author: Buen akak, Y. O.

text:
    Ethel McLain, complainant, v. John R. Dey, surviving executor, &c., et al., defendants.
    [Decided June 1st, 1925.]
    Trusts — Beneficiary of an Estate Executed a Document Placing His Share in Hands of Executor to be Used at a Certain Time For the Purchase of a Home When Himself and Wife Decided Upon a Suitable Place, Also Other Provisions— Home Never Procured, Husband Left Wife, Wife Convicted of Adultery — Fund Held to be a Trust Fund For Use of Wife and Family, Remainder, if Any, to go to Beneficiary.
    On final hearing.

      2Fessrs. Joseph 21. Roseberry & Son, for the complainant.

      2Ir. John W. Slocum, for the defendant Dey, executor.
   Buen akak, Y. O.

John R. Dey, as surviving executor of James McLain, deceased, has completed the administration of decedent’s estate and made distribution to the legatees, with the exception of the share or legacy payable under the will to Randolph McLain, mounting to $2,165.38 (plus some recent accruals of income thereon). This sum was not paid over by the executor because of an instrument entitled an assignment, executed by the said Randolph McLain prior to the distribution period. This instrument is as follows :

“This indenture, made this eleventh day of August, 1919, by Randolph McLain, witnesseth, That in consideration of one dollar and other consideration duly paid, I, Randolph McLain, do hereby assign, turn over and direct to be held by John R. Dye, of Passaic, Kew Jersey, guardian for me or by whatever authority he holds and controls a certain legacy of S900, or whatever amount the right sum may be held for me as part of the estate of James McLain, deceased, late my father, and I do order and direct that the said John R. Dye hold the said money until the youngest child of said James McLain shall arrive at the age of twenty-one years; and then when the same is payable that he still hold the same until said Randolph McLain and his wife, Ethel MIcLain, decide to buy a house and lot suitable for a home for them, and then the money to be paid over to said Ethel McLain to be used and put into said house and lot, and the same and the title thereto to be put in the name of Ethel McLain so that there will he a home for my said wife and family; and also that if the said Randolph McLain shall leave his wife and family that the said money, or the said house and lot, is to be received and used by said wife, Ethel McLain, as a support of or home for the family.
“This I do voluntarily, with an intent that the said money, when due, shall go to and be used for the support of my said wife and family so long-as they need the same, or any part of the said money or lot so remains.
“And I ask that the said John R. Dye, guardian, shall and will properly carry out this assignment and order by me.”

The contention of complainant (the wife of Randolph McLain) is that she is entitled to the legacy as^an assignee under this instrument. I am unable to concur. It seems to me that the instrument is a deed of trust, whereby Randolph McLain assigned this legacy to John R. Dey, as' trustee, to hold and disburse according to the trust purposes therein declared.

It appears by the evidence that the youngest child of James McLain has arrived at the age of twentj^-one; that no house and lot was ever bought, or decided to be bought, by Randolph McLain and his wife; that Randolph McLain has, in fact, deserted or left his wife and family.

Under these circumstances, and under the intent and meaning of the trust deed, the trust fund is to be used for the support of the wife and children of Randolph McLain, notwithstanding that the wife has been convicted of adultery, and the children (of whom there are three — Wallace, Dorothy and Alfred, all minors) have been taken from her custody and placed with their maternal grandparents, who are, however, unable to support them adequately without assistance, even if they were liable so to do.

It is the duty of the trustee to apply this fund according to his sound judgment, including principal as well as income, if necessary for the purpose, to the reasonable needs of the wife and children for adequate support, during the lives of them, and the survivors and survivor of them. The remainder, if any, at the death of the last survivor, would be payable to Randolph McLain, or his executors or administrators.

All parties have been brought into court, and a decree will be made establishing the trust as hereinbefore set forth, and directing the fund to be paid over by the defendant John R. Dey, as executor to himself as trustee under this trust, and to file an inventory of the trust fund in this court in this cause. The costs of all parties may be paid out of the fund.


source: Caselaw Access Project

author: Buchanan, .V. C.

license: Public Domain

text:
    Harry Friedman et al., complainants, v. Philip Cohen et al., defendants.
    Decided June 1st, 1925.]
    Conveyances — Specific Performance — Contract Entered Into December 19th, 1922 — Amendment Endorsed Thereon February 19th, 1923 — New Contract Entered Into January 23d, 1925, Ratifying and Confirming Contract of December, 1922, Except in Specified Respects, No Mention Being Made of the Amendment of 1923 — Held, That the Better View is That the Terms of the Amending Contract Were Excluded From the New Contract.
    On final hearing.

      Messrs. Connolly & Houston, for the complainants.

      Messrs. Stamler, Stamler & Koestler, forfhe defendants.
   Buchanan, .V. C.

The bill is by vendees for specific performance of a contract to convey lands.

The original contract was made December 19th, 1922, to be consummated “on or before February 19th, 1923.” The premises were to be conveyed subject to an existing fifteen-3rear lease, and there was to be, “on closing of title” an apportionment of the rent under the lease (which lease was to be assigned as a part of the conveyance), and of a certain insurance premium, but not of taxes or other insurance premiums, because they were payable by the lessee under his lease. Another clause again provided that vendees might “enter” on the lands “on the date of closing title,” and from thence take the rents and profits. The vendees were given the privilege to accelerate the date of closing title by giving a three days’ notice in writing. The purchase price was $55,000, of which $3,500 'Was paid down, $16,500 was to be paid “on closing title and delivery of deed,” with a $35,000 purchase-money mortgage of specified terms which need not be recited in detail. There was a stipulation that all of the buildings were wholly within the lines of the lot.

On February 19th, 1923, the following agreement was endorsed on the contract and executed:

“It is mutually agreed that the time for closing title under this contract is extended fifteen days from this date, but all adjustments, upon closing title, shall be figured and allowed as of this date.”

A controversy arose over the fact that the buildings projected over the street line about three inches. Complainant refused to consummate and commenced suit at law to recover the $3,500 paid down, and defendants counter-claimed. Before the suit was tried an agreement was reached which was put in writing and executed on January 23d, 1925, as follows :

•‘It Is agreed this 23d day of January, 1925, between Philip Cohen, of the first part, and Harry Friedman, of the second part, that the contract of December 19th, 1922, is hereby ratified and confirmed in all respects, excepting as follows:
“1. The purchase price is reduced to fifty thousand ($50,000) dollars.
“2. The amount of cash to be paid on closing- title is eleven thousand five hundred ($11,500) dollars.
“The fact that the building or some part thereof is without the lot lines is not to be an objection to the taking of title, and the deed is to contain a covenant to that effect.
“3. Title is to close on or before February 10th, 1925, at the office of Stamlor, Stamler & Koestler, No. 49 Broad street, Elizabeth. New .'Jersey, between the hours of three and four o’clock, and time is of the essence of this contract.
“It is represented that the Schary lease, mentioned in the contract of December 19th, 1922, is still in force and effect.
“In consideration hereof the suit and counter-claim of Friedman v. Cohan,, now pending in the New Jersey supreme court, is to be dismissed, with costs.”

On February 10th the parties met and both sides were ready and tendered performance, with the following exceptions: Complainant claimed that there was a contingent mortgage encumbrance against the property of $1,000, and demanded security against it, which defendants refused to give. Complainants also demanded that the rents be apportioned as of February 19th, 1923, which defendants refused, tendering apportionment as of February 10th, 1925.

Complainants shortly thereafter filed their bill. They pray decree for specific performance, contending that the contract calls for apportionment of rents as of February 19th, 1923, and ask security against the encumbrance. The bill is, perhaps, not so clear on the subject as it might be, but at the hearing complainants stated they were ready and willing to perform according to whatever should be determined to be the true meaning of the contract as to date of apportionment.

Defendants by their answer tender themselves ready and willing to convey “in accordance with the agreement of January 23d, .1925, which calls' for all adjustments to be made as of the date of the delivery of the deed.”

It is clear that the sole controversy was as to the matter of the two years’ rentals (from February 19th, 1923, to February 10th, 1925), to which complainant claims to be entitled under the provisions of the contract. The existence of the alleged encumbrance (against which security was asked) was denied by the answer and not proved at the hearing.

My recollection is that the amount of the rental was not put in evidence, but concededly it is consideraba in excess of the interest on the unpaid balance of purchase price for the same period. Complainant admits, and admitted at the time of tender, his liability for such interest as concurrent with his claim of right to the rental.

The issue is a narrow one. What is the meaning of the contract which the parties have executed? There is no evidence that one part}r meant one thing bjr what was said and the other party another. 1

What they said was, in effect, “we hereby make a new contract, the terms of which are precisely the same as those of tlie contract of December 19th, 1922, except for the following changes and additions” (specifying them).

By “the contract of December 19th, 1922,” did they mean that contract as originally executed, or that contract as amended by the agreement of February 19th, 1923 ?

I can find nothing in the contract of January 23d, 1925, nor in the surrounding circumstances as far as they appear in the case, which definitely indicates the answer to this question. Argument of equal force may be made both ways.

My mind is somewhat inclined to the view that the more natural meaning under the circumstances excludes the amendment of February 10th, 1923, that the parties, in specifying the matter which was to be incorporated into their new contract, would say “the contract of December 19th, 1922, as amended by the agreement of February 10th, 1923,” if that were what they, in fact, meant. However, if the scales remain in equipóse upon the question, the result is the same, for the burden is upon complainant to establish his contention to the contrary. Decree will be advised for specific performance of the contract interpreted as excluding the amendment of February 10th, 1923.

Defendant asked leave at the hearing to amend his answer by withdrawing his offer of willingness to convey, and resisting specific enforcement even on his own construction of the contract, beca,use of complainants’ failure to comply at the time fixed for consummation. This was denied, for tire reason that, although the contract states that time is of the essence, the original tender (in defendants’ answer) of willingness'to convey, proves that time was not, in fact, of the essence. The withdrawal of the tender could not alter the fact that it had been made. Obviously, it would be futile to permit an amendment setting up a defense which must inevitably fail.


author: Buchanan, V. C.

text:
    Raymond A. McCormack, petitioner, v. Frances M. McCormack, defendant. Raymond A. McCormack, petitioner, v. Frances M. McCormack, defendant.
    [Decided May 27th, 1925.]
    Divorce — Adultery—C,usto.dy of Child — Divorce Suit Dismissed, the Evidence Leaving the Jurisdictional Facts Insufficiently Corroborated — Court Convinced That Defendant’s Previous Divorce in Maryland was Procured by Fraud, and Subsequent ■ Marriage Illegal, That Child May be Better Cared For by Father Than by Mother, and Decree For Visitation by Father During School and Custody During Summer is Made, Order to Run Till September, When Matter May Again be Brought Up.
    On. final hearing.

      Mr. Philip M. Chamberlin, for the petitioner.

      Messrs. Oliphant & Mitchell, for the defendant.
   Buchanan, V. C.

These two cases were tried together, the first being on petition for custody of Raymond A. McCormack, Jr., the infant son of the parties (husband and wife, living separate and apart), and the second being a petition fox divorce on the ground of adultery. Defendant contests any award of custody of the child to petitioner on the ground that petitioner is not a resident of this state, and defends the divorce action by setting up a decree of divorce from petitioner granted by a Maryland court.

The jurisdiction of this court in divorce causes its statutory. By our statute, in suits for divorce for adultery, it is made essential to jurisdiction that at the time of the adultery one or the other of the parties was a bona 'fids resident of this state and has so continued down to the commencement =of suit; or that since the adultery, one of the parties has become such resident and has so continued for at least two years next preceding the commencement of suit.

Residence^ under this statute, means legal domicile. Mason v. Mason, 69 N. J. Eq. 292; Rinaldi v. Rinaldi, 94. N. J. Eq. 14.

The petition aleges the residence of the wife in this state at and from the time of the adultery to the commencement of suit.

The legal domicile of the wife is that of the husband — she canot acquire a separate domicile of her own, unless by his consent or by reason of his misconduct. Rinaldi v. Rinaldi, supra; Floyd v. Floyd, 2 N. J. Adv. R. 688; Pennello v. Pennello, 3 N. J. Adv. R. 792.

The evidence does not show any facts warranting a finding that defendant had a domicile separate from that of the petitioner. Rather does it indicate the contrary. It appears that each sought divorce, by petition and counter-claim, in a suit in this court about five years ago; that both petition and counter-claim were dismissed ; that the husband immediately asked the wife to resume cohabitation, and made an appointment with her to discuss the situation; that she did not keep the appointment, but fled to Maryland with the child and kept their whereabouts concealed from the husband for several years.

Having obtained a decree of divorce from a Maryland court she returned to Trenton about July 1st, 1921, went through a ceremony of marriage with Welker, and lias ever since been living here with Welker as man and wife — which is the adultery charged.

The decree in the earlier suit dismisses petition and counter-claim simply for failure of proofs in support of their respective allegations; but whether the proofs were edefective as to jurisdictional facts or as to grounds for divorce does not appear in 'the decree. It does not appear in the present suit whether "or not, prior to that decree', the wife had acquired a separate domicile or the right thereto.

Coming, then, to the husband’s domicile, it appears that his home was originally in Trenton; that the matrimonial domicile was in Trenton; that his mother and sister live here (his father is dead); that for several years past the husband’s business has been in New York, and that he has lived in hotel rooms or apartments in New York' during the week, spending the week-ends every week or two with his mother in Trenton, and occasionally in the middle of the week; that he has bought a house on the Long Island shore for investment or speculation, with the intent to occupy it during the summers until he sells it.

As to the intent accompanying his actual residence in New York, there is practically no testimony whatever. He says that Trenton is his home, and the rooms in New York are merely a place to live while there; but there is no testimony as to the intent with which he orignally left Trenton or commenced his living in New York. His petition in the divorce suit recites that he is “of the city of New York,” &c. His petition in the habeas corpus proceeding (filed a little earlier) recites that he is “of the city of Trenton,” &c. He files his income tax return in New York. He says he has his United States army mail sent to him in Trenton, and votes in Trenton. This latter is of weight, but there is no corroboration. Corroboration is necessary. Williams v. Williams, 78 Atl. Rep. 693.

Counsel for the husband contends that, in fact, the dismissal of the petition and counter-claim in the prior suit was because the proofs showed the parties were living separately by consent; that this is res adjudicada in the present case; that because of such consent by the husband the wife could— and in fact did — acquire a separate domicile in Maryland, and later a domicile of her own in Yew Jersey, which is sufficient to give jurisdiction in the present case.

The difficulty is that the decree in the prior suit does not adjudicate that the parties were living separately by consent. That decree simply dismisses the petition and the counterclaim, and the only adjudication of fact therein expressed is that the proofs of the petitioner were insufficient to support the allegations of the petition and the proofs of the defendant were insufficient to support the allegations of the counterclaim. Manifestly, it is not a necessary inference or conclusion from this that the court must have found that the parties were living separately by consent. It would be equally as possible an inference that the decree was the result of a finding that the separtion had not continued for two years, or that the jurisdictional requisites had not been proven, or any one of several other possibilities. -

The burden of proof is upon the petitioner to establish the jurisdictional facts by satisfactory evidence and corroboration. The evidence in the present case leaves the matter in doubt, and I am constrained, therefore, to dismiss the petition for lack of sufficient proofs on this statutory requisito. Williams v. Williams, supra; Mason v. Mason, supra.

There remains the question of custody of the child, who is a hoy of seven or eight years old.

I am entirely satisfied from the evidence that the Maryland decree was procured by fraud, and that it is invalid in this state. It follows, of course, that the wife’s cohabitation with Welker is adulterous.

The wife and Welker are both employed during the day, and the child is chiefly in the care of the maternal grandmother. Petitioner was denied access to the child before the trial in the prior suit, and as has been already noted, was deprived even of knowledge as to his whereabouts by the wife’s flight and concealment four years ago.

The child has been taught to call Welker “Daddy.” So far as the “rights” of the parties are concerned, the petL tioner’s claim is superior, under the circumstances. It is the boy’s welfare, of course, which is the paramount consideration.'

Aside from the questionable character of his present surroundings, the boy has a right to the affection, association and companionship of his father — of which he has been deprived in the past to his detriment. The father’s income is several times larger than the combined income of defendant and Welker — he is amply able to give the child proper care and surroundings. His affection for the boy is evident, and it further appears that the paternal grandmother and aunt are fond of the boy and will contribute by their efforts to his well-being.

It would not be well to make too sudden a .change. Eor some months past the- father has had weekly visits with the child, under the order of this court, and more recently has been allowed to have the child over night on alternate weekends-.

Henceforth, these week-end visits may be weekly, instead of alternate weeks, until the close of school. Thereafter, and during th summer, the father may have the boy, and may take him to the summer home in Long Island if he desires,with proper provision for occasional visits to or by the mother. I do not deem it wise at the present time to provide for farther in the future. These decrees are always subject to modification under changing circumstances, and the order now to be made can run until September, with a day certain to be fixed when the matter can be again brought before the court and a further determination made upon the basis of the circumstances as they then exist.

The petitioner will be required to give’bond in the sum of $3,000, conditioned for obedience to all further orders of the court in the matter. The wife is already under ne exeat bond.


author: Buchanae*, Y. C.

text:
    Maud Grafner, complainant, v. Emil Grafner, defendant.
    [Filed May 26th, 1925.]
    Divorce — Maintenance—Custody of Children — Couple Originally Separated by Mutual Consent, Husband Paying For Children’s Maintenance — Mother Afterward Turned Children Over to Father — Abandonment Not Shown Nor Ability to Care For Children as Weil as They Are Now Cared For in a Children’s Home.
    On final hearing.

      Mr. Charles J. Falcey, for the complainant.

      Mr. Maxwell Kraemer, for the defendants.
   Buchanae*, Y. C.

The bill is for maintenance, under the statute, and for custody and maintenance of two children of the marriage, now in the custody of defendant.

The evidence in this suit is that the couple separated in .1923 by consent or acquiescence, with an arrangement whereby the wife was to keep the children and the husband was to pay .$15 per week, plus some furniture installments, for the support of al]; that although the wife later turned the children over to the husband, there was no offer or effort on her part to return to him or terminate the separation until within the last few days. (She, it is true, testifies to an earlier effort, but he denies it and gives an entirely different version of her visit. Neither is corroborated, and she fails to sustain the burden of proof.) Her offer, last week, to return to him was coupled with two conditions — (1) that he submit to a physical examination, and (2) that he assure her that he would “keep his hands off” her. The evidence. fails to show justification for either of these conditions.

Complainant, therefore, has failed to show abandonment. Indeed, her counsel announced at the close of the hearing that she was self-supporting, and asked no support for herself ; that she asked the custody of the children and support for them.

In this status the proceedings is simply one to procure a modification of the decree in the previous suit on habeas corpus for the custody of the children (Docket 55 p. 882) determined about a j^ear ago. This question is not without difficulty, but the burden of proof is upon the complainant, and I cannot feel that the children would be better off (or, indeed, as well) in the environment that she proposes than they are now. She has three rooms in an apartment-house in the centre of town, one occupied by a lodger, a nurse, and her mother lives on the floor above. . The wife would be absent, at least, half of -each day, and the wife’s mother is out at times; the nurse’s presence, of course, would be sporadic on account of her engagements. The wife says she would leave the children in a day nursery when she was compelled to be absent and no one else at home to take care of them. Even if the wife had shown herself more solicitous about the children’s care than she has in the past, such an arrangement would, of necessity, subject the children to great irregularity and change. At present, though in a children’s home, they are properly kept and cared for, visited by the parents, and have trained supervision and opportunities for fresh air and play which they would not have with their mother in this apartment. I cannot feel that any change should be made at present.


author: Pee Clbiam.

text:
    HERMAN G. MULOCK, PLAINTIFF, v. B. GEORGE ULIZIO, DEFENDANT.
    Decided May 27, 1925.
    Alienation of Wife’s Affections — Defendant Assigns Seven Reasons For Making Rule Absolute — Reasons and Evidence Examined and No Ground Found For Either Setting Aside or Reducing Amount of Verdict.
    On defendant’s rule to show cause.
    Before Justices Kalisch, Black and Campbell.
    Eor the rule, Bolte, Sooy & Gill (G. L. Cole, of counsel).

      Contra, John C. Reed (Robert II. McCarter, of counsel).
   Pee Clbiam.

A verdict for the sum of $35,000 was obtained by the plaintiff against the defendant in this court, at the Atlantic Circuit, in an action brought by the former against the latter, for alienating the affections of the plaintiff’s wile.

The defendant obtained a rule to show cause, and assigns the following reasons relied upon for making the rule absolute :

1. The verdict is contrary to the weight of the evidence.

3. The verdict is manifestly the result of errors, prejudice and passion.

3. The verdict is excessive.

4. The court erroneously admitted evidence over the objection of the defendant, and erroneously refused to admit evidence offered by the defendant.

5. The court refused to charge, as requested, defendant’s request to charge.

6. The court erroneously charged that, under the evidence, punitive damages might be awarded.

7. The court erroneously charged that the fact that there might be no love between the plaintiff and his wife constituted no defense in favor of the defendant.

Later, the defendant assigned and filed fifty reasons which are denominated amended reasons, which include the reasons above stated, but with more specificness, as is required.

In the brief reasons one, two, three and four are argued together. Eeason four was amended so as to read: “The verdict of the jury is contrary to the charge of the court.” These reasons require a consideration of the evidence adduced in the cause. Counsel of the defendant in his brief says: “The urgent reasons for a new trial are that the verdict is excessive and against the clear weight of the evidence.”

The substance of the plaintiff’s complaint is that the defendant contriving and wrongfully intending to injure the plaintiff, and to deprive him of the society and services of his wife, and to alienate and destroy her affection for him, unlawfully gained her affections; that he wrongfully enticed and procured the plaintiff’s wife, unlaAvfully and against the plaintiff’s will, to depart and remain absent from the plaintiff’s home and society; that the defendant also wrongfully, and 'against the plaintiff’s will, received, harbored and detained the plaintiff’s wife; that thereby he lost the society and services of his wife.

A careful reading and consideration of the evidence leads us to the conclusion that the jury was warranted in finding that the defendant had alienated the affections of the plaintiff’s wife and broken up his home.

Although the acquaintanceship between the defendant and the plaintiff’s wife had its origin in a casual introduction through the plaintiff’s son and not by the defendant’s seeking, it brought with it in its results, according to the testimony, an end to the plaintiff’s peace and domestic happiness. The defendant was invited by the plaintiff to take his meals with the latter’s family instead of eating at restaurants. This the defendant did for a short time and then ceased, for the reason that he, being a married man, and there being grown-up daughters of the plaintiff in the household, his visits might cause censorious talk. The acquaintanceship between the defendant and the plaintiff’s wife, innocent enough in its inception, ripened in a short time into a friendship, with hypnotic affect on her conduct. It appears that shortly after the defendant’s acquaintance with plaintiff’s wife began, the defendant separated from his wife to whom he had been married only for a short time. He made costly presents to the plaintiff’s wife and gradually gained complete control over her, to the extent that she welcomed his visits and shunned those of her husband, confided in the defendant and followed his advice and direction in preference to that of her husband. The testimony discloses many facts and circumstances from which the only reasonable inference can be that the defendant had assiduously and insiduouslv labored to eradicate the last grain of respect and affection that the plaintiff’s wife had for her husband. The defendant’s conduct, according to the testimony, towards the plaintiff’s wife was of such a character as to lower her respect for her husband, and to raise himself, the defendant, in her esteem and affection.

The jury was warranted in finding from the evidence that the house in Pine Valley was the defendant’s choice for the plaintiff’s wife’s residence and was under his control and management, and was maintained at the defendant’s expense; that he visited there frequently and maintained the plaintiff’s wife there.

The jury awarded $25,000 damages, which sum is claimed to be excessive and the result of passion and prejudice.

First, it is argued on behalf of the defendant that there was no alienation or affection for the reason that, because of the husband’s conduct towards her, she had no affection for him. She was a witness for the defendant and testified to alleged cruelties on part of her husband and toward her during her twenty-four years of married life. But even if this be so, it was not a complete defense to the plaintiff’s action, for he was entitled to recover damages for the loss of consortium and the services of his wife. Dey v. Dey, 94, N. J. L. 342; Davenport v. Holden, 95 Id. 197.

Moreover, the plaintiff was not only entitled to recover compensation for the loss of the society and services of his wife, but punitive damages also, the amount of the latter resting largely in the sound discretion of a jury. We cannot say, after a careful perusal of the evidence, that the jury, in arriving at the result in this case, was influenced by prejudice, passion or partiality, and, therefore, the verdict, in this regard, will not be disturbed.

It is argued under point one, in the brief of defendant’s counsel, that the verdict should be set aside because there was prejudicial error in the overruling by the trial judge of the following question put by defendant’s counsel to the defendant on his direct examination: “Q. At that time were you trying to get them together ?” The defendant was testifying to a visit made by him, accompanied by the plaintiff to the plaintiff’s wife, and to conversations had with her regarding differences existing between herself' and her husband, and to acting in the role of a peacemaker between the couple, all of which the defendant said he did at the instance of the husband. It is quite clear that the.question, as put, sought the conclusion of the defendant predicated on his own acts and conversations had with the plaintiff’s wife, which was the jury’s province and not that of the witness, and, therefore, the question was propertly overruled.

Counsel of defendant then asked the defendant this question : “The question was asked Mr. Muloclc as to the conversation between his wife and himself on the occasion when you were there, and he stated that, in substance, that you said you didn’t think it was proper for her to take three months to consider the matter, with what I think was the possible inference or implication that you were trying to keep them apart rather than to have them come together. I ask you which it' was you were trying to do?” This question was overruled, and, we think, properly so.

The legal impropriety of this inquiry is palpable. It not only asks the witness for his opinion whether or not counsel of defendant has drawn a proper inference from the plaintiff’s testimony as to what took place and was said, when the plaintiff and defendant visited the plaintiff’s wife together, but also to what inference he, the defendant, drew from his own conduct and conversations with the plaintiff’s wife.

The defendant was then asked by his counsel: "Q. What were you trying to do when you made the statement to Mrs. Unlock?” The question was objected to by counsel of plaintiff, and a colloquy ensued between the court and counsel and the inquiry was not further pursued, nevertheless, it is presented as one of the reasons why the verdict should be set aside. It does not appear that tbe question was overruled, and a fair inference from tbe record is that it was abandoned.

Next, under point two of defendant’s brief, it is argued that the court erred in refusing to charge the defendant’s request, which was as follows: “The jury would not be warranted in finding a verdict against the defendant on any one of the allegations contained in the complaint, based upon any act or transaction occurring before July 9th, 1923.”

This request was properly refused. There was evidence of gifts made by defendant to the plaintiff’s wife prior to that Erne, and even though the plaintiff was aware of that fact, and did not object, is no legal reason why those facts may not be considered by a jury on the question whether or not ike defendant made these gifts for ulterior and improper motives, which were hidden from a confiding husband.

Under point three it is urged that the court erred in refusing to charge the defendant's request, which was as follows: “There is no direct evidence to support any of the causes of action set forth in the complaint, and there can be a recovery against the defendant only if the jury, by drawing reasonable inferences, can find that the fair weight of the evidence proves the allegations.”

The court had fully charged the legal rule on this phase of the case, and it was not a duty incumbent upon the judge to charge in the form of the request presented by counsel. . Consolidated Traction Co. v. Chenowith, 61 N. J. L. 554.

We have examined the reasons presented under points five and six and find them destitute of merit.

The rale to show cause is discharged, with costs.


author: Miktukk, J.

text:
    THE STATE v. GEORGE KUCHLER.
    Decided May 26, 1925.
    Crimes — Murder—Indictment—Application For Bail — Deposition of Defendant Containing Facts Which Might be Evidential of Self Defense — Presumption That Charge of Murder is For Murder in Second Degree, Does Not Apply in Applications For Bail — Indictment Furnishes No Presumption of Guilt at Trial, in Intermediate Proceedings, It Furnishes Strongest Possible Presumption.
    Eor the state, John Milton, Hudson county prosecutor.
    Eor Kuchler, Alexander Simpson.

   The opinion of the court was delivered by

Miktukk, J.

This is a writ of habeas corpus upon a.n application for bail to an indictment for murder.

The defendant is in custody under the indictment; his counsel moves to have him released on bail upon the ground of lack of “proof evident or presumption great” of the commission of a capital offense. In support of the motion a deposition was submitted in which the defendant admitted the killing and his indictment thereof for murder, and in which he testified to facts which might be evidential upon his trial in support of defense of self-defense.

The presumption that a charge of murder is for murder in the second degree, not punishable capitally, does not apply in applications for bail. In such applications the test to be applied as to whether or not the offense is a capital one, is simply that the inquiry as to the offense charged being one for which capital punishment may be imposed.

An indictment furnishes no presumption of guilt against the accused upon his trial, but as to all intermediate proceedings it furnishes the very strongest possible presumption of guilt. In the absence of special or exceptional circumstances, evidence will not be considered to rebut this presumption of guilt, because the court cannot inquire into the merits for the reason that the evidence upon which the indictment is found is not in writing and cannot be disclosed; the court will therefore presume that the facts upon which the grand jury based its conclusion were sufficient in law to support it. State v. Goldstein, 40 N. J. L. J. 71.

The defendant, not being entitled to hail as a matter of constitutional right, his application will be denied.


author: Per Curiam.

text:
    ELMER E. CASE, PLAINTIFF, v. OUR LADY OF MT. CARMEL SOCIETY, INCORPORATED, A CORPORATION, DEFENDANT.
    Submitted April 3, 1925
    Decided May 26, 1925.
    Contracts — Construction’—Alleged Lack of Workmanlike Compliance by the Complainant — Judgment For Complainant Alleged to Have Been Against Weight of Evidence! — Question Close, But No Evidence to Indicate Either Prejudice, Passion or Mistake on Part of Jury.
    On defendant’s rule to show cause why plaintiff’s verdict should not be set aside.
    Before Justices Tkenchakd, Minturu and Lloyd.
    Eor the rule, Jacob R. Mantel.

      Contra, John T. Van Riper.

   Per Curiam.

This is defendant’s rule to show cause why a verdict in favor of the plaintiff should not be set aside.

It appears that Case, the plaintiff, was a contractor, and he contracted with the defendant society to do the labor in the building of a dance hall building, the defendant to furnish the material, and plaintiff brought this suit to recover the balance of the contract price, and agreed price of extras.

The defendant answered admitting the contract, but denying that the work was done in a workmanlike manner, and counter-claimed for damages on account of plaintiff’s failure to properly do the work.

The case was tried before Judge,Daly and a jury at the Morris Circuit, and resulted in a verdict in favor of the plaintiff for the full amount of his claim.

The first point is that the verdict was contrary to the weight of the evidence. We are inclined to think that if we had been on the jury we might have found differently, and yet we think the testimony upon the question of whether the work was done in a workmanlike manner was fairly close.

The plaintiff and his foreman, apparently a frank and intelligent witness, together with three or four of the plaintiff’s workmen, and Rogers, a building inspector, seem to support the plaintiff’s claim as to the workmanlike character of his work.

True, on the contrary, several members of the defendant society, and several apparently disinterested experts, testified that the work was not done in a workmanlike manner.

The difficulty arose largely by reason of the fact that the plaintiff had nothing to do but to properly do the work, whilst the defendant had the responsibility of furnishing the materials. Plaintiff’s answer to the criticism respecting the condition of the roof was that the shingles were of poor quality and split, and that the roof had to be gone over with care to make it reasonably satisfactory, which was done. Plaintiff’s answer to the complaint as to the condition of the walls and ceiling was that the lumber supplied to him was not uniform and was of poor quality. His answer to the comr plaint about the pitch of the -stage was that a pitch is customary in the construction of a theatrical stage.

The result of our careful examination of the evidence is that we cannot say that this verdict is so clearly against the weight of the evidence as to indicate prejudice or passion or mistake.

The contention that the verdict is contrary to the charge of the court we find to be without substance.

The rule will be discharged.


text:
    JOSEPH COLUCCI ET AL., PLAINTIFFS, v. NATIONAL EQUITABLE INVESTMENT COMPANY, INCORPORATED, AND E. H. SPENCE & COMPANY, INCORPORATED, DEFENDANTS.
    Argued March 24, 1925
    Decided May 26, 1925.
    Practice — Order of Chief Justice — Rule to Show Cause Why Order Should Not be Set Aside — Question Whether Chief Justice Acted as a Justice or as a Branch Court by Consent —From Examination of Record It is Apparent That the Order Signed is an Order of Supreme Court and Reviewable Only by Appeal.
    Oil motion to vacate attachment, &c.
    Before Justices Trenchard, Minturn and Lloyd.
    For the motion, Robert Carey and Harry Lane.

      Contra, George W. McCarter.

   Per Curiam.

The defendant Yational Equitable Investment Company, Inc., gave notice that it would “move before the Yew Jersey Supreme Court for a rule to show cause why the rule signed by the Chief Justice denying the motion for an order vacating and quashing the order for and writs of attachment issued in the above-entitled cause should not be set aside and vacated, and an order granted vacating and quashing the said order for and writs of attachment; or, in the alternative, shall move at said time and place, for an order vacating said order of the Chief Justice, and vacating and quashing the said order for and writs of attachment, issued in the above-entitled cause.”

The plaintiffs object to the present motion upon the ground (among others stated in the brief) “that the Chief Justice acted, not as a justice, but as a branch court by consent,” and this, it seems, the defendant does not deny in its brief. .

Turning now to the record we make the following observations :

The notice of the original motion, was entitled in the Supreme Court, and was broad enough in its language to indicate either a motion before the Chief Justice or. a motion before the Supreme Court.

The order signed by 'the Chief Justice, after hearing the motion, was entitled in the New Jersey Supreme Court, and recited that it was heard by "the court ” and ordered that the motion be denied, and that the rule denying this motion be entered in the .'minutes of the court.

In this 'situation it seems quite plain that the Chief Justice was acting as a branch court by consent.

Our conclusion, therefore, is that the order "signed by the Chief Justice is the order of the Supreme Court, and is reviewable only by appeal. Dubelbeiss v. West Hoboken, 81 N. J. L. 98; Hanford v. Duchastel, 81 Id. 205.

This conclusion is in harmony with, but is not dependent upon, the undenied assertion of consent in the briefs.

The present motion will be denied.


author: Buchanan, Y. C.

text:
    The Sarco Company of New Jersey, a corporation, complainant, v. Alta R. Gulliver, defendant.
    [Decided June 10th, 1925.]
    Good-wil! — Contract Between Employer, Public Stenographer and Reporter, With Defendant, For Services, the Terms of Which Are Set Out at Length, Including Agreement Not to Work Within Limited Territory For Five Years After Termination of Employment, Except on Certain Terms — Negative Covenants of Kind in Question Enforceable — Agreement Not Difficult to Comprehend — 'Not Against Public Policy— Not Harsh or Unreasonable.
    Oil filial hearing.

      2Iessrs. Perlman & Lerner, for the complainant.

      2Ir. George W. Macplierson, for the defendant.
   Buchanan, Y. C.

Complainant’s business consists, inter alia, of taking stenographic reports (and furnishing transcripts thereof), of court trials and proceedings of various commissions, departments and organizations, through stenographic reporters in its employ or furnished by it. Defendant was formerly in complainant’s employ as such a stenographic reporter, under a written contract of employment which contained a negative covenant by defendant restricting her right to employment or activity in competition with complainant, within certain territory for five jrears after the termination of the employment.

Complainant sues to enforce that covenant and restrain defendant from violation thereof, and for an accounting and payment of amount due complainant under the terms of the contract.

The contract was made December 1st, 1931, and reads as follows (omitting formal parts) :

■‘1. That in consideration of the employment of the party of the second part by the party of the first part as hereinafter set forth, the party of the second part does bind herself and agree to and with the said party of the first part that she will, as and when requested by the party of. the first part, while in its employ, from time to time, perform for the party of the first part such services as may be required by said party of the first part as court reporter.
“2. That the compensation for such services shall be a commission of seventy-five [75] per cent, of the gross amount received for attendance fees and transcript sales; and the said party of the second part .shall draw upon said commission at the rate of seventy-five dollars [$75] per week, or in such other amount as may, from time to time, be mutually agreed upon between the parties.
“The said party of the first part agrees to take all necessary and proper means to enforce prompt payment of all accounts due to it in which the party of the second part has an interest, and further agrees that when payment is made to it, it will turn over to the party of! the second part her share of the amount paid, provided the party ofi the second part has not already drawn said moneys through her drawing account.
“3. It is further agreed by and between the parties hereto that all expenses incident to attending hearings and furnishings transcripts, including traveling expenses [where same is not borne by the party ordering such service], testimony papers, covers, carbon paper, typewritten ribbons, fasteners, &e., shall be borne by the party of the second part; and that the party of the second part shall be supplied without cost to her, with a suitable office and such furniture as is now contained in the present reporters’ office and a typewriter in satisfactory condition.
“4. The party of the second part further agrees that if, while she is connected with the- party of the first part, there should come to her, directly or indirectly, any employment to act as court reporter, that the said party of the second part shall perform such work and service, and such work and service shall be considered as having been received from the party of the first part, and be subject to such terms as to commission and expenses as if such work had been procured by the party of the first part, as above set forth. This clause, however, is not to conflict with any of the conditions set forth in paragraph nine of this agreement.
“5. The party of the second part further agrees that she will not at any time before the expiration of the term of five years hereinafter mentioned in paragraph seven of this agreement, after the severance of her connection with the party of the first part, perform any reporting work in the territory of the party of the first part, viz., ■■within a radius of fifty [60] miles of the city of Trenton, with the exception of the cities of Philadelphia and New York, except subject to the terms of this agreement; and should the party of the second part so sever her connection with the party of the first part and accept such work and receive full remuneration therefor, provided such work obtained by her is to be performed within the State of New Jersey, or for any clients of the party of the first part, who were such clients at or prior to the time of severing connection between the parties hereto, such -business shall be turned over to the party of the first part at the usual exlchange rates, which are twenty-five per cent, of attendance fees and testimony if done- by the party of the first pari, and seventy-five per cent, of attendance fees and testimony if done by the party of the second part.
“6. The party of the second part hereby agreesi to execute a bond to the party of the first part, upon its request at any time for the sum of one thousand dollars I $1,000] for the faithful and equitable performance by lier of all the terms and conditions of this agreement, said bond to be obtained at the expense of the party of the first part. Recovery from the bondsman of any sum shall not stop the party o£ the first part from prosecution of any other remedies or relief by injunction.
“7. The said party of the second part further agrees with the said jmrty of the first part that if at any time she should sever her connection with the party of the first part, she will not enter into any business, personally or through any company or corporation, within the aforesaid territory, which will conflict with tlie interests of the party of the first part, for the period of five years after the discontinuance of her employment by the said party of the first part.
“8. It is further agreed that if there should come to- the party oil the second part, through her association with the party of the first part, any opportunity to act as official court reporter either by civil service appointment or otherwise, for which a salary is paid and where transcripts may be sold in addition, the parties hereto shall agree to and with each other what shall be a fair division of such salary and receipts.
”9. It is further agreed by and between the parties hereto that the employment of the party of the second part may be terminated by either party upon the giving of a three months’ notice in writing from either party to the other.”

There is little dispute as to the material facts. The proofs show that complainant is in the business above mentioned; that it was incorporated in 1919 as the successor to, or reorganization of, the Stenography and Reporting Company, which had carried on a similar business for some years before under the same management; that defendant had applied for and received from the original company in 1912 employment as a stenographer; that she had not theretofore acted as a reporter of such trials or proceedings; that complainant (and its predecessor company before it) had an extensive business and 'good-will or clientele in that line of business; that complainant’s predecessor had introduced defendant into the work of reporting for it. such trials and proceedings; that from the nature of the work defendant was brought into close personal contact with, and knowledge of, complainant’s clients or customers, complainant’s contact with such customers being largely through the reporter actually doing the work; that defendant continued in the employ of the complainant’s predecessor and complainant until September 1st, 1924, the employment subsequent to December 1st, 1921, being under and pursuant to the contract of that date; that in March, 1924, defendant gave written notice to complainant to terminate the employment, which was terminated September 1st, 1924; that complainant had reminded defendant of the continuing effect of the negative covenant; that in August, 1924, defendant, herself, or by her agents, told complainant the contract was no good, and that was why defendant had signed it, though she had not said so when she signed it; that since September 1st, 1924, defendant has done work and received employment without making payment to complainant in contravention of the terms of the contract and claims to be entitled so to do

The only thing as to which there was airy real conflict of testimony was as to the character of the office furnished defendant by complainant in performance of its contractual obligations (paragraph 3) from the spring of 1922 until August, 1924, which will be mentioned hereafter.

It is entirely settled that negative covenants of the kind in question, ancillary to contracts of sale or of employment, are valid and enforceable, if reasonable in their terms. Flickenstein Brothers Co. v. Fleckenstein, 76 N. J. Law 613; Owl Laundry Co. v. Banks, 83 N. J. Fq. 230, and numerous other cases in this state. The most recent pronouncement is in Nachamkis v. Goldsmith, 3 N. J. Adv. R. 698 (at p. 701), where the court of errors and appeals reiterates “that an agreement not to engage in or pursue a particular business or profession, when made on a good consideration, with one whose business interests it is to prevent competition, is valid, if restrained within reasonable limits, is too well settled to be regarded as an open question.”

Defendant’s counsel does not seek seriously to controvert this, but argues that the “contract” here is unreasonable and against public policy for several reasons, tiie first of which is that the contract has no time limit. This argument is difficult to comprehend. The contract of employment, it is true, has no time limit as to its duration (except that it might he terminated on three months’ notice), but complainant is not seeking to compel defendant to work for it. It is the negative covenant that is sought to be enforced, and that has a time limit of five years.

Five years is the period of limitation fixed in the most of these negative covenants. So many covenants with a five-year limitation have been upheld and enforced in this court, that the question of the reasonableness of that period needs no further argument, especially when considered in conjunction with the facts of this case — the character of the business, the length of time complainant and its predecessors had been building up the business, and the unlimited period of complainant’s corporate existence.

It is next argued that “the provisions for termination does not relieve defendant of the terms,” but she is compelled to work for complainant for five years further on less advantageous terms. This argument is also difficult to understand. It is not in accordance with the facts. Defendant, under the terms of the contract, is not compelled to work for complainant. She is prevented for five years from working in competition with complainant, but may, if she choose, do work during that tizne, and receive the same pay as theretofore, the only difference being that she provide her own typewriter and her own room to typewrite These differences are, obviously, not great, and, on the other hand, she need only work when and so long as she desires. In this particular the negative covenant is far less exacting on defendant than the majority of such covenants, which usually proLibit all work in competition in certain district and for a certain time.

It is also contended that the territory is too wide, and, hence, the provision is unreasonable. In view of the uncon„tradieted evidence, and the admissions of defendant, that complainant’s business covers, not only the State of New Jersey and the cities of New York and Philadelphia, but also many cities over a large part of the United States, this contention of fact must be regarded as disproved.

A question of interpretation of the meaning of Jhe restrictive covenant arises in this connection. The covenant (paragraph 5 of the contract) provided that defendant shall not perform reporting work within a radius of fifty miles of the city of Trenton with the exception of the cities of Philadelphia and New York, “excepting subject to the terms of this contract.” This latter clause can only refer to the succeeding povision of the same paragraph, which says, in effect, that she may accept “such work,” but shall turn over to complainant twenty-five per cent, of the fees for attendance and testimony, “if such "work is to be performed within the State of New Jersey,” or for former clients of complainant. The words “such work” (in the provision which permits, her to accept “such work” on the terms stated) evidently must refer to the prior-mentioned reporting work within a radius of fifty miles of Trenton, excepting New York City and Philadelphia The contract is to be considered most strongly against the complainant, and upon that principle it would appear that the meaning of the whole covenant is that defendant will not, for the five-year period, perform reporting work within the city of Trenton and within such part of the State of New Jersey as is within a radius of fifty miles from Trenton,-nor outside the State of New Jersey within such radius (excepting New York City and Philadelphia) for persons who were clients of complainant at or prior to the termination of defendant’s employment, without turning over to complainant twenty-five per cent, of the fees received therefor; and, conversely, that for all such work which defendant does perform she will turn over to complainant such portion of the fees.

Defendant contends the contract is against public policy because of the clause which provides that, if defendant obtains an appointment to an official position as reporter, the parties shall agree on a division of the fees. Aside from the fact that this clause amounts to nothing, for there is no way to compel an agreement as to division of fees, it is sufficient to point out that that clause is separate from and independent of the covenant in question, and is not sought to be enforced. Hence, it does not militate against the enforcement of the covenant in question. Cf. Fleckenstein v. Fleckenstein, supra; Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507; Erie Railroad Co. v. Union Locomotive Co., 35 N. J. Law 240;- Stewart v. Lehigh Valley Railroad Co., 38 N. J. Law 505.

The next point made by defendant is that defendant’s ser- \ ices are not of a kind requiring unique skill and ability. Tt would seem that counsel is confusing this case with the class of cases where injunction is sought against the violation of a covenant to perform services. There is nothing in the law as to the enforcement of these negative covenants, so far as I am aware, which makes unique skill or ability a factor in the case. It is simply a question of reasonable protection to the employer (or vendee of a business) against competition by the covenantor who has received consideration for the covenant. Cf. American Ice Co. v. Lynch, 74 N. J. Eq. 298; Owl Laundry Co. v. Banks, supra; Eureka Laundry Co. v. Long, 35 L. R. A. (N. S.) 119, and note on p. 120.

Defendant next urges that reporting work constitutes only one-sixth of the total business of complainant, but is the whole of defendant’s business, so to speak, and that the damage to defendant from the injunction would be far greater than the damage to complainant by denying the injunction, hence the injunction should be refused. I am unable to perceive what the cited percentages of the respective business have to do with the question at issue, and, furthermore, the premise as to the damage to defendant is ■unsound. As has already Peen. pointed out, the 'damage to her is slight; she is not prevented from emplojunent even in the restricted area, if she pays to complainant the same percentage as was in effect during her actual employment, the only difference being the furnishing of her own typewriter and room -(which might bé in her own home). If what defendant really means to argue is that the contract will not be enforced if harsh or unreasonable, the answer is that, as has already been noted, the covenant is neither harsh, oppressive or unreasonable as regards defendant, nor is .it unreasonable or beyond the reasonable requirements of due protection to complainant’s business. Nachamkis v. Goldsmith, supra.

Defendant further contends that the covenant is unreasonable, in that it binds defendant for five years irrespective of whether complainant shall so long continue in existence and in the reporting business, citing Mandeville v. Harman, 42 N. J. Eq. 185 (at p. 191). That case was entirely different from the case at bar. It was the case of a physician (physicians in this country being unable to build up a good-will which can be transferred), and there was no time limit on the negative covenant, which was therefore held not to be within reasonable limits, and, therefore, void. In the present case complainant has a good-will, as is apparent from the evidence, and that good-will might be transferred to an assignee on a sale of complainant’s'business, and its value be a material factor in the consideration for the sale. There seems no doubt, especially in view of the decision in Scherman v. Stern, 93 N. J. Eq. 626, but that this argument of defendant is untenable.

Another argument put forward b.y. defendant’s counsel is that the covenant is without adequate consideration, citing Marvel v. Jonah, 81 N. J. Eq. 368 (at p. 373). That case in nowise supports his contention. The covenant there was a part of a partnership contract, and Vice-Chancellor Learning expressly says “it is impossible to here determine that the benefits and disadvantages flowing from its mutual covenants were inadequate.to support the engagement of defendant to refrain from practice at the place and during the time specified at the termination of the partnership.” Of course, it is true that a valuable consideration for the covenant is necessary,, but that consideration is found in the contract itself, the mutual covenants being mutual considerations. The covenant is a part of a contract, as in almost all of the numerous cases of this kind, and it is never required that a separate and distinct consideration for the particular restrictive covenant be shown, as indeed is set forth in the Marvel Case (at p. 878). That there was a valuable consideration moving to defendant in the present case is evident on the face of the contract, the employment of defendant and remuneration to he received by her therefor — employment which was sufficiently profitable to her for her to continue therein for some three and one-half years.

The answer also sets up in defense allegations that complainant did not perform the contract on its part, in that it did not turn over to defendant promptly the moneys due her, and did not furnish her with the required furniture or suitable office in which to work. Evidence is entirely lacking in support of the allegations as to the moneys and the furniture. Defendant herself testified as to the failure to supply -suitable office, but the defense cannot he sustained either in fact or in law. The office of which she complained was one into which complainant moved her in the spring of 1922. She occupied it until she left at the end of August, 1924, with the exception of a period of some three months, about August, 1923, when she was ill with neuritis. It is evident that the office was not as good as the one previously supplied her, hut, on the whole evidence (and the burden of such affirmative defense is on defendant), I am unable to say that it was not a suitable office, under the contract. Since her leaving it has been occupied hv others doing similar work, who testify it is satisfactory, and, although it appears defendant made some complaint while she was there, she never attempted to rescind or terminate the contract by reason thereof, nor to occupy another office and charge the expense to complainant, and her actual leaving and notice thereof was not put upon the ground of the alleged failure to supply suitable quarters. Her statement that the condition of the office caused her neuritis cannot be considered, for there is nothing to show that she had any medical skill or knowledge. Moreover, the defense could not avail as against the restrictive covenant, for the two covenants are hot interdependent.

It is set up in the brief that defendant’s necessity for employment compelled her to accept the contract regardless of danger of imposition and oppression. There is no evidence whatever of this, even if it were a valid defense, and it has already been shown that the enforcement of the contract is not an imposition or oppression upon her.

It is also set up that the-effect of an injunction would be equivalent to ordering defendant to work for complainant. This, of course, obviously is not so.

It seems entirety clear that, under the contract, the admissions and the evidence, the equities are with complainant, and complainant is entitled to decree restraining defendant from interdicted employment hereafter unless she performs the condition of payment, and for an accounting and payment of such amount as is thereby found due, for the complainant’s share, under the covenant, of the remuneration received- by complainant for the work heretofore done by her in the stricted area.


author: Per Ctjrtaji.

text:
    JOHN J. DARCY, PROSECUTOR, v. TOWN OF WESTFIELD ET AL., DEFENDANTS.
    Argued February 19, 1924
    Decided May 27, 1925.
    Officers — Dismissal of Policeman — Motion to Dismiss Writ of Certiorari for Want of Prosecution — Alleged Failure to Prosecute Writ Based on Technical Ground That Return Was Improper, in That Stenographer Had Not Been Legally “Designated” According to Statute — Prosecutor’s Contention as Well as His Entire Case Without Apparent Merit, and Writ Will be Dismissed.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Pot the prosecutor, Martin P. O’Gonnor.

    For the defendants, Paul Q. Oliver.

   Per Ctjrtaji.

This is a motion to dismiss a writ of certiorari brought by Darcy to test the validity of his dismissal from the police force of the town of Westfield, for want of prosecution, in that the case was not noticed for trial at the February, 1924, term of the court. The only excuse given by the prosecutor for the failure to notice the case is that he desired to, and now does, move to strike from the return to the writ all the testimony taken at his trial before the town council on the ground that the stenographer who took the testimony was not “designated” as required by the act of April 15th, 1914, which requires that “when the evidence given at the trial or proceeding under review shall have been reported stenograpbically by a competent stenographer designated by the court, official tribunal, board or governing body before whom such trial or proceeding shall he had, the official or court making return to said writ shall certify and send to the reviewing court * * * said transcript.” The evidence taken by the council seems to have been reported by William O. O’Brien, a court reporter, at the instance of the chairman of the town council, and is certified by him and by the other respondents as correct. Whether under these circumstances the designation by the chairman complies in strictness with the requirements of the statute, or whether under the return it was necessary to have any designation, we are not disposed to afford the prosecutor the relief he asks in view of the unsubstantial and highly technical nature of the grounds upon which the motion to strike out the testimony is based, nor to consider the motion to strike out a sufficient excuse for the failure to propertly notice the case for argument. An examination of the return affords conclusive justification of the action of the council in dismissing the prosecutor from his office as a policeman.

The motion to dismiss the writ of certiorari will be allowed.


author: Pee CtrErAM.

text:
    PATHE EXCHANGE, INCORPORATED, PROSECUTOR, v. COURT OF COMMON PLEAS, HUDSON COUNTY, JOHN J. McGOVERN AND ANTON NEBEL, DEFENDANTS.
    Argued January 6, 1925
    Decided April 5, 1925.
    Workmen’s Compensation — Bringing Action on Claim Within One Year — Right of Action Limited to One Year From Date of Accident — Statute Considered at Length and Judgment Reversed.
    On certiorari.

    Before Justices Trenchard, Minturn and Lloyd.
    For the prosecutor, Walter L. G-lenney and Edwards & Smith.

    For the defendants, Kent & Kent.

   Pee CtrErAM.

The relator was injured on June 16th, 1922, in the course of his employment by a fall from a spiral staircase where he was working. On July 23d, 1923, he filed a formal petition with the workmen’s compensation bureau for compensation under the Compensation act. To this petition an answer was interposed by the employer denying that compensation was paid to July 26th, 1922, as claimed in the petition, and asserting that no compensation was paid after July 23d, 1923; and, further, that the claim of petitioner for compensation is forever barred by reason of the fact that no petition was filed by him with the secretary of the workmen’s compensation bureau at the state house, in Trenton, within one year after the last payment of compensation by the respondent to the petitioner. Compensation was awarded to the petitioner by the bureau and this award confirmed by the Hudson County Court of Common Pleas. It is sought in this proceeding to have this judgment set aside on the ground that no agreement in writing for compensation was made wátóiin one year preceding the filing of the petition. The petition itself asserts payments up to July 26th, 1922. While the answer denies this it further asserts that no compensation was paid to petitioner after July 23d, 1923. Whether July 23d, 1923, was intended, or whether, as seems more probable, July 23d, 1922, was intended by this answer is not important, in the view that we take of the legal status of the case. Prom the record returned it would appear that the petition was filed July 23d, 1923. The last payment for compensation appears to have been July 21st, 1922. It is true that the insurance company sent a check to the claimant on May 5th, 1923, for traveling expenses and time lost in going to a physician. This, however, was not in any sense payment of compensation within the meaning of the statute, and, if it were, it would not avail the claimant. Section 4 of the Workmen’s Compensation act of 1911, as ultimately amended by the act of 1918, page 430, and section 5 as amended by the act of 1921, page 731, read as follows:

“Section 4. Whenever an employer or his insurance carrier and an injured employe, or the dependents of a deceased employe, shall, by agreement, duly signed, settle 'upon and determine the compensation due to the injured employe, or to the dependents of a deceased employe, as provided by law, the employer, or the insurance carrier, shall forthwith file with the bureau a true copy of such agreement. Such agreement shall not bind the employer or injured employe, or the dependents of a deceased employe, unless approved by the bureau. If an agreement for lawful and adequate compensation, approved by the bureau, is not filed within twenty-one days after the date of the happening of the injury, the bureau shall, so far as practicable, endeavor to bring about a settlement of the pending claim. If no petition is filed by the injured employe, the bureau may institute an inquiry on its own motion, to determine the reasons for the failure to agree as to compensation, and may, either before or after the institution of such inquiry, with the consent of the injured employe, or the dependents of a deceased employe, file a petition for compensation. When such petition is filed by said bureau, on its<own initiative, the subsequent proceedings shall be the same "as is hereinafter set forth in cases where the claimant files a petition.

“Section 5 [as amended by act of 1921, page 731]. Every claimant for compensation under the act to which this act is a supplement, or its supplements or amendments, shall, unless a settlement is effected or a petition filed under the provisions of section 4, file a petition in duplicate with the secretary of said bureau in his office at the state house, in Trenton, within one year after the date on which the accident occurred, or in case an agreement for compensation has been made between such employer and such claimant, then -within one year after the failure of the employer to make payment pursuant to the terms of such agreement; or in case a part of the compensation has been paid by such employer, then within one year after the last payment of compensation * *

We think it clear that the limitation provided for in the fifth section as amended contemplated an agreement such as is described and defined in section 4, and by section 4 such agreement is required to be in writing, duly signed by the employer or the insurance carrier and the employe, and that this writing shall settle and determine the compensation due to the injured employe. Under the earlier statutes agreement might be by word of mouth merely, and it seems obvious that the legislature in the amendment of 1918 clearly intended to exclude such loose methods of procedure and to substitute therefore, not only an agreement in writing, but an agreement to be signed by the parties and which should settle the terms of the compensation to the injured employe. In section 5, as amended, the right of action is conditioned on a settlement or petition filed nnder the provisions of section 4. It is impossible to read this language without drawing therefrom the conclusion that the agreement contemplated is the agreement in writing called for by the preceding section. If anything were needed to more clearly indicate such legislative purpose, it would appear in the fact that the legislature, in passing the act of 1921, omitted the right of action in the event of an application being made to the bureau which was in section 5, as amended in 1918. We thus see a legislative purpose to remove from the conditions upon which tlie limitation clause should rest such uncertain things as unwritten agreements and informal applications to the compensation burean, and to substitute therefor in the one case the certainty of a written agreement and in the other a formal petition to the bureau.

In the case before us no written agreement was made between the parties; no petition was filed to the compensation bureau. This, therefore, effect a limitation of the right of action to one year from the date of the accident, the 16th of June, 1922.

It is claimed, however, that the employer did not set up in his answer the failure to execute a written agreement. It does appear, however, that at the conclusion of the case counsel for the relator moved to dismiss the claim on the ground that the petition was filed more than a year after the accident, and that there was no evidence of any agreement for compensation

The judgment is reversed.


text:
    ADOLPH P. HUBSCHMIDT, PROSECUTOR, v. BOROUGH OF GLEN ROCK, DEFENDANT.
    Submitted May 23, 1925
    Decided June 1, 1925.
    Municipalities — Ordinances—Reorganization of Fire Department —Salaries of Employes Probably Current Expenses — Court Will Not Set Aside an Entire Ordinance if an Illegal Provision is Separable — Fixing of Salaries by Resolution, May or May Not be Against Article 13, Section 1 of Home Rule Act.
    On rule to show cause why writ oí certiorari should not issue.
    Before Justice Parker, at chambers.

      For the prosecutor, Charles J. McCarthy.

    Por the defendant, Maclcay & Maclcay.

   Memorandum for information of counsel.

The attack is upon an ordinance of the borough which undertakes to reorganize the local fire department. A volunteer department was created under an ordinance adopted in 1912 and amended in 1916. The attack upon the present ordinance, passed in September, 1924, is twofold — first, that it “authorizes the incurring of indebtedness for salaries, pensions and repairs to equipment, and is within the provisons of section 24 of article 37 of the Home Rule act (Pamph. L. 1917, p. 461), and, hence, is inoperative without a referendum election, a protest of ten per cent, of taxpajrers having been made.

Secondly;' that it undertakes, in section 19, to permit the salaries of officers and members of the department to be fixed by resolution, contrary to section 1 of article 13 of the same act. Pamph. L. 1917, p. 350.

As to the first proposition, there are, I think, several answers:

(a) 1 incline to think salaries of employes are “current expenses” within the meaning of the exception on page 461.

(b) But if I am wrong' about that, the court will not set aside an entire ordinance if a provision in it deemed illegal is separable. Cliffside Park Case, 96 N. J. L. 278; Neumann v. Hoboken, 82 Id. 275, and cases cited.

(c) In any event under the statute the ordinance would be simply “inoperative” miles® voted on and adopted by the electors within the statutory time. But that fact would not call upon the court to set it aside.

I prefer, however, to rest upon the broad ground that salaries are within the term “current expenses” ((■'. J. 408, § 17), and, therfore, within the exception of section 24. The, same as to repairs. As to pensions, the attack seems premature.

As to the second point, the fixing of salaries by resolution, this may or may not be well taken. Without deciding the matter. T incline to think it is well taken. See § 1, art. 13, supra. The act of 1921, chapter 318, seems plainly inapplicable. But it is sufficient for present purposes to say that the ordinance under examination merely provides in section 19 that “the borough council may compensate the officers and in embers of the fire department as it may resolveIt will he time enough to decide on the efficacy of any such contemplated resolution when it shall have been passed and brought up before the court for review. It may well he that council will fix the salaries by ordinance.

The other reasons do not seem to be argued specifically, but what has been said above is sufficient to dispose of them.

The rule to show cause is discharged, with costs.


text:
    STATE v. KAPLAN.
    Decided June 2, 1925.
    On' motion to dismiss writ of error made by Justices Parker and Black, May 28th.
    For the state, Albert, H. Holland, prosecutor of the pleas.
    For the plaintiff in error, William A. Eavanagh.

   Laid over till June 1st to afford plaintiff in error opportunity to perfect record.

June 1st. Plaintiff in error not appearing, writ of error ordered dismissed.


author: Pee OrET-ur.

text:
    THE STATE, PHILIP LUTZ AND ROBERT CLAYTON, PARTNERS AS LUTZ & CLAYTON, RELATORS, v. WILLIAM T. KALTENBACH, INSPECTOR OF BUILDINGS, ETC., OF THE CITY OF ELIZABETH, AND THE CITY OF ELIZABETH, DEFENDANTS.
    Argued May 5, 1925
    Decided June 3, 1925.
    Municipalities — Zoning — Stores in Residential District — Case Controlled by Union County Dev. Co. v. Kaltenbach, 3 N. J. Mis. R. 341.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Trenchard, Katzenbach and Lloyd.
    For the relators, Jeremiah A. Eiernan.

    For the defendants, Joseph T. Hague.

   Pee OrET-ur.

This is a rule to show cause why a peremptory or alternative writ of mandamus should not issue commanding William T. Kaltenbach, inspector of buildings of the city of Elizabeth, and the city of Elizabeth, to issue to the relators a permit to erect as an addition and alteration to Nos. 400 to 406 South Broad street, in the city of Elizabeth, four certain stores.

Our examination of the record presented, and a careful consideration of the arguments of counsel, leads us to the conclusion that the present case is controlled by the decisions of the Supreme Court in Union County Development Co. v. Kaltenbach, 3 N. J. J Mis. R. 341, and Falco v. Kaltenbach, 3 Id. 333.

As all the facts are before us, a peremptory writ will be awarded, with privilege of applying for an order molding the pleadings if an appeal is desired.


text:
    LOUIS LANGHEINZ, RELATOR, v. WILLIAM T. KALTENBACH, BUILDING INSPECTOR OF THE CITY OF ELIZABETH, DEFENDANT.
    Argued May 5, 1925
    Decided June 3, 1925.
    Municipalities — Zoning — Stores in Residential District — Case Controlled by Union County Dev. Co. v. Kaltenbach, 3 N. J. Mis. R. 341.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Trunchaed, Katzknbach and Lloyd.
    For the relator, FHa-mler, fítamler & Koesiler.

    For the defendant, Joseph T. Hague.

   Per Curiam.

This is a. rule to show .cause why a writ of mandamus should not- issue- commanding William T. Kaltenbach, build-, ing inspector of .the city -of Elizabeth,, to issue to the relator a permit to. .erect a two and a half story brick building for a drug store- and.'dwelling upon his lot on the northwest corner of Elmota and .Jersey avenue, and known as No.-130 Elmora avenue, in the city of Elizabeth, New Jersey.

. Our examination of the.record presented, and a careful consideration of the arguments of counsel, leads us to the conclusion -that- the present case- is controlled, by the decisions of the Supreme Court in Union County Development Co. v. Kaltenbach, 3 N. J. Mis. R. 341, and. Falco v. Kaltenbach, 3 Id. 333.

As all the facts are before us, a peremptory writ will be awarded, with privilege of applying for an order molding the pleadings if an appeal is desired.


author: Pur Curtam.

text:
    OCEAN GROVE CAMP MEETING ASSOCIATION OF THE METHODIST EPISCOPAL CHURCH, PROSECUTOR, v. THE BOARD OF EDUCATION OF THE TOWNSHIP OF NEPTUNE, RESPONDENT.
    Argued May 5, 1925
    Decided June 3, 1925.
    Eminent Domain — Condemnation, of Lands Belonging to Ocean Grove Camp Meeting Association — Writ Denied For Reasons Expressed by Justice Lloyd in 3 N. J. Mis. R. 349.
    On application for a writ of certiorari.

    Before Justices Tkenchard and Katzenbaoh.
    Eor the prosecutor, McCarter cG English and Augustus C. Siud,er, Jr.

    Eor the respondent, Geran & Ma Uncle.

   Pur Curtam.

This is an application for a writ of certiorari to review condemnation proceedings taken by the hoard of education of the township of Neptune to acquire certain lands of the Ocean Grove Cam]) Meeting Association of the Methodist Episcopal Church, the application being based upon the same affidavits, and one additional affidavit, used on an application before Mr. Justice Lloyd, sitting as a single justice.

Our examination of the affidavits, and a careful consideration of the arguments of counsel, leads ns to the conclusion that the application must be denied, for the reasons stated in the opinion of Mr. Justice Lloyd, whose opinion is reported in 3 N. J. Mis. R. 349, and the application is, accordingly, denied.


author: Katzesbach. J.

text:
    DANIEL J. PACKER AND FANNIE K. PACKER, PLAINTIFFS, v. THE MAYOR AND COUNCIL OF THE CITY OF WOODBURY, DEFENDANTS.
    Decided June 9, 1925.
    Highways — Dedication—Alleged Dedication Fifty Years Ago— No Street Laid Out, and Others Occupy Land as Their Private Property — Burden on Prosecutor of Writ to Prove Lack of Dedication — Case Not Established — Prosecutors Entitled to Verdict of a Jury — Rule to show Cause For Writ of Certiorari Dismissed and Ejectment Proceedings; on Part of City Suggested.
    On rule to show cause.
    Before Mr. Justice Katzenbacti.
    For the plaintiffs, Austin H. Swaclchamer.

    For the defendants, Francis B. Davis.

   The opinion of the court was delivered by

Katzesbach. J.

A rule to show cause was allowed in the above case to the prosecutors, Daniel J. Packer and Fannie K. Packer, to determine whether a writ of certiorari should be granted to review an ordinance of the city of Woodbury, passed at a meeting of the council, of said city on February 20th, 1923, and approved February 23d, 1923, by the mayor of said city. The ordinance in question provides for the extension, laying out and opening of Union street, in the city of'Woodbury. Under the rule testimony has been taken. Counsel have entered into a stipulation respecting many.of the facts with reference to the controversy. The question for consideration is whether or not there has been dedicated a street in the city of Woodbury thirty feet in width, known as Union street, extending from Hunter street northwardly to lands formerly belonging to Robert K. Matlock. The prosecutors contend that no street has ever been dedicated to the public as recited in the said ordinance. The city of Woodbury contends that the street was dedicated upwards of fifty years ago, and that while during this length of time it has not been land out and used as a street, yet by reason of said dedication the city of Woodbury can at any time accept the same as a public street and improve it. The prosecutors have included within the lawn surrounding their proporty a portion of Union street, if such exists. Upon the tract claimed by the city -as a part of Union street 'a number of handsome shade trees exist. Valuable shrubbery has also been planted. The.trees and shrubbery would be destroyed if the street is opened and improved. The residence of the prosecutor would come within seven feet of 'the easterly boundary of the street if opened. It is conceded by both sides to the controversy that the delay of many years upon the part of the city of Woodbury in accepting Union street and utilizing it as a highway is no bar to the city exercising at the present time its right, if such right exists.. This is the law, the most recent case holding to this effect being that of Tweddell v. South Orange, 95 N. J. L. 327.

Tlie difficult question for decision in tlie present case is whether or not there has been a dedication of Union street. It is encumbent upon the prosecutors, in order to be entitled to a writ of certiorari to review the ordinance in question, to siiow that the street lias not been dedicated. If it was dedicated, then the city has a right to accept the dedication and to take steps to remove the obstructions in said street. 1 am not satisfied from the testimony and facts stipulated that Union street was not dedicated. The stipulation of facts recites that Daniel Thackara became seized of the lands comprising the thirty feet which the city claims as Union street, by deed from Lawrence Cake and others, dated March 36tli, 1867, and recorded April 18th, 1867, in the Gloucester county clerk’s office in book E-5 of deeds, at page 584. In various deeds by Thackara reference is made to a thirty-feet wide street. This reference is contained in a deed made by Thackara to Cake, dated April 17th, 1867, and recorded April 18th, 1867, in the Gloucester county clerk’s office in book E-5 of deeds, page 587. It is a portion of these lands which the prosecutors now own. There is also a reference to said street in other deeds set forth in the stipulation of facts. The prosecutors’ lands are a part of these lands. There appears to he no platting of the lands.. The street appears upon several atlases, but there is nothing to show that the placing of this street upon the atlases was done with the consent of the owners of the land.

The general principle of law is clear that, while the mere survey and the platting of lands into lots defining streets will not, without a sale, amount to a dedication, yet a sale of lots with reference to such platting, or'-by describing the lots as hounded hv such.. streets /will,, as between .the grantor and grantee, amount to an irrevocable dedication of the streets. Rut, in order that the dedication be to the public use, it must not only have the assent of the owner of the soil, but there must either be a formal authorized acceptance on the part of the pulic authorities or else an actual enjoyment by the public of the use for such length of time that the public accommodation would be materially affected by a denial or interruption of enjoyment. A proof to the satisfaction of the court of marking on-a plat, accompanied by public use, sustains the right of dedication claimed by the public against the owner or those claiming under him. New York and Long Branch Railroad Co. v. South Amboy, 57 N. J. L. 252.

In the present case no platting of lands into lots and streets was made. Therefore, from the standpoint of the city, there is lacking some of the evidence usually found in this class of cases.

In certiorari proceedings, where it appears, without dispute, that various owners, for the time being, of the lands on both sides of the alleged street have made conveyances to purchasers bounding in the property or point running along said street without any reservation or declarations to that it was not intended thereby to dedicate it, it has been held that such street was effectually dedicated as a public highway. Tweddell v. South Orange, supra. In the present case the prosecutors have not satisfied me that there has been no dedication of Union street. Eor this reason I have reached the conclusion that they are not entitled to a writ of certiorari to review the ordinance in question. If I allowed a writ, and the Supreme Court should then hold that there was no dedication, this would preclude the prosecutors from that which, I think, they are entitled to, namely, the verdict of a jury on whether or not there has been a dedication of Union street, so called. The prosecutors are in possession of a part of the alleged street. The city, of Woodbury can bring an action of ejectment against them. This will effectually dispose of the question. It would seem to me that, under the facts as disclosed upon-the present application, such a course is preferable to that of attempting to have the question determined by certiorari.

The rule to show cause will, for these reasons, be discharged.


author: Pee Curiam.

text:
    JOHANNA VATTER, RELATOR, v. WILLIAM T. KALTENBACH, BUILDING INSPECTOR OF THE CITY OF ELIZABETH, RESPONDENT.
    Argued May 5, 1925
    Decided May 29, 1925.
    Zoning — One-story Store in Restricted Area — Case Follows Union Co. Imp. Co. v. Kaltenbach, 3 N. J. Mis. R. 341.
    On rule to show cause why a writ of mandamus 'should not issue.
    Before Justices Trek a hard, Katzenbach and Lloyd.
    Pot the relator, Btamler, Btamler & Koestler.

    For the respondent. -'Joseph T. Hague.

   Pee Curiam.

This case is before us on a rule to show cause why a peremptory writ of an alternative writ of mandamus should not issue against William T. Kaltenbach, inspector of buildings of the city of Elizabeth, directing him to issue to the relator a permit to construct a one-story addition to her building on property located at the corner of Newark avenue and North avenue, in the city of Elizabeth, for store purposes.

The city of Elizabeth has a zoning ordinance. The property of the relator is zoned as “Business A District.” The permit is refused because it is contended that the addition desired to he made by the relator is prohibited by section 5 (a) of the zoning ordinance, which provides as follows:. “In any residence, ‘A,’ TP or ‘0/ or Business CA’ District, no story of a building shall be nearer to the street line of any street on which it faces than the general average alignment of the corresponding stories of existing -buildings within two hundred (200) feet on each side of the lot and within the same block, except that no building shall be required to set back more than thirty (30) feet from any street line, and provided that one-street frontage of a corner lot shall be exempt from this provision, except as hereinafter provided.”

After the refusal of the building inspector to grant the permit by reason of the above section, an appeal to the board of zoning adjustment was made by the relator. The board of zoning adjustment refused to direct the issuing of the permit. The deed of the relator for the property in question is without restrictions.

We consider this case controlled by Union County Improvement Co., Relator, v. Kaltenbach, Building Inspector of the City of Elizabeth, 3 N. J. Mis. R. 341. This case follows the case of Ignaciunas v. Risley, 2 N. J. Adv. R. 852. There is nothing' to show that the building of the relator, when completed as contemplated by the addition, will be against public health and safety, or public welfare. A peremptory writ of mandamus will be awarded. If the defendant so desires the pleadings will be moulded upon application so as to permit of an appeal, if an appeal is desired.


author: Plb Cubiam.

text:
    ISAK GREENBERG AND STEPHEN SEDLAK, RELATORS, v. W. HOMER AXFORD, DIRECTOR OF STREETS AND PUBLIC IMPROVEMENTS, AND THE CITY OF BAYONNE, RESPONDENTS.
    Argued May 5, 1924
    Decided May 29, 1925.
    Zoning — Store in Restricted Area — Case Clearly Within Rule of Ignaciunas v. Risley, 2 N. J. Adv. R. 852.
    On rule to show cause why a ivrit of mandamus should not issue.
    Before Justices Tbenchabd, Katzenbach and Lloyd.
    Eor the relators, Aaron A. Melnilcer.

    Eor the respondents, James Benny.

   Plb Cubiam.

The above case is before this court upon a rule to shotv cause why a writ of mandamus should not issue against W. Homer Axford, director of streets and public improvements of the city of Bayonne, and the city of Bayonne, to issue to the relators a permit for the construction of a building to be used for dwelling and store purposes on a tract of land owned by them, located on the southeast corner of Humphreys avenue and West Fourth street, in the city of Bayonne. The deed for the property contains no covenants or restrictions which would forbid the erection of the building desired upon the premises. The refusal of the building inspector to grant the permit is based upon section 527 of the building code of the city of Bayonne, which prohibits the erection in the district in which the lauds of the relators are located of a building to be used for store purposes. The relators below appealed to the board of commissioners of the city of Bayonne from the refusal of the building inspector to> grant the permit. After the hearing the commissioners affirmed the building inspector’s ruling.

• An examination of section 527‘of the building code-of the city of Bayonne discloses that it requires the maintenance of the section in which the relators’ property is located as a 'residential section. The present case falls clearty within the decisions in Ignaciunas v. Risley, 2 N. J. Adv. R. 852, and Plaza Apartment Hotel Corporation v. Hague, 2 Id. 1625, and other case of like import.

A peremptory writ of mandamus will be awarded. The defendants may apply, if they desire to appeal, for an order moulding the pleadings.