author: Per Ctjriam.

text:
    HERMAN R. PRELL, MORRIS SINGER AND SAMUEL SINGER, EXECUTORS OF THE LAST WILL AND TESTAMENT OF MAX SINGER, DECEASED, PLAINTIFFS-RESPONDENTS, v. SAMUEL SLAFF, DEFENDANT-APPELLANT.
    Submitted January 26, 1934
    Decided May 21, 1934.
    Before Justices Parker, Lloyd and Perskie.
    Por the appellant, Harry Loeb.

    Por the respondents, Samuel M. Mann.

   Per Ctjriam.

Of the six specifications of alleged error filed in this cause and relied on by the appellant, only one is even debatable as to sufficiency.

The second specification is that the judgment was against the weight of evidence; the third, that the plaintiffs failed to prove by a fair preponderance of the evidence that the defendant was liable in the amount of the judgment; the fourth, that the court erred in finding at the conclusion of the whole case in favor of the plaintiffs, when it should have found in favor of the defendant; the fifth, that the conclusions of the court below were contrary to law; the sixth, because the conclusions of the court below were contrary to the facts.

The fourth, perhaps, might be supportable if appropriately argued, but we think that it is not appropriately argued as will hereafter appear.

The first specification is that the court erred in allowing certain copies of letters alleged to have been written and mailed by the attorney for the plaintiffs to the defendant to be read in evidence, where it appeared that no notice to produce the originals of said letters had been served either upon the defendant or his attorney. This point we proced to consider.

The suit was for the sum of $500, which plaintiffs claimed the defendant had promised to pay plaintiffs if the latter would abstain from bidding at a foreclosure sale and thereby facilitate the purchase of the property by the defendant at a nominal bid, the object, as stated, being to save sheriff’s fees. The proof tended to show the making of this agreement by parol; that the plaintiffs had performed their part of it by staying away from the sale, both personally and by attorney, and that the defendant had thereby been enabled to become the purchaser at a nominal bid, but that defendant had refused to pay as agreed. One of the issues of fact was whether the defendant had made any such agreement. In support of the plaintiffs’ claim that defendant had so agreed, the plaintiffs undertook to show that on two occasions their attorney had mailed a letter to the defendant demanding payment of the $500. Plaintiffs’ attorney was sworn as a witness and on cross-examination testified as follows:

"Q. Did you write any letters to Mr. Slaff?. A. I certainly did. Q. Did you ever have any reply to any of these letters? A. Ho. Q. Do jmu consider them of any importance? A. I know that he did deny receiving them. That is what lie says. Q. Well, haven’t 3rou got copies of them? A. Do you want them? Q. You have copies of the letters have- A. Do you want them? Q. Do you have copies of the letters, yes or no—I am not here to be interrogated? A. Yes.”

At the conclusion of the testimony of this witness plaintiffs rested, counsel saying: “That is all, with one exception. Counsel has borne out in cross-examination that letters were sent by this witness acting for the plaintiffs. Ho notice to produce was served and we should like to offer them in evidence, if your honor please.”

The printed book does not show that they were received •or that any ruling was made on the offer at that time.

Defendant was then sworn as a witness and on his direct ■examination testified on the point in question as follows:

“Q. Did you receive any letters demanding payment of this $500- A. Not that I know of. Q. (Continuing) from Mr. Mann? Did you get any bills from Mr. Mann? A. No.”

On cross-examination he was asked:

“Q. Coming back to the place where you received your mail, Mr. Slaff. I ask you, on or about July 14th of this year, did you receive a letter from Mr. Mann? A. I wouldn’t say. I don’t remember that I did. Q. I will read it to you. Did you ever receive a letter which read as follows:”
(Objected to and not answered.)
“Q. Do you deny you received it? A. I don’t know anything about it. Q. I will read to you the following letter written on July 13th, addressed to you c/o Superior Finance Corporation, 625 Main street, Passaic.” Counsel then read a letter and asked: “Did you or did you not receive that letter? A. I did not receive it. Q. I read to you.”

Objected to, and counsel for defendant replied: “You have denied them, Mr. Loeb, and I think I have a right to read them.

“Mr. Loeb—I haven’t denied anything.
“Mr. Krieger—The witness has denied them.
“Mr. Loeb—1 object to their being read. Exception.”

The letter of July 21st was then read and followed by the question: “Did you or did you not receive that letter? A. No.”

The rule of evidence that requires notice to produce relates to documents shown to be in possession of the other party, or admitted to be in his possession, or presumed to be in his possession, where that presumption is not rebutted by denial. If the document is not in the possession of the other party or, what amounts to the same thing, under his control the rule regarding notice to produce seems to be inapplicable.

In Wigmore on Evidence, § 1203, the rule on this phase of the matter is thus stated: “Where by the proponent’s evidence the document is traced to the opponent’s hands—as by the presumption from mailing—and the opponent denies the receipt of it, then, even taking the opponent’s testimony at its highest value, the whereabouts of the document becomes an unexplainable mystery, and the case is virtually one of loss; so that the proponent should be allowed to prove the contents without having given notice; while, if we take the opponent’s testimony as false and assume that he has in truth received the document, his denial is equivalent to an express refusal to produce, which equally puts the plaintiff in the position of being unable to obtain the document, so that notice is unnecessary.” The text seems to be supported by such cases as Roberts v. Spencer, 123 Mass. 397, and Dunbar v. United States, 156 U. S. 185 (at p. 194).

The courts appear to be not entirely at one on the point, but the foregoing reasoning seems to be logical. We are not aware of any case in this state directly apposite, although in Durbrow v. Hackensack Meadows Co., 77 N. J. L. 89 (at p. 91) ; 71 Atl. Rep. 59, it was deemed by this court, so far as one of two parties was concerned, that such party denied having the document in question and in effect denied its existence.

In Den v. M’Allister, 7 N. J. L. 55, the discussion seems to have proceded upon the postulate that a notice to produce is given to one actually or presumably in possession of the original document desired to be proved.

Examining the foregoing quoted testimony, which we think is all that the case contains upon the subject, we think it sufficiently appeared that the defendant, to whom it was alleged the two letters had been mailed, substantially denied having received them or knowing anything about them; and consequently if the rule laid down in Wigmore is to be followed, the plaintiffs, upon such denial, were entitled to put them in evidence, which in effect they did by reading them to the court. We do not wish to be understood as approving of the tactics pursued in the present case by way of reading the letters allowed, and content ourselves with intimating the rule as above. We incline to think that there was no error, therefore, in permitting the letters to be read in evidence, as in effect they were.

This result on the only point which seems to be adequately raised, as well as argued, would seem to call for an affirmance of the judgment below.

No question was raised in the trial court, nor is any raised here, touching the legal validity of the contract sued on, and we confine the decision to the case as presented.


source: Caselaw Access Project

author: Pee Cijeiam.

license: Public Domain

text:
    THOMAS L. PECK, PROSECUTOR, v. THE TOWNSHIP OF NEW BARBADOES, SOMETIMES KNOWN AS THE CITY OF HACKENSACK, AND THE HACKENSACK IMPROVEMENT COMMISSION, SOMETIMES KNOWN AS THE CITY OF HACKENSACK, RESPONDENTS; ROBERT ALTSCHULER, WILDER M. RICH, FRANCIS C. KOEHLER, RICHARD LAMB, DEFENDANTS.
    Submitted January 27, 1934
    Decided May 21, 1934.
    Before Brogan, Chief Justice, and Justices Trenchar» and Heher.
    For the prosecutor, George F. Losche.

    For the respondents, Donald M. Waesche.

   Pee Cijeiam.

This writ of certiorari was directed to the township of New Barbadoes and the Hackensack improvement commission and purports to bring up for review “certain proceedings taken by the so-called city council of the so-called city of Hackensack on the first day of August, 1933, whereby the board of assessors of the township of New Barbadoes , of which prosecutor is a member was abolished * * *;” and a resolution passed appointing one Francis 0. Koehler as assessor.

The return to the writ is made by “Ethel M. Hoyt, city clerk of the city of Hackensack.”

The prosecutor seeks to re-establish the board of assessors of the township of New Barbadoes and to reinstate himself as a member of that board and to vacate the appointment of Koehler as assessor of the city of Hackensack.

We think that his purpose cannot prevail.

It appears that the city council of the city of Hackensack is the legal successor to the Hackensack improvement commission which commission was incorporated by special act of the legislature in 1868. Pamph. L. 1868, p. 564. The boundary lines of the Hackensack improvement commission were from time to time extended by statute until they were finally made co-extensive with the boundaries of the township of Now Barbadoes except for a portion of the township lying in the borough of Little Ferry. Pamph. L. 1896, ch. 138, p. 196. In November, 1921, the township of New Barbadoes changed its name to city of Hackensack; on May 23d, 1933, the city adopted the municipal manager form of government; the present city council was elected June 20th, 1933, organized on July 18th, 1933, and on August 1st, 1933, appointed Koehler assessor.

But nevertheless the prosecutor’s contention is that chapter 86 of Pamph. L. 1924, as amended by chapter 229 of Pamph. L. 1925, placed a mandatory requirement upon the city to have a board of assessors, and that hence the action of the city' council was void.

We think not.

This act, upon which the prosecutor relies, applies only to townships governed by an improvement commission, the boundaries of which improvement commission are coextensive with the boundaries of such township.

As pointed out, on November 8th, 1921, the legal voters of the township of New Barbadoes under authority of article 2 of chapter 152 of the laws of 1917 voted to change the name of that municipality to “The City of Hackensack.” The second paragraph of said article 2 provides that that “in case a majority of the votes cast upon this subject at such election shall favor the change of name, such name shall thereupon be so changed and the name adopted shall be and become the official title of the municipalityTherefore the corporate title of Hackensack is now “The City of Hackensack.”

It was held in Herman v. Gutlenberg, 63 N. J. L. 616; 44 Atl. Rep. 758 (at p. 621), that the legislature had the right to classify municipalities ££by their style of incorporation;” that “the difference between thenr is largely one of nomenclature,” and that “the question, therefore, is settled that it is for the legislature, not the courts, to characterize the municipalities of the state; and the courts cannot inquire whether a municipality or class of municipalities is titular only. The classification of the legislature in that regard is conclusive.”

Again in Wygant v. Hackensack Improvement Commission, 89 N. J. L. 454; 98 Atl. Rep. 477, the Supreme Court said:

“The Court of Errors and Appeals in Herman v. Guttenberg, supra, recognized commissions such as this defendant as £a class by themselves/ The act of 1868 constituting the commission, provides that it shall be entitled £The Hackensack Improvement Commission/ This differentiation and recognition of defendant as a distinct class for legislation and judicial decision, makes it manifest the defendant stands with such other municipalities as are indicated by its peculiar nomenclature as £a class by themselves/ ”

That makes Hackensack a “city” for the purpose of legislation. It is not only a “city” in name. It is a “city” in fact; it has every characteristic of a “city” and has been generally recognized as a city for years, and has been a city in name since November, 1921. There has been no township committee of the township of N ew Barbadoes for many years.. The Supreme Court in Wygant v. Hackensack Improvement Commission (1916), 89 N. J. L. 454 (at p. 457) ; 98 Atl. Rep. 477, held that the Hackensack improvement commission was the legal successor of the township committee of the-township of New Barbadoes.

Moreover, as we have pointed out, the city of Hackensack, is governed by a city council and a city manager under chapter 113 of the laws of 1923 as amended and supplemented.

Now the act of 1924 and its amendment upon which the-prosecutor relies, applies only to townships "governed by an improvement commission the boundaries of which improvement commission are coextensive with the boundaries of such township.” This act provides that in all municipalities falling within this classification, assessments for the purpose of' collecting and raising taxes are to be made by a board of three assessors who are “appointed by the mayor with the consent of the improvement commission.” The act provides further that the said assessors “shall not be removed from such office,, except upon a majority vote of the improvement commission after a hearing upon written charges.”

The prosecutor contends that since he was not removed1 from office by a majority vote of the "improvement commission” after a hearing upon written charges he is still an assessor and entitled to compensation as such. If this contention is correct, which it is not, then he never can be removed from the office of assessor by the governing body of' Hackensack because the Hackensack improvement commission is now abolished and non-existent.

On May 23d, 1933, at a special election, the legal voters-of the city of Hackensack voted to adopt the municipal manager form of government provided for in the act of the legislature entitled “An act relating to, regulating and providing for the government of municipalities, except counties, by a. municipal council and a municipal manager.” Pamph. L. 1923, ch. 113. The petition requesting the special election which is entitled “Petition for the adoption of the municipal manager plan of government for the city of Hackensack,” is addressed to the “clerk of the city of Hackensack,” and is the petition of the “legal voters of the city of Hackensack.” The Municipal Manager act provides that “any municipality which shall have adopted this act shall be governed by a municipal council and municipal manager * * *.” The present city council was elected under the Municipal Manager act on June 20th, 1933, and took office and organized on July 18th, 1933. Upon their induction into office the Hackensack improvement commission was ipso fado abolished. The Municipal Manager act provides that:

“When this act shall have been adopted by any municipality and a municipal council shall have been elected and organized, as provided herein, no act, or any provision thereof, whether general or special, which affects the government of such municipality and which is contrary to or inconsistent with the provisions of this act, shall thereafter apply to such municipality.” * * *

Upon the adopton of this act and upon the organization of the municipal council elected under this act, the governing body or bodies and all other executive and legislative bodies shall be ipso fado abolished; and the term of all councilmen or aldermen, or commissioners or trustees and all other elective officers shall immediately cease and determine; * * *.”

It is, therefore, obvious that chapter 86 of the laws of 1924 as amended by chapter 229 of the laws of 1925 does not apply to the city of Hackensack.

We therefore conclude that the writ must be dismissed.

We have not found it necessary or desirable to consider the question whether or not the writ of certiorari, in any event, is the proper remedy to accomplish the result which the prosecutor seeks, nor have we seen fit to examine numerous other objections argued by the respondents against this proceeding.

The writ will be dismised, with costs.


author: Pbb Cubiam.

text:
    ALFRED HORAN AND ALICE HORAN, PLAINTIFFS-RESPONDENTS, v. LOUIS HARRIS AND MICHAEL EISENBERG, DEFENDANTS-APPELLANTS.
    Submitted January 27, 1934
    Decided May 21, 1934.
    Before Brogan, Chief Justice, and Justices Teencrard and Heheb.
    Por the appellants, Collins & Corbin (Edward A. Marlcley, of counsel).
    Por the respondents, Andrew 0. Wittreich.

   Pbb Cubiam.

Alice Horan, one of the plaintiffs below, while an invitee on premises owned by the defendant below, tripped over a defective and loose brass nosing attached to a step on a staircase, which it was averred was a common passageway, within the control of the defendants, and which they negligently failed to repair after reasonable notice of such defect; and such plaintiff, and her husband, also a plaintiff, recovered a verdict and judgment on account of the injury received by the wife.

The defendants (hereinafter called the landlord) appeal and contend that the trial judge erred in refusing to nonsuit and to direct a verdict for the defendants.

The landlord argues first that there was no evidence tending to show that he had notice of the dangerous defect on the stairs before the accident, and, hence, he should have prevailed on his motions on this ground.

We think it was competent for the jury under the evidence to find that the landlord had such notice.

There was evidence tending to show that the brass nosing was loose long before the time of the accident and that the landlord was told of the condition of the steps and the landlord said “he would not fix it.”

Moreover, after the denial of the defense motion for nonsuit the plaintiff Alice Horan was called in rebuttal and testified that after the accident she talked with the landlord. Her testimony was:

"Q. Mrs. Horan, do you know Mr. Harris who was on the stand here? A. That gentleman there, yes, sir. Q. That gentleman? A. Yes, sir. * * * Q. And did you have a talk with him? A. The young lady was there and I asked the young lady.”
Mr. Markley—“I object. Was this gentleman there?”
The witness—“That gentleman there. She said Mr. Harris and I think she said another name, too. I asked where he was, was he there, and she said no. So he walked in. She said, ‘this is Mr. Harris now/ So I said, ‘Mr. Harris, do you know the condition of that stairs? Is that your duty?5 And he looked at me and said, ‘yes. What of it?’ ‘Well/ I said, ‘I fell down the stairs/ He said, ‘what the hell do I care/ ‘Well/ I said, ‘you are responsible for the stairs/ and I walked out and he stood and laughed at me.”

Of course the question of the truth of that testimony was for the jury. It bore on the question of notice to the landlord of the condition of the stairs. Because this testimony came in subsequent to the motion for nonsuit does not impair its probative value. A refusal to nonsuit for failure of proofs will not justify a reversal if the defect be supplied by evidence thereafter taken during the progress of the cause.

The landlord seems to argue in this connection that because a tenant, with the acquiesence of the landlord, undertook to fix the nosing after the tenant had complained to the landlord of its defective condition and the latter had refused to repair it, that thereby the landlord is relieved of responsibility. But such is not the law. The rule is that “the landlord cannot shift the responsibility assumed by him to his tenants to make the common ways and equipment reasonably safe in so far as ordinary care can effect that result. Hussey v. Long Dock Railroad Co., 100 N. J. L. 380; 126 Atl. Rep. 314.

The landlord also contends that there was no evidence tending to show that the plaintiff Mrs. Horan at the time of the injury was using a common passageway which was under the control of the landlord. We believe that there was. The evidence tended to show this to have been the situation: The building in question was a three-story building. The landlord occupied the first or ground floor as a store. He leased to Professor Fred Nicholson the second floor for a dancing studio which the professor conducted there. Professor Nicholson’s holding was a yearly tenancy. At that time there was another tenant occupying typical living apartments on the third floor. Leading into the building from the street was a vestibule from which there was an entrance to the landlord’s store on the first floor, there being also another entrance to the store from the street. Leading from the vestibule was a stairway running to the second and third floors. Later, and still before the accident, the landlord dispossessed the tenant on the third floor and distrained for rent, and Professor Nicholson and his wife, who had theretofore lived elsewhere, bought from the landlord the furniture previously owned by the third floor tenant, and moved in and lived in the third floor apartment, and Mrs. Nicholson’s testimony is definite to the effect that the letting of the apartment on the third floor was to her and her husband. They held under a monthly tenancy. Still later the accident here in question occurred under the following circumstances: Mrs. Floran, the plaintiff, had visited the dancing studio of Professor Nicholson’s on the second floor for the purpose of arranging for dancing lessons for her child, and it was while descending the stairs from the dancing studio to the ground floor that she tripped over the defective nosing on the stairway and was injured.

We think it was competent for the jury to infer from this evidence and from the admissions of the landlord hereinabove referred to that the injury occurred on a common passageway under the control of the landlord and in his legal possession and one used by the tenants as appurtenances to the property demised to them.

The judgment will be affirmed, with costs.


author: Per Curiam.

text:
    TIMOTHY O’DRISCOLL, PROSECUTOR, v. FRED E. B. SCOTT, HERBERT SATTERFIELD, ANDREW L. STIEGLITZ, HYMAN ABRAMS, JOHN ALBERS, ARTHUR HARRIS, EDWARD SACHAR, JOSHUA MINER, B. CALDWELL DAVIES, C. BENSON WIGTON, SAMUEL DAVIDSON AND WILLIAM STRONG, Jr., BEING THE MAYOR AND COMMON COUNCIL OF THE CITY OF PLAINFIELD, AND GEORGE B. WEAN, CITY CLERK, RESPONDENTS.
    Submitted January term, 1934
    Decided May 26, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    Por the prosecutor, Saul Nemser (Joseph Moritz, of counsel).
    Por the respondents, William Newcorn.

   Per Curiam.

The prosecutor, by this writ, brings up for review certain proceedings that were had before the mayor and common council of the city of Plainfield on December 29th, 1932, as well as resolutions of that governing body finding him guilty of certain charges and dismissing him from the police department of the city of Plainfield. Three charges were made against him which resulted in his dismissal. They were “intoxication on or off duty; indecent, profane or harsh language; conduct not becoming an officer and a gentleman.” Admittedly he was served with a copy of what is called in the record “the complaint,” which also contained an order suspending him without pay until the meeting of the common council.

The return to the writ contains a copy of the charges made by the chief of police and an extract from the minutes of the governing body reciting that “the board of police did hear said complaint and did adjudge that the said complaint be referred to the common council for hearing * * *.” The minutes also ratified the action of the said board of police of the city of Plainfield in thus referring the matter to the governing body, and a resolution was then adopted that the members of the common council proceed with the hearing. Officer O’Driscoll pleaded “not guilty;” certain witnesses were heard for the prosecution, others for the defense, a summation followed, the governing body recessed after which resolutions were adopted finding him guilty and dismissing him from the police force.

The prosecutor relies upon but one point for a reversal of these proceedings and that is that the resolutions adjudging him guilty and dismissing him from the police force are legally ineffectual because they do not recite the substance of the testimony against the prosecutor upon which his conviction and removal were based. This proceeding was of course summary in character. The police officer, under charges for violation of the rules of the department, under the law, has no right to a trial by jury and no right of appeal. A review in this tribunal is his sole remedy. How in order that the prosecutor may have that review, manifestly the substance of the evidence against him, in support of the charges, should be here before us so that it can be reviewed. Here we have no such record by which we may determine whether or not he was lawfully convicted of these charges. That the record must contain a statement of the substance of the evidence given in a ease of this character, where the proceeding ■ is summary in nature, has long been the recognized rule. Sawicki v. Keren et al., 79 N. J. L. 382; 75 Atl. Rep. 477.

This class of case where the accused is not entitled to a jury trial and there is no provision in the law for appeal, as here, makes manifest the soundness of the common law rule that in such cases the substance of the evidence upon which a summary conviction rests must be contained in the record of such conviction. Marter v. Repp et al., 80 N. J. L. 530; 77 Atl. Rep. 1030; affirmed, 82 N. J. L. 531; 81 Atl. Rep. 1134.

The cases relied upon by the respondents, namely, Reilly v. Jersey City, 64 N. J. L. 508; 45 Atl. Rep. 778, and Ayers v. Newark, 49 N. J. L. 170; 6 Atl. Rep. 659, and the other cases mentioned in the brief, plainly have no applicability.

Eespondents rest on the further point that the prosecutor was guilty of laches in that application for this writ was not made until eight months after the resolution of dismissal. Our examination of the depositions taken under the writ leads us to the conclusion that this charge of laches is not well founded.

The resolutions finding the prosecutor guilty of these charges and dismissing him from the police force of the city of Plainfield will therefore be set aside, with costs.


author: Pee Cttbiam.

text:
    ROSE M. CONSTANTINE, ADMINISTRATRIX AD PROSEQUENDUM, ETC., PLAINTIFF-RESPONDENT, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted January term, 1934
    Decided May 26, 1934.

      Before Bbogan, Chieb Justtce, and Justices Tkenciiabd and Het-ieb.
    Por the appellant, Frederic B. Scott.

    Por the respondent, Alexander Simpson.

   Pee Cttbiam.

This is an appeal from a judgment recovered by the plaintiff below, in the Hudson County Court of Common Pleas. The plaintiff is the administratrix ad pi-osequendum of the estate of William H. Hoelz, who was killed by a railroad train of the defendant company at a point west of what is known as the Bergen tunnel in Jersey City, New Jersey. At that point the contracting firm of Hatzel and Buehler, Incorporated, was engaged in doing some work on the electrification of the defendant railroad company. The decedent, an employe of the contracting firm, was engaged in unloading equipment into a substation of the railroad company. The equipment, consisting of machinery and parts thereof, was heavy and necessitated the use of rigging to properly unload it into the station. A freight car, from which this machinery was being unloaded, was standing on a siding opposite the building and part of the apparatus, viz., a guy-line, used for unloading the machinery was attached to what is known as “operating track No. 3,” which track apparently accommodated outgoing railroad trains.

There was testimony to the effect that this rigging was attached to that outbound track and other testimony that it was not. The determination of the jury, however, seems to have been that it was and that the decedent, at the time of the accident, was engaged in removing the tie rope from the rail.

The grounds of appeal raise several questions, the first one of which is the right of the decedent to have been where he was at the time he received the fatal injuries for which the administratrix brought suit. There is also involved the question as to whether or not the administratrix, an aunt of the decedent, suffered pecuniary loss by his death and further question that the court below should have directed a mistrial because of remarks made by the plaintiff’s counsel in summation to the jury which this appellant says were so prejudicial to its interests that the failure to declare a mistrial amounted to an abuse of discretion on the part of the court.

We shall consider the points in the order of their presentation. The first ground argued is that the decedent was not on the appellant’s premises at that point, either by invitation expressed or implied, and therefore a verdict should have been directed in favor of the defendant. This point becomes significant because the record discloses that in the contract between the defendant and the contractor, in whose employ the decedent was, we find the following: “The contractor shall under no circumstances use, or cause to be blocked, any operating track of the railroad company, unless specifically authorized by a written permission of the engineer. When the use of any operating track is desired, a notice shall be given the engineer forty-eight (48) hours in advance. The use of an operating track will not be allowed unless, for some unforeseen reason, due to the nature of the work, it is impossible to carry on the work without the use thereof.”

It is not contended by the appellant that this provision of the contract was brought home to the decedent. Now quite properly the jury might have inferred, from the testimony, that the unloading of the machinery at this substation had gone on for quite some time; that on this work it had been the custom to use a tie rope fastened to one rail of the operating track in such a way that a railroad train would not cut this tie rope, and that this method of steadying the unloading apparatus had been used for several weeks; and that the decedent, at the time he met his death, was engaged in unfastening this tie rope.

It is argued, however, by the appellant that the decedent was a licensee and not an invitee and that the defendant below did not owe him the duty of exercising reasonable care but only the obligation of refraining from willful and wanton injury. We think that from the testimony in the case it was a jury question as to whether or not he was an invitee since there was testimony in the case that this particular method of operation by which the plaintiff met his death, had been invoked for a sufficient length of time to charge the defendant below with actual or constructive knowledge of it.

The general rule is that where the occupier of lands engages an independent contractor to do work upon his premises, an employe of the contractor while executing the work is there presumably by the request of the occupier and is an invitee and not a mere licensee. Riley v. Jersey Leather Co., 100 N. J. L. 300 (at p. 302); 126 Atl. Rep. 457, and cases cited.

It is admitted that the point where the decedent was killed was immediately contiguous to the place where the decedent unquestionably had the right to be, for of course it cannot be gainsaid but that he had the right to be on the land which was occupied by the side track on which the freight car was stationed, from which he was helping to unload the machinery to be used in the electrification of the defendant’s road; that there was a limited invitation agreed upon between the contractor and contractee may be true but nothing in the case brought knowledge of this home to the decedent. He certainly had the right to assume he had the protection of an invitee as far as the side track was concerned and, under the circumstances surrounding his work, the question of his right to go upon the land immediately adjacent under implied invitation was at least one for the jury. Phillips v. Library Co., 55 N. J. L. 307; 27 Atl. Rep. 478; Murphy v. Core Joint Concrete Pipe Co., 110 N. J. L. 83 (at p. 86); 164 Atl. Rep. 262, and cases cited.

The second ground for reversal urges that there was no proof of pecuniary loss. We find the contrary to be the fact and that the testimony in the ease warranted the jury in finding that the money given by the decedent to his aunt, who is the plaintiff here and with whom he boarded, was more than mere payment for room and board and that he was in part her support. Batton v. P. S., 75 N. J. L. 857; 69 Atl. Rep. 164; Barnett v. Atlantic City Electric Co., 87 N. J. L. 29; 93 Atl. Rep. 108.

The final point is that the court erred in refusing to declare a mistrial on account of improper summation to the jury.

It appears that there was a provision in the agreement between the independent contractor and the railroad company whereby the railroad would be saved harmless from, among others, judgments of the character now under consideration. It is further stated that counsel, in summing up to the jury for the plaintiff, called attention to the fact that even though they should find the defendant liable, the defendant would in turn collect the amount of the judgment from the contractor. Counsel for the defendant asked for a mistrial. It appears that the contract was in evidence in its entirety and, naturally, the jury would have been entitled to take the contract into the jury room in considering its verdict. At the time the so-called objectionable remarks were made by plaintiff’s counsel, the judge had left the bench and the court stenographer had either left the courtroom or, at any rate, had not taken down the summation. Whatever may have been the fact, upon the court’s return to the bench, counsel asked for a mistrial and stated his reasons. The court refused to grant a mistrial but did then and there, first admonishing counsel, instruct the jury in strong, direct terms to disregard the statement of counsel. We have considered the argument of the appellant on this point for a reversal and conclude that this case is not at all analogous to Hughes v. English, 9 N. J. Mis. R. 28; 152 Atl. Rep. 473; Sutton v. Bell, 79 N. J. L. 507; 77 Atl. Rep. 42, or Patterson v. Surpless, 107 N. J. L. 305; 151 Atl. Rep. 754, upon which appellant relies.

We find no abuse of discretion.

The other points written down as grounds for reversal have not been argued and will be considered as abandoned. Sargeant Bros. v. Brancati, 107 N. J. L. 84; 151 Atl. Rep. 843. The judgment under review will be affirmed, with costs.


text:
    WILLIAM B. DURYEE, SECRETARY FOR AGRICULTURE OF THE STATE OF NEW JERSEY, PLAINTIFF-PROSECUTOR, v. HYMAN ZIPKIN, DEFENDANT-RESPONDENT.
    Submitted January 27, 1934
    Decided May 21, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the prosecutor, William A. Stevens, attorney-general, and Robert Peacocle, assistant attorney-general.
    For the respondent, Louis L. Hendler.

   Per Curiam.

The above named defendant, Hyman Zipkin, was brought into the District Court of the city of Hew Brunswick on a complaint for the violation of section 2 of chapter 349, Pamph. L. 1931, in that he engaged in the business of commission merchant, dealer and broker, as defined in the act, without having obtained a license as provided in the act.

The District Court judge gave a verdict and judgment for the defendant (without stating any reason), and the plaintiff obtained this writ of certiorari to review such judgment.

The plaintiff says that the verdict of the court was contrary to the evidence, and that there was no evidence to support the finding of the trial judge.

We think the point is well taken.

The defendant in his brief admits that the plaintiff proved that at the time charged in the complaint the defendant was engaged in the business of a commission merchant and that he purchased perishable agricultural products from growers on the occasion charged in the complaint, and it was proven without dispute that he was not licensed.

But the defendant now argues (and this is his only contention) that he was not required to have a license because he paid the growers by check, and he relies upon the exception to the act which reads:

“This act shall not, however, be construed to apply to any transaction in which the grower receives in cash at the time of the transaction full payment of the amount due him * * * yy

The proof was, and it was uncontradicted, that on the occasion in question that he gave growers checks (not money in hand) and that one of those checks when presented to the bank for payment was returned unpaid because of insufficient funds. That transaction was therefore not within the exception to the act. It was not a “transaction in which the grower receives in cash at the time of the transaction full payment, and it is immaterial that the returned check was paid several days thereafter. Mr. Justice Elmer in Steward v. Scudder, 24 N. J. L. 96, 101, speaking for this court, said “a sale for cash is a sale for the money in hand, at least such is the general meaning of the term.” Here the language of the exemption provision of the statute is used in that sense. The language is: “transaction in which the grower receives in cash at the time of the transaction full payment.” That the grower in the present case did not receive, and since the unimpeached evidence was uncontradicted, it is manifest that the verdict was contrary to the evidence, and there was no evidence to support the finding.

The judgment will be set aside and a new trial awarded.


text:
    TONY PETER PAUL, PLAINTIFF-APPELLANT, v. REPUBLIC VARNISH COMPANY, INCORPORATED, DEFENDANT-RESPONDENT.
    Submitted January 26, 1934
    Decided May 2, 1934.
    Before Justices Parker, Lloyd and Perskie.
    For the appellant, Abe Press.

   Per Curiam.

A careful examination of the printed book submitted in this case fails to disclose any judgment record, or any specification of the determinations or directions of the trial court with which the appellant is dissatisfied in point of law.

The appeal is accordingly dismissed.


author: Lyon, J.

text:
    Middlesex County Court of Common Pleas.
    KATHERINE KATONA, PLAINTIFF, v. THE COLONIAL LIFE INSURANCE COMPANY OF AMERICA, DEFENDANT.
    Decided June 4, 1934.
    For the plaintiff, John E. Todian.

    Por the defendant, Horace E. Barwis.

   Lyon, J.

This case was by agreement of counsel submitted to the court on an agreed state of facts which reads as follows:

“1. On or about the 13th day of July, 1926, a policy of insurance was issued to John Katona, now deceased, wherein plaintiff was named beneficiary and designated as filis wife,’ wherein it was stipulated that in consideration of the payment of $13.80 quarterly, the defendant would pay to the beneficiary therein, one thousand ($1,000) dollars immediately upon receipt of due written proof of the death of said John Katona. The said John Katona departed this life on July 9th, 1933.

2. The deceased John Katona married one Ida Katko Katona in Hungary oh March 4th, 1901. The deceased then came to America alone and stayed here until 1904 when he went back to live with his wife. One child was born in Hungary. In 1906, the deceased again came to America and resided in Carteret, New Jersey. One year later, his wife, Ida Katko Katona came to America and resided with the deceased in Carteret, where two more children of the marriage were born. In 1912, Ida Katko Katona returned to Europe and was in a pregnant condition at the time. Thereafter, another child was born in Europe. The deceased, therefore, had four (4) children by this wife, Ida Katko Katona, who are now living.

3. In 1924, the deceased went to board with the plaintiff, Katherine Katona. He had not seen or co-habited with his wife, Ida Katko Katona, since 1912. In 1926, he, the deceased, obtained in the borough of Carteret, New Jersey, a marriage license naming therein as his proposed wife, this plaintiff, Katherine Katona. This marriage license was never used. On the 13th day of July, 1926, the deceased procured the policy of insurance which is the subject of this suit, from the defendant herein. On July 22d, 1927, the deceased procured another marriage license from the borough of Carteret and a ceremony of marriage was performed by the recorder, Nathaniel Jacoby, a copy of said certificate is annexed hereto and marked Schedule A, and from that time on, the deceased lived with the plaintiff as man and wife and held her out as his wife in the community.

4. On the 27th day of May, 1932, the legal wife, Ida Katko Katona, divorced the said John Katona, now deceased, through the Koyal Court of Budapest in the name of the Hungarian holy crown, a certified copy of said decree is hereto annexed and marked Schedule B.”

The insured in this case was living with the plaintiff, to all intent and purposes as his wife, supporting her and holding her out to the world as such. He had not lived with his lawful wife since 1912, at which time she returned to Europe. In May, 1932, she obtained a divorce from him in Hungary. The insured had not seen or cohabited with his wife since, 1912 and in 1924 went to board with the plaintiff, and from that time on apparently treated her as his wife. The insurance policy in question was dated July 30th, 1926, and named the plaintiff as beneficiary as “Katherine Katona, his wife.”

It is quite clear that under the circumstances the words “his wife” were merely a description of the person and that it is immaterial whether or not she was his lawful wife. Doney v. Equitable Life Assurance Society, 97 N. J. L. 393.

Defendant, however, defends upon two grounds: first, that the plaintiff had no insurable interest in the life of the deceased, and, second, that there was fraud in the making of the contract.

As to the ground that the plaintiff had no insurable interest in the life of the deceased, the defendant contends, on the authority of the footnote in 37 C. J. 385, that the eases in New Jersey, which hold that no insurable interest is necessary, may be regarded merely as die la.

I do not regard those cases as such. In the case of Trenton v. Johnson, 24 N. J. L. 576, the court passes squarely on the principle, basing its decision upon the nature of the contract itself. It holds that the English courts which held that an interest in the assured was required was founded, not on the common law, but on the statute of 14 Geo. 3, c. 48. The opinion says: “This statute not extending to Ireland, the courts in that country have held in several recent cases, that at the common law, policies of insurance are valid without any interest.” Later in the opinion Mr. Justice Elmer says as follows: “I confess, however, that whatever might be my opinion as to the expediency of a statute like that in England, before quoted, I must agree with the Irish courts in holding that such is not the law.” He further states as follows: “Modern experience has proved the value of insurances upon the insurer’s own life, or upon the life of another, upon whom the insurer may be dependent, or in whose life he has a real or supposed interest. And it is worthy of notice, that even in England since the statute, so great is considered the injustice of requiring the continued subsistence of an insurable interest, that in practice it is disregarded, and the offices find it to their interest, and are in the common practice of paying, without any inquiry as to the interest.”

The case of Vivar v. Knights of Pythias, 52 N. J. L. 455 (at p. 465), seems to be directly in point, not only as to the question of insurable interest, but also upon the question of fraud, the other point raised by the defendant.

In that (¡ase the application stated that the benefit was to be made payable “to my wife Emily Louisa Vivar,” and the certificate sued on was made payable to “Emily Louisa Vivar, his wife.” The trial judge rejected evidence offered by the defendant to show that, before and at the time of the plaintiff’s marriage to Vivar, he had a lawful wife living, and both he and the plaintiff knew it. The defendant in that case while admitting that the plaintiff was the person intended by the contract, yet insisted that her being Vivar’s lawful wife was made a condition of the obligation, that as a part of the contract Vivar warranted the existence of such relationship. The court made a distinction between a warranty and a representation, which distinction must apply to the case at bar, because the policy here says that “all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties.”

The court then goes on to discuss the question of fraud and, quoting from Parsons on Contracts, says: “It is obvious that the fraud must be material to the contract or transaction which is to be voided because of it,” and then points out that the misrepresentation was not material to the contract, and uses the following language which is pertinent to the case at bar. “It seems manifest that a subject thus committed to the control of the insured was not material to the contract of the insurer, nor so regarded by the insurer, and that if Vivar had declared Emily Louisa Vivar to be not related to him, as the lodge now alleges the truth to have been, the contract would have been made on precisely the same terms as at present.”

The court then gives special attention to the question of an insurable interest and holds as follows: “In Hew Jersey, the tendency of judicial opinion seems to be in favor of the proposition that the assured need not have an interest in the life insured in order to support the contract of insurance.” And further: “Our conclusion is, that the relationship of Vivar to the plaintiff was not material to the contract, either in fact or in contemplation of the insurer, and that, therefore, the falsity of War’s statement regarding it could not invalidate the insurance.”

It is quite clear, therefore, that the plaintiff is entitled to the amount of the insurance policy, and judgment should go accordingly for the sum of one thousand dollars ($1,000) with interest from the date upon which proof of death was given to the defendant, with costs.


author: Backes, Y. C.

text:
    Davib T. Wilentz, attorney-general of the State of New Jersey, complainant, v. Sears, Roebuck & Company, a corporation, defendant.
    [Decided June 15th, 1934.]

      Mr. J. Raymond Tiffany, for the complainant.

      Messrs. Lum, Tamblyn «£- Fairlie, for the defendant.
   (The bill by the attorney-general seeks to enforce “The code of fair competition for the retail rubber tire trade in the State of New Jersey,” against Sears, Roebuck & Company, by compelling them to comply with the code in respect of sales prices fixed by the code, which are higher than the national code, with which Sears, Roebuck & Company are complying.)

Backes, Y. C.

(Orally.) I should hesitate to dispose of the cause upon the purely technical defect that the governor failed to certify certain essential facts required by the statute in adopting the code with which we are dealing, nor will it be disposed of upon constitutional grounds. It will be assumed that the legislature had the power to do what has been done, that it was done in a constitutional manner, that the title is adequate and that the legislature had the power to delegate to the governor the duties it imposed upon him. These questioned matters may go unanswered. The point decided is that the code adopted under the statute is fundamentally defective. The purpose of the act is, as its title indicates, to co-operate with the federal government under the national act, which has for its object national recovery from the long depression. One of the provisions, substantially, is that the federal code shall be the code of this state. That is obviously vicious legislation. We cannot draft the laws of another sovereignty, another state or of the nation, as the law and the guide for our people. Our legislature must declare the law. A statute, no doubt, could be passed to conform to federal regulations, but the national code cannot be made law by reference; in other words, our legislature could follow the federal government’s policy, but it, itself, must enact the law, not adopt it. Now, if we lift out of the statute, as counsel suggests, this illegal clause, will it not emasculate the title of the act and the act itself, in its aim to co-operate with the federal government in carrying out the federal design? The federal code is so interwoven with our legislation, incorporated in it, and our statute predicated upon it, that it cannot be withdrawn without destroying ours entirely. Our statute emulates the federal act, and it requires that our code be consistent with the federal code. It goes further; if the governor approves a code to carry out the provisions of the national code, his code is superseded by any the president may thereafter approve. That is the effect.

It appears by the bill that the president approved a code which calls upon the trade to sell tires not below a certain discount of a standard fixed by the Goodrich Eubber Company—the floor level of seventy-two and one-half. In disregard of the mandate of the legislature that the delegated power was one oE co-operation with the federal government, and that codes shall be consistent with the federal code (meaning substantially the same, not different), the governor approved a code of a floor level of one hundred. The power delegated to the governor was not the one he exercised; he exceeded his authority. The governor, of course, approved upon the recommendations of the acting code administrator .and the so-called code authority. There can be no injunction.

It may be that the legislature or a code authority duly created, has the power to fix prices for tires irrespective of the national code. As I read the United States supreme court opinion in the New York milk case, I think differently from counsel’s interpretation of it, that the regulation of the price of milk in New York was warranted upon the theory ■of a commodity affected with a public interest. It is my impression that the supreme court went further than that and held that if the legislative reason be the protection and the welfare of the people, it may regulate the price of any commodity. T think the opinion goes that far. I speak of it because of counsel’s argument the other day that rubber tires are not affected with a public interest, as milk is thought to be; but it would seem from that opinion that in price fixing of commodities, the commodity need not be affected with a public interest, that it is not necessarily a factor, and that governments may, to insure the safety and happiness, the comfort and welfare of its people, fix the prices of any essential article. That element, however, is not in this case and need not be dwelt upon further. An injunction will be denied and the bill dismissed.

Mr. Tiffany—Do I understand your honor to find that the act in so far as it refers to the codes of the federal government being filed in this case, that that is unconstitutional?

The Court—I said so, but I didn’t find it. I didn’t have to. I assumed the constitutionality of the act in all its parts. Yon argued in your brief that it was unconstitutional and could be lifted out of our act and the act still be a whole piece of valid legislation. I said it was vicious legislation. That is, the adoption of the laws of another state or of the nation as a part of our act was improper; it cannot be introduced into our legislation by reference. We may adopt the spirit, but we can’t make the law by injecting into our statutes a reference to the United States code or Minnesota law and calling it our law. The legislature must establish its own standards; it may follow those created by the federal government, but it cannot draft them, it must enact them.

Mr. Tiffany—It may re-enact them?

The Court—The legislature must say to our people what the law is, it cannot refer them to the United States laws and say that is our law, that is your law and you must obey.

Mr. Tiffany—The point of the dismissal is the inconsistency of the two codes, in prices.

The Court—Yes. Lifting out the evil part, the criterion established by the legislature would then be this: That the governor co-operate with the president, and do nothing inconsistent. The president says the price level shall be seventy^ two and one-half. The governor says it shall be one hundred. That is inconsistent with what the president has declared. You argue that the state code may be varied, having regard for local conditions. The local conditions feature does not apply to price fixing. There is no local condition so far as price is concerned. The condition in Few Jersey is no different from the condition in any other state.

Mr. Tiffany—I have in mind a condition quite dehors the case. The press will carry your honor’s opinion and I want it made quite plain in their presence that the dismissal of the bill was not upon the claim of its unconstitutionality, but that Few Jersey had fixed prices higher than those of the federal government, which could not stand.

. The Court—The press usually reports accurately and is always careful not to report anything that happens in court, which may be of public injury or result in misconception.. The court may be wrong but, as a western judge once said, it is never in doubt as to that. And as to the legislature: I think the act was drawn as well as it could have been in the circumstances, at the time, as those responsible conceived the situation to be. Under judicial scrutiny, its weaknesses come to the fore. The legislature could have passed an act which would have been invulnerable to the present attack. Now, that you may understand and the press not misunderstand: Assuming all to be constitutional—every step taken to be constitutional—there was a limitation by the legislature upon the governor’s authority to approve a code that should not be inconsistent with the code prescribed by the nation. The governor’s code is fatally inconsistent. This is a national recovery, an effort by the nation to recover, not by New Jersey or New York or any other subdivision of the nation, but by and for the whole nation, and if New Jersey is to help, it must follow the lead set by the president of the United States; and so the legislature said to the governor.


author: Soot, Vice-Ordinart.

text:
    In the matter of the guardianship of Davis Lee Cox, a minor.
    [Decided May 23d, 1934.]

      Mr. Paul M. Salsburg, for the appellant.

      Mr. Albert N. Shahadi, for the respondent.
   Soot, Vice-Ordinart.

Davis Lee Cox is a minor and an orphan whose mother and ■ father died in March of 1933 when the infant was aged twenty-two months. The infant is possessed of an estate consisting of the proceeds of life insurance policies which had been taken out by his parents during their lifetime.

After the death of the infant’s parents the maternal grandparents assumed the custody of the infant and, in May of 1933, Mattie Cox, the paternal grandmother, filed her petition asking that she be appointed guardian of the person and estate of the infant, and such proceedings were had under the petition that the orphans court of Atlantic county, on October 9th, 1933, ordered:

“That the care and custody of Davis Lee Cox, said minor, be committed to the petitioner, Mattie Cox, for a period of six months from the date of this order, with the right of visitation by the said maternal grandparents, Harry Lee and Cyler Lee, between the hours of three and five o’clock, each day, during the aforesaid period.”

The maternal grandparents have appealed from the order of the orphans court to this court and allege that the order is erroneous for the following reasons:

“1. Because the orphans court on an application for letters of guardianship can decide only the issue before it, and cannot award custody of a minor in that proceeding.

2. Because the custody of a minor can only be awarded by the orphans court in a proceeding when a petition praying for custody is filed specifically for that purpose, and wherein that is the issue.

3. Because custody is not the issue to be determined by the court upon an application for letters of guardianship.

A Because on an application for letters of guardianship, the issue is the appointment of a guardian for the estate and person of a minor, and this cannot be divided nor done piecemeal.”

A reading of the order of the orphans court sets forth this statement by the presiding judge:

“This court has given this matter considerable thought and consideration, and does not, at this time, desire to dispose of the legal question as to which grandparent is the most capable, in assuming the custody and guardianship of said minor child, and has very carefully observed the treatment and supervision of said minor child while it has been in the custody of its maternal grandparents, Harry Lee and Cyler Lee, who have assumed the same for the past six months, and in order for this court to be in a better position to adequately dispose of this matter, * * * Frank F. Cox and Mattie Cox should also have a period of six months, in assuming the care and custody of said minor child, so that this court may also observe the manner in which they may be capable of taking care of said minor child.”

It is quite apparent that the orphans court has not made any order definitely disposing of the ultimate guardian to be appointed of the person and estate of the infant, but that it is attempting to exercise great care in the ultimate selection, to the end that the final order may be for the best interest of the infant, irrespective of the desire of the two sets of grandparents with reference to the care and custody of the grandchild.

The statute provides, section 37 of the Orphans Court act (8 Comp. Stat. p. 3826), that upon applications for the appointment of a guardian of an orphan, “where an orphan is under the age of fourteen years * * * may apply to the orphans court * * * for the guardianship of such orphan, who, upon inquiry into the circumstances of the case, may admit one or more of them * * * to be guardian or guardians of such orphan.”

The underlying purpose of the legislature in permitting the orphans court to make “inquiry into the circumstances of the case” was in order that the court might have before it all information and data upon which it could decide that which was for the best interest and protection of the infant and the infant’s estate. It appeared to the court that for a period of six months one set of grandparents had cared for the child, and in order that it might determine that which was for the best interest of the child, it ordered that the other set of grandparents take the custody of the child, under the supervision of the court, in order that the court might have before it the necessary facts upon which to make its important decision, and the question is—did the court exceed its jurisdiction in so doing? It is not a question as to whether or not the court may ultimately divide the guardianship as to person and estate, but a question as whether or not, for its information, it had a right to test both sets of grandparents as to their fitness to care for the child and its estate. If the order had been that one person should have the guardianship of the estate and the other of the person, the order would have been erroneous.

The maternal grandparents had no right, superior to the paternal grandparents, to the custody of either the person or estate of the infant. The legal rights of each set of grandparents are equal. Albert v. Perry, 14 N. J. Eq. 540; In re Anne Turner, 19 N. J. Eq. 433, 436.

"Upon the institution of the proceedings in the orphans ■court the child became, in the law, a ward of the court (31 C. J. 990 § 9b), and, pending final determination, the orphans court was empowered to make such preliminary order for the child’s temporary custody and care as it deemed fit. 31 C. J. 993 § 12.

It seems to me to have been clearly within the power of the court to make the order appealed from, when it appears that the purpose of the order was that the court might be informed as to those things which the statute said it must acquaint itself with before making an order.

It is contended by appellant that the matter before the court for determination on the application for the guardianship was not the possession of the child, and this is true, but the court has not determined the ultimate custody of the child, but has made an order that, if carried out, will enable the court to eventually pass on the question before it, to wit, the custody of the person and estate of the child.

Ho testimony as adduced at the hearing in the orphans court has been presented to me, but it is apparent that both appellant and respondent attended the orphans court hearing for the purpose of having it pass on the question of a guardian of both the person and estate of the infant, and that both appeared before the court prepared to establish their fitness for the trust and, while it may be that the orphans court took no testimony, I am of the opinion that it had the right, before proceeding to take further, or even any testimony, to acquaint itself with the ability of Mrs. Cox to take care of the child, as compared with that of Mrs. Leo.

The result is that the order will be affirmed, with costs against appellant.


text:
    GEORGE LIPINSKI, RESPONDENT, v. JOHN FRANK, APPELLANT.
    Submitted October term, 1933
    Decided May 12, 1934.
    Before Justices Parker, Lloyd and Perskie.
    For the appellant, Nathan H. Berger.

    For the respondent, Harry A. Pechenik (Seymour A. Emmerglick, of counsel).
   Per Curiam.

This action was to recover the sum of $240 deposited with the defendant as security for rental of property which defendant had leased to one Julius Munn, less one month’s rent of the demised premises amounting to $45.

Plaintiff is the assignee of Munn’s leasehold and of the $240 deposit, and bases his right of recovery on an alleged eviction from the premises by the landlord. The court below found for the plaintiff, and defendant appeals.

In the case of Lipinski v. Frank et al., 12 N. J. Mis. R. 174; 170 Atl. Rep. 608, it was determined by this court on substantially the same state of facts that a finding that the distraint was unlawful in that it ivas “great and unreasonable” under section 1 of the act “concerning distresses” (2 Comp. Stat., p. 1939), was justified, and that the facts justified a further determination that there had been an eviction.

The present action being predicated on an eviction and the trial court having found such eviction, the plaintiff, asassignee of Munn, ivas entitled to the return of the deposit less the rent accrued.

The judgment is affirmed, with costs.


author: Pee Ctjbiam.

text:
    SOLOMON FEUCHTBAUM, PROSECUTOR, v. MAYOR AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WODBRIDGE AND CEDAR GROVE CEMETERY ASSOCIATION, RESPONDENTS.
    Argued May 1, 1934
    Decided June 11, 1934.
    Before Justices Tbenci-tabb, Hehek and Peestcte.
    For the prosecutor, John A. Matthews.

    For the respondent Cedar Grove Cemetery Association, John E. Toolan.

   Pee Ctjbiam.

This is an application for a writ of certiorari to review an ordinance adopted by the township committee of the township of Woodbridge, granting permission to the Cedar Grove Cemetery Association to locate and place a cemetery within the boundaries of the township. This is the fifth application for a certiorari. The prior applications were made to a justice of the Supreme Court, and were all denied.

The single point advanced by prosecutor is that more than five cemeteries are now located within the township, and the ordinance therefore is in violation of section 2 of chapter 20 of the laws of 1929 (Pamph. L. 1929, p. 41), providing that "no more than five cemeteries shall be located or placed under and by virtue of said act to which this is a supplement, in any one city, township, borough or town in any county of this state.” It is further provided that where the capacity of an existing cemetery is exhausted, so that no further plots can be purchased, an additional cemetery may be created or placed at not less than three miles from any other existing cemetery in said township, and that not more than three per centum of the area of any municipality shall be devoted to cemetery purposes. As was apparently the case with the earlier applications, petitioner fails to prove a state of facts that would deprive the municipality of the authority to grant the permit. Petitioner merely avers that he “contended” before Mr. Justice Case that “there was already located and placed within the boundaries of the township of Woodbridge twenty-three cemeteries, more than five of which were cemetery associations organized” under the act in question. Petitioner’s affidavit is in the same language, and there is no other proof on this vital question. Obviously, this falls far short of proof of the existence of a situation which, under the statute, deprives the municipal governing body of jurisdiction.

The application will therefore be denied, with costs.


author: Smith, Wm. A., S. C. C.

text:
    KAUFHERR & COMPANY, A CORPORATION, PLAINTIFF, v. THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, DEFENDANT.
    Decided March 23, 1934.
    Por the plaintiff, Edmond M. Moffet.

    Por the defendant, John A. Hartpence.

   Smith, Wm. A., S. C. C.

Counsel for defendant moves that plaintiff be nonsuited on the following grounds:

1. That the plaintiff has not proved a case of liability against the defendant on the well settled and recognized rule which requires the plaintiff to prove, if it is going to show that the shipment was received in bad condition at the termination, that it was shipped in good condition. There is no proof that it was shipped in good condition;

2. That this is a suit against the terminal carrier and not against the initial carrier. The defendant did not originate the shipment; it did not issue the bill; it did not supply the car and did not load the car;

3. That the inherent vice of this commodity itself could be the cause of the difficulty complained of;

4. That claim was not filed within the period provided for in the bill of lading (Exhibit P-2).

The court (after argument)—This is a suit which is brought by the consignee of a shipment from Ingersoll, Canada, made by William Stone & Sons, Limited, to the plaintiff, and the suit is brought against the Pennsylvania Kailroad Company, which was the carrier that last carried the shipment. The shipment was in a carload lot over the Canadian National Kailway, in a Canadian National Kailway car. That car was delivered to the defendant company somewhere along the route of transportation from Ingersoll, Ontario, to the city of Newark.

The allegation is that the defendant here was negligent, and that its negligence caused damage to the contents of this car. That, of course, must be proved in order for the plaintiff to recover.

The ordinary presumption of law is that the goods arrived in the same condition in which they were shipped. It is therefore incumbent upon the plaintiff, in order to recover, to show that they were shipped in good condition.

The only evidence that 1 have been able to ascertain in this case as to the goods being shipped in good condition, oías to what condition they were shipped in, is the exhibit which has been offered here as Exhibit P-2, with the stipulation which contains the order bill of lading. That bill of lading recites that the goods “described below were received in apparent good order except as noted. Contents and condition of contents of packages unknown.”

These were hides not wrapped so as to be concealed. It seems to me that if this recital is binding upon the defendant, there is a prima facie case made out that the goods were received in good condition, as distinguished from the condition in which they were found when the car was opened.

That leads us to the next point, which is the contention by the defendant that a clause in this order bill of lading is binding upon the plaintiff. This clause is: “Notice of loss, damage or delay must be made in writing to the carrier at the point of delivery, or to the carrier at the point of origin, within four months after delivery of the goods, or in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless notice is so given the carrier shall not be liable.”

It is, of course, conceded, and it is shown by the record in this case, that that notice was not given within four months after delivery. This car was unloaded on February 15th, 1928, and notice was not given until the following August.

The question which it seems to me I am presented with is this: That if this bill of lading is the contract of transportation covering the transportation not only in Canada, but in the United States, then this recital of the condition of the goods is prima facie proof, but if it is not the contract of transportation in the United States, then it is not an admission as against the defendant that the goods were delivered in apparent good condition.

Now, I have listened to the argument of counsel on the question of the uniform bill of lading of the United States being applicable to this shipment. I might say that it is not an easy question to settle. But I am satisfied in this case that the Canadian bill does apply. But even if the uniform bill of lading of the United States applies, then the presumption which has arisen against the defendant by the recital in the Canadian bill of lading, falls, because it is only an admission by the Canadian National Railway, and it is not binding on the defendant here.

On these grounds I will grant the motion for nonsuit. Plaintiff’s counsel prays an exception to this ruling of the court. Exception noted as ground of appeal.


author: IIaetshokni!, S. C. C.

text:
    J. J. HOCKENJOS COMPANY, A CORPORATION, PLAINTIFF, v. JOSEPH LURIE, DEFENDANT.
    Decided June 14, 1934.
    For the plaintiff, Burnett é Tr¿lease.

    For the defendant, Harry Levin (by Milton TJnger).

   IIaetshokni!, S. C. C.

On this suit for deficiency on a mortgage bond, plaintiff moves to strike a series of defenses interposed, on the ground that same are res adjudicata, by reason of previous litigation between the parties, hereinafter set forth and also because of insufficiency in point of law. Of its separate defenses, the defendant has abandoned his first, second and fourth. The remainder are substantially that (1) plaintiff’s announcements on the foreclosure sale were misleading and depreciated the sale price; (2) that plaintiff razed the buildings on the lands and thus prevented defendant from regaining possession of same on redemption, and (3) that plaintiff agreed with defendant not to sue for a deficiency if defendant refrained from bidding at the sale, which he did.

Not only have these parties participated in the foreclosure proceedings, but when the sale thereunder brought only a. nominal amount, defendant, Lurie, filed his bill in chancery to set aside the sale, enjoin the instant suit, already instituted, and for other relief. In that bill Lurie set up, as grounds for relief, the very defenses here involved. Chancery found that $15,000 was the fair value of the mortgaged premises at the time of the sale and before the razing of the buildings, and directed that such sum be credited upon the amount due on foreclosure in lieu of the nominal sale proceeds. In. its opinion (Lurie v. J. J. Hockenjos, 113 N. J. Eq. 504; 167 Atl. Rep. 766) the court expressly ruled on and dismissed each and all of the above defenses herein relied upon, but the court added: “The action of the court in denying the relief sought by the bill and order to show cause was-predicated upon the reasons and authorities set forth in Federal Title & Mortgage Guaranty Co. v. Lowenstein, supra (113 N. J. Eq. 200; 166 Atl. Rep. 538—same being grounds different from the above defenses). The power of this court to grant the relief prayed is not doubted, but the prayer of the bill was addressed to the court’s discretion.”

This decision was appealed to the Court of Errors and Appeals, which affirmed the decision of the Court of Chancery, in Lurie v. J. J. Hockenjos, 115 N. J. Eq. 304; 170 Atl. Rep. 593. It was doubtless to the above quoted portion of the chancery opinion to which the Court of Errors and Appeals alluded in saying: “We might well affirm the order for the reasons given in the opinion of the court below.”' After alluding to the fact that in chancery “the matter was heard on affidavits,” and to Lurie’s objection thereto, that the court “determined the cause without a hearing and trial,”' the Court of Errors and Appeals holds that Lurie’s bill is not a collateral attack on the foreclosure, but “that the real purpose of the bill is to reopen the earlier foreclosure proceedings,” i. e., that the bill was “a bill of review,” in which Chancery did equity by the Hockenjos company’s consent on the pleadings, without the necessity of final hearing, by granting Lurie all he could ask, to wit, the full and fair value of the property.

Such being the situation, the question is, whether the adverse opinion of chancery on Lurie’s bill, as to the 'merit of ids defenses in this suit, is res adjudícala.

The language of the chancery opinion is clear, and were the question to rest there, the answer would be equally clear. The difficulty lies in the fact that the decision of the highest court in this state, binding both upon this court and chancery, has expressly adjudicated that Lurie’s chancery bill was a mere “bill of review * * * to reopen the earlier foreclosure proceedings,” equivalent to a rule for a new trial at law. If so, while chancery may have discussed various matters, it can have adjudicated nothing but wliat was involved in the review of the foreclosure proceedings. Clearly, the propriety of the announcements by the Hockenjos company at the foreclosure sale were so involved, since the, question before the court was the propriety of the sale and its proceeds. The decision by chancery, that such defense “did not affect the bidding,” and was lienee immaterial, is, therefore, res adjudícala. This is quite regardless of the fact that Lurie, having obtained the full and fair value of the premises as a credit, cannot be at all prejudiced, no matter what occurred at file sale. Such defense is, therefore, stricken.

The next defense is that the Hockenjos company razed the buildings on the lands sold. The propriety thereof could nor well have been adjudicated on a review of the foreclosure sale, since the razing did not occur until after the sale. Its; inclusión in the chancery opinion is not determinative. It is the decree, and not the opinion, which governs, the opinion being merely explanatory of the decree. Mullaney v. Mullaney, 65 N. J. Eq. 384; 54 Atl. Rep. 1080. Nor docs the submission of an issue by the parties to the suit on affidavits make the court’s opinion on same necessarily an adjudication. The Court of Errors and Appeals holds that same neither wei'e. in fact, nor could be, in law, adjudicated under the circumstances. Lurie v. J. J. Hockenjos Co., 115 N. J. Eq. 304; 170 Atl. Rep. 593; Metropolitan Lumber Co. v. Fordham Bank, 104 N. J. Eq. 248; 144 Atl. Rep. 879. In the light of the opinion of the Court of Errors and Appeals, we are constrained to consider the opinion of chancery in that respect as obiter dicta. Obviously, obiter dicta cannot be res adjudicaia from the very definition of the terms.

But even so, Lurie cannot be affected by the company’s razing of the buildings, unless and until he redeems, which he has so far failed to do, though the company has given him such opportunity for a considerable period. He has no right whatever in the land now. Such right will not arise until after the entry of the deficiency judgment in this suit. Wolf v. Schlichting, 111 N. J. Eq. 619; 161 Atl. Rep. 840; 3 Comp. Stat. 1910, p. 3422. The company, therefore, should not be deprived of its right to take judgment, if Lurie’s rights can be protected otherwise, particularly where the company has dealt with its own property, confirmed to it by chancery, and in a way which will affect Lurie not at all, unless the latter radically alters his tactics. Lurie’s rights in that regard can be adequately protected, and without depriving the company of its rights, by setting up the razing of the buildings as a credit on the defiiciency, on Lurie’s bill to redeem, or in a subsequent action for waste. 23 C. J. 789, 855; Gore v. Jannis, 19 Me. 53; Oakman v. Walker, (Vt.), 38 Atl. Rep. 63; O’Connor v. Bank (Ala.), 22 So. Rep. 902. This defense will, therefore, be stricken.

As to the final defense, that the company agreed not to sue for a deficiency, in consideration of Lurie’s agreeing not to bid at the foreclosure sale, which agreement Lurie performed, same is clearly a valid defense at law. Dorison v. Schultz, 109 N. J. L. 247; 160 Atl. Rep. 497. The question, therefore, is whether the opinion of chancery, that same “was without foundation in fact,” is res adjudícala here. Clearly, whether or not plaintiff broke his agreement not to sue for deficiency, has nothing to do with the propriety of the foreclosure sale, the sole question before chancery, according to the opinion of the Court of Errors and Appeals. It can only affect the action of the parties in this suit or hereafter. According to the Court of Errors and Appeals, the opinion by chancery in this regard was but dicta, not res adjudicaia. Since this defense is a proper one to such a suit as the present, the motion to strike same is denied.


author: Perretti, J.

text:
    Passaic District Court.
    SAMUEL SLAVIN, PLAINTIFF, v. FRANCIS H. LEGGETT & COMPANY, DEFENDANT.
    Decided June 16, 1934.
    For the plaintiff, Manuel Weiner.

    For the defendant, Jerome Alper (Martin Klughaupl, on the brief).
   Perretti, J.

This case was submitted upon a stipulation of facts and briefs:

The plaintiff, Samuel Slavin, purchased a can of green peas from the store of his son on May 5th, 1933, that the same (which was admitted into evidence) showed that it had been purchased by the storekeeper from the defendant, “Francis 11. Leggett & Co.;” that the only name appearing on the said can was the name of the defendant “Francis H. Leggett & Company, Distributors;” that the label on the can had imprinted thereon, “Premier, the Guarantee of Quality;” that the plaintiff, while eating of the green peas from this can, suffered injury by reason of biting into a pebble of the general shape and size of a green pea.

The defendant, Francis H. Leggett & Company, moves for a direction of a verdict in its favor. The action was predicated on a state of demand charging the defendant with negligence.

One of the grounds relied on in the defendant’s brief is, that where a duty arises solely out of a contract no one can bring an action thereon for its breach unless he be a party to the contract, and to support his contention the defendant cites Marvin Safe Co. v. Ward, 46 N. J. L. 19; Styles v. F. R. Long Co., 70 Id. 307; 57 Atl. Rep. 448, and Conklin v. R. P. & H. H. Staats, 70 N. J. L. 771; 59 Atl. Rep. 144. I agree with counsel for the defendant that this is so, as a general proposition, yet, I do not believe that such general rule is applicable to the case at bar.

Counsel for the defendant is in error in his contention that a consumer can only sue his immediate vendor with whom the contract of sale was consummated. Tomlinson v. Armour & Co., 75 N. J. L. 748; 70 Atl. Rep. 314, holds that: “In this state we have repeatedly held that where a duty arises solely out of a contract no one can bring an action for its breach unless he be a party to the contract or one for whose benefit it is made. But in these cases liability was denied upon the ground that, aside from the contract, there was no duty incumbent upon the defendant

“Canned goods are at the present day in such common use that we may judicially recognize that the contents are sealed up, not open to the inspection or test either of the retailer or of the customer until they are opened for use, and not then susceptible to practical test, except the test of eating. When the manufacturer puts the goods upon the market in this form for sale and consumption he in effect represents to each purchaser that the contents of the can are suited to the purpose for which it is sold, the same as if an express representation to that effect were imprinted upon a label. Under these circumstances the fundamental conditions upon which the common law doctrine of caveat emptor is based—that the buyer should look out for himself’—is conspicuously absent, for he has no opportunity to look out for himself. And when he thus buys and eats the contents of the package, relying upon the assurance of the manufacturer that they are fit to be eaten, it seems to us to result, from general and fundamental principles, that he has a right to insist that the manufacturer shall at least exercise care that they are so fit, and are not unwholesome and poisonous.”

Numerous other casos are cited by counsel for the defendant in which recovery was allowed against the manufacturers of food on the theory of negligence these eases being: DeGroat v. Ward Baking Co., 102 N. J. L. 188; 130 Atl. Rep. 540; Corin, v. S. S. Kresge Co., 110 N. J. L. 378; 166 Atl. Rep. 231; Sheehan v. Menkes, 8 N. J. Mis. R. 867; 152 Atl. Rep. 326; Rudolph v. Coco Cola Co., 4 N. J. Mis. R. 318; 132 Atl. Rep. 508, and McAteer v. Sheffield Farms, 9 N. J. Mis. R. 33; 152 Atl. Rep. 469.

The question that arises here is, whether or not a distributor of can products, when the product displays a label, which bears its trade name, and its name, but which label does not give the name of the actual packer, is liable for negligence for the deleterious quality of food resulting in damage by causing injury to health.

I am inclined to agree with the counsel for the plaintiff, that no case embodying the same set of facts has been decided in this state. However, as stated by plaintiff’s counsel, the court of last resort of our sister state Connecticut, in Burkhardt v. Armour & Co., reported in 161 Atl. Rep. 385, has rendered ail opinion on the same set of facts. In that case it was held that:

“The assertion principally pressed by the appellant Armour & Company is that because it obtained the can and contents from a reputable packer and independent contractor it cannot be held responsible for negligence, if any, of such packer. The can in question had been packed by an Argentine corporation under an agreement with this defendant, was sold by the packer to a second Argentine corporation, rather significantly entitled 'Frigorífico Armour de la Plata,’ and by the latter to Armour & Company, an Illinois corporation. It boro, only, a label which conspicuously displayed on each of the four sides of the can, 'Armour Veribest Products’ ('Veribest’ being an exclusive trade-mark of Armour & Company), and in small type the words, 'Armour and Company, Foreign Distributors;’ it did not give the name of the actual packer. The trial court found, justifiably, that the ordinary, reasonable person reading this label would have inferred that Armour & Company was the packer of the product. These facts are sufficient to render applicable the rule expressed by the American Law Institute in its Restatement of the Law of Torts (section 270, Tentative Draft Wo. 5) as follows: fOne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.’ By putting a chattel out as his own product he induces reliance upon his care in making it; therefore, he is liable if, because of some negligence in its fabrication or through lack of proper inspection during the process of manufacture, the article is in a dangerously defective condition which he could not discover after it was delivered to him. The rule applies only where the chattel is so put out as to lead those who use it to believe that it is the product of him who puts it out, but the fact that it is sold under the name of the person selling it may be sufficient to induce such a belief.”

In the Connecticut case the can was marked “Armour’s Yeribest Products Corned Beef,” without designating the name of the packer which would be analogous to the trade-name imprinted on the can of the present case. The court gave a judgment for the plaintiff against A. & P. Company who sold the goods to the consumer on the theory of implied warranty and also rendered a judgment against Armour & Company on the theory of negligence, even though Armour & Company did not manufacture but bought from a canning concern.

The reasons set forth in the Connecticut case seem to me to be sound and logical, and being on all fours with the case at bar, judgment is, therefore, rendered in favor of the plaintiff for $100.


text:
    Charles Kohl, complainant, v. A. O. Robbins, executor of the estate of Elizabeth Kohl, deceased, defendant.
    [Decided June 26th, 1934.]

      Mr. George X. Large, for the complainant.

      Mr. Ford.yce X. Suierley, for A. 0. Bobbins. No argument on the brief.
   Backes, Y. C.

Elizabeth Kohl, mother of the complainant, was possessed of a $2,800 mortgage.

On July loth, 1920, she, joined by her husband, executed a paper which reads:

“We hereby wish to have it known that I, Franz Kohl and my wife have a mortgage on the farm which we have sold, said mortgage is to the amount of $2800. We both sign this $2800 to our son Chas, as he is the one who worked for us on the farm since 1895 and has helped us as long as we were on the farm. We just want the interest money as long as we live and wish our funeral expenses paid after death. We spend $6400 for our son Henri for lawyers, etc. after his arrest. He has never helped us and for that reason we feel that our son, Chas, should have something, as he helped us for many years and we could never trust Henry, who always kept all the money he earned. lie could have helped us, but always said he would not. work for debts. We are now living at Trimmers place and are sending for two men to sign this paper as witnesses, after reading the contents of this to them.
Witnesses: Lafayette Jordy Franz Kohl
Georoe Fink Elizabeth Kohl.”

The paper-writing was delivered to the complainant. The bond and mortgage were retained by Mrs. Kohl’s solicitor, the defendant. Mrs. Kohl died in 1928, testate, and letters were issued to the defendant.

Elizabeth Kohl had been an inmate of the New Jersey-State Hospital at Trenton from June, 1923, until her death in 1927. The solicitor delivered the bond and mortgage to the chief executive officer of the hospital upon his appointment as guardian to Elizabeth Kohl, who returned them to the defendant, upon his appointment as executor in 1930.

The executor collected the interest on the mortgage and $500 of insurance for loss by fire of buildings on the mortgaged premises. He has paid the funeral bill and the interest has been applied to the support of Elizabeth Kohl at the hospital. There is a balance due the hospital of $600 or $700.

The matter is submitted on a stipulation of facts and was to be argued by briefs. The solicitor of the complainant to-day forwarded his brief and a letter in which he says: “I served a copy of my brief on Mr. Suderley, who is associated with Judge Robbins and represented him, last November, and since then Mr. Suderley has failed to file an answering brief and recently advised me that I should send the stipulation of facts, together with my brief of law to you so that the matter can be disposed of without further delay.” From this it is assumed that the defendant intends to file no brief. That is not only neglecting the client’s interest, but a discourtesy to the court and deserving of reprimand.

Taking up the points as presented by the complainant: The paper-writing is an assignment adequate to passing the title to the bond and mortgage. Delivery of the bond and mortgage with the assignment was not essential to the transfer.

Recording of the assignment was not required except as against assignees in good faith and possibly creditors. That point is not presently involved; the defendant executor lias notice of the assignment.

The paper is not testamentary. Title to the bond and mortgage passed npon the execution and delivery of the assignment; the assignors’ reservation of the annual interest to accrue on the mortgage during their lifetime did not prevent vesting of the title. The provision as to funeral expenses was a condition subsequent, imposing an equitable lien. It has been discharged.

Nothing is said in the bill or the stipulation as to whether Franz, the husband of Elizabeth, is living. The assignment reserves the interest to Franz as well as to Elizabeth.

We fail to see merit in the claim of estoppel, set up in the sixth paragraph of the answer: “By reason of the fact that he [complainant] has not proceeded to assert or enforce any claim or right that ho may have within the time required by law.” Just what that means is not apparent. The defendant has suffered no harm by the complainant’s delay since his mother’s death. The possession of the bond and mortgage by the defendant as solicitor and by the guardian of Elizabeth Kohl until her death, was not inappropriate— she had the life interest—and redelivery to the defendant, as executor, in May of 1930, and the latter’s possession until the filing of the bill, surely worked no detriment to the defendant executor of which he can complain, unless he incurred expense of foreclosure without notice of an assignment. If that be the fact, he is entitled to be reimbursed.

It may be that the hospital is entitled to be reimbursed for its outlay in the keep of Elizabeth Kohl, if the outlay was upon the security of the bond and mortgage. However, that question has not been raised; the guardian is not a party to the suit.

The thing decided upon this haphazard presentation is the issue raised by the pleadings and supported by the stipulation, viz.: Is the assignment valid and is the son entitled to the bond and mortgage. It is. He is.

Counsel will give notice of the settlement of the decree and the defendant will respond in person, or be represented, or consent to the decree.


text:
    NEW YORK AND GREENWOOD LAKE RAILWAY COMPANY, PROSECUTOR, v. THE CITY OF EAST ORANGE, DEFENDANT.
    Argued January 17, 1934
    Decided June 25, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Hobart & Minará.

    For the defendant, Walter 0. Ellis.

   Per Curiam.

This is an application for a writ of certiorari to review an improvement assessment against lands of the New York and Greenwood Lake Railway Company located in the city of East Orange. The assessment grows out of the widening of Kearney street.

The prosecutor is the owner of a plot of land fronting on Kearney street, which plot is used in part for railroad purposes and in part not used at all. The contention of prosecutor is that its land is used or held for railroad purposes, and in that situation may not be assessed unless its value for railroad purposes is enhanced.

The difficulty with prosecutor’s position is that not al] of the tract is used for railroad purposes and it is only land actually in use for such purposes which is free from assessment unless improved for use as a railroad. New Jersey and Hudson River, &c., Co. v. Hackensack Improvement Co., 8 N. J. Mis. R. 390; Lehigh Valley Railroad Co. v. Jersey City, 81 N. J. L. 290; 80 Atl. Rep. 228.

It would, therefore, appear that part at least of prosecutor’s land was subject to assessment, and if it be contended that the amount of the assessment was unreasonable as to such land, the proper procedure to review it would be by appeal to the Circuit Court.

We are of the opinion that no fairly debatable question is presented, and the writ is therefore denied, with costs.


author: Pee Cueiam.

text:
    I. WILLIAM ARONSOHN, PROSECUTOR, v. MAYOR AND COUNCIL OF THE BOROUGH OF FORT LEE, DEFENDANTS.
    Argued January 16, 1934
    Decided June 25, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Le Roy Vander Burgh,.

    For the defendants, James A. Major.

   Pee Cueiam.

This is an application for a writ of certiorari to review the action of the council of the borough of Fort Lee in abolishing the office of borough recorder, which office was held by the prosecutor, who was appointed January 1st, 1933, for a term of five years.

The sole question presented by the points argued is whether or not the council acted in good faith in abolishing the office.

The office of recorder is created bj’ council, under the authority of the statute, and may be abolished by the municipal authority, provided such action is taken in good faith. There is a presumption in favor of the good faith of the governing body and the burden of showing bad faith is upon the prosecutor. Shoemaker v. Township Committee of Centre Township, 129 Atl. Rep. 432; Van Saun v. Township Committee, 150 Atl. Rep. 770.

Prosecutor has been serving as recorder without compensation, and contends that economy is not a valid reason for abolishing his office. Respondents claim there are other expenses connected with the operation of the office, such as light, heat, services of a police officer to act as clerk, which, though small, are proper elements of expense to be considered in view of the straitened financial situation of the borough, which is in the hands of the municipal finance commission. It appears also that there is in effect in Bergen county the district criminal court system, and that there is a district criminal court, presided over by a trained judge, which has jurisdiction of any matter that might come before the recorder of the borough of Fort Lee.

We are of the opinion that the record does not disclose that the action of the borough council in abolishing the position was taken in bad faith. The court will not substitute its judgment for that of the governing body, when exercised in good faith.

The writ is denied, with costs.


text:
    HENRY MOOS, PLAINTIFF, v. CHARLES L. O’REILLY, DEFENDANT.
    Argued May term, 1934
    Decided June 22, 1934.

      Before Justices Tkenciiakd, Heiiek and Pekskie.
    Por the applicant, Meehan Brothers.

      Contra, Abraham Lieberman.

   Per Curiam.

Plaintiff caused a writ of attachment to be issued out of the Hudson County Circuit Court directed against the assets of the defendant, Charles L. O’Reilly. The sheriff attached moneys on deposit in the Commercial Trust Company standing in the name of Charles L. O’Reilly. Thereupon the G. O. K. Enterprise, Incorporated, served a notice claiming to be the owner of the moneys and requesting that a jury be summoned to try the title and agreeing to be bound by the finding of said- jury. Accordingly, a trial for the claim of property was had, and the jury rendered a verdict that the moneys were the property of Charles L. O’Reilly and not the properly of the G. 0. K. Enterprise, Incorporated.

Immediately thereafter the G. 0. K. Enterprise, Incorporated, filed a bill in Chancery praying that all parties be restrained from proceeding against the moneys or from filing the verdict of the sheriff’s jury, and that it be decreed that O’Reilly held the funds in trust for the G. 0. K. Enterprise, Incorporated.

The Court of Chancery decreed that the moneys on deposit were the property of the claimant and restraining the plaintiff. From that decree an appeal was taken to the Court of Errors and Appeals and the decree of the Court of Chancery was reversed. Thereafter an application was made by the claimant G. 0. K. Enterprise, Incorporated, to the Chief Justice for a writ of certiorari to review the finding of the jury on the claim of property. He denied the application. Now comes the claimant and applies to this court for a writ.

We think the application should be denied. The contention of the claimant in support of his application is that the plaintiff offered no evidence which would justify a finding that the money was the property of Charles L. O’Reilly. That contention we think is unfounded in point of fact. The fact is that there was ample evidence, particularly documentary evidence, supporting the finding of the sheriff’s jury.

The result is that the application for a writ of certiorari will be denied, with costs on this motion.