author: Baches, Y. C.

text:
    William A. Stevens, attorney-general, complainant, v. Wrigley Pharmaceutical Company et al., defendants.
    [Decided April 7th, 1931.]

      Mr. Robert D. Grossman, assistant attorney-general, for the complainant.

      Mr. Emerson L. Richards, for the defendants.
   Baches, Y. C.

The Wrigley Pharmaceutical Company, a Delaware corporation, failed 'to answer a questionnaire directed to it by the attorney-general as required by section 3 of the Fraudulent Stocks Sales act (blue-sky law), and thereupon this court in an appropriate proceeding by the attorney-general—

“* * * Ordered that in the meantime and pending further order of this court, the defendant Wrigley Pharmaceutical Company, a Delaware corporation, doing business in the State of New Jersey, its officers, directors, agents, brokers, servants'as well as all other persons acting in aid or assistance of them, be and they are hereby, jointly and severally, restrained and enjoined from issuing, selling, offering for sale, purchasing, offering to purchase, promoting, negotiating, advertising or ’distributing any securities whatsoever within the State of New Jersey, and particularly the securities of the defendant company, pending the final hearing of this cause and further order of'this court” ' .

That was in September, 1929. Thereafter the company sold thirty-eight thousand shares of its stock to non-residents of this state; the sales of the stock were made and the certificates thereof were issued outside the state, though promoted within the state. The injunction was in the language of the statute as it then stood. P. L. 1927 p. 138; P. L. 1929 p. 773.

The object of the act as expressed in the title and in the body of the act, was to prevent the sale of the denounced stock within this state and the purpose was the protection of the citizens of this state. The provision of the act declaring as unlawful inter alia “promoting,” merely proscribes one of the steps in the sale of stock within this state, and is not referable to sales of fraudulent stock made outside the state.

That apparently was the conception of the legislature, for it later (P. L. 1930 p. 260) amended the statute (without amending the title) placing a ban on the sale of fraudulent stock within “or from this state,” not so much to protect the citizens of other states as to prevent this state from being used as a base of operations for crooks marauding outside the state.

Order to hold for contempt is denied.


source: Caselaw Access Project

author: Pee Cubiam.

license: Public Domain

text:
    SOUTH RIVER SAND COMPANY. PLAINTIFF-APPELLEE, v. THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MIDDLESEX, DEFENDANT-APPELLANT.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case 'and Donges.
    Eor the appellant, Edmund A. Hayes.

    Eor the appellee, George L. Burton.

   Pee Cubiam.

This is an appeal from a judgment of the Middlesex County Circuit Court in favor of the plaintiff, South Eiver Sand Company, against the defendant, the board of chosen freeholders of the county of Middlesex, growing out of damages to a scow of plaintiff caused by the alleged negligence of the defendant in failing to keep in proper repair a bridge over the South river.

According to the testimony two scows of the plaintiff were being towed under said bridge by a tug owned and operated by the Tice Towing Line. Because of a turn in the channel it was necessary, when two scows were being towed, to permit one of them to strike against the piling and planking erected iu front of the stone piers. When one scow was being towed it could be taken under the bridge without touching. The planking and piling was permitted to become in such a state of disrepair that it washed away and when the scow involved was being towed under the bridge it struck against the stone pier and was damaged. The condition had been repeatedly brought to the attention of the defendant but had not been corrected.

The trial judge denied motions to nonsuit and to direct n verdict for the defendant, and permitted the case to go to the jury, which returned a verdict for the plaintiff.

Two questions are argued on this appeal: First, was the captain of the tug guilty of negligence contributing to the injury? Second, is this contributory negligence attributable to the plaintiff?

1. Defendant argues that the captain of the tug knew of the condition of the wooden fenders and therefore was guilty of negligence in attempting to bring two scows through at one time. The claim is that he should have brought them through one at a time. However, the testimony of the captain on this point was that when he went up the river after the scows at low tide he looked at the fenders and observed that the planking was still in place and that it looked just as it had for sometime. When returning with the scows at high tide he saw, when too close to the bridge to turn back, that the planking had been washed away, leaving the stone pier unprotected. With this and other evidence before the jury, the trial court was correct in holding that the question of contributory negligence was for the jury.

2'. The decision of the first point in the above manner makes it unnecessary to consider the other point raised.

The judgment is affirmed, with costs.


author: Pee Ctietam:.

text:
    U-DRIVE-IT COMPANY, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-APPELLANT.
    Submitted October 17, 1930
    Decided April 2, 1931.

      Before Justices Case, Daly and Doyges.
    Eor the appellant, Henry H. Fryling.

    For the appellee, Herbert A. Kuvin and Jacob S. Glickenlums.

   Pee Ctietam:.

This is an appeal from a judgment of the District Court of the Second Judicial District of Essex county, in which the judge, sitting without a jury, rendered judgment in favor of the plaintiff-appellee for $125 for alleged property damage to and loss of use of an automobile owned by the plaintiff and operated by a bailee; one Zimmerman. It appears that the automobile was being driven alongside of a trolley car of appellant and was some distance in advance of the trolley car; the driver of the automobile, Zimmerman, said ñíteen or twenty feet; the operator of the trolley car put the distance at three or four feet. As they were thus proceeding at a rate of speed which Zimmerman said was about fifteen miles an hour, and the operator-of the trolley car said was about ten or eleven miles an hour, the automobile was brought to a sudden stop in order to avoid striking a small boy who ran out from the sidewalk between two parked automobiles and in front of plaintiff’s car. The trolley car struck the automobile on its left rear corner.

The appellant asserts that there is no testimony from which the negligence of the operator of its trolley car may be inferred, and that the trial judge should have nonsuited and should have directed a verdict for the defendant. From the testimony it appears that there was a question of fact as to negligence in the operation of the trolley car, inasmuch as it was testified that it was proceeding in the rear of the automobile and at a distance variously estimated at from three or four feet to fifteen or twenty feet, so that the operator of the trolley ear was under a duty of exercising reasonable care in the circumstances. The trolley operator testified that he saw the boy and that he anticipated that the driver of the automobile would be required to act, and that he might turn to the left in front of the trolley car. The stop light on the automobile signaled for a stop. The operator further testified that he could stop a car at that speed in five or six feet. This testimony, coupled with the testimony of the plaintiffs driver that fifteen or twenty feet intervened between the two vehicles, raised a question of fact for the trial judge to determine.

There being testimony to support the finding, the conclusion of the trial judge upon the disputed question of fact is not subject to review. The judgment is affirmed, with costs.


author: Pee Cueiam.

text:
    DORA BOETSCH, PLAINTIFF-APPELLEE, v. JOHN A. KENNEY, DEFENDANT-APPELLANT.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case, Daly and Donges.
    Eor the appellant, Harley, Cox & Walburg.

    Eor the appellee, William L. Greenbaum.

   Pee Cueiam.

The plaintiff brought her action in the Orange City District Court for damages for personal injuries received by her by reason of a fall on the sidewalk in front of premises owned by the defendant. The sidewalk was constructed of cement and the proofs tended to establish that several months before May 25tli, 1929, the date of the occurrence, an excavation had been made in the sidewalk at the point of the accident, which resulted in the cracking of the cement and the creation of a depression or hole in the sidewalk. It was likewise testified that loose dirt and materials were left on the pavement. A photograph, marked in evidence, exhibited this condition. It was in testimony that this condition had existed for several months before plaintiff's fall.

We are not dealing with a case of failure to keep the sidewalk in repair against wear. The case was submitted to the jury upon the legal theory that the defendant had broken the pavement and made a hole therein, and that thereafter he failed to exercise reasonable care that the hole and condition so created should not make the highway unsafe for passing pedestrians. No objection was offered by defendant to this instruction and, the case having been tried on that theory, he cannot raise it now.

“The rule is settled that when an abutting owner, for his private ends, places or maintains in a public highway anything which, if neglected, will render the way unsafe for travel, he is bound to exercise clue care to prevent its becoming dangerous, and that his failure to do so will render him liable for injuries received by a person passing along the highway, resulting from that negligence.” Rupp v. Burgess, 70 N. J. L. 7; Harrison v. New York Bay Cemetery, 77 Id. 514.

Defendant insists there was no testimony that he created the condition and that there was no duty owing by the defendant to the plaintiff. We think there was competent evidence to go to the jury on the question of the negligence of the defendant as well as the negligence of the plaintiff. The motions to nonsuit and to direct a verdict for defendant were properly denied.

The other point raised deals with the ruling of the trial court in permitting the defendant, on cross-examination, to be asked “So, up until February of this year you made no attempt to repair that condition. That’s true, isn’t it?” Defendant had already answered a similar question that he had purposely not repaired the sidewalk, so that no harm was done by its repetition. It was proper, however, in view of the introduction of a photograph taken after the accident, to show that there had been no change in the physical conditions.

The judgment of the Orange City District Court is affirmed, with costs.


text:
    AARON L. SIMON, PLAINTIFF-APPELLANT, v. GLOBE INDEMNITY COMPANY, DEFENDANT-APPELLEE.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case, Daly and Donges.
    For the appellant, Aaron L. Simon, pro se.

    For the appellee, Charles Stoclcdell Gray.

   Pee Cueiam.

This is an appeal from the action of the judge of the District Court of Passaic in striking the plaintiff’s state of demand. The plaintiff brought the action in the District Court oí the city of Clifton against the defendant under the provisions of the act of 1914, page 410, giving an attorney, counselor-at-law, or solicitor in chancery, a lien upon any cause of action, &c., for compensation. The suit in the Clifton District Court was dismissed. The judge stated that the court was without jurisdiction. Thereupon, plaintiff brought his suit in the Passaic District Court setting up somewhat different facts, but asserting a right to recover against the defendant insurance company because, he asserts, it settled a claim for damages brought by the clients of plaintiff against the insurance company’s assured. This state of demand was struck out. It is from the judgment based on this action that the appeal is taken. The plaintiff proceeds upon the assumption that the Passaic District Court judge granted the motion upon a finding that the judgment of dismissal by the Clifton District Court is a final adjudication of the matter. This was so stated by the clerk of the Passaic court in a letter to the plaintiff. The plaintiff requests that the sufficiency of the state of demand be not passed upon and requests that the matter be disposed of as if the only question involved were the correctness of the judge’s finding that the action of the Clifton court rendered the matter res adjudicata.

Under well-established rules the question is not whether the reasons assigned by the court below are sound, but whether the action taken is correct. The state of demand did not set out a good cause of action. Passing the question of the validity of the act, which is not in question, the remedy provided in the act of 1914 is by petition of the attorney, solicitor or counselor to the court in which the original action was brought by him. This admittedly was the Supreme Court, and inasmuch as the proceeding is purely statutory, the plaintiff being without remedy except by the provisions of the statute, he is obliged to go to the forum designated by the statute. Upon this ground the action of the Passaic District Court in striking the state of demand was correct and the judgment is affirmed, with costs.


text:
    BERTHA McGINLEY, PLAINTIFF-APPELLANT, v. FRANK TONTI, DEFENDANT-APPELLEE.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case, Daly and Donges.
    Eor the appellant, Evans, Smith & Evans, and John D. Master son.

    For the appellee, Stein & Stein.

   Pee Cueiam.

This is an appeal from a judgment of the Second District Court of Paterson entered in favor of the defendant. The suit arose out of an automobile collision. Plaintiff sued to recover the damage done to her car and defendant counterclaimed for the damage to his car. The court gave judgment for the defendant on his counter-claim. No point is made of the propriety of entertaining a counter-claim in a District Court action in tort.

The case presents a question of fact only. Appellant argues no other ground. There is ample support for the finding of the trial judge that the plaintiff’s husband’s negligence was -the proximate cause of the accident and that the defendant was free from contributory negligence.

The judgment is affirmed, with costs.


author: Pee. Cttbiam.

text:
    HELEN TAKACS, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. HENRY WOODCOCK, DEFENDANT.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case, Daly and Donges.
    Eor the rule, John A. Matthews.

    Contra, Elmer Friedbauer.

   Pee. Cttbiam.

This is a defendant’s rule to show cause bringing up a verdict in favor of the plaintiff after a trial at the Passaic Circuit.

The first reason assigned is that the verdict is against the weight of the evidence. Plaintiff’s deceased was a passenger in a ear driven by one Cooper on Broad street in Eidgefield Park. Cooper says he was in a line of cars going from twenty to twenty-five miles an hour. A car passed him, pulled in line in front of him and slowed down. Cooper had to swerve to his left out of line and stop momentarily. He says that while stopped he saw defendant’s car coming down the street in the opposite direction at a high rate of speed. He hesitated for a few seconds and then put his car in motion in an effort to get out of the way. He was unsuccessful and a collision resulted. He says when he first pulled to the left and saw defendant’s car it was one hundred and fifty feet away. Defendant did not slow down but came on at a high rate of speed.

Other passengers in the car corroborated his story. The plaintiff herself says that when defendant’s ear was some distance away she saw that he had his head turned to the side apparently in conversation with someone in the car.

Defendant’s story was that Cooper was cutting in and out of line passing cars, and cut out of line directly in front of him when it was too late to avoid a collision.

From the testimony the jury was justified in finding the defendant negligent. Nor is the verdict so clearly against the weight of the evidence that it can be said to be the result of bias or prejudice. There was evidence of defendant’s negligence and of Cooper’s negligence.

The second reason is that the verdict is excessive. At the time of the accident the deceased was twenty-four years of age, in good health and the father of a five-months’-old child. He earned from $28 to $30 per week. The verdict was for $12,500. In view of the youth of the deceased and his long expectancy of life we do not regard this amount as excessive.

The rule to show cause will be discharged.


text:
    GILBERT FRANKE, PLAINTIFF, v. JOHN A. REDDAN, DEFENDANT.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case, Daly and Donges.
    For the rule, James J. McGoogan.

    Contra, By man Herr.

   Pee Cubiam.

This is defendant’s rule to show cause why a verdict for $10,552 in favor of the plaintiff for personal injuries sustained by reason of a collision with defendant’s automobile should not be set aside. The only question raised is as to the amount of the verdict.

The damages claimed in the complaint were $10,000. The verdict in excess of that amount is unlawful and will have to be set aside. Plaintiff, however, agrees to remit the excess and this may be done under Rafferty v. Bank, 33 N. J. L. 368, and Excelsior Electric Co. v. Sweet, 59 Id. 441.

Plaintiff sustained a compound fracture of the tibia and fibula of the left leg. He also had some minor injuries to the head. The medical testimony was that his left leg is one inch shorter than the other, and that at the present time he walks with a slight limp. Plaintiff is in his early twenties and the probabilities are that he will make a good recovery.

We are of opinion that the verdict is excessive and should be reduced to $7,500, or a new trial granted. Carero v. Breslin, 128 Atl. Rep. 883. If the plaintiff will remit the excess over $7,500 the rule will be discharged, otherwise the rule will be made absolute.


author: Pek Cukiam.

text:
    VICTOR J. KANTOR, PLAINTIFF-APPELLEE, v. THE GUARANTEE BUILDING AND LOAN ASSOCIATION OF THE CITY OF NEWARK, NEW JERSEY, AND CHARLES HOOD, DEFENDANTS-APPELLANTS.
    Submitted October 17, 1930
    Decided April 2, 1931.

      Before Justices Case, Daly and Donges.
    For the appellants, Charles Hood.

    For the appellee, Harry Loeb.

   Pek Cukiam.

Plaintiff brought suit to recover the amount of a check of $500 given to defendant Hood on account of a transaction in which The Guarantee Building and Loan Association had granted a mortgage loan to M. & W. Eealty Company. Hood was-attorney for the association.

The testimony is to the effect that Kantor gave the check to Hood as a deposit against search fees and that it was to be returned “upon the closing of the mortgage,” or as another witness said “to be returned when the loan was closed.” Hood testified that the check was given as a retainer. Kan-tor was not interested in the M. & W. Eealty Company. He was an officer in a company which was making sale to the M. & W. Eealty Company of the property to be mortgaged.

Hood had information that the mortgage to be executed by the M. & W. Eealty Company was in fact executed by persons who were not officers, and were not even stockholders. Thereupon, he caused the mortgage, which had been recorded, to be canceled of record, and no further action was taken to complete the transaction.

■ Motion was made for a nonsuit as to both defendants. No motion was made for direction of a verdict as to either appellant. In appellants’ brief it is stated:

“The defendant-appellant Hood waives the specification for the nonsuit in his behalf, but urges such nonsuit in behalf of the defendant-appellant The Guarantee Building and Loan Association of the city of Newark, New Jersey.”

There is no proof of any transaction between Kantor and the association or that any money was paid to Hood for it. We are unable to find any evidence of any relationship between Kantor and the association, and conclude that the motion to nonsuit as to The Guarantee Building and Loan Association should have been granted.

The case as to Hood is submitted to us on the theory that the preponderance of the evidence favors Hood and not Kan-tor. The verdict can be set aside only for error in law and not on the weight of the evidence. Oppicci v. Erie Railroad Co., 93 N. J. L. 394; Breithart v. Lurid, 98 Id. 556.

As the case was submitted to the trial court, it involved disputed questions of fact. Appellant in his brief says that the court should have disregarded the oral testimony which tended to vary a written receipt. There was, however, no motion to the court upon which he was called upon to act, and no suggestion by defendants that the ease was to be dealt with except as one of fact. Under these circumstances we conclude that the judgment as to Hood must be affirmed.

The judgment against The Guarantee Building and Loan Association is reversed, with costs, and the judgment against Charles Hood is affirmed, with costs.


text:
    MICHAEL VANGARA, PLAINTIFF, v. FISCHER BAKING COMPANY, DEFENDANT.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case and Donges.
    Eor the rule, Stein, McGlynn & Hannoch.

      Contra, David T. Wilentz.

   Pee Cubiam.

This is a defendant’s rule to show cause why a verdict should not be set aside as against the weight of the evidence. The case was tried at Middlesex Circuit and resulted in a verdict in favor of the plaintiff in the sum of $5,500. The plaintiff, a man sixty-one years of age, employed by the Pennsylvania railroad as a laborer, was struck by defendant’s truck while attempting to board a trolley car. The accident occurred at about one o’clock in the afternoon.

Plaintiff testified that on the day of the accident he left work and walked to the corner of Erelinghuysen and Haynes avenues in Newark to wait for a trolley car going north. It was raining. On the corner where he says he waited stands a one-story brick building. He says he stood against this building because of the rain until he saw the trolley approaching. He had waited there a half-hour. When the trolley came he walked out to the curb, stopped there and looked south. He saw the defendant’s truck about seventy or seventy-five feet away. The trolley stopped. He stepped off the curb to walk out to the trolley and after proceeding about seven feet was struck by the truck. He said the truck was going fast but he could not tell how fast.

Thomas Carney, the operator of the trolley car, testified that he slowed down as he approached the intersection in question. At first he saw no one wanting to board his car and then saw the plaintiff running down Haynes avenue toward Erelinghuysen. Plaintiff was about twenty-five feet from the corner of the building down Haynes avenue. Carney stopped his car to wait for plaintiff. Plaintiff ran to the curb line, stopped, looked south, and then started to walk out to the trolley. He had proceeded about three or four feet when defendant’s truck struck him. The truck went twenty-five feet after striking plaintiff and skidded slightly in stopping. The truck passed completely over plaintiff and witness saw the rear axle strike plaintiff’s head. When the truck'stopped plaintiff was lying a foot or two in back of the truck. He saw a fireman run up and assist in putting plaintiff in the truck.

This was the plaintiff’s ease.

The defense was that there was no trolley car at the corner when plaintiff ran out into the street. Harold Clover, driver of defendant’s truck, testified that he had been running up Erelinghuysen avenue with a trolley on his left and a bus on his right, but that he had passed them two blocks before reaching the scene of the accident. He says on direct examination: “When I got within twenty feet of Haynes and Erelinghuysen avenues, I seen a figure leaving this building on Haynes avenue and Erelinghuysen avenue, well, I should judge, I was about twenty feet from that curb line when I seen this figure leave the building, and when I seen him leave the building I cut my truck to the left and applied both my brakes, causing my truck to go to the left and turn sideways, and proceeded about—I should judge the truck proceeded about ten or fifteen feet, when Mr. Vangara hit the right front fender with his head.” He says the accident occurred right at the curb line of Haynes avenue. He says plaintiff was running in a bent position and did not look or stop before running out into Erelinghuysen avenue. His truck was going twenty miles an hour. After the accident plaintiff was lying at the right front wheel of the truck.

Arthur Erd, a fireman and a passenger on the bus mentioned above, testified for defendant. He testified that the bus stopped suddenly behind the truck which was turned partly across the street. That he got out and helped the driver raise plaintiff. That there was no trolley at the corner when he arrived there but it came along afterwards. He is very emphatic about this. He did not see the accident.

William H. Todd, the driver of the bus, did not see the accident. He says when he arrived at the corner there was no trolley there but that it arrived later.

The testimony is in conflict and the weight of the testimony is with the defendant. In addition to the testimony the circumstances support the defendant’s version of the occurrence. In this situation a new trial should be ordered.

The rule to show cause is made absolute.


text:
    MARY E. POULTON ET AL., PLAINTIFF, v. WILLIAM H. MERZ AND EDWARD HYERS, DEFENDANTS.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case, Daly and Donges.
    For the defendant William H. Merz, Norman W. Harlcer.

    For the defendant Edward Hyers, James Mercer Davis.

    For the plaintiff, Ira F. Smith.

   Pee Cueiam.

■ Defendant Merz, who was sued with one Hyers, has this rule to show cause to review a judgment in favor of the plaintiff Mary E. Poulton in the sum of $3,000.

Plaintiff was a passenger in a bus of the defendant Merz which was proceeding southerly on state highway near Oyster creek, Ocean county, when it collided with a northbound automobile driven by the defendant Hyers.

1 and 3. The first grounds argued are that the court erred in refusing to nonsuit or direct a verdict for Merz. The defendant asserts that the pleadings were not sufficiently broad to cover the negligence as submitted to -the jury. But this is not so. The allegations of negligence were that both defendants failed and neglected to have the vehicles under proper control; that they undertook to pass while operating at 'a high and excessive rate of speed; and that they failed to have due and proper regard for persons using the highway and especially passengers in the bus. There was evidence of negligence for the jury to pass upon. The case was submitted to the jury by the trial judge for its determination as to whether or not the negligence of the operator of the bus was the cause of the collision and consequent damage. The motions to nonsuit and to direct a verdict for the defendant were properly denied.

3. The third point raised by the defendant is that the trial court erred in its refusal to admit in evidence a statement and a card both signed by the plaintiff Mary E. Poulton, having to do with the collision complained of. The trial judge declined to admit them in evidence apparently upon the ground that, while the proffered evidence might be admissible against the defendant Merz, it was not admissible against the other defendant, Hyers. The female plaintiff admitted signing both the card and the statement. If the paper was admissible on behalf of the defendant Merz, it should have been admitted with proper instruction to the jury to disregard it as being evidential against the other defendant. Both of these proffered papers contained statements as to how the accident happened and as to the conduct of the driver of the defendant Merz’ bus which tended to contradict the claim of the plaintiff that such driver was negligent. It is true that parts of the papers were put in evidence, but in our view the jury was entitled to have the papers themselves and it was error for the court to decline to admit them in evidence.

The rule to show cause will be made absolute.


author: Pee Curiam.

text:
    JESSIE AMBS, PLAINTIFF-APPELLANT, v. JERSEY MUTUAL CASUALTY INSURANCE COMPANY, DEFENDANT-APPELLEE.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case, Daly and Donges.
    For the appellant, Michael J. Tansey.

    For the appellee, George F. Seymour, Jr.

   Pee Curiam.

This is an appeal from a judgment of the Orange District Court. Plaintiff sued to recover the amount of a judgment by default recovered by her in the Second District Court of Newark in the sum of $500 against one Paul Bren'nan for injuries alleged to have been received in an accident involving a taxicab. The judgment was recovered on November 27th, 1929. The accident occurred on June 23d, 1929. Execution was issued and returned unsatisfied.

The policy of insurance, which was marked Exhibit P-1 and which was issued in accordance with the provisions of chapter 231 of the laws of 1926, was issued on February 1st, 1929, and expired on February 1st, 1930. The policy originally covered a 1926 Oakland cab and continued to cover said Oakland cab until the 26th day of June, 1929’ (three days after the accident), when by endorsement the policy was made to cover a Dodge ’27, five-passenger cab.

It was undisputed in the testimony in the District Court that the ear involved in the accident and driven by the original defendant, Brennan, was a Dodge car; and that he sold the Oakland sometime prior to the date of the accident but neglected to have the insurance made to apply to the Dodge ■car which was purchased in place of the Oakland.

In this situation the judge rendered judgment for the defendant, and inasmuch as by the terms of the contract of insurance, the car which without dispute was involved in the occurrence was not covered by the contract of insurance, the judgment for defendant was properly entered.

The judgment is affirmed, with costs.


text:
    JEFFERSON MACARONI COMPANY, PLAINTIFF-RESPONDENT, v. THE PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Daly and Donges.
    Eor the appellant, Wall, Haight, Carey & Hartpence.

    For the respondent, Pierson, Schroeder & Brand.

   Pee Cubiam.

This is an appeal from a judgment of'the District Court of the city of Hoboken. Plaintiff on May 17th, 1928, delivered to defendant for carriage to Hoboken two hundred boxes of macaroni valued at $250. The goods were shipped under a bill of lading delivered by defendant to the plaintiff, which recites that the property was delivered to defendant in apparent good order. The defendant delivered the goods to the Delaware, Lackawanna and Western Railroad Company, as a connecting carrier, to be delivered to the point of destination, to wit, Hoboken. On May 26th, 1928, the consignee received notice from the carrier of the arrival of the goods and called at the carrier’s office to receive the two hundred boxes and pay the freight charges therefor. Eighteen boxes were broken and their contents either missing or damaged. Whereupon consignee declined to take the eighteen boxes and declined to pay freight on same, but offered to accept the balance of the shipment and pay the freight charges on that portion. This offer was refused and the macaroni that was in good condition remained in the hands of the railroad company, which put it in storage on the 31st day of May, 1928, notifying plaintiff of such storage. On October 19th, 1928, the shipment was sold for $100 to satisfy storage and freight charges of $100.56. No notice of the sale was given to the plaintiff or to the consignee.

The appellant insists that there was no evidence that the goods were in good condition -when received by it, and that, in any event, it was not bound to release its lien on any of the goods until the entire amount of freight charges was tendered.

The statement in the bill of lading that the goods were received in apparent good condition makes out a prima facie case against the carrier that the goods were in good condition and shifted the burden to the defendant. No explanation was offered by defendant as to the condition of the goods when received.

Under the Carmack amendment, the initial carrier, this defendant, would be liable for the delivery of the goods ■whether shipped over its own line or a connecting carrier’s line.

Until the carrier was in position to make delivery in the condition in which the goods were shipped, the carrier was not entitled to have its freight charges, and neither the consignee nor the plaintiff was obliged to accept the damaged goods and pay freight therefor, and the consignee was justified in the circumstances in declining to receive the entire shipment upon the refusal of the railroad company to receive freight for the undamaged part and to make delivery thereof or to make allowance for the damage. 10 Corp. Jur., p. 447, § 705.

Judgment is affirmed, with costs.


author: Per Curiam.

text:
    RITA ORSINI, PLAINTIFF-APPELLEE, v. METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case, Daly and Donges.
    For the appellant, McCarter & English.

    For the appellee, Nicholas A. Tomasulo and Eugene A. Lio l la.

   Per Curiam.

This is an appeal from a judgment for plaintiff in an action brought by her on a policy of life insurance issued by appellant, insuring Anna DeStefano, the mother of plaintiff.

1. Under point one of its brief, appellant urges that plaintiff below was not entitled to sue for the proceeds of the policy.

The policy provides that the insurer will “pay * * * to the executor or administrator of the insured, unless payment be made under the provisions of the next succeeding paragraph.” Then follows a facility of pajunent clause, which permits the insurer to make payment to certain persons. It has been held that this clause is for the convenience of the company and payment so made absolves the company from further liability. In this case the company did not make payment to any person.

The policy further provided:

“The conditions, privileges and concessions to policyholders, schedule on page 4 hereof, and any endorsement either printed or written as made by the company, on any of the pages following, are a part of this contract as fully as if recited over the signatures hereto affixed.”

Under the caption “Space for Endorsements referred to in conditions on page 2: * * * Space for waivers by the company,” appears the following:

“Subject to the provision of the policy authorizing payment at the company’s option to other persons, - Rita Orsiner daughter
(Name) (Relationship to Insured)
lias been designated beneficiary, to receive death benefit only.
August 33d, 1928. W. C. Fletcher,
Secretary.”

By the terms of the contract plaintiff below was designated as beneficiary to receive the death benefit, and, in our opinion, may maintain suit.

2. Appellant’s second point is that there can be no recovery under the policy because insured was not in sound health on the date of the issuance of the policy, and because within two years prior thereto she had been attended by a physician for a serious complaint and had a disease of the kidneys. The policy contained this provision:

“If (1) the insured is not alive or is not in sound health on the date hereof; or if (2) before the date hereof, the insured * * * has, within two years before the date hereof, been attended by a physician for any serious complaint, or before said date, has had any * * * disease of the * * * kidneys * * * the company may declare this policy void and the liability of the company in the case of any such declaration or in the case of any claim under this policy, shall be limited to the return of premiums paid on the policy, except in the case of fraud, in which case all premiums will be forfeited to the company.”

The proofs fail to show that the company declared the policy void. It did, however, resist payment of the claim upon the grounds stated, and upon other grounds.

The policy was dated August 6th, 1928. The insured died September 24th, 1928.

Three physicians produced by appellant testified they had treated Mrs. Anna DeStefano, the insured, for serious ailments.

Dr. Abijah 0. Buck testified that he had treated insured for chronic nephritis, a disease of the kidneys, in July, 1928, and that, in his opinion, she was not in sound health on the date of the policy.

Dr. Frederick Luongo testified that in 1927 he had treated her for purulent cystitis, which he characterized as a serious complaint. lie further said the condition for which he treated her was incurable.

Dr. Howard F. Brock testified that he attended insured from October 12th, 1926, to February 5th, 1927, and that she was suffering from umbilical hernia, cystitis and nephritis and that tire last-mentioned diseases are serious.

There was no testimony offered to contradict the testimony of these three physicians. The court was, therefore, bound by this uncontroverted testimony. McAuliffe v. Metropolitan Life Insurance Co., 93 N. J. L. 189.

Prom this testimony it appears that, contrary to the terms of the policy, insured was not in sound health on August 6th, 1928, and that within two years before that date she had been attended by a physician for a serious disease or complaint, namely, kidney disease.

In such situation, the policy provides that in the case of any claim under the policy, the liability shall be limited, in the absence of fraud, to the return of premiums paid. We conclude that, under the proofs, there could be no recovery of the sum payable under the policy, and the judgment must be reversed.

The judgment of the District Court is reversed, with costs.


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    JOHN J. BOWEN, PLAINTIFF-RESPONDENT, v. FREEMAN A. GODFREY ET AL., DEFENDANTS-APPELLANTS.
    Submitted October 17, 1930
    Decided April 2, 1931.
    Before Justices Case, Daly and Donges.
    Eor the appellants, Collins & Gorlin.

    Eor the respondent, William J. Cain and Feinlerg & Feinlerg.

   Per Curiam.

This is an appeal from a judgment of the Bayonne District Court in favor of the plaintiff entered upon the verdict of a jury. Plaintiff is the owner of a building in which defendants erected a thirty-five-foot stack for plaintiff’s tenants. The allegation was that the work of erecting the stack was so negligently done as to cause damage to the roof of plaintiff’s building.

The single point argued upon this appeal is that there was no evidence of any negligence on the part of the defendants, which was the proximate cause of the damage in this case.

Plaintiff proved, by his own testimony and that of several others, that before the work was done the roof was in good condition and that immediately thereafter it commenced to leak in many places. Plaintiff testified that he visited the premises while the work was in progress and found that defendants had dragged a heavy section of the stack over the coping of the roof in such a manner as to bréalo a piece out of it. lie testified as follows: “They started to rivet

with hot rivets and cut them off with a cutter, and when they cut them they dropped them on the roof and burned holes through the roof. As soon as they cut the rivets they dropped down and burned holes through the roof. I talked to the boss about it and he said, fwe will fix it up. You don’t need to worry.’ ” He testified that seven skylights had been pried loose from the roof in order to run ropes down into the building and some of them were broken, and that the paper under the slag roofing was torn up .in places by bars used to skid the stack across the roof. He testified that he remonstrated with the workmen because they were using insufficient planking to protect the roof and that they promised to use more, which they did, but still not enough.

The above is certainly evidence of negligence in doing the work. Of course, it was all very vigorously denied by the 'defendants and their witnesses. But the position of the defendants is, and must be, that there is no evidence at all of negligence. They claim the proof was uncontradicted that the erection was done strictly in accordance with the expert way of doing it. It was open to the jury from the evidence before it to believe that pieces of red hot rivets were permitted to burn through the roof. Certainly no expert testimony was required to prove that this was not the proper way to do the work. The complaint of the plaintiff was not with the general method used to erect the stack, but with the negligent manner in which this method was employed.

In their brief the appellants entirely overlook the above testimony of the plaintiff and seem to discuss the case as if the question were merely one of whether or not they had employed methods approved by sound engineering. The question is whether or not the agents of the defendants negligently dug the points of bars into the roof in sliding the sections of the stack, negligently allowed red hot rivets to damage the roof, and negligently tore loose immovable skylights from the roof in such manner as to break them. There was evidence to this effect. The jury believed this evidence, and the judgment cannot be disturbed because they did believe it rather than’ the evidence of the defendants. Under the District Court act this judgment can be reversed only if there is no evidence at all to support it.

The judgment is affirmed, with costs.


text:
    ROBERT ROSS, PLAINTIFF-APPELLEE, v. NEVIN BUS LINES AND EARNEST KIMBALL, DEFENDANTS-APPELLANTS.
    Submitted October 17, 1930
    Decided April 2, 1931.

      Before Justices Case, Daly and Dokges.
    Eor the appellants, Charles C. Colgan.

    Eor the appellee, no appearance.
   Per Curiam.

This is an appeal from a judgment of the Second District Court of Jersey City in favor of the plaintiff for damage to his automobile. The suit grows out of an automobile collision involving the plaintiff’s car, the bus of the defendant Nevin Bus Lines, driven by the other defendant Kimball, and a truck of the Standard Laundry Company.

Plaintiff parked his car along a street known as the Boulevard in Jersey City. Immediately behind it was parked the Standard Laundry truck. The bus of the defendant struck the laundry truck and drove it against plaintiff’s car, damaging it to a considerable extent. The defendants’ contention was that the laundry truck pulled out from the curb directly in front of the moving bus when there was no opportunity for the driver of. the bus to avoid a collision. However, the driver of the truck says he started to pull out but, noticing some oil under the truck, he stopped and alighted. He claims the collision occurred while the truck was thus standing still and he was out on the street looking under the truck.

1. Defendants contend first that the court should have granted a nonsuit on the ground that there was no evidence of negligence. The testimony of the driver of the laundry truck presented evidence from which negligence could be inferred. The refusal to nonsuit was proper.

2. The defendants contend that the court should have directed a verdict for the defendants on the ground that there was no evidence of negligence. What has been said above applies to this point. A question of fact was presented by the evidence and since there is support for the finding of ihe trial judge it will not be reversed. The appellants discuss the doctrine of res ipsa loquitur but it is not necessary to invoke this doctrine to sustain the judgment in this case. The testimony of the driver of the laundry truck presented direct evidence of negligence, namely, running into a vehicle standing for sometime in plain view upon the roadway.

3. That the trial court erroneously allowed the plaintiff to testify as to the value of his car before and after the accident. Appellants cite Teets v. Hahn, 104 N. J. L. 357, in support of this contention.. However, the following quotation from that case seems to defeat rather than uphold this contention:

“Furthermore, it appears that when the plaintiff was asked what the car was worth before the collision the question was objected to by defendant’s counsel on the ground that he was not qualified to testify to the question, but it involved expert knowledge, and the trial judge sustained the objection. This ruling on the part of the trial judge was erroneous. We think the plaintiff, who was a carpenter and builder, was competent to give his opinion as to the value of his car before the collision. To give such testimony did not involve expert knowledge.”

This line of reasoning also applies to the value after the collision. His testimony of the value after the accident was based on the price he sold it for, which he testified was the best price he could get. There is no merit in this point.

4. That the trial court erroneously allowed Fred Blanche, a witness, to testify as to the value of the car before and after the accident. An examination of the record discloses that no exception was taken to the giving of this evidence. Furthermore, the witness, while being examined as to his fitness to give this evidence, qualified as an expert. He testified that he had bought a great manjr cars of all makes and had acted for others in the purchase of cars.

5. That the trial court erroneously refused to allow the records containing the testimony given by one of the witnesses in a prior trial into evidence for the purpose of attacking the veracity of the evidence given by the said witness. This apparently refers to a hearing before a police court judge involving the same accident. It appears from the record that the record offered was not a stenographic report of testimony but the notes of the police court judge concerning the testimony given before him. The police judge was not offered as a witness to prove what was said. Clearly these notes were properly excluded from the evidence.

The judgment is affirmed, with costs.


text:
    GEORGE C. SIMON, FRIEDA STARKES, DANIEL KOHL AND FRANCES KOHL, HIS WIFE, PLAINTIFFS, v. CHARLES A. WENDT, DEFENDANT.
    Argued October 7, 1930
    Decided April 8, 1931.
    Before Gummeee, Chief Justice, and Justices Tbenci-iaed and Lloyd.
    Eor the rule, Egner & Beatty (Lloyd G. Beatty, of counsel).

      Contra, Heine & Laird (Charles J. Molloy, of counsel).
   Pee Cubiam.

The jury rendered a verdict against the defendant and in favor of the plaintiff Daniel Kohl for $435, and in favor of the latter’s wife, Prances Kohl, for $50.

Thereupon Daniel Kohl and Prances Kohl obtained this rule to show cause why such verdicts should not be set aside, upon the ground that the damages awarded them were inadequate.

It appears that Kohl and his wife at the time of the accident were riding with George C. Simon, by his invitation, in an automobile, and were injured in a collision between that automobile and the defendant’s truck.

The only question argued is as to the amount of the damages. We think that it cannot be said, in view of the evidence, that the verdict of $435 awarded to Daniel Kohl is inadequate. Under familiar rules the jury might with propriety have found the verdict that they did.

Por the same reason we think that it cannot be said that the verdict for $50 in favor of Prances Kohl is inadequate.

That both plaintiffs were injured more or less is undisputed ; but it is contended, and the evidence reasonably tends to show, that their injuries were not serious, and we cannot say that the jury erred in disregarding in- whole or in part the evidence of the husband as to his business losses.

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


text:
    AUTOCAR SALES AND SERVICE COMPANY, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, A CORPORATION, DEFENDANT.
    Submitted October 18, 1930
    Decided April 8, 1931.
    Eefore Gummebe, Chief Justice, and Justice Trenchard.

      For the rule, Starr, Summerill & Lloyd (Frank T. Lloyd, Jr., of counsel).

      Contra, Kenworthy & Clark (Bennett Clark, of counsel).
   Per Curiam.

This is defendant’s rule to show cause why plaintiff’s verdict should not be set aside.

At three-thirty A. M., on June 16th, 1929, Harry Pomeroy was operating a truck owned by the plaintiff on Spruce street in North Wildwood. As he approached the grade crossing of the defendant company’s tracks, he says he stopped, when fifteen feet away, and looked, and saw and heard nothing. He then proceeded to cross. When about half way across his truck was hit and injured by the defendant’s locomotive. The testimony of his brother, who was riding with him on the driver’s scat, was to the same effect.

The negligence upon the part of the defendant claimed was a failure to give the statutory grade crossing signal by bell or whistle. As opposed to plaintiff’s testimony touching this, there was produced by defendant three witnesses who said that such signal was given, both by bell and whistle.

On the question of liability thus presented, we think that the verdict for the plaintiff was against the great weight of the evidence. The testimony to the effect that the statutory signal was not given was very unsatisfactory, while, on the other hand, the testimony that it was given was convincing.

It was shown without dispute that seventy-five feet back from the track, as the truck approached it, and from that point forward, there was an unobstructed view of the track in the direction from which the locomotive came, for more than eight hundred feet. The night was clear and the visibility good. The truck of the plaintiff in which plaintiff’s witnesses were riding had an enclosed body, and they were sitting on a seat which was enclosed, and the most reasonable inference from the testimony presented is that the driver of the truck for some reason failed to exercise his senses of sight and hearing.

The rule to show cause will be made absolute.


author: Per Curiam.-

text:
    GEORGE LE VAY AND ELIZABETH LE VAY, PLAINTIFFS, v. BINGAMAN MOTOR EXPRESS COMPANY (A PENNSYLVANIA CORPORATION), DEFENDANT. FRANK E. TROTT, PLAINTIFF, v. BINGAMAN MOTOR EXPRESS COMPANY (A PENNSYLVANIA CORPORATION), DEFENDANT.
    Submitted October 18, 1930
    Decided April 8, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the rules, McCarter & English (Gerald M. F. McLaughlin., of counsel).
    Contra, Francis A. Gordon.

   Per Curiam.-

The jury rendered a verdict for George Le Vay for $500, for Elizabeth Le Vay $1,500, and for Erank E. Trott $5,125 in these suits, arising out of the same accident, which were tried together and have been argued here together. The defendant obtained these rules to show cause why the verdicts should not be set aside.

Two questions only were argued: (1) that the verdicts are against the weight of the evidence, and (2) that the verdicts are excessive.

At the trial the evidence reasonably tended to show (if the jury saw fit to believe, the evidence upon the part of the plaintiffs, as they seem to have done) that the plaintiff Prank Trott was driving a Pord automobile along the Lincoln highway from New Brunswick to Linden, and that Le Yay and his wife and others were riding with him, on the afternoon of January 15th, 1927. It was snowing hard when the accident happened. Trott was driving slowly when he saw the defendant’s Mack truck coming up the center of the road, about fifty feet away. He had not seen it farther away because it was snowing so hard. The windshield of the truck was entirely covered with snow; the windshield of the Pord car was kept reasonably clear by the wiper. Immediately before the accident the truck veered toward Trott, who was well over on his right side of the road. Perceiving this, Trott moved his ear still farther over to the right with two wheels off the concrete. Notwithstanding this precaution the truck hit the left side of the body of the Pord car and turned it completely around, and struck it again in the back. Three witnesses so testified.

We have examined the testimony produced by the defendant to the effect that, while Trott at first was on his proper side of the road, his car skidded from its side to the other side of the road and hit defendant’s truck in the rear. But that evidence has not persuaded us that the verdicts are against the weight of the evidence. In this connection we notice that even the defendant’s evidence is to the effect that the Trott car was "swiped” on the left-hand side.

We have examined with care the evidence with respect to damages.

We think the verdict for $500 in favor of George Le Yay and that in favor of Elizabeth Le Yay for $1,500 are amply supported by evidence. Hence the rule in respect to them will be discharged, with costs.

We think, however, that the verdict in favor of Prank E. Trott for $5,125 is plainly in excess of the amount warranted by the evidence. If Trott will consent to a reduction of the verdict to $4,000 he may enter judgment for that amount;, otherwise the rule to show cause will be made absolute.


text:
    LEO A. DEGNAN, PLAINTIFF, v. HARGREVEN RANCHOD AND ONOFRIO M. GIACOMO, DEFENDANTS.
    Submitted October 18, 1930
    Decided April 8, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the rule, Pearce B. Franiclin.

      Conira, CouU, Saiz & Tomlinson, for defendant Hargreven Ranchod; Green & Green, for the defendant Onofrio M. Giacomo.
   Per Curiam.

The jury rendered a verdict in favor of plaintiff and against defendant Ranchod for $300 and a verdict in favor of defendant Giacomo. Plaintiff obtained this rule to show cause why such verdicts should not be set aside.

Plaintiff does not seem to argue that the verdict in favor of defendant Giacomo was wrong. It was well supported by the evidence, and the rule to show cause in so far as that verdict is concerned will be discharged, with costs.

Plaintiff does argue, however, and has assigned as a reason for a new trial, that the verdict of $300 against the defendant Ranchod was inadequate.

The accident happened while plaintiff, who was an invitee in the automobile of defendant Ranchod, was being driven by an agent of the latter in an easterly direction on a public highway in Hunterdon county, at which time and place the truck of defendant Giacomo was standing on the highway, facing eastwardly, on the right-hand side of the road. The accident happened on the night of October 5th, 1928. The automobile of defendant Banehord, while traveling fast, collided with the rear end of the truck, and plaintiff was thrown forward to the front part of the car and was injured about the head, body and foot.

When we come to consider the verdict for $300 in favor of the plaintiff, in the light of the testimony, particularly respecting the severity of the injury, the consequent pain and suffering and the consequent loss of earning power, it seems quite plain that the verdict is so inadequate as to show that the jury was either mistaken or influenced by prejudice.

The rule to show cause as to defendant Ranchod will be made absolute and a new trial granted upon all of the issues in plaintiff’s case against such defendant.


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    JOHN WALSH, PROSECUTOR, v. CHARLES M. EGAN, JUDGE OF OUR COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF HUDSON ET AL., DEFENDANTS.
    Submitted February 2, 1931
    Decided April 9, 1931.
    Before Justices Pabkeb, Campbell and Bodine
    For the prosecutor, Frank J. V. Gimino.

    For the respondents, John Drewen.

   Pee Cueiam.

The prosecutor was tried and convicted in the First Criminal Court oí Jersey City on a complaint charging him with driving a motor vehicle while under the influence of intoxicating liquor in violation of the provisions of the Motor Vehicle act of 1921, as amended. An appeal was taken to the Common Pleas. The record of conviction in that court was brought before us, and the pertinent portion thereof is as follows: “Sept. 25/30. Evidence closed and court sustains former conviction and finds the defendant guilty. The defendant being placed to the bar is sentenced to be confined in county jail for a period of three (3) months or to pay a fine of two ($200) hundred dollars.”

In Knight v. Kinkead, 104 N. J. L. 459, this court said: “The rule appears to be settled that the record of the Common Pleas on a retrial in these classes of cases must reasonably show that the defendant was convicted of the offense that had been charged in the complaint, and if it failed so to show it in reasonable intendment, the proceedings in the Common Pleas must be set aside.”

There is nothing to indicate the offense charged in the complaint, or what the complaint was, except the fact that the charge against the prosecutor was a violation of the Motor Vehicle act. That circumstance appears in the caption, but then there are a number of violations of the Motor Vehicle act which may be charged, so there is nothing to indicate what the offense was for which there was a conviction.

It is unnecessary to consider the other points raised in the prosecutor’s brief.

The judgment of the Common Pleas is reversed and set aside.


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    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PLAINTIFF, v. ELIZABETH DUSSINGER, DEFENDANT.
    Submitted February 2, 1931
    Decided April 9, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the plaintiff, William A. Stevens, attorney-general.
    Eor the defendant, Maclyn S. Goldman.

   Per Curiam.

The writ of certiorari in this case brings up for review a determination of the Eirst District Court of the city of Newark, that the defendant had not violated section 10 of an act to regulate the practice of medicine. Pamph. L. 1894, p. 454, as amended.

The District Court judge found that there were no electrical treatments given. The signs displayed indicated that the place was a gymnasium where baths and massage were given. The devices employed were baths, heat, massage and an electrical vibrator, together with heat from a sun ray lamp.

After carefully examining the whole record, we reach the conclusion that the evidence supports the findings of the court below.

The writ will, therefore, be dismissed.


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    LESTER BANNON ET AL., PLAINTIFFS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY ET AL., DEFENDANTS.
    Submitted February 2, 1931
    Decided April 9, 1931.
    Before Justices Parker, Campbell and Bodine.
    For Lester Bannon et al., Thomas J. Armstrong.

    For the Public Service Co-ordinated Transport, William PL. Speer.

   Per Curiam.

The present writ brings up for review a decision of the board of public utility commissioners holding that the opera: tion of a number of private buses on the Montgomery and West Side avenue bus route in Jersey City beyond the junction of Culver and West Side avenues was unlawful. The decision is rested upon two grounds: (1) that there was no operation shown on the extension of the route prior to March 15th, 1921; and (2) there was no municipal consent within the meaning of Pamph. L. 1921, p. 390.

“To.be exempt from.such jurisdiction the owners of a jitney bus line must not only operate it over the same route used by them at the time of the enactment of the amendment, but that operation, must be carried on ‘under and in accordance with the consent of the municipal authorities granted therefor prior to March 15th, 1921.-’ Assuming for the purpose of the decision that the extension of a route does not change its inherent characteristics [a proposition which, we think, is at least doubtful], the prosecutors do not come within the protection of the amendment unless they can show that they are running their buses over the extended route, under a consent of the municipal authorities granted prior to the date declared in the statute.” Bechman v. Board Public Utility Commissioners, 2 N. J. Mis. R. 102.

The provisions of Pamph. L. 1921, p. 390, so far as pertinent, are as follows: “The board shall have general supervision and regulation of, jurisdiction and control over, all public utilities.

“Nothing heroin contained shall extend the powers of the board * * * to include any supervision and regulation of, or jurisdiction and control over, the operation of any auto bus, commonly called jitney, over its present route, under and in accordance with the consent of the municipal authorities granted therefor prior to March fifteenth, one thousand nine hundred and twenty-one.”

To oust the board of its jurisdiction over buses there must have been municipal consent to operation over an existing route prior to March loth, 1921. The proofs in this case indicate that there was no such municipal consent and no route such as now claimed existed. A bus starter directed the operation of the buses in question as traffic demanded.

Pamph. L. 1926, p. 226, does not vary the situation.

The operation of buses in question over the route was disallowed in 1928, and this action was acquiesced in by the prosecutors.

It therefore seems that since the present operators lack the approval of the board, and do not fall within the exception indicated in the statute above cited, that the action of the board was proper, and the rule must be dismissed, with costs.


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    FREDERICK A. BIERS, PROSECUTOR IN CERTIORARI, v. A. W. KNOWLES, RECORDER OF THE TOWNSHIP OF MOUNT OLIVE, DEFENDANT IN CERTIORARI.
    Submitted February 2, 1931
    Decided April 9, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutor, Elmer M. Bomine.

    Eor the defendant, King & Vogt.

   Per Curiam.

The prosecutor was convicted before the recorder of the township of Mount Olive of the violation of section 1 of a township ordinance prohibiting the operation of places of amusement on Sunday. Our examination of the record indicates that there is no evidence whatever that the prosecutor operated, owned or had anything to do with the place alleged to have.been operated by him in violation of the ordinance in question.

Because of the failure to establish guilt the conviction must be set aside, and it is unnecessary for us to consider the other points raised in the prosecutor’s brief.


author: Eudredge, C. C. J.

text:
    PAUL L. HOLCOMBE, PLAINTIFF, v. WESTERN UNION TELEGRAPH COMPANY, DEFENDANT.
    For the plaintiff, By man Herr.

    For the defendant, Edwards, Smith & Dawson.

   Eudredge, C. C. J.

On October 23d, 1929, the plaintiff filed his complaint in the Supreme Court to recover from the defendant possession of a certain strip of land located in the township of West Amwell, Hunterdon county, of which possession he alleges the defendant wrongfully deprives him by the erection of certain poles, wires, and so forth, thereon, and he demands damages in the sum of $1,000. The defendant by its answer, filed November 14th, 1929, denied the truth of the matters contained in the complaint. The plaintiff moved to strike the defendant’s answer, and after oral argument, the case was submitted to the court on a stipulation of facts, which briefly stated are as follows:

Prior to January 3d, 1929, and on that said day, the plaintiff was the owner of a certain tract of land situate in the township of West Amwell, Hunterdon county, and fronting on what was formerly known as the old York road and presently known as Eingoes to Mt. Airy road. For many years last past the defendant, under the authority of law, has maintained and operated a line of poles, with wires thereon, running along the side of said road and opposite the property of the plaintiff. The legislature, by an act entitled, “An act to establish a state highway system and to provide for the improvement, reconstruction, resurfacing, maintenance, repair and regulation of the use thereof [Revision of 1927],” established route 29 as a part of the highway system of the State of New Jersey, and the state highway commission, at a meeting held January 3d, 1929, adopted a resolution approving the plans for the improvement of said route 29, section 5, and among other things, determined “to acquire by purchase or condemnation in the name of the State of New Jersey for public use in the construction of said highway all lands and premises required for such purpose as indicated on general property key map for the above-mentioned section.” Route 29, section 5, as shown upon the map referred to in the above-mentioned resolution, departs from the old road and proceeds on a curve to the north and reenters the old road quite some distance to the east. The new portion of the said road passes through the premises owned by the plaintiff and is the land for which possession is sought in the plaintiff's complaint. On February 7th, 1929, the state highway commission took possession of the land in question and began the construction of the new road. In May, 1929, the said highway commission, through its engineer, in writing, offered to purchase from the plaintiff the portion of route 29, section 5, which passed over and through the property of the plaintiff, but no agreement was reached. In the month of June, 1929, the defendant company, under permission of the state highway commission, its officers or agent, but without the permission and against the wishes of the plaintiff, entered upon the lands so taken by the state highway commission and set thereon three telegraph poles and attached wires thereto. On March 13th, 1930, the state highway commission filed a petition for condemnation of the land in question, a part of which petition reads as follows: “And your said petitioner * *’ * has determined to acquire in the name of the State of New Jersey, as per resolution adopted by the state highway commission at a meeting of the said commission held on iho 23d- day of April, A. n. 1929, all that certain lot, tract or parcel of land and premises situate, lying and being in the township of West Amwell, in the county of Hunterdon and State of New Jersy, and more particularly described as follows: [then follows a description of the land in question].” In pursuance of the action taken by the highway commission, commissioners were duly appointed “to view the land and property as set forth in said petition * * * and to make a just and equitable appraisement of the value of the same and an assessment of the amount to be paid by said petitioner for the land and property and damage by reason of the taking of the same for public use by the State of New Jersey.” The commissioners duly qualified, and after considering the matter filed their report in which they said that they “do report that such just and equitable appraisement of the .value of the laud and property and damage by reason of the taking thereof is the sum of $1,150.”

It is to he noted that the defendant, with the consent of the state highway commission, but without any authority from the plaintiff, erected its poles, wires, and so forth, upon the land in question, and whatever rights the said defendant may have to occupy the land over which the new highway runs are dependent upon the title which the state highway commission acquired. It is the allegation of the defendant that the highway commission acquired a fee for the property taken, and that the plaintiff therefore has no further interest in the land upon which the poles are erected. To this the plaintiff replies that the highway commission did not and could not take a fee, and that hence he is still the owner of the fee in the land and his action will therefore lie.

The act of 1927, in force at the time the possession of the land in question was taken and when the suit was begun, provides that the state highway commission shall 'have power “to widen, straighten and regrade any state highway and to acquire any lands or rights therein by gift, devise, purchase or by1 condemnation, according to the procedure as contained in an act entitled, ‘An act to regulate the ascertainment and payment of compensation for property condemned and taken for public use.’ ” The said act further provides 'that the state highway commission may take possession of the land to be acquired in advance of making compensation therefor.

So far as'the stipulation states, there is nothing to show the character of the estate attempted to be taken by the highway commission, but that fact appears to be immaterial, in view of the decision of our Supreme Court in the case of Erelinghuysen against the State Highway Commission, handed down in the January term, 1930. In that case the court said that “independently of express authority given by the constitution, private property can be taken only for public use and the legislature cannot authorize a taking for strictly private use even upon making compensation. The necessity that the use shall be public excludes the idea that property may be taken under semblance of public use and ultimately conveyed and appropriated to private use. * * * Such we conceive to be the law of our own state. The present constitution provides in article 1, section 16, that ‘private property shall not be taken for public use without just compensation.’ This is a recognition of a legislative power to take private property for public use, but it is far from giving authority to take such property for other than the public use. When the state takes the property of its citizens for highway purposes, it acquires an easement only, and it would seem it is empowered to take only so much of the title as is essential to the public use authorized.”

In the light of that decision, the state did not and could not have taken more than an easement in the land condemned. It follows then that the fee to the land remains in the plaintiff, Holcombe, and any grant or permission given by the state highway commission to the defendant company would not affect his rights. Counsel for the defendant in his brief suggests that the Erelinghuysen decision has been appealed, and that the appeal is now pending in our Court of Errors, and further that the legislature of 1930 passed chapter 241 of the laws of that year, recognizing the right of the state highway commission to take a feS by condemnation, and passed also chapter 191 of the laws of the same year, providing that “the state highway commission shall take the fee in lands acquired through condemnation.”

The court does not consider that either of these acts have any effect upon the present case. In the first place, they were passed subsequent to the taking of the land in question and the beginning of the suit; and in the second place, if the reasoning of the court in the Erelinghuysen case be sound, they cannot change the situation. It is to be noted that the court in the Erelinghuysen case bases its decision not only upon an interpretation of the legislative acts respecting the powers of the highway commission, but upon constitutional grounds. In view of that fact, the interpretation of chapter 241 of the laws of 1930, by counsel for the defendant, cannot be sound, and the provision of chapter 191 of the laws of the same year above quoted, is unconstitutional.

With respect to the suggestion of counsel for the defendant that disposition of the matter be postponed until the Court of Errors passes upon the decision of the Supreme Court in the Erelinghuysen case, it may be said that so far as this court is concerned, the Erelinghuysen case is law until reversed and the plaintiff is entitled to have his cause promptly disposed of.

An order will therefore be made striking the defendant’s answer.


text:
    EDITH NESLER, PLAINTIFF, v. SIMON COHEN AND ALEXANDER COHEN, DEFENDANTS. GEORGE NESLER, PLAINTIFF, v. SIMON COHEN AND ALEXANDER COHEN, DEFENDANTS.
    Submitted February 2, 1931
    Decided April 9, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the plaintiffs, Augustus S. Dreier.

    Eor the defendants, Connolly ■& Hueston.

   Per Curiam.

The jury returned a verdict in favor of the defendants in actions arising out of a cross-road automobile accident. The car in which the plaintiffs were driving was proceeding in a northerly direction on a paved street. The defendants’ ear was approaching on the left from a little used dirt cross-road. A number of disinterested witnesses, who were in a position to observe the occurrence, testified that the plaintiffs were driving at about ten miles an hour and were on the right of the paved highway. The defendants’ car, approaching from the left, turned into the main highway and struck the plaintiffs’ car on the left side and drove it into the curb. There was also testimony that the driver of the defendants’ car was busily engaged in watching an airplane. The place where the plaintiffs’ car was struck and the position of the cars on the highway is indicative that the driver of the defendants’ car was not exercising due care.

The jury must have misconceived the testimony adduced.

The rule in both cases will be made absolute.


text:
    MARGARET M. REYNOLDS, PLAINTIFF-APPELLANT, v. PEOPLES TRUST AND GUARANTY COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Decided April 9, 1931.
    Before Justices Parker, Campbell and Bobine.
    Por the plaintiff-appellant, Ziegener <& Brenner.

    Por the defendant-respondent, Morrison, Lloyd & Morrison.

   Per Curiam.

The plaintiff sued to recover the sum of $2,500 alleged to have been withdrawn without authority from her savings account. A nonsuit was entered in supposed compliance with Pamph. L. 1928, ch. 178, p. 347, which is, so far as pertinent, as follows: “No trust company shall be liable to a depositor for any payment made upon a forged or raised draft, receipt, acquittance or other order for payment or withdrawal of money from the depositor’s account or standing to the depositor’s credit, with such trust company, if payment is made upon presentation of the pass-book * * * unless within two years after such entry of payment or withdrawal such depositor shall in writing notify the trust company that the draft, receipt, acquittance or other order for the pajonent ox withdrawal of money upon which payment or withdrawal was made was forged or raised.”

The withdrawal occurred January 29th, 1926. The statute did not go. into effect until April 2d, 1928, so that if it controlled the present transaction, as the court below held, the two-year period had already run and the claim was barred by a failure to comply with a non-existent statute. This we do not think is the law.

The rules and regulations of the bank contained in the pass-book are, in part, as follows: “7. * * * but all payments made to any person producing the proper deposit book shall be good and yalid payments.”

A similar regulation was construed in Cosgrove y. Provident Institution, 64 N. J. L. 653, where the Court of Errors and Appeals held that a payment made by a bank in good faith and in the exercise of due care to any person who produced a pass-book containing such rule operated to discharge the bank without regard to whether or not such person was entitled to withdraw the money. Banks and Banking, 7 Corp. Jur. 869, § 918.

There must be a reversal to the end that proof may be taken on the issue of the good faith and the exercise of due care by the bank in making the payment.


author: Pee Cukiam.

text:
    ZACHARIAH PRICE, PETITIONER-DEFENDANT, v. BOYSAW PRICE, RESPONDENT-PROSECUTOR.
    Submitted February 2, 1931
    Decided April 9, 1931.
    Before Justices Paekeb, Campbell and Bodiete.
    For the prosecutor, Henry J. Stanfield and William V. Azzoli.

    For the defendant, Edwin J. O’Brien.

   Pee Cukiam.

The writ brings up a judgment of the Common Pleas Court affirming an award in a workmen’s compensation case. The injured man was working on an automobile truck owned by his employer, a brother. At the time of his injury they had been engaged in moving furniture in a small truck, and were returning home when they were run into by another truck on the Lawrenceville-Princeton road. Petitioner’s arm was fractured. The reduction of this fracture has not been attended with success.

The principal question presented is whether the petitioner’s employment was casual.

Section 23, subdivision (c), of this act (Pamph. L. 1911, p. 134), as amended by chapter 93, laws of 1919 (Pamph. L., p. 201, § 9), defines an employe entitled to the benefit of the act as follows:

“Employe is synonymous with servant, and includes all natural persons who perform service for another for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employer’s business, as employment, the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring.”

Judge Donges said, in Forrester v. Eckerson, 8 N. J. Adv. R. 499:

“It will be noted that employment covered by this section has been divided into two classes: (1) That which is in connection with the employer’s business, and (2) that which is not in connection with the employer’s business. Appellants concede that the employment in the instant case falls within .the second classification.”

Obviously, the petitioner was engaged in the employer’s business. The question, therefore, arises whether the employment occurred by chance or was purely accidental within the meaning of the statute.

The Court of Errors and Appeals held in Mullen v. Walker, 105 N. J. L. 199: “Where plaintiff, having lost regular position, was employed by defendant to unload car of flour, and two days later was employed by defendant to unload another car, and was injured while unloading same, his employment was nót ‘casual,’ and he could not maintain action for injuries.”

As to the employment of a longshoreman not being casual, Mr. Justice Bergen said, in Sabella v. Brazilerio, 86 N. J. L. 505, 506; affirmed, 87 Id. 710:

“As to the other point, the evidence shows that deceased was justified in the expectation that the employment would continue at least until the ship was loaded or so long as his services were required for that purpose. While this class of work was not constant, depending upon there being a ship of the prosecutor in port, it appears that the deceased was frequently called upon by the prosecutors to serve them in this particular character of work, being one of a class of stevedores ready to respond when called. We think this supports the finding that the employment was not casual within the meaning of the word as expressed in the statute. The ordinary meaning of the word ‘casual’ is something which happens by chance, and an employment is not casual—that is, arising through accident or chance, where one is employed to do a particular part of a service recurring somewhat regularly with the fair expectation of its continuance for a reasonable period.”

Prior to February 1st, 1928, the petitioner bad been steadily employed in his brother’s business, which consisted of trucking, digging cellars and odd jobs of related character. One of the defendant’s sons having grown to manhood, a change in the business W'as effected. Horses and wagons were sold, an automobile truck was purchased and the continuous employment of petitioner ceased. There is a conflict of testimony as to whether he took part time employment elsewhere or not. At all events, no disinterested witnesses on this point were called. When the defendant needed help he called upon his brother, and although there was testimony that the defendant would send his son to get any man to do the job at hand there was no proof that any other were employed.

There is sufficient testimony to support the findings of the bureau and the Common Pleas. The character of the employment under their findings seems not to have been casual within the meaning accorded to the statute. The findings of two tribunals should not be lightly disturbed. Mountain Ice Co. v. Durkin, 6 N. J. Mis. R. 1111. Nor will the findings of the trial judge be disturbed if supported by the evidence. Hanna v. Erie Railroad Co., 8 N. J. Mis. R. 829, and cases there cited.

Obviously, the injury arose out of and in the course of the ■employment. Nevich v. Delaware, Lackawanna and, Western Railroad Co., 90 N. J. L. 228.

The other fact questions submitted seem to have been disposed of in accordance with the evidence, and merits no further discussion.

The writ will be dismissed, with costs.


text:
    NICOLA SPADOLA ET AL., PROSECUTORS, v. BOROUGH OF WOOD RIDGE, RESPONDENT. NICOLA SPADOLA ET AL., PROSECUTORS, v. BOROUGH OF WOOD RIDGE, RESPONDENT. KOKAB GORAB ET AL., PROSECUTORS, v. BOROUGH OF WOOD RIDGE, RESPONDENT. JACOB CHERCKJIAN ET AL., PROSECUTORS, v. BOROUGH OF WOOD RIDGE, RESPONDENT.
    Decided April 9, 1931.
    For the prosecutors, Edward J. Luce and Walter A. Kipp..

    For the defendant, Stanton T. Lawrence.

   Per Curiam.

These are four rules to show cause why writs of certiorari should not go to review certain assessments for street improvements as irregular and unwarranted in law, at least in part. The only question before us in each case is whether a writ should be allowed. Our examination of the proofs-satisfies us in each case that the writ should go. Such writs may accordingly be presented for allowance.


text:
    JAMES C. STOCKER v. THE DURO COMPANY, A CORPORATION OF NEW YORK.
    Decided April 14, 1931.
    Before Justice Parker, at chambers, on ex parte affidavits by counsel.
    Eor the plaintiff, Robert II. Schench.

    Eor the defendant, Jerome Alper.

   Memora ndüm.

Defendant is a New York corporation. The summons was left by the sheriff at the home of defendant’s president in East Orange with one of the house servants. If the suit had been against the president that service would be clearly good. Similarly if defendant were a New Jersey corporation. As to a foreign corporation it is not good unless the circumstances show a situation in which attachment will not lie.

In Goldmark v. Magnolia Metal Co., 65 N. J. L. 341, it was held that where a foreign corporation owns property in this state and transacts business here, but has not qualified to do business in the manner provided by statute, an attachment will lie. This rule, however, was relaxed by a recent decision of the Court of Errors and Appeals in Mellor v. Edward N. Hartford Co., 7 N. J. Adv. R. 871, wherein it was held that “where the corporation * * * has its plant and property in New Jersey, and has resident officers here upon whom process can be served, it is considered a resident áé'facio corporation and therefore exempt from attachment.”

The affidavits before me do not show such a situation. The principal office is in the Hudson Terminal Building in New York. The plaintiff was a “district manager,” living at Morristown and keeping at his house certain parts of machinery dealt in by defendant, which, as I read his affidavit, he claims to belong to him. • He makes sales in his New Jersey territory 'and says his contracts are often approved by the president at East Orange. In all probability the corporation has been doing business in New Jersey in such wise as to be barred from recovery on contracts made here. This, however, need not be decided as it is in no way controlling. The question is, is this corporation liable to attachment under the Goldmark case, or exempt under the Mellon case? If the first, then by the same token summons cannot lawfully be served.

I think the conditions of the Mellor case are not present here. True, there is a president living in this state; but the plant and property are not here. I consider therefore that it is liable to attachment, and that service of summons was not properly made. The service will therefore be set aside.


author: Van Ripee, J.

text:
    Essex County Court of Common Pleas.
    JOHN FALATOWICH, PETITIONER-APPELLEE, v. BREWSTER & SON, RESPONDENT-APPELLANT.
   Van Ripee, J.

This is an appeal in accordance with the statute made and provided from the determination and judgment of the department of labor, workmen’s compensation bureau, in the above-entitled cause, dated April 22d, 1930, which awarded compensation and expenses to the petitionerappellee and counsel fee to his attorney. The matter having come on to be heard in the presence of Samuel Greenstone, attorney for-the petitioner-appellee, and McCarter & English, attorneys for the respondent-appellant, and the proofs having been considered and argument having been had, it is found and determined as follows:

On July 1st, 1929, petitioner-appellee was employed by respondent-appellant. On behalf of the petitioner-appellee it is urged that he had an accident that day and as a result thereof sustained injuries. The lower court did not find any temporary disability incurred by the petitioner-appellee and no claim is urged here for such award. The fact is that petitioner-appellee continued his employment after the alleged accident and until he was laid off for lack of work. It is contended that petitioner-appellee sustained permanent injuries to his back and spine as a result of said alleged accident. The proofs are not sufficient to support this contention and petitioner-appellee has failed to sustain the burden of proof imposed on him, by law, of establishing by a fair preponderance of the evidence the fact that his back and spine conditions were caused by an accident arising out of and in the course of his employment with respondent-appellant. •

It is therefore on this 16th day of March, 1931, ordered that the judgment of the workmen’s compensation bureau, department of labor, in the above-entitled cause, dated April 22d, 1930, be and it is hereby set aside and for nothing holden.

And it is further ordered that judgment final be and it is hereby entered in the cause in favor of the respondent-appellant, Brewster & Son, and against the petitioner-appellee, John Ealátowich.


author: Baches, V. C.

text:
    William A. Stevens, attorney-general of New Jersey, complainant, v. People's Home Journal, Incorporated, a New Jersey corporation, et al., defendants.
    [Decided April 24th, 1931.]

      Messrs. Milberg & Milberg, for the complainant.

      Mr. M. Casewell Heine, fro se, for the receiver.
   Baches, V. C.

The receiver agreed to sell to one Beid, trustee, the defendant company’s assets or some part of them, and Beid paid $4,000 earnest money but failed to pay the balance, and upon due notice to him the court abrogated the contract and forfeited the money to the receiver for his expenses and damages which exceeded that sum. Now, the Eastern Distribution Corporation petitions that the $4,000 be returned to it because it was advanced by it to Beid as trustee for the purpose of making the down payment and upon his promise to Return it upon the consummation of the sale and upon the publication and the delivery to the petitioner of the July issue of the People’s Home Journal. The defendant had been the publisher of that magazine and the petitioner had been the distributor. Beid, as trustee for a group, negotiated with the receiver for its purchase for the purpose of continuing the publication and to that end the petitioner advanced the money, obviously, that it may continue to be distributor.

The petitioner claims the return of the money on the-theory that it was held by Eeid in trust, of which the receiver had notice. Upon what trust ? Upon none other than the one to which the trustee was to, and did, apply it—the payment of the down-money. As between him and the petitioner, he held the money in trust for his group and for the petitioner until he paid it over in discharge of the trust. Eeid’s failure to pay when the deal fell through may give rise to an action in assumpsit for a breach of promise, but none for a breach of trust.

The petition will be dismissed.


author: Bigelow, V. C.

text:
    New Jersey National Bank and Trust Company, and another, as trustee, &c., complainants. v. Gust N. Morris et al., defendants.
    [Decided March 12th, 1931.]

      Mr. Jerome G. Bisenberg, for the complainants.

      Mr. Joseph M. Alsofrom, for the defendants.
   Bigelow, V. C.

This is a foreclosure suit. The complainants move for the appointment of a receiver to collect rents pendente lite. They do not allege that their security is inadequate or that their obligor is insolvent, but they rely exclusively upon a danse in the mortgage whereby the rents and profits oí the mortgaged premises were assigned to the mortgagee in the event of default in the performance of any of the covenants contained in the bond. There has been default in the performance of some of the covenants and by reason thereof complainants claim that the assignment has become absolute. The complainants are entitled to the rents which have fallen due since the default. Paramount Building and Loan Assn. v. Sacks, 107 N. J. Eq. 328. If the mortgagor has collected or shall collect the rents, he will be accountable for them to complainants. Stanton v. Metropolitan Lumber Co., 107 N. J. Eq. 345. The complainants have the further remedy of suit against the tenant for the rents. Ryerson v. Quackenbush, 26 N. J. Law 236, 251; Woolsey v. Abbett, 65 N. J. Law 253; Arcade, &c., Corp. v. Hildinger, 6 N. J. Mis. R. 1055; 144 Atl. Rep. 25; Stanton v. Metropolitan Lumber Co., supra. Even if the mortgage did not contain an assignment of the rents, the complainants would have an action of ejectment. They are not satisfied, however, with any of these remedies but ask the extraordinary remedy of a receivership. “The appointment of a receiver, it is true, is a more expeditious remedy; but it is a remedy which at times may operate as a great hardship. It is attended with expense and in the case of mortgages should be exercised with great caution.” Cortelyeu v. Hathaway, 11 N. J. Eq. 39.

The insertion in a mortgage of an assignment of rents does not make inapplicable the principles which usually guide the court upon an application for a rent receiver in a foreclosure suit. The receiver is not appointed as of course, but only when it appears that the appointment is reasonably necessary for the protection of the mortgagee. This situation is commonly shown by evidence that the security is uncertain or precarious and that the mortgagor cannot be made to respond to any deficiency which may arise at the foreclosure sale. Land Title and Trust Co. v. Kellogg, 73 N. J. Eq. 524.

The complainants do not show that the appointment of a receiver is necessary to protect them against loss which otherwise they probably would sustain. Therefore, the motion is denied.


text:
    SAMUEL FIORENTINO, PLAINTIFF, v. CHARLES ADKINS AND FARR & BAILEY MANUFACTURING COMPANY, DEFENDANTS.
    Decided April 16, 1931.
    Before Justices Case, Daly 'and Donges.
    Por the plaintiff, Indemnity Insurance Company of North America, assignee of Samuel Eiorentino, Btarr, Summerill & Lloyd.

    Eor the defendant Charles Adkins, Philip Wendkos.

   Per Curiam.

On April 13th, 1923, Samuel Eiorentino obtained judgment against Charles Adkins and Earr & Bailey Manufacturing Company in the amount of $10,000 for personal injuries received by Eiorentino from the careless operation of two automobile trucks owned respectively by Charles Adkins and Earr & Bailey Manufacturing Company. Postda was issued and judgment entered in that amount, plus costs. Earr & Bailey Company prosecuted a rule to show cause, as an outcome of which it was determined by the Supreme Court that the rule should be made absolute and that the verdict of the jury should set aside and a new trial granted unless the plaintiff consent that the verdict of $10,000 be reduced to $5,500. Thereafter Eiorentino filed his consent to accept a reduction of the verdict of $10,000 to $5,500, and judgment was entered in the amount of $10,000 against Charles Adkins, and $5,500 damages and $106.82 costs, together with a further sum of $26.25 costs on the rule to show cause, against the defendant Earr & Bailey Manufacturing Company. The order of the Supreme Court was not that the judgment against Earr & Bailey Manufacturing Company alone he reduced in that amount, but that the entire verdict should be reduced to $5,500 and that the plaintiff “be permitted to enter judgment against both defendants for that amount.” Indemnity Insurance Company of North America had insured Earr & Bailey Manufacturing Company against liability from the cause complained of, and after the reduction in the amount of the verdict paid the plaintiff the amount of that verdict and received two assignments, one being of the judgment of $10,000, against Charles Adkins, and the other being of the judgment of $5,500 damages and $125.07, costs of suit, against Earr & Bailey Manufacturing Company. On January 2d, 1930, the Indemnity Insurance Company of North America, acting under the judgment, issued execution against Charles Adkins. It is at this juncture that Adkins causes a rule to issue against Indemnity Insurance Company to show cause why (1) the record of this court should not be amended so as to consolidate the separate judgments into one; (2) the judgment as entered against Adkins should not be reduced to $5,500 instead of $10,000 as it now stands, and (3) the judgment, whether it be $5,500 or $10,000, should not be satisfied and canceled of record.

Obviously there should be but one judgment, and that should be in the amount of $5,500. The record to the extent that it shows otherwise than this was so made by inadvertence.

Adkins and Earr & Bailey Manufacturing Company were joint tort feasors and as between them there was no right of contribution. Public Service Railway Co. v. Matteucci, 105 N. J. L. 114; 143 Atl. Rep. 221. It is argued on behalf of the assignee of the judgment that it is a stranger to the record, and that the money paid by it was not paid in settlement of the judgment but for the purchase of the judgment and for the specific purpose of keeping the same alive, particularly as against Adkins. The Indemnity Insurance Company, though not a party to the action, is nevertheless not a volunteer, nor, as the record now shows, is it a complete stranger to the action. In. paying the amount of the judgment it did not merely that which it chose to do, but that which it was, by its contract, obliged to do. That contractual obligation was in behalf of Earr & Bailey Manufacturing Company, and one of the incidents of the contract subrogated the indemnity company to the rights of Earr & Bailey. The indemnity Company could not, if it would, enforce the judgment against its insured. It stands in its insured’s shoes. There is a public policy behind the rule against contribution amongst joint tort feasors, and we are unable to see the distinction, in the application of the rule, between a joint tort feasor and one who, by contractual undertaking, stands in his place. The money paid by the indemnity company for the judgment was, in theory, the money of its insured. It was the accumulated premiums paid by the insured against the day when the latter would be called upon to suffer such a loss.

The matter appears to be one of novel impression in this state. McIlvane v. J. T. M. Contracting Co., 7 N. J. Mis. R. 825, is cited as a supporting decision by the prosecutor of the rule. It is not a determination on the issue now before us, though some of the reasoning is analogous.

We conclude that payment by the indemnity company wás, in effect, payment by its insured, Earr & Bailey Manufacturing Company, and resulted in such a situation as that the judgment could not be further enforced against that concern; and that, in its last analysis, the collection of a judgment from Adkins would be in the nature of a contribution by Adkins to his joint tort feasor, inasmuch as a practice of that character would, of course, have its reaction on insurance rates and charges and thus inure to the benefit of the insured, a joint tort feasor.

The rule will be made absolute, with costs to the prosecutor.


author: Pee Ctjbiam.

text:
    MINNIE STILLE, PLAINTIFF-RESPONDENT, v. NEVIN BUS LINES, A CORPORATION, AND FRANK J. CALLAHAN, DEFENDANTS-APPELLANTS.
    Submitted October term, 1930
    Decided April 16, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiff-respondent, Degheri & Ormsby.

    For the defendant-appellants, Charles C. Coigan.

   Pee Ctjbiam.

Plaintiff sued for injuries received while a passenger in a bus owned by Nevin Bus Lines, a corporation, and driven by Frank J. Callahan, an employe of that corporation. Judgment was rendered for the plaintiff in the sum of $300, and the defendants appeal upon the ground that the court erred in refusing the defendants’ motions to nonsuit the plaintiff and to direct a verdict in favor of the defendants.

The proofs present a factual controversy. The incident occurred while the bus was being driven through the Holland tunnel. There is evidence from which it could be found that notwithstanding the tunnel regulation, known to the bus driver, that vehicles are to be kept seventy-five feet apart, the bus was following the car ahead at a distance of only fifteen feet, that the car ahead stopped suddenly, that the bus made a sudden turn to the left and forward, hitting and scraping along the car ahead and that the lurch threw plaintiff forward and backward, causing her to strike and injure her spine. The driver—defendant Callahan—testified that he could have braked the bus to a complete stop without deviating from a straight course but did not do so because he feared that in so doing he would be rammed by the car next behind. All of which, as we think, forms a foundation for the court, sitting without a jury, to resolve the facts, including the question of negligence, against the defendants. Whether the defendants, under the circumstances, were or were not guilty of negligence in driving the bus at a distance of only fifteen feet from the car ahead, with consequent inability to stop the bus in that distance without danger of a rear-end collision, was a question of fact which justified the court in denying defendants’ motions.

The judgment below will be affirmed, with costs.