text:
    MICHAEL A. SCATUORCHIO, INCORPORATED, PLAINTIFF-RESPONDENT, v. NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY, DEFENDANT-APPELLANT, AND ERIE RAILROAD COMPANY, DEFENDANT.
    Submitted January term, 1932
    Decided April 9, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the respondent, Ralph P. Messano.

    For the appellant, Edward A. Marlcley.

   Pee Cueiam.

That is an appeal from a judgment for damages to a truck of the plaintiff below resulting from a collision with it by a train of the defendant at a place called Lundy’s lane.

The state of demand alleges that Lundy’s lane is a public highway; that plaiutiff’s truck was being driven along such highway and across the tracks of the defendant company and became stalled on.the crossing and the train of the defendant company carelessly, recklessly and negligently propelled, collided with such truck; that the negligence of the defendant company consisted in failure to have a watchman or safety gates at the crossing; permitting trains to run 'over such highway at an excessive rate of speed; that the crossing was out of repair, unsafe and unsound in that the roadway between the rails had been allowed to become depressed; that the company failed to use due care to keep sound and safe planks or other safeguards between and along its rails and tracks; that it did not give the statutory signal; that its engine was equipped with improper brakes; that it failed to maintain its engine and train under proper and safe control and that it failed to exercise suitable and proper diligence to ascertain and observe the presence of other vehicles in its path.

The plaintiff below had a verdict in its favor against the defendant, New York, Susquehanna and Western Railroad Company, a verdict in favor of the Erie Railroad Company, the other defendant, having been directed by consent.

From the judgment entered against the New York, Susquehanna and Western Railroad Company, it appeals, urging four grounds for reversal.

1. That the trial court erred in refusing to direct a verdict in favor of the appellant.

This motion appears to have been made upon the grounds that there was no proof that Lundy’s lane was a public highway and no proof that the plantiff had any right to cross the tracks of the appellant.

The motion appears to have been denied by the trial judge because, as he said, “you seem to be in this situation, where the defendant had created or permitted a condition to be created which gave the appearance of a highway” and upon this theory and this alone the matter was submitted to the jury.

The case is barren of any proof that Lundy’s lane was a public highway.

Certain maps and tax records were produced and admitted in evidence, some over objection of the appellant, and are the basis of points 2 and 3. These were evidently offered and accepted in evidence for the purpose of establishing that Lundy’s lane was a public road, but, in our opinion they did not. They were not the result of any acts of the appellant nor indicative of anything by or for which it was bound. Exhibit P-1 is an assessment map of Jersey City made by L. D. Fowler in 1894, which, is said to "show Lundy’s lane on both sides of the railroad tracks.” The map is not made a part of the state of case, but assuming the foregoing to be correct, we are at a loss to know how this can be binding upon the appellant. Exhibits P-2 and P-3 are portions of a later assessment map of Jersey City said to be based upon the original map, Exhibit P-1. This map is not printed in the state of case but conceding and assuming that it shows Lundy’s lane the same as it-is said to be shown by Exhibit P-1, we are again at a loss to know how such a map prepared and used for the purpose of convenience of Jersey City in assessing lands for taxes can in anywise bind the appellant by anything shown thereon.

Exhibit P-4 is a map of property of Eobert Lundy made in 1870 and purports to be a copy of a map filed in the office of the register of Hudson county September, 1908, and was produced from the files in the office of the department of revenue and finance of Jersey City. It shows a tract of land lying on both sides of the appellant’s railroad, laid out in lots, blocks and streets, showing Lundy’s lane on both sides of the railroad and entering both from the east and west another street indicated as Eailroad avenue, running longitudinally with the railroad and on both sides thereof, being forty feet wide on the west side and thirty-three feet wide on the east side. It is significant that this map shows one line of tracks of the appellant, railroad company, to the east of a broken line. The tracks are shown as six feet in width and the distance from the westerly rail to the dotted line as twenty-one feet, making a total of twenty-seven feet. This, with the indicated widths of the avenues of forty feet and thirty-three feet, on the west and east, seems to coincide with the indicated widths of one hundred feet and one hundred and sixty-seven one-hundredths feet, over all, of Eailroad avenue from property line to property line, including the railroad right of way.

Here again we find nothing but the rankest conjecture and speculation to establish the proposition that Lundy’s lane was then, or ever, a public highway across the right of way of the railroad company. In fact the very things just referred to and shown upon this map would positively negative any such inference.

jExhibit P-6 is certain pages of the field book of the tax clerk of Jersey City showing lands on both sides of the railroad, and said to front on Lundy’s lane as having been assessed for taxes by Jersey City.

This adds nothing to the other proofs just referred to in establishing the lane as a public highway.

But it is urged, by the respondent, that Lundy’s lane is a public highway by prescription. This occurs through open, adverse, notorious, continuous and uninterrupted use by the public generally for a period of at least twenty years. Was there anything approaching this established by the proofs? We are totally unable to find it.

The entire proof upon this point is that the respondent had, for ten years, used this place of crossing to convey garbage trucks to the dump lying to the west of the railroad tracks and that a property owner and others owning lands fronting on the lane had used this place of crossing for a like period of ten years.

As before stated we find no proof establishing or tending to establish Lundy’s lane as a public highway, by formal laying out, dedication or prescription, and so the trial judge must have concluded.

This leaves remaining the ground upon which the direction of verdict was denied and the theory upon which the matter was submitted to the jurjg that is to say, that the appellant had created a situation and condition from which it appeared that this crossing was a public highway.

The basic case relied upon is Black v. Central Railroad Co., 85 N. J. L. 197.

But we can find nothing in the proofs to bring it within the principle there laid down.

The entire proof is that at the point in question there were four railroad tracks; that the roadway was entirely unimproved, a very muddy dirt road, the mud being four to five inches deep within five feet of the tracks; that there was planking between the tracks (evidently rails) the tracks (rails) being two inches higher than the planking and on the outside of the tracks the roadway being four to five inches below the rails and that the planking was in bad condition.

There is not a scintilla of proof who placed the planking between the rails or who, if anjmne, made repairs thereto. Thus the case is not brought within New York and Long Branch Railroad Co. v. Drummond, 46 N. J. L. 644.

We fail to find that the plaintiff established its case under any of the foregoing theories and, therefore, there should have been a direction of verdict in favor of the defendant.

2. That there was error in admitting in evidence Exhibits P-Jf and P-6.

These are two exhibits referred to and analyzed under point one.

We think it was error to admit them because they were not competent proof of the matter for which they were offered, namely, that they established or tended to establish that Lundy’s lane was a public highway.

3. Error in admitting in evidence Exhibit P-5.

This was an ordinance of the city of Jersey City purporting to regulate the rate of speed at which railroad trains might be impelled or driven across any street or avenue at grade and limiting such speed to six miles per hour.

Tt is argued that its admission was erroneous because the ordinance was superseded by subsequent legislation. Atlantic City Railroad Co. v. Pleasantville, 99 N. J. L. 328; affirmed, 100 Id. 394; Erie Railroad Co. v. Board, 107 Id. 409; Harrison v. United, &c., Railroad, 101 N. J. Eg. 427.

Conceding this to be so the objection did not go in this direction, and while the trial judge charged the jury that they might consider this ordinance no exception was taken thereto and, therefore, the matter is not before us.

4. Errors in the charge of the court.

The first of these is the instruction respecting the creation by appellant or the permitting by it of the creation of such condition respecting the crossing as to warrant the public in assuming it to be a public highway. This in substance has been disposed of under point one and may here be disposed as being an erroneous instruction because there were no facts upon which to support the principle contained in it.

The second portion of the charge complained of goes to this same matter and may be disposed of in the same manner and for the same reasons just expressed.

The judgment under review is reversed.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    MARGUERITE DEPOTTER, PROSECUTOR, v. THE CITY OF RAHWAY, DEFENDANT.
    Submitted January term, 1932
    Decided April 9, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the prosecutor, William V. Eerer.

    For the defendant, Fred G. Eyer.

   Pee Cueiam.

This appears to be an application for an order for the taxation of costs in favor of the prosecutor. In fact there is nothing before the court except the brief and reply brief of counsel for the prosecutor and the brief of counsel of the defendant. There is no state of case or other papers from which the court can obtain the facts. Under such circumstances the application might well and properly be dismissed. Considering, however, the matter upon the merits so far as we can spell out the facts from the briefs, we have reached the conclusion that the motion should be denied.

A rule so adjudging may therefore be entered.


author: Oijphant, C. C. J.

text:
    THE BARRETT COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. GLOBE INDEMNITY COMPANY, A CORPORATION, AND FABIO MATAZZA, DEFENDANT.
    Decided April 9, 1932.
    For the plaintiff, Heyman & Heyman.

    For the defendant Globe Indemnity Company, Charles Stockdell Gray.

   Oijphant, C. C. J.

It was stipulated that this case be heard by the court without a jury and that the only question involved was whether the defendant the Globe Indemnity Company was responsible for the act of its agent in issuing the bond sued on.

On December 29th, 1928, the borough of Bellmawr, in the county of Camden, entered into an agreement with the defendant Matazza for the construction of a highway in said county, and on the same date, it is alleged that Matazza as principal and the Globe Indemnity Company, a corporation of this state as surety, entered into a bond in the sum of $21,881.31 for the faithful performance of said contract and for the payment among other things of all subcontractors and materials furnished under the contract.

The plaintiff herein furnished materials in the sum of $7,372.95 on account of which there was paid $5,000, leaving a balance due of $2,372.95.

The work was accepted and the statutory requirements complied with.

The bond was signed “Globe Indemnity Company, by Arthur P. Ellis, attorney in fact,” and the seal of the company was affixed thereto. It was not in the usual printed form but was typewritten and no power of attorney was annexed thereto to show the authority of the said Ellis.

The home office of the company was not advised of the execution of the alleged bond, it did not know it had been written and received no premium therefor.

The power of attorney issued by the Globe Indemnity Company to Ellis, and which was put in evidence, showed that the limit of the authority given to Ellis for the writing of bonds such as the one in suit was $15,000.

Under date of December 2fth, 1928, Ellis on a letterhead of the Globe Indemnity Company wrote to the borough of Bellmawr to the effect that the company would furnish any and all bonds required of Matazza, should he be the successful bidder for the work. That letter was signed by Ellis as attorney in fact. Uo communication was ever had by the borough of Bellmawr or Matazza with the Globe Indemnity Company except through Ellis.

Plaintiff relies on the doctrine laid down by the Court of Errors and Appeals in Millville Fire Insurance Co. v. Mechanics and Workingmen’s Building and Loan Association, 43 N. J. L. 652, but the instant case turns up a different question than the one there decided, nevertheless the reasoning of the court in that ease bears out the conclusion I have reached herein.

It is true that one may rely upon the apparent authority of an agent and that one who entrusts authority to another is bound by all that is done by the agent within the scope of his apparent authority and cannot screen himself from the consequences thereof upon the ground that no authority was given to do the particular act. It is- likewise the settled law that if a person is in fact, or apparently, a general agent of the company, he stands in the place of the company with those he is doing business with, and in the absence of any limitation of his power made known to the third party, any act done by him within the apparent range of his employment is binding upon the principal.

lt is also the settled law that if a third person dealing with a general agent has actual or constructive notice of a limitation upon the agent’s authority he is put upon inquiry as to the scope of the authority. Those dealing with the agent of the defendant here were bound as a matter of law to notice that the purported bond was signed by him as “attorney in fact,” and a reading of the contract and the signature with the words “attorney in fact” following it was sufficient to put those dealing with the agent and all parties connected with the transaction upon notice that they were dealing with a special agent, and, having constructive notice that such agent’s authority was limited, they were no longer justified in acting upon the agent’s apparent authority. 3 Am. Eng. E-ncycl L. (2d ed.) 281, defines an attorney in fact as “any private or special agent appointed for some particular or definite purpose not connected with a proceeding at law, by formal authority, called a letter or power of attorney, in which is expressed the particular act or acts for which he is appointed and the extent of his authority.” Black’s Law Dictionary 105, defines an attorney in fact as “a private attorney authorized by another to act in his place and stead, either for some particular purpose, as to do a particular act, or for the transaction of business in general not of a legal character. The authority is conferred by an instrument in writing called a 'letter of attorney.’ ” It is clear, therefore, that the words “attorney in fact” were notice that the agent signed as a special agent.

It is well settled in this state that where one receives notice that he is dealing with a special agent, he is bound to inquire the nature and extent of his authority. The cases on this point are too numerous to mention here, the more important ones being Black v. Shreve, 13 N. J. Eq. 455; Armour & Co. v. Bruner, 19 Id. 331; Cooley v. Perrine, 41 N. J. L. 322; Strauss v. Rabe, 97 N. J. Eq. 208.

' Whatever puts one upon inquiry amounts to notice. In Hay v. Bramhall, a decision of the Court of Errors and Appeals contained in 19 N. J. Eq. 563, the court held “the general doctrine is, that whatever puts a party upon an inquiry, amounts in judgment of law to notice, provided the inquiry became a duty, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding.” This is apparently the leading case on this point and has been followed in numerous instances since.

One of the most recent decisions which applies with particular force to the case sub judice is that of Massachusetts Bonding and Indemnity Co. v. Bankers’ Surety Co., 179 N. E. Rep. 329. The facts in that case are very similar to those in the present case. In that case a bond was submitted to a county board in behalf of a general contractor, said bond being executed by a general agent and signed by said agent as “attorney in fact” for his principal. The court said: “When Bayless Harvey [the agent] signed the bond in question as ‘attorney in fact/ the board of commissioners of Du Bois county and all parties connected with such transaction, as a matter of law, were compelled to take notice that Harvey’s authority as agent was limited and special in nature and that such authority was limited by an instrument in writing, and that he depended upon the authority, special and limited in nature, delegated to him in such written instrument to execute the bond in question.”

In the case of Wiss v. Vogel, 86 N. J. L. 618, the Court of Errors and Appeals said:

“The question in every such case is whether the principal lias by his voluntary act placed the agent in such a situation that a person of ordinary prudence conversant with business usages, and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question * *

In the present case it can hardly be said, in view of the third person failing to make inquiry, that he exercised ordinary prudence. The words “conversant with business usages, and the nature of the particular business,” seriously limit the rule as to apparent agency and the case sub judice falls within this exception.

The plaintiff herein was put upon inquiry by the facts, first, that the bond was signed by the agent as “attorney in fact;” second, that the usual form used in the regular course of business was not used, and third, that the written power of attorney was not attached thereto.

I am convinced that the agent acted beyond the scope of his authority; that the parties with whom he dealt had notice of his limited authority; that they made no inquiry in relation thereto; that the company is not chargeable with any rule of estoppel and that judgment should be for the defendant.


text:
    MICHAEL J. SALLMENN, PROSECUTOR, v. BOROUGH OF NORTH ARLINGTON, DEFENDANT.
    Submitted October 17, 1931
    Decided April 18, 1932.
    Before Justices Teenchabd, Daly and Donges.
    For the prosecutor, William George.

    For the defendant, John J. Breslin, Jr.

   Pee Cueiam.

The prosecutor of this writ of certiorari was chief of police of North Arlington and after charges preferred, and hearing, he was dismissed.

There were three charges. Briefly stated they were:

(1) That he sent a letter to the mayor and common council criticising the schedule of duties as ordered by the mayor and chairman of the police committee, which was subversive of the good order and discipline of the force; (2) that he refused to take a complaint desired to be made by one Tony Schultz against Julius Schultz, his assailant, although it was his duty so to do as he well knew, and (3) that he was guilty of malfeasance in that he purchased ten gallons of gasoline for an automobile which he was using exclusively for pleasure purposes on February 6th, 1931, and that he purchased twelve gallons of gasoline and six quarts oE oil for his own private automobile, and had the cost thereof charged to the borough without being authorized so to do.

He was convicted on all three charges and dismissed.

We think that there was evidence from which the mayor and council were justified in finding him guilty of all three charges. The rule in such case as this is that we do not weigh the evidence for the purpose of possibly reaching a different conclusion upon the weight of it. If the evidence furnishes a rational basis for the judgment we do not disturb it. Reilly v. Jersey City, 64 N. J. L. 508. The evidence in this case amply met this test.

The order and judgment of dismissal will be affirmed, but without costs.


author: Per Curiam.

text:
    DAVID WARNER, PLAINTIFF-RESPONDENT, v. FRANK M. DAVIS, OR IN THE ALTERNATIVE THE WESTERN UNION TELEGRAPH COMPANY, A CORPORATION CONDUCTING BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January 26, 1932
    Decided April 12, 1932.

      Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff-respondent, Hyman Brodsky.

    For the defendant-appellant, Edwards, Smith <& Dawson.

   Per Curiam.

This is an appeal from a judgment for $500 in an action in tort returned by a jury in the Hoboken District Court.

Dr. David Warner, a dentist, on the afternoon of July 17th, 1931, tripped over an iron bar designed to support iron doors leading to a cellar in the building occupied by the defendant. He testified: “Both doors were open, and one end of the bar was placed in the eye of the door, when the bar is in position, the correct position to keep the door open; the other end was extending on the other side of the sidewalk.”

Immediately after the occurence, plaintiff entered the defendant’s place of business and told a young lady, who appeared to be in charge, of his fall and the careless manner in which the door had been left open. He then observed one of the defendant’s messenger boys leave the office and properly adjust the bar.

Shortly before the accident, a bystander had seen a boy in one of the defendant’s uniform, go to the cellar by means of the sidewalk door and return therefrom with a bicycle bearing the defendant’s name. There was also testimony that the iron bar was not properly adjusted. The hoy then placed the bicycle in a rack in front of the office provided for that purpose, and bearing defendant’s name.

The defense was, assuming that the boy did just what was testified to, that such act was not one for which the defendant was liable, because the boy had no permission to go to the cellar and had explicit orders to the contrary; that no one of the defendant’s employes had a right to go to the cellar without orders from the manager, who had given none that day. The proofs showed that there were no locks on the doors, and that the defendant had the use of the back part of the cellar for the storage of records. It was further argued that the presumption arising from the proved facts was rebutted by the defendant’s uncontradicted proofs and that the defendant should have had a directed verdict.

“If the act resulting in the injury complained of was within the scope of the servant’s employment the master will be liable therefor, although the act was in violation of the master’s instructions as to the method of performing the work or expressly forbidden by him, and without regard to the servant’s motive. This is so, because the test of the master’s responsibility for the acts of his servants is not whether such act was done in accordance with the instructions of the master to the servant, but whether it was done in the prose■cution of the business that the servant was employed to do. If the master undertakes to determine for himself the manner in which his servant shall perform his prescribed duties, the obligation is on him to see that such instructions are carried out .and that the servant does not substitute his own methods for those of his master. Any other rule, it has been said, would in a measure nullify the doctrine of respondeat superior.” 39 Corp. Jur. 1283, § 1477-f.

In Price v. Simon, 62 N. J. L. 153, it appears that the •defendant owned an ice wagon from which this servant delivered ice to his customers in Camden. At the time of the injury complained of the servant had delivered a piece of ice and was returning to the wagon with the ice-tongs open. When he reached Third street he ran into the plaintiff, who was a child five years old, and cut his hand and his head with the ice-tongs. Mr. Justice Yan Svckel said: “The liability ■of the master for the negligent act of the servant is solved by determining whether the injury was inflicted while the servant was performing an act in the course of his employment by the master. His duty to the master was to deliver ice from the wagon to customers. When he was returning ■from the customer’s house to the wagon with the ice-tongs he was acting in the business of the master as clearly as he was when he took the ice in, or as when he was driving the wagon. He could not conduct the business in which he was •employed without going to the customer’s house and returning to the wagon. In doing these acts he represented the master, and for his negligence the master is liable.”

In Pederson v. Edward Shoe Corp. and Polinsky, 104 N. J. L. 566, the plaintiff Astrid Pederson, the wife of the co-plaintiff, while walking along Smith street, in the city of Perth Amboy, about three o’clock in the afternoon, on May 28th, 1.926, stepped into a cellar opening, immediately fronting the store of the Edward Shoe Corporation, fell upon her left leg, and thereby sustained a fracture of the fibula bone of that limb. The cellar aperture was not continuously open, but upon this occasion almost coincidently with her arrival it was thrust open, under circumstances which present the material inquiry of the defendant’s liability for the ensuing accident. The jury found a verdict for the two plaintiffs, as husband and wife, against the coal dealer, Charles Polinsky. Mr. Justice Minturn said: “Polinsky’s duty under his contract obviously was to deliver the coal at such place upon the vendee’s premises as the latter might indicate. If in the effort to complete the delivery his employe found it necessary to prepare the necessary opening in the walk, for the purpose, and assumed the task of so doing, the act thus performed manifestly was within the lines of his employment.”

In McCann v. Consolidated Traction Co., 59 N. J. L. 481, the plaintiff’s horse was so frightened as to cause injury by a street sprinkler operated by the defendant over its trolley lines. The real cause of the fright was due to two black coats hung from a rear projection which swung violently. Mr. Justice Lippincott said: “It would seem as if it was not material whether these coats were placed there by the defendant company, by its employes or by a stranger, so long as the existence of them, in this position, created a dangerous situation, of which the employes of the defendant had knowledge and still continued to operate the car. The fact is that they were upon a car sprinkler of the defendant company which was being operated by its employes, who were bound to the exercise of reasonable care in its operation and thus protect others from injury. * * * The general rule is a very clear one, that the master is liable for any act of his servant done within the scope of his employment, and fif a servant is acting in the execution of his master’s orders, and by his negligence causes injury to a third party, the master will be responsible, although the servant’s act was not necessary for the proper performance of his duty to his master or was even contrary to his master’s orders.’

“There is, perhaps, no rule of law more firmly settled than that a master is ordinarily liable to answer, in civil suits, for tortious act of his servant, if the act be done in the course of his employment in his master’s service. This is on the principle of the maxim respondeat superior, and also, of the maxim ‘qui facit per aliurn fácil per se.’ The master is liable, although he did not authorize or even know of the servant’s act or negligence, and although he disapproved of or forbade it, if the act was done in the course of the servant’s employment, or, as it is sometimes expressed, within the scope of his authority.” Aycrigg’s Ex’rs v. New York and Erie Railroad, 30 N. J. L. 462.

“To rebut the presumption of liability of a master for damage consequently upon the negligent act of a servant, done within the apparent scope of the latter’s employment, it must be shown either that the act was purely wanton or that it was not performed in furtherance of any duty within the actual scope of the servant’s authority. Rhinesmith v. Erie Railroad Co., 76 N. J. L. 783. In cases where the scope of authority of a servant or agent depends upon disputed matters of fact, the extent of such authority is ordinarily a question for the jury. Dierkes v. Hauxhurst Land Co., 80 Id. 369.” Klitch v. Betts, 89 Id. 352.

The proofs in this case demonstrate that the acts of the defendant’s messenger boy with respect to the cellar door and the bicycle were well within the scope of the boy’s apparent authority. The proofs do not show that the acts, though forbidden, were wanton or not performed in furtherance of the boy’s duty to be ready to dispatch messages. There being a conflict of testimony, the issues were properly submitted to the jury, both as to the existence of the agency and the scope of the authority. Tischler v. Steinholtz, 99 N. J. L. 149, 152.

The appellant’s contention that the presumption of agency was overcome by the uncontradicted proofs is not supported by the record. The young lady in charge of the office admitted plaintiff’s visit to the office and his complaint about his fall, although she denied that she sent anyone to remedy the defect, and hence was not able to tell whether the doors and bar were out of adjustment because she was too busy to attend to the matter. Although there were three messenger boys employed by the defendant, but two were called to deny responsibility for the acts complained of. The jury may have inferred that the other boy was responsible for what happened, or they may not have believed those who testified for the defendant. The testimony offered in behalf of the defendant was clearly in contradiction of the testimony of plaintiff and a disinterested witness. The credibility of the young lady in charge of the office was weakened by her testimony that she was too busy to find out if the plaintiff had correctly related the circumstances of his injury, when all she would have had to do was to look out of the window—a trifling exertion for a properly sympathetic person. “Clearly under these circumstances, the truth of the testimony offered to rebut the presumption was for the jury, and, consequently, the entire question became one for the jury to solve, and the learned trial judge was right in refusing to direct a verdict for the defendant.’’ Crowell v. Padolsky, 98 N. J. L. 553.

The judgment is affirmed, with costs.


author: Pee Cukiam.

text:
    CITY OF RAHWAY, TOWN OF WESTFIELD, ET AL., ORGANIZED IN JOINT MEETING AND KNOWN AS THE “RAHWAY VALLEY” JOINT MEETING, PROSECUTOR, v. FRANK L. CLEARY, JUDGE OF THE UNION COUNTY CIRCUIT COURT, ET AL., RESPONDENTS.
    Submitted October 16, 1931
    Decided April 13, 1932.
    Before Justices Tbenchabd, Daly and Donges.
    For the prosecutor, Francis V. Dobbins.

    For the defendants, John Milton and Forlenza & Harrington.

   Pee Cukiam.

This certiorari seeks a review of the action of Circuit Court Judge Cleary, sitting in the Union Circuit Court, in a certain proceeding under “An act concerning arbitration and awards.” Pamph. L. 1923, p. 291.

On September 15th, 1930, a group of municipalities, which had organized in joint meeting as the “Rahway Valley” Joint Meeting, entered into an agreement with the defendant contractors to submit all claims, of the contractors growing out of the construction of the Rahway Valley trunk sewer to the award and determination of certain arbitrators. The arbitrators met on various days and took testimony, and on November 30th, 1930, submitted their award to the joint meeting.

Subsequently, notice was given by the contractors of an application to Judge Cleary, to be made on February 10th, 1931, to confirm the award and to enter judgment. The joint meeting gave notice of an application to Judge Cleary to vacate the award, alleging generally partiality of the arbitrators, improper conduct in the admission of evidence, and lack of authority to determine all of the questions passed upon in the award. Later an additional reason was served, namely, that the agreement did not contain any provision for entering judgment, and therefore none could be entered on the award, and that the arbitrators were not sworn and that the award was irregular in form.

The Circuit Court judge declined to vacate the awards, confirmed the same and ordered judgments to be entered in favor of the parties entitled thereto for the sums awarded.

The first point raised is that the court was without jurisdiction because the parties had not agreed that the award should be made a judgment of court, as provided by section 3 of the act of 1933.

Section 8 of said act provides that at any time within three months any party may apply to any justice or judge to confirm the award, and section 13 provides that, upon confirmation, the judge may order judgment entered in the court in which such judge sits. This proceeding is quite separate from the procedure laid down in the second section. There seems no room for doubt that the Circuit Court judge had jurisdiction to deal with the matter as provided in the several sections of the act.

Point two is that there was evident partiality in the arbitrators or some of them. We find no evidence to support the charge that F. J. Colosey was partial and that he failed to faithfully perform his duties. The judge found to the contrary, and we think he was justified in so finding.

Prosecutor urges that the failure of the arbitrators to be sworn before entering upon the performance of their duties voids the award, and rely upon section 6 of “An act for regulating references and determining controversies by arbitration.” 1 Gomp. 8tat., p. 103. However, the act of 1933 is a complete scheme covering the subject-matter, and in section 16 provides that all acts or parts of acts inconsistent therewith are repealed. We conclude that the arbitrators were not required to be sworn under the act of 1933.

It is next urged that the arbitrators failed to give notice of the time and place of hearing. By the arbitration agreement it was provided: “And the parties do agree that the

said arbitrators meet at the town hall, Westfield, Hew Jersey, on October 14th, 1930 next, without further notice; and afterwards, if necessary, at such times and places as they shall appoint.” It further appears from the record before us that, on October 16th, 1930, the secretary of the board of arbitrators by letter notified the joint meeting of the sitting of the board pursuant to the ágreement.

The next point is that the award was not properly executed. But it appears to be the expression of the judgment of the arbitrators, made after suitable and adequate consultation. Pintard v. Irwin, 20 N. J. L. 497. Further, the award was duly acknowledged by each of the arbitrators as his voluntary act and deed for the uses and purposes therein expressed.

It is claimed that the arbitrators exceeded their authority and considered matters not included in the arbitration agreement. But this appears not to be so, and evidently was so found by the judge of the Circuit Court. The agreement provides: “That the said parties do hereby submit all claims made by the aforesaid contractors in connection with the construction of sections one, two and three of the “Rahway Valley’ trunk sewer,” &c. Admittedly, all of the claims passed upon dealt with such work, so that it was squarely within the agreement to submit to arbitration.

The seventh point urged has been dealt with under point two.

We conclude that the reasons urged for setting aside the judgments are without merit.

The respondents' moved to dismiss the writ - of certiorari as being improvidently granted.

By section 15 of the act of 1923 it is provided that “an appeal may be taken from an order confirming, modifying or vacating an award, or from a judgment entered upon an award as from an order or judgment in an action.” Ordinarily, where an-appeal lies, this court will not review by certiorari. Neubauer v. McCutcheon, 98 N. J. L. 94; Eder v. Hudson County Circuit Court, 104 Id. 260.

Certiorari is always within the discretion of the court, and may be dismissed whenever it appears to the court that another remedy is available, or the court may, if it is deemed desirable, pass upon the questions submitted therein.

In the instant case, because of pubilc interests involved, we have deemed it advisable to pass upon the merits rather than to deal with the case upon the motion to dismiss.

The judgments under review will be affirmed, with costs.


author: Bigelow, V. C.

text:
    Michael Eufemio, complainant, v. Patrick J. McKeown, defendant.
    [Decided April 13th, 1932.]

      Messrs. Schlosstein & Turleel, for the complainant.

      Messrs. Breslin <& Breslin, for the defendant.
   Bigelow, V. C.

This is a proceeding for the dissolution of a partnership and distribution of assets among creditors and others entitled thereto as prescribed by chapter 206 of the laws of 1919. The court appointed a receiver who has converted the assets into cash and made his final report praying instructions for distribution of the fund. The amount realized from the assets is sufficient to pay only a small dividend on the partnership debts. Counsel for the two partners, the complainant and the defendant in the cause, each apply for a counsel fee out of the fund in the receiver’s hands.

As a general rule, counsel fees like costs are awarded to litigants and not to counsel themselves. Process to enforce the award must issue in the name of a party; only a party can appeal from an order granting or denying counsel fees. Presumably counsel, when he accepts employment in a case, makes a satisfactory arrangement with his client for compensation, and to his client he looks for his fee. The purpose of the court in allowing counsel fees is to reimburse or indemnify the party for some of the expense of the litigation. When such an application is made to the court, the question is not whether counsel should be paid but whether his client should be permitted to charge the expense against some other party to the suit or against some fund under the control of the court.

Warker v. Worker, 109 N. J. Eq. 106; 156 Atl. Rep. 647, dealt with an unusual situation. Counsel for complainant prosecuted the suit under order of the court and by the court was allowed a fee out of complainant’s estate and against her protest. Counsel acted as the officer and arm of the court and so was able to look to the court to obtain compensation. In a similar category are counsel for infants and incompetents. Their clients cannot make a valid agreement to pay them and so the court frequently provides for their compensation out of a fund within the court’s control.

In the present case, neither complainant nor defendant asks that the opposite party be directed to pay him a counsel fee, but both ask that it be paid out of the fund, the pro-coeds of the partnership assets. This fund belongs primarily to the creditors and even after the entire fund is distributed among them, the partners will remain indebted in a large sum to the creditors. It is obvious that the partners should not be permitted to reimburse themselves for their expenses out of this fund to the disadvantage of their creditors. Therefore the application for counsel fees, so far as it relates to services rendered primarily to the parties in the cause, will be denied. Counsel say that they have not, in fact, been paid for their services and that their clients are insolvent and will be unable to pay them. This is unfortunate, but it is not a reason which should move the court to grant the application.

There is, however, another aspect of the cast which will permit the court to award a small fee to counsel for complainant. The statute under which this proceeding has been conducted contemplates that a member of an insolvent partnership may file a bill of which the ultimate end is the distribution of the assets among the creditors. Such a bill is filed for the benefit of creditors and so compensation may be allowed as against creditors for counsel’s services in drawing the bill. “Where the services of counsel are for the advantage of all concerned, it is the common practice to compensate him out of the funds of the estate.” In re Queen, 82 N. J. Eq. 588; 89 Atl. Rep. 290. This equity is recognized by chancery rule lllg, which provides when a receiver has been appointed for a partnership, that the court may allow as compensation to the complainant’s solicitor “a reasonable fee for services to complainant in filing the bill if the court shall think such an allowance should be made.” The amount allowed in the present case should not be full compensation for drawing the bill, since a large part of the bill is devoted to controversies between the partners and cannot be considered as in the interest of creditors. In fixing the sum, I bear in mind that I am not spending my own money but a fund belonging to the beneficiaries of a trust, the creditors of the partnership. With their money I cannot be liberal. I will advise a fee of $100.

Both counsel urge that after the appointment of the reeeiver, they co-operated with him in the settlement of the estate and performed services of value to the creditors. For these services, they cannot be paid out of the fund in court. They were mere volunteers. The receiver is a lawyer of ability and did not need or seek the legal advice of counsel for the two litigants. Unger v. Newlin Haines Co., 95 N. J. Eq. 16; 122 Atl. Rep. 114; In re New Jersey Refrigerating Co., 99 N. J. Eq. 155; 133 Atl. Rep. 183.

The application of defendant and his counsel will be denied and the application on behalf of complainant will be allowed in the sum of $100.


author: Bekby, Y. C.

text:
    Oschwald Realty Company, a corporation, complainant, v. Harry Berman, defendant.
    [Decided April 13th, 1932.]

      Mr. Milton Lowenstein, for the complainant.

      Mr. Joseph N. Braff, for the defendant.
   Bekby, Y. C.

The bill seeks the specific performance of a contract for the sale of lands. The defense sets up an alleged defective title. The cause was submitted upon an agreed state of facts and briefs. The sole question concerns the effect to be given to a confirmatory deed executed by the guardian of a lunatic, which appears in the chain of title of the complainant.

Caroline McCallum was appointed guardian of Charles Hoffman, an alleged lunatic, by the orphans court of Essex county, on May 3d, 1912, pursuant to the provisions of chapter 47, P. L. 1911, and without the appointment of a commission de lunático inquirendo. Subsequently, on March 11th, 1913, and pursuant to an order of the orphans court, the guardian sold and conveyed the premises in question to one Conrad Koellhoffer for their full value, to wit, $8,000, which sum was duly paid to the guardian and, with the exception of a small sum now on hand, used by her for the payment of legacies chargeable upon the said land and for the support and maintenance of the alleged lunatic. Later, in 1923, pursuant to proceedings in this court, and after the appointment of a commission de hmatico inquirendo, Charles Hoffman was adjudged to be a lunatic and Caroline McCallum was thereupon duly appointed his guardian. Proceedings were then instituted in this court by Conrad Koellhoffer against all parties in interest, including the said guardian, which finally resulted in a decree of this court directing the guardian to execute and deliver to complainant, without further consideration than that which had already been paid, a deed in the nature of a confirmatory deed conveying any and all interest of the said lunatic in the premises in question to the said Koellhoffer, and it was therein further declared “that as to the above described premises the defendants and each of them including the lunatic defendant have no estate in or encumbrance upon the same or any part thereof.” It is the validity of that confirmatory deed which is here questioned, the defendant contending that this court had no authority to direct the guardian of the lunatic to execute a confirmatory deed; that under the statute this court could only direct a conveyance coincident with the payment of adequate consideration ; and that as no consideration was then paid the confirmatory deed is void.

I entertain no doubt that the title of the complainants is good and that the decree directing the confirmatory deed by the guardian is valid. No appeal having been taken from that decree, it is binding and conclusive upon all parties to the suit. If statutory authority for a decree directing the execution of a confirmatory deed is necessary it may be found in P. L. 1897 ch. 68 p. 110, as amended; & Comp. Stat. p. ■279 §§ lie, et seq. To sustain the defendant’s contention here would be to challenge collaterally the 1 validity of the decree referred to and this cannot be done. But aside from these conclusions, assuming the original deed of March 11th, 1913, to have been void, can there be any doubt of the power of this court to restore the status quo ante of the parties? And had that been done the court in the next breath could have directed the resale and reconveyance of the same property for the same consideration as passed on the original sale, and this is conceded. The net result would then have been the same as now. But why all this useless formality ? Equity considers that as done which ought to have been done and this maxim is sufficient reason and authority for the decree directing the execution of the confirmatory deed, if no other existed. This court is not so impotent as is suggested by the defense here interposed. It is admitted that the contract of sale is a valid one and no other defense being suggested the complainant is entitled to a decree.


author: BÉKEY, Y. C.

text:
    Marie T. Brown and Arthur E. Tillard, complainants, v. Fidelity Union Trust Company, substituted trustee, et al., defendants.
    [Decided April 14th, 1932.]

      Mr. Andrew J. Whinery, for the complainants.

      Messrs. Hood, Laferty & Campbell, for the defendants.
   BÉKEY, Y. C.

This case was submitted on the following facts:

Arthur J. King left a will creating a trust fund for his widow for life, or until her remarriage, with remainder to his children. He provided that the shares of his sons should be paid to them when they reached the age of twenty-five years; and that the shares of the daughters should be held during their lives, remainder to their children.

The testator’s widow and Francis L. Minton were trustees. She died in 1901, leaving Minton as sole trustee.

In 1916 Mamie L. Tillard, one of the testatrix’s daughters, died leaving two children, Marie T. Brown and Arthur E. Tillard, the complainants in this suit, who became entitled to the principal of their mother’s share of the trust fund upon her death. Minton, the surviving trustee, did not make any distribution to them; but three years after Mrs. Tillard’s death he was discharged as trustee upon petition to the orphans court of Essex county, and the Fidelity Union Trust Company was appointed in his place. He turned over to the Fidelity Union Trust Company all of the assets of the trust estate, and it made distribution of a part thereof, giving to the complainants as their share, a bond and mortgage for $6,000 covering lands in South Dakota.

The will of Arthur J. King authorized the investment in first mortgages on land, and it was supposed by everyone interested in the estate that the $6,000 mortgage assigned to the complainants was a first mortgage.

Soon after the bond and mortgage referred to were turned over to the complainants it was discovered that it was a third mortgage, acquired for the trust estate by Minton in violation of his duties as trustee; that it was wiped out by the foreclosure of a prior mortgage; and that there is no apparent possibility of recovery against the persons who executed the bond which is secured by the mortgage, nor against the estate of Minton, now deceased. Complainants promptly brought these facts to the attention of the substituted trustee, and it endeavored, but without success, to have all of the beneficiaries adjust the $6,000 loss among themselves.

Complainants now ask that the substituted trustee take back the worthless bond and mortgage and pay them $6,000 out of the trust estate still remaining in its hands, so that the loss will fall equally upon all of the beneficiaries.

No authority is cited in any of the briefs, all of the parties saying that they rely upon general principles of equity. I am satisfied that under those principles the complainants are entitled to relief.

A court of equity is a court of conscience.

Professor Pomeroy in his work on Equity Jurisprudence, volume 1, page 61, says that conscience, considered as a source of equity jurisdiction, is synonymous with “good faith.” He says that conscience embraces all those obligations which rest upon a person who, from the circumstances in which he is placed towards another and the relations subsisting between them, is bound to exercise good faith in his conduct and dealings with that other person. He says further, “equity is and long has been in every sense of the word a system, and although it is impossible that any new general principles should be added to it, yet the truth stands, and always must stand, that the final object of equity is to do right and justice.” He himself italicized that language.

Yice-Chaneellor Yan Fleet on many occasions declared this to be the equity rule as adopted by our courts. In Ogden v. Thornton, 30 N. J. Eq. 569, he said: “A court of equity must always aim to act upon broad principles of justice, disentangled as much as possible from little technicalities.” And in Livermore v. McNair, 34 N. J. Eg. 478, ’“equity cares very little about mere matters of form; it endeavors to deal with the substance of affairs and to regulate its judgment according to the real purposes which have controlled parties in the various matters brought before it for relief or correction.”

In Ogden v. Thornton, supra, Chief-Justice Beasley, speaking for the court of errors and appeals (32 N. J. Eq. 723, 727), said: “In either case the transaction was such that it cannot be allowed to stand in a court of conscience.”

The mere fact that there is no precedent to fit the case will not stay the hand of the chancellor. Chancery will make a precedent to fit a case, novel in incident, which comes within some head of equity jurisprudence. Palmer v. Palmer, 84 N. J. Eq. 550; 95 Atl. Rep. 241.

It was through no fault on the part of the complainants, either affirmative or negative, that the loss occurred. They had a right to believe that the trustees were performing the terms of the will and making only such investments as they were enjoined by the testator to make. They were under no duty to investigate into the validity of the security turned over to them as a portion of their distributive share of the estate. The principles of estoppel cannot be invoked against them. This was not a specific legacy; neither is it the case of a lawful investment (within the terms of the trust) turning out to be bad through circumstances beyond the control of the trustees.

The testator intended that the complainants should receive a certain distributive share of his estate; but they received nothing when thej'’ were given these worthless scraps of paper. His intention must be carried out; and effect can be given to his intention only if the complainants prevail.

• I shall advise a decree for the complainants.


author: La whence, S. C. C.

text:
    KATHERINE HARMS, PLAINTIFF, v. EDMUND L. COYTE, DEFENDANT.
    Decided April 13, 1932.
    For the motion, Quinn, Parsons & Doremus (John J. Quinn, of counsel).
    Opposed, Cools & Stout (Mr. William J. O’Hagen, of counsel).
   La whence, S. C. C.

This is a motion to strike that part of defendant’s answer, including the first separate defense, covering the same matter, on the ground that it is frivolous. The relation of the parties was that of mortgagor and mortgagee. Plaintiff foreclosed the mortgage and at the sale of the premises involved a deficiency in the debt secured resulted. She gave notice, under the statute, of the proposed action on the bond acompanying the mortgage, both of which were admittedly executed by defendant, who, however, questions the sufficiency of the notice, thus presenting an issue of fact. The other defense sought to be set up in defendant’s answer is that, at the time of the execution, plaintiff represented and agreed with him that in the event of the foreclosure of the mortgage, she would look to the premises for the full payment of the bond, and would, under no circumstances, look to him for any deficiency which might arise under the sale, pursuant to the decree. He, therefore, alleges that he executed the bond on the strength of such representation and agreement, which plaintiff, by affidavit on the present motion, denies, although not required, since it is apparent that the answer sets up in the feature stated no valid legal defense.

The mortgage contained no such agreement; if it had, there would have been no occasion for the bond. Evidence of a contemporaneous parol agreement of the character or nature suggested would not be admissible to alter or vary the terms of the latter plainly set down therein. Parker, Receiver, v. Jameson, 32 N. J. Eq. 222; VanHorn v. VanHorn, 49 Id. 327; Childs v. South Jersey Amusement Co., 95 Id. 207, and Naumberg v. Young, 44 N. J. L. 331. The motion to strike that part of the answer to which reference is made and the first separate defense will be granted. The issue as to the legal sufficiency of the notice of intention to bring the suit as required by the statute will be reserved for determination at the trial of the cause.


author: Lawrence, C. C. J.

text:
    FLORENCE LUDWIG, DONALD LUDWIG, RUSSELL WINTERS AND ELLA WINTERS, PLAINTIFFS, v. FRED J. FRECH, DEFENDANT.
    Decided April 16, 1932.
    Before Lawrence, Circuit Court judge.
    Eor the rule, McDermott, Enright Carpenter (Carl S. Kuebler, of counsel).

      Contra, Giordano, Golden & Hurley (Julius Golden, of counsel).
   Lawrence, C. C. J.

This was an automobile accident case in which plaintiffs alleged that they had been injured and sought compensation. The jury awarded Mrs. Ludwig $1,500 and her husband, Donald Ludwig, $757.50. The rule to show cause obtained by defendant is directed against these verdicts as excessive, on the ground that the physical condition of Mrs. Ludwig, relied on at the trial as proximately resulting from injuries received in the accident was not due to them, but to a long standing organic difficulty for which she had been frequently treated; that in fact the injuries received in the accident were of a rather minor nature and insufficient to justify the award made to her; while that to her husband was without proper evidential support, as there was no sufficient proof that they were living together and of consequential loss of society or consortium, although there was some evidence of an expenditure made for outside help in the household and of medical expense incurred.

A review of the evidence leads to the conclusion that the verdicts are excessive. If Mrs. Ludwig will consent to accept $750 and her husband $300, the rule to show cause will be discharged, otherwise it will be made absolute and a new trial granted as to damages only.


author: Lawrence, C. C J.

text:
    FAUN L. WALLACH, PLAINTIFF, v. JAMES R. HENSLER, DEFENDANT.
    Decided April 15, 1932.

      Before Lawrence, Circuit Court judge.
    Bor the rule, William J. Blair.

    Contra, Howard Ewart.

   Lawrence, C. C J.

This was an accident ease tried before me and a jury at the Ocean Circuit. Plaintiff has a verdict for $7,400, and defendant took out the present rule and argues for a new trial on several grounds, chiefly, that it was against the weight of the evidence, contrary to law and the charge of the court; that it should be set aside on newly discovered evidence, based upon the claim that plaintiff withheld from the court and jury, in representing that the permanency of her injury was due to the accident in question, the fact that it resulted from another received several months later; and finally that the sum awarded is excessive.

It appeared that on December 24th, 1930, plaintiff came out of a building (owned by defendant) where she was employed and slipped on some ice which had formed on the sidewalk, alleged by her to have been due to water freezing after it had escaped from a disconnected or broken drain pipe attached to the structure. The claim was that the pipe had negligently been allowed to remain in the condition stated for so long a time that knowledge thereof was impliedly, if not expressly, chargeable to defendant, since his agent had undertaken the duty of inspecting the building from time to time and that his failure to discover the condition of the pipe which had existed for sometime was due to his negligence. In view of the evidence offered at the trial, the jury could have found, as they apparently did, that this was so. In falling, plaintiff claimed that she had received a head injury, a slight concussion, and a compound fracture of her right arm near the elbow; that she was thereafter incapacitated and had been unable to work at her accustomed employment in a beauty shop for over a year, by reason of the injured arm, which became infected and required two or more operations, ultimately resulting in the removal of dead bone, ■which caused a permanent stiffness and loss of function at the elbow joint. Her medical, surgical and hospital expenses were said to have approximated $2,400, and her loss of earnings $5,000. In estimating her damages, the jury apparently included no compensation for the injury and the attendant pain and suffering.

The theory upon which the case was submitted to the jury, under the evidence, was predicated on the rule laid down in Zwicki v. Broadway Theatre Co., 103 N. J. L. 604, and it cannot be said that the verdict was so clearly against the weight of the evidence on the issue of negligence as to warrant setting it aside. The so-called newly discovered evidence turned upon the question as to whether plaintiff had had a second fall after the one which gave rise to this suit and had fractured her arm in the former rather than the latter. This comprehended a re-examination of one of the surgeons who had attended her and who had appeared as a witness at the trial. The new examination, however, disclosed no real variation from that recorded, with the result that there was no such proof as is required under the rule relating to newly discovered evidence. The other grounds suggested for a new trial have been examined and found without substance, excepting as to the amount of the damages awarded.

The complaint that the sum assessed is excessive appears to be justified. Under the proofs, it was not at all clear that the medical, surgical and hospital expenses aggregating the amount stated and also that claimed for loss of earnings were supported thereby. The evidence offered at the trial suggested, indeed, some doubt as to whether plaintiff was required or expected to assume the obligation for any such sum as $2,400, for medical, surgical and hospital care and treatment, while her own testimony as to her loss of earnings was not of a convincing nature, in that it lacked comprehensive corroboration. The jury appears, however, to have accepted the stated figures, and ignored the claim as to compensation for the injury, plus pain and suffering.

A review of the evidence leads to the conclusion that a fair and reasonable award compensatory for the injury, pain and suffering, surgical and medical care, hospitalization, and plaintiff’s loss of earnings should not have exceeded $5,750. If she consents to accept this sum, the rule to show cause will be discharged, otherwise it will be made absolute as to damages only.


text:
    MABEL DOLL, PLAINTIFF, v. JOHN SHAFTO, PROSECUTOR-DEFENDANT.
    Submitted October 17, 1931
    Decided April 18, 1932.
    Before Justices Trenchard, Daly and Donges.
    For the plaintiff, Eugene Gapibianco.

    For the prosecutor-defendant, Lloyd G. Riddle.

   Per Curiam.

This writ brings up a judgment entered in the court of a justice of the peace in the city of Asbury Park in a suit on a book account against the prosecutor who alleges in his brief that he resides in Neptune township. The judgment is for $125.20. His argument in the brief is that the justice has no jurisdiction because chapter 211 of the laws of 1921 provides that no justice of the. peace shall have jurisdiction over any cause cognizable before a District Court where the defendant resides within any city or judicial district where a District Court is established; and so he invokes the rule in Aumack v. Cotton, 9 N. J. Mis. R. 1321; 157 Atl. Rep. 549.

If we were to take judicial notice of the fact that the Jfirst Judicial District of Monmouth county includes Neptune township, and of the alleged fact that West Grove where, in his brief, he claims to reside, is in Neptune township, that would not help the prosecutor. In the instant case there is nothing in the record to show where the prosecutor lives or where he was served. The endorsement on the summons gives an address “No. 1218 Corlies avenue, city of West Grove, New Jersey.” Whether this is the prosecutor’s residence, or his place of business, or what it is, nowhere appears. The affidavit of the justice of the peace says that the defendant was served by leaving a copy of the summons with a member of his family above the age of fourteen years at his usual place of abode. Where such place of abode is does not appear. There is therefore nothing before us of proof of the prosecutor’s residence, and we cannot say that there was any want of jurisdiction.

The writ will bo dismissed, with costs.


text:
    ANNE E. ASHWORTH JOHNSON, AS SURVIVING PARENT, PETITIONER-DEFENDANT IN CERTIORARI, v. NEWARK GLASS COMPANY, RESPONDENT-PROSECUTOR IN CERTIORARI.
    Submitted October 17, 1981
    Decided April 18, 1932.
    Before Justices Trenoiiakd, Daly and Donges.

      For the defendant in certiorari, Meyer Q. Kessel (James F. X. O’Brien, of counsel).
    For the prosecutor in certiorari, Joseph 0. Paul.

   Per Curiam.

This writ of certiorari brings up for review an order made by the deputy commissioner of the workmen’s compensation bureau directing payments under the Workmen’s Compensation act to be paid to the widow, the petitioner, for and in behalf of the minor children.

The right of the commissioner to make that order is challenged.

There is no dispute as to the amount to be paid or the right of those named in the order to receive the amount set opposite their names. As we have pointed out the petitioner was the only surviving parent.

We think the order was justified. Pamph. L. 1928, ch. 135, p. 287, provides that “payment on behalf of infants shall be made to the surviving parent, if any, or to the statutory or testamentary guardian.” So, too, Pamph. L. 1919,. ch. 93, ^ 19, provides:

“In case of death compensation payments may be made directly to dependents of full age and on behalf of infants to the surviving parents, if any * * Moreover, chapter 136 of the laws of 1928 gives the commissioner the right to appoint a representative with power to act for the person who may be entitled to compensation, but is legally unable to-properly receive or disburse the compensation. The prosecutor complains that the order did not require the petitioner to-give a bond. But this was a matter of discretion (Pamph. L. 1919, ch. 93), and it appears in the order that the deputy commisioner instituted an investigation and found that the-petitioner was a capable and fit person to receive the compensation payments for the benefit of the children.

So we find no fault with the order and this view is supported by the case of Mountain Ice Co. v. Durkin, 105 N. J. L. 636; 147 Atl. Rep. 451, where the widow filed a petition for herself and mentioned the children in the pleadings. There the court pointed to the language of the statute that “payment on behalf of infants should be made to the surviving parent, if any, or to the statutory or testamentary guardian,” and said, “the mother being alive she had the right to sue, as she did, and it was lawful to make compensation for the children, and provide for its distribution * * * as the judgment did.” The order and judgment under review will be affirmed, with costs.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    ALFRED A. STEIN, RECEIVER OF TERMINAL WAREHOUSES, INCORPORATED, (FORMERLY TERMINAL DEVELOPMENT COMPANY), CLAIMANT-PLAINTIFF, v. PENNSYLVANIA DOCK & WAREHOUSE COMPANY ET AL., DEFENDANTS. HUDSON-BUILDERS’ MATERIAL CORPORATION, INCORPORATED, A NEW JERSEY CORPORATION, CLAIMANT-PLAINTIFF, v. COTELLI CONSTRUCTION COMPANY ET AL., DEFENDANTS. COTELLI CONSTRUCTION COMPANY, CLAIMANT-PLAINTIFF, v. TERMINAL WAREHOUSES, INCORPORATED, ET AL., DEFENDANTS. HOFFMAN-ELIAS, INCORPORATED, OF NEW JERSEY, CLAIMANT-PLAINTIFF, v. TERMINAL WAREHOUSES, INCORPORATED, ET AL., DEFENDANTS. DESLAURIES COLUMN MOULD COMPANY, INCORPORATED, CLAIMANT-PLAINTIFF, v. COTELLI CONSTRUCTION COMPANY ET AL., DEFENDANTS. THE W. W. FARRIER COMPANY, A CORPORATION OF NEW JERSEY, CLAIMANT-PLAINTIFF, v. TERMINAL WAREHOUSES, INCORPORATED, ETC., ET AL., DEFENDANTS.
    Decided April 13, 1932.

      For Alfred A. Stein, receiver of Terminal Warehouses, Incorporated, &e., Marie A. Sullivan.

    For the claimant-plaintiff Hudson Builders’ Material Corporation, Incorporated, Edwards, Smith ■& Dawson.

    For the claimant-plaintiff Deslauries Column Mould Company, Incorporated, Greenberg, Brenner & Weitz (Saul Nemser, of counsel).
    For the claimant-plaintiffs Cotelli Construction Company and Hoffman-Elias, Incorporated, of Hew Jersey, Joseph Moritz (Saul Nemser, of counsel).
    For the claimant-plaintiff W. W. Farrier Company, Charles E. Hendrichson.

    For the defendant Pennsylvania Company for Insurances on Lives and Granting Annuities, trustee, McDermott, En-right £ Carpenter.

    For the defendants The Associates of the Jersey Company, the United Hew Jersey Eailroad and Canal Company and The Pennsylvania Eailroad Company, owners, the Eeal Estate Land Title and Trust Company of Philadelphia, trustee, and the Pennsylvania Eailroad Company, mortgagees, Wall, Haight, Carey & Hartpence.

   Brown, C. C. J.

This matter is before the court on motions of the defendant owners, other than the Pennsylvania Dock & Warehouse Company, and the defendant mortgagees, to strike out the complaints and to discharge and vacate the liens filed by the plaintiffs on the grounds that “the actions were improvidently and illegally filed and instituted contrary to law.” The moving parties also crave oyer of the contract mentioned in the complaint; the lease referred to therein and the alleged consents of the owners in writing relied upon by the claimants for the erection of the buildings.

Subsequent to the return day of the motions the plaintiffs moved to amend their complaint by alleging an oral contract entered into wherein the defendants consented to the construction of the buildings and waived the conditions of the lease and consents in writing relied upon by the plaintiffs in the original complaint in so far as they provided that no liens were to be impressed upon the lands and buildings.

Following our modern practice copies of the written instruments were furnished in answer to the demand for the reading of those instruments in response to the oyer craved. The motion to amend the complaint was not granted at the time it was made but the plaintiffs were allowed the opportunity of presenting their form of amendment with affidavits ■to support the allegations therein contained for the purpose of first determining whether the amendments should be allowed. The plaintiff W. W. Farrier Company, filed afEdavits to support the motion to amend and those affidavits were relied upon by some of the defendants to support their proposed amendments. The court does not find in the affidavits thus furnished any proof to support the allegations in the proposed amendments but on the contrary affidavits submitted by the defendants clearly prove that the proposed amendments are sham and therefore the motion to amend the complaints will be denied.

There remains for determination the original motions made by the defendants to strike out the original complaints. In order to determine those motions it is necessary to make reference to the pleadings in the case and the circumstances surrounding the litigation.

The suits arise out of the construction of warehouses on the property located at what is known as the Pennsylvania Terminal in the city of Jersey City. The contract was made in September, 1929, in writing, for the construction of those buildings by the Terminal Warehouses, Incorporated, formerly known as the Terminal Development Company, with the defendant Pennsylvania Dock & Warehouse Company, a corporation oí ISTew Jersey, whereby the contracting company agreed to furnish the labor and materials necessary to erect the buildings for the last mentioned company. The complaint and the schedules annexed thereto are to the effect that the contract price for the work and materials was $7,675,270; that extras consisting of alterations and additions resulted in an additional charge of $1,324,732.09, making a total claim of $9,000,002.09. There appears to have been payments made and credits allowed totaling $7,813,592.80, leaving an amount claimed to be due of $1,186,409.29.

The defendants making the motions to strike contend the motions should be allowed for the reasons: (1) that as to the interests of the Pennsylvania Eailroad Company, United Uew Jersey Eailroad and Canal Company and The Associates of the Jersey Company, the buildings were not erected with the consent in writing of such owners as required by the Mechanics’ Lien law; (2) that the motions should prevail as to all the defendants because the building contract as well as the lease from the Pennsylvania Eailroad Company provided that no liens should be filed against the property upon which the buildings were erected.

The fee in the land involved is vested in a corporation known as The Associates of the Jersey Company, which company leased the lands to the United ISTew Jersey Eailroad and Canal Company and this lease was thereafter assigned to the Pennsylvania Eailroad Company. The Pennsylvania Eailroad Company in August, 1929, leased the land described in the complaint to the Pennsylvania Dock & Warehouse Company and The Associates of the Jersey Company and the United ISTew Jersey Eailroad and Canal Company consented in writing to this lease and the buildings were erected by the warehouse company as lessee of the Pennsylvania Eailroad Company under contracts with the Terminal Warehouses, Incorporated.

The interest and estate in the land of the Pennsylvania Railroad Company, The Associates of the Jersey Company and the United New Jersey Railroad and Canal Company cannot be subject to a lien in law unless a consent in writing,, as provided in the Mechanics’ Lien act, is proved. The plaintiffs or claimants rely for those consents upon the provisions-of the lease to the warehouse company. This lease as well as all other leases referred to in the pleadings were duly recorded in the county clerk’s or register’s office where they were required to be recorded by law in order to effect constructive notice to those who might be effected thereby. The-lease between the Pennsylvania Railroad Company and the Pennsylvania Dock & Warehouse Company provided for a. rental to be paid as well as other conditions to be performed by the lessee including the provision that—

“The lessee shall pay all costs, expenses and liabilities arising out of or in any way connected with the construction, thereof and shall keep the demised premises and structures-thereon free and clear from any and all liens of mechanics, or materialmen and all liens of a similar character arising-out of or growing out of the construction, repair, alteration, or maintenance of such buildings.”

The lease made by the United New Jersey Railroad and Canal Company to the Pennsylvania Railroad Company is-dated June 30th, 1871. The lessee in that lease, under date of August 23d, 1929, consented in writing to the making of the lease between the Pennsylvania Railroad Company and the Pennsylvania Dock & Warehouse Company. The lease between The Associates of the Jersey Company and the United New Jersey Railroad and Canal Company was made in February, 1877. The lessee of this lease, did, in the month of August, 1929, consent in writing to. the making of the lease between the Pennsylvania Railroad Company and. the Pennsylvania Dock & Warehouse Company.

The agreement between the Pennsylvania Dock & Warehouse Company and the Terminal Development Company was made on September 1st, 1929. By this agreement the-Terminal Development Company agreed to erect and construct the buildings upon the land of the Pennsylvania Bail-road Company which is the subject of this litigation. The buildings were to be constructed in three units, known as 1, 2 and 3, according to drawings and specifications. This agreement provides for the contractors to construct the buildings and provide all materials and labor therefor at its own cost and expense. It is provided in paragraph 13 of the agreement that—

“No lien or claim of a contractor shall be filed against the structures or the premises upon which same are to be erected or any part thereof, and no lien or claim of contractors or subcontractors, mechanics, laborers, materialmen or others shall be filed against the structures or the premises on which the same are to be erected or any part thereof.”

The plaintiffs in their respective complaints, and on the argument of those motions, rely upon the terms of the lease made by the Pennsylvania Bailroad Company to the Pennsylvania Dock & Warehouse Company, as well as the written consents to the making of that lease executed by the other parties interested in the remainder or the leasehold interests of the property upon which the buildings were erected as being the consents in writing required by the Mechanics’ Lien law to charge the property with the liens claimed.

Paragraph 7 of the Mechanics’ Lien law of 1898, provides:

“If any building be erected by a tenant or other person than the owner of the land, then only the building and the estate of such tenant or other person so erecting such building shall be subject to the lien created by this act and the other provisions thereof, unless such buildings be erected by the consent of the owner of such lands in writing, which writing may be acknowledged or proved and recorded, as deeds are, and when so acknowledged or proved and recorded, the record thereof and copies of the same, duly certified, shall be evidence in like manner.”

It thus appears that the statute requires the consent of the owner of the land and the consent of the tenant, if his estate is to be effected, before the land or estate can be made subject to a lien. The leases upon which the claimants rely as evidence of the alleged consents in writing disclose that those leases particularly provide and are made upon the condition that the lands are not to be subject to any lien claims. It appears beyond question that all of the leases made are leases expressly providing that the lands should not be impressed with liens and such an agreement cannot legally be construed as containing the consents of the landowner or lessor to have their respective estate effected by a lien claim.

It further appears that all of those leases were duly recorded in the offices of the register or county clerk wherein the land is situate thereby furnishing statutory and constructive notice to all of the plaintiffs, including the contractors and subcontractors, that the lands upon which the buildings were to be erected were not to be made subject to liens.

In order for the lien to attach the consent must be given in the manner prescribed by the statute and with the intention of subjecting the land to a lien. The owner of lands who permits a building to be erected by another upon his land has the protection of the statute until he explicitly consents in writing to have the land become subject to a lien and the law exempts the land from a lien until that consent is given. The Associates of the Jersey Co. v. Davison, 29 N. J. L. 415. Even though permission is given by the owner or tenant to construct buildings upon the land at the cost and expense of the builder, as was done in the instant cases, such permission has been construed as not being the full consent required by the Mechanics’ Lien law, in order to impress a lien upon the land.

As state in the case of Hervey v. Gay, 42 N. J. L. 168 (at p. 176) :

“It will be observed that both the lease and the subsequent paper contain the qualification that the repairs shall be at the cost and expense of the tenants.

“The written consent which, under the lien law, will bind the land of the owner for repairs contracted for by the tenant, must be absolute in its terms. If the writing giving permission to the tenant to repair contain a clause that the same shall be done without any expense to the owner, but at the cost of the tenant, it is not the consent contemplated by the eighth section of the Mechanics’ Lien law. Such qualification is inconsistent with consent to encumber the land of the owner for another’s indebtedness.

“The plaintiffs in this suit invoke the lease and subsequent writing to make the land liable. They cannot claim rights under part of those instruments and reject the remainder. The clauses which provide that repairs shall be at the cost and expense of the tenant must be construed in connection with the other provisions of the writings.

“Where the paper relied upon as a consent of the owner to the making of repairs by another person contains a proviso that the repairs shall not be at the expense of the owner, it is not consent within the meaning of the eighth section of the Mechanics’ Lien law.”

Ho particular form of words are necessary to effect a lien; but, nevertheless, the statutory requirements must be fulfilled and it must be clearly shown that the owner intended that his land should be subjected to a possible lien for work contemplated.

It appears in the cases under consideration that not only the contractor but the subcontractor had notice of the provisions of the leases referred to protecting the lands in question from building liens. When a contractor and subcontractor know that a building contract under which they propose to accept employment contains a provision that no liens shall be asserted, the mere acceptance of such employment will bar them from asserting liens in opposition to such provision. Bates Machine Co. v. Trenton, &c., Co., 70 N. J. L. 684; 58 Atl. Rep. 935.

The plaintiff W. W. Farrier Company contends that its lien should attach because specifications were not filed for one of the units that were to be constructed. The court does not see that this omission, if it did exist, effects the legal status of this plaintiff as to its lien claim because this plaintiff accepted its employment with full knowledge, or at least constructive knowledge, of the limitations contained in the leases precluding the imposition of mechanics’ liens upon the lands whereon the buildings were constructed. This plaintiif as well as the other plaintiffs are precluded, because of those provisions in the leases, from filing their liens and bringing suit thereon.

The motions of the defendants to strike out the complaints and vacate the lien claims filed will be granted and an order may be entered to that effect. This determination, of course, does not effect the right of the subcontractors to sue the general contractor and obtain, if they are entitled thereto, a general judgment against the general contractor.


author: Ackebson, S. C. C.

text:
    CITIES SERVICE SECURITIES COMPANY, A CORPORATION, PLAINTIFF, v. WILLIAM W. McFARLAND, DEFENDANT.
    Decided April 20, 1932.
    For the plaintiff, John Milton.

    For the defendant, Murray D. Welch.

   Ackebson, S. C. C.

This matter comes before me upon a motion to strike out the defendant’s answer upon the grounds that the body of the answer, and the four separate defenses, do not set forth any legal defense to the amended complaint, and that the denials contained in the body of said answer as sham.

The amended complaint seeks to recover damages for the breach of a contract alleged to have been made between Cities Service Securities Company and William W. McFarland, a copy of which is attached to the amended complaint and made a part thereof, and provides as follows :

“The undersigned, owner of four thousand four hundred and twenty-four shares of the capital stock of Warner-Quinlan Company (a Maine corporation), which are this day being transferred to Cities Service Securities Company in exchange for two thousand two hundred and twelve shares of the common capital stock of Cities Service Company (a Delaware corporation), does hereby agree, as consideration for such exchange, that none of said shares of Cities Service Company common stock will be sold or disposed of at any time within one year from the date hereof, unless said shares are first offered for sale to Henry L. Doherty & Company, fiscal agents for Cities Service Securities Company, at their office at Ho. 60 Wall street, New York City, who shall have the right and option to purchase the whole or any part of the shares so offered at a price equal to one point under the price of the last sale of said Cities Service Company common stock on the Hew York curb exchange on the day on which said stock is offered to Henry L. Doherty & Company; and said Henry L. Doherty & Company shall have until twelve o’clock noon of the following day to determine whether or not to exercise such option. If Henry L. Doherty & Company shall fail to exercise said option so to purchase by twelve o’clock noon of the day following such offer, then the undersigned shall have the right during the balance of that same day in which Henry L. Doherty & Company failed to exercise such option, to dispose of the shares- so offered, as he is in his uncontrolled discretion may determine. But if the undersigned does not sell such shares so offered during the balance of said day, then they must be reoffered to Henry L. Doherty & Company, in the same manner, before said shares can be sold on any subsequent day during the period of one year from the date hereof. If any shares of Cities Service Company common stock are sold by the undersigned in violation of this agreement, Henry L. Doherty & Company shall have the right and option at any time within sixty days after the discovery thereof, to tender to the undersigned the number of shares of Warner-Quinlan Company capital stock above mentioned, and thereupon Henry L. Doherty & Company shall become entitled to demand and receive from the undersigned, and the undersigned agrees to deliver to Henry L. Doherty & Company, the number of shares of Cities Service Company common stock .above mentioned.

Dated, Hew York, February 27th, 1931.

Witness:

H. C. Reigby. W. W. MgFakland.”

The breach of the contract alleged in the amended complaint is that the defendant, McFarland, sold the shares of stock of the Cities Service Company, transferred to him pursuant to said agreement, within one year from the date of the agreement, without first offering the same for sale to Henry L. Doherty & Company, fiscal agents for Cities Service Securities Company, as required by the aforesaid agreement.

For convenience we will consider the separate defenses first before disposing of the body of the answer. The first separate defense alleges that the complaint does not disclose a cause of action for one or more of the following reasons:

(a) “Ho facts are alleged upon which the court can lay any basis for the assessment of damages.”

It is sufficient answer to this contention that from the breach of a contract damages are presumed and the plaintiff is entitled to recover at least nominal damages. New Jersey School and Church Furniture Co. v. Board of Education, 58 N. J. L. 646; 35 Atl. Rep. 397.

(b) “Ho facts are alleged to show when and where the alleged contract was breached.”

It is sufficient to say that the complaint adequately sets forth the cause of action which is the basis of this suit under the existing practice.

(c) “Ho facts are alleged to show how the plaintiff has been damaged by the alleged breach by the defendant.”

As already noted the breach of the contract, being fully alleged in the complaint, the plaintiff would be entitled to nominal damages at least. The defendant would be fully protected by a bill of particulars, inasmuch as the complaint alleges that the “plaintiff demands as damages the sum of $30,000.”

(d) “Ho facts are alleged to show what, if anjg interest the plaintiff has in the alleged contract.”

This defense raises the principal question set up by the answer. A copy of the contract is incorporated in the amended complaint and this very clearly shows that the basis of the contract was an exchange by the Cities Service Securities Company of two thousand two hundred and twelve shares of Cities Service Company common stock to the defendant, William W. McFarland, in exchange for four thousand four hundred anf twenty-four shares of the capital stock of the Warner-Quinlan Company. McFarland expressly agreed as consideration for such exchange that none of the shares of the Cities Service Company stock would be sold or transferred at any time within one year from the date of the contract unless such shares were first offered for sale to “Henry L. Doherty & Company, fiscal agents of Cities Service Securities Company.” This is enough to show that the interest of Cities Service Securities Company in the contract was that of a principal and that Henry L. Doherty & Company was merely an agent. Since these facts appear from the contract itself, the Cities Service Securities Company is the proper plaintiff in this case.

(e) “Ho facts are alleged to show that the plaintiff has suffered any monetary damages.”

This is not so for the reasons above stated. All of the first separate defense will therefore be stricken out, as not setting forth a legal defense.

The second separate defense alleges that “the paper set forth as Exhibit A to the amended complaint is so vague, indefinite and uncertain, that it does not constitute a valid and binding contract.”

An examination of the copy of the contract annexed to the complaint shows that it has all the essentials of a valid contract and is not vague, indefinite and uncertain. The second separate defense will, therefore, be stricken out as not disclosing a legal defense to the amended complaint.

The third separate defense is to the effect that the restrictions placed upon the defendant regarding the sale of the capital stock of the Cities Service Company transferred to him constituted an unlawful restraint upon the sale and transfer of personal property so as to make the said contract wholly void. It is unnecessary to discuss this contention because the plain wording of the contract will not sustain the proposition.

The fourth separate defense asserts that the alleged contract between the plaintiff and defendant lacks mutuality and is therefore not binding upon the defendant. It is true that the contract is not signed by the plaintiff, but it is conceded that the stock agreed to be exchanged was actually delivered and accepted on each side and the plaintiff then, by full performance on its part, supplied the executed consideration for defendant’s promise not to sell the stock without first offering it to the plaintiff’s agent, thereby establishing mutuality under the rule laid down in Atlantic Pebble Co. v. Lehigh Valley Railroad Co., 89 N. J. L. 336; 98 Atl. Rep. 410. Having been acted upon by the plaintiff, the contract became binding. 13 C. J. 339, § (12).

Turning now to the denials contained in the body of the answer, I find that most of them turn on the question of whether or not the present plaintiff has any interest in the contract so as to bring the present action thereon. As this has already been answered in the affirmative, it would appear that such denials are sham.

It should be further noted that the defendant, in the body of the answer, denies that he sold the stock in question in violation of the agreement but admits that said shares were sold in the months of April and May, 1931. In his affidavit accompanying this motion the defendant asserts that said sale was by or on behalf of the Hew Jersey Hational Bank and Trust Company, which held such shares as collateral security for a loan to the defendant, and that the lien of the bank was superior to the rights, if any, of the plaintiff, and that the sale of said shares by said bank was in violation of an understanding between the bank and the defendant that the bank would, before selling said stock, offer it to Henry L. Doherty & Company. Conceding all of this to be true, it would constitute no defense to the present action, for the defendant expressly contracted that none of said stock would be sold or disposed of within one year without first offering it for sale to Henry L. Doherty & Company, as fiscal agents for the plaintiff herein. The plaintiff could not be deprived of its rights under this contract by the defendant’s dealings with the aforesaid bank or because of any understanding between them respecting the shares in question.

The defendant in his affidavit further alleges that the “two thousand two hundred and twelve shares of Cities Service Company stock at the time of the exchange thereof for the stock of Warner-Quinlan Company was so exchanged subject to the lien of the New Jersey National Bank and Trust Company, which was prior to the rights and liabilities expressed in the paper annexed to the complaint.” In the first place this matter is not set up in -defendant’s answer, and even if it had been, it would not be a valid defense as an attempt to vary a written instrument by parole. Naumberg v. Young, 44 N. J. L. 331.

■ The affidavit does not attempt to show that there was any modification of the agreement in question by any writing, and at the argument it was conceded that such was not the fact.

The denial of damages, while not effective as against nominal damages under the circumstances, nevertheless does raise a question of fact respecting substantial damages, which should be passed upon by a jury.

The entire answer, including the separate defenses, will, therefore, be stricken out for the reasons hereinbefore stated, except paragraph 6 which denies the damages, and as a term for allowing such denial to stand, the case will be put on the commercial calendar for May, 1932, without further notice, and no costs will be allowed on this motion.


author: Lawrence, S. C. C.

text:
    WILLIAM L. LIMING, PLAINTIFF, v. JOSEPH HOLMAN, IN A REPRESENTATIVE CAPACITY AS THE SHERIFF OF THE COUNTY OF OCEAN; ULYSSES S. GRANT, HOWARD APPLEGATE AND ROSS MATHIS, IN THEIR REPRESENTATIVE CAPACITY AS THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF OCEAN, AND THE COUNTY OF OCEAN, DEFENDANTS.
    Decided April 26, 1932.

      For the motion, Wilfred II. Jayne, Jr.

    Opposed, Morton S. Steinberg.

   Lawrence, S. C. C.

This is a motion to strike an original and an amended complaint, as filed in this suit, on the general ground that in neither aspect does it set forth a cause of action. Since I conclude that this is so, it is not found necessary to consider the question also raised as to the improper designation of certain of the defendants as individuals rather than the corporate body sought to be involved by proper legal title, of which they are said to have been members at the time of the incident which gives rise to the action.

Briefly summarized, it may be said that the complaint alleges that the county of Ocean maintains a common jail for the confinement and care of prisoners; that on November 1st, 1927, defendant Holman as sheriff of the county had the custody of the jail and the control of the prisoners confined therein, and, with the approval of the board of chosen freeholders, appointed plaintiff a keeper at a stated salary; that plaintiff assumed the duties usually performed by a warden or keeper of a jail, and, on September 1st, 1929, as hé locked a door to one of the corridors where prisoners were allowed to be during the daytime, one of them, in an attempt to escape, broke through the door, “rushed” plaintiff, forcibly threw him to the floor and kicked, beat and maltreated him, rendering him unconscious and injuring him. He accordingly seeks money damages upon the theory that the sheriff owed him the duty of providing additional assistance for his protection and safety and the board of chosen freeholders to provide a proper and “modern” lock upon the door which would have held it against such an attack as occurred, in both of which respects it is claimed defendants negligently failed, in that no proper assistance was furnished and the lock had been allowed to become worn and ineffective for the purpose intended, thus creating what is termed a common law nuisance.

It is urged in support of the motion that the allegations of the complaint disclose no negligence on the part of the defendants which can reasonably be said to have been the proximate cause of the injury sustained by plaintiff, as it obviously was due to the willful act of the prisoner; while the recognized rule exempts public corporations and officials from liability to any individual who receives an injury in consequence of any alleged negligence in the performance of governmental duties. Inasmuch, therefore, as the care and maintenance of prisoners in a county jail, as well as the maintenance of a building for use as such, are said to be governmental services and duties to be performed by public officials, it is argued that the negligent performance thereof is a breach of a public duty, for which no private action accrues to an individual who sustains an injury resulting therefrom, unless by statutory sanction. That this is a correct exposition of the rule applicable to the state of facts set down in the present complaint is indicated in such cases as The Freeholders of Sussex v. Strader, 18 N. J. L. 108; Wild v. Paterson, 47 Id. 406; 1 Atl. Rep. 490; Watkins v. Freeholders of Atlantic, 73 N. J. L. 213; 62 Atl. Rep. 1134; Freeholders of Hudson v. Kaiser, 75 N. J. L. 9; 69 Atl. Rep. 25; Bisbing v. Asbury Park, 80 N. J. L. 416; 78 Atl. Rep. 156; Buckalew v. Freeholders of Middlesex, 91 N. J. L. 517; 104 Atl. Rep. 308, and Johnson v. Board of Education of Wildwood, 102 N. J. L. 606; 133 Atl. Rep. 301. It is also to be said that the ease as 'stated does not come within the exception to the general rule pointed out in Hart v. Freeholders of Union, 57 N. J. L. 90; 29 Atl. Rep. 490,.or Ansbro v. Wallace, 100 N. J. L. 391; 126 Atl. Rep. 426. Since the complaint does not set forth a legal cause of action against the defendants, the motion to strike will be granted.