text:
    Henry Alsopp, complainant-respondent, v. Louis Weiss et al., defendants-respondents; Frederick Fatzler, Jr., defendant-appellant.
    [Submitted October term, 1929.
    Decided June 20th, 1930.]

      Mr Walter A. Beers, for the appellant.

      Mr. Milton M. Unger, for the respondents.
   The opinion of the court was delivered by

Lloyd, J.

A bill was filed in this case by a purchaser to be relieved of his bid made at a mortgage foreclosure sale. He was a judgment creditor and sought to protect his judgment at the sale. The 'propertjr consisted of approximately one hundred acres of unimproved land, and the basis of appellant’s bill was that the property was without access to the public highway; that the advertisement did not disclose the location of the property except to state that it was in the township of Passaic, Morris county; that the complainant had bid at the sale upon the representations of the parties in the foreclosure suit that the premises were situated upon a public road for a distance of approximately fourteen hundred feet; while in fact the premises consisted of lands apart from the highways and having access thereto only over lands belonging to other persons; and that by reason of this false information he was induced to bid a price much above the value of the property.

After hearing the evidence the learned vice-chancellor reached the conclusion that the averments had not been substantiated and advised a decree dismissing the bill.

A fair reading of the testimony convinces us that the bill was properly dismissed. The appellant’s mistake was in reliance upon loose information from persons for whom the parties to the litigation were not shown to be responsible, rather than in obtaining information from reliable sources which were open to him and the neglect of which produced his present situation.

The decree is affirmed.

For affirmance—The Chief-Justice, Trenchard, Parker, Campbell, Lloyd, Case, Bodine, Van Buskiric, Mc-GlENNON, KAYS, HETFIELD, DEAR, JJ. 12.

For reversal—None.


source: Caselaw Access Project

author: Guiqiere, Chiee-Justice.

license: Public Domain

text:
    In the matter of the application of Frank Hague for a writ of habeas corpus.

    [Decided May 19th, 1930.]

      Mr. Bussell B. Watson, for the appellant.

      Mr. Merritt Lane, for the respondent.
   The opinion of the court was delivered by

Guiqiere, Chiee-Justice.

The legislature of 1929 adopted a supplemental resolution appointing a joint committee, the members of which were specifically named therein, and requiring it to “make a survey of all questions of public interest; to investigate violations of law and the conduct of any state, county or municipal official, state, county or municipal department, state, county or municipal commission, state, county or municipal board, or state, county or municipal bod3r, to report whether the functions of such officials, departments, commissions, boards and bodies have been or are being lawfully and properly discharged, for the purpose of obtaining information relative thereto as a basis for such legislative action as the senate and general assembly may deem necessary and proper.”

In the conduct of the investigation made by the committee pursuant to the mandate of this resolution, it appeared that in certain condemnation proceedings, two of which were instituted by the Hudson county board of freeholders and the other by the city of Jersey City, the condemning agencies were compelled to pay for the property acquired more than half a million dollars in excess of the value thereof a comparatively short time before the institution of the several proceedings. As is stated in the brief of counsel appearing before us on behalf of the legislature, the tremendous finan-' cial gain accruing to those involved, compelled the conclusion that public moneys were wasted as a result of a conspiracy which was operated under cover of legal form. The investigation also disclosed that the proprietors of moving picture theatres in Hoboken'and in Jersey City paid large sums of money for the purpose of inducing the municipal agents of these cities to refrain from enforcing the Sunday closing laws. The moneys so paid during the four years preceding the investigation by the joint committee amounted to over $200,000. The examination of witnesses by the committee further disclosed that owing to the illegal manipulation of bus franchise fees in the city of Jersey City, that municipality, during the three years and a half preceding the investigation, was defrauded of taxes approximating $35,000.

Having ascertained these facts, the committee then subpoenaed as a witness Prank Hague, the mayor of Jersey City, and after a preliminary examination, asked him the following ten questions, each of which he refused to answer:

1. Now, during the years 1922 and 1923 did you have a bank account in the National City Bank of the City of New York? 2. What bank accounts did you have during the years 1922 and 1923? 3. During the years 1922 and 1923, what was the total amount that you had on deposit in banks? 4. During the years 1922 and 1923 what was the largest amount you had in hand in cash? 5. Now, in 1923 you purchased a property at Deal, New Jersey, in the name of John J. McMahon as dummy for $30,000. The purchase price was paid by John Milton’s check and you reimbursed John Milton in cash. Where did you get that cash ? 6. Now, in 1926, Mr. Hague, you purchased property at Deal, New Jersey, in John Miltons’ name as dummy. The purchase price was $65,000. Mr. Milton paid for it with his check. You after-wards reimbursed Mr. Milton in cash. In 1927 you improved that property and spent on it $59,520.50. The payments were made by John Milton’s checks as the work progressed, you reimbursed him in cash. Where did you get the $65,000 and the $59,520.50 with which you reimbursed Mr. Milton in cash? 7. Did you have all of that money in any bank or banks? 8. Now, in this connection, let me ask you where you got the money with which you purchased the Deal property for $65,000 in cash and improved it in the amount of $59,520.50, which you paid in cash? 9. In 1926 you acquired a property on Gilford avenue, Jersey City, at a cost of $27,500. The title was taken in the name of Thomas McNulty as a dummy and the purchase price was paid by John Milton’s check. You thereupon reimbursed John Milton in cash. Where did you get that $27,500? 10. Mr. Hague, in what bank or trust companies or other financial institutions did you maintain accounts while acting as mayor since 1921?

Upon the refusal of Hague to answer any one of these questions, the joint committee reported that fact to the legislature. Thereupon a joint session of the legislature was called. Hague-was subpoenaed to appear before it, and upon his obeying the mandate of the subpoena, the questions which he had refused to answer were again submitted to him by the joint session and he again refused to answer any of them. Based upon this refusal the joint session adjudged him in contempt, caused a warrant for his arrest to be issued and directed that he be confined in the common jail of the county of Mercer until such time as he should make known to the-chairman of the said joint committee in writing that he was-willing to answer the questions already recited. His arrest followed the issuing of the warrant, and he applied to Vice-Chancellor Eallon for a habeas corpus, praying that he be-discharged from custody upon the ground that the warrant, was illegally issued. Upon the hearing had upon this application, the vice-chancellor concluded that the arrest of Hague-was without legal justification and ordered him discharged. Thereupon the legislature, through its agent, the sergeant-at-arms, who was entrusted with the execution of the warrant for Hague’s arrest, appealed to this court from the order of' discharge.

The fundamental question involved in the determination of this appeal is whether in the submitting of these questions-the legislature was exercising a function vested in it by the-constitution, or was invading the judicial department of the-government. Article III of our constitution declares that “the powers of the government shall be divided into three-distinct departments—the legislative, executive, and judicial; and no person or persons belonging to, or constituting one of these departments, shall exercise any of the powers properly belonging to either of the others, except as herein expressly provided.”

As will have been noted, the resolution under which all o£ these proceedings were had provided among other matters that the joint committee should “investigate violations of law and the conduct of any state, county or municipal official or department, &c., and report whether the functions of such officials or departments have been or are being lawfully or properly discharged.”

The principal function of the legislature as a governmental agency of the people is to enact laws. The principal function of the judiciary is to enforce existing laws; and also to investigate through a grand jury alleged violations of law which involve criminality, and, when such investigation discloses the existence of such violations, to punish the guilty party.

In the present case the questions which were put to Hague at the joint session by Mr. Watson, the counsel of the legislature, were asked by him, as he stated to a member of the senate at the time they were put to the witness, for the purpose of showing that the profits which had resulted from the criminal conspiracies with relation to the condemnation proceedings, the bus franchises, and the theatre privileges, were deposited in bank by Hague. In other words, that Hague was a party to the criminal conspiracies which resulted in the mulcting of the treasuries of the county of Hudson and the city of Jersey City of approximately three-quarters of a million dollars. Manifestly the questions with relation to the purchases of real estate by Hague were put for the same purpose. The questions were within the scope of the resolution which directed an investigation of violations of law by county or municipal officers; but, as has already been stated, investigations of alleged violations of the criminal law are strictly judicial in their nature, and, under the constitution the legislature has no more power to conduct such investigations than has the governor, who constitutes the third branch of our governmental system, even if the latter desired the information sought for the purpose of advising the legislature with relation to changes in-our criminal laws that would make violations thereof by county and municipal officers less likely to occur. In refusing, therefore, to answer these questions, relating as they did to matters, inquiry into which was outside of the jurisdiction of the legislature, Hague was-exercising a legal right, and this being so the legislature was without power to punish him for such refusal, for, as was stated by Mr. Justice Miller in the case of Kilbourn v. Thompson, 103 U. S. 190: “No person can be punished for contumacy as a witness before the legislature unless his testimony is required in a matter into which the legislature has jurisdiction to inquire.”

It is not intended to be intimated by what has been said that the legislature is entirely without power to exercise any judicial function. The last clause of the constitutional provision which has been above recited indicates the contrary. Eor instance, where a member of the legislature or a state officer is charged with the commission of a criminal offense which, if true, would justify his impeachment, the house of assembly has full power to examine into the truth of the charge, and, if the evidence taken by it justifies such action, to institute impeachment proceedings based thereon; and the senate, on the hearing of the impeachment proceedings, exercises the same judicial function under the power conferred upon it by the constitution. It may also be conceded that where a charge involving the swindling of the state out of its property is brought to the attention of the legislature, that branch of the government has constitutional power as the guardian of the state’s property to investigate the truth of the charge for the purpose of recovering, if possible, property of the state of which it has been fraudulently deprived. But neither of these judicial functions, which under the constitution are, vested in the legislature, has any bearing upon the question now before us.

But even if we had considered that the legislature was authorized by the constitution to investigate the criminal charges against Hague which were the basis of the questions put to him, we would not, as a result of such determination, conclude that such authority conferred upon the legislature the power to compel Hague to answer them even though by doing so he admitted inferentially that he was a party to the criminal conspiracies above referred to. That in the issuing of the warrant the legislature attempted to exercise this untrammeled power of compulsion is demonstrated by the language of the warrant. The mandate thereof is that he be confined in the common jail of the county of Mercer until such time as he should make known to the chairman of the joint committee in writing that he was willing to answer these questions. In other words, ho is to remain confined in the county jail until he expresses such willingness without regard to whether or not the answers would incriminate him. By so ordering the legislature disregarded one of the foundation principles of our law, which is thus stated by Mr. Justice Bradley, delivering the opinion of the court in the case of Boyd v. United Stales, 116 U. S. 631. “Any compulsory discovery by extorting the party’s oath to convict him o£ crime is contrary to the principles of a free government. It is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.” And again on page 638 of the opinion the learned jurist declares that: “A witness as well as a party is protected by the law from being compelled to give evidence that tends to incriminate him.”

The conclusion reached by the court is that the order under review should be affirmed.

For affirmance—Tub Chief-Justice, Trehciiard, Parker, Campbell, Lloyd, Bodihe, Yah Buskirk, McGlehhoh, Kays, Hetfield, JJ. 10.

For reversal—Black, J. 1.


author: Ingersoll, Y. C.

text:
    David Frankel and The Ninth National Bank and Trust Company, complainants, v. Solomon Major et al., defendants.
    [Decided September 9th, 1930.]

      Messrs. Endieott & Endieott, for the complainants.

      Mr. Joseph B. Pershie, for the defendant Shils-Sinderbrand Coal Company.

      Mr. Augustine B. Bepetio, for the defendant Harry Wexler.

      Messrs. Moore & Butler, for the defendants William M. Rudolph and Louella T. Rudolph.
   Ingersoll, Y. C.

The exceptant bases his exceptions to the master’s report upon the ground that the master “erred in not finding that all of the interest paid on the principal of the usurious mortgage of $75,000, from July 30th, 1926, to July 30th, 1929, be deducted from the principal of said mortgage.” The master did allow a credit on the principal of the interest payment made in excess of the legal rate.

The exceptant rests his claim entirely upon the decision of the court of errors and appeals in Lowenthal v. Myers, 75 N. J. Eq. 286, in which the court of errors and appeals, speaking in the opinion of Judge Dill, said:

“We agree with the vice-chancellor that the mortgage was usurious in its inception and that the subsequent payment of $88.50 as interest and the one of $75 to induce the complainant to defer a payment due upon the mortgage should be applied to a reduction of the principal of the mortgage.”

Vice-Chancellor Learning, in a case decided three months thereafter (Kohn v. Kelly, 76 N. J. Eq. 132), said:

“The single question here presented is whether our statute against usury entitles defendant to a deduction from the amount actually loaned of all interest which has been paid by him, or only entitles him to a deduction of the amount of illegal interest paid by him. I am unable to consider this an open question in this state. In all cases in which the subject appears to have been directly considered the view has been uniformly adopted that the statutory deduction from the amount actually loaned of interest already paid is of the interest which has been paid in excess of the legal rate. (Quoting a number of cases.)”

The vice-chancellor proceeds in Lowenthal v. Myers:

“I ordered an interest payment credited on the principal of a usurious mortgage, and the court of errors and appeals appears to have affirmed that part of my decision. The language of the statute touching interest payments already made was not brought to my attention in that case, and I think it reasonable to assume that the appellate court made a similar oversight, for I am entirely satisfied that the latter court would not have intentionally departed from its former views without some expression of the reasons for so doing.” This was affirmed by the court of errors and appeals without opinion in 77 N. J. Eq. 273.

The exceptions to the master’s report will, therefore, be dismissed.


author: Per Curiam.

text:
    WALTER R. VANNOY, PROSECUTOR, v. BOROUGH OF PENNINGTON, RESPONDENT.
    Decided January 14, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutor, Henry M. Hartmann.

    Eof the respondent, Cassel B. Bulilman.

   Per Curiam.

This writ brings up for review two ordinances of the borrough of Pennington; one fixing and establishing the lines and grades of sidewalks and curbs on the easterly side of South Main street and the other providing for the construction of such sidewalks and curbs by the adjoining property owners, and at the sole expense of the latter, and also brings up for review proceedings under such ordinances and particularly- those that affect the property of the prosecutor which adjoins and abuts the line of the proposed improvement.

It appears that the grade established will require a cutting down of the highway in front of prosecutor’s lands three feet five inches or three feet ten inches and the removal of seven or eight large trees. It is estimated that the cost of this will be $650. This cutting down of the grade will also come within five feet of the foundation wall of prosecutor’s dwelling and probably will require the construction of a retaining wall to protect his property.

The prosecutor urges the setting aside of these ordinances and proceedings upon these grounds:

1. Because the statutes under which the ordinances are enacted are unconstitutional.

This is said to be so because they authorize and seek to take property without compensation in violation of article 1 of the state constitution and the fourteenth amendment of the federal constitution.

It is argued that the statutes and the ordinance in question compel the laying of sidewalks on property owned and occupied by the prosecutor, and at his sole expense, and for the benefit and enjoyment of the public. Statutes of this character are not unconstitutional. Sidewalks and curbs are necessary incidents to the public use of a highway, and a change of grade of the highway adjacent to the lands of the prosecutor does not entitled him to damages therefor. Agens v. Newark, 37 N. J. L. 415 (at p. 423); Hedden v. Verona, 82 Id. 736, and Sommers & Co. v. State Highway Commissioners, 148 Atl. Rep. 171.

The' next point argued is that the ordinances were not adopted in accordance with the requirements of chapter 152 (Pamph. L. 1917, as amended by Pamph. L. 1928, eh. 244), and that they are arbitrary and unreasonable.

Prosecutor’s first contention under this point is that the power to alter the grade of a street is under paragraph c, article 20, chapter 244 (Pamph. L. 1928), and that it must be undertaken’ as a local improvement and the costs assessed, according to the benefits conferred, and that section 1 of article 25 of the Home Eule act (Pamph. L. 1917, ch. 152), relating to the construction of sidewalks and curbs does not contemplate substantial grading, removal of trees and the construction of retaining walls at the expense of the adjoining owner. Now it appears that chapter 244 (Pamph. L. 1928) has no reference or application to the question of establishing the grade of a highway and contains'’ no article 20, paragraph c. We agree with the contention of the proseeutor, however, that the substantial grading of a highway, not only from curb line to curb line, but for its full width from property line to property line is either a local improvement the cost of which may, in whole or part, be assessed against the lands benefited to the extent that they are specially benefited or a general improvement, the cost of which is to be borne by funds raised by, general taxation. Only such slight and incidental grading as to make sidewalks and curbs conform to the established grade may be made a part of the cost of constructing sidewalks and curb and directly to be paid by and charged against the abutting landowner. If the ordinance requiring the construction of sidewalks along the line of prosecutor’s lands requires him to! bear the sole cost of the substantial grading, removal of trees and building of retaining wall, then such ordinance cannot be sustained as proper municipal legislation. This will be dealt with under another point.

The next contention is that the sidewalk ordinance and the notice to the prosecutor thereunder are uncertain as to what work is required. We think this is without merit.

The ordinance provides:

(a) That the owner of land fronting on South Main street is required “to construct, pave, repave, improve or repair at his, her, its or their own proper cost and expense the sidewalks * * then follows a specification of such construction and then “and said sidewalks and curbs and the ground both inside and outside the walk from curb to curb line to the property line shall be constructed and placed at the grade and slope heretofore established * *

(b) “That said sidewalks may be curbed or recurbed, and if curbed or recurbed shall be with concrete eight inches in thickness andi eighteen inches in depth.”

This seems quite definitely to require the construction of sidewalks and the grading necessary to bring the sidewalks to the grade established- by the grading ordinance. It is equally evident, we think, that it left optional with the landowner the construction of the curbs.

The notice served upon the prosecutor, under this ordinance, was: “You. are hereby notified to construct, pave, repave, curb, recurb, improve and repair the sidewalk in front of * * * your property.” Then follows' a description of prosecutor’s property and a specification for the construction of the sidewalk and then” * * * and the sidewalks, and curbs, and the ground both inside and outside the walk from the curb line to the- property line shall be constructed and placed at the grade and slope heretofore established as prescribed by an ordinance entitled * *

This seems to us to make two things definite:

1. The construction of sidewalks.

2. All grading necessary to conform with the grade ordinance.

But it would seem to leave indefinite and uncertain the construction of curbs. By the strict language of the notice the construction of curbs seems to be required, while the ordinance, as we have pointed out, leaves their construction optional with the landowner. Therefore, here, an irreconcilable and fatal variance undoubtedly exists.

Property owners are entitled to be exactly informed as to the demands made upon them. State v. South Amboy, 62 N. J. L. 197.

In this respect, therefore, the notice to prosecutor is defective and should be set aside as ineffective.

The next point urged and advanced ini that the contemplated improvement is a local one and should proceed in accordance with chapter 152 (Pamph. L. 1917, art. 20, as amended by Pamph. L. 1928, ch. 244, art. 20, f c), instead of article 25 thereof. As before pointed out Pamph. L. 1928, ch. 244, has no application to the matter before us.

Here again the argument seems to bo that the borough, while having authority to establish grades and also to require and compel the laying of sidewalks, before being1 authorized to require the owners of adjoining lands to construct them at their sole expense, must have proceeded to substantially grade the highway, including the sidewalk space in accordance with the grade established. We speak of the contention of the prosecutor in this uncertain manner because it is difficult, and almost impossible, from the reasons filed and the arguments contained in the brief of his counsel to be certain of the grounds and reasons actually'advanced and urged.

Dealing most liberally with the prosecutor we are assuming that he is urging that the sidewalk ordinance and the proceedings thereunder require him not only to pay the cost of constructing the sidewalk in front of his lands, but also to bear and pay the entire cost of bringing the sidewalk space to the grade required by the grading ordinance, the removal of trees in the line of the work, and the construction of a retaining wall to protect his lands from the result of cutting down the grade of the highway in front of his lands.

In furtherance of his argument under this point prosecutor points to the action of the borough council at its meeting of April 7th, 1930, as conclusively showing its intention, which action requires the borough engineer to determine whether a retaining wall at the property of the prosecutor is necessary, and if so to build it, and the street supervisor is directed to proceed with the grading, removal of trees and laying of sidewalks, the cost, when determined, to be paid by the property owners. The cost of this grading, removal of trees and building of retaining wall, as is shown, will require the expenditure of a very large sum of money.

We think jt is fair to assume and find that the intent and purpose of the sidewalk ordinance is to impose upon the prosecutor the entire expense of grading the sidewalk space in front of his property in compliance with the grading ordinance, remove the trees within such line, and also bear the entire cost of a retaining wall, if such wall be found necessary to protect his lands after the substantial cut required by the grading ordinance.

This, unquestionably, is beyond the power of the respondent to exact and require and the ordinance and proceedings thereunder for that reason must be set aside.

Eespondent urges that the action of the prosecutor is—

(a) Premature, and (b) he is in laches.

It is urged that his action is premature because he is anticipating an excessive and illegal assessment and none has yet been made or levied. We think not. The action of the respondent in directing its street supervisor to proceed and indicating its intention to assess the lands of the prosecutor was sufficient to spur him into action and, in fact, had he not moved forward, we think he might later have been said to he in laches if, having this knowledge, he stood by and did nothing.

He is said to he in laches because he has stood by since August 5th, 1929, and has done nothing, and in the meantime other property owners have obeyed the requirements of the ordinance in question.

This is without legal merit or substance.

We conclude, therefore, that the sidewalk ordinance and all proceedings thereunder must he set aside, with costs of this proceeding, and that the grading ordinance be affirmed as a valid municipal act.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. VINCENT HENDERSHOT, PLAINTIFF IN ERROR.
    Submitted May 17, 1930
    Decided January 16, 1931.
    Before Gummebe, Chief Justice, and Justices Tbehciiabd and Lloyd.
    For the plaintiff in error, Louise Bulk Shapiro.

    Eor the defendant in error, Orville V. Meslar, prosecutor of the pleas.
   Per Curiam.

The defendant, Hendershot, was indicted by the Morris County grand jury for carnal abuse of Gladys Forester, a woman child over the age of twelve and under the age of sixteen. He was convicted and sues out this writ of error.

The evidence fairly tended to show the following: Defendant was thirty-two years of age; the girl was over the age of twelve years and under the age of sixteen at the time of the offense in November, 1929, when she was subjected to carnal abuse by the defendant. She made no complaint to her father, and her mother was dead. However, her father’s suspicions being aroused he took her to a doctor for examination and his and other testimony justified the conclusion that she had been carnally abused. Afterwards, at the request of the mother of the defendant, she went to a justice of the peace, who was also the attorney for the defendant at the time, and made a statement that defendant had not abused her, but that one Willie Blickey was the guilty party; but the girl testified at the trial that that statement was not true. She testified at the trial that she was carnally abused by the defendant. Defendant denied carnal abuse.

The first point is that the court erred in sustaining objection to the following question put by defendant’s counsel on cross-examination of complaining witness’s father: “And at that time did your daughter talk to Judge Tinney and did he take down her statement?”

That was not proper cross-examination because the witness had merely been asked to his place of residence and the parentage of the complaining witness, and whether or not she had been taken to the doctor; and the question related to a statement which the girl made to Judge Tinney at another time. Moreover, we think, considering the testimony given by the complaining witness and other witnesses, there was no prejudicial error in the exclusion, even if it be considered erroneous.

Defendant complains of error in permitting Dr. Christian to testify as to the physical condition of the girl. It seems to us that the testimony was certainly competent, of course its weight and value being for the jury, and we think it was left to them. The testimony was intended to corroborate the girl’s testimony.

Defendant next says that there was error in excluding a question addressed to the complaining witness by defendant’s counsel. But the complaining witness had twice answered the same question and we think the exclusion in question was not erroneous.

Defendant says that the court erred in admitting certain questions put to Prances Palmer, a relative of the complaining witness, by the prosecutor. We think the testimony was competent. It tended to affect the credibility o.f the witness, but in any event its admission did not prejudice the defendant in maintaining his defense.

Defendant says that the court erred in its charge with respect to the age of the girl. We think not. The judge seems to have left the question of age to the jury. The age of the girl was proven and there was no contradiction thereof. Moreover, the age of the girl, as stated in the certificate, was in effect admitted by the defendant.

There is a further criticism of the charge wherein the court told the jury in effect that they might disregard the statement made to the justice of the peace, if they concluded from the testimony that the statement was untrue. We find no fault with that.

There is another criticism of the charge of the court in respect to the question of sympathy for the mother of the defendant. We think that entirely proper.

it is further complained that the judge erred in charging the jury as to the credence to be given to the testimony. We find nothing erroneous in that.

It is further complained that he erred in charging on reasonable doubt. There is no merit in this. The charge was in accordance with the approved rule.

We think that a consideration of the entire charge makes it quite evident that in no respect was it erroneous.

Lastly, it is argued that the verdict is against the weight of the evidence. We cannot say that it is.

The judgment will be affirmed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. FLORENCE WILLIAMS, ALIAS FLORENCE HOFFMAN, SAMUEL HOFFMAN, ALIAS CAPPY HOFFMAN, JOSEPHINE BAROODY AND TOUFEEK BAROODY, PLAINTIFFS IN ERROR.
    Argued May 6, 1930
    Decided January 16, 1931.
    Before Gummere, Chief Jhstice, and Justices Trenci-iard and Lloyd.
    Eor the plaintiffs in error, John Raujfenbart (Ulysses G. Siyron, of counsel).
    Eor the defendant in error, Louis A. Repetio, prosecutor of the pleas.
   Per Curiam.

The defendants were convicted in Atlantic county upon an indictment charging them with having unlawfully and illegally in their possession opium. They assign error upon bills of exceptions and specify causes for reversal under sections 136 and 137 of the Criminal Procedure act.

At the trial the evidence tended to show that on the night of November 30th, 1929, a raid was made upon premises in Atlantic City leased and occupied by the defendant Hoffman, with whom lived the other defendants, Florence Williams, Josephine Baroody and Toufeek Baroody. The officers entered a room in which was Toufeek Baroody, and found a can of opium and opium pipes and other implements used in opium smoking, and two loaded revolvers. Defendant Hoffman was in another room. He awakened and came into the hall where the detective was standing with the can of opium. Without any suggestion from the officers as to what the can contained, in the presence of the other defendants Hoffman said: “What do you want that for ? Give us a break.” Later, on the following day, the detectives returned and found under Baroody’s bed a suit case with more opium and implements in it. The state proved that the opium pipe had been recently used; that all the defendants had been seen using the pipe in the apartment; that there were open transoms between the rooms; that the odor of the smoking opium would go from one room to another throughout such an apartment and would come to the knowledge of any persons therein.

All of the defendants except Toufeek Baroody denied knowledge of the existence of the opium and the opium paraphernalia. Toufeek claimed that it belonged to some other person.

The defendants now say that the judge erred in denying motions to acquit the defendants. We think not. We think the evidence justified the jury in inferring, if they saw fit, that all of the defendants unlawfully had in their possession opium as charged in the indictment.

It is next said that the judge erred in refusing to strike out the testimony as to the finding of the revolvers. We incline to consider the testimony proper, but certainly its admission cannot be said to have prejudiced the defendants in maintaining their defense on the merits.

We think the testimony of Eeemster, the federal government agent, as to the recent smoking of the pipe, the method of preparation, the existence of the odor in the apartment, was relevant as tending to prove knowledge and participation in the possession of the opium.

It is next said that the trial court erroneously permitted, over objection, certain questions to be asked of Marian Petrilla. These questions were put by the counsel for the state. We can find nothing in this connection justifying a reversal. As we read the record, the questions to which we are referred in the brief were not answered, although a number of other questions were. Moreover, we find that after having objected to these and other questions, counsel for the defendants said: “I will withdraw my objection, and let her say from the stand what she wants to say.”

The defendants next say that the court erroneously overruled a motion to strike out the testimony of Marian P¿trilla. We think there was no error in this refusal in the circumstances above recited. Moveover, the motion was to strike out all of her testimony. That certainly was properly denied. Some of it was manifestly proper, it being to the effect that she had seen all of the defendants in the apartment at various times; that she had seen the opium pipe in the apartment; that she had seen the defendants smoke the opium pipe. As to the adjournment taken at the trial, that was within the discretion of the trial judge.

It is next said that the judge erred in refusing to direct a verdict of acquittal “of the married women defendants.” This motion was properly denied. The question whether or not the women defendants were married to the men defendants was a question of fact concerning which, under the evidence, there might well be a difference of opinion, and hence the trial judge properly submitted that question to the jury with appropriate instructions.

The defendants say that the verdict was against the weight of the evidence as to all except Baroody. We cannot say that it was against the weight of the evidence as to any of the defendants. If the testimony of Marian Petrilla is to be believed, and we perceive no sufficient reason why it should not be believed, we are quite clear that the verdict was not against the weight of the evidence.

The judgment will be affirmed.


text:
    JAMES P. PRALL ET AL., EXECUTORS, ETC., PLAINTIFFSAPPELLEES, v. WOODBRIDGE CERAMIC CORPORATION, DEFENDANT-APPELLANT.
    Submitted October 17, 1930
    Decided January 21, 1931.
    Before Justices Parker, Campbell and Bodine.
    For the appellant, Russell E. & A. Dudley Watson.

    For the respondents, Orlando II. Dey.

   Per Curiam.

The judge of the Common Pleas awarded a summary judgment for the plaintiff over' answer on the ground that the defendant had not by affidavit shown sufficient facts to entitle it to defend.

The suit was on a promissory note dated November 28th, 1927, made by the defendant to the order of the estate of Emily Prall, of which the plaintiffs are executors. The defense was two-fold. First, that the plaintiffs, after the making and delivery of the note, had written to the defendant a letter acknowledging receipt of a three months’ note of $8,362.85 “in full for all claims against the Woodbridge Ceramic Corporation to January 23d, 1928.” This, it is said, is a release of the note involved in the present suit which, up to the time of such letter, was admittedly in force-The proposition advanced for the appellant is that this letter indicates a complete settlement of all claims including the $11,000 note, although the evidence shows that there were other transactions based on an entirely different consideration. We think it is sufficient to say that as the amount of the note was liquidated, an alleged accord and satisfaction in consideration of a less amount was devoid of force. Chambers v. Niagara Fire Insurance Co., 58 N. J. L. 216.

The other point made for the appeal sets up the following facts: That the consideration of the $11,000 note was a mortgage made by the Prall estate to a third party to secure moneys loaned to the defendant; that the defendant company was in a failing condition and in that situation a sale of all its stock to outside parties was arranged; that William H. Prall, one of the plaintiffs, was to supply two hundred of the four hundred shares, and two other individual owners were to supply one hundred shares each; that in and by the written agreement to which William H. Prall personally was a party, it was agreed that this note now in suit should not be demanded for payment within three years, provided interest is paid thereon on the dates when interest is due' on the above mortgage, and that such interest on said mortgage had been regularly paid. The difficulty about this naturally was that the undertaking was by William EL Prall personally and did not bind the estate, and also that the agreement was with the outside purchasers and not with the defendant. To this the defendant rejoins that Prall was acting as agent of the estate, that the estate ratified the agreement by transferring one hundred shares which it owned to carry out the agreement, and that said agreement was for the benefit of the defendant.

We are unable to seee that the transfer of the one hundred shares amounted to a ratification, and the only evidence, if it can be called evidence, of agency on the part of William H. Prall seems to be his own declarations, which are ordinarily incompetent and do not appear to be within the scope of his duty as an executor. Nor does the agreement show in any way that it was for the benefit of the defendant.

We agree with the court below that the defendant had not set up such facts as entitled it to defend the action; and consequently the judgment brought up will be affirmed.


author: Parker, J.

text:
    CHARLES STENBERG, PLAINTIFF, v. FRANCES P. POOLE, DEFENDANT.
    Decided December 23, 1930.
    Before Justice Parker, at chambers.
    Eor the plaintiff, Nicholas S. Schloeder.

    Eor the defendant, George F. Losche.

   Parker, J.

The writ issued on an order by a Supreme Court commissioner adjudging, among other things, that the defendant has assigned, removed and disposed of some of her property with intent to defraud her creditors, and is about to assign, &c., with similar intent. The affidavit also set up an existing debt in language hereafter to be considered.

It is not clear whether the plaintiff relied on clause 1 of section 84 of the Practice act of 1903 (Comp. Stat., p. 4076), contemplating an affidavit establishing facts on which the plaintiff would be entitled to an order to hold the defendant to bail under the Practice act (i. e., section 56), or on clause 3 of section 1 of the Attachment act of 1901 (Comp. Stat., p. 133), where the language is “proof by affidavit of fraud which would warrant an order for a capias ad respondendum.” Eor present purposes it is immaterial, as in both cases the affidavit must comply with the requirements of section 57 of the Practice act which are: proof by affidavit or otherwise to the satisfaction of the (court, judge or commissioner) “that there is a debt or demand founded upon contract, express or implied, due to the plaintiff from the defendant, specifying the nature and particulars of said debt or demand, and establishing one or more of the following particulars” (here follows a statutory definition of the several kinds of fraud recognized as a basis of the writ, including disposal of property, &c.)

Eor the defendant it is claimed that the affidavit is insufficient to support an order to hold to bail, and hence will not support a writ of attachment under either statute referred to.

I have no difficulty with the allegations of fraud, which state facts and circumstances amply sufficient, in my estimation, to justify that phase of the order. The trouble is with the averments relating to the debt. It will be remembered that the affidavit must specify “the nature and particulars of the debt or demand.” The affidavit before me states the “nature and particulars” of the cause of action thus:

“Between September, 1929, and July, 1930, 1 lent to Prances P. Poole, and paid for her use, sums aggregating about $7,341, which she promised to repay on demand.

“At various times during the months of July, August and September, 1930, 1 duly demanded payment of the same from Prances P. Poole, but no part of said claim has been paid except the sum of $1,565.”

This, under our decisions, is not a proper specification of the particulars of the claim.

In Peltier v. Banking Co., 14 N. J. L. 257, 258, part of the claim was “in the sum of $657.52 on a balance of account against him, according to the best of deponent’s knowledge and belief.” On page 262 the court, recognizing that the existing statute permitted an allegation on information and belief (Revision 1821, page 404), held the affidavit defective as “not stating what the account is forciting English cases. In Seidel v. Peschkaw, 27 Id. 427, the affidavit set up, first, conversions of the proceeds of thirty-one bills of exchange, with name of defendant as drawer, payee and accepter of each, amount of each, and due date of each. The exact dates of the bills were not stated, and the court held this unnecessary. Secondly, the affidavit alleged the intrusting to defendant of goods consisting of woolen fabric and yarns, also dyestuffs and other ingredients to the amount of thirty-two thousand florins. This the court held bad, saying it might be a specification of the nature of the demand but not of its particulars. This decision is in point, and has never been challenged in any reported case that I can find. I have always understood that an affidavit to hold to bail for a debt should be substantially as specific in stating the particulars of the debt as if they had been formally demanded in the progress of the cause. Whether or not this be legally essential, the ease of Seidel v. Peschkaw is controlling to the effect that the present affidavit in this aspect in insufficient. It is probably further insufficient as claiming an aggregate of loans of “about” $7,341 and not stating a definite total. Vankirk ads. Staats. 24 Id. 121. But it is probably enough to say that Seidel v. Peschkaw is controlling.

The order for attachment must be set aside, and the writ quashed.


author: Bbown, S. C. C.

text:
    MURRAY WEINSTEIN, PLAINTIFF, v. OLIVER R. BLANCHARD, DEFENDANT.
    Por the motion, Stein, McGlynn & Hannoch.

      Contra, Edwards, Smith & Dawson.

   Bbown, S. C. C.

The question to be decided in this case arises on plaintiff’s motion to strike out a plea puis darrein continuance. In October, 1928, the plaintiff brought suit to recover damages from the defendant alleging negligence in an operation performed on the plaintiff on August 10th, 1909, and negligent treatment thereafter, which alleged negligence the plaintiff claims resulted in serious injury to him and caused a continuing injury to the present time. The plaintiff further charged that the defendant fraudulently concealed the existence of a rubber tube in the body of the plaintiff until the 7th day of July, 1928, which tube it is claimed was used by the defendant in his treatment of the plaintiff. The complaint also contains a count alleging breach of contract, up to the 21st day of July, 1928, on the part of the defendant in operating upon and caring for the plaintiff. The defendant in his answer denied all the material allegations in the complaint and pleaded the statute of limitations as a bar to the action. The plaintiff filed a bill in the Court of Chancery seeking to enjoin the defendant from pleading the statute of limitations as a defense to the action at law, alleging in the bill of complaint that the defendant performed the operation and continued treatment thereafter, and that the plaintiff or his representatives questioned the defendant in regard to the missing tube, and that the defendant “falsely” represented to the plaintiff, or his representatives, that the tube was not in the plaintiff’s body, and that if it was it would cause no ill effects.

The only purpose of the bill filed in the Court of Chancery was to obtain equitable relief by way- of injunction to restrain the defendant from setting up the statute of limitations as a bar to the action at law on the ground of, alleged fraud. The case in Chancery came on for a final hearing and that court dismissed the bill by a decree containing no other determination of facts than—

“It appearing to the satisfaction of the court that the complainant is not entitled to the relief prayed for * * *. It is * * * ordered, adjudged and decreed, that said bill of complaint be dismissed.”

Upon the filing of this decree the defendant was permitted to file a plea puis darrein continuance, subject to the plaintiff’s motion to strike. In his plea the defendant alleges the decree in Chancery was a determination on the merits of the issues raised in the action at law; that the decree is a bar to such action and the plaintiff is estopped from further proceeding with his case in this court. From the proofs furnished on this motion it is apparent the Court of Chancery did not determine the issues raised in the action at law, but denied to the plaintiff the injunctive relief which that court alone can give. Savage v. Edgar, 85 N. J. Eq. 424. The jurisdiction of the Court of Chancery was invoked not to try the issues of the action in the Supreme Court but to afford relief which the court at law was powerless to afford.

Under our system of jurisprudence the Court of Chancery has inherent power to prevent a party from pleading the statute of limitations in an action at law, if by the defendant’s fraudulent conduct it would be inequitable for him to plead the statutory bar. Freeholders v. Veghte, 44 N. J. L. 509; Freeman v. Conover, 95 Id. 89; Holloway v. Appleget, 55 N. J. Eq. 583.

The plea is in effect one of res adjudícala. The test in determining whether a prior judgment between the same parties concerning the same subject-matter is a bar is to ascertain whether the same evidence which is necessary to sustain the second action would have been sufficient to authorize a recovery in the first, if so, the prior judgment is a bar. Hoffmeier & Son v. Trost, 83 N. J. L. 358.

This test has not been met in the instant case. There was determined in the Court of Chancery the question of granting equitable auxiliary relief to an action pending in the law court and not a determination of the issues raised in the latter court. Henwood v. Jarvis & Schafer, 27 N. J. Eq. 247; Metropolitan Savings and Loan v. Dughi, 49 Atl. Rep. 542; 34 Corp. Jur. 785; Perdue et al. v. Ward et al., 14 A. L. R. 539; Hudson v. Remington Paper Co., 6 Amer. & Eng. Ann. Cases 103; Rowell v. Smith, 3 Id. 775.

Lord Bacon, in words which Mr. Justice Story placed upon the title page of his work on Equity Jurisprudence, said: “Chancery is ordained to supply the law, not to subvert the law.” To maintain the defendant’s contention would be a subversion and denial of the plaintiff’s legal rights.

The defendant in his argument also contended that the plaintiff admitted in the Chancery action that he was barred from proceeding at law. The proof does not support this contention. It is also significant that a form of decree containing a recital of this admission was not allowed. The pleadings do not contain such an admission, and even if they did they would be open to explanation and rebuttal. First National Bank v. Duncan, 18 Amer. & Eng. Anno. Cases 81. And a large number of eases therein cited including those of English courts.

The motion to strike out the defendant’s plea puis darreincontinuance is granted.


author: Duncan, J.

text:
    Essex County Circuit Court.
    JOSEPH WEISBERGER, PLAINTIFF, v. HERMAN MAURER, DEFENDANT.
    Eor the motion, Philip J. Schotland.

    Contra, Samuel I. Kessler.

   Duncan, J.

This is a motion to strike out the plaintiff’s complaint, the first count of which charges the defendant with failure to protect his land and structures thereon against the excavation of the plaintiff upon his adjoining lot to a depth not greater than eight feet, which was done by the plaintiff, after notice to the defendant and after the defendant’s failure to do so, and the plaintiff seeks by this suit to recover from the defendant the cost of a retaining wall erected by him for the purpose of affording such protection.

The second count charges that, as a result of the defendant’s failure, dirt and debris from the defendant’s land fell upon the land of the plaintiff to his damage, and to prevent further injury to his premises he erected a retaining wall, the cost of which he seeks to recover from the defendant.

The third count charges that the defendant collected and discharged upon the plaintiff’s adjoining land, surface and drainage water to the damage of the plaintiff.

Plaintiff relies upon section 66 of the building code of the city of Newark which provides:

“Excavations not exceeding eight feet.

“1. If such excavation is not intended to be, or shall not be, carried to a depth of more than eight feet below the curb, the owner of any wall, building or structure, the safety of which may be affected by said excavation, shall preserve and protect the same from injury, and support the same by proper foundations; and, when necessary for that purpose, shall be permitted to enter upon the premises where such excavation is to be made. In case such wall, building or structure, however, is so located that the curb to which it is properly referred is at a higher level than the curb to which the excavation is referred, such part of the necessary underpinning or foundation as may be due to the difference in curb levels, shall be made and maintained at the joint expense of the person causing the excavation to be made and the owner of such wall, building or structure. (Building Code, 1928, Revisions, page 40.”)

And claims that such provision is authorized by chapter 152, laws of 1917, page 319, article XIV, section 1, which authorizes municipalities “to make, publish, enforce, amend or repeal ordinances” for certain purposes, one of which is paragraph X, page 355:

To regulate excavations below the established grade or curb-line of any street in any such municipality, not greater than eight feet, which the owner of any land may make, in the erection of any building upon his own property; and to provide for the giving of notice, in writing, of such intended excavation to any adjoining owner or owners, and that they will be required to protect and care for their several foundation walls that may be endangered by such excavation; and to provide that in case of the neglect- or refusal, for ten days, of such adjoining owner or owners to take proper action to-secure and protect the foundations of any adjacent building or other structure, that the party or parties giving such notice, or their agents, contractors or employes, may enter into- and upon such adjoining property and do all necessary work to make such foundations secure, and may recover the cost of such work and labor in so protecting such adjacent property; and to make such further and other provisions in relation to the proper conduct and performance of said work as the governing body or board of the municipality may deem necessary and proper.

It will be observed that this paragraph X authorizes an ordinance to provide for giving notice of the intended excavation to the adjoining owner to protect and care for his foundation walls that may be endangered by such excavation, and to provide that if he neglect or refuse for ten days to do so, the party giving the notice may enter upon such adjoining property, and do the work necessary to make such foundations secure, and recover the cost of such work and labor.

Section 66 of the city ordinance is not in accord with this provision of the statute, but provides that the owner of the structure shall be permitted, when necessary, to enter upon the premises where the excavation is to he made in order to preserve and protect his structures from injury, but gives no right to the excavating owner to go upon his neighbor’s land and do the work necessary to make his foundations secure as contemplated by the statute, nor does it provide for notice to the owner of the structures, nor provide that upon his failure to protect his structures, the excavating owner may do so at his expense. The statute does not authorize an ordinance permitting an excavating owner to build a retaining wall on his own premises at the expense of the owner of the structures, but only to authorize him to go upon the land of the owner of such structures and there do the necessary work to make Ms foundation secure. This the plaintiff did not do.

In addition to this statute and ordinance, the plaintiff relies upon the case of Eads v. Gains, 58 Mo. App. 586, where recovery was permitted under circumstances similar to those in this case; but, while the general principles stated in that case as to the rights and liabilities of adjoining owners are followed in this state, our courts have not held that where an abutting owner, having structures upon his land, fails upon notice to protect them from failing into the excavation, the adjoining owner may do so at his expense. It may be that, upon such failure, if damage result to the excavating owner’s property, he may be liable for that damage, but that is not the theory of plaintiff’s case. What he seeks to recover is not damage for the dirt and debris which fell upon his premises, but the cost of a retaining wall built by him.

The case of Flanagan Brothers Manufacturing Co. v. Levine, 125 S. W. Rep. 1172, also a Missouri case, holds that the purpose of giving notice is “for the purpose of giving the owner of the adjoining property warning and opportunity to protect his building,” and that the duty which the owner of a building owes to keep his house from falling into the excavation, is to himself.

I am impressed by the argument in defendant’s brief, that “if I own a shack worth less than the cost of protecting it, it seems very high handed to allow the adjoining owner to protect it regardless of cost, at my expense. It may fall and do no damage. It may not fall at all.”

Until the plaintiff is damaged, no right of action accrues to him for the failure of the owner of the structures to protect them, and then he may bring an action for such damage, not for the cost of a wall erected by him in anticipation of an injury which may never occur.

These views result in striking out the first and second counts.

As to the third count, there is no doubt that a landowner has a right to change the grade of his land and to erect buildings thereon in such a way as to cause surface water to flow upon the land of his neighbor, and if such neighbor be damaged thereby it is damnum absque injuria, but I have never understood that rule of law to permit him to construct and maintain a “pipe or culvert for the collection and discharge of surface and drainage water upon his neighbor’s land” to his damage, as charged in this count of the plaintiff’s complaint.

The motion to strike out the third count will be denied.


author: Egan, J.

text:
    Hudson County Court of Common Pleas.
    STELLA HART, PETITIONER, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, RESPONDENT.
    For the petitioner, Hershensiein & Finnerty (Charles Hershensiein, of counsel).
    For the respondent, William, A. Barkalow (Raymond Dawson, of counsel).
   Egan, J.

Stella Hart, as widow of Stanley Hart, filed a petition for compensation on behalf of herself and her four infant children with the workmen’s compensation bureau of the New Jersey department of labor under the provisions of the Workmen’s Compensation act of 1911 and the amendments thereto and supplements thereof. The claim was contested by the respondent who filed an answer. Hearings were had before Honorable Charles E. Corbin, the deputy comiriissioner of labor, who awarded compensation to the widow totalling the sum of $13,018.If. From this judgment the defendant appealed to this court, which filed an opinion affirming the judgment of the workmen’s compensation bureau. From the judgment of this court, the respondent procured a writ of certiorari to the New Jersey Supreme Court, which affirmed the judgment of this court and remitted the record to this court.

The respondent then appealed from the judgment of the Supreme Court to the New Jersey Court of Errors and Appeals, which affirmed the judgment of the Supreme Court and by remittitur, dated October 20th, 1930, the Court of Errors and Appeals directed that the record be remitted to the Supreme Court and that the Supreme Court remit the record to this court to be proceeded with according to law and practice of this court. Pursuant to this direction, by remittitur, dated November 17th, 1930, the Supreme Court remitted the record to this court to be proceeded with according to law and practice of this court.

Application for counsel fee was made before the Court of Errors and Appeals before the remission of the record to this court. That court, however, declined to consider the application, and, instead, remitted the record as above outlined. Counsel for the petitioner now makes application to this court for a counsel fee for the successful conduct of their cause before the Court of Errors and Appeals.

The respondent questions the power of this court to award counsel fees accordingly and protests any allowance. There seems to be no case directly in point. Counsel have submitted none and I have been unable to find one.

In my opinion, there is no doubt but that this court has the power to award counsel fees on an application such as this. I think the situation is somewhat similar to the power of the Court of Chancery, or the Prerogative Court, to award counsel fees to successful litigants for services rendered in the Court of Errors and Appeals. Epr a proper understanding of the situation, I believe it is necessary to refer to the various provisions of the Workmen’s Compensation act, and, also, to duly observe some of the decisions of the higher courts applying to that act.

In the case of Scalise v. Uvalde Asphalt Paving Co., 98 N. J. L. 696, the Supreme Court said that the legislature made a radical change in the procedure relating to claims for compensation in accident cases by the employe against the employer where the contract of employment falls within the provisions of the Workmen’s Compensation act. Mr. Justice Kalisch, writing the opinion for the Supreme Court, so .declared. In the ease of Crew v. Trainor, 91 Id. 87; affirmed, 92 Id. 512, and in Levitan Embroidery Works v. Lamatina, 95 Id. 68, it was determined that the Workmen’s Compensation act did not impair any contract or create a new remedy, but it only prescribed a new method of procedure in workmen’s compensation cases.

The Workmen’s Compensation act expressly provides that, in the first instance, the official conducting any hearing before the workmen’s compensation bureau may, in his discretion, allow to the party in whose favor judgment is entered, a reasonable counsel fee, not exceeding twenty per cent, of the judgment, with the proviso, that when prior to any hearing compensation lias been offered or paid, the reasonable allowance for attorney fee shall be based upon only that part of the judgment or award in excess of the amount of compensation theretofore offered or paid. (Section 17, chapter 149 of the laws of 1918, as amended by chapter 224 of the laws of 1928, page 399.)

Chapter 149 of the laws of 1918 provides for the method of appeal from a determination of the workmen’s compensation bureau to the Court of Common Pleas, and section 20 thereof provides as follows:

“The said Court of Common Pleas may, in its discretion, allow' a reasonable attorney fee to the party prevailing in the trial of such appeal, which fee may be taxed in the costs and recovered against the unsuccessful party.”

It is to be noted that the only difference in the allowance of fees in the workmen’s compensation bureau and in the Common Pleas Court is that upon the former there is the limitation of twenty per cent, of the amount to be awarded, while no such restriction applies to an allowance of counsel fee in this court.

In my opinion it was clearly the intention of the legislature that counsel fee should be awarded to the successful party .as against the respondent, because section 21E of the original compensation act, chapter 95 of the laws of 1911 (Cum. Supp. Comp. Stat. 1911-1924, §§ 236-24, p. 3882), makes it unlawful for any attorney to ask for, contract for, or receive any larger sums than the amount awarded. The section reads as follows:

“When any proceedings have been taken under the provisions of paragraph 20 or paragraph 21 of this act, the workmen’s compensation burean or the judge of the Court of Common Pleas shall, as a part of its or his determination and order, either for payment or for commutation of payment, settle and determine the amount of compensation to be paid by the injured employe or his dependents, on behalf of whom such proceedings are instituted, to his legal adviser or advisers, and it shall be unlawful for any lawyer, or other person acting in that behalf, to ask for, contract for, or receive any larger sum than the amount so fixed; and in order determining weekly payments where no commutation is made, the bureau or the said judge shall also determine the amount to be paid per week from the compensation payment on account of the legal fee thus awarded, and it shall be unlawful for the legal adviser, or other person acting in that behalf, to ask for, contract for or receive a larger sum per week than the allowance thus determined.”

It is obvious that it was the intention of the legislature-that an injured workman or next of kin, in case of death, should receive the sums of money fixed by the act, and that the compensation to the attorney was to be awarded by the compensation bureau and the court alone.' These agencies, and no other, control the allowance to counsel. Not only, therefore, did the compensation act change the mode of procedure in the awarding of compensation but it also changed the mode of compensating attorneys for the services rendered. Contracts between the attorney and the injured claimant or his next of kin are outlawed and made unlawful and the only compensation to which an attorney is entitled is that awarded by the court. It certainly would be most unreasonable to expect an attorney to devote his time and talents to a case on appeal and go unrewarded for a successful devotion to duty. The “laborer is worthy of his hire.”

The provisions of the Chancery act and the practice of awarding a successful litigant counsel fees are distinctly analogous, with this qualification—that whereas the compensation awarded to an attorney in a compensation action is all inclusive and the attorney may not contract for or reeeive any sum greater than that awarded; yet, in a suit in the Court oí Chancery, the allowance to counsel does not relieve the client from the payment of a sum to counsel in addition to the sum awarded as counsel fees by the court. Counsel in proceeding in chancery may not only receive an allowance from the court, but he is not barred or prevented from charging his client in addition to any judicial allowance.

Section 91 of the Chancery act (1 Comp. Stat., p. 445), provides:

“That in any cause, matter or proceeding in the Court of Chancery, the Chancellor may make such allowance by way of counsel fee to the party or parties obtaining the order or decree as shall seem to him to be reasonable and proper, and shall direct which of the parties shall pay such allowance * *

By virtue of this act the Court of Chancery awards not only counsel fees to successful litigants in its court, but may on remittitur from the Court of Errors and Appeals award counsel fees for services rendered in the Court of Errors and Appeals. This practice has been well settled in our state.

In Sobel v. Sobel, 100 N. J. Eq. 532, the Court of Errors and Appeals held that the Court of Chancery has jurisdiction to allow counsel fees for services rendered on the appeal, in a ease which had been heard by the Court of Errors and Appeals, where the record had been remitted to the Court of Chancery, affirming Vice-Chancellor Bentley, who, in an opinion reported in 99 N. J. Eq. 707, allowed counsel fees for services rendered before the Court of Errors and Appeals. See, also, Weeks v. Lister, 62 Id. 813; Simpson v. Klipstein, 90 Id. 197.

While an award made to an attorney in a compensation case is, as hereinbefore indicated, to be considered as full payment to the attorney, an award for counsel fees made in the Court of Chancery is not. In the case of Strong & Sons v. Mundy, 52 N. J. Eq. 833, Mr. Justice Dixon, speaking for the Court of Errors and Appeals, decided that attorneys and solicitors may lawfully charge their clients reasonable fees for services rendered in addition to the fees allowed them by the court.

It is obvious that it was the intention of the legislature in the enactment of the Workmen’s Compensation act, and the amendments thereof and supplements thereto, regulating and controlling the award of counsel fees, the amount thereof and the prohibition against other charges for services rendered, that the court should have control and discretionary power to award fees in a proper case. It would be most unreasonable to believe that the legislature intended or expected that attorneys should prosecute cases on behalf of injured workmen before appellate courts without compensation. The statutes are to be. reasonably construed and the intention of the legislature should, wherever possible, be given force and effect and this declaration applies to the Workmen’s Compensation act. The fact that the legislature expressly made it unlawful for attorneys to ask for, contract for, or receive any larger sum than the amount fixed by the court, indicates clearly that so long as this court has control of the judgment, it may award reasonable counsel fee to the successful attorney. By remission of the record to this court by the Court of Errors and Appeals and the Sureme Court “to be proceeded with according to law, &c.,” the judgment and'record are now within the control of this court, and in my opinion, there is unquestionably lodged in this court the same power to award counsel fees for the successful prosecution by an attorney of a cause before the Court of Errors and Appeals as there is in the Court of Chancery, or in the Prerogative Court, to allow a counsel fee for like services in a Chancery action before the Court of Errors and Appeals; and this court, in making an" allowance, is but following the mandate of the higher courts “to proceed with this case according to law and practice of this court.”

The intent and aim of the legislature 'in the adoption of' the various provisions of the Workmen’s Compensation act was that the injured workman or his next of kin should receive the sums provided by the provisions of the Workmen’s Compensation act without deduction for counsel fees unless the court seawards. In other words, there is vested in the court the power to assess counsel fees as against both the petitioner and the respondent where the court perceives from the record that a doubtful question was involved. On the other hand, where there appears to be no lawful reason why a respondent should withhold or refuse payment of compensation and a petitioner is compelled to resist and oppose appeals to the various courts, it would be just and proper to assess the counsel fees for such appeals as against the unsuccessful appellant. If this court has no power to award counsel fees for services rendered in the appellate courts, then why should it not follow that the provision of. section 21E of the Workmen’s Compensation act, which prohibits the charge by an attorney as against his client, should be considered as without effect in appeals and the attorney be permitted to ask for, contract for, or receive compensation for his services in such appellate courts? The answer to such a proposition is: It would be contrary to the spirit and intent of the legislature and render useless and ineffective the salutory provisions of this act.

Since I have determined that this court has the power to award a reasonable counsel fee for the successful prosecution of a compensation case before the Court of Errors and Appeals on a remiltilur to this court, the amount to he awarded is to be fixed, having in mind the amount of the award, the preparation of the cause, the time spent and the result obtained.

The attorneys for the petitioner have submitted and filed with mo an affidavit indicating the time actually spent by them in the successful prosecution of the appeal, and I therefore find and award to Messrs. Hershenstein & Finnerty, the attorneys for the petitioner, the sum of one thousand ($1,000) dollars, and I do direct that the said sum be assessed and taxed against and be paid by the respondents.

An order to this effect will be entered.


author: Mackay, J.

text:
    Passaic County Circuit Court.
    WILLIAM BRUECKMANN ET AL. v. HORACE FRIGNOCA; AND IN THE MATTER OF APPLICATION OF JOSEPH MILLER ET AL., FOR THE CONTEST OF THE ELECTION OF HORACE FRIGNOCA FOR TAX COLLECTOR OF THE BOROUGH OF HALEDON, IN THE COUNTY OF PASSAIC.
    Por the petitioner, Samuel Raff.

    Por the respondent, J ames J. Murner.

   Mackay, J.

This is a proceeding instituted by virtue of Pamph. L. 1930, cli. 187, entitled “An act to regulate elections, revision of 1930.” Paragraph 355, section 1 of said act and the following paragraphs up to and including paragraph 368, section 14, are applicable to this case.

The petitioners seek to set aside the election of Horace Prignoca as collector of Haledon and charge fraud, &c. The principal contention was that located at Haledon, Passaic county, New Jersey, there is the Yalley Yiew Sanatorium, which is an institution for the cure of persons having tuberculosis and living in Passaic county; that on election day, November 4th, 1930, more than one hundred of the inmates voted illegally and that they voted for Prignoca, and if these votes were rejected Brueckmann would be the duly elected collector of the municipality. Only twenty-three of the inmates were sworn and after examination by the respective attorneys the court felt justified in asking the question of each inmate as to whom he voted for (paragraph 361, section 7). Of the twenty-three answers, five voted for Prignoca, one for Brueckmann, three did not vote for either one and fourteen did not know for whom they voted. In other words, they either didn’t know or couldn’t remember.

When adjournment was taken for the day counsel for petitioner was of the opinion that from the testimony of these witnesses it would not change a sufficient number of votes to declare Brueckmann elected and so the proceeding was practically abandoned, except that it was suggested an opinion should be rendered as to the legality of these votes, with which suggestion I agree.

All of the twenty-three witnesses were residents of Passaic county and had wives or families, and if single had homes with their parents where they could legally vote. They went to the Valley View Sanatorium because afflicted with tuberculosis and only for the purpose of being cured, and when cured expected to return to their homes. They had all lived one year in the state and five months in the county, and in my opinion had domiciles or voting residences to which they expected to return. They could not possibly remain in the institution after being cured so there was no possibility of making that institution the voting residence and domicile.

“The residence required in the laws of this state, to entitle a person to vote at an election, means his fixed domicile, or permanent home; and is not changed or altered by his occasional absence, with or without his family, if it be animo revertendi. A residence in law, once obtained, continues without intermission until a new one is gained.” Cadwalader v. Howell, 18 N. J. L. 138.

“Persons who are in hospitals for the purpose of obtaining medical treatment do not thereby obtain a residence in such hospital so as to entitle them to be registered as living or residing therein. The purpose is a temporary one, and no residence can thereby be acquired.” 10 Am. ,& Eng. Encycl. L. 601.

“A person does not forfeit his residence in a precinct in which he was a voter merely by becoming a county charge and an inmate of the poorhouse.” Dale v. Irwin, 78 Ill. 170.

“A pauper remaining in the county poorhouse and sent there from another township, does not acquire a residence in the township in which the poorhouse is located so as to entitle him to vote in the latter township.” Clark v. Robinson, 88 Ill. 498.

“In general, it may be said'that an intent-to change one’s domicile and place of abode is not so readily presumed from a residence at a public institution for the purpose of education, for a given length of time, as it -would be from a like removal from one town to another, and residing there for the ordinary purposes of life; and therefore stronger facts and circumstances must concur to establish the proof of change of domicile in the one case than in the other. But where the proofs of change of domicile, drawn from the various sources already indicated, are such as to overcome the presumption of the continuance of prior domicile, such'preponderance of proof, concurring with an actual residence of the student in the town where the public institution is situated, will be sufficient to establish his domicile and give him a right to vote in that town with other municipal rights and privileges.” Opinion of Justices, 5 Metc. (Mass.) 590.

It appears from the foregoing case that while the student' could obtain a voting residence or domicile in the town where the public institution for learning was located, the proof would have to be such as to convince one that it was so intended, and in this case if it had appeared that the student was living at the institution or in a home connected with the institution, he would not have been permitted to vote, but having acquired a separate residence outside of and beyond the control and authority of the institution he had evidenced his intention to permanently remain in that particular town.

In the Matter of Goodman, 146 N. Y. 284, Judge Einch said:

“We do not mean to say that a voter may not change his legal residence into a new district in spite of the fact that he becomes a student in an institution of learning therein, but the facts to establish such a change must be wholly independent and outside of his presence in the new district as a student, and should be very clear and convincing to overcome the natural presumption. In the present case there were no such facts. .Presumably rooms in the seminary rented to students are to be occupied only during the prescribed period of study, and not permanently as a residence, and there was nothing before the court to show any change of residence beyond the temporary presence in the institution for such period of study. This construction obeys literally the constitutional mandate, and does not necessarily disfranchise a single citizen. It merely recognizes and applies the admitted truth, acted upon at every election, that the voting residence may be in one place and the actual abode in another. Usually, perhaps always, the voting residence remains unchanged until a new residence is actually acquired, but there can be nc such acquisition merely by an abode as a student in an institution of learning. Something else, beyond that fact and wholly independent of it, must occur to effect the change. The intention to change is not alone sufficient. It must exist, but must concur with and be manifested by resultant acts which are independent of the presence as a student in the new locality. It is only in quite exceptional cases that such a result could be reached, and nothing in the one before us takes the situation out of the constitutional rule.” Cited and approved In re Matter of Garvey, 147 N. Y. 117.

I have cited cases relating to students in colleges because they are numerous and apparently in line with the situation now before me in this case. Only one or two cases of persons in sanatoriums could be found. The reason for this may be that courts and lawyers would be inclined to the opinion that confinement in an institution of this kind for treatment is of temporary nature and the animus manendi which is necessary for a voting residence is not present.

Mr. Justice Donges in the case of Snyder v. Callahan, 3 N. J. Mis. R. 269, very aptly said:

“In Watkinson v. Watkinson, the Court of Errors and Appeals, speaking by Judge Vroom, in treating of the question, of domicile as a basis for jurisdiction under our Divorce act, quotes with approval the language of Mr. Justice Depue in Harrell v. Harrell, that ‘to the factum of residence must be added the animus manendi, and that place is the domicile of a person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home/ and, continuing, the court says: 'The doctrine laid down by the courts of the United States is that a domicile having been once acquired continues until a new one is actually acquired animo et facto/ 10 Am. & Eng. Encycl. L. 605. And while, in determining the animus manendi> the declarations of the claimant are material and important, yet, as was said by Vice-Chancellor Van Fleet in Firth v. Firth, 'the best and most trustworthy evidence of it is to be found as a general rule in his acts rather than in his declarations/

“The general rule in respect to the acquisition of a new domicile is, that after a person has abandoned his domicile of origin, or his acquired domicile, his domicile will be considered to be in that place in which he has voluntarily fixed his habitation, not for a special or temporary purpose, but with a present intention of making it his home, unless, or until, something which is uncertain or unexpected should happeSa'to induce him to adopt some other permanent home.” Snyder v. Callahan, 3 N. J. Mis. R. 269.

Therefore, I find as a fact from the evidence before me in this case, that the inmates of Valley View Sanatorium were not legally registered voters of the borough of Haledon and not entitled to vote at the general election held November 4th, 1930. Nevertheless, in view of the fact that there is no evidence to show that a sufficient number of the inmates voted for Horace Frignoca for the office of collector so as to change the result, the judgment of the court is that Horace Frignoca was duly elected collector of the borough of Haledon.

I will sign the proper statutory order to this effect when presented by counsel.


author: Pee Cueiam.

text:
    WOMEN’S CHRISTIAN ASSOCIATION OF PHILADELPHIA v. AMOS LIPPINCOTT, COLLECTOR, ETC.
    Filed May 7, 1908.
    Before Gummeee, Chief Justice, and Justice Swayze.
    Eor the prosecutor, David Harvey, Jr.

    For the defendant, Samuel A. Patterson.

   Pee Cueiam.

This certiorari brings up a tax of $432 assessed upon property of the prosecutor in Asbury Park. The property assessed consists of a tract of land donated to the prosecutor by James A. Bradley, and two buildings erected thereon, and paid for partly by donations made to the prosecutor, and partly by moneys borrowed by it. The prosecutor is a corporation of the State of Pennsylvania. The purpose of its creation, as stated in its charter, is “the temporal, moral and religious welfare of women, especially young women, who are dependent upon their own exertions for support.” The property is used as a summer home for working girls. The buildings will accommodate a maximum of two hundred and twenty. Each girl is allowed to stay two weeks. If she has a room to herself she is charged $5 per week; if she shares her room with another girl the charge is $4. Girls who are too poor to pay board, but who, in the judgment of the managers of the association, are proper to be received at the institution, and who need a vacation, are received without charge. The expense of maintaining and operating the home exceeds the receipts from the board of the girls who are received by several hundred dollars annually, the difference being made up by the managers, and charitably disposed persons who contribute to the support of the institution.

Article 1, section 3, subdivision 4 of the Eevised Tax act of 1903 (Pamph. L., p. 394), exempts from taxation “all buildings used exclusively for purposes considered charitable under the common law, with the land whereon the same are erected, and which may be necessary for the fair enjoyment thereof, and the furniture and personal property used therein;” and this exemption is extended by the express words of the statute “to cases where the charity is supported partly by fees and charges received from, or on behalf of, beneficiaries occupying said building, provided the building is wholly controlled, and the entire income therefrom is used, by the charitable corporation for its charitable purposes.”

The property upon which this tax has been assessed is clearly entitled to the exemption given by this statutory provision. The buildings are used exclusively for purposes considered charitable under the common law; the fees and charges received from the beneficiaries occupying the building are entirely used for its maintenance and the building is wholly controlled by the prosecutors for the charitable purposes of the association. The case in its legal aspect is, in our opinion, identical with that of Paterson Rescue Mission v. High, Receiver, &c., 35 Vr. 116, and on the authority of that case the assessment now under review should be set aside.


text:
    COLLETTE A. O’CONNOR, PLAINTIFF, v. HOTEL TRAYMORE COMPANY, A CORPORATION, ETC., DEFENDANT.
    Argued May 7, 1930
    Decided January 16, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the rule, Cole & Cole.

    Contra, Bolte, Tripician & Kirhman.

   Per Curiam.

This is defendant’s rule to show cause why plaintiff’s verdiet at the Atlantic Circuit should not be set aside.

The verdict was for $963.19. The cause of action alleged was that while the plaintiff was a guest at defendant hotel, she deposited with the clerk a diamond ring to be placed for safe keeping in the vault of the defendant, and that through negligence on the part of defendant the ring was lost and not re-delivered to plaintiff. The value of the ring was not questioned.

We think the verdict ought not to be disturbed as being in conflict with the Hotelmen’s Lien act (Comp. Stat., p. 3135, f 46-3), and in ignoring the limitations thereof. The action is on the theory of simple bailment and not on liability as an innkeeper. The lien act was not pleaded by the defendant. The action was tried entirely on the theory of bailment. As shown and stated by the court, in its charge, the defense seems to have been that the ring had not been placed in the box by the plaintiff and the evidence seems to have been directed mainly to that issue.

We think the court cannot be said to have erred, as is now claimed for the first time, in its failure to charge the jury as to the statute.

There is nowhere in the pleadings, or in the evidence, or in requests to charge, or in the charge, or in the exceptions to the charge, or in the trial of the case from the beginning to the end, the slightest suggestion that the HotelmenJs Lien act was involved, and it seems to us that the defendant ought not now be heard to say that it was involved.

The defendant contends that the verdict was against the weight of the evidence. We cannot say that it was.

Counsel for the defendant next argue that the court erred in stating to the jury that “if you should bring in a verdict against the defendant you are not charging anyone with theft.” We find no fault with the charge in this respect.

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


text:
    GEORGE GREGORY, PLAINTIFF-RESPONDENT, v. COAST CITIES RAILWAY COMPANY, BODY CORPORATE, AND JOSEPH HICE, DEFENDANTS-APPELLANTS.
    Submitted May 14, 1930
    Decided January 20, 1931.
    Before Justices Parker, Campbell and Bodine.
    For the defendants-appellants, Applegate, Stevens, Foster, Leonard & Reussile.

    For the plaintiff-respondent, Quinn, Parsons & Doremus.

   Per Curiam.

The rule brings up a judgment for injuries sustained in a cross-road accident. Norwood avenue runs north and south and Roosevelt east and west. Both avenues are in Ocean township, Monmouth county, New Jersey. Plaintiff was driving a rented Dodge car north on Norwood avenue. He was followed by the defendant’s bus. Testimony indicated that plaintiff intended to turn left into Roosevelt avenue. There was also testimony that plaintiff’s car was struck by the bus when half way across the intersection.

The trial judge in an admirable charge submitted the issues of negligence and contributory negligence to the jury. We think the evidence supports the verdict. The charge of the trial judge clearly embraces the points made in the requests refused in so far as the same were proper.

The rule will be discharged.


author: Pee Cukiam.

text:
    BOON BROTHERS, INCORPORATED, A CORPORATION OF NEW JERSEY, RELATOR, v. JACOB NOONBURG. COLLECTOR OF TAXES OF THE CITY OF GARFIELD, DEFENDANT.
    Decided January 21, 1931.
    Before Justices Pakkee, Campbell and Bodine.
    Eor the petitioner, Edward E. Merrey.

   Pee Cukiam.

An application was made by petition to compel obedience to a peremptory writ of mandamus issued out of and under the seal of the court on October 20th, 1930. Proceedings to punish for contempt for disobedience of a writ of mandamus are by attachment, rule to show cause, or other process, and the proceedings are governed by the rules applicable in contempt proceedings generally. 38 O. J. 939. The practice in this state is to issue and serve personally a rule to show cause why the respondent should not be attached for contempt. Brown v. Rahway, 53 N. J. L. 156, 161. See, also, Butler Co. v. Pittsburg, &c., 298 Pa. 347; 148 Atl. Rep. 504.

A rule to show cause will issue on petition filed.


author: Pee Cubiam.

text:
    LINWOOD COMPANY, RELATOR, v. SAMUEL GARDNER, BUILDING INSPECTOR OF THE TOWN OF BLOOMFIELD, RESPONDENT.
    Submitted October term, 1930
    Decided January 21, 1931.
    Before Justices Pabkee, Campéele and Bodine.
    Por the rule, Fleming & Handford.

      Oonlra, Edward G. Pettit.

   Pee Cubiam.

The applicant for this writ is the owner of a tract of land in Bloomfield upon which it desires to erect two four-family dwellings and on May 21st, 1930, applied to the building inspector for a permit to erect such structures, accompanying such application with plans, &c., complying with the then existing ordinance requirements. The permit was denied, without reason being given, and upon October 4th,s1930, the present rule was obtained.

It appears that on October 6th, 1928, Bloomfield, pursuant to the zoning amendment and the statute thereunder, appointed a zoning commission which made no report until October 4th, 1930, something over two years after its appointment. It appears also that the present rule to show cause was allowed upon the same day.

This report has been adopted by Bloomfield and its attorney has been directed, and authorized, to prepare a zoning ordinance, in accord therewith, which will create a zone, including relator’s lands, restricting the use thereof to one-family dwellings, which would make the use thereof proposed by relator a non-conforming one.

Mindful of Butvinik v. Jersey City, 6 N. J. Mis. R. 803, and Deerfield v. Hague 8 Id. 637, we are nevertheless constrained. to hold, under the facts in the present ease, that our discretion, in the allowance of this prerogative writ, should be exercised in favor of the respondent the town of Bloomfield.

We are obliged to take judicial notice of the difficulties confronting municipalities in properly legislating upon zoning conditions. With this in mind, and without attempting to excuse inactivity in this direction, we are unwilling in the present ease, and at ths time, to grant to the applicant the writ applied for.' This denial, however, is without prejudice to a future application therefor and without prejudice to an application for such a writ to require the governing body to proceed to adopt a zoning ordinance.

The rule to show cause is discharged, but without costs.


text:
    EDWARD S. WILINSKI AND FRANK WILINSKI, RELATORS, v. THE TOWNSHIP OF HADDON, IN THE COUNTY OF CAMDEN, ET AL., RESPONDENTS.
    Submitted October 17, 1930
    Decided January 21, 1931.
    Before Justices Parker, Campbell and Bodjne.
    For the relators, Clifford A. Baldwin.

    For the respondents, Walter 8. Keown.

   Pee Cueiam.

The relators have a contract to purchase a triangle bounded north by Collings avenue, west by Calvert avenue, and southeast by Crescent Boulevard, in the township of Haddon, and wish to use the property for a gasoline and oil-filling station. Their application for a permit was denied and they come to this court to compel the issuance of such permit. The premises are not affected by any true zoning ordinance. However, it appears that there is still in force an ordinance of 1920 which forbids any public or private garage within two hundred feet of a church; and the case shows that there is a church immediately across the street from this tract of land and within two hundred feet of it. It has been!held by this court that a filling station such as the relators desire to install is within the meaning of the word “garage.” Northern New Jersey Oil Co. v. Board, 142 Atl. Rep. 557; Peck v. Newark, 142 Id. 558; 6 N. J. Mis. R. 698.

The rule to show cause will accordingly be discharged.


text:
    THE STATE, EX REL. THOMAS H. MORRIS ET AL., PROSECUTORS, v. CHARLES S. HILL, ETC., RESPONDENT.
    Submitted October term, 1930
    Decided January 20, 1931.
    Before Justices Paekeb, Campbell and Bodine.
    For the rule, Henry Si. C. Lavin.

      Contra, Russell H. Watson.

   Per Curiam.

A writ of certiorari was allowed, returnable at tbe November term of this court in 1878 to review proceedings to lay out a road known as Grove avenue in the township of Woodbridge, by surveyors of the highway. It appears that depositions were taken by rule for that purpose and the cause is said to have been submitted to this court, upon briefs, more than fifty years ago.

Since then, and until the issuance of the present rule to show cause, nothing has been done by this court or any of the parties looking to a disposition of such proceedings.

On May 27th, 1929, an ordinance was introduced by the township of Woodbridge establishing the grade and fixing the width of Grove avenue at fifty feet instead of sixty feet at which it is said to have been originally laid out. At a hearing upon said ordinance held June 10th, 1929, certain property owners objected thereto upon the ground that their lands extended beyond, the proposed street .lines and they were entitled to be compensated therefor, such contention being in disregard of the proceedings- to open such highway by the surveyors and which was the subject of review under the certiorari before referred to.

Then, and upon April 5th, 1930, the township committee of Woodbridge applied for, and obtained, the present rule to show cause why such proceedings in certiorari should not be dismissed for lack of prosecution.

That is the matter now before this court.

The holder of the rule asserts that it is the proper party to make the application; that the contestants against the rule are in laches and that the testimony taken under the certiorari proceedings will not support the contentions of the original prosecutors that the proceedings of the surveyors should be set -aside.

The respondents counter these contentions by urging that they are not in laches and that no litigant can be so long as the delay is the default of the court in rendering .a decision upon a matter regularly before it; and further, generally, that this court should now proceed to consider this matter, said to have been presented to it over fifty years ago, and pronounce judgment.

This latter contention, which as an alternative relief, appears to be concurred in by the holder of the rule, seems to us to be unwarranted and preposterous. It certainly does not engender an approving response.

Upon the question of laches we conclude that all parties to the original proceeding are guilty thereof. That a matter of this kind could be permitted to lie dormant for half a century, permitted complicated property interests to arise, and shift, and still leave any of the parties guiltless of gross inactivity and laches is beyond our comprehension.

Our conclusion is that none of the parties is entitled to relief by this court, but all are to be left as they have permitted themselves to be placed, continuing to slumber, as they have, all these years.

The rule to show cause is discharged.