author: Buchanan, V. C.

text:
    Sayre & Fisher Land Company, a corporation, et al., complainants, v. R. U. Rue Company, a corporation, defendant.
    [Decided November 14th, 1924.]
    Injunction — Restraint Pendente Lit© — Title to Right to Use of Alleged Highway at Issue — Equity Has Jurisdiction to Restrain Obstruction to Complainants' Easement, But Not to Try Title to Land — Under Chancery Act of 1915, Court Retains Bill While Law Court Determines Title — Restraint Pendente Lite Will Be Imposed to Preserve Property, Preserve Status Quo and Prevent Irreparable Injury.
    On motion for restraint pendente Hie.

      Mr. Warren li. Schenck, for the complainants.

      Mr. Francis V. Coan, for the defendant.
   Buchanan, V. C.

The complainants seek to restrain defendant from obstructing and interfering with their use of a certain roadway which they allege to be a public roadway, and in which, in any event, some of them allege they have individual easements.

Defendant admits the obstruction, but denies that complainants have any such rights. It has. filed its. answer wherein it challenges the jurisdiction of this court to determine the disputed question of title.

Of course, equity has. jurisdiction of a bill to restrain obstruction of complainants’ easement, but it lias been equally well settled that where complainants’ title to the easement is disputed, equity has not jurisdiction to try the disputed question of title, but must have that question determined in a court of law before proceeding further (save in certain exceptional cases within which category the present case does not fall).

Formerly, it seems to have been held that when this objection was made by the defendant’s answer, the bill should be dismissed, but at the present time, and especially since the enactment of the 1915 Chancery act (which contains an express provision to- that effect in section 8), this court sends the parties to the law court for the determination of the question of title, meanwhile retaining the bill.

Such an order will accordingly be made in the present ease.

On the question of restraint pendente lite, it would seem that the principles must needs be the same, whether the intermediate litigation, during the pendency of which restraint it sought, is in. this court or some other court. The ground upon which the court acts in ordering such interim restraint is the preservation of the property, the preservation of the status quo, and the prevention of irreparable injury. This is well set forth by the chancellor in McCran v. Public Service Railway Co., 122 Atl. Rep. 202 (at p. 207), and in McCran v. Western Union Telegraph Co., 94 N. J. Eq. 281 (at pp. 287, 291).

Irreparable injury is injury which is material and which cannot adequately be assessed in damages. Hodge v. Giese, 43 N. J. Eq. 342 (at p. 350). Damages cannot be adequately assessed where it will be difficult or impossible to ascertain and prove them, nor where tire financial responsibility of defendant is uncertain or lacking. Feigenspan v. Nizolek, 71 N. J. Eq. 382. This was on final hearing — interim restraint had also been granted, obviously, on the same grounds. Other like instances are to be found in the cases of interim injunctions against strikes and boycotts, where they appear to- lie unlawful or unlawfully carried on.

The. disputed facts in the present case have been very fully presented in the affidavits and the cross-examinations of affiants on both sides- — so fully that it is to be regretted that the whole matter cannot be finally determined in this court at the present time. The consideration which I have given to this conflicting testimony leaves, me in no doubt but that, if the complainants’ claim of right were susceptible of determination here and now, it must needs be determined in their favor. They have the clear weight of the evidence, and they have the apparent probability of success on final hearing, i. e., in the law court- Moreover, there had admittedly been a user of this road without objection for some eighteen years., at least- (It also appears that the present obstruction is the result of personal piqne or revenge by the defendants’ principal stockholders against one of: the complainants, and that the defendant itself has not legal title to the fee iu the roadbed. While these facts are not strictly material, or would not be if complainants have no rights to use the road, nevertheless, they are of moment in determining the weight to be accorded to the testimony of some of the affiants.)

It also satisfactorily appears from consideration of these depositions that complainants (assuming their right) will suffer irreparable injury by defendant’s- obstruction of the ro-au. They will suffer loss of many thousands of dollars, a damage that cannot adequately be ascertained or measured in a suit at law. The defendant’s claim that there are other roads which co-uld be utilized by complainants- and thus avoid loss, is not sustained by the facts as I find them. It is true that there are other roads, but these a-re so different in length and grades as to make them impossible of use by complainants without turning their prospective and probable profits into- great loss.

Again, the showing made on this motion as to- the assets of the defendant company is such as to indicate that defendant would be utterly unable to respond in damages, even if they could be adequately ascertained, to the amount of the loss which its action (if not restrained) must cause these complainants.

Lastly, there is the further element of public interest to be considered. The contracts which complainants arc engaged in performing by the nse of this- road, are subeontracts involved in the carrying out of a large and important public work, the' construction by the state highway commission of the bridge across the Raritan river between South Amboy and Perth Amboy. While, of course, this construction would not be stopped or prevented by the permanent closing of this road, it is clear that considerable delay would in all probability be caused. This is an added reason for the issuance o£ the restraint pending suit.

The temporary restraint will therefore be decreed; but since it appears that some actual damage will probably be caused to the road by the complainants’ user, complainants will be required to give bond to defendant in the sum of five thousand dollars ($5,000), conditioned- to pay to it such damage (if any) as it may have sustained by the use of this road by complainants subsequent to the filing of the bill, if it shall hereafter be finally determined that complainants are not entitled to- the relief prayed for.

Costs will abide the final decree.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Turtur and Gaspar Turtur, co-partners, &c., complainants, v. Alexander Isserman, defendant.
    [Decided November 21st, 1924.]
    Joint Adventure — Partial Contribution to Joint Capital — Refusal of Some of Associates to Complete Payments to Joint Capital — Other Associates Supply Necessary Capital Which Results in a Profit — Rights and Duties of the Several Associates Considered but Not Decided.
    On final hearing.

      Mr. Louis J. Feit, for the complainants.

      Mr. Simon Englander and Mr. Morris Isserman, for the defendant.
   Buchanan, V. C.

Defendant, Isserman, contracted to purchase a tract of land, and immediately thereafter an agreement was made by complainants and defendant and two other persons (Streyragen and Celia) that the latter and complainants would join with defendant in the purchase of the tract and its development and resale. The agreement provided that it should be clone through the medium of a corporation to be formed, in which each of the four parties (complainant partners jointly constituting .one party) should have an equal share, each contributing $5,000 to the capital. (A Mrs. Dvorkin was given the option of coming into the project and corporation, but elected not to clo so, and hence need not he further considered.)

Of the total capital $600 was .to be contributed immediately, and was so contributed in fact — that is to say, each of the other three parties paid $600 to defendant. This was to take care of the two-thousand-dollar-down payment which defendant had made on his contract of purchase, plus expenses to be incurred in the examination of title and incorporation of the company.

Steps were taken to incorporate the company, but were not completed. Complainants shortly thereafter refused to proceed with the project. Streyragen and Celia apparently did likewise. Complainants, finally, on May 3d, 1922 (about two months after the agreement), caused their attorney to notify Isserman that they did not intend to “become members of your proposed Amper House Corporation,” and desired their $600 to be returned to them.

Isserman did not return their money. He proceeded thereafter to complete the purchase, and made- a resale of the entire property at a price of $8,000 in excess of the purchase price. In order to do this he was compelled (in default of the balance of the capital which complainants and the other two- parties had agreed to> furnish) to procure additional capital from other parties. This he accomplished under an agreement to give these other parties three-quarters of the profit, an agreement which he carried out. He did not give to complainants (nor apparently to Streyragen or Celia) any of the profit, nor even the return of their $600, or any part of it.

Complainants’ bill seeks a decree for an accounting and a share of the profits

Tfc seems clear, upon the facts as stated, that this was a joint venture. The corporation was merely the medium for carrying it through. Thq project was the purchase, development and resale of the tract. It was partly carried out by all parties. When complainants and the others paid over their six-hundred-dollar payments they became joint equitable owners With defendant of the tract in question, subject, of course, to the payment of tire balance of their agreed contributions to the total capital, or, at least, to so much thereof as should be required, pro rain,, to accomplish the consummation of the purchase.

Complainants thereafter refused to perfoim further. They attempt to justify this refusal on the ground that defendant was in default, that he did not have the corporation formed, and did not have the contract assigned either to the name of the corporation or to' the names of all four parties. On this point I am compelled to find against them on the weight of the evidence, which indicates that their default was for another reason, which gave them no right to rescind. (I do not mean to be understood as being of opinion that complainants would have had the right to rescind even if their charges had been true in fact. See Proctor & Gamble Co. v. Powelson, 288 Fed. Rep. 299.)

Complainants had bound themselves to complete the purchase of the tract with defendant. They decided not to do so, and demanded the" return of the moneys paid. Defendant might have agreed to do so, hut he was not obliged to, and he did not.

On the other hand, defendant was not entitled, by reason of complainants’ default and refusal of further perform anee, to treat complainants’ payment of $600 and bis interest in the project as forfeited' (33 C. J. 854, and cases cited), although, since complainants’ interest was subject to their liability for the further payment, it would probably be subject to- sale on proceeding’s to foreclose.

Where a joint adventurer refused to complete his agreed contributions, 1 am not certain but that the remaining adventurers might be entitled to an election, -either to- proceed, limiting the defaulting member’s share in the enterprise to a share proportionate to his contributions actually paid, or to proceed on the original share plan, charging the defaulting member’s share with the additional expense and damage caused by his default. Certainly, I think, there can. be no doubt as to their right to adopt the latter course.

Possibly, where such default is made in the form of an actual abandonment of the enterprise by the defaulting member and a notification that he will have nothing furl her to do with it, the remaining members might be entitled in equity, where they take over the burden o-f supplying the deficit of the default, to exclude the defaulting member from participation in profits or losses beyond his capital actually paid in, so that where' the venture proved profitable their obligation to the defaulting member would be only to return his paid-in capital, with or without interest. Cer tainly, I think, that the defaulting member would, at least be entitled to that in the absence of any forfeiture provision in the agreement, and in the absence of foreclosure of bis right by legal proceedings.

The evidence as to just what occurred amongst the parties at the time of the default, or the several defaults, is so scanty as to increase the difficulty of a determination of these questions. However, they need not, and, indeed, cannot, be decided at this time. Strevragon and Celia., the other two joint adventurers, have not been made parties to this suit. It seems clear that they are necessary parties, and complainants may have leave to amend and bring them in and bring the canse to> hearing again.

I think defendant is entitled to costs on the hearing, although no objection was raised by him as to the want of parties.


text:
    Charles W. Cook et al., complainants, v. Clara E. Osborn et al., defendants.
    [Decided November 24th, 1924.]
    Deeds — Bill to Have Deed Declared Mortgage — To Enable the Court to so Decree the Evidence Must Be Clear and Convincing, Not Mere Preponderance — Facts In Instant Case Not Convincing — If They Had Been, Complainants Were Barred by Laches.
    On final hearing.

      Mr. Aaron V. Dawes and Mr. B. Ten Broech Stout, for the complainants.

      Mr. Maja L. Berry and Mr. David A. Veeder, for the defendants.
   Buchanan, V. C.

Complainants, as heir-at-law of David Cook, deceased, seek to have a certain deed from him to Lucinda Yan Note declared to be a mortgage only, and to redeem the lands comprised therein. An accounting is also' asked as to the income and proceeds of sale of timber from the premises while in the alleged mortgagee’s possession.

The deed in question was dated and acknowledged September 18th, 1897, and recorded October 20th, 1897. It recites a ecusideration of $184.1-1, and conveys all the estate of the grantor in all the lands devised to- him by Charles Van Note. It specifically describes three tracts, and, by added words, all the other lauds to which he might be entitled under the will of Charles Van Note.

David Cook and the defendant Clara (Pullen) Osborn were adopted children of Charles Van Note and Lucinda Van Note; Charles Van Note had died some ten years previously, devising' his real estate to his widow for life, remainder to the two adopted children in equal shares. At the time of the deed David Cook therefore had an undivided one-half interest in remainder in the lands, subject to his adopted mother’s life tenancy. His interest was also defeasible (under the will) if he died without leaving issue, but such defeasance was improbable, as be had four children living.

The value of the devised real estate was the subject of considerable testimony. Defendants practically admit, however, and one or two of defendants’ witnesses admit, that David Cook’s interest was worth far in excess of $181 at the time of the deed. Defendants in their argument take the position that the value of the lands, in which David Cook had this defeasible half interest in remainder was $6,500 in 1897. His one-half interest, if not defeasible, and if, then, presently enjoyable by him, would have been $3,250. Even if the life tenant had an expectancy of life of twenty years more, and also allowing further discount for the possibility of defeasance of David Cook’s interest, it would seem clear that $181 was a grossly inadequate consideration.

That $181.14- was the actual consideration is, of course, presumptively true, from the statement in the deed, and from the further fact that this figure in the deed was originally 179.14, and was changed to $181.14. The deed is in the handwriting of Judge Carmichael, admittedly a careful practitioner, now dead

One hundred and seventy-nine dollars and fourteen cents was the sum due at that time on an execution out of the Ocean common pleas on a judgment held by Merrick Burdge against David Cook. Levy had been made and sale was about to take place. Mr.' Yan Note paid $181.14 to the sheriff on September 18th, 1897 (the elate of the deed), and took an assignment of the judgment, which assignment Burdge to' her was dated September 22d, 1897, and recorded October 20th, 1897 (the same date as the recording of the deed). The judgment' was never satisfied of record; the execution was never returned. into- court.

David Cook died in 1899. Mrs. Yan Note died in 1913. By her will she gave to Clara Pullen her residuary estate (in Avhich was included the one-half interest acquired from David Cook), and also the judgment above mentioned, specifically describing it. .

Neither Mrs. Yan Note or Clara Pullen ever sought to collect this judgment.

The foregoing covers substantially what may he called the undisputed and indisputable evidence. A consideration thereof makes it obvious that there is a strong possibility that the deed was intended by the parties, not as an absolute conveyance, but as a mortgage security for the loan of $181.14.

Where the evidence shows that a deed, absolute on Its face, was intended by the parties only as a mortgage, this court will so decree, and establish the instrument as a mortgage. But, to lead the court to such a result, the evidence must be clear and convincing. A mere preponderance on the balancing of testimony or other evidence is not enough. The effect of the written instrument entered into by both parties is not lightly to be disregarded. The mind of the court must be satisfied that the real intent and agreement of the parties was that a security was being given for a continuing debt, instead of a conveyance. Cake v. Shull, 45 N. J. Eq. 208 (at p. 212); Clinton Hill Lumber Co. v. Strieby, 52 N. J. Eq. 576 (at p. 579); Wilson v. Wilson Hotel Co., 94 N. J. Eq. 212 (at p. 214); Cf. also. Traska v. Piekielko, 2 N. J. Adv. R. 711 (at p. 712); affirmed. 2 N. J. Adv. R. 1507, and Federal, &c., Assn. v. Eastern Land Co., 2 N. J. Adv. R. 1522 (at p. 1525).

The evidence' so fax* considered falls short of the degree of proof which is requisite. Improbable as it would seem for David Cook to have sold and conveyed Ms interest for $181, it is, nevertheless, not impossible, nor is it so improbable as necessarily to lead one to the conclusion that he did not do so, in the face of his solemn deed stating that he did. Admittedly, he was a man of maturity axid intelligence. There was no fiduciary relationship between Mrs. Van Vote and himself either in fact or in law.

Moreover, other things being equal, it is as reasonable to believe that a deed does not recite the true consideration as that it does not express the true intent of the parties. The evidence hereinbefore mentioned would tend to support the belief that the true consideration was expressed ; but there is ofixer evidence in the case tending to show that additional consideration did pass, testimony that cannot be arbitrarily and absolutely diregarded even though some of it comes from an interested party, the principal defendant. The testimony of this defendant also tends to prove that David Cook intended the instrument as a deed of conveyance.

There is also testimony that both David Cook, himself, axxd the neighborhood generally, believed that he could not make a valid conveyance of his interest. Such a belief woixld. naturally, insult in depreciating the value of that interest in Cook’s own mind, and the market value or price that could be obtained at an execution sale.

Evidence that would ordinarily be available iix a case of this kind, as to possession and payment of taxes, is elimi nated, because the life tenant was ixi possession as such axxd correspondingly bound to pay taxes and upkeep.

The taking of the assignment of the judgment, and failure to satisfy it of record, is susceptible of explanation by the possibility that Mrs. Van Vole (or her legal adviser) intended thereby to protect against the contingency of other lien? or encumbrances antedating the deed, of which they were not aware, but which might, perhaps, exist. The same theory would explain the bequest of the 'judgment in the will accompanying the devise of the lands. .

Inadequacy of a consideration alone is, of course, not adequate proof that a deed was intended as a mortgage. Nor is at sufficient to warrant rescission or setting aside of a conveyance unless the inadequacy is so great as to be itself evidence of fraud.

Charles Cook, one of the complainants, testifies that he went to Mrs. Van Note to remonstrate with her about her having sold the timber off from a part of the lands, and that she said she had a right to sell it because it was perishable property — had been partly burned already. Even taking this testimony at its full face value it is in nowise conclusively an admission by Mrs. Van Note that she did not own the David Cook interest therein. Clara Pullen still owned her half interest in remainder, and Mrs. Van Note’s reply may have been with that in mind. It is testified that before Charles Cook went to see Mrs. Van Note he went to see Clara Pullen to try to get her to remonstrate with Mrs. Van Note, and he may have spoken of Clara Pullen’s interest in Ris protest to Mrs. Van Note.

A witness) Fisher, testifies that he heard Mrs. Van Note say she had loaned David Cook “money enough to pay Aunt Monty Grant’s funeral expenses” (for which the Bnrdge judgment was recovered). Reliance cannot be placed on this, especially after all these years, and it is not conclusive even at its face value; she may have meant that she had previously loaned him enough money to- pay the funeral expenses, hut that he hadn’t paid them. She may not have used the word Roan” at all; another witness testifies she said, “I let him have the money, &e.” “I let him have the money” would not be inapt to express the conveyance transaction — for it appears that David Cook went to her to get it. It does not appear that she ever desired to purchase his half interest in remainder, or that there was any reason why she should.

There is other testimony which need not be referred to in detail. The net result of the entire evidence is, to my mind. that it affords ground lor suspicion, even strong suspicion, that the parties may have intended this deed only as a mortgage, hut that it falls short of satisfying the mind that that in fact was what they intended.

Even if I had reached the opposite conclusion on this point, I am inclined to tlunk that complainants would be barred by laches. Proin Charles Cook’s own testimony he complained to Mrs. Yan Note about her sale of the timber about 1900, evidently on the theory that he, as an heir of David Cook, had some rights in the land. That was about the time he attained liis majority. His sister, Mrs. Brower, whs then over age. They could have brought suit on behalf of themselves and their two sisters twenty years ago. They could have done it ten years ago, after Mrs. Yan Note’s death, for, assuredly, then they knew that she claimed to-own David Cook’s interest, and all four children were then of age. Shortly thereafter they, or1 some of them, consulted counsel about the matter. They waited for eight years thereafter, although sixteen years had then already elapsed since the transaction they now' seek to question. The intervening-deaths and failures of memory (so evident in the testimony of some of the witnesses), the loss of evidence (such as the burned note), and the like, all make what seems to me a clear case of laches.

Counsel for complainants apparently misapprehend the application of the doctrine of laches to the case at bar, in contending that delay less than twenty years cannot bar a mortgagor’s bill for redemption. Complainants’ bill is not primarily a mortgagor’s bill for redemption; it is a bill to decree an instrument, in form a deed, to be a mortgage, and unless and until that is done they are not mortgagor’s seeking redemption. Clearly, it does not take twenty years’ delay to constitute laches which will defeat a bill of that kind.

The bill must be dismissed.


author: Per Curiam.

text:
    ALEXANDER HELSTOWSKI, PLAINTIFF-RESPONDENT, v. ISRAEL GREENBERG, DEFENDANT-APPELLANT.
    Decided November 15, 1924.
    False Arrest — -Defense That All Material Facts Had Been Disclosed to Competent Attorney Who Advised Warrant — No Error in Leaving to Jury Determination of Question Regarding Disclosure of Facts and Their Merits to Attorney —Ten Other Grounds for Reversal Considered and Rejected.
    On appeal from the Essex County Circuit Court.
    Before Justices Kalisch and Katzenbach.
    For the defendant-appellant, Braelow & Tepper.

    For the plaintiff-respondent, Anthony B. Finelli.

   Per Curiam.

Although there are twenty-nine grounds of appeal set forth in the record before us for review, the only grounds relied on and argued in the appellant’s brief are numbers two, three, six, seven, eight, nineteen, twenty-four, twenty-five, twenty-six, twenty-seven and twenty-nine.

The facts-, out of which the various legal propositions presented by this appeal arise, are these: Alexander Helstowski was in the employ of his brother Anton, who carried on a butcher and grocery business in Newark. Greenberg, the defendant below, was a wholesale grocer. Greenberg sold a bill of groceries, which merchandise he claimed was sold to Anton and Alexander, as partners. This was disputed and was for the jury. Anton sold his butcher and grocery business, whereupon the plaintiff went- to Perth Amboy and opened there a butcher and grocery business on his own account. Greenberg made a demand upon the plaintiff to- pay a bill of $55.76 incurred by his brother Anton in Newark. The plaintiff denied that he owed the bill and refused to pay it. ' Thereupon Greenberg lodged a complaint against the plaintiff in the Second Criminal Court of Newark, charging the latter with having obtained at the city of Newark, on the 4th day of June, a. n. 1919, under false pretenses, “wares and merchandise to the value of $55.76, with intent to cheat and defraud” him. A warrant was issued, the plaintiff was arrested and brought from Perth Amboy to Newark, and was imprisoned in the Newark jail, where he was detained for six days before he was released. The case was presented to the grand jury, but that body found no1 bill.

The defense relied on was, in substance, that the appellant had stated all the material facts, so far as he knew them, to his attorney, Mr. Kaplan, and that the latter advised him to make the criminal complaint, upon which the plaintiff was arrested. It further appeared that, before instituting criminal proceedings against the- plaintiff, the appellant’s attorney caused a summons to be sent by acting Judge Yuill of the Second Criminal Court of Newark to the plaintiff at Perth Amboy, summoning the latter to appear in said court on a certain day; that at the time fixed in the summons the appellant, his son, and his attorney, appeared, but the plaintiff did not. Subsequent to this, Mr. Kaplan, on behalf of the appellant,, commenced a civil action in the Eirst District Court of Perth Amboy against the plaintiff, to recover the sum claimed to be due to the appellant from the latter, which action as discontinued. Before commencing the civil action, Mr. Kaplan admits that in an interview had with the plaintiff he cautioned him that he was going to advise his client to swear to a complaint against him, to which threat the plaintiff replied : “Go- ahead and do what you like, I don’t care.” That Mr. Kaplan advised the making of the complaint against the plaintiff for obtaining goods under false pretenses, and had a second charge embodied in the complaint against the latter’: that on July 11th, 1919, lie and liis brother executed a bill of sale of all the stock and chattels in grocery store at Chambers and Clover streets, Newark, New Jersey., to J. M. and. John W.; that the brother Walter Helstowski swore in'his affidavit ineorpox’ated in the bill of sale that there were xxo ex’oditors of the business to whom debts were due and owing. It further appeared before Mr. Kaplan had advised his client, the appellant, to sign the complaint, he saw the bill of sale on which the complaint was based, and knew that the bill of sale had been executed oxxly by Walter Helstowski, the plaintiff’s brother. .Kaplan attempts to explain this by saying that it was an apparent oversight oxx his part. There is not a scintilla of testimony in the entire case tending to sustain the charge that the' goods for which the debt' was incurred were obtained under false pretenses. So the conclusion is irresistible that the statements made in the complaint were untrue. The defense, therefore, that the defendant had fully and fairly stated all the facts within his knowledge to competent counsel, and competent counsel advised the making of the complaint, and that the appellant acted xxpoxx that advice^ was xxot completely made out.

The learned judge, however, very benignly, hxxt very properly, left the consideration of these facts to the jury, who found a verdict for the plaintiff, upon which verdict a judgment was entered, from which judgment the defendant has appealed.

We first take up for consideration the second ground of appeal, which is stated as follows: “Because the court erroneously refused to direct a verdict for the defendant on the ground that the defendant in consulting a regular and duly licensed attorney of the State of New Jersey and laying before him all the facts in the case fully and fairly, thereby had probable cause for the institution of tlxe original criminal procedure.”

It is obvious that this request was properly refused. Whether or not the defendant had fuUy and fairly laid all of the facts before Kaplan, the attorney, was a jury and not a court question, under the evidence in the cause. Dalton v. Godfrey, 117 Atl. Rep. 635; 97 N. J. L. 455.

The next ground of appeal argued is number six, which is as follows: “Only two questions therefore remain on the subject of liability. The first is whether there was a want of reasonable and probable cause in making the complaint, and, second, whether there was malice; but since malice is presumed where there is want of reasonable and probable cause, unless that has been rebutted, there is really but one question on the subject of liability, and that is, had the defendant reasonable and probable cause for making the complaint against the plaintiff in setting in motion the machinery of the criminal courts, which resulted m his arrest and imprisonment.”

This instruction seems to be in accord with what was said by Chancellor Walker in Dalton v. Godfrey, supra, speaking for the Court of Errors and Appeals (at p. 460).

The seventh ground of appeal is of the same import as the one we have just considered, with the exception that the forepart of the instruction, commencing with “only two questions,” &e., and ending “whether there was malice,” is omitted.

This, therefore, needs no further consideration.

The eighth ground of appeal is the same as the sixth and seventh.

The next ground of appeal relied on and argued is number nineteen, and is found upon an exception to an expression in the judge’s charge, which was as follows: “If you find that this advice was not justified then you come to the consideration of damages.” This does not convey any idea whether what was said by the trial judge was. correct as a proposition of law or not. Eor immediately preceding the statement complained of tile court said: “If you decide that the facts were fully and fairly stated to competent counsel, and competent counsel advised this complaint, and that the defendant here acted upon that advice, that is a complete justification, and the plaintiff in this snit cannot recover.”

What the court said was accurate. Of course? if the defendant had not made a full and fair statement of the facts to his counsel, it is quite plain that advice of counsel could not be availed of by the defendant in justification. The nature of the advice was dependent upon the facts related by the defendant to his attorney. And all this- was properly left to the jury for its determination.

And it is further to- be observed that the court charged the jury on this point substantially as requested by defendant’s counsel in his fifth request, which was as follows: “If you believe that the defendant consulted competent counsel and made a full and fair and complete statement of all the material fads that came to his knowledge, or caused such full, fair and complete statement of facts to be communicated to competent counsel, then you must find a verdict for the defendant.”

The twenty-fourth ground of appeal is stated in the appellant’s brief, as follows: “Because the court erroneously received in evidence a criminal complaint differing from the one alleged to have been made in the complaint filed in the cause."’

There is no merit in this contention. The plaintiff’s complaint in the present action does not pretend tc set out a copy of the criminal complaint made against him. This was not necessary. The substance of the complaint was set out. It is true that the plaintiff alleged that he was charged by the defendant with having defrauded the latter out of $145, whereas, in fact, it was only $55.76 cents. The court allowed the plaintiff to amend his complaint according to the fact. This was proper practice.

The twenty-sixth ground of appeal is that the court erró-, neously refused to grant a nonsuit.

The contention of counsel is a restatement of what was urged by him under the twenty-fourth ground of appeal, and with the additional reason that the civil complaint, as 'amended, by the plaintiff, alleged that the criminal complaint in the criminal cause had been dismissed by the September, 1919, grand jury, whereas in truth, axid, in fact, 'the evidence, showed that it was not dismissed, but that no indictment was returned. This seems to be a distinction without a material difference. The prosecution was at an end so far as that grand jury was concerned. And the proof malíes it clear that no further steps were taken by the defendant to prosecute his complaint.

The twenty-fifth ground of appeal is, that “the court erroneously permitted the clerk of the grand jury to testify to the disposition made by the grand jury of the original complaint in the cause, without having first accounted for the non-production of the recordó oí the grand jury concerning that disposition.”

It is sufficient to say that the clerk of the gwand jury produced the best evidence that the nature of -the case was susceptible of, by producing the original complaint bearing the indorsement of the foreman of the grand jury that no bill was found.

The only other ground of appeal relied on and argued in the brief is founded on the alleged exclusion of the question: “Who do you think was the owner of the place?” put to defendant by his 'counsel on the direct examination. The record shows that plaintiff’s counsel objected to the question, but the defendant, nevertheless, answered it thus: “'The both of them was there.” And it was after the witness had answered as above the conrt said objection is sustained. The answer was not precisely responsive to the question put, but taking in consideration the unfamiliarity of the defendant with the English language, it is clearly inferable what he meant, namely,'that in seeing them both there he thought they were the owners of the store. The defendant’s counsel did not see fit to pursue the examination on this line, and as the question was answered and the defendant had the benefit of it, even if the question was a proper one, no harm was clone by the court sustaining the objection. But we think the question was incompetent. It was seeking the defendant’s opinion on undisclosed facts; such testimony is clearly incompetent. It was for the jury to- determine from the facts introduced in evidence whether or not the defendant had reason to believe that the plaintiff was owner of the store. ■

For the reasons given judgment is affirmed, with costs.


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    THOMAS F. HALPIN, JR., ET AL. v. CHARLES W. TILLOU ET AL.
    Decided November 24, 1924.
    Negligence — Motor Vehicle Collision — Two Cars in Collision at Street Corner — ¡Defendant Counter-claims, Charging Responsibility on Plaintiff — Judgment for Plaintiff — Several Reasons for Making Rule Absolute Advanced — Application Denied.
    On defendants’ rule to* show cause.
    Before Gummere, Chiee Justice, and Justices Parker and Katzenbach.
    Por the rule, Max M. Stallman.

      Contra, J. Harry Henegan and Joseph Kahr

   Per Curiam.

The plaintiffs, father and son, bring this action to¡ recover damages resulting from a collision between a car driven by the son and owned by the father, and a car driven by the defendant Wesley Tillou and owned by the latter’s father. The plaintiff Halpin, Jr., sues to recover for personal injuries, and his father for damages done to the automobile. The collision occurred at the intersection of Ridge street and ■ Ballantine parkwajr, in the city of Newark, late in the evening. The plaintiffs’ contention was that the collision resulted solely from the negligence of Wesley Tillou, who was driving- his father’s car, with the latter’s permission, as they alleged. The defendants denied liability, and counterclaimed, asserting that the accident was the result solely of the carelessness of Halpin, Jr. The jury affirmed the claim of the plaintiffs and found against the defendants on the counter-claim. The defendants applied for and obtained a rule to show cause, and we are now asked to make that rule absolute for certain reasons, which will be discussed in their order.

The first reason advanced by the defendants for making the rule absolute is that the trial judge erred in refusing to ehaige the following request submitted by the defendants-“If you find that the plaintiff was negligent, either in not having his car under control, or in not making a proper observation, or in failing to sound his horn, or in not exhibiting lights, and any or all such omissions contributed in any degree to the happening of this accident, then plaintiff Hal-pin, Jr., cannot recover a verdict at your hands.” It is enough to sajT, in disposing of this reason, that an examination of the instructions to the jury shows- that the request was substantially charged, so far as it- accurately stated the legal principle embodied in it.

The next reason submitted by the defendants for setting aside the verdict is that the trial court- erred in refusing to charge the following request: “If you find the plaintiff did not give any audible warning, and did not display such lights, he was guilty of negligence.” This request was properly refused, for a failure to- obey provisions of the Traffic law. although evidential on the question of negligence, is not conclusive upon that point.

Next, it is urged that the trial court erred in instructing the jury that Halpin, Jr., had the right of way, and in refusing to charge that he did not have the right of way unless, in the exercise of reasonable care, it was apparent to- him that he could cross in safety. We do- not find the instruction complained of embodied in the charge as sent up with the state of the case, and, therefore, the question of its correctness is not involved on this rule. As to- the refusal to- charge, we think the action of the trial judge was proper. The two automobiles met at the intersection of two streets in the city of Newark, as has already been stated. The plaintiff Halpin, Jr., was aproaching the intersection from the right of the defendants’ car. Under the provisions of. the Motor Vehicle law, therefore, he had the right of way over the defendant Tillou, Jr., and the fact that, in exercising it, he would not only put himself in jeopardjq but would also have endangered the safety of the person who unlawfully refused to recognize that right, did not operate to destroy it. The most that can be said in favor of the defendants is that, if the plaintiff Halpin, Jr., had attempted to exercise it when it Was apparent to him by doing so he would have placed himself and other iu jeopardy, he would have been grossly negligent in so doing.

The next reason advanced by the defendants for making the rule absolute is that the trial court improperly refused to charge the following request': "If on the whole case you are not satisfied from the evidence as to how the accident occurred, and are compelled to resort to guesswork or speculation, your verdict must be for the defendants in the plaintiffs’ suit.” The refusal was proper. The function of the jury was to render a verdict on the evidence submitted to it, and the court properly charged the law on the question of the weight of that evidence. This was all that the trial judge was required to do.

The next ground urged for making the rule absolute is that the trial court erred in stating to the jury that there was testimony in the case that the speedometer on the defendants’ car registered thirty-eight miles an hour when it was looked at after the accident occurred, and in leaving it to the jury as to whether ’that fact was of any significance. The statement of the trial judge was entirely justified by the proof, and its significance was a matter for the determination of the jury. We find nothing of merit in this contention.

The next reason for making the rule absolute is based upon the alleged error of the trial court in charging the jury that, if they found that both of these young men were negligent in the operation of their respective cars, there could be no recovery either by one or the other of them or hv their fathers; and in refusing to' charge that, if the accident was caused by the negligence of Halpin, .Jr., then Tillou, Sr., was entitled to recover the damages and expenses which he had incurred. We find it unnecessary to consider the question whether either the instruction or refusal was erroneous, for the reason that the finding of the jury, by necessary implication, exonerated Halpin, Jr., from any negligence con tributing to the accident, and, consequently, the action- of the trial judge exploited in this last ground for making the rule absolute was harmless to the defendants, oven if erroneous.

The only other grounds for making the rule absolute, which have been argued before us, are that there should have been a nonsuit, and that the finding of the jury was against the weight of the evidence. Our examination of the case leads us to the conclusion that there is no merit in either of these contentions.

The rule to show cause will be discharged.


author: Per 0 mi am.

text:
    JOSEPH W. PINCK, RELATOR, v. JOHN JELLEME, BUILDING INSPECTOR OF THE CITY OF PASSAIC, DEFENDANT.
    Decided November 24, 1924.
    Ordinances — Zoning—Case Controlled by Ignaciunas v. Risley Case.
    On application for mandamus.

    Before Justices Kalisck, Black and Campbell.
    For the relator, •Jacob I. Jaffa.

    For the defendant, Albert O. Miller and Harry H. Weinberger.

   Per 0 mi am.

The relator applied to John Jelleme, building inspector of the city of Passaic, for a permit to erect a two-family two- and-one-half-storv house upon premises known and designatecl as No. 144 Paulison avenue, in the city of Passaic. Although the relator had complied with the municipal regulations governing such an application the permit was refused.

The sole reason for the refusal of the permit is that the land in question has been placed in Eesidence “A” District, under the zoning ordinance of that municipality.

We think the facts of this case fall within the doctrine laid down in Ignaciunas v. Risley, 1 N. J. Adv. R. 1023; 121 Atl. Rep. 783, which case is controlling here.

A peremptory writ is ordered.


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    PAULINE GIRARDIN, PLAINTIFF, v. THERESA GIRARDIN, DEFENDANT.
    Sumbitted June 5, 1924
    Decided November 24, 1924.
    Alienation of Husband’s Affections — Defendant Mother of Husband — Evidence of Alienation Meagre, But Sufficient to Justify Jury Finding.
    On defendant’s' rule to- show cause.
    Before Gummerb, Chief Justice, and Justices Parker " and Katzenbach.
    Eor the plaintiff, William E. Smell.

      For the defendant, Ziegener & Lane (Harry Lane, of counsel).
   Per Curiam.

The plaintiff, Pauline Girardin, brought this action against Theresa Girardin, her mother-in-law, to recover damages for the alienation of her husband’s affections. The. case was tried at the Hudson Circuit and resulted in a verdiet for the plaintiff for $2,500. The defendant applied for and obtained from the trial,judge a rule to show cause. The case is before me under this rule.

The evidence discloses that the plaintiff and defendant’s son were married on June 9tli, 1921. For a few weeks after their marriage they resided with the defendant. They then obtained rooms almost opposite the residence and place of business of the defendant. The plaintiff continued to work after her marriage. In April, 1923, the plaintiff’s husband established a flower shop with moneys obtained from the earnings of himself and wife. The business was also aided financially by the defendant. One Saturday the1 plaintiff needed money for the purchase of food for Sunday. She went to the flower shop. Fter husband was absent. She took $3 from the cash drawer, asking an employe in the store to tell her husband that she had taken it and for what purpose. The defendant happened to be in -the store at the time. She then, according to the testimony of the plaintiff, assaulted the plaintiff, telling her that she hated her, always had hated her, and that her son would go home to live with her, and that she would see that the plaintiff did not get any of her money. Soon after this affray the husband began to ill-treat his wife. He told his wife that he would not live with her and that his mother would run the store. He left the plaintiff and lived with his mother. The plaintiff was obliged to go to the poormaster, who compelled her husband to jmy her a sum weekly for her support. This weekly allowance was increased after the birth of a child.

There was testimony to the effect that the defendant had said her son ought not to have married as he was too young to marry. The defendant produced a number of witnesses who testified mostly upon non-essential matters. The assault was not denied, although the defendant claimed the plaintiff was the aggressor. It was also' not denied that the plaintiff’s husband had left his wife shortly after the occurrence in the flower shop. The defendant contends the verdict is against the weight of the evidence.

The evidence on the subject of the alienation of the aifec tion of the plaintiff’s husband may be properly said to1 be meagre, but there was evidence of statements made by the defendant and acts of the defendant and plaintiff’s husband from which a jury would be justified in finding the defendant guilty. We cannot say the verdict is against the weight of the evidence. If the defendant was guilty, and the jury found her to be guilt}’, we do not think the amount of the verdict excessive.

The rule to show cause is discharged.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. DAVID GELTZEILER AND ABRAHAM GREEN, PLAINTIFFS IN ERROR.
    Submitted June 5, 1924
    Decided November 24, 1924.
    Crimes — Selling Liquor — Grounds for Setting Aside Verdict Considered and Judgment Affirmed.
    On writ of error to the Essex Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbaci-i.
    For the plaintiffs, John IF. McGeehan, Jr.

    For the defendant, John O. Bigelow.

   Per Curiam.

This case is before us on a writ of error directed to the Essex County Court of Quarter Sessions. The writ brings up for review the conviction of David Geltzeiler and Abraham Green for selling and possessing liquor. The first count of the indictment charged the plaintiffs in error with the sale of fifty-seven cases of liquor for beverage purposes. The second count charged them with possessing fifty-seven cases of liquor. The indictment was under the Prohibition Enforcement act. Pamph. L. 1922, ch. 255.

The evidence in the case came from the testimony of police officers. Geltzeiler came to police headquarters and presented to Officer Brex, captain of detectives, a check which he said lie had received as consideration for the sale by him of fifty-seven cases of liquor, and that he had discovered the check to be a forgery. The testimony shows that Geltzeiler had the fifty-seven cases of liquor and desired to sell them. Green told Geltzeiler that he had a customer. Geltzeiler sold, and, with Green, delivered the fifty-seven cases of Scotch whiskey to a man by the name of Emory, for $2,280. Emory gave Geltzeiler a check for $2,000 and $280 in cash. Green received his commission out of the cash. Geltzeiler then found that the check was bad. He came to police headquarters, apparently, to get it collected.

The case is before us on assignments of .error and specifications of causes for reversal. The first point argued in the brief of the plaintiffs in error is the first assignment and the first specification. These are that the court erred in denying motions for the direction of a verdict of acquittal. The ground alleged is that the corpus delicti was not proven. The contention is that upon the confession of Geltzeiler, the plaintiffs in error could not be legally convicted. The law is that a confession, if duly made and satisfactorily proven, is sufficient alone to warrant a conviction without corroborating testimony aliunde. But in this'case there was corroborating evidence, namely, the check. We think the court was fully justified in denying the motions to direct an acquittal.

The next point argued is that a verdict should have been directed in favor of Green because he was not guilty of the making of the sale. Green was present, and aided and abetted Geltzeiler, the owner of the whiskey, in effectuating the sale. Green, in fact, procured the customer. He was equally guilty.

The next point argued is that the conviction should he reversed because the court failed in its charge to define the crime for which the defendants were being tried. This is not error. A court is not obliged'to define the crime. A court can submit a case to a jury without a charge if it desires to do so. People v. Gray, 5 Wend. 288; State v. Ross, 247 Pac. Rep. 1149. The method to be taken to secure a charge upon any branch of the case is by a request to charge. The judgment of conviction is affirmed.


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    AYWON FILM CORPORATION, PLAINTIFF-APPELLANT, v. J. FRANK HATCH, DEFENDANT-RESPONDENT.
    Argued May 7, 1924
    Decided November 24. 1924.
    Contracts — -Failure to Accent Motion Picture Films — Defense that They Were Not According to Agreement — Remarks of Trial Judge Not Prejudicial — Counter-claim for Money Paid for Films Delivered — Evidence .Examined and Judgment for Defendant on Counter-claim Sustained.
    On rule to show cause.
    Before Gummere, Chief Justice,-and Justices Parker. and Katzenbach.
    For the plaintiff-appellant, I. Paerber Goldenhorn (Samuel S. Stern, of counsel).
    For the defendant-respondent, Edward Schoen.

   Per Curiam.

The plaintiff Instituted in this court an action to recover damages for the defendant’s failure to accept under an agreement in the nature of a lease certain moving picture films referred to in the agreement as “two-reel Mary Pickford reissues.” The defendant filed an answer setting up that the 3-eels offered-were not as represented, and did not comply with the terms of the agreement. A counter-claim was also filed to recover from the plaintiff the moneys paid for the films delivered, and damages for breach of the agreement. The case was tried at the Hudson Circuit, and resulted in a verdict for the defendant upon the counter-claim of $956.68. The plaintiff applied to the trial judge for a rule to show canse why the verdict should not be set aside. The rule was granted.

Under this rule the plaintiff first contends that certain remarks made by the trial judge during the progress of the trial were so prejudicial to the plaintiff as to prevent it from having its case determined upon the merits. The day of the trial was July 20th, 1923. The mercury stood at ninety degrees. The extreme heat, undoubtedly, affected counsel and the court. The record discloses some comments made by the trial judge which would probably not have been made had the heat been less oppressive. We have examined the remarks complained of and are of the opinion that their effect upon the jury was not as serious as the plaintiff’s counsel argues, and that the plaintiff was not prejudiced thereby. The court, in its charge, made it clear to the jury that they should not be influenced against the plaintiff by the colloquies which had taken place between the court and plaintiff’s counsel.

The plaintiff next argues that the court erroneously permitted the defendant to introduce evidence as to the alleged umnerchantability of the films delivered. The contract provided for the furnishing to- the defendant by the plaintiff of fifteen two-reel Mary Pickford reissues. Each of said pictures were to consist of two xeels of film. When delivered the defendant found that one reel contained no pictures of Mary Pickford, but was padded or filled with titles and reading matter. The court admitted evidence to the effect that complaints of the films were made to the defendant by patrons. The plaintiff insists that the court erred in the admission of this testimony as there was no representation made as to the merchantability of the pictures. We think there was no error in the admission of this testimony. The plaintiff knew that these pictures were to be shown or exhibited by the defendant. The contract called for two-reel Mary Piekford reissues, and were advertised as such. If, when shown, complaints were made to the defendant that he was showing pictures which were- not as advertised this evidence was admissible on the question of the defendant’s damages for the plaintiff’s failure to provide the pictures called for by the agreement, if it was established that the films delivered to the defendant were not according to the contract, there being testimony to this effect.

The third point argued by the plaintiff is that certain testimony as to the loss of profits admitted should have been stricken out as too remote and speculative. There was evidence from which the jury could properly infer that the films delivered, were not in accordance with the terms of the agreement between the parties. The plaintiff, as has been said, knew that the purpose of the defendant in securing the films was to exhibit them. If the films shown were not as advertised it would be reasonable to infer'that a loss of patronage would occur. The defendant had had experience in the moving picture business. He knew approximately what the profits would be if the pictures shown at his theatre had been two-reel Mary Pickfords. Evidence as to loss of profits is never exact. The evidence offered, we think, was not so remote o]' speculative that it should have been excluded. The questions which brought it out were not objected to. Later, a motion to strike it out was made and overruled. This ruling we think proper. Such losses must have been within the contemplation of the parties. Under such circumstances damages are recoverable. Wolcott v. Mount, 38 N. J. L. 496.

The fourth point made by the plaintiff is that the court erred in charging the jury that there could be only two verdicts in the case. The language used by the court was as Follows: "Now, the verdict in this case may be either one way or the other. You may find for the plaintiff and against the defendant. If v’ou do, you may say we find for the plaintiff and against the defendant, and assess the plaintiff’s damages at so much; now, it may be that you will find for the defendant and against the plaintiff, and if you do, you will say we find for the defendant and against the plaintiff, and assess the defendant’s damages at so much. Those are the two verdicts.”

The contention is that there could have been rendered by the jury any one of the following five verdicts — first, on the plaintiff’s cause of action, the jury might have found for the plaintiff and against the defendant, and assessed the plaintiff’s damages; second, on the plaintiff’s canse of action, the jury might have found a verdict for the defendant; third, on the defendant’s counter-claim, the jury might have found, as it did find, in favor of the defendant and against the plaintiff, and assessed the defendant’s damages; fourth, on the defendant’s counter-claim, the jury might have found in favor of the plaintiff and refused any damages to the defendant; fifth, on the entire case the jury might have refused either plaintiff or defendant damages. Counsel for the plaintiff called the attention of the trial judge to this portion of his charge. He then said that if he put it otherwise than he had stated in his charge the jury would be likely to be confused. While the plaintiff took an exception to this part of the charge, we think that there was nothing erroneous in what tile court said. If the plaintiff desired other instructions on the form of the verdict he should have submitted requests to charge. The plaintiff was not, in our opinion, prejudiced by anything on this subject in the charge of the court.

The plaintiff finally argues that the verdict is contrary to the weight of the evidence. The contract provided for two-reel pictures. The contract used the words “Mary Pickford reissues.” The evidence showed that but one reel contained pictures of Mary Pickford. The other reel showed only titles and reading matter. There was testimony that two-reel Mary Pick fords meant that the entire picture was made by Mary Pickford ; that reissues were pictures which had formerly been shown and then were laid aside and later brought out again; that there was no custom which permitted the padding of a. picture, as had been done in this ease1, and calling it a Mary Pickford. Erom this testimony we think the jury were fully justified in finding, as they must have done to arrive at the verdict they did, that 'by a two-reel Mary Pickford reissue was meant a two-reel picture in which pictures of Mary Pickford appeared in both reels, and not a picture having one of the reels padded with titles, subtitles and reading matter. The verdict was therefore not against the weight of the evidence.

The rule to show canse is discharged.


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    ANCONA PRINTING COMPANY v. WELSBACH COMPANY.
    Decided November 24, 1924.
    Lease of Property — Alleged Failure to Keep Property in Due Repair — Alleged Wrongful Removal of Certain Fixtures— Allegations Denied and Judgment for Plaintiff — Impossible to Demonstrate Method of Arriving at Amount of Payment- — -Rule Made Absolute.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbaoh.
    Eor the rule, Bleakly, Siockwell & Burling.

      Contra, Wescoii & Weaver.

   Per Curiam.

The defendant company was a tenant' of the plaintiff, occupying a plant belonging to the latter at Gloucester City. It was in possession of the premises in 1905 and subsequently, under a ten-year lease, which ran from March 1st, 1905, to June 30th, 1915. This lease was extended for a period of a year. The present suit was instituted by the plaintiff to recover from the defendant company — first, compensation for failure to keep the leased premises in proper repair during tlie eonliuuanee of the lease, in accordance with the provisions thereof, and until the end of the defendant’s occupation thereof; and second, compensation for the wrongful removal and wrongful appropriation by the defendant of certain fixtures installed in the plant, the ownership of which, as claimed by the plaintiff, was in it. The defense was that there had been no breach by the defendant of the covenant to repair, and that the fixtures removed by it from the plant after the termination of the lease belonged to it, and not to the plaintiff,tand that, by the terms of the lease, their removal was legally justifiable. The jury returned a general verdict in favor of the plaintiff for $25,237.

Just how the sum awarded by the jury was arrived at is not capable of demonstration. It is significant, however, that the plaintiff, in support of its claim, offered in evidence an estimate of the cost of putting the plant in proper repair and of replacing the fixtures alleged to have been wrongfully removed and appropriated by the defendant, and this estimate was based upon testimony submitted hv the plaintiff in support of its accuracy. The following is a condensed statement of that estimate: (1) Estimate of the cost of putting the buildings in proper repair, $21,969; (2) estimate of the cost of replacing shafting claimed to have been the property of the plaintiff, but removed by the defendant, $6,209.20; (3) estimate of the cost of replacing the sprinkler system, claimed to have been the property of plaintiff, but removed by the defendant, $12,470; (4) estimate of replacing gas lighting system, claimed to have been the property of plaintiff, but removed by the defendant, $3,268.

There was also a claim for the cost of replacing an electric lighting system, which had been removed by the defendant, hut this claim apparently was abandoned at the trial. It will be observed that the cost of repairing the buildings-, plus the cost of replacing the gas lighting system, as estimated by the plaintiff’s witnesses, together make up the exact amount of the jury’s award, and it seems reasonable to suppose, in view of that fact, that the jury reached the eonclusion that the claim of the plaintiff that the shafting and the sprinkler system which were taken away from the plant by the defendant were unlawfully removed by it was not justified. Whether this be a fair analysis of the verdict or not, it must be conceded that a considerable part of it is based upon the cost of repairing the buildings and the plant, and to this extent, we think, the verdict cannot be justified. The covenant in the lease with relation to repairs was that the defendant should and would, during the continuance of the lease, keep, and, at the termination thereof, deliver up said premises in as good order and repair as of the day of the date of the lease, reasonable wear and tear, acts of God and public enemies and accidents by fire excepted; and would keep the roofs, the glazing, &c., in proper repair, including the necessary painting in order to properly preserve the buildings. The obligation, therefore, rested upon the plaintiffs to prove not only that the buildings upon the premises were not in a proper state of repair at the time of the surrender of the plant to it by the defendant, but also the state of repair of these buildings at the time of the making of the lease, for the obligation of the lease was not to surrender possession at the termination of the lease of these buildings in proper' repair, but only in as good order and repair as they were in at the time of the making of the lease; and at the time of the making of the lease, many of the buildings were more than a quarter of a century old. This second factor the plaintiff failed to prove — that is, the condition of the premises as to repair at the time of the making of the lease— and so, for aught that appears to the contrar}', the premises may have been in quite as good a state of repair at the time when possession was turned over to the plaintiff as they were at the time when the term fixed by the lease began to run. In the absence of the proof indicated, we think this verdict cannot be sustained so far as it relates to the item of repairs to the buildings.

The rule to show cause, therefore, will be made absolute.


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    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Joseph Aloysius Redmond, petitioner, v. John A. Cook, respondent.
    Hernia — Date of Injury Not Definitely Fixed — Requirements of Statute In Hernia Cases not Compiled With.
    On petition for compensation. Bindings of fact a determination. Dismissal.
   * * * This, is, a case wherein the petitioner claims that some time during the months of July and October, 1923, while lifting a radiator, he sustained a hernia. The testimony is quite clear and convincing that the petitioner failed to proof a day certain on which he alleged he sustained a hernia. On his direct examination he testified that he could not fix the day and month of the. occurrence of the hernia, and testified further that he did not refrain from work, lint continued to work steadily until some time in the month of October, 1923. He further testified that the first medical attention he received was on November 6th, 1923. It further apears that this is not a case of traumatic hernia hut one of the pre-congenital type or of the slow-developing kind. H is obvious that the petitioner did not comply with a single requirement .as contained in subdivision (X), paragraph 11 of the Workmen’s Compensation act.

For the above, reasons, I find in favor of the respondent. John A. Cook, and against the petitioner, Joseph Aloysius Redmond, and dismiss the petition.


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    New Jersey Department of Labor. Workmen's Compensation Bureau.
    John Schmidt, petitioner, v. John Pawlowski, respondent.
    Partial Loss of Index Finger.
    On petition for compensation. Binding of facts a determination. Order of dismissal.

      Mr. Samuel Greenstone, for the petitioner.

      Mr. Gerald, McLaughlin, for the respondent.'
   * * * In the case at bar the testimony shows that the petitioner has received compensation from the respondent by way of agreement: Temporary disability, seven and three-sevenths weeks at the rate of $17 per week, and permanent disability seven weeks at the same rate, based on twenty per cent, loss of function of the right index finger. Taking the testimony as a whole, I am of the opinion that the petitioner has been properly compensated for injuries sustained by him as a result of the accident of November 27th, 1923, and is entitled to no further compensation benefits.

T find, therefore, in favor of the respondent, John Pawlowski, and against the petitioner, John Schmidt, and dismiss the petition.

John J. Stahl.

Referee.


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    New Jersey Department of Labor. Workmen's Compensation Bureau.
    John Voynik, petitioner, v. William Slezak, respondent.
    Injury to Leg Through Fall of Tree Stump — Leg Made Two Inches Shorter Thereby — Amount of Compensation Awarded.
    On petition for compensation under Workmen's Compensation act. Determination of facts and rule for judgment.

      Messrs. Stamler, Slamler & Koestler, for the petitioner.

      Mr. Philip Cohen; for the respondent.
   * * * On the 24th day of March, 1924, the said John Voynik, the petitioner, while in the course o£ his employment, and while engaged with the respondent in excavating a hole in which to bury a large tree stump, under the direction of the respondent, the said tree stump fell upon the petitioner and respondent, causing the petitioner a fracture of his right leg above the knee joint, and as a result of said injury the petitioner’s right leg was caused to become two inches shorter than his left leg, and he has sustained a fifty per cent, loss of the usefulness of his said right leg. * * *

The .petitioner is entitled to compensation for temporary disability for seventeen (17) weeks at the rate of seventeen dollars ($17) per week, and for permanent disability for the fracture of Ms right leg for eighty-seven and one-half (87}4) weeks at the rate of seventeen dollars ($17) per week, said compensation commencing March 24th, 1924, and that the said petitioner is also entitled to the sum of three hundred and eighty-four dollars ($384) expended by him for doctors hospital’s and medical bills in connection with his said injury.

That nothing has been paid to the petitioner by the respondent for compensation or medicine or doctor’s bills That tire petitioner is entitled to costs in this proceeding.

V *8» *!»

And it is further ordered that Stamler, Stamler & Koestler, the attorneys for tire petitioner, be and they a.re hereby allowed the sum of one hundred dollars ($100) as a counsel fee herein, which said sum is to be paid by the respondent and included in the taxed costs against the respondent.

Ci-iakles E. Cohex,

Deputy Commissioner.


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    Philip F. Kessler et al., complainants, v. Frederick Smith et al., defendants.
    [Decided November 25th, 1924.]
    Conveyances — Alleged Fraudulent — Creditors’ Bill to Set Aside —Conveyance by Insolvent to Brothers Who Had Claims— Defendants’ Right to so Prefer Creditors Unquestionable— Conveyance of Greater Probable Value Than the Preferred Claims — Complainants’ Entitled to Have Additional Value Applied to Their Claims.
    On final hearing.

      Messrs. Stamler, Stamler <6 Koesller, for the complainants.

      Mr. Jolm F. Reger, for the defendants.
   Buchanan, V. C.

Primarily this is a creditor's bill, seeking to set aside, as a fraudulent conveyance, a certain deed made by the defendant Frederick Smith to the defendants Citarles Smith and Alice Smith, May 27th, 1921, comprising 'his one-third undivided interest in certain real property at Bound Brook, New Jersey (in which the defendants owned the other two-thirds). The property in question consists of a considerable tract of land on which is a residence and an old greenhouse. It was conveyed to the three Smiths by their mother, in April, 1915, and at the same time Frederick Smith com menced the erection of a new greenhouse thereon at a cost of $12,000, plus $1,500 for the “benches.” This was constructed by Hitchings & Company, one of the complainants, who have never been fully paid. The other complainant. Kessler, is a man from whom Frederick Smith borrowed money from time to time, commencing in 1915, and who alleges that the money was borrowed for the purpose of paying fox tlie erection of the greenhouse.

It was the idea of the complainants’ counsel that the defendants Charles and Alice were liable personally for some fraud or conspiracy in having this greehouse erected on land which belonged in part to them, and certain allegations were made in the hill, and certain of the proofs presented, on that theory. Suffice it to say that I am unable to find any justification for any finding or decree in that behalf, anything which would impose any primary liability upon Charles or Alice. Whether or not Frederick was guilty of any fraud or false representation is immaterial, for he is, in any event, primariily liable for the debts due to complainants.

Taking up the ease as a creditors’ bill, it appears, and is conceded, that at the time of the deed in question Frederick Smith was insolvent, that he owed the debts due to the two complainants, and numerous other debts of considerable magnitude; had, at least, one judgment against him in New York, and the only assets he had were his interest in this Bound Brook property, and his growing crops, worth, perhaps, $7,000 to $8,000. These growing crops froze, so> that he realized nothing from them. Whether this happened before or after he made the deed is not quite clear, but it is immaterial, for he says he owed over $.20,000.

It is proven to mv satisfaction that his brother and sister had loaned to him from time to time sums aggregating $4,800. He says he made this conveyance to his brother and sister in order to pay that debt, so' that they might have that preference. It is, of course, well settled that he had the right so to cloi, and they had the right to accept such preferential payment. Whether or not Frederick had any actual intent to defraud ox delay other creditors cannot deprive Charles and Alice of this right to payment-of the $4,800 debt, unless they participated in that intent, unless they knew or were chargeable wilh knowledge that Frederick had that intent.

Some of the evidence certainly affords ground for suspicion that they did participate either actually or in contemplation of law, hut they impressed me rather favorably upon the witness-stand (in marked contrast to Frederick), and after a careful consideration of all the evidence, I am unable to say that complainants have borne the burden of proof which is upon them to establish this. Indeed, I am rather of opinion that the weight of the evidence is in favor of Charles and Alice.

Remains the question of adequacy of consideration. The testimony of all of the defendants is that Frederick erected the greenhouse as his own project. His brother and sister made no objection, but expressly stated that they would not share in the cost. It was tentatively agreed that Frederick would buy out their shares in the property and establish his own flower business there, though no> price had been fixed. This plan fell through by reason of Frederick’s ensuing financial reverses.

As amongst the three, therefore, the new greenhouse belonged to Frederick. On a sale in partition he would have been entitled to one-third of that portion of the sale price which represented the value of the property if the greenhouse liad not been built, plus the entire portion of the sale price, which represented the additional value of the property by reason of the new greenhouse. Shipman v. Shipman, 65 N. J. Eq. 556 (at p. 559). Or if the property were susceptible of actual partition, he would be entitled to such tract or part of the lands as containe'd the new greenhouse, and was of approximately one-third of the value of the entire prop-city exclusive of the greenhouse. Booraem v. Wells, 19 N. J. Eq. 87 (at p. 101); Brookfield v. Williams, 2 N. J. Eq. 341; see, also, Keneaster v. Erb, 83 N. J. Eq. 625 (at p. 628); Woolston v. Pullen, 88 N. J. Eq. 35 (at p. 40).

The contention of the defendants Charles and Alice, is that the value of Frederick’s interest at the time of the deed (based on the average of the figures given by their own witnesses as to value) was $1,500, as one-third of the land without the greenhouse, and subject to a mortgage of $2,500, plus $5,166.66, as the additional value of the greenhouse, or a total of $6,166.66. I am inclined to believe this figure is less than the actual value. The testimony of complainants’ witnesses would so indicate, and it would naturally bo expected that defendants’ figures would be low. Moreover, Frederick Smith (whom defendants offered as a witness) said that he had expected to pay $10,000 to his brother and sister for their shares in the property, i. two-thirds of the value exclusive of the new greenhouse.

But taking defendants’ own figure of $6,166.66, the con sideration paid was inadequate. The consideration paid was the satisfaction of the $4,800 borrowed by Frederick from his brother and sister, plus a promise to advance or loan an additional $200 — this according to the testimony of the thlee Smiths themselves. This is less by over $1,000 than defendants’ own valuation of Frederick’s interest conveyed. Defendants argue that the interest on the $4,800 loaned and payments for upkeep brings the actual consideration up to over $7,000. Defendants themselves testify that no1 interest was ever asked for; no time was ever fixed for repayment of the advances; no demand, ever made for such repayment. Thcw were evidently acting toward each other as brothers and sisters, uot on a strict business basis. Whatever claim defendants might have had to interest on the advances and upkeep payments is more than offset bjr the fact that they occupied and used the new greenhouse as soon as it was finished, and have continued so to do. They have had all the use and occupation of the entire premises, including the new' greenhouse, for all these years since 1915; Frederick Smith had none. Presumably, it wras understood, at least tacitly, that this offset the interest and upkeep payments that Frederick otherwise would have been expected to pay. No demand was ever made on him for any such payments until the present, when it is made by way of the argument above mentioned. Nothing was said about it at the time of the deed.

I think the conveyance may stand as security for the $5,000, which is the expressed consideration, and the consideration which was testified to, but mat- stand only in that behalf and to that extent. Complainants are entitled to have the additional value applied, to the satisfaction of the debts due them. Cf. Horton v. Bamford, 79 N. J. Eq. 356 (at p. 379), and cases cited.

There seems no doubt as to the right of complainants as attaching creditors to maintain their creditors’ bill and to have relief, especially in view of the statute. P. L. 1919 ch. 213.

Defendants’ counsel contends that complainants have failed to prove that they are remediless at law. This contention is without weight. The judgment debtor, Frederick Smith, defendants’ own witness, testified that he had not one dollar’s worth of assets.

Complainants may have decree setting aside the conveyance, on their giving bond to secure the defendants’ $5,000. Cf. Horton v. Bamford, supra.


text:
    Viola Starkey, petitioner, v. James W. Starkey, defendant.
    [Decided November 25th, 1924.]
    Divorce — Desertion—Legal Domicile Acquired in New Jersey by Complainant — Court Has Jurisdiction Under Statute.
    On final hearing.

      Mr. Joseph E. Conlon, for the petitioner.

      Mr. Romulus V. Rimo, for the defendant.
   Buchanan, V. C.

Petitioner sues for divorce for the cause of desertion. I am entirely satisfied from the evidence that defendant, after a course of cruel and brutal conduct toward his wife, deserted her on or about December 21st, 1921, in New York City, where the matrimonial domicile then was. This gave her the right to change her domicile and acquire a separate domicile of her own. Wallace v. Wallace, 65 N. J. Eq. 359.

She moved to New Jersey about two' weeks later, and the proof convinces me that she then acquired a bona fide resi deuce and domicile in this state,- which continued down to the filing; of the petition. Meanwhile the husband not only did not terminate the desertion, or attempt reconciliation, but sought her out and committed an atrocious assault and battery upon her (for which he was convicted and is still serving sentence of imprisonment). The separation, which commenced in New York on December 21st, 1921, continued, therefore, of the requisite statutory character, and at the end of two years, on December 21st, 1923, matured into a cause of action under the statute, the petitioner’s cause of action then arose. Koch v. Koch, 79 N. J. Eq. 24; Gordon v. Gordon, 89 N. J. Eq. 535.

She was at that time a resident of this state, and continued SO' to be down to the filing of the petition. This court, therefore, has jurisdiction under the statute. Koch v. Koch, supra.

Petitioner is entitled to decree.


author: Per Curiam,

text:
    ABRAHAM KALTMAN, PLAINTIFF, v. MARIO BOCINO, ANTHONY PEDONA, NATHAN KREGELOH AND THE PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION, DEFENDANTS.
    Submitted June 5, 1924
    Decided November 24, 1924.
    Negligence — Motor Bus Collision With Trolley Car — Injured Bus Passenger Plaintiff — Judgment for Plaintiff Against Bus Owner, Not Against Trolley Car Owner — Evidence Discloses Jury Question and Court Properly so Charged — Defendant Owner of Bus Rested After Plaintiff’s Case was In, as Between Plaintiff and Themselves and Asked That Further Testimony Must Not Be Considered by the Jury in the Case of the Plaintiff Against Them — Defendants, Bus Owners, Had Counter-claimed Against Owner of Trolley — Other Grounds for Rule Considered and Dismissed.
    On defendant's rule to- show cause.
    Before Gummeke, Chief Justice, and Justices Pabkei; and Katzenbacii.
    'For the plaintiff, Groske.n <£• Moriarity.

    For the defendants Morio Bocino and Anthony Pedona, George L. Record.

    For the defendants Public Service Railway Company and Nathan Kregeloh, Leonard- F. Tynan.

   Per Curiam,

The plaintiff, Abraham Kaltman, o-n December 25th, 1922. was a passenger in a bus o-wned by the defendant Mario Bocino, and driven by the defendant Anthony Pedona. The bus was, aho-ut ten-twenty u. ai. on that day, being driven on Ferry street, in Newark, en route to- Jersey City. At or near the corner of Waydell street the bus collided with a car of the Public Service Railway Company, resulting in the injury of Kaltman, who- instituted this action in this court against the owner of the bus, its driver, the Public Service Railway Company an one Kregeloh, motorman of the car. A counter-claim against the Public Service Railway Company was filed by Bocino and Pedona. The evidence produced at the trial showed that the driver of the bus saw the trolley car approaching when about one hundred and fifty feet ahead of him. Between the trolley car, when first seen by the operator of the bus, and the bus, there was standing on the street 'some distance from the curb, owning to- the presence of banks of snow in the street, an automobile. The operator of the bus attempted to- pass this automobile on the left, which brought the bus on the track, and before he could turn his bus to the light and off the track the bus was struck by the trolley car and the plaintiff injured.

The jury returned a verdict against Bocino> and Pedona and found a verdict in favor of the Public Service Railway Company in the Kaltman action, and upon the counterclaim filed bjr Bocino and Pedona.. Bocino and Pedona then obtained from the trial judge the rule to show cause under which the case is before us.

The first point argued under the rule is that the trial court should have directed a verdict against the plaintiff as far as his claim against Bocino and Pedona ivas concerned. The facts above set forth, as disclosed by the evidence, made the question of the negligence of Bocino and Pedona a jury question. The trolley car ivas approaching with its headlight lighted. Whether the driver of the bus was negligent in failing to observe the trolley car sooner, or, if observed, negligent in attempting to pass the ranked automobile by swinging the bus upon the trolley track, when the trolley car was so near, were questions for the determination of the jury. Tire ruling of the trial judge in this respect we think proper.

The next contention made presents a novel point. After the plaintiff had rested his case, counsel for Bocino and Pedona stated that they were going to rest the case, as between the plaintiff and themselves, upon the plaintiff’s proof, and asked the court to instruct the jury that any further testimony adduced must not be considered by the jury in the case of the plaintiff against them. This request was refused, and it is said that there was error in this refusal. We do not think this ruling erroneous. A ruling such as the defendants asked would have permitted them, under the guise of showing that they were entitled to recover against the public service and its motorman, to put in evidence facts which would prove that the Public Service Railway Company alone was responsible for the accident, and so bar the plaintiff, if the jury accepted the testimony from a recovery against them; and that would, of course; bar the plaintiff from a right to cross-examine the witnesses giving such testimony for the purpose of nullifying it or diminishing its weight. We think the court’s ruling was proper, par tieularly jn view of the fact that there was no suggestion on the part of counsel for these defendants that no such testimony as we have suggested would be offered.

The next point argued is that the court erred in refusing to charge the following request which was submitted by the defendants Bocino and Podona: “Even if you should find that the driver of the bus was negligent, the plaintiff cannot recover as against him and the bus owner unless such negligence was the proximate cause of the plaintiff’s injuries.’’ We think these defendants were not entitled to have this instruction given to the jury, for it was inapplicable to the facts of the case. The only negligence to he submitted to the consideration of the jury was negligence in the driving of the bus, which aided in producing the collision, and, if there was any negligence at all in this regard, that negligence was a proximate cause of the plaintiff’s injuries. Moreover, this instruction had already been given to the jury in response to the twelfth request submitted by the plaintiff (record, page 315), and the request, which was denied, was not, so far as the record shows, read to the jury. Consequently, there was nothing contradictory in the charge upon this point.

It is next, contended that the court improperly refused to strike out the testimony of one Dr. Pink, who was called by the plaintiff to prove the character and extent of the latter’s injuries. It appeared on the cross-examination of this witness that he was not the attending physician, but that he had been, called in to make an examination solely for the purpose of testifying as a witness in the cause. He testified that his opinion as to the character and permanency of the injuries was based partly upon his own examination and partly'upon statements made by the plaintiff in answer to questions which he had put to him about his condition. A motion to strike 'out his testimony was made. The defend ants rely upon the case of the Consolidated Traction Co. v Lambertson, 59 N. J. L. 297, and Hutchinson v. Jersey Central Traction Railroad Co., 1 N. J. Mis. R. 279. These cases are in point and sustain the general principle contended for by the defendants. But in these eases objection was made to the testimony, while in the present case no objection was made. Objection-should have been made at the time the questions were asked. There was also no harm done to the defendants in having the hypothetical questions submitted to Dr. Pink based in part upon the subjective symptoms stated to Dr. Pink by the plaintiff, as these subjective symptoms had been testified to by other witnesses and could have been embodied in the hypothetical questions put to Dr. Pink.

It is next argued that the court improperly refused to charge the following request submitted by the defendants Bocino and Pedona: “The mere fact that the bus was over on the wrong side of the street is not of itself evidence of negligence.” This request was properly refused. It was not conclusive evidence of negligence. It would not support a finding of negligence standing by itself. It was evidential. It was, however, material, and the jury was entitled to consider it as a. factor in determining the question of negligence on the part of the driver of the bus.

It is finally argued that the verdict was against the weight of the evidence. We have read the testimony. The material facts have been stated. We are of the opinion that the verdict rendered was not against the weight of the evidence.

The rule to show cause is discharged.


text:
    LOUIS WIESON, PLAINTIFF-RESPONDENT, v. THE AUTOMOBILE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted June 5, 1924
    Decided November 24, 1924.
    Insurance — Theft—Motor Vehicle — Defendant Company Alleges That Car was Taken by Plaintiff’s Employe, That Proof of Loss was Not Made Within Time, That Plaintiff Had Failed to Protect His Car and Had Misrepresented Value of Car— First Two Points Only Were Briefed by Defendant, and His Contention Not Sustained.
    On appeal from the Essex County Circuit Court.
    Before Gummeke, Chief Justice, and Justices Paekee and Katzenbach.
    For the defendant-appellant, Collins & Corbin (Edward A. Markey and Charles W. Broadhurst, of counsel).
    For the plaintiff-respondent, Mulligan & Koenig (George D. Mulligan, of counsel).
   Per Curiam.

This is an appeal from a judgment of the Essex County Circuit Court for $585. The appellant, the defendant below, and hereafter referred to as the defendant, insured against theft a Dodge touring car to the amount of $800. The policy was originally issued to one Max Reinhold. He sold the car to Murray Reinhold, who died. Louis Wieson, the plainr tiff below, and hereafter referred to as the plaintiff, bought the car from the estate of Murray Reinhold. The polic3r, with the consent of the defendant, followed the car, and was duly assigned to the plaintiff. About August 18th, 1921, the car was taken from the plaintiff’s garage on Mt. Prospect avenue, in the city of Newark. The plaintiff was later notified that his car was standing on the Pompton turnpike, in Verona. He went to this locality and found Ms automobile against a lamp post badly damaged. It ivas later ascertained that the car had been taken from the garage by one Edward Bill, who had worked for the plaintiff intermittently for several years, and a friend of Bill by the name of Freddie. They had picked up two friends, and after riding for some time in it the car skidded, struck a pole, was wrecked, and then abandoned. The plaintiff claims he submitted Ms proofs of loss witMn the time fixed by the policy. The defendant refused to settle the claim. Thereupon, the plaintiff instituted suit upon the policy. The defenses interposed were that the policy did not insure .the plaintiff against theft óf the car b3r one in his employe, and that Bill, who took the car, was in his employ; that the plaintiff also had failed to give the defendant notice in writing of the theft, had failed to submit proofs of loss within sixty days as provided in the policy, had failed to appoint an appraiser when requested, had concealed the fact that Bill was an employe, had failed to protect the property, and had misrepresented tlie amount paid for the car. A motion to direct a verdict was made at the close of the case and refused. The grounds of appeal are based on the refusal to direct a verdict, the admission of certain testimoi^, and error in the charge of the trial court.

The first point argued by the appellant'is that the testimony showed that Bill was an employe of the plaintiff, and so witMn the exception of the policy hereinbefore mentioned.

Our examination of the testimony on this subject has led us to the conclusion that whether or not Bill was an employe of the plaintiff at the time the automobile was taken was a question of fact for the determination of the jury. There Avas testimony to the effect that Bill had done odd jobs for the plaintiff for several years. He had done nothing for him during the month of August, 1921, which was the month in which the car Avas taken, except to take the car to the garage to haATe a neAV tire placed on a wheel. Under this testimony the defendant should not complain of the course taken by the trial court.

Bill testified at the trial that he had no intention of stealing the car. He only, it Avould appear, desired to gratify a penchant for joy riding. The fact that the car Avas taken secretly from the garage at night was some evidence of theft. The argument of the defendant would result in every thief being able to acquit himself of the charge of larceny by saying he had no intention of stealing the article taken, and that it Avas taken with the intention to return it. Whether Bill and Freddie stole the car was also a question for the jury, as the trial court ruled.

Upon the subject of. the delivery of the proofs of loss Avithin the prescribed time the testimony offered by the plaintiff is meagre and far from persuasive. A witness, Myron H. Clark, testified he had delivered the proofs of loss about a Aveek before the expiration of the sixty clays. This made the question one for decision by the jury. The case is before us on appeal and not under a rule to shoAv cause under Avhieh the testimony may be weighed. We cannot say there was no testimony of delivery of the proofs of loss within the time fixed by the policy.

The dates on the proofs of loss contradict the testimony of Clark as to the time of this delivery. The defendant contends that it Avas error to permit oral testimony of the time' of delivery because such testimony varied .the proofs of loss as AAuitten. We see no merit in this argument. The testimony as to file time of delivery did not alter the written document.

The last point made by the defendant is that the judge erred in telling the jury in his charge that there was proof of Avaiver of the time within which proofs of loss could be filed. The contention is made that because the reply did not plead waiver of the condition, but joined' issue by a denial, that the proofs were not submitted out of time; that evidence of waiver was incompetent, and the submission of that question error. As the defendant permitted the evidence of waiver to be admitted without objection on its part, so far as we can find from the record, we can see no impropriety in the trial court commenting upon it, and no error in what the court said. Had, objection been made at the trial to the admission of the evidence the court would undoubtedly have permitted an amendment of the pleadings.

We have considered all the points briefed by the defendant-appellant. The grounds of appeal not briefed will be considered as abandoned.

The judgment is affirmed, with costs.


text:
    ABRAHAM WEISBOND, PLAINTIFF-RESPONDENT, v. HARRY SCHULTZ, DEFENDANT-APPELLANT.
    Decided November 24, 1924.
    Contracts — Loan of Money — Plaintiff Claims Two Loans of $2,000 Each — Defendant Counter-claims With Claim of Loans of $4,000 — Plaintiff Denies Payments by Defendant Were Loans But Payments for Goods — Judgment for Plaintiff Sustained.
    On appeal from the Atlantic City Court of Common Pleas.
    For the appellant, Eugene G. Sclminghammer.

    For the respondent, Iintzenbach & Hunt.

   Per Curiam.

The grounds of appeal relied on and argued in -.appellant’s brief for a reversal of the judgment entered in the Court of Common Pleas on the verdict of a jury against the defendant-appellant and in favor of the plaintiff-respondent are, as follows: 1. That there was legal error in overruling the questions propounded to the witness, Morris Cooper. 2. That there was error in the charge to the jury.

Before taking up for proper consideration the first ground relied on, it becomes necessary to set forth the issues involved at the trial between the parties to the controversy.

The plaintiff brought his action against the defendant to recover the sum of $-1,000, with interest, for two loans of cash made to defendant, to wit: $2,000 on June 7th, 1922, to he repaid to plaintiff with interest, on demand; and $2,000 loaned to defendant on June 30th, 1922, to be repaid to plaintiff, with interest, on demand.

The defendant filed a counter-claim in which lie sets forth that he did at various times loan the plaintiff sums of money aggregating the sum of $4,100, and that the plaintiff on or about June 7th, 1922, repaid to defendant $2,000 on account, and on June 30th, 1922, repaid the defendant a further sum of $2,000 on account, leaving a balance of $100 due to the defendant, for which the latter claimed judgment against the plaintiff.

The plaintiff at the trial produced two checks for $2,000 each, dated, respectively, June 7th and June 30th, 1922, drawn to the order of the defendant and paid by the bank.

There was also proof that the defendant admitted his indebtedness to the plaintiff for the amount claimed by the latter.

The defendant claimed that the plaintiff was connected with and interested in the Huh stores and that the business had not been in existence for more than two months when the stores needed money to- pay hills, and so- he made the various loans to the plaintiff amounting to $4,100.

The defendant produced the various cheeks payable to the order of the plaintiff, which cheeks appear to have had their start in September, 1921, and continued until March 23d, 1922, when the last check was given by defendant to plaintiff for the sum of $000, and altogether the checks produced and given hv defendant to the plaintiff during the time mentioned amounted to $4,100.

The plaintiff testified that the checks produced, given by him to the defendant, were for merchandise bought except the check for $500 which had some relation to a transaction respecting the purchase of a delicatessen store and jiayment on account of which was made by defendant’s check. The plaintiff denied that he ever borrowed any money of • the defendant.

Morris Cooper, a witness sworn on behalf of defendant, was asked, upon his direct examination: “Do you know from your knowledge of your business as bookkeeper whether Weisbond at the time 3rou were working there was connected with the Hub stores?”

This question was objected to upon the ground that it was not the proper method by which to prove the agency of the Hub stores and Mr. Weisbond. The objection was sustained and we think properly so. Even if the object of the inquiry was to prove agency, the nature of the proof attempted to be elicited called for what the witness, as bookkeeper, had gleaned from the books, of which the books were the best evidence, and what he had learned, as bookkeeper, from other sources, without regard whether it was hearsay or not.

It is pertinent to the subject in hand to state here that the witness was permitted to tesify that the plaintiff was always around the Hub stores; that he did most of the unpacking of merchandise that arrived; and as to who employed the witness and paid his salar3', and as to the general activities of the plaintiff in and about the Hub stores, &e., &c.

The only other ground relied on for a reversal is based upon an exception to the concluding portion of the charge of the trial judge, where he instructed the jurv: “In other words, ladies and gentlemen, 3'our verdict will either be a verdict for the plaintiff in the sum of $1,000, plus interest, or necessarily your verdict must be a verdict for the defendant against the plaintiff in the sum of $100.’’

We perceive no error in this. For that was in harmony with the issue presented by the pleadings and the evidence.

Judgment is affirmed, with costs.