text:
    EDWARD J. MORAN, PLAINTIFF-RESPONDENT, v. MAX RESNICK, DEFENDANT-APPELLANT.
    Submitted October term, 1925
    Decided January 23, 1926
    Filed January 29, 1926.
    Sale of Real Estate—Agent’s Contract for Sale—Evidence Clear That an Extensive Option for Limited Had Been Given In Writing.
    On appeal.
    Before Justices Parker, Mintuen and Black.
    For the appellant, Alexander Seclow.

    For the respondent, O’Brien <£• Tartalsky.

   Per Curiam.

This case was tried in the First District Court of Jersey City without a ¡jury, resulting in a ¡judgment for the plaintiff for $500'. The suit was to recover a real estate broker’s commission under the following authorization (Exhibit Pi):

“April 14, 1925.
I hereby authorize and empower Edward J. Moran to sell the premises described on the other side of this card at the price and upon the terms hereon named, and hereby agree to pay him three and one-half per cent, on the first $20,000 of the selling price, and two and one-half per cent, on any balance in excess thereof for his services.
Max Eeshick, Owner.
I also agree to give E. J. Moran the sale and exclusive agency for a period of three months from date hereof.
Max Eesnick, Owner.
Edward F. McGrath, Witness.
Location, 23 Stagg street. Price $15,000.
Lot 25 x 100' Lot No.
Mortgage, $8,000
First, $3,500
Second,
Terms, $2,000
April 14, 1925.”

The trial judge filed the following memorandum:

The Court—I think the evidence is very clear and satisfactory that there was an exclusive option given to the broker in this case for ninety days, and I think that that was properly known to the owner. He says he didn’t take any particular interest in it. He is a man who has bought and sold houses, and he is dealing in real estate, and it seems incredible that he should have gone into a contract of this nature without investigating. If he chose to do that he was a contract which gives the broker a ninety days’ option to bound by it, and the contract with which he was dealing is make the sale. Now, the first offer to endeavor to have the buyer meet the terms of the authorization and agency were perhaps insufficient; he made some objections about the return of the $200 which he was then ready to deposit, and which he actually did tnrn over to the agent, in case his own house should not be sold, but before the expiration of the option period this house had been sold and he then renewed his offer unconditionally. I think that that was in fnll compliance with the terms of the authorization.

We think the judgment of the First District Court of Jersey City should be affirmed, for the reasons stated by that court, and it is so affirmed.


source: Caselaw Access Project

author: 'Pee Ctjeiam.

license: Public Domain

text:
    FRANKLIN REALTY AND MORTGAGE COMPANY, RELATOR, v. VILLAGE OF SOUTH ORANGE AND IRA T. REDFERN, BUILDING INSPECTOR OF THE VILLAGE OF SOUTH ORANGE, DEFENDANTS.
    Submitted October term, 1925
    Decided February 2, 1926.
    Zoning—Apartments and Stores in Restricted Territory—Case Controlled by Ignaciunas v. Risley—“Set Back” Provision of Zoning Ordinance Ineffective.
    On rule io show cause why a mandamus should not issue.
    Before Justices Tebnchaed, Katzenbach and LI.OYD.
    For the relator, Ilowe & Davis (Edward L. Davis, of counsel).
    For the defendants, Rilcer & Riher (Thomas E. Fitzsimmons, of counsel).
   'Pee Ctjeiam.

This is a rale to show cause why an alternative or peremptory writ of mandamus should not issue directing the village of South Orange and the building inspector of the village to issue a permit to the Franklin Realty and Mortgage Company for the erection of a two-story brick building containing six stores and one apartment for the use of a janitor on the first floor, and six apartments on the second floor, on the property of the company.

It appears that the plans and specifications have been approved by the boards of tenement-house commissioners of New Jersey, but that permission to erect the building was refused by the building inspector, for the reason that a zoning ordinance forbids the erection of stores and apartments on the premises, the property being located in what is known as Residence “A” District, and for the reason that the proposed building would violate the “set back” provision of the ordinance respecting that district.

The block upon which the relator’s property is situated is at the southwest corner'of South Orange avenue and. Fair-view avenue. The property has a frontage on South Orange avenue of one hundred feet and on Fairview avenue of one hundred and twenty-five feet. Fairview avenue joins South Orange avenue at* the corner upon which relator’s property is situated, at an acute angle.

We think that this ease is controlled by the principles laid down in Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 389.

The “set back” provision of the zoning ordinance is ineffective and constitutes no reason for denjdng the permit. Eaton v. South Orange, 3 N. J. Mis. R. 957, 958.

The contention made in the defendants’ brief, that the permit was properly refused because of the testimony as to the increased traffic, is also answered by the last-mentioned case.

A peremptory writ of mandamus will be awarded. In ease an appeal is desired, an application will be entertained for an order for the moulding of the pleadings.


author: Pee Cueiam.

text:
    CHRISTOPHER IANNIELLO ET AL., PROSECUTORS, v. TOWN OF HARRISON, IN THE COUNTY OF HUDSON, ET AL., DEFENDANTS.
    Decided February 3, 1926.
    Municipalities—Garbage Contracts!—Lowest Bidder—Testimony Does Not Show That Lowest Bidder was incapacitated Financially or Otherwise—Even if There was Doubt, He was Entitled to Reasonable Notice and Hearing Before Bid was Rejected.
    On writ of certiorari, argued by consent before Mr. Justice Mintuen.
    For the prosecutors, Fallon & Fallon.

    For the defendants, Hugh 0. Barrett.

   Pee Cueiam.

The writ of certiorari was granted in this case to review the action of the town of Harrison in awarding the contract for the removal of garbage and so forth from the streets of the town to Charles M. O’Connor. The record shows the prosecutors to have been the lowest bidders and prima facie entitled to receive the contract. The township officials, however, entertained the notion that the prosecutors were not properly equipped financially or materially to undertake and complete the work, and therefore awarded the contract to O’Connor.

Testimony has been taken pro and con as to the qualifications of the prosecutors, from which it may be inferred that no valid basis exists for disqualifying them upon that ground. But, assuming that there was a reasonable basis presented for discussion as to that question, the prosecutors were at least entitled to reasonable notice and a hearing before their bid was rejected and a more burdensome contract imposed upon the taxpayers, and that opportunity was not presented to them. Eor that reason the award of the contract in this instance mtíst be set aside, following the well-settled rule declared in Faist v. Hoboken, 72 N. J. L. 361; Kelly v. Freeholders, 90 Id. 411, and other cases of similar import in this jurisdiction.

Such will be the order.


author: Per Curiam.

text:
    THE STATE, EX REL. PHILIP ROSS, v. THOMAS J. DOWLING, INSPECTOR OF BUILDINGS OF THE CITY OF ORANGE, ET AL.
    Decided February 8, 1926.
    Zoning—Stores in Restricted Territory—Case Follows Ignaciunas v. Risiey.
    On application for mandamus.

    Before Gummere, Chief Justice, and Justice Katzenbach.
    Eor the relator, Harry A. Augenblick.

    Eor the respondents, Spaulding Frazer.

   Per Curiam.

This is an application for a mandamus to compel the building inspector of the city of Orange to issue to the relator a permit for the erection of a one-story building, to contain six stores, upon a tract of land located at the corner of Tremont avenue and South Centre street, in that city. The sole ground upon which the inspector based his refusal to isstíe such permit was that the tract was located in a porlion of the city that is restricted by a zoning ordinance of the municipality to the erection of private residences only, it being conceded that the relator has in all other respects complied with the requirements of the said building inspector.

The present case is identical, in its fundamental facts, with that of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 125 Atl. Rep. 121; and, under the doctrine of that case, the relator is entitled to a peremptory writ, commanding the building inspector of the city of Orange to issue a permit for the erection of the building hereinbefore described.

It will be so ordered.


author: Pee Cuktam.

text:
    THE BOARD OF EDUCATION OF THE BOROUGH OF RINGWOOD, PROSECUTOR, v. THE NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION AND JOHN McCUTCHEON, CLERK OF PASSAIC COUNTY, RESPONDENTS.
    Argued October 6, 1925
    Decided February 10, 1926.
    Eminent Domain—Order to Condemn Lands for Purposes of North Jersey District Water Supply Commission—Held, That Facts as Stated in Petitions do Not Constitute an Authorization to Condemn Lands—Such Right Does Not Exist Until After the Formalities of the Statute Relating to a Contract Between the Water Commission and Municipality Has Been Entered Into.
    On certiorari, &c.
    Before Justices Teenchakd, Katzenbach and Lloyd.
    Eor the prosecutor, William I. Lewis.

    For the respondents, Spaulding Frazer and John H. Mathews.

   Pee Cuktam.

This writ brings np the order of the justice of the Supreme Court, and the proceedings touching it, made under the provision of “An act to regulate the ascertainment and payment of compensation for property condemned or taken for public use” (2 Comp. Stat. 1910, p. 2181), appointing commissioners to condemn lands of the prosecutor under powers alleged to be given respondent, the North Jersey District Water Supply Commission, by an act entitled “An act authorizing the appointment of district boards of water supply commissioners in the water supply districts created by an act entitled 'An act to 'create two water supply districts in the State of New Jersey, to be known respectively as the'North Jersey Water Supply District and the South Jersey Water Supply District/ and defining the powers, duties, terms of office and compensation of such commissioners; and providing for the building, maintenance and operation of water supplies or new or additional water supplies by said commissioners as agents of, and by contract with, municipal and other corporations in their respective water districts, and further providing for the raising, collecting and expenditure of the moneys necessary therefor.” Pamph. L. 1916, p. 129, and amendments thereof and supplement thereto.

The first reason argued for settng aside such order is as follows:

“The facts stated in the petition of the North Jersey District Water Supply Commission for the appointment of commissioners brought up by the writ in this cause, do not authorize the said commissioners to condemn the lands or property of the prosecutor, and show no prima facie right to have commissioners appointed for the purposes in said petition set forth.”

We feel constrained to think that this point is well taken.

A petition in proceedings to condemn lands must show all jurisdictional facts. Unless it shows the existence of the right of the condemning party to exercise the power of eminent domain, an order appointing commissioners to condemn cannot properly be made. Wendell v. Board of Education, 76 N. J. L. 499; Winter v. Telephone Co., 51 Id. 83, and cases cited.

Tested by that well-settled rule the petition is plainly insufficient. The jurisdictional facts—the existence of the right of the respondent commission to exercise the power of eminent domain—is not shown in the petition herein.

Section 5 of the act of 1916, page 131, provided that the board having charge of the water supply of any municipality in a water supply district may petition the commission for a water supply and request an estimate of the cost.

Section 6 provides that, after obtaining the consent of the state water supply commission to the necessary diversion of water (which consent could only be given after hearing), the district commission must give notice of a public hearing, at which all persons and municipalities affected might be heard.

Sectons 7, 8, 9, 10 and 11 of the act of 1916 were amended by Pamph. L. 1925, p. 488.

Section 8 provides that, after such hearing, the district water supply commission shall proceed to formulate plans for obtaining a water supply and to estimate the cost thereof, and the annual cost of operating and probable share of such cost which each municipality will be called upon to pay, and to report said plans to the said municipalities, together with a form of contract.

Section 9 provides that, after the district water supply commission has submitted its preliminary report and form of contract provided for in section 8, it shall notify the municipalities concerned of a time and place for a hearing thereon.

Section 10 provides that, after the last-mentioned hearing, if by reason of suggested modification, or if by reason of the failure of any municipality to signify its acceptance of said contract, or by reason of the withdrawal of any municipality from further participation, it shall become necessary to redraft said contract, the district commission shall proceed to do so, and shall submit such redrafted contract to the municipalities remaining, and they shall then have fifteen days in which to signify their acceptance, which process shall be continued until a form of contract has been agreed upon by said commission and one or more municipalities.

It is not until a contract is thus entered into between the North Jersey district water supply commission and one or more of the municipalities lying in the water supply district that such commission becomes clothed with the powers of condemnation. Eor section 11 (amended by Pamph. L. 1925, p. 490) provides that “when said contract or contracts are execided as herein provided, the said district water supply commission shall forthwith proceed to carry out the same,” and such section thereafter proceeds to clothe the commission with powers to acquire by condemnation property “for such purpose.”

Now, we think that the petition fails to show the existence of a contract entered into under the circumstances provided in the statute. It certainly fails to show the performance of those acts which are statutory conditions precedent to the execution of such contract.

Although the sufficiency .of the petition is plainly challenged by the reason filed, and was fully argued in the prosecutor’s brief, no attempt is made to sustain the petition, in this respect, in the brief filed by the respondents.

Examining the petition with care, we find, as bearing upon this apparent difficulty, the following averments: That the commission “has determined to acquire certain lands” (describing them); that the commission has “power to take lands for public use;” that the commission resolved that the lands sought to be condemned “were necessary for the acquisition and construction of the water supply now being acquired and constructed under contract with the city of Newark;” that the “said lands are essential to it for the purpose of constructing the Wanaque reservoir in accordance with the provisions of a contract between the city of Newark and said commission.”

The foregoing averments are the only ones from which its power to condemn may be remotely inferred. But such power must not rest on inference. It must be made to affirmatively appear. If there is a failure to show it the order on the petition is nugatory. Manda v. Orange, 75 N. J. L. 251; Vreeland v. Jersey City, 54 Id. 49; Loucheim, v. Hemsley, 59 Id. 149.

Here we find no averment or showing that the contract between the commission and the city of Newark was a legal contract entered into after the performance of the conditions imposed by the legislature.

Since we are unanimously agreed that the order must be set aside for the reasons given, it is unnecessary to discuss the other reasons assigned by the prosecutor.

With respect to the point that “the property sought to be condemned is devoted to a prior public use, and so cannot be condemned by the commission” under the powers given the commission, we remark that the justices sitting are not as one, and we express no opinion thereon.

The remaining points of the prosecutor we consider to be without merit.

But for the reasons given, the order brought up for review will be set aside.


text:
    DINGFELD v. McGACKIN.
    Argued October 7, 1925
    Decided February 4, 1926.
    Negligence—Motor Vehicle Collision—Counter-claim but No Appearance at Trial—Surprise Alleged—Attorneys for Defendant Were Partners, One Being III and the Other Having no Knowledge That Case was on Call—Only Individual Deposition of Defendant Laid Before Court, no Copy of Testimony Supplied and Rules Relating to State of Case Ignored —To Open, Default Party Applying Must Show Surprise and Substantial Merit.
    On rule to show cause why judgment should not be opened and a new trial had.

      Before Justices Parker, Minturn and Black.
    Eor the plaintiff, James G. Massinger.

    Eor the defendant, Reilly, Quinn & Parsons.

   Per Curiam.

This is a suit for damages arising out of an automobile collision. Defendant, as we are informed by counsel, answered and counter-claimed damages, but did not appear at the trial and was not there represented by counsel. The trial proce'eded on the part of plaintiff, who had a verdict and judgment, which it is now sought to open on the ground of surprise and merits, especially if not wholly with respect to the counter-claim. The surprise alleged is that of the partnership of two attorneys representing defendant at the time of trial, one was ill in hospital and the other engaged in another county without knowledge that this case was in call.

We do not need to consider this matter of surprise, because on the ease as now presented we fail to perceive such merit as would justify us in opening the judgment. All that is laid before us is the individual deposition of the defendant himself, whose testimony we are obliged to characterize as both obscure and vague. As far as we can get at the facts, there was a midnight headon collision between defendant’s car and an unidentified car which immediately disappeared, and as a result of the collision defendant’s car was caused to run into the plaintiff’s ear, which was standing at the roadside.. We have not been furnished with a copy of the testimony as taken at the trial, or even with a copy of the pleadings; so that the substance of the counter-claim rests on surmise, unless we are to go into the clerk’s office and make our own examination of the record.

In short, the rules relating to a state of the case have been ignored, and we have only the deposition of the party, which, taken at its face, seems to present no substantial basis for any counter-claim. Defendant deposed that he knew of other witnesses, at first ten, then seven, and later four, who would corroborate his story of the occurrence at midnight somewhere between Elizabeth and Bahway; not one of these was produced to testify on this rule.

To open a default, the party applying must show surprise and substantial merit. The defendant has not met this second branch of the rule, apart from failure to comply with the requirements as to submitting a state of the case.

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


text:
    PABST v. SCHWARTZSTEIN.
    Argued January 20, 1925
    Decided February 4, 1926.
    Costs—Rule to Show Cause—When New Trial is Granted in Consequence of an Error or Mistake of a Judge at Circuit, Costs of the Former Trial as Well as the Costs on Motion for a New Trial Shall Abide the Event of the Suit.
    On motion to award costs.
    Before Justices Parker, Minturn and Black.
    For the plaintiff, Abraham Levitan.

    For the defendant, Pesin & Pesin.

   Per Curiam.

Plaintiff asks for costs of his rule to show cause after succeeding thereon, going to second trial, and receiving an adverse verdict thereon.

The complaint was in two counts. At the first trial, on one count plaintiff had a verdict which he claimed was inadequate ; on the other count he was nonsuited. We discharged the rule as to the alleged inadequacy, but considered the non-suit erroneous, and directed a new trial as to the count on which nonsuit was directed. At the second trial plaintiff went to the jury, who found for defendant.

We see no reason for departing from the rule laid down in a similar ease entitled “Anonymous ,” in 16 N. J. L. (1 Harr.) 496. This court said: “The rule as to costs in such cases, and in all others in which a new trial is granted, in consequence of an error or mistake of the judge at the. Circuit, is that the costs of the former trial, as well as the costs of the proceedings here on the motion for a new trial, shall abide the event of the suit.”

It follows that award of costs should be denied.


text:
    HENRY A. GUENTHER, EMMA FOEHLICH AND JOHN A. MARTENS, PROSECUTORS, v. BOARD OF COMMISSIONERS OF NEWARK, MONTEFIOR CEMETERY COMPANY, INCORPORATED, ET AL., DEFENDANTS.
    Argued January 21, 1926
    Decided February 8, 1926.
    Municipalities—Cemetery Permits—Laches—Defendants Received Permit More Than Three Years Ago, and Since Then Have Been Diligent in Prosecuting Their Work—Legality of Permit Cannot Now be Questioned.
    On application for certiorari.

    Before Justices Parker, Minturn and Black.
    For the prosecutors, Henry H. Dawson.

    For the cemetery company, Robert H. McCarter (Samuel M. Hollander, on the brief).
   Per Curiam.

Application for a writ was made to the Chief Justice, and this being denied by him on the ground of laches, prosecutors have come to the court.

We have examined the papers with care, and concur entirely in the result reached by the Chief Justice. The effort is to review the legality of a permit for a cemetery, granted by the city commissioners to Adas Israel, predecessor in title of the Monteiior Corporation, in April, 1922. Since that time Adas Israel and the present defendant have been diligent in prosecuting their work under the permit, and have gone to large expense in so doing, while parties who would have the right to attack the permit have either slept on that right or entirely failed to assert it in a lawful way. In September, 1923, after much work had been done, the city, no doubt, at the instance of interested parties, undertpok to revoke the permit. This was attacked by certiorari on the part of the present defendant, cemetery company, and the revocation set aside. Montefior Cemetery Co. v. Newark, 3 N. J. Mis. R. 1104. Whereupon prosecutors undertook to do what they should have done in the first place, viz., apply for a certiorari to the issue of the permit. This was done over three years and a half after its issue, and when many thousand dollars had been expended. To us it is plain, as it seemed to be to the Chief Justice, that the application is barred by laches.

Allocatur is therefore denied.


author: Pee Curiam.

text:
    ANNA GILMORE, PETITIONER-RESPONDENT, v. JOHN W. EWEN AND LONDON ACCIDENT AND GUARANTEE CORPORATION, LIMITED, RESPONDENTS-PROSECUTORS.
    Argued October 6, 1925
    Decided February 9, 1926.
    Workmen’s Compensation—Injury Through Falling Bags of Grain—Death Followed in About Forty Days—Causal Connection Between Accident and Death Established.
    On writ of certiorari, &c.

      Before Justices Teenchard, Katzenbach and Lloyd.
    Eor the prosecutors in certiorari, Ralph N. Kellam and J. Webster Jones.

    Eor the defendant in certiorari, Leroy W. Loder.

   Pee Curiam.

This is a workmen’s compensation case. The petition was filed by the widow of the decedent, a workman employed by John W. Ewen in his flour and feed store in Bridgeton. On February 27th, 1924, while decedent was piling sacks of grain, one or more sacks fell on him, and petitioner claims so injured him that he died from such injury. He died April 7th, 1924.

At the hearing before the referee it was stipulated that decedent was struck by falling sacks of grain, and that the happening arose out of and in the course of his employment. Apparently, the only question was whether the falling sacks injured the decedent internally and caused his death. The referee so found and the Common Pleas affirmed that finding.

The testimony satisfies us that the finding was right. The decedent, prior to the accident, had not been sickly, but was healthy. A bag of grain weighing one hundred pounds fell and struck the decedent and knocked him down. This was followed by soreness or pain, which he suffered intermittently until March 29th, 1924, when he was seized with vomiting and was taken down in bed. Shortly thereafter he was operated upon at the hospital and a mass of adhesions between the intestines and the wall of the stomach was found, which the operating surgeon testified would be caused either by traumatism or some disease of the organs themselves, and that the organs were not diseased. One of the surgeons testified that the adhesions were. the result of the injury. The decedent’s death followed shortly after the operation, the day following, apparently. We think that the casual connection between the accident and the death was established.

The judgment brought up for review will be affirmed, with costs.


text:
    JOHN LAUCH, BY FREDERICK LAUGH, HIS NEXT FRIEND, AND FREDERICK LAUCH, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. JAMES J. KEATING AND HARRY KEATING, DEFENDANTS-APPELLANTS.
    Decided February 16, 1926.
    Negligence—Personal Injury to Minor Resulting in Prolonged and Perhaps Permanent Lameness—Judgment of $12,500 Held Excessive and a Suggested Reduction of $9,000 or a New Trial Will be Allowed.
    On defendant’s rule to show cause.
    Before G-ummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Franlc G. Turner.

      Contra, Francis A. Gordon.

   Per Curiam.

The plaintiff, a minor, recovered a verdict in the Union Circuit against the defendants for the sum of $13,500, as damages for personal injuries sustained by him through the negligence of the defendants. The father also joined in the action to recover damages from the defendants, sustained by him as a result of the injuries to his son, namely, for loss of services, earnings, &c. The trial judge charged the jury that the father was not entitled to any damages because he did not show any loss of earnings. But no application for a rule to show cause was made on behalf of the father, to have the judge’s ruling in that regard reviewed.

An application for a rule to show cause was made, on behalf of the defendants, to Judge Stein, who held the Circuit, why a new trial should not be granted as to the verdict of the infant plaintiff, and this was refused, and thereupon application was made to the Supreme Court en banc, which tribunal allowed the rule to show cause limiting the rule to the question of damages only.

We think the verdict'is excessive. At the time of the injury the infant plaintiff was thirteen years old. His left leg was seriously injured. He was four months and a half in the hospital, where he underwent, as a result of his injuries, operations of skin grafting. At the time of the trial he still had a pronounced limp, and stiffness in the knee, and there is testimony to the effect that this trouble will persist permanently. There is also testimony to the effect that-the infant plaintiff, as a result of the sear tissue, will suffer from time to time with ulcers, but that testimony appears to be purely speculative as to their appearing in the future and as to their duration. Unless the plaintiff consents to accept $9,000, the rule to show cause will be made absolute, otherwise the rule will be discharged, with costs.


author: Pee Cubiam.

text:
    ANNA BAKER AND AARON C. BAKER, PLAINTIFFS, v. ATLANTIC CITY AND SHORE RAILROAD COMPANY, DEFENDANT.
    Decided February 16, 1926.
    Negligence—Injury to Passenger of Trolley Car—Allegation of Excessive Damages Not Sustained. -
    On defendant’s rule to show cause.
    Before Gummere, Chibe Justice, and Justices Kalis ch and Campbell.
    Eor the rule, Bourgeois & Coulomb.

      Contra, William C. French.

   Pee Cubiam.

There was a verdict in the Atlantic Circuit in favor of Anna Baker, female plaintiff, against the defendant for the sum of $2,500 dollars, and a verdict in favor of her husband, Aaron C. Baker, against the defendant for $1,000, in an action brought by them against the defendant company, she to recover damages for injuries which she sustained as a result of negligence on part of the defendant’s servants while alighting from a trolley car of the defendant, and he to recover damages for the loss of consortium, &c.

The only reason for a new trial, argued in the defendant’s brief, is that the damages awarded by the jury to the husband and wife are excessive.

There was testimony to the effect that Mrs. Baker, the plaintiff, at the time of the accident was forty-five years of age, and prior to that time enjoyed good health, always able to do her own work and conducted a rooming-house, which business she says was profitable to her; that when she was thrown from the trolley ear, the fall rendered her unconscious and severely injured her right ankle' and shoulder; that as a result from her injuries she was confined to her bed for a period of six weeks; was compelled to abandon her business, and, though more than four years had elapsed since she sustained her injuries, she has not fully recovered from their effects. In view of the testimony regarding the nature of her injuries, the consequent effect they had upon her health and business, and that she was not yet fully recovered, it seems to us that the verdicts complained of as excessive are rather moderate.

The rule to show cause is discharged, .with costs.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    GIACOMO ZACCARIA, PETITIONER, v. ATLAS FINISHING COMPANY, RESPONDENT.
    On final order.
   This matter having come on for hearing before the undersigned deputy commissioner upon the petition of the claimant and the answer of the respondent, and a stipulation for the settlement of the case having been formally entered into at the hearing,

It is on this 16th day of November, 1926, ordered and adjudged that the petitioner, Giacomo Zacearía, recover from Atlas Finishing Company, the respondent, or the Liberty Mutual Insurance Company, carrier, the following sums:

Compensation for disability .................... $340.00

Medical expenses................ 20.00

Counsel fee .................................. 100.00

Total................................ $460.00

which total sum, when paid, shall be in full compensation for any and all claims of the petitioner arising out of the injury sustained by him as set forth in his petition.

Ohaeles E. Coebin,

' Deputy Commissioner.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE STASAK, PLAINTIFF IN ERROR.
    Decided February 17, 1926.
    Crimes—Unlawful Sale of Liquor—Refusal of Trial Judge to Quash Indictment—Alleged Defect—Objection Must be Made Before Jury is Sworn.
    On writ of error .to the Warren County Quarter Sessions Court.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Por the plaintiff in error, William A. Btrylcer.

    Por the defendant in error, Sylvester C. Smith, Jr., prosecutor of the pleas.
   Pee Curiam.

The plaintiff in error was convicted in the Warren County Quarter Sessions Court on an indictment containing two counts, the first of which charged him with a second offense of unlawful sale of intoxicating liquor, and the second charged him with unlawful possession of intoxicating liquor aá a second offense, contrary to section 10 of an act of the legislature entitled “An act concerning intoxicating liquor used, or to be used, for beverage purposes.”

There was a trial, a verdict and judgment. The assignments of errors relate solely to the refusal of the trial judge to quash the indictment.

A motion to quash an indictment is a motion addressed to the discretion of the court and not ex debite justitae. State v. Hageman, 1 Gr. 314; State v. Dayton, 3 Zab. 49; Proctor v. State, 55 N. J. L. 472; Parks v. State, 62 Id. 664. In order for a defendant to avail himself of a defect in the indictment a motion to quash must be made before the jury is sworn. State v. Mead, 53 Id. 601. It was there held that if no objection has been made to an indictment before the trial jury is sworn, the indictment cannot be questioned upon a motion in arrest of judgment. In the present case there was a motion to quash .the indictment before the trial jury was sworn, but the matter was pursued no further. There was no motion made in arrest of judgment or for a direction of a verdict upon the ground that the indictment was defective, in that it failed to charge a crime. It is firmly settled by the decisions in this state that the motion to quash is one addressed to the discretion of'the court, and, therefore, the denial of such a motion, ipso facto, furnishes no legal basis for the support of an assignment of error. State v. Pisaniello, 88 Id. 262; State v. Rubin, 91 Id. 368; State v. Rosenberg, 92 Id. 525; State v. Riggs, 92 Id. 575; State v. Fisher, 94 Id. 12; State v. Grossman, 94 Id. 303.

Judgment is affirmed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LOUIS KISH, PLAINTIFF IN ERROR.
    Decided February 17, 1926.
    On writ of error to the Warren County Quarter Sessions Court.
    Before Gummebe, Chief Justice, and Justices Kalis ch and Campbell.
    For the plaintiff in error, William A. Stryker.

    For the defendant in error, Sylvester 0. Smith.

   Per Curiam.

The legal situation in the case is like unto the case of State v. George Stasak, and, for the reasons stated in the per curiam opinion filed in that case, the judgment on review is affirmed.


author: Pee. Cueiam.

text:
    ANTHONY KASISKI, BY NEXT FRIEND, JOHN KASISKI, AND JOHN KASISKI, INDIVIDUALLY, PLAINTIFFS, v. CENTRAL JERSEY POWER AND LIGHT COMPANY AND JERSEY CENTRAL POWER AND LIGHT COMPANY, DEFENDANTS.
    Decided February 16, 1926.
    Negligence—Injury to Infant Resulting From Contact With Electric Light Wire—Facts Showed That Wire Had Been Broken and Hanging in Street at Least Two Hours Before Accident —Motion to Nonsuit was Properly Denied—There Being Prima Facie Evidence of Negligence and Nothing to Ex-hionerate Defendant, Case Should go to Jury, as it Did— Verdict of $7,500 for Infant and $2,375 for Father, Considering Nature of Injury and Youth of Plaintiff, Not Excessive.
    On defendant’s rule to show cause.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Frank G. Turner.

    Qontra, Kalisch & Kalisch (Harry Kalisch, of counsel).
   Pee. Cueiam.

Anthony Kasiski, a minor, by his father, John Kasiski, as his next .friend, and John Kasiski, individually, brought an action against the Central Jersey Power and Light Company and the Jersey Central Power and Light Corporation, in which action the minor sought to recover damages for personal injuries sustained by him, and the father sought to recover for loss of the minor’s services and prospective earnings, and for moneys expended for surgical and medical attendance incurred on behalf of his son. The case was tried at the Morris Circuit and resulted in a verdict of $7,500 in favor of the infant plaintiff, and in a verdict in favor of the father for the sum of $2,375 against the Jersey Central Power and Light Company, the plaintiffs having submitted to a judgment of nonsuit as to Central Jersey Power and Light Company, which company was joined as a co-defendant in the action. The matter is before us on a rule to show cause obtained by the Jersey Central Power and Light Company why a new trial should not be granted. The reasons assigned upon this application are—

1. Because the trial court erroneously refused to order a judgment of nonsuit in favor of the Central Jersey Power and. Light Company and against the plaintiffs. 2. Because the trial court refused to direct a verdict for the defendant, the Central Jersey Power and Light Company. 3. Because the verdicts are contrary to law. 4. In that the verdicts are contrary to the charge of the court. 5. That the verdicts are excessive. C. Because the verdicts are against the weight of the evidence. 7. That the verdicts are contrary to- the law of the case. The facts of the case, as disclosed by the proof, are, briefly, these: The infant plaintiff, five years of age, was sent on an errand by his mother, and shortly after-wards was found lying on the ground in Mt. Pleasant avenue, a public highway in Whippany, in Morris county, directly underneath and in contact with the defendant’s broken electric light wire which was hanging and dangling down into the street, and which was carrying a deadly current of two thousand three hundred volts. According to the testimony of a witness who was on his way to work at seven o’clock in the morning, two hours before the infant plaintiff' met with his injury, he saw the electric wire hanging down and dangling in the highway, and, among other things testified to by him, he says: “Oh, I would not have noticed the wire, only I saw the smoke; it was swinging around; every-time it would strike the grass and Stuff there it would burn and fire would fly out of it. That’s the way I came to notice it.” How long the wire had been down before the witness notified it is not disclosed by the testimony. As the case stood when the plaintiff closed his testimony the situation was, that an electric light wire, belonging to and under the control and management of the defendant company and carrying a deadly current of electricity, a menace to the lives of those coming in contact with it, is found broken and swinging from the company’s electric pole, to and fro, on the public highwajr, and had been doing so for at least two hours before the accident to the minor plaintiff. These facts of themselves bespoke negligence on part of the defendant, and were properly within the application of the doctrine of res ipsa loquitur. The motion for a nonsuit was properly denied. There being a prima facie case of negligence of the defendant made out, we find nothing in the testimony adduced by the defendant which exonerated it, as a matter of law, from liability, and which constituted a legal bar to the submission of the facts of the case to the decision of - the jury, and, therefore, the motion for a direction of a verdict for the defendant, at the close of the entire case, was rightly denied. The facts of this case are controlled by Newark Electric Co. v. Ruddy, 62 N. J. L. 505; affirmed by Court of Errors and Appeals, 63 Id. 357.

Reasons three and four, as well as reason six, are without merit. The fifth reason argued is that the verdicts are excessive. We do not think so. The electric shock which passed through the lad’s body rendered him unconscious. Dr. McCormack testified that when he first looked at the boy he thought he was dead; that upon examination it was almost impossible to feel his pulse, and his respiration had got down .to almost nothing. There “was a burn in his right hand extending through the whole palm. The index finger was burned right in half. His other finger was burned right through the center. The other fingers were all burned. This was burned right through to'the bone, half way off. And then he had a burn right up here on the upper side of his elbow about two inches in diameter. He had another burn down here on his right buttock about the same size.” According to the testimony of the surgeon the right hand is from sixty to seventy-five per cent, impaired in usefulness. The two important fingers of the hand are rendered absolutely useless. Apart from the pain and anguish that the lad suffered from the painful injuries and from the limited use of his hand, the jury could properly take into consideration in estimating his damages the impairment of his ability to enter into and enjoy those boyhood games and pastimes to the full extent as his playmates; that his deformed and injured hand will in a great measure limit his choice of a vocation, and as a consequence diminish his earning power; that this condition will continue through life. Now, as to the father, he is entitled to the earnings of his son during the latter’s minority, and it is quite obvious that for that reason that his son will be limited in his choice of a vocation and be confined to select such work as can be efficiently performed with the physically impaired'right hand, and thus the chances of his employment and amount of awages earned will be lessened and impaired. It is only where it clearly appears that the verdict is the result of partiality, mistake, prejudice or passion on part of the jury that a court is warranted to disturb it.

The rule to show" cause is discharged, with costs.


author: Pee Ctjeiam.

text:
    ALEXANDER M. GREENE, PLAINTIFF, v. LOUIS SCHAFFER, DEFENDANT.
    Decided February 17, 1926.
    Negligence—Motor Vehicle Injury to Pedestrian Resulting in Compound Fracture of Leg and Its Permanent Shortening'— Judgment for $15,000 Held Grossly Excessive and a 'Reduction to $8,000 Suggested or a New Trial will be Ordered.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Kalisch & Kalisch (Samuel Kalisch, Jr., on the brief).
   Pee Ctjeiam.

'' The liability of the defendant in this case was admitted at the trial in the Hudson Circuit, and the contest between the parties was confined to the question of damages.

The plaintiff was a bridge tender on the Hackensack bridge, in the employ of the state highway commission. The plaintiff was struck on September 33d, 1934, by defendant’s automobile, by reason of which his left leg was injured—a compound fracture. He was in the hospital four months, the last two weeks he went about on crutches. He was taken to his home and started to walk about the room first, and started to go out about March or April, six or seven months after he received the injury. There.is a permanent shortening of one and three-quarter inches of the leg. He earned $110 a month.

Whether the plaintiff’s expectancy of life, which, according to the testimony of the actuary of the Prudential Insurance Company, is four years, or six and sixty-eight hundredths years, according to the mortality table, as is stated in the brief of plaintiff’s counsel, it seems to us that even accepting six and sixty-eight hundredths years as the expectancy of the plaintiff’s life, the sum of $15,000 awarded him by the jury is grossly excessive. Taking into consideration the age of the plaintiff, the character of his employment, the nature of his injury, his expectancy of life, the natural waning of one’s physical forces and capacity for work-in the advance of years, and that he was receiving $110 a month as gatekeeper and that such service depended upon continued capacity to per1 form the work, the verdict of the jury far exceeded reasonable and fair compensation to which the plaintiff was entitled for his injury and for his present and prospective loss of earnings.

If the plaintiff will consent to accept the sum of $8,000 the rule will be discharged, with costs, otherwise the rule will be made absolute, costs to abide the event. '


text:
    HARRY A. FINKEL, RELATOR, v. WILLIAM T. KALTENBACH, BUILDING INSPECTOR OF THE CITY OF ELIZABETH, NEW JERSEY, DEFENDANT.
    Submitted November 7, 1925
    Decided February 17, 1926.
    Zoning—Automobile Rest Rooms and Service Station in Residence District—Case Within Rule of Ignaciunas v. Risley— Board of Adjustment Not a Necessary Party to Suit and Their Opinion That its Erection Would Create a “Fire Hazard” is Not a Reason for Refusing Permit.
    On application for mandamus.

    Before Justices Teex chard, Katzenbach and Lloyd.
    For the relator, Michael II. Feldman.

    For the defendant, Joseph T. Hague and SpauldÁng Frazer.

   Pee Curiam.

This is a rule directing the building inspector of the city of Elizabeth to show cause why a writ of mandamus should not issue commanding him to issue a permit to the relator for the erection of a one-story hollow tile building to be occupied and used as a men’s and ladies’ rest rooms and gasoline service station at 1131, 1133, 1135, 1137 Bayway and 484, 486, 488, 490 Rahway avenue, Elizabeth, New Jersey.

The facts are set forth in a stipulation in lieu of testimony under the rule to show cause herein, and disclose that the relator in all things complied with the building code of the city of Elizabeth, and that the sole reason the permit was refused by the building inspector was because the city of Elizabeth has adopted a zoning ordinance, under which the premises of the relator are placed in “Residence District B,” in which stores are not permitted.

The relator then appealed to the Elizabeth board of zoning adjustment, which hoard denied the appeal on the ground that the erection of a building to be occupied and used as a store, ladies’ and men’s rest rooms and service station for the sale of automobile gasoline and oil was not permitted by the zoning ordinance, and that in their opinion “this building would create a fire hazard in this locality.”

The authority of the defendant to grant or deny a building permit is regulated by the building code of the city of Elizabeth. The defendant concedes that the building, as shown on said application and-by the plans, was a proper structure, and in all things complied with the rules and regulations of the building department as set forth in said building code, but the said defendant refused to grant said permit on the ground that to do so would be to violate the zoning ordinance of the city of Elizabeth. There being, therefore, nothing before the court to show the building of the character contemplated by the relator to be against the public health, safety or public welfare, the case falls squarely within Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 389.

The board of zoning adjustment is not a necessary party, and mandamus, not certiorari, is the proper remedy in the circumstances of this case. Lutz v. Kaltenbach, 4 N. J. Adv. R. 341.

The mere fact that the board of zoning adjustment, on the hearing of the appeal to it by the relator, denied the application on the same ground as advanced by the defendant, and upon the further ground that in their opinion this building “would create a fire hazard in this locality,” constitutes no reason for refusing the permit, as was held in Williams v. Gage, 3 N. J. Mis. R. 1099.

A writ of peremptory mandamus will be awarded. If an appeal is desired, an application for an order moulding the pleadings will be entertained.


text:
    HARRY A. FINKEL, RELATOR, v. WILLIAM T. KALTENBACH, BUILDING INSPECTOR OF THE CITY OF ELIZABETH, NEW JERSEY, DEFENDANT.
    Submitted November 7, 1925
    Decided February 17, 1926.
    Zoning—Stores in Residence Section—Case Within Rule in Ignaciunas v. Risley.
    On application for mandamus.

    Before Justices Trenchard, Katzenbach and Lloyd.
    For the relator, Michael H. Feldman.

    For the defendant, Joseph T. Hague and Spaulding Frazer.

   Per Curiam.

This is a rule requiring the building inspector of the city of Elizabeth to show cause why a mandamus should not issue commanding him, to issue a permit to the relator for the erection of a two-and-a-half-story brick building for stores and dwelling at 1127, 1129 Bayway, Elizabeth, New Jersey.

The permit was refused by the building inspector on the ground that a zoning ordinance prohibits the construction of business buildings on the premises in question.

As we read the stipulation the relator complied with all requirements, including the building code, and the sole reason for the refusal was because of the zoning ordinance under which the premises of the relator are placed in a residence zone in which stores are not permitted.

We think this case falls’ squarely within Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 389, and a long line of eases which follow it.

In the circumstances of this case the board of adjustment is not a necessary party, and mandamus (not cetriorari) is the proper remédy. Lutz v. Kaltenbach, 4 N. J. Adv. R. 341.

A peremptory writ of mandamus will be awarded.


text:
    HARRY A. FINKEL, RELATOR, v. WILLIAM T. KALTENBACH, BUILDING INSPECTOR OF THE CITY OF ELIZABETH, NEW JERSEY, DEFENDANT.
    Submitted November 7, 1925
    Decided February 17, 1926.
    On application for mandamus.

    Before Justices Tbefchaed, Eatzenbach and Lloyd.
    Eor the relator, Michael H. Feldman. ■

    For the defendant, J oseph T. Hague and Spaulding Frazer.

   Pee Cueiam.

This is a rule directing the building inspector of the city of Elizabeth to show cause why a writ of mandamus should not issue commanding him to issue a permit to Harry A. Finkel (the relator) for the erection of a two-and-a-half-story brick building for stores and dwellings at 480, 482 Rahway avenue, Elizabeth, New Jersey.

This case is similar in all pertinent facts to No. 272 of this term between the same parties, and' is controlled by the same legal principles. For the reason given in that case a peremptory writ of mandamus will be-issued.


author: Peb Ctjbiam.

text:
    JOSEPH MURRAY, BY MARY MURRAY, HIS NEXT FRIEND, AND MARY MURRAY, INDIVIDUALLY, PLAINTIFFS, v. LOUIS COHEN, DEFENDANT.
    Decided February 16, 1926.
    Negligence!—Injury to an Invited Passenger on an Auto Truck— Passenger, Biding on Running Board, was Thrown When He Undertook to Alight—Question Whether He was Invited or Asked to Ride, Also Whether He was Thrown oir was Injured From His Own Attempt to Alight—Negligence of Defendant Shown—Contributory Negligence Not Shown—'Verdict Not Contrary to Weight of Evidence—Verdict Not Excessive.
    On defendant’s rule to show cause.
    Eor the rule, Freeman Woodbridge.

      Contra, David Wilentz.

   Peb Ctjbiam.

In an action in this court by the plaintiff Joseph Murray, a minor, fourteen years of age, by next friend, against the defendant, to recover damages from the latter for personal injuries sustained by the former through the negligence of the defendant, and in which action the minor’s mother, as co-plaintiff, joined to recover for loss of services of her son, past, present and prospective, and for moneys expended, and to be expended, on behalf of her son, by reason of his injuries, for medical and surgical treatment, &e., a jury in the Middlesex Circuit rendered a verdict of $10,000 for the infant plaintiff and a verdict for his mother, co-plaintiff, in the sum of $5,000.

The defendant having obtained, at the Circuit, a rule to show cause why a new trial should not be granted, counsel, in support of the rule, relies, in his brief, on five grounds, which will be taken up and considered seriatim. Before doing this an epitome of the facts upon which the proper solution of the case depended should be given.

The plaintiff Joseph, at the time he met with his injuries, on April 18th, 1924, was fourteen years of age. He was a clerk in Gurka’s grocery store at Port Reading. On the day in question the defendant, Cohen, a wholesale vegetable and fruit dealer, had stopped with his auto truck at Gurka’s store,- a customer, to transact business there. Joseph Kennedy, Cohen’s helper, remained outside on the truck. While the defendant was in Gurka’s store it was raining. Joseph testified: “Mr. Gurka told me to go home for lunch, and it was raining quite hard out, and Mr. Cohen was in the store at the time, and Mr. Cohen said to me, he said, ‘Come on, get on, I will give you a ride down.’ So, I got on the truck with him and went down.” It appears that the defendant was on his way to Perth Amboy and en route would pass the street where Joseph resided. Both the defendant and his helper occupied the driver’s seat, and Joseph took his stand on running board, on the left-hand side of the truck, near to where the defendant was seated. When the truck approached the street where J oseph wanted to alight, J oseph, in his testimony, says: “Well, I told Mr. Cohen I wanted to get off here, and he said to me, ‘Hop off,’ and I told him I wouldn’t hop off on account of the road being slippery; so he slowed down a little, just as I was getting balanced to get off why he juggled the truck, and on account of the ‘juggle’ threw me off and I got caught in the back.” When asked what he meant by “juggle” he said “jerked;” and said that the truck went -faster. The only witnesses as to how the accident happened besides the plaintiff, were the defendant and his helper. The defendant admitted that Joseph was standing on the running, board, and that the road was slippery, and had asked that the truck be stopped to let him off, but that Joseph jumped-before-the truck was brought to a standstill. On the question whether the defendant invited Joseph to ride on the truck, the defendant testified that he did not, but that Joseph asked that he be permitted to get on the truck. The first point made and argued in the brief is: “The verdict was contrary to law in that no negligence on the part of the defendant was shown.”

There is no merit in this contention. Under the testimony the jury was warranted in finding that the truck was being slowed down at Joseph’s request and while Joseph was preparing to alight, the defendant, with knowledge of the slippery condition of the highway and of the place where Joseph was standing, with a jerk accelerated the speed of the truck and threw the plaintiff off. The second point made is: “The verdict was contrary to law, because it was clearly shown that the plaintiff Joseph was guilty of contributory negligence.”

This contention is without substance. It is quite clear from the testimony that the position taken by Joseph on the running board had no casual relation to this injury. Of course, if it had appeared that Joseph had been swept from the running board by a passing vehicle, or had fallen from the truck by reason of the ordinary movements of the vehicle, in its general prudent operation, then, of course, he would be debarred of a recovery upon the ground that he had assumed those risks. But such is not the case here. See New York, Lake Erie and Western Railroad Co. v. Ball, 53 N. J. L. 283; Menger v. Laur, 55 Id. 205; 20 L. R. A. 601. Thirdly, it is argued that the verdict was contrary to the weight of evidence. We do not think it is. It is a significant circumstance that the defendant found it necessary to put on his emergency brake to stop the truck, if he were going at a speed of five or six miles an hour and proceeding to a standstill at the time, as he says he did, when he saw Joseph jump from the running board. This circumstance tends to corroborate Joseph’s testimony that the speed of the truck was accelerated as he was preparing to alight. What has been said under the preceding points disposes adversely to defendant’s contention under the fourth point in the brief, that the trial judge should have either granted the motion for a nonsuit or directed a verdict for the defendant. Lastly, it is said that the verdicts are excessive. It is conceded that there is no disagreement as to the seriousness of the injuries sustained by Joseph. There is, however, disagreement between the medical experts as to the length of time that Joseph will suffer from his injuries.

The physician who attended him at the hospital testified that the injuries were of a painful and distressing character and that for a long period of time the lad “had a great deal of pain and suffering;” that “all the skin had been torn away around the knee and for quite a large area above the knee. The muscles were torn and bleeding and the bone of the leg was broken above the knee;” that there was a fracture of the lower femur; that the boy was much shocked and that there were other minor cuts and bruises on him. The doctor further said “that the character of the injury to the patient’s skin was such that mechanical appliances could not be applied to the bréale and fracture; that the skin was so traumatized and bruised and torn that there was no place to put your traction on. And besides that, his condition was such he would not permit of much handling; for a long time it was question whether he would live or die. He was very sick for a long time. He was more or less in a dazed condition.” At the time of the trial he was still a patient in the hospital, where he- had been from the time of his injury, for the space of a year. According to the doctor’s testimony the patient will be compelled to remain -in the hospital for a long time to come and will have to undergo several operations of skin grafting and bone grafting, &c. In the doctor’s opinion it will require one year and a half to two years longer to treat the injuries, and even then the injured leg will never resume a normal condition, in that there will be a slight shortening of the leg, from three-quarters of an inch to an inch, and besides, he will have a large amount of scar tissue. At the time of the trial there was a shortening of the leg from three to four inches, and in order to straighten the leg an operation is required, consisting of the breaking of certain bones that are united on the side from the callus that is thrown out, which operation is accompanied by some danger to the life of the patient. Of course, the plaintiff cannot be compelled to submit to an operation which involves the least danger to life and even if he voluntarily submitted to the operation it is problematical whether or not it will prove entirely successful. On the whole we cannot say that the award of $10,000 is so clearly excessive that it evinces passion, prejudice, mistake or partiality on part of the jury. Nor was the award of $5,000 to the mother of Joseph excessive. Counsel of defendant, in his brief, says: “The total amount of the damage sustained by Mary Murray was at the outside figure twenty-five hundred and thirty-eight dollars [$2,538], and for this the jury gave her five thousand dollars [$5,000], or nearly double the amount proved,” &c. The amount of $2,538 is made up of hospital expenses, physicians’ and surgeons’ bills incurred up to the time of the trial and to be incurred for future hospital and physician bills and the cost of future surgical operations, and the loss of the boy’s wages calculated for two years, only, and all this upon the theory the boy will bo fully recovered by that time to go to work again and at least to earn the same amount. The mother, the father being dead, is entitled to the earnings of her son until he attains his majority, unless he is sooner emancipated. The assumption that Joseph, in the two years, from the time of his injury, arbitrarily adopted in the defendant’s computation as the time when he will be able to go to work, has no support from the evidence. There was testimony in the case from which the jury could reasonably infer that the time when the plaintiff would be enabled to go to work would be of a much longer period, and further that by reason of his injuries his earning capacity would be impaired materially. Rule is discharged, with costs.


author:
Charles É. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOE SCHAFERLING, PETITIONER, v. STANDARD TANK AND SEAT COMPANY, RESPONDENT.
    On determination and rule for judgment.
    for the petitioner, E. George Aaron.

    Eor the respondent, Bichará W. Balcer.

   The deputy commissioner was asked to approve this compromise and enter an award on the same.

I, therefore, find and determine that the petitioner, in accordance with the compromise, is entitled to compensation for temporary disability for a period of twenty-three and four-sevenths (23 4/7) weeks, all of which has been paid, and compensation for permanent disability for a period of twenty-five (85) weeks, based upon five (5%) per cent, of total disability, the compensation rate being seventeen ($17.00) dollars.

❖ ❖ # ^ %z

Charles É. Corbin,

Deputy Commissioner.


author: Peb Cueiam.

text:
    IN THE MATTER OF THE APPLICATION OF THE BOARD OF RECREATION COMMISSIONERS OF WEST NEW YORK FOR THE TAKING OF LANDS OF DIECKMANN ET AL.
    Argued March 3, 1925
    Decided February 23, 1926.
    Eminent Domain»—Use of Photographs to Show Condition of Land—Though Photographs May be Evidential to Show General Conditions, They Were Here Introduced to Show Special Conditions at a Particular Spot—Jury Not Permitted by Court to View Directly—Venire De Novo May Issue.
    On appeal from the Hudson Circuit Court in an eminent domain matter.
    Before Justices Paeiceb and Katzenbach.
    Por the appellant Dieckmann, Elmer W. Demarest.

    Por the respondents, Besson, Alexander & Stevens.

   Peb Cueiam.

There are five grounds of appeal. One is that the verdict was against the weight of evidence. This is not a subject of appellate review in a civil case. Another is that certain testimony of one Buescher was erroneously admitted. There was no exception to the ruling, and hence it is not now reviewable.

The other three grounds may be discussed together, as they relate to the admission of three separate photographs in evidence, to each of which there .was objection, overruled and exception taken. These photographs showed a condition of certain land not part of that sought to be taken, in fact several hundred feet from the nearest corner of the tract in question, and seem to have been admitted on the theory, for which there was some support in the testimony, that the tract under condemnation was part of a large bog which was more or less homogeneous in character; the inference sought to be drawn being that, because the conditions shown in the pictures obtained in another part of the boggy area, similar conditions were to be expected from similar causes in the part under condemnation, and a lower 'value should be assessed because of this. All three pictures exhibited the same object, a sidewalk previously laid over piling previously driven, and forced upward some inches into the air by what was claimed to have been the settlement of the boggy surface and the non-settlement of the piling. The bearing of these pictures, according to the trend of the testimony for the recreation commissioners at the trial, was this: That this boggy land could not be improved as building lots by the erection of dwellings, &c., thereon, without driving a great many piles to support the weight of the buildings, and that to pile each twenty-five by one hundred-foot lot to the extent of forty feet of its depth, leaving the remaining sixty feet of back yard unpiled, plus expense of improving the streets, would cost an average of $1,300 per lot, and that these lots in the bog should be appraised at a greatly reduced value in consequence. The jury appear to have been somewhat influenced by this, as they fixed a value some $300 per lot less than that fixed by the commissioners in eondémnation.

We think there was error in the admission of these photographs. Conceding for present purposes, but not deciding, that photographs of the general conditions existing on adjacent land (which the jury were not permitted by the court to view directly) may be evidential, these pictures were not offered to show general conditions, but avowedly to show a special condition at a particular spot, due, in part, to alleged artificial interference not contemplated as to the lands in question. These lands in question are desired not as building lots fronting on streets, but as a public playground, fairly comparable with the unpiled back yards, and the cost of fitting them for house buildings was therefore quite irrelevant and misleading to the jury. If the lands required expensive piling for building purposes and none for open air recreation, their value for the latter use would naturally be greater.

There was another objection to the admission of these pictures. They showed conditions not on the property to be taken, but on other property, which, while claimed to be due to natural tendencies of the terrain, may well have been due in large part, if not principally, to faulty engineering and construction. Where it is sought to gauge the value of lands by alleged similar conditions on other lands, the parallelism should be clear and complete; otherwise, the test fails and the admission of such evidence is erroneous. Hepburn v. Water Supply Commission, 2 N. J. Adv. R. 1644.

The judgment of the Circuit Court will be reversed, and the cause remanded to the end that a venire de novo issue.


text:
    PEERLESS OIL COMPANY OF PENNSYLVANIA, A CORPORATION, PROSECUTOR, v. FRANK HAGUE ET AL., DEFENDANTS.
    Decided February 24, 1926.
    Eor the prosecutor, Maurice J. Cronin.

    Eor the defendants, Thomas J. Brogan.

   Pee Cueiam.

This is a writ of certiorari granted by Mr. Justice Min-turn, and by consent argued before him sitting alone, to remove a second resolution of the commissioners of the city of Jersey City in regard to the location of an oil station on the corner of Pavonia avenue and the Boulevard in Jersey City.

After consideration of the testimony and the situation, the second resolution of the board is set aside, and the first resolution will stand.


text:
    PEERLESS OIL COMPANY OF PENNSYLVANIA, A CORPORATION, RELATOR, v. FRANK HAGUE, JOHN SAUL, A. HARRY MOORE, MICHAEL I. FAGEN AND WILLIAM B. QUINN, BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, AND JOHN SAUL, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Argued October 7, 1925
    Decided March, 6, 1926.
    Zoning—Oil Station Permit Issued and After Expenditure of Money Revoked—Permit was Either Valid or Invalid; if Valid it was Not Revokable; if Invalid, Except Under Certain Conditions, the Governing Body wasi Not the Proper Tribunal to Pass Upon the Invalidity—Mandamus Not the Proper Remedy.
    On rule for mandamus.

    Before Justices Trenohard, Katzenbach and Lloyd.
    Eor the relator, Maurice J. Cronin.

    Eor the respondents, Thomas J. Brogan.

   Per Curiam.

Prom a stipulation of facts it appears that the Peerless Oil Company, the relator, is the lessee of a vacant lot of ground at the northeast corner of the Hudson Boulevard and Pavonia avenue, in Jersey City, under a lease for five years; that it made application to the zoning commission of that city for permission to erect a motor vehicle service station on the lot thus leased; that the application and accompanying plans and specification were in conformity with the regulations of the department and with the law of the state; that the application was approved on June 2d, 1925, by the commission, and that a permit was issued to the relator by the building department of the city; that the relator then engaged a contractor to build the station and that work had actually been begun under the permit; that by reason of protests from residents of the neighborhood the contractor was prohibited by the police department from proceeding with the work, and that, finally, on July 7th, 1925, the permit was revoked by formal resolution of the commission.

; On these facts a rule was granted to the relator to show cause before this court why a peremptory or alternative writ of mandamus should not issue to compel the respondents to issue to it a new permit, or to renew the old permit to construct and operate the motor vehicle service station at the place named.

It is clear that the relief desired by the relator cannot be accorded. The permit already granted was still existent and was either valid or invalid. If valid the commission could not revoke it after acceptance and the expenditure of money upon it; and even if invalid by reason of anything but fraud in its procuring or of statutory prohibition, the commission was not the tribunal to pass upon such invalidity. Montefiori Cemetery Co. v. Newark, 3 N. J. Mis. R. 1104, and cases there cited. The excepted grounds are not here invoked. For these reasons mandamus is not the proper remedy.

The rule to show cause is discharged.


author: Pee Ctjbiam.

text:
    WALTER S. HENNIG, PLAINTIFF, v. MARSHALL J. BOOTH AND THE RED STAR TRANSPORTATION COMPANY, A CORPORATION, DEFENDANTS. ALFRED K. NAUGLE, PLAINTIFF, v. MARSHALL J. BOOTH AND THE RED STAR TRANSPORTATION COMPANY, A CORPORATION, DEFENDANTS
    Submitted October term, 1925
    Decided March 4, 1926.
    Negligence—Motor Vehicle Collision—Injury to Passengers in Defendant’s Car, in Which He Too was Riding—Defendant Had Neglected to Repair Accelerator He Knew was Not Working Properly—One of the Plaintiffs was Driving at Time of Accident, and in His Effort to Operate the Accelerator the Collision Occurred—Held, That There was no Contributory Negligence on Plaintiff's Part.
    On applications for rules to show cause why plaintiffs’ verdicts should not be set aside.
    Before Justices Tee3stch:abd, Katzenbach and Lloyd.
    Por the defendant Marshall J. Booth, Kalisch & Kalisch {Samuel Kalisch, Jr., on the brief).
    For the plaintiffs, Peter Bentley (Herbert 0. Gilson, of counsel).
   Pee Ctjbiam.

These cases were tried together at the Union County Circuit, resulting in verdicts of $6,000 for the plaintiff Walter S. Hennig and $20,000 for the plaintiff Alfred K. Naugle, both judgments being against the defendant Marshall J. Booth alone. There was no service of summons and com plaints on the defendant the Red Star Transportation Company. Herein Booth will be referred to as the defendant.

Applications were made to the trial judge for rules to show cause why new trials should not be granted and were refused, and now applications are made to this court therefor.

We think that the plaintiffs established at the trial by satisfactory evidence that, in the fall of 1923, defendant purchased a Studebaker seven-passenger sedan, the accelerator rod of which was out of alignment; that defendant was warned of the defective condition by a mechanic at least twice, and that to use the car until repairs were made was dangerous that “it” (the accelerator rod) “should be attended to; it wasn’t safe to drive it that way;” that defendant, knowing the defective condition of the accelerator rod, invited the plaintiffs to accompany him in his car on a ride to Wilkes-Barre, Pennsylvania, on November 9th, 1923; that ■on that very day defendant drove to the mechanic who had given him warning of the condition of the accelerator rod and had the mechanic change some of the tires on the car; that there was a further discussion about the accelerator sticking, defendant saying, “It had stuck again, but he didn’t have time to do it that day” (meaning to have the accelerator repaired) ; that defendant was then warned by the mechanic that “it” (the accelerator) “should be attended to; it wasn’t safe to drive it that way,” to which defendant replied that “he would have it fixed when he came back,” “he said he was in a hurry; that without either plaintiff knowing of the condition of the accelerator they started on their trip; that plaintiff Hennig relieved defendant (at defendant’s request) of the wheel, and was coming to a steep hill; to give the car momentum to carry the car over the steep hill, Hennig did what one has to, pressed the accelerator down; that as the crest pf the hill was reached, to reduce the flow of gas into the cylinders and reduce the speed of the car, Hennig raised his foot from the accelerator when the accelerator stuck and the car bounded forward at a great rate of speed, increasing at an incalculable rate; that plaintiff Hennig, much excited, looked for the trouble and saw it was the accelerator that was stuck, and leaned down and pulled "Up the accelerator that was stuck and the speed of the car began to diminish immediately; that at this moment Hennig was highly excited, and, after releasing thé accelerator and thereby cutting the flow of gas, Hennig raised up and saw another car coming right for him and the ears came into violent collision; that although the collision occurred on the right-hand side of the road, as defendant’s car was proceeding, plaintiff drew the other car over that side, because he, in leaning down to release the accelerator, had swerved his ear to the left and the other ear to pass had pulled to its left, and then Hennig suddenly pulled over to his own (the right-hand) side of the road, and the collision then occurred; that the plaintiff Naugle had nothing to do with the control of the ear; he was riding in the rear seat; that the three occupants of the car were injured; that on three separate occasions defendant admitted that the collision was his fault and due to the defective accelerator rod.

There were two witnesses sworn for the defense. One was the defendant and the other Dr. Livengood, a medical expert. Defendant does not deny a single statement made by any of the plaintiffs’ witnesses, with the exception that Hennig started to drive sooner than Hennig had described.

It seems clear that the negligence of the defendant in not having the accelerator repaired was the proximate and efficient cause of the accident. It seems also clear that the jury properly found that Hennig was not guilty of contributing negligence or assumption of risk. Had the accelerator not stuck the plaintiff Hennig would not have had his attention diverted from the car and it journey. It seems to us that he did what he thought was best, and having been placed in a position of peril by the act of the defendant, contributory negligence cannot be imputed to him, because, possibly, he did not select the very wisest course, or, possibly, made an honest mistake of judgment in such an emergency as he described, and has not been denied by defendant or any witness for him. Some stress is laid on a certain written statement of defendant as to how the accident happened and which was subscribed to by Naugle, but Naugle said in signing the paper he took Booth’s version of it because (being resting and not looking at the time) he had not seen the accident, and, moreover, at the time he subscribed to it, he was suffering pain from his most serious injuries. The jury believed Naugle, and, we think, rightly, considering all the evidence. We think it clear that a nonsuit was properly refused and a direction of a verdict was rightly denied, and that the verdict of the jury was not against the weight of the evidence nor contrary to law.

WTe can find no fault in the refusal of requests to charge. There was no request number eleven. Request number nine was charged.

The court had already charged the third request in substance and effect.

We find no fault with the instruction that the Red Star Transportation Company, while named in the papers as a defendant, was not a defendant before the jury.

With respect to the next point, it is sufficient to say that no request was made that the defendant’s version of how the accident occurred should be charged.

We find no fault with the admission of the question asked of the plaintiff Naugle over the objection of the defendant.

With respect to the argument that the verdicts are excessive, it is sufficient to say that our examination of the testimony shows that both plaintiffs were injured permanently and very seriously, the plaintiff Naugle especially so; both had expended large sums for medical, surgical and hospital attendance, and it is quite manifest to us that no court could possibly say that either verdict was excessive.

Both applications for rules to show cause will be denied, with costs.


text:
    LILLIE PISKO, RESPONDENT-PETITIONER, v. LOUIS NELSON, PROSECUTOR-DEFENDANT.
    Submitted October 16, 1925
    Decided February 5, 1926
    Filed March 2, 1926.
    Workmen’s Compensation—Injury to Employe, a Canvasser and Solicitor, was Driving a Horse Which Became Unmanageable—Employe was Suffering From Ailments Which Were Aggravated by the Accident, Resulting in Death—Held, Death Resulted From Injury Received During the Course of Employment—Award of Counsel Fee Not Excessive.
    ' On writ of certiorari to the judge of the Court of Common Pleas of Camden county.
    Before Justices Tbenchaed, Katzenbach and Lloyd.
    Eor the respondent-petitioner, Joseph Varbalow.

    Eor the prosecutor-defendant, Bleakly, Stockwell & Bur-ling.

   Pee Cueiam.

This case was before us on a writ of certiorari directed to the judge of the Court of Common Pleas of the county of Camden. The writ bring up for review the judgment of the Camden County Court of Common Pleas in a workmen’s compensation ease.

The record discloses that for some time prior to September 16th, 1919, Daniel Pisko was employed by one Louis Nelson as a canvasser or solicitor. Nelson conducted a house furnishing establishment. Pisko solicited orders. In order to obtain orders Pisko hired a horse and wagon, which he drove from place to place in the discharge of his duties. On September 16, 1919, while in the wagon, the horse became unmanageable and ran away. In its flight it struck a coal wagon. Pisko had a passenger in the wagon with him. As a result of the collision Pisko was injured. He was either thrown from the wagon or else the contact between the wagon which he was driving and the coal wagon injured him. He was taken to the Cooper Hospital in Camden. He there received treatment. He was able to go to his home. He was confined to his home continuously from September 16th, 1919, to November 12th, 1919. On the latter date he died. He left a widow, Lillie Pisko, and five children, between the ages of three and seventeen. The widow filed a petition for compensation with the workmen’s compensation bureau. Upon this petition a hearing was held by the referee. The determination of facts made by the referee held that the accident arose out of and in the course of the employment of Pisko by Nelson; that the death of Pisko was the result of the accident. Compensation was awarded. Nelson then appealed to the Camden County Court of Common Pleas. This court heard the case de novo, and not upon the record taken before the workmen’s compensation bureau. The testimony taken in the Common Pleas Court showed that Pisko had had, prior to the accident, heart trouble. The heart disease from which he suffered was known as nitro-valvular regurgitation. He also had hypertrophied liver. He had, however, been working regularly prior to the accident. There was medical testimony to the effect that the accident had aggravated the heart trouble, and this aggravation caused his death. It was upon this evidence that the determinatoin mentioned was made by the referee of the workmen’s compensation bureau.

In the opinion rendered in the Court of Common Pleas the court held to the same effect as did the workmen’s compensation bureau. A judgment was rendered for the compensation fixed by the workmen’s compensation bureau, with interest. A counsel fee of $500 was awarded to the attorney for the petitioner, which included the fee allowed by the referee. A writ of certiorari was then applied for by Nelson. It was allowed. The case is, as previously stated, before us under this writ of certiorari.

The prosecutor’s first point is that the Court of Common Pleas was without jurisdiction to entertain the appeal, because it did not appear from the evidence that the death of Pisko arose in the course of his employment, or was due to-an injury received in the course of his employment. Upon examination of the evidence we have reached the conclusion that this point is not well taken. The testimony sfully sustains the contention that the decedent was at the time of the accident in the service of his employer, and that the injury from which death resulted arose out of and in the course of such employment.

The next point argued by the prosecutor is that it does not' appear from the evidence that Pisko sustained an injury by: accident at the time and place alleged in the petition. We; think this contention unsupported in fact. The evidence fully justified the conclusions reached by both the workmen’s-compensation bureau and the Camden County Court of Com-' mon Pleas in this respect. While it was true that Pisko; suffered prior to the accident from the ailments mentioned above, yet there was medical testimony offered to the effect that the accident had aggravated the pre-existing heart trouble of Pisko, and that his death had been accelerated by the accident. In other words, the accident produced his-1 death at the time which it occurred. It is well settled that where a person has an ailment, yet, by reason of an accident,' the ailment is so aggravated as to cause death; that the-death is the result of the accident. It is-also well settled:’ that where there is testimony to support a finding of fact that such finding will not be disturbed by this court. Kauffield v. Pfund, 97 N. J. L. 335.

The prosecutor complains that the amount allowed as a counsel fee to the counsel for' the petitioner is excessive. This amount is $500. There have been two trials of this case. It has been what might be termed a “warmly contested ease.” There was much medical testimony adduced. This required preparation on the part of counsel. The litigation has extended for upwards of five years. The attitude-of the prosecutor made this necessary. Under the circumstances, we feel that the amount of $500 awarded by the ¡Camden County Court of Common Pleas was not excessive. The judgment of the Court of Common Pleas is accordingly affirmed.


text:
    ANTON NELSON, PROSECUTOR, v. TOWN OF KEARNY ET AL., DEFENDANTS.
    Argued October 7, 1925
    Decided February 18, 1926
    Filed March 2, 1926.
    Municipalities—Water Contracts Between Municipalities and North Jersey District Water Supply Commission—Such Contracts Are Not as Those Between Private Citizens—Municipalities Must Rely Upon Reports of Their Competent Engineers—The Several Reasons for Setting Aside Contract and Review of Ordinance Considered and Found to be Without Sufficient Merit.
    On rule to show cause why a writ of certiorari should not be allowed.
    Before Justices Trenchard, Katzenbach and Lloyd.
    Eor the prosecutor, Robert H. McCarter.

    Eor the defendants, Spaulding Frazer.

   Per Curiam.

This case is before us on an order to show cause why a writ of certiorari should not issue to review an ordinance of the town of Kearny, passed by the town council June 24th, 1925, authorizing the execution of a contract between the city of Newark, the North Jersey district water supply commission, and the town of Kearny, to provide the latter with a water supply. The contract is an important one, involving a construction cost of $2,689,421, and a further sum of $110,000, for incidental costs and expenses in connection therewith. The contract is one authorized under chapter 71 of the laws of 1916.

The applicant for the writ is Anton Nelson, a property-owner and taxpayer of the town of Kearny. In lieu of affidavits taken under a rule it was agreed at the argument that the affidavit of Cornelius C. Yermeule, a hydraulic engineer, offered by the prosecutor, should be received and used, and that the affidavits of Mr. Arthur H. Pratt, a hydraulic, municipal and sanitary engineer, and the affidavit of Mr. Berkeley W. Moore, chairman of the north district water supply, commission, offered by the defendants, should likewise be received and used.

The prosecutor contends, first, that neither the water supply commission nor the city of Newark agree in the contract that Kearny shall receive twelve million gallons of water per day, although by the fifth section of the contract Kearny agrees to take twelve million gallons ■ as a .minimum amount. We will consider this point with the sixth point made by the prosecutor, which is that the contract presupposes that the supply of water in the Wanaque shed, from which the water is to be taken, will be sufficient to afford a supply of one hundred million gallons a day. The contract provides in the fourth section thereof that the amount of waters to which Kearny shall be entitled shall not be decreased below twelve per cent, of the total supply of water system when completed. The total supply is based upon an estimate of one hundred million gallons per day. The wording of the contract, taken in connection with the provisions of chapter 71 of the laws of 1916, seems to us to establish a contractual relationship by which Kearny is to receive twelve million gallons of water per day, provided the Wanaque shed is capable of producing such an amount. The affidavit of Mr. Yermeule, offered by the prosecutor, is to the effect that the Wanaque shed is incapable of developing a supply of one hundred million gallons per day, which is necessary in order to supply Kearny with twelve million gallons per day. Mr. Pratt, the hydraulic engineer for the commission, contends in his affidavit that Mr. Yermeule’s opinion is based upon old data, collected many years ago by him, which is now obsolete and incorrect; that new data, calculations and computations fix the estimated yield for the use of the municipalities, parties to the Wanaque contract, at one hundred million gallons per day. In matters of this kind a municipality must necessarily select an engineer in whom it. has confidence. If the engineer so selected renders, after a careful examination, an opinion with reference to the amount of water that can be derived from a water shed, the governing body of the municipality has the right to rely upon such an opinion and to enter into a contract based upon such an opinion. If one opposed to the making of the contract employs an engineer who gives an opinion different from that which the engineer of the municipality gives, this affords no basis for a court to stay the hand of the municipality in the making of a contract which it, in the exercise of a reasonable discretion, sees fit to make. IE a proposed contract can be side tracked by the mere production of a different opinion from an engineer other than the engineer engaged by the municipality, no public work, no matter of what importance to the municipality, could be undertaken. We are of the opinion that the opinion testified to by Mr. Yermeule as to the amount of water to be derived from the Wanaque shed affords no sufficient reason for permitting a review of the proposed undertaking.

The second point made in behalf of the prosecutor is that while the purview of the contract and the terms of the ordinance presuppose an obligation on the part of the commissioti to construct the necessary works to the distribution system of Kearny, the contract itself only requires that such works be constructed to the Belleville reservoir in the city of Newark.

The contract is for the development of a water supply and the furnishing of potable water to the city of Newark and the town of Kearny. The purpose of the contract, not only as set forth in the contract itself, but in the statute from which the power to make the same is derived, contemplates in our opinion the construction of such necessary works as to' connect the supply of water with the distribution system of Kearny. This contract is not to be construed as if it were between the town of Kearny and a private corporation or an individual. The contract is but one element in a general scheme of co-operation between the municipalities undertaking to secure a water supply, aided by the water supply commission, an agency of the state designed to facilitate the acquisition of a water supply for municipalities. There are many provisions in the statute itself which protect the rights of the municipalities entering into the scheme. Taking these matters into consideration we feel that the point made by the prosecutor in this regard is not well taken.

The third contention made by the prosecutor is that the ordinance authorizing the contract mistakingly recites both in its title and in its body the fact that the money appropriated, and for which a bond issue is authorized,'will cover the expenses of operation of the plant, as well as the construction thereof. It is true that the ordinance authorizes the execution of a contract for the construction, acquisition and operation of a water supply. The contention, as we understand it, is that the ordinance provides for the execution of a contract for the operation of a water supply as well as for the construction and acquisition thereof, and that the contract itself- does not provide for the continued operation of the plant. We do not construe the word "operation” in the title of the ordinance to mean the perpetual operation of the plant, for the reason that the perpetual operation of the plant is provided for in the fifteenth section of the agreement. We deem the word mere surplusage, and in view of the provision made for the perpetual operation we do not see that the use of the word in the title of the ordinance affords any basis for setting the same aside.

The fourth ground of attack is that the contract permits a departure, in whole or in part, from the plans and specifications. It is insisted that the whole purview of the act requires the contract to be in its final form when signed, and is opposed to the ideas that such contract can be departed from. The work contemplated by the contract is of great magnitude. It must necessarily happen that in the prosecution of such work unforeseen contingencies will arise. These will require alterations in the maps, plans and specifications. Such alterations require a departure from the original maps, plans and specifications. All that the section of the contract attacked does is to give to the contract the necessary elasticity to meet such conditions. We cannot see how such a provision raises a question as to the validity of the contract. Such clauses are quite customary.

The fifth point advanced is with reference to the appropriation by the ordinance of $110,000 to cover incidental costs and expenses. There are incidental expenses attached to every contract of this character. They must be met. We think such a provision is not illegal.

This completes the consideration of all the points made in behalf of the applicant for the writ of certiorari. We have reached the conclusion that no one of them raises an arguable question of sufficient merit to warrant the allowance of a writ of certiorari. In a case where the allowance of a writ would, perhaps, suspend for a considerable period of time the prosecution of a great public work of prime necessity to a large number of persons, the discretion lodged in this court in the matter of the allowance of a prerogative writ should be sparingly exercised.

The rule to show cause is accordingly denied.


text:
    THE STATE, EX REL. THOMAS J. O’REARDON, RELATOR, v. C. FRANKLIN WILSON, JUDGE OF THE COURT OF QUARTER SESSIONS OF THE COUNTY OF MORRIS, RESPONDENT. THE STATE, EX REL. DAVID CONKLING, RELATOR, v. C. FRANKLIN WILSON, JUDGE OF THE COURT OF QUARTER SESSIONS OF THE COUNTY OF MORRIS, RESPONDENT. THE STATE, EX REL. MAX REIDLER, RELATOR, v. C. FRANKLIN WILSON, JUDGE OF THE COURT OF QUARTER SESSIONS OF THE COUNTY OF MORRIS, RESPONDENT. THE STATE, EX REL. JOHN P. WALSH, RELATOR, v. C. FRANKLIN WILSON, JUDGE OF THE COURT OF QUARTER SESSIONS OF THE COUNTY OF MORRIS, RESPONDENT. THE STATE, EX REL. FREDERICK HUBERT, RELATOR, v. C. FRANKLIN WILSON, JUDGE OF THE COURT OF QUARTER SESSIONS OF THE COUNTY OF MORRIS, RESPONDENT. THE STATE, EX REL. DANIEL ALLEN, RELATOR, v. C. FRANKLIN WILSON, JUDGE OF THE COURT OF QUARTER SESSIONS OF THE COUNTY OF MORRIS, RESPONDENT. THE STATE, EX REL. ARTHUR J. McDONNELL, RELATOR, v. C. FRANKLIN WILSON, JUDGE OF THE COURT OF QUARTER SESSIONS OF THE COUNTY OF MORRIS, RESPONDENT. THE STATE, EX REL. EDWARD L. CLARK, RELATOR v. C. FRANKLIN WILSON, JUDGE OF THE COURT OF QUARTER SESSIONS OF THE COUNTY OF MORRIS, RESPONDENT.

      Submitted November 1, 1925
    Decided March 1, 1926.
    Salaries—Mandamus to Secure Certification of Salaries of Employes of Prosecutor’s Office—Common Pleas Judge’s Failure to Certify When Supreme Court Justice Had Secured the Attendance of a Special Attorney General Upon the Criminal Business—Alternative Writ to Determine Whether Failure was Due to Doubt About Reasonableness of Charges or Regarding Authority to so Certify.
    On rule to show cause why a mandamus should not issue.
    Before Justices Tbenchaed, Katzenbach and Lloyd.
    Eor the relators, Elmer W. Romine.

   Pee Cubiam.

In these eight cases the several relators hold a rule requiring C. Eranklin Wilson, judge of the Court of Quarter Sessions of the county of Morris, to show cause why a peremptory or alternative writ of mandamus should not be issued enjoining him to certify and approve for payment the several bills of the several relators, employes of the prosecutor’s office of the county of Morris, for the months of April, May and a portion of June, 1925, which bills were endorsed and approved by James H. Bolitho, prosecutor of the pleas for Morris county.

Each rule ordered that both parties have leave to take depositions on notice.

Each relator took depositions which are printed in the record. The respondent took no depositions, nor was any evidence taken in his behalf, and he has filed no brief.

The depositions establish that the bills of the several relators were certified by Mr. Bolitho in the form prescribed by section 95 of the Criminal Procedure act (Comp. Stat., p. 1850) to be for necessary expenses incurred in the performance of the duties of his office as prosecutor that the items charged are correct, that the services have been performed; that the same is just and true, that the amount claimed is due and owing claimant, and that the contention is that the judge should be directed to approve the same.

It seems further to be clearly established by the depositions that the judge either refused to approve, or failed upon request to approve, all of such bills, and the question at once arises as to the reason for his action. Searching the record we find no definite answer to that question. With respect to most of the cases, the nearest approach to a definite reason is the testimony of Mr. Bolitho, that “Judge Wilson was satisfied, so far as he intimated to me, that the work was done, and that the bills should have been approved as all other bills had been submitted by these men for similar services, but I thought from the attitude of Judge Wilson that he believed that his authority in the county had been interfered with'.”

With respect to one of the cases we have in addition the above, the deposition of the relator, that “the principal reason was because Mr. Jayne had been appointed to come into the county, and claimed that he had charge of the criminal business.” ’

With respect to one other case we have the deposition of the relator to the same effect as that last given.

In this state of the record, and in the absence of anything to show definitely whether the judge failed to approve the bills because he was not satisfied as to the reasonableness of the means employed and the necessity of the expenses incurred, or because he doubted his own authority or the proseutor’s authority by reason of the request made by Mr. Justice Parker, and the designation of Mr. Jayne by the attorney-general to prosecute the criminal business of the state in the county, is not clear.

Whereas here on an application for mandamus, no well-defined issue is raised; in order that such issue may be raised, an alternative writ, to which a return may be made, will be allowed.

An alternative writ of mandamus is allowed accordingly.