text:
    THE TOWNSHIP OF CRANBURY, PLAINTIFF-RESPONDENT, v. CHAMBERLIN & BARCLAY, INCORPORATED, DEFENDANT-APPELLANT.
    Decided January 5, 1928.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Aaron V. Dawes.

    For the respondent, Wilton T. Applegate.

   Per Curiam.

The plaintiff below recovered a judgment against the defendant below, in the Perth Amboy District Court, for the sum of $102.04, with costs. Erom this judgment the defendant below appeals to this court.

The facts agreed upon between counsel of the respective litigants, presenting the legal question involved in this appeal, are as follows: “The defendant, Chamberlin & Barclay, Incorporated, held two chattel mortgages covering all the goods and chattels of George R. Thompson in the township of Cranbury, county of Middlesex and State of New Jersey. One dated March 12th, 1922, and the other dated May 6th, 1925, to secure the sum of $1,450 and $389.02, respectively, and which were duly verified according to law, and duly recorded in the clerk’s office of the county of Middlesex, and that there was due upon said chattel mortgage the sum of the principal of the mortgages.”

“That the defendant, by virtue of the said chattel mortgage, duly sold the goods and chattels covered by the said chattel mortgages, and did not raise from the said sale sufficient to pay the amounts'due on the said chattel mortgages.”

“There was due to the township of Cranbury on the day of the sale, for taxes, the sum of $99.14 assessed against the said George R. Thompson for the years 1924 and 1925, and on the day of the chattel mortgage sale, the collector dis-trained the goods covered by the chattel mortgages, but before the sale of March 31st, 1926, and after that the sale took place.”

“The validity of the mortgages of Chamberlin & Barclay, Incorporated, is admitted, and the question is whether or not the taxes become a paramount lien over the chattel mortgages held by the defendant.”

“If the chattel mortgages are a paramount lien over the taxes on personal property, the defendant is entitled to judgment. If not, the plaintiff is entitled to judgment in the sum of $99.14.”

The latter figure represents the exact amount of the taxes without interest added.

It is undoubtedly the settled law in this state that taxes or assessments do not become liens upon property, except by virtue of express legislation, and are collectible only in the manner provided by the statute.

Eor the appellant it is argued that there is no statute in this state which makes taxes or assessments, levied against personal property a first lien or charge upon personal property, and the mortgagee, therefore, was entitled to collect, out of the proceeds of the sale of the property, the whole amount due it, regardless of the fact that there had been, prior to such sale, taxes levied upon the property and a distress warrant issued to collect the same, and though the proceeds derived from such sale were insufficient to satisfy the distress warrant.

By section 513, page 870 of the laws of 1918, it is provided: “No tax or assessment imposed or levied in this state shall be set aside or reversed in any court of law or equity in any action, suit or proceeding for any irregularity or defect in form or illegality in assessing, laying or levying any such tax assessment, or in the proceeding for collecting the same, if the person against whom or the property upon which such tax or assessment is assessed or laid is, in fact, liable to taxation for assessment in respect to the purpose for which such tax or assessment is levied, assessed or laid; and the court in which any action, suit or proceeding is, or shall be pending to review any such tax or assessment, is required to amend all irregularities or errors or defects, and is empowered if need be to ascertain and determine for what sum such person or property was legally liable for taxation or assessment, and by order or decree to fix the amount thereof, and the sum so fixed shall be the amount of tax or assessment for which such person or property shall be liable, and the same shall be and remain a first lien or charge upon the property and person, and collectible in the manner provided by law, the same as if such tax or assessment had been legally levied, assessed or imposed in the first instance * *

We think this language is sufficiently explicit to constitute a tax or assessment, regularly levied in the first instance, against person or property, a first lien upon personal property. We must attach some significance to that part of the section which declares that “the same shall be and remain a first lien upon the property and person, and collectible in the manner provided by law, the same as if such tax or assessment had been legally levied, assessed or imposed in the first instance * *

To adopt any other view would necessarily invoke as interpretation of the statute, which would lead to an absurdity, namely, that where a tax or assessment is irregularly assessed and levied against a person or upon personal property, such irregularity can be cured, and when this is done renders such tax or assessment a first lien upon the personal property irregularly levied against, whereas in a case where the tax or assessment is regularly levied, in the first instance, such tax or assessment does not become a first lien upon the property assessed or taxed.

To give effect to the contention of counsel of appellant would not only exempt all personal property upon which chattel mortgages and other liens created by the acts of the parties, existed, but would tend to open the door wide to the evasion of payment of taxes or assessments by parties creating Hens upon property prior to the date when such taxes or assessments become liens.

We have, therefore, reached the conclusion that from a consideration of the questions raised and argued in the brief of counsel of appellant, that the tax, levied by the township of Cranbury, was a prior lien to the chattel mortgages existing on the property.

Judgment is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THE TOWN OF GUTTENBERG, IN THE COUNTY OF HUDSON, A MUNICIPAL CORPORATION, PLAINTIFF-RESPONDENT, v. PHILIP BENJAMIN, DEFENDANT-APPELLANT.
    Decided January 5, 1928.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Record, Higgins & Teese.

    For the respondent, Warren Dixon.

   Per Curiam.

The plaintiff below brought its action, in the First District Court of Jersey City, to recover penalties from the defendant below for three distinct violations by him, of section 3 of an act entitled “An act to amend the title and body of an act entitled ‘An act concerning auto buses, commonly called jitneys, and their operation in cities/ approved March 17th, 1916.” Pamph. L. 1926, p. 222.

Section 3 provides: “Every person as herein defined owning or operating an auto bus as herein defined in any municipality of this state shall, on or before the tenth day of each calendar month, file with the chief fiscal officer of such municipality a statement, verified by oath, showing the gross receipts from the business of said auto bus or buses during the preceding calendar month, and shall at the same time pay to such fiscal officer of such municipality five (5) per centum of such gross receipts as a monthly franchise tax for revenue for the use of the streets, provided that if the route over which such auto bus is operated shall extend beyond the limits of such municipality, then such person shall include in such statement the length of the route over which said auto bus is operated both Avithin and wdthout said municipality, and shall pay as said franchise tax to said municipality five (5) per centum of such proportion of the gross receipt as the length of the route in the municipality bears to the Avhole length of the route over which said auto bus is operated both within and without said municipality, and shall pay as said franchise tax to said municipality five (5) per centum of such proportion of the gross receipts as the length of the route in the municipality bears to the whole length of such route * * *.

“Any person owning or operating an auto bus or auto buses in any municipalitj1' of this state neglecting or refusing to make such monthly statement or payment at the time, and as required herein, shall thereby forfeit and pay for such neglect or refusal one hundred ($100) dollars for each offense to be recovered by action in the name of such municipality in any court of competent jurisdiction, and when collected, paid into the municipal treasury” * * *.

By the agreed state of the case, it appears that the appellant owned and operated a passenger bus, with a carrying capacity of forty passengers, during the months of March, April and May, 1926; that the bus was operated through the public streets of the town of Guttenberg, and its route extended between and through adjacent municipalities, and it took on and discharged passengers along the streets of Guttenberg.

The town of Guttenberg. passed no ordinance regulating the operating of buses within its limits, nor did it issue any permit to the defendant to operate its bus within its limits, nor did appellant make any applications to the town to operate the bus; that the defendant did not file, on or before the tenth day of either of the months of April, May and June, 1926, with the chief fiscal officer of the plaintiff, a statement showing the gross receipts from the business of said auto bus during the preceding calendar month, and did not at the same time pay to said fiscal officer five (5) per centum of such proportion of the gross receipts as the length of the route in the municipality bears to the whole length of the route; that the defendant did on July 19th, 1926, file such statements and pay such proportion of the five (5) per centum to the said fiscal officer, which defendant claimed was done under protest.

The specifications of the determinations of the First District Court, with which appellant, in point of law is dissatisfied, is stated as follows: “At the close of the plaintiff’s case, appellant’s attorney made a motion for a nonsuit, on the ground that the plaintiff’s case did not show any liability on part of the defendant, and on the ground that the state of demand claimed penalties over $500 and beyond the jurisdiction of the court. The court denied the motion and appellant asked for an exception and the same was granted.

“At the close of the case a motion was made for a 'direction of a verdict for the defendant on the same ground. The court denied the motion and appellant asked for an exception and the same was granted.

“The court erred in both of these determinations, and appellant is dissatisfied with same in point of law.”

The only point argued and relied on in the appellant’s brief for a reversal of the judgment is, that section 3, above quoted, is not applicable to the facts of the present case for the reason that section 5 of the act provides: “Any person operating an auto bus in any streets of any municipality at any time after sixty days from the time that this act shall take effect without complying with the provisions of this act shall be deemed guilty of a misdemeanor and subject to the penalties provided by law,” and that this is the only penalty which the appellant was and is subject to.

To sustain this contention, counsel of appellant advances the argument that the general purpose of the act was to establish reciprocal obligations and duties on the part of operators of buses, municipal authorities and the state board of public utility commissioners, in that the bus operator was to get a permit or consent for which he was to pay a tax of five per cent, of his grossly monthly receipts, and that no person should operate a bus until he has obtained the consent of the municipality; that such consent has been approved by the state board, and that the operation of a bus without this consent is violative of the provisons of the act, for which section five provides the only penalty to which the appellant is amenable; and that the town of Guttenberg is seeking by the present action to take advantage of its own neglect of the plain statutory duty, which requires vigilance on part of the municipality that no jitney bus is operated over its highways, without its consent.

In support of this construction, appellant’s counsel urges that since the last proviso of section 2 of the act (at p. 222) provides: “* * * that nothing further herein contained shall be held to entitle any such municipality which has refused or failed to grant such consent to any proportion of the five (5) per centum franchise tax herein imposed,” therefore, in view of the fact that the appellant had not obtained a permit from the town of Guttenberg to operate a jitney bus through its public streets, there was no legal duty cast upon him to pay any tax, and, consequently, he was not legally obligated to file a statement showing the gross receipts from the business, such as is required by section 3 of the act.

Even if we assume that this contention is sound, it is manifestly without force under the facts, as presented by the record before us.

There is nothing in the record that shows that the appellant did not have the consent of the town of Guttenberg to operate the bus. The mere fact that it is conceded in the agreed state of the case that the appellant made no application to the town of Guttenberg for a permit to operate a bus through the said town, and that no permit was granted by the town of Guttenberg to the appellant to operate a bus within its limits, does not preclude a presumption arising from the fact that the bus having been operated for a long period of time through the town of Guttenberg’s public .streets, without objection, on its part, that the said town consented to such operation. The very circumstance that the town had instituted no proceedings against the appellant to operate his bus, for a violation of the law under section 5 of the act, gives rise to the inference that the operation of the bus was not against the town’s permission or consent. The burden was upon the appellant to establish that the operation of the bus came within the proviso. This he has failed to do.

Judgment is affirmed, with costs.


text:
    LOUIS GIROUD, PLAINTIFF-RESPONDENT, v. JOSEPH ANDRYSHOWICH AND STRYKER TRANSPORTATION COMPANY, ETC., DEFENDANT-APPELLANT.
    Argued October 5, 1927
    Decided January 5, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Thompson & Hanstein.

    For the respondent, Burton A. Gaskill.

   Per Curiam.

This ease arises out of a collision between a motorcycle on which the plaintiff was riding and a truck owned and driven by the defendant in person, on Bay avenue near Somers Point, at the intersection of a cross street known as New York avenue. Defendant’s truck was proceeding eastwardly on Bay avenue and was about to turn, or in the act of turning, into New York avenue to its left. The plaintiff was going westward on Bay avenue, and the two vehicles collided at the intersection. The plaintiff had a verdict of $30,000, and this rule is pressed on three grounds — first, that the verdict is against the weight of the evidence; secondly, that the verdict is excessive; thirdly, that the court erred in its charge.

We have examined the evidence with great care, and as the result of such examination, conclude that the verdict is not against the great weight of the evidence. Starting with the proposition that the truck was in the act of turning to its own left and across the straight path of the motorcycle coming in the opposite direction, we think the jury were fully justified in saying that the defendant was negligent in doing and in acting as he did act, and that contributory negligence on the part of the plaintiff was not shown to their satisfaction.

As to the amount of the verdict, it was a very large one, but we are unable to say, in view of the injury suffered by the plaintiff, that it is excessive. The plaintiff suffered a money loss of over $3,000, both his legs were broken, one leg was amputated, and he had to undergo seven successive operations due to infection in the stump of the amputated leg. In addition to this, the evidence indicates that he is entirely disqualified from pursuing either of the occupations for which he was trained and fitted previously. The recent cases of Reihel v. Frank, 4 N. J. Mis. R. 983, and McKeon v. Delaware, Lackawanna and Western Railroad Co., 100 N. J. L. 258, are legitimate arguments to support the conclusion that this verdict, on the whole, is not so excessive that it should be interfered with.

The last point attacks a portion of the charge laying be-r fore the jury the various elements of damage; the particular ground of attack being that the judge, in treating of the element of future losses, • omitted to say that such future losses should be discounted at their present value; a point discussed by this court in Lambert v. Trenton and Mercer County Traction Co., 135 Atl. Rep. 270, which case is now before the Court of Errors and Appeals after a second trial. Whatever may be the result in that case, it contains an element not inhering in that at bar, viz., that in the Lambert case the court was expressly requested to give a certain instruction with relation to such future losses, and declined to do so, while in the present case no such request was made, and the instruction that the jury should find such sum as would compensate the plaintiff for * * * money loss already sustained and what he will sustain in the future is in no wise erroneous if the word “compensate” implies, as we think it does, the rendition of a verdict now which would properly discount future losses at their present value.

The rule to show cause will be discharged.


text:
    JOSEPH GRUDA, INDIVIDUALLY AND AS ADMINISTRATOR AD PROSEQUENDUM OF BRUNO GRUDA, PLAINTIFF-APPELLANT, v. PAUL KARBOWSKI AND FRANK KARBOWSKI, DEFENDANTS-APPELLEES.
    Submitted October 14, 1927
    Decided January 18, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the defendants-appellees, Paul W. Ewing.

    For the plaintiff-appellant, John P. Lloyd.

   Per Curiam.

This case arises out of an automobile accident; the defendants are father and son. At the trial the court directed a verdict in favor of the father and submitted the liability of the son to the jury, who found for the defendant. The facts are substantially as follows: The father owned a new sedan, and the son, aged about eighteen, took out a driver’s license and acted as driver for his father. The latter wished to be taken to some place to get supper and his son took him there and then asked whether he could go for a ride in the ear, and his father said yes, but to get back in time to take him home; whereupon the son left with the car for his ride. He seems to have had some arrangement with several young friends to go with him, but there is little or no evidence to show that the deceased was any party to that arrangement, and the jury were entirely justified in saying that he was not. The son having reached a place of rendezvous, blew the horn, his friends appeared, and with them appeared the plaintiff’s intestate, young Gruda, who got into the car as one of the party, although, so far as the testimony shows, he was not invited to do so, and not a word was said. The party then started for a drive and on the return the car was upset and young Gruda was pinned under the car and killed.

We think the judge properly held that there was nothing to charge the father on the principle of respondeat superior. The case is not like Patterson v. Calandriello, 4 N. J. Mis. R. 989, where the father’s instructions were susceptible of a double interpretation; in the present case, the evidence shows beyond peradventure that the father merely gave permission to the son to use the car for his own purposes.

As to the verdict in favor of the son, the judge put the case to the jury on the pure question of fact whether young Gruda had been invited to go on this ride or was a mere licensee. The judge said, and properly, that if he was a mere licensee, the younger Karbowski could be held only for willful injury, and there was nothing in the case to indicate any intent to do any willful injury. In view of the charge, the jury must have come to the conclusion that Gruda had jumped in of his own accord, or, perhaps, had been invited by one of Karbowski’s guests who had no authority to invite him and was, consequently, a licensee. This theory of the case is entirely tenable on the testimony, and, consequently,, the rule should be discharged.


text:
    MIDDLESEX WATER COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANT. MIDDLESEX WATER COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANT. PLAINFIELD UNION WATER COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANT.
    Decided January 17, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the motion to strike out, Thomas Brown.

    Contra, Frank Bergen and Robert H. McCarter.

    For the prosecutor, Frank Bergen and Robert H. McCarter.

    For the defendant, Thomas Brown.

   Per Curiam.

There were three distinct writs of certiorari, two of which were sued ont by the Middlesex Water Company and the other at the instance of the Plainiield-Union Water Company. These writs sought reviews of an order made by’ the board of public utility commissioners.

The motion to strike out depositions is applicable to all three cases alike. The same legal question is involved in each case. The three cases were argued together.

The facts underlying the motion to strike out depositions are as follows: Upon the return of the writs of certiorari, leave was given both parties to take testimony to be used on the arguments. Objection was made by counsel of defendant to the taking of depositions upon the ground that the Supreme Court, on certiorari, was limited to a review of the orders of the board of utility commissioners, to the facts found in the testimony, adduced before that board. • This objection was overruled and leave given, as has been stated. Depositions were taken and counsel of the board now moves to strike them out, in the three cases.

The contention of counsel of defendant is that the depositions cannot be properly considered in reviewing the orders of the board, for the reason that the decisions and orders of the board can only be set aside in whole or in part when it clearly appears that there was no evidence before it to support the same, and that by section 38 (Pamph. L. 1911, p. 388, as amended by Pamph. L. 1918, p. 304), the Supreme Court of New Jersey, on certiorari, can only review the order of the board as to facts found in the testimony, adduced before the board.

Counsel for the motion summarizes his reasons thus: “The contention of the defendant is that the Supreme Court will not in furtherance of the well defined policy disturb a finding of facts by considering the evidence not before the board when 'its decisions an'd determinations were made.”

Section 38 of an act entitled “An act to amend an act concerning public utilities,” &c. {Pamph. L. 1918, ch. 130, p. 305), inter alia, provides that “the Supreme Court is hereby given jurisdiction to review upon certiorari any order of tlie board of public utility commissioners, and to set aside such order in whole or in part when it clearly appears there was no evidence before the board to support reasonably the same, or that the same was without 'the jurisdiction of the board. The evidence presented to the board together with their findings, and the order issued thereon, shall be certified by the board to the Supreme Court as its return” * * * “If, with respect to any order brought under review by certiorari, it shall appear equitable and just that a rehearing should be had before said board, the Supreme Court may order that such rehearing be had upon such terms and conditions as are reasonable, and the said board shall thereupon proceed to a rehearing upon the testimony theretofore taken before it, and upon which the order under review was based, and upon such additional testimony, if any, as may be produced.”

Section 11 of the Certiorari act (1 Comp. Stat., p. 405) provides, among other things, that in all cases of writs of certiorari now pending or hereinafter brought to review, inter alia, the proceedings of any statutory tribunal * * *. “The court shall determine disputed questions of facts as well as of law, and inquire into the facts by depositions taken on notice, as is according to the practice of the court.”

We think that the construction to be put upon the two sections referred to in order to carry out the legislative intent, is that where the evidence, taken under the Certiorari act, merely controverts the testimony adduced before the public utility board, and upon which testimony the board based its order, that this court will not undertake to weigh the testimony, but will seek to ascertain whether there was any testimony before the board which reasonably supports its order. If there is testimony reasonably supporting the board’s order and there is no testimony adduced from which it is made to appear that the order was without the jurisdiction of the board, or that the testimony taken before the board does not reasonably support the order, this court will not interfere.

We have, therefore, reached the conclusion that the application to strike out the testimony, taken in the proceedings on certiorari should be denied.

We now come to a consideration of a review of the order made by the board on July 29th, 1926, and which order is-as follows: “Ordered that the Middlesex Water Company install a transmission pipe line of not less than twenty-four-inches in diameter from the present terminus of its twenty-inch line along Park avenue, in the vicinity of Oak Tree, thence by a route to be selected by the company, easterly to-a point in Woodbridge approximately at the input of its mains leading to Carteret, with a privilege to the company if it so desires, to extend the pipe further at its own volition.”'

The estimate cost of the proposed main is $350,000. The-objection made against the order by the prosecutor are: Eirst,. that the main, if made as directed by the order, would be-ineffective to deliver more water at Carteret, where it is-needed, and, hence, to install it would be a waste of capital. (2) Because the board had theretofore refused-to permit the-company to obtain an adequate income in the performance of the service required of it, it has therefore made it impossible-for the company to obtain the capital necessary for the proposed main, or otherwise to enlarge the company’s works so-as to be able to render adequate service.

There is no dispute that the installation of the main is-necessary. We are unable to perceive, in view of the confession on part of the water company, of the necessity of the-main in order to render adequate service any merit in the-defense whatever to the order made by the board, unless it-can be reasonably said that a plea of poverty is a good defense to a compliance with the board’s order.

The company is under a legal obligation to render adequate-service and is not entitled to enjoy the privilege of its franchise if it is unable to render the adequate service required of it in the proper exercise of such franchise.

The prosecutor, in continuing to enjoy its franchise from, the state to supply water to the municipality, is under a legal duty, b]7 virtue of such franchise, to maintain adequate service in its supply of water, and this supply must be furnished in an adequate manner. The complaint made by the company is, that the fault of inadequate service is attributable to the action of the board, in that the latter impaired the financial condition of the water company by refusing to allow the company a sufficient return on the fair value of its property. But this complaint is not borne out by the facts of the case, for it appears that in 1920 the company made applications to the board on two different occasions for an increase in rates, and on each occasion the increase was allowed. The rate allowed by the board was apparently sufficient to afford a net return of seven per cent, on the fair value of the property of the company. At any rate, no appeal was taken.

It is rather an alarming proposition that a company, enjoying a franchise to furnish water to a municipality, in the performance of which task it must be considered that the lives, needs, health and comfort of the inhabitants, and safety of property are involved, because all, more or less, are dependent upon an adequate supply of water with adequate service, can successfully entrench itself against a compliance with the order of the board on the plea that the company has not the financial ability to furnish equipment for an adequate supply of water with adequate service for distribution. Palpably such an excuse cannot properly be permitted to prevail.

The prosecutor also attacks the reasonableness of the estimated cost of performing the work as directed by the order. Our examination of the testimony adduced before the board, in that regard, satisfies us that the conclusion reached by the board on the question is reasonably supported by the testimony.

The order is affirmed, with costs.


text:
    JOSEPH EMMLER, PLAINTIFF-APPELLEE, v. TYSON KLINE, DEFENDANT-APPELLANT.
    Submitted October 14, 1927
    Decided January 18, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Raymond E. Taylor.

    For the appellee, Donohue & O’Brien.

   Per Curiam.

This case arises out of a collision at night between an automobile owned and driven by the plaintiff and an automobile which the jury were justified in saying belonged to the defendant, the principal dispute relating to the question whether defendant’s car at the time was driven by the defendant or anyone acting under his authority.

The accident occurred about eleven-forty p. M..at the corner of Perry and Jackson streets in Newark. Starting with the presumption arising from the fact that the colliding car was that of the defendant, the uncontradicted proof showed that the defendant took his wife and a woman friend in the car at about half past nine that evening from 168 Clinton avenue, which is about a mile and a half away from the point of collision, to a ¡restaurant on South Orange avenue, not far away, stayed until a little after eleven, and returned to their home at eleven twenty-five to eleven-thirty p. m. ; that the defendant then took his car to a garage where he habitually kept it and went back to his home. The garageman testified that the car came in about eleven-thirty. The next morning when the defendant went to get his car for the purpose of going to work, it was missing and no one could account for it. About four days later, it was found in a damaged condition in a garage opposite the Market street station in Newark.

Our examination of the evidence satisfies us that the presumption arising from the fact that the defendant’s car was in an accident, that it was being driven by the authority of the defendant, was fully overcome. The only reasonable deduction from the testimony was that someone had stolen the car after the defendant put it up in the garage. In this situation, the court was asked to direct a verdict for the defendant, and refused to do so. We think the verdict should have been directed, and that it was error to refuse it.

The judgment is therefore reversed, and the case remanded for a new trial.


text:
    DONALD H. SMITH, ELIZABETH SKIDMORE SMITH AND LOUISE SKIDMORE, PLAINTIFFS-APPELLEES, v. MONTCLAIR BROWN AND WHITE CAB COMPANY, A CORPORATION OF NEW JERSEY, AND ROBERT CHANDLER, DEFENDANTS-APPELLANTS.
    Submitted October 14, 1927
    Decided January 18, 1928.
    Before Justices Parker, Minturn and Campbell.

      For the plaintiffs-appellees, Anthony Darrow Appice.

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

   Per Curiam.

This case arose out of a collision between a Ford coupe owned and driven by the plaintiff Donald H. Smith and a brown and white taxicab belonging to the defendant company and operated by one of its drivers. The accident occurred about eleven p. it. in Montclair. The plaintiff Donald H. Smith had with him in the coupe his wife, Elizabeth, and two others, including the plaintiff Louise Skidmore. Plaintiff, going north on Willow avenue on his right-hand side of the road, desired to turn around, and seeing a private roadway on his right, turned into it with the intention of backing out and swinging toward his left until he was faced the other way on Willow avenue, and then starting down Willow avenue toward the south. He testified that his headlights were lit, that he blew his horn before backing, and that he looked both ways and saw nothing. As he was backing out of the driveway, the defendant’s taxicab also came north on Willow avenue, caught Smith’s ear on the right hind wheel, and damaged the car and shook up its occupants somewhat.

The court, sitting without a jury, overruled a counterclaim of negligence on Smith’s part, and awarded a judgment in favor of Donald Smith of $21, Elizabeth Smith $50, and Louise Skidmore $75. An outside witness who was sworn for the plaintiff said that the taxicab was going forty miles an hour, and the driver of the taxicab said that he did not see any light.

The first ground of appeal is that the judge refused a motion to nonsuit, as no negligence was shown on the part of the appellants. We think a question of fact was raised on this point, and that the court was entitled to hold that the defendant’s driver, Chandler, was negligent.

' The second ground of appeal is: “That the trial judge had no right to assume at the close of plaintiffs’ case that if a car is going forty miles per hour it might he possible that the plaintiff, when he looked, did not see the approaching -car of the defendant.” This points to no judicial action and is futile as a ground of appeal.

The third ground of appeal is that because at the close of the defendant’s case, there was evidence of contributory negligence on the part of the plaintiffs; and this also points to no judicial action.

The fourth ground of appeal is that the trial court refused a motion for a direction of the verdict. We gather from the language of this ground of appeal that this is based upon the claim that no negligence of the defendant’s driver was shown, and that there was contributory negligence on the part of the plaintiffs. Both these were questions of fact within the province of the trial judge.

The fifth ground is that the only evidence of the speed of the car was the testimony of an outside witness, McCue, who saw a car being driven at forty miles an hour while he was trying to lock the front door of his house. This also points to no judicial action.

The sixth ground of appeal is that the judgment of Elizabeth Skidmore Smith is erroneous in that the testimony shows no proof of physical contact as required by law. If it appeared that this point was made in any way at the trial, it might raise a rather interesting question, notwithstanding the small amount of the judgment in her favor, $50. She testified that she was not bumped or struck, that nothing hit her, but that she was nervously wrought up and went to .an osteopath for treatment. The osteopath was sworn and testified that he found Mrs. Smith nervously shocked, and that her condition might have been caused by a shock of some kind. If there were any physical injury, however slight, it would support an award based in part on mental disturbance. Porter v. Delaware, Lackawanna and Western Railroad Co., 73 N. J. L. 405. In Buchanan v. West Jersey Railroad Co., 52 Id. 265, and Tuttle v. The Atlantic City Railroad Co., 66 Id. 327, the plaintiff was placed in a position of great danger, and was injured in escaping from that danger, and a recovery for mental disturbance was sustained. In Fleming v. Lobel, 59 Atl. Rep. 28 (not officially reported), it was intimated that “night terrors,” if due merely to fright because of plaintiff seeing his.sister burn to death would not be a basis of recovery; and in Ward v. The West Jersey Railroad Co., 65 N. J. L. 383, it was held that mere fright, even though physical suffering results, will not support an action.

Por the purposes of the present case, it is sufficient to say that inasmuch as this point was in no way drawn to the attention of the court at the trial, so far as anywhere appears in the state of the case, it is not a proper ground for a reversal of the judgment, which will, accordingly, be affirmed.


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    WALLACE SAVAGE, PLAINTIFF, v. BERTRAM W. SAUNDERS, JOHN T. PRATT, JOSEPH D. SEARS, DANIEL D. JACKSON AND FRED L. McCARTY, DEFENDANTS.
    Submitted October 15, 1927
    Decided January 18, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff, John A. Matthews.

      For the defendants Bertram W. Saunders, Joseph D. Sears, Fred L. McCarty and Savage Rubber Corporation, Osborne, Cornish & Scheck.

    For the executors, &c., of John T. Pratt, deceased, Harold I. Pratt and Ruth B. Pratt, Congleton, Stallman & Hoover.

   Per Curiam.

There are a number o'f defendants in this case, which was begun at some time in 1926, but we are concerned only with the alleged service of summons upon John T. Pratt, originally named as a defendant, and who is since deceased, and the substitution of his executors as defendants by rule of court under the provisions of the Abatement: act.

Eirst, as to Pratt, deceased. He was alive when the suit was begun, but did not live in this state. The sheriff, by instruction of the plaintiff’s attorney, served the summons and complaint on Mr. Cornish, an attorney of this court and a member of the firm of Osborne, Cornish & Scheclc, described in the return of the sheriff as “attorneys for John T. Pratt, at their office, 790 Broad 'street, Newark.” This was evidently done at the direction of the plaintiff’s attorney, and, presumably, because some two weeks earlier the firm in question, describing themselves as “attorneys for defendants,” had given notice of a motion for a rule “extending the time of the defendants to file answers.” There had been a default judgment against one of the defendants, which was opened, but with this we do not seem to be concerned. It is obvious that at the time that this notice was served there was no occasion to extend the time for Pratt to answer, because there had been no suggestion of a service of process upon him, and, consequently, the only rational conclusion is that the motion related to defendants who had been served with process. Even after the return of alleged service as made by the sheriff, and noted above, no judgment was taken as against Pratt, and as to him the suit drifted until August of 1927, when the plaintiff represented to the court in the usual form that Pratt had died on June 17th, 1927, testate, and naming his executors, whereupon the circuit judge, acting for the Supreme Court, directed that said executors he substituted as parties defendant in the place and stead of John T. Pratt, deceased. Evidently, the making of this rule came to the knowledge of the executors, who, through the counsel now appearing for them, gave notice of a motion to be made on August 24th to set aside the service of summons on Pratt, and to vacate the order, substituting the executors as parties. The motion was originally made before a single justice, who directed that it be heard by the full court.

We are quite clear that the substitution of executors should not be vacated. As to this phase of the cáse, it is immaterial whether Pratt was served or appeared, or not. Assuming he was not served, there is nothing that we can see to prevent the plaintiff substituting the executors of an unserved defendant after his death. In fact, it is necessary that the executors should be made parties to the suit in order to enable them to make any motion in the cause, even by way of special appearance. If they had not been substituted as parties, it would have been necessary for them to intervene and ask that they be admitted before they could make a motion to quash the service of the summons. Being such parties, they properly moved to set aside the service of summons on their testator. When we come to examine into the merits of that motion, we are clearly of opinion that it should prevail. The matter was heard on ex parte affidavits without any objection, and there was nó rule to show cause made, so that these affidavits are properly before us. It clearly appears from them that Messrs. Osborne, Cornish & Scheck were never retained as attorneys for Mr. Pratt, never undertook to appear as such, and that they had no authority to appear for him. Their signature as "attorneys for defendants” is to be read in connection with the notice which, as we have alreadjr said, relates exclusively to extending the time to answer of certain defendants, who must have been served in order to require such extension. Apparently, the counsel for plaintiff is asking us to say that if an attorney, by a pure clerical blunder, puts himself on the record as the attorney of "A” (assuming that such is the present case), that will hind "A” who had never seen or communicated with him, and that, although no one did anything on reliance of the error, if error there was.

The executors have appeared specially; there is no question about that. We consider that they are entitled to have the service as against their testator set aside, and as to this branch of the motion such will be the order. With respect to their being substituted as parties, that motion will he denied.

Each party succeeding in part, no costs will be allowed.


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    ANNA MAY HOPPER, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. HAROLD E. GILLETT, DEFENDANT.
    Argued October 4, 1927
    Decided January 18, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiffs, Jacob L. Bernstein.

    For the defendant, Runyon Colie.

   Per Curiam.

This is a medical malpractice case. Defendant demanded certain particulars before answering, and when they were not furnished applied to Mr. Justice Parker on notice for a rule requiring them to be furnished. After argument, a memorandum of decision was filed and a rule was made under date of June 9th, 1927, requiring more specific reply to demands numbers twenty-eight, twenty-nine and thirty, and two others, which latter have since been eliminated from the controvers3r. Plaintiffs being dissatisfied with this ruling moved to set it aside before part three of the court, and were heard at Trenton about June 24th by Justices Parker and Campbell, sitting as part three. It then appearing that the rule to answer demands numbers twent3r-eight, twenty-nine and thirty had been made before answer filed, because of the opinion in Dixon v. Swenson, 3 N. J. Adv. R. 492; 127 Atl. Rep. 591, and plaintiffs stipulating in-open court that the filing of an answer should not operate as a waiver of defendant’s right, if any, to apply for further answers to said three demands, but that such right remain notwithstanding such answer, the court overruled the demands at that time, but without prejudice to a renewal of the motion after answer filed. Such motion was made at the October term and is now to be disposed of on the merits.

The following are extracts from the memorandum filed by Mr. Justice Parker in deciding the motion of June 9th:

“The other objections to the answers go to the refusal of the plaintiff to answer fully demands numbers twenty-eight and twenty-nine. Number twenty-eight is as follows: “State whom Prank Hooper, Jr., has been compelled to employ for medical and surgical care of plaintiff Anna May Hooper, as alleged in paragraph three.’ Demand number twenty-nine is: “State how much plaintiff, Prank Hooper, Jr., has expended for such medical and surgical care and to whom.’ Number twenty-eight plaintiff refuses to answer on the ground that defendant, under the guise of bill of particulars, is attempting to pry into plaintiffs’ case and attempting to find out the names of the plaintiffs’ witnesses; and under number twenty-nine plaintiff answers, approximately, $300 to date, as far as records show, and refuses to give the name or names of the physicians to whom such payment was made on the ground that the defendant is attempting to find out the names of the plaintiffs’ witnesses. Number thirty is to the same effect, and on the same ground. There may be some others, but they are all covered by the point made in numbers twenty-eight and twenty-nine.
“If the function of a bill of particulars was confined in a case of this character to the enabling of the defendant to make a suitable answer, I should be disposed to rule that as these inquiries go solely to the measure of damages, and not to the fundamental question of liability, the defendant would not be entitled to have them answered;' but the rule I believe to be otherwise. The bill of particulars has the twofold effect of informing the defendant with relation to the details of the plaintiffs’ case with a view of preparation of a proper pleading in reply to the complaint, and also of limiting the plaintiffs’ proof on the trial as well as apprising the defendant what is proposed to be set up [in this ease by way of consequential damages], to the end that the defendant may prepare a proper defense. And so it was held by the late Mr. Justice Garrison in the case of Heppard v. Carr & Smith, 12 N. J. L. J. 186, that particulars of cost of materials and help procured by the plaintiff, and also the names of the parties furnishing such help and supplying such materials were proper to be given. This was a contract case, but I see no distinction from the present case on that account. The recent case of Dixon v. Swenson, supra, was also a contract case. In that case the action of the trial judge in ordering further particulars was set aside, not because the particulars were not such as ought to have been given, but because the rule requiring further particulars was made after answer had been filed, and the Supreme Court considered that, after answer, the defendant was not entitled to any further particulars than he had at the time he answered. This, however, was a case in contract, and the furnishing of particulars in contract cases is largely, if not entirely, regulated by the statute; whereas, in cases of tort, like the one before me, particulars are ordered as a matter of common law. See my remarks in the case of Watkins v. Cope, 84 N. J. L. 143, with which counsel are familiar.”

We concur in these views, and, as a result, rule may be entered in conformity to that of June 9th, requiring the plaintiffs to furnish the further particulars by way of full answer to the specific inquiries numbers twenty-eight, twenty-nine and thirty made in the demand.


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    LEO MARMORSTEIN, PLAINTIFF-RESPONDENT, v. STATE THEATRES CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Argued October 5, 1927
    Decided January 18, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the defendant-appellant, Atwood C. Wolf.

    For the plaintiff-respondent, Charles C. Colgan.

   Per Curiam.

The suit was for assault ancl battery and false imprisonment and malicious prosecution arising out of a dispute which took place during a moving picture or vaudeville show in the theatre of the defendant company. There was a verdict for the plaintiff, and defendant appeals.

The case was argued very much as if it were a rule to show cause, but, of course, it is not. The principal ground of appeal urged is that the court erred in refusing to nonsuit, but, after an examination of the testimony in the case, we are clearly of opinion that it would have been error to nonsuit. The facts, as the jury was entitled.to find them from the testimony, are that the plaintiff attended the performance as the holder of a reserved seat, and during the performance left his seat for the purpose of visiting the toilet; when he started back to his seat he was told he could not go then but to wait until the end of the number. Appellant’s brief claims that he was told to wait until the end of the act, and there is a sharp contradiction in the testimony on this point, the plaintiff saying in his testimony that it was the end of the number, and that the act had six or seven numbers in it. He says he waited until the end of the number, and then went down to his seat; that shortly afterwards a young man — no doubt an usher — came down to him and said, “You think you are a privileged character?” The plaintiff said “No,” and that the young man said, “Well, I will see you at the end of this act.” And that at the end of the act he came down with a policeman who took him to the manager of the theatre, a Mr. Keale; that they talked a few minutes, and then Keale said to the officer, “Take him out.” The officer called up the police station on the telephone, the patrol wagon came, and Mr. Keale told the usher to go to the station and make a charge of assault and battery against the plaintiff. All went to the station together, the charge was made, and afterwards dismissed. On cross-examination the plaintiff testified that when he started back for his seat at the end of the number, and got past the ushers, they grabbed hold of him, and that he pulled away and walked down to his seat.

There are twenty-four separate specifications of alleged error in the case, but they can all be considered under three or four heads. The first is that the court erred in refusing to nonsuit and in refusing to direct a verdict. These refusals were proper; the testimony of the plaintiff, as the trial judge properly said, would prevent that. It shows, if believed (and the jury had a right to believe it), that the defendant’s employes laid hands on the plaintiff; that he was substantially taken into custody in the theatre, turned over to an officer by the direction of Neale and taken down to a police station, where a formal complaint was made against him by Neale’s express instructions. Neale’s authority in the premises as the executive of the theatre was shown by his.own testimony; so that, as to the responsibility of the corporation, the ease is within the rule laid down in Wendelken v. New York, Susquehanna and Western Railroad Co., 88 N. J. L. 270.

What has been said seems to cover the first four points made in the brief.

Point five is based on specification eighteen, the language of which is: “The trial court erroneously left it to the jury to determine whether there was probable cause for the arrest of the plaintiff.” This specification is insufficient to bring up the alleged error complained of in that it fails to give the language of the trial court; but we have examined the portion of the charge set out in the brief, and are clearly of opinion that the instructions there quoted are quite as favorable to the defendant as it had any right to expect.

Point six brings up the admission of a question to the plaintiff as to his membership in certain fraternal organizations, and it is alleged that this was error; but in an action for malicious prosecution, evidence as to the character and standing of the plaintiff is relevant upon the question of damages.

The seventh and last point is that the court erred in charging the jury that “the complaint is that the defendant, acting through its agent, committed an assault and battery upon the plaintiff,” and it is alleged that this was error because the state of demand does not so allege. In answer to this it is sufficient to quote from the state of demand that the servants and agents of the defendant within the scope of their authority and in the performance of their duties “with force and arms assaulted the plaintiff and with great force and violence pulled and dragged him about/’ &c. '

We find no error in the case, and the judgment is, accordingly, affirmed.


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    JOHN F. KELLEY AND AUGUSTINE B. REPETTO, PLAINTIFFS-APPELLANTS, v. WILLIAM J. RYAN, INCORPORATED, A CORPORATION, ETC., DEFENDANT-RESPONDENT.
    Argued October 6, 1927
    Decided January 18, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiffs, August B. Repetto, William I. Garrison and Robert H. McCarter.

    For the defendant, Cole & Cole.

   Per Curiam.

This case was argued at considerable length by able counsel and several very interesting questions were presented, but as we conclude that there should be a new trial for the reasons presently to be stated, we find it unnecessary to deal with the other aspects of the case.

The suit was upon a promissory note dated January 18th, 1926, for $75,000, purporting to have been signed by the defendant, William J. Eyan, Incorporated, in favor of the plaintiffs. The note was voluminous in its agreements and recitals, taking up over a page of close print in the state of the case. It was the result of a controversy between the parties and threats of a suit in Chancery, and accompanied a written agreement for the settlement of such threatened suit. One of the contested issues in the case was whether the agreement marked Exhibit P-Z, and dated January 16th, 1926, which purported to deal with all the outstanding questions between the parties, was signed on Saturday, January 16th, or whether the negotiations were protracted until after midnight, and the agreement was signed on Sunda)*-, the 17th. The trial judge laid hold of this question and charged the jury that if the contract was signed on Sunday it would be a void contract and the plaintiffs could not recover under it, and that the note in question was a part of that contract. The jury found a verdict for the defendant, and while there were other issues in the case, particularly that of alleged fraud on the part of Kelly in accepting commissions from parties whose interests were adverse to those of Eyan, nevertheless, as the verdict was a general one, we cannot tell but that the jury laid hold of the instructions of the court on the Sunday law as the basis of their verdict. If, therefore, these instructions were erroneous, the verdict ought not to stand.

We consider that they were erroneous. In signing the agreement and the note, Eyan was signing as representing the corporation of William J. Eyan, Incorporated, which was the party legally interested in the matter, and the party named as the maker of the note. It does not appear that the note itself was signed on either the 16th or 17th of January; in fact, the agreement which was signed on that Saturday night provides that the note shall bear date upon the execution and delivery of the assignment of certain bonds and mortgages, to wit, January 18th, 1926, which would be Monday; the evidence shows, beyond peradventure, that after Ryan had executed the agreement in a preliminary way the matter was taken up at a meeting of the William J. Ryan, Incorporated, corporation, on February 1st, and that at that meeting it was “Resolved, that the agreement be and the same hereby is approved, and that this company proceed to execute the bond, mortgage, collateral note and assignment of the mortgage provided for in the said agreement, and do any and all other things necessary to perform said agreement of January 16th, 1926.” The resolution further authorized the proper officers to execute such instruments and approve the form and substance of the papers as presented at the meeting. The mortgage, which was dated January 18th, was proved as the act of the corporation on February 1st. The note itself, dated January 18th, bears the signature of William J. Ryan personally, William J. Ryan, Incorporated, by William J. Ryan, president, attested by C. E. Manwaring, secretary, and was certainly executed after fhe mignight meeting of January 16th, 1917.

The defense clearly presents a case of an executory contract, perhaps signed and delivered on a Sunday, but voluntarily executed and carried out later on a secular day. We may assume for present purposes that the agreement, Exhibit P-2, was signed in the small hours of Sunday morning; nevertheless, on January 22d, Ryan’s counsel, Mr. Schorr, writes to the plaintiff Repetto, who was acting as counsel for himself and Kelley, that the mortgage should contain a release clause, and that the collateral note should have written on its face that the note is given pursuant to the terms of the agreement and is subject to the provisions thereof; so that it is plain that neither the note nor the mortgage had been finally delivered. Then, as already stated, the note and mortgage were authorized at the corporate meeting on February 1st, and no doubt executed on that day.

Assuming, then, what is probably true, that the defendants at any time up to the meeting of February 1st and the delivery of the papers authorized at that meeting, could have repudiated the agreement of January 16th, 1917, on the ground that is was made on a Sunday and could have refused to deliver either the note or the mortgage, nevertheless, they executed both of these papers, delivered them and got the benefit of the settlement which those papers were intended to secure. We think it was error to vitiate the note because of the mere fact that it was founded on an agreement which could have been repudiated but was not, and think that the case is within the reasoning of Brewster v. Banta, 66 N. J. L. 368, in which the original promise was vitiated because made on a Sunday, but held to support a new promise subsequently made on a secular day.

It is argued for the defendants that no exception to the charge on the Sunday law was prayed by the plaintiff. While this would be dispositive of the matter on an appeal, it is not dispositive of it on a rule to show cause as in the present case. Eor we have a line of cases holding that on a rule to show cause no exception is necessary. Recent instances are Butler v. Hoboken Printing and Publishing Co., 73 N. J. L. 45; Otis Elevator Co. v. Headley, 81 Id. 173; Clark v. Public Service Railway Co., 83 Id. 319. In a per curiam of this court in Henny v. Public Service Railway Co., 2 N. J. Mis. R. 396, the rule was recognized but not followed, the court saying that the power should be used cautiously by the reviewing court and only in an unusual case. If this informal utterance of the court be taken as controlling, we, nevertheless, think the present is such an unusual case. ' The point goes to the root of the case; it does not appear to have been raised in the pleadings, but was treated by the court as a ratio decidendi to be sumitted to the jury.

In our judgment the interests of justice require that a new trial be had on all the issues, and that the issue of the Sunday law, if then raised and considered to be a controlling factor in the situation (which, so far as we can see at this time, it is not), should then be submitted to a jury as the basis of a special finding.


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    STEPHEN SHANNON, ADMINISTRATOR OF THE ESTATE OF MARY H. SHANNON, DECEASED, PLAINTIFF-APPELLANT, v. MARY COUSINS, ANASTASIA COUSINS AND ALICE THEES, DEFENDANTS-APPELLEES.
    Submitted October 14, 1927
    Decided January 18, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff-appellant, Robert H. Doherty.

    For the defendants-appellees, Edward M. Salley.

   Per Curiam.

The record exhibits three claims in replevin or trover against three different defendants combined into one action. We are not at all clear as to whether they are properly so combined under the provisions of the Practice act of 1912, and do not wish to be understood as approving such a course; but as no objection of this kind has been made, we shall treat the three counts as three separate actions consolidated for the purposes of trial.

The plaintiff is administrator of his deceased wife, Mary H. Shannon, and the three defendants are Mary Cousins, her mother, Anastasia Cousins, and Alice Thees, her sisters. The first count charges Mary Cousins with having wrongfully taken and detained a victrola that was the property of the deceased. The second count makes a similar charge against Anastasia Cousins with reference to a diamond ring, and the third count similarly charges the defendant Alice Thees with respect to a mink fnr coat. The defense in each case was that there had been a gift by the deceased causa mortis. It does not plainly appear whether the property was replevied or left in the custody of the defendants, but at the conclusion of the trial the judge treated the matter as an action of conversion and charged the jury if they found for the plaintiff to bring in money verdicts for the respectiye values of the articles of property as indicated by the testimony.

In support of the defense of gift causa mortis, Anastasia was sworn and testified to a conversation between the dead sister and the other sister Mrs. Thees about the fur coat. She said her sister Mrs. Shannon was dying and the other two sisters were at her bedside, and that Mrs. Shannon said to Mrs. Thees, “I am dying, I want you to have the fur coat; go downstairs and bring it up and put it in your things;” whereupon Mrs. Thees did go downstairs, got the coat and put it among her things. This, if believed by the jury, plainly established a complete gift causa mortis,■ and Would settle the ownership of the fur coat,.

Next, as to the diamond ring: The defendant Alice Thees was sworn and testified as follows: “Before my sister died she asked my younger sister to hand her her ring from the dresser, and she handed it to her, and she said that she wanted my sister to have her diamond ring. Q. What did your sister do? A. She held the ring until later on, and she put it in her dresser.” This, if believed by the jury, settled the ownership of the diamond ring. There was some corroborative evidence as to the deceased having told her brother about these gifts, but we need not dwell upon it.

As to the victrola, the case is a little different. Anastasia testified to a conversation at which the brother was present, and that her sister Mrs. Shannon told the brother that she had given the victrola to her mother. Alice Thees testified that her mother was, at the time of the trial, in possession of the victrola, and that she came into possession of it in this manner, to wit: “My sister told my younger sister and I that my mother was to have the victrola and anything else in the house that belonged to her. Q. Did your sister say anything about that time, about going to die? A. Yes, she said, ‘I am going to die.’ At the time she gave me the fur coat and the diamond ring to my younger sister, she also told us that mother was to have the vietrola.” William Cousins, the brother, testified to a conversation with his sister Mrs. Shannon in which she said that she had given Ted the diamond ring and “I am giving Alice my fur coat and mother the vietrola.”

It will be perceived that nowhere in this evidence does it appear that the mother was present at the time of these declarations by the deceased sister, and, consequently, unless the case comes within the rule laid down in some decisions that a gift causa mortis may be effected by delivery to a third person as agent or trustee for the donee, though the gift does not come to the knowledge of the donee and is not accepted by him until after the donor’s death. 28 G. J. 694. The attempted disposition of the vietrola would seem to be altogether testamentary in character, and, therefore, invalid. There is another difficult]", viz.: That nowhere in the evidence does there appear to be anything which can be considered as a delivery and transfer of possession to the donee. The vietrola was in the house downstairs. At the time of the trial it was in the same place where it had been before Mrs. Shannon died. There had been a key for the vietrola, but, apparently, it had been lost. We doubt whether there would be any effective delivery under such circumstances. See Besson v. Stevens, 94 N. J Eq. (at p. 567). But it is unnecessary to decide the point because we are clear that no gift was actually made, and that the deceased failed to do more than express her wishes in a testamentary manner, but orally, that she wished her mother to have the vietrola after she was dead. The defense of gift as to the vietrola, therefore, was not made out.

This results in an affirmance of the judgment as respects the claim against Anastasia for the diamond ring and Alice for the fur coat, but a reversal with respect to the vietrola. Eule may be entered accordingly.

It is urged in the brief that as the two sisters and the mother were joined in the one action as defendants, no one of them was a competent witness to transactions between the deceased and either of the others. But, as we have said, there are in effect three separate actions, one against each party, and each having its own separate count devoted exclusively to the defendant charged therein. The rule stated in section 4 of the Evidence act (Comp. Stat., p. 2218) was never intended to exclude the party charged in one of these counts, as a witness to transactions relating to the claim under another count against a different party.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. IRVING P. PARSONS, PLAINTIFF IN ERROR.
    Submitted October 14, 1927
    Decided January 18, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff in error, William I. Garrison and Robert H. McCarter.

    For the defendant in error, Louis A. Repetto, prosecutor of the pleas.
   Per Curiam.

Two indictments were found against the defendant based on chapter 72 of Pamph. L. 1919, being a supplement to tlie Crimes act, which provides by section 1 that—

“Any person who, with intent to defraud, shall make or draw, or utter or deliver, any check, draft or order for the payment of money upon any bank or other depositary, knowing at the time of such making, drawing, uttering or delivering that the maker or drawer has not sufficient funds in, or credit with, such bank or other depositary for the payment of such check, draft or order, in full, upon its presentation, shall be guilty of a misdemeanor * *

The indictments were precisely alike, exSept that the first charged the uttering of a bad check for $3,000, and the second of a similar check for $2,000, at the same time and place and under the same circumstances.' The indictments were tried together. They charged the uttering of the check with intent to defraud one Cramer, who was the first witness for the state. Erom his testimony it appeared that he was secretary and treasurer of a trust company in Atlantic City, and was there when the defendant or his secretary came in and got the checks cashed. They were drawn on the Pleasantville National Bank, which refused to pay them on presentation. This came to the knowledge of Cramer, who went to Pleasantville and took them up with his own funds. Cramer then saw Parsons on the matter and Parsons said he would make good later, and did give Cramer a note which was not paid, Cramer destroyed it, but Parsons gave him another in substitution for it.

The first point made is that the court erred in refusing to direct an acquittal on the ground that there was no proof in the case of knowledge on the part of Parsons that he had not sufficient funds in, or credit with, the Pleasantville bank for the payment of the checks on presentation, and that the evidence did show that on the date when the checks were cashed by Cramer, and for several days thereafter, the balance was sufficient, though it was insufficient when the checks finally came in through the exchanges. The answer to this is that, by section 2 of the same act, it is provided that as against the maker of the check, the making, drawing, uttering or delivering thereof and the refusal of payment thereof by the drawee “shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank or other depositary; provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with all-costs and protest fees, within five days after receiving notice that such check, draft or order has not been paid by the drawee.”

We are of opinion that the jury was entitled to say that this presumption created by the statute was not overcome, especially as the defendant must have known that the other -checks which reduced the balance below the amount of the checks in question were outstanding and liable to be presented before the two checks mentioned in the indictment.

The next point is that the indictment charges that the intent of the defendant was to defraud Cramer, whereas the checks were cashed in the first instance with money of the Bankers Trust Company. We think, however, there is enough in the case to justify the inference that Cramer was defrauded as well as the trust company, especially as he took over the responsibility for the success of the deception.

Finally, it is urged that the' court erred in refusing to charge as requested by the defendant, that—

“If the jury find from the evidence that after the issuing of said checks and the protesting thereof, and thereafter Cramer and Parsons got together and settled their differences, by Parsons giving a note in satisfaction of the checks, then they should acquit.”

We think this request was properly refused. The proviso in section 2 of the statute quoted above relates to payment of the amount to the drawee together with all costs and protest fees, &c. The drawee on these checks was the Pleasantville National Bank, and there is nothing in the case to show that any payment whatever was made to that bank except by Cramer. Consequently, even if the note given by Parsons to Cramer could be regarded as payment in the intendment of the statute, it would uot be within the proviso. But we do not think the note was a payment in the intendment of the statute. That act denounces the uttering of a bad check as an offense against the public, punishable by a fine or imprisonment or both. The case is not a case of a settlement of a private claim, but of wiping out an offense by the state by making good in cash, as we view the matter; for the whole object of the statute might well be defeated if the drawer of a fraudulent check were enabled to escape punishment for his crime by settling with the defrauded party on a credit basis.

For these reasons the judgment will be affirmed.


text:
    JEPPE JORGENSEN, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ROY JORGENSEN, DECEASED, PLAINTIFF, v. ISRAEL WILBERG, DEFENDANT.
    Submitted October 14, 1927
    Decided January 18, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff, John E. Toolan.

    For the defendant, Kalisch & Kalisch.

   Per Curiam.

The only reason urged for making this rule absolute is that the damages are claimed to be excessive. At the trial there seems to have been an issue of fact as to whether a young boy of thirteen who was killed because of being run down by an automobile had been struck by the defendant’s ear. That issue is not pressed now. Hence, it may be considered as settled that the defendant’s car, driven by the defendant, ran down the boy and inflicted injuries resulting in his death. The verdict was for $6,000. The evidence shows that the bo}7 was thirteen years old, in excellent health, and of good mental ability. He left a father and mother and twelve brothers and sisters, all living, the oldest being twenty-four years old and the youngest about five months old. We are unable to say that in view of the reduced purchasing power of money this verdict is excessive.

The rule to show cause will, accordingly, be discharged.


author: Ingersoll, V. C.

text:
    Annie M. Conaway, complainant, v. Margaret Daly et al., defendants.
    [Decided February 3d, 1928.]

      Mr. Robert J. Tait Paul, for the complainant.

      Messrs. Babcock & Champion, for the defendant Margaret Daly.

      Messrs. Cole & Cole, for the defendant Philadelphia Brewing Company.

      Mr. William Clevenger, for the defendants Minnie F., Earl K. and Waldon F. Johnson.
   Ingersoll, V. C.

Emma L. Schafer died in June, 1887, seized of the lands and premises described in the complainant’s. bill, together with considerable other land in Atlantic City. At her death she left her surviving her husband, John G. Schafer, and three children, Caroline J. Moore, William J. Schafer and George W. Schafer, and Annie M. Conaway, a granddaughter, the daughter of a deceased daughter of said Emma L. Schafer, •as her heirs-at-law.

On the 29th day of December, 1898, George W. Schafer and Elizabeth, his wife, William J. Schafer and Catharine, his wife, and Caroline Moore, widow, as heirs-at-law of Emma L. Schafer, conveyed to the said John G. Schafer several tracts of lands in Atlantic City, including the land in question.

At the time of this conveyance the complainant was a minor, and any interest she may have had in the premises was not conveyed to said John G. Schafer. Through mesne conveyances Margaret Daly acquired the title held by said John G. Schafer in the lands described in the bill.

The defendant Daly alleges adverse possession.

The facts in this ease bring it clearly within the law as set forth in Keneaster v. Erb, 83 N. J. Eq. 625, in which the court cited Foulke v. Bond, 41 N. J. Law 527, 540, by the court of errors and appeals.

Paraphrasing the language of Chief-Justice Guarniere in Keneaster v. Erb, supra, had the complainant sought partition of all the tracts described in the deed, George W. Schafer et ux. et al. to John G. Schafer, under the conditions exhibited in the present case, such partition would have been directed (if the statute of limitations did not prevent) upon equitable terms.

It is apparent that the legal title to the lands in question is an issue in this suit, and this court will retain the bill to allow the title to be settled in an action at law.


author: Backes, V. C.

text:
    Frank Antonsanti, complainant, v. John Van Brunt and Amanda Van Brunt, defendants.
    [Decided February 6th, 1928.]

      Mr. William E. Sewell, for the complainant.

      Mr. Albert W. Harris, for the defendants.
   Backes, V. C.

The complainant bought and paid for two properties in Jersey City and took title in his wife’s name, at her request, and on her promise that she would make a will devising them to him for life remainder to his children by a former marriage. The wife died without making a will and the husband’s bill is against her parents, who succeeded, to the estate, to enforce the promise. The facts are satisfactorily established.

Aside from contending that the proofs do not support this finding, the defendants contend that the oral promise of the wife was unenforcible because of the statute of frauds. The promise was upon a valuable consideration paid by the husband ; he has performed his part of the bargain, and the statute is not available to bar relief. Johnson v. Hubbel, 10 N. J. Eq. 332; Duvale v. Duvale, 54 N. J. Eq. 581; affirmed, 56 N. J. Eq. 375.

There will be a decree.

The children are not parties to the suit. They will have to be brought in.


text:
    Francesco D’Annunzio et al., complainants, v. George D’Annunzio et al., defendants.
    [Decided February 6th, 1928.]

      Mr. Felix Forlenza, for the complainants.

      Mr. Merritt Lane, for the defendants.
   Backes, V. C.

This case was decided at the conclusion of the hearing, but counsel asked leave to submit briefs. Nothing is disclosed by them to change the views then entertaind. The case is the not uncommon one of a son taking advantage of his aged parents. The son and his sister lived with their parents. The son married and brought in his wife. A month later the parents executed a deed to the son and his wife for their home, a two-family house. The stated consideration is one dollar. At the same time the son and his wife executed a lease to the parents for life for the apartment they were then occupying. The son also procured his parents to sign a deed for some land in Italy. He also helped himself to his parents’ eight thousand lires in Italian bonds. This was all the old folks had and they were completely stripped. The title to the home stood in the name of the father and he was infirm. He had then recently suffered a stroke. He died after the filing of the bill. The son, between tears, admitted on the stand that he had duped his parents, and he involved his wife. She denied complicity, and her word is preferable to his. He had, at the time of the trial, separated from her, was resisting her suit for support, and his 'admissions of perfidy were not so much in a spirit of penitence and a desire to make restitution as they were to vent his wrath on her. It appears from his confession, and the mother’s testimony, that the son led his parents to believe that the deed for the home was a lease to the son and his wife for one of the apartments, so that they would be near by; and there was something indefinite about their supporting the parents. There is nothing in writing assuming that obligation, nor anything substantial to assure performance;

It is claimed that the parents were alive to what was being done to them. The mother denies it. The son owns up to his duplicity. The wife, who is defending, produced the lawyer hired by the husband to draw the deed and lease and before whom they were executed. He testifiéd that he explained the papers to the parents, and that the father upon the first visit protested and left, saying that they did not carry out his understanding of the arrangement, but that he came later and signed. If, by the lawyer’s statement, that he fully explained the documents to the aged couple, and that they signed the deed understandingly, it is intended to establish independent advice under the decision in Slack v. Rees, 66 N. J. Eq. 447, it falls far short of the rule. The improvidence of the parents, the probable consequence to them, that they were pauperizing themselves, was not explained. Reeves v. White, 84 N. J. Eq. 661.

The complainants are entitled to a decree for actual fraud, and also because the parents were aged and infirm; there was a relation of trust and confidence; the act was improvident, and they did not understandingly convey upon independent advice.

The deed for the property in Italy is not recorded. It will be ordered canceled. This was obtained by the same fraudulent methods. The signature of the mother was obtained, without her knowledge, by her son playing on her vanity to write her name, so the son confesses.


author: Ingersoll, V. C., orally.

text:
    Juanita May Jacoby, petitioner, v. Anthony Jacoby, defendant.
    [Decided February 9th, 1928.]

      Mr. William I. Garrison, for the petitioner.

      Mr. William Elmer Brown, Jr., for the defendant.
   Ingersoll, V. C., orally.

This is the most astounding case that has ever been before me. We start out with a premise in the very beginning that I am bound to find that the petitioner and her mother are endeavoring to deceive the court as to the time of the marriage. The fact that they have failed, without explanation, to produce their marriage certificate, the fact that although from November, 1926, they must have been informed by the pleading in this case, that the defendant insists that he was married in 1925, they took no steps to prove otherwise.

Now, the rule of law is clear that if a person can produce something which will testify in their favor or be proof in their favor — when they fail to do it that the presumption is that it would be against their testimony. There cannot be any doubt in my mind, from the testimony that is produced, that the petitioner and her mother have willfully — I will perhaps qualify that a little and limit the present statement to the petitioner' — endeavored to deceive this court. I cannot help but believe that the mother also knew the true date of this marriage.

Now, if that is true, all' of their testimony must be received and considered by the court with a good deal of anxious consideration. If, in view of the notice given, they still persist in making a statement, which, under the circumstances, I must believe is erroneous, their entire testimony must bear the taint of the apparent willful deceit. It is perfectly natural that if this marriage occurred in 1925, apd that the child was born so shortly thereafter — I repeat it is perfectly natural for the young woman and for her mother and for her husband to attempt to deceive the world and show that the child was the result of relations during marriage — but that natural inclination cannot gcso far as to justify falsehoods upon the witness-stand under oath. There is the situation so far as their testimony is concerned.

It is also astounding for a mother to expect a son-in-law and a daughter of the apparent normal condition of these young people, and of their age and constitution, to expect that a normal happy marriage should result, with the husband not having an opportunity and access to the bed of the wife, and he certainly could not have the access to her bed while she slept with the mother. Of course, by access I do not mean'that they were prevented entirely from the marriage relations, but the natural relations could not exist.

The situations on the other side are just as susceptible to wonderment. Can it be believed that a young man living separate and apart from his wife, and. a young woman living separate and apart from her husband, both of whom have knowledge that the wife of the husband is objecting to their apparent friendship — I repeat, can it be believed that the couple’s relations are truly platonic under all the circumstances of the case?

One of the most astounding features in this entire case is the actions of Mr. and Mrs. Cressman, who, knowing that there is at least some question as to the relations between Jacoby and their sister, both of whom are living apart from their spouses, take Jacoby as a boarder in their apartment. They have a bedroom, which is separated from the rest of the house by doors in a doorway of that room. They put Jacoby on a davenport in a room which has nothing but a curtain between that room and the bedroom of the sister, and it is to be noted that the bed, as the davenport becomes a bed when drawn out, extends to the curtain, practically in the same room. They are in a secluded room — the husband and wife are in a secluded room — but this young man and this young girl, whose relations are at least being" discussed, are put out there practically in one room, with nothing but a curtain between — and the foot of the davenport with no bootboard, practically reaching to the curtain. Whether illicit relations occurred or not, I am not now prepared to say, but could .a brother-in-law and a sister put greater temptation between a couple than was done in this case — two young normal people, living separate and apart from their spouses ? It is almost inconceivable that a couple would place such temptation before young people of this sort. Now, it may be that the testimony will show that their relations were so thoroughly platonic, so thoroughly proper, that these matters were not even thought of. That, however, in the history of life we are all compelled to take notice of the fact does not usually exist.

I have not yet referred to what — to me — is the most astounding feature of the entire matter, now speaking more particularly as to the witness-stand, and that is this man Wisler. Without any authority at' all, because he had no authority, he accompanies a constable, and he, Wisler, takes practically all of the activity, and I am convinced from the testimony of Mr. Reinberger that Mr. Wisler has deliberately committed perjury upon the witness-stand. I do not think there is any doubt about it. He says he found this couple under the covers with their arms around each other or “in his arms,” words to that effect. I do not believe it. I do not believe he saw it, and I think that he deliberately misstates the fact when he says he did, Mr. Reinberger did not confirm it and every other party in the case testifies otherwise. I am satisfied that adultery did not occur upon the night of this raid. If it did, I am bound to find Mr. and Mrs. Cressman so unworthy of the name of man and woman, if they would have a home of that sort and permit two couples to divide themselves up into illicit relations in that way under the circumstances, so unworthy to be considered, hardly civilized. Animals would hardly do a thing of that sort.

Therefore, the case comes to this: Is the testimony of the last witness sufficient to show desire on the part of this couple for illicit relations? I am very much inclined to believe that if it is, the incident of the arm around the girl would not be sufficient, and, if it did occur, the one kiss would not be sufficient to show, but there is room for consideration whether the entire actions of Jacoby — and how any man, of Mr. Jacoby’s apparent standing, appearance and all, could deliberately leave his own home and go to the home of a woman whom he knows his wife at least fears as being in his affection and take up his residence in the manner in which I have described — does it or does it not smack of honesty, or is it an evidence of utter disregard?

The manner of the parties can be considered from 'two standpoints — was it openly a brazen act on his part to show to his wife that he was interested in this other woman and did not care who knew it, or was it a public, open act of a man who knew he was innocent and who did not think of the seriousness of the result of such things, and who felt that, as long as he was innocent of guilt, he had a right to do much as he pleased? Those are matters for consideration, gentlemen.

Now, so far as the main case is concerned, I have expressed to you my feelings and the points which are in question in my mind.

I do not think that the cross-petition is now subject to consideration. The time during the pendency of a Iona fide suit for divorce cannot be considered as a part of the time of desertion. This woman brings a petition for divorce upon the ground of adultery. The petition is cetrainly Iona fide. Certainly the time of the pendency of this suit cannot be taken as a part of the two years for desertion as charged in the cross-petition. Otherwise, no woman could, believing her husband guilty of adultery, withdraw herself from him and bring a suit for divorce without putting herself in the position, and during the entire time of that trial putting herself in the position of her bringing the petition, believing her husband guilty of adultery, and leave herself open to divorce. That I will, if necessary, file a memorandum on, but I simply give you that now, my views on this matter.

Now, I have amplified this proposition much more than I usually do, perhaps much more than ordinarily proper, but this case is so filled with apparent unreasonable things, apparent extraordinary features, that I feel that you should know the position the court finds itself in at the present time.

As I have stated in other cases, this does not in any way say to you that my mind is fixed or set upon any point, I will be very glad to hear you, but I simply give you my view to save arguing points upon which either of you may have agreed with me upon.

THIS MEMORANDUM IS CONCLUDED AFTER HEARING ARGUMENT.

While the conduct of all parties was so unusual and the opposite of that which makes for a happy married life, I am convinced that adultery was not committed upon the night of the raid, and while the defendant and the co-respondent probably had opportunity to commit the crime, I am very loath to find that they actually did so. If we exclude the fact of their living in the same house (upon which I have already commented), and the lack of probative force of the testimony of the petitioner and her mother (of which I have also commented), the only testimony concerning “desire” is that of Miss Duffiéld, who on direct testimony said upon one occasion she saw these parties sitting in an automobile “with his arm around her” (the witness declined to call it hugging), and on cross-examination said that on the same occasion she saw him kiss her.

The air surrounding this case, and the fact that the petitioner was willing to depend upon the testimony of the detective, which testimony is so clearly false, and could have been so demonstrated before the trial, the conduct of the petitioner and her mother during the period of the marriage, the manner and conduct of the several witnesses upon the stand, convince me that a decree for divorce should be refused.

The petition, as well as the cross-petition, will be dismissed.