author: Porter, C. C. J.

text:
    LADDIE MAILOT, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT AND ALBERT THOMAS, DEFENDANTS.
    Decided September 23, 1931.
    For the plaintiff, John IF. McQ-eehan, Jr. (John A. Mc-Kenna, of counsel).
    For the defendant, Henry H. Fryling (Elmer W. Bomine, •of counsel).
   Porter, C. C. J.

This matter comes before me on a rule to show cause why the verdict in favor of the plaintiff, and against the defendant company in this case, should not be set aside on the ground that the same is excessive and against the weight of the evidence.

The plaintiff was injured on New Year’s night, January 1st, 1928, on Washington avenue, Belleville, in a collision! between his automobile and a trolley car of the defendant •company. The plaintiff was traveling in a southerly direction and the trolley car in a northerly direction.

The plaintiff’s contention is that as he arrived at the intersection of Washington avenue and Essex street an automobile, suddenly appeared at the right of his car, coming from Essex street, which caused him to swing to his left in order to. avoid a collision. In so doing he drove upon the north-bounci trolley track, observing as he got there a trolley car approaching at or near Joralemon street, a distance southerly of some one hundred and thirty-five to one hundred and fifty feet away, traveling at a fast rate of speed. The motor of the plaintiff’s car stalled as he was in that position, but, while the trolley car was approaching and before it reached the plaintiff, he succeeded in starting the motor in an endeavor to get out of the way, and is not positive whether he succeeded in starting his car, but either while it was at a standstill or was just beginning to move, and while it was still on the north-bound track, the trolley car crashed into his automobile, rendering him unconscious and causing serious physical injuries. He further says that the operator of the trolley ear made no attempt to stop and gave no warning of his approach and kept increasing his speed; that as a matter of fact his face was averted; the plaintiff testifying that he did .not see the motorman’s head ‘^because he had it turned in that little nickel register or counting his money or whatever he was doing.”

It develops from other testimony that after the collision the automobile was alongside of the trolley car and near the rear of it. There was no corroboration of the plaintiff’s story with respect to the occurrence of the accident. The only witness adduced by the plaintiff, other than himself, was a James Eerraro, whose testimony was simply that he saw a car swerve off to the left of the road onto the trolley tracks on the night in question; that he was driving an automobile toward Newark on Washington avenue, and, after seeing a car swerve, continued on; that he also saw. a trolley car crossing Joralemon street; that he did not see the accident but did hear the crash as he was passing Joralemon street. He further said, on cross-examination, that he saw no other automobile at Essex street. He gave no explanation as to what caused the car, assuming it to have been the plaintiff’s, to have swerved. He did not go hack to the scene of the accident, although he heard the crash. It does not develop that he recognized the plaintiff when he passed and saw him swerve nor when he learned that the plaintiff was in the accident and hurt. He saw the plaintiff during May or June of the summer following the accident, and apparently because of some conversation had then with respect to the accident he was later summoned as a witness.

The charge of negligence is thus based entirely on the testimony of the plaintiff with respect to the manner in which the trolley car was being operated as above described. As against that testimony there is, in my opinion, abundant testimony which entirely outweighs and controverts the plaintiff’s version of the accident.

First, the motorman, Mr. DeJong, denies excessive speed; on the contrary, he says that he had stopped at Joralemon street to let on passengers, which is corroborated. He says that he was going slowly, which is corroborated; that he saw the plaintiff’s car on the track before the accident; that he rang his gong repeatedly as he approached the plaintiff, which is corroborated; that he was at a standstill, or practically at a standstill, when the collision occurred, which is corroborated. All of the corroboration is from disinterested witnesses, mostly passengers in the trolley car. While it is true that none of them saw the occurrence because of a curtain which hid the motorman and the view ahead of the car, still that fact did not prevent them from hearing the gong and observing the speed and stop of the trolley.

.Moreover, the physical facts with respect to the collision, and the position of the trolley car and automobile afterwards, clearly indicate that at least one of the vehicles was going at a high rate of speed. That must be true from the amount of damage caused to the two vehicles, as well as from the fact that either one of the vehicles had traveled nearly the length of the trolley car after the accident.

The testimony indicates to me that it was the automobile which was traveling at the time of the impact and that it sideswiped the trolley car, while the trolley ear was either at a standstill or practically so. The physical facts, therefore, in my opinion, corroborate the defendant’s story and disprove the plaintiff’s story that the plaintiff was in fact at a standstill, or practically so, at the time of the collision.

The driver of the car which it is said came out of Essex street and caused the plaintiff to swerve left onto the trolley track, Albert Thomas, was also made a party defendant to the suit. His name was known, he was served with process. He did not appear in court, he was not a witness, nor was any explanation forthcoming as to his absence.

The jury found a verdict of “no cause of action” in favor of the defendant Thomas. To have done so indicated its disbelief in the plaintiff’s story about Thomas forcing him to the left of the road onto the trolley track. Thus its verdict under the circumstances is inconsistent and illogical and further indicates to me that it reached its conclusions without properly weighing the testimony.

The fact as alleged that Thomas forced the plaintiff across the road is an important and outstanding primary cause of the accident. And yet according to an investigator employed by the defendant company, Mr. Gardner, the plaintiff did not acquaint him with that version of the occurrence when he first told him the facts. On the contrary, Mr. Gardner testified that the plaintiff at that interview told him that he did not know what caused him to go to the left of the road. Mr. Gardner made a written memorandum of that interview at the time which was produced at the trial and marked in evidence.

When the verdict was rendered it seemed clear to me that it was so clearly against the weight of the testimony as to be the result of mistake, prejudice, passion or sympathy, and that it would be my duty to set it aside. After hearing able argument, reading carefully prepared briefs, and reading the testimony, I am confirmed in that opinion.

The rule will be made absolute.


source: Caselaw Access Project

author: Hartsiiorne, J.

license: Public Domain

text:
    Essex County Orphans Court.
    IN THE MATTER OF THE ASSIGNMENT OF RAFFAELLA CECIRE FOR THE BENEFIT OF THE CREDITORS.
    Decided September 14, 1931.
    Eor the assignee, Milton M. Unger.

    For the claimant, William C. Salmon, trading as Henry Salmon & Son, King & Vogt (by Ulmer A. King, Jr.).

   Hartsiiorne, J.

Application has been made to the court to give to one creditor, William C. Salmon, trading as Henry Salmon & Son, the bulk of the estate as a priority.

This priority is alleged to rest upon the facts that Salmon had filed a mechanics’ lien claim and obtained judgment, thereon, specially against the land and buildings and generally against the owner, the insolvent, prior to the destruction of' the owner’s buildings by fire, the destruction of which was in turn prior to such owner’s assignment for the benefit of creditors. Such lien claimant creditor claims that the fire insurance proceeds paid the assignee are substituted for the land and buildings and therefore subject to his statutory lien.

This claim is resisted by the assignee on behalf of the-other creditors.

There seems to be no authority on this point in this state-while a conflict of authority appears to exist in other jurisdictions.

The basis of the claim for the priority is the doctrine of' equitable conversion. Regardless of the fact that this is not a court of equity but of law, the claim would appear unsound on general principles. In the first place, the Mechanics’ Lien act expressly gives the lien on “such building and on the land whereon it stands.” Since the statute is in derogation of the common law, it must be strictly construed so that such lien could not be enlarged to cover anything else than the land and buildings.

Insurance proceeds, the cash performance of a personal contract (City of Norwich, 118 U. S. 468), clearly are not land and buildings. Not even a mortgagee can recover on an insurance policy taken out by the owner, unless a mortgagee clause exists- for his benefit. Insurance proceeds are therefore quite outside of and additional to the land and buildings of the owner, constituting as they do moneys which would not have come into existence had not the owner obligated himself personally by the insurance contract. The true rule is well set forth in the case of the Imperial Elevator Co. v. Bennett, (Minn.), 149 N. W. Rep. 372, where the court differentiates the instant situation from that where the exercise of a testamentary power or the power of the court has deprived the lienor of the property upon which his lien rests. Ordinarily the doctrine of equitable conversion is applied merely to reconvert, in the eye of the law, into its original form, that which the applicant was first entitled to. Here the original form, or source, of the insurance proceeds was not the land and buildings but the premiums paid by the 'insured assignor—cash, which, if not so used, would have been subject to the pro rata claims of the creditors generally.

The priority claim of William C. Salmon, trading as Henry Salmon & Son, will therefore be overruled and an, order may be entered accordingly.


author: Fallón, V. 0.

text:
    Lauretta G. Salter, complainant, v. Charles J. Reilly et ux., et al., defendants.
    [Decided November 15th, 1929.]

      Mr. Frank W. Heilenday, for the complainant.

      Mr. N. Louis Paladeau, Jr., for the defendants Charles J. Reilly and Catherine Reilly, his wife.
   Fallón, V. 0.

My consideration of the matter sub judice, and particularly the bill of complaint, answer and counter-claim, and master’s report, actuates me in determining that the application of the complainant for an order striking out the answer and counter-claim of the defendants Charles J. Reilly and Catherine Reilly, his wife, upon the ground that said answer and counter-claim are frivolous and sham, should be denied, and I will advise an order accordingly, the order to provide for payment forthwith by the complainant of the master’s fees—$84.25. In South Camden Trust Co. v. Stiefel, 101 N. J. Eq. 41 (Vice-Chancellor Learning), it was held that the court of chancery will not entertain a motion to strike out a counter-claim on the ground it is sham and untrue, when the averments of the counter-claim, if true, support affirmative equitable relief; also, that motions to strike out. pleadings as sham are entertained only against defensive-pleadings. As stated in the cited case (page 43), the procedure in this state on motions to strike pleadings is regarded as merely an inquiry whether there is an issue of fact to be tried, a distinction being recognized between the determination, whether there is a real issue to be tried and the trial of an issue upon a motion; whether what in form is an issue is a real issue. In Fidelity Mutual Life Insurance Co. v. Wilkes-Barre and Hazelton Railroad Co., 98 N. J. Law 507, it was held a pleading cannot be both sham and frivolous at the same time. The opinion of the court of errors and appeals recites: “At common law a plea was considered

sham when it was palpably or inherently false, and from the plain or conceded facts in the case must have been known to the party interposing it to be false. Such plea, sajrsChitty, Ras always been considered a very culpable abuse of justice, and has often been censured and set aside, with costs.’’ 1 Chit. Pl. 542; 1 Tidd Pr. 611; 2 Bouv. 680. A frivolous-plea need not be false, but is palpably insufficient as a legal defense to the action; and hence legally insubstantial or frivolous, and therefore presumably interposed for the purpose of delay. Under the common law practice in New York, and the supreme court rules, a plea might be condemned as either palpably false (sham) or frivolous, and could be struck out upon either ground, but was never summarily dealt with upon both grounds. Oakley v. Devoe, 12 Wend. 196; 1 Burrill Prac. 180; 21 R. C. L. 452 and cases cited.” Section 4 of 1915 supplement of the Chancery act (P. L. 1915 pp. 184, 185), is authority for the striking of frivolous or sham pleadings. Said section provides that “any frivolous or sham defense may be struck out on notice, and a decree pro confesso entered, or the defendant may be allowed to defend on terms,, or such other order or decree may be made in the premises-as may be just.” In Penrose v. Absecon Land Co., 94 N. J. Eq. 436, opinion of the court of errors and appeals (Parker,. J.), it is said: “the very word csham’ connotes unfounded allegations of fact.”


author: Aokekson, S. C. C.

text:
    GRAND INVESTMENT COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. DAVID GROSS, CHARLES GROSS, JOSEPH GROSS AND LOUIS KORN, SEVERALLY, DEFENDANTS.
    Decided September 24, 1931.
    For the plaintiff, William, Boorstein.

    For the defendants David Gross and Charles Gross, Levenson, Gomen & Lev enson.

   Aokekson, S. C. C.

This is the second time this matter has been before me. On the first occasion the motion was to strike out the answer of the defendants David Gross and 'Charles Gross, and parts thereof were stricken out with leave given to amend. The present motion is to strike out the amended answer of the same two defendants upon various grounds.

After reading the answer and affidavits I have reached the conclusion that paragraph one of David Gross’ answer to the first count of the complaint should be stricken out as sham.

The balance of his answer entitled “by way of separate and -distinct defenses to the first count, defendant David Gross ■saysshould be stricken out because of duplicity in pleading :as it is attempted to set up the defense of usury and fraud together as part of a single defense without attempting to state them separately and under separate headings as required by rule 57 of the Supreme Court. In pleading several defenses each one should be headed with the words “separate defense” and several defenses should not be incorporated under one such heading. Furthermore, paragraphs one and four regarding usury are not properly pleaded under the rule laid down by-the case of Kase v. Bennett, 54. N. J. Eq. 97. The pleading should allege a corrupt agreement with intent' to avoid the statute of usury. I called attention to this in my last memorandum, and it seems not to be enough to allege-that a bonus was paid; there must be the further allegation that in charging the added amount there was an intent to> disregard the statute.

That part of Charles Gross’ answer to the third count entitled “by way of separate and distinct defenses to the third count, defendant Charles Gross says:” will also be stricken-out because of duplicity as this defense attempts to set up-forgery and usury under a single count, contrary to rule 57 of the Supreme Court.

Paragraph two under this same count deals with the charge-of usury but it is improperly pleaded for the reasons already-indicated.

The answer of David Gross to the third count of the complaint is but a repetition of the so-called “second defense”' of Charles Gross in answer to the third count and should be stricken out for the reasons already stated in considering-Charles Gross’ answer to said count.

Ordinarily after two attempts to set up defenses to a complaint, I would not allow further opportunity to amend;: but charges of fraud and forgery are serious and I do not feel, that these defendants should be put out of court upon a technicality of pleading. Leave will therefore be given for these defendants to file an amended answer properly setting-forth the defenses of fraud and forgery, if it is so desired, and although the defense of usury is not looked upon favorably, nevertheless where it is improperly pleaded, courts ordinarily allow an amendment as I did in the first instance. Since the answer may be amended, the amendment may therefore include the defense of usury, but I must admonish counsel to read the cases regarding the pleading and especially the case herein above cited in order there may be no failure in conforming with the rules for pleading on the next attempt. Any amendments of the answer, however, must be filed within ten days from September 21st, 1931.


author: Pee Cukiam.

text:
    CLEVELAND BRIGGS AND ANNA BRIGGS, INDIVIDUALLY, AND GERTRUDE BRIGGS, BY HER NEXT FRIENDS, CLEVELAND BRIGGS AND ANNA BRIGGS, PLAINTIFFS-APPELLEES, v. GEORGE LEIBLER, DEFENDANT-APPELLANT.
    Submitted May term, 1931
    Decided September 28, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Louis J. Beers.

    For the appellees, Benjamin Gordon.

   Pee Cukiam.

This is an appeal by the defendant below from judgments against him by all of the plaintiffs below.

Gertrude Briggs, a minor, was an invitee occupant of the automobile of the defendant, who was her uncle. The other plaintiffs are her father and mother. Gertrude, with her uncle and his wife and their daughter, were on a trip to the shore and at South Amboy the automobile overturned and Gertrude was injured.

The only grounds of appeal are that the court erred in refusing a nonsuit and to direct a verdict.

Both of these motions were upon the ground that no negligence had been established which was the proximate cause of the happening.

The testimony of Gertrude was that they were proceeding along the road at a high or fast rate of speed when the car suddenly began to zig-zag and overturned.

The defendant and his wife and their daughter testified that they were going at a moderate rate of speed, perhaps twenty miles an hour, when the happening took place. The defendant, himself, says he was not traveling over twenty miles an hour when upon applying the brakes they became locked causing the car to zig-zag and turn over.

It also appears that he was an inexperienced driver, having only just obtained his driver’s license. It seems to us that under such proofs, and such conditions, a jury question was presented as to whether or not the happening was due to negligence of the defendant.

This being so the refusal to nonsuit and direct a verdict was not error.

The judgment below is affirmed, with costs.


author: Pee Cueiam.

text:
    THE STATE OF NEW JERSEY, EX REL. STEPHEN W. STOOTHOFF, v. JULIA B. DAVIES, DEFENDANT. THE STATE OF NEW JERSEY, EX REL. STEPHEN W. STOOTHOFF, v. LEMUEL E. DAVIES, DEFENDANT.
    Argued October 7, 1930
    Decided October 17, 1930.
    Before Justices Campbell and Bodine.
    Por the relator, Wall, Haight, Carey & Hartpenoe.

    Por the defendants, Joseph F. S. Fitzpatriclc.

   Pee Cueiam.

The applications will be denied.


author: Peb Ctjeiasi.

text:
    MARIE MALDONATO, BY HER NEXT FRIEND, AND SAM MALDONATO, INDIVIDUALLY, APPELLEES, v. IRONBOUND TRANSPORTATION COMPANY, APPELLANT.
    Submitted May term, 1931
    Decided September 28, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the appellant, Pearce B. Franklin.

    For the appellees, Milton M. Unger.

   Peb Ctjeiasi.

The plaintiffs were passengers in a bus of the defendant, a common carrier, which vehicle came into collision with a lire apparatus and the plaintiffs were injured.

Both plaintiffs have verdicts and judgments.

The action was not only against the common carrier but also against its servant and operator of the bus. There was no judgment against the latter and upon appeal by the plaintiffs to the Supreme Court that court affirmed the judgment below in favor of the operator.

It is now contended upon this appeal by the defendant, common carrier, that the judgment in favor of its servant, the operator, having been affirmed the judgment against it by necessity must be reversed.

But this is not so. The duties owing to plaintiffs as passengers by appellant were otherwise and different from those due them from the operator.

The operator owed a duty of reasonable care only. The owner of the utility owed a duty of high degree of care. The duties were not joint and equal.

The finding in Goekel v. Erie, 100 N. J. L. 279, disposes of the contention.

In a case as between private owner and servant where the allegation is negligence of the servant, thus imputable to the master, a verdict in favor of the servant and against the master is inconsistent and a judgment against the master cannot be maintained, but when the duties owing to the plaintiff are different—that is, in one case upon the part of the servant reasonable care and upon the part of the master high care—a verdict in favor of the servant and against the master is not inconsistent.

The judgment below is affirmed, with costs.


text:
    MARIE MELNYK, ADMINISTRATRIX AD PROSEQUENDUM OF JOHN MELNYK, DECEASED, PLAINTIFF, v. SEDRIC E. ELLIS AND ELLIS MOTOR CAR COMPANY, DEFENDANTS.
    Submitted May term, 1931
    Decided September 28, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Por the rule, Edward A. Marhley and Charles W. Broadhurst.

      Contra, Henry Harris.

   Pee Cukiam.

This is an action lor negligence under the Death act.

The whole question involved is whether or not the verdict was against the weight of: the evidence both upon the ground of negligence and contributory negligence of the deceased.

The accident happened as the decedent was crossing St. George avenue in Linden at or near Victory avenue, at which point there was a traffic light known as a “blinker.” This denotes caution. At the time defendant’s ear was traveling thirty-five to forty miles per hour.

Prom the proofs it appears to us to have been a fair jury question as to whether or not the defendant was negligent.

Every driver of a car knows or should know that as he approaches a “blinker” light he must exercise caution. Not to do so and exercise reasonable care in anticipation of pedestrian and other traffic must be considered to be negligent.

We conclude that the rule to show cause should be discharged, with costs.


text:
    MARY PULL, PLAINTIFF, v. GEORGE NAGLE, AS EXECUTOR OF THE ESTATE OF PAUL B. STETKA, DECEASED, DEFENDANT.
    Submitted May term, 1931
    Decided September 28, 1931.
    Before Justices Campbell, Lloyd and Bodine.

      For the rule, James A. Major and William George.

      Oonira, John H. Sheridan.

   Pee Cueiam.

This was a suit to recover from the estate of a deceased' attorney the loss to the plaintiff through his investment of her funds in second and subsequent mortgages instead of' first mortgages.

There is nothing in the record to show either a verdict or judgment.

The rule to show cause allowed to defendant assumes a verdict in favor of the plaintiff and the plaintiff below calls-this to our attention but apparently makes no point of it.

We are asked to set aside such assumed verdict—

1. Because of error in the trial court refusing to nonsuit or direct a verdict in favor of the defendant.

We think this is without substance. There were proofs warranting submission of this point to the jury.

2. Because it was error to refuse to nonsuit and to direct’ a verdict upon the ground that the plaintiff had ratified the-action of defendant’s decedent.

For the reasons previously expressed we think there was-no error in this action.

3. The trial court erred in admitting the evidence of oneNappes respecting conversations with the defendant’s decedent because Nappes was the attorney of record for the plaintiff.

This is without substance. There is nothing making the-testimony of such a witness incompetent. It may be subject to severe scrutiny, &c., by the jury but is not incompetent.

4. Error in striking out first and fourth counts of complaint.

We think it simply went to the question that the plaintiff' had not presented her sworn account to the estate of the-defendant. This did not bar her from her action which was not for an ordinary debt but for damages for negligence, &c.,. of an attorney.

5. The verdict was against the weight of evidence.

This we do not find to be so.

The rule should be discharged, with costs.


author: Pek Cukiam.

text:
    WILLIAM J. DONOHUE, ADMINISTRATOR OF THE ESTATE OF FRANCIS A. DONOHUE, DECEASED, PLAINTIFF-APPELLEE, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1931
    Decided September 28, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Frederic B. Scoit.

    For the appellee, John J. Carlin.

   Pek Cukiam.

Plaintiff’s decedent was a switchman in the Hoboken yards of the appellant company, and on July JLOth, 1929, while so engaged was struck and killed by a train of five empty ears on track 2, pier 7, which had been cut loose from an engine and were drifting down an incline unattended by a brakeman or any other person.

Plaintiff brought suit for such death under the Federal act alleging negligence in his complaint, as follows:

1. Propelled the cars against decedent without warning which by custom he was entitled to have and expect.

2. Failure of reasonable care as the operation of such ears was intrusted to incompetent and inexperienced persons.

3. Failure to provide a safe working place and that switches were improperly constructed.

4. Failure to use proper care in that cars were equipped with brakes in improper condition.

5. Failure to have a person ride on end of car as was the custom.

6. Lack of reasonable care having due regard to safety of others lawfully upon the tracks.

Plaintiff had a verdict of $20,000 which, upon rule, was by this court reduced to $15,000, and judgment for that amount was entered.

From this the railroad company appeals urging as error admission of testimony of plaintiff's witnesses Kiessling, Kemp and Tamke, and further, that it was error to refuse to-direct a verdict.

Plaintiff first called a witness, Herzog, a foreman on a switch engine in the yard, but not connected with the movement of the five cars in question, who testified that at a distance of four hundred feet he saw the peril of the deceased and when the train of cars was within five feet of him he tried to attract his attention so that he could get out of the way and out of danger, but it was too late. He also testified that there was no custom or rule of the yard requiring a brakeman to ride a train of cars such as this that struck decedent. This same witness, on cross-examination, said that during his ten years of service in that yard it was the practice to cut off four or five cars to be shunted without having a man to ride them and give warning.

Plaintiff also called a witness, Harris, who was foreman of the floating drill engine from which the five cars in question were detached. He testified that it was “up to'' the discretion of the foreman as to whether a man should ride such a “drift,” that is, where the grade requires it or the cars are loaded with material that will be damaged by a hard impact, and he further testified that in his experience in that yard for thirteen years it had never been the custom to put a man on the front “where you shunt cars” such as was being done at the time Donohue was killed.

Thereafter the plaintiff called the witness Kiessling, who-testified that he worked for the defendant company in 1918 and had subsequently worked for the Pennsylvania, Lehigh Yalley, Erie and Central Railroads, and that he did not know what, if any, changes had been made in the yard in question since 1918. And he was asked and permitted to answer over objection and exception—

“Q. What is the ordinary procedure in case you were shoving five ears from, say track one, to track two, to which an engine was previously attached? A. Well, to have a man on the hind end. Q. Was that the practice followed by the various railroads on which you worked? A. Yes. Q. And was that the practice that you and your fellow workers, not only on the Lackawanna, but other roads pursued? A. Yes. Q. And on the various other roads which you have enumerated? A. Yes.”

Then plaintiff called a witness, Kemp, who for nine months in 1920 had worked for the defendant company, who was asked and permitted to answer, over objection and exception— "Q. Supposing, for instance, that on July 10th, 1929, you are on a train composed of five cars, and a locomotive was attached to those five cars, and it was desired to move those cars from one track to another location in the yards, what, if anything, was the practice pursued at the time you were in the various railroads to which you have referred? A. Well, that is according to the conditions, whether I was foreman, brakeman or groundman—which is the same as brakeman. Q. What would you do in relation as to whether or not you would put a brakeman on the car? A. If I was foreman it would be up to me. Q. What was the practice in the various yards as to what particular notice or warning or anything you would give to other people who might be along the track? A. Have a man on the cars to protect the man.” And further, plaintiff called the witness, Tamke, who worked for the defendant from 1914 to 1920 and who had also worked for the Erie, who, among other things, was asked the practice pursued in the Erie yards and also—

“Q. Just give us what practice you pursued when you were workng there [defendant company]—what the company pursued when you were working there in regard to shoving cars from one track to another? A. Where there is cars to be switched out in case of this kind, where there is four or five or more cars attached to an engine, I would pursue that whenever I was switching, whatever track I am switching these cars on, to find out if the track is clear, and everything is clear as possible, that there would be no damage to human life or anything else, then I would make sure to see further that there is a man riding these cars to protect whatever would be down on that track.”

An examination of the charge of the court reveals that this testimony of these witnesses, Kiessling, Kemp and Tamke, was referred to for the purpose of establishing negligence on the part of the defendant.

We think that the admission of the testimony of these witnesses was error and harmful.

What custom or practice other railroads may have had in their yards under like conditions seems to be immaterial.

No universal rule of care was attempted to be shown. Certainly the opinion of these witnesses was not evidential. Further, those of them who attempted to testify to any custom in the yard of the defendant referred their testimony to many years prior to the happening in question.

There was no proof of any such rule or custom existing and prevailing at the time of the happening, but in fact there was proof through plaintiff’s witness, Harris, that no such custom then existed.

We are constrained to think that there was harmful error in the admission of this proof and that there was no proof of negligence aside from it and, therefore, that the trial court erred in refusing to direct the verdict for the defendant.

We think the judgment under review must be reversed, with costs.


author: Pee Curiam.

text:
    HARRY A. SHAFER, TRADING AS SHAFER REALTY COMPANY, PLAINTIFF-APPELLEE, v. BERG EMBROIDERY WORKS, DEFENDANT-APPELLANT.
    Submitted May term, 1931
    Decided September 28, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the appellant, Louis Stein.

    Eor the appellee, John H. Sheridan.

   Pee Curiam.

This is an appeal from a judgment upon verdict at Hudson Circuit to recover real estate brokerage fees under a contract in writing.

The contract is rather unusual. It’s pertinent provisions are: “And in consideration of jour listing and efforts to procure a purchaser the undersigned hereby warrants that he * * * is the owner of the property aforementioned and hereby agrees to pay you a commission at the rate shown on the schedule herein * * * said commission due and payable immediately whenever a purchaser for said property, or any part thereof, is procured by you, niyself or any other person or whenever said property * * * is sold * * * during the term of this contract; or within three months after its expiration to any party or parties with whom you, myself, or any other person have been negotiating with directly or indirectly during the life of this contract.”

This contract created an exclusive agency between the plaintiff and the owner of the property, as follows: “In consideration of the sum of one dollar paid to me * * * I hereby give you sole and exclusive authority to sell or exchange the property * * * for a term of one hundred and eighty (180) days and further agree that the exclusive agency shall not terminate at the expiration of such period unless I notify you in writing to that effect.”

Now, it appears that it is admitted that the exclusive agencj'' feature of this contract was terminated by its terms through a notice by letter to that effect by the owner to the agent dated June 1st, 1938.

It also appears to be admitted that concurrently with such notice of termination of exclusive agency with the plaintiff the owner entered into an exclusive agency with the J. J. Kislak Company.

The conditions of sale were different in these respects; the authorization to the plaintiff to sell was at $80,000, subject to a mortgage of $33,000 at six per cent., due January 6th, 1930—cash $48,000, and the authorization to Kislak Company was $80,000, subject to the same mortgage of $33,000, cash of $35,000 and the balance upon a second mortgage. Within six days thereafter the Kislak Company procured the Western Realty Company as a purchaser, and the next day, June 8th, 1938, the defendant entered into a contract with that purchaser for a sale of the lands upon the terms contained in the contract with the Kislak Company and paid to that company the commissions for the sale under its contract.

The present action was then instituted and resulted in a verdict for the plaintiff-appellee and judgment thereon from which the defendant below appeals.

Now, the facts seem to be that the plaintiff after entering into the aforesaid contract brought the matter of sale of the lands to the attention of the Western Realty Company through its president and he said he was not interested at the price and terms at which the property was offered. There seems then to have been negotiations between the plaintiff and the owner and Western Realty Company by which the terms of sale could be varied so that the sale might be consummated at the price of $80,000, subject to the mortgage and $5,000 cash paid and a contract entered into by which the payment of the balance of cash and the taking of title would be postponed for one year. This seems to not have been accepted or agreed upon at the time of the termination of the contract on June 1st, 1928.

The appellant-defendant seeks to set aside the judgment upon the following grounds:

1. Because it was error in the trial court to refuse to nonsuit.

This appears to be upon the ground that the proofs did not show that the plaintiff procured a purchaser ready, able and willing to purchase. Under the clear terms of the contract we think this was not necessary to be shown. The contract for sale was made within the period of three months of the termination of the contract with the plaintiff and under its express and explicit terms he was entitled to his commissions if within that period the property was conveyed to any party with whom he, the owner, or any other person had directly or indirectly negotiated its sale during the life of the contract of the plaintiff.

We think it must be conceded from the proofs that the plaintiff had so negotiated, unsuccessfully, perhaps, during this period.

We think, therefore, the motion for nonsuit was properly denied.

2. That it was error to deny the motion for direction of verdict in favor of the defendant below.

The denial of the motion for nonsuit being justified, this, motion and its denial was also justified.

3. This ground is that the trial judge refused to charge “before the jury can find for the plaintiff they must find that the plaintiff succeeded in procuring a purchaser before May 29th, 1929, able, ready and willing to purchase the property under the terms set forth in the brokerage agreement.”

It was not error to so refuse to charge because such instruction was absolutely opposed to the terms of the brokerage agreement before referred to.

4. The remaining ground for reversal is that the trial court erred in refusing to charge the following request of the defendant: “That it was the duty of thevplaintiff, if he had at any time negotiated with the Western Realty Company, to inform the defendant of such negotiations, and if the jury finds that he did not inform the defendant then he is not entitled to recover.”

There are two answers to this, both against the error alleged.

Eirst, the proofs .show that the defendant must have known of the negotiations because of the plaintiff’s submission of the offer of the Western Realty Company to purchase upon different and postponed payments above referred to, and

Second, there is nothing in the brokerage agreement suggesting or requiring such notice.

The judgment under review should be affirmed, with costs.


author: Per Curiam.

text:
    SAMUEL ZAGERMAN, PLAINTIFF-APPELLEE, v. HERMAN FENNING, DEFENDANT-APPELLANT.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the defendant-appellant, Joseph C. Paul.

    For the plaintiff-appellee, Silverman & Abromson and Jacob IF. Silverman.

   Per Curiam.

This is an appeal from a judgment entered November 14th, 1930, in the Second Judicial District Court of Essex county, pursuant to a report of Beferee Samuel Ferster, to whom the case was referred September 22d, 1930, by Judge Minisi. The reference was to examine, determine and report. The findings probably had the effect of a verdict. Harper Machine Co. v. Sinclair, 76 N. J. L. 99. Such, at all events, would be the effect of a similar reference from this or the Circuit Court. Buie 99.

Further, the parties, through their attorneys, agreed to be bound by the determination and report of the referee, and it is first urged upon us that the agreement precluded an appeal. However, we do not pass upon the question because not necessary to a decision of the case.

On December 13th, 1930, the execution on the judgment of November 14th, 1930, was returned unsatisfied and thereafter and on December 19th, 1930, an order was entered extending the time for the defendant to perfect his appeal until December 30th, 1930.

Section 313a of the District Court act, as amended 1 Cum. Supp. Comp. Stat., p. 983, requires that a notice of appeal shall be given to the adverse party,' or his attorney, within twenty days after the entry of the determination of the District Court sought to be appealed. Manifestly, this statutory requirement was not complied with. Within twenty days from November 14th, 1930, the notice of appeal was required, and since it was not given the defect could not be supplied by a subsequent order of the District Court. The right to appeal exists by statute and not by grace of the court.

The appeal will be dismissed, with costs.


author: Peb. Cuhíam.

text:
    ANTHONY MACCHIA, BY ARSENIO MACCHIA, HIS NEXT FRIEND, AND ARENSION MACCHIA, PLAINTIFFS-RESPONDENTS, v. THE PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the defendant-appellant, Wall, Haight, Carey & Hart-pence (William 8. Shaw, of counsel).
    For the plaintiifs-respondents, Joseph Rosthal and William L. Rae.

   Peb. Cuhíam.

This is an appeal from a judgment for $2,750 in an action brought under the Federal Employers’ Liability act.

The plaintiff operated a sand drier in the defendant’s Greenville yard. The sand was used in the sand boxes of engines used in interstate commerce. He was under a duty to check in at eleven p. m. To get to the place of work lie entered by Gates avenue past the yardmaster’s house, and then two possible courses were open to him: he could cross the track or go through a tunnel about three hundred feet east of the place where the accident occurred.,

The tunnel was marked and the men were warned by signs in English and Polish (plaintiff’s language) not to cross the tracks but to use the tunnel. The plaintiff appears not to have known of the warnings and the tunnel, although he had worked in the yard for two months, so he waited for a standing freight, which was on one of the tracks between him and his place of work, to move, and when it did not move he started to climb over it, with the result that a sudden and unwarned movement removed some of the toes of his right foot.

Plaintiff’s work partook of an interstate character. He was injured in the employer’s yard by an unexpected and unwarned car movement. Instead of choosing the designated way by the tunnel, he chose to go across a standing train. This is simply a case of an employe on the employer’s premises, on his way to work, taking not the course designated which was safe, but climbing between freight cars—a somewhat dangerous course to pursue.

The proofs, in their most favorable aspect, tend to show that the plaintiff did not know of the tunnel, and that other employes crossed the track. There were no proofs that there was a custom to pass over standing freight cars. Such cars would, of course, be subject to movement and although warnings might be given of an intended movement there is nothing to show that such warnings were intended for the guidance of employes climbing over the cars on their way to work, since the proofs show that there was another and safe way provided.

When the employer provided a safe means to cross the tracks, in order that the employe might reach his work, the ignorance or indifference of the employe cannot impose liability upon the employer. Further, we think that employes who choose to disregard instructions and on their own initiative climb between freight cars when another means of reaching their place of work was provided, are not entitled to rely upon a custom to give warning of train movements. Of course, an employe engaged in working around or on the cars is entitled to rely upon such a custom. McNally v. Pennsylvania Railroad, 88 N. J. L. 277.

The judgment will be reversed.


author: Beeey, Y. C.

text:
    Carmelinda Sturchio and Eugenio Sturchio, her husband, complainants, v. Salvatore D’Auria et al., defendants.
    [Decided September 24th, 1931.]

      Mr. Egidio W. Mascia and Mr. Carl Olsan (Mr. Ralph E. Lum, of counsel), for the complainants.

      Mr. Nicholas La Yecchia, for the defendants.
   Beeey, Y. C.

The bill is by a wife and her husband against the father of the wife and the Prima Banca Italiana, a private bank owned and controlled by him, and seeks an accounting of a dowry fund created by the father on the occasion of his daughter’s marriage on November 31st, 1906, the removal of the father as trustee of said fund and the appointment of a new trustee. The material facts in the controversy are not in substantial dispute. The establishment of the dowry fund and that the complainants are entitled to an accounting is admitted, but it is claimed such accounting was never demanded or refused, and attached to the bill of particulars filed herein is a statement of the account and the real controversy concerns its sufficiency.

The defendant Salvatore D’Anria is an Italian banker, maintaining banking houses in Newark, New Jersey, and Naples, Italy, and is a man of substance and prominence in the community in which he resides. On the occasion of the marriage of his daughter, Carmelinda, bn November 21st, 1906, by a contract in writing in the Italian language, he sets up a dowry in the sum of $13,000 which, in effect, was a trust fund, the income upon which was to be paid to his daughter semi-annually during her life, the corpus to be disposed of upon her death and in the event of her dying childless, one-half of the principal was to revert to the donor. The pertinent portion of said agreement, as translated, is as follows:

“And as it has not yet been decided how to invest said amount permanently, and as the future couple have not yet decided whether they will continue to reside in the United States of America or return to Italy, there has been agreed between the appearers herein: Mr. Salvatore d’Auria and Miss Carmelinda d’Auria, assisted by her mother, Colomba Gonnella, that said amount of 13,000 dollars will be deposited temporarily, under the dowry lien, in the name of said Miss d’Auria, in the Prima Banca Italiana in said city of Newark, of which bank the dowry giver, Mr. Salvatore d’Auria, is the owner duly recognized by the laws of the State of New Jersey, and Miss Carmelinda d’Auria will receive on said deposit interest at the rate of 6 per cent, per annum, payable every six months.
“Said money, thus deposited, may be withdrawn from said bank to be invested elsewhere under the dowry lien, only when said Miss Carmelinda d’Auria may deem it convenient to request so, or when said bank deems it convenient to pay out said deposit.
“It has been agreed also between said Salvatore d’Auria, on one hand, and his daughter Carmelinda, on the other, that when said money will be finally invested, the appearer, Mr. d’Auria will have the right to take care directly of depositing said amount in the Ledger of the Public Debt of the Kingdom of Italy, in the name of Carmelinda d’Auria, subject to the regular dowry lien, in accordance with the provisions of the Italian law; or said dowry beneficiary will buy real property in Italy for said amount under the dowry lien also ,in accordance with said laws. In this second case, however, the said appearer, Salvatore d’Auria, reserves for himself the right to approve in writing the purchase made by his said daughter Carmelinda in order to give full validity to her future acts.
“And finally it has been agreed that in case one of the couple dies before the other without there being any children, the estate of the deceased one shall be settled in accordance with the laws that are in force in the state in which the inheritance proceedings will be started. In case, however, that said Carmelinda d’Auria should die first without leaving any children, then one-half of the amount of the dowry established as above must be given back to the dowry giver, Mr. Salvatore d’Auria or to his heirs, and with respect to the other half, Miss Carmelinda may dispose of same by last will and testament or leave the disposition of same to the provisions of the law.”

Immediately after the marriage of the complainants and pursuant to the terms of the dowry agreement, the sum of $13,000 was deposited in the D’Auria bank in Newark in the name of the daughter, where it remained until July 11th, 1911, on which date, with the accumulations of interest thereon, it was deposited in the Merchants National Bank of Newark, in the name of “Salvatore D’Auria, Personal.” The initial deposit in this bank was the sum of $17,050, which comprised the original $13,000 plus interest at the rate of six per cent, per annum from the date of the creation of the dowry to the date of such deposit. It is claimed by Mr. D’Auria, however, that he was not liable for interest on the fund for the period between December 23d, 1909, and July 12th, 1911, because, as he claims, in December, 1909, he told the complainants that the deposit of this fund in his bank was to have been temporary only and that he could not continue to pay interest thereon if it longer remained there, and that it was then agreed between the parties that he should not thereafter be liable for interest pending its final investment. This is denied, however, by the complainants. Notwithstanding this alleged agreement the full amount of the principal with accumulations at the rate of six per cent, per annum was deposited in the Merchants National Bank, although the defendants claim that of such deposit only $15,461 properly belonged in said dowry account. The additional sum to make up the initial deposit was deposited apparently against the contingency of Mr. D’Auria’s being held liable at the rate of six per cent, interest for the full period that the fund remained in his bank. Thereafter, the fund, until its final investment as hereafter mentioned, remained on deposit in tiie Merchants National Bank at three and one-half per cent, interest, payable semi-annually, and Mr. D’Auria, at the end of each succeeding six months’ period, made additional deposits in the account of two and one-half per cent. on the semi-annual balances in order to bring the income on the fund up to six per cent. In 1914, Mr. D’Auria went to Italy and remained there until February of the following year. When he left he gave the complainants complete power of attorney and under that power the complainants, on August 1st, 1914, shortly after Mr. D’Auria’s departure, withdrew the sum of $20,000 from this account in the Merchants National Bank, took it to the D’Auria bank and there kept it in a separate safe, not mixed with the assets of the bank, until Mr. D’Auria returned from Italy. Then, upon his discovery of what had happened, and pursuant to his direction, the money was returned and redeposited in the Merchants bank on February 25th, 1915. In the donor’s account no interest is allowed on the fund during the period when it was withdrawn from the Merchants bank. According to that account the fund, on June 15th, 1916, amounted to $18,602.80, although actually at that time there was $19,967.88 in the account, the surplus representing disputed interest, additional deposits having been made to the account by the donor to cover the disputed interest up until that time. On May 6th, 1916, Mr. D’Auria purchased for this account Italian Government External Dollar Bonds bearing six per cent, interest, to the amount of $20,269.74, at par, adding to the fund $301.86 of his own money in order to make up the necessary purchase price. The fund remained thus invested until May 31st, 1917. In the meantime, the following correspondence passed between the parties:

“Newark, New Jersey.
February 13, 1917.
Dearest Father,
As we want to take advantage of the present advantageous condition of the exchange, we would like to invest in the new Italian loan, the money you have had in your hands since the marriage; capital and interest included.
In investing said money you will follow the procedure that seems most proper to you to guarantee the non-transferability of the investment in accordance with the provisions of the marriage articles.
Trusting that you will comply with our wishes mentioned above, we beg to remain,
Your sons,
Ebmalinda D’Aueia, Eugenio Stubchio.”
February 13, 1917.
Dr. Eugenio, Ermelinda Sturchio,
My dear children:
Replying to your letter, I beg to inform you that I am willing, as I always was, to comply with my promises. Regarding the terms upon which I am willing to effect the investment of the money in question, same will be explained to you orally by Mr. Severio Sica. Affectionately,
Your father,
Salvatoke D’Aubia.”
“Newark, New Jersey,
April 18, 1917.
Dearest Father:
In agreement with my husband, and for our exclusive risk, I authorize you to invest in the last 5% Italian National Doan, all the money, capital and interest deposited with your bank, which money is due me as dowry, given by you at the time of my marriage.
I respectfully and affectionai ely kiss your hand, and remain Your affectionate daughter,
Ebmalinda D’Aubia Stueciiio.”’

In pursuance of this correspondence Mr. D’Auria thereupon purchased Italian Government five per cent. Internal Lira .Bonds to the amount of $19,214.20, the amount to which, according to Mr. D’Auria, this fund was entitled at that time, and which, converted into Italian money, represented 132,571 lira. The market price of these bonds at that time was 89 and with this fund bonds of the par value of 149,000' lira were purchased. They were placed in a large envelope marked “Consolidate Italiana, Ermalinda D’Auria-, Sturchio.” At the same time bonds of the same kind' were purchased to an amount representing the difference between the interest paid and credited on the dowry fund and interest at six per cent, computed from December 23d, 1909, and they were placed in a similar envelope marked “Consolidate Italiana, Ermalinda D’Auria Sturchio, c/o Salvatore D’Auria.” Both packages of bonds were thereafter kept in the Merchants National Bank in a safe deposit box and coupons were clipped therefrom periodically and the proceeds reinvested in the same kind of bonds until the last interest period preceding the final hearing in this cause. The bonds now representing this fund amount to 323,400 lira and were produced in open court at the final hearing and tendered to the complainants.

Although there is some dispute between the parties on this point, it seems clear that the actual payment of interest on this fund periodically to the complainants was waived by them and that it was by their consent that the fund was allowed to accumulate until its final investment in the Italian bonds, and that the accumulations of the fund by reinvestment of the interest accruing periodically has also been by their acquiescence and consent since such investment. But irrespective of what had pássed previously, it would seem that the letters of February 13th and April 18th, 1917, constituted a waiver of the actual payment of such interest and the approval of the accumulation of the fund and its investment in the Italian bonds. With respect to the rate of interest to which the complainants are entitled, I think it must be conceded that they are entitled to six per cent, interest during the whole period preceding the final investment of the fund in Italian bonds, excepting, however, that portion of the period during which the fund was withdrawn from the Merchants National Bank by the complainants, that is, from August 1st, 1914, to February 25th, 1915. For this period no interest will be allowed. The agreement respecting such interest, alleged to have been made in December, 1909, is denied by the complainants, and it is clear that there was no express assent to Mr. D’Auria’s proposition and no implied consent can be inferred from the circumstances. That the alleged agreement was not, to Mr. D’Auria’s knowledge, complete, is indicated by his periodically adding to the fund upon its transfer to the Merchants National Bank and thereafter, sufficient to bring the income up to six per cent. Assuming the fund, therefore, to have been represented by the accumulated bonds deposited in both envelopes above referred to, the only remaining question is as to whether or not those funds and the accumulations were properly invested in such bonds. Reference to the above quoted portion of the agreement indicates clearly, I think, that the deposit of the fund in the D’Auria bank was intended to be temporary only, and that ultimate investment of the fund was to be in Italian bonds or real property in Italy, depending upon whether or not the married couple remained in this country or retuned to .Italy to live. If the former, the agreement provided “Mr. D’Auria will have the right to take care directly of depositing said amount in the Ledger of the Public Debt of the Kingdom of Italy in the name of Carmelinda D’Auria, subject to the regular dowry lien in accordance with the provisions of the Italian law.” It is around this clause of the agreement that the main dispute centers. Complainants claim that the investment of the fund in the Italian bonds was not in accordance with this provision of the agreement, but in view of the specific authority for such investment as contained in the letters of February 13th and April 18th, 1917, it does not lie in their mouths to deny the propriety of such investment. It is claimed, however, that as these bonds are bearer bonds, they are not “subject to the regular dowry lien in accordance with the provisions of the Italian law” but according to the opinion of Dr. Eagano, an Italian lawyer whose expert opinion as to the requirements of the Italian law I accept, all that is necessary to effect complete compliance with this provision of the agreement and the Italian law is that the bonds now in hand be presented to the proper authorities in Italy for registration in the name of the dowress and exchanged for registered bonds, and the filing of the agreement constituting dower. It is a mere question of mechanics. This the defendant D’Auria is willing to do. His failure to do so up to this time constitutes, in my opinion, his sole violation of the terms of his agreement, and under the circumstances this is entirely excusable. There is no doubt but that the complainants are entitled at this time to receive the accumulated income on the original fund and it is not now necessary that the donor should have the bonds representing such income exchanged for registered bonds in the name of the dowress, but it may be done by agreement of the parties.

In my opinion, this whole controversy arises because of the fall in the value of the Italian lira, the complainants having decided that they prefer American dollars to the currency of their native country. They desire to pass the loss, if any, to the generous donor of the fund, but this they will not be permitted to do. In passing, it should be noted that in none of the transactions concerning the fund and its investment has Mr. D’Auria or the D’Auria bank reaped one cent of profit; on the contrary, some of the transactions have been at a loss to the defendants. The bill will be dismissed.


author: Berry, Y. 0. (orally).

text:
    Gabriele Giordano, complainant, v. The Asbury Park and Ocean Grove Bank, a body corporate of New Jersey et al., defendants.
    [Decided September 29th, 1931.]

      Mr. Peter B. Adubato (by Mr. Frank Metro), for the complainant.

      Messrs. Durand, Ivins & Carton (by Mr. James D. Carton), for the defendant Asbury Park and Ocean Grove Bank.
   Berry, Y. 0. (orally).

The object of this bill is to recover property formerly owned by the complainant and which he claims he was deprived of through a series of fraudulent transactions, or at least transactions which he alleges to have been fraudulent. The present controversy arises out of the following state of facts:

In May, 1921, the complainant sold certain machinery to one Aquileno and took his note of $350 in payment therefor. This note he had discounted at the defendant Asbury Park and Ocean Grove Bank. When it came due the note was not paid by the maker and was protested for non-payment. Thereafter, at the request of the complainant who was endorser on the note, the Asbury Park and Ocean Grove Bank brought suit against the maker, and the complainant as endorser, and obtained a judgment for $356.05 in one of the district courts of this county. The complainant in that suit was unable to obtain satisfaction of its judgment, although execution was issued thereon against the maker of the note, and at the request of the complainant in this suit the bank thereafter took a new note from the complainant in payment or settlement of the judgment obtained on the Aquileno note. That note was in some sum slightly in excess of the judgment obtained on the original note. As collateral security for the note the complainant executed a mortgage on certain real estate which he owned in the city of Asbury Park. At the time he executed the mortgage there was, according to his statement here, a mortgage of $1,100 on the property. The collateral mortgage was given to the bank but it was not recorded, apparently by arrangement with the complainant. Subsequently and without any notice to the bank, the complainant executed additional mortgages on the same property, bringing up the total mortgages on the property to approximately $4,000. However, the bank carried this new note for some considerable period of time and until the early part of 1925, when, the note not having been paid, suit was brought against the complainant by the bank and judgment entered in the sum of $420.70. Execution was issued on that judgment sometime later, my recollection is that it was in the early part of 1927, the judgment having been entered in 1925. This execution was delivered to the sheriff of Monmouth county and he levied on other property, real estate owned by the complainant in Asbury Park and which is the subject of the present suit. That real estate consisted of a plot of ground one hundred and seventeen by one hundred and twenty-two and had erected thereon several buildings, I believe two or three single-family houses and one two-family house. After he levied on this property the sale under the execution was advertised for March 28th, 1927, and then at the request of the complainant, the sale was adjourned from week to week by the sheriff until May 13th, 1927, at which time the property was sold by the sheriff at the usual place of holding sheriff’s sales in Asbury Park, and was purchased by the plaintiff in the law suit for $100. The bank held this property until September, 1928, at which time the property was sold to the defendants Strada and Rowe for $14,000. The basis of the relief asked for in the present complaint is that the plaintiff in the law suit which resulted in the judgment under which the sheriff sold, that is, the Asbury Park and Ocean Grove Bank, and the sheriff and the bank’s attorney conspired to defraud the complainant and to hold the sheriff’s sale at a time and place of which the complainant was not notified and surreptitiously sold the property at an unconscionable price to the plaintiff in that law suit. The complainant complains that at the time the property was sold it had a value of from thirty to thirty-five or possibly forty thousand dollars and that it was encumbered only by mortgages aggregating approximately $5,000.

If these were the only facts which were presented to the court the complainant would undoubtedly be entitled to some relief, but there are other circumstances in connection with this affair which should be mentioned. There is no doubt in my mind but that the sale was regularly held and there was nothing unusual in the sheriff’s procedure except possibly the fact of the numerous adjournments which were granted by the attorney for the plaintiff in the law suit which had resulted in the judgment, and these adjournments were allowed apparently as a favor to the defendant in that suit. During the period in which that sale was advertised the complainant here made an application to the chancellor to restrain the sale. In fact, he made three applications as I understand it from the testimony, all of which were denied by the chancellor, and complainant has stated that the chancellor filed an opinion denying relief. After that denial the complainant entrusted his interests to a man by the name of Joe Scott, upon whom he relied thereafter to protect his interests from sale and upon whom he apparently relied to pay the claim of the Asbury Park and Ocean Grove Bank, but who has neither paid the claim, or, apparently, done anything else to protect the complainants interests There was some suggestion that the complainant had relied upon Mr. Carton who represented the bank and that because of that reliance he did not attend the sheriff’s sale at which this property was sold. There is absolutely nothing to this contention. There is no evidence at least from which a conclusion could be arrived at to the effect that Mr. Carton had made any representations to Mr. Giordano upon which he could or did rely. The only thing that Mr. Carton could probably be criticised for was perhaps in being too lenient with the complainant.

After the denial of the relief by the chancellor, the complainant, not being satisfied with the chancellor’s decision, took an appeal to the court of errors and appeals and there the chancellor’s decision was affirmed. Not being satisfied with that, it appears that he brought suit against the As-bury Park and Ocean Grove Bank in the law courts alleging defamation of character or some other ground for damages, and that that suit was tried in one of the local county courts, apparently relief denied and an appeal taken to the supreme court and the action of the court below affirmed, and then a further appeal taken to the court of errors and appeals, which court affirmed the supremo court’s action. It appears that the last appearance in the court of errors and appeals was in November of 1927 or thereabouts, at which time, according to the complainant’s testimony, Chief-Justice Gum-mere suggested that the bank might still be willing to turn back the property to him provided he paid what was due it. It further appears that this suggestion was acceded to by counsel for the bank, and it appears that thereafter Mr. Carton, acting for the bank, submitted to Mr. Giordano a statement of the amount which would be required to redeem the property. That statement, or a copjr of it, is attached to the answering affidavits in this cause and shows that at that time the bank had spent, either by reason of its judgment, for costs, taxes and counsel fees, and in payment of the costs of foreclosure of a prior mortgage and the purchase of the property at foreclosure sale, a sum totalling about $6,222; and that in addition thereto the bank claimed interest on the original judgment. That statement was submitted to the complainant under date of November 4th, 1921', I believe, and the complainant was told that he could redeem the property at any time by pajunent of that amount on or before December 31st of that year. No attention whatever appears to have been paid to this communication by the complainant and the bank heard nothing more from him in reference to the matter. Subsequently and in September of 1928, the bank, after having the property appraised, sold it to the defendants Strada and Rowe. In the meantime, however, the bank had been obliged to take up several other mortgages on the property, which at the time of the sale brought their total investment in the premises to something over $11,000. They had in this period of their ownership collected slightly over $400 in rents from the property also. Since Mr. Strada and Mr. Rowe purchased the property they have spent on it a total of some $3,200 in repairs.

Now complainant asks that the original sale by the sheriff under the law judgment be set aside; that the sale in the foreclosure proceedings be set aside, and that the sale from the bank to Strada and Rowe be set aside; that an account be taken of the rents, issues and profits of the premises since the first sheriff’s sale, both from the bank and from the purchasers from the bank; that the present owners of the property be directed to reconvey the property to the complainant and for necessary restraint in the meantime. This bill was filed on April 27th, 1930. It would appear from the record, therefore, that from November 4th, 1927, until April '27th, 1930, nothing had been done by Mr. Giordano toward redeeming the property by payment to the bank of its ex-, penditures in connection therewith. That, however, is not quite correct, because before the present bill was filed, I should say probably two months before the present bill was filed, Mr. Giordano, who has acted all through this controversy as his own solicitor until to-day when counsel has appeared in court for him, handed me a bill and a proposed order, the bill making the same parties who are defendants in this suit, defendants in that suit, and I believe some other parties also. After having read the bill, which was so in- ■ artistically drawn and combined so many alleged causes of action, both at law and in equity, I advised M r. Giordano to employ counsel to redraft it. It was redrafted, apparently, with some assistance from some counsel, and when it was finally presented on April 27th an order to show cause was issued thereon, and on the return day of that order, in view of all the circumstances, the court deemed it best to bring the matter on for final hearing in order that the rights of all the parties might be determined in this suit. That hearing has now been had.

Although there is nothing before the court to require it, the defendant, Rowe, has accounted for the property so long .as it has been in his possession or ownership, and, of course, in that account has accounted for his partner, Mr. Stracla, but there is certainly nothing in the whole proceeding which has afforded any basis for any relief for the complainant against these two defendants. They purchased the property • apparently honestly and innocently and without notice ot any rights which the complainant may have had therein. They paid a fair value for the premises, they having been appraised at $16,500 by one set of appraisers and $15,500 by another appraiser, shortly before this sale was consummated. Therefore, so far as these two defendants are concerned, it is quite plain that there is no basis for any relief against them and certainly the bill must be dismissed as to them.

The right to relief against the bank depends entirely upon whether or not any fraud or concealment was practiced upon the complainant either by or for the defendant bank. I think it may be conceded that a sale of the property for $100 at the time of the first sheriff’s sale, the equity at that time being between $5,000 and $7,000, was such a sale that, if proper proceedings had been taken then to have protected' the rights of all the parties, that sale might have been set-aside, because the sale price was unconscionable; but mere-inadequacy of price, ordinarily, is not ground for setting-aside a sale when, in other respects, the sale has been fair and conducted according to law. In the present case there is-absolutely nothing to indicate that the officers of the law entrusted with this sale were prompted by any considerations-except the obligation resting upon them to perform their duties and carry out the mandate of the court. The sales-were not fraudulent and the foreclosure sale particularly has already been confirmed by this court. The bank was-the purchaser at that foreclosure sale as it was under the-original sale under the law execution, so that whatever the-rights of the bank or any of the parties were prior to the-foreclosure sale, certainty at that time the bank succeeded to a perfect title to the premises. Since then there has been no denial by the bank of any of Mr. Giordano’s right, if' he had any right, to redeem the property, and the court of' errors and appeals, as I understand it, did not decide that he did have such right, but suggested, as I take it, ex bene~ valentía,, that the bank might permit a redemption, rather than go through the formalities of setting aside the sale-such as Mr. Giordano requested. The suggestion apparently was acceded to by the bank, but Mr. Giordano did not take advantage of the bank’s offer, preferring apparently to continue his litigation. His delay of over a year or a year and' a half or such a matter, after being afforded the opportunity to redeem, during which time the property had been sold' by the bank, in my judgment now precludes him from any relief at all, if he ever was entitled to any, and I shall' therefore dismiss the bill of complaint as to all of the-defendants.


author: Backes, Y. C.

text:
    Richmond Building and Loan Association, a corporation of New Jersey, complainant, v. Aurora Health Farm Corporation et al., defendants.
    [Decided October 2d, 1931.]

      Mr. Philip J. Schotland, for the motion.

      Messrs. King <& Vogt, contra.

   Backes, Y. C.

To the bill to foreclose a $125,000 building and loan mortgage, the mortgagor defendant, the corporation, answers that $12,500 was retained from the loan “as a premium or bonus thereon” and that $15,000 was deducted “as a bonus for said loan,” intending to plead usury.

The corporation mortgagor was a member of the complainant building and loan association, and under chapter 65, laws of 1925 (P. L. 1925 p. 195 § 16), the premium was lawfully deducted.

The mortgagor corporation cannot plead usury. Comp. Stat. p. 5706; Ovsiovitch v. Federal Tool and Manufacturing Co., 91 N. J. Eq. 744; reversing, Ibid. 85. The answer is frivolous in these respects.

Two of three individual defendants who joined in the bond secured by the mortgage answer setting up derivatively the defenses pleaded by the mortgagor, and they must go down as accordingly frivolous. Freese ads. Brownall, 35 N. J. Law 285.

The motion is to strike out the answers in their entirety because “they are sham as to fact and frivolous in law.”

The answers deny the breach of the covenant upon which the bill counts to accelerate the due date of the mortgage, the non-payment of monthly dues on shares and interest and their arrearages for three months.

The denial must be taken as true on the motion to strike as frivolous, and on motion to strike as sham there is nothing before me one way or other as to the fact.

The notice is too broad. It stands in part in lieu of the former exceptions to answer for impertinence, and in part rests in the inherent power to strike false pleading, and in combination it must stand as a whole or fall if any ground is not well taken.

The motion is denied.


author: Pee Oubiam.

text:
    LUDWIK KUZIORA AND MARY KUZIORA, PLAINTIFFS, v. GARFIELD-PASSAIC TRANSIT COMPANY AND PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANTS.
    Submitted May term, 1931
    Decided September 28, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the rule, Samuel Heller.

    Contra, Alex M. MacLeod and William F. Vosseller.

   Pee Oubiam.

The plaintiffs were passengers in an auto bus of the defendant Garfield-Passaic Transit Company. As such bus was crossing the tracks of the Public Service, at Fairlawn, Bergen county, a trolley car of the latter company came in collision with the bus, overturning it.

Both plaintiffs claimed injuries and brought suit, a trial of which resulted in verdicts in favor of each plaintiff and against both defendants; that in favor of: plaintiff Ludwick is for $2,000 and that in favor of plaintiff Mary, is $100. They have a rule to show cause why such verdicts should not be set aside as inadequate.

Turning first to the verdict of the wife, Mary, we think it is not liberal but on the other hand it certainly is not so inadequate as to permit us to set it aside.

There is much doubt from the proofs as to her injuries. She claims she had pain in her face, right side and arm. At the time of the happening she went to the hospital with her husband but did not stay. She seems not to have been treated there.

The next morning she went to work in a handkerchief factory in Passaic, where she was regularly employed, and worked for two hours, when she says she felt sick and quit work. Later she went to a doctor who treated her for her alleged ailments. This doctor does not testify to any objective signs of injury. She was away from work one week; her doctor’s bill was $45 and she was completely cured and fully recovered. Her loss of wages was $25 which, with her doctor’s bill of $45 makes $70, and the verdict of $100 gave her $30 for pain, &c.

We are inclined to think that the jury concluded that her injuries and ailments were grossly exaggerated. In so concluding we think they were fully justified and that under all the circumstances the verdict should stand.

The plaintiff Ludwick suffered a comminuted spiral fracture through the head of the humerus, intercapsular, of the right arm. .

Immediately after the happening he was taken to the Barnet Memorial Hospital in Paterson and the fracture reduced. The surgeon was a Dr. Mendelsohn. The arm was put in what is known as an aeroplane splint and plaster cast. In eight or nine days he was discharged from the hospital but continued under the care of Dr. Mendelsohn. The cast was removed about seven weeks thereafter and then massage and electric treatments were given and continued until a short time before the trial, which took place November 5th, 1930. The accident happened July 21st, 1929.

At the trial Dr. Mendelsohn testified that the treatments had been discontinued because nothing further could be accomplished by them and that the result was that the plaintiff had a lessened power of “grip” in his right hand—restricted motions of the arm and, summed up, twenty-five to thirty per cent, loss of use of the right arm. A Dr. De Yoe, who also testified as a medical expert, for the plaintiff, testified to practically the same thing but further said that the fracture had healed and there was a perfect union, &e., but said also that plaintiff could not perform any work requiring heavy lifting; that he had a. thirty per cent, loss of the use of his arm and that in his opinion this would not improve. A Dr. Sawyer was produced by the defendants whose testimony was undoubtedly intended to show that the plaintiff had made .a complete recovery. This testimony, however, is equivocal and very unsatisfactory and by no means convincing.

Plaintiff claims he has been unable to work from the time of the injury. He was employed in a dyeing plant as a laborer at from $25 to $28 per week and his work was to lift, with another, heavy rollers weighing from two hundred .and fifty to four hundred and fifty pounds. He says he has not been able to life an ordinary pail of coal with his right arm. An investigator of the Public Service testified that in March of 1930 ho saw plaintiff lifting and carrying household furnishings and utensils and that he then offered him work hut he refused saying that he had a suit against the Public Service and his lawyer advised him that if he went to work he would get nothing in his suit.

This plaintiff denied. The testimony of this witness is neither satisfactory nor convincing as to the work that plaintiff was doing nor the weight of the loads he was lifting or carrying. On the other hand there is no proof whatever upon the part of the plaintiff that he made any effort to secure ■employment either at his former place of work and work of the character that he had done before the injury or any other •class of work, nor that he had made any effort whatever to determine whether he could lift any weights except that he had tried to lift pails of coal and could not do so.

Dr. Mendelsohn testified that his bill for services against plaintiff from the time he was discharged from the hospital had amounted to $720, the hospital bill was $61, making ■a total of $781.

Plaintiff was in the hospital eight or nine days and thereafter his arm was in splints and a cast for seven weeks.

Counsel for plaintiff estimated that up to the time of trial he lost wages of at least $25 per week for sixty-six weeks, amounting to $1,650, which together with the items «of $781 above, amounts to $2,431.

To this it is urged there must be added something for pain and suffering and also for the permanent loss of twenty-five to thirty per cent, of function and use of the right arm.

We are inclined to think that here, as in the ease of the plaintiff wife, the jury was placed in a position where they had a very great and, perhaps warranted, suspicion that, the plaintiff’s injuries and disablement were highly colored' and overdrawn.

It is to be further noted that neither Dr. Mendelsohn nor Dr. De Yoe assign any reason why the “grip” in plaintiff’s • hand has been lessened by the fracture.

The jury saw the witnesses and we have not had this-opportunity. They evidently discounted tremendously the-testimony of the plaintiff and his witnesses.

This was their right and prerogative.

Under the proofs we do not feel warranted in casting; aside the result they reached.

The rule will be discharged, with costs.


text:
    NINA M. WORTHINGTON ET AL., PLAINTIFFS, v. CHARLES CLARK ET AL., DEFENDANTS.
    Submitted May term, 1931
    Decided September 29, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the rule, McCarter & English.

      Con Ira, Morrison, Lloyd •& Morrison.

   Per Curiam.

The action was for personal injuries, &c., resulting from a collision of motor cars, operated on a public highway.

One of the cars was owned by the plaintiff Henry A. Worthington, and was being operated by his wife, Nina M. Worthington, and they had as an invitee occupant, Sarah E. Beyer, the wife of another of the plaintiffs, Arthur Roy Beyer. The other car was owned by the estate of John Vermuelin, deceased, hired to Jacob Olthius, a funeral director and was driven by the defendant Clark, who was employed for that purpose by the owner of the car.

Verdicts were rendered against the estate of Vermuelin and Clark in favor of the several plaintiffs as follows:

Nina M. Worthington ..............$3,000
Henry A. Worthington............ 1,000
Sarah E. Beyer ...................... 100
Arthur R. Beyer .................... 100

The first reason urged why these verdicts should be set aside is that the trial court erred in instructing the jury that if they found that the sole proximate cause of the happening was the negligence of the driver, Clark, then there should be verdicts not only against him but against the estate of Vermuelin, the owner of the car operated by him. The contention is that although Clark admittedly was the employe and servant of the Vermuelin estate, owner of the car, at least a jury question was raised as to whether or not he was not the servant for the time being of Olthius, the funeral director to whom the car had been rented. We do not find the proofs go in this direction and conclude, therefore, that there was no error in the instruction complained of.

Next, it is urged that the verdicts are against the weight -of the evidence.

Upon this point we conclude to the contrary.

Next, that the verdict in favor of Nina M. Worthington is excessive.

As to this we reach a contrary result.

Finally, that the court erred in instructing the jury respecting the damages of Nina M. Worthington in that the court erroneously stated that she had testified that before the accident she was well when, as a matter of fact, there was no such proof.

In fact there was no such direct proof. There was proof by both her and her husband that prior to the happening she was able to do practically all her housework. Further than this, the trial court corrected any error, if one there was, in such statement by admonishing the jury that if he misstated any evidence they were not bound by his statements and that they were the sole judges of the facts.

We conclude that the rule to show cause should be discharged, with costs.


text:
    ROY W. MALSBURY, ADMINISTRATOR OF SUSIE A. MALSBURY, DECEASED, PLAINTIFF-APPELLEE, v. HARRY O. PULLEN, DEFENDANT-APPELLANT.
    Submitted May term, 1931
    Decided September 30, 1931.
    Before Justices Campbell, Lloyd and Boduste.
    Por the appellant, Robert Peacock.

    Por the appellee, George M. Hillman.

   Pee Curiam.

The action is upon a promissory note made by appellant to the appellee’s intestate under date of May 1st, 1923.

The complaint is simple in form, containing four paragraphs, as follows:

1. That plaintiff sues for the amount of a promissory note of $1,500 made by the defendant to Susie A. Malsbury in her lifetime, a copy of which is annexed.

2. That Susie A. Malsbury departed this life intestate and that administration of her goods and chattels was granted to plaintiff by the surrogate of Burlington county of May 2d, 1926.

3. Plaintiff received said note as part of the estate of said Susie A. Malsbury, deceased.

4. Plaintiff still owns said note, it has not been paid.

Damages in the sum of $1,500 and interest from May 2d, 1923, are demanded and a copy of the note is annexed.

This the defendant below answered as follows: “The defendant denies the matters and things set forth in plaintiff’s complaint,” and counter-claimed for moneys alleged to have been advanced and paid by him for and at the request of plaintiff’s intestate, aggregating the sum of $5,918.

To the counter-claim plaintiff replied, denying each and every allegation therein and asserting that none of them accrued within six years and six months before the commencement of the suit.

With these pleadings the cause came to trial and the plaintiff testified to the finding of the note among the effects of his intestate; proved his appointment as administrator; testified that he had shown the note to the defendant who had not disputed it and that defendant had paid him nothing on account thereof and then rested his ease.

Upon cross-examination he was interrogated as to payments made by the defendant for the account of his mother, his intestate, with the result that he exhibited by his answers that he was without knowledge of the transactions if they had in fact taken place. It was admitted that the defendant had filed with plaintiff’s attorney a claim against the estate.

The defendant then proceeded to show through a witness, Shannon Stackhouse, that plaintiff’s intestate had admitted in his presence that the note had been paid but that she could not find it and therefore could not deliver it up to the defendant. This proof was admitted by the attorney for the plaintiff without objection and at the conclusion thereof he moved that it be stricken out upon the ground “that the testimony refers to a payment and there is no plea of payment. The answer was a set-off and a denial of the making of the note, a set-off and there was no plea of payment.”

Thereupon the attorney for the defendant withdrew the counter-claim and asked leave to amend his answer by adding a plea of pajunent.

The leave to withdraw the counter-claim was granted, but the leave to amend was denied and the testimony of the witness Stackhouse was stricken out and thereafter all efforts to show payment and offers of such evidence were rejected by the trial court.

The result was a verdict directed in favor of the plaintiff for the full amount of the principal of the note and interest.

From the judgment entered thereon the defendant below appeals, urging as grounds of reversal that payment may be shown under a general denial and that the trial court erred in refusing permission to amend the answer.

We think the latter ground need not be considered and we are not passing upon it.

It has been consistently held that the right to amend pleadings, during the trial of a cause, is a matter of judicial discretion and the exercise of such discretion is not reviewable. Bruch v. Carter, 32 N. J. L. 554; Lutlopp v. Heckmann, 70 Id. 272; Reed v. Director General, 95 Id. 525; Goodyear v. Kruvant, 96 Id. 352.

By this we do not intend to hold that under the present Practice act, affording as it does wide liberality in amendments, judicial discretion, in the legal sense, may not be abused, so that in a proper case such action may not be subject to review upon appeal. In the present case it is not necessary to pass upon it.

Turning to the first ground for reversal we think it is well taken and requires a reversal of the judgment.

The only thing tending to sustain the action of the trial court is rule 40 annexed to the Practice act of 1912, and which appears in the same language as rule 58 of this court. That rule is: “General and Special Denial. The answer must specially deny such allegations of fact in the complaint as defendant intends to controvert unless he intends in good faith to controvert all of the allegations; in that case he may deny them generally. It must specially state any defense which is consistent with the truth of the material allegation of the complaint and any defense which, if not stated, would be likely to cause surprise or would raise issues not arising out of the complaint. For instance, the statute of frauds, or of limitations, release, payment, performance, fraud or facts showing illegality, or contributory negligence.”

Prior to this rule a plea of general issue in a cause of this character permitted proof of payment as defense. Em eley v. Perrine, 68 N. J. L. 472; Axel v. Kraemer, 15 Id. 688.

But whatever force and effect rule 58, indefinite as it is, may have, we are satisfied it should not, under the pleadings in the case sui judice have been invoked, because it is to be noted that the very issue of non-payment was tendered by the fourth paragraph of plaintiff’s complaint and by denying the allegations of the complaint the defendant accepted that challenge and, by so pleading, the issue of payment was fully and completely raised and it was error for the trial court to strike out and refuse proofs thereunder.

The judgment under review is reversed, with costs.


text:
    NATIONAL SAND AND GRAVEL COMPANY, INCORPORATED, PLAINTIFF, v. R. H. BEAUMONT COMPANY, DEFENDANT.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Por the plaintiff, William A. Moore and George Gildea.

    For the defendant, Norman W. Harlcer.

   Per Curiam.

The plaintiff had judgment for $9,265.52. The action was for breach of a written contract. The defendant contracted to supply the plaintiff with a Beaumont slack-line system for digging gravel.

The contract contains the following provisions: "The machinery will handle sand and gravel (90 lbs. per cu. ft.) at a maximum rate of 600 tons per 10 hr. working day at 300' haul under average conditions when Sand and Gravel, not holders and clay, under favorable conditions, * * The contractor guarantees that the material and workmanship entering into the manufacture shall be first class in every respect for the purpose intended, and will furnish duplicates of any parts which are proved, within one year from date of shipment, to have failed from defects; but tbe liability under this guarantee is limited to furnishing such parts. No allowance for repairs or alterations will he made without the Contractor’s written consent * *

The case went to the jury on the theory that they might find a breach of warranty. The plaintiff’s proofs showed that the machine of device would not handle sand and gravel at a maximum rate of six hundred tons per ten hours working day and justify such a finding by the jury.

The defendant’s motion to strike a count in the complaint alleging deceit was granted. Because the plaintiff failed to prove fraud furnishes no ground to disregard the pertinent evidence bearing upon a breach of warranty. Under Supreme Court rule 38 alternative relief may be sought, based upon an alternative construction or ascertainment of tbe cause of action.

Plaintiff, we think, rescinded the contract and was entitled to recover the price already paid, together with' the moneys expended on account of the purchase.

Section 69 of the Sale of Goods act provides: "(1) Where there is a breach of warranty by the seller, the buyer may, at his election * * * (d) Rescind the contract to sell or the sale and refuse to receive the goods, or, if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. * * * (6) The measure of damages of breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty."

The damages, in a case like the present, properly included moneys expended in supplying a bin and wiring for the apparatus. The proofs show that these expenses were incurred with the knowledge of the defendant, in order that the machinery might be installed, and further show that the expenditure was of no use because the machine was not as warranted. Certainly such damages naturally and directly resulted from the breach of warranty, and the charge given by the trial court was substantially correct and in no particular so prejudiced the defendant as to require setting aside the verdict.

The rule will be discharged, with costs.


text:
    PETER JURCZYK, PLAINTIFF, v. LEHIGH VALLEY RAILROAD COMPANY, A PENNSYLVANIA CORPORATION, DEFENDANT.
    Submitted May 15, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the plaintiff, Harry Spitzer.

    Eor the defendant, Collins & Corbin (fldward A. Marlcley, of counsel).
   Pee Cueiam.

The plaintiff, a boiler house fireman, was injured on February 2d, 1929, by hot ashes falling and burning his face and body. His duties were to assist in the removal of ashes from the fire pits to cars outside a building in defendant’s yard. The removal was accomplished by a chute. Means were provided for either moving the chute or the car into which the chute was loading if the chute became clogged. The plaintiff and other employes had received instructions how to do the work and had been told, under no circumstances to climb upon the cars while being loaded.

The plaintiff’s testimony was to the effect that when he went up on a car for the purpose of starting the ashes flowing from the chute or pipe which had become clogged, he struck the pipe with a hammer to loosen the ashes, and through a hole in the pipe the hot ashes escaped and fell on him and burned him. There was no other testimony to indicate that the chute was defective. In fact, there was an abundance of credible testimony that the chute was in perfect order. Since the place of work was dark, the plaintiff is not to be believed when he says he saw the hole that night, and his testimony that he saw it two months after the accident is not material. However, aside from the question of the failure of the plaintiff to establish, by the weight of evidence, that his injuries were due to the negligence of the employer, it seems to us obvious that the injury was sustained by reason of striking the chute, containing ashes actuated by hot steam, with a hammer. The plaintiff was familiar with the conditions at the place of work, having been steadily employed there for some little time, and must have assumed the risks incident to his employment. We think that the proofs clearly show that plaintiff was so negligent in that which he did that the injuries he suffered were due to his own negligence rather than any fault proved to charge the employer with liability.

The rule will be made absolute.


author: Pee Ctjbiam.

text:
    HYMAN HORDES, PLAINTIFF-APPELLEE, v. J. I. KISLAK, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the defendant-appellant, John TP. Oclcford.

    ■ For the plaintiff-appellee, Saul Mendelson and Hyman Hordes.

   Pee Ctjbiam.

The plaintiff had judgment in a suit to recover one-half of the commissions earned by the defendant in leasing premises at No. 382A Central avenue, Jersey City.

The plaintiff testified, without objection of any kind, that he informed two representatives of the defendant that he had a client who owned a store on Central avenue available for leasing and that if the defendant agreed to share commissions with him he would procure for it the listing of the property. The listing was given and a tenant was procured for the property and the commissions were paid, but the defendant then refused to share the same and the present action was brought. The case was tried without a jury, and there are no findings of fact brought up save the entry of judgment.

It is contended, first, that no such agreement was made. The facts were for the court below, and where, as in this case, there was evidence to sustain the findings they will not be disturbed.

The services rendered in procuring a listing of the propearty would support a promise to pay therefor. A contract exists even if the consideration therefor is inadequate.

Finally, it was open to the court to find from the proofs that the defendant’s representatives were clothed with the apparent authority to negotiate with the plaintiff in the way he testified. His testimony is, in many particulars, corroborated by the testimony of defendant’s representatives. But since there was evidence to support the judgment we cannot disturb it.

The judgment will be affirmed, with costs.