text:
    HARRY LEVY, PLAINTIFF-RESPONDENT, v. JOSEPH IAVARONE, DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided April 16, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiff-respondent, William Boor stein.

    For the defendant-appellant, Tumulty & Tumulty.

   Pee Cubiam.

This action was originally instituted against Joseph Iavarone and Nichola Mancini jointly as partners in the ownership and operation of a real estate property fox a bill of $182 for coal delivered at and consumed on the premises. Mancini., however, was not served with process. The court awarded judgment in favor of the plaintiff and against the appellant in the sum of $182, with interest and costs, and in so doing found as a fact that Iavarone and Mancini were partners with relation to the property during the period in question and that the coal had been sold and delivered at the instance and request of Mancini for the account, however, of the said Mancini and Iavarone.

Appellant denies that there was any debt owing from him to the plaintiff and that there was proof upon which a partnership might have been inferred.

The case turns upon whether there was proof to sustain the finding of the court that the relation of partners did in fact exist. That there is such evidence seems beyond dispute. There is proof that the appellant admitted to the plaintiff that the appellant was not only a partner with Mancini in the ownership and management of the property at the time the coal was purchased, but that subsequently, upon receiving a conveyance of Mancini’s interest in the property, he had obligated himself to pay the very bill in question.

The fact that the existence of a partnership between Iavarone and Mancini was not known to the plaintiff at the time the credit was extended is not conclusive against the plaintiff. 47 Corp. Jur. 686, § 77; Ibid. 899, § 384. By the Uniform Partnership act (2 Cum. Supp. Comp. Stat., p. 2659, § 4, subd. 3) it is provided that the law of agency shall apply thereunder. Under the law of agency the creditor is not precluded from showing, if he can, that the relationship of principal and agent existed although he may not have been aware of that situation at the time the credit was extended. Yates v. Repetto, 65 N. J. L. 294.

We find that there is evidence to sustain the court’s finding in the respects mentioned and indeed in all respects.

We deem it unnecessary to further discuss the remaining points raised on appellant’s brief.

Judgment below will be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CATHERINE McGORY, PLAINTIFF, v. GEORGE DUGAN, DEFENDANT.
    Submitted October term, 1930
    Decided April 16, 1931.
    Before Justices Case, Daly and Donges.
    Eor the defendant, George F. Seymour, Jr.

   Per Curiam.

This is on defendant’s rule to show cause why a new trial should not be granted. Dugan is a taxi owner. Mrs. McGory .was a passenger in a taxi owned by him and driven by his employe. She was injured by a collision between the taxi and a car driven by one Purcose. The jury rendered a verdict of $7,000 for the plaintiff.

The points attempted to be made are that the verdict is contrary to the weight of the evidence, that there was no proof of any violation of duty, that there was no proof of negligence that the verdict is a result of mistake, passion or prejudice, that the verdict is contrary to and inconsistent with the charge, that the court erred in refusing motion for nonsuit and that the damages are excessive.

There is evidence from which the jury could find that the defendant’s taxi was being driven down Bowne avenue, Ereehold, at a speed of between fifty and fifty-five miles an hour; that the driver of the other car stopped at the cross-corner before turning into Bowne avenue, saw the taxi three hundred feet away and attempted to make the turn; and that before the second car got fully around the corner it was run into by defendant’s taxi. There is ample evidence to sustain a verdict for plaintiff. We are unable, from the evidence, to say that the verdict is excessive. None of the points are sustained.

The rule to show cause is discharged, with costs.


author: Pee Cueiaai.

text:
    MOE ZAGER, TRADING AS DELAWARE GARAGE, PLAINTIFF-RESPONDENT, v. ALFRED ADAMS, Jr., DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided April 16, 1931.
    Before Justice Case, Daly and Donges.
    Eor the plaintiff-respondent, Cole & Cole.

    For the defendant-appellant, William I. Garrison.

   Pee Cueiaai.

The plaintiff-respondent brought suit in the Atlantic City District Court on two counts, one for the price of goods sold and delivered on a book account and the other for the value of labor performed and materials furnished at the request of the defendant-appellant. The cause ivas tried by the District Court without a jury. After the evidence was closed and the matter submitted to the court, judgment was rendered by the court in favor of the plaintiff and against the defendant for the sum of $429.24 damages and $25.06 costs.

The defendant appealed, specifying five alleged errors. However, the record is devoid of anything upon which these alleged errors may be grounded. There were no objections noted, no requests for findings either of law or of fact, and therefore nothing to review. Wayne Contracting Co. v. Allendale, 88 N. J. L. 397. When a case is tried by the District Court, without a jury, its findings on the blended law and facts cannot be reviewed on appeal unless raised by a request to find, the denial of which may constitute a determination in point of law that is reviewable upon appeal. George W. Edwards Co. v. Excelsior Drum Works, 88 Id. 189.

The judgment below will be affirmed, with costs.


author: Pee Cebiam.

text:
    HYMAN POMERANTZ, PLAINTIFF, v. PAUL J. DUNN, DEFENDANT.
    Submitted October term, 1930
    Decided April 16, 1931.
    Before Justices Case, Daly and Donees.
    For the plaintiff, Greenberg & Greenberg.

    For the defendant, Wright, VanderBurgh & McCarthy.

   Pee Cebiam.

The action is for rent under a lease. The court below found that there had been a surrender of the lease by the tenant and an acceptance of the surrender by the landlord. The judgment, in effect, was for the defendant. The landlord appeals. The case comes up on stipulated facts.

It is clear from the testimony of the landlord himself that he was, prior to the vacating of the premises, in negotiation with the state highway commission for the sale to the latter of all or part of the premises under lease; that the landlord and the tenant together visited the representative of the state highway commission with that object in view; that the landlord had conferred with the tenant in connection with the proposed vacating of the premises by the tenant to assist in acquisition by the highway commission, and that the landlord had received a communication in writing from the attorney of the defendant with respect to such negotiations. It appears by other testimony, although denied by the landlord, that the tenant delivered to, and the plaintiff accepted, the key to the premises with the oral agreement that the sum of $185, theretofore in the hands of the landlord as a deposit, was to be applied to rental payment, and that the tenant should be relieved of all further obligation under the lease.

The foregoing and other testimony leads us to conclude that the finding of fact by the court below was support in the testimony. When the minds of the parties to a lease cofieur in the common intent of relinquishing the relation of landlord and tenant, and execute this intent by acts which are tantamount to a stipulation to put an end thereto, there at once arises a surrender by act and operation of law. Meeker v. Spalsbury, 66 N. J. L. 60.

The judgment below is affirmed, with costs.


author: Pee Ctjbiam.

text:
    MAE DE LEAR, PLAINTIFF-RESPONDENT, v. JOSEPH WOLANSKY AND MIRIAM WOLANSKY, DEFENDANTS-APPELLANTS.
    Argued October 8, 1930
    Decided April 16, 1931.

      Before Justices Case, Daly and Donges.
    Eor the respondent, Julius A. Kepsel.

    For the appellants, Turteliaub & Turleltaub and Aaron A. MelniJcer.

   Pee Ctjbiam.

The appeals are from two judgments in the amount of $500 each rendered for the plaintiff and against the defendants in two actions brought simultaneously in the District Court of the city of Hoboken. In each state of demand the same contract for the purchase and sale of land is set up and damages from the breach thereof alleged. The first action is for the recovery of search fees, survey charges and disbursements. The second is for the recovery of the deposit of $500. Plaintiff was the purchaser and defendants were the vendors; and the defendants are the appellants.

Against the first judgment appellants raise four points.

The first is that the state of demand does not set forth any cause of action. This point is not founded upon any specification filed by the appellants.

The second point is that the trial court erred in denying defendants’ motion for a nonsuit. The only reasons given for the motion at the time that it was made were that there had been no survey offered in evidence and that there was no adequate proof of defects in title. There was positive evidence of cost of examining the title, and this was sufficient to carry the case past the nonsuit stage (Panipii. L. 1915, ch. 159) regardless of proof of survey costs. Likewise, there was evidence of defects in the title sufficient to overcome the motion for nonsuit. The matters now presented in appellants’ brief under this point differ considerably from those presented at the trial and, to the extent of such difference, will not be considered.

The third point is that the court improperly admitted the testimony of William A. Kavanaugh, an attorney and counsel or-at-law, as to the value of the services of Joseph J. Loori for his services with respect to the title. We find no error in the ruling.

The fourth point is that the trial court erred in rendering judgment for the plaintiff at the conclusion of the case instead of for the defendants. To the extent that the subheadings are properly before us, we conclude that there was no error on the part of the court in rendering the judgment.

The judgment below will be affirmed as to this case.

The district court jurisdiction is, by the statute, limited to suits where the debt, balance, damage or other matter in dispute does not exceed, exclusive of costs, the sum of $500. 2 Comp. Stat., p. 1962, § 30. Where the debt, balance or other matter in dispute exceeds, exclusive of costs, the sum or value of $500, the plaintiff may recover in the District Court a sum not exceeding $500 and costs, though such recovery shall be a bar to the recovery of the residue of the debt, balance or other matter in dispute. 2 Comp. Stat., p. 1964, § 33.

The deposit for which plaintiff sues in the second action is a part of the recovery which plaintiff sought as an incident to the breach of the contract whereby defendants undertook to convey title to her. Plaintiff split her cause of action for the obvious purpose of keeping the suits within the District Court. That she may not do. The first action with its recovery was a bar to the second.

Judgment in the second action will, therefore, be reversed. Costs will accompany each determination.


author: Pee Cubiam.

text:
    BEATRICE ROMANO, PLAINTIFF-RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided April 16, 1931.
    Before Justices Case, Daly and Donges.
    Eor the respondent, Benjamin Gordon.

    Por the appellant, McCarter & English (Herbert B. Baer, on the brief).
   Pee Cubiam.

The action is on contract and was brought on an insurance policy issued by the defendant on October 8th, 1938, insuring the life of one Mickele Romano. The policy was payable to the executor or administrator of the insured. It contained what is known as the facility of payment clause, which provided as follows:

“The company may make any payment or grant any non-forfeiture privilege provided herein to the insured, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial; and the production of a receipt signed by either of said persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under this policy have been satisfied.”

The plaintiff, a sister oí the insured, was neither his executrix nor administratrix.

Seven reasons are advanced in appellant’s brief in support of the argument that there was error in the trial. The first two, respectively, are to the effect that the trial court erred in denying the motion for nonsuit and in denying the motion for direction of verdict in favor of. the defendant on the ground that the plaintiff: was not a party entitled to sue under the policy. The plaintiff contends that she fully complied with all the “conditions precedent” as set forth in the facility of payment clause and thereby became entitled to payment from the company. The law on this subject is too well settled in this court to need extended discussion. By the terms of the clause in question an option is given the company to pay any one of the persons having the qualifications named in the clause. This option of itself necessarily excludes any right on the part of the plaintiff to enforce payment; and the fact, if it be a fact, that the payments of premium were made by the plaintiff, imposes no liability upon the company to her. Marzulli v. Metropolitan Insurance Co., 79 N. J. L. 271.

It is unnecessary to consider the other questions raised in the case.

The defendant was entitled to have its motions granted. Judgment will be reversed, with costs.


text:
    JACOB RUBIN, PLAINTIFF, v. MORRIS GOLDBERG AND EMIL RUDOLPH, DEFENDANTS. HARRY GOLDSTEIN, PLAINTIFF, v. MORRIS GOLDBERG AND EMIL RUDOLPH, DEFENDANTS.
    Submitted October term, 1930
    Decided April 16, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiffs, Harry 8. Medinets.

    Eor the defendant Morris Goldberg, Wall, Haight, Carey & Haripence.

   Per Curiam.

These matters come before us on rules to show cause, issued at the instance of defendant Goldberg in each case, why the service of the summonses and complaints should not be set aside and the actions dismissed, and on motion of the plaintiff Jacob Rubin for leave to amend his complaint to state the alleged fact of his New Jersey residence. Each action is for damages alleged to have been suffered by the respective plaintiffs in an automobile collision near Laurence Harbor, New Jersey, on May 7th, 1927. One of the defendants, Emil Rudolph, resides in New Jersey, and the summons and complaint in each case were served on him in this state. The other defendant, Morris Goldberg, is and was a non-resident of the State of New Jersey and lived in Brooklyn, New York, and service on him in both cases was made, or attempted to be made, under the provisions of chapter 232, Paraph. L. 1924, as amended by chapter 232, Pamph. L. 1927, by having the sheriff of Mercer county leave a copy of the summons and complaint in each case in the office of the secretary of state, with the chief clerk in the said office, the secretary of state being at the time absent. The complaint in the Rubin case is introduced by the following clause: “The plaintiff, residing at No. 326 Northwest 8th avenue, Miami, Florida [at the time of the accident a resident of Keansburg, New Jersey], says that” and this clause is followed by the several counts of the complaint.

The brief submitted on behalf of defendant Goldberg sets up, first, that the record does not show a compliance with the statute in that the service is not made upon either the secretary of state or upon anyone designated or authorized by him. The statutory language (Pamph. L. 1927, p. 441, ch. 232) is that “service of such process shall be made by leaving the original and a copy of the summons and complaint, with a fee of two dollars, in the hands of the secretary of state of the State of New Jersey, or someone designated by him in his office, and such service shall be sufficient service upon the said non-resident chauffeur, operator or owiier * * There had been no order specifically designating the chief clerk in tire office of the secretary of state to receive the service of process. But it appears from the affidavits and testimony of Ernest R. Kerr that he is the chief clerk in the secretary of state’s office, that as chief clerk he is the person who-in that office acts for the secretary of state in the latter’s absence and acts for him in cases involving proceedings in respect to service of non-resident defendants, and that this particular duty comes within his duties as chief clerk. We consider that the intendment of the statute is met by the service of the process, in the absence of the secretary of state, upon the official who, in his absence, by the direction of the secretary of state and in accordance with the established practice of the department, acts for and in the place of the secretary of state within the department and particularly with respect to the service of such process under the statute. The statute does not, in terms, require a designation in writing, and we think the practice established and maintained under the direction of the secretary of state is a sufficient designation by him to that end.

Appellant next contends that not only do the records not show a compliance with the statute, but that the statute itself is contrary to the determination in Pennoyer v. Neff, 95 U. S. 714. It has, however, been held by the United States Supreme Court in Hess v. Pawloski, 274 Id. 352, that a state statute declaring that the use of its highways by nonresident operators of motor vehicles is the equivalent of the appointment by such non-resident of a state official as agent upon whom process may be served for starting proceedings against him growing out of collision or accident in which he is involved on a highway, and requiring that he shall actually receive and receipt for notice of the service and a copy of the process, is not a denial of due process of law under the fourteenth amendment of the federal constitution but is a valid exercise of the police power.

It is next argued that chapter 232, Pamph. L. 1924, has been declared invalid by the United States Supreme Court in Wuchter v. Pizzutti, 276 U. S. 13, and that that statute thereby became dead and cannot be revived by chapter 232, Pamph. L. 1927; and that in any event the 1927 statute cannot be read back into the 1924 statute with respect to an accident that happened prior to July 4th, 1927. Those contentions have been adversely decided by this court in the ease of Dwyer v. Volmar Trucking Corp., 105 N. J. L. 518.

It is finally contended that the allegation in the complaint as to the residence of plaintiff Rubin in Miami, Florida, is conclusive against him on that point and that consequently he is not entitled to the benefit of the statute. The substance of this point was not included within either the petition upon which the rule issued or in the notice with respect thereto. The complaint did allege that at the time of the accident plaintiff was a resident of the State of New Jersey, and the fact, as we find from the proofs, is that he continued to be and still was a resident of the State of New Jersey at the time the summons and complaint were issued and served.

Tlie motions to quash will be denied. The motion to amend the Rubin complaint in such manner as to correctly and more exclusively state the New Jersey residence of the plaintiff is granted. Costs on the rules are allowed the respondent. No costs are allowed on the motion to amend.


author: Ackerson, S. C. C.

text:
    MARGARET O’ROURKE HUNT, PLAINTIFF, v. HARRY A. GORENBERG AND FANNIE GORENBERG, HIS WIFE, DEFENDANTS.
    Decided October 15, 1930.
    NOTE.—The equity feature of this case is reported in 107 N. J. Eq. 582. At the suggestion of Judge Ackerson the law feature of this case is now published.
    Eor the plaintiff, Charles C. Coigan. '

    Eor the defendants, O’Brien & Tartalshy.

   Ackerson, S. C. C.

The complaint herein alleges that the defendants executed and delivered to the plaintiff a bond and mortgage covering property which was subsequently sold by the defendants to John and Fannie Trupkiewicz, subject to said mortgage, and that said property was thereafter sold under foreclosure of said mortgage resulting in a deficiency, to recover which this suit is brought against the defendants, as the obligors on the bond accompanying said mortgage.

The defendants’ answer admits the execution and delivery of the bond and mortgage and the foreclosure of the mortgage and that a sheriff’s sale was held at which the premises were struck off to the plaintiff for $500. The answer further sets up three separate and distinct defenses. The first separate defense alleges in substance that after the execution and delivery of the bond and mortgage in question, the defendants conveyed the premises covered thereby to said John and Fannie Trupkiewicz, and that thereafter plaintiff, as mortgagee, entered into a separate written agreement unto said John and Fannie Trupkiewicz, defendants grantees, upon a sufficient consideration, to extend the time for the payment of the balance of the sum secured by said bond and mortgage for three more years; that defendants were not parties to said extension agreement, and that the effect of such extension agreement, a copy of which is attached to the answer, is to discharge the defendants, as obligors, from liability on said bond for any deficiency resulting from said foreclosure. The second separate defense merely alleges that at the time of the original maturity of said bond the value of the land covered by said mortgage was more than sufficient to fully pay the mortgage debt, but that thereafter, and during the extended time for payment, the value of said land depreciated to the extent of at least $4,500, whereby defendants were released and dischargd from further liability on said bond. The third separate defense alleges that the amount of the deficiency is undetermined because plaintiff, who purchased the premises at the foreclosure sale, has failed and neglected to comply with the terms of the sheriff’s sale to him and neglected to pay the consideration money and receive the deed from the sheriff of Hudson county.

In tins situation tlie plaintiff now moves to strike out the aforesaid answer as sham, frivolous and not setting up any defense in a court of law, and upon the further ground that the matters involved are res adjudícala.

The plaintiff has submitted an affidavit and copies of documents fully substantiating all of the facts set forth in their complaint, but the defendants have not submitted any affidavits or other competent proof to dispute such facts, nor to substantiate any of the matters set forth in their answer, including the aforesaid separate defenses, as required by rule 80 of the Supreme Court (Revision of 1926) which provides: “The answer may be struck out and judgment final may be entered upon motion and affidavits as hereinafter provided, unless the defendant, by affidavit or other proofs, shall show such facts as may be admitted, by the judge hearing the motion, sufficient to entitle him to defend.”

As the defendants have failed to submit to me upon the motion affidavits or other proofs as to the facts set forth in their answer, including the separate defenses, and as the plaintiff’s affidavit fully sets out the facts upon which his cause of action is based and fully complies with rule 81 of the Supreme Court, I must assume that the facts set forth in the plaintiff’s affidavit are true, and that the defendants cannot show such facts as would be sufficient to entitle them to defend. Schiff v. Alexander, 130 Atl. Rep. 133; Larner v. Town of Montclair, 99 N. J. L. 510. The foregoing observations are sufficient to dispose of this motion adversely to the defendants

It may be well, however, to deal further with the subject argued. The defendants’ position at the argument of this motion was rested upon the legal effect upon the defendants of the above-mentioned agreement extending, without their consent, the time in which their grantees might pay the principal of the aforesaid bond and mortgage. We will proceed to consider this phase of the case, assuming that such agreement was actually executed by the plaintiff. The question thus presented is specifically raised by the first and second defenses in the defendants’ answer, and its solution, as a question of law, will also effectively dispose of such defenses, the third defense raising purely a question of fact, having already been shown to be sham because not substantiated by proofs.

The so-called extension agreement, a copy of which is annexed to defendants’ answer, is based upon an expressed consideration of one dollar and the covenants therein contained, and does not purport to change any of the terms or conditions of said bond and mortgage, but merely extends for three years the time in which defendants’ grantees, John and Fannie Trupkiewicz, may have in which to pay the balance of the principal thereof.

Reflection will show that in order to maintain this defense of release or discharge from liability on the bond by extension of the time of payment given to defendants’ grantees, the defendants must base their contention upon one or the other of two propositions. They must maintain either, that having contracted with their creditor as principals, they may now show that as between themselves and their grantees, John and Fannie Trupkiewicz, they are in fact sureties, and obtain the privileges of the latter character in this action at law by their creditor on the original obligation, or else that the so-called extension agreement between plaintiff and defendants’ grantees, amounted to a novation, whereby this latter agreement was substituted for the original obligation, or the said Trupkiewicz substituted in place of the defendants as the sale debtors.

It is undoubtedly true that an extension of time for payment given to a principal upon a sufficient consideration will discharge a surety who is not a party to such extension agreement. Grover v. Hoppock, 26 N. J. L. 191; Nightingale v. Meginnis, 34 Id. 461.

It is also well settled in this state that where a grantee covenants with his grantor to pay off a mortgage encumbrance, if the grantor is personally liable thereon, the grantee is regarded in courts of equity as the principal debtor, and the grantor only as a surety. Stiger v. Mahone, 24 N. J. Eq. 426, 430; Crowell v. Hospital of St. Barnabas, 27 Id. 387. But it is equally well settled in this state that courts of law under such circumstances do not recognize this change of status, but hold that the grantor, who contracted the mortgage debt, after the assumption thereof by the grantee, continues at law to be the principal debtor. In other words, one who has contracted as a principal, but who is in fact, or later becomes a surety, cannot in a court of law claim any of the privileges belonging to the latter character. Palmer v. White, 65 N. J. L. 69; Pintard v. Davis (Court of Errors and Appeals), 21 Id. 632; Anthony v. Fritts, 45 Id. 1; Shute v. Taylor (Court of Errors and Appeals), 61 Id. 256; Grier v. Flitcraft, 57 N. J. Eq. 556; Crowell v. Hospital of St. Barnabas, supra.

It is indeed singular that the defendants as well as the plaintiff herein rely in part upon the case of Palmer v. White, supra, to support their respective contentions. The ease is undoubtedly directly in point upon this phase of plaintiff’s motion, but it is difficult to see how the defendants can draw any consolation from it. The defendant, White, had executed a bond and mortgage to one Brown to secure a loan, and later conveyed the premises to Elizabeth Moffatt, who expressly assumed the payment of said bond and mortgage, which by various assignments came to the ownership of the plaintiff Palmer, who later brought suit in a court of law to recover the amount due thereon. The defendant pleaded extension of time of payment by agreement with the person who assumed the payment of the bond and mortgage, and without the consent of the defendant. The plaintiff demurred to the plea of extension of time of payment, and the court said inter alia:

“It is well settled that there must be a sufficient consideration to support the contract for extension of time in order to give it legal effect as a release to the surety. * * * The plea fails to aver that any consideration was given for such extension of time. The demurrer admits only such facts as are well pleaded, and assuming, as the plea does, that White” (the defendant obligor) “was surety only upon said bond after the assumption by Elizabeth Moffatt, still the plea is bad for failure to set out a consideration for the extension of time.”

The defendants in the case sub judice argue from the above extract that the court held that the plea would have been good in the court of law if a consideration for the extension agreement had been expressed. That the court did not so hold is apparent from the fact that the court merely assumed that the defendant was a surety upon the bond because the plea so assumed, but it did not hold that the defendant’s status was in fact that of a surety at law. This is made clear from the next succeeding paragraph of the opinion, which reads as follows:

“But at law, White” (the obligor) “after the assumption by Elizabeth Moffatt, continued in law to be the principal debtor, and, therefore, also the plea is vicious and the demurrer to it is well taken.”

It is apparent, therefore, that the plea was fundamentally bad because the defendant obligor continued at law to be the principal debtor and not a surety as assumed by the plea, notwithstanding the assumption of the payment of the debt by the defendant’s grantee.

It will be seen, therefore, from what has already been said that this phase of the plaintiff’s motion involves the defendants’ remedy and not their right to ultimately prevail in the proper tribunal. In the case of Pintard v. Davis, supra, the court said:

“If bound, as principal, a defendant cannot aver at law in an action upon the instrument, that he is only a surety, though in equity parol evidence is admissible to show who is principal and who surety.”

Mr. Justice Dixon, in dealing with the same principal in Shute v. Taylor, supra, had this to say:

“Inasmuch as the matter concerns, not rights but only remedies, we think it should be considered settled that in an action on the contract the creditor will not be held at law bound to treat as sureties those who contracted as principals, merely because they were in fact, or became sureties, to his knowledge.”

Probably New Jersey’s position upon the underlying principie here involved is best expressed by Chief Justice Beasley in the case of Anthony v. Fritts, supra, where he said, inter alia:

“If the defendant had bound himself in this instance as a surety, the extension of time for the payment of the note given on a legal consideration to the principal debtor, would either at law or in equity, have worked his exoneration from all liability, but having stipulated unconditionally for the payment of this money, he cannot interpolate into his engagement any terms tending to his protection, as it does not seem practicable for him to do more than to assert that the conduct of the plaintiff in disregarding his status of surety of which he was informed, was inequitable. * * * This contract being, as respects the defendant, of primary obligation, cannot be converted into one o£ secondary obligation; but, nevertheless, in the view of the court of equity, it was not conscionable for the plaintiff to increase the hardship of the defendant’s position as, in point of fact, he was the surety •of the principal debtor. But this right of the surety to have his status respected does not pertain to his contract, as an implied incident, but is a mere equity, which it is irregular to enforce in a court of common law, so long as it is important to preserve the distinction between the procedures of legal and those of an equitable forum. * * * Such is the equitable doctrine, and such are the grounds of that doctrine a court of equity intervenes in such cases, not by way of enforcing a contract but as in many similar cases, for the prevention of unconscionable conduct, against which there is no legal protection.”

In this case there was an express consideration for the extension of time, and still the court would not recognize it as a defense in a court of law, by one who had originally contracted as a principal debtor, but who later claimed the •character and privileges of a surety.

It is to be noted also that the Chief Justice in the case last cited points out very clearly that much of the apparent, conflict of the courts of this country as to the admissibility of the defense we are now considering is due to the union in some jurisdictions of the legal and equitable systems in the-same court. A striking example of this is found in the New York reports in the ease of Metzger v. Nova, Realty Co., 214 N. Y. 26; 107 N. E. Rep. 1027, which, from a factual standpoint, is identical with the case sub judice. There the defense of extension of time as releasing the original obligor was maintained, because the court was enabled to administer equitable relief. This is apparent from the opinion where-the mortgagor is dealt with as a surety and his rights 'are denominated “equitable rights” as would have been the casein our own Court of Chancery. But, of course, in New Jersey, our courts of law cannot recognize and enforce such-equitable rights.

The defendants, however, insist that they have discovered a new theory by which this court may take jurisdiction of the case. The contention is that when the plaintiff executed the extension agreement with defendants’ grantees, it. amounted to an alteration or modification of a written instrument, the effect of which was to discharge the defendants from further liability therein, or at least raise an issue of fact as to the damages, if any, which the defendants suffered by reason of said agreement.

At the outset we may say that an alteration of a written-instrument, strictly speaking, is some material change made upon the face of the instrument itself by one of the parties thereto without the consent of the other. 2 Gyc. 142. There was no such change in this case; therefore no technical alteration.

So far as a modification is concerned, it is, of course, true,, as the defendants contend, that a contract cannot be modified without the assent of all the parties thereto. 6 R. G. L. 914. It follows, therefore, that in the case, sub judice, there was no modification of the bond so far as the defendants are concerned, because they did not assent thereto and were not contemplated in the extension of time for payment. The defendants have hit the nail on the head, and demolished their own contention when they said in the brief submitted on this matter that, “a contract between plaintiff and defendant could not be modified by a subsequent contract between plaintiff and the new vendees,” and so the terms of the bond as originally written continue to bind these defendants in a court of law, and the situation cannot be changed except through the medium of payment, release or novation, none of which appear in the ease.

The same situation arose in Palmer v. White, supra, and in all the other New Jersey cases cited earlier in this memorandum, and it is preposterous to suppose that throughout this long line of judicial pronouncement, emanating from the best minds in our judicial history, the theory of release or discharge by alteration or modification was never considered or thought of. The reason it was never specifically mentioned is that it has no applicability to the situation presented for the reasons already stated. The principle established by these cases is that, in a court of law, a principal obligor remains such notwithstanding that the obligee has, for a consideration, granted an extension of time for payment to one who has assumed the payment of the debt as between himself and the obligor. The obligee, by entering into an agreement extending the time for payment, merely accepts additional security, and in none of the New Jersey cases is it suggested that such an agreement altered or modified the original contract with the obligor.

In view of the foregoing cases in our own state, and because we still maintain separate systems of law and equity, I am obliged to hold that the defense of extension of time for payment granted by plaintiff to defendants’ grantees is not, under the circumstances, available to the defendants in this action at law. Their remedy, if any, is by bill in chancery to restrain the prosecution of this action in this court as pointed out in Grier v. Flitcroft, supra.

Before leaving the subject, however, it may be well to consider whether the agreement between the plaintiff and John and Fannie Trupkiewicz, extending the time for paying the bond in question amounted to a novation whereby it was substituted for the original obligation, or whether John and Fannie Trupkiewicz substituted as the sole debtors in the place of the defendants.

In accordance with the general rule it is necessary, in order to effect a novation involving the introduction of a new party, that there be a mutual agreement among the parties to the old and new obligations, whereby the new obligation is substituted for the prior one. Hence, in the absence of an agreement that the original obligation be extinguished and a new one substituted there can be no novation. It is also essential that this new agreement be participated in and assented to by all the parties concerned, for unless all the parties to the old contract consent it cannot be rescinded, and unless all the parties to the new contract consent it cannot be created. 46 Corp. Jur. 600, § 43.

The agreement in question here merely extended the time for paying the original bond so far as the grantees, John and Fannie Trupkiewicz, are concerned, and bound them to pay the sums secured at the extended due rate, and to comply with the other terms and conditions of said bond and mortgage. And such agreement further provides as follows: “Nothing herein contained shall in anywise impair the security now held for said debt.”

It can hardly be said, therefore, that there was an ex-tinguishment of the original obligation.

Furthermore it is not alleged, nor does it anywhere appear, that the defendants participated in and consented to the extension agreement between plaintiff and the said John and Fannie Trupkiewicz. On the contrary, the defendants expressly deny any participation therein or consent thereto in the seventh paragraph of their “First Separate Defense,” wherein it is alleged that “said extension agreement and the negotiations leading to the execution thereof was without the consent or knowledge of defendants.”

Tlie case of Mooney v. Newbern, 137 Atl. Rep. 567, is in point. Dolson, tiie owner of a house in process of construction, under a contract with one Newbern, promised to pay Mooney, an unpaid subcontractor, if he would complete his work, and it was held that this did not constitute a novation releasing the contractor, but a supplemental contract super-adding the owner’s responsibility to that of the contractor, in the absence of showing that the contractor was consulted and consented to being released. In the course of the opinion the court said:

“In a novation involving three parties such as an old debtor, a new debtor and the creditor, it must appear that all three concurred in the substitution of the new debtor for the old and the release of the latter. * * * The case is barren of any assent between plaintiff [Mooney] and Newbern to the release of the latter and the acceptance of Dolson’s obligation in lieu of that of Newbern.”

So in the case sub judice, the so-called extension agreement did not constitute a novation releasing the defendants as obligors on the bond here involved, but was only a supplemental agreement superadding the responsibility of John and Fannie Trupkiewicz, grantees, to that of the defendants, the original obligors.

As already intimated under our system of jurisprudence wherein law and equity are administered by separate tribunals, and relief to which the defendants may be entitled, must be sought in the Court of Chancery, as was done in Grier v. Flitcroft, supra.

The question may arise as to whether this matter should not be transferred to the last named court under the provisions of the Transfer of Causes act. Pamph. L. 1912, p. 417, as amended by Pamph. L. 1915, p. 39. This cannot be done, however, because it is well settled that the last mentioned act is intended only for the transference of cases where the court in which they are pending has no jurisdiction on the whole case, and not where an equitable defense is attempted to be pleaded to a cause of action cognizable in a court of law. Curran v. Carroll, 101 N. J. L. 329; Ireland v. Penn Motors Corp., 129 Atl. Rep. 183; Scerbak v. Lane, 141 Id. 582.

Eor the reasons already stated the defendants’ answer will be stricken out, but the order to that effect shall not be entered until after ten days from October 15th, 1930, in order that the defendants, in the interim, may apply for relief in Chancery if they so desire.


author: Peb Ctjbiam.

text:
    CHARLES FORST, PLAINTIFF-RESPONDENT, v. GILBERT J. VOLLICK, DEFENDANT-APPELLANT.
    Argued October 9, 1930
    Decided April 16, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiff-respondent, J. Glenn Anderson.

      For defendant-appellant, Simon M. Seley.

   Peb Ctjbiam.

Plaintiff, respondent herein, is a painting contractor. The suit is to recover for labor expended on real estate property. The court below found that the defendant, appellant herein, had, with one Silverstein, attempted to perpetrate a fraud upon the plaintiff and awarded judgment in favor of the plaintiff and against the defendant in the sum of $400.

Silverstein had a contract of purchase with Thomas Judge, the then owner of the property. Yollick, who, according to the testimony, wras the broker negotiating the sale by Judge to Silverstein, approached the plaintiff with respect to the proposed work, informed him that Silverstein, and not the defendant, was the owner of the property and took the plaintiff to Silverstein. Plaintiff was shown the contract of purchase and himself entered into a written contract with Silver-stein for the doing of the work. Subsequently, Silverstein was unable to make his payments on the contract for the purchase'of the land and entered into a new contract with Yollick whereby the latter, for the consideration of $165, undertook to take title in his own name, complete the payments of the-purchase price and later convey to Silverstein.

There is not the evidence to sustain a finding of fraud-The essential elements of fraud have been frequently pronounced by the courts of this state. Byard v. Holmes, 34 N. J. L. 296; Kosobucki v. McGarry, 104 Id. 65. The burden of proving fraud is, of course, upon the one who charges it.. That burden has not been met.

Neither can the defendant be held responsible as an agent. Not only was the principal thoroughly disclosed, but the actual contract of employment was made between plaintiff and the principal. McCauley v. Ridgewood Trust Co., 81 N. J. L. 86.

Judgment below will be reversed, with costs.


author: Dungan, S. C. C.

text:
    LAURA FORD AND J. ALFRED FORD, PLAINTIFFS, v. JERSEY CENTRAL POWER AND LIGHT COMPANY, A CORPORATION, ET AL., DEFENDANTS.
    Decided April 15, 1931.
    Eor the motion, Leonard J. Emmergliclc.

      Contra, Henry D. Brinley and Blmer F. Holtz.

   Dungan, S. C. C.

This is an application for an examination before trial of a corporate defendant.

So far as the decision of this motion is a matter of discretion, I am inclined to exercise that discretion in favor ,of granting the motion, but feel that I am prevented from doing so because of the provisions of the statute permitting the examination of an adverse party before trial.

The original act to which the attention of the court has been called appears as section 159 of the Practice act, revised statutes of 1877, page 873. Under that statute, it has been decided that—

“Where a corporation is a party to the record, neither the president, secretary, the individual directors nor stockholders .are parties to the action, and cannot be examined after issue joined and before the trial of said action under this section.” Apperson v. Mutual Insurance Co., 9 Vr. 272.

This statute was re-enacted, in substantially the same form, in the 1903 Practice act, section 144. Thereafter, by an act of the legislature (adopted Pamph. L. 1914, p. 151), it was provided that—

“The officers of any corporation may be examined as afore.said in any action in which such corporation shall be a party.”

By Pamph. L. 1924, ch. 93, p. 183, the original statute was substantially re-enacted, leaving out the provisions of the 1914 statute relative to the examination of corporate officers; so that the statute, so far as the examination of corporate officers is concerned, remains the same as in the revision of 1877, which, in accordance with the decisions above cited, did not include a corporation or officers of a corporation.

It is insisted that since section 140 of the 1903 act provides for answers to interrogatories by a corporation “under the oath of such of the officers, agents or employes of the corporation as have personal knowledge of the facts or custody of the books, records or papers, a discovery of which is .sought,” and because section 144, relating to examination before trial, provides that “such attendance and examination may be enforced in the same manner as answers to interrogatories,” that it is intended, by that provision in section 144, to include corporation.

With this view I am unable to agree, as the latter provision is undoubtedly intended only to prescribe the penalty for the failure to appear and submit to such examination, which is, as stated in section 140, that the judge may “attach for contempt, suppress the defense or stay or dismiss the proceedings.”

The motion will, therefore, be denied.


author: Pee Cueiam.

text:
    JULIUS L. REICH ET AL., v. TOWNSHIP OF NORTH BERGEN.
    Submitted January term, 1931
    Decided April 23, 1931.
    Before Justices Parses, Campbell and Bodine.
    Eoi the applicants, Nicholas 8. Schloeder.

    Eor the respondent, J. Emil Walscheid.

   Pee Cueiam.

These are applications for writs of certiorari to review two certain ordinances of the township of North Bergen in Hudson county.

We are of the opinion and conclude that the application for review of the ordinance entitled, “An ordinance to regulate and control the finances of the township of North Bergen in the county of Hudson by designating the officers of said township to issue, sign, countersign and audit all warrants for the disbursement of moneys belonging to the township” should be denied and that the application for review of the ordinance entitled, “An ordinance to prescribe the manner in which the member at large of the township committee known as the mayor shall indicate his approval or disapproval of the payment to be made of township moneys,” should be granted and therefore, in respect to such ordinance, allocatur will be allowed upon presentation of a writ of certiorari to the presiding justice of part two of this court.


author: Case, J.

text:
    PASQUALE TOSCANO, PROSECUTOR, v. STATE HIGHWAY COMMISSION, ACTING FOR AND IN THE NAME AND BEHALF OF THE STATE OF NEW JERSEY, RESPONDENT.
    Decided April 22, 1931.
    For the prosecutor, Rinaldi & Shanley.

    For the respondent, William A. Stevens, attorney-general, George T. Vickers, assistant attorney-general, and Walter 11. Bacon, Jr.

   The opinion of the court was delivered by

Case, J.

Prosecutor seeks a writ of certiorari to review the action of the state highway commission in resolving to acquire prosecutor’s lands by condemnation. Two tracts are covered by the resolution, one of which is for right of way purposes and is not under dispute. The controversy centers around the second tract which is sought for purposes of “clear view” or “clear vision.” The latter tract is at the corner of the state highway and a municipal street known as Townley street. Prosecutor produces depositions tending to show that the traffic on the cross street is not great, argues that the necessity for the acquisition of the land is a proper subject of review and contends, in brief, that “at present no traffic is crossing the highway at the intersection in question; possibly when that condition exists the commission would then have the right to acquire an easement over this land for view purposes.”

The State Highway Commission is authorized to acquire land by condemnation for any purposes consistent with highways, including the removal of obstructions to view. Frelinghuysen v. State Highway Commissiont 8 N. J. Adv. Rep. 644. The determination as to whether or not the present or prospective traffic at the intersection of the state highway with a cross street is such as to require the removal of obstructions to view is within the province of the commission. Delaware River Transportation Co. v. Trenton, 85 N. J. L. 479; McCarty v. Boulevard Commissioners of Hudson County, 91 Id. 144. Certainly such a determination as to land at the immediate intersection of cross streets is not an arbitrary or unreasonable act.

The writ of certiorari is denied, with costs.


author: Per Cukiam.

text:
    JOHN DREWEN, PROSECUTOR OF THE PLEAS, ETC., PROSECUTOR, v. JOSEPH A. BROHEL ET AL., RESPONDENTS.
    Argued January 21, 1931
    Decided April 23, 1931.
    Before Justices Parker, Campbell and Bobine.
    Eor the prosecutor, John Drewen and Harlan Besson.

    Eor the respondents, William A. Stevens, attorney-general, Richard Hartshorne and Samuel Spingarn.

   Per Cukiam.

This writ brings before us for review the proceedings of the civil service commission and its order of September '10th, 1930, requiring the prosecutor, as the prosecutor of the pleas of Hudson county, to make appointments of county detectives from an eligible list resulting from a competitive examination under rules adopted by the civil service commission. This list contains thirteen names.

The facts are that the prosecutor of the pleas upon his appointment and qualification and assumption of his duties found attached to the office six men, as county detectives, all having a status and standing under the Civil Service act, and as being appointees in the classified service. The prosecutor thereupon appointed nine other persons as acting detectives without examination or certification by the civil service commission. There were, from time to time, changes made by the prosecutor of the pleas in these appointees, and the prosecutor of the pleas at all times insisted that he was entitled by the statute to make these appointments without examination, competition, or control by the civil service commission. That body, however, treated these as temporary appointments, unclassified, until an examination could be held and a list of persons could be certified as eligible from which the selection and appointment could and must be made.

The civil service commission brought on an examination of applicants for appointment to such positions resulting in the certifying to the prosecutor of the pleas of the names of thirteen persons eligible for appointment and the requirement that all appointments be made from such list and that the certification of the payment of the compensation of the so-called temporary incumbents would be withheld after September 24th, 1930. This is the order or ruling of the civil service commission of September 10th, 1930, here under review.

Several grounds and reasons are urged why this order should be set aside but we find it necessary to consider but one of these which requires a construction of the applicable portions of the statutes.

This contention of the prosecutor is, that under the statutes, as they presently exist, he can appoint not more than twelve, out of a total of eighteen persons, as county detectives, which twelve are not in the classified or competitive service, that is, neither under control of the civil service commission, nor protected in the tenure of the offices, &e.

This he bases upon three statutes:

Pamph. L. 1905, p. 354, entitled “An act relating to county detectives in counties of the first class,” which by section 1, provides:

“1. The prosecutor of the pleas in any county of the first class may appoint such number as shall be approved of by the judge of the Court of Quarter Sessions, not exceeding ten, of suitable persons, to act as special officers, for the detection, apprehension, arrest and conviction of offenders, against the law; the persons so appointed shall be designated as county detectives and shall serve during the pleasure of the prosecutor.”

This was amended by Pamph. L. 1926, ch. 265, p. 442, the first section thereof being:

“1. The prosecutor of the pleas in any county of the first class may appoint such number as shall be approved of by the board of chosen freeholders of such county, not exceeding eighteen of suitable persons, to act as special officers, for the detection, apprehension, arrest and conviction of offenders against the law; the person so appointed shall be designated as county detectives.”

In 1930 (Pamph. L. 1930, p. 606) a supplement to the Civil Service act of 1908 was passed, and approved April 18th, 1930, as the controversy in question was waging between the prosecutor of the pleas of Hudson county and the civil service commission and as the examination of the candidates had been held January 27th, 1930, and followed by the eligible list and order under attack was certified and made September 10th, 1930.

It is to be noted, however, that this question was raised in 1929 and the contention of the prosecutor overruled by the civil service commission as early as October 11th, 1929 (Exhibit P-5, state of case, p. 102).

That supplement of 1930, supra (Pamph. L. 1930, p. 633, § 4.4, ^ 17), provides:

“Classified service means, unless otherwise provided in this act, all positions in the state service, whether paid or unpaid, whether full time or part time, whether existing, or hereafter created, except those held by (p. 635, subdiv. S) “agents, investigators or special officers in the office of the prosecutors of the pleas not in excess of twelve in counties having a population of more than three hundred thousand; six in counties having a population in excess of one hundred and sixty thousand, and not more than three hundred thousand, and two in other counties.”

Hudson county has a population exceeding three hundred thousand.

The respondent urges that this legislation has no reference whatever to the appointment of county detectives but is entirely directed to those persons that prosecutors of the pleas may employ under section 9 of the Criminal Procedure act (2 Comp. Stat., p. 1850), but this seems to us to be entirely illogical.

In the first place, this section 95 seems to have been enacted at the same time, or perhaps earlier than the legislation respecting county detectives in counties of the first class, Pamph. L. 1898, p. 921; 2 Comp. Stat., p. 1871.

Be that as it may, it is conclusively apparent that section 95 of Pamph. L. 1898, supra, relates to an entirely different situation and persons and officers from those now before us.

It is also to be noted that not only by Pamph. L. 1898, p. 921, supra, and 1926, p. 442, supra, are the officers referred to as “special officers,” but also that they they “shall be designated as county detectives.”

In 2 Comp. Stab., pp. 1871, 1872, there are several acts where they are referred to as “special officers” but the compiler has entitled the enactments under the head of “county detectives.”

It is also true that the supplement of 1930, supra> to the Civil Service act, speaks of them only as “agents, investigators or special officers,” but from a history of this legislation we are entirely unable to see how such language can be construed as referring to any other class of officer than that of county detective.

We are convinced that a proper construction of the statutes in question inevitably forces the conclusion that the prosecutor of the pleas of Hudson county may appoint a total of eighteen county detectives, twelve of which such appointees may be appointed without examination and entirely from without any eligible list submitted by the civil service commission, and without control by that body in anywise as to qualification, or payment of compensation, and which appointees hold their offices entirely by grace of and subject to the control of the prosecutor of the pleas, and subject further only to the approval by the board of chosen freeholders of the county.

This conclusion seems to us to make unnecessary the consideration of any other reasons urged by the prosecutor herein, because the total number of county detectives that may be appointed in Hudson county is eighteen; of which six hold appointments subject to civil service rules and regulations, leaving twelve who may be appointed by the prosecutor of the pleas without such control.

To the extent indicated the proceedings and order of the civil service commission of September 10th, 1930, are set aside and vacated.


text:
    MICHAEL SASEEN, PROSECUTOR, v. ASMA SASEEN ET AL., RESPONDENTS.
    Submitted January term, 1931
    Decided April 23, 1931.
    Before Justices Parker, Campbell and Bobine.
    Por the prosecutor, Ward Kremer.

    For the respondents, Albert N. Shahadi and Joseph B. Pershie.

   Per Curiam.

There is before us for review a judgment for contempt of court against the prosecutor for refusing to obey an alleged order of the Juvenile Court of Atlantic county said to have been entered July 31st, 1918.

The Juvenile Court is a court of record. Pamph. L. 1903, p. 478; 1916, p. 429; Cum. Supp. Comp. Stat., p. 913.

The record before us conclusively shows that there is no record of such a judgment or finding.

It would be useless to establish by authority that such a record must in fact exist to support a judgment such as that before us.

Goncededly no such judgment or finding of record in the court exists and this compels a reversal of the judgment brought up for review. Such will be the order.


text:
    ISABELLE WILLIS ET AL., PLAINTIFFS, v. THE GEORGE RICHARDS COMPANY, DEFENDANT.
    Submitted January term, 1931
    Decided April 23, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the rule, Joseph Goult and Gerald T. Foley.

      Contra, King & Vogt.

   Per Curiam.

This is a defendant’s rule in an action for negligence where the plaintiff wife has a verdict for $12,500 and plaintiff husband a verdict for $2,500.

The reasons urged are that the verdicts are excessive, against the weight of evidence and errors in the charge of the court.

We conclude that there were no errors in the charge and that the verdicts are not against the weight of the evidence upon the question of negligence but that they are clearly excessive.

Therefore if the plaintiff—Isabelle Willis—will within twenty (20) days from the entry of an order hereunder consent to a reduction of her verdict to $7,500, and the plaintiff—Erank Willis—-within the same time and in the same manner consent to a reduction of his verdict to $1,500, the present rule will be discharged, otherwise the rule ivill be made absolute and a venire de novo awarded as to all the issues.


text:
    GERTRUDE L. RUNYON, PLAINTIFF-RESPONDENT, v. COMMONWEALTH CASUALTY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1930
    Decided April 27, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiff-respondent, Leon E. Cone.

    For the defendant-appellant, Elmer W. Romine.

   Pee Cueiam.

The action was to recover the amount of an accident insurance policy covering J. Fred Runyon and payable to the plaintiff as beneficiary. The policy insured “against the effects of bodily injuries or death, caused directly and independently of all other causes by external, violent and purely accidental means, which bodily injuries or their effects shall not be caused wholly or in part, directly or indirectly, by any bodily or mental disease, defect or infirmity, and which shall result in immediate and continuous disability or death * * Mr. Runyon fell on the ice January 28th, 1929, suffered a broken hip and died March 5th, 1929. The certificate of death, which while evidential, was not conclusive, stated: “The cause of death was as follows: Fractured left hip from slipping on ice; duration one month, seven days; contributory : paralysis agitanis, duration eleven years.”

The first point presented on appellant’s brief is the refusal of the court to grant a nonsuit or direct a verdict in favor of defendant, and the gist of the argument is that the death did not result from accident without intervening or contributory causes and specifically that paralysis agitanis was contributory to the death.

There is testimony from which the jury could have found that paralysis agitanis was, with Mr. Runyon, an incurable malady which would have remained with him throughout his life but would not cause death; that the presence of the ailment had, at the time of the accident, lessened the resisting power of the body; that the injury of the broken hip was the proximate cause of death and that the paralysis did not contribute to the death in any way save that when the injury came the powers of bodily resistance had been somewhat reduced; that the paralysis did not aggravate or agitate the injury; that the injury did not increase the paralysis; that although the paralysis continued it did not, after the accident, participate in any of the physical manifestations or experiences that caused death; that persons past sixty years of age who meet with a fractured hip ordinarily die therefrom ; that the assured was sixty-five years of age; that the age and constitution of the assured were such that, had he not been afflicted with paralysis agitanis, he might have died from the accident; that the assured had been afflicted with that ailment for many years and that the defendant, inasmuch as the policy was one of annual renewal, had insured him while so afflicted. There was neither allegation nor proof of concealment, misrepresentation or other fraud in obtaining the policy; nor is there any evidence that the injury was caused by the paralysis.

With the case in such a posture the jury could have found that the only contribution of the paralysis to the death was a reduction in the power of the body at the time of the fracture to resist the shock thereof. On the assumption that the facts should be so found, we have the situation that the company from year to year renewed its policy of insurance, covering a man whose vitality was impaired by disease and accepted from him, annually, the policy premium. During the life of the policy the assured was injured and died as a result of the injury. His death was not the culmination of two parallel or participating causes, of which disease was one and accident was the other; nor was it the result of one of these accentuated or made more acute by the other. It was the direct result of the accident, which might or might not have been fatal had not the bodily vitality been impaired. The accident caught him as he was and laid him low. Against that we think he was insured; otherwise there could be no recovery in any case of death by accident where the victim, had he been possessed of perfect health, might have successfully combated the ravaging ills that follow immediately in the wake of physical crash.

Our conclusion is that there was a fact question, namely, whether the paralysis agitanis was in truth contributory to death, which was properly left to the jury.

Appellant next argues that the verdict was against the weight of the evidence. That, however, will not be considered on appeal. Ratz v. Hillside Bus Owners’ Association, 103 N. J. L. 502.

Appellant’s final point is that the charging by the court of certain of plaintiff’s requests was error. Before charging these requests the court had instructed the jury that if they believed “that the paralysis agitanis did contribute to the death,” the verdict should be in favor of the defendant. There could scarcely have been any doubt in the jurors’ minds on that proposition. The second and fourth requests, we think, were intended to convey and did convey to the jurors’ minds the general principle, enunciated above, that an earlier ailment, that at the time of the accident had lowered the insured’s power of bodily resistance but had in no other way entered as a factor, did not thereby necessarily bar a recovery if the accident was actually the cause of death. The fifth request was an instruction that the jury were not to ascertain whether the accident would have happened if the insured’s age, health or temperament had been otherwise than the fact was; and that proposition, under the proofs, was sound. There was no evidence to sustain a finding to the effect that, had the insured been other than he was, there would have been no accident.

The judgment below will be affirmed, with costs.


text:
    MARY M. CALHOUN, PLAINTIFF-PROSECUTOR, v. MARY E. CLARK, DEFENDANT-RESPONDENT.
    Decided April 27, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiff-prosecutor, Charles De F. Besore and Samuel D. .Lenox.

    Eor the defendant-respondent, James J. McGoogan.

   Pee Cueiam.

Alfred T. Clark, husband of the defendant, and father, by a former wife, of plaintiff, died May 21st, 1921, leaving certain real estate properties to defendant for life with the remainder over to the plaintiff. Plaintiff now sues for permissive waste, claiming that the defendant used some of the rentals for her own needs whereas she should have applied them, all if ncessary, to preserving the properties. All the buildings have deteriorated, some have been torn down, and one of the properties has been subjected to the foreclosure of a mortgage and the sale to a third party.

The defendant denies that she is responsible for the present-situation. She contends that the buildings were ramshackle when her husband died and that she has spent practically all of the income for taxes, insurance, mortgage interest and repairs, that the properties are in undesirable locations and that the rentals are insufficient to carry them. The jury verdict at the Monmouth Circuit was for defendant and against the plaintiff. Plaintiff seeks a new trial on the single ground that the verdict was contrary to the weight of the evidence.

The complaint originally embraced four properties. By voluntary nonsuit one of these was eliminated. The dispute now relates to (1) No. 466 North Clinton avenue, (2) Nos. 19 and 21 Fillmore street, and (3) a tract of land on Lamberton street on which, at Mr. Clark’s death, wore six frame houses; all in the city of Trenton. At Mr. Clark’s death, the parcels, with improvements, were appraised at $2,750, $3,200 and $5,100, respectively, and were subject, respectively, to mortgages of $1,300, $1,500 and $3,000. At the same time the monthly rentals were as to the first parcel, a combination frame store and dwelling house, $35; as to the second parcel, containing two semi-detached dwellings, $19 for each dwelling; and from parcel No. 3, $9 for each of the six dwellings.

It is admitted that at the testator’s decease the properties were old, had not been painted for a number of years and had reached the point where they needed immediate repair. It was testified by Tony C. Chifelli, one of plaintiff’s witnesses, that “there was a lot of work to be done to the houses before Mr. Clark died, and he told me he was going to do it, but he died, and it was never done and the houses were getting worse all the time.” The six houses on Lamberton street were on a lot that in its entirety was only seventy-eight feet front, sixty-seven feet rear, forty-three feet deep at one end and forty feet deep at the other, and abutted the Trenton Water Power raceway. The location was undesirable and the neighborhood was unruly. Depredation and deterioration caused the city authorities to raze not only these six houses, but thirteen others, belonging to strangers to this action, in the same neighborhood. The city building inspector, another of the plaintiff’s witnesses, testified that he did not recollect seeing any paint on these houses since 1907 and that "they had not been tenantable, to call them tenantable, in ten years” prior to 1928. If this testimony be true, the plaintiff is in the position of demanding that the life-tenant not merely preserve the property in statu quo, but that she re-establish it to a condition superior to that which it was in at the testator’s death, and there was no suggestion that the plaintiff as remainderman offered to contribute toward the cost of such betterment.

There is no charge of wrongdoing by the defendant other than her alleged failure to apply the income to maintenance and repairs. That allegation, with respect to each of the properties, she denies, and she adduces testimony in support of her contention. There is testimony in derogation thereof, but we cannot say that the jury in its verdict was actuated by mistake, passion or prejudice, or that the verdict is so clearly against' the weight of the evidence as to justify a retrial on that ground.

The rule will be discharged, with costs.


text:
    PHILIP SCHUMACHER, PROSECUTOR, v. CITY OF UNION CITY ET AL., RESPONDENTS.
    Argued January 21, 1931
    Decided April 23, 1931.

      Before Justices Parker, Campbell and Bodiiste.
    For the rule, William, 'E. Sandmeyer.

    Contra, James C. Agnew.

   Per Curiam.

The applicant and his brother-in-law, Christian Braband, are the joint owners of a plot of land situate at southeast corner of Hudson avenue and Forty-fifth street, in Union City, commonly known as No. 135 Forty-fifth street. The plot has a frontage of seventy-five feet on Forty-fifth street and one hundred feet on Hudson avenue. These owners agreed to sell the land to Harris Perkoff and Edward I. For-man, for a site for a drive-in gasoline station. Such sale being subject to the condition that the owners would obtain a permit for such uses.

On February 8th, 1930, an application for such a permit was made to the building inspector. This application set up the ownership to be in Philip Schumacher; the use to be “office for gasoline and oil filling station;” the name of the architect, and was signed “Edward I. Forman for Philip Schumacher.” On February 14th, 1930, the application was denied upon the ground that the lands were “not in business zone.” This seems to have been followed by a letter of the building inspector to Schumacher under date of March 15th,. 1930, stating that such officer “must reject the same as the location is in a residential zone and business is not permitted in this zone.”

It uneontradictedly appears that at the time this application was made (February 8th) a zoning ordinance was in process of adoption and in fact was finally adopted three days later (February 11th, 1930) and it is equally certain that such ordinance placed the appellant’s land in a residence zone.

Now, here, we may consider and dispose of two contentions—one by the applicant and the other by Union City. The applicant insists that as at the time he made his application there was in fact no zoning ordinance but only a building code he secured a vested right to have a permit if his application was for a permit for construction of a structure in accord and compliance with the building code and that, therefore, no provision of an after adopted zoning ordinance was binding upon him and he cites A. G. Construction Co. v. Scott (Court of Errors and Appeals), 104 N. J. L. 596, and attempts to differentiate Rohrs v. Zabriskie (Supreme Court), 102 Id. 473, in that in the latter case a mandamus was sought with respect to which the court exercised discretion and therefore, did not pass upon the exact, technical, rights of the landowner. However, all this may be, this fact cannot be escaped, that, under Pamph. L. 1928, p. 696, adopted to bring into effect the zoning amendment of October 18th, 1927, published notice is required to be given of the adoption of a zoning ordinance at least ten days before such adoption. There is nothing before us showing that this mandate was not observed. Therefore, as far as we are concerned the presumption is that such notice was given and also that this applicant had knowledge thereof and consequently his application of February 8th, with this notice, and three days before adoption of the ordinance, cannot be said to have been in good faith and bona fide but, rather, with a haste to secure a position which otherwise would have been prohibited. This writ applied for is discretionary and this situation as to the bona fides of the applicant should, and must be, taken into consideration.

Now, the city says he gained nothing by his application because such application did not comply with the building code respecting places in which it is proposed to store or use inflammable material, &c., in that the petition must so state such use and the permit can only be granted upon the approval in writing from the board of council, which was then the governing body of the city.

So the code does provide (page 63, &c., state of case).

This consent was not obtained and, in fact, never applied for.

It seems that after the making of the application for a permit and the passing of the zoning ordinance a change in the government of the city took place in that the provisions of Walsh act were adopted and the city went into a commission form of government. But that is of no consequence: the provision of the building code before referred to remained operative and effective notwithstanding such change. However, after the refusal of the building inspector to grant the permit, the present applicant, observing and in obedience to the requirements of the zoning statute (Pamph. L. 1928, supra), and the zoning ordinance, appealed to the board of adjustment and after hearing that body accepted an offer by the applicant to cede a part of his land to the city in order to ease up a situation respecting traffic conditions at Hudson avenue and Forty-fifth street, and recommended that there should be a modification in the zoning ordinance respecting this particular plot which the city commissioners refused to adopt.

Now, this proceeding also seems to be without force because of two reasons:

. 1. The statute (Pamph. L. 1928, p. 274, supra), requires notice to be given tú all property owners within two hundred feet of the lands sought to be relieved of the zoning restrictions before the board of adjustment has jurisdiction. This was not done and, therefore, that board did not have jurisdiction.

2. That there was no judgment by the board of adjustment as provided for by such statute. The result of the appeal was merely a recommendation to the city commissioners.

Under the act the board of adjustment may make exceptions to the terms of the ordinance if the lands involved are within one hundred and fifty feet of a district in which such a structure is authorized. That seems to be the situation here.

There being no judgment'of the board of adjustment there is nothing in that direction to bring up for review.

To sum up the situation, while we think there is much that can be said respecting the unreasonableness of the zoning ordinance respecting this particular plot and the block in which it is situated, nevertheless we think the writ applied for should not be granted for the reason that we think the clear legislative purpose, and a reasonable and proper one, is that this court should not be called upon to review such ordinances until proper and sufficient appeals have been passed upon by boards of adjustment.

This clearly was not done here and we think the applicant should be left to his remedy by proper proceedings upon proper notice to the board of adjustment after a new application to the building inspector and city commissioners under the building code and zoning ordinance.

The rule to show cause is discharged, with costs.


text:
    THE STATE OF NEW JERSEY, EX REL. JOSEPH WALTON, RELATOR, v. WILLIAM BRINDLE, RESPONDENT.
    Submitted October term, 1930
    Decided April 27, 1931.
    Before Justices Case, Daly and Donges.
    Eor the relator, Charles F. Blade.

    For the respondent, Breslin & Breslin (John J. Breslin, Jr., on the brief).
   Pee Cubiam.

The case is before us on an information in the nature of a writ of quo warranto filed by Joseph Walton, relator, and directed to William Brindle, respondent, to test the right of the latter to the office of borough clerk of the borough of Oakland, in the county of Bergen. The respondent was elected a councilman of the borough of Oakland at the general election in November, 1927, for a term of three years, commencing January 1st, 1928, and expiring December 31st, 1930. On April 22d, 1930, Brindle resigned as councilman and was forthwith nominated to the office of borough clerk of the borough of Oakland by the mayor of that borough and confirmed by the council. The appointment was to fill out the unexpired term of the deceased former incumbent.

The Borough act (1 Cum. Supp. Comp. Stat., p. 168, § 1) provides that “the mayor shall nominate and, with the advice and consent of the council, shall appoint all officers in this act directed to be appointed, including the filling of vacancies in elective offices; provided, the said mayor shall make such nomination within thirty days after said office or offices become vacant. If the mayor fails to appoint within said thirty days, and the council shall fail to confirm any appointment made by the mayor, then after the expiration of said thirty days the said council of the borough shall appoint all officers in this act directed to be appointed, including the filling of vacancies of elective offices, whether caused by death, resignation or expiration of said office.” Section 3 of the Borough act provides that “in addition to the officers to be elected there shall be appointed a clerk * * *•” The provision of the statute, therefore, is that the members of the borough council advise and cotisent to an appointment made within thirty days after a vacancy in the office to be filled and for the complete power of appointment beyond the thirty-day period. The Municipalities act (2 Cum. Supp. Comp. Stat., p. 2343, ch. 37, § 23) provides that “no member of any governing body of any municipality shall, during the term for which he shall have been elected or appointed such member, be eligible for election or appointment to any office required to be filled by any such governing body of which he is such member * * *.” We construe the office of borough clerk to be one an appointment to which was prohibited to Brindle during the period of the term of which he was elected a member of the council.

Three arguments are advanced in behalf of the respondent.

The first is that the relator cannot succeed because he himself has no legal title to the office. The proceeding is under section 1 of the act relating to informations in the nature of a quo warranto. 3 Comp. Stat., p. 4210. The point has been decided adversely to the respondent’s contention in Bonynge v. Frank, 89 N. J. L. 239.

The second point is that the relator is in laches, which, under all the circumstances, we do not think he is.

. The final point is that the relator is not acting in good faith, which, however, is without supporting evidence and cannot be presumed. The relator was a resident and taxpayer in the borough.

Judgment of ouster will be rendered, with costs.


text:
    MICHAEL WARD, PLAINTIFF, v. JULIUS M. KAYCOFF ET AL., DEFENDANTS.
    Decided April 29, 1931.
   The opinion of the court was delivered by

Case, J.

Plaintiff caused summons and complaint to issue against Julius M. Kayeoff May 29th, 1930. Kayeoff died June 7th, 1930, before filing answer and before his time so to do had expired. Later the will was probated, the executors qualified, the death was suggested on the record and the cause proceeded to judgment. Prior to the judgment, however, the executors had obtained the customary rule to limit creditors. On March 11th the executors petitioned the Union County Orphans Court that the estate be decreed insolvent for the reason that the real and personal estate of the decedent was unable to pay the debts, and the court on that day by order fixed May 27th, 1931, as the date of the hearing on the application. Meanwhile, plaintiff has caused execution to issue and levy to be made on certain funds of the estate. The case is now before me on a rule directing the, plaintiff to show cause why he should not be restrained from proceeding with the execution and why the sheriff should not likewise be restrained from proceeding with the execution until the further order of this court.

Plaintiff’s judgment is not within the class of debts against an estate to which the statute gives preference. Section 66 of the Orphans Court act, 2 Cum. Supp. Comp Stat., p. 2613. Judgments to be preferred must be actually entered of record during the lifetime of defendant. Wood v. Hopkins, 3 N. J. L. *689. When a rule to limit creditors has been taken in the Orphans Court by the personal representative, and upon a subsequent application such estate has been declared insolvent, a judgment obtained against the representative between the time of taking such rule and making such application will not be entitled to be paid in preference to other creditors. Ryan, Admr., v. Van Arx, 46 Id. 531.

Clearly, proceedings on the execution should be restrained pending the determination by the Union County Orphans Court as to the insolvency of the estate; and if the estate be declared insolvent the restraint should be continued.

The rule will be made absolute, with costs.


author: Pee Curiam.

text:
    PUBLIC SERVICE CO-ORDINATED TRANSPORT, PROSECUTOR, v. HELEN NEMETH, ETC., ET AL., RESPONDENTS.
    Submitted January term, 1931
    Decided April 23, 1931.
    Before Justices Parker, Campbell and Bodine.
    For the prosecutor, William H. Speer and Carl T. Freggens.

    For the respondent, (no appearances).
   Pee Curiam.

This brings up for review a judgment in the small cause court of Perth Amboy against the prosecutor in an action where it was attempted to make service upon the corporation by serving one of its drivers.

A special appearance was entered and the service attacked and the jurisdiction of the court was drawn into question and a motion made to dismiss the action and that motion denied. The prosecutor-defendant thereafter took no part in the proceeding and judgment being rendered against it sued out the present writ.

The plaintiff below does not contest.

Unquestionably the small cause court had no jurisdiction. The prosecutors’ principal office is in the city of Newark, where there is a District Court and therefore under chapter 175 (Pamph. L. 1923, and chapter 211, Pamph. L. 1921) the small cause court had no jurisdiction.

For these reasons the judgment under review is reversed, with costs.


text:
    MICHAEL YANNONE, PETITIONER-RESPONDENT, v. HIND STEEL WIRE WORKS, RESPONDENT-PROSECUTOR.
    Submitted January term, 1931
    Decided April 23, 1931.
    Before Justices Paeker, Campbell and Bodine.
    Por the prosecutor, William P. Braun.

    For the respondent, Louis A. Past.

   Per Curiam.

There is brought up for review a judgment of the Essex 'County Common Pleas under the Employers’ Compensation act, in favor of an employe who asserts that in an accident in the course of his employment he suffered from an inquinal hernia in his right side.

Compensable hernia is defined by paragraph X, section 236, 2 Cum. Supp. Comp. Stat., p. 3874.

This section provides that hernia ordinarily develops gradually, being very rarely the result of an accident; where there is real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed. All other ■cases will be considered congenital or not compensable unless conclusive proof is offered that—

1. Descent of hernia immediately followed the cause.

2. There was severe pain in the hernial region.

3. That there was such prostration that the employe was •compelled to cease work immediately.

4. That above facts were of such severity that they were-noticed by claimant and communicated to employer within, twenty-four hours of the occurrence, and

5. That there was such physical distress that the attendance of a licensed physician was required within twenty-four hours of the occurrence.

The facts in the present case seem to be that the employe-was engaged in unloading coils of wire from a freight car and piling them up. He worked for a time and when he-picked up a certain coil he felt a very severe pain in thje abdominal region and was obliged to sit down immediately and nurse the pain. Shortly thereafter he undertook to-begin his work again but found he was unable to do so and went home. This was about two-forty-five p. m. The next morning he came to the factory at ten a. m. and reported to-the foreman. He should have reported at seven-thirty a. m.,. but because of his pain, &c., he could not report earlier. The-foreman told him to go to defendant's doctor for examination which he did. The doctor diagnosed the case as hernia. The-employe did not go to the office of the physician until three-P. m:.

This was within fifteen minutes of the twenty-four-hour period and the effort seems to be to show that this was merely to secure and bring about a technical compliance with the-statute. However, if the evidence of the employe and his-wife is to be believed, all of the statutory requirements were-met. Both the deputy commissioner of the department of labor who originally heard the matter and the judge of the-Court of Common Pleas believed this proof and our consideration of the evidence satisfies us of its truth and sufficiency.

The judgment below will therefore be affirmed, with costs.


text:
    PAUL MEYER, PLAINTIFF-RESPONDENT, v. PETER LAGERVELT AND YELLOW CAB TAXI COMPANY, DEFENDANTS-APPELLANTS.
    Decided April 27, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiff-respondent, Samuel Feld.

    For the defendants-appellants, George F. Seymour, Jr.

   Pee Ctjbiam.

The action is for damages growing out of a collision between an automobile owned and driven by the plaintiff and an automobile owned by the corporate defendant and operated by its employe and co-defendant, Peter Lagervelt. The jury rendered a verdict for the plaintiff and against the defendants, and the defendants appeal from the judgment entered thereon.

The grounds of appeal are (1) that the verdict is contrary to the weight of the evidence; (2) that there was no proof of the violation of any duty defendants owed to the plaintiff; (3) that there was no proof of negligence as against the defendants; (4) that the verdict rendered in favor of the plaintiff was the result of mistake, passion or prejudice on the part of the jury; (5) that the verdict is contrary to and inconsistent with the charge of the court, the issue raised by the pleadings and the evidence adduced in support of the allegations or issue; (6) that the court erred in refusing defendants’ motion for a nonsuit at the close of the plaintiff’s case, and (7) that the damages awarded are grossly excessive and result from mistake, bias, passion, prejudice or partiality on the part of the jury.

The first, fourth, fifth and seventh reasons are not properly before us as grounds for appeal. It has been repeatedly held that the only matters properly coming before an appellate tribunal for determination are alleged errors committed by the court during the trial of the case. Van Sciver v. Public Service Railway Co., 96 N. J. L. 14; Ratz v. Hillside Bus Owners’ Assn., 103 Id. 502. It is strange that counsel should so often disregard this elementary legal rule and particularly that phase of it which relates to the weight of evidence. Osbun v. De Young, 99 Id. 204.

There are no exceptions or objections noted with respect to points two and three (Joseph M. Byrne Co. v. Snead & Co., 98 N. J. L. 256), except as the same may be embraced within point six, and therefore these points will not be separately considered.

On the proposition that the court erred in refusing defendants’ motion for a nonsuit, it need only be said that the evidence of the excessive speed at which the defendants’ car was being driven and the proof of the general circumstances surrounding the collision were sufficient, in our opinion, to take the case to the jury.

The judgment below will be affirmed, with costs.


text:
    MICHAEL FORD, PLAINTIFF-RESPONDENT, v. ROMAN CATHOLIC CHURCH OF OUR LADY OF MOUNT CARMEL, RIDGEWOOD, NEW JERSEY, A CORPORATION, DEFENDANT-APPELLANT.
    Decided April 27, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiff-respondent, W. N. Groenendyke (Alexander H. Jackson, on the brief).
    Eor the defendant-appellant, 8 tick el & Stickel (Frank J. Davies, on the brief).
   Per Curiam.

The action is on stop-notice under the Mechanics’ Lien law. Defendant, the owner, made a building contract with a contractor who sublet the masonry work to a subcontractor. The latter in turn sublet a portion of his work to the plaintiff. The plaintiff, claiming a payment was due him, made demand on his superior, namely, the subcontractor, and was not paid. He thereupon served stop-notices on the owner and the conIractor. Plaintiff sued the owner, now the defendant-appellant, and in the complaint alleged inter alia that “the defendant at the time notice was given to it as aforesaid was, and at all times since, has been satisfied of the correctness of plaintiff’s demand.” The answer made denial of that allegation. An issue was thus raised. This was followed by a motion to strike the answer. It appeared by the supporting affidavits produced by the defendant that the main contractor disputed the claim, required that it be established by judgment, and so notified both the claimant and the owner.

It also appears from the affidavits that the subcontractor, who sublet in part to plaintiff, had become insolvent and abandoned the contract, and that the main contractor had been obliged to complete the job at such expense as that not only did nothing remain due the subcontractor, but that a large sum was owing from him in damages for the default.

It is the statutory requirement (Mechanics’ Lien act, section 3, 1 Cum. Supp. Comp. Stat., p. 1851) that the owner “on being satisfied of the correctness of said demand shall pay the same.” That the owner is justified in defending when he has reasonable grounds to doubt the correctness of the claim, is well established. Reeve v. Elmendorf, 9 Vr. 125; Reeve v. Kernan, 85 N. J. L. 641.

The court below took the position that the dispute by the contractor should have been alleged specifically in the answer. We think that the matter was sufficiently pleaded, that the defense is not sham, and that, if sustained, it is valid in law. Quite clearly the owner, in its own protection, is entitled to have the dispute determined by judgment.

The judgment below will be reversed.


author: Stein, C. C. J.

text:
    Union County Circuit Court.
    SALLIE GOHEEN AND LILLIAN GOHEEN, AN INFANT BY SALLIE GOHEEN, HER NEXT FRIEND, PLAINTIFFS, v. HARRY GOHEEN, DEFENDANT.
    Eor the defendant, Collins & Gorlin (Howard F. McIntyre, of counsel).

      Contra, Willur A. Heisley.

    Stein, Alfred A., Judge of the Union County Court of Common Pleas, designated to try Circuit and Supreme Court issues.
   Stein, C. C. J.

The above action arises out of an accident which occurred on September 3d, 1928, while the plaintiffs were riding in the automobile of the defendant. Sallie Goheen is the mother of the defendant and Lillian Goheen is his minor daughter, aged thirteen.

The matter comes before the court on motion to strike ■out the summons and complaint as well as certain interrogatories served by the plaintiffs on the defendant.

The interrogatories are six in number and read as follows:

“1. Were you at the time of the happening alleged in the plaintiffs’ complaint insured by any insurance company ■against any liability imposed by law upon you for any damage inflicted by you upon property or person by reason of the operation of the car in which you and the plaintiffs were then and there being transported?

“2. If your answer to the foregoing interrogatory is in the affirmative state what was the name of the insurance-company and of the automobile and if you held a policy of insurance state its date, its number, and if said policy had previously expired, and if it had been renewed by a certificate-attached thereto, state the date of the certificate as well as-its expiration date?

“3. To the best of your knowledge and belief was the said, policy in full force and effect at the time of the alleged happening ?

“4. Had said policy ever been canceled?

“5. Was the premium fully paid up ?

“6. Was the amount of the insurance mentioned in said' policy as follows: Eor any damage to property a sum not-in excess of one thousand dollars; for personal injury to-one person a sum not in excess of five thousand dollars; and for all damage to property or persons a sum not exceeding: ten thousand dollars?”

Whether defendant was insured at the time of the accident, the name of the company, and whether the insurance policy was in force or canceled, the amount of the premium paid up and what was the amount of the insurance are not matters material to the issue as framed by the pleadings before me. Interrogatories should relate to the case of the-party presenting them and should be of such a character that, with responsive answers thereto, they will constitute relevant: and competent evidence for the party propounding them!. Watkins v. Cope, 84 N. J. L. 143.

The interrogatories propounded are not material to the-issue and are not relevant and competent evidence for the-plaintiffs. Therefore, the motion to strike out the interrogatories is granted.

On the argument before me on the motion to strike out: the complaint it was conceded that the plaintiff Lillian Goheen is an unemancipated daughter, living in the household of the defendant and relying solely on him for her support, and that she is of the age of thirteen years, and that: Sallio Goheen, the mother of the defendant, is likewise living in the household and partially depending upon him. As to Sallie Goheen, the motion to strike out the count in the complaint setting forth her cause of action is denied.

Counsel for the plaintiff Lillian Goheen upon the argument and in his brief contends that the problem of a cause of action for personal injury brought against a father by an unemancipated minor child while living in his household should be considered an open question meriting a more careful and exhaustive analysis, and a more critical application of the factors involved and a more rational treatment than it has received in the past.

The fact remains, however, that this very question has been twice passed upon in this state. Mannion v. Mannion, 3 N. J. Mis. R. 68 and Damiano v. Damiano, 6 Id. 849. In the former case Judge Aekerson, presiding in the Hudson Circuit, says that “there is no controlling case in New Jersey, but the cases elsewhere are almost unanimous that no suit ■can be maintained by an unemancipated minor son against his father for an injury resulting from his negligence.” Citing 29 Cyc. 1663; Small v. Morrison, 185 N. C. 577; 118 S. E. Rep. 12; 31 A. L. R. 1135; Smith v. Smith (Appellate Court of Indiana, January 16th, 1924), 142 N. E. Rep. 128; Foley v. Foley (cited 1925), 61 Ill. App. 577; McKelvey v. McKelvey, 111 Term. 388; 77 S. W. Rep. 664; 64 L. R. A. 991; 102 Am. St. Rep. 787; 1 Ann. Cas. 130. And on a like motion to strike out the complaint of such minor concludes his opinion by granting the motion to strike out. The court in the Mannion case cites practically all of the cases in other jurisdictions which have been referred to by counsel in the case before me in their respective briefs, and after a careful consideration and study of the cases cited by Judge Aekerson and the cases in other jurisdictions cited by the respective counsel before me, I have concluded that the great body of the law is opposed to the maintenance of an action on the part of a minor child for the negligent act of a parent while residing in the household of its parent and depending upon its parent for its support. This rule is founded upon public policy and is based as was said in many cases upon the interest that society has in preserving harmony in the domestic relations.

In Hewllit v. George, 68 Miss. 703; 9 So. Rep. 885, it was said that “the peace of society and of the families composing society and a sound public policy designed to subserve the repose of families and the best interests of societies, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.”

In Roller v. Roller, 37 Wash. 242; 79 Pac. Rep. 788, the court held among other things “the public has an interest in the financial welfare of other minor members of the family and it would not be the policy of the law to allow the estate, which is to be looked to for the support of all the minor children, to be appropriated by any particular one.”

The motion to strike out the count in the complaint setting forth the cause of action of Lillian Goheen is granted.


text:
    OTTO SCHANZENBACH, PLAINTIFF, v. DAVID HODAX, DEFENDANT.
    Submitted January term, 1931
    Decided April 23, 1931.
    Before Justices Pabkeb, Campbell and Bodine.
    For the plaintiff, George B. Bailey.

    For the defendant, Samuel J). Williams.

   Per Curiam.

This was an action for negligence in the operation of motor vehicles.

The plaintiff has a verdict.

Both plaintiff and defendant have rules to show cause why the verdict should not he set aside.

The plaintiff urges a setting aside because his verdict is inadequate and the defendant urging that the verdict against him be set aside because it is against the weight of evidence, the charge of the court and the result of prejudie or sympathy and a compromise.

We think the situation is one where the verdict must be set aside and the rule made absolute and a venire de nova awarded as to all the issues. Such will be our order.