author: Backes, V. C.

text:
    Charles Crist Delmonico, administrator of the estate of Josephine Crist Delmonico, deceased, complainant, v. The Prudential Insurance Company of America, defendant.
    [Decided May 10th, 1934.]

      Mr. Thomas Brunetto and Mr. Charles Jones, for the complainant.

      Messrs. Lindabury, Depue <& Faulks (Messrs. Stryker & Meiers), for the defendant.
   Backes, V. C.

Josephine Crist Delmonico, sixty-four years old, maiden, alone in life, with hut $66,000 of her fortune left, her income insufficient for her wants, and fearful of her future security, paid the Prudential Life Insurance Company the $66,000 and insured to herself $500 a month for the rest of her life. She suicided a year later. Children of her deceased brother, Lorenzo, who never concerned themselves about her, nor she about them, two years after her death filed this bill through her administrator to recover the $66,000, charging that she was incompetent to make the annuity contract. Incompetence is tbe sole issue and the burden of proof is upon the complainant.

Miss Delmonico and her two brothers were raised by their uncle, Charles, and his sister, Eosa, proprietors of “Delmonico’s,” a famous New York restaurant. Upon the death of Charles, the sister came into ownership, and by her will Miss Delmonico acquired four-fifths and her brother, Lorenzo, one-fifth of the business. The other brother, Charles, was dead. There was disagreement, Lorenzo litigated and Miss Delmonico bought his interest for $165,000; the breach between them was never healed. Prohibition came and Delmonico’s failed. Miss Delmonico had a small private estate upon which she depended after she lost the restaurant. She was a woman of education and refinement, but not of business. She had no cares while her uncle and aunt were living, and few while in affluence after their death. She was of a nervous type, and the litigation with her brother and the loss of Delmonico’s brought on worries. For seven or eight years, until the summer of 1928, she lived a solitary life in an apartment in Brooklyn. Ailing, she consulted Dr. Holland, a stomach specialist, who treated her from August, 1927, until the following June, and because of her highly nervous and apprehensive state he recommended Dr. Hunt, a noted nerve specialist. Upon his or some other doctor’s advice, she entered Stamford Hall, a sanitarium at Stamford, Connecticut, in August, 1928, where she remained eight days. Upon the suggestion of Mrs. Byles, a distant cousin aud close friend, who felt Dr. Finnerty, an osteopath, could help her, she went to his institution, “The House of Finnerty,” in Montclair, September 11th, 1928, and stayed twenty-one days, when she left for the Pines, a boarding house in Montclair, where she continued from October 2d to November 17th, 1928, under the care of Dr. Finnerty. Then, for a month and more, until December 20th, she was in Dr. Prout’s sanitarium at Summit, from whence she returned to New York, first to Mrs. Byles for a few days and then to an apartment until May 12th, 1929, when she went to St. Vincent’s Eetreat, a sanitarium, until June 28th, and from there to a cottage at Mount Kisco, run by a nurse, where she leaped from a window and died the next day, September 17th, 1929.

Mrs. Wilmurt, the widow of Miss Delmonico’s brother, Charles, was her intimate and adviser for many years, upon whom she depended. She accompanied her to Stamford Hall and took her away, to Dr. Finnerty’s, and took her from there to the Pines and to Dr. Prout’s, and when Mrs. Wilmurt moved to California in early December, 1928, Mrs. Byles took over the care of the sick woman; she had no one but these two devoted friends to look after her. Before she entered Stamford Hall, she gave Mrs. Wilmurt power of attorney of her bank account, and when Mrs. Wilmurt left for the west, Mrs. Byles took over the task. Both knew her cramped financial condition; it was the cause of great worriment to the three, for suitable institutions like Stamford Hall, Dr. Finnerty’s and Dr. Prout’s were expensive, far beyond her income, even exceeding the annuity.

The lay witnesses, all of whom came in close contact with Miss Delmonieo, testify to her rationality. The medical testimony—the opinions of physicians in attendance upon her during her illness, and of others, all eminently qualified and worthy of respect, but partisanly divided—is in conflict; none says she was bereft, insane, when they observed her.

Miss Delmonico’s affliction was psycho-neurosis, the prominent manifestations of which were extreme nervousness, phobias (fears) and consequent depression; arterio sclerosis (hardening of the arteries) was in progress. Her engrossing dread was of being closeted. The fear was of all manner of closures—-rooms, automobiles, trains, wherever she might be shut in; claustrophobia appears to have imbedded itself at the age of sixteen, when she suffered a shock from being accidentally shut in a closet by a little boy who ran off and forgot her. She feared crowds and shunned them, and shrunk from being observed. When her fortune dwindled she feared for her financial security and expressed her apprehensions to Dr. Holland and her anxiety over how to manage on what she had left. At Stamford Hall she was highly nervous, distressed and unhappjr, and well she might be, for her room opened on a corridor on which also opened fifteen other rooms occupied by mentally unstable patients; she took another with a private nurse, but realizing that the change and a private nurse meant an increase in charges which her income could, not meet, she telephoned Mrs. Wilmurt she could not afford to stay, and left. At that time her income was about $250 a month; the charges at the sanitarium, $125 a week. The first intimation of mental disorder comes from Dr. Pinnerty: Miss Delmonico would report in the morning that she was upset, prostrated, there were coffins in her room; she refused to have her mouth X-rayed because the devil was on two pivot teeth and she feared the X-ray would release him, and that people were trying to kill her. To her nurse, she regretted she was deteriorating and that her teeth were no longer pretty; that devils were in her pivot teeth; she feared she would die if she wore a certain dress, which had to be slipped over the head, but that fear was overcome; she was despondent, felt she had nothing to live for and wanted to die, although afraid to go to sleep for fear of dying; she mildly resisted everything and wanted to be let alone; had to be urged to eat and to occupy herself according to institutional regulations; went to movies against her will and at the manicurist’s had to be seated in a retired place. Dr. Pinnerty was of the opinion that she was incapable of judgment, and that she had a false idea his institution was expensive ($598 for twenty-one days), yet he admits she left because she announced her income would not allow her to stay, and that she had to seek cheaper quarters.

Miss Delmonico’s conduct at the Pines is of telling significance; it was there that the annuity was negotiated. She had no hallucinations. Aside from being highly nervous, there was nothing abnormal in her deportment. She took care of herself, attended to her personal needs, food and toilet, dress and shelter; took her meals with the other guests in the dining room, selected her food from the menus and was pleased with it; took daily walks, sometimes stopping for devotion at her church, conversed with her fellow boarders and communicated with her friends over the telephone; played Eussian bank, and made boudoir dolls, presents for her friends. She paid her current hills by check and sent lists of them to Mrs. Wilmurt so she could check the bank account; she slept quietly at night. Worried over expenses and the inadequacy of her income and facing a financial crisis, upon the suggestion of a physician she took up the subject of annuity with her bankers, Mr. Mills and Mr. Parsons, who negotiated it with a New York agent of the Prudential Insurance Company. When the suggestion of the annuity came, and after communicating with her bankers, she broached the subject to Mrs. Wilmurt, who, quite as anxious, carried on, obtained the proposition, discussed it with Miss Delmonieo, obtaining her decision, and arranged for the consummation. Mrs. Wilmurt brought the application for the annuity, and after Miss Delmonieo read and signed it, and having previously arranged with Mrs. Wooton, the proprietress of the Pines, for a conveyance, the three went to the notary for an authentication. Obviously, Mrs. Wilmurt was keen for the solution of the dilemma, and perhaps urged it upon her beloved friend, to whom she was at once adviser, amanuensis, and messenger—but any insinuation of motive other than true devotion is painful unkindness. Miss Delmonieo understood, and later expressed her gratitude and satisfaction to Mrs. Wilmurt, and her regret to Mrs. Byles because of the effect the parting with her estate for the annuity would have upon Mrs. Byles and her children, to whom she explained that she had to do it, she had to have the increased income the annuity brought.

Upon the annuity being assured, Miss Delmonieo entered the sanitarium at Summit. She gave her history to Dr. Prout, and a full explanation of her fears, her depression and despondency. She was despondent because Mrs. Wilmurt was passing out of her life, and impressed him as unable to face the fact that she was no longer rich and could not afford what to her were the necessities of life; that there was nothing to live for. He says she knew the character of the institution and that she had to govern herself according to its regulations; understood she was there to be cured and tried to help herself; was submissive to the routine, had daily tonic baths, electric treatments and ultra violet rays; took orderly care of herself in all respects, food, toilet, dress and sleep; drew checks and sent Mrs. Byles an account of them. She was highly nervous and besides her principal phobia, claustrophobia, fretted over her two pivot teeth and thought of pulling them out and seeing the points covered with blood; had a feeling there was something moving under her forehead like small teeth; was troubled over the thought of pitchers of blood standing about, and brooded over the thought of going insane. She left because she felt she could not afford the expense; it was in excess of her income. When about to leave, she was fearful her things would not be packed in time and feared the automobile trip to New York because she would have to be closed in (her fear of being in an apartment house with a strange man, “who might laugh at her or worse,” is not explained).

After leaving Dr. Prout’s, Miss Delmonico took up her home in an apartment in New York, having a housekeeper who was also her attendant. During her four and a half month’s stay, there were no hallucinations. She took entire care of herself, took a daily bath and spent considerable time dressing her hair; sometimes she accompanied the housekeeper to market, selected the provisions and arranged the menus; occasionally she helped with the dishwashing and made her bed; she did a little reading, sewing, wrote letters, took walks, went shopping, taught the housekeeper how to play Eussian bank, entertained callers and called up her friends on a dial telephone to tell them of her aches and pains; uncommunicative at times, she was voluble at others. Always highly nervous, she was happy at times, depressed at others, but entirely rational, according to the housekeeper. Two physicians, one who attended her three times, the other thirteen, in this period, found her nervous, but free of hallucinations or delusions.

During the month and a half at St. Vincent’s Eetreat, Miss Delmonico had no hallucinations but was in a highly nervous state, fearful and apprehensive. The only unusual thing, as indicated by the records of the institution, but not verified, was that she feared the food and medicine were poisoned. She left there unimproved.

At the cottage at Mount Kisco, from June 38th until her death, her life was very much the same as at the Pines and in her apartment. She stayed abed until noon, had her lunch and dinner downstairs, took walks, dressed herself, took care of her wardrobe, listened to the radio, talked about her travels, expressed preference for some foods, ate well and slept fairly well. Miss Gilleran, nurse in charge of the place, observed no hallucinations. A few days before her death she told Dr. Kennedy, her physician, she thought her food was poisoned and that she was seeing things entering and leaving her room; she did not specify what she saw. On the evening of September 17th, she went to her room alone and later was found by the nurse on the ground beneath her window. She explained to her that she was sitting on the sill and accidentally fell out, but to the doctor she admitted she had jumped out and was sorry she had not killed herself.

As to the medical testimony: If we could be assured that the opposing medical groups of psychiatrists had a common understanding of the facts, the value of their opinions as to the subject’s mental capacity could be better judged by the reasons they assign for their views. The claim of incompetency is supported'by the psychiatrists of the three institutions in which Miss Delmonico was treated; their opinions, which range from faulty judgment to insanity, were influenced by her personal history and especially by her institutional behavior during periods of her greatest excitement, when her phobias and apprehensions were apparently intensified by institutional restraint—sense of closure. Drs. Ranney and Robertson of Stamford Hall, who saw her three months before the signing of the contract, when, as they say, she was very nervous, depressed and fearful, assuming that her condition grew progressively worse after she left, were of the opinion that when the contract was signed she was incompetent, the latter going so far as to say she was insane. Dr. O’Neil of St. Vincent’s Retreat, where her condition six months after the making of the contract was much as it was at Stamford Hall, assuming that her condition had grown progressively worse since the making of the contract, was of the opinion that she had a faulty mentality. He was also of the view that the majority of psycho-neurotics are not incompetent and that Miss Delmonieo was not mentally defective, that her ailment was slowly progressing with intermissions during which she might have been comparatively well, but that when he saw her she had a mental condition which made her unable to exercise a good discretion. Dr. Donahue, a specialist in nervous disorders, in answer to an imperfect hypothetical question, gave as his opinion that Miss Delmonico was incompetent. Dr. Prout, who saw her shortly after the annuity was effected, says of Miss Delmonieo, that when she entered the institution she was mildly depressed; was properly oriented, as to time, place and circumstances and knew what she was talking about; that she was not normal, in the sense that she had fears; that her fears controlled her judgment in respect of things she feared and as to unrelated matters it affected her judgment secondarily. He admitted that her fear for her future security was entirely rational; that given an ordinary contract to read, she would understand the contents; that she had capacity to determine that she had the moral right to spend her money on herself or preserve it for others and sufficient understanding to know if she paid her money to an insurance company for an annuity it was gone and in place she would have the annuity, but he was, nevertheless, of the opinion that as her fear for her future security, which she realized was in jeopardy, prompted the annuity, that fear would be so intensified as to affect her judgment and in consequence he felt her judgment concerning the annuity would be very faulty. Dr. Hunt, who had observed and advised with Miss Delmonieo before she entered Stamford Hall, and Dr. Beling, a nerve specialist, upon a recital of all the salient facts, conclude that she was capable of understanding the contract and knew what she was doing.

The case then comes to this: Miss Delmonieo suffered from “nerves;” the affliction was chronic, affecting her mental health. The manifestation was fear, the predominant fear, claustrophobia; others, latent, were spasmodic, occasional; the fears had a common origin and were kindred, their multiplication and intensity finding their peak in institutional confinement. When out, she led the normal life of a nervous invalid. The multiform hallucinations experienced in the institutions were fancies of an intensified mental disturbance, superficial, transitory and gone when freedom was regained and calm restored. As to the nature of the hallucinations there is no disagreement with Dr. Hunt’s interpretation that they were vivid sensory perceptions or impressions and not delusions—fixed false ideas, nor with his view that Miss Delmonieo’s depression was situational, aggravated by corridor life, and demonstrated by its profoundness while she was in institutions, and its comparative absence in more natural and quieting surroundings at the Pines, her apartment and the Mount Kiseo cottage. (Hospitalization is to build up physical resistance to encroachment upon the nervous system ; while the nervous strain is increased during the process, the patient leaves more bodily fit; and, the tension removed, there is renewed spirit, the anxiety is diminshed and fears allayed.) After hospital treatment, Miss Delmonieo responded in betterment of composure and with her master phobias subdued. Six letters, well couched, well written, of things current and of concern to both, written by Miss Delmonico to Mrs. Wilmurt, while at ease at the Pines, testify to her normality, her intelligence and comprehension. The lay witnesses give assurances of her sensibleness at that time. The psychiatrists who hold Miss Delmonieo incompetent at the making of the contract believe that her fears controlled her judgment to the point of general incompetency, that her phobias, especially her fears in respect of her future security, were intensified to a state of irrational apprehension, and in consequence she lacked capacity to contract the perfectly sensible annuity contract. Equally eminent in the science are the physicians who are of the opinion that she was competent, and their views more nearly accord with the establisted facts, that when the annuity was under consideration, her fear for her future financial security was real; the safeguard she adopted was rational, the annuity was knowingly arranged and understandingly executed, and when accomplished, apprehension vanished and contentment took its place; grateful for the solution of the embarrassing problem, she had a single regret—her friend, Mrs. Byles, would suffer.

Proof of incompetency is not established. The bill will be dismissed.


source: Caselaw Access Project

author: Bigelow, V. C.

license: Public Domain

text:
    Caldwell Builders Supply Company, complainant, v. Max Goldblatt, defendant.
    [Decided May 4th, 1934.]

      Mr. Nathan A. Whitfield, for the complainant.

      Mr. Morris M. Spindel, pro se, and for Berr and Priest.

      Mr. Samuel B. Krasney, for the defendant.
   Bigelow, V. C.

The question is, who should pay defendant’s costs? The Caldwell Builders Supply Company had a cause of action on which suit was pending in the circuit court. It assigned the claim to one Louis Sehulman by an instrument which contained the following power:

“And we do hereby give to Louis Sehulman, his heirs, administrators, executors and assigns the full power and authority for his or their own use and benefit, but at his or their costs, to demand, to collect, to receive, to compound and give acquittance for the same or any part thereof and in our name or otherwise to prosecute or withdraw any suits at law or in equity therefore. And to release and discharge the same at his or their own costs and charges as fully as if we were present or acting therein; and we do hereby ratify and confirm all of his or their lawful acts in the premises.”

Thereafter, Sehulman sold the cause of action to Philip Priest. Priest or Sehulman pressed the suit in the circuit court to judgment in favor of the Caldwell Builders. Supply Company. The judgment was not paid and thereupon Priest instituted the present suit to set aside an alleged fraudulent conveyance. The only complainant in the bill is the Supply Company; Priest is not even mentioned. When it appeared at the hearing that Priest was the real party in interest, the bill was dismissed with costs because the practice of this court requires that the beneficial owner of a cause shall be a complainant. Thereafter, for the first time, the Supply-Company learned that it was a partyr to a suit in chancery. It has filed a petition "praying that Priest or his solicitors be directed to pay the costs.

The obligation of Priest to pay the costs as between him and the Supply Company is specified in the assignment under which Priest holds title, and is clear. 15 C. J. 99.

Whether the Supply Company remains liable to defendants for costs, depends on whether Priest was empowered to. bring this suit in the name of the Supply Company. If he was not, the Supply Company is not concluded by the decree and is under no obligation to defendants. If Priest was empowered, the Supply Company is liable for the costs. The authority given to the assignee of the chose, was “to collect” the debt and to prosecute “any suits at law or in equity therefor.” Agency to collect usually carries power to sue. “Iii aid of this power, the agent has authority to make the suit effective by issuing aii attachment or execution upon the judgment when necessary * * * and may pursue the property due the principal on the debt into the hands of third persons who may have acquired it from the debtor.” 2 C. J. 6.3 J,.

The present suit is in the nature of an equitable execution; its only purpose is to collect the debt. Its prosecution in the name of the Supply Company is within the scope of the power, and the company is liable for costs.

When Priest’s solicitors filed the bill, subscribing it as solicitors for the Supply Company, they knew, of course, that they had not been directly authorized by the Supply Company to do so. Their only authority came from Priest and presumably they inquired of Priest what right he had to instruct them to bring suit in the name of the Supply Company, and so learned that his right rested in the assignment which stipulated that the assignee should bear the costs. They must have contemplated the possibility that the defendants would prevail and that costs would be taxed against complainant. But still T think that their retainer was sufficient, inasmuch as Priest’s power was broad enough to cover the suit. They are not liable for costs.

The petitioners may take an order that Priest pay the costs already taxed and $25 for costs on the present application within fifteen days, and that meanwhile, proceedings on the execution which has been issued against complainant be stayed. If Priest does not pay within that time, defendants may enforce the execution. The present proceeding is much like one by a surety for exoneration.


author: Lewis, V. 0.

text:
    Mary Brophy, complainant, v. Board of Education of the Borough of West Paterson, defendant.
    [Decided May 15th, 1934.]

      Mr. Edward F. Merrey, for the complainant.

      Mr. Samuel S. Blade, for the defendant.
   Lewis, V. 0.

The rights of the parties are before this court for the second time. The deed on which the rights depend came before this court on a bill to quiet title, the decision in which is reported in Board of Education of West Paterson v. Brophy, 90 N. J. Eq. 57; 106 Atl. Rep. 32. At that time the premises in question were not in use at all. Since that time the board of education has put the building to use in part at least for other than school purposes.

In the prior case I stated: “I am inclined to the view that the original grant to the school district is a grant in fee-simple without condition or limitation, the grantor merely expressing the purpose which it was his desire or wish that the property should be used for. * * * If the issue were before me, I would be inclined to hold that the grantee took an unconditional fee.” This question was not decided by me at that time because of the circumstances of the prior suit, but is now squarely before the court.

I see no reason to change my former view that the condition of the deed does not constitute a conditional limitation nor impose a condition subsequent. In the present suit it is now contended by the complainant, in addition to the claim of breach of condition, that the deed constituted a gift to a charitable use. I do not find that the language used is such as to create such a charitable use. The language used in the deed does not seem to be capable of such a construction.

I accordingly find that the deed conveyed an absolute fee and therefore the complainant has no rights in the premises.


author: Per Curiam.

text:
    ROBERT J. BLAIR, PLAINTIFF, v. PASQUALE VETRANO, DEFENDANT.
    Argued January 16, 1934
    Decided May 14, 1934.
    Before Justices Parker, Lloyd and Perskie.
    For the plaintiff, C. Richard Allen.

    For the defendant, William E. B. Oox.

   Per Curiam.

This case arises out of an automobile accident. As the statute of limitations was about to run out, suit was begun and summons and complaint given to the sheriff of Hudson county for service. The sheriff by his deputy returned that he had made service on the defendant at his usual place of abode, 48 East Forty-ninth street, Bayonne, by leaving the papers with a member of his family over the age of fourteen. Several weeks later the sheriff, by another deputy, returned service on the defendant by leaving the papers at his usual place of abode at 46 East Forty-ninth street, Bayonne, with a member of his family over the age of fourteen, &c. It is claimed on this rule that the defendant did not live at either of these addresses and consequently that the service of the summons should be set aside. Several witnesses were examined at the taking of depositions and it may be said that the general trend of their testimony was in support of the rule to show cause. One was a brother of the defendant and the other his sister-in-law. Neither gave any definite testimony as to where the defendant actually did live. As opposed to this we have the stipulation of counsel as follows: “In 1931, defendant, Pasquale Yetrano, registered as the owner of an automobile, giving in his sworn statement his residence as 48 East Forty-ninth street, Bayonne, New Jersey; in 1932, said defendant again registered as the owner of an automobile, and in a sworn statement gave his residence as Main Highway, Flanders, N. J.; in 1933, said defendant registered for a driver’s license, giving his residence under sworn statement as 48 East Forty-ninth street, Bayonne.”

The sworn affidavit of the defendant filed with the motor vehicle department as the basis for the issue of an owner’s license is, of course, evidential as against him. It is noticeable that he did not appear at the taking of the depositions, either as a party or as a witness, although it would seem that he was by law exempt from the service of process if not a resident of this state. Michaelson v. Goldfarb, 94 N. J. L. 352; 110 Atl. Rep. 710; Brown v. Brown, 112 N. J. Eq. 600; 165 Atl. Rep. 643. The returns by the sheriff are of course traversable, but we are clear that the defendant has failed to show their falsity in the face of his own sworn statement. Not only this, but the rule to show cause lacks the support of any affidavit on the files of this court. If the basic affidavit be not filed, or lost through the fault of the party or his attorney, the rule will be discharged as improvidently granted. Cooper v. Galbraith, 24 N. J. L. 219; Peer v. Bloxham, 82 Id. 289; 81 Atl. Rep. 659.

The rule to show cause will be discharged.


author: Pee Cueiam.

text:
    LILLIAN O’NEILL, PLAINTIFF-APPELLEE, v. ALLIED FREIGHT DISTRIBUTORS, DEFENDANT-APPELLANT, IMPLEADED WITH PUBLIC SERVICE CO-ORDINATED TRANSPORT.
    Submitted January 26, 1934
    Decided May 14, 1934.
    Before Justices Paekee, Lloyd and Peesicie.
    For the appellant, Morris E. Barison.

    For the appellee, Edward J. Madden.

   Pee Cueiam.

Plaintiff was a passenger about midnight in a Public Service trolley car (Grove street line, Jersey City), which was in collision with an Allied Freight truck and trailer, head on. She sued both in District Court without jury and that court exonerated Public Service and awarded judgment against Allied Freight, the appellant, for $500. There are onty two specifications for reversal: 1. Eefusal to “direct a verdict” for Allied Freight on the ground of the failure of plaintiff to prove negligence as against that defendant. 2. Eefusal to nonsuit as to Allied Freight, on the same ground.

The situation as the court could find on the proofs, was this: the trolley car, en route to Hoboken, was going east on Sixteenth street between Erie and Grove street, when it came into collision with the Allied truck and trailer headed west. The motorman, seeing collision imminent, threw on his brakes and ran for his life. The truck hit the left front of the car and demolished it, throwing plaintiff to the floor. The car, according to the testimony, had been going at a “moderate rate of speed.”

The two witnesses for plaintiff were herself and another passenger named Monohan.

Plaintiff rested, and motion to nonsuit was made on the ground already stated. The argument seems to have been and now to be that the fact that the truck ran into the halted” car was not evidence of negligence on the part of the truck driver. Counsel for defendant said: “We admit there was a collision but don’t admit there is any evidence how the collision came about.” The motion to nonsuit was denied. Defendant Public Service also moved a nonsuit and that was also denied. The Allied Freight rested its case without offering any evidence and moved a “direction” on the same ground as urged for a nonsuit. This motion was denied and the case for Public Service was put in. The motorman was sworn and testified that his ear was moving at about twelve miles an hour because Grove street was a stop street and he was ready to stop; that he was about thirty-five feet west of Grove street when he first saw the truck, which was attempting to round the corner, with trailer behind, going at about twenty-five miles an hour and ran into the trolley car after the latter had come to a standstill. Two or three other passengers testified, and photographs of the wrecked car were put in evidence.

We are clear that the evidence as it stood when the appellant, Allied Freight, moved a nonsuit and moved for a “direction” was such as to raise clearly an inference of negligence on the part of appellant in so operating its truck as to run into and wreck the trolley car. Even assuming the motorman was at fault, the court would at least be entitled to hold both corporations as joint tort-feasors in a suit by the plaintiff. Matthews v. Delaware, Lackawanna and Western Railroad Co., 56 N. J. L. 34; 27 Atl. Rep. 919. In so saying we are not to be understood as concurring in the apparent theory of appellant that it was entitled, by resting its case before the other defendants had been heard, to exclude their evidence from consideration as against appellant. The contrary was held in the case of Kaltman v. Bocino, 2 N. J. Mis. R. 1125; 125 Atl. Rep. 654.

The judgment will be affirmed.


text:
    LEVENSON COMPANY, RESPONDENT, v. CATHERINE NOVELLO, APPELLANT.
    Submitted January term, 1934
    Decided May 18, 1934.
    Before Justices Parker, Lloyd and Perskte.
    For the appellant, Eugene A. Liotta.

    For the respondent, Samuel H. Nelson.

   Per Curiam.

Two promissory notes, both signed by the appellant, Catherine Novello, as maker—one for $350 drawn to the order of the plaintiff; the other for $148.15 drawn to the order of the Interstate Flour Company and assigned by the latter company to the plaintiff, were the basis of the action. Both notes were endorsed by the defendant Eugene A. Liotta. Not being paid when due suit was brought thereon against both maker and endorser. A nonsuit was granted in favor of the endorser Liotta on proof that he had received no notice of protest, and a judgment was rendered for the plaintiff for S500 against Novello, the excess above that sum being waived.

The specifications of determinations presented for review are—

1. That the court refused to allow plaintiff to ascertain under what condition Levenson Company procured the assignment of the Interstate Flour Company.

2 The District Court erred in allowing Bernard Levenson, a witness of the plaintiff, Levenson Company, to testify as to the assignment of the Interstate Flour Company claim as against Catherine FTovello without the assignment itself being in evidence.

3. The court erred in allowing a book other than the book of original entry to prove the claim of plaintiff against the defendant, Catherine Eovello.

4. The court below erred in refusing to direct a verdict in favor of the defendant, Catherine Uovello.

Upon the record presented there was nothing the court, could do other than to enter a judgment for the plaintiff. The notes were offered in evidence without objection and their execution by Novello as maker and Liotta as endorser duly proved. Of the facts thus established there was no denial. It may be added that no one of the specifications relied on for reversal, with the exception of the last, is sufficient to bring before this court any ruling made in the trial of the case (Booth v. Keegan, 108 N. J. L. 538; 159 Atl. Rep. 402), and the fourth as above indicated is without merit.

Judgment is affirmed, with costs.


author: Pee Otjbiam.

text:
    CHARLES M. LYONS, RESPONDENT, v. RODNEY G. BENSON, JR., APPELLANT.
    Submitted January term, 1934
    Decided May 18, 1934.
    Before Justices Parker, Lloyd and Perskie.
    For the appellant, Manuel N. Mirslcy.

    For the respondent, Goult, Satz & Tomlinson.

   Pee Otjbiam.

Plaintiff below brought suit to recover damages based on an alleged warranty given on the sale of an automobile. The state of demand is in two counts, the first charging that the defendant warranted the automobile to be in good running order and not defective in parts or workmanship; and that if it should appear that there were defective parts or workmanship, the defendant would replace or repair them without charge at any time within thirty days.

The second count set forth a written guaranty dated September 12th, 1932, in this form:

“I, Eodney 6. Benson, Jr., hereby guarantee to replace any defective parts of workmanship at no charge for a period of ninety (90) days from this date on the 1931 Hudson Coach ■sold by me to Charles Lyons on July 15th, 1932.”

The state of the case was settled by the court and from this it appears that a salesman of the defendant named Cuzzi at a first interview between the parties represented that the automobile was in first-class condition and that the defendant would guarantee it if plaintiff would purchase, and if anything wrong turned up with it the automobile could be brought back and it would be repaired without cost.

Shortly thereafter, Benson, the defendant, told plaintiff that the car was guaranteed and if plaintiff did purchase it and later found anything wrong with the car, to bring it back and he would make it right or exchange the automobile for another one of equal value. On the car was a printed notice reading: “1931 Hudson Coach, 30 day guaranty, $210 down.”

Plaintiff purchased the car at a price of $525, less an allowance on his old car. A few days later the motor overheated and certain other defects appearing, plaintiff returned the car to the defendant, called his attention to the defects and asked him to make repairs. This the defendant refused to do. The plaintiff then left, leaving the ear with the defendant. On September 12th, plaintiff again visited the defendant; was told no repairs had been made and that there was nothing wrong with the car. Defendant offered to give plaintiff a guaranty with reference to replacing defective parts for three months. It further appeared from the state of the case that after some discussion plaintiff agreed ■ to accept this guaranty and that if it were lived up to he was to have no further claim upon the original or new agreement.

It was then that the written agreement of that date was given. Thereupon plaintiff placed the car with another dealer to be sold. In December, just before the ninety-day period had expired, the car not having been sold, the plaintiff took it to the defendant’s place of business and left it there with a salesman who said he was in charge of the place. Plaintiff made demand for replacement of defective parts or that the car be replaced by another and followed this up by registered letter, which letter, however, did not reach the defendant until December 14th.

There was a judgment in favor of the plaintiff for $525, the amount originally paid for the car.

We think this was error. It is difficult to extract from the various communications between the parties, including the written guaranty of September 12th, 1932, anything more than an agreement to replace defective parts. The proof on this point most favorable to the plaintiff was that the repairs or replacements would cost $213.

The judgment for $525 will be reversed to the end that a judgment shall be entered in favor of the plaintiff for $233. and costs of suit.


author: Pee Cueiaii.

text:
    SALVATORE BRIGNOLA, RESPONDENT, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, APPELLANT.
    Submitted January term, 1934
    Decided May 18, 1934.

      Before Justices Paekee, Lloyd and Peeskie.
    For the appellant, Perlcins, Bremen & Nugent.

    For the respondent, Harvey Bein.

   Pee Cueiaii.

The action in this case was against the insurance company- by an assignee of a policy of insurance issued to one Lloyd Campbell for a surrender value of $162.50. There was a judgment for the plaintiff and the defendant appeals, contending that there should have been a nonsuit or entry of judgment for defendant.

The defense was that no notice of the assignment by Campbell had ever been received by the company and that in the meantime the surrender value had been paid to Campbell.

The question in the case turns upon the proof of notice. The policy was assigned to the plaintiff on September 17th, 1931. On October 10th, 1931, the cash surrender value was paid to Campbell. Before the proof of payment to Campbell had been presented and on proof by the plaintiff that he, in company of the insured, took the policy with the assignment endorsed on it to the office of the insurance company and showed it to some person connected with the defendant company, and that subsequently he made several more calls on the defendant to get his money, a motion for nonsuit was made.

Proof of previous payment to Campbell not being then in_ the case, this motion was properly denied, as the plaintiff in the absence of proof of prior payment to Campbell would be entitled to recover upon the mere presentation of the policy with the assignment to him endorsed thereon. After the proof of payment to Campbell, however, a motion for judgment for the defendant was made and denied, and it is in this state of the case that the sufficiency of the facts to establish notice becomes important.

Among the provisions of the policy, marked as an exhibit in the case, is one to the effect that none of its conditions, provisions or privileges could be waived or modified except by endorsement on the policy signed by the president, a vice-president, the secretary, an assistant secretary, the actuary, the associate actuary or an assistant actuary. It further provides that “no agent has power in behalf of the company to make or modify this or any other contract of insurance, to extend the time for paying a premium, to waive any forfeiture, or to bind the company by making any promise, or' by making or receiving any representation or information.”

By the agreed state of facts it does not appear when the assignment was shown to “some person connected with the defendant company,” whether before or after October 10th, 1931; the statement being simply that it was after securing the assignment. But, assuming that it is to be read as “immediately” after securing the assignment, or “upon” securing the assignment, the policy was shown to someone connected with the defendant company, we think this was insufficient to establish notice to the company itself. Apart from the limited power expressed in the provision of the policy to the effect that “no agent has power * * * to bind the company by making any promise or making or receiving any representations or information,” there may undoubtedly be a class of employes of the company notice to whom would be clearly inadequate to bring anything home to the company itself—an office boy, or a porter would be a person connected with the company, and yet obviously not a proper one upon whom to serve notice. The fact that in less than a month after notifying such “person” of the assign'ment the insured had the assurance to proceed to the office of the company and collect the surrender value is rather persuasive evidence that the notice given was not even intended to reach the responsible officers of the company.

However all this may be, the company by its contract specifically apprised the plaintiff and the insured that notice of any sort must be given to someone in authority, and that no mere agent was authorized to receive such information on its behalf. This provision was a plain limitation of authority and binding on the insured and his assignee. Crescent Ring Co. v. Travelers' Insurance Co., 102 N. J. L. 85 ; 132 Atl. Rep. 106.

The company having paid the surrender value of the policy to the insured, and, so far as appears, without effective notice of the existence of the assignment by the insured to the plaintiff, there was error in the finding in his favor and the judgment is, therefore, reversed.


author: Pee Cubiam.

text:
    JAC ZAUBER, RESPONDENT, v. WENDEL A. VAN WAGONER AND MARTIN J. DALY, CO-PARTNERS TRADING AS VAN CRULLER COMPANY, APPELLANT. BESS ZAUBER, RESPONDENT, v. WENDEL A. VAN WAGONER AND MARTIN J. DALY, CO-PARTNERS TRADING AS VAN CRULLER COMPANY, APPELLANT.
    Submitted January term, 1934
    Decided May 18, 1934.
    Before Justices Pabkee, Lloyd and Pebskie.
    For the appellant, Pilgrim £ Ritger.

    For the respondent, I. Henry Coyne.

   Pee Cubiam.

These two cases were tried together and resulted in judgments in favor of the plaintiffs. The defendant appeals, contending that there was no proof of negligence in the defendant, that the proofs exhibited negligence on the part of the driver of the car in which the plaintiffs were riding, and that there should have been findings for the defendant.

A pleasure automobile with a commercial license owned by Jac Zauber was proceeding south on Grove street in Montclair, and collided with the truck of the defendant going east on Bloomfield avenue. Grove street, under that name, runs as far as Bloomfield avenue and below is called Elm street.

The testimony of Zauber was that when he reached Bloomfield avenue at one o’clock in the morning, he stopped his car, looked both ways and saw no vehicle. He then proceeded to cross, putting his car in first gear and then in second, and that as he had about reached the far side of Bloomfield avenue his car was struck in the center by the truck of the defendant. The defendant offered no proofs.

On the facts a case was established on which a finding in favor of the plaintiffs could be justified. The driver of the plaintiff’s car does not appear to have done anything that he should not have done, or omitted to do anything that he should have done, and it is inferrable that the defendant’s truck was either running without lights, or was proceeding at such a rate of speed that it covered an unreasonable distance between the time of the plaintiff’s observation and the time of the collision, either of which facts would be proof of negligence.

The judgments in both cases are affirmed.


text:
    CARA HAMMER, RESPONDENT, v. HARRY GORDON AND SILVER ROD STORES, INCORPORATED, APPELLANTS.
    Submitted January term, 1934
    Decided May 18, 1934.
    Before Justices Pakkek, Lloyd and Peeskie.
    For the appellants, Benjamin Gordon and Klein Klein.

    For the respondent, Abram I. Blue-stein.

   Pee Cueiam.

The action in this case was brought against the defendants, Harry Gordon and Silver Eod Stores, Incorporated, to recover damages for willfully and maliciously filling certain medical prescriptions with ingredients differing in kind from those set forth in the prescriptions. The judge, hearing the •case without a jury, found for the plantiff against both defendants, and the defendants appeal.

The specifications relied on for reversal are that there was error in the admission of testimony, in the denial of a motion for nonsuit, in the entry of judgment, and that the damages were illegal and excessive.

The case made by the plaintiff was that she left three prescriptions with the defendant Gordon to be filled; that she called for them on the following morning, received the-filled prescriptions and paid therefor the sum of $2.75. After examining them she decided that they were not compounded in accordance with the directions and refrained from using' them. There was also proof that Gordon deliberately and willfully substituted ingredients other than those called for by the prescriptions. There was evidence sufficient to show that Gordon was acting for the other defendant, Silver Bod Stores, Incorporated, and for the actual damages both would be responsible.

As to the admission of evidence. Among the questions-asked of a witness called by the plaintiff, an analytical chemist who examined the ingredients of the prescriptions as filled,, was the following: ££What is your charge for testing these [meaning the ingredients]. A. My examination of the materials and court attendance would be about $50.” The question was objected to, allowed, and exception noted. No-ground of objection, however, was stated, and no request was made by defendants’ counsel that the unresponsive part, of the answer concerning services of the witness for attendance in court be stricken out. We cannot, therefore, reverse' for this ruling. The question being asked, objection must be accompanied by the ground therefor. Schwartz v. Eisner, 111 N. J. L. 132; 166 Atl. Rep. 729; affirmed, 112 N. J. L. 383; 170 Atl. Rep. 615; Lyon v. Fabricant, 113 N. J. L. 62.

There was error, however, in the entry of judgment against the Silver Bod Stores, Incorporated. This defendant is a body corporate and would not be responsible beyond the actual damage sustained by the plaintiff. It is not liable for punitive damages for the willful and malicious wrong of its agent in which it did not expressly or impliedly participate. Peterson v. Middlesex and Somerset Traction Co., 71 N. J. L. 296; 59 Atl. Rep. 456. It was specifically called to the attention of the trial judges on the motion for the direction of a verdict that .the corporation was not liable for punitive damages, and it is urged for error that the damages awarded in view of the proofs were illegal and excessive.

Ordinarily an award of damages if excessive, can only be reached on a rule for new trial. Where, however, they are both excessive and illegal because of the absence of proof upon which to award the same, it may be assigned for error on appeal. The award against both defendants was in the sum of $350. There was no evidence upon which such an amount against the corporation could be predicated. The award of necessity involved the allowance of punitive damages, for which there was no legal justification.

As against the defendant Gordon, his wrongful act could well be attributed to wrongful motive and therefore justified the award of damages of a penal nature. The judgment against him will therefore be affirmed with costs, and the judgment against the Silver Eod Stores, Incorporated, will be reversed.


author: Pee Cukiam.

text:
    JACOB L. NEWMAN, RECEIVER OF UNION INDEMNITY COMPANY, RESPONDENT, v. VIETMEYER BROTHERS, INCORPORATED, APPELLANT.
    Submitted January 26, 1934
    Decided May 18, 1934.
    Before Justices Parker, Lloyd and Perskte.
    For the appellant, Plato ff, Saperstein & Platof (Clement Rosen, of counsel).
    Por the respondent, Charles Young.

   Pee Cukiam.

The plaintiff below as receiver for the Union Indemnity Company sued to recover for premiums due by the defendant to the company prior to its insolvency, and the defendant filed a set-off for claims due it for losses sustained during the terms of the several policies on which the premiums were due and antedating the insolvency of the Indemnity Company. The learned trial judge, to whom the case was submitted for determination without a jury, deeming that the claims could not properly be set off, refused to allow them and gave judgment for the plaintiff for the premiums.

We think this was error. The relations between the parties had been that of insurer and insured on a workmens’ compensation policy and on a public liability policy. The claims of the defendant were for moneys paid out for losses covered by these policies.

Section 66 o* the Corporation act (2 Comp. Stat., p. 1643) authorizes appointment of receivers in such cases as the present with full power and authority to demand and sue for moneys due the corporation, to compound and settle with any debtor or creditor, “and in case of mutual dealings between the corporation and any person, to allow just set-offs in favor of such person in all cases in which the same ought to be allowed according to law and equity.”

The statute in substance is an old one, and this section has been construed a number of times by the courts. In Receiver v. Paterson Gas Light Co., 23 N. J. L. 283, a debtor of an insolvent bank was permitted to set-off against his indebtedness to the receivers a deposit in the bank, and bills of the bank Iona fide received by him before the failure, and it was held that claims that are just and equitable, though not strictly legal, were proper matters of set-off, and that the debtor to an insolvent corporation has the same equitable right of set-off against a claim of receivers that he had against the corporation at the time of its insolvency. In the Court of Errors and Appeals the bankruptcy character of the legislation, in which set-offs such as here presented are allowable, has been repeatedly recognized. Butler v. Commonwealth Tobacco Co., 74 N. J. Eq. 423; 70 Atl. Rep. 319. In the Court of Chancery, Vice-Chancellor Stevens held that the bankruptcy rule applied and that a bank could set-off; against an insolvent receiver notes held by it, even though all the notes were not then due. Shields v. John Shields Construction Co., 83 N. J. Eq. 21; 89 Atl. Rep. 1022. The right of set-off is recognized in the recent case of Singac Trust Co. v. Totowa Lumber Co., 112 N. J. L. 99; 169 Atl. Rep. 673, the court declaring that the right of set-off against an insolvent bank is governed by the facts existing at the time the bank is adjudged insolvent, and not by conditions created thereafter.

Counsel for the respondent cites the cases of Stone v. N. J. & H. R. Ry., &c., Co., 75 N. J. L. 172; 66 Atl. Rep. 1072, and More v. Richards, 90 N. J. L. 626; 101 Atl. Rep. 380, but neither is applicable here. The former was an action by the receiver of a mutual insurance company (of which defendant was a member) for premiums, and it was held that losses could not be set off inasmuch as the claims were not based on mutual dealings as debtor and creditor within the contemplation of the statute, defendant’s status being that of a partner in the insolvent corporation as well as that of a creditor. In the latter ease the claim was rejected because unliquidated.

In the present case the defendant’s claims are not in dispute. The stipulation expressly admits them; they were for losses which the appellant had paid and which the company was bound to reimburse. If the insurance company had sued the answer was complete. The receiver stands in its shoes and the answer is here likewise complete.

By the stipulation filed in the case the set-off should have-been allowed, and inasmuch as the claim of the defendant exceeds that of the plaintiff and the facts not being in dispute, judgment will be directed by this court to be entered in favor of the defendant on the plaintiff’s claim, and for the sum of $36.62 in favor of the defendant on the claim of set-off as required by the fourth section of the “Act Concerning Set-off.” 4 Comp. Stat., p. 4837.


text:
    PAULINE GUTT, APPELLANT, v. JOHN VENEZIA AND LOUIS SOLDI, RESPONDENTS.
    Submitted January term, 1934
    Decided May 18, 1934.
    Before Justices Parker, Lloyd and Perskie.
    Por the appellant, Joseph B. Schwartz.

    Por the respondent, Alfred D. Antonio.

   Per Curiam.

The action in this case was brought by a landlord to recover treble damages for a rescous of distrained goods under section 10 of the act “Concerning Distraints” (2 Comp. Stat., p. 1942), which reads as follows:

“That if any pound breach or rescous shall be made of any goods, chattels or other things distrained for rent and impounded or otherwise secured by virtue of this act, the person or persons aggrieved thereby shall in special action upon the case for the wrong thereby sustained, recover his, her or their treble damages and costs of suit against the offender or offenders or any of them, in any such rescous or pound breach, or against the owner of the goods distrained in case the same be afterwards found to have come into his or her use or possession.”

There was judgment for the plaintiff in the District Court for nominal damages of six cents. Plaintiff appeals, claiming that there should have been damages awarded in treble the amount of the rent due.

Plaintiff, the owner and landlord of premises in Perth Amboy, distrained the goods of the tenants and left them on the premises. The tenants, having been advised of the distraint, nevertheless proceeded to carry the goods away. The present action resulted.

Without proving the value of the goods the plaintiff rested, and so likewise did the defendants. Plaintiff moved for judgment for three times the amount of the rent accrued ($l?o) with waiver of the excess over a total of $500. The defendants moved a judgment for nominal damages of six cents in favor of the plaintiff and their motion was granted.

It is difficult to see on what theory the appellant can justify a claim that the rent due is the basis of recovery. By the act the landlord is given a special action on the case for the wrong sustained and the right to recover therein treble damages. Appellant cites the eases of Newell v. Clark, 46 N. J. L. 363, and Van Horne v. Brown, 85 N. J. L. 544; 89 Atl. Rep. 994, to sutsain her contention. These cases we think support the contrary view. Newell v. Clark resolved itself into a suit for interference with a levy rather than a rescous, and the court sustained a judgment for single damages on a case certified from the Circuit, remarking incidentally that the proof was that the goods distrained were of a value equal to the rent.

In Van Horne v. Brown there was a judgment for the defendant in an action for pound breach or rescous, and there was proof of such breach, but no proof of the value of the goods carried away. Judgment for the defendant was reversed on the ground that the plaintiff was entitled to nominal damages, the court indicating that the damages of the plaintiffs were what they might have realized out of their distress, which was wrongfully interrupted by the defendants’ tortious act.

In both cases it is quite apparent, as obviously it must be, that the damage was the loss which the plaintiff sustained by reason of the taking of the goods after distraint, and this must be their value, the statute giving as a remedy to the plaintiff and a punishment to the defendant treble that amount.

So here the plaintiff was entitled to recover the loss occasioned by the withdrawal of the goods—their value (trebled by the act). Inasmuch as there was no proof of value the plaintiff could recover nothing hut nominal damages. Van Horne v. Brown, supra.

The judgment is affirmed, with costs.


text:
    CHRISTINE BRUMMER, BY HER MOTHER AND NEXT FRIEND, LOUISE BRUMMER, AND LOUISE BRUMMER, IN HER OWN RIGHT, PLAINTIFFS-APPELLEES, v. RALPH SMITH, DEFENDANT-APPELLANT.
    Submitted January 27, 1934
    Decided May 19, 1934.
    Before Brogan, Chief Justice, and Justices Trenci-iard and Heiier.
    For the appellant, Lewis Liberman.

    For the appellees, Orlando & Kisselm.an (Samuel P. Orlando, of counsel).
   Per Curiam.

The infant plaintiff, Christine Brummer, was invited by defendant-appellant, Ralph Smith, to take a ride with him in his automobile. While riding in the car driven by him .on the Mount Laurel Road, in Burlington county, at a speed of thirty to thirty-five miles per hour, the automobile ran into a pole and the infant plaintiff was injured. The suit was brought in her behalf to recover for such injury, and by her mother to recover for the resulting damages of the latter.

The sole contention of the defendant is that the court erred in refusing to direct verdicts in favor of the defendant, on the ground that there was no evidence of negligence on the part of the defendant, and that “Christine Brummer, as a matter of law, had voluntarily assumed the risk incident to riding in defendant’s automobile.”

We think the court properly refused to direct verdicts.

The judge was sitting as a jury, and we think the evidence presented a jury question with respect to the negligence of the defendant in driving the car at the speed that he did in the circumstances known to him. According to the testimony (and the truth of it was a jury question) the defendant was driving his automobile at a speed of thirty to thirty-five miles per hour, when he became aware that there was something wrong with his steering wheel, rendering it difficult to keep the car in the road, and so stated to the plaintiff. Instead of reducing the speed of the automobile so that he could control it in the event something unusual occurred, he continued on at the same speed of from thirty to thirty-five miles an hour, for a period of fifteen minutes, and then the steering apparatus went completely wrong, and being unable to steer the ear it left the road and collided with a pole about four feet off the highway. Therefore a jury question was presented as to the defendant’s negligence under all the circumstances as charged in the complaint.

On the question of assumption of risk, the judge, sitting as a jury, found as a fact that there were no facts to sustain a finding of assumption of risk. We cannot say that was wrong.

The only pertinent facts were that the defendant mentioned to the infant plaintiff that something was wrong with the steering wheel and that she sat still. The defendant argues that she should have insisted upon getting out, though far from home, on a country road at midnight. The question whether or not in the circumstances she should have appreciated the impending peril and should have acted otherwise than she did, was a jury question.

The judgment will be affirmed, with costs.


text:
    CLAUDE CAIOLA, PLAINTIFF-RESPONDENT, v. AETNA LIFE INSURANCE COMPANY, A BODY CORPORATE OF THE STATE OF CONNECTICUT, DEFENDANT-APPELLANT.
    Submitted January 27, 1934
    Decided May 19, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the appellant, Cox & Walbwg (Harry E. Walburg, of counsel).
    For the respondent, David Cohn.

   Per Curiam.

This is an appeal of the defendant below, the Aetna Life Insurance Company, from a judgment against it and in favor of the plaintiff, directed by the trial judge at the Passaic County Circuit Court.

The complaint alleged that on February 11th, 1931, the present plaintiff instituted an action in the Passaic County Circuit Court against Paterson Batten and Loom Builders, Incorporated, a corporation, to recover damages for personal injuries sustained by him on November 9th, 1923, as a result of injury sustained while working in the employ of that corporation; that an answer was filed by Messrs. Harley, Cox & Walburg (who represented the insurance company) who filed said answer on behalf of and at the request of the defendant employer; that at that trial a verdict was rendered in favor of the plaintiff and against the employer and judgment was entered thereon; that execution was issued against the employer and returned unsatisfied; that theretofore a policy of insurance was issued by the defendant Aetna Life Insurance Company to the employer, which policy afforded to the employer indemnification from the judgment obtained against it by its employe, the plaintiff.

In its answer the defendant avers, amongst other things, that the injury occurred while plaintiff was employed by his employer in work which was in violation of the statutes of the State of New Jersey, and while illegally employed, and further avers that the defense of the original suit was in accordance with a non-waiver agreement entered into between the employer and the defendant wherein the defendant, Aetna Life Insurance Company, agreed to have said Messrs. Harley, Cox & Walburg file an answer and to defend such action with the understanding that if any judgment were recovered against the employer, no part of it would be paid by the defendant for the reason that its policy of insurance did not provide coverage for any injuries sustained by any employe of the employer while illegally employed in violation of the statutes of the State of New Jersey.

At the trial both parties moved for a directed verdict, and the judge directed a verdict for the plaintiff.

We think that direction cannot be sustained for reasons we wall now state.

The testimony tended to show that the plaintiff employe on November 9th, 1923, the date of the accident, was fifteen years of age.

The plaintiff contends and the defendant denies that the original action against the employer was grounded only on common law negligence. We think that it was not. It states an illegal employment in violation of the statute. Thus it alleged that, on the day of the accident, the plaintiff was fifteen years of age; that on that day he was employed on a machine that was propelled by mechanical power commonly called a “lathe”, which was unprotected, unguarded and dangerous; that the employer did negligently, carelessly and contrary to the statute in force in this state, permit the plaintiff to work on that machine, and while so working a piece of steel shaving entered into the third finger of the plaintiff’s left hand causing his injury; that the negligence of the defendant-employer consisted in permitting the infant plaintiff to be employed contrary to the statute and in permitting dangerous machines to be run and worked upon by said plaintiff who was an infant, then fifteen years of age, in violation of the statute. In its answer to that complaint the defendant admitted the employment of the plaintiff but denied that he was illegally employed.

The laws of 1904, page 155, as amended by laws of 1923, chapter 80, page 159, which is penal in its nature, by section 7 prohibits the employment of an infant under the age of sixteen years from working on a metal cutting machine driven by mechanical power such as a lathe.

Since the testimony tended to show that plaintiff’s employment was illegal and in violation of the statute, it remains to consider the legal propriety of the direction of a verdict for the plaintiff and against the defendant under the policy here in question in view of the state of the evidence.

Now the policy, among other things, provides:

“One (b) To indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employes as are legally employed * *

It seems clear, therefore, that there could be no direction of a verdict for the plaintiff unless as a matter of law the defendant had waived the defense of illegal employment. For “it is well settled that the injured party, in cases against an insurer, has no greater rights under the policy than the insured, he being bound by the terms of the contract, and cannot recover unless the insured could .have done so, had he paid the judgment.” Neilson v. American Mutual, &c., Boston, 111 N. J. L. 345; 168 Atl. Rep. 436.

The plaintiff contends that the defendant had waived such defense by defending the original action. This the defendant denies, contending, as it averred in the answer, that it defended the action at the request of the employer pursuant to a non-waiver agreement between the employer and the defendant, executed before trial, which recited that the suit was brought on the theory that the plaintiff was injured while he, a minor, was illegally employed by the employer in violation of the statute of the State of New Jersey providing that minors shall not be employed on hazardous machinery, and also reciting that under the terms of the policy the defendant insurance company was not liable, and expressly agreeing that “if any judgment is obtained against your (employer’s) company we will not pay it or any part of it.”

The defendant offered to prove such non-waiver agreement, but that offer was overruled and an exception taken.

We think that action erroneous and prejudicial.

The non-waiver agreement tendered was executed before trial, and the rule as stated in Neilson v. American Mutual &c., Boston, supra, is that where such an arrangement is made before the case was tried, it constituted a non-waiver agreement between the insurance company and the insured.

Upon the whole case it is apparent that the judgment must be set aside and a new trial granted and it is so ordered accordingly.


text:
    IN THE MATTER OF THE APPLICATION OF SAMUEL KOPP AND SAMUEL LIPCHITZ, PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF K. AND L. SILK MILLS, PETITIONERS-RESPONDENTS, v. BERTHA GROBART AND SAMUEL GROBART, DEFENDANTS-APPELLANTS.
    Argued January 16, 1934
    Decided May 19, 1934.
    For the appellants, Evans, Smith & Evans.

    For the respondents, Abe Jaffe (Frederic M. P. Pearse and Max Mehler, on the brief).
   Pee Cueiam.

This is the appeal of the defendants below from a judgment of the Passaic County Circuit Court.

Briefly stated the situation was this: On February 3d, 1932, the present appellants and respondents entered into an arbitration agreement to submit their differences to “Samuel Shelov and Harry Smith and such third person as they shall name and appoint” for final determination and award, and agreeing to abide their determination or any two of them. The two named arbitrators met and heard both sides as to the matter in dispute but could not agree. A third arbitrator was sought. Difficulty was experienced in selecting the third arbitrator and the Circuit Court on December 16th, 1932, on application to it and after hearing both sides, appointed Julius Breuer. Appellants objected to Breuer’s appointment and gave notice of an application to set it aside returnable January 6th, 1933. Pending this application two of the arbitrators, Shelov and Breuer (the latter appointed by the court), met and rendered an award dated January 5th, 1933, against the appellants, in the sum of $3,280.24 with costs. Smith, one of the arbitrators named in the agreement, did not attend or take any part in the rendering of the award, giving as his reason the pending application to set aside the appointment of Breuer.

The appellants contended that they were not notified that the arbitrators were to sit, and were given no opportunity to present their evidence and be heard. Accordingly they applied to the Circuit Court to have the award set aside, which application was denied, and that court, on July 25th, 1933, made an order denying the application to set aside the Breuer appointment, and ratifying and confirming the award, and entered judgment for the amount of the award, and appellants took this appeal.

The meritorious question, as we see it, now raised by the appellants, is that the award was made without notice of the hearing following which the award was made. There seems to be no question that the parties to the arbitration were entitled to notice of the time and place of the hearing held by the arbitrators. Crystal &c., Co. v. Elmer, 82 N. J. Eq. 486; 89 Atl. Rep. 247; Thomas v. West Jersey Railroad Co., 24 N. J. Eq. 567. This rule is not in dispute. The contention of the respondents is that in fact the present appellants had notice or had waived it. But for reasons now to be given it appears that such contention is ill-founded.

It is undoubtedly true that the appellants were not present and that they did not waive notice. Coming now to the question of whether or not they had notice, we think that they did not. With respect to appellant Samuel Grobart, the conclusion that he did not have notice or knowledge is not so clear because of some indications that he may have been told of the meeting by Mr. Smith, the arbitrator who did not attend; but we incline to think that the state of the case does not show anything more than a notice by Breuer to Smith and that Smith told Breuer that he personally would not proceed with the arbitration because a motion to set aside the appointment of the third arbitrator was pending and undecided. We think that the proof does not go to the extent of showing that notice of the time and place was given to Samuel Grobart.

When we come to consider the question of whether or not the other appellant, Bertha Grobart, had notice, we find that it is perfectly clear that she had not. In our judgment there is no evidence in the state of the case of notice to her or knowledge upon her part. Since the award was against her as well as against Samuel Grobart, and since there is nothing in the state of the case or in the relationship of the parties to indicate that notice to Samuel, if given, was notice to her, it follows that the confirmation of the award and the judgment entered thereon in favor of the respondents, should be set aside, and it is so ordered, with costs.


author: Pee Ctieiam.

text:
    ORITANI FIELD CLUB, PROSECUTOR, v. CITY OF HACKENSACK, HACKENSACK IMPROVEMENT COMMISSION AND WILLIAM SCHAAF, CLERK OF SAID COMMISSION, RESPONDENTS. AGNES M. BARKMAN, PROSECUTOR, v. CITY OF HACKENSACK, HACKENSACK IMPROVEMENT COMMISSION AND WILLIAM SCHAAF, CLERK OF SAID COMMISSION, RESPONDENTS.
    Argued January 17, 1934
    Decided May 18, 1934.
    Before Justices Paekee, Lloyd and Peeskie.

      For the prosecutors, Warren Dixon, Jr. (William J. Morrison, Jr., on the brief in No. 235).
    For the respondents, Donald M. Waesche.

   Pee Ctieiam.

This writ brings up the assessments levied against the lands of the respective prosecutors for the extension of a street in Hackensack called Berry street from State street easterly to Biver street. A number of reasons are assigned but not all of them need to be discussed.

The first point argued is that the assessment is illegal because the commissioners of assessment who had charge of the matter and who made the report, did not have the qualifications required by the statute. We find no reason to support this point. It is assigned to the last reason filed in both cases, but an examination of that reason shows that it merely alleges general error and we think is not available to support the point now made.

The next point is that the report and map returned in response to the writ are not the same report and map that were adopted and confirmed by the municipal body, and that another report and map have been substituted.

The third point is that these reports and maps failed to designate, define or limit the extent of the property of the prosecutor Oritani Field Club, against which the assessment was imposed. Similar points are made in the Barkman case.

This question of the substitution of other papers, particularly of another map, for the map originally annexed to the report of the commissioners and on file in the municipal office, was raised very early in the case and was the subject of considerable controversy. The court made a rule permitting the taking of depositions on this subject, and those depositions have come in and have been considered. It is urged for the city that the return to the writ of certiorari, which sends up a certain map, cannot be contradicted by other evidence and is conclusive on the court, but we are unable to take this view of the matter. It is true that where the review by certiorari applies to the judgment of an inferior court, the certificate of that court as to what took place before it is of necessity binding on the appellate court, but this rule does not seem to apply to the case of a mere municipal assessment made by a temporary body specially organized for that purpose. For example, commissioners of assessment are required to report in all cases whether or not the assessments were in excess of the benefits conferred, and ordinarily report that they were not in excess of such benefits; but this is no bar to taking other evidence to show that such a report was not true, and it was a matter of every day practice to do so. See for example the comparatively recent case of Lehigh Valley Railroad Co. v. Jersey City, 81 N. J. L. 290; 80 Atl. Rep. 228. In the present case the report of the commissioners as returned stated that a certain map was annexed to the report and showed the lands assessed. This was done in conformity with section 27 of article 20 of the Home Rule act. Pamph. L. 1917, p. 381, amended Pamph. L. 1925, p. 235. This section requires that the report shall be accompanied by a map showing the lands and real estate taken, damaged or benefited by said improvement, and for which damages or benefits have been assessed. Two maps are in question in this case. The one marked Exhibit P-1 is the map showing Berry street from State street to River street with certain abutting lands, and is entitled, “Assessment Map Berry Street, Hackensack, FT. J.” This map shows a lot marked “1” entitled “Oritani Field Club” as fronting on Berry street and also on River street, but without any delimitation of the amount of territory subject to assessment. Consequently, there is nothing on the map to indicate just what was assessed as against the prosecutor Oritani Field Club. On this same map the Barkman property is not shown at all; and yet the map on its face bears all the earmarks of being the map used for assessment purposes and the date December, 1931, is a short time before the appointment of the special commission for the making of the assessment.

The other map, which is claimed to be the map actually used by the commissioners and is now annexed to the report, although the depositions show quite clearly that it was not so annexed when the report was made public for examination by persons interested, shows the whole of Berry street from the New Jersey and New York railroad to River street, a distance of five blocks, instead of two blocks, three of these blocks having nothing to do with the assessments so far as proposed; and the various properties delineated thereon include a large number of properties not in any way subjected to the assessments.

Our examination of the depositions and other evidence satisfies us that Exhibit P-l was the map actually used and which should have been annexed to the report, and not Exhibit R-B, the map last above described. However, even if Exhibit R-B be regarded as the true map, the same difficulty exists with regard to property of the Oritani Field Club in that there is nothing on the map to show how much of their property, which extends all the way from Berry street to Camden street, a distance of 437 feet, is to be subjected to the assessment. We are unable to see how this assessment in either case can be upheld as against property that is not delineated on the map. The map is an essential part of the assessment and, in fact, is the only source of information whereby the property assessed can be identified. The assessment as reported speaks of lot 1 in block 401A as owned by the Oritani Field Club, and lot 11 in block 407 as owned by Mrs. Barkman; but as we have already pointed out, the Barkman lot is not shown on the assessment map P-l at all, and the Oritani Field Club plot is not indicated except by its frontage on Berry street and River street. We think these errors are fatal to the present assessment.

There are one or two other reasons argued, all of which seem to go to the point that the assessment is either excessive or that it is based on consideration which should not properly be taken into account in fixing the amount assessed. As to this phase of the case it is stipulated or conceded that api>eals are pending before the Circuit Court pursuant to the statute, and as the matters embraced in these last points are of a question that should be answered on such appeals, we do not consider them here.

However, for the reasons above stated the assessments against the two prosecutors are set aside, with costs.


text:
    DWIGHT SCHOOL OF ENGLEWOOD, NEW JERSEY, PROSECUTOR, v. STATE BOARD OF TAX APPEALS AND THE CITY OF ENGLEWOOD, DEFENDANTS.
    Argued May 1, 1934
    Decided May 19, 1934.
    Before Justices Trenchakd, Heher and Perskie.
    For the prosecutor, Wall, Haight, Carey & Hartpence (Hulst & Mowry, Thomas G. Haight and John A. Hart-pence, on the brief).
    For the defendants, F. Hamilton Reeve.

   Per Curiam.

This is an application for a writ of certiorari to review the judgment of the state board of tax appeals which denied prosecutor’s claim for exemption and affirmed the action of the Bergen county board of taxation in sustaining the assessment placed upon the property of Dwight School by the city of Englewood for 1933.

Our examination of the affidavits presented results in the conclusion that there is a reasonably debatable question presented, and accordingly the writ of certiorari is allowed.


text:
    STATE OF NEW JERSEY, EX REL. THOMAS L. KELLEY, RELATOR, v. ELIZABETH H. HIGHAM, DEFENDANT.
    Argued October term, 1933
    Decided May 18, 1934.
    Before Brogan, Chief Justice, and Justices Trenchabd and Heheb.
    Por the relator, Archibald Kreiger.

    Por the defendant, Ward & McGinnis (Peter J. McGinnis, of counsel).
   Pee Cueiam.

This proceeding, which is in the nature of a quo warranto, exhibited by the relator, sought to oust from the office of member of the Passaic county board of taxation the defendant, Elizabeth H. Higham.

The matter came on for argument on a demurrer to a plea filed against the information.

Meanwhile, it has been represented to us, in such manner that it appears to be true, that on May 2d, 1934, the senate of this state confirmed Mrs. Teresa Chesquier, nominated by the governor to succeed the defendant in such office, pursuant to the statute in such case made and provided. The question, therefore, as to the right of the defendant to hold such office, has become academic, and accordingly this proceeding will be dismissed, but without costs in this court.


text:
    SAM DeMARCO, PETITIONER-RESPONDENT, v. F. H. McGRAW COMPANY, RESPONDENT-PROSECUTOR.
    Submitted January 27, 1934
    Decided May 19, 1934.
    Before Brogan, Chibe Justice, and Justices Trenchard and ITeher.
    For the prosecutor, McDermott, Enright & Carpenter {Carl 8. Euebler, of counsel;.
    For the respondent, Franlc J. V. Gimino.

   Per Curiam.

This writ of certiorari brings up for review a judgment entered in the Hudson County Court of Common Pleas on October 17th, 1933, in favor of the petitioner and against the employer for workmen’s compensation.

On July 16th, 1930, Sam DeMarco filed his petition in the workmen’s compensation bureau, claiming compensation for temporary and permanent disability as the result of an accident alleged to have arisen out of and in the course of his employment by F. H. McGraw Company on October 7th, 1929.

The employer by answer admitted that the petitioner was injured in the accident in question and that it arose out of and in the course of his employment, but denied that there was any permanent disability as a result of the accident or that the workman was entitled to any compensation other than temporary which had been paid.

At the hearing before the compensation bureau, the referee found in favor of the workman and against the employer and judgment was entered on December 19th, 1931, giving the petitioner temporary disability for thirty-three weeks at $20 per week and permanent disability of thirty-seven and one-half per cent, of total. Although the referee found the permanent disability to be thirty-seven and one-half per cent, of total the actual award was only twenty-five per cent, of total because-the petitioner had previously been injured in another accident while employed by another company and the bureau had previously awarded him twelve and one-half per cent, of total in a proceeding against that employer.

No appeal was taken from that determination and judgment by either party and the employer paid it in full in weekly payments as provided in the order.

On November 8th, 1932, after payment in full of the judgment of December 19th, 1931, the workman filed another petition with the workmen’s compensation bureau to secure-an award for increased disability.

The employer filed an answer alleging payment in full of the judgment of December 19th, 1931, and denying that the workman’s disability had increased since the prior award.

Proceedings on this second petition came on for hearing-before the referee and the only testimony taken was that of witnesses produced by the workman. No witnesses were-called by the respondent because the employer moved for a nonsuit at the end of the petitioner’s case, which motion was-granted and the petition dismissed on the ground that the petitioner had failed to prove he was suffering from an increased disability over that awarded on December 19th, 1931.

The petitioner thereupon appealed from this last mentioned order and determination to the Hudson County Court of Common Pleas upon the record of that second proceeding before the compensation bureau.

That court reserved decision upon the arguments of counsel and thereafter found in favor of the petitioner, and awarded an additional disability for the loss of one eye and an additional ten per cent, of total for a neurotic condition. of the eye amounting in all to one hundred and fifty weeks at $20 per week additional compensation or a total of $3,000. That judgment entered in the Court of Common Pleas was based solely upon the petitioner’s testimony. The employer has never been permitted to offer its evidence.

The employer now, among other things, insists that the question before the Court of Common Pleas on appeal was the propriety of the referee’s order of nonsuit and that the court could not properly reverse the referee and enter judgment in favor of the petitioner without remanding the case to the workmen’s compensation bureau to enable the respond-has never been permitted to offer its evidence.

We are impressed with that contention.

Of course in the proceeding before the referee the burden of proof was upon the petitioner to establish the fact that the disability had increased. At the close of the petitioner’s case the employer made its motion for a nonsuit which the referee granted, after reserving decision, and so no evidence had been introduced by the employer. Therefore, when the record went to the Court of Common Pleas there was nothing but the petitioner’s testimony for the court to consider. When that court determined the referee erred in granting the motion for a nonsuit, it should have remitted the cause to the workmen’s compensation bureau for further proceedings according to law after hearing the testimony of both parties.

Our Court of Errors and Appeals has carefully considered that question in Jayson v. Pennsylvania Railroad Co., 101 N. J. L. 159; 127 Atl. Rep. 169, a somewhat similar case. In that case the petitioner was employed by the respondent railroad company and filed a petition for compensation. A hearing was held and at the close of the petitioner’s case the respondent railroad company moved to dismiss the petition on the ground that the petitioner was not engaged in intrastate commerce. Decision was reserved. The commissioner later decided that the petitioner was not engaged in intrastate commerce. Jayson appealed to the Essex County Court of Common Pleas. That court reversed the referee and then proceeded to determine the compensation to which it thought the petitioner was entitled instead of sending the case back to the compensation bureau. Ho opportunity was afforded the respondent to be heard upon the merits of the controversy. The court held, page 161:

“We feel, however, that the course of procedure taken by the Court of Common Pleas and affirmed by the Supreme Court in determining in the state of the record before the Court of Common Pleas the compensation, both temporary and permanent, to which Jayson was entitled, was erroneous. Under the circumstances of the case it should, in our opinion, have been sent back to the workmen’s compensation bureau to have had the compensation of the respondent determined, with leave to the parties to take testimony with reference thereto * * *. In the present case there was no opportunity afforded the railroad company before the compensation bureau to submit testimony upon the merits of the controversy. The Court of Common Pleas, after reversing the compensation bureau upon the question of jurisdiction, did not afford the railroad company an opportunity to submit testimony upon the merits of the controversy.”

Eeferring in its opinion to the statutory procedure provided for appeal, chapter 229 of the laws of 1921, which provisions, substantially the same, was re-enacted in chapter 25, laws of 1932, the court states:

“We think the proper construction to be placed upon this section of the act is that it gives the Court of Common Pleas authority to determine the merits of the controversy in those cases where the compensation bureau has heard testimony upon the merits, and decided the case upon the merits. It would be a denial of justice, at least, if not of due process of law, to permit under the circumstances of the present case the foreclosure of the appellant from submitting testimony upon the merits of the controversy.”

Likewise in the instant case the judgment of the Common Pleas Court is reversed and the case remitted to the workmon’s compensation bureau for determination upon the merits, affording both sides an opportunity to offer evidence.

Ho costs will be allowed in this court.


text:
    McARDLE REAL ESTATE COMPANY, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MARGARET C. McGOWAN, DEFENDANT-APPELLANT.
    Argued January 16, 1934
    Decided May 18, 1934.
    Before Justices Pabkeb, Lloyd and Peeskie.
    Por the appellant, Aloysius McMahon.

    Por the respondent, Mark A. Sullivan.

   Pee Cubiam.

Default judgments in these cases were opened in the trial court, and that action was reviewed here on certiorari. McArdle Real Estate Co., Inc., v. McGowan, 109 N. J. L. 595; 163 Atl. Rep. 24. We upheld the action of the District Court in opening the defaults, and remanded the causes for trial on the merits. There were judgments for the plaintiff corporation, and these judgments are now before us on appeal.

When the second trial came on, the judge of the District Court ruled, over objection and exception, that the affidavit .and lease submitted to the court at the first ex parte trial should stand as plaintiff’s prima facie ease at the second, and that defendant should go forward with her counter proofs. Defendant moved for a nonsuit, which was denied and exception entered. Defendant then proceeded with her case, the substantial element of which was the matter of insanity adverted to in our former opinion: and rested. Plaintiff’s counsel on rebuttal called Prank E. MeArdle, treasurer of plaintiff corporation, who testified to the preliminary negotiations with defendant leading up to the lease, conversations with her during her occupancy and after she left the premises described in the lease. It does not appear that he was cross-examined. Before he testified at all, defendant objected to his giving any testimony because of disqualification, and the objection was overruled. At the end of his testimony defendant moved to strike it all out as improper rebuttal; and the motion was denied. The sister of defendant was then sworn and testified in her behalf. A motion “for a directed verdict” was denied. (There was no jury.) The court later rendered a judgment in each ease for the plaintiff.

We take up the points for appellant in the order in which they are presented in the brief.

The first is that there should have been a direction of verdict for defendant because there was no proof of the authority of Prank E. MeArdle, treasurer of the plaintiff, to execute the written lease. We have difficulty in understanding how a verdict can be directed in a trial without jury; but treating the motion as a motion for judgment in favor of defendant for lack of any legal proof to support the plaintiff’s claim, we think the motion was properly denied. The lease was not one which was required by the statute of frauds to be in writing, as in Stammelman v. interstate Co., 112 N. J. L. 342; 170 Atl. Rep. 595. It could be by parol. It is .asserted that the paper is not under the corporate seal of the corporation. We have no satisfactory proof of that. Mc-Ardle’s testimony was challenged: first, for alleged disqualification of the witness, of which more presently; and again at the conclusion of his testimony, as improper rebuttal. This last objection came too late, after his testimony was concluded.

As to the disqualification of McArdle, defendant invoked sections 3 and 4 of the Evidence act. Comp. Stat., p. 2218. The proviso of section 3 is clearly inapplicable, because Mc-Ardle was not a party. Section 4, as amended in 1931 (Pamph. L., p. 305), brings in officers and emplo]res of corporations, but only when those corporations are parties in a representative capacity—which is not this case. The objection for disqualification was therefore properly overruled. As to the authority of McArdle to negotiate and agree for the corporation we think it was plainly inferable from his testimony. The paper, whether valid or not as a sealed lease in point of execution, clearly represented the contract between the parties for a year’s tenancy. Such a contract was valid if made by parol, and was binding on the defendant unless avoided by her insanity.

The second and third points may be treated together. They are, in effect, that it was error to hold that the ex parte affidavit received at the first trial was sufficient to establish a prima facie case on tne second, and to refuse to compel plaintiff to establish its case in chief by testimony subject to cross-examination. We think that it was error to consider the original affidavit as vrima facie proof, and to refuse to nonsuit. However, the testimony of McArdle on rebuttal was received without challenge until' after it had been concluded, and perhaps cured the error arising from its omission in the first instance.

It is said that the written lease was not received in evidence; but the written stipulation of the parties expressly so treats it.

After the entry of the original judgments, and while the proceeding reviewed in 109 N. J. L. 595, was pending, application was made on behalf of defendant as a lunatic for leave to mortgage lands to pay debts and liabilities, including the three judgments. Those judgments were vacated by the District Court on May 12th: the Court of Chancery authorized a mortgage May 14th. At the second trial of these cases (now under review), the trial court opened the hearing to receive the Chancery proceedings in evidence. They were objected to as immaterial and incompetent. Wo incline to think that they wore both, and that they were also harmful as bringing in the extraneous element of an apparent recognition by the Court of Chancery of the claim involved in tlie present litigation as a valid debt of the defendant to be paid out of proceeds of the proposed mortgage. This error suffices in our judgment to work a reversal, and a remand for a new trial, which can then be conducted as it should be conducted, ignoring the ex parle affidavit, long since dead, and requiring- plaintiff to prove its prima facie case by legal testimony and documentary evidence in the manner always pursued in a contested case.

It may be that the error in the opening of the second trial resulted from the fact that instead of following the language of our former opinion “to the end that the claims of the plaintiff for unpaid rent be tried and determined on their merits,” the rule says “to be proceeded with in accordance with the judgment and the practice of said court.” What we intended was that the cases should, after opening the defaults, be tried from the outset as contested cases, excluding all proof by affidavit unless consented to in open court or in writing.

Let the judgments be reversed and the causes remanded for a trial de novo at which plaintiff’s case shall be presented in the ordinary way by the testimony of witnesses and other evidence cognizable at common law. Suc-h new trial should he complete in itself and without the incorporation of evidence taken at any prior trial.