author: Per, Curiam.

text:
    EMIL W. SIEFKEN AND EMMA S. SIEFKEN, PLAINTIFFS, v. CHARLES SOMMERS AND ALVINA BECKMAN. DEFENDANTS.
    Submitted June 5, 1924
    Decided September 29, 1924
    Filed October 7, 1924.
    Ejectment — Leased Premises — Mesne Profits — Question of Damages Only — improvements Claimed — Verdict Against Weight of Evidence.
    On rule to show cause.
    Before Justices Kaljsch, Black and Campbell.
    For the plaintiffs, Wall, Haight, Oarey & Llaripence.

    For the defendants, Lazarus, Brenner & Vickers.

   Per, Curiam.

This is an action in ejectment to recover possession of certain leased premises and to- recover mesne profits and damages. There was a written lease under which there was an option to purchase to- the defendant Sommers, who filed a bill for specific performance, which was ultimately dismissed. The property is held by plaintiffs by an estate by the entirety, and Emil W. Siefken. the husband, alone executed the lease. After the dismissal of the bill in the action for specific performance the present action in ejectment was brought, and there have been two trials of that action. The first trial, as did the present one, resulted in a nominal verdict of six cents in favor of the plaintiffs.

The verdict and judgment thereon resulting from the first trial was set aside by this court upon a rule to show cause, and a rule entered for a trial de novo as to damages only.

Tims, upon the second trial, the only issue was the amount of damages.

We are satisfied the verdict is against the weight of the evidence. There was ample, competent evidence of the rental value of the premises which must have been absolutely disregarded by the juiy. The occupancy, without payment of rental, was for two years and eight months, and, at the lowest rental testified to of $40 per month, the rental value for such period would be $1,280.

Defendant sought to offset an alleged expenditure for repairs or improvements of $600 or $700. Even if this could have been offset against the aforesaid rental value, plaintiffs would still have been entitled to a verdict of $580 or $680.

Rut we think, further, that defendant Sommers cannot have a recovery ox offset for these items. .

If they are for improvements he cannot have them as a tenant or occupant in unlawful possession, and such he was. For can he have them as for repairs, because, under the lease, there was no- specific agreement upon the part of the landlord to make repairs. Lyon v. Buerman, 70 N. J. L. 620.

The rule to show cause is therefore made absolute, and a venire de novo awarded as to damages only.


source: Caselaw Access Project

author: Buchanan, V. C.

license: Public Domain

text:
    William E. Tuttle, Jr., commissioner, &c., complainant, v. State Mutual Liability Insurance Company, defendant.
    [Decided October 21st, 1924.]
    Insolvency — Receiver's Petition for Court’s Instructions — Classification of Claims — Whether Counsel Fees and Court Costs Contracted by Policyholders After Insolvency in Defending Suits Covered by Policies Shall Be Allowed — Whether Claims for Unearned Premiums Shall Be Allowed — Whether Counsel Fees for Services Rendered Company Prior, to Decree of Insolvency Should Be Allowed — Whether Contempt Proceedings Against Policyholders Who Had Failed to Pay Court’s Order of Assessment Should Be Instituted — Receiver is Entitled to Court’s Insistence and Instruction, in Some Cases by Bringing In All Parties Interested, in Other Cases In a Less Formal Manner — ‘Receiver Must Still Perform His Statutory Duties and Claimants Have Their Statutory Rights —Proceedings Such as the Present Probably Not Efficient to Bar Such Rights — Views of Court on Questions Asked Indicated.
    On order to show cause on receiver’s petition for instructions.

      2Ir. William. New com, for the receiver.

      Mr. Harold B. Wells, Mr. Jacob L. Purer, Mr. Thomas L. Gash ill. Messrs. Groshev, & Moriarity, Messrs. Warren, Britt & Sian ton, for the divers respondents.
   Buchanan, V. C.

The receiver of the defendant, Mutual Insurance Company, filed petition for aid and instruction from the court to the following matters:

1. Whether or not the claims filed with the receiver should be classified, and. if so. in what order?

2. Whether or not the receiver should allow the counsel fees and court costs contracted by policyholders, after the decree of insolvency, in defending suits covered by the policies ?

3. Whether or not the receiver should allow claims for unearned premiums and permit such claimants to set-off such claims against assessments levied or to be levied ?

4. Whether or not the claims filed for counsel fees for services to the comj>any rendered prior to the decree of insolvency should be allowed or reduced?

5. Whether or not the receiver should be authorized to institute contempt proceedings against policyholders who had- failed to pay the assessment levied under the order of this court?

An order to show cause in respect of the foregoing matters was issued and served in the usual manner upon the creditors and policyholders of the company, a number of whom appeared by counsel on the return thereof, and oral argument was had and briefs submitted on the various points involved.

I am satisfied that the course sought to be taken in the present instance is not the best, nor the proper practice. A receiver, as an officer of this court, is, of course, entitled to the assistance and instruction of the court as to matters arising in the administration of his trust, and, in regard to some matters (such, for instance, as the question of levying an assessment heretofore brought up in this cause), to bring in all parties interested and bind them by such order as might be made. As to other matters, the advice of the court may sometimes properly be asked, but less formally, and without the issuance of process to the creditors and stockholders.

This is particularly true as to the questions of allowance of claims involved in the present proceedings. Section 56 of the Insurance act — 2 Comp. Stat. 2836 (at p. 2854) — incorporates into that statute the provisions of the General Corporation act relative to the powers and duties of receivers, by the latter act (section 76) it is the duty of the receiver to pass .upon and allow or disallow claims and notify the claimant, who by section 78 (Cf. also P. L. 1921 p. 724) may ha.ve tlio receiver’s determination reviewed.

Ordinarily, therefore, it Is contemplated that the receiver, with the assistance of his counsel, shall dispose of such matters. In important questions, where the receiver and his counsel find themselves in doubt, especially if the question involves a number of claims, the advice of the court may properly he sought informally, but the receiver must still perform his statutory duties and the claimants have their statutory rights. I doubt the efficacy of such proceedings as the present to bar such rights. However, since the questions have been argued at length, T will indicate my views.

I. The receiver should, of course, classify the claims filed with him. They should he classified as “allowed” and “disallowed/’ and the “allowed” claims should bo classified as to whether they have been allowed as “preferred” claims or merely “general claims,” also as te whether they are actual or contingent. Moreover, the preferred claims should be further divided into classes, where it appears that there are, or may be, questions of priority amongst them. These classifioatious should he embodied'in the receiver’s report (under section 74, Corporation act) after the time for filing claims has expired, and subsequent changes, if an}', noted in subsequent reports. It is often impossible, and seldom necessary, to determine questions of priority amongst preferred claims until the time for distribution approaches, then such questions should be determined by the receiver and embodied in a report so that the same may be made the' basis of an order of distribution, after notice and opportunity to all interested parties to be heard if they dispute the correctness of tlm receiver’s, determination.

In the present case the receiver has not filed any report as such, although much of the matter,” with certain classifications of claims,.is appended in a schedule annexed to his petition in this proceeding. There is no determination of priority amongst the classes, nor is there' sufficient information before this court to enable the court to1 make a comprehensive determination of such priorities. 1 can only indicate to the receiver in a general way that his. detennination should prefer first (since there are apparently no claims under chattel or other mortgages under section 84 of the Corporation act) the claims, if any, of laborers and workmen; second, judgment creditors, if any, whose judgments, have become a lien upon the property of the company (Doane v. Millville Insurance Co., 45 N. J. Eq. 274 (at p. 282), and section 86, Corporation act); and, lastly, the general or unpreferred creditors.

This applies only to the general assets of the company; there may be creditors who have liens upon certain portions of the assets or who are entitled to preference as regards certain funds. The determination (and report) of the receiver ' should include, not only the priority of pajment as to these, but also the extent or amount of tire property or funds to which their liens extend or are limited. A judgment creditor, even in the absence of execution issued, may have a lien on lands. Gallagher v. True American Publishing Co., 75 N. J. Eq. 171.

Whether or not there are any such in the present ease does not appear. In the schedule annexed to the receiver's petition are listed two judgments against the defendant company, but it is not stated whether execution issued on either; nor does it appear whether such judgments are entitled to lien or preference, or are deprived thereof under P. L. 1919 ch. 208 § 2; nor does it appear whether or not the company had any real estate. The receiver seems not to have filed any inventory — at least, I find none in the files — except a paper captioned and endorsed “Affidavit,” which contains a mere unitemized statement of cash receipts and disbursements, the total value of certain bonds, and the total aggregate of claims presented. No one examining the files would ever think of finding an inventory or report under such a title.

Certain claims by attorneys are also listed, but it does not appear whether or not any o£ them are entitled to, or claim, lien or preference under the statute relating to such lien.

Argument has been had at some length as to one special fund in regard to which liens or preferences are claimed by certain creditors. This is the $50,000 fund oí securities deposited by the company with the commissioners of banking and insurance under and in compliance with the provisions of P. L. 1920 ch. 213 p. 410. Here, again, for some strange reason, there is no- mention of the facts in the receiver’s petition, nor in anything else filed in the proceedings; no mention of the fund, nor that special claims are made to it, nor by whom, nor the nature o-f such special claims and the facts on which they are based. However, there seems no doubt as to- what the main facts are — these being universally admitted on the argument — so- that, for present purposes, I may assume them as properly before me.

It thus appears that the securities in question are now in the hands of the receiver; that claim is made of lien thereon by the holders of two judgments against the company, both apparently by the holders of _ judgments against policyholders, of whom one apparently has issued execution and levy against the fund prior to the injunction in this suit; that claim is also- made thereto- by a number of persons holding judgments against policyholders, but who- have not obtained judgments against the company.

The statute referred to provides that the deposit shall be made “in stocks, bonds or bonds and mortgages” — in other words, securities instead of cash — and that the commissioner “shall hold” these securities “for the benefit and security of the persons injured,” and that the commissioner shall pay from proceeds of the securities “any final judgment secured by any persons or person under the aforesaid act,” to- wit (P. L. 1916 ch. 136 p. 283). As long as the company is solvent and complies with the law, and pays such judgments, it may collect the income from the securities; when execution and levy is made on the securities, the- commissioner shall sell enough of them to- cover the same and pay it o-ver to the officer making the levy.

Í think it is clear, from the provisions of the statute, that this fund was thus constituted a special trust fund for the benefit of a certain class of persons, and that, broadly speaking, that class consists of those persons who might, in fact, thereafter be injured by auto bus policyholders of this company. The title of the act is illuminating: “An act for the more efficient protection of every person suffering loss, damage or injury as a result of an accident, occurring by reason of the ownership, maintenance or use of an. auto bus upon the jublic highway, and for the more efficient collection of judgments secured under ‘An act concerning auto busses/ ” &e. P. L. 1916 ch. 136.

And from the body of the act it is apparent that by “persons injured” is meant persons injured by auto busses in such manner as to acquire valid claims against persons insured (in the company which has deposited the fund) against liability for such injuries.

The commissioner is the trustee. How and why the receiver obtained the fund is not material in the present discussion, because he would, pf course, hold it impressed with the same trusts and liens as would the commissipner. Obviously, the company retains (and the general creditors of the company, through the receiver, succeed to) an ownership and interest in the fund over and above such part as is not required'for the special class of beneficiaries.

To go further, however, and determine who among the general class mentioned in the statute are entitled to priority of payment out of the fund, and how and when such right matures, and the rights of priority amongst them, is somewhat more difficult. The act is not carefully drawn. The commissioner is to pavr out of the fund “any final judgment secured by any person or persons under the aforesaid act of” 1916.

This cannot mean a final judgment secured by an injured person against an auto’ bus owner, for the act of 1916 confers no right of action for injuries. It does, perhaps, impliedly, by providing that the insurance policy shall be for the benefit of the persons injured by the auto bus, confer a right of action against the insurance company upon an injured person who has established his right to damages from an auto bus owner insured in the company. At any rate, I have no* doubt that it was intended so to do, and that the legislature in the act of 1920 understood the act of 1916 as conferring such right of action. Hence, I am satisfied that the “final judgment” mentioned in the act of 1920 means a final judgment obtained by an injured person against the insurance company which made the particular deposit. Moreover, obviously, it could not have been intended by the legislature that the commissioner should pay out of the insurance company's funds a judgment against a policyholder without, more. It would first be required that it be established in some way that the insurance company was, in fact, liable; that it had, in fact, issued a policy covering the judgment obtained by the injured person.

So, then, though the general class for whose benefit the fund is deposited, is all persons, injured by auto bus policyholders of the depositing company, payment is to be made only to persons who recover final judgment against the insurance company. The last paragraph of the act provides that “when execution and levy as aforesaid [ sfc"|” is made on these securities (as a matter of fact there is nothing else whatever about execution and levy anywhere in the act), the commissioner shall sell and pay the judgment to the levying officer.

I conclude that this qualifies the prior provision (that he shall pay any final judgment), and that ho is to pay the final judgment only upon such execution and levy. It is only a final judgment that he is to. pay, and he must have some means of knowing that a judgment, presented is a final judgment. This means is provided by this clause as to pajment on execution and levy, which would be stayed if an appeal were pending.

In my view, where such a judgment, execution and levy is made prior to the appointment of the receiver, such judgment creditor has a perfected prior lien upon that fund. If there be more than one such, their respective priorities would be in accordance with the order of the respective levies.

But I also think that all persons who were injured by auto bus policyholders prior to the appointment of the receiver, and who have since that time established their right to damages from such policyholder' and their right to payment by the insurance company under the policy, have a preferred claim upon this fund, ahead of the general creditors, though subject to the special judgment levies just mentioned. Prom my interpretation of the language of the statutory enactments which we have been considering, and from the standpoint of the principle of public policy which it seems to me is declared by the legislature in these enactments, I think that it must be held that the legislature intended to confer an inchoate right or lien, as to this fund, upon the persons injured by these auto busses. (It should, perhaps, be noted that, under the statutes, the injuries are limited to bodily injury and death; I do not know whether this company issued policies covering any other liability or not.)

The ‘insurance policies and the securities which are required to be deposited are to be for the benefit and security of persons injured. When, therefore, a person does, in fact, suffer bodily injury (or death) in such manner that an auto bus policyholder is liable in damages therefor, he immediately becomes one oí the class for whom this trust fund was created, and acquires a right therein which he may (and, •indeed, must, in order to receive payment from the fund) proceed la,ter to perfect by establishing his right against the policyholder and against the insurance company. But his right accrues, if at all, on the happening of the accident; the subsequent proceedings are simply to prove that the right did accrue.

As io such injured persons, where their judgments and executions and levies have not been had prior to, the receivership, all must stand on the same footing in equity, and share pro rata m the fund, if it be not large enough to pay all. The appointment of the receiver ties their hands, and none can thereafter proceed to acquire a preference over the others.

Their lien or right in the fund, however, since it accrues by statute and not by legal proceedings, is not nullified by P. L. 1919 ch. 208. Whether or not the special preference of a judgment holder who has levied on the fund is or may be. nullified under this statute I have not considered. The point was not argued, and I do not know whether or not the question does or can arise under the actual circumstances in this case.

2. Claims by policyholders for the amount of court costs and counsel fees (to the extent that such are reasonable and proper in amount and reasonably incurred) incurred by them in the defense of suits covered by their policies, should be allowed by the receiver, if the accident forming the basis of the suit so defended occurred prior to the receiver’s appointment and cancellation of policies. The company by its policy agreed to- defend such suit at its own expense. Its failure to do so creates a liability for which claim may properly he made. The amount of the liability is not known at the time of the receiver’s appointment, but neither is it known in the case of the tort-claimant. Cf. Lehigh and Wilkes-Barre Coal Co. v. Stevens & Condit Transportation Co. Of course, too, the1 liability is at first only contingent, there may never be any suit brought against the assured by the injured party-; but the contingency is one beyond the control of the assured under the terms of the policy. If the accident occurred after the appointment of the receiver, the claim should be disallowed. Doane v. Millville Mutual Insurance Co., 43 N. J. Eq. 522 (at p. 535).

3. It would seem that claims for unearned premiums should be allowed. The policies, under the cancellation clause so provide in effect. When the policyholder is deprived of a portion of the insurance protection for which he has paid, as he is on cancellation by the company or the appointment of a receiver, he is entitled to the return of the proportionate part of the premium paid.

Such claimants should not, however, he permitted, in my view, to set-off such claims as against the assessments levied by the receiver under the order heretofore made herein. Section 66 of the Corporation act refers to “just set-offs” in the case of “mutual dealings betyveen the corporation and the person.” It does not seem to me that the claim against the company and the assessment made by the receiver are such mutual dealings. Moreover, it does not seem to me that such a set-oif would be just, at any rate, to the extent that the allowance of the set-off would deprive preferred claimants of payment, and bearing in mind that this is a mutual company. Cf., also Vanatta v. New Jersey Mutual Life Insurance Co., 31 N. J. Eq. 15 (at p. 23).

4 As to the fourth question raised by the receiver’s petition, there is no information before the court from which any conclusion could be reached, and the brief of receiver’s counsel withdraws the question from consideration.

5. The receiver will not be authorized to* institute contempt proceedings against the policyholders who have failed to pay the assessments ordered. It seems evident such proeedings would be unwarranted. Aspinwall v. Aspinwall, 53 N. J. Eq. 684. It is true that in the present case the order is not for the payment by one party to a contract to the other, but to the receiver who is an officer of this court. But the receiver is only in this behalf an intermediary — the payment is to be made to him only that he may pay to tire other parties to the contract in their proper shares — so that the principle is unaltered. The receiver’s procedure should be by execution or sequestration.

As I have before indicated, I doubt that any order of any particular efficacy can be entered in this proceeding, and, ordinarly, I should advise an order discharging the order to show cause. Since the creditors and policyholders in this cause, however, are so numerous, and the time, trouble and expense of service upon them (which is so considerable) has been had., I am desirous of preserving such benefit, if any, a-s may be had therefrom, and if counsel for the receiver, or any of the other interested parties, believe that this can be accomplished, they may submit their views to me on motion to settle the form of the order.


text:
    John H. Frederick, executor, complainant, v. Nellie Wendler et al., defendants.
    [Decided October 22d, 1924.]
    WiliS' — Construction of Residuary Clause in Which Surviving Children are Mentioned, but No Mention of Heirs of Deceased Daughter — Such Heirs Have No Interest in Residuary Estate.
    On final hearing.

      Mr. C. Addixon Swift and Mr. Martin P. O’Connor, for tile complainants.

      Mr. Abe J. David, for the defendant Peal.
   Buchanan, V. C.

The bill is for the construction of the residuary clause of the will of complainant's testator, whereby testator gives the residuary estate "to my children, John II., Nellie, Bertha, Charles L. and Eva, to be divided between them equally, share and share alike, and to the child or children of any deceased child, the share of Ms, her or their parent.” In addition to the named children — all of whom survived testator, and are still living — testator had had another daughter, Louise, who had died a number of years prior to the execution of the will, leaving two children, Elmer and Ernest Peal. The question is whether the Peal children have a share in the residuary estate.

I conclude that they have no such interest. The gift is to the five named children; the subsequent clause is a general clause referring only to the shares of those five children, and providing only for future contingencies, not for the fact which had theretofore happened. The grandchildren take (if anything) “the share” of their respective parents — only the five children were given shares, not Louise, nor her chil.dren, hence, there is no share of the parent of the Peals.

Moreover, testator, by the first paragraph of the will, gave to each of the Peal children $300. He made no such gift to any other grandchildren, nor to anyone else except his wife. These two gifts and the residuary clause complete the testamentary dispositions.

The, conclusion is only strengthened if consideration be given to the testimony as to the actual relations of the testator and the Peal children with each other, and if the difference between the present will and a prior will are considered.

The litigation was justified, and the costs of both parties may be paid from the estate.


text:
    Annie Hensher, complainant, v. Louis Hensher, defendant.
    [Decided November 3d, 1924.]
    Divorce — Maintenance—Grounds, for Abandonment Not Sufficient Under Our Statutes — Payment Now Made Seem Proper —Counsel Fee Allowed.
    On final hearing.

      Mr. Carroll Connolly, for the complainant.

      Mr. David S. Forman, for the defendant.
   Buchanan, V. C.

The bill is for maintenance nncler the statute. The defendant's own testimony is that he left his wife and children and stopped supporting them, his reason therefor being that the wife continually (and unjustly) accused him of going out with other women. However irritating such conduct by the wife may have been to him, it does not, in this state, justify the husband in abandoning his wife, much less his chi] dren.

It appears that during the pendency of the suit the husband has been permitting the wife to collect the rents from properties owned by him, and paying (nnder the order of this court) $15 each week. So- long as the wife is permitted to collect these rents, and so> long as she pays therefrom the taxes, building loan, mortgage interest, insurance and other cai'ry charges, the sum of $15 dollars, per week additional seems to¡ be proper under all the evidence.

Co.sts, including a counsel fee of fifty dollars ($50), will be allowed.


author: Church, V. C.

text:
    Forest Construction Company, a corporation, complainant, v. Harry F. Miller et al., defendants.
    [Decided October 27th, 1924.]
    Master’s Report — Exceptions—All Grounds for Exceptions Examined and Report Sustained.

      Messrs. Schwartz & Sclvwartz, for the defendant BaltzHowell Company.

      Mr. Joseph A. F. Freda, for the defendant Adolph De-Martino.

      Mr. FUas Kanter, of counsel with said defendant DeMartino'.
   Church, V. C.

I have considered the exceptions filed in the report of the special master in The above-entitled cause.

Exception one is that the special master failed to report certain facts which are set up in the exceptions. Ify reference to page two of the master’s report it appears that the master did consider said contract, as mentioned in this exception, and reported thereon.

The second exception is practically the same as the first exception and the same answer applies.

The third exception, that the special master failed to report that the sum of $2,526 is applicable only toward the payment of the sum of $2,635, the amount due under the stop-notice of the defendant DeMartino. B.y reference to the report of the special master, it appears that he has reported, but the report is adverse to the claims set out in this exception. I think that his report is correct.

The fourth exception is that the master has erroneously reported certain facts as set forth in this exception. I think he has reported correctly.

The fifth exception is that the master has erroneously reported as to the facts set out in this exception. I think he has reported correctly.

I shall therefore advise a decree dismissing the exceptions.


author: Per Curiam.

text:
    MATILDA POLONY, ADMINISTRATRIX AD PROSEQUENDUM OF RUDOLPH POLONY, DECEASED, PLAINTIFF, v. JAMES BRADY’S SONS’ COMPANY, DEFENDANT.
    Decided October 9, 1924.
    Negligence — Death Act — Death of Employe of a Carpenter-While at Work for Defendant — Defendant’s Contention That Verdict was Contrary to Law — Employe was Lawfully Engaged — Rule Discharged.
    Oil defendant's rule to show cause.
    Before Justices Kaltschc, Blacic and Campbell.
    Por the rule, Treacy cG Milton.

      Contra, Perkins & Drew an.

   Per Curiam.

There iras a verdict at the Hudson Circuit in favor of the plaintiff against the defendant for $15,000, in an action brought in this court by the plaintiff under the Death act, to recover the peeunniary loss sustained by her, the widow of the decedent, and the next of kin, consisting of two minor children, a boy of eight and a girl of nine years, for the death of the decedent, alleged to have been caused through the negligence of the defendant’s servants.

Of the numerous reasons presented for a new trial in the printed case, the only one relied on and argued in the defendant's brief is, that the verdict was contrary to law. Under this head it is argued that there was no competent proof of the negligence alleged in the plaintiff’s complaint and upon which the verdict was based.

The plaintiff’s decedent, thirty-one years of age, was in the employ of one Fitzpatrick as a carpenter, at the time he met with his death. On the morning of the accident the decedent was sent by his employer to do some carpenter work on defendant’s premises. At the time the defendant’s servants were engaged in unloading sand from a scow by means of a bucket attached to a boom operated by steam. The servant who operated the bucket was a stationary engineer. The boom was held in position by a dog as it carried the bucket from the scow to the hopper. The bucket weighed between two thousand five hundred and three thousand pounds. The scow from which the sand was taken was about fifty feet away from the hopper in which the sand was dumped. The dog which holds the boom in position is an iron bent, which falls into- notches cut in the end of the drum and stops the turning of the drum and holds the boom in position. The drum is the cylinder around which the cable is wound. While the plaintiff’s decedent was erecting housing around some of defendant’s machinery and was kneeling on a platform, which was nine feet in the rear of the hopper and two feet from the ground, sawing a piece of timber, the boom canwing the bucket suddenly dropped from its upward angle, which in its turn caused the bucket to be swung outward in the direction where plaintiff’s decedent was at work, striking him and inflicting fatal injuries.

There was proof which warranted the jury in finding that the falling of the boom was the result of negligence on the part of the defendant.

Costello-, the expert, testified that a bent shaft, light friction blocks or a weak spring would cause the boom to- fall; that these conditions would be apparent upon inspection. There was some testimony which tended to show that the apparatus, at least some of it, had been in the use of the defendant about thirteen years. From the testimony the jury was also warranted in finding that no. inspection was made of the operating machinery to- ascertain its condition for use. The defendant offered no defense.

It seems to us that the plaintiff assumed an unnecessary burden.

The undisputed facts are that the plaintiff’s decedent was in the employ of Fitzpatrick, the latter having' a contract with the defendant company to do certain carpenter work on its premises. The plaintiff’s decedent was one of Fitzpatrick’s employes sent by him to take part in the work to be performed there, and, while engaged in doing the work, he was struck by the heavy bucket, controlled and operated by the servants of the defendant, resulting in his injury and death as above detailed.

We have, under the situation as presented by the evidence, the plaintiff’s decedent being in a safe place for the performance of the work to be done on the defendant’s premises, and where he had a lawful right to be, and, therefore, it became a duty incumbent upon the defendant to exercise reasonable care to keep and maintain the place safe, and to use reasonable care to protect the plaintiff’s decedent against injury to life or limb from the use of defective machineiy by it in doing its own work or through the negligence of its servants, or from an unsafe condition of the premises unknown to the plaintiff’s decedent, and which could not be ascertained hv him in the exercise of reasonable care on his part.

The other essential, undisputed fact, established by the evidence, was that in the operation of the boom which carried the heavy bucket, in its ordinary and normal route, to a hopper nine feet away from the place where the plaintiff’s decedent was at work, the boom dropped from its upward angle, causing the bucket to swing away from its ordinary and normal route and to take an outward course in the direction of the place where the decedent was at work. The falling of the boom, the abnormal course that the bucket took, in the light of the evidence, were, presumptively, due to either one of two causes, namely, negligence of the servants who operated the boom which directed the course of the bucket, or to some defect in the machinery in use.

In the absence of explanatory circumstances, the related facts raised a presumption of negligence on part of the defendant, upon whom rested the burden to meet and overcome this presumption by proof of the exercise of reasonable care on its part. Moreover, there was testimony on behalf of the plaintiff a bent shaft, light friction blocks or a weak spring would canse a- boom to drop. The defendant offered no proof.

We cannot, therefore, say with propriety, that the verdict was contrary to law and against the weight of the evidence.

Entertaining the views, as above expressed, we find it to be unnecessary for ns to decide the question argued in the defendant’s brief, whether or not the trial judge erred in refusing to strike out, on motion, of defendant’s counsel, a statement made by the vice president of the defendant company, who was examined as a witness before trial on behalf of the plaintiff, and who, in the course of giving testimony, without any objection coming from defendant’s counsel, testified that the defendant company’s engineer, in speaking of the cause of the accident, had said that he figured the dog must have let go.

There was ample competent testimony to warrant a jury to reach the result that the death of the plaintiff’s decedent was due to negligence on part of the defendant company.

The rule to show cause is discharged, with costs.


text:
    FRANK METTIE v. JOSEPH DE BAGHIAN AND PUBLIC SERVICE RAILWAY COMPANY. FRANK METTIE v. JOSEPH DE BAGHIAN AND PUBLIC SERVICE RAILWAY COMPANY.
    Decided October 20, 1924.
    Negligence — Injury to Passenger of Jitney Through Collision With Trolley — Judge’s Charge that Plaintiff Entitled to Recover and Jury Must Determine From Whom, Erroneous— Jury Might Have Found Due Care on the Part of Both— Admission of Counsel for Each Defendant that the Other Was Liable Cannot Impose Liability.
    On appeals from the Passaic Circuit Court.

      Before Gummere, Chiet? Justice, and Justices Parker and Katzembach.
    Eor tlie appellants, Alexander M. MacLeod and Leonard J. Tynan.

    Eor tlie respondent, Peter J. McGinnis.

   Per Curiam.

Tins was an action brought by the plaint!if against the two defendants to recover compensation for injuries received by him in a collision between a trolley ear of the Public Service Railway Company and a jitney bus of the defendant De-Baghian, in which the plaintiff was riding. The trial resulted in a verdict against both defendants, the jury assessing the plaintiff's damages at $6,000. From the judgment entered upon that verdict both defendants have appealed.

A number of reasons are urged for the reversal of this judgment. We find it necessary, however, to consider only one of them, and that is directed at the following instruction to the jury: "There seems to be no question in this case but that the plaintiff is entitled to recover. He is entitled to recover from someone, and you are going to say from whom.” This instruction seems to us palpably erroneous, for it overlooks the fact that Hie jury might have found that the collision occurred notwithsianding that both the motorman and the driver of the jitney were using due care in the operation of fchéir respective vehicles. It is true that, as appears from a stipulation of Ihe parties, counsel for the railway company in summing up to tlie jury conceded that the plaintiff ought to recover damages from the defendant DeBaghian, and that counsel for the defendant DeBaghian in his summing up conceded that the plaintiff ought to recover damages from the railway company. But these concessions made by counsel, in which each one attempted to impose liability upon the client of the other, could not operate to impose liability upon either defendant. If each counsel had admitted that his own client was legally responsible to the plaintiff, a different situation, of course, would have been presented; but in the present case, notwithstanding the admission or assertion of counsel for the respective defendants, the question still remained for the jury to determine whether the accident occurred by reason of the negligence of the employe of either the one or the other of the defendants, or solely from a cause for the existence of which one of them was responsible.

The judgment under review will be reversed, for the reason indicated.


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    INNOCENZA ALLEGRETTI v. FRANCESCO SENSI.
    Decided October 20, 1924.
    Contracts — Suit on Promissory Note Made by Plaintiff to Order of Defendant — Plaintiff Alleged Lack of Consideration — Defendant Claimed Note to be Plaintiff’s Contribution to Joint Adventure in Grape Buying, in Which Enterprise There Was a Total Loss — Judgment for Plaintiff — Alleged Newly-Discovered .Evidence — Evidence Considered and Stories Believed Untrue.
    On defendant’s rule to show cause.
    Before G-ummere, Chtee Justice, and Justices Parker and Katzenbach.
    For the rule, Romulus P. Rimo.

      Oonlra, Forman é Levy.

   Per Curiam.

This was an action brought on a promissory note for $1,000, drawn by the plaintiff to the order of the defendant. The averment of the plaintiff, set out in his complaint and supported by the evidence in the cause, was that this promissory note was given by him to the defendant solely for the latter’s accommodation, and without any consideration moving to him, the plaintiff. The defense set up, and attempted to be proved, was that the defendant and the plaintiff were engaged in a joint venture in the purchase of a carload of grapes from California; that the note was given to raise funds to pay for the grapes and their transit from California to Yew Jersey; that the grapes were spoiled before reaching destination, and that, under the terms of their agreement, the loss sustained was to fall upon both of them in equal amounts. The jury, after having heard the testimony, found a verdict in favor of the plaintiff for the full amount of the note and interest, thereby declaring that the note was given by the plaintiff to the defendant solely for the latter’s accommodation and without anjr consideration received by the former from the latter. Six clays after the rendition of the verdict the defendant applied for and obtained a rule to show cause why a new trial should not he ordered, the application being made upon the ground of newly-discovered evidence. One of the provisions of the rule permitted the parties to take testimony supporting and controverting the assertion that evidence had been newly discovered by the defendant, the result of which would justify a setting aside of the verdict. The evidence taken by the defendant under this rule consisted of the testimony of two witnesses, one a man named James Gervasone and the other a man named Daniel Montani. Each of these witnesses testified that Ihe day after the conclusion of the trial they had met the plaintiff on one of the streets of Trenton, where both of the parties to the litigation resided, and had entered into a conversation with him with relation to the present case, and that in that conversation he stated to Gervasone, within the hearing of Montani, that, although he had testified to the contrary before the jury, he and the defendant were, in fact, partners in ihe purchase of the carload of grapes, and that, under their arrangement, any loss should fall upon them both equally. Gervasone was a relative of the defendant; Montani was a step-son of the defendant, and his wife was the defendant’s daughter. Montani admitted that he did not know the plaintiff at all, and Gervasone testified that although he knew the plaintiff, Allegretti, by sight, he had never had any conversation with him before the occasion concerning which.he testified, so far as he recollected. In addition, he admitted that he had 'been convigted of crime. On the other hand, the plaintiff, Allegretti, testified that he had not met these two witnesses of the defendant at the time and place mentioned bjr them, or at any other time and place, and denied positively that he had ever had any such conversation with them concerning the litigation between him and the defendant, and his testimony is corroborated by other witnesses called in his behalf.

The idea that the plaintiff, who is presumed to be of sound mind, should have, within twenty-four hours after the trial, confessed to two strangers that he had committed perjury upon the witness-stand for the purpose of obtaining a verdict against the defendant in the case, is almost inconceivable, and we would hesitate to set the verdict aside upon the testimony of these two so-called newly-discovered witnesses, even if their story had not been contradicted. The denial of Allegretti, supported as it is by other testimony, satisfies us that the story told by Gervasone and Montani is absolutely untrue, and we conclude, therefore, that the rule to show cause should be discharged.


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    ANNA O’BRIEN v. WILLIAM STAIGER.
    Decided October 20, 1924.
    Negligence — Injury to Tenant — Injury Resulted From Leaky Roof of Which Landlord Had Ample Notice — Allegation that Verdict Was Against Weight of Evidence Not Sustained— Charge to Jury that it was Landlord’s Duty to Keep Premises in Reasonable Repair Approved — Verdict Not Excessive.
    On defendant’s rule to show cause.

      Before Gum. mere, Chief Justice, and Justices Parker and Ivatzenbach.
    Pot the rule, Charles S. Moore.

      Contra, William Elmer Brown, Jr., and George A. Bourgeois.

   Per Curiam.

This was an action for personal injuries. The plaintiff was a trained nurse, whose home was in an apartment building belonging to the defendant, she being the lessee of certain rooms on the top floor. On the 3d of October, 1921, she temporarily left a patient, whom she was nursing, and went to her home, intending to stay there only for a short time. As she came into her apartment, according to her testimony, she stepped in a pool of water, lost her balance and fell on the floor, breaking her hip. She claimed that the presence of the water upon the floor was due to a leak in the roof, of which the defendant had knowledge a sufficiently long time prior to the accident to remedy the defect, and that, consequently, he was responsible for her injuries.

The first contention is that the finding of the jury in favor of the plaintiff, which, by necessary implication, was based upon the conclusion that the accident happened practically in the way she described and under the conditions concerning which she testified, was against the weight of the evidence. Our reading of the testimony sent up with the state of the case satisfies us that the jury was justified in its finding; that is, that the water came through a leaky roof, and that the lack of repair of the roof was a matter of which the defendant had notice long enough before the accident to charge him with responsibility therefor.

The next point argued is that the verdict was contrary to the charge of the court. It is difficult to understand the theory upon which counsel rests this contention. The court instructed the jury that, in order to find a verdict for the plaintiff, it must determine that the defendant, who was charged, with the duty of using reasonable care to keep the roof of the apartment house in condition, and when it became out of repair to take reasonable steps to put it in repair, carelessly and negligently performed this obligation or did- not' perform it at all. The verdict, we think, is in harmony with this instruction.

The only other contention is that the verdict is excessive in amount. We do not think so. The plaintiff, as has already been stated, was a trained nurse. According to her testimony (and it was uncontradicted), her average earnings were $6 a day, and her employment usually approximated forty-four weeks in the year. In other words, her earnings amounted to over $1,800 annually. The breaking of her hip has rendered her permanently lame and has made it very doubtful whether she will ever be able to resume her work as a nurse with any reasonable success. Erorn the time of the accident up to the time of the trial a period of more than two years had elapsed, during all of which time she was entirely incapacitated from carrying on this work. That means approximately a loss of $3,600 for that period. The medical and surgical expenses incurred by her by reason of the accident amounted to $340. The aWard altogether was $7,000; that is, approximately $4,000 for her actual loss up to the 'time oí the rendering of the verdict, and $3,000 as compensation for her pain and suffering and for her personal injuries, and for partial, if not complete, destruction of her earning power.

The rule to show cause will be discharged.


author: Per Curiam:

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    GEORGE ASH ET UX, v. ARTHUR BLANCHARD ET AL.
    Decided October 20, 1924.
    Negligence — Motor Vehicle Collision — Defendants’ Counterclaim — Judgment for Plaintiff — Rules Obtained by Both Sides — Examination of Testimony Justifies Conclusion that One Side was as Much to Blame as the Other — Defendants’ Rule Made Absolute, Plaintiffs’ Rule Discharged.
    On defendants’ rule to show cause. Hule to show cause allowed to plaintiff George Ash.
    Before Guaimure, Chief Juktr;e, and Justices Parker and Katzexbaoti.
    For the plaintiffs, William B. Gourley.

    For the defendants, William E. Flolmwood.

   Per Curiam:

This is an action brought by the plaintiff Ash and his wife to recover compensation for injuries to person and property resulting from a collision between an automobile belonging to the husband and driven by him and an automobile owned by the defendant Arthur Blanchard, and driven by his nephew Clinton, a co-defendánt. The collision occurred at the intersection of Passaic avenue and Bloomfield avenue, in the township of West Caldwell, on the 28th of June, 1922. The basis of the plaintiffs’ claims was that the collision was solely the result of the carelessness of Clinton Blanchard in the driving of his ear. The defendants denied this averment in the plaintiffs’ complaint, asserting that the collision was the result of the carelessness of the plaintiff Ash in the driving of his ear, and counter-claimed for damages resulting to the defendants’ car from the collision. None of the parties were satisfied with the verdict, which was for the plaintiffs, George Ash and wife, contending that the award was inadequate and applying for and obtaining a rale to show cause for this reason, the defendants contending that the finding of liability against them was contrary to the weight of the evidence, and applying for and obtaining a rule to show cause why the verdict should not be set aside for this reason.

We have examined' the testimony in this case with considerable care, and as a result of that examination conclude that the testimony justifies u& in saying that Ash was as much to blame for the collision as Blanchard. At the intersection of the two streets Blanchard, under the Motor Vehicle law, had the right of way, providing he was traveling at a lawful speed, and was entitled to assert that right unless by doing SO' he placed others in jeopardy. There is no reason why Ash should not have observed the Blanchard car as it approached the intersection, if he had used due care in making observation, and have avoided a collision if he had his car under proper control. Moreover, even if be true, as he asserts, that the Blanchard ear was traveling at a speed in excess of that which the law permits, that fact did not justify him in attempting to' cross the intersecting street without first making proper observation.

We conclude, for this reason, that the defendants’ rule to show cause should be made absolute, and that the rule allowed to the plaintiff Ash should be discharged.


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    JAMES CALIOPOULOS ET AL., PROSECUTORS, v. PETER CHAGARIS ET AL., DEFENDANTS.
    Argued October 7, 1924
    Decided October 20, 1924.
    Certiorari — Review of Order of Common Pleas, Setting Aside Verdict as Excessive — Jurisdiction—Common Pleas Orders Reviewabie Not by Certiorari, but by Writ of Error.
    On certiorari.

      Before Justices Katjsch, Black and Campbell.
    For the prosecutors, Aaron A. Melnik er.

    For the defendants, Butler & Butter.

   Per Curiam.

The certiorari in this case was allowed to review an order made by an acting judge of the Court of Common Pleas of Hudson county, setting aside a verdict of a jury, tried in that court, as excessive. The suit was brought to recover damages for an alleged wrongful declaring a chattel mortgage in default and for attempting to foreclose the mortgage. The case was tried on October 25th, 1923. The verdict was for the plaintiff for $2,250. The rule to show cause was allowed October 31st, 1923, returnable November 28th, 1923. The rule for the new trial was not argued until April 29tli, 1924. The rule was' continued and kept alive, the court said, by consent of counsel. Tt was decided on May 7th, 1924, when a new trial was ordered, and the rule made absolute.

We are confronted at the outset in the consideration of this case with the question of jurisdiction. What was said by the Court of Errors and Appeals, in reference to a certiorari issued to the Circuit Court, is pertinent and decisive of (his case. The Circuit Court is, so is the Court of Common Pleas, a constitutional court of record, having general jurisdiction over common law actions inter partes, and proceedings therein according to the course of the common law. As such, its orders are reviewable, not by certiorari, but by writ of error, and only after filial judgment. Taylor Provision Co. v. Adams Express Co., 72 N. J. L. 220. In that case, it was also said, the writ of certiorari should not have been allowed, and after allowance should have been dismissed. So, an application for setting aside a verdict and awarding a new trial is always addressed to the judicial discretion of a court, and error cannot be urged against such exercise of that discretion. Furman v. Applegate, 23 Id. 33. The office of the writ of certiorari in this class'of cases is in the nature of that of a writ of error. Therefore, its allowance is governed by similar principles. Hoxey v. City of Paterson, 39 Id. 493. This also disposes of the alleged irregularities in the prosecution of the rule between the date of its return, November 38th, 1933, and the date of the argument, on April 39th, 1934. The result is, the certiorari allowed in this case is dismissed.


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    IN RE JESSE J. FEINBERG.
    Decided October 20, 1924.
    Attorney-at-Law — Unprofessional Conduct — Suspension for One Year — Rehearing Asked for After Suspension Period Has Expired on Ground of New Evidence — Had Evidence Now Produced Been Available at Original Hearing, Applicant’s Contention Would Have Been Sustained.
    On application for a rehearing.
    Before Justices Rausch and Ratzenbach.
    For the application, Jesse J. Feinberg, pro se.

   Per Curiam.

This is an application for a rehearing. A complaint was made against Mr. Feinberg for unprofessional conduct. It arose from the payment to Mr. Feinberg of the sum of $500. Mr. Feinberg contended that this sum was paid him to defend one William Stasilitis, arrested upon a charge of robbery. Stasilitis claimed that the money was paid for the purpose of obtaining bail, and if bail was not required, then it was to be returned to him. No bail was required as Stasilitis, at a hearing, was discharged. The complaint was heard before the bar examiners, and in their report they recommended that Mr. Feinberg be for a time suspended from the practice of the law. After an examination of the record by this court, Mr. Feinberg was suspended from the practice of the law for a j'ear. The decision was based principally upon testimony as to the ignorance of Stasilitis, of which it was claimed that advantage had been taken. Mr. Feinberg bowed to the decision of the court. The year of suspension has passed. Mr. Feinberg now presents to the court evidence which he contends he was unable to produce before to the effect that Stasilitis, instead of being a poor ignorant foreigner, was a gambler, well informed as to the criminal machinery, and lias been convicted of crime since the making of the complaint against Mr. Feinberg. Mr. Feinberg argues that the statements of Stasilitis regarding the transaction in which he became involved with Stasilitis were false.

In view of the fact that the period of suspension has expired, we can see no useful purpose in granting the application for a rehearing. Had the evidence now produced been available and produced at the original hearing, our decision would have been one which would have sustained the contention of Mr. Feinberg respecting the transaction.


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    WALTER L. HILDEBRANT AND J. WESLEY HILDEBRANT, PARTNERS, TRADING AS THE HILL NEEDLE COMPANY, PLAINTIFFS-RESPONDENTS. v. ALFRED A. WRIGHT, A. STANLEY WRIGHT, BENJAMIN E. WRIGHT AND THE HILL NEEDLE COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS.
    Argued May 7, 1924
    Decided October 7, 1924
    Filed October 24, 1924.
    Unfair Competition — Conspiracy to Ruin Business — Plaintiff in Modeling Business on Plan of that of Defendants in Whose Employ One Had Been, Enraged Defendants that They Maliciously Set Out to Destroy the Plaintiffs’ Business— Methods Employed Considered and Jury’s Verdict for Plaintiffs Sustained.
    On defendants’ rule to show cause.

      Before Gummere, Ci-iiee Justice, and Justices Parker and Katzenbaoh.
    For the plaintiffs-respondents, Stamler, Stamler & Koestler.

    For the defendants-appellants, William Greenfield.

   Per Curiam.

The theory-of the suit is that of Van Horn v. Van Horn, 52 N. J. L. 284; 56 Id. 318, viz., conspiracy to ruin plaintiffs’ business, and acts. done in pursuance thereof. Defendants say the real sinner is Wesley Hildebrant, one of the plaintiffs, who they say stole their trade methods, so that what they did was in legitimate self-defense. Our examination of the case leads us to the conclusion that, although there was great provocation in the conduct of plaintiffs, it did not justify or legally excuse the admitted conduct of defendants.

The elder Wright was doing a mail-order business in selling needles under the name of J. A. Coates & Sons, Limited, office in Orange. He employed Wesley Hildebrant to audit and handle his books as a sort of outside assistant. Hildebrant came up from Elizabeth from time to time to do this, and, .apparently, did it well, so that he was entrusted with keys, safe combinations, &e., and had general access to the papers of Wright. He soon discovered that it was a good business, and also that Wright was not operating a.t all in the State of Tennessee, and saw no reason why he should not take up that vacant territory. So he started a business from the Elizabeth end, which he called the Hill Needle Company, adopting and copying Wright’s methods of correspondence, shipping, &c., and began to solicit mail orders from Tennessee. Wright soon found this out, and became furious at what he considered a betrayal of his affairs by one whom he had taken into his confidence. There is little, if anything, to be said for Hildebrant’s conduct from a moral standpoint, but if there was no secret process (and there was not) the law would not prevent his competing with Wright, even on his own ground, if he wanted to do so. Bnt it is quite clear that Wright was determined to run him out of the business by fair means or foul. Each side registered a partnership name of Hill Needle Company on the same day, one in Union and one in Essex, both futile, because not executed according to the statute. Ten days later Hildebrant got his filed properly, and the next day Wright filed an incorporation in Essex under the same name. If (this were all, the plaintiff would have little of a case; but there is much more. Wright wrote letters to Elizabeth hanks claiming checks sent to Hildebrant, to- the postmaster there, claiming letters addressed to Hill Needle Company circularized Hildebrant’s customers and prospective customers in Tennessee offering reductions and refunds on Hildebrant’s contracts; got back a lot of Ilildebrant’s needles and sent them to him in Elizabeth, and in every possible way sought to break down Hildebrant’s business. Meanwhile, Wright kept up his own business in the Coates name. His Hill Needle Company business was a mere cover to make trouble for Hildebrant.

The judge was unusually mild in his charge and gave the defendants all they were entitled to, but he generally left it to the jury to say whether they had acted maliciously for the purpose of destroying plaintiff’s business, and the jury found they had. This finding we are unwilling to disturb. Irrespective of the question of a pure conspiracj'', the letters to the hanks and the offers of rebates, both of which were false, amounted to- libel, and were legally unwarranted.

Mr. Greenfield claims that the sons should not be mulcted with the father, as they were not active participants in his doings. Both seem to have been voluntary puppets of his, and they could not have been ignorant of his purposes in getting up the corporation and in sending out the letters, and in whatever else he did.

There was no- erro-r in refusing to- nonsuit or direct a verdict, and the verdict was not against the weight of evidence. It is claimed that the damages are excessive-. The verdict was $2,000, and when it is considered that the gist of the action is malice (Van Horn v. Van Horn, supra), and punitive damages are, consequently, in order, it is difficult to say that it was excessive. As to the admission of testimony that plaintiffs paid $225 for a commercial agency book, this is not embraced in any reason filed.

The rule will be discharged.


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    DOHERTY, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY AND HERCHE, DEFENDANTS.
    Argued May 7, 1924
    Decided October 7, 1924
    Filed October 24, 1924.
    Negligence — Motor Truck Collision With Trolley Car — Injury to PlalntifF, a Trolley Car Passenger — Judgment Against Trolley Company — Claim that Both Defendants are Equally Guilty Has Much to Justify It — Judge’s Charge that One or the Other Must Be Guilty Sustained — Jury Finding Against One Defendant Only Not Disturbed Except as to Amount of Damages.
    On defendants^ rule to show cause.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    Por the plaintiff, Richard Doherty.

      For the defendants, Leonard J. Tynan.

   Per Curiam.

The plaintiff was a passenger on a northbound trolle}7 car of defendant on Palisades avenue, Jersey City. The car was crowded with passengers in commission hours. Coining in the other direction on the westerly portion of the street was a large truck of the defendant Herche. The truck was very wide, and ivas carrying a large cast fly-wheel section on it, which may or may not have projected over the side towards the trolley car. Car and truck were so disposed as to meet and pass at about the point where an automobile was parked on the westerly side of the street so as to restrict the space available for the truck to pass the car. Both truck and car pursued their way in full sight of each other until the motorman realized that a collision was inevitable, and then, according to his claim, he suddenly stopped his car and called to the passengers on the left side to jump. The plaintiff was sitting on that side. Apparently, the truck or the fly-wheel tore its way down the left side of the car, and something-caught the plaintiff in the arm, back and leg, and the plaintiff claimed that he became unconscious, and came to in the street. Plaintiff sued both the trolley company and the owner of the truck, who was also its driver, but the jury found against the trolley company alone for $6,000 damages, which it is claimed is excessive.

It is claimed that the jury should have found the truck driver liable as well as the owner of the trolley car, and there is much to be said for this view, hut as tnere was clearly e/idence in the case justifying a Uncling of negligence on the part of the motorman in not realizing the situation sooner, and the present defendant is not legally injured by the verdict, we are not disposed to order a new trial oil this ground. It is also argued that the court assumed that one defendant or the other must be liable, ignoring the possible theory of pure accident. AYe incline to think that the circumstances of the accident were such as to indicate, without any question, negligence on the part of one of these parties or the other, and that, for the purposes of this rule, the charge on this phase of the case was fairly justified.

As to the amount of damage, however, we feel satisfied that the plaintiff has greatly exaggerated the injuries sustained and, in this respect, the verdict is entirely against the weight of evidence. If the plaintiff will consent to accept a reduction of the award to $3,000 the rule may be discharged; otherwise it will be made absolute without restriction to amount of damages.


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    JOHN DE STEFANO ET AL., PLAINTIFFS, v. YELLOW CAB COMPANY, A DOMESTIC CORPORATION, DEFENDANT.
    Submitted June 5, 1924
    Decided October 7, 1924
    Filed October 24, 1924.
    Negligence — Collision Between Motor Cab and Racing Car— Plaintiffs Were Occupants of Cab — Driver Lawfully in the Road — 'Racing Car in Effort to Avoid Another Car Collided With Cab — Judgment Against Cab Company Reversed.
    On defendant’s rule to show cause.
    Before Gummbre, Chief Justice, and Justices Parker and Katzbnbach.
    For the plaintiffs, Benjamin Gordon and Louis J. Feii.

    Eor the defendant, John A. Bernhard and Joseph B. Strieker.

   Per Curiam.

The plaintiffs are a husband and wife and four young children, comprising the entire family of John De Stefano as it existed at the time of the accident on account of which the suit was brought, John, with his wife, who was then pregnant, and four young children, took a taxicab belonging to the defendant company in the evening of September 1st, 1923, to go from Newark to Elizabeth via Erelinghuysen avenue. About at the Newark city -line the taxicab came 'into a head-on collision with a Chevrolet car occupied by-several young men apparently on a joy ride, and all the occupants of the taxicab were' more or less injured. They brought this suit against the cab company alone, and the plaintiff John had a verdict of $993, the wife $730, and the children varying insignificant amounts not now attacked as excessive. Eor'the defendant, it is claimed on this rule that the verdicts for John and his wife are excessive, and that the verdict is against the weight of evidence and' against the charge of the court. We are clear that it is not against the charge of the court, but, with respect to its being against the weight of evidence, we think there can he little or no doubt .that this is so and that the accident was entirely due to the negligent operation of the Chevrolet car. The taxicab was pursuing a straight course from Newark to Elizabeth to the right of the centre of Frelinghuysen avenue, either in or straddling the southbound car track. The evidence shows, without substantial contradiction, that at that time and place, coming north were, first, a large freight truck, secondly, a Mitchell touring' car in the northbound track, and finallv., the Chevrolet, which was coming behind them at very high speed. The plaintiffs claim that the Chevrolet swerved in trying to pass ihe truck. The defendants claim that it swerved because of trying to pass the Mitchell car. What seems to be definitely established is that the Chevrolet did pass to the left of the Mitchell, tore olí the left mud-guard of that car, and that this collision threw' the Chevrolet over on the southbound track directly in front of the yellow cab, the driver of which could do practically nothing to get out of its way. It is intimated that the taxi was going at an excessive speed, but we think tlial the jury could not properly have found that it was. If he had been going at excessive speed, in all probability, lie and all the occupants of the ear would have been killed or very seriously injured. The situation was simply that of the driver of a vehicle proceeding at a lawful speed in a lawful place suddenly confronted by a racing car in Ihe opposite direction which was endeavoring to get around the Mitchell, and in so doing, encroached on the legal path of the taxicab. We are unable to perceive any reasonable theory osi which the jury were entitled to find that the taxicab driver failed in his duly of care in operation of the vehicle.

We Incline to think, also, that the damages were excessive, although in view of the result just reached, it is unnecessary to enlarge upon the matter. The wife, who was pregnant at tlie time, does not seem to have been seriously upset physically, as she bore 'her child in the ordinary course at the proper time.

As our conclusion respecting the weight of evidence affects all the plaintiffs, the rule to show cause will be made absolute generally..


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    FEURY ET AL., PLAINTIFFS, v. REID ICE CREAM COMPANY ET AL., DEFENDANTS.
    Argued May 6, 1924
    Decided October 7, 1924
    Filed October 24, 1924.
    Negligence — Small Child Run Over by Motor Truck — Judgment Against Owner but No Finding Against Driver — Driver, Accordingly, Not Harmed up to this Time — Theory that Failure to Find Verdict Against Servant Amounts to Exoneration Which, in Effect, Bars a Finding Against Master Not Adopted — Judgment Excessive and Ordered Reduced or New T rial.
    On defendants’ rule to show cause.
    Before G-ummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiffs, Zeigener & Lane.

    For the defendants, Marshall Van Winkle.

   Per Curiam.

The infant plaintiff, a child of about four and one-half years, was run over in Monticello avenue, Jersey City, by an auto truck belonging to the defendant Eeid Tee Cream Company and driven by the defendant Hasse. The father, appearing as next friend, also sued for damages per quod. The child lost one leg at the knee joint. The jury rendered a verdict of $25,000 in favor of the infant plaintiff and $3,000 for the father against the ice cream company alone, without making any finding either for or against the defendant Hasse. Both defendants ask for a new trial, and this, partly because the record.' is defective in failing to exhibit a verdict as respects the liability of Hasse. As to the application of Hasse for a new trial, we cannot see that any harm has been done him up to this time. It would appear that if there was no verdict either for or against him his case has never been fully tried, and the situation is as though there had been a mistrial. At all events, no new trial can be awarded on his application.

As to the Reid Ice Cream Company, we are likewise unable to see that it is legally injured by the failure of the jury to make any finding as respects the guilt of a co-defendant joined as a joint tort-feasor, especially as the Reid company is distinctly charged with negligence in failing to have the brakes of the car in good order, something for which Hasse normally would not he responsible. Defendant’s counsel cites a number of cases which he claims establish the proposition that a failure to find a verdict against the servant amounts to an exoneration of the servant, and that this, in effect, bars the jury from finding against the master; but we are unable to read any such deduction from an examination of the eases cited, and, consequently, are of the opinion that the verdict should not he disturbed on any such ground.

The charge of the court on contributory negligence upon the part of a 3roung child is challenged, but we think that the rule in this respect was correctly charged.

The last point relating to charge about the duty of the driver to inspect brakes is based upon the claim that there is no evidence to show that the brakes were out of order. There was some evidence, perhaps not very strong, hut still sufficient to raise a jury question in that regard.

As to the amount of the verdict, the award of the father does not seem to be challenged. As to the child, it is said that $25,000 is excessive, and we think that it is. In onr judgment a verdict of $15,000 should be ample under the circumstances. If the plaintiff will consent that judgment be entered in this reduced amount, the rule will be discharged; otherwise it will he made absolute and a new trial ordered, not restricted to amount of damages.


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    DAVID WOOD, BY HIS NEXT FRIEND, PERCIVAL D. WOOD, AND PERCIVAL D. WOOD, INDIVIDUALLY, PLAINTIFFS, v. MORRIS & COMPANY, A CORPORATION, DEFENDANT.
    Submitted June 5, 1924
    Decided October 7, 1924
    Filed October 24, 1924.
    Negligence — Motorcycle Collision With Motor Truck — Court Asked to Decide Question of Fact, Which Must be Done by Jury — Jury Might Have Found, Had They Thought Proper, i Contributory Negligence — Amount of Award Considered and Not Found Excessive.
    On defendant's rule to show cause.
    - Before Gukmere, Chief Justice, and Justices Parker and Iyatzbnbach.
    For the plaintiffs, Abraham I. Feliman.

    For the defendant, Jacob Schneider.

   Per Curiam.

The plaintiff, a youth of seventeen or eighteen years of age, while riding his motorcycle at the intersection of Sixteenth avenue and Summer street, in the city of Paterson, came into collision with a motor truck belonging to -the defendants and operated by their employe, and sustained very serious injuries consisting, in part, of a fractured pelvic and a ruptured bladder, the latter resulting in the abnormal discharge of urine over which he has no control, and the condition generally being such as to he incapable of cure except bv a major operation. He brought his suit for damages, his father acting as next friend, and also suing in his own right for compensation for the loss of services, care, medicine, &c. The jury found a verdict of $9,000 in favor of the young man, which does not seem to be challenged as to its amount, and they found a verdict of $?',()()() in favor of the father which is now claimed to be excessive. The present rule embraces both claims, and certain exceptions have been reserved as grounds of appeal. Xot all ihe reasons under the present rule are argued.

The testimony showed strongly contrasting features as to the circumstances of the accident, but, for the purposes of this rule, the defendant appears to accept the version of the plaint ill's as settled by the verdict, and claims that even on that version, the court should have nonsuited or directed a verdict because of contributory negligence. According to the case as made out for the plaintiff, lie was proceeding slowly in a northerly direction on Summer street intending to turn east into Sixteenth avenue: his view to the enA on Sixteeiiih avenue was cut off by a building until he cleared that building. He was also watching to the northward and westward. Suddenly lie saw the defendant’s truck headed west on Sixteenth avenue ami turning to the southward on Summer street cutting the corner to its left into Summer street so close to the southeast curl) that plaintiff could not possibly pass it. but apparently attempted to head off the truck and in so doing ihe plaintiff swerved sharpely to the left, or northwest. and was caught by the truck before he had succeeded in crossing its bow, in nautical parlance. The above are the. salient facts in the ease, and, accepting them, wre are asked to say that the court ought to have held as a court question that the plaintiff should have seen the truck sooner or should have kept to the right or should have done something different from what he did. It has been many times held, both in tliis court and in the Court of Errors and Appeals, that ordinarily the court cannot decide these questions arising out of vehicular accidents in a public highway, and if the court .should not decide them, it necessarily means that the jury must. Xo doubt the jury could have found, if they had thought proper, that the plaintiff was guilty of contributory negligence. In such a ease as Faggioni v. Weiss. 122 Atl. Rep. 840, they seem to have held the defendant negligent for turning to the left at a critical juncture; but every case must rest on its own circumstances. If the plaintiff had been of age and was fully chargeable with the rule of contributory negligence, we doubt very much whether the court should have taken the question from the jury because, when confronted with a sudden emergency, he did something which perhaps turned out to be wrong. Still less should the court control the question in the case of an infant, even of age sui juris.

As to the amount of the verdict in favor of the father, it is claimed that this was excessive, and, in connection with this claim, it is urged that the court erred in refusing to charge the following request on behalf of the defendant:

“In awarding damages for loss of wages or earnings, if you find for the plaintiff you should take into consideration only the summer of 1922, from August 11th to the beginning of school in September, as the testimony is that David Wood intended to return to high school and therefore would not have made wages after school opened. There is no testimony as to any definite wages received by him during the school term.”

We are clear that it was no error in denying this request because the reasonably probable loss of wages is by no means confined to the summer of 1922, the father being entitled to any wages earned by the son until his majority. As to the amount generalljr, the defendant seems to concede that actual expenditure amounting to $2,891 was proved and claims that $4,000 would be enough to award to the father after taking everything into consideration. With this, however, we are unable to agree, because the expense to the father is not confined to a period ending with the beginning of the suit, but the jury should properly be required to consider what reasonable expense he would in all probability have to incur without limit as to time, certainly until the majority of the infant, and perhaps even after that if the young man should not be restored to health and should be dependent upon his father for aid. It was manifest that the 3rounger plaintiff could not be restored to sound health without an important operation which would be very expensive and for which, very probably, the father would have to pay. The duty of support in the ease of an “impotent person or other poor person not able to work” does not end at majority, but may continue indefinitely. Comp. Stat., p. 4023, § 30; Pamph. L. 1911, p. 397, § 15; Stark v. Fagan, 90 N. J. L. 187. It is true that the trial judge in liis charge limited the jury to considering the obligation of the father to provide medical care and attention for his son until he shall arrive at the age of twenty-one years; but even oil this basis, the jury were entitled to find that in all reasonable probability the expenses theretofore incurred by the father would not end the matter, but that lie would he obligated to incur and pay a very considerable amount in addition to them. We think, therefore, that the verdict was not excessive as to the father.

The other questions argued need but slight comment. The action of the court in allowing the jury to inspect the plaintiffs wound and judge of his physical condition by what was visible to them was in no way legally erroneous and was discretionary with the court. The charge in relation to the Traffic act we think was substantially correct. The court called attention to the pertinent provisions of the Traffic act and properly instructed the jury that, while they could be considered as bearing upon the question of negligence and contributory negligence, they were not controlling. This is in entire accord with our decisions. Healey v. Braested, 120 Atl. Rep. 13; Doyon v. Massoline Motor Car Company, Id. 206; Baker v. Fogg, 95 N. J. L. 230.

The rule to show cause will he discharged.


text:
    THE STATE, DEFENDANT IN ERROR, v. JEMIMA BANNELL, PLAINTIFF IN ERROR.
    Submitted June 5, 1924
    Decided October 7, 1924
    Filed October 24, 1924.

      Crimes — Having Intoxicating Liquor in Possession — 'Married Woman Living With Husband — Claim that if Crime Has Been Committed Husband, Not Defendant, Was Guilty— Facts Considered and Found to be a Fair Jury Question.
    On error to the Burlington Quarter Sessions.
    Before Gummebe, Chief Justice, and Justices Parker and Katzenbacii.
    Por the plaintiff in error, Roberl Peacock.

    Por the defendant in error, Jonathan II. Kelsey.

   Per Curiam.

The defendant was arraigned and tried on two indictments based upon the Intoxicating Liquor act of 1922. P. L., p. 615. The first indictment was in three counts, the first count for selling, on which the jury acquitted the defendant; the second count for furnishing; as to this, there was an acquittal by direction of the court; the third count was for possessing on the 31st day of July, 1923. The second indictment was for possessing only, and laid the offense as of the 1st day of August, 1923. The case is before us on strict bill of exceptions and assignments of error. The first assignment, that the state failed to prove the defendant guilty of possessing, &c., is not based on any judicial ruling, and is therefore futile. The third, that the verdict was against the weight of evidence, is necessarily based on the act of 1921, which is confined to eases where the entire record is brought up under section 136 of the Criminal Procedure act, which is not the case here. The fourth assignment is that the court, did not charge properly on the question of reasonable doubt. This is bad because lacking in definiteness. See State v. Spallone, 117 Atl. Rep. 151. Tho filth is that tho court rejected legal evidence offered by plaintiff in error, and the sixth that the court admitted illegal evidence offered by the defendant in error. These are futile for the same reason jnst given. The eighth is abandoned. This leaves only the second and seven tit assignments for consideration.

The second is that the court failed to- direct a verdict in favor of the defendant. Inasmuch as, in our view, a case for the jury was adequately presented, the motion to direct an acquittal was properly denied.

The seventh is as follows: “Because the co-urt did not discharge defendant, who is a married woman living and cohabiting with her husband, and the testimony showed that if any crime was committed it was committed in the presence of her husband, who was guilty, and not the plaintiff in error.” The effect of this assignment of error is really to-challenge the action of the court in refusing to direct an ae-. quittal of the defendant, who is now conceded to have been a married woman, on the ground of the common law presumption in certain cases that she was acting under the coercion and control of her husband. We think a fair jury question was. presented on this point also. It is true that she and her husband were living together in I he same house, where, as found by the jury, she kept the liquor, but there was also evidence to- show that, while he was a farmer, she was conducting a little roadside refreshment stand, and, according to the evidence offered for the state, was surreptitiously selling liquor which was kept in the house^ where she had entire access to it, and where, on the state’s evidence, she procured, it for the purpose of supplying the state witnesses. The trial judge properly instructed the jury on the presumption arising from the relation of husband and wife, reviewed the evidence tending to- show the personal responsibility of the defendant, and properly left to- them to say whether the ordinary presumption had been rebutted, and the jurv evidently found that it had.

Wc find no error properly brought before us calling for reversal, and the judgment is therefore affirmed.


text:
    THE STATE, DEFENDANT IN ERROR, v. ABDUL HAMID SULEIMAN, PLAINTIFF IN ERROR.
    Submitted June 5, 1924
    Decided October 7, 1924
    Filed October 24, 1924.
    Crimes — Carnal Abuse — Father Refreshing Memory by Use of Birth Certificate — Certificate Properly Admitted in Evidence —>No Error in Admission of Evidence Regarding Religious Propaganda of Defendant — Judgment Not Found Against Weight of Evidence.
    On error to the Essex Quarter Sessions.
    'Before Gummeke, Chief Justice, ancl Justices Parker and Katzenbach.
    For the plaintiff in error, Robert II. HaHgrove.

    For the defendant in error, John O. Bigelow.

   Per Curiam.

This is a rather unusual case. The indictment charged the defendant, a man claiming to lie seventy-eight years old, with camel abuse of a child then under the age of twelve years, on April 7th, 1923, at her home. The case as presented for the state indicated that the defendant, a Mohammedan, was exploiting a sort of religious cult, and had made a number of converts, including the father and step-mother of the child, and that in initiating the family into the cult, the defendant told the father and step-mother that the three children must be initiated separately from them, and that he, the defendant, was to spend nine nights in the same room with them. The claim on behalf of the state,- and which there was evidence to support, indicated that on the first night he spent in the room with the children he took the child in question out of her bed ancl over to his bed, and then and there had sexual intercourse with her. We prefer not to review the circumstances indicated by this somewhat repulsive evidence. The girl apparently did not cry out at the time, but told her step-mother the next morning, and the latter had a physician examine the child, who failed to find evidence of such a recent connection, and gave testimony tending to indicate that the girl was not a virgin at the time. The defense was, in substance, an alibi, that the defendant on that night was at a meeting in New York, and stayed there until after midnight, and there was a direct issue of fact put to the jury as to whether there liad been camel abuse by the defendant of this child on the night specified in the indictment.

The first point argued is that the father was allowed to refresh his memory by utilizing a birth certificate of his daughter in testifying to her age. The second, that the birth certificate was admitted in evidence, ft was clearly admissible in evidence under the express language of the statute. Comp. Stat., p. 2229. The argument seems to be that it was not the best evidence, but where the statute makes it competent evidence it cannot be kept out on any such ground, nor do we see any error in permitting the father to use this official certificate to refresh his memory. Jones Ev., § 880.

The third and fourth points are directed to the evidence admitted by the court with respect to the religious propaganda of the defendant and Ids relations with the family as leading up to the alleged crime. All this we think was entirely relevant to the case, and see no error in its admission.

Lastly, it is charged that the verdict was against the weight of evidence, and we are asked on our reading of the testimony to print, without any such opportunity as the jury had of seeing the complaining witness and the defendant and the other witnesses in the case, to hold that this verdict ought to be set aside because not warranted by the evidence before the jury. As to this, it is sufficient to say that we are not satisfied that the verdict was against the weight of the evidence under the test laid down in State v. Karpowitz, 1 N. J. Adv. R. 94, by the Court of Errors and Appeals.

The judgment will therefore be affirmed.


author: Minturn, J.

text:
    PAUL SEGLIE v. JOHN J. McGOVERN, COUNTY CLERK
    Decided October 27, 1924.
    Elections — Filing Withdrawals from Petition of Nominations— Election Laws’ Specific Provision Relating to Acts Which Fall on Sunday — Provision that Filing Shall Take Place on Day Following.
   The opinion of the court was delivered by

Minturn, J.

At the argument, on Saturday last, I assumed from the tenor of the discussion, that whatever action I might order would be entirety local in its effect, and I also assumed because, as I apprehended the situation, counsel made no reference to it, that there was no provision in the Election act specifiealty relating to Sunday, and that the common law rule relating to an intervening Sunday was the question. As will be observed, I so treated the question. In examining the election compilation, a-search of the index to the various provisions of the act failed to disclose the existence of such a provision, under the heading of "Sundays” or "holidays.” Upon that theory my conclusions were written. "It was only after my conclusions had been filed with the clerk of the' Supreme Court that my attention was called to the existence of paragraph 446 as a distinct provision of the act. That section provides that “should the day of the filing of any petition or other document, or the performance of any duty required by this act by any person, fall upon the Sabbath day, said filing or said performance of any duty shall he performed upon the following Monday.” I am frank to say that were I aware of this provision, I should have, at least, delayed filing my conclusions until I had heard counsel further in the matter. But the situation, obviously, was urgent, and a session of the Supreme Court was therefore called, where the legal status was fully discussed, and the various provisions of the Election law fully considered. It must suffice to say that as a result of that conference a large majority of the justices were of the opinion that the Sunday section of the act is applicable to this situation, and covers the present case, so that the declination of Dr. Shields, filed on Monday, October 6tli, was legally effective.

It follows, therefore, as a result of this consensus, that the name of Dr. Shields should not appear upon the ballots. The conference, however, in dealing with the situation in this county, further determined that inasmuch as under present conditions it is physically impossible to reprint the large number of ballots in Hudson county, and that, if such reprinting were directed, a large proportion of the voters might be disfranchised, no order for reprinting of the same should be made in this county.

The effect of this conclusion is that the rule to show cause, allowed by the Chief Justice, will be discharged. Counsel may draw a rule to that effect, and present it to me for signature.


text:
    LOUISE STROBERT v. WILLIAM A. PIMM. LOUISE STROBERT. ADMINISTRATRIX. v. WILLIAM A. PIMM.
    Decided October 20, 1924.
    Negligence — Automobile Accident — Pedestrians on Sidewalk injured by Vehicle Avoiding Collision With Another Vehicle in Street — Driver Did Not See Pedestrians — Both Drivers Guilty of Negligence- — Due Care Does Not Exist Where Driver, to Avoid Collision, Runs Upon Sidewalk Without Regard to People Lawfully There.
    On defendant’s rule to show cause.
    Before Guumere, Chief Justice, and Justices P.vrkei; and Katzenbacii.
    For the rule, Edwards <£• Smith.

    Contra,, John II. Sheridan.

   Per Curiam.

These two cases were tried together. They both grow out of a single accident, in which the plaintiff in the first case was injured axxd the decedent of the plaintiff in the second case lost her life. The accidexit occurred at the corner of John street axxd Summit avenue, in Jersey City, about half-past xxine o’clock in the evexxixxg of May 5tlx, 1923. The defendant was driving a Hupmobile coupe easterly oxx John street, axxd as he caxxxe to the intersection of that street with Summit avenue, according to his story, he suddenly saw another car, a Eord delivery truck, approaching on Summit avexxxxe, and traveling north. When he observed this delivery truck it was so close to him that a collisioxx seemed imminent, and to avoid that happening the defendant swung his car to the left axxd raxx up oxito the sidewalk, axxd struck down and injured Louise Strobert axxd killed her mother, who was in her company. The two Stroberts had crossed the street axxd were on the sidewalk at the time they were run dowxx by the defendants car.

The jury found a verdict in favor of the plaintiff ixx each case, axxd we are asked to set the verdict aside, first, because there was no evidence speaking negligence oxx the part of the defexxdant, and, secoxxd, because the weight of the evidence did not support a conclusion of xxegligence oix his part. Our exaxnixxatioxx of the testimony leads us to the conclusion that the defendant, as well as the driver of the Eord delivery car, was negligent. Normally, the latter had the right of way. The speed at which he was traveling was ixx dispute; bxxt the jury was justified ixx finding that, if the defexxdant had used due care ixx approaching the crossing, even if it be time that the Eord delivery car was traveling at axx excessive rate of speed, he could readily have avoided a collision without ruxxnixxg up oxxto the sidewalk ixx endeavoring to do so. His story that he did not see the Eord car xxntil it was jxxst about to collide with him, although it must have beexx ixx plaixx sight as he approached the intersection of the two streets, and that he did not see either Miss Strobert or her mother until he had actually run them down, fully justifies the coxxclusion that he was guilty of reckless driving, as the jury evidently found. The idea that the driver of an automobile, who, for the purpose of avoiding a collision with another vehicle, runs blindly up onto the sidewalk, without regard to the danger that threatens people lawfully there, is in the exercise of dire care, is a proposition which has not yet met with the approval of the courts, so far as we know, and, in our judgment, is not. likely to do so in the future.

The rules to show cause will be discharged.


text:
    IN THE MATTER OF THE APPLICATION OF THE CITY OF ATLANTIC CITY FOR A WRIT OF CERTIORARI TO REVIEW AN ORDER OF THE BOARD OF PUBLIC UTILITY COMMISSIONERS, IN THE MATTER OF THE APPLICATION OF ATLANTIC SEWERAGE COMPANY FOR FURTHER INCREASE IN RATES, ETC.
    Argued October, 1924
    Decided October 23, 1924.
    Public Utilities — Reviews of Orders of Commission — Statutory Provision that Notice of Review Upon Certiorari Must Be Applied for and Copy Served Within 30 Days, Binding.
    Before Justices Kalis cel, Black: and Campbell.
    For the applicant, L. Edward Herrmann.

      Contra, John J. Treacy and Thomas Brown.

   Per Curiam.

The Atlantic City Sewerage Company made an application on May 14th, 1924, to the board of utility commissioners for an increase in rates to take effect June 3d, 1924.

Oil August 19th, 1924, the board made the following determinations and order:

First. That the value of the petitioner’s, property as of December 31st, 1923, was $l,!'08,0o0, and that the cost of the thirty-six-inch main, installed in 192-1, amounting to $136,956, should be added thereto, making the base for rates $1,845,006.

Second. That the return on the above amount should be approximately $138,000.

Third. That the petitioner shall install an adequate sewerage system comprising necessary services between curb lines, mains, pumping station and force main, to replace the present sewer system in the Venice Park section of Atlantic City by not later than August 1st, 1927.

Fourth. The board is satisfied that the increase in rates submitted are just and reasonable and hereby approves the same.

The board's order, stated May 21st, 1924, suspending the increases, changes and alterations in rates submitted by the company is hereby vacated.

The order is dated August 19th, 1924.

Section 38 of the act entitled "An act concerning public utilities,” &c. (Pamph. L. 1911, ch. 195, inter alia), provides: "Any order hereafter made by the board may loe reviewed upon certiorari by the Supreme Court. No certiorari to review any such order shall be allowed unless application therefor be made within thirty days from the date upon which-such order becomes effective, nor unless notice in writing of such application shall have been given to said board, with a copy of the affidavits or proofs upon which such application is based; notice of such application shall be served upon the secretary of said board, either personally or by leaving the same at the office of said board in the city of Trenton.”

It is clear from the facts before us that more than thirty days have elapsed from the date on which the order became effective before notice was given and application made for the writ, and that the requirement of the statute in respect to the character of and the manner of giving notice of the application was not complied with.

For the reasons given the application for the writ is denied.