text:
    AGNES C. DENBLEYKER, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-APPELLANT.
    Submitted October 14, 1932
    Decided February 25, 1933.
    Before Justices Bodine and Donges.
    For the appellant, Henry H. Frylimg and Harold F. Dorgeval.

    For the respondent, Francis A. Gordon and John M. Mackenzie.

   Per Curiam.

This is defendant’s appeal from a judgment of the Union County Common Pleas in favor of the plaintiff in the sum of $15,000 for personal injuries sustained as the result of being thrown from her seat on a bus of the defendant.

On February 13th, 1930, plaintiff was a passenger on a bus of defendant on Westfield avenue between Rahway and Westfield. She was seated next to the aisle on the left side of the bus near the front. The bus swerved sharply to the right, off the paved portion of the road, and the right side dipped down considerably below the level of the left. Defendant’s driver claimed this turn was made necessary to avoid a collision with another automobile, but this point was controverted. As the result of the tilting of the bus, plaintiff was thrown from her seat against the seat across the aisle and injured. The injury for which damages were sought was an ulcer of the duodenum.

The question of negligence is not involved in this appeal. Two points are argued by defendant-appellant. The first is under the heading: “The evidence failed to establish legally that the accident created or caused the ulcer.” This is based upon the following grounds of appeal: 1. That it was error to refuse to strike out testimony' concerning the causal connection between the ulcer and the accident. , 3, That it was error to refuse to nonsuit on the ground there was no' evidence that the accident was the proximate cause of the ulcer. 5, 6, 7, 8, 9 and 10. That it was error to refuse to charge certain requests, all based upon the proposition that there was no evidence that the accident caused the ulcer.

1. Plaintiff testified that she had been in good health prior to the accident; that she struck her abdomen under the ribs when thrown against the seat; that she felt ill when she got home and took some magnesia; that the next day she was worse; and that the following day she had a hemorrhage. Her trouble was finally diagnosed as an ulcer of the duodenum.

Dr. Livengood, the attending physician, testified ■ that the blow plaintiff received caused a ruptured blood vessel, which in turn caused the ulcer.

Dr. Crohn, an expert on diseases of this sort, testified that in his opinion the blow was the cause of the ulcer.

This testimony raised a question of fact for the jury.

On cross-examination of plaintiff’s experts it was brought out that they obtained and used subjective symptoms in arriving at their conclusions. As far as Dr. Livengood is concerned, this seems to be unobjectionable because he was the attending physician. Ho objection was made to any of this testimony at the time it was given, but at the end of the plaintiff’s case, defense counsel moved “to strike out the testimony relating to any connection between the ulcerous condition and the accident on the ground that none of it has been properly proven as the natural and probable result of the accident excluding all other causes, and on the ground that all of it, according to the testimony of the doctors, all of the opinions of the doctors are based upon history in part, at least, and as it happens, all the doctors who have testified have based their opinions on histories that were composite histories given to them not only by the plaintiff but given to them also by relatives and friends.”

The motion to strike on the ground the testimony was based upon histories given the doctors, if otherwise meritorious, was made too late. If objectionable on that ground, it appeared during the testimony of these witnesses, and it was defendant’s duty to move to strike as soon as the incompetency of the testimony became known. O’Brien v. Staiger, 101 N. J. L. 526.

The refusal of the motion to nonsuit was proper. Migliaccio v. Public Service, 101 N. J. L. 496, is relied upon by the appellant, but the situation there was quite different. In that case tuberculosis, which caused death, did not appear until about a year after the accident, and was alleged to have resulted from a run-down condition caused by the accident. Here the contention is, and the expert testimony supports it, that the ulcer was the direct result of the trauma.

In view of this holding, the refusal to charge the six requests on this subject was also proper.

2. The other point is that it was error to refuse two requests to charge to the effect that the jury had a right to infer that the testimony of a Dr. Gerendasy, if he had been called as a witness, would have been unfavorable to plaintiff. This physician had examined the plaintiff and had testified at a previous trial which resulted in a disagreement. He was in court at the second trial but was not called. Appellant relies upon the case of Nelson v. Public Service, 5 N. J. Mis. R. 73; 135 Atl. Rep. 467, wherein the Supreme Court, on plaintiff’s rule for a new trial on the question of damages, said that the jury might have properly considered that the failure of the plaintiff to call either of the doctors who had treated her was because their testimony could not have aided her case. In that ease no medical evidence at all was presented. The instant case seems not to be analogous. Expert testimony was given, and it might as well be considered that this physician’s testimony would have been cumulative. In Giardelli v. Public Service, 8 N. J. Mis. R. 104; 149 Atl. Rep. 39, the Supreme Court held there was no duty on the trial judge to charge such a request.

The judgment under review is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MYERS BAKER, TRADING AS M. BAKER REALTY COMPANY, PLAINTIFF-RESPONDENT, v. WILLIAM SCHUMACHER AND LILLIE M. SCHUMACHER, DEFENDANTS-APPELLANTS.
    Submitted October 14, 1932
    Decided February 25, 1933.
    Before Justices Bodine and Donges.
    Por the appellants, William S. Darnell.

    Por the respondent, Lewis Liberman.

   Per Curiam.

This is an appeal from a judgment of the Camden County Court of Common Pleas entered by direction of Judge Shay after a trial before him and a jury. The suit was by a broker for commissions for the sale of real estate in pursuance of a written contract. The grounds of appeal challenge the action of the trial court in denying a motion to strike the complaint, in refusing to nonsuit or direct a verdict for defendants, in directing a verdict for plaintiff, and other things, but the only exceptions in the record are to the refusal to strike the complaint and to the direction of a verdict in favor of the plaintiff. No motion for nonsuit or for the direction of a verdict for either defendant was made.

In 1925 the defendant William Schumacher was the owner of property known as 211 Market street, Camden. Under date of September 27th, 1925, the following paper was executed:

“We, the undersigned, do hereby agree to pay to the M. Baker Realty Co., 227 Federal St., Camden, N. J., the sum of two thousands dollars as commission in connection with the sale of property No. 211 Market St., Camden, N. J., for the price of $42,000, and we further authorize and empower any title or trust company making settlement to deduct said amount of $2,000 from any amounts due us.

Wiiltam Schumacher

Lillie M. Schumacher.”

As a result of plaintiff’s efforts, one Bernard Citron and appellants signed an agreement of purchase and sale of said property at the agreed price. One thousand dollars was paid on account at the time of signing this agreement. There was never any settlement or transfer of title. Citron says this was due to the failure of the Schumachers to appear at the time and place fixed.

The present suit was instituted for the agreed commission, upon an allegation that the broker had procured a purchaser willing, ready and able to buy at defendants’ price.

The motion to strike the complaint was upon two grounds: (1) That Mrs. Schumacher, as a married woman, could not be held to answer for her promise to pay the debt or liability of another in the state of the Married Women’s act at the time the agreement was entered into.

A contract of this kind is not a promise to pay the debt of another. It was an undertaking on her own behalf. Kruse v. Ferber, 91 N. J. L. 470; 103 Atl. Rep. 409; Joffe v. Cohen, 104 N. J. L. 209; 141 Atl. Rep. 14.

The second ground of the motion to strike was that no cause of action was set out because no settlement of the alleged sale ever took place. In the absence of an express agreement that commission should be contingent upon settlement, the plaintiff’s contract was performed when he produced a buyer ready, able and willing to comply with defendants’ terms. There is nothing in the agreement which made the commission contingent on settlement and, therefore, plaintiff was entitled to proceed with his proof that he had performed.

With respect to the direction of a verdict, there was no question of fact for determination by the jury. Appellant claims the action of Citron in entering into the agreement to buy was lacking in bona jides, but there was no evidence supporting such claim. The contract was valid on its face and the Schumachers could have proceeded against Citron by specific performance or could have sought damages, if he breached the contract. The plaintiff performed his part of the contract, and no legal defense was interposed.

The judgment is affirmed, with costs.


text:
    WILLIAM PALANSKY, PROSECUTOR, v. MAX REICH AND JAMES H. WHITE, DEFENDANTS.
    Submitted October 14, 1932
    Decided February 25, 1933.

      Before Justices Bodine and Donges.
    Por the prosecutor, Walter V. Schwartz.

    Por the respondents, Ghandless, Weller <& Selser.

   Per Curiam.

This writ of certiorari brings up for review an order of the District Court of the Third Judicial District of the county of Bergen vacating a judgment previously entered by default in favor of the plaintiff. The ground of the order was that the state of demand set out no cause of action of which the court had jurisdiction.

1. The first point is that the court had no power to make the order more than thirty days after the judgment was entered because section 17 of the act limits the power to grant a new trial to that period unless upon the ground of newly discovered evidence. The court did not order a new trial but vacated the judgment. In Anderson v. Independent Order of Foresters, 98 N. J. L. 648; 126 Atl. Rep. 631, Mr. Justice Bergen, sitting alone, reviewing a similar action of a District Court, held that that court had power to vacate a judgment where there was no j urisdiction over the person of the defendant. His reasoning is sound and applies to a case where the defect is lack of jurisdiction over the subject-matter.

2. The second point is that there was no legal proof offered which supports the order. It was not a matter which was susceptible of proof, since the court determined a lack of jurisdiction appeared on the face of the state of demand.

3. That the order is void because it transcends the scope of the rule to show cause. The rule called upon plaintiff to show cause why the default judgment should not be reopened. The order vacates the judgment. No harm was suffered by plaintiff in this. The only question to be considered on the return of the rule, as indicated by defendant’s affidavit, served with the rule, was the jurisdiction of the court over the subject-matter. It was this question that the plaintiff was called upon to meet by the rule and the order made was based on the determination of that question.

4. That the court bad jurisdiction-of plaintiff’s claim. The first paragraph of the state of demand alleges a partnership agreement. The second that plaintiff devoted his time to the business at an inadequate compensation. The third that plaintiff’s efforts caused the business to prosper. The fourth that on November 15th, 1931, defendant, with intent to defraud, ejected plaintiff from the premises without compensating for the time spent in the running of the business. Five hundred dollars damages are claimed. The action is entitled “on contract.” It seems that this is a claim for a share of the profits in accordance with the partnership agreement. Plaintiff’s measure of damages would certainly be governed by the terms of the partnership agreement, because he alleges no other contract. He must, if it be for accounting, first seek an accounting in equity. This question, however, is not before us in the instant case. After final judgment, plaintiff may appeal, if aggrieved thereby.

The writ is discharged, with costs.


text:
    BENZION BILOW, PLAINTIFF-RESPONDENT, v. BLANCHE KAPLAN, DEFENDANT-APPELLANT.
    Submitted October 14, 1932
    Decided February 25, 1933.

      Before Justices Bodine and Donges.
    For the appellant, Maurice J. McKeown and Milton Bruch.

    For the respondent, Bosin & Zucher and Irving L. Werhsman.

   Per Curiam.

This is an appeal from a judgment of the Passaic District Court in favor of the plaintiff and against the defendant for injuries sustained by plaintiff to his hand as the result of an automobile door being slammed shut on his finger.

On July 20th, 1931, defendant’s husband was operating her automobile on her business and his own business and was driving in Newark on his way to Passaic. He saw plaintiff standing on the street and invited him to ride with him. When plaintiff got out of the car he shut the back door, holding his hand in such a position as he did so that defendant’s husband pinched the thumb when he shut the front door. Plaintiff lost the thumb nail and for sometime was unable to pursue his usual occupations.

Defendant moved for a nonsuit and directed verdict on the ground that her husband exceeded the authority of his agency in inviting the plaintiff to ride with him. The denial of these motions is the first point argued.

The motion to direct a verdict should have been granted under the authority of Zampella v. Fitzhenry, 97 N. J. L. 517; 117 Atl. Rep. 711. In that case a truck driver invited several boys to ride with him. The truck struck a rut and one of the boys, who was standing on the running board, was thrown off and injured. The trial court nonsuited the plaintiff and Mr. Justice Minturn, speaking for the Court of Errors and Appeals, sustained this action in a thorough opinion which traced the development of the law of master and servant and principal and agent with respect to torts. That case controls here.

At the conclusion of the case, it appeared without contradiction that the invitation to plaintiff was beyond the. authority of the agent or servant driver of the car. It became a question of law, in that situation, for the court to deal with. Tischler v. Steinholtz, 99 N. J. L. 149; Cronecker v. Hall, 92 Id. 450.

The judgment under review is reversed.


text:
    JOHN CARBOY, PLAINTIFF-APPELLANT, v. SIGMUND SMOLENSKY, DEFENDANT-RESPONDENT.
    Submitted October 14, 1932
    Decided February 25, 1933.
    Before Justices Bodine and Donges.
    Por the appellant, Irving Binetslcy and 'Julius Barr.

    Eor the respondent, Milton M. Unger.

   Per Curiam.

This is an appeal from an order of the Essex County Court of Common Pleas discharging a bond given by the defendant, Sigmund Smolensky, as principal, and the Public Indemnity Company, Incorporated, as surety, in the sum of $1,000 in favor of plaintiff.

It appears that plaintiff, Carboy, obtained a judgment against defendant in the First District Court of Newark in a tort action in the sum of $450. Execution being returned unsatisfied, defendant was taken under a capias satisfacien dum. He executed an inventory of property and gave the customary bond (the one ordered discharged below) and was released. The bond was in the language of section 2 of the Insolvent Debtors act (2 Comp. Stat., p. 2824), and provided: “If the said Sigmund Smolensky shall appear before the next Court of Common Pleas, to be holden in the county aforesaid, and petition said court for the benefit of the insolvent laws of this state and shall in all things comply with the requirements of the said insolvent laws, and shall appear in person at every subsequent court, until he shall be duly discharged as an insolvent debtor, and, if refused a discharge, surrender himself immediately thereafter to the sheriff or keeper of the jail of said county, there to remain until discharged by due course of law, then this obligation to be void, otherwise to remain in full force.”

This bond was recorded June 5th, 1931.

The defendant did not appear before the next term of the Common Pleas and nothing appears to have been done until the plaintiff instituted an action on the bond in the First District Court of Newark on March 7th, 1932.

On March 17th, 1932, an attorney representing the surety moved for the cancellation of the bond. There was no appearance by the debtor and no notice to plaintiff or other creditors. The order was entered ex parte. This procedure was plainly irregular and not in conformity with that outlined in the statute leading to discharge.

On June 8th, 1932, the judge of the Common Pleas, upon a motion to vacate the order discharging the bond, ordered that the defendant be produced before him for a hearing. The hearing was held on July 5th, 1932, and the judge refused to disturb his prior order, saying that he had done no one an injustice thereby. Plaintiff now appeals.

Putting aside the discussion of the irregularity of the proceedings and the question of whether or not the hearing held after the order cured the lack of notice, &e., the question to be determined is whether or not the defendant and the surety were entitled to have the bond canceled.

The order was improperly entered. The defendant did not appear at the next term of court and petition for the benefit of the insolvent laws, as required by the bond, nor did he take any steps to procure his discharge, nor did the surety surrender him. In Sholes v. Eisner, 90 N. J. L. 151, a creditor sued on a bond given under this act and it appeared tl*at the debtor had appeared at the next term of court and petitioned for release. A year later an order appointing assignees under the act was made. Plaintiff claimed a breach of the bond because the debtor had not appeared at each intervening term of court. A verdict for plaintiff was directed. This was reversed because the delay was the fault of the court, there being no reason why assignees could not have been appointed at the next term when the debtor appeared, and further because it was the duty of the plaintiff to affirmatively prove that defendant did not appear at each term. Chancellor Walker, speaking for the Court of Errors and Appeals, said:

“The doctrine of the Young case, applied to the case at bar, would indicate that when the legislature provided that an insolvent debtor should be discharged from arrest provided he made out and delivered to the officer a true and perfect inventory, &c., of all his goods, &c., and should give bond to the plaintiff at whose suit he was arrested, with sufficient surety, with condition required by the statute, and provided further that if upon hearing of his application for discharge the court should be satisfied that his conduct had been fair, upright and just — which, perforce, must include compliance with the terms of the act, which alone would entitle him to a discharge — and then discharges him from confinement on account of the very debt for which he was arrested, that discharge must necessarily presuppose that there had been no breach of the condition of the bond, and that, of course, would operate to discharge the sureties from their obligation.”

It would thus appear that there must be a discharge of the debtor, in accordance with the provisions of the act, before the bond can be canceled. In the instant case there has not yet been a discharge of the debtor, nor any step taken in that direction. The order merely cancels the bond. Furthermore, it clearly appears from the above language that the debtor is not entitled to a discharge unless he complies with the condition of the bond. This admittedly has not been clone in the instant case.

In Hart v. Boyle, 60 N. J. L. 320; 38 Atl. Rep. 801, plaintiff sued upon an insolvent bond, alleging in the declaration that defendant did not appear at the next term of the Common Pleas. In the Opinion it is stated that the bond was dated December 13th, 1896, although this is apparently an error and December 13th, 1895, is meant. Defendant pleaded that he appeared before a subsequent term of court on July 17th, 1896. Plaintiff demurred to this plea and the demurrer was sustained, the Supreme Court saying: “The second plea in this case is not an answer to the plaintiff’s declaration. The condition of the bond is that the defendant should appear at the then next court and present his petition. The breach is that he did not so appear.” See, also, Glyn v. Kelly, 71 N. J. L. 10; 58 Atl. Rep. 178.

It is clear that the condition of the bond had been breached; that the defendant had not been discharged from arrest and was not entitled to be, since he did not comply with the statute; that the bond could not properly be canceled and the surety released unless the defendant complied with the statute and secured his discharge.

The order is reversed, with costs.


author: “Eldredge, C. C. J. Per Curiam.

text:
    GEORGE W. BIGLER, PLAINTIFF-APPELLANT, v. MARY S. SIMON, DEFENDANT-RESPONDENT.
    Submitted October 14, 1932
    Decided February 25, 1933.
   “Eldredge, C. C. J.

The plaintiff in the above entitled suit seeks to recover by writ of replevin the following articles:

“Potted bulbs which were, on or about January 31st, 1931, in eight beds just outside the greenhouses at Calvary Greenhouses on Marlton Pike, Delaware township, Camden county, New Jersey, said bulbs being tulips, hyacinths and daffodils; p.art or all of said potted bulbs are now in the greenhouses;

“Eight beds of tulip bulbs planted in beds for cut flowers in front of premises;

“Fourteen thousand bulbs of tulips and daffodils and two rows of miscellaneous flowers planted in front field;

“Two hundred potted rose bushes set in rows; east of greenhouses;

“Two thousand five hundred peony plants back of greenhouses, in rear field;

“Sis thousand pansy plants outside greenhouses;

“One pile potting soil;

“One compost pile;

“One load of manure.

“A motion is now made to quash the writ on the ground that the articles mentioned are the property of the defendant in this suit and passed to her by reason of the foreclosure of a mortgage which she had upon the premises on which the articles mentioned are to be found or to which they are attached. The facts stated briefly are as follows: The defendant had a mortgage upon the premises in question, which mortgage was dated May 4th, 1926, and was duly recorded. The mortgage was foreclosed by the defendant, and at the sale by the sheriff the property covered was purchased by her. The mortgagors remained in possession of the property until sale by the sheriff, when possession was demanded by the defendant in this suit and shortly obtained. The plaintiff in the present suit is the son of the mortgagors and now alleges that the articles above enumerated were his property, and hence he brings replevin to obtain possession of them.

“There is nothing in the record to show that the property claimed or any portion of it was the property of the plaintiff at the time the mortgage was given or that it was in existence at that time, nor was any claim made during the foreclosure proceedings that the son of the mortgagors, the plaintiff herein, was the owner of the business or the articles in question.

“Under the above state of facts, the court is clearly of the opinion that the writ must be quashed. Vice-Chancellor Learning, in the case of Haddonfield Safe Deposit and Trust Company, complainant, v. Clarence U. Liggett, defendant, quotes with approval Jones Mort., § 434, as follows:

“ ‘Trees and shrubs planted in a nursery garden, for temporary purpose of cultivation and growth until they are fit for market, and then to be taken up and sold, pass by a mortgage of the land, so that neither the mortgagor nor his assignee or creditors can remove them as personal property.’

“While the above statement would seem to apply to plants growing at the time a mortgage is given, there is ample authority that the same ruling applies where the plants or crops are planted after the mortgage is placed. In the case of Howell v. Schenck, 24 N. J. L. 89, the court said that ‘a person entering by title paramount is entitled to the emblements, and this doctrine applies to a case like the present, there being no allegation that the mortgagee or the purchaser in any way recognized the lease or assented to the sowing of the grain.’ Whatever may have been the status of the plaintiff in this case respecting his occupancy of tbe land, the defendant without question entered by a title paramount to his, and the doctrine of Howell v. Schenck above quoted would apply. Supporting this view may be mentioned also Ahern v. Littl, 90 N. J. Eq. 72; 105 Atl. Rep. 597, which holds that emblements are covered by a mortgage until severance.

Por the appellant, Albert 8. Woodruff.

Por the respondent, Elmer G. Van Name.

“The contention of counsel for the plaintiff that title to the property in question was passed upon in a claim of property in the Court of Common Pleas of Camden county cannot avail. In the first place, if the articles in question be real estate, their title cannot be determined in such a suit; and in the second place, if they were included in the verdict of the jury it would be under the general statement in such a verdict ‘all goods and chattels.’ This, of course, immediately raises the question whether they were goods and chattels. Under the above quoted authorities, they are not — at least, they are not before a severance.

“Counsel for the plaintiff cites the case of Bloom v. Welsh, 27 N. J. L. 177, in support of his contention. This case, however, furnishes its own answer to the plaintiff’s claim. There was involved in this case the right of a judgment creditor. At page 182 the court said: ‘But the title of the mortgagee is quite distinct in character from that of the judgment creditor. He has a legal estate in the mortgaged premises; he may recover in ejectment; the crops as well as the land are security for the mortgage debt. Neither the mortgagor nor his lessee is entitled to emblements as against the mortgagee.’

“An order quashing the writ will be made in accordance with the views herein expressed.”

Before Justices Bodine and Donges.

Per Curiam.

The judgment appealed from will be affirmed, for the reasons stated in the opinion filed by Judge Eldredge.

The record before us does not contain a stipulation of the facts. Inasmuch as the facts as stated in the opinion are not controverted in the briefs, we assume they are as stated in the opinion.


author: Eldredge, C. C. J.

text:
    EMMA LAUTE, PLAINTIFF, v. GRACE THURBER GEARHART, GUARDIAN OF DAVID McKIBBIN, 3d, DEFENDANT. MARY A. WHITE, PLAINTIFF, v. GRACE THURBER GEARHART, GUARDIAN OF DAVID McKIBBIN, 3d, DEFENDANT.
    Decided February 27, 1933.
    Before IIenby H. Eldkedge, Circuit Court Judge.
    Eor the plaintiffs, Samuel T. French.

    For the defendant, Robert Bright, Allen S. Morgan and S. Rusling Leap.

   Eldredge, C. C. J.

The questions involved in the above entitled cases are identical and will be disposed of together.

On the 29th day of August, 1930, both of the above named plaintiffs were injured on the beach at Wildwood Gables, New Jersey, in a collision between an airplane alleged to have been operated by David McKibbin, 3d, a minor, and an automobile.

Suits were begun and summons issued November 14th, 1930, and as above indicated, the suits were brought against "Grace Thurber Gearhart, guardian of David McKibbin, 3d.”

This court is called upon to answer two questions, first: "Are the actions properly brought ?” and second, "if not, may the pleadings now be amended so as to make the ward the defendant in the suit instead of the guardian, even though the statute of limitations has expired?”

The first question we think must be answered in the negative. The Practice act of 1903, page 539, paragraph 18, provides : “If an infant is entitled to an action or if an action is brought against him, his guardian, duly appointed or especially admitted for that purpose, shall be permitted to prosecute or defend, but in no case shall the action be stayed until the infant arrives at full age.” It is to be noted that this statute does not make any provision for the bringing of a suit by the guardian in his own name, nor is any provision made whereby the guardian may be sued. The statute provides that suits shall be brought by and against the infant in his own name and he then is authorized to prosecute or defend by his guardian appointed for that purpose.

Two New Jersey decisions sustain the logic of this interpretation of the statute. In the case of Steelman v. Cox, 3 N. J. L. 644, an action was brought by Cox against Steelman, a minor. The minor’s father appeared for him as his guardian and after trial judgment was rendered against the father as guardian of the infant. On appeal, it was held that the judgment was erroneous, that the infant was party to the suit and judgment could not be rendered against his guardian. The case of Combs v. Janvier, 31 Id. 240, is also enlightening. In that case suit was brought against the guardian of a common drunkard to recover on a promissory note made by the drunkard. After the. appointment of the guardian, certain moneys and choses in action had come into, his hands in his representative capacitjq and suit was brought against him to recover on the note made by the drunkard. It was held that a judgment against the guardian would not lie, but that the suit must be against the drunkard himself. The court in this case states that the status of a lunatic is well defined; that lunatics can sue and be sued, and the suits must be prosecuted and defended in their own names. By analogy, it concludes that the same reasoning should apply to the drunkard. So by the same analogy the reasoning applies with equal force to the instant case.

In at least two other jurisdictions it has been held that one cannot be sued in his capacity as guardian so as to make the estate of his ward liable to be taken on execution, although an action may be maintained against the ward and the ward may defend by his guardian. See Raymond v. Sawyer, 37 Me. 406; Robinson v. Hersey, 60 Id. 225, and Lawton v. Fox, 47 R. I. 359; 133 Atl. Rep. 348.

Both from analogy, then, and direct authority we conclude that the suits in question were improperly brought.

In discussing the second question before the court, it must be borne in mind that not only was the infant not sued, but neither was service ever made upon him. Ho personal service was ever made upon the guardian, but service in both suits was acknowldged for her in the following language: “True and legal service of the within summons and complaint is hereby acknowledged on behalf of Grace Thurber Gearhart, guardian of David McKibbin, 3d, defendant. Bobert Bright, attorney.” This acknowledgment could in nowise be considered as service upon the infant, for in the first place an infant must be personally served like an adult, and that service should be made in the presence of some competent person. In re Martin, 86 N. J. Eq. 265; 98 Atl. Rep. 510. In the second place, an attorney has no authority to acknowledge service for an infant defendant. Lang v. Beloff, 54 N. J. Fq. 298; 31 Atl. Rep. 604.

The court then must consider the question of amendment in the light of the following facts, namely, first, that no suit was ever begun against the infant; second, that the infant was never served and hence not now before the court; and third, that the statute of limitations has run.

Counsel has furnished the court with a long line of authorities dealing with the question of amendments. They supply ample justification for finding that our courts have gone to great length in permitting amendments, even after the statute of limitations has run, and were the infant sought to be charged in this suit capable of contracting with the attorneys who acknowledge service of the guardian and represent her, the court might well be inclined to permit the amendment sought. The amendment might be permitted even though the answer sets up the following defense: “This defendant is general guardian of David McKibbin, 3d, a minor, and is not responsible for the torts of her ward,” which defense was notice -that the guardian disclaimed any responsibility for the tort of her ward. The court would be influenced by the fact that there was considerable of correspondence and negotiations between counsel and no question was ever raised relative to the nature of the pleadings until S. Rusling Leap, Esquire, was called into the case, at which time the statute had already run.

None of these negotiations, however, could bind the infant. If it be true, and it is, that an infant cannot employ an attorney (Lang v. Beloff, supra), then it follows of course that anything which may have been done by the attorney purporting to represent the minor would not be binding upon him. We think then that the doctrine of estoppel urged by counsel for the plaintiffs cannot avail.

An examination of the cases cited discloses no case exactly in point. Perhaps the nearest case in New Jersey is Wilson v. Dairymen’s, &c., Inc., 105 N. J. L. 188; 143 Atl. Rep. 454. In that suit, which was originally brought by the general administratrix, the court permitted an amendment allowing the same plaintiff to continue as administratrix ad prosequendum, even though the statute of limitations had expired prior to the time the amendment was allowed.

In Girardi v. Laquin Lumber Co., 232 Pa. 1, suit was brought against the defendant as a corporation, and after the statute of limitations had run, it was sought to name as the defendant a partnership composed of six persons trading as the Laquin Lumber Company. This amendment was refused, and in disposing of the matter the court said: “If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused.”

It seems to the court that a close analogy with the present suit is found in a line of cases against the railroads while they were under the control of the director general of railroads during the war period. In these cases where the railroad was sued when the director general should have been the defendant, an amendment was invariably refused after the statute had run. The ease of Herbert v. Payne, 291 Fed. Rep. 555, is such an authority. In that case suit was brought against the Atchison, Topeka and Santa Fe Railroad Company after it had been taken by the government. There was an amendment sought substituting the director general of railroads as a defendant after the statute of limitations had run. In disposing of the matter the court said: “We are confronted at the outset with a situation where a suit is brought against the railway company when it should have been against another defendant who represented the United States, the real party in interest. There was in effect no cause of action against the railway company. The same was against the director general. When the director general, under the permission of the court, was substituted as the sole defendant in place of the railway company, the case was then as to him a new case. The injury for which damage was claimed was the same, but the party responsible for the alleged wrong was a different party from the one originally selected by the plaintiff in error as the one against whom his claim should be prosecuted. It must be true that when a party is first brought into a case and given apportunity to make defense, the case is commenced then as to him, and if he is the only defendant, it is the commencement of a new case.”

From a full consideration of the above authorities, we are led to the conclusion that the infant, David McKibbin, 3d, not having been sued or served with process, he cannot after the expiration of the statute of limitations, by amendment, be made a party to a suit instituted against his guardian.


author: Ackerson, S. C. C.

text:
    KATHERINE ERION, PLAINTIFF, v. BOARD OF PENSION COMMISSIONERS OF THE CITY OF HOBOKEN, AND BOARD OF COMMISSIONERS OF THE CITY OF HOBOKEN, NEW JERSEY, DEFENDANTS.
    Decided February 23, 1933.
    For the plaintiff, Chandless, Weller & Selser.

    For the defendants, Horace L. Allen.

   Ackerson, S. C. C.

By consent of counsel this case has been submitted to me as a Circuit Court judge for decision without a jury on the pleadings and stipulated facts.

The plaintiff is the widow of Henry Erion, a deceased member of the fire department of the city of Hoboken, and she claims a pension as such widow by virtue of Pamph. L. 1929, ch. 292, entitled: “An act to validate and provide for the payment of pensions in municipalities of this state under certain circumstances.” Approved May 6th, 1929.

From the pleadings and stipulated facts it appears that the validity of her claim depends primarily upon the constitutionality of the above mentioned legislation which is questioned by the third separate defense set forth in the defendant’s answer.

The above entitled act (Pamph. L. 1929, ch. 292, p. 682) provides as follows:

1. “Whenever, in any municipality of this state, any person has been a member of and shall have contributed to a pension fund in accordance with the provisions of a statute providing for the creation of such a fund for a period of ten years or more and by another statute of this state such member of such fund shall have been transferred to another pension fund, in the case of the decease of such member of such pension fund, any person or persons dependent for support on such member of such pension fund shall be entitled to receive such pension as may have been provided for in the act creating the pension fund to which such deceased person shall have contributed prior to his transfer to such other pension fund as if such deceased person had not been so transferred, and the payment of such pension to such dependents in accordance with the provisions of such original pension act is hereby validated.”

2. “All acts or parts of acts inconsistent with this act are hereby repealed and this act is to take effect immediately.”

Prom the pleadings and stipulated facts, I find that the plaintiff’s claim comes within the provisions of the above quoted statute and should be allowed unless the defendant’s contention, as raised in their third separate defense, that the statute in question is interdicted by article 4, section 7, paragraphs 4 and 11 of our state constitution is sound.

It is conceded that Henry Erion became a member of the fire department of the city of Hoboken on June 1st, 1891, and continued so to be until May 1st, 1925, when he was retired as hereinafter stated. On January 28th, 1907, the city •of Hoboken adopted the provisions of chapter 65 of the laws of 1905 (2 Comp. Stat. 1910, pp. 2448, &c.), and there was created a pension fund for the firemen of said city, from which date there was deducted from the salary of said Erion and paid into said pension fund the percentage required to be so paid.

The plaintiff married said Henry Erion on July 17th, 1917, when he was fifty-three years of age and before his retirement from said fire department. He died December 18th, 1926. The plaintiff was dependent on him for support and has never remarried.

Subdivision 4 of section 11 of the aforesaid act of 1905, under which the original pension fund was created, provided, inter alia, as follows:

“When any officer or man in such department shall die after having been retired and pensioned, his widow shall receive from such fund an annual pension equal to the pension received by such-officer or man at the time of his death, to be paid in equal monthly installments to such widow during her widowhood, provided, however, that said widow had been married to such officer or man previous to the date of his retirement.”

This act of 1905 was superseded by chapter 160 (Pamph. L. 1920 (2 Cum. Supp. Comp. Stat., p. 2376), under which all previous pension funds were turned over to the commission created by the 1920 act and subject to the provisions thereof.

As herein above stated, said Henry Erion was retired from service on May 1st, 1925, pursuant to the provisions of chapter 160 of the laws of 1920 and granted a pension of one-half of his annual salary or $1,125 per annum. Erom the time of the creation of said pension fund in the city of Bayonne on June 28th, 1907, up until the time of his death on December 18th, 1926, the said Erion paid all assessments and contributions required for the aforesaid pension fund.

If chapter 65 of the laws of 1905 had been in effect at the time of Henry Erion’s death, his widow would undoubtedly have been entitled to a pension under the provisions thereof, because she had married him before his retirement, and there was no qualification therein as to marriagable age for pension purposes.

At the time of his death, however, the last mentioned act had been superseded by chapter 160, Pamph. L. 1920, and section 1 thereof, while providing for the payment of a pension to the widow of a deceased member of the pension fund, nevertheless, contained this further proviso :

“Provided, however, that she was married to her said deceased husband before the date of his retirement and before he arrived at the age of fifty years.”

It is contended that the plaintiff married the deceased before his retirement, but after he had reached the age of fifty years, so she was not entitled to a pension as his widow under the provisions of chapter 160, Pamph. L. 1920, which act was in effect at the time of his death on December 18th, 1926. And the plaintiff does not now claim, nor is she entitled to a pension as such widow under the superseded act of 1905, upon the theory of a vested right in said pension .fund. This was decided in a previous action brought by this plaintiff against these defendants on May 7th, 1928, upon the last mentioned theory, which action resulted in a judgment in favor of the defendants and against the plaintiff, based upon the well settled principle that compulsory deductions from the salary of governmental employes by authority of the government for the purpose of a pension fund, creates no contractual or vested right between such employes and the government, and neither such employes nor those claiming under them have any rights except their claims be based upon and within the statute governing the fund at the time a question relating thereto arises. Bennett v. Lee et al., 104 N. J. L. 453; 142 Atl. Rep. 362; Pension Commission of Police and Fire Department of Atlantic City v. Atlantic City Fire Department Pension Fund, 97 N. J. L. 117; 116 Atl. Rep. 271; Pennie v. Reis, 132 U. S. 464.

Following the adverse result of plaintiff’s previous action, chapter 292, Pamph. L. 1929, was passed, and the plaintiff’s present action is based upon the provisions thereof, as herein above quoted, claiming that it has the effect of restoring her to the status she would have had under chapter 65, Pamph. L. 1905, if that act, instead of chapter 160, Pamph. L. 1920, had been in effect at the time of her husband’s death.

The difficulty with the plaintiff’s present claim, however, arises from the fact that chapter 292, Pamph. L. 1929, is of the type of legislation inhibited by paragraph 11 of section 7 of article 4 of the state constitution, which provides, inter alia, that:

“The legislature shall not pass private, local or special laws, in any of the following enumerated cases, that is to say * * * regulating the internal affairs of towns and counties,” &c. “The legislature shall pass general laws providing for the cases enumerated in this paragraph, and for all other cases which in its judgment may be provided for by general laws.”

That the act in question attempts to regulate the internal affairs of municipalities there can be no doubt. Alexander v. City of Elizabeth, 56 N. J. L. 71; 28 Atl. Rep. 51. That it is special and not general legislation seems equally clear, for the classification of subjects thereby attempted is illusory, arbitrary, and such a double limitation of a class as to make the purpose of the act to fit a special situation very apparent, and it falls within the censure upon such legislation pronounced in the following cases: Helfer v. Simon, 53 N. J. L. 550; 22 Atl. Rep. 120; Westervelt v. Mayor et al. of Tenafly, 4 N. J. Mis. R. 579; 133 Atl. Rep. 753; Stahl v. Trenton, 54 N. J. L. 444; 24 Atl. Rep. 478; State, ex rel. Richards v. Hammer, 42 N. J. L. 435, 440; State v. Post, 55 Id. 264; 26 Atl. Rep. 683; State v. Riordan, 75 N. J. L. 16; 69 Atl. Rep. 494; Sawyer v. Kearny, 85 N. J. L. 625; 90 Atl. Rep. 306; Wilson, Attorney-General, v. Ramsey, 86 N. J. L. 263; 90 Atl. Rep. 265; Kudlick v. Griffin, 88 N. J. L. 573; 96 Atl. Rep. 561.

In determining whether a law is general or special, the court will look to its substance and necessary operation, as well as to its form and phraseology. Mix v. Board, &c., of Perce County (Idaho), 112 Pac. Rep. 215; 32 L. R. A. (N. S.) 534; Ark-Ash Lumber Co. v. Pride & Fairley (Ark.), 258 S. W. Rep. 335.

It will be especially noted that the 1929 act in its operation and effect, excludes the dependents of all firemen who were not such firemen in municipalities prior to the 1920 act, or who had not been members of a prior pension fund, contributing regularly thereto for a period of at least ten years prior to 1920. A simple illustration will serve to show the arbitrary and unjust character of the classification attempted by the legislation in question. Under the 1929 act a woman who had married a fireman before his retirement but after he had reached the age of fifty, providing such fireman had paid into a prior pension fund for ten years, might receive a pension as his widow, while a similar widow, whose husband had only contributed to the prior pension fund for nine years but who in all had contributed to a pension fund for many more years than the first, would not receive the benefit of the pension. There seems to be no valid justification for excluding the latter class of widows from participation in the benefits attempted to be conferred by the act in question.

As was said in the case of State v. Riordan, supra:

“The law to be general must embrace all and exclude none, whose conditions and wants render such legislation equally necessary or appropriate to them.”

It was said in State, ex rel. Richards v. Hammer, supra, that:

“The true principle requires something more than a mere designation by such characteristics as will serve to classify, for the characteristics which thus serve as the basis of classification must be of such a nature as to mark the objects so designated as peculiarly requiring exclusive legislation. There must be substantial distinction, having a reference to the subject-matter of the purposed legislation, between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree, at least, account for or justify the restriction of the legislation.”

The principle test is tersely stated in Stahl v. Trenton, supra, where the court said:

“Legitimate classification rests on the qualities of objects; not on the particular time when those qualities are acquired.”

Applying these tests to the act of 1929, it is apparent that it must fall under the ban against special legislation.

It has been argued that under the provisions of chapter 65, Pamph. L. 1905, firemen, in order to be retired and draw a pension, must have honorably served in the department for twenty years and have reached the age of sixty years, and that this is a double classification or double limitation of a class and is thereby subject to the same criticism as is directed against the 1929 act in question. The difference, however, is that the opportunities allowed under the 1905 act for retirement and pension are open to all who in the future may come into the general class, whereas the 1929 act creates a monopoly for a favored group of dependents whose status is not fixed by the future but by the past. The only effect of the 1929 act is to remove the marriageable pension age limit created by chapter 160, Pamph. L. 1920, in favor of a special group of dependents whose classification rests not, as was said in Stahl v. Trenton, supra: “On the qualities of objects;” but “on the particular time when those qualities are acquired.”

In other words the criticised legislation does not embrace all widows who would have been eligible to a pension under a prior statute, but only those whose husbands had contributed to the pension fund created by such prior statute for a period of at least ten years before being transferred to another pension fund created under a latter act.

The act of 1929 can never apply to the dependents of any member of a pension fund whose status was not already fixed at the time of the passage thereof. It applies to a special class, arbitrarily selected and not to a general class constantly available to new members as they reach a uniform standard as in the case of general pension legislation.

I, therefore, find that chapter 292, Pamph. L. 1929, is unconstitutional as violative of placitum 11 of section 7 of article 4 of the state constitution, in being special legislation, and as this finding is dispositive of the whole case, it is unnecessary to consider the other defenses set forth in the defendants’ answer.

I, therefore, find for the defendants and against the plaintiff, a verdict of no cause of action.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    SUSAN P. FLEMING AND GREEN GABLES OPERATING CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, OR SUSAN P. FLEMING OR GREEN GABLES OPERATING CORPORATION, IN THE ALTERNATIVE, PLAINTIFFS, v. MATTER CONSTRUCTION CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided February 20, 1933
    For the plaintiffs, Heyman & Heyman.

    For the defendant, Autenrieth, Gannon & WortendyTce.

   Brown, C. C. J.

The plaintiffs move to strike the answer and counter-claim of the defendant on the grounds that those pleadings are sham and frivolous. The suit arises out of a lease of premises situate in Jersey City; the plaintiff Susan P. Fleming being the lessee and the defendant the lessor. The period of letting commenced on the 23d day of December, 1929, and to end on the 31st day of December, 1951. The rent reserved was $43,000 for each of the first three years, $44,000 for the following two years and $45,000 for the balance of the term. Paragraph fourteen of the lease requires the tenant to deposit with the landlord the sum of $33,700 as security for the faithful performance of the terms, conditions and covenants of the lease, the landlord during the entire term thereof to retain the security and if there was no breach in the terms of the letting by the tenant the landlord was to apply the deposit to the rental of the last year of the term of the lease. The plaintiff other than Susan P. Fleming became interested in the leased premises by assignment of the lease. The lease contains the usual covenants found in agreements for the renting of premises and in addition a paragraph (fifth) wherein the tenant agrees in case of default in the payment of rent the landlord may at its option terminate the lease in which event the lease would expire as fully and completely as if there was a date therein definitely fixed for the expiration of the lease and the tenant further agreed that she would quit and surrender the premises to the landlord, “provided, however, that in such case the tenant shall, nevertheless, remain liable for the payment of rent as herein provided.”

The sixth paragraph of the lease provides for the right of re-entry in case of default by the tenant either by summary proceedings, &c., in which event the landlord is not to be held liable for damages and the landlord shall have the right to terminate the lease at its option and “relet the demised premises or any part thereof as the agent of the tenant, and receive the rents therefor, applying the same, first, to the payment of such expenses as the landlord may have incurred, and then to the fulfillment of the covenants of the tenant herein, and the balance if any, at the expiration of the term as above provided, shall be paid to the tenant, and for such purpose, the tenant hereby makes, constitutes and appoints the landlord as the agent of the tenant, with full power and authority to do and perform all acts necessary in the premises. In any event, the tenant shall remain liable for, and the tenant hereby covenants to pay to the landlord until the expiration date mentioned in this lease, notwithstanding the provisions of this lease relating to termination hereof, by the landlord in case of default by the tenant, the equivalent of the amount of all of the rent reserved herein, less the avails of reletting, if any, and the same shall be due and payable on the several rent days above specified, that is, upon each of such rent days, the tenant shall pay to the landlord the amount of the deficiency then existing. The words “re-enter” and “reentry” as used in this lease are not to be restricted to their technical legal meaning.”

The plaintiffs complied with ail the terms and conditions of the lease until the 15th day of April, 1932, when they defaulted in the payment of rent and water charges for water used on the premises which the tenant agreed to pay. The defendant upon default immediately brought suit in a District Court and obtained possession. Thereafter the plaintiff’s tenant brought their suit to recover from the defendant landlord the deposit of $33,700 less the moneys claimed to be due by the defendant for rent and water charges.

The plaintiffs’ motion to strike is directed against the separate defenses and counter-claim set forth in the answer. The separate defenses are to the effect that the defendant had the right of re-entry after default and notwithstanding such reentry the tenant was to remain liable for the payment of the rent as provided in the lease. Deference is also made to the provisions in the fourteenth paragraph of the lease wherein it is provided that the .deposit shall be held by the landlord as security for the performance of all the terms of the lease and that the lease would not expire until the year 1951, and that it was through the willful and intentional breach of the covenants on the part of the plaintiffs that the landlord was required to re-enter the premises; that by reason of the terms-of the lease and the willful breach by the tenant of the covenants of the lease the landlord is entitled to retain the security for the rent until the expiration of the lease and to set off against the deposit any damages sustained by the landlord. In the counter-claim the defendant refers to the lease and charges a breach by the tenant in failing to pay its rent and the right of re-entry on the part of the landlord; losses sustained by the landlord caused by the tenant’s failure to pay the water rents as provided in the lease; destruction of personal and real property; costs of repair, loss of rentals, all of which the defendant charges were occasioned and caused by the tenant in violation of the terms of the lease.

The plaintiffs contend that because the landlord obtained possession of the premises it thereby effected a suspension of the entire rent that was due thereafter and all remedy for its recovery during the continuance of the eviction. Hunter v. Reiley, 43 N. J. L. 480; Morris v. Kettle, 57 Id. 218; 30 Atl. Rep. 879; also that they have the right to recover the deposit paid by them to the landlord less the amount due for rent and water charges at the time of the alleged eviction. Hecklau v. Hauser, 71 N. J. L. 478; 59 Atl. Rep. 18; Peters v. Weiner, 109 N. J. L. 10; 160 Atl. Rep. 31.

The defendant’s reply to this argument is that under the terms of the lease the eases above cited have no application as the lease provides for the payment of rent and other performances by the tenant notwithstanding the tenant’s eviction and dispossession until the expiration of the lease in the year 1951. Ho authorities have been cited in the defendant’s brief to support this contention and those the court has been able to -locate sustain the defendant’s contention.

The surrender of a leased premises by a tenant extinguishes the relation of landlord and tenant and ordinarily releases the tenant from liability for rent accruing thereafter. It may of course be expressly provided in the lease that the obligation to pay rent shall not cease on surrender of the premises and the parties may provide at the time of the surrender that the surrender shall not release the tenant from liability for rents not then accrued. 36 C. J. 337, § 1144.

A lessor’s acceptance of premises surrendered by lessee after notice to quit for non-payment of rent, manifested a termination of the relation of landlord and tenant, but did not effect lessee’s contractual liability for subsequent accruing rents under express covenant in a lease to pay rent for the entire term, irrespective of the forfeiture according to the decision in Selts Inv. Co. v. Promoters, &c., 222 N. W. Rep. 812. In Blumberg v. Corday, 160 N. Y. Supp. 613; affirmed, 171 App. Div. 906, a tenant who had been dispossessed by summary proceedings for failure to pay rent was held not to be entitled to a return of security deposited for the faithful performance of the provisions of the lease in an action commenced before the expiration of the term of the lease, since one provision was to the effect that the lessee should remain liable after re-entry by the landlord for default of the lessee, for any deficiency existing in the amount of rent which he was able to realize therefrom, and it would be impossible to determine until the expiration of the term what, if any, the deficiency would be.

In the instant case the contractual liability of the tenant continues after the eviction caused by the landlord’s dispossess proceedings until the termination date of the lease. The motion to strike will be denied.


author: Lyon, J.

text:
    Middlesex County Court of Common Pleas.
    ALBERT T. SCANNELL, PLAINTIFF, v. RANSOME CONCRETE MACHINERY COMPANY, DEFENDANT.
    Decided February 1, 1933.
    Por the motion, John Fuchs.

    Contra, Waller C. Sedam.

   Lyon, J.

This is a motion to strike out an answer as sham. Affidavits in support and against have been filed.

The action is brought to recover royalties due under a license granted by the plaintiff to the defendant to manufacture and sell the device referred to in a certain patent covering a mast erecting apparatus, dated April 24th, 1928, and known by number 1,667,440.

The license was granted under an agreement dated May 20th, 1929, and grants a non-exclusive right to manufacture, use and sell the apparatus in question to the end of the term of the patent. The royalty to be paid was at the rate of $50 per plant with a minimum sum of $3,000 per year, payable in monthly pajunents of $250 each.

The defendant accepted the license and operated under it until October 15th, 1931, and paid the minimum royalty as it became due, amounting in all to $7,000. At this time the defendant ceased paying upon the claim that the plaintiff was not entitled to further payments for the reasons hereinafter stated. Thereupon this action was brought to recover what the plaintiff claims to be due, namely, $2,500.

The complaint simply alleges the contract, annexes a copy, and claims the amount due and unpaid. The answer admits the making of the license agreement, the acceptance by the defendant, the payment on account of the royalties due of $7,000, and the refusal to pay.

The defenses set up in the answer are (1) that the contract was entered into because of representations made by the plaintiff that he was the owner of the patent in question, when he was not the owner of the broad subject-matter of the said patent; that (2) the plaintiff threatened the defendant with suit for infringement if it did not enter into the agreement, and (3) that under paragraph 11 of the license agreement—

(a) Its rights under any other invention, patent, application or claim relating to the general subject-matter should not be detrimentally affected (presumably on the ground that if any such invention, patent, application or claim was of such nature, or determined to be, as to take precedence over plaintiff’s patent, so as to make plaintiff’s patent worthless to them, then there would be a failure of consideration), and

(b) That defendant was entitled to concessions, reasonable royalties or other compensation from the plaintiff in case he used the inventions. Defendant also claims the return of the moneys paid under the agreement because it claims the license agreement was signd under the misrepresentation of plaintiff above mentioned.

By reason of and under the above paragraph (b) defendant claims in the proofs (although it does not appear to be clearly set forth in the counter-claim) that the plaintiff has used the invention and that defendant is, therefore, entitled to compensation therefor and sets up this claim by way of counter-claim as a part of its answer.

By the proofs it appears that one John P. Faber, on August 5th, 1924, filed an application for a patent covering the same subject-matter as covered by plaintiff’s patent, which application is still pending; that more than a year after Faber’s application was filed plaintiff’s application was filed for the patent in question, upon which application plaintiff’s patent was granted on April 24th, 1928, as No. 1,667,440.

That an interference proceeding was instituted in the United States patent office known as No. 60,018 and such proceedings were had therein that it was decided on final hearing that the subject-matter of the claim of the patent in question was first invented and reduced to practice by Faber, and not by the plaintiff, and the decree on said hearing awarded the said subject-matter to defendant (the said Faber having assigned his claim to the defendant). An appeal from said decision has been taken and is now pending.

Faber has assigned his claim to the defendant who held the same at the time of the license agreement, May 20th, 1929. It is stated in the proofs (affidavit of Mr. Cox, paragraph 5) that the plaintiff knew at the time of the agreement that the defendant had the Faber application pending.

It appears, therefore, that at the time the agreement in question was entered into, the defendant owned the application for the Faber patent, the plaintiff owned his patent, and that there was a question as to the interference between the two. Indeed, it is claimed by the defendant that it entered into the agreement because the plaintiff said that unless it did •he would bring action for infringement of his patent. In the light of these facts the agreement in question was made. When the agreement was drawn, section 11 was inserted, which, acording to the contention of defendant, is the important consideration in this case. It reads as follows:

"Eleventh: It is further understood and agreed that the acceptance of this license by the licensee shall not act as a waiver, modification of or detrimentally affect its rights under any inventions or patents or application for patent or claims thereof owned or controlled by it relating to the general subject-matter of the patents herein referred to and also that the said licensee shall have the right to proper concessions, reasonable royalties or other compensation from the licensor and others under said inventions, patents, applications or claims in case he or they wish to use the same.”

In view of this section, together with other considerations mentioned above, defendant has set up its defenses above recited.

First, it says that plaintiff claims he was the owner of the patent when he was not. By that it means that plaintiff was not the owner of the “broad subject-matter” of the patent, meaning that the claim on his subject-matter had been awarded to defendant’s assignor in the interference contest.

Plaintiff replies that he was the owner of the patent at the time of the license agreement. It cannot be disputed that he did have title to and was the owner of this patent at that time, it being recited in the agreement as being No. 1,667,440, and dated April 24th, 1928. Defendant recognized this in signing the agreement. Not only did defendant sign the agreement but accepted it and acted under it, paying royalties to plaintiff for twenty-eight months amounting in all to $7,000. It only declined to pay further after the decision in the interference contest.

The question, therefore, arises as to whether there was a misrepresentation on the part of the plaintiff so as to avoid the agreement and release defendant from payment.

Counsel for plaintiff has cited the case of Ferry-Hallock Co. v. Progressive Paper Box Co., 76 N. J. Eq. 1; 73 Atl. Rep. 230; affirmed (Court of Errors and Appeals), 76 N. J. Eq. 338; 75 Atl. Rep. 1100. There is a very meager statement of facts in the opinion in the case, but it seems to lay down principles which have application to the case at bar.

At page 3 the Vice-Chancellor says: “under the circumstances proved, complainant’s representation or claim that the ‘stays’ in question were covered by its patents, was Iona fide and honestly made, and was a representation or claim which, in bargaining with defendants as to a license, it committed no fraud in making, and that the defendants being at that time actually claiming and acting on an adverse title — being the same title which they now set up and seek to establish by evidence — were not entitled to act on this representation or claim of title made by complainant as the assertion of a fact, the falsity of which, subsequently proved, would entitle them to repudiate the contract on this ground. No authorities have been referred to establishing that representations of this character, made under these circumstances, are representations of fact on which defendant had then the right to rely, but might subsequently disprove, when it so elected, by disputing the license.”

“The general principle is that the licensee, to the extent that he continues to use the license, is estopped from denying the licensor’s title.” Citing cases.

To the same effect is the case of International Signal Co. v. Marconi, 89 N. J. Eq. 319; 104 Atl. Rep. 378, where it is held that “where possible invalidty of patents is a recognized factor leading to a contract for the payment of royalties, there is no failure of consideration because the patents are afterwards held “invalid.” The Vice-Chancellor (at pages 324, 325), says:

“It is next insisted for the defendant that because the two patents of the complainant, the only ones which the defendant says it is using, have been held invalid by the United States Circuit Court of Appeals for the Second Circuit, there has been a complete failure of consideration, and they base their insistence upon a line of cases which hold that where a contract is entered into for the payment of royalties based upon the assumed validity of a patent, and the patent is afterwards declared invalid, there is no further liability under the contract. But in the case at bar, that the patents might be invalid, was a recognized factor which led to the making of the contract. The case is somewhat analogous to Strong v. Carver Cotlon Gin Co. (Supreme Court of Massachusetts), 83 N. E. Rep. 328.”

In this opinion it is stated “that the patents might be invalid, was a recognized factor which led to the making of the contract.” In the case at bar Mr. Cox, for the defendant, says in paragraph 5 of his affidavit as follows:

“5. At the time of the execution of the said contract of May 20th, 1929, the plaintiff was informed and knew that the defendant had an application for patent relating to the general subject-matter of plaintiff’s patents of 1927 and 1928 set forth in said agreement, and that the defendant intended to make claims in said application relating to said subject-matter. This information was discussed between deponent and the plaintiff at a conference held in the city of Chicago over the terms of the proposed agreement very shortly prior to the execution thereof. It was for this reason that the plaintiff at deponent’s request agreed to have paragraph eleventh of the agreement included therein, which paragraph states that the acceptance of the license by the defendant ‘shall not act as a waiver, modification of or detrimentally affect its rights under any inventions or patents or applications for patent or claims thereof owned or controlled by it relating to the general subject-matter of the patents.’

“At the same time it was agreed, as stated in the said paragraph, that the defendant should have ‘the right to proper concessions, reasonable royalties or other compensation’ from the plaintiff under said inventions, patents, applications or claims. There was no understanding or agreement that such reservation and right to compensation related to anything other than the subject-matter of the plaintiff’s said patents.”

Mr. Robinson, also for the defendant, says in paragraph 3 of his affidavit as follows:

“3. I was present at a conference held in Cleveland, Ohio, in January, 1929, attended by the plaintiff, Albert T. Seannell, and George C. Ellis, then president of the defendant company, during which conversation the plaintiff represented that he was the absolute owner of the three patents referred to and described in the license agreement and I heard the plaintiff state that he would be compelled to protect his patent rights against any infringement by the Ransome Company or anyone else and that he would bring legal action against the Ransome Company unless they would enter into a license agreement with him covering his said patents. I stated to the plaintiff at that time that the Ransome Concrete Machinery Company had certain patent applications pending which would offset some of the claims of his said patents and that the Ransome Company was, therefore, entitled to the same concessions he had granted to the Insley Manufacturing Company on account of their patents relating to the same subject-matter.”

It is quite clear from this testimony that there was a question of infringement between these parties as to these two patents or claims, and, in the language of the last above cited case, “that the patents might be invalid, was a recognized factor which led to the making of the contract.”

In the affidavit of Mr. Cox for the defendant he states that “the said contract was given with a warranty on the part of the plaintiff.” This is not the fact. There was no express warranty in the contract, nor was there any warranty implied in law.

It does not appear in this case that the defendant was in anywise evicted from any rights which it obtained under the license agreement, so as to bring the case within the principle laid down in the case of the Macon Knitting Co. v. The Leicester Mills Co., 65 N. J. Eq. 138; 55 Atl. Rep. 401, wherein it is held that “a patentee, in granting a license to use the patented article, impliedly warrants that he possesses the title to the patent right, and that the licensee will not be evicted therefrom; but he does not warrant the validity of the letters patent.”

This latter case was approved in the case of American Mechanical Improvement Co. v. Des Lawries Aircraft Corp., 119 Atl. Rep. 179; 94 N. J. Eq. 197. At page 207 the vice-chancellor says “the licensee cannot set up the invalidity of a patent, the right to use which he holds by license, unless there has been something equivalent to an eviction of the licensee.”

It is clear in this case that the defendant has not-been evicted from its rights under the license agreement. There is no conflict as to these rights except between the plaintiff and defendant in the case. The plaintiff is not challenging the right of the defendant under the agreement but is rather recognizing them by an endeavor to hold the defendant to a payment of the royalties due thereunder.

It seems to me there was no misrepresentation in the making of the contract which could justify the defendant in repudiating it.

But defendant claims that in view of this question section 11 (supra) was inserted in the agreement, particularly the first part of it before the words “and also.” Just what is the meaning of this part of the section is not very clear, either from its reading or from the affidavits filed; but it does not seem to place any restriction on the rights of the plaintiff as to his patent. It was undoubtedly intended to preserve full right to defendant under any patents or inventions it may hold. It cannot be claimed that by enforcing the agreement any of defendant’s rights are taken away. If the inference is that it has the right to manufacture and sell the apparatus in question under any other claim or patent so that the plaintiff’s patent is worthless to it, then the consideration unfortunately for the defendant may fail. . But that is a condition for which the plaintiff is not responsible and under the questions above considered is not a defense.

The defendant has raised the further defense that it was compelled under a sort of duress to sign the contract in order to save itself from a suit by plaintiff for infringement. I cannot think there was any duress. It is a condition similar to what would occur if a person exercised a right of way over lands claimed by another without his permission, and then the alleged landowner threatened suit for trespass unless his rights were recognized by lease. It is rather the compromise of a controversy which the law favors. Certainly there was no illegal act by the plaintiff and no constraint overcoming the free will of the defendant.

But the defendant further claims to have a counter-claim against the plaintiff, and has annexed such a claim to the answer, which is included in plaintiff’s motion to strike out.

It does not seem that the defendants counter-claim includes what defendant really claims in its proofs. Of course an amendment would be allowed if there is merit in the claim. It seems to claim reimbursement for a part of the moneys paid by it to plaintiff on account of the royalties due under the agreement. If the contract must be enforced which under hereinabove mentioned authorities seems to be required, then there can be no reinbursement from this money paid.

If the counter-claim is based on the latter part of section 11 of the contract, which reads “that the licensee shall have the right to proper concessions, reasonable royalties or other compensation from the licensor and others under said inventions, patents, applications or claims in case he or they wish to use the same,” then defendant should have the opportunity to show any claim for such compensation.

The fourth paragraph of the affidavit of Mr. Eobinson asserts that certain licensees of plaintiff have made and sold mast plants coming under the terms of plaintiffs patent, and that it is for compensation or royalties for such use that comes under the latter part of section 11, and which is contemplated by or intended to be set up in the counter-claim. Counsel may communicate with me further on the question of the counter-claim.

The other parts of the answer would have to be stricken out.


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    Middlesex County Court of Common Pleas.
    WILLIAM WEINBERGER, TRADING AS WILLIAM WEINBERGER & COMPANY, PLAINTIFF, v. MARGO REALTY CORPORATION, DEFENDANT.
    Decided February 8, 1933.

      For the motion, Jacob PoTkowitz.

    Contra, Paul W. Ewing.

   Lyon, J.

This is an appeal to the Middlesex Common Pleas from a judgment rendered in the court for the trial of small causes. Judgment was rendered in the court below in favor of the plaintiff, and the defendant has appealed to this court.

The judgment was rendered in the small cause court on July 14th, 1932. The defendant filed its notice of appeal and bond in due form with the justice on July 18th, 1932, which was within the time prescribed by the statute, but did nothing further to bring on the appeal at the following September term. Neither did it bring on the appeal at the following December term which opened on December 13th, 1932. The transcript from the justice was not filed until December 20th, 1932.

Appellee now moves to dismiss the appeal on the ground that the same was not put on the list by the appellant at the next term after the taking of the appeal, in accordance with the provisions of section 90 of the Justices’ Courts act (Comp. Stat., p. 3008, § 90), which is as follows:

“All appeals to the Court of Common Pleas shall be put on the list by the appellant for trial at the next term after the same shall be appealed, if sufficient time to notice the same, for ten days, remain between the perfecting of the appeal and the first day of the next term; either party may give such notice and place said appeal on the list for trial; in default of such notice the court, unless good cause be shown, shall dismiss the appeal.”

The appellant resists the motion on the ground that the justice of the peace did not send up the papers until about the beginning of the December term, claiming that the delay was not appellant’s fault but the fault of the justice. It, therefore, takes the position that after it has perfected its appeal by giving notice and filing bond it has no obligation to see that the justice sends up the papers and that the appeal is brought on for trial.

The section 90 aboye recited provides that “all appeals to the Court of Common Pleas shall be put on the list by the appellant for trial at the next term after the same shall be appealed.”

In the case of Gaskill v. Miller, 71 N. J. L. 103; 58 Atl. Rep. 81, the court held that “if the appellant failed to notice the appeal at the next term of the Common Pleas after such appeal shall be taken, the court must dismiss the appeal unless good cause be shown.”

In the ease of Drake v. Camp, 45 N. J. L. 293 (at p. 294), the court held as follows:

“The mere failure on the part of the justice to perform his duty at the time appointed will not warrant the dismissal of the appeal, because the statute, as to time, is directory merely, but its performance at some time is necessary to put the appellate tribunal in possession of the cause for trial, and consequently the appellant, who is bound to prosecute his appeal, must use due diligence to see that such a certificate is promptly brought in. In the present case such diligence was not exercised. The appellant’s attorney made no attempt to learn whether the justice had done his duty. * * * This was laches in the appellant; and whether the Common Pleas should excuse him or should dismiss his appeal, in accordance with its rule framed to carry out the purpose of the legislature that such cases should be determined summarily, was a question addressed to the discretion of that court.”

There was no good cause shown in the case at bar why the appellant did not notice the appeal at the next term after judgment rendered. The failure of the justice to send up the papers was not good cause. If he did not do it, it was the duty of the appellant to take a rule upon the justice to compel him to do so. The words in the last quoted case apply to the appellant in this case. The appellant was “bound to prosecute his appeal” and “to use due diligence to see that the certificate of the justice was promptly brought in.” “Such diligence was not exercised.” “The appellant’s attorney made no attempt to learn whether the justice had done his duty.” “This was laches in the appellant.”

In the case of Howell v. Van Ness, 31 N. J. L. 443, the appeal was dismissed and an application was made to reinstate it. In that case the Supreme Court said that the court may reinstate the appeal, but it must be for good cause shown, as when the appellant has a meritorious defense, which by some surprise he has been prevented from showing. The good cause shown, stated in section 90 above referred to, is not the neglect of the appellant’s attorney which is the situation in this case. The only “good cause” is where appellant has been prevented “through surprise, and without any fault of his own.” See, also, Hockenbury v. Alpaugh, 34 Id. 342.

The motion to dismiss the appeal in this case must be granted.


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    Middlesex County Court of Common Pleas.
    WALTER LEWIS, RECEIVER OF THE FIRST NATIONAL BANK AND TRUST COMPANY OF WOODBRIDGE, NEW JERSEY, PLAINTIFF, v. MRS. LEWIS E. POTTER (JENNIE B. POTTER) AND W. H. BERRY, ADMINISTRATORS OF THE ESTATE OF JAMES E. BERRY, AND JENNIE B. POTTER AND W. H. BERRY, DEFENDANTS.
    Decided February 1, 1933.
    For the plaintiff, Emil Stremlau.

      For the defendants, Duff & Duff.

   Lyon, J.

This action was brought by the plaintiff as receiver of the First National Bank and Trust Company of Woodbridge against the defendants who were the maker and endorsers of a promissory note in the sum of $656.32. The note was dated November 13th, 1931, and payable February 13th, 1932. The bank was closed by the comptroller of the currency on November 30th, 1931, and the plaintiff was appointed receiver on December 2d, 1931.

The defendant Jennie B. Potter, one of the endorsers, seeks to set off against the claim of the plaintiff the amount of her deposit in the bank of $520.83.

The question which arises, therefore, is whether an endorser of a promissory note, who is liable only as endorser, can set off his account against a claim of a receiver of an insolvent national bank upon said note.

This right of set-off, if it exists at all, must be under the New Jersey act concerning set-offs (4 Comp. Stat., p. 4836), which provides “that if any two or more persons be indebted to each other, such debts or demands not being for unliquidated damages, may be set off against each other.”

The set-off exists only by virtue of statute and was unknown at common law. Roseville Trust Co. v. Barney, 89 N. J. L. 550; 99 Atl. Rep. 343; Curtis-Warner Corp. v. Thirkettle, 99 N. J. Eq. 806; 134 Atl. Rep. 299; affirmed, 101 N. J. Eq. 279; 137 Atl. Rep. 408.

The statute of set-off applies only to mutual indebtedness. Yerkel v. Gross, 105 N. J. L. 308; 144 Atl. Rep. 312.

In the case of Van Wagoner v. Paterson Gaslight Co., 23 N. J. L. 283, so elaborately quoted by counsel for defendant, it is held that “all cross demands, provided they Toe mutual, shall be set off.”

“The relation between a bank and its general depositors is that of debtor and creditor, and the bank may set off against a general deposit a debt due to it from the depositor.” Peoples Bank v. Tufts, 59 N. J. L. 380; 35 Atl. Rep. 792; Roosevelt Trust Co. v. Barney, supra; Curtis Warner Corp. v. Thirkettle, supra; Campbell v. Watson, 62 N. J. Eq. 396; 50 Atl. Rep. 120.

While there is a mutual relation between a bank and its general depositors so that the bank may set off against a general deposit a debt due to it from a depositor, does that mutual relationship extend to a bank and a depositor whose debt is only contingent, and can be enforced against the depositor only in the event that the principal debtor is insolvent?

The Negotiable Instruments act (3 Comp. Stal., p. 3742, ¶ 63), provides that “a person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an endorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”

The same act on page 3743, paragraph 70, provides that “presentment for payment is necessary in order to charge the drawer and endorsers,” and further, section 89 provides that “when a negotiable instrument has been dishonored by nonacceptance or non-payment, notice of dishonor must be given to the drawer and to each endorser, and any drawer or endorser to whom such notice is not given is discharged.”

Furthermore, in the event of judgment against maker and endorsers and execution thereon, the amount must be made first against the maker before recourse can be had to the endorsers. Comp. Stat. p. 4061, ¶ 35.

In Paton’s Digest of Legal Opinions, No. 2943, it is stated “where the depositor is endorser on a note of a solvent maker some cases hold that the right of set-off does not exist.” Thompson v. Union Tr. Co., 130 Mich. 508; Jack v. Klepser, 196 Pa. 187; Steelman v. Atchley (Ark.), 135 S. W. Rep. 902; New Farmers Bank v. Young, 100 Ky. 683; 39 S. W. Rep. 46.

Ho also states in Opinion No. 2944 that “it is questionable whether a depositor who has endorsed such a note can have its set-off against his deposit in the insolvent bank unless the maker is insolvent.” Wagoner v. Paterson Gaslight Co., supra; Scott v. Armstrong, 146 U. S. 499; In re Hatch, 155 N. Y. 401; Davis v. Industrial Manufacturing Co., 114 N. C. 321; Borough Bank v. Mulqueen, 125 N. Y. Supp. 1034; Building, &c., Co. v. Northern Bank (N. Y.), 99 N. E. Rep. 1044.

Since the obligation of an endorser to the bank is contingent only, depending on the solvency of the maker, and since that obligation is further contingent on presentment for payment and notice of dishonor, and further on an exhaustion of the makers resources before recourse can be had to the endorser, it does not seem that the relation between such an endorser and the bank which holds the paper is a relationship contemplated by our act concerning set-offs.

Judgment should go, therefore, to the plaintiff.


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    WEST SHORE RAILROAD COMPANY ET AL., PROSECUTORS, v. THE BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANT.
    Submitted October 14, 1932
    Decided March 1, 1933.
    Before Justices Bodizste and Donges.
    For the prosecutors, Wall, Haight, Carey & Hartpence.

    For the defendant, Frank H. Sommer and John A. Bernhard.

   Per Curiam.

This writ of certiorari brings up an order of the board of public utility commissioners, dated June 25th, 1931, modifying a previous order which directed the elimination of a grade crossing at Bogota. The West Shore Railroad Company, the owner of the tracks, and the New York Central Railroad Company, the lessee, attack the order. There is no contention that the crossing should not be eliminated but the controversy turns around the plan to be adopted.

On October 29th, 1930, after hearings, the board ordered the work done in accordance with a plan called B-2. Thereafter upon application of the borough and certain individuals, the matter was opened and reheard. On June 25th, 1931, a new order was made directing that a different plan be followed. This is known as P-5 revised, or the board’s plan. The railroads contend that the original plan, B-2, should have been retained.

Prosecutors claim that the cost of B-2 would have been approximately $498,500 and the plan adopted will cost $595,000, an increase of about $100,000, half of which they have to pay.

It is not contended that the board was bound to adopt the cheapest plan suggested, but that, in the circumstances of this case, the added cost is unreasonable. This is the question before this court.

The added cost arises out of the necessity, under the plan adopted, of acquiring certain properties not required by B-2. The estimate of $100,000 over the other plan is based upon the high appraisals of these properties. There is testimony of the value of these properties which would indicate an increase of only $28,000 over the previous plan. There is evidence of advantages of the plan adopted over the one replaced, namely, certain streets would be left open and the route would be a more direct one. The public will be better served by the plan adopted, and the additional outlay involved is slight, when compared with the advantages derived therefrom.

We conclude that the prosecutors have failed to establish that the determination of the board was not reasonably supported by the evidence, or that the order was unreasonable and in violation of prosecutors’ rights.

The writ is discharged, with costs.


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    FELIX MAZZARELLI, PROSECUTOR, v. CITY OF ELIZABETH, RESPONDENT.
    Submitted October 14, 1932
    Decided March 3, 1933.
    Before Justices Bodine and Donges.

      For the prosecutor, Edward Nugent.

    For the respondent, Walter H. Flaherty (Frank J. Burns).
   Per Curiam.

The writ brings up an ordinance of the city of Elizabeth making it unlawful to keep open on Sunday a butcher shop, or any similar place of business. The ordinance, by express provision, does not apply to duly licensed poultry markets.

The ordinance simply adds an additional penalty for local infringement, and this, it has been held, is a legal exercise of the charter police power, and is therefore constitutional. The case presents a substantial repetition of the facts contained in Sherman v. Paterson, 82 N. J. L. 345; 82 Atl. Rep. 889, and is therefore controlled by it. That adjudication has since been followed in Schumacher v. Little Falls, 92 N. J. L. 106; 108 Atl. Rep. 113, and the case before us may therefore be determined upon the doctrine of stare decisis. See, also, Cooley Const. Lim. 199; Schachter v. Hauenstein, 92 N. J. L. 104; 105 Atl. Rep. 13.

“Where, as here, the subject-matter of the ordinance is within the police power of the city and the ordinance is adopted by the proper legislative body of the city, the presumption is (until the contrary be shown) that the ordinance is reasonable. The question ol reasonableness is a question of fact, and the burden of proof is upon the prosecutor who attacks the ordinance to show its unreasonableness. The court should not interfere unless it is shown that the ordinance, either upon the face of its provisions or by reason of its operation in the circumstances under which it is to take effect, is unreasonable or oppressive. Falco v. Atlantic City, 99 N. J. L. 19; 122 Atl. Rep. 610; North Jersey Street Railway Co. v. Jersey City, 75 N. J. L. 349. Here, there is no such showing Under this head the sole contention is that upon the face of the provision it appears to be unreasonable. But we think that is not so.” Wagman v. Trenton, 102 N. J. L. 492; 134 Atl. Rep. 115.

There is nothing in the point that the ordinance is unconstitutional ; nor is it apparent in what manner the ordinance exceeds the powers delegated to the city. The case of Frederick Fuller Kislingbury et al. v. The Treasurer of the City of Plainfield, 10 N. J. Mis. R. 798; 160 Atl. Rep. 654, is inapplicable.

The writ will be dismissed.


text:
    ROSE KATZ, INFANT, BY SAM KATZ, NEXT FRIEND, AND SAM KATZ, PLAINTIFFS-RESPONDENTS, v. KNIGHTS OF PYTHIAS BUILDING AND LOAN ASSOCIATION, DEFENDANT-APPELLANT.
    Submitted October 14, 1932
    Decided March 3, 1933.
    Before Justices Bodine and Donges.
    For the defendant-appellant, George F. Lahey, Sr.

    For the plaintiffs-respondents, Joseph N. Braff.

   Per Curiam.

The action was commenced December 14th, 1931, in order to recover compensation for injuries sustained June 22d, 1931. The case was tried by the District Court, without a jury, July 7th, 1932.

The defendant requested an adjournment in order to obtain the testimony of two non-resident witnesses. Such application was addressed to the sound discretion of the trial judge. There is nothing before us to show that the refusal of the motion was erroneous or a clear abuse of discretion. Michael v. Southern Lumber Co., 101 N. J. L. 1; 127 Atl. Rep. 580.

It appears that the plaintiff Rose Katz, a minor fifteen years of age, lived with her father and mother in the second floor apartment of 202 Hawthorne avenue, Newark, a building owned and operated by the defendant. There was a common stairway used by the tenants who lived on the second and third floors. Rose, on her way to school on the day she was injured, was going down this flight of stairs. The first step was loose; the second somewhat weak, and being partly thrown she tried to save herself by stepping on the next lower step, and there she slipped on some garbage. Although she tried to catch the bannister she fell down most of the way.

The condition of the steps, both as to defects and filth, had been called to the attention of the landlord’s representative, and repairs and better management had been promised. The trial judge could not have granted a nonsuit. Ionin v. E. D. & M. Corp., 107 N. J. L. 145; 151 Atl. Rep. 640. The evidence supports the findings of the court, that the injuries were caused by the landlord’s neglect and that the injured person had not assumed the risks incident to delay in effecting the promised repairs and improvement in service.

The judgment is affirmed.


text:
    PAULINA HECKY AND CHRIST HECKY, HER HUSBAND, PLAINTIFFS-RESPONDENTS, v. FOX ELIZABETH THEATRE COMPANY, INCORPORATED, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Argued October 6, 1932
    Decided March 3, 1933.

      Before Justices Bodine and Donges.
    Por the defendant-appellant, John F. Ryan and Merritt Lane.

    Por the plaintiffs-respondents, Norbert T. Burke.

   Per Curiam.

The ease comes before us because of the failure of the trial judge to grant a new trial on the ground of newly discovered evidence. The Court of Errors and Appeals, in Gee v. Moss, 108 N. J. L. 160; 156 Atl. Rep. 458, assuming that the abuse of discretion in not granting a new trial might be appealable, considered the matter upon the merits. The case of Gaffney v. Illingsworth, 90 N. J. L. 490; 101 Atl. Rep. 243, was cited. But that case does not hold that the matter is appeal-able. In the case of Giordano v. Asbury Park and Ocean Grove Bank, 103 N. J. L. 194; 135 Atl. Rep. 354, it was held: “Whether a rule to show cause shall be made absolute or discharged is a matter resting in the discretion of the court. The discretion exercised in disposing of a rule to show cause is not reviewable. Clark v. Swersky, 3 N. J. Mis. R. 432; 128 Atl. Rep. 613.”

The rule quoted finds support in the early cases.

The denial of an application for a new trial will not be reviewed. Furman v. Applegate, 23 N. J. L. 28. Whether a new trial will be granted on the ground of newly discovered evidence is within the discretion of the court. Hoban v. Sanford & Stillman Co., 64 N. J. L. 426; 45 Atl. Rep. 819. Mr. Justice Ogden said in Furman v. Applegate, supra: “An application for setting aside a verdict, and awarding a new trial, is always addressed to the judicial discretion of a court, and error cannot be urged against such exercise of that discretion. It is true that the judges have sealed a bill prepared upon that exception; but it not being a proper matter for a bill, it cannot be examined into by this court on writ of error.”

We have, however, examined the matters presented to the trial judge, and can only conclude that his determination was well within the exercise of a sound judicial discretion, but, by having so done, it is not to be understood that we regard the matter before us because we do not.

The appellant also argues that there was no evidence of negligence and that the defendant was barred from recovery by contributory negligence. The weight of evidence was argued on the return of the rule. This necessarily included a determination of the question raised on a motion to nonsuit or direct a verdict. The defendant cannot argue the weight of evidence on the whole case and reserve for argument the question of contributory negligence. The attack upon the verdict as against the weight of evidence precludes us from determining whether there was proof of negligence, or whether the action was barred by contributory negligence. When the trial court passed upon the weight of evidence it necessarily determined both of those questions. Freschie v. Mason, 108 N. J. L. 272; 156 Atl. Rep. 758.

The judgment is affirmed.


text:
    LAYNE-NEW YORK COMPANY, INCORPORATED, PLAINTIFF-RESPONDENT, v. PRESIDENT HOTEL COMPANY ET AL., DEFENDANTS-APPELLANTS.
    Submitted October 14, 1932
    Decided March 3, 1933.

      Before Justices Bodine and Donges.
    For the defendants-appellants, Cassman & Gottlieb.

    For the plaintiff-respondent, Hobart & Minará (George 8. Hobart and Ralph F. Cooper).

   Per Curiam.

The plaintiff was engaged in tlio business of developing and installing artesian well systems. W. G. Souders was promoting the development in Atlantic City of the President Apartment Hotel Company. In October of 1925, in behalf of this company, he entered into a contract with the plaintiff for the development of a water system for the Apartment Hotel then being constructed. The contract, not recorded, provided: “That all materials and equipment furnished or installed under this contract are and shall remain the property of contractor, regardless of their mode of attachment, until full payment has been made by purchaser in accordance with the terms hereof.” Subsequently, the'hotel company became insolvent and receivers were appointed. The plaintiff did not prove its claim. The sale of the property was made subject to whatever rights the plaintiff might have.

After the sale, the plaintiff instituted replevin to recover the pipes, couplings, pumps, &c., installed for the purpose of providing the water. While this action was pending, the company organized to take over the property formerly of the President Apartment Hotel Company, became insolvent and receivers were appointed. By order of the court these receivers were made parties defendant to the present action.

At the trial of the case, the plaintiff proceeded upon the theory that it was entitled to recovery for labor and materials furnished, and they relied then and here upon the case of Finney v. Apgar, 31 N. J. L. 266, and Mechanical Boiler Cleaner Co. v. Kellner et al., 62 Id. 544; 43 Atl. Rep. 599. A sufficient answer to this claim is that there appears to be no privity of contract between the plaintiff and the defendant sued. The contract was made with a former owner of the property and the labor and materials were furnished to it at its instance and request. If the contract be regarded as one of conditional sale, the plaintiff has no better right of recovery since the well system was affixed to the realty and became part thereof, and the agreement reserving the rights in the plaintiff was not recorded, so that the defendants cannot be charged therewith. Domestic Electric Co. v. Mezzaluna, 109 N. J. L. 574; 162 Atl. Rep. 722.

The judgment is reversed, with costs.