text:
    WILLIAM T. DUMPHY, HELEN DAVIS DUMPHY, MOLLY DUMPHY, HELEN C. DUMPHY, BY HER NEXT FRIEND, WILLIAM T. DUMPHY, PLAINTIFFS, v. GERALDINE THOMPSON, DEFENDANT.
    Decided October 21, 1925.
    Negligence* — Motor Vehicle Collision — Defendant Driving Car at Unlawful Speed on Wrong Side of Road — Plaintiffs' Car Under Complete Control — Verdict Not Excessive Nor Against Weight of Evidence — Medical Testimony Not Improperly Excluded! — Photographs Not Improperly Excluded — Charge Not Improper — Criticism on Part of Charge Hypercritical.
    On defendant’s rule to show cause.
    Before Gummere, Chirp Justice, and Justices Kalis cii and Campbell.
    For the rule, Edward A. Marlclay and Charles W. Broadhurst.

    Contra, Theodore D. Parson.

   Per Curiam.

On August 1st, 1923, William T. Dumphy was driving an automobile along Bellevue avenue, in the borough of Rumson. With him in the car were his wife, Helen Davis Dumphy; his daughter (aged two years), Helen C. Dumphy; Molly Dumphy, his sister, and a young woman named McKinny. When Dumphy’s car was about at the intersection of Bellevue avenue and Ridge road, the defendant, who was operating an automobile westerly along Ridge road, at a great rate of speed, crashed into the Dumphy automobile, which resulted in injuries to the occupants of the-car, and actions were brought against the .defendant by William T.-Dumphy, and by his wife, daughter and sister, to recover damages for the injuries they sustained.

The eases were tried in the Monmonth Circuit, and resulted in a verdict in favor of Helen Davis Dumphy in the sum of $10,000, and in favor of Molly Dumphy in the sum of $500, and in favor of the defendant as against William T. Dumphy and the infant, Helen C. Dumphy.

The first point made and argued on behalf of the defendant is that there was ño proof that the defendant was negligent in the operation of her ear. This contention is barren of any merit. The accident happened at about five o’clock on a clear afternoon. Dnmphy’s car, at the time it was run into by the defendant’s automobile, was being driven four or five miles an hour. It is also clear from the testimony that the defendant was operating her car at about thirty miles an hour, and though she says that as she approached the intersection of the roads while her view was obscured to some extent by a hedge, she nevertheless continued to run her car at a speed of about fifteen miles an hour and contented herself in continuing her car at that rate of speed, honking her horn without attempting to ascertain whether it was safe or not to continue even at the reduced rate of speed. On the other hand there was testimony that at the time of the collision she was operating her car at a terrific rate of speed, and in violation of the regulations of the Traffic act, in that she approached the intersection of the roads at a speed greater than four miles an hour; that she operated her automobile in violation of the right of way of the Dumphy ear under the Traffic act, and was upon the wrong side of the public highway.

Next, it is argued that according to the clear weight of the evidence Dumphy’s wife, Helen, was exercising control of the automobile which her husband was operating, and, therefore, chargeable with contributory negligence. This claim receives no support from the evidence, and is wholly without any substance. In view of the fact that Mrs. Dumphy iold her husband to slow down and be careful, and that he immediately obeyed her instructions, tends rather to show that at the time of the accident Dumphy was exercising great care in operating his car, since he reduced its rate of speed to about four or five miles an hour.

The next point argued in the brief of defendant’s counsel is that the verdict in favor of Helen Davis Dumphy, the wife of the operator of the car, is excessive and against the clear weight of the evidence. We think the testimony is plenary, .that the defendant was negligent'. We are also satisfied from a careful consideration of the testimony regarding the injuries sustained by Mrs. Dumphy that they will have a permanent ill-effect upon her health and comfort in the future, and, therefore, we cannot say that the amount of damages awarded her is excessive.

Under point four, counsel for defendant argues that the court erroneously excluded a question put to Dr. Slocum, which question was as follows: “But in your experience have you seen exopthalmic goitre where protrusion of the eye balls was not present.” The question was properly excluded. It was wholly immaterial whether the doctor had in his experience observed that symptom mentioned in the question. This inquiry could shed no light upon the subject whether or not a protrusion of the eye balls is a necessary symptom of the disease.

It is further argued that the trial court was in error in excluding a photograph of the place of the accident taken by a photographer for the defendant. It was purely a matter of discretion to be exercised by the court whether or not the photograph was to be received in evidence. Its exclusion was not harmful.

Next, it is argued that the verdicts should be set aside, in that the court in its charge instructed the jury, “you must take into account all the circumstances of the case, the place where it happened and the evidence as to how it happened.” We think, in view of the pleadings in the cause, and the testimony which was adduced in support thereof, the instruction given was legally accurate.

The claim of counsel of the defendant that the instruction permitted the jury to find the defendant liable for the plaintiffs’ damages if they found that the defendant was negligent in any respect under all the circumstances of the ease is without substance. It must lie presumed that the instruction related to the evidence and proven circumstances under the pleadings in the case, and there is nothing in the charge which indicates to the contrary. The cases referred to by the counsel in support of his contention are oases where there was a variance between the testimony adduced and the pleadings in the cause.

We do not find any substance in the contention of counsel in regard to what the trial judge said in reference to the failure of the defendant to regard the rule of the road as to right of way, for he made it clear to the jury that that circumstance standing alone would not constitute negligent conduct on part of the defendant, but that it was one of the facts which should be taken into consideration by the jury in determining the question whether under all the circumstances the defendant was exercising due care at the time of the accident. This was legally accurate.

We find no prejudicial error in the charge of the trial judge as to contributory negligence. The court expressly instructed the jury that the palintiffs would he only entitled to recover if they did not in any way contribute to the accident. Earlier in the charge he instructed the jury that the negligence of the driver could not he imputed to the passengers.

Counsel of defendant contends that he was harmed hv an instruction of the trial judge, where he said : “You will carefully consider all of this expert testimony and give it such weight as you think it is justly entitled to receive, taking into account, of course, the learning and skill shown by the witness upon the stand and all the other circumstances of the case. You are not, of .course, bound by the opinion of experts, any more than you are hound to by any other factor which may be testified to in the case. In other words, this evidence is.a part of all the evidence, and you are to give all of the evidence full and fair consideration.”

The criticism on this part of the charge of the court is hypercritical. The instruction was a fair comment on the testimony in the case. Counsel of defendant further insists that the trial judge invaded the province of the jury in his comments upon the medical testimony. This appears not to be so. A careful examination of what the court said on the subject satisfies us that the comments made were proper and were warranted by the testimony. Lastly, it is argued, on behalf of the defendant, that the verdicts were inconsistent and contrary to law because the jury specially found the defendant was not negligent by bringing in a verdict in favor of the defendant against the plaintiff Helen G. Dumphy, who was a passenger, and, nevertheless, found a verdict in favor of the plaintiffs Helen Davis Dumphy and Molly Dumphy, who were also passengers in the automobile.

There does not seem to be any merit in this contention. The fact, as it appears, is that Helen C. Dumphy was an infant two years of age, and was unharmed in the accident. It might very well be that she was entitled to a nominal verdict of six cents, and this might have furnished a good ground for an application in her behalf to have the verdict set aside as against her. We cannot perceive on what legal principle the defendant can avail herself of the failure of the jury to find a verdict in favor of the infant, and for that reason be entitled to have the verdict in favor of the plaintiffs set aside.

Rule is discharged, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MARTINO LODESERTO, PLAINTIFF IN ERROR.
    Decided October 20, 1925.
    Crimes — Carnal Abuse of Woman-Child Under Sixteen — Defendant Presents Twenty Assignments of Error — Court’s Refusal to Admit Evidence Tending to Show Character of Prosecutrix Sustained — Question of Age of Prosecutrix Sustained— Other Assignments Equally Unsubstantiated.
    On writ of error to the Passaic County Court o£ Special Sessions.
    Before Gumtuere, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiff in error, Isadora V. Klenart.

    For the defendant in error, Jacol) Willard Da Toa.

   Per Curiam.

The plaintiff in error was convicted on an indictment containing three counts, based upon the one hundred and fifteenth section of the Crimes act (2 Comp. 8tat.} p. 1783), the first count charging that on the loth day of September, 1925, with force and arms, at the city of Paterson, county of Passaic, in and npon 13. Q., who was then a woman-child under the age of sixteen years, to wit, of the age of fifteen years, he did- make an assault on the said 33. Q. then and there did unlawfully and carnally abuse, he, the said Martino Lodeserto, being then and there over the age of sixteen years, to wit, of the age of twenty-eight years, contrary, &c. The second count charges the carnal abuse with the consent of E. Q., and the third count reiterates the charges of carnal abuse without her consent.

There are twenty assignments of errors. The first, second, third and fourth assignments of error challenge the legal propriety of the trial judge in refusing to allow counsel of plaintiff in error to ask the prosecutrix the following questions.:

“Have you over been out with other boys — I don’t mean anything wrong — but have you been out with other boys ?
“Did you ever keep company with any other boy ?
“Have you ever had any sexual intercourse with any other bojrs ?
“Have you ever been away from your parents’ home up in tne country for any length of time ?”

The contention on behalf of the plaintiff in error is that the questions were asked to test the credibility of the prosecutrix.

The questions were properly excluded.

They were irrelevant to the issue being tried. Foley v. State, 59 N. J. L. (at p. 1) ; affirmed, 59 Id. 585. They were not admissible on the theory of discrediting the witness. State v. Hendrick & Stanton., 70 Id. 41.

.The fifth assignment of error is based upon the refusal of the court to permit counsel of plaintiff in error, on cross-examination of the mother of the prosecutrix, to ask her this question: “I am asking you if you think juur daughter is mistaken ?” It is argued that the question was asked for the purpose of testing the credibility of the witness. The daughter had testified on her direct examination that she was fifteen years of age at the time the alleged criminal intercourse took place. The question was palpably incompetent. It was not a subject for opinion evidence. The inference to be drawn from the statement or conduct of a witness is solely within the province of a jury, or a court where the latter sits without a j^y.

The sixth assignment of error attacks the legal propriety of the judicial action of the court in refusing when the' state rested its case to direct a verdict of acquittal. The action for a direction was properly refused. There was testimony from which a jury would be warranted in finding that the'statutory offense was committed by the defendant. The argument on behalf of the plaintiff in error is, that there was no proof that the prosecutrix was under sixteen years oí age at the time oí her illicit intercourse with the defendant. But this assertion finds no support from the testimony. The mother of the prosecutrix testified as to the elate of her daughter’s birth, and it is made to clearly appear that she was under the age of sixteen years when the defendant had sexual intercourse with her.

The seventh and eighth assignments of error are based upon the refusal of the court to allow counsel of plaintiff in error to elicit from Charles Acorn, a witness on behalf of the defendant, with reference to certain card records giving the age of different pupils, including the prosecutrix. An examination of the records discloses that no exception was taken to the Tilling of the court, and, hence, the subject-matter of the assignment is not properly reviowable.

The ninth, tenth and eleventh assignments of error relate to the exclusion hv the court of a question put to defendant, on his direct examination by his counsel, and which question was: “Do you remember seeing Ernestine Quinteri sometimes going into some room?” The purport of the question was, as stated by the defendant's counsel, to show that she had been in the habit of going with other men. As already pointed out, the chastity of the prosecutrix was not an issue in the case, and, hence, any testimony directed to that end was not properly admissible. The remaining nine assignments of errors are equally unsubstantial and are frivolous.

Judgment is affirmed.


author: Pee Curiam.

text:
    STEVENS INSTITUTE OF TECHNOLOGY, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENTS AND THE CITY OF HOBOKEN, DEFENDANTS.
    Submitted May 29, 1925
    Decided October 22, 1925.
    Taxes and Assessments — Vacant Lots Used as Athletic Fields by College — The Assessment Sustained.
    On certiorari.

    Before Justices Trenohaed, Katzenbach and Lloyd.
    For the.prosecutor, John Milton (Albert G. Wall, of counsel).
    For the defendants, Horace L. Allen (John J. Fallon, of counsel).
   Pee Curiam.

The prosecutor seeks in this proceeding to he relieved of taxes assessed for the years 1922 and 1923 by the assessing authorities of the city of Hoboken, confirmed on appeal by the state board of taxes and assessments. The assessments are on two vacant lots used as athletic^ fields. In an opinion by Judg'e Jess, then a member of the board,' the facts are reviewed, and the opinion of Mr. Justice Parker, filed in 1909 (Stevens Institute v. Bowes, 78 N. J. L. 205), denying relief on a similar application in which the conditions then existing were not greatly .dissimilar from the present, held to be still controlling. We agree with this view, and for the reasons expressed the assessment is affirmed.


text:
    ALVIN F. WILLIAMS ET AL., RELATORS, v. GEORGE M. GAGE, BUILDING INSPECTOR OF THE CITY OF RAHWAY, NEW JERSEY, RESPONDENT.
    Submitted June 9, 1925
    Decided October 5, 1925.
    Zoning — Gasoline Station in Residential District — Case Controlled by Ignaciunas v. Risley — Appeal Need Not Be Taken to Building Committee — Relators Complied With Chapter 146, Laws of 1924 — Probable Lowering of Property Values Not a Defense if Property is Used in Manner Not Detrimental to Public Health, Safety or General Welfare — Fire Hazard Increase Not a Defense.
    On rule to show cause why mandamus should not issue.
    Before Justices Trenchard, Katzenbacii and Lloyd.
    Eor. the relators, Stamler, Stamler & Koestler.

    Eor the respondent, Ilyer & Armstrong.

   Pee Curiam.

This case is before this court upon a rule which directs the building inspector of the city of Rahway to show cause why a writ of mandamus should not issue commanding him to issue a permit for the erection of a gasoline station at the corner of St. George and Linden avenués, in the city of Rahway, upon an unrestricted tract of land owned by two of the relators, Harold Depew and John J. Stamler, and under contract of sale to the third relator, Alvin E. Williams. The plans for the station submitted to the building inspector are conceded to be such as would command his approval. The refusal is based upon the ground that the tract of land is within a residential district as defined by a zoning ordinance enacted by the city of Rahway. There is nothing before us which shows that the building contemplated to be erected is against public health, safety or public welfare. This case is controlled by the case of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 2 N. J. Adv. R. 852.

The same question is presented in a somewhat different aspect in the case of Sarg v. Hooper, 3 N. J. Mis. R. 364, where the prosecutor of a writ 'of certiorari was convicted of violating the zoning ordinance of .the borough of Haworth .by the erection and use of a gasoline station upon his property. The conviction was set-aside on the-ground that the ordinance under which' the conviction was had was' unconstitutional.

The city of Rahway contends that, under the building code, an appeal should have been taken to' the building committee. An examination of this provision of the ordinance shows that an appeal from a decision of the building inspector is only for the purpose of passing upon the building inspector’s refusal to grant a permit where the mode' or manner of the construction or materials to be used has been questioned. In the present case there is no contention that the method of construction and materials to be used are improper. The relators had complied with chapter 146 of the laws of 1924, and presented an application for a permit to the board of zoning adjustments, which had been denied. The respondent contends that the certiorari of the action of this board is the proper remedy. This would be inefficacious. It is not the proper remedy. Union County Development Co. v. Kaltenbach, 3 N. J. Mis. R. 341.

The respondent further contends that the refusal to grant the permit was justified because a gasoline station in the locality would tend to lower real estate values. There is in the record opinion evidence to this effect. This is no defense. There is probably some property owner in every locality who entertains a belief that the erection of any new building in the vicinity óf his property will tend to lower the value of his property. The owner of property is not required to conform to the ideas, aesthetic or otherwise, of other property owners as to the use he may make of his property, provided he uses it in a manner which is not detrimental to the public health, safety or general welfare. If property owners wore obliged to conform to the opinions of others as to the use their property should be put, few communities would ever emerge from their primitiveness.

The last ground urged by the respondent to sustain its refusal to issue a building permit is that the fire hazard would be increased by the erection of the gasoline station at the point proposed and the safety of the public thereby endangered. This argument was considered and held to be unsubstantial in the case of Ingersoll v. South Orange, 3 N. J. Mis. R. 335; affirmed by the Court of Errors and Appeals, 3 N. J. Adv. R. 1407.

A writ of peremptory mandamus will be awarded. If an appeal is desired an application for an order to mould the pleadings will he entertained.


text:
    IRENE L. BOESCH, PETITIONER, v. SAMUEL PRESS, RESPONDENT.
    Argued May 5, 1925
    Decided October 22, 1925.
    Members of Bar — Unprofessional Conduct — Motion to Refer Back to Bar Examiners Their Report Finding Respondent Not Guilty of Any of the Matters Charged, Denied.
    Eor the motion, Harvey T. SaMerihwcwte.

    Before Justices Trenpharo, Katzenbach and Lloyd.
   Per Curiam.

At the May term of the Supreme Court a motion was' made on behalf of Irene L. Boesch to “refer hack to the state board of bar examiners the report of the said board in the above entitled cause.” The motion was argued orally, but no record or other papers were presented to the court. An inspection of the files in the Supreme Court clerk’s office shows that an order was made by a branch of this court on June 3d, 1934, for a hearing and investigation by the said board of a complaint made by Irene L. Boesch against Samuel Press, an attorney-at-law, of unprofessional conduct; that the board of examiners filed its report on February 11th, 1935, wherein it reported, among other things, that “we are unable to find that it has been established at all that the respondent was guilty of unprofessional conduct in any of the matters charged, and so report;” that on March 4th, 1935, exceptions to the report were filed on behalf of Irene L. Boesch. ■ The exceptions thus filed have not been argued, nor has any motion'respecting the same been made for a confirmation of the report.

From the foregoing statement it appears that the only matter before, the court for its consideration is the motion to refer the report now on file back to the board of bar examiners. We have therefore at the present time nothing to consider or determine with respect to the findings of the report itself.

A careful consideration of the reasons urged in the oral argument fails to satisfy us that the motion to refer the report back to the board should be granted, and it is therefore accordingly denied.


author: Per Cüriam.

text:
    STATE OF NEW JERSEY, EX REL. GABOR ROTH, RELATOR, v. CITY OF EAST ORANGE AND JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, RESPONDENTS.
    Decided October 22, 1925.
    Zoning — Apartments and Stores in Residential District — Case Follows Ignaciunas v. Nutley,
    On application for mandamus.

    Before Justices Teexchard, Katzexbach and Lloyd.
    Eor the relator, Thomas Brunelto.

    Eor the respondents, Walter G. Ellis.

   Per Cüriam.

The relator seeks on this rule to show cause a writ of mandamus to compel the building inspector of the city of East Orange to issue to him a permit to erect a two-story brick building to be occupied by seven families for dwelling purposes and to contain in addition six commercial stores and janitor’s quarters. The application was made to the building inspector on the .19th of January, 1925, and was refused. Appeal was taken by the applicant to the board of zoning adjustment which bad been created by the city under the authority of the laws of 1924, chapter 146. Upon a hearing the application was again denied by the board. The sole ground upon which it is sought to justify a refusal is that to grant the application would be to run counter to a zoning ordinance of the city which limited buildings to be erected within a zoning district covering the relator’s application for residence purposes to one-family dwellings, and which prohibited the erection of stores such as was contemplated in the relator’s application.

In our view the case falls squarely within the decision of the Court of Errors and Appeals in the case of Ignaciunas v. Nutley, 2 N. J. Adv. R. 852, and the line of cases following in its wake both in that court and in the -Supreme Court. It would serve'no useful purpose to discuss the numerous reasons urged in support of the refusal of the municipal officers to grant the prosecutor’s application. ' None of them indicate that the construction contemplated will endanger the public health, public safety, or the general welfare.

The facts not being in dispute a peremptory writ will be awarded with leave to mould the pleadings for the purpose of appeal if desired.


author: I’EJK ClTKLUl.

text:
    MONTEFIORE CEMETERY COMPANY, INCORPORATED, A CORPORATION, PROSECUTOR, v. THE BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, NEW JERSEY, AND THE CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANTS.
    Submitted May 29, 1925
    Decided October 22, 1925.
    Municipalities — Permit to Maintain Cemetery — Permit Afterward Revoked on Ground of Invalidity Because of Lack of Written ■Application, Failure to File Maps, Failure to Grant by Ordinance 'Rather Than Resolution, Because Contrary to Zoning Ordinance and to Ordinances Prohibiting Burials Within City Limits, and Because Corporation Organized Under General Act Was Incompetent to Receive Permit' — None of These Reasons Can Avail Defendants — If Original Grant Was Wrongful, It Could Be Determined in a Direct Attack in Competent Tribunal.
    On certiorari.

    Before Justices Tren chard, Katzenbach and Lloyd.
    Eor the prosecutor, Samuel M. Hollander (Robert M. McCarter, of counsel).

      Eor the defendants, Jerome T. Oongleton and Joseph G. Wolber.

   I’EJK ClTKLUl.

The certiorari in this ease was issued to review the legality of a resolution of the Newark board of commissioners rescinding a cemetery permit previously granted to one Adas Israel, from whom by assignment the prosecutor claims title and the right to operate a cemetery. The permit itself was granted on April 11th, 1922, and the rescinding resolution was passed on April 18th, 1923, the prosecutor in the meantime having made purchases of land and incurred expenses in availing itself of the benefits of the permit.

It is contended by the defendants that the original resolution granting the permit was invalid, for the reasons that no written application for the permit had been presented or filed; that no map was filed with the city clerk; that the original permit should have been by ordinance; that the, permit violated a zoning ordinance in Newark; that it was contrary to an ordinance prohibiting burials and cemeteries within city limits, and, finally, that the cemetery company, being organized under the General Incorporation act, was incompetent to receive the permit.

It seems to us clear that none of: these reasons avail the defendants. They all pertain to conditions anterior to the passage of the original resolution, none of which indicate fraud in procuring the permit. The prosecutor, if the permit was valid, acquired vested rights thereunder which could not be taken from it. Hudson Telephone Co. v. Jersey City, 49 N. J. L. 303; Phillipsburg Electric Co. v. Phillipsburg, 66 Id. 505 ; and, even if invalid, it was not for the. municipality to pass in judgment upon its own act. This is clearly established by our eases, such as Phillipsburg Electric Co. v. Phillipsburg, supra; Decker v. Elizabeth, 51 Id. 603, and Vanaman v. Adams, 74 Id. 125. If the grant was, in the first place, wrongful, this could be reviewed and determined in a direct attack upon that proceedings only before some competent tribunal; it'was not open to the commissioners in this summary fashion, with or without notice, to recall their earlier action.

The validity of the original'resolution is not before us on this writ; and we have therefore not given it consideration.

The repealing resolution; for the reasons stated, will be set aside.


text:
    JOHN J. STEVENSON, RELATOR, v. ATLANTIC CITY REAL ESTATE BOARD, RESPONDENT.
    Submitted June 9, 1925
    Decided October 10, 1925.
    Corporations — Real Estate Board Membership — Expulsion—Realtor Having Submitted His Grievance to a Committee Not Constituted as Provided For in By-laws Cannot Afterward Question Such Committee’s Findings — Expulsion Based Upon Grounds Not Before Such Committee, and Not in Accordance With Any Other Provision Therefor, Not Justified — Membership in Real Estate Board Being a Valuable Right, an Alternative Writ to Determine Propriety of Expulsion is Allowed.
    On application for a writ of mandamus.

    Refore Justices Trenchakd; Katzenbach and Lloyd.
    For the relator, Bolts, Sooy & Gill.

    For the respondent, Thompson & Eanstsin.

   Pee Curiam.

John J. Stevenson, a member of the Atlantic City real estate board, applies for a writ of mandamus to reinstate him as a member of said board. The Atlantic City real estate board is incorporated under the laws of New Jersey. It has adopted by-laws. Section 2, article 4, of what is known as the old by-laws, provides that the president shall appoint, when necessary, a committee on arbitration which shall consist of five members whose duties shall be to hear any differences arising between members of the board referred to them for arbitration. The by-law further provides that the committee’s findings shall be binding upon such members, and that any member who shall refuse to comply with such finding shall be liable to suspension or expulsion as the board of trustees, by a majority vote, shall direct. The new by-laws of the real estate board contain substantially the same provision in article 10, section 3. The multiple system of listing properties for sale was adopted by the real estate board. This system provides that where a contract is signed by an owner of real estate which fixes the prices and terms at which the owner is willing to sell his property, the contract may be filed with the secretary of the board, and if the sale is made by any other realtor than the one obtaining the contract, such realtor is to receive sixty per cent, of the commission fixed by the agreement, and the member listing the property thirty-five per cent. Five per cent, goes to the hoard.

Stevenson claimed that he had obtained a contract with one J. ,7. Shenkman for the sale of a property owned by him on Vermont avenue, in the city of Atlantic Oity. Stevenson further claimed that lie listed this property with the board. The sale of this property was effected by Russell C. Roney, a member of the real estate board, who received and retained the entire commission. Stevenson then addressed a letter to Mr. Faunce, the president of the board, and asked that the matter be investigated. So committee of arbitration was appointed in accordance with the by-laws,but; Mr. Faunce appointed throe members to hear the parties and determine the dispute. The decision was that Mr. Stevenson had no-claim against Roney for any part of the commission. Stevenson claimed to have a written agreement with the owner, Shenkman, by which h.e was to receive a certain percentage of the commission even though the sale of the property was actually accomplished by another. Stevenson thereupon proceeded to press his claim against Shenkman. When the trustees of the real estate board learned of this they expelled Stevenson without any charges being preferred against him or without a hearing. Stevenson then endeavored to have the order of expulsion revoked. This was refused. Stevenson now seeks by mandamus to be reinstated as a member of the real estate board.

The first contention made on behalf of Stevenson is that the hearing was not conducted in accordance with the by-law referred to. It is true that the hearing was not conducted according to the by-law, in that the board of arbitration was not composed of'five members as the by-law provided. Stevenson, however, had knowledge of this when he submitted to the hearing. Having submitted to the hearing before the three members appointed without complaint we feel that he is not now entitled to question the action of the committee conducting the hearing. He waived, it seems to us, the provision of the by-law requiring, a committee of five.

The next contention advanced in behalf of Stevenson seems to us to have more merit. His expulsion was based upon the theory that he failed to abide by the findings of the committee. The powers of the' committee could not be extended further than to determine a controversy between Stevenson and Roney. Shenkman was not a member of the real estate board, and Stevenson’s relations to Shenkman were not within the scope of the hearing. The expulsion was based upon the theory that Stevenson had not abided by the findings. The action which 'he took or proposed to take against Shenkman was upon a separate agreement, as he claimed, with ■Shenkman. It had nothing to- do with the listing of the property. This matter was not inquired into by the committee before which the hearing was held.

It also appears that the real estate 'board expelled Stevenson for other reasons than the alleged violation of the-findings of the committee. Stevenson was accorded no hearing upon these-other reasons. These reasons might have been the ones which moved the trustees to expel Stevenson. As we think it is-questionable as to whether Stevenson violated the findings of the committee, and 'as his expulsion appears to have been based upon other unmentioned grounds, and as the right to be a-member of a real estate board seems to be a-valuable right as it entitles a member to use' the word “realtor,” we have reached the conclusion that Stevenson is entitled to the issue of an alternative writ of mandamus to settle the question as to- the propriety of his expulsion.

An alternative writ of mandamus is allowed.


author: Pee Cueiam.

text:
    THE PENNSYLVANIA RAILROAD COMPANY AND THE UNITED NEW JERSEY RAILROAD AND CANAL COMPANY, PROSECUTORS, v. THE CITY OF RAHWAY, DEFENDANT.
    Argued May 5, 1925
    Decided October 22, 1925.
    Taxes and Assessments — Assessments of Benefits — Sidewalk — Prosecutors Had Notice and Protested — Protest Not Being Heeded, It Was Incumbent Upon Them to Act Promptly — They Alleged That Existing Sidewalk Was Adequate; They Should Have Immediately Tested the Validity of Ordinance — This They Did Not Do.
    On application for writ of certiorari.

    Before Justices Tbenchabd, Katzenjjaoh and Lloyd.
    Eor the prosecutors, Theodore Strong.

    Eor the defendant, David Armstrong.

   Pee Cueiam.

In this application the prosecutors seek to review an assessment by the city of Rahway of $78.98 for benefits accruing to them upon the laying of a concrete sidewalk on Irving street, in the city of Rahway. It is claimed that the assessment is invalid because it takes away the private property of the prosecutors without compensation, and because the prosecutors had no notice of the confirmation of the assessment. The improvement was undertaken upon the passage of an ordinance authorizing it to be done, and notice was given to the prosecutors to replace their existing sidewalks with concrete .sidewalks. ' Compliance with this notice was not observed, and the city proceeded to construct the new sidewalks. Upon this the assessment was made, and later, on the 4th of February, 1924, confirmed. On June 23d, 192.3, the prosecutors served a notice of protest against the notice to repair. No steps were taken other than this until August of 1924, when application was made to Mr. Justice Kalisch fot a writ of certiorari, and was by him refused.

The present application coming in at the May term of the present year, obviously, the prosecutors are in laches. The authorities on this point are clear. They are to the effect that one situated as were, the prosecutors cannot sit idly by and observe such improvements without thereafter being es-topped, from complaining. Cunningham v. Merchantville, 61 N. J. L. 466; Glass Works v. Glassboro, 79 Id. 352. The prosecutors had notice of the improvement and its purpose. To this they made protest to the municipal authorities. The protest not being heeded, it was incumbent on them to move promptly to test the validity of the improvement. In the affidavits upon which 'the writ is- applied for it is said ‘that “the board of commissioners * * * have * * *. torn up and destroyed a safe, sufficient and legal part concrete and part blue stone flag sidewalk, * * * and have replaced said sidewalk with a cement concrete sidewalk,” assessing the prosecutors- for the benefits therefrom. If it was the purpose of the prosecutors to contest the validity of the new sidewalk on the ground that there was a safe, sufficient and legal sidewalk already there, they were obliged to act with promptness.

The application for a writ of certiorari is denied.


text:
    MABEL F. KUNHARDT, AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF HENRY R. KUNHARDT, DECEASED, PROSECUTOR, v. NEWTON A. K. BUGBEE, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, DEFENDANT.
    Submitted June 9, 1925
    Decided October 5, 1925.
    Taxes and Assessments — Inheritance Tax — Transfer in Contemplation of Death — Under Statute Transfer Within Two Years Presumed To Be in Contemplation of Death — Burden Upon Prosecutor to Prove Contrary — Contemplation of Death Established — Court, in Arriving at Decision, Should be Governed by New Jersey Statute, Not by Decisions of the State in Which Transfer Occurred — Such Transfer Not To Be Taxed Separately From Transfer Made by Will.
    On writ of certiorari.

    Before Justices Trenchaed, Katzenbach and Lloyd.
    Por the prosecutor, Corra A7. Williams (Robert L. 'Eedfield, of counsel).
    Por the defendant, Edward, L. Katzenbach.

   Per Curiam.

The writ of certiorari in this ease brings up for review a determination made by the comptroller of the treasury of the State of Yew Jersey in the matter of the inheritance tax npon the estate of Henry R. Kunhardt. Mr. Kunhardt died on October 25th, 1923. He was domiciled in the State of Yew York at the time of his death. His will was admitted to probate in Yew York county. On October 16tli, 1923, nine clays before his death, he executed a deed of trust to theu Guaranty Trust Company of Yew York, transferring to them fonr hundred shares of the capital stock of the Carpenter Steel Company, a Yew Jersey corporation. The deed of trust created a life estate in favor of his wife. Upon her death the shares of stock were to be equally divided into three parts and further life estates in favor of each of his three sons were created with power of appointment as to principal by their wills. The shares of stock in the Carpenter Steel Company constituted the bulk of Mr. Kunhardt’s estate. The comptroller appraised the value of the New Jersey property at $437,799.02. The trust value of the entire estate was» $469,836.72. Deductions of $19,163.06 were allowed, which made the net. estate $450,673.66, of which $437,799.02 constituted the -value of the capital stock of the Carpenter Steel Company. The tax was $4,796.06. This was paid under protest.

In the present proceeding the prosecutor seeks to have it held that the deed of trust mentioned was not made in con-' templation of death. It has been stated that the deed of trust was made nine days before Mr. Kunhardt died. The act taxing the transfer of estates was amended by chapter 174 of the laws of 1922. By this amendment every transfer made within two years prior to the death of the grantor, of a material part of his estate, or in the nature of a final disposition or distribution thereof, and without an adequate valuable consideration, shall, in- the absence of proof to the contrary, be deemed to have been made in contemplation of death within the meaning of this provision of the statute. The prosecutor contends that the burden is upon the state to show that the deed of transfer was made in contemplation of death. This is not so. It is presumed to have been made in contemplation of death when made within two years of the period of death. The burden is upon the prosecutor to show that the transfer was not made in contemplation of death.

The facts set forth in the record show that Mr. Kunhardt was in his sixty-third year when he died. He had retired from business about the year 1918. He had spent considerable time in traveling and was planning to continue his travels. Two or three years prior to his death his physician, Dr. Hutton, said that Mr. Kunhardt was suffering from arterio sclerosis. It is said that Mr. Kunhardt was not informed of his condition. Mr. Kunhardt had, however, had what might be termed warning of approaching dissolution. He had suffered from thrombosis of a small vein in one of his eyes, which had affected his eyesight. He had had indigestion. Following a walk up a hill he had had pain in his throat. The cause of his death was angina pectoris. He had two attacks. One occurred on October 5th, 1923. It was eleven days after this attack the deed of trust was executed. The second took place on October 22d, 1923. The latter was the fatal attack. The evidence is quite persuasive that Mr. Kunhardt knew that he was an ill man, and that his condition prompted him to make the provision which he did under the deed of trust. The affidavit of Dr. Ilutton, his physician, is illuminating. Dr. Hutton says: “Of course, what is in the mind of a man is more or less a matter of conjecture, but from the fact that the disease appeared to be making slow progress, that he was not informed of the serious nature of his ailment; that its observable symptoms were not alarming to him, so far as I could observe, and that he never made any statements to me nor asked any questions indicating that he knew the serious nature of his disorder, or that he was in the least apprehensive regarding himself, it is quite clear to my mind that at the time of the transaction in question Mr. Kunhardt did not have his own death in contemplation.” What is in the mind of a man is, it is true, more or less of a conjecture. Mr. Kunhardt had received, it seems to us, so many evidences of the bad state of his health that he probably was like many others in such a condition. He asked no questions because he knew what he would be told. He failed to ask questions which would indicate his knowledge of his illness, because he was dSsirous, in all probability, of not worrying his family by imparting to them information which would disclose to them his knowledge of his condition.” What he did, however, is quite convincing that he knew his condition. After his first attack of angina pectoris, as has been stated, he executed the deed of trust. Nine days after its execution he succumbed to a second attack of the same malady. It is difficult, it seems to us, from these facts, to accept any other view than that the deed of trust was executed in contemplation of his death. The evidence, not only fails to rebut the presumption, but establishes the fact that the deed was executed in contemplation of his death.

The prosecutor next insists that this court should be guided in arriving at its decision by the decisions of the New York courts, as the deed of trust was executed in New York. We think the construction placed upon our statute by the New Jersey courts should control us in our decision of this case.

It is next urged that the deed was not made in contemplation of his death. We have considered this question, and, as stated, have reached the conclusion that the deed was made in contemplation of death.

The fourth ground advanced to set aside the tax is that there is no evidence that Mr. Kunhardt had any idea of evading any tax law of New Jersey. It may be that he did not know of the Inheritance Tax law of New Jersey, and, consequently, could have no idea of evading the law. This is immaterial, as the question is not whether Mr. Kunhardt had any intention or not of evading the law.

The next point is that if the transfer of the deed was made in contemplation of death it was separate and distinct from the transfer of the property made by his will, and, hence, should be separately assessed and taxed. We see no merit in this point. The contention is unsound, as there can be only one exemption and one rate of tax applied on the transfer of property made in contemplation of death and by last will and testament. The action of the comptroller in adding them together was proper. If the contention of the prosecutor Were unsound, then a very large part of the transfer inheritance tax on an estate tax could be avoided by creating a number of separate deeds of trusts, each of which would be entitled to the statutory exemption. ° Upon a review of the case we are satisfied that the tax assessed should be affirmed. The same is, accordingly, affirmed.


author: Pur Curiam.

text:
    HUDSON TAXI COMPANY, A CORPORATION OF NEW JERSEY, PROSECUTOR, v. ADAM NIEDZWCKI, AN INFANT BY ALEXANDER WASILEWSKI, HIS NEXT FRIEND AND STANLEY WASILEWSKI, DEFENDANTS.
    Argued May 5, 1925
    Decided October 5, 1925.
    Negligence’ — Order to Show Cause Why Writ of Certiorari to Review Decision of Judge in Refusing to Allow New Trial Should Not be Granted — Question of Lack of Evidence Should be Raised on Appeal — Question of Contributory Negligence Likewise — Alleged Abuse of Discretion of Judge in Declining to Set Aside Verdict Cannot be Considered on Certiorari as Questions of Fact Will Not be Reviewed Where There is Evidence in Record to Support Findings — Fact That Attorney For Plaintiff Was An Office Associate of a Judge of the Court of Common Pleas, Though the Case Was Not Before Such Judge, Does Not Constitute a Case For Consideration on Certiorari.
    On rule to show cause why a new trial should riot he granted.
    Before Justices Trrnci-tard, Katzentíacti and Lloyd.
    Pot the prosecutor, Hopkins & Herr.

    For the defendants, Frank M. Hardenbroo'k (William, George, of counsel).
   Pur Curiam.

This case is before us upon an order to show cause why a writ of cerliorari should not be granted to review the decision of the judge presiding at the trial of the case in the Hudson County Court of Common Pleas in refusing to grant to the defendants a new trial. The application is an unusual one. The reasons for the allowance of the writ given by the applicant will be considered in their order.

The first reason is that there is no evidence in the case of any negligence at all on the part of the defendant. This is a question which, should be raised on appeal. When there is. no evidence of negligence a defendant can, by motions to nonsuit and for the direction of a verdict, if the motions, or either of them, are denied, be protected by exceptions to the rulings so as to bring the question before an appellate court for review. If counsel fails to make the motions or to take exceptions thereto, if made and denied, tins laffords no ground for the allowance of a writ of certiorari to review the questions as to whether there was sufficient evidence presented by the plaintiff to make out a case of negligence.

The second reason advanced is that the uncontradicted evidence showed that the plaintiff was guilty of contributory negligence. This is likewise a question which can be determined upon appeal. The same procedure as above outlined regarding the question of negligence should be taken for the protection of the defendant upon the question of contributory negligence. That it has not been taken is not a sufficient ground for the allowance of a writ of certiorari.

The third reason advanced for the allowance of the writ is that the great preponderance of the evidence shows that the defendant was' guilty of no negligence and the plaintiff was guilty of contributory negligence, and that the plaintiff had not sustained the burden of proof. The trial judge allowed a rule to show cause to the defendant. He declined to set aside the verdict on the ground now urged. This was a question peculiarly for the decision of the trial judge. It is claimed he abused his discretion. If a writ of certiorari was allowed this question could not be considered as questions of fact will not be reviewed on certiorari when there is in the record evidence to support the findings. Westcott v. Sharp, 50 N. J. L. 392.

The fourth ground is that the attorney for the plaintiff was an office associate of a judge of the Hudson County Court, of Common Pleas, and that the trial of this case before the Hudson County Court of Common Pleas, although before a judge of a Court of Common Pleas of another county, may have prejudiced) the court and jury against the defendant. This is a roundabout imputation of impropriety. It is a mere suspicion. There is no evidence to support it. If it were proven to be so certiorari would not be the proper remedy for the consideration of the question.

The fifth reason is that the attorney appearing for the plaintiff was acting for a judge of the Hudson County Court of Common Pleas, and that the filing fees of the papers filed in the present suit were paid out of the deposit of such judge with the county clerk’s office, and that said judge was the real attorney in this suit practicing law in violation of the statute. The depositions taken under the rule include the testimony of the judge and lawyer referred to. They deny that there was any relationship or arrangement between them with reference to the present case, and explain that for many years prior to the judge’s appointment the filing fees of the attorney had been paid, by arrangement betweeen them, out of the judge’s deposit, and this had continued after Ms appointment. They further testified that the judge had no interest in the present litigation. There is nothing which would tend to show that in the present case the trial judge was in any way influenced in his conduct at the trial by the arrangement mentioned as to filing fees between the judge of the Hudson County Court of Common Pleas and the plaintiff’s attorney.

Certiorari is also not the proper procedure to bring into question the impropriety alleged, assuming it existed.

The application for a writ of certiorari is denied.


text:
    ENGLEWOOD THEATRICAL ENTERPRISE, INCORPORATED, RELATOR, v. ROBERT S. TIPPING ET AL., DEFENDANTS.
    Argued October 7, 1925
    Decided October 21, 1925.
    Mandamus — Erection of Theatre — Alternative Writ to Compel Permit to Maintain Theatre Allowed1 — Motion to Quash Return and to Allow Peremptory Writ — Defendants’ Return Examined and Held, Under Long Line of Cases, That Return Cannot be.Quashed — Writ Never Granted in Doubtful Cases— Motion to Quash Denied.
    On motion to quash return to alternative writ of mandamus.

    Before Justices Parker, Minturn and Black.
    Eor the defendants, F. Hamilton Reeve and William M. Seufert.

    Eor the relator, David Bobber and Jacob L. Newman.

   Per Curiam.

This case comes before^the court on a motion to quash the return filed to the alternative writ of mandamus heretofore granted. The motion is based upon the ground that the return does not constitute a legal defense. Then, if this be granted, a further application is made to the court for a peremptory writ of mandamus. Notice of trial has been served and filed fox the September term of the Bergen County Circuit Court. We, therefore, proceed to examine the defendants’ return to the alternative writ to ascertain whether or not it does set up a defense.

The relator, the Englewood Theatrical Enterprise, Incorporated, applied to the common council of Englewood for a theatre license at Nos. 16-22 West Palisade avenue, Englewood, New Jersey. The side, it is alleged, is on the main thoroughfare of the city at or near the base of a steep and dangerous hill. The return states, as to the truth of these statements made in the first, fifth and sixth paragraphs of the writ is unknown to the defendants. They refer to the incorporation of the relator. Contracts made for the purchase of the property known as 16 to 22 Palisade avenue, Englewood. Plans prepared by William E. Likman, an architect, covering the erection of a modern brick building at 16-22 Palisade avenue, to contain store, offices and a modern theatre with a seating capacity of two thousand.

Second. The return admits the statements contained in the second, third, fourth, eighth and ninth paragraphs of the writ are true. These refer to an ordinance of the city of Englwood, No. 38, approved June 18th, 1923. The organization and members of the common council of the city of Englewood. The second application for a license dated January 19th, 1925, and a letter dated February 18th, 1925, stating that the license had been refused.

Third. Statements contained in paragraph seven are inaccurate in particulars pointed out. This refers to the application for the theatre license.

Fourth. Paragraphs ten, eleven, twelve and thirteen in the writ are denied. These deny the discretionary power of the common council to grant a theatre license, that no objections were interposed with relation to the proposed type and character of the structure to be built. That the Englewood Theatrical Enterprise, Incorporated, will suffer irreparable loss, and that the common council of Englewood is acting arbitrarily and unreasonably in withholding the theatre license.

Then the return proceeds to state that it is true that no permit or license has been granted or issued to the Englewood Theatrical Enterprise, Incorporated, for the following reasons:

First. That neither of the applications of the Englewood Theatrical Enterprise, Incorporated, dated December 27th, 1924, and January 19th, 1925, comply with the requirements of the ordinance of the city of- Englewood, No. 38.

Second. That the city of Englewood has a right and authority under the law and by ordinance to exercise discretion in the granting of a theatre license.

Third. The form and terms of the ordinance itself indicate and provide for the presentation of facts, upon which the common council shall pass judgment before granting a theatre license.

Fourth. Refers to the law under which the city of Englewood was incorporated, giving it power to regulate and license sports, theatrical exhibitions, &c.

Fifth. The word “shall” in the ordinance No. 38 is not used in á mandatory sense.

Sixth. That in the exercise of the judgment of the common council of the city of Englewood after an examination of the facts determined, that the proposed theatre site at 16-22 Palisade avenue, Englewood, was not a proper place for a theatre in,view of the physical facts surrounding the location.

Seventh. The application of the Englewood Theatrical Enterprise, Incorporated, for a theatre license is premature, as there is no theatre, on the premises, nor is there any such building in the course of construction, and, as a matter of fact, such theatre may never be constructed.

The relator filed an answer to the return of the defendants joining issue on paragraph No. 1, subdivision No. 3 and paragraph No. 4. Then answers the reasons enumerated by the defendants as a basis for a refusal of the permit or license in eleven paragraphs. Then a reply answer by the defendants, in which they join issue on number eight and nine and deny number ten and eleven of the relator’s answer.

The rule to show cause why a peremptory or alternative writ of mandamus shall not issue was allowed on March 20th, 1925, with leave to take affidavits. Testimony was taken under .the rule. One hundred and seventy printed pages returned with the motion. The alternative writ was allowed May 5th, 1925, upon the testimony so taken. The return to the writ was filed May 15th, 1925. The answer to the return, May 25th, and the reply, June 9th, 1925.

Manifestly, under a long line of cases in our reports, we cannot quash the return to the alterantive writ of mandamus and order a peremptory writ. In Iszkay v. Dill, 92 N. J. L. 329, it is said the writ of mandamus is never granted in a doubtful case. Citing many other cases to the same effect.

The motion to quash the return to the alternative writ is denied, with costs.


author: E. R. Walkee, G.

text:
    Dennis C. Hall et al., complainants, v. John B. Hall et al., defendants.
    [Decided November 6th, 1925.]
    On bill, &c. Decree on bill for instructions.
    Partnership — Decree on Bill For Instructions to Determine Whether Partnership Property is Real or Personal — Surviving Parties’ Power to Grant Bargain and Sell by His Individual Deed as Surviving Partner the Real Estate.
   This cause coming on to be heard ex parte in the presence of Gaston and Cranmer, solicitors of the complainants (a decree pro confesso having been entered against all the defendants), and the court having examined the pleadings and proofs, and considered the arguments of counsel thereon.

And it appearing therefrom that the bill of complaint in this cause was filed by Dennis C. Hall (also known as Dennis S. Hall) and Maud L. Hall (widow of James D. Hall, deceased), and Dennis C. Hall as administrator of the goods and chattels, &c., of James D. Hall, deceased, and that said James D. Hall and Dennis C. Hall were, at the time of and for many years prior to the death of said James D. Hall, partners in business as contracting carpenters and builders in Somerville; that pending the said partnership the said partners purchased from Cornelius A. Whitenack et al., with partnership funds, a house and lot on the comer of Bridge and Franklin streets, in Somerville, by deed dated April 16th, 1917, recorded in Somerset clerk’s office, in book L, No. 15, page 439, as a permanent investment to provide a place of residence for said partners and also to provide a place where all the shop work of said firm was to be carried on, the deed for which was taken in the individual names of said partners and without reference to the partnership. That pending the said partnership the said partners purchased from Jacob B. Cornell and Theodore E. Cornell, with partnership funds, a vacant lot on the north side of Belle avenue, in'Somerville, by deed dated December 1st, 1915, recorded in Somerset clerk’s office in book Y, No. 14, page 225, the deed being taken in the individual names of said partners without reference to the partnership.

That on this lot said partners erected a dwelling-house wholly with partnership funds and their own personal labor. That said last-mentioned lot was purchased and the said house was built thereon for speculative purposes to sell again whenever a satisfactory purchaser could be secured therefor.

That pending the said partnership the said parties purchased from Harriet E. Parry et al., with partnership funds at a cost of about $100 each eight vacant lots, each having a frontage of twenty-five feet located near the house and lot last above mentioned, and which were purchased for the purpose of controlling the immediate neighborhood of said house and lot and protecting it from undesirable neighbors, and for the purpose of selling again at a profit whenever satisfactory purchasers could be secured therefor.

And it appearing therefrom that, on April 7th, 1925, said complainants, Dennis C. Hall as surviving partner, and said Maud L. Hall, widow of said James D. Hall, deceased, entered into a written contract with one Jeannette D. Sperling to sell and convey to her the house and lot referred to in paragraph 3 of the bill, and being the premises conveyed to said James D. Hall and Dennis G. Hall by Jacob B. Cornell and Theodore E. Cornell by deed above referred to.

And it appearing therefrom that all the debts of the partnership have been paid with the exception of one of them, for which there are ample funds in bank to liquidate the same.

And it appearing therefrom that said bill was filed for the purpose of obtaining instructions as to the duties of said complainants in reference to the disposition of said several parcels of real estate, and whether the same or any part thereof, and, if any, which part in the winding up of the affairs of said partnership and in the settlement of the estate of said James D. Hall is to be considered as real or personal property.

And whether the complainant Dennis C. Hall can, by his individual deed of conveyance as surviving partner of the firm of Hall Brothers, convey a good, marketable and indefeasible title to Jeannette D. Sperling to the real estate so contracted to be sold to her without joining therein with the heirs-at-law of said James D. Hall, deceased, in so far as the matters referred to in said bill are concerned.

And the court being satisfied that the house and lot situate on the corner of Bridge and Franklin streets, in Somerville, and purchased by the members of said firm from Cornelius A. Whitenack et al. by deed above mentioned, was purchased as and for a permanent investment and as a place of residence and part of the plant of said firm;

And the court being further satisfied that the other parcels of real estate referred to the bill, to wit, lot situate on the north side of Belle avenue, in Somerville, conveyed to James D. Hall and Dennis C. Hall by Jacob B. Cornell and Theodore F. Cornell, by deed dated December 1st, 1915, recorded in Somerset clerk’s office in book V, No. 14, page 225, and also the eight lots designated in the bill as lots 293, 294, 295, 296, 297, 298, 299 and 300 on a map entitled “North-wood section No. 1 of the Cornell estates,” conveyed to said James D. Hall and Dennis C. Hall, by deed of Harriet E. Parry et al., dated June 18th, 1917, recorded in Somerset clerk’s office in book Y, No. 19, page 411, were purchased, and the dwelling-house was erected on the Belle avenue lot for speculative purposes' only, and to sell again at a profit as soon as satisfactory purchasers could be obtained therefor.

It is, on this 5th day of November, 1925, ordered, adjudged and decreed that the equity in the house and lot first referred to, situated on the corner of Bridge and Franklin streets, in Somerville, in the winding up of the affairs of the partnership and in the settlement of the estate of said James B. Hall be considered and treated as so much real estate; and it is further ordered, adjudged and decreed that the equity in the other parcels described in the bill of complaint in the winding up of the affairs of the partnership and in the settlement of the estate of said James D. Hall, deceased, are to he considered as personal property.

It is further ordered, adjudged and decreed that Dermis O. Hall, the surviving partner, in order to wind up the affairs of said partnership, is empowered to grant, bargain, sell and-convey by his individual deed as such surviving partner the real estate herein referred to as purchased by said partners for speculative purposes only, including the share of the deceased partner, James D. Hall therein, and give a good, marketable and indefeasible title thereto.

And it is further ordered that this decree may be recorded in the clerk’s office of the county of Somerset and State of New Jersey.

E. R. Walkee, G.

Respectfully advised.

Bayabe Stockton, A. M.


text:
    MARGARET POLGAR AND MICHAEL POLGAR v. VICTOR J. KANTOR AND PHILIP SIMON.
    Argued May term, 1925
    Decided October 29, 1925.
    .Negligence — Landlord and Tenant — Leaky Roof — Plaintiff, Tenant, Slipped on Wet Floor, Causing a Fall Down Stairs— Knowledge of Defective Roof Would Not Justify Court In Charging Assumption of Risk or Contributory Negligence— No Error Found in Court’s Charge — Judgment Excessive and Reduced.
    On rule to show cause.
    Before Justices Parker, Minturn and Black.
    Eor the rule, Frank G. Turner.

      Contra, Ward £ McGinnis.

   Per Curiam.

The suit was tried in the Passaic Circuit, before the court and a jur}r, and a verdict rendered for Margaret Polgar for $6,750 and for Michael Polgar for $1,000.

The defendant obtained this rule to show cause. The action was by husband and wife, as tenants, to recover damages for injuries to plaintiff’s wife, by reason of alleged negligence in the defendant landlord in omitting to repair the roof of the house in which plaintiffs were tenants.

There was evidence that the roof was in such a. defective condition as to allow rain to enter into plaintiffs’ apartment, as well as the hall; that defendants were notified by the tenants and janitor several months before, the accident; that defendant. promised plaintiff that if they would not move from the premises the roof would be repaired; that upon entering the hall the plaintiff slipped on a wet floor and fell down a flight of stairs. The mere fact that the plaintiff knew the roof was defective, and that water leaked through during stormy weather, would not, ipso facto, justify the court, as a matter of law, in finding that the plaintiff assumed the risk or was chargeable with contributory negligence'in using the premises under the conditions.

The next point is that the verdicts are excessive. There, was evidence that the plaintiff was healthy before the accident ; that the inj uries affected- her breast, bladder and hip, and produced a fractured rib, from all of which she developed traumatic neurasthenia.

It is insisted as error that the jurors were asked if any of them were stock or bondholders of ari insurance company. I'pon that ground the defendant asked for a mistrial, which was denied. The motion was made on the ground that the question tended to bias the jury. It is contended in the brief that the question was objectionable, in that it was an omnibus one (Boyd v. Husted, 127 Atl. Rep. 667), but this objection was not raised on the trial, and is therefore not available here. It is charged as error that Dr. Hoffman was permitted to answer question, “Has her [plaintiff’s] mind been affected or not?’’ A. “Her mind has been affected. But she is not insane.” The objection is that the doctor was not qualified. We think he was qualified, and that the question was not improper or irrelevant upon the question of damages.

It is also contended that the court erred in charging that the husband would be entitled to recover the amount of wages his wife would have received. The wife worked in a factory, and in the complaint claimed damages for loss of wages. This, perhaps, was erroneous, but since it was the wife and not the defendant who was injured, it was, at least, harmless to the defendant. 63 Atl. Rep. {Fa.) 470.

We have, however, concluded, after a review of the testimony, that while the verdict in favor of the husband for $1,000 may stand, the verdict for the wife is excessive, and should be reduced to $5,000. If this reduction be acceptable the rule will be discharged, otherwise it will be made absolute.


text:
    LEIGHLANCE NASS ET AL. v. PUBLIC SERVICE RAILWAY COMPANY.
    Argued May term, 1925
    Decided October 28, 1925.
    Negligence — Trolley Car Collision With Motor Vehicle — Evidence Showed Trolley Car Going at Great Speed and Motor Vehicle Driver Using Precaution — Clearly a Jury Question was Presented.
    On rule to show cause.
    Before Justices Parker, Minturn and Black.
    Por the rule, Leonard J. Tynan.

    Contra, Ward & McGinnis.

   Per Curiam.

This action was tried in the Passaic Circuit, before the court and a jury, and judgment was rendered for Ernest N. Nass for $750, and for his wife $250. The action grew out of a collision between plaintiff’s Pord automobile and defendant’s one-man trolley car, at the intersection of Grant and Marshall streets, in Paterson, at about one o’clock a. m., January 14th, 1924.

The automobile was operated at the time of the collision by Ernest Nass, and there were also in the car his wife and two guests, a husband and wife. The husband guest was killed, and the owner and driver of the car, Ernest Nass, and his wife; are the plaintiffs in this action.

The reasons advanced for the rule are that no negligence was shown by defendant, and that contributory negligence was shown in plaintiff ■'Ernest Nass. There was evidence that plaintiff entered Grand street at a speed of eight miles an hour; that when twenty feet .from the nearest track - he looked to the left and saw the trolley car approaching about half a block (one hundred and twenty-five feet) away; that he could not tell at what speed it was approaching; that he looked to the right and saw nothing; that he was then five feet from the track and saw and heard the trolley ear, twenty feet away, approaching at a rapid speed; that realizing that he could not safely cross or stop, he turned to the right and was hit by the trolley car in the left front wheel.

A policeman, as well as several passengers in the trolley car, testified that the trolley ear did not stop for several blocks; that it was going at great speed; that it did not slow np until after the collision, and that it proceeded one hundred and iweidy-five feet beyond the place of collision before coming to a stop.

The motorman testified that he did not see the automobile until after the collision; that after the collision the trolley car rolled one hundred feet before he realized that the air brake was broken;. that by putting the car in reverse and applying the hand brake he could have stopped the car in ten feet (at ordinary speed). We think the situation thus described presented a jury question.

The rule will be discharged.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. STEPHEN MONTAGNA, PLAINTIFF IN ERROR.
    Argued May term, 1925
    Decided October 28, 1925.
    Crimes — Robbery—Attack Upon Silk Dealers by Defendant and Others, and Robbed by Them — No Harmful Error in Charge— Verdict Amply Supported.
    On error to the Hudson Sessions.
    Before Justices Parker, Minturn and Black.

      .For the,plaintiff in error, Ziegener <& Lane.

    For the defendant in error, John Milton.

   Pee Cueiam.

- The defendant was convicted for robbery in the Hudson Quarter Sessions, and sentenced for ten to fifteen years’ imprisonment.- The two points presented are that the verdict is against the weight of evidence, and that there was error in the charge.

At the invitation of one Bernswerg, two silk dealers of Paterson came to Hudson county to purchase-silk. On the way to the place of purchase a stranger was taken into the automobile.- Upon their arrival at an isolated alley two men sprang from the bushes, one with a revolver, and the other with an iron bar, and-those two were joined by the stranger. They, took from the silk dealer some $600 and a diamond-ring. Bernswerg recognized one of the men as Montagna, the defendant. Bernswerg was indicted with Montagna, but a severance was granted and Montagna was tried alone.

Our examination of the record satisfies us that there was no harmful error in the charge of the court, and that the verdict is amply supported by the testimony.

The conviction will therefore be affirmed.


text:
    ARTHUR COLLIER REALTY COMPANY, PLAINTIFF-APPELLEE, v. HENRY GOTTLIEB, DEFENDANT-APPELLANT.
    Argued May term, 1925
    Decided October 29, 1925.
    Negligence — Collision Between Motor Cars — Plaintiff’s Car, was Struck by Defendant’s Car in Rain and Fog, Causing It to Skid — Defendant’s Contention That There was No Negligence, and That Plaintiff Was Guilty of Contributory Negligence, Jury Questions — Verdict Not Disturbed.
    On appeal from the Paterson District Court.
    Before Justices Parker, Mtnturn and Black.
    For the defendant-appellant, Frank G. Turner.

    For the plaintiff-appellee, 8 Lein & 8Lein.

   Per Curiam.

This action was tried in the District Court of Paterson, without a jury, and judgment was for the plaintiff for $250. The action grew out of a collision between two cars going in opposite directions on Park street, in Montclair.

The plaintiff’s driver testified that he was proceeding in the road, six feet from the curb, when, in arder to pass some hoys on bicycles, he swerved out so that he was about ten feet from the curb; that he continued going along straight ahead for about thirty feet, at a speed of from ten to twelve miles an hour to the point of collision; that it was rainy and foggy; that his vision carried twenty feet through his clouded wind-shield; that he saw defendant approaching the truck about ten feet ahead; that the front of defendant’s truck passed in (dose proximity; that defendant’s truck hit his ear in the left rear end, and thereby caused him to skid, turn around in a circle several times, go over the sidewalk, up a terrace and back down into a tree. He admitted that he did not see the cars collide, hut testified that he felt a jar and heard a knock just before skidding.

The driver of defendant’s ear testified, as plaintiff’s witness, that he ivas proceeding along the road with his windshield clouded with rain; that something black loomed before him; that he then turned out abruptly and struck.the plaintiff’s, car. He admitted that he did not see the cars collide, but testified that he heard a knock and saw the plaintiff’s car begin to- skid.

The defendant’s contentions are that no negligence was shown, and .that -the plaintiff was contributorily negligent, Hearing the knock- and feeling the jar, under the above circumstances, is direct and positive evidence of the fact that the defendant’s ear struck the plaintiff’s car. Its probative force was for the jury, and their verdict being supportable by the testimony, cannot be disturbed.

The judgment will therefore be affirmed.


author: Pee Ctteiam..

text:
    FRED W. KNIGHT, PLAINTIFF-APPELLEE, v. GEORGE W. BARNWELL, DEFENDANT-APPELLANT.
    Argued May term, 1925
    Decided October 28, 1925.
    Negotiable Instruments — Demand Note — No Evidence of Demand For Payment Prior to Bringing Action — Interest on Demand Note Runs From Date of Demand — No Default on Demand Note Until Refusal of Payment After Demand — Judgment For Interest, Reversed, and Costs Awarded Defendant.
    On appeal from the Camden District Court.
    Before Justices Parker, Minturn and Black.
    Eor the plaintiff-appellee, Thomas P. Curley.

    Eor the defendant-appellant, Walter Carson.

   Pee Ctteiam..

This case was tried in the District Court of Camden by the court, without a jury, and resulted in judgment for plaintiff for $500 and costs.

The action was upon a promissory demand note in the amount of $400 without any mention of interest, made by defendant to plaintiff, under date of May 23d, 3 921. No evidence of demand for payment of note prior to bringing of action was introduced. At close of plaintiff’s case the defendant admitted liability for the principal of the notej with interest from time the suit was brought, together with costs, contending that demand was necessary to start the running of interest. The court held that interest was to be computed from- the date of the note regardless of demand for payment. “Where an instrument provides for interest, it runs from the date; where no interest is reserved, interest runs from the date of maturity at the legal rate, and interest on a demand note runs from the date of demand. Interest after maturity or from demand is by way of damages. Jacobs v. Murray, 113 Atl. Rep. 803. There is no default on a demand note until refusal of payment after demand of payment. Adams v. Adams, 55 N. J. Eq. 42.

The defendant, however, properly contends that there was an error in the1 computation of interest as allowed from the date of note. We think the judgment should be reversed in that respect, and entered for the amount of the note, with interest for the sum of $6.44, being the amount due from the date of suit. We think, also, the defendant is entitled to the cost of this appeal, since he was obliged to resort to this court to correct a perfectly obvious error, which might have been corrected by consent of the parties.

The material facts not being in dispute, judgment will be reversed, but a correct judgment may be entered in this court for the plaintiff for the amount thus adjusted. Pamph. Ij. 1910, p. 236.

Eor that purpose the judgment will be reversed.


author: Per Ctjrtam.

text:
    PELLEGRINO VITALANO v. MIKE ROFFO.
    Argued October 7, 1925
    Decided November 2, 1925.
    Capias ad Respondendum — Capias Will be Set Aside Where Affidavit was Entitled in the Cause When No Cause was Pendingi — Also, When Order of Supreme Court Commissioner Fails to Adjudicate Sufficient Cause For Holding Defendant to Bail — It Must be Adjudged in Cases of This Character, Among Other Things, That Defendant is a Non-resident or Intends to Depart the State to Avoid Answering Judgment— Affidavit Nowhere States Full Name of Defendant.
    On motion to open default judgment and to release defendant from arrest under a capias ad respondendum.

    Before Justices Parker, Minturn and Black.
    Por the plaintiff, Emil J. Hoos.

    Por the defendant, Harry Silverstew.

   Per Ctjrtam.

At the argument it was practically conceded 'that the default judgment might be opened and a trial had on the merits, saving to the plaintiff all lien and other- advantage arising out of his judgment, execution and levy. Such will be the order. Purther proceedings under the execution Jo abide the event of the trial.

The defendant is in jail by virtue of a capias ad respondendum, having failed to give bail, and asserts that the capias should be set aside and this suit proceed as though commenced by summons. We think he is entitled to this and for two reasons — first, that the affidavit on which the capias is based was entitled in the cause, when no cause was pending. This may be said to have a technical sound, 'but the law seems well settled in England and New York, and the cases in both jurisdictions were cited and followed in Potter v. Cook, 30 N. J. L. J. 206, which, on the facts, is exactly in point. That decision, it is true, was by a Circuit Court judge, but while cited more than once in the reports, and distinguished, it has never been overruled. See Kein v. Katz, 92 N. J. L. 406; Ferenga v. Moskowitz, 1 N. J. Mis. R. 170. And the rule is supported by excellent authority, we are content to follow it and note in the case at bar that the affidavit nowhere states the full name of defendant except in the case heading. It speaks continually of “the defendant,” once of “the defendant Roffo” and once of “Mr. Eolio.” Hence, defendant cannot be identified without the title, and, as a corollary, that title cannot be rejected as surplusage.

The other reasons is that the order of the Supreme Court commissioner fails to adjudicate sufficient cause for holding defendant to bail. It adjudges that he enticed away and seduced the plaintiff's wife, but that alone is not sufficient; it must also be adjudged that (in a case of this character) the defendant is a non-resident, or intends to depart the state to avoid answering the judgment. Hufty v. Wilson, 78 N. J. L. 241, 243. The order says nothing -on this point, and must be set aside, as was done in the case just cited. Rule may be entered accordingly.


text:
    NATHAN ROSENBERG, TRADING AS ROYAL TIRE EXCHANGE, PLAINTIFF-APPELLEE, v. MARYLAND CASUALTY COMPANY, DEFENDANT-APPELLANT.
    Argued May term, 1925
    Decided October 29, 1925.
    Insurance — Motor Vehicle Liability — Insurance Company Refuses to Defend Suit Against Plaintiff on Ground That Policy Issued in Name of Corporation and Not of That of Personal Owner — Held, That It May be Shown by Parol Who the Trade Name Intended to Indicate — Held, That Due Notice of Accident was Given — No Error In Refusing to Nonsuit— Defendant's Refusal to Defend Suit Against Plaintiff Made It Necessary That Plaintiff Protect Himself.
    On appeal from the Second District Court of Newark.
    Before Justices Parker, Minturn and Black.
    Eor the plaintiff-appellee, Kalis ch & Kalisch.

    Eor the defendant-appellant, Frank G. Turner.

   Per Curiam.

This action was tried in the Second District Court of Newark, without a jury, and judgment was rendered for the plaintiff for $3C0. The action was brought on an insurance policy issued to “Royal Tire Exchange Corporation.” By the terms of the policy the defendant insurance company contracted to defend, at its own expense, suits brought against the assured, for accidents arising from the operation of its described, automobile. Cne Joseph Ivobich brought an action against Nathan Rosenberg (the plaintiff herein) to recover damages for personal injuries alleged, to have been caused by Rosenberg’s car while -occupied by him, and driven by his son, the action resulted in a nonsuit. The defendant company refused, after notice, to defend that action, thus making it necessary for the plaintiff herein to incur expenses in its defense, to recover for which this present action is brought against the insurance company.

The first point is that the trial judge had no power to reform the policy. The contract or policy stated that it was entered into with “the assured named and described as such in the general agreements hereto attached, and forming part hereof.” In the said agreements attached to the policy the name of the assured was given as “Royal Tire Exchange Corporation.” The back of the policy (front cover as folded) bore the notation “Issued to Royal Tire Exchange.” The court merely construed the policy as insuring the “Royal Tire Exchange,” which was the trade-name under which the plaintiff was doing business. It is a settled rule of evidence that it may bo shown aliunde, by parol evidence, that a fictitious or trade-name in the contract was meant to indicate a certain person. Such proof only identifies one of the parties to the contract, and makes no change in any term, condition or obligation of the contract, and is comprehended by that rule of evidence which allows the fact of a latent ambiguity to he explained by parol testimony. Sargent v. Adams, 3 Gr. (Mass.) 72; Axford v. Meeks, 59 N. J. L. 502.

The practical interpretation of the policy by the defendant’s agents, therefore, in the correspondence and dealings between the parties coincided with the construction thus adopted by the court.

The second contention is that immediate notice of the accident was not given, and point three is that the court erred in finding a waiver of timely notice of the accident. This contention is based upon the following provision in the policy: “No change; whatever in this policy, and no waiver of its provisions, shall he valid unless an endorsement is added hereto, signed by the president, a vice president, secretary or assistant secretary of the company, expressing such change or waiver.”

Such provision has been held not to apply to conditions to be performed after the loss has occurred, such as service of notice of the loss. Bohles v. Insurance Co., 83 N. J. L. 246.

If an insurance company, after receiving an insufficient notice of loss, examine the claim and refuse to pay it exclusively on other reasons, this is a waiver to objections to 'the notice. Schenck v. Mercer Insurance Co., 24 N. J. L. 447 ; Francis v. Insurance Co., 25 Id. 78.

The claim manager denied, liability on the ground of col-fusion or fraud, suspicion of which was, in a large part, engendered by the fact that the attorney representing the injured suitor - (Joseph Kobich) and the attorney representing th'e assured (Nathan Rosenberg) had offices in the same suite of rooms;

It is settled that one who, as á claim manager, is entrusted by the insurer with authority to adjust the loss, presumes authority also to waive notice of proofs of loss. Snyder v. Dwelling House Co., 59 N. J. L. 544.

The next contention is that the court erred in refusing a nonsuit. This contention is based on a provision of the policy, viz1.: “The company is not responsible for any settlements made- or expenses incurred by assured, unless * * * [such are] * * * first specifically authorized in writing by the company * *

This provision can only apply where both parties were proceeding under and in accordance with the terms of the policy. The defendant’s refusal to defend the action against the plaintiff was in direct violation of the terms of the policy, and, of necessity, compelled the plaintiff to protect his interest.

The next point is that the court erred in not granting a nonsuit, because there was no proof that the car involved in the accident was the car insured, nor was there any proof to establish the ownership of the car.

The plaintiff’s evidence was that he bought the car and that it was by him insured; that it was in his possession at the time of the accident, and that he owned but one car. This was positive proof of ownership.

In Norris v. Insurance Co., 1 N. J. Mis. R. 315, it was held that possession alone of the car is prima facie evidence of ownership-. Upon all the contention presented the judgment will be- affirmed.


author: Pee Ctjbiam.

text:
    DAVID PUGSLEY ET AL., TRADING, ETC., PROSECUTORS, v. THE BOARD OF EDUCATION OF MINE HILL TOWNSHIP ET AL., RESPONDENTS.
    Argued September 21, 1925
    Decided November 2, 1925.
    Public Works — Award of Contracts — Lowest Bidder — Prosecutor Alleges He was Lowest Bidder — Respondent Awarded Contract to Another — Difference Arose Over the Fact That Successful Bidder Had Stipulated Additional Sums If Other Materials Were Used — Found That Such Other Materials Were Not to be Used — Contract Properly Awarded.
    On certiorari, &e.
    Before Justices Truncha lux, Katzenbaolt and Lloyd.
    For the prosecutors, Belli II. Ely.

    For the respondents, King & Vogl.

   Pee Ctjbiam.

The board of education of Mine Hill township called for bids for the work and materials for the construction of an addition to the Mine Hill School House, according to plans' and specifications, comprehending, among others, the following specifications:

“All outside walls of addition and present building to be stuccoed, two coats of Kellastone stucco according to manufacturers5 specifications, with fine stone dash finish, colors selected by architect. Walls of present building to he roughened with pointed chisel sufficient to hold stucco, and stucco guaranteed by mason to stay on wall. Mason to put undercoat of cement stucco on same under Kellastone. Same to consist of one part cement and two and one-half sand, with no lime, to be well scratched.55

The prosecutors, who were unsuccessful bidders, and who appear in that capacity only, challenge the award of the contract to Gallo Brothers, who they allege are not the lowest bidders.

We think there is no merit in this contention.

The bid of Gallo Brothers, after referring to the aforementioned specifications, says: “Having examined the plans and read the specifications for the proposed addition on the Mine Hill school buildings, according to the plans and specifications prepared by Roland S. True, architect of Dover,New Jersey, for the general construction work such as mason, carpenter and painting.

“We hereby agree to do all the work and furnish all necessary matérial for the sum of $36,488.”

This bid is as broad as the specifications and included everything required by the latter.

The contract was, accordingly,' awarded to Gallo Brothers for $36,488, and the-contract has been formally entered into in writing.

The next lowest bid was that of the prosecutors for $37,460.

This controversy arises from the fact that at the foot of their bid Gallo Brothers added this:

“If Kellastone stipled finish is wanted in place of cement stucco add the suiu of $550.
“If stone dash is wanted, add $450 more to the above.”

But this irregularity did not affect the légality of the award. '

We deal, first, with the statement: “If Kellastone. stipled finish is wanted in place of cement stucco add the sum of $550.”

The specifications call for stucco finish, and this alternate speaks of a stipled finish, which, if the board should desire, would be $550 more. The stucco finish is in the specifications and is included in their bid of $36,488. Stipled finish is entirely different, as the testimony discloses.

Since the offer to use'a stipled finish was not accepted by the board the further discussion of this branch of the case is useless.

We now consider the words “if stone dash is wanted add $450 more to the above.” When the award came to be made this language was regarded by the board and the successful bidder as no part of the hid, because stone dash is included in the specifications and was required to be done by the bid of $36,488, and was required to be done by the contract awarded. It is important, too, to observe that, even if the contract price had consisted of these two items of $36,488 and $450, the hid would still have been $522 lower than the prosecutors’, who were the next lowest bidders.

Upon the whole we perceive no sufficient reason for disturbing the award and contract in question, and they will be affirmed, with costs.

Having reached the conclusion that the award was to the lowest bidder, it is unnecessary for us to consider the contention of the respondents that the law does not require the board of education to award the contract to the lowest bidder.