text:
    FLORENCE M. LECHNER AND FRANK LECHNER, Sr., PLAINTIFFS, v. C. LEWIS LAVINE, DEFENDANT.
    Decided November 4, 1929.
    Before Justices Trenchard, Balisch and Lloyd.
    Eor the rule, James Mercer Davis.

      Contra, Joseph Lanigan.

   Per Curiam.

The plaintiffs, husband and wife, obtained a verdict in the Mercer Circuit, against the defendant, namely, for $1,000 in favor of the female plaintiff as compensation for injuries sustained by her, and $200 in favor of her husband, for medical expenses incurred, and loss of consortium, by reason of his wife’s injuries.

The female plaintiff, on the 10th of October, 1926, was a passenger riding on a trolley car in Trenton, which car was proceeding toward the center of that city. The defendant, by its servant, was operating an automobile truck, and was engaged in backing it out of and on a private driveway of the Westingliouse plant on Pennington avenue.

It was a long-bodied truck, and therefore it was within the knowledge of its operator, that when the truck was backed to its full length, it would extend across the tracks of the trolley company, upon which the trolley car was being propelled.

At the time of the happening of the accident it was near dusk, and there was a collision between an oncoming trolley car and the truck, in that the trolley ear ran into the side of the truck, whereby the female plaintiff, who was a passenger on the car was injured.

One of the factual questions presented by the evidence for the jury to decide was, whether the driver of the truck, in the exercise of reasonable Care, could have avoided the collision. If he could have done so, it is wholly immaterial whether the driver of the trolley car was also negligent and contributed to bringing about the collision.

Erom a careful reading of the testimony, we cannot say that the jury were not warranted in finding that the driver of the truck could, in the exercise of reasonable care, have avoided the collision.

The verdict is not so clearly against the weight of the evidence that it can be properly said to have been the product of mistake, partiality, prejudice or passion on part of the jury.

The rule to show cause is discharged, with costs.


source: Caselaw Access Project

author: Pee Cubiam.

license: Public Domain

text:
    HARRY S. STORMS, PLAINTIFF, v. PHEBE J. CORWIN, DEFENDANT.
    Decided November 4, 1929.
    Before Gummeke, Chief Justice, and Justice Pakkeb.
    Eor the rule, Elmer King.

    Conlra, William H. Parry.

   Pee Cubiam.

The plaintiff, when he was a boy about fourteen years of age, was taken by the defendant and her husband from a children’s home in Jersey City to the defendant’s farm at Kenvil, New Jersey. He did work around the house and upon the farm during his minoritj’, and after reaching his majority, which was in the year 1906, he continued to live at the defendant’s home and to perform work in the house and on the farm until the month of April in the year 1926. This he did upon the strength of a promise made by defendant to him that she would provide for him as long as he lived, would furnish him with a home and compensate him otherwise for his services. She did pay him certain sums of money at different periods between the years 1906 and 1926, totaling something like $100 a year. In April of the latter year the defendant and her husband having had a falling out, she ordered both him and also the plaintiff to leave .the farm. In compliance with this notification the plaintiff left, and as she refused to pay him a reasonable compensation for his services from the time he reached his majority until the time he was ordered to leave the farm, he brought the present suit. The trial resulted in a verdict in his favor and we are now asked to set that verdict aside for three different reasons.

The first ground urged by the defendant for making the present rule absolute is that even if it be assumed that the promise alleged by the plaintiff was in fact made and was broken subsequently by the defendant when she ordered him off the farm, there is nevertheless no legal justification for the present verdict, which is founded upon a quantum meruit and not based upon the breach of an express contract; and the basis of this contention is that the right to recover, if it exists, is for the breach of the contract and that an action for such breach cannot be instituted until the time for the performance of the contract has entirely passed. In our opinion there is nothing of merit in this contention. The expulsion of the plaintiff from the defendant’s home and farm was a renunciation by her of her contract with him and it is entirely settled by our decisions that a person may bring an action to recover compensation for services rendered where the other party to the contract has renounced it and has communicated this renunciation to the plaintiff, although the day for the performance of the contract has not arrived. O’Neill v. Supreme Council American Legion of Honor, 70 N. J. L. 410; Holt v. United Security, &c., Co., 74 Id. 795.

The next ground upon which we are asked to set the verdict aside is based upon the assertion that it includes the value of services rendered by the plaintiff to the defendant’s husband. We find nothing in the case to justify this assertion. On the contrary, the charge of the court limited the compensation of the plaintiff to services rendered to the defendant and excluded any right to compensation from her for work done by the plaintiff for her husband.

It is further contended that the verdict is erroneous for the reason that the plaintiff was not discharged from the defendant’s service. The fact, however, is otherwise. The proofs show that a written notice was served upon the plaintiff on the 17th of April, 1926, by the direction of the defendant, which contained the following provisions: “You are hereby required to remove from the premises (i. e., the farm), on or before the 22d of April, 1926; and on your failure to do so such proceedings will be taken against you as 1 may be advised.”

We conclude that the grounds upon which we are asked to set aside this verdict are without merit and that the rule to show cause should be discharged.


author: Per Curiam.

text:
    KATIE ANDES, PLAINTIFF, v. CHARLES W. MASON, DEFENDANT.
    Decided November 4, 1929.
    Before Gummere, Ciiiee Justice, and Justices Parker and Bodine.
    Eor the rule, McCarter & English.

      Contra, Amos M. Wain.

   Per Curiam.

The plaintiff brought suit to recover compensation for injuries received by her in a collision which occurred between her car, which she was driving, and the car of the defendant. The trial resulted in an award in her favor in the sum of $8,500.

The first ground upon which we are asked to make this rule absolute is that the finding of the jury that the accident resulted solely through the carelessness of the defendant is contrary to the clear weight of evidence. Our examination -of the proofs satisfies us that this contention is not substantial.

It is further contended that the award of $8,500 is excessive. We think it is plainly so. If plaintiff will consent to a reduction of the verdict to the sum of $5,000, the rule to show cause will he discharged; otherwise, it will be made absolute.


text:
    ESTELLA M. WULFF, RESPONDENT, v. ATLANTIC CITY RAILROAD COMPANY, APPELLANT.
    Decided November 4, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the appellant, Floyd H. Bradley.

    Eor the respondent, George D. Rothermel.

   Per Curiam.

The plaintiff sued to recover compensation for the injuries sustained by her and for damage done to her automobile re-suiting from a collision between her automobile and a freight car of the defendant company on an evening in December, 1926. The accident occurred where Atlantic avenue, along which she was driving, crossed the railroad tracks of the defendant company. Her claim was that as she approached the crossing she looked both ways along the railroad tracks and observed nothing approaching from either direction, nor anything standing at the crossing; that she made this observation after stopping near the tracks, having observed that two buses coming in the opposite direction had also stopped. After the buses had proceeded across the tracks she then started over herself and, according to her story, came into collision with a box car of the defendant company which she failed to observe until the actual moment of collision. The defendant company admitted the accident but claimed that the car into which she ran was stationary at the time of the accident. The trial of the case resulted in a verdict in favor of the plaintiff and the appeal is taken from the judgment entered thereon.

In our opinion, the finding of the jury, which was predicated upon the negligence of the railroad company, is entirely without proof to support it. No one testified that the box car was moving at the time of the accident; in fact, the plaintiff herself testified that immediately after the collision she got out of her car and found the box car standing on the crossing. If the car was not in motion at the time of the accident then the collision was not the result of any dereliction of duty on the part of the railroad company, for it had a right to stop this car on the crossing and was under no obligation to give warning of its presence. It was so held in the case of Jacobson v. New York, Susquehanna and Western Railroad Co., 87 N. J. L. 378.

There was a motion to nonsuit based upon the theory that the presence of the standing car at this crossing was no ground for imputing negligence to the company. In our opinion, this motion should have been granted.

The judgment under review will be reversed.


author: Pee Ctjeiam.

text:
    MARIE SCHREIBER, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF CARL SCHREIBER, DECEASED, PLAINTIFF, v. MILFORD GOULD, HEZEKIAH JORDON, HOWARD H. JOHNSON, PETER QUIST, RALPH E. BRADY AND ROBERT CARRINGTON, DEFENDANTS.
    Decided November 4, 1929.
    Before Justices Teenohaed, Kalisch and Lloyd.
    Eor the rule, William George.

      Gontra, Edward Stover.

   Pee Ctjeiam.

This is an application to open a judgment entered in the Supreme Court on a default verdict of a jury, in the Hudson Circuit for $7,500 in favor of the plaintiff, against the defendants. The action, which resulted in the verdict and judgment was one of tort. The cause of action arose in Atlantic City.

On May 30th, 1927, the plaintiff’s decedent, while crossing a public highway was run into and fatally injured by an automobile operated by Milford Gould. A rule to show cause was allowed by Mr. Justice Minturn why the judgment should not be set aside and a new trial granted to the defendant Jordon. Jordon is a colored man, and a police officer—or was a police officer at the time the accident happened—he being a member of the Atlantic City police force.

At the time of the occurrence of the accident which resulted in the death of the plaintiff’s decedent, testimony taken under the rule, tends to show that Jordon was in the discharge of a public duty, and his insistence is, that he was in nowise concerned with the operation of an automobile which struck the plaintiff’s decedent, and caused the latter’s death.

There seems to have been some misunderstanding between Jordon’s counsel who lived in Atlantic City, and counsel employed by the latter, to represent Jordon in Jersey City, as to the date of trial, which resulted in a default verdict, and as a result, Jordon claims that without any fault of his own, he has never been afforded a day in court, to give his version of how the accident happened, and to exculpate himself from liability to respond in damages to the plaintiff.

We think, however, there is some fault attributable to the Jersey City counsel, who was entrusted to give timely notice as to when the cause was to come on for trial, and we also think under all the circumstances in the case, that the judgment should be opened for the purpose of permitting the defendant Jordon to put in his defense upon a retrial of the cause, but that the judgment shall remain a lien upon the lands, goods and chattels of the defendant Jordon, and subject to such judgment as shall be obtained upon such retrial; that the case be put upon the calendar, and a day set for trial, subject to the convenience of the plaintiff, and that the defendant Jordon pay all costs incurred by the plaintiff, which are the direct result of opening the default, and a granting of a new trial.


text:
    JOSEPH PICCALO, PLAINTIFF-APPELLEE, v. FRANK CARBONELLI, DEFENDANT-APPELLANT.
    Decided November 4, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    Eor the appellant, Charles G. Carluccio■ (J ohn W. 0 clef or d, of counsel).
    Eor the appellee, Armstrong & Mullen (Arthur C. Mullen of counsel).
   Per Curiam.

This appeal comes before us on an agreed state of the ease between counsel of respective parties. There was a judgment in favor of the plaintiff below, against the defendant below, for the sum of $350. The state of the case is very voluminous. Counsel of appellant, in his brief, says: “The action was for personal injury and property damage, and arose out of an automobile accident.”

“There was a counter-claim, which however is not involved in this appeal.”

“The trial judge found as a fact that the defendant was negligent, and that the plaintiff was not guilty of contributory negligence, and appellant cannot question such finding on this appeal.”

“The court gave judgment for $350, and appellant contends that this is error, because: ‘(a) The evidence does not support an amount as large as this, (b) The true measure of damages was not applied, (c) There was no legal evidence to establish the value of the damaged property.’ ”

The grounds stated are the only grounds relied upon by appellant for a reversal of the judgment.

These three grounds are wholly without merit, for, according to the state of the case, agreed upon between the attorneys of the respective litigants, it was stipulated as follows:

“The plaintiff, Joseph Piccalo, was called as a witness in his own behalf and testified that he was the owner of a Reo ton and a quarter truck. That he is engaged in the retail butcher, poultry and produce business, at No. 384 Cliff street, Eairview, New Jersey, where he has been in business approximately seven years. That on the day upon which the accident occurred, he had gone in his usual manner, in the early morning, to the public market in New York, to purchase his load of meat, poultry, vegetables and fruit for that day. That he had purchased a full load of said supplies at the current market price in New York, and that the total cost of the load, including all the meat and produce, was $350, which load he was transporting from New York to his place of business, where he intended to sell, at retail, the load he was carrying. That he makes a similar trip nearly every day in the week for the same purpose.”

On the day of the accident he was operating the said motor truck with a full load, when his truck was struck by the appellant’s truck, and as a result of the collision, the truck of the plaintiff-appellee was tipped over, causing the load to slide from the truck, the greater portion going over the railing, down into the water, and the meats, which were on the bottom of the load, strewn on the street, dirty and made unfit to eat and worthless to the plaintiff. That the plaintiff did not recover any part of said load.”

The appellant’s grounds of appeal being limited solely to the question of damages, it is quite manifest from the foregoing recitation of facts, that the trial judge was warranted in finding that the plaintiff-appellee was the owner of the property, and said property was totally destroyed, and its value was $350. Therefore, it is quite clear that there is no merit in appellant’s appeal on any of the grounds relied on.

Judgment is affirmed, with costs.


text:
    SIGMUND HEITLER, INDIVIDUALLY AND AS NEXT FRIEND OF LEON HEITLER, AND BETTY HEITLER, PLAINTIFFS, v. IRVING T. FARR, DEFENDANT.
    Decided November 4, 1929.
    Before Justices Trenchard, Kalisoh and Lloyd.
    For the rule, Alexander Simpson.

      Contra, Autemrieth, Gannon & Wortendyhe (Beynier J. Wortendyhe, Jr., of counsel).
   Per Curiam.

There was a verdict in this case, in the Hudson Circuit, in favor of the infant plaintiff, and against the defendant for the sum of $1,501. The father who sued for loss of service, in the same action, obtained a verdict of $500, and his mother appears to have also recovered a verdict of one dollar.

The controversy arose out of an automobile accident, in which the infant plaintiff sustained a skull fracture and other serious and permanent injuries.

It is practically conceded in brief of counsel of defendant, that if there was liability, the damages awarded to the plaintiffs are wholly inadequate.

From a reading of the testimony, we have reached the conclusion that the verdicts are inadequate and require a new trial, but that the new trial shall not be limited to the measure of damages only, but shall be on all the issues involved in the case.

Rule made absolute.


text:
    PATRICK BARRES v. FRANK NOTTE.
    Decided November 4, 1929.
    Before G-ummere, Chief Justice, and Justices Parker and Bodine.
    For the rule, Gaetano M. Belfatto.

      Contra, Louis J. Beers.

   Per Curiam.

The plaintiff in this case is a real estate broker who had a written contract signed by the defendant, authorizing him to sell certain premises belonging to the latter, located in the city of Newark, the purchase price to be $25,000, the defendant agreeing to pay the plaintiff a commission of three and a half per cent, on, such purchase price. The present suit is based upon a refusal of the defendant to pay this commission, although the plaintiff, as he alleged, had fully performed his part of the contract. The trial resulted in a verdict in favor of the plaintiff and the defendant has appealed from the judgment entered thereon.

The first ground of reversal argued by counsel is that the court committed error in its rulings upon certain testimony offered in the case. No such rulings, however, are stated as grounds of appeal, and consequently they are not entitled to be considered. The next contention is that the court should have nonsuited the plaintiff because of the fact that his authority to make a sale of the defendant’s property was revoked before he produced a purchaser for it. This, however, was a disputed question of fact and the court therefore properly left it to the jury for determination. The next ground of reversal is that the purchaser produced by the plaintiff was not financially able to buy the defendant’s property. This was also a disputed question of fact, and the trial court therefore was entirely justified in refusing to nonsuit upon this ground and leaving the question to be determined by the jury. - Lastly, it is argued that in order to entitle a broker to recover commissions there must actually be a conveyance by the owner to the purchaser, or a binding contract between the latter and the owner which could be enforced by the owner, and that the court should have nonsuited upon this ground, no binding contract having been made by the owner with the purchaser produced by the plaintiff. The proofs submitted on the part of the latter, however, showed that the failure to make the contract was due solely to the refusal of the defendant to enter into it with the intending purchaser. 'The jury by its verdict found that this was the situation, and so finding, a failure to execute the contract was no bar to the right of the plaintiff to recover his commission. It has frequently been held by our courts that an intending vendor cannot defeat the right of the broker to recover his commission by refusing to convey to a purchaser produced by the broker and who is able and willing to pay the purchase price and accept a conveyance.

Our conclusion is that the judgment under review should be affirmed.


text:
    DOMINICK IOCOBELLI, PLAINTIFF-APPELLEE, v. NIAGARA FIRE INSURANCE COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Decided November 4, 1929.
    Before Justices Teen chard, Kalisch and Lloyd.
    Eor the appellant, Milton M. Unger (Leonard J. Emmergliclc, of counsel).
    Eor the respondent, Harry B. Binslty (Samuel Wollman, of counsel).
   Per Curiam.

The facts, as developed by the testimony taken in the cause, before the judge of the District Court sitting without a jury, are, in substance, as follows: The plaintiff-appellee was the owner of an automobile. On March 4th, 1928, the appellant’s son, with the consent of his father, drove the automobile to his sister’s house at No. 123 Park avenue, Newark. This was about eleven-thirty o’clock in the morning. He parked the car on the right-hand side of the street in front of his sister’s house, and locked it, and at the time observed another car parked in front of it, at a distance of twenty or twenty-five feet away.

At about one o’clock he left his sister’s house, and discovered the car was not where he had left it, and upon investigation, found it two blocks away, on the left-hand side of the street, smashed against a tree.

Before he entered his sister’s house he locked the ear. Upon examination of the car he discovered blood on top of the radiator, and “the outside door was forced out,” and that “the lock was forced out, and the other lock on the car was locked.” It further appeared, that the lock of the right door of the car had been tampered with.

The plaintiff-appellee had a policy of insurance in the appellant-company, in which the automobile in question was insured among other things, against damage, by reason of theft, robbery and pilferage.

The appellant, denying its liability; the plaintiff-appellee brought an action against it in the said District Court, to recover compensation for the. damage done to the automobile, which action resulted in a judgment for the plaintiff-appellee, against the defendant company, for the sum of $500 with costs.

There was a motion for a nonsuit and a motion for a finding for the appellant, upon the ground that there was no proof of larceny committed, and hence, the damage sustained by the car was not the result of any theft.

The trial judge overruled both motions. This judicial action was proper, since it is manifest from the facts in the case that the car had been removed by someone from the place where it had been parked; that the lock of the door had been tampered with, and .these circumstances by themselves give rise to a reasonable inference that a theft was being perpetrated, but was frustrated by the car coming in contact with a tree or pole.

Judgment is affirmed, with costs.


author: Pbb Cueiam.

text:
    ATLANTIC CITY RAILROAD COMPANY, PLAINTIFF-APPELLANT, v. MICHAEL PACKMAN AND SAMUEL PACKMAN, TRADING AS PACKMAN BROTHERS, DEFENDANT-APPELLEES.
    Decided November 4, 1929.
    Before Justices Teenchaed, Kalisch and Lloyd.
    Eor the appellant, Thompson & Hanstein.

    Eor the appellees, Endicoit & Endicott.

   Pbb Cueiam.

An action was brought by the Atlantic City Railroad Company, in the Atlantic City District Court, to recover from the defendants, the difference in freight charges on a certain shipment of canned goods on car No. 96757, on October 7th, 1925, from Goldsborough, Maryland, to Atlantic City, Now J ersey.

The conceded facts are, that it was an interstate shipment, and that the rules of the interstate commerce commission apply; that the appellant railroad company collected the freight at Atlantic City in the sum of $132.60, which was based on an inaccurate rate. It was further conceded that the rate which the company should have charged was forty and one-half cents per hundred on fifty-two thousand pounds, and according to that rate, would have amounted to $210.60.

The appellant company therefore claimed the difference of $78 in freight charges.

It is conceded that a counter-claim filed by the defendantsappellees for losses sustained by them on previous shipments, over plaintiff-appellant’s lines at the replacement value of the damaged items, in Atlantic City, is $21.21, and the replacement value in wholesale quantities is $16.74.

The trial judge nonsuited the appellant on its claim and gave judgment for the defendants on their counter-claim. It is conceded that a mistake was made by the railroad company in the statement of its freight charges. But even if that were not so, the material facts of this case are like unto those facts dealt with in West Jersey and Seashore Railroad Co. v. Lake & Risley Co., 7 N. J. Adv. R. 517, decided by this court. The headnote reads: “Where it was ascertained, after consignees of freight accepted merchandise and paid full amount of transportation charges, then stated to be due, and signed delivery receipts, that amount paid was less than schedule of rates established and posted with interstate commerce commission, nonsuit of action by carrier to recover small balances due, based upon act congress February 4th, 1887 (49 U. S. G. A., § 1 et seq.), known as Interstate Commerce act and its amendments, held, error where shipment was interstate, the act prohibiting departure from tariff rates filed.” This case is controlling.

Judgment is reversed, with costs.


author: Pee Cukiam.

text:
    JAMES TINSMAN AND HANNAH TINSMAN, PLAINTIFFS, v. ETHAN P. WESCOTT, DEFENDANT.
    Decided November 4, 1929.

      Before Gumaleee, Chiee Justice, and Justice Paeicek.
    For the rule, Harvey F. Carr.

    Contra, Maurice A. Potter.

   Pee Cukiam.

The plaintiffs base their right of recovery upon the averment contained in the complaint that they were induced to loan $10,000 to one Benjamin, a representative of the American Fuel Company, who was introduced to them by the defendant, a member of the bar of this state, and who had previously acted as plaintiffs’ counsel in other matters, by reason of the defendant’s representation to them that this fuel company was an operating company with coal mines in Webster county, West Virginia; that it was perfectly solvent; that it was a going concern; and that if he himself had any money to invest, he would gladly make this loan to the company; that this statement by the defendant was knowingly false; that at the time it was made this fuel company, to his knowledge, did not own any mines in Webster county, West Virginia, and that it was not solvent. The complainants further allege that the moneys loaned were never repaid, and they seek to recover the amount of their loss from the defendant. The latter answered the complaint denying the making o£ any such representations as were set out in the complaint. The case went to trial and resulted in a verdict in favor of the plaintiffs. The defendant thereupon applied to the trial court for the present rule and it was granted.

The first ground urged before us for setting aside the verdict is that it is contrary to the great preponderance of the evidence. The argument in support of this contention is that the verdict was necessarily based upon a finding that the plaintiffs were induced to make the loan to Benjamin by reason of the false representations made to them by the defendant with relation to the financial status of the American Euel Company; that the representations were made for the purpose of such an inducement; and that the defendant knew when he made them that they were false. Counsel argued that the evidence in the case did not warrant the jury in making any such finding. Our examination of the testimony sent up with the rule to show cause leads us to the conclusion that the ^jury were justified in so finding.

The next contention is that the verdict ought to he set aside because this suit was brought by the plaintiffs in the alternative, whereas the jury made a finding in their favor jointly. We think there is no merit in this ground for setting aside the verdict. While it is true that the several counts in the complaint aver a right of recovery in the alternative, yet the averments contained in each count show a joint cause of action, and the proofs submitted show that the loan was made with moneys jointly deposited by these two plaintiffs and drawn out of the bank where the deposit had been made for the purpose of consummating this loan. The mistake of counsel in averring a right of recovery in the alternative when the facts recited in the pleading and proved a,t the trial show a joint right of recovery, affords no ground for granting a new trial. The twenty-seventh section of our Revised Practice act of 1912 (Pamph. L.} p. 382) declares that no new trial shall be granted for error as to matter of pleading unless after examination of the whole case it shall appear that the error injuriously affected the substantial rights of a party. The case as submitted to us is barren of any facts which will support the conclusion that the defendant sustained any injury to his rights by the rendition of a verdict in favor of the two plaintiffs jointly.

It is further argued that the verdict should be set aside because the trial judge in charging the jury stated as a settled fact that the defendant participated knowingly in the fraudulent scheme to obtain this loan from the plaintiffs. A reading of what was said by the judge upon this matter, however, shows clearly, we think, that he left to the jury the determination of this fact; namely, that the defendant participated knowingly in the -“heme to defraud the plaintiff, and that the court did not undertake to deprive the jury of its right to determine whether or not such fact had been proved.

It is next contended that the verdict should be set aside because the trial court, in refusing to charge a request submitted by the defendant, stated that there was evidence in the case contradictory of the facts contained in the request. Why this statement should be considered a ground for setting aside the verdict we are not able to understand even after the attempted explanation relating to this point by counsel for the defendant.

The only other ground for reversal is directed at an alleged error of the trial court in admitting testimony offered by the plaintiff over the objection of the defendant. It is enough to say in disposing of this matter that the testimony was competent and that consequently the refusal to exclude it was proper.

On the whole case we conclude that the rule to show cause should be discharged.


text:
    ANTHONY REMBISZ v. CLARENCE CROSS ET AL.
    Decided November 4, 1929.
    Before Gummebe, Chief Justice, and Justices Pabkee and Bodine.
    Eor the rule, Wayne Dumont and William V. Bosenkrans.

    Contra, Feeler & Binzler.

   Per Curiam.

The plaintiff, while riding on his motorcycle on Broad street in the borough of Clifton, was injured in a collision between it and the defendants’ car which was traveling in the opposite direction. He brought suit to recover compensation for the injuries received in the collision and the jury awarded him $12,500;

The first ground upon which we are asked to make the present rule absolute is that the finding of the jury that the-collision was the result solely of the negligence of the driver of the defendants’ car was contrary to the clear weight of’ the testimony. Our examination of the proofs submitted leads us to the opposite conclusion.

It is further contended that the rule should be made absolute because the amount of damages assessed by the jury is excessive. It is large, but considering the expenses incurred by the plaintiff, his loss of wages, and the seriousness of his injuries, we cannot say that it was so clearly excessive as to justify us in setting it aside.

These are the only questions argued before us and we conclude that the rule to show cause should be discharged.


text:
    FRED CICCONE, PLAINTIFF-APPELLEE, v. JACOB CHESNER, DEFENDANT-APPELLANT.
    Decided November 4, 1929.

      Before Justices Tbezstchabd, Kalisch and Lloyd.
    Eor the appellant, Abraham Henig.

    For the appellee, Anthony F. Minisi.

   Per Curiam.

The defendant-appellant appeals to this court from a judgment entered in the District Court, for the plaintiff, against the former for $205. The case was tried before the court, sitting without a jury. The state of the case, settled by the court, is as follows:

“The action was in contract and to recover damages as alleged in the state of demand, $205 for the non-payment of rent for the months of January and February, 1928, for a store and four rooms in the rear thereof, and premises known as No. 421 Central avenue, city of Newark, county of Essex and State of New Jersey, in pursuance to a certain lease dated January 30th, 1923. The case was tried without a jury.”

“On part of the plaintiff the evidence was: The plaintiff was the owner of premises known as No. 421 Central avenue, in the city of Newark, county of Essex and State of New Jersey; that on January 30th, 1923, a written lease was entered into between the plaintiff and one Nathen Wagman for the lease of a store and four rooms in the rear of said store in the premises above mentioned. Said lease was assigned from time to time, and that on February 20th, 1926, the said lease was assigned to the defendant, Jacob Chesner, with the consent of the plaintiff. The defendant, on the last mentioned date, paid the rent of said premises to the plaintiff. On January 13th, 1925, a new condition of the lease was entered into, whereby the lessee agreed to pay the sum of one hundred ($100) dollars, for three years, up and until February 1st, 1928, and the sum of one hundred and five ($105) dollars per month on and after February 1st, 1928. That rent was paid at the time by the defendant, and at times by Harry Gross, the son-in-law of the defendant, but with the checks of the defendant. The son-in-law and daughter of the defendant occupied said premises, and the defendant was frequently about the premises, but did not live in the premises.”

“On or about January 1st, 1928, the premises were vacated, and remained vacant for the months of January and Eebruary, 1928.”

“On part of the "defendant the evidence was: That the lease was transferred to Harry Gross, son-in-law of the defendant, and a bill of sale of the business which had been purchased by the defendant was made by the defendant to his said son-in-law. The defendant denied the rent was paid with his checks. The son-in-law of the defendant testified he conducted the business at the above address, and that the lease was assigned to him by the father-in-law, and that he, the son-in-law, paid the rent with his own checks, and that the defendant did not have anything to do with the business conducted in said premises.”

“I found that as a fact that the rent was paid from time to time with the checks of the defendant, and that the assignment of the lease by the defendant to his son-in-law was not consented to by the plaintiff, and that the plaintiff had no knowledge of said assignment.”

On the facts as stated, judgment was given in favor of the plaintiff, against the defendant.

There are two grounds urged in the brief of counsel of appellant for a reversal of the judgment, neither of which seems to possess any merit.

The first point is, that the lease upon which plaintiff’s action was based, had been assigned by the defendant-lessee to his son-in-law, Harry Gross, and, therefore, the privity of estate and liability for rent under the lease, accruing thereafter ceased, insofar as the assignor is concerned. But this contention rests upon the assumption that there was an assignment, by the assignor, of the lease, to Gross, the son-in-law, with the consent of the assignor’s landlord, and the trial judge having found as a fact there was no such assignment, and no such consent, his finding on the factual question is not reviewable here, since such finding derives support from the testimony.

The only other point argued in appellant’s brief is, that the finding of the trial judge is against the weight of the evidence. This is not reviewable. As has been indicated, there is no merit in either contention of appellant’s counsel, and the judgment therefore is affirmed, with costs.


text:
    HENRY GRAUMANN v. HOWARD R. WARD.
    Decided November 4, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the rule, Joseph A. Como.

    Contra, Burton A. Qaskill.

   Per Curiam.

The plaintiff brought suit to recover compensation for injuries received by him in the collision of a truck in which he was riding, but which had been parked on the side of the highway, with the automobile of the defendant. The jury found a verdict in his favor, awarding him $5,500.

We are asked to set this verdict aside for several reasons, the first of which is that it was excessive. Our examination of the testimony leads us to the conclusion that although it is large, it is not so clearly excessive as to justify our interference with it.

The next contention is that the rule should be made absolute because of the refusal of the trial court to allow the hospital records of the plaintiff’s injuries to be admitted in evidence. Our examination' of the case, however, fails to disclose the existence of any such refusal. The hospital record was not offered in evidence and consequently there was no ruling on its admissibility.

It is further argued that there should be a new trial ordered because the court erred in allowing in evidence mortality tables generally used by life insurance companies. This contention is in the face of our decision in Camden and Atlantic Railroad Co. v. Williams, 61 N. J. L. 646, 649.

Lastly, it is contended that the trial court erred in refusing to charge a request of the defendant relating to the plaintiff’s profits from his farm. Our examination of the charge, however, satisfies us that this request was charged in effect so far as it was relevant.

Our conclusion is that the rule to show cause should be discharged.


author: Píse Cubiam.

text:
    ADELINE MANDEL ET AL., v. PUBLIC SERVICE TRANSPORTATION COMPANY.
    Decided November 4, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Bodine.

      Eor the rule, Henry H. Fryling.

    Contra, John J. Breslin, Jr.

   Píse Cubiam.

The plaintiff Mrs. Mandel brought suit to recover compensation for injuries received by her while alighting from a bus belonging to the defendant company and in which she was a passenger. Her husband joined to recover compensation for the expenses incurred by him by reason of his wife’s injuries and for the loss of her services and society. The jury found a verdict in favor of each of the plaintiffs and we are asked to set this verdict aside upon the ground that it is contrary to the weight of the evidence on the question of the defendant’s liability.

If the testimony submitted on the part of the plaintiffs was a true statement of the facts relating to the happening of the accident, the jury was entirely justified in its action; if the testimony submitted on the part of the defendant was true, no cause of action was proved against him. The jury saw the witnesses called by the respective parties and heard the testimony given by them. They believed the witnesses of the plaintiff and we cannot say that they were not warranted in doing so.

So, believing they were entirely justified in the verdict rendered, the rule to show cause will be discharged.


text:
    ANNA B. MALONE ET AL., RELATORS, v. MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Decided November 4, 1929.

      Before Gummere, Chief Justice, and Justice Parker.
    Eor the relators, Marie A. Sullivan.

    Eor the respondents, Frank J. Reardon and Mark Townsend, Jr.

   Per Curiam.

The relators, Anna B. Malone and Harry Goldowsky, by this proceeding seek to compel the municipality of Jersey City to issue to Goldowsky a permit for the erection of a forty-six family brick apartment house upon a plot of ground located on Jewett avenue, Jersey City, of which Mrs. Malone is the owner. The two relators entered into a contract for the sale of this plot of ground by Mrs. Malone to Goldowsky, and the latter subsequent to the execution of the contract applied for the permit to erect the apartment house. The application was denied upon the ground that a large majority of the property owners in the neighborhood had protested against the erection of such a building. The relators thereupon applied for and were allowed an alternative writ of mandamus to review the validity of this municipal action.

In our opinion the refusal to grant the permit was proper even if the reason upon which such refusal was based was not sound. As has already been stated, the applicant for the permit was not the owner of the land, but merely held a contract for its purchase. Normally no one but the owner or a person authorized by him to do so has a right to erect a building upon a plot of ground owned by the former. No such right vests in a person holding a contract for the purchase of the tract. He may default in the performance of his contract. So, too, the owner may for good cause refuse to perform it on his part. In order to entitle an applicant to the granting of a permit to erect a building upon the land of another, it is necessary for him to show that he had a present right to erect such a building on that land. This case is barren of any proof that such a right was conferred upon Goldowsky by Mrs. Malone; and such fundamental fact not having been shsown to exist, the refusal to grant the permit was proper.

The defendants are entitled to judgment upon the demurrer to their return.


author: Peb Cubiam.

text:
    EDWIN FARRELL v. HERBERT E. NELSON.
    Decided November 4, 1929.
    Before Gummebe, Chief Justice, and Justices Pabkeb and Bobine.
    Eor the rule, George F. Seymour, Jr.

      Conira, Edmund A. Hayes.

   Peb Cubiam.

The plaintiff, a boy six years old, while crossing a street in the town of Dunellen in front of the public school where he was a pupil, was struck by a taxicab belonging to the defendant and being driven by the latter’s employe. The suit was brought to recover compensation for the injuries received by the plaintiff. The trial resulted in a verdict in favor of the boy of $3,000. The defendant thereupon applied for a rule to show cause why this verdict should not be set aside and a new trial granted. As a result of the application the court granted the rule limiting, however, the grounds to be considered upon the return thereof to two points: First, whether or not the verdict was against the weight of the evidence; and second, whether or not it was excessive.

Counsel for the defendant contends before us that the verdict, which necessarily was based upon the ground that the accident was the result of the negligence of the driver of the defendant’s taxicab and was not contributed to by the plaintiff, was contrary to the weight of the evidence. Our examination of the testimony sent up with the rule satisfied us that we should not interfere with the verdict upon this ground.

The only other question before us for consideration under the limitation of the rule is whether the award was excessive. Our consideration of the testimony with relation to the injuries received by the plaintiff satisfies us that we ought not to interfere with the verdict upon the ground stated; that is, that it is clearly excessive.

The rule to show cause will be discharged.


text:
    BOROUGH OF CHATHAM, BOROUGH OF MADISON AND BOROUGH OF FLORHAM PARK AND BRAIDBURN REALTY CORPORATION, A CORPORATION, PROSECUTORS, v. BOARD OF CONSERVATION AND DEVELOPMENT AND CITY OF EAST ORANGE, RESPONDENTS.
    Submitted May term, 1929
    Decided November 7, 1929.

      Before Justices Tbenchabd, Lloyd and Case.
    Eor the prosecutors, Rilcer & RiTcer, Henry G. Pilch and Robert E. Burke.

    Eor the respondents, William A. Stevens and Walter 0. Ellis.

   Peb Cubiam.

A writ of certiorari was allowed in this case to review the action of the board of conservation and development in granting to the city of East Orange permission and authority to obtain an additional water supply for that city from land belonging to the Braidburn Realty Corporation, located in the borough of Elorham Park. Both the company and the borough are prosecutors of the writ.

It is claimed on behalf of the prosecutors that the application of the city was insufficient to confer jurisdiction on the board. The application is made by virtue of authority conferred by chapter 304, laws 1910, section 2, of: which forbids municipality appropriation by condemnation proceedings of lands or water without submission of the maps and plans to the commission and obtaining its approval. Section 3 provides that the application shall show the sources of the proposed supply, approximate location of the wells, their estimated capacity and an abstract of official reports relating to the same and the need for an added supply. It further provides that the commission shall by advertising in one or more newspapers published in the vicinity give notice of a public hearing at which all persons of the municipalities affected may be heard. It is contended that the application was faulty in that there was failure in all of these respects.

The sources of supply stated were the glacial deposits, the point of the proposed diversion being located siz hundred feet, plus or minus, from the Dickinson Well No. 1, belonging to the city of East Orange, located in Morris county, Elorham Park borough and directly across the Passaic river from the above mentioned well. The maps and plans accompanying the application corresponded therewith. In just'what respect insufficiency here appears we are at a loss to determine.

So with respect to the quantity which is estimated at two million to four million gallons daily. It is obviously impossible to measure with entire accuracy the quantity of water that may be obtained from underground sources and the statute requires but an estimate. This is we think adequately given.

So again with respect to the advertising effected by the board. Advertisments were placed in the Newark Evening News, published at Newark; in the East Orange Record, published at East Orange; in the Daily Record of Morris-town, published at Morristown. Morristown is the county seat of Morris county in which Elorham Park is located and the court will take judicial notice of the fact that it is within a distance of five miles from that borough. It is contended newspapers are published in Madison and Chatham, municipalities nearer in point of distance than Morristown. This contention seems to us unworthy of serious consideration., The statute must be given a reasonable interpretation, and as between local publications in minor towns a mile or two nearer the location of the wells and a publication in a newspaper at the county seat, it would be absurd to hold that for the purpose of the statute the selection of the latter was not in contemplation. The purpose of the statute is effective notice, and it is quite obvious that such notice would be more effectively given through the latter publication. It is sufficient for present purposes to say that we hold that the publication in the Morristown Record at least was in the vicinity of the proposed location of the well as required by the act. .

It is nezt contended that the proceedings of the board itself were faulty in failing to comply with the requirements of the act as to hearing and disposition. Evidence was taken as provided by the statute and a report prepared thereon and submitted to five of the eight members of the board. This report was signed by these five members and their action subsequently ratified and confirmed by the board as an entirety. We think these proceedings were sufficient to meet the requirements of the statute and that the conclusion of the board should not be disturbed fox this reason.

Finally it is contended that the approval of the board was not justified under the evidence in that it did not sufficiently appear that public necessity or reasonably anticipated use was established; that non-interference with other municipal supplies was not established; that non-injury to private interests was not established. The question for this court on review is to determine in the language of the statute the “reasonableness, legality and form” of the proceedings. Yoluminous testimony was taken on these various points and while it was not free from controversial proof, we are satisfied that the conclusion of the board thereon was justified.

The order of the board of conservation and development is affirmed.


text:
    JOHN J. HARRIS, TRADING AS JOHN J. HARRIS CONSTRUCTION COMPANY, PLAINTIFF, v. C. H. EARLE, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Submitted May term, 1929
    Decided November 7, 1929.
    Before Justices Tbenchakd, Lloyd and Case.

      Eor the rule, Higbee & Higbee.

    Gontra, Edward S. Sharpless.

   Per Curiam.

This is defendant’s rule for new trial based on reasons that the verdict is contrary to and inconsistent with the pleadings, that the verdict is contrary to and inconsistent with the judge’s charge, and that it is against the weight of the evidence.

The contention of the defendant on the first point is that while the complaint alleges one form of contract, the recovery was on another form. The action was to recover rental of a steam shovel belonging to the plaintiff, and for certain wage claims which had been assigned to the plaintiff. The complaint alleged that the rental of the shovel was for the period of one month with an option to extend it for a longer time, and that during the time the defendant was using the shovel it was agreed that the extended period should be for the two additional months.

The defense was a denial of the contract as set forth in the complaint and contended that the real contract was that the shovel should be paid for at the rate of $500 per month while actually used. The whole arrangement was oral. Plaintiff’s proof tended to show that there was initially a three months’ contract at $500 per month. This came in without objection. The judge submitted the question to the jury on that issue and the jury found a verdict for the plaintiff for $983.13. This award to the plaintiff was for practically the whole amount claimed.

The substantial ground of criticism being that the proofs differed from the complaint and the case having been tried on both sides without objection, with the evidence varying slightly from the allegations in the pleadings, the defendant has on this phase of the case no cause for complaint.

Our reading of the record convinces us that the verdict is neither contrary to the weight of the evidence nor to the charge of the court.

The rule for new trial will be discharged.


author: Peb Cebiam.

text:
    LOUIS SPRANZ, PLAINTIFF, v. CATERINA VILARDI AND RALPH CORBISILLO, TONY CORBISILLO, AND NICHOLAS CORBISILLO, TRADING AS CORBISILLO BROTHERS, DEFENDANTS.
    Submitted May term, 1929
    Decided November 7, 1929.
    Before Justices Tbenciiabd, Lloyd and Case.
    For the rule, Lewis B. Eastmead.

      Contra, Levenson, Comen & Levenson.

   Peb Cebiam.

This is defendant’s rule for a new trial based on the claim that the damages awarded ($1,250) are excessive. The action was to recover damages for injuries to plaintiff’s real property, No. 425 Twenty-fifth street, Guttenberg, caused, it was claimed, by the negligence of the defendants in exploding dynamite in excavation work on the adjoining premises. There was also a claim in the complaint for damages that the plaintiff suffered in his business in addition to the damage to the land and premises, but no evidence was adduced that the plaintiff suffered any injury in this regard. The proof as to the depreciation of the property was that it was $1,000. Evidence was also given to show that it cost $663 to make the necessary repairs. While there was some statement by the wife of the plaintiff that the crockery ware and pictures in the building were broken, they are not included in the complaint, nor is there any evidence from which the jury could infer their value.

We think therefore we are limited to the consideration of the proofs as.to damages to the building itself, and under these proofs the actual limit of injury shown is $1,000. If the plaintiff will accept this sum in satisfaction of the judgment the rule will be discharged; otherwise, it will be made absolute.


author: Pee Curiam.

text:
    KATHERINE E. WHALEN, RELATOR, v. PENSION COMMISSION OF THE POLICE AND FIREMEN’S DEPARTMENT OF ATLANTIC CITY, RESPONDENT.
    Argued May term, 1929
    Decided November 7, 1929.
    Before Justices Trenchard, Lloyd and Case.
    For the relator, Saclcs & Sachs.

    For the respondent, Harcourt & Steelman.

   Pee Curiam.

In this case Katherine E. Whalen, widow of Richard E. Whalen, has a rule to show cause why a writ of mandamus should not issue requiring the pension commmission of the police and fire departments of Atlantic City to pay to her as such widow a pension as required by law. There is a stipulation of facts in the case and from these it appears that Eichard Whalen became a member of the police force in May, 1892, and continued therein until May 18th, 1916, when he retired. At the time of his retirement he was captain of detectives receiving $1,800 per annum. Erom the time of his retirement until his death, October 4th, 1924, he received an annual pension of $900. During his membership in the police force there was deducted from his pay by the disbursing officer of the city one per cent, of his salary. After his retirement no moneys were deducted from his pension nor were any moneys voluntarily paid as a contribution by him. Upon the death of Eichard no pension was paid to the widow although written application therefor in accordance with the regulations governing the pension commission was made by the widow on November 6th, 1924, and denied by the commission.

The legislation covering police pensions, so far as relevant here, is to be found in chapter 72 of the laws of 1911, page 3 04; chapter 144 of the laws of 1916, page 298; and chapter 160, laws of 1920, page 324.

The act of 1911 provides for pensions to widows whose husbands, being police officers, had lost their lives in the performance of duty. The act of 1916, supplementary thereto, extended the pension in cases of those whose husbands had died from causes other than injuries received in the performance of their duties. The act of 1920 is a general act applying to all municipalities and appears to be a comprehensive scheme whereby pensions are provided for policemen and firemen and their dependents.

On this rule the defendants contend that the failure of Eichard Whalen in his lifetime, after retirement in 1916, to voluntarily make contributions to the pension fund deprived his widow of the right to a pension at his death, and this because of the following language in the act last cited: “The widow of every retired member of such police or fire department, who, while a member of such department, having paid into the fund the full amount of his annual assessments or contribution and continued so to do after his retirement until his death, and who shall die from causes other than injuries received in the performance of duty, shall, so long as she remains unmarried, receive a pension equivalent to one-half the pay of her deceased husband at the time of his retirement, not exceeding $1,000.”

We regard the contention as unsound. In order to create a fund from which pensions should be paid, section 4= of this act directs that there shall be deducted from every payment of salary to such member of the police and fire departments in such municipality, certain percentages of the amount thereof predicated on the years of service; that the municipality shall raise by taxation and pay into the fund an amount equal to four per cent, of the total salaries of the police and fire departments, and that to these moneys there shall be added all fines imposed on the members of the department, all moneys donated and all moneys deducted from salaries by reason of loss of time or absence and one-half of all rewards.

If the act contemplated voluntary payments by the officer, defendant’s contention would have force, but throughout the acts of 1911, 1916 and 1920 there is no provision for the payment of moneys by a police officer while a member of the force or after his retirement as a pensioner other than by the deduction from his salary of the specified percentage by the municipality itself. There is no percentage or sum of money that the statute either directs shall be deducted from his pay or that he himself shall voluntarily contribute, and it is only by interpreting the word “salary” as meaning also the word “pension” that any sum whatever can be realized for the pension fund from the pensioner. Assuming that the word salary is intended to cover both salary and pension and that the percentage governing in the former shall apply in the latter, it is but logical to apply the same reasoning to the mode of payment. If the percentage from salary contemplates a like percentage from the pension, the statute provides the method of its collection, which is a deduction by the disbursing officer of the percentage from the salary or pension as the case may be. The duty rests upon the munieipal officer and not upon the policeman as such or as a pensioner, and it has been held in a number of eases that failure of such municipal officer to make such payments could not affect the right to pension. Sheehan v. Lee, 96 N. J. L. 341; Van Horn v. Donnelly, 96 Id. 345; affirmed (Court of Errors and Appeals), 98 Id. 909; Hoff v. Lee, 98 Id. 883, and Hulse v. Pension Commission, 5 N. J. Mis. R. 258.

The stress laid on the words “continued to pay” cannot aid the defendants in interpreting the statute inasmuch as these words are but part of a sentence which makes the widow’s pension dependent on deceased having paid from his salary as well as continued to pay thereafter. If under this language the continuing to pay was optional with the pensioner, it would indicate the same option as to the compulsory payment from his former salary, a right which did not exist.

We think the pension should have been granted.

(The act of 1920 contains a referendum condition, and there appears to be in the stipulation no admission that a referendum was had in Atlantic City, but the case is argued throughout on both sides as though it had been so adopted, and we have dealt with the case on that assumption.)

The essential facts argued being admitted, a peremptory writ of mandamus will be awarded with leave to the defendants to mold the pleadings in such fashion as to permit an appeal if desired.


text:
    MARGARET DEL ROSSO, RESPONDENT, v. UNITED STATES TRUCKING CORPORATION, A BODY CORPORATE OF NEW YORK, APPELLANT.
    Submitted May term, 1929
    Decided November 7, 1929.

      Before Justices Trerchard, Lloyd and Case.
    Eor the appellant, Hanley <& Wynne.

    Eor the respondent, Barison ■& Barison.

   Per Curiam.

This case comes before us on appeal from the Hudson County Court of Common Pleas and involves a single question. The plaintiff sued to recover damages for injuries received in an automobile accident. The sole error alleged is that the court erroneously admitted in evidence a written statement made by the defendant’s driver to a police officer a few hours after the accident. While the statement was inadmissible, the appeal should not be reversed, and that for the reason that no valid objection was made to its admission.

The objections urged were that the driver was not there to refute any testimony that the police officer might give and that the police officer was not present at a former trial of the case. The court said: “If that is the only objection it will be overruled.” That the statement was incompetent we have no doubt. The defendant was entitled to have the witness in court subject to cross-examination but this objection was not urged and presumably was waived. Phelps v. Fuchs and Lang Manufacturing Co., 82 N. J. L. 474. The respondent contends in addition that there was no exception taken to the court’s ruling. Without passing on this point we think that for the reason already given the judgment must be affirmed.


text:
    FRANK RUTHENBECK, PROSECUTOR, v. FIRST CRIMINAL JUDICIAL DISTRICT COURT OF BERGEN COUNTY, MAYOR AND COUNCIL OF THE BOROUGH OF BERGENFIELD, RESPONDENTS.
    Submitted May term, 1929
    Decided November 7, 1929.
    Before Justices Trenchard, Lloyd and Case.
    Eor the prosecutor, Herman Greenstone (Paul Uittenberg, of counsel).
    Eor the respondents, A. C. Hart.

   Per Curiam.

The prosecutor was convicted of violating an ordinance of the borough of Bergenfield, which ordinance provides that “no person shall utter any loud, profane, indecent, lewd, abuse or offensive language in any public place.”

Twenty-two reasons are urged for reversal, one of which is in substance that the record does not show that there was any violation of any valid ordinance of the borough.

The complaint against the prosecutor was that “he did in the police headquarters of the borough, a public building, in a loud and offensive tone say to the deponent, “you big muttonhead, do you think you are a czar around here ?”

Section 28 of the Borough act of 1897 as amended in 1900, page 401, empowers the borough council to “pass ordinances to restrain or punish indecent or -disorderly conduct.” To constitute one a disorderly person in the use of language, under the Disorderly Persons act (Comp. 8tat., p. 1927), is indicated by section 3 to the effect that “any person loitering in * * * public places * * * who shall indulge in and utter loud, offensive or indecent language shall be deemed and adjudged to be a disorderly person.”

We think that the Borough act above quoted, and the ordinance in so far as it was a valid exercise of legislative authority by the council, did not contemplate the use of language of which the prosecutor was found guilty. The person to whom the language was addressed seems to have been a member of the police department, at the time acting as clerk of the court and receiving fines in an office apart from the court room.

A muttonhead as defined by the dictionaries is a dull, heavy and uninteresting person. That the dignity of the clerk may have been ruffled by the language addressed to him is possible, but that it was indecent or disorderly as defined by the legislative power conferred on the borough council we think is not established. It is not every trivial epithet addressed by one person to another, even in the office of the clerk of the recorder’s court and to a police officer doing desk duty there, that constitutes disorderly conduct.

The conviction is set aside.


text:
    MARY KRATKY, PROSECUTOR, v. BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, DEFENDANT.
    Submitted May 18, 1929
    Decided November 7, 1929.

      Before Justices Thekchaed, Lloyd and Case.
    Eor the prosecutor, Lum, Tamblyn & Colyer (William F. Gorman, of counsel).
    Eor the defendant, William A. Stevens, attorney-general, and Grover G. Richman.

   Pee Curiam.

The prosecutor of this writ was convicted of violation of section 2 of the Pharmacy act (Comp. Slat., p. 3944), in that she retailed and dispensed drugs and medicines, i. e., “camphorated oil” and “essence of peppermint,” not being then and there a registered pharmacist or a registered assistant.

The first point is that the judge admitted illegal evidence of contents of the bottles purchased from the prosecutor. We think not. The witness “examined it” and says in effect that he could and did determine its contents.

The second point is that a nonsuit should have been granted. We think not. The charge and proof was of a violation of section 2, and a reading of section 6 shows that it does not relieve defendant of the offense.

The third point is that the act is unconstitutional in that section 9 thereof provides that the act shall not apply to sale of “simple non-poisonous domestic remedies by retail dealers in rural districts.”

There seems to be no basis in fact for this objection in the present case.

The trial judge found as a fact that Little Eerry, where the sales were made, was not a rural district. There was no evidence to show that the articles sold were “simple nonpoisonous domestic remedies.” On the contrary the evidence was that they were medicines. It therefore seems that under the proofs sales of the articles in question should be treated as sales prohibited by section 2 of the act without regard to the provisions of section 9 which, if invalid, would not render the act invalid in toto.

The judgment will be affirmed, with costs.


text:
    THE WEST SHORE RAILROAD COMPANY, PROSECUTOR, v. BOROUGH OF BEGOTA, HARLAN P. ROSS, BOROUGH CLERK OF THE BOROUGH OF BEGOTA, AND MICHAEL A. REIS, CHARLES D. WALKER AND ARTHUR B. SMITH, GENERAL BOARD OF ASSESSMENT COMMISSIONERS OF THE BOROUGH OF BEGOTA, DEFENDANTS.
    Submitted May 18, 1929
    Decided November 7, 1929.
    Before Justices Teenci-iaed, Lloyd and Case.
    For the prosecutor, Wall, Haight, Carey & Hartpence.

    . For the defendants, De Turóle & West.

   Pee Curiam.

This rule requires the borough to show cause why a writ of certiorari should not be allowed to review a certain assessment made against the prosecutor railroad company by the general board of assessment commissioners of the borough •and the resolution confirming the same passed by the borough council.

The assessment was confirmed on May 17th, 1928. The prosecutor did not apply for the writ until August 18th, 1928, more than three months after the date of confirmation of the commissioners’ report, and so the defendants contend that the writ should be denied because section 56 of chapter 195 of laws of 1921 provides: “That no certiorari * * * shall be allowed or granted * * * to set aside any assessment or award made for any improvement after thirty days shall have elapsed from the date of the confirmation of such assessment or award.”

We think this would be so if the grounds urged for setting aside the assessment were merely some irregularity in the proceedings, or that the amount of the assessment was excessive, or that there was a mistake in the manner of making it. But this limitation does not apply and laches cannot be successfully urged where, as here, it is contended (among other things)—(1) that the property is not subject to assessment for local improvement; (2) that the assessment deprives the prosecutor of its property without just compensation, and (3) that it denies prosecutor due process of law and the equal protection of the laws, and where, as here, these questions are fairly debatable. Delaware River, &c., Co. v. Township of Haddon, 5 N. J. Mis. R. 210.

Without passing upon other questions suggested both for and against the allowance of the writ, we conclude that for present purposes the rule to show cause must be made absolute and the writ awarded.


author: Pee Otjeiam.

text:
    PROGRESS IMPROVEMENT COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, RELATOR, v. ALVIN J. WILLIAMS, INSPECTOR OF BUILDINGS OF THE BOROUGH OF ROSELLE; THE BOARD OF ADJUSTMENT OF THE BOROUGH OF ROSELLE, AND THE BOROUGH OF ROSELLE, RESPONDENTS.
    Submitted May 18, 1929
    Decided November 7, 1929.

      Before Justices Teeh chard, Lloyd and Case. ■
    Eor the relator, Leavitt, Ulbrich & Talley (Fayette N. Talley, of counsel).
    Eor the respondents, R. Robinson Chance.

   Pee Otjeiam.

This is a rule to show cause why a writ of mandamus should not issue commanding the board of adjustment of the borough and the inspector of buildings of the borough to show cause why a permit should not issue to the relator for the erection of a three-story apartment building on land owned by the relator.

It appears that on July 21st, 1927, relator applied for a permit to erect the apartment house on land in residence “A” district where buildings of the type proposed are prohibited by the zoning ordinance. The permit was denied by the building inspector and an appeal was taken to the board of adjustment on August 4th, 1927, and a hearing was held, after which this motion was made and carried:

“That the permit be granted with the understanding that the modified set of plans be used, also building be erected ten feet from the east side, twenty feet from rear and twenty feet from Locust street side and that plans when revised be submitted to the board for their approval.”

It further appears that relator revised its plans and submitted them to the board on October 6th, 1927, but no action was taken thereon by the board of adjustment.

The matter rested thus until April 10th, 1928 (seven days after chapter 274 of laws of 1928 took effect), when relator appeared and “requested the board to grant the permit whi'ch was promised them conditionally by the previous board.” The board refused to take action on the request.

It is stipulated that a permit was never received by the relator and never issued by the board of adjustment or the building inspector. It is further stipulated that the relator never began the construction of its apartment house and that no work of any kind has been done or commenced by the relator.

We think that we should not grant the writ. The property in question was zoned against an apartment house by ordinance in effect before the passage of the constitutional amendment, and, by the statute passed after the constitutional amendment, the ordinance was continued in effect; and under our decision in Koplin v. South Orange, 6 N. J. Mis. R. 489, such ordinance will be presumed to be a valid exercise of the police power in the absence of a showing to the contrary of which there is none in the present case.

It is to be noted that there never has been any unconditional action by way of granting a permit by the board of adjustment. Their action was conditioned upon their approval of revised plans, and they were never approved.

The rule to show cause will be discharged.


author: Pee Cueiam.

text:
    CRYSTAL HOLDING COMPANY, A CORPORATION, PROSECUTOR, v. TOWN OF WESTFIELD, AND SAMUEL ARMSTRONG, HJALMAR L. BECKER, EUGENE C. HANFORD, THEODORE H. LUDWIG AND DENNIS M. LEVER, CONSTITUTING THE BOARD OF ADJUSTMENT OF THE ZONING ORDINANCE OF SAID TOWN OF WESTFIELD, DEFENDANTS.
    Submitted May 18, 1929
    Decided November 7, 1929.

      Before Justices Teenchaed, Lloyd and Case.
    For the prosecutor, Stamler & Koestler.

    For the defendants, Paul Q. Oliver.

   Pee Cueiam.

■ This was an application for a writ of certiorari, a rule to show cause why the writ should not issue having been allowed by Mr. Justice Kalisch; but there is a stipulation by counsel, wherein it is agreed that this court shall consider the ease as if the writ had been actually granted, and that the determination of the court shall be binding upon the parties as if heard upon a writ of certiorari.

The proceedings will therefore be considered as bringing up for review a determination of the board of adjustment in an appeal of the Crystal Holding Company from a refusal of the building inspector to issue a permit for the erection of an apartment house at 262 Prospect street, Westfield, the erection of which was prohibited by a zoning ordinance.

We think that the record before us will not justify us in disturbing the determination of the board of adjustment. Prospect street at the point in question is but twenty-nine feet wide between the curbs. Near by is a school where congestion has resulted in accidents. In short, we think it appears that there was evidence before the board to justify the finding of the board that the erection of an apartment house "would tend to further congest traffic at an already dangerous spot and would add greatly to the peril of school children who were obliged to pass that way.”

It therefore appears to us that the decision of this court in Bellofatto v. Board of Adjustment of Montclair, 6 N. J. Mis. R. 512, a case where the action of the board was the same and for the same reason, and where the action of the board was sustained, is for all practical purposes conclusive as to the ease at bar. The case is also controlled so far as this court is concerned, by Kilay v. Quigley, 6 Id. 623, a case very similar to this in all essential features.

The writ of certiorari (which may be assumed to have been issued) will be dismissed, with costs.


text:
    ROSE E. KELLER, TERESA K. KORMANN, GERTRUDE A. KORMANN AND LOUISE M. KORMANN, RELATORS, v. BOARD OF COMMISSIONERS OF THE TOWN OF IRVINGTON AND HARRY J. STANLEY, COMMISSIONER OF PUBLIC SAFETY, RESPONDENTS.
    Submitted May term, 1929
    Decided November 7, 1929.
    Before Justices Tbenciiabd, Lloyd and Case.
    For the relators, Donald M. Waesche.

    For the respondents, Charles H. Siewarl.

   Pee Cubiam.

The relators have a rule to show cause why a writ of mandamus should not issue requiring the respondents to issue to the relators a permit for a gasoline station in Springfield avenue, in Irvington. There is presented to the court a stipulation of the facts that the location of the proposed station is in an exceedingly busy part of the town, that in the immediate vicinity there are three other such stations, and that it is located within a zoning district permitting such uses. .

The application was refused by the town authorities and justification for such refusal, according to the brief of the defendants, is predicated on an ordinance which provides that it shall not be lawful to manufacture, keep, sell, use or handle any gasoline, &c., without permit obtained from the commissioner of the department of public safety or the inspector of the department when countersigned by the commissioner.

Section 2 of the ordinance provides that the department of public safety is authorized to issue such permit and to enforce the provisions of the ordinance and to revoke such permits "whenever conditions become hazardous.” It is argued that a discretionary power is given to the commissioner by the ordinance and that this discretion was properly exercised adversely to the applicants in the present ease. We do not so regard the ordinance.

Section 6 of the ordinance provides that the buildings used in such stations shall be open to inspection of the department ; that the department shall from time to time formulate and issue such further rules and regulations as exigencies may warrant.

Section 10 authorizes the department to revoke any permit if in the judgment of the commissioner of the department violations of the rules and regulations warrant such action.

Section 11 provides for the conviction and punishment for any violation of the provisions of the ordinance.

We think the proper construction of the ordinance is that the issuance of the permit upon compliance with its terms is a right existing in the owner which cannot be denied him by the department or the commission.

It must be remembered that the owner of property has fundamental rights therein and among these are the right to possess and use it in such fashion as he pleases except in so íar as lie may be restrained by lawful legislation under the police power of the state and provided that its possession or use may not become a nuisance.

The respondents in the present case have seen fit to regulate by ordinance a use which, though permitted by law, may become dangerous if not hedged about by reasonable and proper restriction. These regulations contemplate measures of such character already existing, and the formulation of other measures beyond those already existing is entrusted to the department of the commissioner of public safety. Whether the reposing of such authority is permissible we are not called upon to determine as no such rules have been promulgated. The power conferred on the commissioner is to grant a license when the regulations provided by ordinance have been complied with, and the provision of the ordinance that a permit when granted may be revoked when in the opinion of the commissioner “conditions become hazardous,” must be construed not as vesting an arbitrary power in the commissioner to revoke but that such revocation shall rest upon the noncompliance with the rules and regulations governing the operation of the station. So dangerous a power as contended for by the respondents will not be inferred except upon the clearest authority and that we do not find in the present case.

In this view it is unnecessary to consider whether a power of revocation would be valid and whether, if so, it would by analogy imply a power to reject the application when initially made.

The facts being undisputed, a peremptory writ of mandamus is awarded.


text:
    LAKE POCHUNG OUTING ASSOCIATION, DEFENDANT, v. WILLIAM CURRENT, PROSECUTOR.
    Submitted May term, 1929
    Decided November 7, 1929.
    Before Justices Tbenchaed, Lloyd and Case.
    Eor the prosecutor, Theodore E. Dennis.

    For the defendant, Hugh G. Baldwin.

   Pee Cueiam.

At the suit of the Lake Poehung Outing Association the prosecutor was convicted before a justice of the peace for violation of section 1 of chapter 137, laws of 1913, as amended by chapter 145 of the laws of 1933, entitled “An act concerning trespassing on lands for the purpose of gunning or fishing.”

One of the reasons urged for setting aside the conviction is that “no such action as the action instituted and prosecuted to judgment before said justice of the peace is authorized by the laws of this state, and he had no jurisdiction in such action.” We think this contention is sound and that the judgment of conviction must be set aside.

The act in question forbids trespassing on posted lands for the purpose of gunning or fishing, provides a penalty of $30 and costs for such violation, and that every justice of the peace, police court or recorder shall have jurisdiction to try such offenders and pronounce sentence as therein provided.

The record of the proceedings shows that the action was one by the association as plaintiff against the prosecutor as defendant. The witnesses were sworn as between such plaintiff and defendant and the judgment of conviction and commitment to prison in default of payment of the fine imposed followed in sequence.

We think for reasons already stated that the judgment must be set aside. The statute is a penal one and does not lie at the suit of the owner or occupant of the land. The statute contemplates a formal complaint in the name of the State of New Jersey and not litigation between private parties.

The justice of the peace was without jurisdiction to entertain the action, to swear witnesses therein or to enter judgment thereon.

The judgment is therefore reversed.


text:
    THOMAS FLOOD, PETITIONER; LUKE FLOOD, Sr., AS ADMINISTRATOR OF THE ESTATE OF THOMAS FLOOD, DECEASED, RESPONDENT, v. NEWARK PLUMBING AND HEATING COMPANY, PROSECUTOR.
    Argued May term, 1929
    Decided November 7, 1929.
    Before Justices Tbenchaed, Lloyd and Case.
    For the prosecutor, Kellogg & Chance.

    For the respondent, Richard Spitz.

   Pee Ctjeiam.

This is a workmen’s compensation case in which the petitioner was awarded compensation by the Court of Common Pleas, reversing an order by the workmen’s compensation bureau dismissing the petition.

The compensation bureau found against the claimant on the ground that the petition had not been filed Avithin the year from the date of the alleged injury as required by the' statute, and that the death did not result from the injury. The present Avrit is to review the finding by the Court of Common Pleas and various reasons are urged for reversal. Among these are that the petition was not shown to have been filed within the year.

Our examination of the record convinces us that this reason is sound and that on this ground the petition should have been dismissed and the order of the compensation bureau affirmed.

The petition was filed by Thomas Elood on August 9th, 1927, and on his death his administrator was substituted and the proceedings continued by the administrator. The compensation commissioner found from the evidence, as already stated, that the petition was not filed in time and that the death did not result from the injuries received.

The Common Pleas Court, on appeal, found that the accident, which it was alleged injured the petitioner and subsequently caused his death, occurred on August 11th, 1926, and that the death was due to'the injuries.

If there was evidence to support these findings this court could not disturb the conclusions reached. McAdam v. Block, 63 N. J. L. 508. Our reading of the testimony, however, fails to discover proof that the accident happened within the year preceding the filing of the petition.

The petitioner himself testified that it occurred in the early part of August; that he could not recall the exact day; that he was injured in helping to carry a bathtub up a stairway of the building in which his employers were placing plumbing fixtures and that the bathtub was delivered to the premises the day before the accident happened. It was stipulatcd by agreement of counsel at the trial that this tub was delivered on the 4th of August, 1926. This, of course, would definitely fix the date of the accident as on the 5th of August, but it is contended by the respondent that from other evidence the court could find the accident to have occurred at a later date. Respondent fails to refer us to any such proof and we have searched the record in vain therefor. It is true that one witness said that the accident so far as he could remember was sometime around August 11th or 12th, but added that the bathtub arrived the day before the accident, and that it was placed in an alley off the sidewalk that night because it was after quitting time and that it was taken up the next day (the day of the accident). The same uncertainty characterizes the testimony of Yreeland, the only other witness called as to this point.

In the face of the testimony of the petitioner himself that the injuries were received on the day following the delivery of the bathtub and this stipulation that this delivery took place on the 4th of August, and the other evidence in the ease, we think it was not permitted to the trial court to find that the petition was filed within the year required by statute, and that the judgment must be reversed.


author: Pee Cuexam.

text:
    CHARLES G. COLE, PROSECUTOR, v. THOMAS J. DOWLING, BUILDING INSPECTOR OF THE CITY OF ORANGE ET AL., RESPONDENTS.
    Submitted May term, 1929
    Decided November 7, 1929.

      Before Justices Tbenchabd, Lloyd and Case.
    For the prosecutor, McCarter <& English.

    For the respondents, William A. Calhoun and Daniel J. Brennan.

   Pee Cuexam.

Under the writ in this case the prosecutor seeks to review the action of the building inspector granting a permit to respondents Rudnevitz & Ruby to erect an apartment house on premises 664 Lincoln avenue, Orange. The prosecutor is the owner of premises located in the vicinity of the proposed structure and distant one hundred and ninety-eight feet therefrom. The status of the prosecutor in the case is challenged, but we deem it unnecessary to consider this question.

From the return it appears that the respondents made application for a permit for this construction in July, 1925, and upon refusal obtained a peremptory writ of mandamus from this court to compel the issuance of the permit. The writ was issued on June 4th, 1926, but, for some reason which does not appear, was not brought to the attention of respondents until February, 1927, when its mandate was complied with by the issuance of the permit. It is contended by the prosecutor that the writ had lost its force, and that the municipal authorities were not obliged to observe it. We think otherwise. The writ was in the nature of an execution and unless and until set aside or withdrawn by legal proceedings it was binding on the parties and could not be disregarded.

The writ will be dismissed.


author: Pee Cdeiam.

text:
    JOSEPH W. ROSEBERRY, PROSECUTOR, v. THE WARREN COUNTY BOARD OF TAXATION AND C. DREXEL HAMLER, RESPONDENTS.
    Submitted May term, 1929
    Decided November 7, 1929.
    Before Justices Lloyd and Case.
    For the prosecutor, Joseph M. Roseberry.

    For the respondents, Egbert Rosecrans and Ciarle C. Bowers.

   Pee Cdeiam.

The certiorari in this case seeks to set aside the removal of the prosecutor as secretary of the Warren county tax board.

The charges were, in effect, misconduct in office and incapacity. He was found guilty of giving instructions to assessors as coming from the board not to assess certain property and to assess some other at but sixty per cent, of its value, when in fact the board had not authorized such instructions; failing to keep adequate minutes or records; also of incapacity by reason of errors in estimating the tax on bank stock and computing the “average rate of taxation.”

The first reason for reversal is that the complaint was sworn to by a non-taxpayer. The act does not require the person making the charge to be a taxpayer.

Eeasons 2, 3, 4 and 8 are that the removing resolution does not set forth the evidence on which it was based. The evidence is returned with the record and we think sufficient under the act of 1914, page 419.

The tenth reason is that reasonable opportunity to be heard was not given the prosecutor. The reasons for reversal do not embody this point, but if it were otherwise the point itself is without merit.

• The order of the board is affirmed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ISIDOR LERMAN, PLAINTIFF IN ERROR.
    Submitted May term, 1929
    Decided November 7, 1929.
    Before Justices Teenchaed, Lloyd and Case.
    Eor the plaintiff in error, Harold Simandl.

    Eor the defendant in error, Joseph L. Smith.

   Pee Ctjeiam.

Plaintiff in error was convicted in the Essex Court of Quarter Sessions of assault and battery on and criminal abuse of one Sally Bigams—a child between the age of twelve and sixteen years. The case is here on both writ of error and specifications of causes for reversal under a certificate. Several rulings on evidence are presented, but the main point argued is that the verdict is against the weight of the evidence.

There was abundant evidence to support the verdict. In addition to the testimony of the girl herself it appeared that she made almost immmediate complaint, was examined by a physician and found to be ruptured, and the defendant admitted to a physician his conduct, paid the doctor’s bill and •offered to pay for the support of the child that was later in •due time born.

As to the points for reversal based on alleged rulings on •evidence, we think there was no error. No one of these rulings is of sufficient importance to call for extended discussion and the judgment is affirmed.


text:
    CHARLES STRATER, Jr., AND CHARLES PETERSON, PROSECUTORS, v. THE BOROUGH OF RUNNEMEDE AND THE POLICE COMMISSION OF THE BOROUGH OF RUNNEMEDE, ETC., RESPONDENTS.
    Submitted May term, 1929
    Decided November 7, 1929.
    Before Justices Teen chard, Lloyd and Case.
    Eor the prosecutors, Carl Kisselman.

    Eor the respondent borough of Runnemede, T. Harry Rowland.

    Eor the respondent police commission of the borough of Runnemede, Walter S. Keown.

   Per Curiam.

The prosecutors of this rule were dismissed from their positions as police officers in the borough of Eunnemede and 'the present rule requires the borough to show cause why its-action therein should not be reviewed by certiorari.

Examination of the evidence taken on the rule seems to establish that as to Peterson the writ should be denied, but-granted as -to the prosecutor Strater.

Prom the proofs it appears that the officers were directed by the mayor of Eunnemede to proceed to Haddonfield for the identification of a prisoner, and while so proceeding across the White Horse pike the borough car in which they were riding was struck by another car and badly damaged. The-proofs further established that the car was being driven by Peterson at a high rate of speed without warning of its approach to the crossing. The charge against the prosecutors-was “gross negligence and willful destruction of borough property, to wit, one borough automobile.”

We think the charge as against Peterson was amply sustained and that he was properly dismissed. To drive an automobile at night across the White Horse pike, the chief artery of travel between Philadelphia and Camden and Atlantic City, at high speed and without warning, constituted the grossest negligence and exhibited unfitness to hold the office of policeman.

Peterson, being the driver of the car, was properly dismissed. Strater, however, was a passive occupant of the car in nowise responsible for its operation. There is exhibited in the case against him no evidence of negligence, willful, gross or otherwise. As our view is that the dismissal of Strater was illegal he should be restored to duty. The evidence upon the merits having been fully taken under the rule the formal issuance of the writ as to him may become unnecessary. If otherwise, the rule will be made absolute in his case. The rule granted as to Peterson will be discharged.


author: Per Cubiam.

text:
    DAVID M. JOSEPH ET AL., RESPONDENTS, v. VINELAND CLOTHING MANUFACTURING COMPANY, APPELLANT.
    Decided November 8, 1929.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellant, Thomas G. Tuso.

    Eor the respondents, Morris V. McDonald.

   Per Cubiam.

The defendant company entered into a contract with one Bessie Sehapiro for the manufacture of three hundred and ninety-four overcoats at the price of $3.80 for each coat, the materials to be furnished by the defendant company. When the work of manufacturing had been done by Mrs. Sehapiro, as she claimed, and the coats returned, the defendant company refused to pay the contract price, or any other sum for the reason, as it alleged, that the work had been improperly done and the value of the overcoats wiped out by reason thereof. Mrs. Sehapiro assigned her cause of action to the present plaintiffs, and thereupon they instituted this suit, ■claiming the amount fixed by the contract between Mrs. Sehapiro and the defendant company. To the complaint in the ease the defendant filed a counter-claim, setting up the damage done to the coats by Mrs. Sehapiro in the making thereof, and a partial destruction of their value by reason thereof, claiming that the loss thus sustained more than wiped out the moneys which Mrs. Sehapiro would have been entitled to receive from it had the work been properly done. The trial of the ease resulted in a verdict in favor of the plaintiffs, and the defendant has appealed from the judgment entered thereon.

The only ground upon which we are asked to reverse the present judgment is the alleged error of the trial judge in charging the jury as follows: “I do not see how you can bring in any verdict for no cause for action. If the plaintiffs made the goods according to samples, and they were in proper shape, they are entitled to recover $500. If they were not in that shape, and the defendant was damaged, then the defendant is entitled to recover some damages. It claims $541.54. You may take those figures, but you are to find what, in fact, the defendant was damaged. If you find for the defendant, the Vineland Clothing Manufacturing Company, you will fix the damages. In other words, if you find for the plaintiffs, Joseph Brothers, your verdict is $500 with interest from November 19th, 1926. If, on the other hand, you find the defendant has been damaged, its claim is $541.54, and if you so find that amount, then that is the amount to be found for the defendant. Otherwise, whatever amount you fix. But I do not see how you can bring in a verdict of no cause for action. One party has a claim either the plaintiff or the defendant.” It is argued by counsel for the appellant that this instruction is erroneous to the extent that the jury were told in effect that they could not bring in a verdict of no cause of action in either of the parties to the litigation. We see no error in this statement contained in the excerpts which have been quoted. If the plaintiffs’ assignor had fully and properly performed her contract they were entitled to recover from the defendant the contract price provided in the agreement. If she had not fully performed, and by reason of her failure in that regard the defendants were damaged, they were entitled to have the amount of the damage deducted from the contract price, and if the damage exceeded that amount, then they were entitled to a verdict for the excess.

The judgment under review is affirmed.


text:
    MAGGIE GEIR, RESPONDENT, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, INCORPORATED, APPELLANT.
    Decided November 8, 1929.
    Before Justices Trenciiard, Kalisch and Lloyd.
    Eor the appellant, Perkins <& Drewen.

    Eor the respondent, John H. Werther (Thomas F. Meany, of counsel).
   Pee Curiam.

The plaintiff-respondent was the beneficiary designated in a policy of insurance, issued by the appellant company on April 20th, 1927, to James Geir, for the sum of $310. On May 21st, 1927, Geir died. Due notice and proof of the death of the insured were given to the appellant company, and upon its refusal to pay, an action was instituted in the Second District Court of Jersey City, by the plaintiff-respondent, against the defendant-appellant, to recover the amount of insurance for which the deceased was insured for her benefit, and the case came on for trial before the court, sitting without a jury, resulting in a judgment for the plaintiff-respondent against the defendant-appellant, for the sum of $310 with costs. This judgment is now before us, on appeal, for review.

The grounds relied on in the brief of counsel of appellant, and argued before us are as follows: “The defendant offered proof by the witnesses Catherine Lewis and Michael Copertino, tending to show that the deceased was not in sound health on the date of the policy. These witnesses were asked the following questions: ‘Now, had he ever previous to within one year of March 19th, 1927, complained to you of being sick?’ (Case, page 19, line 4.) ‘Did he tell you about his health?’ (Case, page 21, line 4). ‘Did you ever have any conversation with the deceased about his health ?’ ” (Case, page 23, line 13.)

It is argued that the trial judge overruled any offer of proof tending to show the unsound health of the insured at the time of his insurance. Eeferring to the state of the case we do not find any testimony which substantiates the statement made, or that the questions above recited were overruled. But, on the contrary, it appears, they were answered.

The defense set up in the appellant’s answer is, that the policy of insurance was obtained by the deceased by a false representation made by him, in answering question sixteen, which question was, “are you now in sound health and free from all physical imperfections and infirmities?” to which question the insured answered “yes.”

The appellant called the two witnesses mentioned, and sought to prove by them alleged declarations made by the deceased to them about his condition of health before and after the insurance. It appears that these declarations crept into the case, and also that the court gave no weight to them, for reasons which he stated, and though he may have given a wrong reason why he thought that the declarations were inadmissible and of no probative value, we think, however, he reached a proper result.

In Henn v. Metropolitan Life Insurance Co. (Court of Errors and Appeals), 67 N. J. L. 310, the fourth headnote reads: “In an action on a policy on the life of one for the benefit of another the declaration of the insured before or after the insurance are not competent evidence against the beneficiary unless part of the res gestae.”

The cited case controls the situation here.

The judgment is affirmed, with costs.