author: Stickel, Jr., J.

text:
    Essex County Court of Common Pleas.
    Louise Holzwarth, petitioner, v. Hedden Iron Construction Company, respondent.
    Workmen’s Compensation — Death Resulting from Ulcer Which Had Been of Long Standing and Was Brought to Climax by Extra Strain, Resulting from Performance of His Work
    On appeal from an award made by New Jersey Workmen’s Compensation Burean (Harry J. Goas, deputy commissioner) .

      Mr. Wilbur A. Heisley, for the petitioner.

      Messrs. Lindabury, Depue & Faulks (by Mr. James E. M. Tams), for the appellant-respondent.
   Stickel, Jr., J.

On June 5th, 1922, at about four-thirty p. M.,.the decedent, William H. Holzwarth, while working as a “layer out,” an occupation which required the lifting and piling up for the. crane of large pieces of s£eel weighing from two hundred to two hundred and fifty pounds, and in the doing of which two men were at least usually employed, but which the decedent,’, on the day in question, had been doing alone, suddenly stopped his work complaining of a severe pain in the region of his stomach. At the suggestion of a fellow-workman, named Link, he went to the toilet but the pain persisted. He collapsed and finally had to be taken home in an auto, where, after a bad night, Dr. Epstein, who was called into consultation by the family physician, diagnosed his trouble as a perforated duodenal ulcer, operated and found a hole in the duodenal about as big as a ten-cent piece and a milky fluid flowing therefrom, a confirmation of his diagnosis. After about three weeks the decedent returned home, and in three days after complaining of pain where the incision in the stomach had been made, turned blue, became unconscious and died. It seems td be agreed that the decedent had had a duodenal ulcer for a long time before June 5th, 1922, and that he had suffered with stomach trouble before.

The petitioner claims that the extra exertion due to lifting the steel unassisted caused the perforation of the duodenal and the death of the decedent, while the respondent submits that the proof- does not sustain this claim, but at best tends to show that the rupture may have been caused by strain, but might just as well have been caused by the ulcer eating through the duodenal, the normal cause of such an ulcer, with the probabilities pointing to the latter Is. the cause for the rupture, and that in any event the respondent had neither notice nor knowledge of the injury.

I have read and reread the testimony and carefully examined the useful briefs of counsel and have come to the conclusion that the petitioner must succeed.

It seems to me more than a coincidence that this longstanding condition of the duodenal should culminate just when he was doing a usual task in an unusual manner. It seems to me more than a coincidence that just when he was lifting alone heavy steel beams, this ulcer should perforate the duodenal; that a skilled surgeon like Dr. Epstein learning what had taken place and examining the board-like condition of the man’s stomach should diagnose it as a rupture of the duodenal, and I am persuaded that the logical, natural, probable cause of such rupture was the unusual exertion incident to the unassisted lifting of the said beams.

The argument that the rupture might have been caused by his use of the toilet does not appeal, first, because if so it destroys the force of respondent’s claim that a strain would not produce the rupture; secondly, because if a strain incident to the use of the toilet would produce the disastrous result, how much more likely is it that the strain incident to the said lifting would do so, and thirdly, the cramp, or pain, in or near the stomach which first caused the decedent to stop work and which continued unremittingly was first felt before he went to the toilet. And it is significant that the decedent himself seemingly did not regard the pain as a stomach pain as to me appears from the following interchange between Link and himself:

“A. Why, about half-past four he came up to me and he said, ‘Jes’s, Jack, I got an awful pain in my stomach.’ I said, ‘What happened?’ So he said to me, ‘I don’t know.’ I said, ‘Well, maybe you have got cramps.' He said, ‘I don’t know;’ he said, ‘If it is anything I ate.’
“Q. He said what?
“A. He said, ‘I don’t think I ate anything wrong.’ ”

Nor does the contention of the respondent as presented by Dr. Walter S. Washington impress' — -that is, that a strain could not cause a rupture of the duodenal even where the ulcer had all but eaten through, particularly in the light of the treatment which the said doctor testified he would prescribe for such an ulcerous condition, and especially when compared with the logical reasons given by Dr. Epstein for his contrary opinion, Dr. Epstein whose diagnosis was so accurately confirmed by the operation. It -is also interesting to note that Dr. Washington states that the "punched out appearance,” a term used by Dr. Epstein in describing the appearance of the duodenal where the ulcer came through, is proof positive that the ulcer ate through, and that if the rupture had been caused by strain the wall of the duodenal would be ripped, torn; the perforation would have roughened edges. I say it is interesting to note this, because while Dr. Epstein did say it seemed as though it was punched out he explained that by saying "it wasn’t like a cut out ulcer. It had irregular edges.”

Furthermore, it is difficult to see how the decedent could have lifted and piled the steel beams alone without some considerable pressure against his body in the region of this ulcer, and having done this all day until about four-thirty p. m., it would seem that even the direct force which Dr. Washington says must be applied in order to rupture, was in all probability actually applied. The case, it seems to me, is very much like the ease of Voorhees v. Smith et al., 92 Atl. Rep. 280, cited by the petitioner, and well within the principle and reasoning of that decision.

The argument that Holzwarth’s death was not due to the rupture of the duodenal and the operation therefor, overlooks the testimony that unless all the milky fluid which flowed from the rupture was successfully washed out, peritonitis would set in; that it had been flowing for some time when the operation was performed; that in the hospital he was better some days than others; that when discharged he still had a temperature; that his discharge was not so much one based upon cure as it was based upon the financial necessities of the man and the belief of Dr. Epstein that his devoted wife and family doctor could give the man adequate care; that neither Dr. Epstein nor Loux treated him for anything but the said ulcerous condition; that the pain which followed his getting out of bed and sitting on the porch was at the point where the incision for the operation was made, and that Dr. Epstein intended a further operation after the man became stronger to complete the cure of the decedent.

Whether peritonitis set in, as would not be unlikely as I read the testimony, or whether death was due to an embolism consequent upon allowing him to get up too soon, it is difficult to see how the man’s death could logically be attributed to anything other than the rupture and the consequent operation, unless, of course, one is prepared-to guess or speculate.

One point remains to be considered, that the respondent had neither notice nor knowledge of the injury. It is to be noted that the statute does not require notice or knowledge of an “accident,” but merely of an “injury,” so that no responsibility would attach to decedent or petitioner to make a specific claim within the statutory period that the decedent had met with an accident.

The respondent had, through its foreman, all the knowledge of the circumstances surrounding the collapse of the decedent ; that the decedent had and that was offered before the court. This information the foreman, Jack Emmenberg, received the next day, and a clerk of the respondent notified the insurance company, which insured the respondent, of the occurrence, and did so on an accident form blank, while the superintendent of the company knew of the decedent’s prior trouble- — his hemorrhages two years before — and even of a spell of stomach trouble a. short time before June 5th, 1922.

• Under these circumstances, the argument that the respondent did not possess knowledge of the injury is without merit. It may not have considered that the injury was the result of an accident for which it was responsible, but it seems clear to me that it knew the decedent had in fact been injured.

Judgment for petitioner.


source: Caselaw Access Project

author: Trenchard, J.

license: Public Domain

text:
    KING-ALLEY & COMPANY, INCORPORATED, PLAINTIFF, v. OMAHA LIBERTY FIRE INSURANCE COMPANY, DEFENDANT.
    Argued June 28, 1923
    Decided July 7, 1923.
    Summons — Corporation’s Power of Attorney to Commissioner of Insurance to Accept — Similar Authority of Foreign Corporation to do Business in State — Arbitration Award Made in New York.
    On rule to show cause why the service of summons should not be set aside.
    For the rule, Homan & Buchanan.

      Contra, Theodore D. Gottlieb.

   The opinion of the court was delivered by

Trenchard, J.

The defendant insurance company (who appeared specially for the purpose) seeks to have service of the process set aside.

The defendant is a Nebraska corporation, and had been admitted to do business in New Jersey, pursuant to section 59 of the Insurance act (Comp. Stat., p. 2855), but its license expired February 28th, 1923, and was not reneyed.

Service of the process in this case was made upon the commissioner of banking and insurance April 27th, 1923, under, as it is contended, the authority of the third paragraph of section 59, which provides for the filing of an instrument constituting the commissioner the company’s attorney upon whom process may be served, and further declares that “the authority thereof shall continue in force irrevocable -so long as any liability of the company remains outstanding in this state.”

The argument in support of the rule seems to rest upon the following proposition, stated in defendant’s affidavit (1) that the plaintiff is “'a corporation of the State of New York/’ and (2) - that “the alleged claim of the said plaintiff against the said defendant is not a liability of the said Omaha Liberty Eire Insurance Company outstanding in the State of New Jersey, being based upon an alleged award made in the State of New York, which award is alleged to have been made by virtue of an agreement for arbitration between the said King-Alley & Company, Inc., formerly King, Alley & Lawrence, Inc., and the Omaha Liberty Eire Insurance Company, which latter contract was accepted by the Omaha Liberty Eire Insurance Company and became effective in the State of Nebraska.”

The defendant admits in its brief that the plaintiff has a license permitting it to do business in this state, but seems to contend that such license was obtained only for the purpose of maintaining this action. Rut this contention, so far as this record discloses, is wholly without foundation.

I turn now to the defendant’s contention that the cause of action alleged in the complaint is not a liability of the defendant company outstanding in this state because “it rests upon an award becoming effective in the State of New York.”

It seems clear that such contention is ill-founded.

.It appears that in 1921 an action was pending in our Supreme Court between the same parties wherein the present plaintiff claimed damages from the defendant for an alleged breach of a contract relating to insurance business in this state. In consideration of the discontinuance of that suit the parties agreed to arbitrate the matters in difference, and the arbitration agreement provided that the arbitration proceedings might be had either in the State of New Jersey or in New York' City, before two arbitrators and an umpire, some of whom were residents of New Jersey and some of New York. It further provided that “the award of the arbitrators and umpire, or any two of them, shall be final, conclusive and binding,” and the umpire’s “decision in the event of any disagreement between the arbitrators shall be final and conclu sive,” from which, it would seem to follow that both arbitrators should at least have an opportunity to act before the award should became effective. The award, upon which suit is brought, on its face, shows that it was signed by one of the arbitrators in New York City on January 22d, 1923, and was not signed by the other until January 27th, 1923, when it was signed by him in Atlantic City, New Jersey, from which it would seem to follow that, if they were in agreement, their award became effective, if at all, in this state. But the award seems to show that the arbitrators were in disagreement respecting one of the matters in difference, namely, the allowance of a considerable item of interest. .The written award shows that one of the arbitrators who signed it in New York City on January 22d, 1923, allowed such interest, whilst the so-called umpire who signed in New York .City on the same day, but not before the same witness, by his notation under his signature and over his initials “objected to” and “eliminated” such interest item. It seems to follow that so far the award was not “final, binding or conclusive.” It further appears that the, other arbitrator signed the writing in Atlantic City, New Jersey, on January 27th, 1923, and by his notation over his signature he “objected to” and “eliminated” the item of interest. My conclusion is that it was there in New Jersey, if at all (and not in New York as the defendant contends) that the award came into existence, and, hence, in view of this and other circumstances mentioned, I consider that the alleged liability which is the subject-matter of the suit is one outstanding in this state. These views dispose of the narrow question argued and I have not considered any others, The rule to show cause will be discharged.


author: Per Curiam.

text:
    JAMES WEST, PROSECUTOR, v. ESSIE B. WILSON, DEFENDANT.
    Decided July 2, 1923.
    Landlord and Tenant — Certiorari to Review District Court Judgment — Jurisdiction—Notice of Demand of Premises.
    On certiorari.

    Before Justices Trenchard, Parker and Bergen.
    For the prosecutor, Eugene R. Hayne.

    For the defendant, W. Holt Apgar.

   Per Curiam.

The defendant was allowed a writ of certiorari to review the judgment of a District Court in landlord and tenant proceedings in favor of the landlord and against the tenant.

The only ground upon which such a writ will go in a tenancy case is want of jurisdiction shown either in the affidavit on which the summons is allowed, or in the proof of jurisdictional facts. This record contains no evidence, except some exhibits which do not appear to have been proved or admitted in evidence.

The want of jurisdiction is urged because the notice to quit was for the first day of the month while the term expired on the last. There is nothing in this point, as tenant was entitled to remain the entire month and not required to vacate until the last day had passed, nor to'give possession until the first of the succeeding month.

The next point is that three dajrs’ notice of demand of possession was not promptly served' after termination of tenancy, and did not specify the cause of the termination; but this applies only where the sole reason for termination is the disorderly conduct of tenant, which is not the ground of this proceeding, which is expiration of term, and has no application to this case. The-prosecutor relies on chapter 340 of 1920; but that act is not constitutional where it affects the rights of landlords and tenants. Zweig v. Tiffany, 95 N. J. L. 45.

The argument that the landlord must perfect his right between April and October and that as the last notice (three days) was served after October first, the landlord’s right to possession was not perfected before October first has no force, as the tenant’s right to such a demand notice does not apply here, as the landlord had perfected his right to terminate the tenancy when he gave the three months’ notice.

The writ will be dismissed, with costs.


text:
    JOSEPH J. ELY, PROSECUTOR, v. BOROUGH OF HIGHTSTOWN ET AL., DEFENDANTS.
    Decided July 2, 1923.
    Zoning Districts — Reservation of Discretionary Power of Council on Ground of Public Necessity not Warranted by Statute.
    On certiorari.

    Before Justices Trenchard, Parker and Bergen.
    For the prosecutor, Harry Heher.

    For the defendant, Theodore Backes.

   Per Curiam.

The defendant has adopted a zoning ordinance, and divided the borough into zones, one of which, called “commercial district,” is designated to be used for the conduct of business, and also for all “uses allowed by permit as hereinafter provided, or not specifically prohibited herein.” Among the prohibited uses are public garages, except by special permit “•as hereinafter provided.” It further declares that “no public garage shall be located in the commercial district unless public necessity therefor is made apparent to the common council, and permission is granted by the common council for said garage.” One of defendants, Ellis Cottrell, is the owner of land within the commercial district and applied to the common council for permit to build a public garage in that district, and the council, after reciting that it had been made apparent to it that there is a public necessity for the garage applied for, resolved that such permission be granted to Cottrell and that the building inspector issue the permit, which he did. Thereupon the prosecutor, a person entitled to prosecute it, was allowed a writ of certiorari to review the legality of the resolution.

The prosecutor urges (1) that the council was without power to adopt the resolution, because under it a special privilege is conferred, and that the power to so discriminate between citizens was not delegated by the legislature to the municipality as it would permit the council to exercise arbitrary discriminations; that the statute only delegates power to regulate and restrict the location of trades and buildings designed for specific use in a designated area created and defined; that they may by ordinance regulate the uses of buildings in each district, but all regulations for each district must be uniform in their application. That is, having created a district, its regulations must be uniform, and that no one person can be given a privilege not enjoyed by all. In our opinion the reservation in the ordinance of a discretionary power to be exercised for or against special owners of land within the commercial district upon the ground of public necessity, as determined by the common council, is not warranted by the statute providing for zoning districts. Keavey v. Randall, 1 N. J. Mis. R. 312. The question of notice argued is not pertinent, as the statute, in that particular, refers only to the action of the board of appeals^ and not to the action of the common council. The resolution will he set aside, with costs.


author: Newman, J.

text:
    Bergen County Circuit Court.
    Andrew M. Lewis, plaintiff, v. John T. Collins et al., defendants.
    [Decided June 27th, 1923.]
    Architects' Fees — License Obtained After Employment was Given — Rights of Unlicensed Architects — Counter-Claims for Damages.
    On motion to strike ont answer.

      Mr. George W. Harrison, for the plaintiff.

      Mr. Guy L. Fake and Mr. Harold Bouton, for the defendants.
   Newman, J.

Plaintiff in this suit seeks to recover the reasonable value of services rendered by him for defendants from November 8th, 1920, to and including September 17th, 1921. The services, as set forth in the complaint, consists of preparing preliminary sketches, modifications of such sketches, grading and building plans, preparing final plans and specifications and various modifications of such plans and specifications. The complaint further alleges that at the request of defendant Collins, plaintiff “became his authorized architect and performed the following labor” for the construction of a moving picture theatre at Eutherford, New Jersey.

Plaintiff desires to amend his complaint. Paragraph (2) of the original complaint alleges that plaintiff was an architect at the times mentioned therein and was duly licensed to practice his profession in the State of New Jersey. Conceiving that this statement is erroneous, he now desires to amend that paragraph of the complaint hy alleging that at such times “plaintiff was skilled and competent in the science of architecture, and on August 11th, 1931, he was duly licensed to practice architecture in this state,” and then alleging that prior' to his receiving such license he did not pursue the practice of architecture in this state, and proceeding to negative the other activities forbidden by the act entitled “An act to regulate the practice of architecture,” except by those licensed as architects in this state. He concludes the proposed amended paragraph with the words “excepting only that he performed the work hereafter mentioned for the consideration hereafter set forth.”

So that the plaintiff may have the benefit, if any, of the amendment, it will be allowed.

Among other things defendants set up in their answer that the employment of plaintiff, if he was employed, was under a void contract, because plaintiff was not licensed to. practice architecture in this state.

Plaintiff moves to strike out that portion of the answer on the ground that it constitutes no defence to the action.

Plaintiff contends that section 13 of the “Act to regulate the practice of architecture” is not applicable to this case because it prohibits only the practice of .architecture and engaging in the business of preparing plans, &c., which plaintiff contends means at least more than one employment. The act, however, penalizes one who advertises or puts out any sign, card or drawing designating himself as an architect, having an office or doing business within this state without a license. If the various items set forth in the complaint, listed as seven different sketches and modifications and plans from November 8th, 1930, to September 17th, 1931, do not constitute the practice of architecture in this state or engaging in the business of preparing plans, specifications, &c., the fact that, as alleged by plaintiff, he did on his employment, at the request of defendant Collins, “become his authorized architect and performed the following labor for such construction” (here following all the work aforesaid enumerated) doubtless constitutes putting out a drawing designating himself as an architect doing business within this state, as he alleges that as such “authorized architect” he drew for and at the request of defendant Collins all these various sketches, plans and specifications as indicated in the complaint, and for which he seeks to recover compensation.

Plaintiff further contends that even though, the activities of the plaintiff come within the purview of the statute, this only subjects him to a penalty and does not prohibit him from recovering compensation for the services rendered.

The object of the statute is doubtless to protect the citizens of the state against being induced to employ persons to do architectural -work who are totally unfitted and unqualified to do so. An unskilled and unlearned man, while he might do nothing further than offend his employer in producing a building out of harmony with beauty and grace, might also, in the preparation of plans for a mill, large building, or, as in the case at bar, a moving picture theatre, where'it is conceded eight hundred persons could assemble, be so unskillful and unlearned as to cause the erection of a building "which ■would place the lives of these patrons in great jeopardy.

Even though a statute does not expressly prohibit the doing of a certain act, but only subjects the person doing it to a penalty, the generally pronounced rule is that an agreement founded on or for the doing of such'penalized act is void. 13 C. J. 421 § 352 (2).

“The attempt to contravene the policy of a public statute is illegal. Nor is it necessary to render it so that the statute should contain an express prohibition of such attempt. It always contains an implied prohibition; and to such attempt the principles of the common law are invariably and deadly hostile, not always by an interference between the parties themselves, or by enabling the one to recall from the other, ■where in pañ delicio, what may have been obtained; but by at all times refusing the aid of the law to carry into effect or enforce any contract which may be the result of such intended contravention.” Sharp v. Teese, 9 N. J. Law 352.

This principle of law has been repeatedly reiterated by the courts of this state. Smith, v. Applegate, 23 N. J. Law 352, 356; State v. Jersey City, 34 N. J. Law 390, 397. In this case the court said (at ¶. 397): “A contract is illegal if it is opposed to the general policy and intent of a statute.” See, also, Cessna v. Adams, 115 Atl. Rep. 802.

The same principle is also involved in'the case of Arotzky v. Kropnitzky, 1 N. J. Adv. R. 501, in which the supreme court held that the vendor of an automobile sold without the necessary bill of sale, which conduct constituted a misdemeanor, could not recover on a check which had been given him by the vendee, as part payment of the purchase price.

The contract of employment which was made prior to November 8th, 1920, and prior to plaintiff being licensed to practice architecture in this state was therefore repugnant to the policy of the statute and unenforceable.

The motion to strike out that portion of the answer setting up the fact that plaintiff was not so licensed will, therefore, be denied.

Plaintiff also moves to strike out paragraph (8) of the answer to the first count and paragraph (9) of the answer to the second count because, while said paragraphs admit the payment of $300 on account to plaintiff, they say it wras paid to him because of his fraud and deceit, on the ground that no specific fraud or deceit is alleged. Inasmuch as those portions of the answer are immaterial and do not effect the rights of the plaintiff and the statements are mere surplusage, the motion in that respect will also be denied.

Plaintiff also moves to strike out the counter-claim which seeks to recover the $300 paid plaintiff on account, because óf his falsely representing to the defendants that he wras a licensed architect and alleges further damages by reason of delays, &e., and increased cost of building because of said alleged false representation tr the extent, of $22,000.

So far as the claim for $300 is concerned, the motion will be denied. The claim for the unliquidated sum of $22,000 will be struck out with permission to defendants to amend .the counter-claim in this respect by alleging their cause of action with the necessary particularity if they so desire.

No costs will be allowed either party.

Order may be presented on notice.


text:
    GRACE BENEDICT AND JOHN G. BENEDICT, PLAINTIFFS-RESPONDENTS, v. EDWARD LEBER & SON COMPANY, DEFENDANT-APPELLANT.
    Decided July 14, 1923.
    Accident on Sidewalk — Negligence—Grounds of Appeal — Charge to Jury — Exceptions not Taken.
    On appeal from the Hudson County Circuit Court.
    Before Justices Kalisch, Black and Katzekbach.
    For the appellant, Daniel D. Loeb.

    For the respondents, Charles A. Rooney (Emanuel Weitz, of counsel).
   Per Curiam.

This appeal brings for review a judgment entered in the Hudson County Circuit Court against the defendant-appellant upon a verdict of a jury for damages in favor of the plaintiffs, husband and wife, who sued jointly, the sum of $2,000 being awarded to the plaintiff, Grace Benedict, for injuries sustained by her through the alleged negligence of the defendant and the sum of $300 to the husband for loss of consortium, loss of services and for money expended by him for medical care and nursing.

The plaintiff, Grace Benedict, was walking along First street in Jersey City when she met with an accident, which, according to her testimony, occurred in the following manner: “I was walking down First street, about three o’clock in the afternoon, and there was a truck load of pipe backed into the sidewalk, and there was no other way for me to walk unless I walked over the grate, and as I walked over the grate the grate sunk in and I fell right up to my hip, and two firemen came and took me out and set me on a bench, and there was another fireman came to my assistance to help take me home.” She further testified that at that time she was pregnant with child.

Tfiere is only a single ground of appeal, which is as follows: “The court charged the jury: “If she saw, or should have seen that the sidewalk was in an unsafe condition, and she went upon this grating, having knowledge of this condition, then it is a -question for you gentlemen to say whether she used that care and caution that an ordinary person should have used.”

There was no exception taken to this, and, therefore, there is no legal basis for the ground of appeal to rest on.

Judgment is affirmed, with costs.


text:
    CITY OF BRIDGETON, DEFENDANT IN CERTIORARI, v. HUGH SMITH, Jr., PROSECUTOR IN CERTIORARI.
    Decided July 14, 1923.
    Municipal Regulation of Jitneys — Ordinance Relating to Owner’s License does not Extend to Drivers who have Driver’s Permit.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Rex A. Donnelly.

    For the defendant, Walter H. Bacon, Jr.

   Per Curiam.

The prosecutor was convicted in the mayor’s court of the city of Bridgeton of a violation of ordinance No. 298 and fined $200 and costs, amounting to $10.15.

Tlie ordinance under which, the conviction was had is entitled “An ordinance concerning auto buses, commonly called jitneys, as defined by chapter 136 ol the laws of 1916, as amended, and to license for revenue such auto buses and to regulate the operation thereof over the streets of the city of Bridgeton.” It is designated as “ordinance No. 298.”

The complaint made against the prosecutor and on which he was prosecuted and convicted charges, “that on the twenty-sixth day of October, 1922, Hugh Smith, late of the city of Millville, at Bridgeton aforesaid, did operate a motor bus or jitney over a specified route within the limits of the city of Bridgeton without having first obtained an operator’s permit, in violation of section 1 of ordinance No. 298 of the city of Bridgeton, approved July 11th, 1922, and.July 17th, 1922, and, therefore, prays that the said Hugh Smith may be apprehended,” etc.

Section 1 of the ordinance alleged to have been violated by the prosecutor reads:

“Section 1. All auto buses or jitneys operated or to be operated over specified routes, wholly or partly within the limits of the city of Bridgeton, shall be -licensed, the drivers thereof shall obtain operators’ permits, and said auto buses or jitneys shall be operated in accordance with the consents granted under the provisions of the ordinance.”

While section 1 provides that the drivers of such buses or jitneys shall obtain operators’ permits it is quite clear that this provision relates only to the owner, lessee or possessor of an auto bus and not to one who is hired as a driver by such owner, lessee or possessor, for section 2 of the ordinance reads: “Every owner, lessee or possessor of an auto bus or jitney, as defined by section 1, before operating or causing or permitting to be operated any such auto bus or jitney shall make application, in writing, to the city council of the city of Bfidgeton, on forms to be furnished by the city for that purpose for a license for each auto bus or jitney and for an operator’s permit for. each driver thereof, which said application shall be duly verified,” &c.

While it is true that section 1 provides that operators of licensed buses and jitneys shall obtain operators’ permits, it is clear that from a plain reading of this section in conjunction with section 2 of the ordinance that the requirement of Operators’ permits is intended to apply to an owner, lessee or possessor of a licensed auto bus or jitney operating the same, for by section 2 of the ordinance the obligation to obtain operators’ permits is imposed exclusively upon the owner, lessee or possessor of an auto bus or jitney, who is required to make application, in writing, to the city council, on forms to be furnished by the city for that purpose, for a license for each auto bus or jitney and for an operator’s permit for each driver thereof.

There is no requirement in the ordinance for a driver of an auto bus or jitney to obtain an operator’s license.

This privilege is only accorded, by the ordinance, to the owner, lessee or possessor of such vehicles.

It seems to us that by the term “possessor” it was clearly intended to include one who was neither owner nor lessor, but had some interest in the vehicle other than that of being its driver, and that this is so is plainly expressed by section 2 of the ordinance which requires the “possessor” of such auto buses or jitneys to apply for a license for each auto bus or jitney and for an operator’s permit for each driver.

Penal laws must be strictly construed. They cannot be properly extended by judicial declaration to include persons or objects not clearly expressed either by intendment or implication.

The complaint, therefore, is radically defective in not setting forth that the prosecutor was the owner, lessee or possessor of the auto bus if that was the fact. According to the testimony the prosecutor did not possess any of the attributes required by the ordinance, but was only the driver of the vehicle employed by its owner.

Succinctly expressed, we are of the opinion that the only person made subject to prosecution for the violation of section 1 of the ordinance are the owners, lessees or possessors of auto buses or jitneys who fail to obtain a license and operator’s permit, as provided for by section 2 of the ordinance.

But the complaint is also radically defective in that it does not set out in terms the specified route over which the prosecutor operated the auto bus or jitney. Eor aught that can he gleaned from the complaint he might have had a license and operator’s permit to operate over certain streets within the limits of the city of Bridgeton. By the ordinance the applicant is required to apply for a license and operator’s permit for a certain specified route to which the operation of his vehicle will be confined. Now in order to 'apprise an accused of what particular infraction of the ordinance he is charged with the complaint must set out the specified route for which he had an operator’s permit, and the route which is alleged to have been unlawfully operated upon. This is necessary, not only that the accused may know- with what offense he is charged, but to give him an opportunity to defend himself properly.

It is quite evident from a reading of the complaint that it is founded upon the theory that the ordinance provides for the penalizing of a driver of an auto bus or jitney who has no operator’s permit, to operate over a specified route. But even if this were conceded, notwithstanding that we think the very provisions or the ordinance forbid any such construction, nevertheless the complaint is defective, since it does not set out what that specific route was and in what respect there was a violation of it.

For. the reasons given the judgment is reversed, with costs.


text:
    CITY OF BRIDGETON, DEFENDANT IN CERTIORARI, v. JOSEPH CORSON, PROSECUTOR IN CERTIORARI.
    Decided July 14, 1923.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Rex A. Donnelly.

    For the defendant, Walter H. Bacon, Jr.

   Per Curiam.

For the reasons given in the per curiam opinion, filed in the City of Bridgeton, defendant in certiorari, v. Hugh Smith, Jr., prosecutor in certiorari, the judgment in this case is reversed, with costs. See City of Bridgeton v. Smith, ante p. 398.


text:
    CITY OF BRIDGETON, DEFENDANT IN CERTIORARI, v. LEON LOPER, PROSECUTOR IN CERTIORARI.
    Decided July 14, 1923.
    On certiorari.

    Before Justices Kalisch, Black and Kaizenbach.
    For the prosecutor, Rex A. Donnelly.

    For the defendant, Walter H. Bacon, Jr.

   Per Curiam.

For the reasons given in the per curiam opinion filed in the City of Bridgeton, defendant in certiorari, v. Hugh Smith, Jr., prosecutor in certiorari, the judgment in this case is reversed, with costs. See City of Bridgeton v. Smith, ante p. 398.


text:
    THE STATE, EX REL. BENJAMIN CHERNIN, RELATOR, v. BOARD OF COMMISSIONERS OF THE TOWN OF NUTLEY, IN THE COUNTY OF ESSEX, DEFENDANT.
    Decided July 14, 1923.
    Ordinances for the Regulation of Jitneys — Commission Government — Initiative and Referendum — Constitutionality of Proposed Ordinance not Before Court — Initiative Section of Walsh Act not Repealed by Act of 1917 and Its Supplements.
    On rule to show cause for a peremptory mandamus.

    Before Justices Kalisch, Black and Kaizenbach.
    For the relator, Linton Satterthwaite.

    For the defendant, J. Harry Hull.

   Per Curiam.

A peremptory mandamus is sought by the relator to compel the defendant, a municipal corporation, to call a special meeting for the specific purpose of submitting at such election to the electors of the town of Nutley a proposed ordinance entitled “An ordinance providing for the regulation of the operation of auto buses, commonly called jitneys, in the town of Nutley, in the county of Essex and State of New Jersey, and providing for the licensing of the same.”

Counsel of the defendant in his brief admits that an application was made by petition signed by more than fifteen per cent, of the registered Voters of the town of Nutley at the general election, held in November, 1922, requesting the board of commissioners- of said town to pass the proposed ordinance, and that on May 2d, 1922, the town clerk attached his certificate of sufficiency to the petition in accordance with the statute; that all the proceedings up to and including the furnishing of a certificate by the town clerk that the petition and signers to the same were regular; that the commissioners refused to pass the ordinance or to submit it to 'the people to be voted upon.

The two principal grounds urged in justification of such refusal are, firstly, that the proposed ordinance contains illegal provisions. and, secondly, that the right to initiate such an ordinance has been repealed by article 15, paragraph 1, section 1 of chapter 152 of the laws of 1917, and by the supplement of such act, chapter 89 of the laws of 1920.

Now, as to the first ground that ordinance contains illegal provisions and under which it is argued that the provision of the Walsh act relating to the initiative and referendum in so far as they are applicable to an ordinance providing for the regulation of jitneys and fixing a fare is unconstitutional, we think that in the present proceeding the question of the illegality of the proposed ordinance cannot be properly considered.

The validity of the proposed ordinance is not before us for consideration. This is manifestly so. For it may never ripen into an ordinance. It cannot become a law unless adopted by the vote of the electors. We cannot, therefore, be properly called upon to pass upon a matter which may become purely academic. If the proposed ordinance fails of adoption that is the. end of the matter. If it is adopted and an attempt is made to enforce its provisions then a proper foundation is laid for a. review of the legality of such municipal legislation.

It would be quite perturbing to the sense of a wise and beneficial administration of thé law if every proposed legislative act, whether state or municipal, was made a proper basis for judicial inquiry and advice. Por it is apparent that such a course of procedure is the intermingling of judicial with legislative functions which is contrary to express constitutional mandate. It is only when proposed legislation has evoluted into a statute or ordinance that it may become subject to judicial inquiry and action.

As to the second ground that the right to initiate such ordinance has been repealed and therefore there is no legal basis for the petition in the present proceeding our examination of the legislative acts relied on leads us to the conclusion that the contention of the defendant is untenable.

It is argued, on behalf of the defendant, that article 15, paragraph 1, section 1, of an act entitled “An act concerning municipalities,” chapter 152 of the laws of 1917, page 358, which, under the caption “licenses,” provides: “The governing body of' every municipality shall have power to make, enforce, amend or repeal ordinances to license and regulate hacks, coupes, cars, omnibuses, stages * * * and all other vehicles used for the transportation of passengers” * * * confers upon the governing body of every municipality the power to regulate vehicles used for transportation purposes, and which power is enlarged by a supplement to the act (Pamph. L. 1920, ch. 89), by adding auto buses to the list of vehicles and thereby accentuates the right conferred upon the governing bodies of municipalities, by implication repeals that section of the Walsh act (Pamph. L. 1911, p. 479), relating to ordinances initiated by petition and adopted by the voters of the municipality or passed by the board of commissioners, which provides: “And any ordinance proposed by petition or which shall be adopted by the vote of the people cannot be repealed or amended except by a vote of the people,” because this provision is plainly inconsistent with the provision of the supplement to the act of 1917, supra.

Counsel of defendant evidently overlooked the proviso of the supplement which reads: “provided, however, this shall not be in substitution of but in addition to whatever other right, power and authority any such municipality may at any time have as to licensing, regulating,” &c.

We are unable to perceive in what respect the supplement to the act of 1917 is inconsistent with that provision of the Walsh act, which provides for “iniative” and “referendum.”

Whether or not such an ordinance can only be amended or repealed by the people in view of the act of 1917 and the supplement thereto is a question to be considered when such a situation presents itself. Repeal by implication is not favored in the law.

We are only concerned now with the question whether the statute relating to the “initiative” has been complied with. Counsel of defendant admits that it has. The statute makes it incumbent upon the commissioners to act upon the proposed ordinance, and as they have refused to pass it it becomes their duty to submit it to the vote1 of the people by calling a special election for the purpose.

A peremptory mandamus to that end is ordered.


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    ANTONIO FABIANO, A MINOR, BY HIS NEXT FRIEND GIUSTINA FABIANO AND GIUSTINA FABIANO, PLAINTIFFS-APPELLEES, v. ROBERT BERCKES, DEFENDANT-APPELLANT.
    Decided July 14, 1923.
    Negligence — Motor Car Accident — Conflicting Testimony Regarding Speed — Injury to Boy in Street — Second Trial.
    On defendant’s rule to show cause why the verdict should not be set aside.
    Before Justices Kalisch, Black and Kaxzenbaci-i.
    For the rule, Lazarus & Brenner (Nathan L. Goodman, on the brief).

      Contra, Anthony P. LaPorta (Thomas H. Brown, of counsel).
   Per Curiam.

This case has been twice tried at the Hudson Circuit and on both occasions resulted in verdicts for the plaintiffs.

In the present case there was a verdict of $1,250 for Antonio and $325 in favor'of his mother, Giustina.

The defendant seeks to have the verdicts set aside as being contrary to the weight of the evidencé and against the charge of the court, and excessive in so far as the amount awarded to Giustina is concerned.

The plaintiff Antonio was eleven years of age at the time he met with his injury. While crossing Adam street, between Newark and First streets, in Hoboken, he was hit by defendant’s motor ear and sustained a fracture of the right thigh, a laceration of the right ear, causing disfigurement. The accident happened in broad daylight.

There was testimony tending to establish that Antonio had been playing hide and seek, and the game being finished he started to cross Adam street from the westerly to the easterly side of the street, with the intention of going over to the Liberty theatre, and that he had only taken two or three steps when he was struck by the defendant’s automobile and dragged about twenty-five feet. There was a decided conflict in the testimony. The plantiff’s testimony was corroborated in many material respects by his playmates. There was evidence from which a jury could reasonably infer that the automobile was being driven along a public street at an excessive rate of speed; for example, that after the plaintiff was hit he was dragged a distance of twenty feet before the car was brought to a stop. Two juries have passed upon the facts of the case and have reached the same result that the injury to the plaintiff Antonio was the result of the defendant’s negligence.

“A second concurring verdict upon the same state of facts or slightly varying evidence should cause the court to hesitate before granting a third trial.” Brown v. Paterson Paper Co., 69 N. J. L. 474; Fulton v. Grieb Rubber Co., 72 Id. 36; Johnson v. Central Railroad Co. of New Jersey, 109 Atl. Rep. 360; Lembeck v. Harms et al., 118 Id. 537.

The contention that the verdict in favor of Antonio’s mother is contrary to the judge’s charge finds no support in a fair reading of it. Nor can we say the award of $325 damages to the mother is excessive. She is entitled to the earnings of her son until he reaches the age of twenty-one, unless sooner emancipated. This fact in itself has a probable and a speculative value, and was eminently for a jury to pass upon and determine.

The rule to show cause is discharged, with costs.


author: Katzenbach, J.

text:
    ARTHUR A. HUNTER, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS AND PUBLIC SERVICE RAILWAY COMPANY, RESPONDENTS.
    Argued May 14, 1923
    Decided July 18, 1923.
    Franchises to Operate Auto Buses — Authority of Public Utility Commission.
    On certiorari removing resolution of board of public utility-commissioners.
    Before Mr. Justice Katzenbach, pursuant to the statute.
    For the prosecutor, Clifford A. Baldwin (Walter S. Keown, of counsel).
    For the respondents, Edward A. Armstrong.

   The opinion of the court was delivered by

Katzenbach, J.

Arthur A. Hunter, the prosecutor, was granted licenses on franchises by the cities of Camden, Gloucester and Woodbury, to operate three auto buses between the ferry of the Pennsylvania railroad, in the city of Camden, and Swedesboro, New Jersey. The amendment of the Public Utility act of April 6th, 1921 (chapter 149 of the laws of 1921), made it necessary for the prosecutor to obtain, before operating his bus line, the approval by the board of public utility commissioners of the licenses or franchises obtained by the prosecutor. The prosecutor duly made his application for approval to the board of public utility commissioners and that board approved the licenses or franchises, imposing by its order of approval certain conditions upon the prosecutor, namely, first, that the prosecutor should not do any local business within the cities of Camden and Woodbury, and second, that no through business should be conducted between the city of Woodbury and the city of Camden after the rerouting of through trolley ears from Woodbury to the EederalMarket street ferry. Another condition was imposed which has no bearing upon the present case.

The prosecutor seeks by this writ of certiorari the removal of two of the conditions imposed, namely, that no local business should be conducted within the city of Woodbury and that no through business should be conducted between the city of Woodbury and the Pennsylvania ferry in the city of Camden. To support his position the prosecutor contends that the board of public utility commissioners had no jurisdiction to impose the said conditions, as the board was limited in the imposition of conditions under section 24 of the act concerning public utilities to eases where the public convenience and interests may reasonably require the imposition of conditions, and that the convenience and interests of the public did not reasonably require the imposition of the conditions mentioned, and that there was no evidence before the board to reasonably support the order.

Under section 38 of the Public Utility act, this court has the power to set aside an order of the board of public utility commissioners when it clearly appears that there was no evidence before the board to support reasonably such order, or that the same was without the jurisdiction of the board. If-the order be set aside the case is remanded to the board for revision of its order, as this court has not the power to revamp the board’s order in conformity with its views. On the question of jurisdiction the amendment of the utilities act referred to contains ample authority for the board’s jurisdiction of the subject matter in the words wauto bus, commonly called jitney, the route of which in whole or in part parallels upon the same street the line of any street railway or traction railway.” The argument of the prosecutor appears to be that the public convenience and interests were not served, -but ignored, by not permitting the prosecutor to engage in local business in Woodbury and in the carrying of passengers from Woodbury to Camden ferry, as it is for' the convenience of the public to have as many means of transportation between given points as aie obtainable, and that there was no evidence which justified the condition. The proofs showed that there was local service in Woodbury afforded the public by the Public Service Railway Company and also service from Woodbury to the Camden ferry by the same company. The board found from the proofs submitted that there was no public necessity for the buses of the prosecutor doing any local business, or any through business from Woodbury to the Camden ferry.

The board by its findings evidently concluded that the public convenience and interest required that the business of the Public Service Railway Company should be as little disturbed as possible by the operation of the bus line of the prosecutor in that territory in which the railway company was affording service. This position is sound. While temporarily the public might have greater facilities of transportation in Woodbury and from Woodbury to Camden by permitting the prosecutor to compete with the railway company, in the end such competition is not for the public convenience and interest, as it either results in less efficient service by the railway company or an abandonment of its service, because the operation of the line will not pay operating expenses and a fair return on the capital invested. The state assumes to regulate the rates for transportation, and the character of the service rendered. Morally and legally it should protect the business of the established utility from impairment and encroachment. To do otherwise would soon create a situation where the public would be without transportation service. No capital could be obtained for an enterprise where no security was afforded the investor. Without capital there would be no transportation facilities, which in this age are indispensable to the transaction of business and the enjoyment of life. These, in brief, were the reasons which'undoubtedly actuated the board in the imposition of the conditions mentioned. These conditions the board had the power, in the-exercise of a far-sighted policy, to impose for the convenience and interests of the public.- The fact that there was local service in Woodbury and also between Woodbury and the Camden ferry is of itself sufficient evidence to support' the order as made.

There is one further reason argued in the carefully prepared brief for the prosecutor which perhaps should be considered. It appears from the testimony that passengers on the line of the Public Service Bailway Company from Wood-bury to the Camden ferry were obliged at one point in the journey to change cars. At the hearing the Public Service Bailway Company submitted evidence that it intended to obviate this change of cars by re-routing so that passengers from Woodbury would be carried without change of cars' to the Camden ferry. This .explains the wording of the condition imposed in the order which prevents the prosecutor from accepting through business from Woodbury to Camden after re-routing of the cars of the railway company from Wood-bury to the Federal-Market street ferry. The prosecutor contends that this evidence should not have been admitted and that the condition imposed in the order is unreasonable because the prosecutor, after pointing out a fault in the railway service, has been sacrificed for the railway by the board’s allowing the railway to correct the inconvenience suffered by passengers and then preventing the prosecutor from carrying through - passengers. This argument is ingenious, but untenable. It is a right of the railway company to improve its service even though the necessity for such improvement may have been pointed out by threatened competition.

The reasons filed are ten in number, hut raise merely in different form the questions heretofore considered.

The writ is dismissed, with costs.


text:
    HARRY DARLINGTON, JR., PROSECUTOR, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, FRANK D. SCHROTH, RECEIVER OF CAPE MAY REAL ESTATE COMPANY AND HORATION HOWARD, DEFENDANTS.
    Decided July 19, 1923.
    Eminent Domain — Power Under General Railroad Act — Bona Fide Negotiations for Purchase — Power to Condemn for Wharf Purposes.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, McCarter & English.

    For the West Jersey and Seashore Railroad Company, Bourgeois & Coulomb.

   Per Curiam.

The writ of certiorari allowed in this case was resorted to by the prosecutor for the purpose of having this court review the legal propriety of an order made by a justice of the Supreme Court, appointing commissioners in condemnation proceedings instituted by the West Jersey and Seashore Railroad Company to take certain lands of the Cape May Real Estate Company on Two Mile' Beach, in Cape May county. Two Mile Beach is an island, situated, on Atlantic ocean, immediately to the south of Five Mile Beach, whereon the town of Wildwood is located and immediately to the north of Cape May City.

According to the petition the railroad company contemplates the taking of two tracts of land, one for a right of way one hundred and ten feet in width, terminating in a wharf property fronting three hundred and four feet on Cold Spring harbor and containing approximately twenty-five acres, and the other having a frontage on the harbor of one hundred and twenty-eight feet with a large tract immediately adjoining the harbor frontage and containing in all approximately thirty-eight acres.

The contention on behalf of the prosecutor is that these lands are not needed by the railroad company for an extension of its Wildwood branch, and that it proposes to construct thereon a station yard and engine house facilities, tracks and wharves.

The grounds relied on by the prosecutor for setting aside the order appointing commissioners are as follows:

1. There was no bona fide negotiation for a private purchase.

2. The West Jersey and Seashore Railroad Company has no power to condemn lands for wharf purposes.

3. That the company is seeking to condemn for terminal a greater area than its charter permits.

. 4. That the lands are not needed for any reasonable use of the railroad company; but that the company is seeking to acquire by condemnation valuable water rights for the Pennsylvania railroad system, and the proceedings are hence a fraud upon the statutes of the state.

5. No authority exists under the General Railroad act to take the lands sought to be condemned.

Now, first, as to the claim that there was no bona fide effort made by the railroad company to negotiate for the land sought to be condemned.

This contention is predicated upon the circumstances that the amount offered by the railroad company for the land is so far below the price asked for it by the owner that the court should indulge a presumption that there was no bona fide effort to negotiate for the land. We think the negotiation for the purchase of the land was made in good faith.

At present the property consists of marsh land, and as such the price offered for it by the railroad company is not so far out of the way of its market value that we can say that the negotiation for the purchase thereof was not in good faith. And even if we thought the price offered by the company for the property was too low a figure, the fact appearing that the offer was made and its acceptance refused excludes any notion that there was no negotiation between the parties as required by the statute. Moreover, when it appears, as it does here, that the parties are so far apart as to the value of the property to be taken and an offer having been made on one side and a refusal of the offer on the other, the statute is satisfied, for it is quite evident that further negotiations would lead to no result. Neither the case of Jersey City v. National Docks Railway Co., 55 N. J. L. 194, nor Beechwood Park v. Summit, 78 Id. 182, cited by counsel for prosecutor in support of their contention, is applicable to the facts of the present case.

2. As to the claim that the railroad company has no power to condemn lands for wharf purposes.

There is no merit in this contention. The thirteenth section of an act entitled “An act concerning railroads” (Pamph. L. 1903, ch. 257, p. 652, as amended by Pamph. L. 1914, ch. 237, p. 490), inter alia, provides: “Any railroad company may, either at the time of is organization or construction or thereafter, as occasion may require, take by condemnation any of the land and property required for the right of way of its main line and branches, not 'exceeding one hundred feet in width, unless more shall be required for slopes of cuts or retaining walls, and all such other land and property adjoining to such right of way, as in the judgment of the directors the exigencies of the business may demand for the erection of freight and passenger depots, and all other legitimate purposes of the company.” * * *

The petition of the railroad company does not go beyond the power conferred upon it by the statute.

We think the reasoning of counsel for petitioner is sound •and supports the theory advanced by them that since the statute provides that lands may be taken for its main stem or branches, and for all other legitimate purposes, it authorizes a railroad company which has determined that it is necessary for proper service to the public to build a branch to tidewater to accommodate ocean traffic, it impliedly and necessarily follows that it is clothed with authority to build a wharf in order to make the service effective to the public, and the transportation of freight possible, and that being so, it necessarily carries with it the further power to acquire the land upon which to build the wharf, if land is necessary.

In Delaware River Transportation Co. v. Trenton, 85 N. J. L. 479, it was held that the word “land,” in its generic sense, embraces wharves.

3. It is further urged as a reason for setting aside the order tha,t the railroad company is seeking to condemn for terminal purposes a greater area than its charter permits.

This contention is without substance, as is fully demonstrated by the provisions of the statute of 1914 above quoted.

4. As to the claim of the prosecutor that the lands sought to be taken are not needed for any reasonable use of the railroad company, but that the company is seeking to acquire by condemnation valuable water rights for the Pennsylvania railroad system, and a fraud upon the statutes of the state, we find not supported by any proof.

Whether or not the lands proposed to be taken are needed by the railroad company was a matter for the determination of its board of directors.

In the- absence of any proof to the contrary, we must assume that the board acted in good faith and for the benefit of the public generally in supplying additional facilities for traveling and freight transportation.

All that we can be properly called upon to decide is whether the use is of a public nature. If it is the legislative authority over the subject of eminent domain, the circumstances under which and the extent to which it shall be exercised cannot be supervised by judicial inquiry. Olmsted v. Proprietors of Morris Aqueduct, 47 N. J. L. 311.

5. The contention that no authority exists under the General Railroad act to take the lands sought to be condemned, is adversely and completely answered by section 13 of the statute of 1903, as amended by the act of 1914, supra.

Eor the reasons set forth the writ is dismissed, with costs.


text:
    RICHARD J. LYNCH, PROSECUTOR, v. TOWN OF WEST HOBOKEN AND CLINTON ASPHALT COMPANY, DEFENDANTS.
    Decided July 21, 1923.
    Lowest Bidders. — No Award of Municipal Contract — Rights of Bidder Therein.
    On certiorari.

    Before Justices Parker, Bergen and Minturn.
    For the prosecutor, John T. Gough.

    For the defendants, J. Emil Walscheid.

   Per Curiam.

'The writ of certiorari allowed in this case brings up all “proceedings, resolutions, ordinances, plans and specifications, proposal for bids, bids, agreements and form of agreements as to repairing and otherwise improving Clinton avenue, in the town of West Hoboken. The record shows all the proceedings, including the bids which show that the Clinton Asphalt Company was the lowest bidder.

The first point to be considered is a motion to dismiss the Clinton company as a party, upon 'the ground that as no contract had been awarded they had no property right to be .affected. The record shows that when the Clinton company tendered their bid they gave a bond, with sureties, conditioned to exeeute the contract, if awarded;” therefore that company is a proper party, since it is to their interest to have tne contract executed and a judgment setting aside the proceedings and prohibiting the awarding of the contract would be improper, unless that company had its day in court. The motion to dismiss the writ as to the company is denied.

In support of the writ it is urged that the specifications vary from the instructions of the town of West Hoboken to its engineer, and the ordinance for the improvement, and advertisement for bids. The town instructed the engineer to prepare the plans and specifications for the improvement “with a sheet of asphalt or granite block pavement on a concrete foundation.” We do not think it necessary that the ordinance and the advertisement for bids correspond with the instructions given to the engineer, since the instructions form no part of the ordinance, or of the plans. The ordinance would not be void simply because the town changed its mind before the ordinance was adopted as to the character of the work. The principal objection is that the specifications do not cover or provide for granite blocks; but since none was used, except about four hundred and seventy-five square yards in front of a car bam, this claim of the prosecutor is in effect that the specifications are such a departure from the instruction to the engineer as to render the ordinance and notices to contractors fatal. It is not erroneous for a public body to ask for bids for sheet asphalt or granite block, when both are to be used, and all the bidders understood that both were included, and are afforded an opportunity to bid on both, and knew the relative quantities of both, since all bidders in such a situation are on an equality.

The next point made is that the specifications are indefinite as to the amount of material to be supplied for the binder and the concrete. The contract is intended to relay and repair an improved street, already laid to grade, and the plan shows the present centre line of the street; and the proposed centre line when improved; and the proposals show that the work consists in part of taking up as much of the old foundation as may be required, and excavating the road where the-old foundation was not of satisfactory quality and that no existing foundation should be broken until it has been examined and approved by the engineer; and that concrete foundations shall be eight inches thick, unless otherwise directed. We do not think the materials to be supplied are indefinite, but that the plan and specifications, with an examination by the bidder of the ground, such as he was required to make, removed any ground of uncertainty or indefiniteness.

The next point made is that the bids were collusive. There were five bids varying from $252,000 by the Clinton company to $279,000 by the Curtin Brothers, these sums being the highest and the lowest.

The highest bidder testified that he did not go over the line of improvement and that all he did was to get prices for asphalt and binder from the Clinton company, that Caponi, another bidder, got the price of the asphalt and binder from the Clinton company. Ilornung, another bidder, testified that his samples of asphalt were that of the Clinton company; and so with the other bidder. They all expected to buy the asphalt from the , Clinton company if they obtained the contract, and the prices they bid were the same as that bid by the Clinton company, with profit added. We do not think these facts sufficient to justify a finding that there was • collusion, because the difference in the bids turns on other matters than the asphalt, and there is no doubt under the evidence that the Clinton company, because of its facilities, can do the work cheaper than the other bidders. The material which caused the difference in the bids was the price of the concrete, and that particular material'the Clinton company was able to furnish cheaper than the other bidders.

The next point made is that the amount of the bids, with the prices, were not properly entered in the minutes of the council. We do not see how this fact would affect the right of the Clinton company to have the contract awarded. The evidence shows that tile bids and prices were entered upon a paper used to determine which was the lowest bidder, and the only error complained of is that the clerk did not at once enter these figures in the minutes. We do not think this omission ought to deprive the Clinton company of its contract.

It is finally urged that the ordinance appropriating $300,000 for the improvement includes illegal charges to be paid to the engineer. We find no proof of this in the record, and if there was it would not destroy the right of the Clinton company to have its contract executed. Whatever sum the town might appropriate it would be held to strict accountability-for the use of the money so appropriated and it would have no right to illegally disburse it.

The proceedings should be affirmed.


text:
    WALTER S. OLESIEWICZ, BY HIS NEXT FRIEND WLADYSTAW OLESIEWICZ, AND WLADYSTAW OLESIEWICZ IN HIS OWN RIGHT, PLAINTIFFS, v. THE CITY OF CAMDEN, A MUNICIPAL CORPORATION, DEFENDANT.
    Submitted June 25, 1923
    Decided July 24, 1923.
    Negligence — Repairs on Streets by Private Parties. — Injury to Persons Using the Street — Liability.
    On motion to strike out complaint.
    For the motion, Howard L. Miller.

    Contra, Albert S. Woodruff.

   The opinion of the court was delivered by

Katzenbach, J.

The' defendant, a municipal corporation, moves to strike out the complaint in the above entitled case. The principal ground relied on is that the complaint fails to' disclose a cause of action. The complaint sets forth that on April 13th, 1922, the defendant was engaged in operating, on Haddon avenue, in the city of Camden, an asphalt plant and appliances, particularly a steam roller, for the purpose of paving the street for private individuals and corporations, and not as a strictly governmental function; that the plaintiff was employed in driving a team of horses attached to a coal delivery wagon; that as he was proceding northwardly on Haddon avenue the operator of the steam roller caused to be suddenly emitted therefrom steam in large quantity and with great force; that the noise therefrom frightened said horses, which ran away and injured the plaintiff. Eor the injuries received the plaintiff, a minor, instituted, through his father, the present action against the city of Camden. The defendant relies upon the case of Freeholders of Sussex v. Strader, 18 N. J. L. 108, which held “that where a corporate body, whether of a municipal or a private character, owes a specific duty. to an individual, an ¿ction will lie for a breach or neglect of that duty whenever such breach or neglect has occasioned an injury to that individual; but if such corporation owe a duty to the public, a neglect to perform it, although every individual composing that public is injured, some more and some less, yet they can have no private remedy at the common law.”

This doctrine was approved in the Court of Errors and Appeals in Livermore v. Freeholders of Camden, 31 N. J. L. 508.

Does this rule apply to the present case? I think not. The rule does not extend to actions where the injury is the result of active wrong doing. Hart v. Freeholders of Union, 57 N. J. L. 90.

In a motion to strike out a complaint the allegations of the complaint must be taken as admitted. The complaint alleges active wrong doing on the part of the defendant, namely, the negligent manner in which the steam roller was operated. This allegation is alone sufficient to take the case out of the class of cases where no obligation for negligence attaches to a municipal corporation. The complaint also alleges that the defendant was not engaged in a governmental function at the time of the occurrence of the accident, but in a private enterprise. This allegation also deters me from striking out the complaint, i It may be difficult to prove, but the plaintiff is entitled to submit such proofs as he may have regarding this allegation. The other grounds assigned by the defendant for striking out the complaint merely raise, in my opinion, questions regarding the sufficiency of the allegations of the complaint. If the allegations are too meager to sufficiently apprise the defendant of the plaintiffs’ cause of action the defendant is entitled, upon satisfying the court to this effect, to a bill of particulars amplifying the allegation of the complaint.

The motion to strike out the complaint is denied.


text:
    THE STATE, EX REL. BENJAMIN CHERNIN, RELATOR, v. BOARD OF COMMISSIONERS OF THE TOWN OF NUTLEY, IN THE COUNTY OF ESSEX, DEFENDANT.
    Argued July 26, 1923
    Decided July 27, 1923.
    Rehearing — Alternative Privilege to Mould Pleadings so as to Permit Appeal to Court of Errors and Appeals — Application Denied — Reasons Stated.
    On rule to show cause why a rehearing should not be had or permission granted to mould the pleadings to permit an appeal.
    Before Justices Kalisch and Katzenbach.
    For the relator, Michael Tansey.

    For the defendant, J. Harry Hull.

   Per Curiam.

This ease was decided on July 14th, 1923. Counsel for the defendant subsequently applied for and was allowed a rule to show cause why a rehearing should not be granted, or, in the alternative, permission given to mould the pleadings so as to permit an appeal to the Court of Errors and Appeals.

The contention made in behalf of the board of commissioners of the town of Nutley for a rehearing is that the decision rendered in this case is in conflict with the opinion of this court in the case of Buohl v. Beverly, 90 N. J. L. 44, which was an application for a writ of mandamus to compel the calling of an election by the board of commissioners of the city of Beverly to pass on a proposed ordinance for the creation of a board of excise commissioners for that city under the initiative and-referendum feature of the Walsh act. Pamph. L. 1911, p. 462. The application for the writ was denied on the ground that the power to create an excise board bjr ordinance no longer existed, as control over excise matters had passed to the board of commissioners by adoption of the Walsh act, and such control conld not be taken away from the board by an ordinance initiated by the voters, as the legislature did not intend, by use of the initiative and referendum, to make it possible to change fundamentally the scheme of government provided by the Walsh act with power concentrated in the board of commissioners. It will be observed that there is a distinction between the case of Buohl v. Beverly and the present case. In Buohl v. Beverly the proposed ordinance was one ¶-hich the board of commissioners of Beverly could not have lawfully passed. The board was without power to pass an ordinance to create a board of excise. The proposed excise ordinance in its entirety, if adopted, would be illegal. In the present case the subject-matter of the1 proposed ordinance, namely, the regulation of the operation of auto buses and the licensing thereof, is a subject-matter upon which the board of commissioners of Nutley has the power to enact ordinances. We think this a sufficient difference to justify the difference in the treatment accorded the application in the case of Buohl v. Beverly and the present case. To pass upon all the features of a proposed ordinance'which may never be enacted to ascertain in advance their validity or invalidity AArould be a work of supererogation, and would establish a dangerous precedent. Eurthermore, there may often be portions of an ordinance, as in a law, which can be ex-scinded as illegal, without impairing the validity of the bal'ance of the ordinance.

We see no reason why a rehearing should be granted.

Upon the question whether this court should give permission to the respondent to mould the pleadings so as to permit an appeal to the Court of Errors and Appeals, we are of the opinion that the present case is differentiated from such cases as McDonald v. Freeholders of Hudson County, 1 Adv. R. 525, and Hoff v. Lee, Id. 762, in which such permission was granted. In the cases mentioned to have denied the permission would have foreclosed the defeated party from an appeal. Such is not the policy or practice of this court. In the present case the questions raised by the respondent can all be raised by certiorari if the proposed ordinance is enacted. The proceedings under a writ of certiorari can be reviewed by the Court of Errors and Appeals upon appeal. This leads us to refuse permission to mould the pleadings in this proceeding to permit an appeal.

The rule to show cause is discharged.


text:
    DENNIS WYNNE, PROSECUTOR, v. JOSEPH SZABOSKY, DEFENDANT.
    Decided July 27, 1923.
    Motor Vehicle Act — As Amended 1923 Provides Imprisonment in Common Jail — No Authority Suggested for Workhouse Sentence.
    Before Thomas W. Trenchard, Justice of the Supreme Court holding the Mercer Circuit.
   The opinion of the court was delivered by

Trenchard, J.

The defendant (Szabosky) was sentenced to the “common workhouse of the county of Mercer for a period of thirty days,” upon a conviction of violating subdivision 3 of the fourteenth section of chapter 208 of Pamph. L. of 1921. But this section was amended by chapter 136 of Pamph. L. 1923, and it provides that imprisonment shall be “in the common jail of the county,” and no authority is suggested on the argument for a sentence to the workhouse.

The judgment will be set aside.


text:
    EMANUEL GROSS, PLAINTIFF-RESPONDENT, v. NEW YORK CENTRAL RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted December 6, 1922
    Decided August 4, 1923.
    Contracts — Shipment of Goods — Right of Action Barred After Two Years and a Day — Contract Between Shipper and Carrier to Settle Claim for Specific Amount, Sued on After Right of Action Barred — Judgment for Plaintiff Reversed.
    On, appeal from the Hudson County Court of Common Pleas.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the appellant, Wall, Haight, Carey & Hartpence (Eugene H. Vredenburgh on the brief).
   For the respondent, Gross & Gross.

Per Curiam.

This action was brought to recover losses alleged to have been sustained by the plaintiff’s assignor, the Southseas Import and Export Company, as a result of damage to a shipment of honey, delivered to the Southern Pacific Company in Nevada, by the Hicks Southerland Company, during the month of October, 1917, for transportation to consignees in the east, and finally diverted to the order of the Southseas company..

The suit was begun February 24th, 1921, more than three years after the shipment arrived at its destination in New York City, and was tendered to the Southseas company for delivery.

The complaint contained three counts; the first alleging breach of the contract to transport safely; the second breach of the defendant’s duty as bailee, and the third alleging a contract between defendant and the Southseas company to settle the claim for $1,151.64.

The defendant pleaded that the action had not been instituted within'the time required by the bill of lading under the terms of which the property was transported, and also denial of any contract to settle.

At the trial, and before the jury was empaneled, the defendant moved to strike out the complaint on the ground that the suit had not been instituted within the time limited by the following clause of the bill of lading: “And suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.”

The court struck out the first and second counts, but refused to strike out the third count, and an exception was taken to such refusal.

The ease went to trial upon the third count alone. The trial judge in his charge stated that “no action can be brought against a railroad company engaged in interstate traffic after the expiration of two years and one day from the time the cause of action occurs, and, concededly, in this case the action was started after the expiration of that time.” And so, the only question of fact submitted to the jury was whether or not the defendant railroad company had promised to pay to the Southseas company a certain sum of money in consideration of the promise of the latter not to sue. The jury returned a verdict for the plaintiff, and from the judgment entered thereon the defendant appeals.

We think that the judge erred in refusing to strike out the third count. It sufficiently appeared, or was conceded, that the shipment was interstate in character and was controlled by the provisions of the Interstate Commerce act, and that, as required by that act, upon the receipt of the honey for transportation, the Southern Pacific Company (the initial carrier) issued a bill of lading therefor which contained the provision that suit shall be instituted only within two years and one day after the delivery of the property hereinabove recited, and which was in accordance with the bill of lading form in the schedule filed by the Southern Pacific Company, as required by the act and in force at that time'.

In the circumstances of the present case that clause in the bill of lading was binding upon the shipper and carrier alike and must be enforced by the courts. “The parties cannot substitute therefor a special argument.” Southern Railway Co. v. Prescott, 240 U. S. 632. “The question is not one of form but of actuality.” “The effect of the stipirlation cannot be escaped by the mere form of the action, the scope and effect of which is an action for damages against the carrier.” D’Utassy v. Barrett, 219 N. T. 420. (Citing Great Northern Railway Co. v. O’Connor, 232 U. S. 508; A. T. & S. F. Ry. Co. v. Robinson, 233 Id. 173; Southern Railway Co. v. Prescott, supra; G. F. & A. Ry. Co. v. Blish Co., 241 U. S. 190.)

In Georgia F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190, it was said: “But the parties could not waive the terms of the contract under which the shipment was made pursuant to the federal act, nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct, and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariff and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed.” . In A. J. Phillips Co. v. Grand Trunk West Railway Co., 236 Id. 662, it was further said that “under such a statute the lapse of time not only bars the remedy but destroys the liability.” * * * “The prohibitions of the statute against unjust discriminations relate not only to inequality of.charges and inequality of facilities, but also to the giving of preferences by means of consent judgments or the waiver of defences open to the carrier. The railroad company, therefore, was bound to claim the benefit of the statute.” This case is cited in Olivit Brothers v. Pennsylvania Railroad Co., 88 N. J. L. 241.

In the ease at bar the plaintiff had a right of action which he could assert against the carrier at any time within two years and one day from the date of delivery of the shipment. This he did not do, but allowed the period of limitation to elapse. He now seeks to enforce his claim by setting up a contract which enlarges and revives the liability of the carrier as defined by the terms of the bill of lading. This he could not do, since, as seen, under the authority of the cases, his right of action was extinguished and the liability of the carrier was terminated.

The judgment will be reversed.


text:
    ROBERT E. HAND, PLAINTIFF, v. WILMER C. NOLAN, DEFENDANT.
    Decided August 27, 1923.
    Bail in Civil Actions — Insufficiency of Affidavit — Filing of Proof and Order Before Capias Issued — Order Discharged.
    On application to set aside an order to hold to bail.
    For the application, Rudolph S. Ayers.

      Contra, Samuel T. French.

   Katzenbach, J.

This is an application to set aside an order of a Supreme Court commissioner that the defendant be held to bail in $2,500 in an action at law for the alienation of the affections of the wife of the plaintiff. The Supreme Court commissioner merely endorsed the following upon the capais, “let the defendant be held to bail in the sum of $2,500.” The grounds urged to set 'aside the order are— first, insufficiency1 of the affidavit upon which the order is based, and second, that the proof and order were not filed in the clerk’s office before the capias ad respondendum issued.

It was conceded at the argument that the order was made on August 1st, 1923. It appears that the affidavit was not filed in the Supreme Court clerk’s office until August 9th, 1923.

The action is one of tort. The rule is. that there must be an order to hold to bail by a judge or commissioner, but only upon proof by affidavit disclosing a cause of action and some special cause for ordering bail. Benson v. Bennett, 25 N. J. L. 166.

Section 56 of the Practice act of 1903 provides that “no such order shall be made unless — first, such action is founded upon a seduction or an outrageous battery-or mayhem; or second, such action is for the recovery of damages for the misconduct ox neglect of a public officer; or third, the proof establishes special cause as heretofore for holding the defendant to bail.”

The present case is one where the proof should establish a special cause for holding the defendant to bail. Special reasons ordinarily cited are non-residence of the defendant, or facts and circumstances from which it may be inferred that the defendant may not be. in the jurisdiction to answer to a judgment when rendered. Hufty v. Wilson, 78 N. J. L. 241. It was also held in this case “that the amendment of the statute (1903) in regard to the issuing of this writ in tort actions by using in such amendment the very language used in the statute long on our books concerning its issue in contract actions, will be construed in the same way that the provisions of the statute have been construed which relate to actions on contract.” The reasons stated should amount to proof and should not be the conclusions of the affiant. Proof, it has been held, when used in a legislative enactment, means competent and legal evidence, testimony that conforms to the fundamental rules of proof, one of which excludes heresay evidence, however trustworthy the informant or however implicit may be the deponent’s belief in the truth of what he has heard. Inglis v. Schreiner, 58 Id. 102; Hufty v. Wilson, supra.

An examination of the affidavit submitted to the commissioner with reference to the special reason for holding the defendant to bail reads as follows: “Deponent further says that he has heard and has good reasons to believe it to be true that the said defendant, Wilmer C. Nolan, who owns one of the best paying jitney bus businesses in the City of Camden, has negotiated a sale and has received two hundred ($200) dollars on account thereof, and that he contemplates selling his home at 930 Vine street, in the city and county of Camden aforesaid, and -leaving for the west in order to avoid the answering of the aforesaid suit of -this deponent.

“Deponent further says that unless the said defendant is held to bail and compelled to furnish such securities as may seem proper, said defendant will absent himself out of this state and the jurisdiction of said court.”

This affidavit does not show a reason for the belief of the plaintiff that the defendant will not be here unless bail be required. It is hearsay. It is merely a statement of the conclusion of tire plaintiff without the averment of any facts from which the commissioner might have determined and adjudicated that the defendant was. about to depart. In my opinion the affidavit is insufficient.

As to the second ground urged, namely, that the capias ad respondendum could not issue until the proofs and order of the commissioner were filed, I am of the opinion that the statute should be followed in this respect. The case of Wert v. Strouse, 38 N. J. L. 185, held that the affidavits need not be actually filed before the writ is issued and arrest made in actions of tort, but that it was otherwise in actions of contract. In view of the fact that this ease was decided before the amendment to the statute in 1903, and the 1903 amendment has been construed to make the proceeding for the writ in tort actions similar to those in contract actions, I am of the opinion that the apparently mandatory provisions of the statute as to the filing of the proof and order before the issue of the capias should be followed. These views result in making an order that the order to hold to bail be set aside and that the defendant be discharged from arrest and that his bail be discharged, and that the action proceed as if commenced by summons.


text:
    DANIEL TREMETZKY, PROSECUTOR, v. JOSEPH GARBER ET AL., DEFENDANTS.
    Decided August 18, 1923.
    Landlord and Tenant — Certiorari to Review — Records Show that Affidavit Contained Essential ' Jurisdictional Facts — Facts Established on Trial.
    On certiorari to the District Court of Passaic.
    Before Justices Kalisch and Katzenbach.
    For the prosecutor, Harry Lane.

    For the defendants, Weinberger & Weinberger.

   Per Curiam.

This is a landlord and tenant case. It is brought for review here on certiorari. The record of the District Court returned with the writ shows that the affidavit upon which the proceedings were instituted and based against the prosecutor, and which resulted in a judgment of eviction against him, contained all the essential jurisdictional facts and which, according to the return before us, were established on the trial. The application by the prosecutor for a rule to take testimony as to what the testimony was at the trial on the hearing of the case in the District Court, is denied.

The writ is dismissed, with costs.


author: Bergen, J.

text:
    ANNA ANDERSEN, PROSECUTOR, v. INDEPENDENT ORDER OF FORESTERS, DEFENDANT.
    Decided September 10, 1923.
    Service of Process — Foreign Corporations on Commissioner of Banking and Insurance — Proper Return — Rule of District Court to Show Cause Why Judgment Should not be Vacated More Than Thirty Days After Judgment — Claim that Such . an Order Amounted to New Trial — Subordinate Lodges.
    On certiorari to review judgment on proceedings of the District Court of Perth Amboy.
    Argued before a single justice under the statute.
    For the prosecutor, Jacob S. Karims.

    For the defendant, Francis A. Gorden and William F. Vosseller.

   The opinion of the court was delivered by

Bergen, J.

The defendant, a corporation organized under the laws of the Dominion of Canada as a beneficial association, duly authorized to do business in this state, having appointed the commissioner of banking and insurance as its agent on whom process may be served, issued its certificate of insurance on the life of plaintiff’s husband, in which she was named as beneficiary. The husband died and plaintiff brought suit on the certificate and recovered a judgment by default which she caused to be docketed in the Court of Common Pleas of the county of Middlesex. More than thirty days after the judgment was recovered the District Court allowed the defendant a rule to show cause why an order should not be made vacating and setting aside the judgment. On the return of the rule the court filed a memorandum that the service of the summons on the secretary of the local lodge was a good service, but that the return made by the officer serving was not good, but that it might be amended by describing the person served as agent of defendant, and not as secretary of the defendant, which it was admitted he was not, and thereupon made an order giving plaintiff the option to take an order vacating the judgment and amending the return so that it would appear that the summons was served upon an agent of defendant residing in this state; and set the case down for trial, and that if the plaintiff did not consent to vacate the judgment and amend the return within five days the judgment would be vacated and the proceedings dismissed.

The plaintiff did not take such order, and five days thereafter, as the minutes of the District Court show, the cause was dismissed. It is to review this order that this writ was allowed. The effect of the order of the District Court is that the return of the summons'was not sufficient to give the court jurisdiction, and that the judgment was improperly entered, with leave to plaintiff to enter an order vacating the judgment ; to amend the return and bring on the case for trial, and the plaintiff having failed to exercise her privilege, the judgment was vacated and the proceedings dismissed for want of proper service on the summons.

The prosecutor argues that this order amounted to a new trial, applied for more than thirty days after the judgment was entered, which is beyond the power of the District Court vide, section 17 of the District Court act. Comp. Stat., p. 1959. But the judgment complained of was not the granting of a new trial, but the vacating of the judgment for want of a proper return, as the court viewed it, of the summons. Whether the District Court was correct in its notion that the person served was an agent of the defendant who could be properly served so as to bring defendant into court and bind it by any judgment that might be rendered is immaterial, for the judgment or order actually entered is that the judgment be vacated and the action dismissed because the return to the summons was not amended so as to give the court jurisdiction. The real question is whether the judgment is good in law, even if the reasons given for it are not. It appears on the record return with the writ, stipulations in writing and admissions on the argument that the defendant is a corporation of the Dominion of Canada, doing business in this state under an act relating to- fraternal beneficiary-societies (Pamph. L. 1893, p. 232); that it had appointed the commissioner of banking and insurance as attorney on whom process may be served and has filed its annual statement as required by section 4 of the act; that the defendant conducted its business in this state through subordinate or local lodges; that the summons was served on the secretary of the local lodge at Pérth Amboy, improperly described in the return of service as the secretary of the defendant corporation; that the defendant had no notice of such service other than service on the secretary of the local lodge. The only service provided in the statute relating to such an organization is one on the commissioner of banking and insurance, which also provided that no law thereafter passed should apply to them unless expressly designated therein. We are thus met with the question whether service on the secretary of the local lodge was a proper service on the defendant. The prosecutor argues that under section 46 of the District Court act the secretary of the local lodge can be properly served as an officer of defendant and that the service can be made either on the commissioner of banking and insurance or on any officer, that the secretary of the local lodge is an officer, and that the misdescription of such agent as the secretary of the defendant, it being admitted he was not, was not of sufficient importance to require' amendment, as she was affiorded an opportunity, which she declined. I do not think that the secretary of the subordinate lodge, nothing more being shown, was the agent of defendant, a foreign corporation, upon whom binding service of a summons could be made, unless it be made to appear that he had “such connection with the business out of which the cause of action arose as might fairly support an inference that he had authority to represent the corporation for the purpose of the service of process.” Erie Railroad Co. v. Van Allen, 76 N. J. L. 119.

Ordinarily, ,the officers of a subordinate lodge are elected by its members, through whom its business with the parent corporation is conducted, which does not imply their appointment by the latter either as servant or agent, and if in this case there was any other relation, prosecutor could have shown it, but did not. Therefore, the conclusion of the trial court to dismiss the action for want of jurisdiction was correct, if the court was not prohibited from dealing with the case for the following reasons urged by prosecutor.

First. Because it has lost control of the cause because it had been docketed in the Middlesex Common Pleas immediately after the judgment was entered. This was disposed of contrary to the argument of the prosecutor in Lacombe v. Laval, 81 N. J. L. 68, where a District Court judgment was docketed in the Common Pleas and thence in this court. Mr. Justice Reed, speaking for this court, saying: “But in neither case did the docketing operate as a writ by which the judgment was transferred from the trial court to a higher court for the purpose of reviewing trial errors, or for the purpose of transferring the power over the judgment of the trial court to the superior court, save in the matter of execution and the entry of satisfaction of the judgment debt.”

It seems to me that under this case a District Court is not deprived of its jurisdiction over its own judgment to the extent of vacating it for want of jurisdiction over the person of the defendant, otherwise a defendant would have no remedy in a case where he had never been summoned and judgment entered by default, if plaintiff was nimble enough to immediately docket the judgment in the Common Pleas Court.

Second. That the action of the District Court amounted to granting a new trial, and that it has no such power within thirty days after judgment. ' I do not think the judgment dismissing the cause for want of jurisdiction was the granting of a new trial within the meaning of the statute, but assuming that it was, the limitation is thirty days after judgment. This, in my opinion, means a lawful judgment and one of which the defendant has notice either of the institution of the suit on which it was based, or in some other way. Laws must be given, a reasonable interpretation and the legislature could not have intended that a judgment which ought not to have been entered for want of jurisdiction of defendant’s person because not summoned actually or constructively, became final and beyond the control of the court after thirty days. There was no legal trial and could be no legal judgment for want of jurisdiction. Nor could a new trial be granted, all the court could do was to dismiss the proceedings for want of jurisdiction, and that was the order made. So far as I can see, the prosecutor may institute her suit against and secure proper service on the commissioner of banking and insurance, there having been no proper service, trial or judgment.

The proceedings under review are affirmed, with costs.