text:
    ANTON B. CARERO AND ETHEL M. LLOYD, PLAINTIFFS, v. THOMAS J. BRESLIN, DEFENDANT. CLARENCE LLOYD AND ANN LLOYD, PLAINTIFFS, v. THOMAS J. BRESLIN, DEFENDANT.
    Submitted January 16, 1925
    Decided May 5, 1925.
    Negligence — Motor Vehicle Collision — Defendant’s Car Made Left-hand Turn, Keeping the Narrow Instead of Wide Turn, and at a Rapid Rate, According to Plaintiffs’ Testimony, Which Properly Made It a Jury Question — The Question of Contributory Negligence Also For Jury — Denial of Direction of Verdict For Defendant Proper — Daughter of Defendant Was Driving Defendant’s Car, and For His Convenience-— The Several Refusals to Charge According to Defendant’s Request Considered and Disposed of Adverse to Defendant’s Contention — Verdict Found Excessive as to Two Plaintiffs, and Ordered Reduced.
    On defendant’s rule to show cause.
    Before Gummerb, Giitef Justice, and Justices Parker and Katzenbach.
    Por the plaintiffs, Stolces é McDermott (William IJarishorne j of counsel).
    Por the defendant, Frank G. Turner.

   Per Curiam.

The above cases are before us on rules to show cause allowed to the defendant. The actions were tried at the Monmouth Circuit. Both suits arose out of an antomobile accident occurring between the hours of eight and nine p. m. (daylight-saving timé), oar July 5th, 1924.

Anton B. Carero and Ethel Lloyd owned jointly an Oaklaaid touring car. On the evening in question Ethel Lloyd invited her father and mother for a ride. The occupants of the car were Carero, Ethel Lloyd, Clarence Lloyd and Ann Lloyd. The car was being driven by Ethel Lloyd on the road extending from Freehold to Matawan. This road runs approximately north and south. The car was being driven northwardly. About six or seven miles north of Freehold this highway is crossed by a highway leading to Holmdel. The road from Freehold to Matawan is an improved concrete road. The intersecting highway is also an improved road as far as the Freehold road. West of the Freehold road it is not improved. The southeast corner of the two roads is cut away in a long curve, which permits cars to turn the curve at considerable speed. As the ear being driven by Ethel Lloyd was approaching this corner, the car of the defendant, Thomas J. Breslin, was being driven westwardly by his daughter, a girl of about eighteen years of age. The Breslin car was on its way to Camden via Freehold. It was therefore necessary for Miss Breslin to turn to the left into the road to Freehold. The occupants of the car driven by Miss Lloyd testified that the car in which they were ridiiag was being -driven carefully and slowly, close to the right-hand side of the road. The view down the Holmdel road was somewhat obstructed by a field of growing grass. Suddenly the Breslin car turned around the corner, close to the wall on the left. Miss Lloyd, when she saw the Breslin car, thinking that she might avoid the accident, turned her car to the left. The Breslin ear struck the car driven by Miss Lloyd near the right-hand front wheel. Both cars went over to the west side of the Freehold road. The Breslin car (a Cadillac) cleared the road and landed in the shrubbery on the westerly side of the road. None of the occupants of the Breslin car, who were Miss Breslin, her father, Thomas J. Breslin, Mrs. Breslin, and Dr. James Breslin, a brother of the owner of the car, appear to have been seriously injured. All of the occupants of the car driven by Miss Lloyd, with the exception of Carero, were injured. These injuries will be referred to later.

Carero and Miss Lloyd instituted an action against Thomas J. Breslin for damages to their car. In this action Miss Lloyd also sued to recover damages for the personal injuries which she had received. Clarence Lloyd and Ann Lloyd instituted another action against Mr. Breslin to recover damages for the personal injuries which they had received. Carero obtained a verdict for $200. Miss Lloyd received a verdict for $3,500. Clarence Lloyd was awarded $10,000 and Ann Lloyd $2,000.

The first point argued under the rules for the defendant is that the trial judge should have nonsuited the plaintiffs. We think the trial judge ruled properly in refusing to grant a motion to nonsuit. The evidence given by the occupants of the Lloyd car has been referred to. From their testimony there was evidence of negligence upon the part of the driver of the Breslin car. This consisted principally of the speed at which the car was being driven and the manner in which the car made the left-hand turn, it being kept close to the southeast corner instead of being driven out to the centre of the Freehold road and making a wide turn. A trial court, in passing upon a motion to nonsuit, must refuse to grant the same if there be evidence offered by the plaintiff from which the jury can find negligence on the part of the defendant. This was the situation in the present case. The defendants, of course, presented contradictory testimony, namely, that the Cadillac car in which they were riding was going slowly on the proper side of the road, and was run into from the left by the car driven by Miss Lloyd, which was being operated at a speed of forty miles an hour. It was for the jun' to pass upon the testimony presented.

The second point urged is that there should have been a nonsuit against Ethel Lloyd and Carero, because Ethel Lloyd was guilty of contributory negligence. This was a jury question from the evidence, which has just been stated. The motion on this ground was properly denied.

The third point argued by the defendant is that verdicts should have been directed in favor of the defendant. What has been said with reference to the motion of nonsuit applies equally to this motion. The trial court ruled properly in refusing to direct verdicts for the defendant.

The fourth point argued by the defendant is with reference'to a portion of the charge of the trial court. The trial judge told the jury that Mr. Breslin, the owner of the car, was the person who was responsible for the acts of his daughter, who was driving the car. It is claimed that this was error. .There is no dispute as to these facts. We think this portion of the charge of the trial judge was correct. Miss Breslin was driving the defendant’s ear, and was driving it his convenience. •

. The fffth point argued deals with the refusal- of the trial court to charge a request that “if the plaintiffs were connected in a common enterprise there could be no recovery against the defendant, even if the driver of the defendant’s car was negligent, provided Miss Lloyd was negligent. It •will be observed that this request was general and applied to all the plaintiffs. The evidence was that the parents of Miss Lloyd were mere guests. There was np evidence that they were in any common enterprise. It was therefore proper for the court to refuse to charge the request. The trial judge did charge that Carero was affected by any negligence of Miss Lloyd. This was all that the defendant was entitled to.

The sixth contention made in behalf of the defendant deals with the refusal of the court to charge the following request: “Eor an invitee passenger in an automobile to recover damages the evidence must preponderate to show that the accident was not caused by the sole negligence of the driver of plaintiff’s automobile.”- This point is fully covered in the charge of the trial court. The trial judge told the jury that the plaintiffs to succeed must establish by a fair preponderance of evidence that the defendant was negligent, and that such negligence was the proximate cause of the accident.

The seventh point in the defendant’s argument deals with the refusal of the court to charge the following request: “If the defendant’s automobile was the first to reach the street intersection there it had the right of way, and if the accident was caused by the fact that the plaintiffs’ automobile did not yield the right of wa}g your verdict must be no cause of action.” This is an inaccurate statement of the law. The request is too broad. While the traffic act gives the right of way to the car approaching on the right, yet this right of way cannot be exercised under all conditions. In refusing to charge this request the trial judge ruled correctly.

The eighth point made in behalf of the defendant is a criticism of the following portion of the court’s charge, to wit: “Such negligence upon her part would defeat her [Miss Lloyd’s] right to recover, but not the right of her passengers, her father and mother. They were passengers riding by the invitation of their daughter, and in no event could they be charged with any contributory negligence upon the part of their daughter.” There was no contradiction of the testimony that the parents of Miss Lloyd were invited guests. Under this state of the testimony the court correctly stated the law in the portion of the charge just quoted.

The ninth point made by the defendant deals with the refusal of the court to charge the following request: “If the defendant was riding in his car at the invitation of the driver thereof there can be no recovery against defendant, even though the driver of defendant’s car was negligent.” In our opinion the court properly refused this request. He was not riding upon any invitation of his daughter.

The tenth point deals with the question of whether or not the verdicts are excessive. This will be passed for the present and dealt with later.

The thirteenth point is that the verdicts are against the weight of the evidence. After reading the evidence we are satisfied that the verdicts are not against the weight of the evidence.

Counsel for the defendant next considers under the title “illegal evidence for plaintiff was admitted,” certain testimony given by a witness, Dr. Moffett, and.a witness, Mr. Brandt. Under the title “the court refused to admit legal evidence offered by the defendant,” the defendant questions the ruling of the trial judge in overruling an offering of an entire article written by the defendant relative to the accident, which was published in a newspaper. These points are sought to be argued under reasons which are the same as the titles of the points referred to. Buie 125 of the Supreme Court provides as follows: “On all'rules to show cause for new trials in arrest of judgment, or to set aside inquisitions, awards and reports of reference, the party entering such rule shall write down the reasons upon which he rests such motion with such particularity as is now required in stating grounds of appeal, and shall cause the same to be filed and a copy thereof to be served on the opposite party within thirty days after the entry of the said rule, and the argument thereof shall be brought on at the next term after the entry of such rule, or the same shall be discharged, unless for special cause shown.” It will be observed that these reasons are general and are lacking in that particularity referred to by this rule. We feel that for this reason they should not be considered. We have, however, examined with care the points made by the defendant, and feel that no harm was done to the defendant in the rulings which the trial court made, and which are considered under these titles as points fourteen and fifteen of the defendant’s brief.

This leaves for consideration only the question as to whether the damages awarded were excessive. The judgment of $200 in favor of Carero is warranted by the evidence. Mrs. Lloyd sustained broken ribs, a punctured lung and minor injuries. We do not feel that the verdict of $2,000 awarded to her by the - jury is excessive. The jury awarded to Ethel Lloyd $3,500. Two hundred dollars of this represented the loss which she sustained by reason of the damage to the car. Her personal injuries consisted of a V-shaped laceration on the forehead which came down over the eyebrow into the small part of the upper eyelid, but not into the lid. The testimony showed that the scar is not disfiguring. It is not attached to any of the muscles. Miss Lloyd also received an abrasion on the inside of the knee, which left a red spot about as large as a five-cent piece. Located in this part of the, body it could not, in our opinion, be deemed a deformity. We think the amount awarded to her excessive. It should be reduced to $2,500.

Clarence Lloyd was awarded $10,000. He suffered a fractured leg at the junction of the lower and middle third of the femur. One of his fingers was also injured. A stiffness of the joint has resulted. It was contended that his ability as a weaver, which was his occupation, would be decreased. There was evidence of a shortening of the leg. We are of the opinion, however, that the verdict is excessive. It should be reduced to $7,500.

If Ethel Lloyd will file her written consent within thirty days after the filing of this opinion to the reduction of the verdict rendered in her favor to the amount of $2,500, the rule to show cause as to her will be discharged. Otherwise, it will be made absolute.

If Clarence Lloyd will file his written consent within thirty days after this opinion is filed to the reduction of the verdict rendered in his favor to the amount of $7,500, the rule to show cause as to him will be discharged. Otherwise, it will be made absolute.

In the eases of Carero and Ann Lloyd the rule is discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DEVINE ALLGOR, PLAINTIFF, v. MONMOUTH COUNTY WATER COMPANY, DEFENDANT.
    Argued October 8, 1924
    Decided May 5, 1925.
    Water — Pollution of Streams — Water Company, In Purifying Its Water, Used Large Quantities of Chemicals Which Plaintiff Urges Caused the Death of Oysters in His Beds Below — Defendant Contended That Other Things in the River Affected the Oysters — Case Belongs to the Class Which Obliges the Plaintiff to Prove That the Natural and Proximate Result of the Defendant's Action Has Occasioned the Loss for Which He Sues, and Held, Sufficient Evidence to Justify Case Going to Jury — Polluting the Stream Was Actionablei — Judgment For Plaintiff Sustained.
    On defendant’s rule to show cause.
    Before Gummere, Ci-iiee Justice, and Justices Parker and Katzenbach.
    Eor the plaintiff, Harry R. Cooper.

    Eor the defendant, Durand, Ivins & Carton.

   Per Curiam.

This case is before us on a defendant’s rule to show cause. The plaintiff, Levine Allgor, is the lessee from the State of New Jersey of oyster beds in Shark river. The defendant, Monmouth County Water Company, operates a water plant located on Jumping brook. This brook flows'into Shark river. The defendant’s water plant is about a mile from the point where the brook enters the river. The oj'ster beds of the plaintiff are about three hundred yards from the point where the brook enters the river.

The suit was instituted to recover damages which the plaintiff claimed he had received from the discharge into the brook by the defendant of the sedimentation formed in the tanks or basin of the filtration plant. The plaintiff contended that this sedimentation was carried down the brook and lodged upon his oyster beds and either poisoned or suffocated his oysters. The testimony showed that oysters will only drink water that is pure. If the water is polluted oysters will not drink, and, by not drinking, suffocate.

The evidence showed that the defendant in the filtration of its water used large quantities of chemicals. These chemicals consisted of alum and hydrated lime. They were used in the filtration plant for the purpose of purifying the water. In the year 1931 two thousand one hundred and eighty-three pounds of alum and two thousand seven hundred and seventy-four pounds of lime were used for this purpose. These amounts have since been increased. The defendant cleansed its sedimentation basin twice a year. The size of the basin at the bottom was one hundred and sixty-six feet by seventy-seven feet. The average depth is seven and one-half feet. The sediment, before the basin was cleaned, averaged in depth from six to eighteen inches. In one year ninety-eight thousand pounds of this sediment was discharged into Jumping brook from two cleansings of the basin-. Jumping brook is six feet in width. It was originally a stream of pure water. The testimony offered by the plaintiff showed that the sedimentation, after being emptied into the brook, passed down the brook, and then spread over the oyster beds of the plaintiff. The sedimentation was some eight or ten inches thick in the brook. When it reached Shark river it would spread over a greater surface, so that its thickness was reduced to some two or three inches.

The contention of the defendant was that the plaintiff’s oysters were affected by other things, such as the tar and oil which collected in Shark river. It was further contended that the oyster beds in Shark river had from year to year produced less oj'sters, and that the emptying of the sedimentation from its filtration basin was not the natural and proximate result of the plaintiff’s loss of oysters.

This case falls within that class of eases where the plaintiff is obliged to prove that the natural and proximate result of the defendant’s action has occasioned the loss for which he sues.

The defendant argues that the court erred in refusing to direct a verdict for the defendant. We think the trial court justified in refusing to grant the defendant’s motion. We think that there was evidence introduced by the plaintiff sufficient to justify a trial court in submitting the case to the jury to determine whether or not the action of the defendant in polltiting the brook had occasioned the plaintiff’s loss of oysters. The act of the defendant in polluting the brook was actionable. The defendant discharged into the brook a great quantity of foreign matter which it had collected in its tanks by the use of the chemicals referred to. This foreign matter produced hydro-oxides, carbides,, &c., which the evidence showed was injurious to oysters. ,We think from the testimony offered that the plaintiff was entitled to have the jury pass' upon the question as to whether or not the defendant’s actions were not the natural and proximate result of his loss.

The next point argued by the defendant is that the verdict is contrary to law a'nd contra^ to the charge of the trial judge. Under this point the defendant presents the same question as to the natural and proximate cause which has already been considered. We think 'we have said sufficient upon this point.

The third point is that the charge of the trial judge to the jury is contrary to the law. Under this point the defendant discusses the charge of the trial court upon the subject of the measure of damages. We have examined what the trial judge said upon this point, and feel that he charged the law correctly.

The next’ point argued by the defendant is that the verdict is against'the clear weight of the evidence. We think that it is not. The rule-to show cause is discharged.


text:
    CLARA ADAMS, PLAINTIFF, v. JENNIE WILLETTS, DEFENDANT.
    Argued January 6, 1925
    Decided May 5, 1925.
    Contracts — Recovery of Money Loaned — Plaintiff, an Elderly Lady, Gave Checks to Defendant, Her Friend, Who Obtained the Money Thereon for the Accommodation of Plaintiff— Plaintiff Afterward Claimed They Were Loans to Defendant —Plaintiff Claims That as Defendant Received the Money From the Bank, the Burden is Upon Her to Prove Plaintiff Received It — Held, Since Defendant Claimed the Money Never Had Been Loaned to Her the Burden Was Upon Plaintiff to Prove the Loan — Judgment For Defendant Sustained.
    Oil plaintiff’s rule to show cause.
    Before Guumere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiff, Cola & Cole.

    For the defendant, W. Lindley Jeffers.

   Per Curiam.

This ease is before us on a plaintiff’s rule to show cause. The action was tried at the Atlantic Circuit. It was a suit brought by the plaintiff to recover from the defendant the sum of $2,200 for moneys which the plaintiff alleged she had loaned to the defendant. The only question presented under the rule is whether the verdict, which was one in favor of the defendant of no cause of action, is against the weight of the evidence.

The plaintiff was an elderly woman. She was eighty-six years of age at the time oE the trial. She had a bank account in the Atlantic City National Bank. It was a savings fund account. Under the rules of the bank money could only he withdrawn upon two weeks’ notice unless the bank waived- the rule. As is quite customary, the bank did, in respect to the transactions in the present case, waive the rule. The plaintiff and the defendant were old acquaintances. They had known one another for some eighteen years. Mrs. Willetts, the defendant, and her husband, boarded with Mrs. Adams. Mrs. Adams at times asked Mrs. Willetts to assist her in her business transactions. Mrs. Willetts would execute commissions for Mrs. Adams. Between May 1st, 1922, and October 1st, 1923, Mrs. Adams drew a number of checks upon her bank account. She would then give these checks to Mrs. Willetts. Mrs. Willetts had the checks cashed, and then, as she testified, would hand Mrs. Adams the money which she had received from the bank. Mrs. Adams had a daughter, Mrs. Aikman. Mrs. Aikman appears to have become suspicious that Mrs. Willetts was borrowing money from her mother. She learned that Mrs. Willetts had been obtaining money on the checks of Mrs. Adams. Mrs. Adams then claimed that she had loaned to Mrs. Willetts these moneys. The suit was then instituted.

The defense made by Mrs. Willetts was that she had never borrowed the moneys. She. admitted that she went to the bank for Mrs. Adams and drew money, but claimed that she always returned to the home of Mrs. Adams and delivered the money to her. As has been stated, the jury rendered a verdict in favor of Mrs.' Willetts. It is now contended that this verdict is contrary to the weight of the evidence.

Counsel for Mrs. Adams contends that as Mrs. Willetts admitted that she drew the money from the bank, the burden of proof was upon her to prove that she had delivered the money to Mrs. Adams. As Mrs. Willetts never admitted that she had received a loan of the money, her defense was not that of payment. Her defense was that the money had never been loaned to her. ' This.placed the burden, we think, upon Mrs. Adams to show by a preponderance of the testimony that she had loaned the money to Mrs. Willetts. The question was one of fact. It was a question peculiarly within the province of the jury to settle. To justify a court in setting aside a verdict of a jury on the ground that it is against the weight of the evidence, it must so clearly appear that it is against the weight of the evidence as to give rise to the inference that the verdict is the result of mistake, passion, prejudice or partiality. State v. Karpowitz, 98 N. J. L. 546; Queen v. Jennings, 93 Id. 353.

Upon a reading of the evidence we think that it does not clearly appear that the verdict is against the weight of the evidence. The jury had an opportunity to observe the appearance and demeanor of the witnesses. This is an important element in a case of this nature. We have reached the conclusion that the verdict should not be disturbed. The rule to show cause is discharged.


author: Peii Cukiam.

text:
    GEORGE W. YOUNG, PLAINTIFF-RESPONDENT, v. B. & B. AUTO EXPRESS AND MESSENGER SERVICE CORPORATION, DEFENDANT-APPELLANT.
    Submitted November 6, 1924
    Decided May 5, 1925.
    Negligence — Motor Vehicle Collision With Horse-Drawn Vehicle - — Injury to Person and Property of Driver of Horse — Question Only of Excessive Damages — Value of Horse and Other Property Destroyed, and Extent of Personal Injury and Amount of Earning Power of Driver Considered, and Judgment Ordered Reduced or New Trial.
    On defendant’s rule to show cause.
    Before Guvmere, Giiiee Justice, and Justices Parker and Katzexbactt.
    For the defendant-appellant, Lewis Starr.

    For the plaintiff-respondent, William C. French.

   Peii Cukiam.

This case was tried at the Camden Circuit. The trial judge allowed to the defendant a rule to- show cause. The case is before us under this rule. The only question presented is whether the verdict of the jury is excessive.

The testimony shows that-the plaintiff, George W. Young, was, on July 28th, 1923, at six forty-five a. m., proceeding northwardly in a horse-drawn vehicle on the White Horse pike, in Camden county. He was driving his horse to the extreme right of the road. The defendant, B. & B. Auto Express and Messenger Service Corporation, was operating a Reo speed wagon in the same direction on the highway. The defendant’s automobile approached Young’s vehicle from the rear at a speed of, at least, twenty miles an hour. It struck the vehicle of Young, demolished it, and injured the horse so that it had to be killed. Young suffered injuries consisting, principally, if not wholly, of a broken leg between the knee and the ankle. The fibula, the- larger bone, was fractured in one place, and the tibula, the smaller bone, in two places. Young was taken to a hospital and remained there for ten days. He was then taken to his home, and for thirteen weeks he was obliged to rest his leg upon a pillow. He then returned to the hospital for a brief period. The trial was some ten months after the accident, and he had not at that time fully recovered. Young was a farmer. He had four cows and sold the milk of these cows. He was engaged in the delivery of milk when the accident occurred. He also testified that he was a dahlia specialist. He had planted some ten thousand tuba roses. As a result of the accident his milk business was lost. He testified that this produced a revenue of from $40 to $50 a month. He received, however, only thirty-seven quarts of milk a day, which he sold for thirteen cents a quart, except that on some occasions lie received twenty-five and fifty cents a quart from people journeying over the White Horse pike, upon which his home was located, to and from Atlantic City. The estimate of his losses in the milk business appear to us somewhat excessive. Young admitted that the dahlia business was uncertain, and that it was impossible to tell what the profits would be in such a venture until the end of the season. By being unable to attend to his ten thousand tiiha roses, he lost them.

Several physicians testified at the trial. Only one, however, estimated the time in which Young would he completely recovered. He placed this at three months. His medical expenses, including his hospital bill, were $111. His horse was worth $100. The wagon was worth $125. The value of the harness was $20. These were total losses. The jury returned a verdict of $20,000. Young’s counsel admits that this is ample compensation. We think it much more than ample. The verdict is so large as to indicate bias, prejudice and partiality sufficient to justify a new trial, but as there was no contest as to the defendant’s liability we have thought it best to reduce the amount of the verdict. A very liberal allowance for the medical expenses, property losses arising from the accident, losses, past and future, in business, would be $3,000. To this should be added damages for the pain and suffering to which the plaintiff was subjected. We think $7,500 an ample verdict. If the plaintiff will file within thirty days from the filing of this opinion his written consent to the reduction of the verdict of $7,500, the rule to show cause will be discharged, otherwise the rule will be made absolute.


text:
    PETER KELLEHER, BY ELIZABETH KELLEHER, HIS NEXT FRIEND, AND ELIZABETH KELLEHER, INDIVIDUALLY, PLAINTIFFS, v. BORDEN’S CONDENSED MILK COMPANY AND HARRY AHLBORN, DEFENDANTS.
    Submitted November 6, 1924
    Decided May 5, 1925.
    Negligence — Boy, Working for Driver of Milk Wagon, Fell Under Wheel of Wagon — Action Against Driver’s Employer and Against Driver as to Boy Nonsuited on Plaintiffs’ Motion, But Continued Against Driver by Boy’s Mother, Resulting in Judgment — Held, Verdict Not Against Weight of Evidence; That Contention That Plaintiff Had No Claim Because of Voluntary Nonsuit as to Son is Without Merit; the Employment of the Boy Did Not Come Within the Statute Relating to Employment of Boys in Manufacturing or Mercantile Establishments, or in Mines, Quarries or In Agricultural Pursuits.
    On defendant’s rule to show cause.
    Before Gummeke, Gi-iiee Justice, and Justices Parker and Katkgnbacih.
    Por the plaintiffs, Lazarus, Brenner & Vickers.

    Por the defendants, Harry Ahlborn, John A. Hartpence (Wall, Haight, Carey & Hartpence, of counsel).
   Per Curiam.

This case is before us on a rule to show cause allowed on the application of the defendant Harrjr Ahlborn. The case was tried at the Hudson Circuit. As originally instituted,'it was an action by Peter Kelleher, by Elizabeth Kelleher, his next friend, and Elizabeth Kelleher, individually, against Borden’s Condensed Milk Company and Harry Ahlborn. Elizabeth Kelleher was the mother of Peter Kelleher.

The testimony disclosed that Ahlborn was an employe of the Borden Company, not the Borden’s Condensed Milk Company, as declared against in the complaint. He was a driver of a milk wagon belonging to the Borden Company. He employed Peter Kelleher, a boy just approaching fourteen years of age, to assist him in delivering milk. On Jnne 29th, 1920, while thus engaged, the hoy was coming from a house on West Eorty-fonrth street, in Bayonne, with a number of empty milk bottles in his arms. Kelleher testified that he asked Ahlborn to give him assistance in getting on the wagon, and Ahlborn replied, “you are no cripple, get on yourself.” The boy had his left foot on the step at this time, and as he was in this dangerous position, Ahlborn started the horse going. Kelleher was thrown under the wagon and broke his left leg. The fracture was a compound one of the femur (the upper bone of the leg) at the junction of the upper and middle third. Kelleher was in a hospital from June 29th to September 11th, 1920. Por two months afterwards he was under the care of a physician. On November 11th, 1922, he entered the navy. The contention was that his left leg was slower in movement than the right leg. It is, however, unnecessary to go into this matter, because during the course of the trial his counsel moved for a voluntary nonsuit as to him and also as to the Borden Company, as it was shown that Ahlborn acted contrary to instructions in employing anyone to assist him in the delivery of the milk. The trial was then continued merely as a suit by Mrs. Kelleher, the mother of the hoy, to recover the damages which she had sustained by reason of her son’s accident. The case was submitted to the jury as to the mother’s claim, and a verdict was returned against Ahlborn for $433. Ahlborn then obtained the present rule to show cause, which he now presses.

The first contention made in behalf of the defendant is that the verdict was contrary to the weight of the evidence. After the accident the boy was spoken to by a police officer of Bayonne by the name of Smeaton, who asked him how it occurred. Smeaton said that Kelleher replied, “Well, I was coming ont of the house, and I went to catch the wagon and I missed the step, and I fell underneath the wheel.” Another police officer by the name of Keegan testified that Kelleher said he slipped getting on the wagon and went in under the wheel. Ahlborn denied that he had started his horse after the boy’s request for assistance. The testimony of the police officers is not wholly contradictory of Kelleher’s statement of the occurrence. Moreover, these statements were made by Kelleher immediately after the accident, when he was in great pain, and probably did not state fully all the circumstances leading up to the accident. We think the jury justified in believing the boy’s statement, and not. Ahlborn’s, as to how the accident occurred. Ahlborn was violating the rules of the company. He was paying Kelleher from fifty cents to seventy-five cents a day to do a large part of his work in disobedience of his instructions. This effected his credibility. We have reached the conclusion that the verdict is -not contrary to the weight of the evidence, and that it should not be disturbed on this ground.

The next point made by the defendant is that the mother has no claim against Ahlborn because of the voluntary non-suit entered in the son’s case. The contention is that by entering the voluntary nonsuit the plaintiff admitted that the boy could not recover against Ahlborn, and that if he could not recover against Ahlborn his mother could not recover. There is no merit in this contention. The entry of a voluntary nonsuit in the boy’s case does not preclude the commencement of another suit in behalf of the boy. A nonsuit concludes nobody. Penrose v. Absecon Land Co., 94 N. J. Eq. 436. The mother could have, in the first instance, instituted a suit without joining her son’s suit with her’s. If she could do this she could continue the prosecution of her suit after the nonsuit was entered in her son’s action, and recover the damages which she had sustained from Ahlborn, if he was responsible for her loss.

The next point urged is that as the statute regulating the age, employment, safety and working hours of persons, employes in manufacturing plants, as amended by Pamph. L. 1918, p. 745, bars the boy from entertaining a suit, the mother’s action is, consequently, barred. The act referred to prevents the employment of minors under certain ages in mercantile establishments, and construes mercantile establishments to apply to any workshop, mill or place where the manufacture of goods of any kind is carried on, mine, quarry or in agricultural pursuits. We think this statute inapplicable to the kind of employment Kelleher was engaged in at the time of the accident. Assisting in the delivery of milk from a wagon is not an employment in a mercantile establishment, mine, quarry or agricultural pursuit.

There were exceptions taken to the refusal to charge certain requests made by the defendant. These are not argued in the brief of the defendant, and, therefore, under the decisions, will not be considered.

The rule to show cause is discharged, with costs.


text:
    SILENT SALES VENDING COMPANY, PLAINTIFF, v. NIPOLA PRODUCTS COMPANY, INCORPORATED, DEFENDANT.
    Decided May 9, 1925.
    Testimony — Additional on Rule to Show Cause Why Plaintiff’s Judgment Should Not be Opened.
    Oil petition, &c.
    Before Justices Then chard, Minturn and Lloyd.
    For the defendant, Tack ella & Oamby.

    For the plaintiff, Joseph Beck Tyler.

   Per Curiam.

This is the defendant’s petition for an order to take additional testimony under a rule to show cause why the plaintiff’s judgment should not be opened, which rule was discharged by this court after hearing at the last term.

We have considered the petition and we are constrained to think that it cannot be granted without doing violence to our settled rules and practice.

The petition is denied accordingly.


author: Pee Cukiam.

text:
    DONALD BREWSTER, PROSECUTOR, v. C. FRANKLIN WILSON, JUDGE, AND THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF MORRIS, THE STATE OF NEW JERSEY AND JAMES E. RYAN, DEFENDANTS.
    Decided May 12, 1925.
    Motor Vehicles — Intoxicated Driver — Conviction — Proceeding Highly Penal, Summary, Legal Steps Clearly Marked — No Warrant Issued — Complaint Does Not Show That It Was Taken Before Person Sitting asi Magistrate, or That He Was a Magistrate — Trial Judge Without Power to Amend Complaint-Conviction Set Aside.
    On certiorari to the Morris County Court of Common Pleas.
    Before Justices Kalisch, Black and Campbell.
    For the prosecutor, Joseph F. Murphy (Charles Jones, of counsel).
    For the defendants, Henry O. Pilch.

   Pee Cukiam.

The prosecutor was convicted in the recorder’s court of the borough of Madison, Morris county, New Jersey, on November 24th, 1923, of an alleged violation of subdivision 3 of Section 14 of the Motor Yehicle act of 1921, chapter 208, in that, while he was under the influence of intoxicating liquor, he did, on the 15th day of November, 1923, operate a motor vehicle on Main street, a public highway in said borough. Upon this conviction the prosecutor was sentenced to imprisonment in the county jail for thirty days. The prosecutor appealed to the Court of Common PLeas for Morris county, where, after having had a trial de novo, he was convicted and sentenced to imprisonment in the county jail for six months.

The record discloses that the prosecutor was arrested without a warrant on November 15th, 1923, and brought before the recorder, where a complaint was drawn, which charged the prosecutor with a violation of subdivision 3 of section 14 of the Motor Vehicle act. The complaint was subscribed by the officer who made the arrest. The jurat, reads as follows:

“Sworn and subscribed before me this 15th day of November, A. n. 1923.
[Signed] E. W. Schojstemsug'er. [Seal.]”

There was no warrant issued. A hearing was given and the hearing was adjourned to November 17th, 1923, and, on request of counsel, adjourned to November 24th, 1923, where, after a hearing, the prosecutor was adjudged guilty and sentenced by the magistrate, as above stated. The case was appealed to the Common Pleas Court, and the record discloses that before the trial was begun counsel of the prosecutor moved for a reversal of the conviction, which motion appears to have been intended as a motion to dismiss the case, which was the only proper motion that could be made, since the trial was one de novo, and not a review of the trial errors of the court below. At any rate, the grounds for the motion as stated by counsel were — 1. That the complaint was not duly verified, in that it does not appear that it was taken before Schoneberger as a magistrate, and there is nothing on the face of the complaint denoting that he is such. This motion was overruled. The court directed that Schoneberger be permitted to add, if necessary, the words justice of the peace or recorder after his name to the jurat.

As the proceeding was of a summary character, highly penal in its nature, and the legal steps to be taken are clearly mapped out in the statute conferring jurisdiction, it was essential to the validity of the proceeding, and for the magistrate to acquire jurisdiction of the cause that it should appear that the statutory requisites have been complied with. Section 31 requires that the alleged offender shall be taken before a magistrate and a complaint in writing shall be made before him. The complaint does not show upon its face that it was taken before him as such magistrate, nor is'there anything in the complaint to indicate that he is a magistrate. .

The trial judge was without poiver to amend the complaint. It may be, but, without deciding it, that proof could be taken by calling the magistrate or the production of an official record that he wras such a magistrate. If he had designated himself as such in the complaint his authority could not have been collaterally attached. But there is more substantial ground for setting aside the conviction in the refusal of the trial judge to dismiss the proceedings, because no warrant was issued. We have held that the issuance of a warrant is an essential requisite to give the magistrate jurisdiction of the cause. The language of section 31 is too explicit to admit any doubt on the subject.

The section after stating that a sworn complaint in writing shall be made, “whereupon said magistrate shall issue a warrant returnable forthwith, and the said magistrate shall proceed, summarily to hear or postpone the case,” &c.

So, that it is clear that the legislature expressly makes the issuance of a warrant a prerequisite before a hearing can be had and the cause be dealt with by the magistrate. Until the warrant has been issued and returned forthwith, the magistrate is without jurisdiction of the cause. See Granzauskas v. State, 2 N. J. Mis. R. 307. See, also, State v. Baker, recently decided, but not yet reported.

Having reached the result that for this reason the conviction must be set aside, wre deem it to be unnecessary to deal with other reasons presented and argued in the brief on behalf of the prosecutor.

The judgment is reversed aud the conviction set aside.


text:
    PRESCOTT VAN WYCK, PROSECUTOR, v. WILLIAM DE LORENZO, RECORDER OF THE CITY OF HACKENSACK, AND THE STATE OF NEW JERSEY, RESPONDENTS.
    Decided May 12, 1925.
    Motor Vehicles — Intoxicated Driver — Excessive Speed — Defendant Arrested, Taken to Police Station, Confined in Cell Until Released by Officer in Charge Upon Giving Bail — Up to Time of Hearing No Complaint Had Been Made Out in Recorder's Court — On Day of Hearing Inspector Making Arrest Made Two Complaints, One for Each Charge, But No Warrant Was Issued in Either Case — Entire Proceeding Irregular— Police Department Without Power to Release Prosecutor or Fix Bail — Officer Must Take Accused Immediately to Magistrate, &c.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    For the prosecutor, McKay & McKay.

    For the respondent, Edward L. Katzenbach, attorney-general (Jamas P. Nolan, assistant attorney-general, of counsel), William, I)e Lorenzo, pro ne.

   Per Curiam.

The prosecutor, on June 17th, 1924, was arrested, on view, by one Newman, a special motor vehicle inspector, for driving a motor vehicle while under the influence of liquor, on the public, highway in the city of Hackensack. The inspector, in company with several policemen, took the prosecutor to the Hackensack police station, and there the officer in charge, after hearing from the inspector that the prosecutor was arrested for operating a motor vehicle on a public highway in the city of Hackensack while under the influence of intoxicating liquor, and also for excessive speeding, ordered the prosecutor to he taken to a cell, where he was confined until he was later released by an officer in charge at police headquarters, upon first depositing $500 and agreeing to appear for a hearing to be held by the recorder on the 19th day of June, 1924. On that dajr, upon a request made on behalf of the prosecutor to have any hearing on a complaint presented against him adjourned until June 26th, 1924, the request was granted. Up to the •latter date, so far as the record before us discloses, there was no complaint made against the prosecutor in the recorder’s court. On the 26th day of June, the day to which the hearing was adjourned by someone in charge of the police department, the prosecutor appeared in the recorder’s court, and it was 'then, for the first time, that the inspector Newman made a written complaint, under oath, as required by the statute, that the prosecutor had operated a motor vehicle while under the influence of intoxicating liquor, on a public highway in the city of Hackensack, and also made a written complaint, under oath, that the prosecutor had violated that section of the Motor Vehicle act, which regulated the speed with which motor vehicles may be driven upon the public highway. No warrant in either case appears to have been issued. Before the hearing was had counsel on behalf-of the prosecutor moved to have the eases dismissed, upon the ground that the recorder lacked jurisdiction, which motion was-denied. The entire proceedings seem to have been irregular. The police department was without power to release the prosecutor on bail and fix a day for his appearance and hearing, and to further grant an adjournment to another day. ■According to the statute, it was the duty of the police officer, upon making the arrest, to take the accused immediately before the magistrate and to detain the accused long enough so that complaint in writing, under oath, may be made and a warrant issued and a hearing had, and it was only within the power of the magistrate,’ upon request of the accused, to postpone the hearing and accept bail. The making of a complaint, under oath, and the issuing of a warrant before a hearing, are the necessary requisites prescribed by the statute to confer jurisdiction in a case where an arrest is made on view. But there is nothing before us which we can set aside on certiorari.

There is neither a conviction nor a judgment. The writs will be dismissed, without costs and without prejudice to the prosecutor.


author: Pee Curiam.

text:
    EUGENE BURNELL, PROSECUTOR, v. ATLANTIC COUNTY COURT OF COMMON PLEAS AND FRANK C. MAIMONE, DEFENDANTS IN CERTIORARI.
    Decided May 12, 1925.
    Trial De Novo — Proceedings Before Magistrate Nullified Except the Initiatory Complaint and Warrant — Failure of Trial Judge to Make Finding of Guilt — Conviction Set Aside.
    On certiorari to Atlantic County Court oí Common Pleas.
    Before Justices Kalisch, Black and Campbell.
    For the prosecutor, Aaron Heine {D. Truman Stackhouse, of counsel).
    Por the defendants, Charles M. Phillips (Clinton C. Shinn, of counsel).
   Pee Curiam.

The record of the Court of Common Pleas shows that what it did was to “affirm the decision of the justice and will remand the defendant to jail,” whereas the statute expressly provides that on an appeal there shall be a trial de novo, and, therefore, after the hearing and the finding of the trial judge that the accused was guilty of‘the offense charged against him, it was incumbent upon the court to pronounce a judgment of. its own. The reasons for this lies in the fact that the trial de novo nullifies the proceedings before the magistrate, except the initiatory proceedings of complaint and warrant. Because of the failure of the trial judge to make a finding that the accused was guilty of the offense charged against him in the complaint, and to pronounce judgment on such conviction, it becomes unnecessary to consider the other reasons urged in the prosecutor’s brief for setting aside the conviction, the conviction under review will be set aside. See State, McLorinan v. Ryno, 49 N. J. L. 603; Terhune v. Reed, 75 Id. 77.


text:
    THE STATE OF NEW JERSEY, PROSECUTOR, v. MAURICE F. BAKER, DEFENDANT.
    Decided May 12, 1925.
    Motor Vehicles! — Intoxicated Driver — Arrested, Taken to Police Station, Detained Several Hours, Bail Finally Fixed by Recorder’s Clerk — Complaint Sworn to Before .Recorder’s Clerk — Complaint Did Not State Particular Violation of Act Upon Which Defendant was Convicted — Commitment to County Jail For Indefinite Term — Defendant’s Counsel Moved For Dismissal in Common Pleas on Ground of Lack of Jurisdiction of Magistrate — Statute, in Derogation of Common Law, Closely Affecting the Liberty and Property of the Individual, and Highly Penal, a Strict Construction Must be Given — Magistrate’s Authority Must Appear Within the Strict Letter of the Law — Judgment of Common Pleasi in Dismissing Complaint Affirmed.
    On certiorari to the Essex County Common Pleas Court.
    Before Justices Kalisch, Black and Campbell.
    Eor the prosecutor, John O. Bigelow.

    For the defendant, Howard Isherwood.

   Pee Cukiam.

The facts in this case which present the legal question for determination are as follows: The defendant, Baker, was arrested on the 30th day of August, 1923, at or about midnight, on Central avenue, East Orange, for operating an automobile while under the influence of intoxicating liquor on the public highway. He was taken to the police station, thence to a physician and brought back again to the police station.

At about nine o’clock in the morning of August 30th the defendant was released on bail fixed by the clerk of the recorder’s court, the defendant’s car being taken as security. The bail was fixed and taken bjT the clerk. Apparently, from the case, as stated before us, the clerk first fixed the 5th day of September, 1923, for a hearing, and then again postponed the hearing to September 12th, 1923. At that time counsel, on behalf of defendant, made a motion to dismiss the complaint, because it was not made until September 12th, 1923, though the jural of the complaint bears date of September 11th. It also shows that it was sworn to before “James I. Rush, clerk of the recorder’s court.”

According to the record of conviction sent to the Court of Common Pleas, the defendant was convicted of violating the fourteenth section of the Motor Vehicle act (reciting the title thereof), and then concludes thus: “Wherefore, I, the said Edward L. Stasse, recorder, do hereby order that the said Maurice F. Baker, defendant, be and hereby is committed to the common jail of the county of Essex.”

The two fatal defects in the conviction are — 1. That it does not state of what particular violation of section 14 the defendant was convicted. This section has fourteen subdivisions, each of which provides for different offenses and penalties. Subdivision 3 of section 14 is the only section which interdicts the operating of automobiles while under the influence of intoxicating liquor, and provides a penalty therefor. 2. I’he commitment of the defendant to the county jail is for an indefinite term, whereas the statute says it shall not be less than thirty days nor more than six months. This situation cannot avail the defendant since he chose to go by appeal to the Common Pleas Court, which by the statute operates as a trial de novo. Although it is stated in the brief of counsel of the prosecutor that the defendant admitted his guilt in the court below, a careful scrutiny of the record discloses no such admission. What appears to have been done was that the defendant rested his appeal on the want of jurisdiction of the court of first instance in the failure to obey the behests of the statute creating the offense and conferring jurisdiction upon a magistrate to deal with a violation of the statutory mandates. The act of counsel in waiving the taking of testimony in the Court of Common Pleas was in the nature of a demurrer for the purpose of having the legal questions involved in the controversjr settled. Of course, if the court had determined the defendant’s legal objections to the proceedings adversely to him, there would be no other way for the court to pursue than to pronounce judgment unless leave was given to defendant to contest the facts.

It was and is not an uncommon thing to. demur to an indictment, though a demurrer is predicated upon an admission of the truth of what is charged against the accused, but legal accountability therefore is denied. So, also, a plea to the jurisdiction, sometimes expressly and sometimes inferentially, admits the facts of the case, hut this situation, nevertheless, cannot deny the right of an accused to be tried according to law. Returning from this digression to a consideration of what took place before the Court of Common Pleas, we find that counsel on behalf of defendant moved for a dismissal of the complaint upon the ground that magistrate had acquired no jurisdiction. This motion was founded mainly on a failure to comply with the requirements of section 31, subdivision 1 of the Motor Vehicle act (.Pamph. L. 1921, pp. 680, 681), which provides: “Arrest without warrant, detention of person; hearing. Any constable or police officer, or motor vehicle inspector or the commissioner of motor vehicles, is hereby authorized to arrest, without warrant, any person violating in the presence of such constable, or police officer, or motor vehicle inspector, of the commissioner of motor vehicles, any provisions of this act, and to bring the defendant before any magistrate of the county where such offense is committed. The person so offending shall be detained in the office of the magistrate until the officer making such arrest shall make oath or affirmation, which he shall do forthwith, declaring that the person under arrest has violated one or more oí the provisions of this act, and specifying the provision or provisions violated, whereupon said magistrate shall issue a warrant returnable forthwith, and the magistrate shall proceed summarily to hear or postpone the cause as provided in sections 26 and 27 of this act.” Turning to section 26, we iind that it provides “any hearing to be held pursuant to this act shall, on the request of the defendant, be adjourned for a period not exceeding thirty days from the return day named in any summons, or from the return day if named in any warrant, or from the date of any arrest without warrant, as the case may be, but in such case it shall be the duty of the magistrate to detain the defendant in safe custody, unless he shall make a cash deposit.” &c.

Bearing in mind that the statutory provisions are in derogation of the common law, and that they closely affect the liberty and property of the individual, and are highly penal in character, a strict construction must be given to them. The law frowns upon any attempt to enlarge the scope of the statute or to loosen a strict adherence to the statutory procedure prescribed. It must clearly appear that the exercise of the magistrate’s authority was within the strict letter of the law, since the Jaw permits, in this class of cases, no intendment that it was.

A plain reading of the statute discloses that the legislative intent was to provide methods of procedure hv which persons arrested without warrant should he carefully protected in their rights. It is absurd to say that the method of procedure declared by the legislature as to what shall he the duty of a magistrate vixen an accused is arrested without warrant, is merely directory. It is clearly mandatory. To hold the statutory declaration that a warrant shall be issued forthwith preliminary to a hearing by the magistrate is merely directory, and hence the omission to observe the statutory mandate is inconsequential, is equivalent to an elimination from the statute by judicial decision, a legal step to he taken by the magistrate before he shall proceed to a hearing of the complaint, which legal step the legislature lias expressly declared shall be taken forthwith by the magistrate before such hearing. It must not be overlooked that the jurisdiction which the magistrate derives from the-statute is special and personal. The statute cannot properly be construed so as to include clerks of magistrates. The power which is conferred upon the magistrate as a special tribunal cannot be delegated to his clerk, or the clerk of the court without special authorization by legislative enactment. In the instant ease we have a complaint not sworn to before the magistrate, but before a clerk of the court. The warrant of arrest recites: “Whereas, it appears to me, the subscriber, James I. Eush, clerk of the recorder’s court of the city of East Orange, in the county of Essex, on the information, under oath, of Policeman Thomas Sharkey, a police officer of the said city of East Orange, that Maurice E. Baker, of the city of Newark, county of Essex and State of New Jersejr, did violate the provisions of section 14 of an act of the legislature of the State of New Jersey,” &c., &c:

“These are, therefore, in the name of the State of New Jerse3r, to command you to apprehend and forthwith bring the said Maurice E. Baker before the said recorder’s court of the city of East Orange, that he may be dealt with according to law.” The warrant is tested in the name of 'the recorder, but is signed by James I. Eush, clerk of the recorder’s court.

The statute declares that the magistrate shall issue a warrant returnable forthwith. Where the arrest is made without warrant, the statute clearly contemplates that the complaint shall be made before the magistrate, for otherwise there would seem to be no purpose to the statutory declaration that the person so offending shall be detained in the office of the magistrate until the officer making such arrest shall make oath or affirmation, which he shall do forthwith. The release of the defendant on bail by the clerk, the setting of a day of hearing by him to take place before the magistrate, the taking of the complaint by the clerk, were clearly unauthorized acts. It is also clear that obedience to the statute regarding the making of the complaint, the time of the issuance of the warrant, in cases where the arrest is made without warrant, are essential statutory requisites in order to confer jurisdiction upon the magistrate. In this regard the reasoning of Judge Caff rey, in his opinion in the present case, meets with our approval.

The views herein expressed leads to the conclusion that the action of the Court of Common Pleas in dismissing the complaint and proceedings was proper.

Judgment is affirmed.


text:
    JOHN L. PETTIT, PLAINTIFF, v. NEW JERSEY PAINT WORKS, HARRY LOUDERBOUGH, INCORPORATED, DEFENDANT.
    Argued May 9, 1924
    Decided May 13, 1925.
    Contracts — Employment—Plaintiff Alleged a Ten-Year Contract —Defendant Relied on a Resolution of Directors Providing for Dismissal at the End of Any Year — Court of Opinion That Evidence Sustains Defendant’s Contention, Thus Making Judgment Excessive — New Trial Ordered.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    Eor the plaintiff, Harrison & Roche.

    For the defendant, Robert II. McCarter.

   Per Curiam.

This was a suit by an employe to recover damages for alleged wrongful discharge. Plaintiff had a verdict of $10,000.

Defendant is a manufacturer of paints. Plaintiff, a young college graduate specializing in chemistry, had been employed by other paint makers, and was taken on by defendant at $3,600 a year. He claimed there was a written contract of employment for ten years, but he never signed any such contract, never had the paper in his possession, and relied on parol evidence of an alleged letter addressed to him and said to be in possession of the defendant, after giving notice to produce. It was not produced, and he undertook’ to state its contents from memory. Defendant admitted there had been a letter, but disagreed as to its contents, claiming it had been destroyed after a new contract had been made by a resolution of the board of directors of the company. The contents of the letter are not of special importance, as both sides concede that there was a new arrangement; that about the time the letter was destroyed, plaintiff having asked for a raise, and having suggested a plan of profit-sharing, it was agreed that such a plan be adopted, and Louderbough, the president of defendant company, told plaintiff that there would have to be corporate action ,by the company on it. So he consulted counsel, an elaborate and careful resolution was drawn and adopted at a meeting of the directors, and both the draft and the minute of the resolution were exposed to plaintiff’s inspection so that he could read them through. This is the evidence for defendant. Plaintiff claims that Louderbough read him the resolution and suppressed the last .clause contained in it, to the effect that the company reserved the right of dismissing plaintiff at the end of any year. He says he never read the resolution through and knew nothing about this clause.

We feel obliged to say that we think this story is rather incredible. It was shown by plenary evidence that plaintiff was habitually inquisitive, prying and interfering by nature and habit; that he was constantly a source of irritation to other employes of equal or superior grade to himself, and more than once had'been warned that he should keep his hands off of affairs outside his department, but was not inclined to heed these warnings. That he should have been content to rely on a mere statement by Louderbough of the contents of a resolution of the board of directors determining his status and his compensation over a period of j7ears, without looking at it himself, is something entirely inconsistent with his habitual conduct in the defendant’s plant. Louderbough says the resolution was handed to him to read before it was passed, and we have no doubt that this was done. As stated in the defendant’s brief, “his entire examination, as well as the testimony of Mr. Louderbough and other witnesses for the defendant, makes it in the highest degree unlikely that he was not entirely familiar with every provision of this important resolution.”

If so, the damages are plainly excessive, as they are predicated on financial loss due to the breach of a contract for a term of years instead of one terminable at the end of the year. Plaintiff was discharged during the year, and, if wrongfully discharged, could recover up to the end of the year, and no more, if he knew of this provision in the resolution.

This is sufficient to require a new trial, which, in view of the contradictions in the evidence, we think should be at large and not limited to damages. We express no opinion on two questions which may be of some consequence — first, whether plaintiff can rely on part of a resolution in writing and disregard the rest of it, even if he did not know the entire contents; and secondly, whether in view of plaintiff’s conduct, and, especially, his disregard of instructions, if substantiated in the evidence, the employer would not be justified in discharging him at any time, under the rule recognized in Walker v. John Hancock Life Insurance Co., 80 N. J. L. 342, and Passino v. Brady Brass Co., 83 Id. 419.

The rule to show cause will be made absolute.


text:
    BUILDERS REALTY COMPANY, RELATOR, v. FREDERICK BIGELOW, BUILDING SUPERINTENDENT, AND THE BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, RESPONDENTS.
    Argued May 5, 1925
    Decided May 13, 1925.
    Ordinances — Zoning!-*—Stores in District Zoned for Residences— Demurrer to Writ of Mandamus — -Statement of Facts Before Court on Stipulation, Which Are Accepted and Considered, Notwithstanding the Irregularity of the Procedure— Building Not Found Injurious to Health, Safety, Morals or Welfare.
    On alternative writ of mandamus.

    Before Justices Parker, Mirturn and Black.
    Eor the relator, Harry A. Augenblick.

    Eor the respondents, Charles M. Myers (Jerome T. Congleion. on the brief).
   Per Curiam.

This case, involving the zoning ordinance of Newark, does not seem to differ in any essential feature from several others recently decided in this court. Eelator having filed proper plans and specifications for a building to be placed at the ■northeast corner of Summer and Chester avenues, in Newark, and to be divided into and used for seven stores, was denied a permit to build because the district had been “zoned” as “residential” and commercial uses therein were prohibited by the ordinance. An alternative writ was allowed, and the return thereto by the building superintendent sets up the ordinance; that the proposed building would be in violation of its provisions, and that “said building would affect [sic] the health, safety, morals and general welfare of the community.” There is a demurrer to the return, which attacks the statement just quoted as not stating any facts from which it can be inferred that there would be any injurious effect on the common health, safety, morals or welfare. This point appears to be well taken. If any substantial question of fact were properly raised, it would have to be tried out before a jury or by consent before the court sitting without a jury. Finger v. Doane, 121 Atl. Rep. 455; 1 N. J. Adv. R. 773. But no such question is raised. On the contrary, counsel have undertaken by a stipulation of facts to apprise us of the conditions obtaining in the locality. A stipulation of facts as supplemental to a demurrer is rather irregular practice, but as we are asked to decide this matter on its merits, we accept the stiplation in whatever capacity it will be appropriate for consideration, as an amendment of the writ, or, perhaps, better, a plea to the return, as contemplated by the statute. Comp, Stat., p. 3214, § 2, Pat. 143. So, considering it, we find these statements of fact:

“9. That the neighborhood in which relator seeks to erect the said building containing commercial stores is to a greater extent of a residential character. The stores are to front on Summer avenue, and Summer avenue is a very long street, extending from Eighth avenue on the south and running to the Newark city line on the north. May street is the first intersecting street south of Chester avenue, one block south. Arlington avenue is one block south of May street. The northeast corner of May street and Summer avenue, one block soutli of the premises in question, has commercial stores. The west side of Summer avenue, directly opposite May street, has commercial stores, and these are one block south of the premises in question. There is a large apartment-house between Chester avenue and May street, on the Vest side of Summer avenue. The portion of Summer avenue north of Heller Parkway contains numerous commercial stores on both sides of the street. The houses within a radius of one hundred and fifty feet of the lot in question are one and two-family houses of a residential character.
“10. That Summer avenue is a thoroughfare running north and south through the city of Newark, and is an artery for traffic; that the width of Summer avenue between property lines is seventy-five feet.”

To such a situation the per curiam of this court in Plymouth Co. v. Bigelow, 2 N. J. Mis. R. 711, seems plainly applicable.

In the case at bar it appears that there is a “board of adjustment” as provided for in the supplement of 1924 to the Municipalities act (Pamph. L., p. 324, § 7), and that relator appealed to that body, and it affirmed the action of the superintendent. "This was a necessary preliminary to a recourse to the courts. Eaton v. Newark, 3 N. J. Mis. R. 363. But respondent now urges that relator is “bound by” the decision of the board of adjustment, and, if not bound, that its remedy is by certiorari and not by mandamus. Both points seem to have been ruled adversely to respondent in Falco v. Kaltenbach, Id. 333; Becker v. Dowling, Id. 338; Union County Development Co. v. Kaltenhach, Id. 341, and Nelson Building Co. v. Binda, Id. 419. It is intimated that those decisions rest on insufficient authority, but, until they are reversed or overruled, we should follow them.

This disposes of all the points made herein. Eollowing the cited cases, relator is entitled to a peremptory writ.


text:
    HILDA SHAPIRO, RELATOR, v. WILLIAM J. BRENNAN, DIRECTOR OF PUBLIC SAFETY, AND THE BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, RESPONDENTS.
    Argued May 5, 1925
    Decided May —, 1925.
    Ordinances — Zoning—Tea Room in Residential Zone — Case Similar to Builders Realty Co. v. Bigelow, Just Decided — Peremptory Writ Awarded.
    On demurrer to return to alternative writ of mandamus.

    Before Justices Parker, Minturn and Black.
    For the relator, William V. Azzoli.

    For the respondents, Charles M. Myers (Jerome T. Conglelon, on the brief).
   Per Curiam.

This case is very similar to Builders Realty Co. v. Bigelow, argued and decided at the present term. The license desired is not a building permit, but a license to operate a tea room or restaurant at Nos. 118 and 120 Broad street, Newark, which is in a district classed as residential. The director denied a license and the board of adjustment concurred. There is no plea or demurrer to the return, but we have a stipulation of facts as in the other case, showing that there are a number of mercantile establishments and hoarding-houses already operating in the immediate neighborhood and in this restricted district, and it is stipulated that “the said proposed tea room or restaurant would not affect the public health, safety, morals and general welfare of the community.”

We need not repeat what has been said in the Builders Realty Company case and in the cases cited. A peremptory writ is awarded.


author: Pee Cubiam.

text:
    REGINALD L. WEEKS, PROSECUTOR, v. SOMERS L. DOUGHTY, DEFENDANT.
    Decided May 18, 1925.
    Landlord and Tenant — Eviction for Having, Unlawfully, Intoxicating Liquor — Judgment for Plaintiff — Defendant Presents Four Reasons for Reversal of Judgment — Want of Jurisdiction of District Court, Unconstitutionality of Section of Act, Lack of Jurisdiction to Direct Verdict for Defendant, Because Proceedings are Irregular, Illegal, Oppressive, Unjust — Court Finds it Unnecessary to Consider Constitutional Question, but Does Not Underestimate Its Importance— Judgment is Set Aside Because Affidavit Failed to Set Forth Facts From Which it was Made to Appear That the Possesion of the Liquor Was Unlawful, and Was Possessed for One of the Purposes Forbidden by the Statute.
    On certiorari to the District Court of the city of Atlantic City.
    Before Justices Kalisch, Black and Campbell.
    Eor the prosecutor, John C. Reed.

    Eor the defendant, William Elmer Brown, Jr.

   Pee Cubiam.

The prosecutor was a tenant of the defendant under an oral lease of certain premises in Atlantic City. The latter brought an action in the Atlantic City District Gourt to evict the prosecutor, by" proceedings instituted under the act entitled “An act concerning landlords and tenants.”

The affidavit of the landlord sets forth that he is the owner of the premises Nos. 701 and 703 Baltic avenue in said Atlantic City, and that the prosecutor “is in possession of said premises by virtue of an agreement made on or about the 1st day of August, 1915,” between them, “whereby deponent [the defendant] let and rented said premises to the said Reginald L. Weeks [the prosecutor] for an indefinite period, at the monthly rental of $125.

“Deponent further says that the said Reginald L. Weeks has heretofore been guilty of a violation of the provision of ‘An act concerning intoxicating liquors used or to be used for beverage purposes’ {Pamph. L. 1922, ch. 255, p. 616), and that he unlawfully had in his possession quantities of intoxicating liquor upon the premises aforesaid.

“Deponent further says that on the 22d day of July, 1924, he caused to be served a written notice on the said Reginald L. Weeks, personally, by reading the same to him and handing him a copy thereof, to the effect that he had elected to declare said lease forfeited, and demanding and requiring the said Reginald L. Weeks to deliver unto him the possession of said premises at the expiration of five days from the date when said notice was served. A copy of said notice of forfeiture and demand for possession is attached hereto and by this reference thereto made a part hereof;” that the said Weeks has not vacated the premises and surrendered possession thereof to deponent, and has wholly refused to do so, and remains in possession,” &e.

The cause was tried before a jury and a verdict directed for the landlord, and judgment of eviction was entered accordingly.

The prosecutor sued out a writ of certiorari, under which he presents the following reasons for reversal of the judgment :

1. Because the said District Court had no jurisdiction to hear and determine the cause.

2. Because section 14 of “An act concerning intoxicating liquors used or to be used for beverage purposes” is unconstitutional, as the title to the act cannot support a change of the relative rights and liabilities of landlords and tenants.

3. Because the court was without-jurisdiction to direct a verdict in favor of the defendant.

4. Because the said proceedings are irregular, illegal, oppressive and unjust.

We do not deem it to be necessary to consider the constitutional question attempted to be raised. We do not underestimate its importance. We need, however, under the facts of case, to go no farther than to consider, whether or not, assuming that the sections of the statute relating to proceedings to be taken by landlords against tenants violating section 14 of the statute are constitutional, the affidavit upon which the proceedings were founded sets forth the jurisdictional facts prescribed by the statute in order for the court to have acquired jurisdiction — that is, to hear and determine the cause. We think the affidavit fails, in this essential respect. The averment that the said “Eeginald L. Weeks has heretofore been guilty of a violation of the provisions of ‘An act concerning intoxicating liquor used or to be used for beverage purposes’ [Pamph. L. 1922, ch. 255, p. 615], and he unlawfully had in his possession quantities of intoxicating liquor upon premises aforesaid,” is clearly a conclusion from undisclosed facts. No time is stated when such liquors came into his possession upon the premises, for aught that the affidavit discloses it might have been before the act of 1922 came into existence. No date is given. The liquor might have been acquired before the eighteenth amendment became effective. Pacts should be stated from which a court may be apprised that- the possession is unlawful, for the unlawfulness of ihe possession is the gist of the charge.

It is to be observed that the statute concerns only liquor used or to be used for beverage purposes. The tenth section of the act, one of the preceding sections, provides that unlawful possession of intoxicating liquor, even for beverage purposes, shall not be applicable to liquor lawfully acquired and possessed in a. private dwelling, and used only for the personal consumption of the owner of such liquor, or his family residing in such dwelling, or for his guest therein.

Since a violation works a forfeiture, nothing will be intended which is not clearly expressed in the affidavit.

Because the affidavit failed to set forth facts from which it was made to appear that the possession of the liquor by-the' prosecutor was unlawful, and that he possessed it for one of the purposes forbidden by the statute, the District Court acquired no jurisdiction of the cause, and the proceedings must therefore be set aside.

Judgment is reversed, with costs.


author: Pick Cuktam.

text:
    ALEXANDER PRINCE, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE TOWN OF MONTCLAIR ET AL., RESPONDENT.
    Submitted January term, 1925
    Decided May 18, 1925.
    Ordinances — Zoning—Three-Family House — Permit Denied Because Proposed Use Did Not Conform to Requirements of Zoning Ordinance, — Case Within Rule of Ignaciunas v. Risiey, 2 N. J. Adv. R. 852.
    Oil certiorari.

    Before Justices Kaljtsoh, Black and Campbell.
    Eor the prosecutor, Fast & Fast.

    Eor the respondent, George S. Harris.

   Pick Cuktam.

The prosecutor applied to the building inspector of Montclair for a permit to erect in front of, and attached in part to, a frame dwelling-house situated on his lot, 123 Watchung avenue, an addition to contain three stores. The dwelling is occupied by three families. A garage to house two motor cars is erected on the rear of the lot. The permit was refused upon the ground that the uses to which the proposed building would be put, and to which it was designed to he put, did not conform to the requirements of the zoning ordinance of Montclair. Under such ordinance the land is located in a suburban zone restricted against buildings to be used for business purposes. In fact, one-half of the block in which prosecutor’s land is located is zoned for business purposes, and the other half, that in which his lot is located, is zoned against such purposes.

After such refusal, prosecutor appealed to the board of adjustment, and that body refused the permit. He then ohtainecl a rule to show cause why mandamus should not issue, directed to the building inspector. Upon the return of such rule the respondent urged that the remedy was by certiorari to review the findings of the board of adjustment, and this court so held.

Thereupon a writ of certiorari was sued out, and brings before us the proceedings and judgment of the board of adjustment.

It is conceded that the plans for the proposed building or addition are in compliance with the building code of Montclair.

Twenty-eight reasons are presented by the board of adjustment as the basis for its judgment.

To us none of these seem tenable.

It may well be that the proposed construction may increase the fire hazard, and, therefore, the public safety, but that would be a proper subject for regulation by the building code, or, perhaps, by the zoning ordinance in prohibiting the erection of a building of such character — that is, by attaching an addition to be used for stores to a frame dwelling-house.

But this is not the prohibition of the building code nor of the zoning ordinance.

The latter absolutely and unqualifiedly prohibits any and all buildings to be used for business purposes in the zone which includes prosecutor’s property.

We think in that respect the ordinance is unreasonable, and, therefore, unenforceable, and presents no basis for the refusal of the permit to presecutor. This feature of these ordinances has so frequently been passed upon by this court as.not to require citation of authority other than that of Ignaciunas v. Nutley, 2 N. J. Adv. R. 852.

The judgment of the board of adjustment must be set aside, with costs.


author: Pee Curiam;.

text:
    IN RE APPLICATION OF NATHAN NATELSON TO BE READMITTED TO EXAMINATION FOR LICENSE AS ATTORNEY.
    Decided May 18, 1925.
    Admission to Bar — Lawyers From Other States With a Record of Ten Years or More of Service Not Subject to Paragraph c of Rule 6, Requiring Ad Interim Service of a Clerkship.
   Pee Curiam;.

Applicant is an attorney and counselor of New York, as he claims, and lias been such for over ten years. He took the examination for attorney in this state under the provisions of rule 5 of this court, and failed to pass. He desires to apply again for a license and to take a second examination, and the question is whether he is subject to the provisions of paragraph 0 of rule 6 requiring an ad interim service of a clerkship.

The court is of opinion on an examination of the rules, relating to bar examinations, that the provisions of paragraph C of rule 6 are not intended to apply to lawyers from other states with a record therein of ten years or more of service, and, in consequence, the applicant may be re-examined after the proper interval, without service of a clerkship ad interim in this state.


text:
    ESSEX SASH AND DOOR COMPANY, PLAINTIFF-RESPONDENT, v. ISAAC L. GORDON, DEFENDANT-APPELLANT.
    Argued May 6, 1925
    Decided May 19, 1925.
    Negotiable Instruments — Alleged Conditional Delivery — Judgment for Defendant -by Jury Set Aside by Trial Court, and Judgment for Full Amount and Interest Awarded Plaintiffs— Fact That There was Evidence Regarding Conditional Delivery Made it a Jury Question, and Venire De Novo Will be Awarded.
    On appeal from the District Court.
    Before Justices Parker, Minturn and Black.
    Eor the appellant, Leber & Rubaclc.

    Eor the respondent, Samuel M. Hollander.

   Per Curiam.

This suit was brought in the Eirst District Court of Newark to recover $300, the amount of a promissory note. The note, is dated August 11th, 1923, payable in sixty days. The suit is against the maker of the note, the defendant, Isaac L. Gordon. The trial resulted in a verdict of the jury in favor of the defendant. Upon an application to the trial court, the judge set aside the verdict of the jury and directed a judgment to be entered in favor of the plaintiff for the full amount of the note, with interest, amounting to $328.50. This judgment was entered by the court in favor of the plaintiff, notwithstanding the verdict of the jury was in favor of the defendant. The defendant appeals and urges this action of the trial court as error. The principal defense set up by the defendant was the conditional delivery of the note sued on. This, as between the immediate parties to the note, under the Negotiable instruments act (3 Qomp. Stai. of N. J., p. 3737, §16), may be shown as a defense. There is such testimony in the record — first, by the defendant (at pp. 34, 35) : “Q. Have yon stated how he will back you? A. He will give me back the notes or give me the amount.” “Q. Did he say that? A. Yes, sir.” “Q. Was it on that occasion when you delivered these notes? A. Yes.” So, to the same effect, is the testimony of a witness Bebecca Gordon (at pp. 48, 49). True, this testimony was controverted at the trial on rebuttal, but that raised an issue of fact for the jury; hence, it was error for the trial court to enter a judgment for the plaintiff, notwithstanding the verdict of the jury in favor of the defendant.

The judgment is reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. LOUIS LAZAR, DEFENDANT-RESPONDENT.
    Argued May 5, 1925
    Decided May 19, 1925.
    On appeal from the District Court.
    Before Justices Parker, Mtnturn and Black.
    Eor the appellant, Herman B. J. W eclcsiein.

    For the respondent, Charles II. Boemer.

   Per Curiam.

This suit was brought in the Passaic District Court to recover the balance due of $14.80 on a written contract. The case was tried by the judge without a jury, resulting in a judgment for the defendant.

The case is controlled by the case of Edison Fixture Co., Inc., v. Copoulos, 3 N. J. Adv. R. (at p. 174); 127 Atl. Rep. 551. In that case, it was said we are unable to find any evidence justifying the judgment. So, in the present case.

The judgment is reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. ANTHONY PASOLO, DEFENDANT-RESPONDENT.
    Argued May 5, 1925
    Decided May 19, 1925.
    On appeal from the District Court.
    Before Justices Parker, Minturn and Black.
    Eor the appellant, Herman B. J. Weclcstein.

    Por the respondent, Anthony Pasolo, per se.

   Per Curiam.

This suit was brought in the Passaic District Court to recover the balance due of $44.40 on a written “contract. The case was tried by the judge without a jury, resulting in a judgment for the defendant.

The judgment is reversed and a venire de novo awarded, for the reason stated in No. 452, the present- term, and the case of Edison Fixture Co., Inc., v. Copoulos, 3 N. J. Adv. R. (at p. 174); 127 Atl. Rep. 551.


author: Pee Ourlui.

text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. LOUIS GOLDBLATT, DEFENDANT-RESPONDENT.
    Argued May 5, 1925
    Decided May 19, 1925.
    Contracts — Defendant Cannot Read — Told That Paper He Signed was Not an Agreement but a Receipt — Judgment for Defendant Affirmed.
    Oil appeal from the District Court.
    Before Justices Paekee, Mintubn and Black.
    Eor the appellant, Herman B. J. Weclcslein.

    Eor the respondent, Louis Goldblatt, per se.

   Pee Ourlui.

This suit was brought in the Passaic District Court to recover the balance dne of $24 on a written contract. The ease was tried by the judge without a jury, resulting in a judgment for the defendant. The testimony shows that the defendant cannot read. He testified that he signed the paper on which the suit is based, because he was told that it was not an agreement, but only a receipt for the money that he had paid.

The case is controlled by onr decision in the case of Edison Fixture Co., Inc., v. Gleason, 3 N. J. Adv. R. 194; 127 Atl. Rep. 555. That ease holds the evidence permitted of the inference by the trial judge, sitting without a jury, that the plaintiff deceived the defendant as to the fact that the defendant was signing a contract by the false representation that he was signing, as a matter of form, a paper having no obligating force. So, in the present case.

The judgment is affirmed, with costs.


author: Pee Cuhiam.

text:
    GIORDANO v. ASBURY PARK BANK.
    Decided May 20, 1925.
    Tort — Slander, Conspiracy — Case Regularly Listed, but' Upon Failure of Plaintiff to Appear, Nonsuit was Granted — Rule to Show Cause Allowed by Circuit Court Judge, Who Heard the Same and Ordered the Rule Discharged — Being Supreme Court Issue, Judge was Without Jurisdiction, and the Matter Has Not Lawfully Been Heard' — Plaintiff May Take a Rule Returnable at October Term.
    On motion to open judgment of nonsuit by default.
    Por the rule, Attorney, pro. per.

      Contra, Durand, Ivins & Carton.

   Pee Cuhiam.

Plaintiff sued for damages for an alleged conspiracy, also for slander, also for loss of credit standing because of acts of defendant.

The cause being at issue and regularly on the Circuit list for trial, plaintiff failed to appear when the ease was called, and defendant asked and obtained a nonsuit.

The Circuit Court judge later allowed a rule to show cause why the judgment should not be opened and plaintiff allowed to present his case, and made the rule returnable before himself at the court house in Preehold, heard the same, and ordered the rule discharged.

Plaintiff now applies to this court for a similar rule.

This being a Supreme Court issue, a Circuit Court judge is without jurisdiction to hear and determine such a rule, and his action in discharging it was therefore nugatory. The matter has never been lawfully heard.

Plaintiff may take a rule to show cause returnable before this court at the next October term, with leave to both parties to take depositions for and against the rule.


text:
    ASBURY PARK AND OCEAN GROVE BANK v. GABRIELE GIORDANO, APPELLANT.
    Decided May 20, 1925.
    Mortgages — Given to Secure Payment of a Note — Claim of Defendant That Action on Note Cannot be Taken Until Foreclosure of Mortgage, Without Merit — Act Requiring Prior Foreclosure Applies Only to Bonds and Mortgages for Same Indebtedness.
    On defendant’s appeal from the District Court. On application to list appeal for hearing.
    Before Justices Parker, Minttjrn and Black.
    Appellant in pro. per.

    For the respondent, Durancl, Ivins & Car Lon.

   Per Curiam.

If there appeared to be any substantial merit in this application, we should refuse to consider it unless on a notice to the plaintiff below, or on the return of a rule to show cause. But an examination of the appeal papers shows that the suit was against defendant on a promissory note, and that the defense, which was admitted in point of fact, was that a mortgage had been given to secure the note, and was held by the bank, and defendant therefore claimed that no action at law would lie on the note until the mortgage had been first foreclosed. This is the sole point in the state of the case as settled by the District Court, and it is devoid of merit, because the act of 1880, requiring prior foreclosure, applies only to bonds and mortgages for the same indebtedness and does not apply to notes. This has been the uniform understanding of the bar and courts for many years.

It is suggested now that the note and mortgage were procured by duress, but there is no such point mentioned in the state of the case, and we cannot consider it.

The application is denied.


text:
    SALLIE J. JEFFREYS v. ATLANTIC CITY RAILROAD COMPANY.
    Decided May 21, 1925.
    Negligence) — Motor Vehicle Collision With Locomotive — Motor Belonging to Plaintiff, Driven by -Person Who Afterward Married Plaintiff — Reasonable Care Claimed for Plaintiff and Gross Negligence on Part of Defendant’s Employe — Judgment Against Great Preponderance of Evidence, and Rule Made Absolute.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    Eor the rule, French & Richards.

      Contra, Avis & Avis.

   Per Curiam.

The plaintiff, Sallie J. Jeffreys, sued to recover compensation for injuries which she received in a collision between an automobile which she owned and which she was riding and a locomotive engine of the defendant company, which occurred at a railroad crossing in Gloucester City at about half-past nine in the evening of October 7th, 1922. The car at the time of the accident was being driven by a man named Smith, who shortly afterward married the plaintiff. The trial resulted in a verdict in favor of the plaintiff, and a rule to show cause why this verdict should not be set aside was thereupon allowed to the defendant.

The case attempted to be made by the plaintiff was that Smith, who was driving the car, exercised reasonable care as he approached the crossing; that the engineer of the defendant company did not give the statutory signal warning travelers on the highway of the approach of the train; that he failed to have the headlight on his locomotive burning; and, further, that the watchman who was employed to protect the crossing failed to give any warning of the approach of the train; and, lastly, that the automatic crossing bell was not ringing.

Our examination of the proofs in this case lead us to the conclusion that the finding of the jury was contrary to the great preponderance of the evidence with relation to each one of these factors — that is, we think the evidence greatly preponderated in support of the defendant’s contention that the accident happened by reason of the negligence of Smith, the driver of the plaintiff’s automobile. We also think that the proofs fully support the conclusion that, as the train approached the crossing, the engine bell was ringing; that the watchman attempted to stop the automobile from crossing over in front of the train; that the heacllight was burning on the locomotive, and that the crossing bell was ringing.

We conclude, therefore, that the rule to show cause should be made absolute.


text:
    AMERICAN PHOTO-PLAYER COMPANY v. HARRIET AMUSEMENT COMPANY.
    Decided May 21, 1925.
    Contracts — Note Given in Payment of Work Done in Repair of an Organ of Defendant — Alleged by Defendant That Price was Conditipnal on Cost of Labor, and That Labor was Procured at a Lower Price Than That Made Basis of Contract for Which He Should Have the Benefit — Nothing to Indicate That This Representation was Knowingly False or Intended to Induce Defendant to Make Contract.
    On appeal from the Essex Circuit Court.
    Before Gummere, Chief Justice, and Justices Parker and Katzenkach.
    For the appellant, Joseph B. Bloom.

    For the respondent, Morris Isserman.

   Per Curiam.

This was an action brought upon a promissory note given by the defendant to the plaintiff in payment for work done by the latter, pursuant to a written contract, in repairing an organ belonging to the defendant. The trial resulted in ■a verdict in favor of the plaintiff for the full amount of the note, ahd from the judgment entered thereon the defendant has appealed.

The first ground upon which a reversal is asked is that the trial court erroneously excluded evidence tending to show the price paid by the plaintiff to those of its employes wlm were engaged in the work of repairing the organ of the defendant.

The defendant’s claim was that the plaintiff corporation represented to it that the price fixed in the agreement was based largely upon the wages which plaintiff would be required to pay to its men employed on the job, viz., $3 per hour for two men and $1 per hour for each additional man; and the purpose of the offered testimony was to show that the wages actually paid by plaintiff were considerably less than these amounts, and, so, to change the price fixed by the contract to another and smaller sum. There is nothing in the defendant’s answer, nor in the evidence submitted at the trial, suggesting that this representation was knowingly false and made by the plaintiff for the purpose of inducing the defendant to enter into the contract; much less is there anything, either in the answer or proofs, to indicate that by reason of the representation the defendant was induced to enter into- a contract which it otherwise would not have made. That parol evidence is inadmissible for the purpose of várying or contradicting the terms of a. written contract is elementary law. It will only be received for the purpose of showing that the party against whom the contract is sought to be enforced was induced to enter into it by reason of a false statement as to a material fact, and, when admitted for such a purpose, its effect is not to vary the terms of the contract, but to overthrow it in ioto. Sheldon Co. v. Harleigh Cemetery Assn., 73 N. J. L. 115. Eor the reason indicated, the excluded testimony was not competent for the purpose for which it was offered.

The next ground of reversal is thus stated by counsel for the appellant: “The construction by the court of the contract sued upon was such as to exclude testimony as to the amount paid to workmen employed upon the overhauling of the organ.” An examination of the case discloses no formal construction put upon the contract for the repair of the organ by the trial court. Apparently, this ground of reversal is directed at the statement made by the court as its ground for excluding the testimony which was the subject of discussion under the first point. The statement was as follows: “In the absence of a plea of fraud, I should say the defendant is bound by the terms of the contract as to the rate fixed and accepted.” Assuming that this is the point relied upon in support of the second ground of reversal, what we have already said is dispositive of it.

The only other ground of reversal attacks the instruction of the court to■ the jury upon the measure of damages. This ground may be disposed of by saying that no objectipn .was made to the charge to the jury in this or any other respect, and, this being the case, the correctness of the instruction cannot be attacked in an appellate tribunal. The judgment under review will be affirmed.


author: Per Curtajm.

text:
    THE STATE v. REGINALD WEEKS.
    Decided May 21, 1925.
    Crimes — Selling Liquor — Plea of Non Vult, and Jail Sentence Imposed — Three Counts in Indictment — Claim That the Plea was on Count for Which the Statute Provided Only a Fine— Plea was to the Indictment as a Whole, and is an Admission of Guilt to Each of the Offenses.
    On error to the Atlantic Comity Quarter Sessions.
    Before Guatmere, Chief Justice, and Justices Parker and Katzenbach.
    Por the the plaintiff in error, John C. Reed.

    Por the state, Louis A. Repelió, prosecutor of the pleas.
   Per Curtajm.

The grand jury presented an indictment against the defendant, Weeks, containing three counts, the first of which averred that he unlawfully and willfully sold liquor to certain persons therein named, contrary to the statute in such case made and provided. The next count charged a similar offense, laying the occurrence, however, on a different day. The third count charged the defendant with unlawfully and willfully possessing liquor contrary to the statute. When the case came on to be tried the defendant pleaded non vult to the indictment, and thereupon he was sentenced to the county jail for a period of six months.

The defendant now challenges the validity of this sentence upon the ground that it is excessive, for the reason that the statute upon which the indictment is founded (Pamph. L. 1922, p. 615) only permits the imposition of a fine not exceeding $500 upon a conviction of the offense laid in the third count of the indictment, when such an offense is the first of which the defendant has been guilty. We find nothing in this cause of reversal. The defendant pleaded non vult to the indictment as a whole. " Such a plea, in cases where the indictment contains several counts, each charging a separate offense, is an admission of guilt as to each of such offenses; and the correct practice is to sentence on the count containing the charge of the highest offense, unless the- several offenses are positively repugnant, and the sentence is valid if it does not exceed that which may lawfully be imposed for such offense. State v. Dugan, 65 N. J. L. 65. The sentence under review is within the limit fixed by the statute for the commission of the-offense charged against the defendant in the first, as well as in the second, count of the indictment; and the three offenses specified in 'the several counts are not repugnant.

The judgment under review will be affirmed.


text:
    JOHN WEISBROD ET AL. v. LEONA LIECHTY.
    Decided May 21, 1925.
    Negligence — Motor Vehicle Collision With Abutment of Bridge to Avoid Another Collision' — Jury Held That Lack of Reasonable Care was Not Justified and It Does Not Appear That This Conclusion was in Disregard of the Testimony.
    On plaintiff’s rule to show cause.
    Before Gummeee, Chief Justice, and Justices Parker and Katzewbach.
    For the rule, Aaron L. Simon.

      Contra, James U. Bolitho.

   Per Curiam.

This is an action for personal injuries, brought by the several plaintiffs against the defendant. The injuries were the result of an accident which occurred while the defendant was driving an automobile which belonged to her father, and in which the plaintiffs were riding at her invitation. The several parties to the suit all resided in Clifton, and the primar}7 purpose of the ride was to visit Seton Hall College during the commencement exercises of the graduation class. They did this, and after the exercises were over the parties concluded to extend the ride for pleasure purposes. They went from South Orange to Madison, and then proceeded from that town toward Lake Hopatcong, but, finding the road out of repair, decided to visit Butler instead. When they reached Denville, on their way to Butler, they took a road which paralleled the railway of the Lackawanna Bail-road Company, and with which the defendant was not familiar. As they approached Towaeo the road ascended a hill, and when the defendant reached tibe top of the incline she discovered that there was a declivity in the road which, if she proceeded straight' ahead, would probably result in the automobile going down over the railroad embankment. On the impulse of the moment, to avoid this sudden danger, she swerved' sharply to the right and collided with the abutment of a bridge. The jury found that, under the circumstances which have been related, the charge of the plaintiffs that the defendant had been guilty of lack of reasonable care was not justified by the preponderance of the evidence. We cannot say that this conclusion was in disregard of th.e testimony submitted for their consideration.

As the only ground upon which we are asked to set the verdict aside is that it is against the clear weight of the evidence, we conclude that the rule to show cause should be discharged.