author: Pee Ctjeiam.

text:
    STANISLAWA KRUSZEWSKI, PLAINTIFF-RESPONDENT, v. ENTERPRISE LOAN AND INVESTMENT COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted January term, 1931
    Decided June 29, 1931.

      Before Justices Case, Daly and Doktges.
    For the plaintiff-respondent, Fast & Fast (Herman L. Fast, on the brief).
    For the defendant-appellant, Mulligan & Koenig.

   Pee Ctjeiam.

Plaintiff and her husband had owned certain real estate premises in the city of Newark as tenants by the entirety until the defendant purchased the husband’s interest in the property at an execution sale held by the sheriff. Thereafter the defendant collected from the tenants of the property $295, being one-half of the rent. Plaintiff received no rent from any source and brought this action to recover a one-half portion of what the defendant had collected. The case comes before us on stipulated facts. Judgment was rendered for the plaintiff in the sum of $147.50. From that judgment defendant appeals and argues on the brief that plaintiff’s proper remedy was by a bill of complaint in the Court of Chancery, that the District Court did not have jurisdiction to entertain the case and that the plaintiff is not entitled to recover from the defendant for the reason that the defendant did not collect more than its just share or proportion of the rents.

The present statute providing for an action of account (1 Comp. Stat., p. 8), was passed December 1st, 1794. Section 3 thereof was then (Pat. 142, § 3) as it-is now: “Actions of .account shall and may be brought and maintained by one joint tenant, or tenant in common * * * against the other, as bailiff, for more than comes to his or her just proportion * * It is conceded that the relation between the parties as to the property is that of tenants in common during the joint lives of the plaintiff and her husband. Zubler v. Porter, 98 N. J. L. 444. The first count of the state of demand recites the original ownership of the premises in question by the plaintiff and her husband as tenants by the entirety, the acquisition by the defendant of the husband’s share by judgment, execution sale and purchase, the collection by the defendant of certain rents therefrom, the right of the plaintiff as tenant in common with the defendant to the one-half part thereof and the demand therefor. We consider that the pleading stated a legal cause of action under the statute, apprising the defendant of the claim against it and so stating the cause that it might afterwards appear what was decided. DeJianne v. Citizens’ Protective Association, 79 Id. 107. The bringing of an action of account in the law courts was sustained in Willson v. Willson, 5 Id. 792. The action had been brought in the Court of Common Pleas and the language of the opinion follows:

“This is a writ of error to Gloucester Pleas in an action of account. This form of action is, in itself, very difficult, dilatory and expensive; it has long since fallen into disuse, in a great measure, in England; and in New Jersey, I have never known, nor heard of, more than two or three cases, either in my own time, or before; and I doubt whether even they were carried through to final judgment. Hence, we have but few precedents to guide us in a suit of this kind, and these few, of pretty ancient date; not very intelligible, and still less applicable at this day. In most instances, therefore, the action on the case, which is simple, easy, and well understood, has taken the place of this in the common law courts, and when that did not afford a complete remedy, resort has been had to equity, where confidential concerns and trusts of this kind are more properly cognizable. Still, however, like all other actions, it is open to all; and in some cases, where the expense of a Court of Chancery would be too heavy for the subject-matter, as it must be confessed, under its present establishment, it frequently would be, it may, also, be necessary.”

It may be said now as then that the proceeding is seldom resorted to but that like all other actions it is open to all. Section 30 of the District Court act gives to the District Court jurisdiction of every suit of a civil nature at law where the matter in dispute does not exceed $500. 2 Comp. Stat., p. 1962, § 30; Tapscott v. McVey, 82 N. J. L. 35; Eisler v. Halperin, 89 Id. 278. It seems to follow that the District Court had jurisdiction. It is to be noted that it is the jurisdiction of the District Court that is challenged and not the procedure within that court. The accounting, such as it was, seems to have been done directly before the court. Indeed, the amount collected is admitted, no charges against the fund are alleged, and there appears to be no reason for a discovery or for a further accounting than is contained within the brief stipulation.

The plaintiff, then, had her right of action against the defendant if the latter received more than came to its just share or proportion; which presents the question, what was the defendant’s just share or proportion? The defendant relies upon the proposition that the tenants were under obligation to pay twice the amount received by the defendant and that consequently the plaintiff must seek her funds from the tenant and not from the defendant; in other words, that the defendant has received its share and nothing more. We think that that theory is fallacious. The only income or rent received from the property by anybody is the sum of $295 and that was received by the defendant. There may never be any more received. The mere fact that rent is owing does not assure its collection. One tenant in common is entitled to an accounting from the other for the rents actually collected by the latter. O’Connell v. O’Connell, 93 N. J. Eq. 604. The judgment rendered constitutes a finding that on the accounting the defendant was indebted to the plaintiff in the sum of $147.50.

The judgment below should be affirmed, with costs.


source: Caselaw Access Project

author: Pee Cuhiam.

license: Public Domain

text:
    FOLKERT H. UKEN, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Submitted January term, 1931
    Decided June 29, 1931.
    Before Justices Case, Daly and Donges.
    For the rule, Henry H. Fryling (Henry J. Sorenson, on the brief).
    Contra, Francis A. Gordon (William E. Holmwood, on the brief).
   Pee Cuhiam.

Plaintiff is and was employed as a driver on a milk route for Borden’s Milk Company. He was injured on August 31st, 1927, by a collision between the horse and wagon driven by him (in his employment) and a trolley car. He was awarded a jury verdict of $10,000, and defendant’s rule to show cause why a new trial should not be granted runs only to the question of excessive damages.

Plaintiff was given emergency treatment on the day of the accident by a physician whose office was in the vicinity. Plaintiff was then taken to Muhlenberg Hospital where he remained for two days. From there he was removed to his home where he remained for nearly four weeks, a portion of which time he was in bed. On September 27th, 1927, he returned to his employment and has remained there ever since, doing the same work and at the same wage as before the accident. In addition to his wages he receives a commission on his deliveries and this, he testifies, is one, two or three dollars less per week than before his injuries; a development which may be due, as he claims, to inability to do quite as much work, or to the falling away of customers, which he says has transpired, in the course of trade.

Except for the first-aid treatment given on the day of the accident, and for a single other occasion when medicine was procured from another doctor for a headache, plaintiff’s sole medical attention has been by Dr. Steffens, who discharged the patient October 1st, 1927, and then gave his opinion that there would be no permanent disability. Dr. Steffens testifies that during that period of a little less than one month he visited plaintiff about three times and that he has “seen him once in a while for the last three years” at the doctor’s office—about five or six times; and that his bill for services was about $25. We find no proof of other disbursement or financial loss. The hospital bill and the wages during the period of incapacity were paid by the employer. Dr. Steffens also testifies that at an examination made shortly before the trial he found that the plaintiff still had some pain in the trapezius muscle on the left side and that while that had practically no effect upon the functioning of the shoulder it would have some effect on the backward motion of the arm and on moving the head from side to side. Without going at all into the minor lacerations, bruises, abrasions or strains' existing at the beginning or more fully into the proof of present conditions, we express our belief that the evidence is not persuasive of any serious, permanent functional disability.

Viewing the ease as a whole we consider that the verdict was excessive. If plaintiff within thirty days from'an order entered in accordance herewith shall accept a reduction of the verdict to the sum of $5,000, then the rule shall be discharged; otherwise it will be made absolute and a venire de novo awarded.


author: Pee Curiam.

text:
    ALBERT H. KNOETTNER, ALBERT KNOETTNER AND HARRY KNOETTNER, PARTNERS TRADING UNDER THE FIRM NAME OF A. H. KNOETTNER & SONS, PLAINTIFFS, v. INTEGRITY CORPORATION OF NEW JERSEY ET AL., DEFENDANTS.
    Submitted January term, 1931
    Decided June 29, 1931.
    Before Justices Case, Daly and Donges.
    For the rule, W. Louis Bossle.

      Contra, Wadding ton & Mathews.

   Pee Curiam.

This is on a rule to show cause issued to Fidelity Mortgage Finance Company, Incorporated, prosecutor, and directed against Marie Elizabeth Fox, respondent. Respondent is the assignee of a judgment rendered in favor of the plaintiffs against the defendants by confession on bond and warrant of attorney. Two of the defendants, namely, William B. Fox and Alice E. Fox, his wife, subsequent to the entry of the judgment, executed a bond and a mortgage on real estate to co-defendant, Integrity Corporation of New Jersey, which mortgagee assigned the bond and mortgage to Fidelity Mortgage Finance Company, Incorporated. The last named corporation, prosecutor, seeks by its rule to have the judgment set aside and canceled of record upon the ground that the affidavit annexed to the bond, upon which judgment was confessed, is insufficient in that it does not set forth the true consideration of the bond for which the judgment was confessed.

The affidavit recites that except for $15, which, by the terms of the bond, was to be paid by the obligors for reducing the bond to judgment, the amount of the obligation was made up of $326.63, an indebtedness by Integrity Corporation of New Jersey to the obligees “for certain plumbing and heating upon one job,” and $347.37 “for plumbing and heating work done upon a certain other job * * * for which outlay said Integrity Corporation of New Jersey agreed to reimburse said obligees and as to the other obligors in said bond named, to wit, Harold Paul Fox, Edward Earl Fox, William F. Fox and Alice E. Fox, the true consideration of said bond was their joint and several agreement to guarantee all of said indebtedness owing by the Integrity Corporation of New Jersey aforesaid unto said obligees;” to which is appended the usual recital that the debt is justly and honestly due and that the judgment is not confessed to answer any fraudulent intent or purpose. The case comes to us on a brief stipulation of facts, within which is the statement that the sum of $326.63 was the balance due for work upon the dwelling house situated on lots 32 and 33, section “L,” division A, Plan of Haddonleigh Revised, which is the property upon which the prosecutor’s mortgage was given.

We consider that the affidavit is susceptible of the interpretation that in the sale of the plumbing materials to Integrity Corporation of New Jersey the firm of A. H. Knoettner & Sons received also the guarantee from the owners of the properties that the bill would be paid. If that be so, then there was consideration for the bond. There is nothing in the record from which fraud may be inferred; certainly no fraud is proved. The judgment was of record prior to the execution and delivery of the mortgage and, of course, prior to the assignment to the prosecutor of the rule. The prosecutor, therefore, had notice. The prosecutor had no rights in the property or against the parties at the time the judgment was entered. It is rather difficult to determine the ground upon which the prosecutor, a complete stranger to the transaction at the time it occurred, and whose after-acquired interest was taken with constructive notice, and who undertakes neither to allege nor to prove fraud, may properly intervene.

The prosecutor asserts that it is not concerned with the proposition of whether or not there was any consideration for the guarantee but that its only concern is as to the sufficiency of the affidavit. This position is probably one of necessity, as the plain inference from the proofs is that there was consideration. Against this bald attack we think the affidavit is sufficient.

The rule will be discharged.


author: Pee Cueíam.

text:
    JOHN BACHARDE, JOSEPH BACHARDE, BY HIS NEXT FRIEND, JOHN BACHARDE, AND JOHN BACHARDE, INDIVIDUALLY; JOSEPH BALINT, BY HIS NEXT FRIEND, PAUL BALINT, AND PAUL BALINT, INDIVIDUALLY, PLAINTFFS, v. STEVE HOMUSIOK AND JOSEPH MISEWICZ, DEFENDANTS.
    Submitted January term, 1931
    Decided June 29, 1931.
    Before Justices Case, Daly and Donges.
    For the rule, Mackay <& Mackay.

    Contra, Irving 8. Zacharewitz.

   Pee Cueíam.

The case comes up on defendants’ rule to show cause why a judgment in the amount of $32,500 for Joseph Balint, minor, and $2,500 for Paul Balint, the father, beside costs to be taxed should not be set aside.

The judgment was for personal injuries to the minor and incidental damages to the father growing out of an accident wherein Balint was an invitee riding in an automobile driven by Joseph Baeharde. The accident was at night, and the truck of defendant Homusiok, driven by the defendant Misewicz, was standing on the concrete roadway while Misewicz was putting a canvas cover over the truck as a protection against rain which had begun falling. The car in which the boy was driving crashed into the rear of the truck and was completely demolished with the exception of the rear wheels. The alleged negligence lies in the position in which the truck was parked in the roadway and in the fact, charged but disputed, that the truck was without a rear danger light. It is admitted that Balint was seriously injured.

The points argued by defendants as grounds for a new trial are that the verdict was contrary to the weight of the evidence, that the damages were excessive and that the court erred both in its charge and in its refusal to charge.

Under the first point defendants argue that Baeharde, the driver of the ear, was negligent and that this negligence should be imputed to the plaintiff Joseph Balint under Schroeder v. Public Service Railway Co., 118 Atl. Rep. 337. We are unable to determine, as a court question, that Balint was guilty of contributory negligence, either directly or by imputation. The case cited is not an authority for imputing the driver’s negligence to a passenger.

Defendants further argue, under the same point, that the driver of the truck was not shown to be guilty of negligence. As already indicated, the pleadings raised two questions of negligence, one the relative location of the car in the roadway, the other the question of the rear light. It was alleged in the complaint that the truck was in the middle of the concrete, but that charge seems to have been abandoned and the question as to negligence in the position of the truck resolved itself into the question of whether or not the defendant Misewicz should have driven the truck over on the shoulder of the road instead of leaving it on, and at the' side of, the concrete.

Bacharde testified that he was driving his car eighteen or twenty miles per hour and that “all of a sudden something big and black appeared before me and before I could come to a stop I crashed right into it. Then I noticed it was a truck.” His examination proceeds thus: “Q. This big object that appeared before you, about how far in front of you was it when you first saw it? A. About fifteen or twenty feet. * * * Q. When it crashed into the truck, what effect did that have upon you? A. It knocked me unconscious.” Balint testified: “Q. How far away was the truck when you first saw it? A. About eight or ten feet. * * * Q. After the crash what happened to you? A. I was unconscious. Q. What was the next thing you knew? A. Being in Passaic Hospital. Q. And when was that ? A. About four weeks after the accident.” The testimony that there was no red light on the back of the truck is given only by Bacharde and Balint.

Assuming Bacharde’s testimony to be true that he first saw the truck loom up when at a distance of fifteen or twenty feet and that Bacharde was then going at the rate of eighteen or twenty miles per hour, the crash must have followed about, a second after the first suggestion that there was something-ahead. Allowing time for the mind to grasp the danger and for the muscles of the hand or foot to respond to the signal from the brain and for the brakes when applied to take effect, there could not have been much reduction in speed before the impact. This conclusion is verified by the extent to which Bacharde’s car was demolished. Calculating the speed at the lower limit given by Bacharde, namely, eighteen miles per hour, he was moving at the rate of twenty-six feet per second. The testimony convinces us that the crash was practically simultaneous with the first vision by Bacharde of the object ahead and that the possibility of detailed observation on that rainy night is so limited a space of time was practically non-existent. Balint says that he didn’t see the truck until eight or ten feet from it. As to him the opportunity for observation was cut directly in half as to that of Bacharde. We conclude that the testimony given by Bacharde and Balint as to whether there was or was not a red light on the back of the truck is not grounded in observation. Misewicz, driver of the truck, says that he had lighted the red light a half hour previously and that the light was of Presto-Lite gas. Mannuzza, a police officer, says that immediately after the accident he found the rear lamp broken off but that he touched a match to the broken piping and got a light. Harold Clark, a passerby, says that he saw the truck standing there just before the accident and that it had a red light lit. We find that the strong weight of testimony is in favor of the defense so far as the red light is concerned. Also, a review of the testimony as to the condition of the shoulder of the road throws the weight of the evidence in favor of the defendant on the proposition that in avoiding the putting of the great tonnage of the truck on the newly constructed ground at the side of the road, Misewicz was acting as a reasonably prudent man would have acted.

Our conclusion is that the verdict was contrary to the weight of the evidence.

We find it unnecessary to consider the remaining points.

The rule is made absolute.


author: Pee Cubiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ALLAN W. REDFIELD, PLAINTIFF IN ERROR.
    Argued January 21, 1931
    Decided July 2, 1931.
    Before Gummeee, Chief Justice, and Justices Tbenchaed and Lloyd.
    For the plaintiff in error, Harvey F. Carr.

    For the defendant in error, Clifford A. Baldwin, prosecutor of the pleas.
   Pee Cubiam.

The plaintiff in error, Allan W. Redfield, was convicted in the Camden County Court of Quarter Sessions upon an indictment charging that, on January 20th, 1927, he, holding an office of trust and profit under the city of Gloucester City, a public corporation existing under the laws of the State of New Jersey, said office being that of clerk of the water department of that city, did embezzle the sum of $1,000 of the money committed to his keeping by virtue of a certain payment made by or on account of the Air Reduction Sales Company, a consumer of water of the city, with intent to defraud the city.

After sentence, he sued out this writ of error, and assigns error on bills of exceptions and specifications of causes for reversal under section 136 of the Criminal Procedure act, he having elected to bring up the entire record of the trial.

The state’s evidence reasonably tended to show the following matters of fact: The Air Reduction Sales Company, a customer of water in the city of Gloucester City, was sent a bill for $1,146.24 for water rent, which bill was paid by the company by means of its check sent to the defendant, who was the clerk of the water department, drawn on the Central National Bank of Philadelphia to the order of the city of Gloucester City bureau of water, which check was dated November 22d, 1926. The check was deposited by the defendant in the bank account of the Gloucester Citjf water department at the Gloucester City Trust Company on December 17th, 1926. On that day defendant had in his employ to do some clerical work for him one Dorothy L. Kavanaugh, who was not in the employ or in the pay of the water department, and who was doing the work at her home. Under date of January 20th, 1927, Miss Kavanaugh wrote down and posted in the 1927 cash book an item of payment by the Air Reduction Sales Companjr in a column marked “total” and in another column marked “water rent” in an amount of only $146.24. She testified at the trial that she got this amount from a stub which was supplied to her by the defendant.

The handwriting expert called by the state testified concerning his examination of a pink sheet of paper marked with the number 88 which was contained in a book which had been turned over by the defendant to Norman D. Dorsett, an auditor of the state department of municipal accounts, which was described by the defendant to the auditor as the record of all metered consumption. The handwriting expert testified that the pink sheet of paper disclosed that there had been erasures upon the sheet in the places occupied at the time of the trial by the numerals “584976” and “25” and “$146.24,” and that book is an exhibit in the cause marked Exhibit S-S. All of the writing upon this pink sheet of paper was a carbon paper reproduction of the original writing, with the exception of the following: “1-20-27, Allan W. Redfield,” which was in original pencil writing; and the defendant himself on cross-examination testified that it was his practice to so write on the carbon copy of bills sent ont to customers when such bills were paid, and he admitted his signature in the original pencil writing upon such carbon copy of the bill as an indication that he knew such check had come in. The handwriting expert testified that the figures “584975” and “25” and “$146.24” were in the handwriting of “the same person” that filled up the body of this bill or receipt and who signed the name of A. W. Redfield on it, and who also made all the entries on page 168 of the cash book (Exhibit 8-6), which was in defendant’s handwriting, the state auditor having seen the defendant write up page 168 of Exhibit 8-6. The handwriting expert made use of that page 168 as a sample of the handwriting of the defendant.

We think that this evidence justified the jury in inferring that the defendant, knowing that the cheek for $1,146.24 had come in from the Air Reduction Sales Company, indicated the fact of payment by a date and his signature on the pink carbon copy of the bill, but wrote down, through the instrumentality of a sheet of carbon paper the amount of the payment as being only $146.24, after erasing some figures which previously indicated the true amount of the charge, and some figures which indicated meter readings, unit price, &o., the handwriting expert having testified that the writing over the erasures had taken place after the original copy of the next succeeding bill had been made out and torn from the book.

Other evidence submitted by the state tended to show the real shortage of the $1,000 mentioned in the indictment both in the accounts of the defendant and in the moneys turned over by him to the water department, and tended to negative any contention that in spite of improper bookkeeping the city might actually have received the $1,000 not entered in the cash book as part of the Air Reduction Sales Company’s payment. Upon the whole case we think that the proofs were amply sufficient to justify the jury in finding the guilt of the defendant and his intent to defraud the city of $1,000.

Defendant’s first point is that the indictment was insufficient because (a) the date of the commission of the offense charged appeared in Arabic numerals, and (b) that in the indictment there was no averment of the ownership of the moneys referred to therein nor any averment that the moneys were received by the defendant in his capacity as clerk of the water department.

The trial court permitted an amendment of the Arabic numerals “1927” to read “nineteen hundred and twenty-seven.” That amendment was properly allowed by virtue of section 44 of the Criminal Procedure act as interpreted by State v. Kern, 51 N. J. L. 259; State v. Johnson, 91 Id. 611, and State v. Mandell, 105 Id. 270.

With respect to the averment as to the ownership of the moneys embezzled and their receipt by the defendant in his capacity as clerk of the water department, we think that the indictment fairly apprised the defendant of the precise nature of the charge made against him, and that defendant was not thereby prejudiced in maintaining his defense upon the merits. The indictment was rested on section 167 of the Crimes act making it a high misdemeanor for any person holding an office of trust and profit under the authority of any public corporation existing under the laws of this state to embezzle any money, property or securities committed to his keeping, with intent to defraud any city or to fraudulently dispose of the same.

Embezzlement being a statutory offense the sufficiency of the indictment is to be tested by the requirement of the statute upon which it is bottomed. So tested, we think the indictment sufficient in respect to the averment as to the ownership of the money and that it was received in defendant’s capacity as clerk of the water department. State v. Bartholomew, 69 N. J. L. 160.

Defendant next argues that the court erred in admitting in evidence the ledger account of the Gloucester City Trust Company with the Gloucester City water department. We think not. The general ledger bookkeeper testified that he was familiar with the records of the trust company, although entries might have been made by several men, some of whom were no longer with the bank and their whereabouts unknown. But if there was technical error here, it is not perceived how the defendant could have been prejudiced thereby, for the ledger account appeared as only one of the foundations upon which the auditor established the comparison between the amounts with which defendant charged himself and the amount which he deposited with the Gloucester City Trust Company and later turned over to the city. And moreover the defendant in his testimony did not challenge any of the figures shown by the ledger account.

Defendant’s next contention is that there was no proof that “the clerk has any duty whatever with regard to the moneys of the water department of the city of Gloucester City,” and “that the indictment charges an embezzlement of money while the proofs relate to a check.”

The ordinance introduced in evidence provided that there should be a clerk of the water department and that ho should receive an annual salary of $300. There was testimony that the annual salary of $300 was paid to the defendant over a term of years comprehending the period in question, and the further proof that the water revenues of the city for the same period passed to the custody of the city treasurer by check from the defendant from four to eight times a year. That proof certainly tended to establish the defendant’s de facto trusteeship over such water revenue.

We think that the evidence tended to show the embezzlement of the money as charged in the indictment. If, as the evidence tended to show, the Air Reduction Sales Company did pay to defendant $1,146.24, and if the city did get from him only $146.24, then clearly he did embezzle the other $1,000, and it matters not that the proofs incidentally involve the handling of a check. There was ample evidence tending to show that defendant did receive into his custody the sum of $1,000 committed to his keeping as a part of the $1,146.24 payment, and that the city has never received that $1,000, identified and earmarked as snclr, or any other $1,000 which might be it.

We believe that these observations in effect dispose of all points raised and argued requiring mention.

The judgment will be affirmed.


author: Per Curiam.

text:
    THE STATE ON THE RELATION OF THE CITY OF SEA ISLE CITY, A MUNICIPAL CORPORATION OF NEW JERSEY, RELATOR, v. MAURICE M. SOFRONEY, MAYOR OF THE CITY OF SEA ISLE CITY, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT.
    Argued May 6, 1931
    Decided June 30, 1931.
    Before Justices Trenchard, Daly and Donges.
    Eor the relator, W. Holt Apgar and Andrew G. Boswell.

   Per Curiam.

The city of Sea Isle City, the relator is a commissioned’ governed city of three commissioners under Pamph. L. 1911, ch. 221, p. 462, and the supplements thereof and amendments thereto. One of the commissioners of the city, and the commissioner chosen as its mayor, is Maurice M. Sofroney, the defendant. As the commissioner chosen as its mayor, he is under the statute the director of the department of public affairs and of the department of public safety. Hiram C. Love is a commissioner and the director of the department of streets and public improvements and of the department of parks and public property; Earl M. Waddington is the-•other commissioner and is the director of the department of revenue and finance. By a resolution adopted May 21st, 1929, all disbursements are made on order (cheek) of the board of commissioners, signed by the mayor, or acting mayor, and the city clerk, and counter-signed and accepted by the treasurer.

At a regular meeting of the board of commissioners, held on August 19th, 1930, there was presented for payment the following bills: General Electric Supply Corporation of Philadelphia, $111; Seashore Supply Company, Atlantic 'City, Yew Jersey, $80.19; Mueller Company, Incorporated, Bronx, Yew York, $156.87; Electric Controller and Manufacturing Company, $11.56, and William Mann Company, Philadelphia, Pennsylvania, $15.63. These bills were properly itemized and sworn to and there is no question, and there was no question, of the honesty of the bills; that the services and supplies embraced therein were reasonably necessary to the needs and benefit of the city, and that the services and supplies went into the departments of the commissioner who authorized the bills. The mayor, as one of the three commissioners, objected to the approval of the bills on the sole ground that the work and materials had not been authorized by the board of commissioners, as a board, before the individual commissioner had ordered the work and materials. On roll call the bills were approved by the board of commissioners, Love and Waddington voting “aye” and Sofroney voting “nay.” Checks for the payment of the bills were regularly made out, signed by the city clerk and treasurer and presented to the mayor for his signatures. He refused to sign the checks and still does refuse to sign the checks. Upon the application of the city, there was issued a rule to show cause why a mandamus should not be issued, commanding the mayor to sign the checks.

It is not necessary now to pass on how far the director of a department of a commission governed city can go in contracting debts for the needs of his department without first getting authority from the commissioners as a board, since it is admitted that these bills would have been entirely legal if they had been ordered by the whole board. Therefore, even though the work and materials had been irregularly ordered (which we do not so decide) the subsequent assent and ratification by the majority vote of the board of commissioners-convert the bills in this case into legal debts.

This is not an application to compel the city to pay a debt; it is an application to compel the mayor to do a merely ministerial act—append his signatures to the checks for the’ payment of the bills regularly ordered paid by the majority vote of the commissioners. He, as mayor, has no veto power. There is no dispute about the facts and the law is with the-applicant for the writ. Ahrens v. Fiedler, 43 N. J. L. 400; Cory v. Freeholders of Somerset, 44 Id. 445; Cory v. Freeholders of Somerset, 47 Id. 181; Bourgeois v. Freeholders of Atlantic, 82 Id. 82; American LaFrance Fire Engine Co. v. Seymour, 72 Id. 92.

A peremptory writ of mandamus should issue, with costs.


text:
    ANGELINO BENEDETTO AND VITO BENEDETTO, PLAINTIFFS-RESPONDENTS, v. HUDSON AND MANHATTAN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted February 2, 1931
    Decided July 2, 1931.

      Before Gummebe, Chief Justice, and Justices Tbenchabd and Lloyd.
    Eor the plaintiffs-respondents, Barison & Barison (Morris E. Barison, of counsel).
    Eor the defendant-appellant, Collins & Corbin (Edward A. Maridey and Charles W. Broadhurst, of counsel).
   Pee Curiam.

This is an appeal from a judgment in favor of the plaintiffs entered upon verdicts for the plaintiffs and against the defendant company.

The action was instituted for the recovery of damages for injuries sustained by Mrs. Benedetto on February 17th, 1939, while a passenger on a train of the defendant. Mr. Benedetto, her husband, was a party plaintiff to recover medical expenses and loss of services of his wife due to her injury and disability resulting from the accident.

The evidence on the part of the plaintiffs reasonably tended to show the following matters of fact: The wife boarded the defendant’s tube train at six p. m., at Twenty-third street, New York City, which was to proceed to Journal Square, Jersey City. The train was overcrowded with passengers, and she was standing by one of the doors when the accident occurred. The train proceeded as far as Christopher street, New York city, and on leaving Christopher street proceeded some distance, when the motorman of the train saw a fire on the roadbed about four feet along and I foot high. He nevertheless operated the train over the fire at a speed of about eight miles an hour, when suddenly a conductor on the train applied the emergency brake, and the train, consisting of seven cars, heavily laden with passengers, stopped directly over the flames of the fire, and some of the rubber covered appliances began to burn, and the flames were seen coming up between the cars. The train was in total darkness and began to fill with heavy smoke. As a result of inhaling the smoke and being trampled upon by other passengers in this overcrowded train, the plaintiff was injured.

The defendant company contended that a short circuit occurred in one of the cables underneath the train, causing the accident.

The rule to show cause why the verdict should not be set aside as excessive was issued and heard by the trial judge and was discharged; and the case is now here on appeal, on exceptions reserved, upon grounds which will now be dealt with.

The first point is that on the trial the court erred in refusing to direct a verdict for the defendant, because there was no evidence of any negligence on the part of the defendant which was the proximate cause of the accident.

We think that there was no error in the refusal to direct a verdict for the defendant. The railroad company owed to its passengers a high degree of care. Whalen v. Consolidated Traction Co., 61 N. J. L. 606. We believe that evidence in this case required the submission of the evidence to the jury to say whether the carrier or its servants in the exercise of reasonable care might have avoided the accident and the consequent injury to the plaintiff.

The defendant contended that the accident was due to a latent defect in the insulation of the wires, and was therefore unavoidable. Whether or not this was so was at most a jury question; and in respect thereto it is to be observed that the evidence was to the effect that the insulation of the wiring of these cars had never been tested except by operating the cars as a train, and neither was there any evidence to show that the insulation was ever tested by the manufacturers thereof in this respect. In this connection it is to be further observed that the evidence tended to show that there are two or three commonly known tests which might have been employed, and which were not employed, which were calculated to discover latent defects. And it is to be further observed that the testimony produced by the defendant company itself was that there were- seventy-nine feet of uncovered n on-fireproof wire under each of these cars, and the testimony of plaintiffs’ witnesses was that there were eight-two feet of non-fireproof wire.

We think it was open to the jury to find that there was a want of the requisite high degree of care upon the part of the operators of this train in driving the train, so constituted, over the flame of a fire one foot high and four feet wide, and that that negligent act was the proximate cause of the accident.

It is next said that the trial court erred in refusing to charge the defendant’s eighth request as follows:

8. “If in this case you find that the cause of the accident was a short circuit in the power cable under the car, and that that short circuit was caused by an inherent defect in the insulation on the cable and that that cable was encased in a steel conduit or pipe, and that the short circuit in the cable was something that could not be avoided in the exercise of a high degree of care, then your verdict should be for the defendant, even though the female plaintiff may have sustained injuries as a result of said accident.”

We believe the court did not err in refusing this request. As we have pointed out, an examination of the testimony will disclose that admittedly there were seventy-nine feet of non-fireproof wire underneath the train. A charge as requested would have improperly conveyed to the jury the idea that all the cables underneath the car were enclosed in a steel conduit or pipe, which was not true.

In Sheriden v. Laundry Co., 105 N. J. L. 608, the Court of Errors and Appeals said:

“It is sufficient to say that the request omits the recital of the salient facts, and that the trial judge is not required to charge what the law would be if certain isolated facts constituted the entire case. Consolidated Traction Co. v. Behr, 59 N. J. L. 477. The request was properly refused.”

In this connection it may be well to observe that the trial judge very carefully instructed the jury as follows:

“The defendant’s position is that this accident was unavoidable; that there was nothing connected with the accident which could indicate to the defendant that it was likely to take place, and that there was nothing connected with the accident which the use of a high degree of care on the part of the defendant could have enabled the defendant to have reasonably foreseen and anticipated. If you find that this is so, your verdict must be for the defendant. If you find there was no negligence on the part of the defendant, your verdict must be for the defendant. If you find there is nothing in the case which would warrant you in finding that the defendant, by the use of a high degree of care, could have done anything which would have prevented this accident, your verdict must be for the defendant. If you conclude, from the testimony that this was an unavoidable accident, your verdict must be for the defendant.”

The third point is that the court erred in refusing to charge the defendant’s ninth request as follows:

9. “If the power cable under the car was part of the permanent construction of the car, and it was encased in a steel conduit or pipe, and it was not the standard practice of railroad companies to break open such permanent construction of the cars, then it was not the duty of the defendant in this case to do so, and you cannot charge it with negligence for failure so to do.”

We think that this was likewise properly refused. It was not required by any testimony brought out at the trial. There was no testimony adduced at the trial as to the standard practice of railroads to break open any conduits or pipes for the purpose of inspecting the same.

It is next said that the trial court erred in refusing to charge defendant’s fourteenth request as follows:

14. “Even if there was a small fire outside of the two tracks near the left track, that would not charge the defendant with responsibility to the plaintiffs unless you find that that small fire was the cause of the short circuit in the main power cable. If it was not, then you can disregard this small fire as having anything to do with the accident.”

We think that request was properly refused. If the jury were to disregard the fire as requested, there would be nothing to account for the burning of the cars, and the testimony of defendant’s witnesses was that the bumpers one foot above tlie ties, and other appliances underneath the car, were burned and scorched, as well as the ties.

Moreover, with respect to all the foregoing requests, we find that they were adequately dealt with in the charge.

It is next said that the trial court erred in permitting questions put to witnesses who were passengers upon the train, as follows: Q. “How long were you in the hospital?” to one witness. To another witness, Q. “Were you hurt?” To another witness, Q. “Were you injured in this accident?” We think the questions were relevant and material to prove the conditions that existed in the train at the time of the accident. The defendant seemed to contend at the trial, and examined witnesses for the purpose of showing that there was little if any excitement; that everybody was properly taken care of during the accident and that no one was injured. It seems, therefore, that the questions may have been competent in that aspect; but if we are wrong about that, then we think that there was no such prejudicial error in the examination of these witnesses as would justify a reversal of this judgment.

Lastly, it is said that the court erred in refusing defendant’s motion for a mistrial. A witness was asked this question: Q. “Were you injured in this accident?” The answer was: A. “I should say I was. I got a judgment in this court.”

This answer was not responsive to the question and could not have been anticipated, and thereupon the court immediately said:

The court: “I do not think from anything that counsel asked that he could reasonably have anticipated such an answer. I will, of course, instruct the jury to disregard it. The jury is going to disregard that comment. You are passing on the plaintiff’s case as presented to you, and on the defendant’s case as presented to you; and you are not going to decide in favor of the plaintiff in this case because somebody else has sued the defendant. You are the jury in this case and you are not going to be guided by what any other jury did.”

It seems to us, in view of the action of the judge, that the-motion fox a mistrial founded upon this incident was properly refused.

The judgment will be affirmed, with costs.


author: Pee Cttbiam.

text:
    PETER McHUGH, Jr., AN INFANT, BY HIS FATHER AND NEXT FRIEND, PETER McHUGH, Sr., AND PETER McHUGH, Sr., IN HIS OWN RIGHT, PLAINTIFFS-RESPONDENTS, v. ALBERT PROSSER AND WILLIAM COWARD, TRADING AS COWARD BROTHERS, DEFENDANTS; ALBERT PROSSER, APPELLANT. EFFIE I. REEVES, AN INFANT, BY HER NEXT FRIEND, CHARLES W. REEVES, AND CHARLES W. REEVES, IN HIS OWN RIGHT, PLAINTIFFS-RESPONDENTS, v. ALBERT PROSSER AND WILLIAM COWARD, TRADING AS COWARD BROTHERS, DEFENDANTS; ALBERT PROSSER, APPELLANT.
    Argued January 20, 1931
    Decided July 2, 1931.
    Before Gummeee, Chief Justice, and Justices Tkenchakd and Lloyd.

      Eor the plaintiffs-respondents, Solve Tuso and Thomas G. Tuso.

    For the defendant-appellant, McDonald & Joseph and Thompson & Hanstein.

   Pee Cttbiam.

These two cases were tried together in the Cumberland County Common Pleas Court. Each resulted in a verdict in favor of the defendant William Coward, and a verdict and judgment in favor of each of the plaintiffs and against the defendant Albert Prosses, from which judgment Prosser appeals.

The suits arose out of an accident which took place February 21st, 1929, at which time the infant plaintiffs were riding upon sleds attached to the truck of one Coward. The infant plaintiff Peter McHugh, Jr., was fifteen years of age; the infant plaintiff Effie I. Beeves was fourteen years of age. The accident occurred about nine-thirty p. at. The evidence tends to show that the infant plaintiffs had been out with their sleds; that they lived near by the place of the accident; that they stopped at a garage and were invited by the driver of the Coward truck to be hauled along the public highway known as Malaga road on their sleds attached to the Coward truck; that the infant plaintiffs accepted the invitation, and were riding on their sleds tied to the rear of the Coward truck by a rope about twelve feet long; that the Malaga road was covered with snow, which had in part been removed from the middle of the road, thereby leaving ample room on the partly cleared concrete for the passing of two automobiles. The night was a night of very remarkable visibility, being a very bright moonlight night, which in connection with the snow covering the ground, enabled one to see almost as well as in the daytime, making objects quite visible for about nine hundred feet. The place where the accident occurred was in the open country. The foregoing matters of fact appear without substantial dispute.

The defendant’s grounds of appeal are only these: (1) because the court refused to nonsuit the plaintiffs; (2) because the court refused to direct a verdict for the defendant Albert Prosser.

It is argued that these motions were improperly denied, because of want of evidence of negligence of the defendant and because the infant plaintiffs were guilty of contributory negligence barring recovery as a matter of law.

We think that neither claim is well founded. We believe-there was evidence requiring the submission of both questions to the jury. The evidence produced by the plaintiffs-was to the effect that the Coward truck was pulling the infant plaintiffs along the highway at about twelve miles an hour on plaintiffs’ right-hand side of the road; that when the-lights of defendant’s automobile appeared coming towards-the Coward truck between four hundred and five hundred feet away, the children were “hollering” or “screaming”' because, as the testimony indicated, the children were frightened, partly because they were going so fast and possibly because of ■ the reflected lights of defendant’s car coming towards them. This hollering or screaming, which was very loud, attracted the attention of various people in the neighborhood. It continued almost up to the instant of the accident. The evidence tended to show that persons in the neighborhood also heard the “screeching” of the brakes of defendant’s car for six or seven seconds and over a space of about one hundred and fifty feet as it came on to the point of the-accident, and that the defendant’s car was traveling as variously said, “thirty-five miles an hour,” “awful fast” and “very fast.” It was therefore permissible, we think, for the jury to-conclude that the driver of defendant’s car knew, or in the exercise of reasonable care, ought to have known, of the presence of these children following the Coward truck on their sleds.

Significant and pertinent parts of the evidence just referred to are denied by the defendant; but we are not here concerned with what might have happened on a rule to show cause why the verdict should not be set aside; we are concerned with the question of whether or not there was any evidence justifying an inference of facts sufficient to go to the jury.

The evidence further tended to show that as the defendant’s automobile reached a point opposite the Coward truck, it turned to its left and cut in across the center of the highway, striking the sled upon which the infant plaintiffs were riding and injuring both infant plaintiffs.

This also was denied by the defendant; but there is this significant admission in the brief of the defendant. It says: “We, of course, must concede that there is some testimony in this case that after Prosser passed the truck he turned his car to the left.” It further appears in the case that notwithstanding the efforts of the driver of the Prosser car to stop before reaching the truck, as evidenced by the “screeching” of the brakes, his speed and the road conditions made his efforts ineffective, and possibly or probably resulted in his losing control as he passed the Coward truck, for it appears that his automobile proceeded some considerable distance before it was brought to a standstill.

The conclusion that we reach is that there was evidence as to defendant’s negligence requiring the submission of that question to the jury.

With respect to the alleged contributory negligence of the infant plaintiffs, we reach the conclusion that that question was properly submitted to the jury, considering more particularly the age of the infants. Solomon v. Public Service Railway co., 87 N. J. L. 284; David, Administrator, v. West Jersey and Seashore Railroad Co., 84 Id. 685.

The judgment will be affirmed, with costs.


author: Pee Cueiam.

text:
    ANTOINETTE NESTECKI, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF IGNACEY NESTECKI, DECEASED, PLAINTIFF, v. CENTRAL RAILROAD OF NEW JERSEY, DEFENDANT.
    Submitted February 2, 1931
    Decided July 2, 1931.
    Before Gummeee, Chief Justice, and Justices Tkenchaed and Lloyd.
    For the rule, William A. Barhalow (Edwin F. Smith, of counsel).

      Contra, Thomas V. Fields (Paul Koch, of counsel).
   Pee Cueiam.

This is the defendant’s rule to show cause why plaintiff’s verdict for $6,000 should not be set aside. The case was tried at the Hudson Circuit on September 18th, 1930.

We think that the plaintiff’s testimony reasonably tended to show that on July 13th, 1927, plaintiff’s intestate, Ignaeey Nestecki, was employed by the Marcy Foundry Company, Incorporated, in Perth Amboy; that his work was that of laborer, and in this connection it was his duty to direct the placing of railroad cars containing materials for the use of his employer’s plant, and this he customarily did; that the defendant railroad company had a side track into the premises owned by his employer; that this track ran between buildings; that this passageway was wide enough for the average sized car of the trains, and with some small space remaining on either side of overhanging of the cars; that, on the day of the accident, the train, operated by defendant’s servants, entered the premises; that the train consisted of a locomotive, a box car and a flat car; that the flat car was loaded with pig iron for the plant of the decedent’s employer; that this car was to be placed on a track at a point to be designated by the decedent, and left there; that the train was backed in, the flat car being first; that there was no conductor on the train, but there were two brakemen besides the engine crew; that when the train had passed through the gate and into the yard it was stopped at a point between certain buildings for the purpose of enabling the engineer to receive instructions as to the place where the flat car was to be left; that after the train had been stopped, one of the brakemen was sitting on the flat car and it was from him that the engineer took his signals; that this brakeman, from his position on the flat car, conversed with the superintendent of the plant who was standing along the tracks; that after the train had come to a stop, decedent came out of a building in which he had been working and started down alongside of the track in the direction of the flat ear for the purpose of showing the train crew where the car was to be placed; that this he had done numerous times before, to the knowledge of the engineer and members of the crew; that in order to properly place the car it was necessary for the decedent to cross the track ahead of the flat car; that he started to cross the track, and as he started to cross he tripped on the rail and fell; that simultaneously with his fall the train, on signal from the brakeman who was sitting on the flat car, started; that the decedent attempted to avoid the oncoming train by crawling out of the way; that he was observed in this position by a fellow employe who immediately began to shout; that his cries attracted the attention of the train crew who then signaled to stop, but before the train could be stopped, the wheels of the flat car passed over the feet of the decedent, causing the injury of which he died; that no whistle, signal, bell or other warning indicated the starting of the train, although the regulations of the railroad company required that this be done; that the signal to move the train was given by the brakeman on the flat car, while he was talking to the superintendent and facing in an opposite direction from the point occupied by the decedent.

Motions to nonsuit and to direct a verdict for the defendant were denied, and the jury rendered a verdict in favor of the plaintiff.

We think that it is clear that these motions were properly denied, since the above recited plaintiff’s version of the case, although contradicted in some material aspects, required the submission of the case to the jury.

It is next said that the verdict was contrary to the weight of the evidence. Under this head it is argued that the decedent came to his injury by reason of his own act in attempting to cross the railroad tracks in front of a moving train, which he knew was in motion.

We think the answer to this contention is that it does not appear that the weight of the evidence is that the train was moving when the decedent started to cross the tracks, and certainly it does not appear by the greater weight of the evidence that he knew that the train was in motion when he started across. Upon this point the evidence admittedly is contradictory; but we have reached the conclusion, after having read it with care, that it cannot be said that the great weight of the evidence is that the train was in motion as he started to cross the tracks. On the contrary, it seems a reasonable conclusion from the evidence that, as stated repeatedly by an eye witness, “the cars started the same time as he fell.”

We therefore conclude that it cannot be said that the verdict was contrary to the weight of the evidence as to contributory negligence.

We also conclude that the verdict, which was in effect that the proximate cause of the accident was the failure of the defendant to use reasonable care to so operate its train as to protect persons who in the exercise of a lawful right might-come in its line of travel, cannot be disturbed upon any-ground urged.

The foregoing observations dispose of every question raised and argued.

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


text:
    THOMAS NARY, PLAINTIFF-RESPONDENT, v. ROSE LAVANIA HEATH AND JOB HEATH, DEFENDANTS-APPELLANTS.
    Submitted February 2, 1931
    Decided July 2, 1931.
    Before Gummebe, Chief Justice, and Justices Tbenchabd and Lloyd.
    For the appellants, Corn & Silverman.

    For the respondent, Patterson, Rhome & Morgan.

   Pee Cueiam.

This is an appeal from a judgment entered for the plaintiff for $2,457 by the direction of the judge at the close of the ease, and the defendants appeal.

At the trial it appeared that on December 27th, 1926, defendants entered into an agreement in writing to convey, on November 1st, 1927, real property in Ocean Grove to John II. Crohan for $42,000, and in such written agreement agreed as follows:

“And the said parties of the first part hereby agree to pay to the licensed and authorized agent, Thomas Nary, a commission of five per cent, on the purchase price aforesaid."

On the day set for closing title, a dispute arose between the vendor and vendee both as to alleged defects in the title and as to the ability of defendants to give possession of the property. The vendee was ready with the money due by the terms of the contract, but the settlement was postponed for two weeks to afford an opportunity to clear up the points in issue, and up to the time of the institution of the present suit, title had not passed.

This suit was begun on September 5th, 1930, and was for brokerage commissions to which the plaintiff claimed to be entitled pursuant to the terms of the contract above recited.

We think that when the verdict was directed that plaintiff had established by competent evidence his contract of employment and his success in securing a purchaser under the terms of the contract as evidenced by the agreement of sale entered into between the Heaths and Mr. Crohan.

Shortly stated, our statute of frauds relating to the employment of brokers (Pamph. L. 1918, p. 1020), insofar as we are now concerned with it, requires that the authority of the broker must be in writing signed by the owner or his authorized agent either before or after sale has been effected, containing the rate of commission on the dollar. The contract provision which we have recited seems to meet the requirements of that act. Clark v. Griffin, 95 N. J. L. 508.

Defendants contend that a jury question was presented as to whether or not the plaintiff procured a purchaser ready, willing and able to buy defendants’ property. Wé think not. The fact that the title did not actually pass does not affect the broker’s right to commissions. J. R. Tucker, Inc., v. Mahaffey, 139 Atl. Rep. 806. In the present case the broker is shown to have procured a purchaser agreeable to the owners, and. an agreement for the sale of the property was made and executed by the owners; and there appears to be no substantial question of the pecuniary ability of the vendee and his readiness to carry out the contract pursuant to its terms.

Defendants further contend that there was a jury question whether or not plaintiff was personally interested in the sale beyond his commission, and this seems to arise from conflicting testimony that the plaintiff endeavored to persuade defendants to reduce the purchase price $5,000, and that plaintiff, after the agreement was executed, attempted to sell the property to another at an advanced price, and that plaintiff advised the purchaser not to close the title until the release of the tenants was in proper form.

We look upon these disputed questions as immaterial. The plaintiff was in the real estate business. If it be true that he attempted to effect a resale of the property for Crohan to some other party, that fact would not bar his recovery of commissions after he had fully performed his duty to his principal and became entitled to his commissions when he produced a purchaser acceptable to the Heaths. When this was done his fiduciary relationship with the defendants ceased, and after that time his attempt to resell the property, if he did, was no concern of the defendants. 9 G. J. 544.

It is further contended that the plaintiff fraudulently induced the defendants to enter into the agreement with Crohan, and that therefore a jury question was raised with respect to this.

We think that contention has no substantial basis either in fact or law. It is true that the plaintiff urged the defendants to accept the sum of $1,500 as down-money on the contract and as sufficient for that purpose. There was no fraud in that. It appears by the admission of the defendants that they did not rely upon that advice by the plaintiffs, but were guided in that respect by the advice of their own lawyer whom they consulted with respect thereto; and moreover, the fact that only $1,500 was received as down-money instead of a larger sum does not seem to have figured in respect to the failure to consummate the contract according to its terms.

The defendants contend that the plaintiff was not to receive his commission until, and only if, Crohan consummated the agreement of sale. A sufficient answer to this contention is that the agreement upon which the plaintiff’s rights depend contains no such indication. Kram v. Losito, 105 N. J. L. 588.

The defendants lastly contend that it was improper to allow interest from the day the money was due. We think there was nothing improper in this action of the trial judge. Ruckman v. Bergholz, 38 N. J. L. 531.

The judgment will be affirmed, with costs.


author: Pee Cukiam.

text:
    ANTHONY OLSZEWSKA, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF CLARA OLSZEWSKA, PLAINTIFF, v. A. C. WINDSOR, INCORPORATED, AND AMBOY ICE MANUFACTURERS, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Submitted February 2, 1931
    Decided July 2, 1931.
    Before Gummeeb, Chief Justice, and Justices Teenchaed and Lloyd.
    Eor the rule, John C. Stochel- (Thomas L. Sanson, of counsel).

      Contra, David T. Wilentz.

   Pee Cukiam.

This is a rule to show cause, obtained by the defendant A. C. Windsor, Incorporated, why plaintiff’s verdict for $4,500 should not bo set aside. (At the trial there was a non-suit in favor of the Amboy Ice Manufacturers, Incorporated.)

From the plaintiff’s proofs it appeared that Clara Olszowska died on July 4th, 1929, at the age of four years and nine months, from burns received while playing near a fire built by the servants and agents of the defendant A. C. Windsor, Incorporated, which had been left unguarded.

The only questions argued are (1) that the verdict for $4,500 is excessive, and (2) that the verdict is contrary to the law and the charge of the trial judge with respect to the measure of damages.

Dealing with the last contention first it is sufficient to say that this reason seems not to be seriously argued or pressed, and properly, as we think, because, as defendant seems to admit, the charge was entirely proper, and the verdict was not contrary to the law as laid down in the charge, nor was it against the charge of the trial court in any proper sense, although we shall now proceed to point out that we think the verdict is excessive.

The infant was survived by her father and mother and by ten brothers and sisters ranging in age from nineteen to four years. Three of the girls, ranging in age from seventeen to nineteen were employed, and their earnings averaged $14 a week. That evidence was no doubt introduced for the purpose of throwing light upon the type and circumstances of the family, as indicating possibly or probably the normal characteristics of the child on account of whose death the suit was brought pursuant to the provisions of the Death act for the benefit of the next of kin.

We think that a consideration of our cases results in the conclusion that this verdict of $4,500 on account of the death of a child at the age of four years and nine months is excessive. Those cases are Genatt v. Bentz, 133 Atl. Rep. 75; Ward v. Public Service Co-ordinated Transport, 152 Id. 82. As was said in the latter case, where the boy was five years of age:

“Under the circumstances the best we can do is to measure such a verdict by a standard, substantial or otherwise, of verdicts that have been approved in cases of like character. They seem to show an amount ranging around three thousand dollars.”

Tested by that rule, the verdict is clearly excessive.

If the plaintiff will consent to a reduction of the verdict to $3,000, he may enter a judgment for that amount; otherwise the rule to show cause will be made absolute.


text:
    JOHN OWENS, PLAINTIFF, v. ARTHUR CERULLO, RICHARD NEW, MAX SOLLONEK, Sr., AND MAX SOLLONEK, Jr., DEFENDANTS.
    Submitted February 2, 1931
    Decided July 2, 1931.
    Before Gummeke, Chief Justice, and Justices Tbenchabd and Lloyd.

      For the plaintiff, David T. Wilentz.

    For the defendant Arthur Cerullo, Kalisch & Kalisch.

    For the defendant Max Sollonek, Sr., Louis Auerbacher, Jr.

    For the defendant Max Sollonek, Jr., Edmond J. Dwyer (Louis Auerbacher, Jr., of counsel).
    For the defendant Eichard New, Irving W. Tee fie.

   Pee Cubiam.

This action was instituted by the plaintiff to recover damages for injuries and loss sustained as a result of the alleged negligence of the defendants. The trial resulted in a general verdict against the defendants Eichard New, Max Sollonek, Sr., and Max Sollonek, Jr., for $15,000, and a verdict of no cause of action in favor of defendant Arthur Cerullo. Each defendant against whom the verdict went obtained a rule to show cause why the verdict should not be set aside.

The testimony produced by the plaintiff at the trial tended to show the following matters of fact:

On November 7th, 1929, at seven-forty-five p. m., the plaintiff was a passenger in an Oakland roadster driven by his son, and will hereafter be referred to as the “Owens” car. The Owens car was going north on the state highway leading to Keyport, at from twenty to twenty-five miles an hour, and on its right-hand side of the road, which at the point of the accident was straightaway and was wide enough to accommodate three or four automobiles. The automobiles of the defendants Eichard New and Arthur Cerullo were both going south towards Eed Bank. The automobile of New attempted to pass the automobile of Cerullo and in doing so crashed into the Owens car and threw the plaintiff Owens out of the car on to the highway. The car driven by Cerullo then collided with the Owens car. Immediately thereafter an automobile owned by Max Sollonek, Sr., and driven by his son, Max Sollonek, Jr., ran over the body of Owens while he was lying on the highway, and it, too, crashed into the Owens roadster, sending it a distance of thirty feet.

Such, we believe, after a consideration of the plaintiff’s evidence, and of the somewhat conflicting testimony produced by the defendants, was the situation as the jury was amply justified in finding it to be.

The first point made by defendants Solloneks and New is in effect that the verdict does not conform to the charge of the court and the pleadings and is not in accord with the testimony adduced at the trial, and that the trial judge improperly charged the jury.

We think that the pleadings and the complaint, which is separated into counts to avoid duplicity, show clearly that the defendants are charged with each proximately contributing to the injury complained of by the plaintiff, and amply justify the admission of plaintiff’s testimony at the trial, and also amply justify the charge of the court, to which no exception was taken by the defendants holding the rule.

The plaintiff predicated his right to recovery against all of the defendants on the theory that joint feasors each owing a separate duty to another, and each wrongfully neglects to perform it, though acting without concert, if such several neglects concurred in producing the injury, the tort is joint and the tort-feasors are subject to a like liability. Matthews v. Delaware, Lackawanna and Western Railroad Co., 56 N. J. L. 34.

These defendants say that the verdict was contrary to the weight of the evidence. Without here reciting all of the testimony as to the happening of the accident, we deem it sufficient to state that the evidence upon the part of the plaintiff amply supported the conclusion that the defendant Max Sollonek, Sr., through his agent Max Sollonek, Jr., and Max Sollonek, Jr., and Richard New, were guilty of negligence, and the conclusion of the jury to that effect is not against the weight of the evidence.

The witnesses called by defendant Cerullo, as well as Cerullo himself; together with the testimony of the plaintiff and his son, show we think satisfactorily the negligence of the defendants Solloneks and New, proximately contributing to the injury of the plaintiff.

Those defendants say that the verdict is excessive. It was for $15,000. We think it was not excessive. Plaintiff was hurled with great violence through the air a distance of about ten feet until he hit the hard pavement of the road with tremendous force, and as a result of this impact, and the blow received from the Sollonek car which, as the testimony revealed, was going at a “terrific rate of speed,” he was quite naturally and in fact seriously and permanently injured. Indeed, the doctor at the hospital where he was taken testified that “for a while we were not sure he was going to recover.” Blood was flowing from his left ear, and he was unconscious. He was bruised and scratched in many places on the body and he had an injury to his left leg which turned out to be a fracture of both bones of the leg directly below the knee, and his mental condition was very serious for a week or more.

There is no question in our minds that he was seriously injured and that these injuries justified the amount of the verdict. Apart from the injuries referred to heretofore, there was proof of a fractured right wrist and a broken collar bone. As a result of the very bad fracture of plaintiff’s leg a shortening of about two inches resulted. There seems to have been a loss of fifty per cent, of the use of the leg, and loss of fifty per cent, of the grasping power of the right hand. These, together with the impairment of hearing in one ear (he was totally deaf in that ear at the time of the trial) the doctors testified are permanent conditions. The evidence tended to show that Owens was sixty-five years of age and had good health, and was employed steadily prior to the injury doing general mechanical repair work on houses and had earned $35 a week on an average.

The defendant Max Sollonek, Sr., says that there was no sufficient proof as to his liability, and that as to him plaintiff should have been nonsuited or a verdict directed in his favor, and that the court improperly charged the jury with reference to his connection with the accident.

We think there is no substance in this argument. The evidence showed his ownership of the automobile driven by his son. This raised the presumption that the automobile was in the possession of the owner through his servant, the driver, and that the driver was acting within the scope of his employment. Mahan v. Walker, 97 N. J. L. 304. These presumptions were in nowise rebutted at the trial. The trial judge properly charged the jury in accordance with the rule of the Mahan case, and of course a nonsuit could’ not have been granted in favor of the owner nor could there have been a direction of the verdict.

The defendant New complains that a verdict was not directed in his favor upon the ground that no connection was shown between the injury suffered by the plaintiff and the collision involving the defendant New. This point is likewise plainly without merit for the reasons heretofore indicated. Under this head defendant New seems to argue that the plaintiff was guilty of contributory negligence. With respect to that it is sufficient to say that as we view the case the contention has not the slightest evidence to support it.

The rule will be discharged, with costs.


text:
    JOHN G. WALLACE, PLAINTIFF, v. LEHIGH VALLEY RAILROAD COMPANY, DEFENDANT.
    Submitted February 2, 1931
    Decided July 2, 1931.

      Before Gummere, Chief Justice, and Justices Trenchard and Llotd.
    Eor the rule, Hobart & Minará.

      Contra, Reger & Smith (John F. Reger, of counsel).
   Per Curiam.

This is defendant’s rule to show cause why plaintiff’s verdict should not bo set aside with exceptions reserved.

The suit was brought to recover damages sustained by the plaintiff as the result of a collision which occurred on the morning of January 7th, 1930, between a locomotive operated by the defendant company and a Chevrolet automobile owned and operated by the plaintiff, on the South Somerville grade crossing of the main line of defendant’s tracks, in which plaintiff’s automobile was demolished; and this suit was for the value of the car and for the loss sustained by being deprived of its use.

The evidence produced by the plaintiff at the trial reasonably tended to show that the plaintiff in his automobile approached the crossing on his right-hand side of the highway; that there was a fog at the time; that there was a. crossing gateman and the gates were up; that there was a crossing bell that was not ringing, and that no bell was rung or whistle blown by the train; that the plaintiff proceeded cautiously, having shifted his gear into second; that he was proceeding about fifteen miles an hour; that he was still in second gear when the wheels of his car struck the rails which protruded above the roadbed and caused him to lose control of his car and the car “flopped” to one side and lodged between the rails causing the engine to stall; that the defendant’s train, drawn by the locomotive, was then so close that it could be heard by the plaintiff as his car stalled upon the-tracks, but because of a curve could not be seen; that plaintiff endeavored to remove his car from the tracks but failed; that the crossing proper, as filled between the tracks, was much narrower than the approach and was of asphalt, tar and cracked stone mixture; that it had been worn down, leaving a gully or opening, and the rails projected three or four inches above the roadbed; that the gully was in some places six or eight inches wide; that there was no planking along the rails and had been none for some years; that these conditions applied to the entire crossing; that the tracks did not run straight across the road but crossed at an angle.

Such was the posture of the proofs as the jury might have found, and presumably did find, from the testimony given by numerous witnesses for the plaintiff, even though the testimony upon the part of the defendant company was in some material aspects contradictory thereof.

On the question of damages the jury might well have found from the evidence that the plaintiff’s automobile which was hit by the defendant’s locomotive, was so damaged that it was not worth repair; that the automobile had been kept in good condition having been serviced every thirty days; that the plaintiff had purchased the automobile when it was new two years prior to the accident for $662. The jury found a verdict in favor of the plaintiff and against the defendant’s counter-claim for damages to its engine. The amount of the-plaintiff’s verdict was $375.

The defendant’s first point is that the verdict was against the clear weight of the evidence upon the issue of defendant’s negligence and plaintiff’s contributory negligence and upon the issue of proximate cause.

We think that it was clearly open to the jury to find, as it evidently did, that the defendant company was negligent in failing to keep in proper repair this railroad crossing, with the direct result that because of its failure, the automobile of the plaintiff, driven in the exercise of due care, was demolished.

We reach this conclusion even though there was testimony upon the part of the defendant tending to support the defendant’s contention that the plaintiff was at fault in proceeding ill the fog, and that by reason of the fog, failed to keep upon that part of the crossing which prudence would have required, thereby putting Ms automobile, or some portion of it, off of the crossing.

Shortly, we think that the jury was amply justified in finding for the plaintiff on this phase of the case, and against the defendant on its counter-claim, and that the jury’s verdict cannot be said to be against the clear weight of the evidence upon these issues.

It is lastly said that the verdict was excessive. We think the testimony to which we have referred puts the case in a position where it cannot properly be said that the verdict is excessive.

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


text:
    MARY KACSANIK ET AL., PLAINTIFFS, v. COUNTY OF PASSAIC AND COUNTY OF BERGEN, DEFENDANTS.
    Submitted February 2, 1931
    Decided July 2, 1931.
    Before Guhmebe, Chief Justice, and Justices Tbenchabd and Lloyd.
    For the rule, William R. Rogers and Stanton T. Lawrence.

      Contra, Aaron L. Simon (Addison P. Rosenkrans, of counsel.)
   Pee Ctjeiam.

This is defendant’s rule to show cause why a verdict in favor of Mary Kaesanik for $5,000, and a verdict for $110 in favor of her husband for damages resulting to him, should not be set aside.

The action arose out of an accident which befell Mary Kaesanik shortly after dusk on November 2d, 1929, while crossing a bridge, commonly known as the Monroe street bridge, spanning the Passaic river between the borough of Garfield in -the county of Bergen and the city of Passaic in the county of Passaic. This bridge, with the erection, maintenance and repairs of which both defendants were concededly jointly chargeable in law, and which was built about a quarter of a century ago, carries a driveway thirty feet wide and a sidewalk eight feet in width on both sides of the driveway.

The evidence upon the part of the plaintiff reasonably tends to show that at the time of the accident, a steel expansion plate about four inches in width, and five-sixteenths of an inch thick, lay across the southerly sidewalk at a point twenty feet west of the Garfield entrance, and that one end of the plate was bolted to the structure of the bridge and the other free; that this plate was a part of the original construction, and when in proper position, was flush with the sidewalk, but on the night in question, and as long before as the preceding September, this plate, instead of lying level with the sidewalk was sprung and arched from one and a half to two inches above the surface of the sidewalk; that over this projection Mary Kaesanik stumbled and fell, and this suit was brought for the recovery of damages both for herself and her husband which resulted from her physical injuries occasioned by her fall.

The statutory basis of the suit is section 1309 of the “Act concerning counties” (Pamph. L. 1918, p. 567), which declares that where the board of chosen freeholders of two or more counties are chargeable by law with the construction, erection, rebuilding or repair of any bridge, and such boards shall wrongfully neglect to perform their duties in that behalf, by reason whereof any person shall receive injury or damage in his or her person, such person may bring an action at law against such counties and recover judgment to the extent of all such damages sustained.

Erom what we have said we think that, notwithstanding defendants’ contention to the contrary, the trial judge rightly denied defendants’ motion to nonsuit and their motion for the direction of a verdict. It was not necessary that plaintiff should prove that the defendants had actual notice of the defect in the bridge. The open and notorious continuance of the defective and dangerous condition for upwards of a month prior to the injuries was sufficient to warrant the jury in charging the authorities with notice thereof the same as if they had received actual notice. Freeholders v. Hough, 55 N. J. L. 628; Creighton v. Freeholders of Hudson, 70 Id. 350.

We think also that the verdict was not against the great weight of the evidence. The essential facts with respect to the defects in the bridge were substantially proven on the part of the plaintiff by the testimony of eight witnesses, most of whom were entirely disinterested; and that the plaintiff was injured in the manner in which she contends we think was amply demonstrated by the evidence.

But we think the verdict of $5,000 in favor of the plaintiff Mary Kacsanik was excessive. She sustained a broken arm just above the wrist and perhaps some other slight injuries. She went immediately to a physician and the arm was set and she was treated by the physician at her home for three weeks and thereafter went to him and to another doctor for massage and electrical treatment. It clearly appeared that the setting of the arm was a perfect piece of work, but the after effects seem to have required more or less massage and electrical treatment. The expenses for such treatment are fairly represented by the verdict in favor of the husband for $110.

While there may be possibly more or less limitation in the functioning of the wrist, we think that the verdict for $5,000 is plainly excessive.

The rule to show cause so far as the husband is concerned will be discharged. The rule to show cause so far as the wife is concerned will be discharged if she will agree to a reduction of the verdict to $2,500; otherwise the rule will be made absolute in her case.


text:
    EDWARD W. SCHORR, PLAINTIFF, v. EASTERN ENGINEERING COMPANY, A CORPORATION, DEFENDANT.
    Argued January 22, 1931
    Decided July 2, 1931.
    Before Gúmmeee, Chief Justice, and Justices Teenchaed and Lloyd.
    For the rule, Cole & Cole.

    Contra, Samuel T. French and William I. Garrison.

   Pee Cubiam.

This is the defendant’s rule to show cause why a verdict in favor of the plaintiff at the Atlantic Circuit for $12,500 should not be set aside.

The evidence disclosed that on November 11th, 1929, the plaintiff was driving his automobile along the Longport-Somers Point boulevard at a point where the highway passes over Hospital creek, at which time and place the defendant company was redecking the bridge over the creek, the bridge being three hundred and eighty-nine feet long and forty feet wide. The westerly side of the bridge as one approaches from Longport was barricaded off from traffic. Plaintiff on the day in question was approaching the bridge from the Longport side, going to his work in the early morning before daybreak, driving his automobile at from ten to fifteen miles an hour. He struck the westerly corner of the barricade and lost control of his car, which broke through the guard rail and fell into the water, to the plaintiff’s serious injury.

The plaintiff contended and at the trial produced evidence tending to show that he was injured because of the negligent act of the defendant in failing to have any signal or warning upon the highway at the entrance of the bridge giving notice as to the danger to the traveling public.

The defendant denied negligence and contended that plaintiff’s injuries were caused wholly by the negligence of the plaintiff, or in any event contributed to by him, and further now contends that the verdict was against the weight of the evidence and that the jury’s verdict for $12,500 is excessive.

We think there was ample evidence of defendant’s negligence and that the verdict in that respect was not against the clear weight of the evidence. While the evidence was contradictory to the extent of presenting a fair jury question, it seems clear that there was ample evidence produced by the plaintiff that the lights which theretofore during the construction had been maintained on the highway at the entrance of the bridge by means of lighted lanterns, were wholly absent on this occasion when the plaintiff approached the bridge about five-thirty A. M., and before daylight on the morning in question. The plaintiff so testified, and so did at least four other apparently disinterested witnesses who likewise approached the bridge along about the same hour. Their testimony was unanimously to the effect that there were no lights upon the bridge, and no warning or signals-of any kind present.

While the testimony produced by the defendant was for the most part directly to the contrary, yet there are some phases of defendant’s proof which we think tended to corroborate the plaintiff’s case.

We think that it cannot be said that the plaintiff was guilty of contributory negligence as a matter of law, nor that the jury’s finding was against the great weight of the evidence. We believe the great weight of the evidence is that plaintiff exercised the degree of care that an ordinarily prudent person would and should use under like circumstances and the conditions with which he was confronted. The evidence was that he had used this highway before on several occasions while the bridge was under construction, and that on past occasions always, lanterns guided him safely across. He relied upon the presence of the lights to warn him of the barricade, and naturally did so, since the visibility was not. good and there was no landmark to indicate to him the presence of the bridge or the barricade. His testimony was to the effect that he was attentive and apprehensive, and was proceeding cautiously and was upon the lookout for lights. He had his headlights on, but his headlights under the conditions at the moment did not disclose to him the barricade, although he was watching carefully, and he testified that the barricade-was not disclosed -to him because “these objects must have blended in with the color of the road, because they were not visible,” and that testimony seems to be somewhat corroborated by the experiences of some of the plaintiff’s witnesses. Plaintiff’s testimony was to the effect that he was driving comparatively slowly, being apprehensive, and that when he-struck the barricade his car straddled the rail and thereafter he had no control in steering it, with the result that it went diagonally and crashed through the rail and fell into the-water.

Defendant says that the verdict is excessive. We have not reached that conclusion. Plaintiff suffered considerable loss .so far as his automobile was concerned. It was three years old and he had paid $1,000 for it. The evidence indicated that it would cost $660 for repairs; he seems to have actually received an allowance of $13 5 for it. We believe that he was ■seriously injured. He certainly had a nerve-racking experience. According to the proofs he and his car were completely submerged in deep water. After extricating himself he crawled onto the highway and was taken to the hospital. There the attending physician found he was suffering from profound shock, lacerations above the right eye, contusions •of the left ear and left leg and lumbar region, and abrasions ■on his face. He remained under treatment at the hospital for six days when he was discharged, by no means well, but for financial reasons he was obliged to depart. The hospital bill was upwards of $200. He returned to the hospital weekly for three weeks and then monthly for two months, and was there again before the trial. The testimony was that he was mentally upset; that he had a limitation o £ the motion of his spinal column which caused pain when bending forward or laterally, which was said to be chronic; and there was testimony to the effect that he had a fifty per ceint. loss ■of hearing in his left ear, which was permanent, and was in .a highly emotional condition evidenced by objective symptoms, and there was a wasting away of muscles which was due to the injury, and at the trial there was ample testimony that he was unable to work. Prior to the accident he seems to have been engaged in the trucking business, having two trucks in use for which he received $2.50 an hour and averaged ten hours a day from their steady use, and that as a result of the accident and his numerous physical and nervous injuries he was unable to return to that occupation.

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


author: Ackekson, S. C. C.

text:
    PETER BENTLEY, RECEIVER OF BRADLEY HOTELS SYSTEM, INCORPORATED, A CORPORATION, PLAINTIFF, v. RUSSELL COLGATE, S. BAYARD COLGATE AND ADELBERT A. KENYON, EXECUTORS OF THE LAST WILL AND TESTAMENT OF AUSTEN COLGATE, DECEASED; CORBETT McCARTHY, CLARENCE E. F. HETRICK, CLINTON G. HOLDEN, J. HERBERT REID, WALTER W. REID, Jr., MORELAND B. SORIA, WILLIAM A. SMITH AND HARRY A. WATSON, DEFENDANTS.
    Decided July 6, 1931.
    For the plaintiff, Herbert Ciarle Gilson.

    For the defendants, Merritt Lane.

   Ackekson, S. C. C.

Defendants move to strike out the-complaint for several reasons which may be conveniently grouped under two heads: First, that the complaint is irregular and defective and so framed as to embarrass or delay a, fair trial-—-equivalent to a special demurrer at common law; second, that the complaint does not state a cause of action-—equivalent to a general demurrer at common law. Savage v. Public Service Railway Co., 95 N. J. L. 432.

The complaint is in two counts. The first alleges that plaintiff was appointed receiver of Bradley Hotels System, Incorporated (a corporation of Delaware), by the Court of' Chancery of New Jersey; that at the time of his said appointment the claims of creditors of said company aggregated the-sum of $29,538.67; that $51,960 had been paid to the company by its stockholders for stock and the assets amounted to only $171.37; that on July 30th, 1923, the corporation became the owner of an option to purchase certain lands, which option was renewed from time to time and constituted the only asset of said corporation and was of the value of $100,000. Then follows the only charge of liability made against the defendants, who are the directors of said Bradley Hotels System, Incorporated, which charge is stated as follows: “The said directors, in violation of their duties, improperly permitted the said defendant Clarence E. E. Hetrick” (one of the.directors) “to dispose of the said option for his own use and benefit, to wit, in or about November, 1924.”

The second count alleges the same facts up to the obtaining of the option by the corporation and its value and then proceeds to charge the defendants with liability as follows: “The said directors, in violation of their duties, negligently and carelessly allowed and permitted the said option to expire and lapse on or about November 1st, 1924, and the said corporation thereby lost and was deprived of the said option and the value thereof aforesaid.”

The defendants insist that each count of the complaint is in vital particulars based upon mere conclusions, and so general that it should be stricken out as irregular, defective, or so framed as to embarrass or delay a fair trial under Rule 39 of the Supreme Court.

It will be observed that the first count, while charging that the directors permitted the defendant Clarence E. E. Hetrick to dispose of the option for his own use and benefit, contains no other allegations of fact to show liability. It terms the conduct of the directors as “improper” and “in violation of their duties,” but no circumstances are alleged upon which such conclusions can be based. From all that appears on the face of the pleaded facts, excluding the conclusions, the corporation may have sold the option to Hetrick, or there may have been an agreement made very much to its advantage, as there is no allegation that the corporation was in any way damaged. When the circumstances under which said Hetrick was permitted to dispose of said option are set forth, it may appear that the conduct of the directors was not improper or in violation of their duty to the corporation. The defendants are entitled to a specific charge of misfeasance.

The second count is in no better situation for it fails to state anjr facts from which the alleged negligence or carelessness of the directors may be concluded. Erom all that appears in this count by way of issuable facts, the treasury of the corporation may have been bare precluding the purchasing of the property or an extension of the option, or the owner of the property may have been unwilling to extend the option. No facts are charged showing negligence.

It would appear that the rules applicable to pleading negligence in cases involving personal injury would apply with equal force to the ease sub judice, and while it has been held that a general allegation of negligence is sufficient as against a general demurrer, it has been uniformly held that such an allegation is insufficient as against a motion to strike equivalent to a special demurrer. Central Railroad Co. v. Van Horn, 38 N. J. L. 133; Minnuci v. Philadelphia and Reading Railroad, 68 Id. 432. These cases were decided before the Practice act of 1912, and each held that a declaration generally averring negligent conduct was good as against a general demurrer, but not as against a motion to strike equivalent to a special demurrer.

Eule 39 of the Supreme Court which provides that a pleading which is irregular and defective and so framed as to embarrass or delay a fair trial may be stricken out on motion, has been substituted for a special demurrer at common law.

Our Chief Justice in the case of Savage v. Public Service Railway Co., supra, in speaking of the cases above cited, said:

“It will be observed by a reading of these opinions which we have cited that, in each of them, although the declaration was held good on general demurrer, it was pointed out that they would each of them have been struck out, on motion, for lack of certainty and failure to state the specific act of neg ligence which was charged against the defendant company or the particular employe responsible therefor. But the motion to strike out referred to in these eases was that provided by the twenty-fourth section of the act of March 17th, 1855, entitled ‘An act to simplify pleadings and practice in courts of law’ (Pamph. L., p. 295), as a substitute for the pleading then known as a special demurrer, and which was abolished by the twenty-third section of the same act. The twenty-fourth section of that statute now appears as section 110, of our present Practice act, and declares that ‘the court or a judge may on four days’ notice strike out any complaint which is irregular or defective, or is so framed as to prejudice, embarrass or delay a fair trial of the action.’ The distinction between the motion to strike out just referred to and that provided by the present fortieth rule of the Supreme Court is the distinction which existed at common law between a special and a general demurrer, the one being directed at matters of form and the other at matters of substance.”

It is to be noted, however, that section 110 of the old Practice act above mentioned was in fact substituted by Rule 39 of the Supreme Court as will appear from the opinion in Andrus v. Specktor, 1 N. J. Mis. R. 322, which is also illuminative of the particularity required in pleading in order to stand against a motion made under said Rule 39. In the course of the opinion the court said:

“The first ground for the motion to strike out is that the declaration does not set out a cause of action. This is tantamount, under our present practice, to a general demurrer; and on the authority of Central Railroad Co. ads. Van Horn, 38 N. J. L. 133, 140, we do not feel justified in striking out the complaint on that ground. See, also, Race v. E. & A. Railroad Co., 62 Id. 536; Savage v. Public Service Railway Co., 95 Id. 432, 435.

“On the authority of the same line of cases, however, the complaint should be struck out under the present Rule 39 of this court, which has superseded section 110 of the Practice act of 1903, repealed in 1912. The complaint in this aspect is clearly irregular and defective and so framed as to embarrass and delay a fair trial; and the motion is made also on that ground.”

I have reached the conclusion that each count of the complaint is defective under Rule 39, and it becomes unnecessary, therefore, to consider the other reasons urged for striking the same. An order may be presented striking out the complaint for the reasons stated, but the plaintiff will be given ten days from July 4th, 1931, in which to file an amended complaint if he so desires.