidently granted. The power to vacate is clear.

The allocatur is, therefore, vacated, with costs.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    HENRY M. REISS, PROSECUTOR, v. JEROME J. BRADY, DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY OF THE CITY OF BAYONNE, RESPONDENT.
    Submitted February 1, 1932
    Decided June 13, 1932.
    Before Justices Teenchabd and Donges.
    For the prosecutor, William Rubin.

    For the respondent, Alfred Brenner.

   Pee Cueiam.

This writ of certiorari brings up for review the attempted appointment of one Phiefer to the office of overseer of the poor on August 18th, 1931, also the official action taken by the director of public safety, wherein the prosecutor, Reiss, was discharged as overseer on August 17th, 1931, without any charges or hearing and without any reason being assigned.

We appear not to be concerned with the appointment of Phiefer, because he is deceased, and it seems to be agreed that the court should now proceed to determine the question of the validity of the action of the director of public safety in discharging the prosecutor.

We think that the action was illegal. He was appointed September 18th, 1928, “for the term fixed by law.” Section 27 of the act of 1924, page 270, fixes the term. It provides:

“27. Overseers shall be appointed, if qualified as provided in section 29, by the municipal governing body after the passage of this act, and shall hold office for five years;” &c.

By the terms of the statute we think he was entitled to hold until September 18th, 1933, nothing appearing to the contrary in the statute nor in the resolution appointing him (even if it were competent to cut down in the resolution the term fixed by law, which we do not think it was).

The respondent argues that the prosecutor was illegally appointed and cannot therefore question his dismissal. In support of this contention the claim is that in the resolution appointing the prosecutor it is not set forth that he was qualified as provided in section 29 of the act, and this, and only this is the respondent’s argument: “Under section 29 it is not mandatory that the examination be conducted by the civil service commission, that being only a means by which qualifications may be ascertained. It is mandatory, however, that the capability of the appointee to keep records and reports, and more particularly that he have knowledge of the laws concerning relief and maintenance should be determined by the governing body of the municipality. Until, therefore, such body is satisfied as to the competency of the appointee and his qualifications to perform the duties of his office, no overseer can be legally appointed.” We think that argument is unsound. Ho claim is made that the governing body was in fact not so satisfied nor that they did not in fact so determine. The sole contention of the respondent is that the record is silent upon that topic. It is significant that no complaint was ever made of the prosecutor in these respects. We think the implication in such circumstances is that in some fashion satisfactory to itself the board ascertained that its appointee was qualified.

We think that the action discharging the prosecutor without any charges or hearing cannot be justified, and such action will be set aside, but without costs.


author: Per Curiam.

text:
    COUNTY OF MIDDLESEX, PROSECUTOR, v. CIVIL SERVICE COMMISSION, RESPONDENT.
    Submitted February 1, 1932
    Decided June 13, 1932.
    Before Justices Trenchard and Donges.
    • Por the prosecutor, Edmund A. Hayes.

    Por the respondent, William A. Stevens, attorney-general, and Frederick F. Richardson.

   Per Curiam.

This writ- brings up for review a determination of the civil service commission ordering the reinstatement of Butlx Durham to a position formerly held by her in the office of the county treasurer.

It appears that her office was abolished by resolution of the board of freeholders on Pebruary 6th, 1930; that on November 24th, 1930, one Dennis J. Desmond was employed as a temporary employe in said office; that this employment lasted until January, 1931, when apparently it was' terminated, because, as Desmond testified, “the civil service refused to carry me on the paju’oll any more.” He further testified that he was “re-engaged in March, 1931, and still works in the- treasurer’s office.” • • ■

Mrs. Durham’s -contention at the hearing was that the effect of the actions complained of was that she was discharged, contrary to law, and that Desmond was really employed to do the work formerly done by her, and that the action of which she complains was not in the interest of economy or better departmental organization. The civil service eommission sustained this contention and accordingly ordered her reinstatement.

The testimony of county officials was in effect that around the first part of the year 1930 it became desirable to rearrange the handling of work in the treasurer’s office. Certain work formerly done in that office Avas transferred to other departments. Mrs. Durham’s position as senior clerk bookkeeper, which she had held for five years, was abolished as no longer necessary. Her description of her duties was:

“My first duty was to reconcile the bank balances, take care of road books, draw checks and work on the voucher record with Mr. Oram, who kept the cash book, and I helped .Mr. Diebort with the voucher record.”

She was not a stenographer, but claims she could have •done typing had she been required to, although not in practice during the last two years.

In November, 1930, the authorities concluded that more assistance was needed in the treasurer’s office, and Desmond received the appointment in preference to Mrs. Durham. The prosecutor justified his appointment instead of Mrs. Durham on the ground that Desmond was capable of operating a typewriter, it being stated that the policy was to employ only persons who were typists in the treasurer’s office.

The testimony seems to be that Desmond did the work formerly done by Mrs. Durham. Desmond’s description of his work was:

“Preparing trial balances, posting general ledger, voucher record, typing statements and checks and whatever other work that Mr. Hamley would assign to me.”

It will thus be seen that their duties were similar, except that Desmond prepared typewritten statements of some kind and wrote checks on the typewriter instead of by hand as Mrs. Durham had done.

It seems to us that the case resolves itself into one of fact as to whether or not the position held by Desmond was practically the same one formerly held by Mrs. Durham, and as to whether or not the action of the county was taken in good faith, in the interest of economy. This being so, we conclude that there was reasonable basis in the evidence for the finding of the civil service commission that the action of the county-officials was not justified in the circumstances disclosed. The case is not overwhelmingly conclusive, but there is enough in the evidence to furnish a legal basis for the action of the civil service commission. The work performed was almost identical. It seems to us a reasonable inference that Mrs. Durham was capable of typing so far as necessary in this position, especially when it appears that she had held the office for five years with no complaint, and had performed her duties very well.

. We find no reason in our judgment sufficient to support a reversal, and consequently the order of the civil service commission under review will be affirmed, but without costs to either party as against the other.


text:
    GEORGE PALM CONSTRUCTION COMPANY, PROSECUTOR, v. EDWARD BAHR, RESPONDENT.
    Submitted February 1, 1932
    Decided June 13, 1932.
    Before Justices Trenchard and Donges.
    For the prosecutor, Emil Neblo.

    For the respondent, Ealisch & Ealisch (Isador Ealisch, of counsel).
   Per Curiam.

This writ of certiorari brings up for review a determination and judgment of the deputy commissioner of the workmen’s compensation bureau in favor of the petitioner. The employer complains that the compensation bureau erred in •denying its motion for the dismissal of the petition.

The situation seems to have been this: On May 10th, 1929, the workman filed a petition for compensation, and on July 24th, 1929, the parties agreed to compromise on the question of the extent of damages, everything else material being conceded by the employer. The settlement was approved by the bureau and an order of discontinuance was made. The parties agreed to ninety-five weeks compensation, under which agreement the last payment was made on February 9th, 1931. The present petition was filed June 18th, 1931, in the nature of a petition for additional compensation because of increased disability.

The employer moved for a dismissal of the petition on the ground that it was not filed within the time required by law, .and that there was a complete and final determination of the matter between the parties. The commissioner denied the motion and the prosecutor sued out this writ.

The employer argues only that the petition has not been filed within the statutory period. "We think the answer to this contention, so far as this court is concerned, is to be found in the ease of Harris v. International Motor Co., 9 N. J. Mis. R. 208; 153 Atl. Rep. 97. In that case the compensation bureau dismissed the petition for increased compensation upon the ground that it was not filed within the period of one year after the last payment of compensation, within the meaning of the act.

The Supreme Court held “the statute gives the right to file an original petition within a year after payments stop. Herbert v. Hardware Co., 107 N. J. L. 24; 151 Atl. Rep. 502.” In the Harris ease, as in the case at bar, there was an agreement and payment thereunder made in fulfillment and discharge thereof, and the last payment due was actually made.

The judgment will be affirmed, with costs.


text:
    GRAND LODGE OF THE STATE OF NEW JERSEY, ORDER SONS OF ITALY IN AMERICA, PROSECUTOR, v. SIMON BLUM, COLLECTOR OF REVENUE OF THE TOWN OF NUTLEY, NEW JERSEY, DEFENDANT.
    Submitted February 1, 1932
    Decided June 13, 1932.
    Before Justices Trenchard and Donges.
    For the prosecutor, T. Mancusi-TJngaro (Herbert A. Kuvin, of counsel).
    No brief or other argument was submitted for the defendant-
   Per Curiam.

This writ of certiorari brings up for review an assessment: of taxes for the years 1925, 1926, 1927, 1928, 1929 against-block No. 522, lot No. 1, property of the prosecutor, and also a tax sale of the property so assessed for the year 1925..

The uncontroverted proofs show that (1) on July 29th,. 1920, the prosecutor was duly incorporated in accordance with the law of the State of New Jersey as an association for non-pecuniary benefit, and among its objects was to establish, an orphan asylum for children of its members; (2) that it erected and completed prior to December 19th,' 1924, the’ asylum building on the land in question owned by it not exceeding five acres; (3) that in December, 1924, orphans were-admitted to the asylum; (4) that the land and building and: the effects therein were used for no other purpose than an orphanage; (5) that the lands and buildings and the orphans are maintained from revenue derived from yearly assessments. of the members of the prosecutor and by donations from such members; (6) that no revenue is obtained from the lands and buildings or the orphans; (7) that during the years 1924 to 1929, both included, the lands and buildings were used for no other purpose than an orphanage; (8) that during the year 1924 the property was assessed by the town, but upon application duly made on the ground of exemption, the assessment was remitted and canceled; (9) that the prosecutor had no information of any further assessment until July, 1931, when it learned that the property was sold for nonpayment of taxes for the year 1925, and also learned of the assessments for the years 1926 to 1929, both inclusive; (10) that the property of the prosecutor was sold for taxes for the year 1925 to the town of ISTutley; that no other interests are involved.

We think it plain that under section 208-66D (203) (Cum. Supp. Comp. Stat., p. 3483), the several assessments as well as the tax sale should be set aside, but without costs, and it is so ordered.


text:
    STATE BOARD OF REGISTRATION AND EXAMINATION IN DENTISTRY, PLAINTIFF-PROSECUTOR IN CERTIORARI, v. ARSHAG M. KARAS, DEFENDANT-RESPONDENT IN CERTIORARI.
    Submitted February 1, 1932
    Decided June 16, 1932.
    Before Justices Teenchabd and Donges.

      For the prosecutor in certiorari, William A. Stevens, attorney-general, and Robert Peacock, assistant attorney-general.
    For the respondent in certiorari, Frederick 0. Vonhof.

   Per Curiam.

The defendant was complained against by the state board of registration and examination in dentistry of a violation of section 11 of the Dental act (chapter 266, laws of 1927), in that he practiced dentistry within the meaning of section 12 of the act without a license. There was a trial before the First District Court of the city of Newark, and the trial judge dismissed the complaint.

The state board thereupon sued out this writ of certiorari.

The uncontradicted evidence showed that the defendant upon several occasions took impressions of the gums of the witness, made impressions in wax or rubber compound, and also in plaster paris; made dentures and fitted the teeth in the mouth of the witness. He held himself out as a mechanical dentist. The witness paid him all told $60. It was proved and uncontradieted that he had no license.

There was no denial of these essential matters. On the contrary, the defendant himself testified that the work which he did was of a character which should have been done by a dentist.

We think that the dismissal of the complaint was erroneous, and that the statutory essentials were proved by uncontradicted evidence. The finding of the trial judge that the work was “procured by the pleading of the witness” did not justify the dismissal.

On the record presented the dismissal of the complaint was unjustified, and it will be set aside and the case remanded for retrial, costs to abide the event.


text:
    UNITED CIGAR STORES COMPANY OF AMERICA, PROSECUTOR, v. STATE TAX COMMISSIONER AND STATE BOARD OF TAX APPEALS, DEFENDANTS.
    Argued May 4, 1932
    Decided June 15, 1932.
    Before Justices Pabiceb, Campbell and Lloyd.
    For the prosecutor, Waldron M. Ward.

    For the defendants, John J. Solan (William A. Stevens, attorney-general, on the brief).
   Pee Cueiam.

This is an application for a certiorari to review the annual franchise tax for 1931 as assessed against the prosecutor and affirmed by the state board of tax appeals: a prior application to a single justice having been denied by him. No facts are in dispute, and the controversy in law relates to the proper construction of the amendment of 1920 (Pamph. L., p. 339) to the Corporation Tax act, as further amended in 1921 (Pamph. L., p. 975), so far as this legislation applies to corporations having both par value and no par value stock.

At the argument it was agreed by counsel in open court that if this court should consider that a writ should be allowed, the court might take up and decide the case as if such writ had been allowed and returned, and as though the case had been argued on final hearing.

We are clear that the decision of the state board was right, and think that the full and careful opinion of President Weaver in the similar case of North American Co. v. State Tax Commissioner, unofficially reported in 55 N. J. L. J. 86 (March, 1932), covers the ground thoroughly and satisfactorily. The state board relied on that opinion in deciding the present ease (55 N. J. L. J. 89), and we deem it needless to add anything here at this time.

In view of this result, allocatur might well be denied and the litigation thereby be stopped at this point; but as the matter is one of importance, we think the better course is to permit of an appeal to the court of last resort. To that end a writ will be allowed and returned pursuant to the stipulation of counsel, and the judgment of the state board will be affirmed, with costs.


text:
    PERSONAL FINANCE AND THRIFT CORPORATION, RESPONDENT, v. LASSER MOTOR CORPORATION, IMPLEADED, ETC., APPELLANT.
    Argued January 21, 1932
    Decided May 9, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Eor the appellant, Herbert B. Baer.

    Eor the respondent, Milton M. Unger (Leonard J. Bmmerglide, on the brief).
   Per Curiam.

In an action tried in the Essex Circuit Court before Judge Smith without a jury, he awarded judgment in favor of the plaintiff-respondent and against the defendant-appellant in the sum of $4,500 and costs. That amount was concededly the balance unpaid on a so-called “collateral note” for $5,000 dated January 13th, 1931, held by plaintiff, and on which it had actually advanced in cash $4,727.50, the difference being discount charges and some petty items not now drawn into question. The note purports to have been executed by defendant corporation as a joint and several maker, and the vital question in the case is whether the corporation is bound by the .signature affixed in its name by Jacob Lasser, who was then its president: or to put it in another way, whether Jacob was invested with a general agency by a course of dealings: or "was held out as agent by the corporation so that it is estopped to deny his agency: or was formally authorized to execute the note in its name. If any one of these questions was resolved against the defendant by the trial judge on legal evidence before him, he committed no error in refusing to non-.suit: or in directing a judgment for plaintiff. There are ten grounds of appeal, but these are the only ones that are .argued. A third point made in the brief is that “the trial court erred in failing to recognize the corporate entity Lasser Motor Corporation,” but as no particular ruling seems to be attacked under this point we assume it to be an argument in support of the other two.

The note bears the signatures of the following as joint and several makers: 1. Jacob Lasser. 2. (Blank for his wife who ■did not sign.) 3. Sydney Lasser. 4. Sarah, a widow. 5. '“Lasser Motor Corporation, Jac. Lasser, Pres.” This last is the disputed signature. There wms a default judgment .against the three individual defendants, who of course are not parties to this appeal.

It is fairly clear that the Lasser Motor Corporation wras one of many “paper” corporations organized largely for ulterior reasons familiar to most lawyers and business men. That fact, wdiich the court was entitled to find and doubtless did find, is of course not controlling but is a circumstance bearing on the question of agency. Jacob Lasser was the president and in effect sole owner; he had organized it to •continue an automobile business previously conducted by him. His brother, Harold, a young lawyer, was brought in as a director and secretary-treasurer, and William S. Myers, .another young lawyer, as the third director and for a time secretary. Myers did not testify: bnt Harold Lasser testified that ordinarily there were no formal meetings, that Jacob ran the business alone and attended to all matters connected therewith, sometimes consulting Harold informally and obtaining his oral consent to proposed action; that Myers had no financial interest in the corporation; that Jacob-told him of the proposed loan on this note and that he assented. Jacob testified that he himself signed checks, borrowed money and made contracts for the company, was in charge, and “was the whole company.” The fourfold written application for the loan, which is voluminous and on blanks issued by the-plaintiff, shows one application signed by Jacob Lasser, trade-name Lasser Motor Corporation—incorporated—president and sole owner of the business; another by Sydney Lasser as “comaker;” a third by Sarah, widow, mother of Jacob, as “comaker,” and a “confidential statement” of Lasser Motor Corporation showing assets and liabilities, and signed by Jacob-as president. The plaintiff’s checks for the loan are in evidence and the endorsements show that though they were drawn to the order of Jacob, they were endorsed by him and banked by the defendant corporation. It is conceded that the proceeds of these checks went into the company treasury, but' the claim is that Jacob owed that money to the corporation' and that he borrowed it of the plaintiff and applied the proceeds of the loan to his debit balance on the defendant company’s books; but Jacob denied this and claimed that the'' ledger page bearing his name and showing a debit balance-was spurious, and that he owed nothing to the company at the time. This of course raised a question of fact for the-trial judge, whose finding thereon is conclusive on us. If lie-believed Jacob, the result would be that the proceeds of the-loan went to the appellant, and that, apart from the fact that it was bound by law to repay the loan, is an additional circumstance pointing to authority in Jacob to sign the note.

Much of the argument resolved about the admitted alteration of a paper purporting to be a certified copy of a resolution of the appellant company authorizing “the president or vice-president and the treasurer, secretary or assistant-secretary” to “endorse” a note for $5,000 given by Lasser Motor Corporation to (plaintiff) “for the benefit of the above named corporation.” The testimony indicates that Murdock, manager of plaintiff, construed this as calling for signature both by the president and the treasurer or secretary, and required the “and” which we have italicized to be changed to “or,” which was done by Lasser in his presence. We make little or nothing of this paper. It was mandacious, as no such resolution had ever been passed, and no meeting held as therein recited. Prom the appearance of the facsimile before us it seems likely that the typewritten or mimeographed form was furnished by the plaintiff and the blanks filled in with the ■desired words and figures to meet the situation. But all this is beside the mark, as the judge put his decision on two main grounds, one of which was that the directors by a course of dealing held out Jacob as an agent of the company to con■duct its financial transactions including the borrowing of money and execution of notes.

The defense for the company was interposed, not by the .Lassers, but by a man named Kosengarten, who had bought into the defendant company after the note had been made, .and for whom it was claimed that he had been defrauded by a financial statement used as a basis for his purchase and which made no mention of the plaintiff’s claim on the note. But here, again, there is a contradiction on the facts. The statement does show among the liabilities an item, “Sarah Lasser loan, $4,500,” which Jacob testified was the same as the claim of the plaintiff, she having “endorsed” the note; and it is a corroborating circumstance that the books of the ■company show a payment of the first monthly installment of $500 to the plaintiff.

The conclusion of the whole matter seems to be that there was evidence to support a finding of fact by the trial judge that Jacob had been authorized by a course of practice to act as general financial agent of the defendant, and that the judge so found. Such finding, as we have said, is conclusive on us; and the judgment is accordingly affirmed.


text:
    ALOYSIUS MESGLESKI, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Decided May 10, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the rule, Henry H. Fryling and Harold F. Dorgeval.

      Contra, Francis A. Gordon.

   Per Curiam.

The plaintiff brought the present suit to recover compensation for personal injuries received by him in the collision of an automobile truck, which he owned and was driving, with a trolley car of the defendant company. He also asked compensation for loss of earnings resulting from his injuries, for the medical expenses incurred by him by reason thereof and for damage to his truck. The trial resulted in a verdict in his favor, the jury awarding him $11,000 damages.

The first ground upon which we are asked to set aside the verdict of the plaintiff is that the finding of the jury is against the clear weight of the evidence on the issue of negligence on the part of the defendant’s motorman, as well as on the issue of contributory negligence on the part of the plaintiff. According to the testimony submitted by the plaintiff and his witnesses, the plaintiff, who was engaged in the ice and wood business, on the morning of June 2d, 1928, drove his truck to the plant of the Consumers’ Ice Company, which was located on the northerly side of East Grand street, in the city of Elizabeth. He went there for the purpose of obtaining a load of ice, passed through the driveway of the company and up to the loading platform, and received and placed in his truck thirty blocks of artificial ice, weighing about three hundred pounds each. He then turned and drove out to the street. On each side of this private driveway buildings had been erected, which abutted on the sidewalk and prevented a view of East Grand street in either direction until the plaintiff passed the line of these buildings. When he had done this he looked in both directions, and saw the trolley car of the defendant approaching the ice company’s plant and about two hundred and fifty yards away. Assuming that he had plenty of time to do so, he drove across the sidewalk, which was approximately twelve feet wide, and then onto the roadway. The track upon which the trolley car was approaching was about ten and one-half feet from the curb line. After having crossed the sidewalk, he looked again, and saw the trolley car, which was then about one hundred feet away. At that time the front of his truck was practically on the first rail of the track. He assumed that he had plenty of time to cross the track and that the motorman would recognize his right to do so, and proceeded over toward the other side of the track for the purpose of turning to the left and proceeding down East Grand street. When most of the truck had crossed the track, the trolley car smashed into the rear end of it, and as a result of the collision he was quite seriously hurt and his truck damaged. The testimony on the part of the defendant was that just before the collision the trolley car was being driven at a reasonable rate of speed, not more than twelve to fifteen miles an hour; that as he approached the plant of the Consumers’ Ice Company, the motorman saw the plaintiff’s truck coming out of the driveway, and immediately sounded his bell and applied the brakes .and pulled on his emergency; that, notwithstanding this, the truck driver made no attempt to stop, and the collision •occurred as the result of the truck driver’s negligence in proceeding across the track.

Whether the accident occurred under the conditions testified to by the plaintiff’s witnesses or under the conditions testified to by the witnesses called on the part of the defendant was a matter to be settled by the jury. Evidently the jury believed the testimony of the plaintiff’s witnesses, And we cannot say that it was not justified in doing so. Accepting that testimony as an accurate description of the conditions under which the accident happened, the jury was justified in finding that the collision occurred solely through the negligence of the driver of the trolley car and was not contributed to by any negligence on the part of the plaintiff. We conclude that the first point urged as a ground for setting aside the verdict is without merit.

The second ground urged on behalf of the defendant for setting aside the verdict is that the trial court erroneously refused the defendant’s requests to withdraw from the jury •certain elements of damage, and in doing so permitted the .jury to find and the plaintiff to recover a double measure of •damages for the same item of loss. Our examination of the testimony in the case bearing upon the question of the compensation that the plaintiff was entitled to recover satisfies ■us that this contention is without merit, and that the jury -was not permitted to find a double measure of damages for -the same item of loss, as counsel, without justification, as we ■think, assert.

The next contention on the part of the defendant is that •the trial judge erroneously refused to permit the attorney •for the defendant to ask the plaintiff on his cross-examination whether or not he filed an income tax return. We find no error in this refusal. Whether or not the plaintiff filed •an income tax return had no relevancy on the question of his right to recover, nor, as we see it, on the question of the amount of the loss sustained by him in the carrying on of .bis business as a result of the accident.

The next point is that the trial judge erred in admitting testimony offered by the plaintiff to prove the cost of repair to his truck, the contention being that the witness called to so testify was not properly qualified. The testimony of the witness satisfies us that he was thoroughly qualified to testify to this fact.

Next, it is argued that the trial judge erred in charging the jury in effect that, if it was satisfied from the proofs that the negligence of the driver of the defendant’s trolley car ■caused the accident, it should render a verdict in favor of the plaintiff. The argument in support of this contention is that the instruction allowed the jury to find in favor of the plaintiff, notwithstanding the fact that it was satisfied that he was guilty of contributory negligence. In arguing this point, counsel for the defendant apparently overlooked the fact that, after the attention of the trial judge had been called to this instruction and before the jury retired, he corrected it and told the jury that, no matter whether or not the negligence of the driver of the ear was a producing cause of the collision, the plaintiff could not recover for this reason unless it also appeared that he did not contribute to the collision by his own negligence. This correction nullifies the contention ■of the defendant on this point.

It is next argued as a ground for setting aside the verdict that the trial judge erred in refusing to permit the attorney of the defendant to ask a witness called by him certain questions with relation to a conversation which the witness had with a witness produced on the part of the plaintiff. There was no suggestion that the purpose of the inquiry was to show that the plaintiff’s witness had previously made a statement which contradicted the testimony given by him on the witness stand, and for this reason the court properly excluded it, for conversations between third parties not in the presence of the plaintiff are not competent except for the purpose indicated.

Lastly, it is argued that the verdict of $11,000 is excessive. Our examination of the proofs submitted on the question of damages leads us to the conclusion that this contention is well founded and that the injuries received by the plaintiff were not in fact anything like as severe as he asserted, although they were quite serious in character.

If the plaintiff will consent to have the verdict reduced to $7,000, he may enter judgment for that amount. Otherwise the rule to show cause will be made absolute.


author: Lawrence, C. C. J.

text:
    EDITH COOPER, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF FLOYD COOPER, DECEASED, AND AS ADMINISTRATRIX OF THE ESTATE OF FLOYD COOPER, DECEASED, PLAINTIFF, v. THE ESTATE OF JOHN DeMAIO AND ANNUNZIATA DeMAIO, ADMINISTRATRIX OF THE ESTATE OF JOHN DeMAIO, DECEASED, DEFENDANT.
    Decided May 11, 1932.
    For the rule, David Cohn.

    Contra, Ward McGinnis.

   Lawrence, C. C. J.

This suit arose out of a collision between an automobile owned and driven by John DeMaio and another owned and operated by John Stone, at the intersection of Two Bridges road and state highway FFo. 6, near Belvidere, in Warren county. Floyd Cooper was a passenger in the DeMaio car. Both he and DeMaio received injuries of which they later died. Cooper lived for some period of time, and the action was therefore brought not only under the Death act but under the statute giving an executor or administrator the right to institute suit for compensation, in behalf of the estate, for the pain and suffering attending an injury between the time of the accident which occasioned it and the death of the person so injured. The gravamen of the charge in the complaint was that the injury and subsequent death of Cooper was due to the negligent manner in which DeMaio drove his car at the time.

At the trial, the witnesses produced were Mr. and Mrs. Stone, a young girl who was in the DeMaio ear and a police officer who investigated the accident. His testimony, while describing the broken condition of the DeMaio car, tended to corroborate the statement of Mr. and Mrs. Stone that the impact with their car had been at the right rear, indicating that it had been well over the highway when the collision occurred. The evidence of the girl was without any real probative value. This left the narrative of Mr. and Mrs. Stone as to how the accident happened practically uncontradicted, and, if believed, led to the fair inference of fact that it was either the sole or concurring negligence of DeMaio that caused it. Notwithstanding, the jury returned a verdict of no cause. Since there was nothing in the case to discredit the testimony of Mr. and Mrs. Stone at least as to the concurring negligence of DeMaio, it is apparent that the verdict was contrary to the weight of the evidence in this respect. To have found that DeMaio was entirely free from fault, indicated some degree of partiality on the part of the jury. The rule to show cause will be made absolute and a new trial granted.


author: Ackerson, S. C. C.

text:
    MORRIS PEARLMAN ET AL., PLAINTIFFS, v. FRANK TRUPPO, DEFENDANT.
    Decided May 12, 1932.
    For the plaintiffs, Morris F. Pearlman.

    For the defendant, Carey •& Lane.

   Ackerson, S. C. C.

This is the second time this matter has been before me upon motion. The first motion was for leave to amend defendant’s answer by setting up res adjudicata as a fifth separate defense. This motion was denied for reasons set forth in my memorandum now reported in 10 N. J. Mis. R. 477; 159 Atl. Rep. 623.

After said memorandum had been filed it was stipulated by the attorneys for the respective parties that the defendant might have leave to file the proposed amendment to his answer, upon the understanding that the court would then mould its memorandum as though upon a motion to strike out said fifth separate defense on the ground that the same is not res adjudicata and a bar to the present action, in order that an appeal might eventually be taken from the court’s action. In order to have the matter disposed of on its merits the parties have submitted a transcript of the proceedings in the former action which form the basis for this defense.

In this situation, therefore, I adopt my memorandum already filed in this matter, and for the reasons therein expressed, I hold that the motion to strike out said fifth separate defense should be granted, and an order may be presented in accordance with the conclusion thus reached.


text:
    EDWIN BURHORN COMPANY, RESPONDENT, v. MINER D. WOODLING HEATING AND VENTILATING COMPANY, APPELLANT.
    Decided May 13, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the appellant, Saul Nemser.

    Por the respondent, Clarence D. Meyer.

   Per Curiam.

The appellant, Miner D. Woodling, had a contract with the Loew’s Theatre and Eealty Corporation for the installation by him of a heating, ventilating and refrigerating equipment for its theatre located at Providence, Ehode Island. He subcontracted with the plaintiff corporation for the installation upon the roof of the building of certain water cooling towers, for the sum of $5,000, for the purpose of cooling the air in the theatre building. The present suit was brought to recover the contract price, no part of which has been paid.

The plaintiff in its complaint averred that it had performed, its contract, had installed upon the roof of the theatre building the water cooling towers which it had contracted to supply, and that those towers complied with the requirements of the specifications contained in the contract entered into between it and the defendant. The latter, in his answer, denied performance by the plaintiff of the provisions of the contract, and asserted that for this reason he was under no obligation to pay the price fixed in the contract for the installation of the water towers or any part thereof. The trial resulted in a verdict in favor of the plaintiff for the full amount of its claim, and we are asked to reverse the judgment entered upon that verdict for the reasons hereafter referred to.

The first ground for reversal argued before us relates to the admission in evidence of letters offered by the plaintiff. The claim is that those letters were inadmissible because they tended to alter or vary the terms of the written contract. In our opinion, the letters do not have that effect. The contract required that the plaintiff should submit to the Loew company detailed working drawings of the cooling equipment for the approval of that company before proceeding with the installation of the water towers. In accordance with this provision, the plaintiff had the detailed working drawings prepared and submitted them to the Loew corporation, and that corporation thereupon notified the plaintiff, in one of the letters referred to, that the matter of the approval of the plans had been delegated by it to the architects who had charge of the erection of the theatre building and that the plans should be submitted by the plaintiff to those architects. Thereupon the plans were so submitted, and the architects, in another of the letters referred to, instructed the plaintiff that the approval of the plans was entirely up to the defendant Woodling and to submit them to him. In accordance with this instruction, this was done by the plaintiff, and' the plans were approved by the defendant. The effect of these letters, as we see it, is to show that the architects were the agents of the representatives of the Loew company in passing upon the accuracy of the plans, and that the architects, presumably acting within their authority, transferred that agency to Woodling, and that Woodling’s act, therefore, was the act of the Loew corporation. Holding this view as to the effect of the letters, it seems to us that they were properly admitted.

The next contention on the part of the defendant is that the judgment should be reversed because the court erroneously denied defendant’s motion for a nonsuit. This motion was based -upon the ground that the plaintiff had not established, under the evidence offered by it, the fact that it had performed the terms of its contract with the defendants. The basis of the motion, we think, is without substance. The proofs of the plaintiff, accepted as facts, with the necessary inferences to be drawn from them, raised a jury question as to whether or not there had been such a performance by the plaintiff as entitled it to the payment of the contract price for such performance. The refusal of the motion to nonsuit was, therefore, in our opinion, proper.

It is also argued that the court erroneously refused to direct a verdict in favor of the defendant. The grounds upon which this motion was rested were practically the same as those advanced as reasons for granting a nonsuit, and it was properly denied for the reason already expressed by us in the discussion of the earlier motion.

Other grounds for reversal are directed at alleged errors in the charge to the jury and in the refusal to charge certain requests submitted by the defendant. One of the alleged errors consisted in a statement by the court of its recollection of the testimony of one of the witnesses produced by the defendant, the contention being that the statement was inaccurate. The trial judge, however, instructed the jury that it must not depend upon his recollection of this testimony and assume that it was accurate, but should determine for itself what was the testimony of the witness with relation to the matter upon which the court was commenting. This instruction wiped out the alleged error in the charge, if in fact, it existed. Our examination of the case leads us to the conclusion that the other alleged errors in the charge to the jury are, each of them, without legal merit. The requests submitted by the defendant were charged in effect, so far as they were material and proper, and, consequently, there is no merit in the contention that the court erroneously refused to charge them.

Lastly, it is argued that the court erroneously refused to permit counsel for the defendant to take exceptions to the charge of the court after the jury had retired. At the close of the charge, and before the jury had retired, the court inquired whether either of the counsel desired to take any exceptions thereto, and counsel for the defendant then took certain exceptions, which were -allowed. After he had done so, the jury left the court room, and he then applied to take further exceptions. Counsel admitted that the court had the legal right to call for exceptions to the charge while the jury still was present in the court room, and properly so; for whether the court shall or shall not take such action is a matter of judicial discretion. Having exercised that right, the question as to whether or not the court should permit further exceptions to be taken after the jury had retired for consideration of the case also was a matter wholly within its discretion, and its refusal to grant such permission did not constitute legal error.

These are the only matters argued as a basis for the reversal of the judgment under review, and our conclusion is that the judgment should be affirmed.


text:
    HERMAN M. DIAMOND, PLAINTIFF-PROSECUTOR, v. GUSTAV BACH, COUNTY CLERK, ET AL., DEFENDANTS-RESPONDENTS.
    Argued June 18, 1931
    Decided May 16, 1932.
    Before Justices Trenchard and Donges.
    Tor the prosecutor, John Warren.

    Tor the respondents, Herbert Ciarle Gilson.

   Per Curiam.

Application is made for a writ of certiorari to review a judgment entered in the District Court of the Tirst Judicial District of Hudson County, which judgment was subsequently docketed in the Hudson County Circuit Court.

A writ of certiorari was granted applicant on September 1st, 19.22, which was in 1926 dismissed for lack of prosecution.

In view of the circumstances of the case, as presented to us, we are constrained to deny the application for a writ of certiorari.

The application is denied, with costs.


author: Pee Ctjeiam.

text:
    THOMAS ROACH, PROSECUTOR, v. YELLOW CAB, INCORPORATED, DEFENDANT.
    Submitted May 15, 1931
    Decided May 16, 1932.
    Before Justices Teerchabd and Dorges.
    For the prosecutor, David Rosleein.

    For the defendant, John A. Bernhard.

   Pee Ctjeiam.

The prosecutor of this writ of certiorari was the petitioner in a proceeding before the workmen’s compensation bureau, where he was awarded compensation. Appeal was taken to the Essex County Court of Common Pleas, which found that petitioner was not entitled to compensation. Thereupon this writ of certiorari was allowed, and by its terms it requires the judge of the Court of Common Pleas to certify a certain “decision” of said court. The return does not include any proceedings following the opinion or determination of the Common Pleas judge. No judgment was entered as required by the statute. Section 19, Pamph. L. 1921, p. 734 (2 Cum. Supp. Comp. Stat., p. 3894). Such finding cannot be reviewed upon certiorari. Newark v. Fordyce, 88 N. J. L. 440; 97 Atl. Rep. 67; Clay v. Civil Service Commission, 89 N. J. L. 194; 98 Atl. Rep. 312.

The writ will be dismissed, with costs.


text:
    GEORGE DANCO, PETITIONER-DEFENDANT, v. RICE & FISHMAN, PROSECUTOR-RESPONDENT.
    Argued May 3, 1932
    Decided May 16, 1932.
    Before Justices Paekee, Campbell and Lloyd.
    Por the prosecutor, Michael N. Ghanalis.

    Por the defendant, Frederick Siman.

   Pee Cueiam.

The claim is based on hernia, as to which the statute is quite strict, requiring “conclusive” proof of five particulars-therein specified. Pamph. L. 1923, p. 101 (at p. 104(x). It is claimed that proof was lacking on several of these particulars. We have read the testimony and find the proof was ample and direct as to all of them, except on the point that “the descent of the hernia immediately followed the cause.” This, however, is clearly inferable from the facts that the petitioner had been doing heavy work for years; that while lifting a five hundred pound barrel with two others he was seized with severe pain in the region of the groin and had to stop work and sit down: that after twenty minutes he reached a car a block away, went home and to bed, to the hospital and an operation the next day, and that the examination before the operation disclosed a marked double hernia, manifest on the most casual examination. The case seems to be on all fours with Yannone v. Hind Steel Wire Works, 9 N. J. Mis. R. 501; 154 Atl.. Rep. 409. We see no good reason for any review on the facts and no point of law is suggested. Allocatur was denied by Mr. Justice Case, and we think properly. It will accordingly be denied here.


text:
    JAMES HOROWITZ, RELATOR, v. CIVIL SERVICE COMMISSION ET AL., RESPONDENTS.
    Submitted October 16, 1931
    Decided May 16, 1932.
    Before Justices Trenchabd and Donges.
    For the relator, Merritt Lane.

    For the respondents, Durand, Ivins & Carton.

   Per Curiam.

This case is before us on a rule to show cause why a mandamus should not issue commanding the civil service commission to certify the applicant as entitled to compensation as clerk of the District Court of the Second Judicial District of Monmouth County.

Our examination of the record before us results in the conclusion that sufficient appears to require the award of an alternative writ, but not a peremptory writ. The legal right is not clear, and the facts which may well be pertinent are not conclusively settled. In such case the court will ordinarily award an alternative writ to the end that an issue may be made, and the facts ascertained, and thereby an opportunity given for review on error. Hugg v. Camden, 39 N. J. L. 620; Schnitzler v. New York Transportation Co., 76 Id. 171; 68 Atl. Rep. 905.

Accordingly an alternative writ will be awarded.


text:
    CUNARD MERCANTILE CORPORATION, PLAINTIFF-APPELLANT, v. INTERNATIONAL DYE AND PRINT WORKS, DEFENDANT-RESPONDENT.
    Submitted January 29, 1932
    Decided May 16, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the plaintiff-appellant, Alex Moshowitz.

   Per Curiam.

This is an appeal from a judgment entered on a jury verdict in favor of the defendant and against the plaintiff in the Passaic County Circuit Court. The grounds of appeal are as follows: (1) the judgment is contrary to the evidence; (2)

the judgment is contrary to law; (3) the verdict is contrary to the charge of the court; (4) the verdict was rendered in favor of the defendant as a result of the jury’s mistake, passion or prejudice. There appear to have been no objections noted and no exceptions taken. Wo complaint is made to us of any errors alleged to have been committed by the court during the trial of the cause. Joseph M. Byrne Co. v. Snead & Co., 98 N. J. L. 256; 118 Atl. Rep. 841. No adequate explanation is given as to how the judgment is contrary to law. The remaining questions are properly the subject of a rule to show cause and are not the subject of exceptions. Christy v. New York Central and Hudson River Railroad Co., 90 N. J. L. 540; 101 Atl. Rep. 372.

Judgment below will be affirmed.


text:
    JULIA M. FRASIER, PETITIONER-DEFENDANT IN CERTIORARI, v. L. BAMBERGER & COMPANY, RESPONDENT-PROSECUTOR IN CERTIORARI.
    Submitted October 17, 1931
    Decided May 23, 1932.
    Before Justices Teen chard and Donges.
    For the petitioner-defendant in certiorari, Biker & Biker (Irving Biker, of counsel).
    For the respondent-prosecutor in certiorari, Joseph G. Paul,

   Per Curiam.

Pursuant to chapter 388, laws of 1931, this writ brought up an award of compensation to the petitioner by the workmen’s compensation bureau.

The petitioner was employed in the department store of the prosecutor of this writ. While so employed she fell off a chair on November 15th, 1928, while at work hanging curtains. She complained of injuries to her hand and eye but said nothing about her knee. She lost no time from work immediately following the accident, except some twenty minutes while being treated by a nurse. Soon thereafter, and from time to time, her knee swelled and pained her, and she complained to the assistant floor woman. On September 2lst, 1929, ten months after the accident, she reported that she was unable to work. Her petition for compensation was filed February 25th, 1930, and, as we have said, compensation was granted.

The employer first contends that the petition should have been dismissed because filed more than one year after the accident. The petitioner’s answer to this is that this defense is not available-to the employer because of failure to comply with chapter 187 of the laws of 1924, respecting reports of accidents.

That act requires a preliminary report upon the happening of the accident and this was made. The act also requires that "A supplemental report shall * * * be sent in like manner, at the expiration of the waiting period prescribed by paragraph 13 of the Workmen’s Compensation act. If, however, the employe is able to resume work before the expiration of said waiting period, the supplemental report shall be sent immediately upon his return.” It was and is contended by the petitioner, and was found by the deputy commissioner and we think rightly, that this provision was not complied with.

It appears that on September 27th, 1929, a letter giving the status of the case was sent by the employer to the insurance carrier and a copy sent to the bureau. It is contended by the employer that this was a compliance with the act. We think not. The act requires that this report shall be prepared "on a form designated as ‘supplemental report.’ ” This was not done.

The waiting period referred to above by the terms of the act need not immediately follow the accident, and obviously in the instant case did not begin until September 21st, 1929.

The act of 1924 then requires the filing of three reports, known by the bureau as Forms 1, 2 and 3, upon knowledge that there has been a compensable injury. Admittedly no such reports were made.

We think that the deputy commissioner was justified in finding that the employer was deprived of the defense of the one-year limitation.

The employer argues that the petitioner did not sustain the burden of proving that the knee condition was the result of the fall. There was evidence that she had no trouble with her knee prior to the fall; that the trouble with her knee began at the time of or shortly after the accident, and that swelling and a lump soon appeared and persisted, making walking painful and difficult, finally compelling cessation of work. This was the testimony of the defendant and two fellow workers, and her brother. A medical witness in answer to a hypothetical question attributed her condition to the fall. Such evidence amply supports the finding and judgment of the workmen’s compensation bureau.

The judgment will be affirmed, with costs.


text:
    AUGUSTA H. CANTWELL, RESPONDENT, v. GEORGE DELANEY AND SADIE DELANEY, PROSECUTORS.
    Submitted October 16, 1931
    Decided May 18, 1932.
    Before Justices Tbenchaed and Donges.
    For the prosecutors, William F. Delaney.

    For the respondent, Simon Englander.

   Pee Cueiam.

Augusta H. Cantwell filed her petition with the workmen’s compensation bureau and was awarded compensation against George Delaney and Sadie Delaney, who now prosecute this writ on certiorari to review the affirmation of such determination by the Court of Common Pleas of Essex County.

The facts found by the commissioner and the Court of Common Pleas are in effect as follows:

Mrs. Delaney was about to be confined in the birth of a child; Mrs. Cantwell was engaged as a practical nurse to attend the mother and child and to do washing, cooking and general housework for a period of three weeks and such further time as her services might be required. She became a member of the prosecutor’s household and performed the duties assigned to her. She was injured by accident in the performance of such duties, which fact is not seriously disputed.

The prosecutors urge that respondent was not an employe within the meaning of subdivision (c) of paragraph 23 of the Workmen’s Compensation act (Pamph. L. 1911, p. 144, as amended Pamph. L. 1919, p. 211); that her service was casual; and that, having been injured during the period of three weeks alleged to be the limit of her employment, there can be no recovery by her.

The prosecutors raise four points: (1) petitioner was an independent contractor; (2) petitioner’s employment was casual; (3) the award was excessive; (4) the Common Pleas Court failed to hear, review and determine the case de novo.

As to the employment of petitioner, we conclude that the compensation bureau and the Court of Common Pleas rightly held that it was within the compensation act, and that it was not casual. The proofs reasonably show that it was for at least three weeks and such further indefinite period as her services might be required. The work was of such a character as to constitute her a regular employe in the household of prosecutors. Stillman v. Judges of Court of Common Pleas of Essex County, 6 N. J. Mis. R. 6; 139 Atl. Rep. 705.

Our reading of the testimony persuades us that the amount awarded as compensation for temporary and permanent disability was reasonably supported by the testimony and should not be disturbed.

The contention that the court of Common Pleas did not consider the evidence and reach an independent conclusion there is not supported by the determination and rule for judgment of the Common Pleas. The contrary appears to be the fact.

The judgment under review will be affirmed, with costs.


text:
    THE FIRST NATIONAL BANK OF PHILADELPHIA, PENNSYLVANIA, A BANKING CORPORATION, ETC., PLAINTIFF-RESPONDENT, v. ERNEST STONELEY, DEFENDANT-PROSECUTOR.
    Decided May 27, 1932.
    Before Justices Teenchabd, Case and Beogan.
    Por the plaintiff-respondent, Cole & Cole.

    Por the defendant-prosecutor, Waddington Maíhews.

   Pee Cueiam.

This matter comes before the court on rule to show cause why default judgment in favor of the plaintiff-respondent and against the defendant-prosecutor in the amount of $36.811.94 and costs should not be set aside on the following facts.

Suit was started in the Supreme Court, Cape May county, on a note for $36,550. An affidavit of merits and an answer were duly filed. The defense in the answer alleges that the defendant had not signed, executed or delivered the note in question. A notice of motion to strike out the answer was served upon defendant’s counsel but apparently never was argued and on December 14th, 1931, a default judgment (no one appearing in behalf of the defendant) was entered and a poslea filed with the Supreme Court clerk.

Defendant’s counsel, in an affidavit filed on the application for this rule to show cause, explains in great detail the reason for his non-appearance at the Cape May Circuit. He relied upon the clerk in that Circuit or on opposing counsel, unwarrantedly perhaps, to give him timely notice of the trial day. He received no notice and the default judgment against the defendant was the result. Because of this happening he claims surprise. While we cannot say that an attorney from another county is entitled to the notice that defendant’s counsel expected, we do say that on the defense made in the answer, a denial of having executed the instrument upon which the action is founded, the defendant is entitled to his day in court before a jury.

The state of the case discloses that the note in question may have been a renewal of a previous note or notes in larger amounts which had been reduced by pajunents on account. Counsel for plaintiff below at the argument before us presented what purported to be a power of attorney executed by the defendant and stated that the note in question had been signed by the attorney in fact named herein. Nowhere in the complaint or in the testimony taken is this power of attorney mentioned and defendant’s counsel then and there alleged surprise.

In the course of the proceedings before trial the defendant was noticed for motion to strike out the answer. Such motion was abandoned and we must assume for good cause. We do not think that the submission of the purported power of attorney should be considered by us at this time since it was extra the record of the ease. This paper, obviously, is of vital importance in the case and of course had not been proved.

We think, however, that the present position of the plaintiff below should, under the circumstances, be made secure.

The judgment will be opened and a new trial granted, but the lien of the judgment will remain as security pending the new trial, and the defendant will pay the plaintiff its costs of the trial already had, and on this motion to open, to be taxed, and the plaintiff will be granted permission to issue execution and make levy, and that further proceedings thereon be stayed.


text:
    STANDARD ACCIDENT INSURANCE COMPANY, A CORPORATION, PROSECUTOR, v. LEONE RUSSO, HONORABLE JOSEPH A. FURREY, AND JAMES J. McALLISTER, DEFENDANTS.
    Submitted October 17, 1931
    Decided May 31, 1932.
    Before Justices Teenchakd and Donges.
    For the prosecutor in certiorari, Collins & Gorlin (Edward A. Markley and James B. Emory, of counsel).
    For the defendant in certiorari Leone Busso, Heller & Boss ■(Aaron Heller, of counsel).
   Pee Cueiam.

This writ of certiorari brings up for review a judgment of the Clifton District Court in favor of the plaintiff below, Leone Busso, against the Standard Accident Insurance Company, the prosecutor of this writ.

Two questions are argued: First, whether the service upon the Standard Accident Insurance Company was valid, and secondly, if not valid, was it cured by an appearance? We find it unnecessary to determine the first question in view of our conclusion upon the second question.

The defendant was a foreign insurance corporation and the plaintiff below claims to have served it in accordance with the provisions of the Insurance act. Pamph. L. 1902, ch. 134, § 59, subdivision 3, and section 64 as amended. No one appeared upon the return day and judgment was entered in favor of the plaintiff on March 9th, 1931. Thereafter, on March 17th, application was made by the defendant company for a rule to show cause why a new trial should not be granted, which application was denied. The company now contends that it applied for the rule on the ground that there was no proof of service of process, while, on the other hand, the plaintiff contends that it was made solely upon the ground that a default judgment was taken which it was sought to open.

We are unable to find any basis in the state of the case for the defendant company’s claim that the application for the rule was upon the ground that there was no proof of service of process, and we think that the application for a rule to show cause by the defendant bars the defendant from questioning the validity of the service.

The docket entries returned by the clerk of the District ' Court do not furnish the slightest basis for the defendant company’s claim.

The depositions in connection with the writ contain the testimony given by the judge of the District Court as to what transpired upon the application for a rule to show cause. The judge states what occurred at the time application was made for a rule and in this way:

“Q. Judge, will you tell us to the best of your recollection as to what happened on the application of the rule to show cause? A. To be candid with both sides, I would not want to trust my memory or to state to you gentlemen what was said excepting that I know that an application was made before me and there was a discussion between counsel. It does, however, appear quite clear in my mind that Mr. Heller made a statement of this tenor: That if to grant a new trial were to be an accommodation to Mr. Emory, or to the firm which he represented, that he would consent to the same, but otherwise not. That fact, or those facts, do seem to stand out quite clearly in my mind, but as to the rest of the detail or discussion had before me, unless my attention is specifically directed to any part of the application, my memory is more or less hazy and not clear. Q. Judge, do you recall at time the application for the rule was made, whether any mention was made of the fact and whether the grounds of the rule were that the service was bad? A. I haven’t any such recollection.”

If, however, it appeared (which we think it does not) that both the merits of the controversy and the question of service were presented to the court at the time application was made, still under the decisions it is clear that the application in such form bars the defendant.

In the case of Gabriel v. Mason Art, 2 N. J. Mis. R. 50; 125 Atl. Rep. 125, the court said:

“L have no criticism of the rule which declares that a defendant, who in one breath challenges the jurisdiction of the court in a pending suit, and in the next, asks relief against plaintiff on the merits in the same litigation, submits himself generally to the jurisdiction, for I can imagine no more potent act of submission by a party defendant in a pending suit than the asking that affirmative judicial action be taken in his behalf for meritorious reasons.” See, also, Ennis v. Eden Milla Paper Co., 65 N. J. L. 577; 48 Atl. Rep. 610.

The writ of certiorari will be dismissed, with costs.


text:
    ALBERT FOULKS, PROSECUTOR, v. AMITY CRANBERRY COMPANY, DEFENDANT.
    Submitted January 29, 1932
    Decided June 2, 1932.
    Before Justices Teenciiaed and Donges.
    Por the prosecutor, Palmer & Powell.

    Por the defendant, Kelsey & Killie.

   Pee Cueiam.

This writ brings up a judgment of the court of a justice of the peace awarding possession of certain premises to the defendant herein, which was plaintiff in an action instituted under the Landlord and Tenant act. The contention here is-that the affidavit was insufficient to give the justice jurisdiction of the cause.

The affidavit sets up that the plaintiff below is the owner of the premises; that on May 11th, 1918, it employed as-manager one Jones who was permitted to use the house as-part of his compensation; that by reason of an agreement between Jones and defendant below, Foulks, said Foulks entered into possession and boarded with Jones; the affidavit then continues:

“On or about the 20th day of November, 1930, the said A. W. Jones died, and the said Albert Foulks by virtue of his agreement with the said A. W. Jones, together with other information imported to him directly and indirectly, well! knew and understood the rental of said house to be at the rate of $15 per month and the rental of the automobile .storage to be $5 per month, and that thereupon the said Albert Foulks assumed the agreement of renting theretofore made-between the said Amity Cranberry and A. W. Jones, and thereby continued to use and occupy said dwelling house and automobile storage, by reason of which he undertook and agreed to pay to said Amity Cranberry Company the sum of' $20 each and every month for the use and occupancy thereof.”'

It is then alleged that $180 is due and that demand for possession has been made.

Depositions were taken under the writ, and prosecutor testified that his father entered into possession of the premises-in 1875 and continued in possession until 1912, when prosecutor moved in. He says his father claimed to be the owner of the premises. He admitted that he had received a demand for either rent or possession, and said the demand was received shortly before the service of the summons.

Some of his statements are contradicted and there is testimony of conversations in which he is alleged to have recognized the right of defendant to demand rent or possession.

However, the question is whether or not the affidavit alleges facts sufficient to create the relation of landlord and tenant and thus give the court jurisdiction. Scheifele v. Irving, 53 N. J. L. 180; 20 Atl. Rep. 1075.

We fail to find any facts alleged in the affidavit which would create the relation of landlord and tenant. When the affiant says “thereupon the said Albert Foulks assumed the agreement of renting,” he is merely stating a conclusion and does not state the facts which lead up to this conclusion.

In its brief the defendant takes the position that occupancy by the prosecutor, under whatever claim, after demand for rent or possession, created the relation of landlord and tenant. But this is not so. There was no attornment, either by operation of law or in fact, set out in the affidavit.

The judgment below is reversed, with costs.


author: Pee Curiam.

text:
    WARMEC CORPORATION, PROSECUTOR, v. STATE HIGHWAY COMMISSION ET AL., DEFENDANTS.
    Submitted January 29, 1932
    Decided June 2, 1932.
    Before Justices Trejstchakd and Donges.
    For the prosecutor, Stein, Hannoch <& Lasser.

    For the defendants, Walter H. Bacon, Jr.

   Pee Curiam.

This is a writ of certiorari allowed by the Chief Justice to review an order made by him under date of June 13th, 1931, appointing commissioners for the awarding of compensation for the taking of lands of the prosecutor by the state highway commission. It appears that a portion of the lands to be taken were to be used by the highway commission in the construction of route 21, and a portion were to be conveyed to the city of Newark for the widening of Mechanic street.

Prosecutor’s main contentions are (1) that the state highway commission was authorized to take only an easement and not the fee; and (2) that the taking of lands to be used by the city of Newark is illegal.

The first question is whether or not the prosecutor is entitled to challenge the proceedings by this writ. The petition in condemnation was filed May 29th, 1931, on which date June 13th was fixed as the time for the appointment of commissioners. On June 13th, 1931, the attorneys for prosecutor filed objections to the appointment which raised all the objections now sought to be urged under this writ. The Chief Justice signed the order and fixed September 30th, 1931, as the last day for the filing of the report. No attempt was made on June 13th, or for some time thereafter, to review the appointment by certiorari.

The commissioners met and on July 27th, 1931, made an award of $150,953. It is stated in the brief of the defendants that the prosecutor participated in the proceedings before the commissioners. Whether or not prosecutor participated in the hearing of the commissioners, it does appear that the report of the commissioners shows that prosecutor was notified of the time and place of hearing as provided in the order of appointment of such commissioners. On August 3d, 1931, the highway commission filed notice of appeal from the award to the Circuit Court. Prosecutor obtained the writ of certiorari on September 26th, 1931.

1. Defendant argues that prosecutor is in laches. In Slocum v. Neptune, 68 N. J. L. 595; 53 Atl. Rep. 301, the Supreme Court said:

‘^Whatever would have been the status of the prosecutors had they promptly attacked the order appointing commissioners, we think that they are now estopped from challenging any of the proceedings. They had notice in advance of the proposed ordinance; they appeared without objection on the appointment of commissioners, and before those officers they contended only for satisfactory compensation. Their first objection of illegality comes after their experiment in that respect has proved disappointing.

In the instant case, after filing their objections to the appointment of commissioners, the prosecutor elected not to continue with the challenge to the validity of the proceeding but appeared before the commissioners to seek an adequate award. Even after the award prosecutor took no steps, apparently being satisfied with the posture of the case, and it was not until the appeal to the Circuit Court by the highway commission that the attempt was made to upset the proceeding ab initio.

The writ is dismissed, with costs.


text:
    DON J. VAN DEVANDER, RESPONDENT, v. WEST SIDE M. E. CHURCH, PROSECUTOR.
    Submitted January 29, 1932
    Decided June 2, 1932.
    Before Justices Trenchard and Donges.
    For the prosecutor, McDermott, Enright & Carpenter.

    For the respondent, Miller & Barowitz.

   Per Curiam.

This writ brings up a determination of the compensation bureau awarding compensation to the respondent for injuries alleged to have been sustained as the result of an accident arising out of and in the course of his employment by prosecutor.

. The respondent is a Methodist minister and was assigned by the bishop to and employed as pastor by the prosecutor, West Side Methodist Episcopal Church. His stated salary was $3,450 per annum and he was housed in the church parsonage (and was apparently required to live there), for which the sum of $700 was deducted from his salary, making a cash payment of $2,750. He was furnished no janitor service for the parsonage and was required to do all housework, ground-keeping, and care of the furnace himself. On November 11th, 1930, while removing a barrel of ashes from the cellar of the parsonage, he strained his back. The question presented here is whether or not this accident was one arising out of and in the course of the employment.

The only testimony, outside of the medical evidence, was that of the petitioner. He testified that he was required to keep the house in condition for use by the members of the congregation, and that, in fact, it was used for wedding, christenings, and other parish meetings.

We are inclined to think that it was error to hold that the accident arose out of the employment. Petitioner was performing a household duty for his own benefit which he would have been required to perform if he lived in a house owned by himself. In Byrant v. Fissell, 186 Atl. Rep. 458, the act was said to cover risks “which are within the ordinary scope of the particular employment in which the workman is engaged.” Now the employment here was that of a minister. Carrying ashes is certainly not incidental to that office, directly or indirectly. Petitioner takes the position that the church imposed certain additional duties, namely care of the parsonage. But it does not seem that this is so. Care of a dwelling house ordinarily falls upon the occupant and does not have to be so “imposed.” What the church did was to refuse to furnish service which would relieve him of this burden.

The case of Lauterbach v. Jarrett, 189 App. Div. N. Y. 303; 178 N. Y. Supp. 480, seems to be in point. There a janitress- who was furnished with living quarters in the building she cared for was injured by the falling of plaster while eating in her own apartment. It was said: “In no proper sense could it be said that she was janitress of her own apartment because it happened to be in the building of which she was janitress.”

It was also said: “She was in the building in a dual capacity. Her family domicile was in one of the apartments. Her personal relations to her family were separate and distinct from her relations to her employer.”

This reasoning is sound. In the instant case we think that at the time of the accident the respondent was performing an act personal to himself and his family, and not connected with his employment as a minister.

The award is set aside, with costs.


text:
    JOHANNA FRIESE, PROSECUTOR, v. NAGLE PACKING COMPANY, RESPONDENT.
    Submitted January 29, 1932
    Decided June 2, 1932.
    Before Justices Tkenchakd and Donges.
    For the prosecutor, Pesin <& Pesin.

    For the respondent, John Milton.

   Pee Ctjeiam.

This writ brings up for review a judgment of the Hudson: County Court of Common Pleas affirming a determination: of the workmen’s compensation bureau dismissing prosecutor’s petition for compensation for the death of her husband alleged to be the result of an accident arising out of and in. the course of his employment by the respondent. The defense was that there was no accident, and the finding was-that there was insufficient proof of an accident.

Two questions are presented to this court: First, the factual question of whether or not the prosecutrix sustained the-burden of proving an accident resulting in death; and second, the propriety of excluding proffered testimony by theprosecutrix as to what her husband had said to her about the alleged accident, this having been barred as hearsay.

Deceased was a truck driver who delivered meats. In the-course of his work he moved heavy pieces of meat about. Theprosecutrix testified that he had been in good health up to July 21st, 1930; that he came home on that day feeling ill,, ate no supper and went to bed. He seemed to get worse and she called a doctor from the city hospital who diagnosed the-trouble as pleurisy. Later a physician was called and his-diagnosis was pulmonary tuberculosis. Prosecutrix was not permitted to testify as to what deceased had told her concerning an injury to his chest. She says that she told deceased’s foreman when he brought her husband’s pay on Friday, July 25th, of the claim of an injury, and after the-death told the superintendent of respondent when he called to offer his sympathy. Formal claim of a compensable accident was made a month after the death through an attorney. Her husband died on Sunday, July 27th.

Dr. Sirken testified as to his examination and treatment of deceased, whom he saw only once on July 25th. He was permitted to tell what deceased told him of an injury, which was that on July 21st, while pulling a large piece of meat, deceased felt a sharp pain in the chest. The doctor gave the cause of death as tuberculosis and said that in his opinion a latent condition had been stirred up by the strain described by the deceased. In the death certificate he made no mention ■of the trauma.

Dr. Pollock testified as an expert on the disease and gave evidence to support the prosecutrix’s theory of the accident .and death.

On behalf of the respondent, the foreman and superintendent denied being told by the wife of an accident to deceased. It was testified that there was no knowledge of a claim of an .accident for a month.

A man who was on the truck with deceased on the trip when the accident is alleged in the petition to have occurred testified that deceased said nothing and gave no sign of an injury.

A timekeeper of respondent testified that when deceased left for his home on July 21st he appeared in good health .•and playful spirits.

Two tribunals have decided the factual question in favor of the respondent and this court should not lightly disturb such finding. Mountain Ice Co. v. Durkin, 6 N. J. Mis. R. 1111; 144 Atl. Rep. 6. It appears that the finding is not overwhelmingly against the weight of the evidence, and in fact the weight of the evidence supports the determination of the tribunals below.

2. As to the hearsay evidence, it may have been technical error to exclude it. Such evidence is permitted by the act, .and the fact that the bureau may make rules of procedure does not justify the exclusion since such a rule would be inconsistent with the other provision of the act. We think, however, that this error is not one requiring reversal. The wife’s offered testimony was the same as that of the physician on this question, and, if so, the preponderance of the testi.niony would still be with the respondent.

The judgment under review will be affirmed, with costs.


author: Stein, J.

text:
    Union County Court of Common Pleas.
    FREDERICK FULLER KISLINGBURY ET AL., DEFENDANT-APPELLANT, v. THE TREASURER OF THE CITY OF PLAINFIELD, APPELLEE.
    For the defendant-appellant Frederick Fuller Kislingbury, Joseph J. Mutnick, Jr.

    For Joseph Siccardi et al., Codington, Blatz & Smalley.

    For the treasurer of the city of Plainfield, William Newcorn.

   Stein, J.

January 24th, 1932, the defendant-appellant Frederick Fuller Kislingbury was arrested by the police of the city of Plainfield for violation of the third section of an ordinance of the city of Plainfield entitled “An ordinance relating to the morals, peace and good order of the city of Plainfield,” approved April 23d, 1874, and the amendments and supplements thereto. On January 27th, 1932, the city judge of Plainfield heard the complaint against the defendant-appellant, and on conviction sentenced him to pay a fine of $25. At the same time and also later other persons were convicted for violation of the ordinance and appeals from all of said convictions are now before the court. Counsel stipulated in open court that the decision in the case of Frederick Fuller Kislingbury is to be dispositive of all the appeals.

The complaint charges that the defendant Kislingbury, “on the 24th day of January, 1932, by supervising and conducting as manager thereof caused to be given a public motion picture exhibition on the first day of the week commonly called Sunday, namely, on the 24th day of January, 1932, in the city of Plainfield aforesaid, engaged in a trade requiring the exercise of manual labor, to wit, by supervising and conducting as manager thereof and causing to be given a public motion picture exhibition, the said Frederick F. Kislingbury not being a person who habitually observes the seventh day, commonly called Saturday, as the Sabbath, and who carries on his business within his premises in such a manner as not to disturb the religious observance of Sunday as the Sabbath.”

The section of the ordinance pertinent to the charge laid in the complaint provides, “no person shall cry or openly expose for sale any wares, merchandise, fruit, herbs, meats, fish, foods or chattels, or keep open any shop or store or place in which said articles are sold, or in which the occupation of barber, shoemaker, blacksmith, silversmith, or other trade requiring the exercise of manual labor is carried on, on the first day of the week, commonly called Sunday, except in cases of necessity, and the sale of milk and medicine. Any person violating this section shall upon conviction thereof be fined in a sum not exceeding $25, or be imprisoned in the city or county jail not exceeding ten days, or both, in the discretion of the court. Provided, however, that this section shall not apply to any person who habitually observes the seventh day, commonly called Saturday, as the Sabbath, and who carries on his business within his premises in such a manner as not to disturb the religious observance of Sunday as the Sabbath.”

All of the persons convicted were engaged in one capacity or another in and about the Paramount theatre during a moving picture performance on the first day of the week, commonly called Sunday.

Whether or not moving picture theatres may lawfully be operated on Sunday is not before this court for decision. The question raised by this appeal is whether the defendant was lawfully convicted under the charge laid in the complaint •.and the ordinance upon which it is based. The ordinance prohibits one from crying and openly exposing for sale wares, merchandise, fruits, herbs, meats, fish, goods or chattels, or the keeping open of any show, store or place in which .said articles are sold, or in which the occupation of barber, .shoemaker, blacksmith, silversmith, or other trade requiring ■the exercise of manual labor is carried on.

Do the acts alleged against the defendant in the complaint, namely, “supervising and conducting as manager thereof” a public motion picture exhibition come within the purview of this section of the ordinance?

The ordinance is penal in character and must therefore ¡be strictly construed. Its provisions cannot be extended by implication. Any case which does not come within its words ■cannot be brought within it by construction.

It was argued before the court that the words “or other trade requiring the exercise of manual labor” brought the ■defendant within the prohibition.

Certainly supervising and conducting a motion picture ■exhibition cannot by any stretch of the imagination be considered as offering for sale the wares and merchandise specifically enumerated in the ordinance or to conducting a shop •or store in which such articles are sold, or as following the occupation of a barber, shoemaker, blacksmith, silversmith, ■or the conducting of any trade requiring the exercise of manual labor.

General terms, following a specification of things of a particular class, must be understood to refer to things of the :same class, or at least of the same general character. And so, where the ordinance provides as it does in this instance against exposing for sale wares and merchandise and specifically enumerates the kind of merchandise intended, and prohibits the opening of any shop, store or place in which such articles are sold and specifically prohibits one from following the occupation of barber, shoemaker, blacksmith, silversmith, the words “or other trade requiring the exercise of manual labor” can only refer back to the things specifically enumerated. “Where general words follow particular words, the rule is to construe the former as applicable to the things or persons particularly mentioned.” Livermore et al. v. Board of Chosen Freeholders of the County of Camden, 31 N. J. L. 507; Curtis & Hill Gravel and Sand Co. v. State Highway Commission, 91 N. J. Eq. 421; 111 Atl. Rep. 16.

The ordinance also provides that it “shall not apply to any person who habitually observes the seventh day, commonly called Saturday, as the Sabbath, and who carries on his business within his premises in such a manner as not to disturb the religious observance of Sunday as the Sabbath.”

Such a provision is violative of the federal and state constitutions. Article 14, section 1 of the federal constitution provides against the making or enforcing of any law which abridges the privileges or the immunities of citizens or which denies to any person within its jurisdiction the “equal protection of the laws.” And the state constitution, article 4, section 11, among other things provides against granting to any individual any exclusive privilege, immunity or franchise whatever. “Equal protection of the laws” means equal security or burden, under the laws, to everyone similarly situated.

In In re Van Horn, 74 N. J. Eq. 600; 70 Atl. Rep. 906, Vice-Chancellor Garrison, in considering section 2 of chapter 185 of the act of 1908, which prohibits persons conducting theatres from admitting any child under the age of sixteen years unaccompanied by a parent or guardian or adult friend and which contains the proviso that the section “shall not apply to any performance given by or under the auspices of any public or private school or any church or Sunday school or by any charitable organization or society nor to entertainments held on piers devoted to public entertainment,” said, in referring to the fourteenth amendment of the federal constitution: “A statute to escape condemnation as infringing the rights guaranteed by this amendment must bear alike upon all individuals and classes and districts that are similarly situated, in a similar manner, and with uniformity; otherwise there would be unjust discrimination, which this constitutional amendment prohibits, the purpose of the constitutional amendment must have been to prevent that which was arbitrary or capricious, and to require uniformity and equality under like conditions.”

“The so-called police power of the legislature which enables it to make regulations and restrictions to protect health, morals, safety and welfare of the people undoubtedly justifies the enactment of many laws which interfere with and regulate the conduct of the individual in his relation to the public, and the judgment of the legislature is to be given great, if not controlling weight as to what conduct on the part of individuals constitutes a menace, to the health, morals, safety or welfare of the general public and its determination will rarely, if ever, be interfered with by the courts, but this does not justify a legislative enactment which discriminates where there is no basis for discrimination.

“Wherever an enactment has attempted to make that a crime in one place which by all laws of reason must be a crime elsewhere within the same jurisdiction, such attempted distinction is found by the courts to be illusory, and the act is held unconstitutional.”

The ordinance under consideration divides the people of Plainfield into classes and exempts from its operation all persons who habitually observe the seventh day commonly called Saturday, as the Sabbath, and permits such persons to carry on business in such a manner as not to disturb the religious observance of Sunday. On the other hand it prohibits other persons from carrying on business within their premises even though such persons carry on their business in such a manner as not to disturb the religious observance of Sunday, and permits the sale of milk and medicine by still another class, and finally exempts from its operation such persons who do business on Sunday “in cases of necessity” and is therefore highly discriminatory in its provisions.

In Middleton v. Middleton, 54 N. J. Eq. 692; 35 Atl. Rep. 1065, the Court of Errors and Appeals was considering an act permitting a limited divorce for adultery or desertion under Pamph. L. 1891, which act provided that for desertion, adultery or extreme cruelty the Court of Chancery may decree a divorce from bed and board forever thereafter or in case of extreme cruelty for a limited time, but that in every such case, except for extreme cruelty the party applying shall prove that he or she has conscientious scruples against applying for a divorce from the bond of matrimony; and that “when such proof has been made the court, in ease it shall deem it just to do so may also decree that the given party shall forfeit all right to dower, curtesy, and administration of or participation in the property or estate of the party in whose favor the decree is entered” and in that case the court held:

“The wisdom of this law is not a question for the court. The legality of it is all that we are to determine. The legislature may prescribe those rights and obligations, but it must do so within the limits fixed by the constitution of this state and of the United States. It cannot be denied that the legislature has power to pass an act giving to all petitioners for divorce the right to apply for an absolute or a limited divorce as he or she may elect; for such an act would operate equally upon all persons, and would impose no special consequence and confer no exclusive privilege upon any. The act of 1891 is, however, not of this character in that it does confer upon certain petitioners rights, and imposes upon certain offenders consequences, which are determined, not by the character of the offense, but by the opinions of the injured party, * * “The constitution of the United States forbids any state To deny to any person within its jurisdiction the equal protection of the laws,’ and it certainly seems tolbe a true construction of that prohibition to hold that the laws which are operative should be laws which impress themselves equally upon all without regard to the individual opinions of any.”

The charge made against the defendant does not come within the provisions of the ordinance. The ordinance is discriminatory and unconstitutional and therefore the convictions must be set aside.