author: Thompson, J.

text:
    Union County Common Pleas Court.
    ELMER R. DANIELS AND NAOMI DANIELS, BY ELMER R. DANIELS, HER NEXT FRIEND, PLAINTIFFS, v. RAHWAY HOSPITAL AND JOHN T. KANANE, ADMINISTRATOR OF THE ESTATE OF HERBERT REILLY, DECEASED.
   Thompson, J.

This is a motion to strike from the answer of the defendants the sixth defense therein set forth, namely, that the defendant Eahway Hospital, being a charitable corporation, there can be no recovery against it for the negligence of its servant, and by reason thereof none against the servant. The question is whether or not a charitable hospital is liable in damages for injuries received by a person on a public highway through the negligent operation of the hospital’s ambulance by its employe driver.

The precise point has never been squarely decided by any reported case in this state. In the case of D’Amato et at. v. Orange Memorial Hospital, 101 N. J. L. 61; 127 Atl. Rep. 340, the Court of Errors and Appeals decided that because the defendant in that case was a charitable institution it could not be held liable for the negligence of its servants and agents to a plaintiff, who was a patient. The court there said (at p. 65) :

“In our opinion, public policy requires that a charitable institution maintaining a hospital be held not liable for injuries resulting to patients through the negligence or carelessness of its physicians and nurses, even if the injured person were a pay patient—payment on board, medical services and nursing in such case going to the general fund to maintain the charity.”

In the ease of Isabella Boeckel et al. v. The Orange Memorial Hospital, recently decided by the New Jersey Supreme Court, reported in 10 N. J. Adv. R. 135; 158 Atl. Rep. 832, it was held, in an opinion by Mr. Justice Case, that the exemption from liability, enunciated in the D’Amato case, extends to the case of a visitor to a patient in the hospital. There a mother, visiting her daughter who was a patient at the hospital, fell on the stairs while leaving the building. The court said:

“To the extent that her need went—that need being a mother’s wish to be with her sick child and to speed the latter’s recovery by the inspiration of a home presence—shé was a recipient of the same benevolence, a beneficiary of the same charitable foundation, as was the patient. * * * The opportunity afforded for her attendance was part of the charitable service the defendant was rendering to suffering humanity. In a very real sense the charitable impulses which served the patient also served the patient’s mother, indeed served all those who, by whatever bond of attachment, suffered through the infirmity of the patient or were eased by the lightening of her pain.”

In the instant ease we have that of a plaintiff who was not a patient of the hospital defendant, nor a visitor to a patient, but a complete stranger, driving his automobile in the public highway and with whom the driver .of defendant’s ambulance collided. As before stated, this situation appears not to have been dealt with directly in any of the reported decisions of the courts of New Jersey, so that the question now presented is whether the exemption to a charitable hospital from liability for negligence extends beyond the cases of a patient and a visitor to a patient and runs still further to a ease of a complete stranger having no beneficial relation to the charitable, defendant at the time of the injury.

Let us see what if anything is to he gleaned from the two New Jersey decisions hereinbefore quoted, or what logical deductions it would appear may be reasonably made therefrom, concerning the position of our higher courts on the subject of the liability to a stranger for negligence.

First. In the D’Amato case it will be noted that the exemption was confined strictly to a case of a patient. The decision quotes as “perhaps the leading case supporting this view,” that of Schloendorff v. The Society of New York Hospital, 211 N. Y. 125. But this case, while approving exemption in the case of a patient, says it is a settled rule that a hospital is liable to strangers—to persons other than patients —for the torts of its employes committed within the line of their employment. This decision is also quoted in Mr. Justice Case’s opinion in the Boeekel case in the Mew Jersey Supreme Court, though I grant he also refers to the Massachusetts rule to the contrary. As I read the D’Amato and Boeekel decisions, however, I get the impression that the Mew Jersey courts, while not in terms adopting the Mew York rule as to strangers, not having had occasion to decide the point, nevertheless lean to the Mew York case as a forceful expression on the subject.

Second. In the Boeekel case the court stresses the relationship of the plaintiff (a mother visiting her daughter patient) to the defendant hospital as that of a beneficiary receiving the same general class of advantage as the patient herself, bringing the visitor also within the class of direct recipients of the charity’s beneficence, an acceptor of its benefactions, and thus equally as subject to the risks of negligence as a patient would be under the law, grounded on public policy. I think the painstaking clarity with which the court disassociated the plaintiff in the Boeekel case from the status of a complete stranger to the hospital’s charity leaves the inescapable inference that had she been such a stranger her rights might have been different. It is quite within reason to declare that public policy forbids a charitable institution being held constantly to the clanger of damages for untoward results in some of the continuous ministrations to the direct beneficiaries of its charitable contributions, but such a rule is not invoked with equal justice, nor indeed by virtue of any public requirement, in the case of tortious injuries to those outside of its benefits, neither seeking nor receiving the same. I think the Massachusetts rule of exemption from liability in all cases, -whether direct beneficiary of or stranger to the charity, will not be adopted by our New Jersey courts. It may be sound public policy to avoid a diversion of trust funds from the direct object of their charitable donor by forbidding their application to damages for the negligence of the charity’s servants where the injured party participates in the charity’s largessee, but no one, no mattter how elevated his motive, or how humane his purpose, should be permitted to set up and operate machinery of his charitable organization with impunity to injure by negligence those unconcerned in and unrelated to that which the donor brought into being or supports in operation.

In conformity with these views the motion to strike the sixth defense in the answer will he granted.


source: Caselaw Access Project

author: Ingeesoll, V. C.

license: Public Domain

text:
    Mabel Margaret Searles, complainant, v. Victor A. Searles, defendant.
    [Decided April 19th, 1932.]

      Messrs. Levy, Fenster McClosTcey, for the complainant.

      Mr. John C. Feed, for the defendant.
   Ingeesoll, V. C.

On the 24th day of April, 1930, Mabel Margaret Searles filed her bill of complaint against her husband, Victor A. Searles, praying for suitable support and maintenance, alleging that he owned property in Atlantic City, the legal title of which was held by Sherman L. Whipple and Lathrop Withington, trustees, in trust for him; that property in Atlantic City, on South Plaza Place, consisted of a one-family house worth approximately $150,000, and property on North Massachusetts avenue was a boathouse, valued at approximately $75,000; that her husband had considerable personal property both in and outside of the State of New Jersey, the extent of which she did not know, but on information and belief, which she believed to be true, was approximately $7,00,000 or $8,000,000; that he had an income from a large trust fund, together with other incomes, which amounted to approximately $20,000 per month.

On May 9th, 1930, application for alimony pendente lite was made and an affidavit made by the complainant, verifying the facts set forth in the bill of complaint.

On said May 9th, 1930, an application for a writ of ne . exeat was made, in which the complainant alleged that the defendant was then a resident of the State of Florida and was on his way to the State of New Jersey to adjust some business matters and would quickly depart from the State of New Jersey for the purpose of avoiding payment of maintenance which might become due to her; that the defendant had no property within this state out of which any decree for maintenance could “be easily satisfied,” and if defendant was suffered to depart this state, her claim for support and maintenance and the support of her infant child would he defeated.

On the 3d day of August, 1930, an answer and counterclaim was filed.

Motion is now made for an order dismissing the bill for lack of substantial prosecution for a period of over one year, and for the further reason that the above styled cause has been actually abandoned by the complainant, and that the complainant- has filed a bill for maintenance in the State of Florida; that an answer has been filed to the said bill and that alimony pendente lite has been accepted in said cause.

The motion is resisted and affidavit made by one of the counsel for the complainant that diligent search failed to reveál the residence of the defendant, and although continuous efforts were made to locate him, the defendant did not come into the State of New Jersey, thereby making service in this state impossible.

An examination of the file shows no issuance of a subpoena or any return thereupon of “not found” nor has the original ne exeat, which was issued almost two years ago, been returned.

1 Cum. Supp. Comp. Stat. p. 261 provides that “in any proceeding commenced in the court of chancery in which a money decree is prayed against a defendant, and it shall be made to appear, by affidavit, that the defendant is a nonresident and has property, real or personal, moneys, effects, rights or credits within this state, the court may, upon the filing of the bill or petition or at any time thereafter, issue its writ or writs of sequestration directed to the sheriff of any county in which the said property may be situate, or to any master of the court, commanding said sheriff or sheriffs or master to take into his or their possession said property, and hold the same subject to the orders and decrees of the court. (Laws of 1919, chapter 204, page 444, supplementing laws of 1902; Comp. Stat. p. Jj.10.)”

Section 52f provides that “in any case in which a writ of sequestration shall issue as herein provided, the cause shall proceed against the non-resident defendant as in other cases in which the court is authorized to proceed against non-residents.”

It is manifest that this suit has been suffered to lie without substantial prosecution for one year and may be considered as abandoned. Notice of motion to dismiss having been given, the bill will be dismissed.


author: Pee Cueiam.

text:
    NEW YORK TELEPHONE COMPANY, A CORPORATION, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT, DEFENDANT.
    Argued October 9, 1931
    Decided April 21, 1932.
    Before Justices Teenohabd, Daly and Donges.
    Dor the prosecutor, Wall, Haight, Carey <& Hartpence {Thomas G, Haight, and Charles T. Russell, of the New York bar, of counsel).
    Dor the defendant, William A. Stevens, attorney-general {John Solan, of counsel).
   Pee Cueiam.

This writ brings up for review a license or franchise tax amounting to $26,250 imposed for the year 1929 against the prosecutor by the state board of taxes and assessment, based upon the capital stock of the corporation.

It appears that between August 28th, 1882, and October 7th, 1897, pursuant to our statute entitled “An act to incorporate and regulate telegraph companies,” approved April 9th, 1875 {Comp. 8tai., p. 5312), and its amendments and supplements, the following corporations were formed: New Jersey Telephone Company, Metropolitan Telephone and Telegraph Company (formerly the Bell Telephone Company of New Jersey), Domestic Telegraph and Telephone Company of Newark, New Jersey, Northeastern Telephone and Telegraph Company, Sea Shore Telephone Company and Hudson River Telephone Company. On June 15th, 1883, the New Jersey Telephone Company consolidated with a corporation of New York known as the New York and New Jersey Telephone Company, and changed its name to New York and New Jersey Telephone Comapny. On March 25th, 1887, the Metropolitan Telephone and Telegraph Company consolidated with the New York and New Jersey Telephone Company, and changed its name to New York and New Jersey Telephone Company. On March 6th, 1890, the Domestic Telegraph and Telephone Company consolidated with the New York and New Jersey Telephone Company, and changed its name to New York and New Jersey Telephone Company. On September 21st, 1909, the New York and New Jersey Telephone Company consolidated with a corporation of New York called the New York Telephone Company, and changed its name to New York Telephone Company. Subsequently the Northeastern Telephone and Telegraph Company, Sea Shore Telephone Company and Hudson River Telephone Company consolidated with the New York Telephone Company, and changed their names to New York Telephone Company.

There is no evidence that any of the corporations above named as having been incorporated pursuant to our Telegraph Companies act, and its amendments and supplements, have ever been dissolved in the manner provided in that act, and, at present we are not concerned with their legal status except to ascertain the validity of the license or franchise tax against the prosecutor based upon its capital stock.

The prosecutor says that it is not subject to payment of a license or franchise tax based upon its capital stock, because, as it contends, it is subject to a state franchise tax upon the basis of its gross receipts (although it has no receipts).

In support of that proposition the prosecutor points to the reference to “telephone” companies in sections 1, 2 and 4 of an act entitled “An act to provide for the imposition of state taxes upon certain corporations and for the collection thereof” (Gomp.,Stat., p. 5286), and argues that the legislature thereby had reference to all corporations incorporated under the Telegraph Companies act. But we think that such reference to “telephone” companies can have application only to that class of telephone companies who are engaged in operating telephone lines within the State of New Jersey and acquiring gross receipts as a result of such operation. Sections 2 and 4 of the act show that the tax to be imposed on the “telephone” companies, referred to in section 1, is to be measured by the gross amount of such companies’ receipts arising from business done within this state; and that being the only measure provided for ascertaining the tax, it follows that the legislature did not intend to include in the “telephone” companies referred to in section 1, such corporations as (a) operate outside of New Jersey; (b) corporations merely owning an interest in other telephone companies, or (c) corporations not operating at all, but maintaining corporate existence. The agreed fact is that since September 30th, 1927, the prosecutor has confined its telephone operations to the States of New York and Connecticut. Hence since September 30th, 1927, the prosecutor has not been a corporation subject to taxation on its gross receipts under the provisions of the so-called Voorhees act of 1900 (Comp. Stab., p. 5298; Gum. Supp. Gomp. Stat., p. 3568), entitled:

“An act for the taxation of all the property and franchises of persons, co-partnerships, associations or corporations using or occupying public streets, highways, roads or other public places, except municipal and corporations taxable under the act entitled 'An act for the taxation of railroad and canal property,’ approved April tenth, one thousand eight hundred and eighty-four, or any of the supplements or amendments thereto, and except corporations taxable under the act entitled 'An act for the taxation of the property and franchises of street railroad corporations using or occupying public streets, highways, roads, lanes or other public place in this state,’ approved May twenty-third, one thousand nine hundred and six.”

We see, therefore, that the prosecutor falls within that class of corporations that is subject to the provisions of the supplement of 1906 to the Franchise Tax act (Cum. Supp. Comp. Stat., p. 3565), and which provides for the taxation of all corporations incorporated under the laws of this state other than those which are subject to the payment of a state franchise tax assessed upon the basis of gross receipts. This Franchise Tax act of 1884 was construed in Tide-Water Pipe-Line Co. v. Berry, 52 N. J. L. 308; 19 Atl. Rep. 665, as follows: “The act of 1884 required all the enumerated corporations doing business in this state to pay an annual tax, for the use of the state, by way of a license for their corporate franchises. The imposition is not in compensation for the grant of the franchise by the state, but for the use of the franchises in the state. Foreign corporations doing business in this state are within the language of the act. The language of the fourth section, ‘all other corporations incorporated under the laws of this state’ shows that the draftsman of the act had in his mind the distinction between corporations doing business in this state and corporations created by the laws of this state. The purpose of that provision was to bring within the operation of the act those corporations incorporated under the laws of this state to transact business in other states, and which were therefore not included among the corporations ‘doing business in this state.’”

We think that the prosecutor is subject to the payment of a license or franchise tax under our laws notwithstanding the relationship entered into by the corporations organized under the laws of Mew Jersey on the one hand and the corporations organized under the laws of Mew York on the other hand. The record shows that the prosecutor has repeatedly held itself out as a corporation “of the States of Mew York and Mew Jersey,” and moreover carried on the telephone business within this state until September 30th, 1927, as a corporation of the States of New York and New Jersey.

Section 11 of our Telegraph act (Comp. 8tat., p. 5321), declares “that any telegraph company chartered under the provisions of any act of this state, may connect and consolidate with any other incorporated telegraph company, whether chartered by or existing under a law of this state, or of any other state; and may under such consolidations, by resolution of its board of directors, change its name, which change of name shall take effect on filing a copy of such resolution, certified under its corporate seal, in the office of the secretary of state of this state; provided, that neither such connection, consolidation or change of name shall affect the obligations or debts of said company, or the process for their enforcement or lien upon its property.”

So it will be seen thereby that the only grant of power to companies formed under our act is to “connect and consolidate.” The agreement between the corporations states that they “agreed to connect and consolidate with each other * * In the agreement between the New York and New Jersey Telephone Compaq, and the New York Telephone Company it is declared: “The parties hereto agree, and each of the parties hereto for itself severally does hereby agree, that the said corporations, the parties hereto, shall form and after the date hereof be united, connected and consolidated and bear the corporate name of the New York company, to wit, ‘New York Telephone Company/ ” and it is presumed that the transactions entered into by our corporations were taken in accordance with the provisions' of our statute. Our statute gives no indication of an intent on the part of the legislature that the connection and consolidation of a New Jersey corporation with a foreign corporation should result (a) in the dissolution of the New Jersey corporation, or (b) in the swallowing up of the New Jersey corporation by the foreign corporation with whom it undertakes to “connect and consolidate.” All that our statute appears to do is to assume the existence of a New Jersey corporation and' authorize such corporation to “connect and consolidate” with a corporation of another state, and to change its (the New Jersey corporation’s) name. The rule that the consolidate corporation is a new and distinct creation does not apply where the constituent corporations owe their existence to different states; for certain purposes, they remain a separate corporation in each state. While there is a union of interest and property, there is said to be no merger of personal or legal identity. Muller v. Dows, 94 U. S. 444; 24 L. Ed. 207. For all the purposes of law, our corporations remain corporations of this state. Easton, &c., Bridge Co. v. Metz, 32 N. J. L. 199. A state legislature may authorize the consolidation of a corporation of one state and corporations chartered by other states, but the resulting consolidated corporation is a corporation of each of the states authorizing the same, and its powers and liabilities within each state are determined by the law of that state. Baltimore & R. Co. v. Harris, 12 Wall (U. S.) 65; 20 L. Ed. 354.

Contending against the tax the prosecutor refers us to the case of People v. New York, Chicago and St. Louis Railroad, 129 N. Y. 474. But unlike the situation presented in the New York case, in this case (a) there is no attempt to exact an organization tax from the prosecutor, as an imposition for the acts of these New Jersey corporations and these New York corporations, in connecting and consolidating; (b) section 11 of our Telegraph act is not “an incorporation act;” (c) the act of connecting and consolidating performed by these corporations, under the enabling acts of the two states, did not result in the creation of a new corporation and the dissolution of the corporations participating in the connection and consolidation (at least, not to the extent of terminating the obligation of the New Jersey corporations to pay a franchise tax). On the contrary, our Franchise Tax act imposes but one tax, which is to be assessed annually from the birth of the corporation until its corporate existence is legally terminated. This tax is imposed for the privilege of existing in corporate form and of having the advantages associated therewith. We think that the obligation to pay this tax continues notwithstanding the connection and consolidation, inasmuch as the several corporations incorporated under our law still exist and, while forming for certain purposes a constituent part of the corporate prosecutor, nevertheless remain the creatures and creation of New Jersey as they were before the connection and consolidation, and as a result of this continued existence, the prosecutor now possesses, as-a corporate entity, the right to acquire and to hold an interest in any telephone line or lines operating in this state and, in addition, the right to engage in the operation of the telephone business in this state and to exercise all the privileges granted by the Telegraph act of New Jersey to companies incorporated thereunder.

If it be considered that the relationship entered into between these New Jersey corporations and this New York corporation is equivalent to a merger as that term is used in our General Corporation act, such merger does not operate to dissolve the New Jersey companies. Windhurst v. Central Leather Co., 105 N. J. Eq. 621; 149 Atl. Rep. 36; affirmed,. 153 Id. 402. The contention of the prosecutor that all the New York corporation did was to acquire (by purchase from the-shareholders of the New Jersey companies) the stock of the New Jersey companies and take a bill of sale for the property of said companies, really amounts to a contention that the authorization in the Telegraph act permitting companies incorporated thereunder to connect and consolidate with foreign corporations is equivalent to a grant of power to alienate the primary franchise to be and exist in corporate form. To that, contention we cannot agree. In re United States Car Co., 60 N. J. Eq. 514; 43 Atl. Rep. 673.

As a result of the refusal of the prosecutor to make a return to the state board of taxes and assessment to show the amount of capital stock it had issued and outstanding, that body ascertained the amount of capital stock that the prosecutor was authorized to issue and based a tax upon such authorized amount. Inasmuch as the supplement to the Franchise Tax act {Cum. Supp. Comp. Stat., p. 3565) provides that the tax to be imposed thereunder shall be based only upon the amount of issued and outstanding capital stock, and inasmuch as the amount of such issued and outstanding stock of prosecutor at the time the tax was assessed was $305,600, whereas the tax was assessed upon the erroneous assumption that such issued stock amounted to $450,000,000, it is and must be conceded that the tax as assessed is to this extent erroneous in amount.

Let judgment be entered for the amount of the tax so reduced.

No costs are allowed.


author: Pee Ctjeiam.

text:
    SARAH FERGUSON, RESPONDENT, v. JOSEPH MIKULSKY, APPELLANT.
    Submitted January term, 1932
    Decided April 26, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Collins & Corbin.

    For the respondent, Nathan A. Rubin.

   Pee Ctjeiam.

Plaintiff below slipped on an icy pavement in front of defendant’s garage and received injuries, brought suit against the owner, and recovered a judgment in the Second District Court of Hudson county. The defendant appeals and alleges that there was error in the refusal to nonsuit, refusal to direct a verdict in favor of the defendant, refusal to charge certain requests and in the charge itself.

We think either the nonsuit or direction of a verdict for the defendant should have been granted. The plaintiff's testimony established that the defendant's son on January 26th, 1929, made a pathway through snow and slush which had accumulated on the pavement fronting the defendant’s premises. At seven o'clock in the evening the plaintiff slipped in this pathway, fell and was injured. The plaintiff testified that the son was “just pushing it along like that and let the snow go whichever way it wanted to."

This was the proof on which negligence was predicated and we think it was insufficient. The case is precisely like and is controlled by Arning v. Drudinq, 96 N. J. L. 47; 114 Atl. Rep. 158.

Our conclusion on this fundamental phase of the question makes it unnecessary to consider the remaining grounds of appeal.

The judgment is reversed.


author: Pee Cubiam.

text:
    MEADOW BROOK NURSERIES, INCORPORATED, RESPONDENT, v. BENJAMIN LEVY, APPELLANT.
    Submitted January term, 1932
    Decided April 26, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, John J. Fallon, Jr.

    For the respondent, George M. Fichler.

   Pee Cubiam.

The action in this case was to recover a balance alleged to be dne for grading the lawn and planting trees, hedges, bushes, shrubbery and grass in front of the defendant’s apartment house in accordance with a contract entered into between the parties for that purpose, together with a small sum for extra work and materials. The ease was heard by the judge without a jury and judgment given for the plaintiff in the sum of $170.75, apparently representing a balance of $150 on the contract and $20.75 for extra work.

Payments had been made from time to time until the above balance remained and the controversy in the case was whether or not the work was done to the satisfaction of the defendant. There was evidence we think from which it could be inferred that the claim of dissatisfaction put forth by the defendant was not in good faith. This being true, it became a question of fact for the trial judge and his finding cannot be disturbed.

The judgment is affirmed, with costs.


text:
    CARLO PUGLIESE, RESPONDENT, v. WILLIAM McCARTHY, APPELLANT.
    Submitted January term, 1932
    Decided April 26, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Collins ■& Gorlin (Edward A. Marleley, of counsel).
    For the respondent, Bomenich M. Acocella.

   Pee Ctjeiam.

The appellant was made the defendant in an action brought by the plaintiff to recover for damages to an automobile caused by the alleged negligence of the driver of the defendant’s car, who, it was claimed, was, at the time, the servant of the defendant.

The ease resulted in a verdict and judgment for the plaintiff. The defendant appeals contending that there should have been a direction of a verdict in his favor and that the court misdirected the jury in its charge.

• Both complaints are well founded. The proofs were that the defendant owned a car and had a license to drive it. The night before the accident he loaned the car to his brother, Elwood McCarthjr, at the same time handing him his wallet containing the ear license and defendant’s driver’s card. Early the next morning the brother had the accident out of which the action grew. The evidence was uncontradieted that Elwood at the time of the accident was operating the car for his own purpose alone and was not on any business of the defendant. While it appeared that Elwood had no license to drive, there was no proof that he was not a competent driver. The fact that he was driving without a license to operate an automobile, in the absence of proof that he was incompetent, was without causal relation to the accident and without force in establishing the defendant’s liability. Under the proofs submitted the presumptions arising from ownership of the car were clearly overcome and no longer had vitality. The motion for direction of a verdict in favor of the defendant should, therefore, have been granted.

The judgment is reversed.


author: Per Curiam.

text:
    IN THE MATTER OF DETERMINATION OF PREVAILING RATE OF WAGES ON SEWAGE DISPOSAL PLANT AT PRINCETON, NEW JERSEY.
    Submitted January term, 1932
    Decided April 26, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    Lor the prosecutors, Minton •& Rogers.

    Bor the commissioner of labor, Stephen J. Lorenz.

    Bor the borough of Princeton, William C. Yandewater.

    Bor the Princeton mechanics and laborers, John F. McCarthy.

   Per Curiam.

A rule was allowed in this case directing the commissioner of labor and the borough of Princeton to show cause why a writ of certiorari should not be allowed to review the proceedings of the commissioner in the matter of determination of the prevailing rate of wages respecting a sewage disposal plant contract at Princeton. It was stipulated that if the rule should be made absolute and the writ granted the court should then proceed to determine the merits of the case on the depositions and briefs, furnished on the rule.

The facts to be extracted from these depositions are that the borough had a contract with Engstrom & Wynn, Incorporated, for the construction of a sewage disposal plant.

Oil January 4th, 1932, the corporation was notified to-appear before the commissioner of labor in the city of Trenton to answer the charge that in violation of Pamph. L. 1931,. ch. 242, it was not paying the prevailing rate of wages for labor in the sewage disposal plant at Princeton.

The corporation moved to dismiss the proceeding before.the commissioner upon the grounds (1) that no dispute had arisen concerning the prevailing rate of wages which could not be adjusted by the contracting parties, and (2) that, chapter 242 concerned only the construction of public buildings and that no public buildings were involved in its contract with the borough. The commissioner denied this motion and while determining that no dispute had arisen concerning the prevailing rate of wages which could not be adjusted by the contracting parties, he nevertheless proceeded to take jurisdiction. Thereupon the rule in the present case-was allowed and further proceedings by him restrained.

The statute relied on as justifjdng the action of the commissioner (chapter 242, laws of 1931, page 597) is, "An act relating to the rate of wages for laborers and mechanics-employed on public buildings in this state by contractors and subcontractors for other purposes.” Section 1 of the-act provides that "every contract in excess of $5,000 in amount to which the state or any political subdivision thereof is a party, which requires or involves the employment of laborers or mechanics in the construction, alteration, or repair of any public buildings of the state or any political subdivision thereof within the limits of the state shall contain a provision to the effect that the rate of wages for all laborers and mechanics employed by the contractor or subcontractor on the public buildings covered by the contract shall not be less than the pervading rate of wages for work of a similar nature in the citjr, town, village, or other civil division of the state, * * * and a further provision that in case any dispute arises as to what are the prevailing rates-of wages for work of a similar nature applicable to the contract which cannot be adjusted by the contracting officer, the matter shall be referred to the commissioner of labor for determination and Ms decision thereon shall be conclusive on .all parties to the contract.”

The contract in question complied with the requirements of the act and contained the following clauses:

“It is expressly agreed that the contractor will comply in all respects with the laws of the State of ISTew Jersey respecting labor and compensation and with all labor statutes, ■ordinances, rules and regulations applicable and having the force of law.

“In so far as this contract involves the employment of laborers, or mechanics in the construction, alteration, and/or repair of any public buildings, it is agreed that the rate of wages for all such laborers and mechanics employed on the public buildings by the contractor or any subcontractor shall be not less than the prevailing rate of wages for work of a similar nature in the civil division of the state in which the public buildings are located, and that in case any dispute .arises as to what are the prevailing rates of wages for work of a similar nature applicable to the contract which cannot be adjusted by the contracting officer, the matter shall be referred to the commissioner of labor for determination and his decision thereon shall be conclusive on all parties to the contract as provided in chapter 242 of the laws of 1931.”

Our examination of the statute leads us to the conclusion that the dispute contemplated is one arising between the workmen employed in the public work under construction and the contracting party, and that before the commissioner of labor could take cognizance of complaint of violation o,f the statute it was essential not only that a dispute had arisen between the parties immediately concerned but that that dispute was one that could not be adjusted by the contracting parties. There being no evidence of a dispute between the parties as to what are the prevailing rates of wages, much less that that dispute was one that the contracting officer could not adjust, the proceedings before the commissioner ■were unwarranted and illegal.

They are therefore set aside, with costs.


author: Pee Cubiam:.

text:
    PETRO (ALSO KNOWN AS PETER) ELIO, PROSECUTOR, v. THE SINGER MANUFACTURING COMPANY, A NEW JERSEY CORPORATION, AND THE WORKMEN’S COMPENSATION BUREAU OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Argued January 20, 1932
    Decided April 28, 1932.
    Before Justices Teenchakd and Donges.
    For the prosecutor, J. Harry Hull.

    For the defendant Singer Manufacturing Company, Hobart Minará {Ralph E. Cooper, of counsel).
   Pee Cubiam:.

Peter Elio, a workman, claimed to have been injured whilst in the employ of the Singer Manufacturing Company. He filed a petition with the workmen’s compensation bureau in which he alleged that he was injured while at work on “April-- 1930,” in the tool room, and respecting the nature of the injury said that he went to the shelf to remove some pieces of metal and a sharp piece fell, striking him on the chest, cutting and bruising him. In his petition he said that he notified his employer of the accident “five days after the accident.”

The company answered and said repeatedly that “there was no accident.” But they admitted in their answer that, at their direction, “Dr. A. 0. Buck and the Alexian Brothers Hospital furnished medical services for a condition which did not result from an accident, from May 5th, 1930, to December 31, 1930, inclusive,” and the workman said in his petition that these services were furnished at his request.

Notwithstanding these pleadings, the company gave notice that at the hearing they would move to strike out the petition on the ground that no date of the accident was set forth. When such motion was made, the workman’s counsel said that the workman could not fix the date exactly, but would testify that it was sometime during April, 1930. Counsel for the company, however, insisted that the workman’s claim be dismissed. It was dismissed and we think wrongly. If the case had proceeded to hearing the court below might have been satisfied from the pleadings, or proof of other circumstances, or both, that the accident happened on a given date, along about the last day of April, 1930, and, if so, we see no reason why the petition might not have been amended, upon proper terms, to conform to the fact as found. The petition of the workman apparently was filed January 12th, 1931, and so it appears that no question of the statute of limitations was involved in this case. See Flood v. Newark Plumbing and Heating Co., 7 N. J. Mis. R. 981; 147 Atl. Rep. 638.

The company argues that for various reasons the writ of certiorari should be dismissed. We think not. We think that the order of the workmen’s compensation bureau dismissing the workman’s petition should be set aside, with costs, and the case should be remitted to the bureau for further proceedings according to law. And it is so ordered.


author: Pee Curiam.

text:
    CONTINENTAL FINANCE CORPORATION, RESPONDENT, v. LOUIS M. WARREN ET AL., APPELLANTS.
    Submitted January term, 1932
    Decided April 26, 1932.

      Before Justices Campbell, Lloyd and Bodine.
    Bor the appellants, Jacob J. Tandler.

    Bor the respondent, Kenneally & Arlcush.

   Pee Curiam.

The action was by the plaintiff, a small loan company licensed under chapter 49 of the laws of 1914, to recover on a promissory note made March 7th, 1928,- for $150 with interest at three per cent, per month. There was judgment for the plaintiff on a trial in the Birst District Court of Hudson county and the defendant appeals.

It was contended by the defendant in the court below and is contended here that the plaintiff was carrying on business in violation of the statute quoted without having first obtained a renewal of its license from the department of banking and insurance and that the case fell under the ban of section 6 of the act, reading as follows:

“The violation of any provision of this act shall be a misdemeanor ■* * *. Every loan in connection with which such violation shall have occurred shall be absolutely null and void and the borrower shall be entitled to recover from the lender any and all sums paid or returned on account of or in connection with such loans.”

It would appear from the state of the case that at the time the note was taken the company was duly licensed by the depatment of banking and insurance, and it is not claimed that the making of the loan represented by the note in any respect violated the statute. It was, therefore, entirely valid. The company, however, did not renew its license for the years 1930 and 1931, probably because in the interval between the making of the note and 1930 the legislature had passed the amendment to the small loan statute reducing the interest rate. Thé only proof that it was engaged in business appears to be that it collected the interest on the note at the rate prescribed therein and that it brought the present action for its collection. The trial judge held that this was not doing business within the contemplation of the statute.

We think he was clearly right. Section 1 of the act defines what shall constitute engaging in the business and defines the persons or corporations so engaging. The collection of principal or interest on the obligations held by the licensee is not one of the enumerated acts and no rule of construction would justify us in holding that it was within the contemplation of the statute.

The judgment is affirmed, with costs.


author: Pek Cukiam.

text:
    JOSEPH GREENBERG AND WILLIAM GREENBERG, PARTNERS, TRADING AS GREENBERG & GREENBERG, RESPONDENTS, v. LOUIS KENDALL, WILLIAM J. KROGER, JULIUS FUNESTI AND HERBERT G. HOLTJE, APPELLANTS.
    Submitted January term, 1932
    Decided April 26, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellants, Rinaldi & Shanley.

    For the respondents, Greenberg & Greenberg.

   Pek Cukiam.

The action in this case was by a firm of attorneys to recover fees for professional services. There was a judgment in their favor in the District Court and the defendants appeal contending that there was error in the refusal to charge certain requests submitted by the defendants and in the charge itself.

The plaintiffs were employed by the defendants to advise ■them as to their rights in a plot of ground adjoining lots owned by them respectively. Defendants were advised that it would be necessary to obtain title to the plot of ground, and suggested the formation of a corporation to take the title. The corporation was formed and deeds to this corporation were procured. The defense was that defendants were not obliged to pay because of the limited nature of the title conveyed by the deeds, and on the further ground that the work performed by the plaintiffs was based on improper advice given by them to the defendants, which advice was of no value and therefore did not constitute a meritorious claim.

The errors complained of were that the trial judge refused to give legal force to a map in which the plot of land was described as a park and tennis courts on the theory that it was a dedication of the tract to the use of the plaintiffs, and to the denial of a request that an acceptance of a charter by the incorporators was an essential condition to the legal existence of the corporation.

We think the instructions requested were properly denied. The plot of ground is wholly within and bounded by the land of private persons; it fronts on no public highway; it was not a dedication to public use’and not being for a public use, it could not constitute a dedication at all. Trustees of the Methodist Episcopal Church v. Hoboken, 33 N. J. L. 13. The judge was, therefore, right in refusing to instruct the jury as requested that the map constituted a dedication of the described plot for the benefit of the owners of the land shown on the map.

Likewise in refusing the instruction that in order to complete the incorporation of the association there must be an acceptance of the charter granted by the state. This request undoubtedly contemplated that in order to make a charter effective and complete there must be a formal acceptance of the charter by the incorporators. The charter was obtained and delivered to the -plaintiffs who were then counsel for the defendants.,. Section 3 of the .General Corporation act {Comp. Stat.y p. 126) - provides that, “upon filing the certificate * * * the persons who shall have signed and acknowledged such certificate and their associates and successors, shall thereupon by virtue of this act be a body politic and corporate by the name stated in such certificate.”

The judgment will be affirmed, with costs.


text:
    NICHOLAS CASALE, RESPONDENT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, APPELLANT.
    Submitted January term, 1932
    Decided April 26, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Henry H. Fryling (William, F. Vosseller, of counsel).
    For the respondent, Max Robert Weaker (Julius Seiden, of counsel).
   Pee Cueiam.

The plaintiff below fell on a banana peel on the floor of one of the defendant’s buses and was injured. He brought suit to recover damages for the injuries received. There was a verdict and judgment-in his favor- in the District Court and the defendant appeals, contending that there should have been a nonsuit or the direction of a verdict in its favor.

It would appear that the banana peel was observed on the floor of the bus by another passenger before the accident happened, but during the course of the trip; just how long before or what distance from the point in the trip where the accident happened does not appear. The defendant’s proofs established that there had been an inspection of the bns by the driver before the trip began and that at that time anything on the floor was removed and thrown out. The banana peel was presumably dropped by some passenger on this particular trip.

Upon these facts we think the case is controlled by Proud v. Philadelphia, and Reading Railroad Co., 64 N. J. L. 102; 46 Atl. Rep. 710, and Hunter v. Public Service Railway Co., 105 N. J. L. 300; 144 Atl. Rep. 305. There was no proof of knowledge in the driver of the presence of the peel on the floor, nor was there proof that it had been there for such a length of time as to impute notice to the driver.

The company is not required to keep up a continuous inspection. The driver of the bus, after the trip began, had other duties demanding his constant attention and the presence of a banana peel dropped by a passenger in the course of a trip, unless reasonable opportunity of inspection during the trip were afforded, could hardly be sufficient to charge the defendant with negligence. It was so held in Palmer v. Pennsylvania Co., 111 N. Y. 488, and Riley v. Rhode Island Co., 69 Atl. Rep. 338. We think the case should have been controlled by the court and a verdict directed in favor of the defendant.

The judgment is reversed.


text:
    FRED BRINDLEY, Jr., RESPONDENT, v. JOHN L. BROOK ET AL., APPELLANTS.
    Submitted January term, 1932
    Decided April 28, 1932.

      Before Justices Campbell, Lloyd and Bodine.
    For the appellants, James J. McGoogan.

    For the respondent, Ellis L. Pierson.

   Pee Cueiam.

Plaintiff below brought suit to recover commissions as a broker employed to effect a sale or exchange of the defendants’ house and lot. The employment was a verbal one, and the plaintiff procured a contract to be entered into between the defendants and the Pavonia Holding Corporation, whereby the latter agreed to convey to the defendants a certain property in Trenton and the defendants agreed to convey their house and lot to the Pavonia Corporation.

The contract contained a provision that the defendants would “pay to Fred Brindley, Jr., the agent [the plaintiff], a commission of three and one-half per cent, of the sale price aforesaid, said commission to be paid in consideration of services rendered.”

For the purposes of the contract the defendants’ house and lot were valued at $16,000. In the action the plaintiff obtained judgment for $500 (the excess being waived), and the defendants appeal.

The grounds urged for reversal are that the plaintiff failed to produce in the Pavonia Corporation a seller ready, willing and able to sell its own property or a like ability to purchase the property of the defendants.

Unfortunately for this contention the contract of employment contemplated that the agent should produce a purchaser able and willing to purchase on the owner’s terms or to produce a purchaser acceptable to the owner. The plaintiff did the latter. Whether the purchaser so procured was able ultimately to comply with the terms of the agreement entered into between the principals was of no concern of the broker, provided there was good faith on his part in procuring such purchaser.

The latest statement of the rule in such cases is to be found in Ganley v. Kalikman, 105 N. J. L. 311; 143 Atl. Rep. 108; affirmed, 106 N. J. L. 237; 148 Atl. Rep. 917, to the effect that a broker “earns his commission when he finds a purchaser able and willing to comply with the terms specified in the authority given, or when he finds a purchaser who agrees to purchase on terms satisfactory to the owner.” By contracting with the Pavonia Corporation the defendants accepted as satisfactory both the purchaser and the terms of the sale. When in the contract they agreed to pay the plaintiff for his services they created an obligation from which they could not recede.

The judgment is affirmed, with costs.


text:
    BUD DRESS SHOP, RESPONDENT, v. NEWARK GLASS COMPANY, APPELLANT.
    Submitted January term, 1932
    Decided April 23, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Rupert F. Howlett.

    For the respondent, Jacob L. Newman.

   Pee Cueiam.

The action in this case was to recover damages for the breaking of a glass display sign. The Newark Glass Company was engaged to install the glass in the plaintiff’s window at No. 89 Halsey street, Newark, and in doing so the glass was broken. This was substantially the whole of the plaintiff’s testimony. The defendant gave testimony tending to show that the glass broke because of a weakness due to cutting and grinding the glass too deeply. In this situation the trial judge directed a verdict for the plaintiff, and in this there was error.

Assuming that the rule of res ipsa loquitur applied, this did not raise a conclusive presumption of negligence. It still remained for the jury to decide whether negligence should be inferred. Hughes v. Atlantic City and S. Railway Co., 85 N. J. L. 212; 89 Atl. Rep. 769. It was there said, in dealing with the doctrine of res ipsa loquitur, that “the inference [negligence] is still one for the jury and not for the court. They may believe the witnesses; the circumstances may be such that the jury would attribute the injury to some cause with which the defendant has nothing to do; they may find the inference of negligence too weak to persuade their minds.”

In the present case there was additionally the defendant’s proofs from which the jury could attribute the breakage to an undue weakness in the glass itself.

The judgment is reversed.


author: Lawrence, S. C. C.

text:
    TOWNSHIP OF NEPTUNE, IN THE COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION, PLAINTIFF, v. EDWARD C. SWEET AND AMERICAN SURETY COMPANY OF NEW YORK, A CORPORATION, DEFENDANTS.
    Decided April 29, 1932.

      For the motion, Coolc ■& Stout (Mr. O’Hagan, of counsel).
    Opposed, William J. Blair, for the defendant Edward C. Sweet.
    Opposed, Harold McDermott, for the defendant American Surety Company of Hew York.
   Lawrence, S. C. C.

This is a suit brought by the plaintiff against the defendant Sweet, who was collector of taxes of the township from January 1st, 1929, to January 1st, 1931, to recover alleged shortages in his accounts aggregating $13,564.63, with interest. The other defendant was surety on the bonds given by him as such official, covering the years 1929 and 1930, each of which was in the penal sum of $15,000. Its answer admits that it was the surety on the bonds in question, but in other respects adopts the defenses set up by its principal, or at least predicates such answer thereon. The answer of defendant Sweet contains a general denial of the shortages alleged in the complaint and that any moneys are due from him to the township. Motion is now made to strike the answer as sham, on affidavits submitted in behalf of plaintiff which recite in circumstantial detail the items taken from the books of the defendant and kept by him as tax collector covering the periods stated and aggregating the sum sought to be recovered. In his answering affidavit he admits that he was elected and qualified for the years 1928, 1929 and 1930, and served as alleged in the complaint; also that he furnished the official bonds to which reference is made. He further asserts that during the time that a number of the alleged defalcations took place he was away from his office in the township; that he suffered a nervous breakdown for many months during the latter part of 1929 and the early part of 1930, and when he went away from ffie office his accounts were in proper shape; that various changes were made in his books (by whom he does not state) without his authority and that he knows that a large sum of money in excess of $7,000 was in the safe in the township office at the time he was forced to take a leave of absence on account of his condition.

His affidavit further states that the amount of cash left in the safe, which was not credited to him in any way, together with an additional sum of $6,000, the receipt for which is in the hands of his attorney, fully accounts for the shortage alleged in the complaint. He was examined, by order of the court, under the rule providing therefor before trial, and the examination was submitted on the argument of the present motion as a deposition in behalf of plaintiff, and the cash book, and other records kept by him as tax collector, offered in evidence at such examination, were likewise produced.

In this examination, his explanation of the abstraction of the sum of $6,000 from tax moneys in his custody is unusual and would tend to indicate that he had no clear conception of his legal duty as a tax collector. He states that in July, 1929, he either turned over to, or there was taken by, a former assessor of the township (now deceased) $6,000, for which the latter gave him a receipt. He alleges that it had something to do with a tax reduction on an assessment made against property of the Ocean Grove Camp Meeting Association, a taxpayer of the township, but by what authority or legal sanction does not appear, while no suggestion is made by him that the governing body of the township participated in the transaction, took any formal action regarding it, or even had any knowledge of it. His explanation sufficiently discloses its irregularity.

Nowhere in his answer, affidavit or examination does he show that he holds receipts of the township treasurer, or other authorized person, for tax moneys collected by him and paid to such official in compliance with the provision of the act entitled, “An act for the assessment and collection of taxes” (Rev. 1918), Pamph. L. 1918, ch. 236, p. 873, as amended, Pamph. L. 1921, p. 97, and Pamph. L. 1924, p. 475; 2 Cum. Supp. Comp. Stat., p. 3501, particularly for the moneys sought to be recovered in the present suit, while his admission that he left a sum in excess of $7,000 in the township safe, without paying it to the township treasurer and taking his receipt, and allowed $6,000 of tax moneys to be taken by an unauthorized person, together with his apparent failure to explain the shortages charged against him, as disclosed by his books and records, when the opportunity was presented during the course of his examination, indicate that he has no valid defense, notwithstanding his formal denial of liability in his answer.

The provision of the Tax act {supra), that it shall be the duty of the collector, or other officer having custody of collection of taxes, on the first day of each month, or oftener if required by the governing body of the municipality, to report his collections to the governing body of the municipality, and to pay the amount collected to the treasurer or other official of the municipality authorized to receive the same is mandatory. This it is clear defendant Sweet did not do, and since he admits having received sums sufficient to cover the shortages in question, without complying with the provision of the statute invoked, it follows that his answer must be regarded as sham.

The condition of each of the bonds involved in the present suit is that “if the said Edward C. Sweet shall faithfully perform all the duties imposed upon him as collector of taxes in and for the township of Neptune, county of Monmouth, during the term for which he was elected as aforesaid, then the above obligation to be void, otherwise to be and remain in full force and virtue.” In McEachron et al. v. Township of New Providence, 35 N. J. L. 528, it was said that taxes collected (by virtue of a cited statute) are held by the township collector precisely as he holds any other tax money which he has collected or received, subject to the same duty and the same liability. “This duty is the unconditional payment of the money collected to the person and at the time directed by the act, and for its performance the collector and his sureties ' became bound, just as they would have been bound if that particular duty had been specified in the condition of the official bond. Their liability results from, and must be measured by, their contract, and this being in effect an absolute covenant that the collector will pay over the money collected, it is no defense to an action brought to enforce this covenant, that the money, after having been collected, was stolen from the collector, without any negligence, want of due care, or other blame or fault whatever, on his part.” This same case, in the court below (33 N. J. L. 339, 341), carries the quotation from United States v. Prescott et al., 3 How. 578: “Public policy, says the court, requires that the depository of the public money should be held to a strict accountability, not only that he should exercise the highest degree of vigilance, but that he should ‘keep safely’ the moneys which come to his hands. Any relaxation of this condition would open a door to frauds which might be practiced with impunity. A depository would have nothing more to do than to lay his plans and arrange his proof, so as to establish his loss, without laches on his part.”

The motion to strike the answers filed in the present suit will be granted. Application for the entry of summary judgment, however, should be made to a Supreme Court justice in accordance with the practice. Milberg v. Keuthe, 98 N. J. L. 779; 121 Atl. Rep. 713; National Surety Co. v. Mulligan, 105 N. J. L. 336; 146 Atl. Rep. 372.


text:
    PATRICK J. MORRIS, BY HIS NEXT FRIEND, JAMES MORRIS, PETITIONER-DEFENDANT IN CERTIORARI, v. JAMES BELL COMPANY, INCORPORATED, A CORPORATION, RESPONDENT-PROSECUTOR IN CERTIORARI.
    Argued January 20, 1932
    Decided April 29, 1932.

      Before Justices Trenchakd and Donges. '
    For the respondent-prosecutor in certiorari, Goult, Satz & Tomlinson (Joseph Goult and John J. Francis, of counsel).
    For the petitioner-defendant in certiorari, Cohen & Klein .(Philip Klein, of counsel). ■ '
   Per Curiam.

This writ brings up for review a judgment of the Essex County Court of Common Pleas awarding compensation to the petitioner in .a workman’s compensation case.

It appeared that the workman, Patrick J. Morris, filed a petition for compensation with the workmen’s compensation bureau alleging that on August 23d, 1930, while in the employ of the James Bell Company, Incorporated, he was injured in an accident arising out of and in the course of his employment, and asking compensation.

The company filed an answer admitting that the petitioner was in the employ of the company at the time of the accident, but averring that “petitioner, contrary to specific instructions to refrain from riding on the top of cab of truck, rode on top of cab of truck and as the truck was passing under an overhead bridge, he was injured by coming in contact with the bridge.”

The deputy commissioner after hearing found that the-accident arose out of and in the course of the employment and awarded compensation. The company thereupon appealed .to the Common Pleas and there judgment final was entered for the workman.

The sole contention of the company is that the accident suffered by the petitioner did not arise out of the employment, the contention being that the proximate cause of the workman’s injury was the violation of his employer’s orders. The company concedes that the workman’s “duty required him to ride on the truck and that he was entitled to compensation for injuries accidentally received while so riding,”' but the company insisted at the trial that “his employment in this respect was limited by the express order of his employer not to ride on the rack” and that only a violation of those orders could have placed his head and shoulders where they were at the time of the accident.

It may well be questioned whether the evidence showed that such order was given “not to ride on the rack.” It may also be questioned whether the evidence showed a violation thereof, if the order was given. The petitioner denied that he was instructed not to ride on the rack and testified that his feet were at all times resting on the bottom of the truck. The testimony was uncontradicted that there were no seats in the body of the truck.

The truck was a two-ton Federal, with an open rack body with canopy top to be thrown over in case of rain, the racks being six feet six inches from the body of the truck. The racks on the truck consisted of lattice strips running from one end to the other and along the full side of the truck, and there were spaces between the strips of about eight to ten inches wide. So in any event it seems quite clear that, if the instruction was as the company alleged in its answer “to refrain from riding on the top of cab of the truck,” the workman did not violate that instruction; indeed there was no evidence at the hearing that the petitioner had been instructed to refrain from riding on the top of the cab of the truck.

So far as the evidence discloses no one actually saw the accident; but it is certain that the workman was hit on the head by something as he was passing the bridge. It may well be that the reasonable conclusion to be drawn from the testimony was that his head came in contact with the bridge while he was sitting or standing with his head protruding between the ribs of the rack, and it is insisted by his counsel that this was not a violation of the instructions which the company claim to have given him.

But assuming that it was, it would appear from the authority of the case of Kolaszynski v. Klie, 91 N. J. L. 37; 102 Atl. Rep. 5, that a workman’s disobedience of an order as to the way in which the work should be done does not result in the conclusion that the injury did not arise out of the employment. If there was a disobedience of an order in this case, it was, as was said by Mr. Justice Swayze in Kolaszynski v. Klie, “a disobedience of orders as to the way in which the work should be done. The work itself was the very work decedent was expected to do. It was done at the very place where it was meant to be done,” and in that case the employer was held liable, the court pointing out in that case that it differed from Reimers v. Proctor Publishing Co., 85 Id. 441; 89 Atl. Rep. 931, and Smith v. Corson, 87 N. J. L. 118; 93 Atl. Rep. 112. Mr. Justice Swayze in that case referred to the English cases and concluded that his decision was in accord with the pertinent English cases.

And so upon the whole case, in any view of it, the judgment must be affirmed, with costs.


author: Ackerson, C. C. J.

text:
    OLIVE MARSHALL, FRIDA LOHMANN AND SARAH M. BURTON, PLAINTIFFS, v. GEORGE L. HIPP AND FRANK LOHMANN, DEFENDANTS.
    Decided April 30, 1932.
    Eor the plaintiffs, Philip J. Miele.

    Eor the defendant George Hipp, Charles W. Weeks.

    Eor the defendant Erank Lohmann, Cox & Walburg.

   Ackerson, C. C. J.

The plaintiffs obtained verdicts against both defendants in the above entitled cause in the following amounts: Olive Marshall, $10,000; Trida Lohmaun, $7,000; Sarah M. Burton, $1,000.

Both defendants move to set aside these verdicts on the grounds that they are against the weight of the evidence and excessive. I have carefully read the transcript of the testimony while the case is still fresh in my mind, and I fail to find that these verdicts are so clearly against the weight of the evidence as to justify me in setting them aside for that reason.

Olive Marshall sustained a fracture of the left clavicle— collar bone; multiple fracture of the pelvis; and multiple contusions about the body and a sprain of the left side of the neck and chest. She has some difficulty in getting up after kneeling or stooping, with some limitation of motion and stiffness in the right hip region. The doctor, however, testified there had been a good recovery. She was in the hospital from June 8th until July 18th, 1930, and her bill there, including the doctor’s bill, amounted to $422.50. She also testified that she lost from $500 to $600 from being unable to take care of her business as a boarding-house keeper. She was about fifty-nine years of age at the time of the accident.

Taking everything into consideration, I feel that the evidence would not justify a verdict in excess of $7,000.

Begarding the verdict in favor of Trida Lohmann, the jury could have found that she sustained a fracture of the left pubic bone with a moderate amount of over-riding of the fractured ends of the bone, and a fracture of the right clavicle in about its mid-portion with an over-lapping of the fractured ends of the bone. There was limitation of extension of the left leg at the hip with some increase in size of the left leg and some prominence due to over-riding at the site of the fracture of the clavicle. She was in the hospital for about seven weeks where her bill was $384. The doctor’s bill was $80. She was unable to attend to her household work from June until November, 1930. She was about sixty-three years of age at the time of the accident. Having had the opportunity of observing this woman in the court room and considering all of the evidence, I consider that the verdict should not exceed $5,500.

Regarding the verdict of $1,000 in favor of Sarah M. Burton, it appeared that she sustained a fractured rib and still experiences some tenderness in that region. The doctor testified that her disability extended over a period of about six years. There was no evidence of a doctor’s bill, however. Her verdict should not exceed $750.

If Olive Marshall will accept a reduction of $3,000 in the amount of her verdict, it may stand for the sum of $7,000. If Frida Lohmann will accept a reduction of $1,500 in the amount of her verdict, it may stand for $5,500. If Sarah M. Burton will accept a reduction of $250 in the amount of her verdict, it may stand for $750. Acceptances of such reduction, however, must be filed in the clerk’s office on or before May 15th, 1932. If this is done the verdict thus accepted may stand and this rule to show cause will be discharged as to the plaintiff or plaintiffs thus accepting a reduction, otherwise the rule will be made absolute and a new trial granted as to damages only with respect to the plaintiff or plaintiffs not thus accepting a reduction.


text:
    FRANK VITOLO, PLAINTIFF-RESPONDENT, v. NICOTERA LOAN COMPANY, A CORPORATION; JAMES CAPISTA AND CARMEN COMITO, DEFENDANTS-APPELLANTS.
    Submitted January 29, 1932
    Decided May 2, 1932.

      Before G-ummere, Chief Justice, and Justices Parker and Case.
    For the appellants, Samuel I. Kessler.

    For the respondent, Harry Kalisch.

   Per Curiam.

There are six grounds of appeal. Taking them up in reverse order, the sixth is that the verdict is against the weight of evidence. It is familiar law that weight of evidence is not considered on an appeal at law. The fifth reproduces entire a supplemental charge of the court taking up over a page of the printed book, and stating a number of different propositions. It is also (or should be) familiar law that where part of a charge thus challenged in bulk contains several propositions of law, a reversal cannot be had unless they are all erroneous: and a glance shows that probably all, and certainly most of them were correct. Moreover, the exception was “to the supplemental charge of the court,” and failed to direct the judge’s attention to anything which counsel deemed erroneous. It is settled beyond peradventure that such an exception is futile.

The fourth ground is that the court refused to charge defendant’s request No. 1. The court at first did refuse, and after counsel had excepted, charged it.

The third ground bringing up two rulings on admission of testimony, is not argued.

The first and second grounds are all that remain. They relate to the refusal of the court to nonsuit, and to direct a verdict for defendant.

The plaintiff claimed damages for an assault and battery and joined the Nicotera Loan Company, James Capista and Carmen Comito as defendants. There was a verdict and judgment against all of them, and all appeal: but as to Capista we find nothing argued except weight of evidence and perhaps other matters already discarded as not properly raised. The first and second grounds relate only to Comito and the loan company. The judgment as to Capista is therefore affirmed.

The plaintiff’s case was substantially this: The loan company was engaged in. the “small loan” business and had lent money to some friend of the plaintiff on a note endorsed by plaintiff. The note was not paid, and the company sued plaintiff and recovered judgment for $36.40 and costs. Plaintiff paid $15 on account and as he claimed under an arrangement with the company through its officers the individual defendants, that he was to. have time to locate the maker of the note and compel him to pay his own debt. A few days later, plaintiff learned that his bank balance had been levied upon under the judgment. He went to the office of the company to protest: found Comito who told him to come back later when Capista was there. He did return later and found them both. According to plaintiff’s testimony, which we must accept for purposes of nonsuit or direction, he met them in the outer or front office devoted to customers and not inside the-partition separating the front and back offices. He made his protest, and “one word and another and [Capista] says 'you get out of here, this is the business office,’ and he grabbed a paper cutter” and “wanted to stab me, and Mr. Comito tried to hold him back, and he pushed Comito and Comito pushed me and I hit the glass in front of the partition with my open hand: I fell and hit the partition.” This, of course, is disputed: but we are not dealing with weight of evidence.

As to Comito, the evidence is somewhat tenuous but was for the jury. If plaintiff was ordered out, it was of course his duty to go, and in case of his refusal or undue delay, Capista and Comito were justified in using such force as was reasonably required to expel him. The question was whether unnecessary force was used; and that was for the jury, who could, as we think, properly say that he at first attempted to avoid violence but presently reversed his tactics and joined Capista in the pushing process. If so, they could also say that unnecessary force in that regard had been used. This would justify the court in leaving the case to the jury as against Comito.

As to the corporation, the testimony of Comito, sworn for the plaintiff, shows that he was its treasurer and Capista its secretary, and that between them they transacted all of its business. Hence they were something more than mere servants, and, as the jury might find, were acting in an executive capacity so that the corporation would be liable for their trespasses in that aspect. Wendelken v. N. Y., S. & W. R. R. Co., 88 N. J. L. 270; 86 Atl. Rep. 377, and cases cited. On this phase we have not only the somewhat equivocal acts of Comito but the unequivocal act of Capista with pointed paper knife (called a stiletto at one point) and therefore conclude that the liability of the company was also a jury question.

The judgment will therefore be affirmed as to all of the appellants.


author: Ackekson, S. C. C.

text:
    KENNETH LINDSEY, PLAINTIFF, v. COUNTY OF HUDSON, HUDSON COUNTY BOARD OF ELECTIONS AND CHARLES F. STOEBLING, AS COMMISSIONER OF REGISTRATION, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Decided April 28, 1932.
    For the plaintiff, Hollander & Leichler.

    For the defendants, William A. O’Brien.

   Ackekson, S. C. C.

The complaint herein is to recover for the plaintiff a portion of his salary as a temporary clerk of the Hudson County Board of Elections under an appointment by that board made pursuant to an act entitled “An act to amend an act entitled cAn act to regulate elections (Revision.of 1920)/ passed May 5th, 1920,” Pamph. L. 1921, . ch. 196, § 24. It is alleged that plaintiff was appointed as aforesaid on December 15th, 1927, “and served in that capacity until the 31st day of October, 1930;” that his salary was fixed at $2,400 per year; that “on the 22d day of May, 1930, the plaintiff was suspended from his position by the said defendant Hudson County Board of Elections,” and that he has not been paid any salary since that time. It is further alleged that plaintiff submitted his resignation from said position to the Hudson County Board of Elections on October 31st, 1930. Demand is therefore made for salary alleged to have accrued to the plaintiff from his suspension on May 22d, 1930, to the date of his resignation on October 31st, 1930.

The complaint does not allege the cause of said suspension or that it was improper or illegal, nor that plaintiff ever objected thereto, or was ever tried upon charges, or'ever took any proceeding to set aside the suspension, or was ever reinstated, nor that he ever performed any of the duties of his office after such suspension, if that would be material, except the conclusion of the pleader that the plaintiff “served in that capacity until the 31st day of October, 1930,” which is at variance with the positive assertion that he was “suspended from his position,” and which, as a conclusion, cannot be considered on this motion.

The defendant now moves to strike out the complaint on the ground that it does not disclose a cause of action.

The rule which must control the disposition of this motion is well settled in this state. It is to the effect that the official or body charged with the duty of suspending or discharging an employe or person holding a position, is acting judicially when so doing. His action is subject to review, and may be reversed. Hntil reversed, it stands. Whether there was or was not a proper proceeding for dismissal cannot be inquired into collaterally. It must be reversed by a direct proceeding to set aside the illegal removal or suspension before suit for salary can be maintained, or by mandamus to compel the municipality to restore his position or employment. Public policy fprbids the settlement of contested issues as to the legality of municipal action in the matter of offices or positions in a suit for salary where the right to salary is dependent on the legality of a discharge or suspension. Dinkel v. Hudson County, 5 N. J. Mis. R. 326; 136 Atl. Rep. 420; affirmed, 104 N. J. L. 659; 141 Atl. Rep. 919; Van Sant v. Atlantic City, 68 N. J. L. 449; 53 Atl. Rep. 701; Keegle v. Hudson County, 99 N. J. L. 26; 122 Atl. Rep. 606; Hillel v. Edgewater, 106 N. J. L. 481; 150 Atl. Rep. 385.

Since the complaint in the case sub judice does not allege that the plaintiff ever took any proceeding whatever to contest the legality of his suspension, nor that he ever questioned its legality, nor that its illegality was ever conceded by the ■defendants, it follows that the complaint does not disclose a ■cause of action and must be stricken out for that reason.


text:
    HUDSON ROYAL RESTAURANT, INCORPORATED, A CORPORATION, RELATOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Submitted October 17, 1931
    Decided May 3, 1932.
    Before Justices Teenchard and Donges.

      For the relator, Gross & Gross (Isaac Gross, of counsel).
    For the respondents, Thomas J. Brogan (Charles A. Rooney, of counsel).
   Pee Curiam.

The relator holds a rule requiring the respondents to show cause why a writ of mandamus should not be awarded to the relator comman,ding the respondents to issue to the relator a license “to permit the playing of music and dancing by patrons at premises conducted as a restaurant by the Hudson Eoyal Eestaurant, Incorporated, on the second floor of premises known as 912 Bergen avenue, in the city of Jersey City, Hew Jersey.”

Testimony taken pursuant to the rule and the record discloses that the mayor and aldermen of Jersey City, after hearing the matter determined that to grant it “would be detrimental to good government, order and protection of persons and property of its citizens, particularly in the neighborhood of Journal Square, where this restaurant is located;” and would constitute a source of danger to the morals of the young men and women and would bring into Jersey City the evils of dance halls and would be conducive to increasing law breaking by individuals to the detriment of the public safety of the community; and accordingly the license asked for was denied upon the authority of the ordinance of Jersey City which prohibits dancing or playing of music in public places wherein food and drink are consumed on the premises, unless specially licensed.

The depositions show that it has been the policy of Jersey City to deny applications for this sort of license, so it would seem that there is no indication of discrimination against, the relator.

We think the true rule applicable t.o this case is stated in De Roos v. Chapman, 106 N. J. L. 6; 147 Atl. Rep. 570, as follows :

“The action of municipal authorities upon application for such a license is discretionary and not ministerial, and when such application is denied, mandamus will not lie to compel the authorities to grant it in the absence of fraud or abuse of such discretion.”

There is no suggestion in this case of fraud, and the presumption is that the city acted in good faith. The question remains, was there abuse of discretion? We think that no abuse appears. The depositions indicate that this license for music and dancing was desired by a corporation, some of whose officers were Chinamen and non-residents of New Jersey, and that the restaurant in which the music and dancing was desired was on the second floor of a building at Journal Square and which is being conducted as a Chinese restaurant with the help entirely Chinese and the active management Chinese; and the indications are that its most active hours are in the evening, perhaps late at night, and that the equipment inside of the restaurant consists in part of secluded booths.

Now bearing in mind that the reason for the refusal to grant the license was, amongst other things, that it was detrimental to the young people of the neighborhood, it certainly cannot be said that there was an abuse of discretion.

The rule to show cause will be discharged and the writ denied, with costs.


author: Met.niker, J.

text:
    Bayonne District Court.
    VERA DEMOCRAZIA SOCIETY, A CORPORATION, PLAINTIFF, v. BANKERS NATIONAL LIFE INSURANCE COMPANY, A CORPORTION, DEFENDANT.
    For the plaintiff, Insley, Vreeland ■& Decker.

    For the defendant, John L. Ridley.

   Met.niker, J.

The plaintiff in this case is a mutual benefit society paying health and death benefits to its members. Upon the death of any member, the society pays $500 to the next of kin of the deceased member. To protect itself against this liability, it entered into a contract of reinsurance with the defendant, Bankers National Life Insurance Company, covering forty-six members of the society who were in good standing.

A member named Comes having died and the defendant having refused to pay the sum of $500, this suit was instituted.

The insurance company defends on the ground that under the contract of reinsurance, the society bound itself to make careful selection of its members from a physical and moral standpoint, and agreed not to accept for death benefit membership any person whose physical condition was such as to probably impair his likelihood of living, and furthermore, in the application for the reinsurance, the plaintiff represented that the members covered by the reinsurance were all in good standing and in good health at the time the application was made to "the best of the plaintiff’s knowledge and belief; that all such members were working on full time and none were absent temporarily on account of illness or injury; and that as a matter of fact, the decedent was not in good health at the time of the application and was known so to be by the officers of the plaintiff society.

The contract of reinsurance also provided, paragraph VI-B:

“The association shall furnish to the reinsurance company copies of all medical examinations, mercantile reports, inspection reports and all other information which it may have bearing upon the subject of the insurability of each and every benefit member admitted to membership.”

Defendant contended that at the time the application was made, August 29th, 1930, the decedent Comes was suffering from pulmonary tuberculosis, and that his condition was known to the officers of the plaintiff society, and that the concealment of this fact from the defendant rendered the contract void in so far as the liability of the defendant to pay in this particular instance is concerned. The defendant also raises a question as to whether or not the decedent was working at the time the application was made, but this contention can be dismissed without further discussion, as the burden of proving that the decedent was not working was on the defendant and the proof on that point offered by the defendant was altogether insufficient to establish the fact. The fact that Comes quit the employment of Colgate ■& Company on August 25th, raises no presumption that he was not working at all on August 29th. At most, it raised a presumption that he was not working for Colgate & Company on August 29th.

The matter of the concealment of the condition of the decedent’s health, however, raises a more difficult question. This contract, as heretofore stated, was not a contract of insurance but a contract of reinsurance. There is a well defined distinction which has been recognized by the courts. A contract of reinsurance is really not a contract of insurance as much as it is a contract of indemnity. The same rules of construction do not apply. Certainly there is no reason for applying the rules regarding forfeitures to a reinsurance contract, nor the rule that insurance policies should be construed most strictly against the insurance company. This distinction is well pointed out by Mr. Justice Peckham in the case of Sun Mutual Insurance Co. v. Ocean Insurance Co., 107 U. S. 485, in which it was held that where the fact that a master of a vessel was over-insured was known to the insurer, and was not communicated to the reinsurer, the knowledge of such circumstance being material and important to the underwriter as likely to influence his judgment in accepting the risk, would relieve the reinsurer from liability. The court further said that in respect to the duty of disclosing all material facts, the case of reinsurance did not differ from that of an original insurance, and that the exaction of information in some instances might be greater in a case of reinsurance than as between the parties to an original insurance. In the former, the party seeking to shift the risk he has taken, was bound to communicate his knowledge of the character of the original insurance where such information would be likely to influence the judgment of an underwriter, while in the latter, the party was not bound nor could it be expected that he would speak evil of himself.

This principle is also affirmed in the case of Bowery Fire Insurance Co. v. New York Fire Insurance Co., 17 Wend. 359, in which a reinsurer was held not liable because of failure of the insurer to communicate to the former facts within his knowledge concerning the character of the original insured. The court said that if the original insured had applied to the reinsurer for insurance, he was not bound nor could it be expected that he would speak evil of himself, but where the insurer applied for reinsurance, it was his duty to disclose any information he had which might influence the reinsurer in taking the risk.

The reasoning of these cases would seem to apply with peculiar force to the case under consideration. There is no question in this case but that the decedent was suffering.from pulmonary tuberculosis at the time the application for reinsurance was made, and had been suffering from that disease for six or seven years prior thereto. It was also conceded that the treasurer of the plaintiff society knew that the deceased had been confined to a tuberculosis sanitarium at Glen Gardner in 1922 and 1923. It is true that the application provides that the members were in good health “to the best -of the applicant’s knowlelge and belief,” but does this require proof positive of knowledge absolute on the part of the applicant that the decedent was not in good health at the time the application was made in order to avoid the contract? I think not. I do not think it is sufficient for the plaintiff merely to show that it had no positive knowledge of the decedent’s ill health.

The representation or warranty that the decedent was in good health to the best of the applicant’s knowledge and belief, required honest belief, not a mere pretense of belief. It required real knowledge, not a pretense of knowledge. It implies that the person making such an affirmation has information upon which his knowledge is based. It requires the utmost good faith, and that the knowledge and belief be bona fide. An indifference to or disregard of information does not furnish a proper basis for such a statement. It must be a conclusion or conviction based upon knowledge or consideration of the facts and information that the applicant has or possesses or is readily available to him. This is peculiarly applicable to a case such as the one under consideration. The defendant company made no independent investigation of its own or physical examination of the members of the plaintiff society. The defendant relied upon the good faith of the plaintiff, and the contract required the utmost good faith on the part of the plainiff, and where the plaintiff, as in this case, knew that one of its members had been a sufferer from pulmonary tuberculosis at one time, the least the defendant could expect from the plaintiff was that the plaintiff make inquiry of this member as to the present state of his health before including him in a list of those who were "to be covered by the defendant’s contract of reinsurance, and in fact, article YI-B of the contract provides that the society should furnish to the defendant company “all other information which it may have bearing upon the subject of the insurability of each and every benefit member admitted to membership.”

It cannot be said that the plaintiff society in this case furnished the defendant with all the information which it had bearing upon the question of the insurability of Comes. If the nature of their contract called for the utmost good faith on the part of the plaintiff society, that obligation required the plaintiff to have disclosed to the defendant all the information it had regarding the state of Comes’ healh.

Mr. Justice Story, speaking for the Supreme Court of the-United States, in the case of McLanahan v. Universal Insurance Co., 1 Pet. 172, said:

“A contract of insurance has been said to be a contract uberrimoe fidei, and the principles which govern it are those-of an enlightened moral policy. The underwriter must be-presumed to act upon the belief that the party procuring insurance is not at the time in possession of any facts material’ to the risk which he does not disclose and that no known loss has occurred, which by reasonable diligence might have been communicated to him.”

And Lord Mansfield said in the case of Pawson v. Watson,. Cowp. 785, that—

“In a representation to induce a party to make a contract,, it is' equally false for a man to affirm that of which he knows-nothing as to affirm that to be true which he knows to be-false.” See, also, Stipchich v. Metropolitan Life Insurance Co., 277 U. S. 311.

The plaintiff society did not discharge the full measure of' its duty to the defendant by saying at the time it made the-application that Comes was in good health to the best of its knowledge and belief, when.it knew that he had been suffering from a serious illness and even casual inquiry would have-disclosed that he was still suffering from it. Its statement that Comes was in good health to the best of its knowledge- and belief was intended by the company to be more than an-idle phrase. It should have made a full disclosure or have-made some inquiry. To hold otherwise would open wide the-door to fraud. This might work "a hardship on the plaintiff',. but it would be an even greater hardship on the defendant to hold otherwise. The hardship must fall somewhere and as between the two, the insistent voice of justice demands that it fall upon him who created this situation and who might have avoided it by the exercise of a little care and a modicum of good faith.

It was not necessary in order to avoid its liability with respect to the death of Comes that the defendant tender to plaintiff the entire premium. It is sufficient that it tendered a proportionate part of the premium, for the simple reason that the defendant company had carried the liability of the insurance of the other forty-five members of the society, who were covered by this contract, during the entire period mentioned therein. In other words, the defendant company was subjected to a liability of $500 for each one of the other forty-five members if death occurred during the year. To compel the defendant company to return the entire premium under such circumstances would be manifestly unjust and not warranted either by reason or authority.

There will, therefore, be judgment for the defendant.


author: Peretti, J.

text:
    Passaic District Court.
    SUPERIOR FINANCE CORPORATION, A CORPORATION, PLAINTIFF, v. JOHN A. McCRANE MOTORS, INCORPORATED, A CORPORATION, OR IN THE ALTERNATIVE, JOHN A. McCRANE AND JOHN A. McCRANE MOTORS, INCORPORATED, A CORPORATION, AND JOHN A. McCRANE, JOINTLY, DEFENDANTS.
    For the plaintiff, Feder & Binzler.

    For the defendants, Cohn & Kohlreiter.

   Peretti, J.

This action is brought by the plaintiff to recover the balance due upon a note given by May and Peter Carpardo to the defendant, John A. McOrane Motors, Incorporated, to secure the payment of the purchase price of a Eeo truck which the John A. MeCrane Motors, Incorporated, sold to the Carpardos under a conditional - sales contract.

John A. McOrane Motors, Incorporated, the payee of the note, assigned the conditional sales contract to the plaintiff, and also endorsed the note, with a provision guaranteeing the payment, and negotiated the note before maturity, for value and without notice to the plaintiff, so that the plaintiff is a Iona fide holder for Value.

There being default in the terms of the contract, the plaintiff repossessed the Reo truck in accordance with the provisions of the conditional sales contract and the Uniform Conditional Sales act, as adopted in New Jersey. Pamph. L. 1919, ch. 210.

The amount claimed to be due represents the deficiency-resulting after the resale of the car by the plaintiff, the proceeds of the sale not having been sufficient to defray the expenses thereof, or the expense of retaking, keeping and storing of the car.

Since the enactment of the Conditional Sales act, the courts of those states having adopted the act have held, without exception, that the buyer under the conditional sales contract (or anyone else who has succeeded to the obligation of the buyer) remains liable after such resale for any deficiency.

Continental Guaranty Corporation v. People’s Bus Line, Incorporated, a Delaware case reported in 117 Atl. Rep. 275, is authority for the rules of law which permits the conditional seller to sue for the deficiency where the Conditional Sales act contained such a provision regardless of the statute; Hare & Chase of Wilmington, Incorporated, v. Hutchinson et al., reported in 138 Atl. Rep. 611, Judge Eodney, delivering the opinion of the Superior Court commences:

“This case is largely controlled by Continental Guaranty Corporation v. People’s Bus Line.”

The only point raised in the brief filed by counsel for the defendants is, in substance, that the sale was held more than thirty days after the retaking of the car, and that in that respect, the Conditional Sales act was violated, thereby releasing Carpardos from liability, and that by operation of law, the defendant John A. McCrane Motors, Incorporated, is also released from liability.

According to my recollection of the evidence, the sale did not take place more than thirty days after the retaking.

The question raised by the defendants is, however, inapplicable, because this suit, as already indicated, is not predicated upon the conditional sales contract, but upon a note which is a separate and distinct obligation. The note contains no reference to the Conditional Sales act, or any provision relating to retaking of the car, or any resale, and being a contract, it cannot be altered or modified by parol evidence. Stiles v. Vanderwater, 48 N. J. L. 67; 4 Atl. Rep. 658.

At the trial of the case, counsel for defendant consumed considerable time contending the plaintiff made an election of remedies, and thereby lost the right to sue upon the note. However, no mention is made of it of the point in his brief. Undoubtedly, he is convinced, there is no legal basis for the support of the argument.

The law is where a conditional sales contract contains a provision reserving unto the conditional seller the right to sue for a deficiency, the repossession proceedings does not constitute an election of remedies. The Uniform Conditional Sales act (Pamph. L. 1919, ch. 210) also contains an express provision reserving unto the seller the right to sue for a deficiency after retaking the property.

In the note case the plaintiff has the right to sue for the deficiency both under the express conditions of the Conditional Sales act (see Continental Guaranty Corporation v. People’s Bus Line, Incorporated, supra).

Judgment is awarded in favor of the plaintiff and against the defendants for three hundred and sixteen dollars and seventy ($316.70) cents, together with interest amounting to ninety-six dollars and sixty ($96.60) cents, making a total of four hundred and thirteen dollars and thirty ($413.30) cents, besides costs of suit.