text:
    DAVID E. MAULSBURY, PLAINTIFF-RESPONDENT, v. JOSEPH SHURE, DEFENDANT-APPELLANT.
    Submitted May term, 1933
    Decided January 20, 1934.

      Before Brogan, Chief Jusitce, and Justices Trenohard, and Heher.
    Por the appellant, Collins & Corbin (Edward A. Marlcley and Howard F. McIntyre, of counsel).
    Por the respondent, Cooh Stout (William J. O’Hagan, of counsel).
   Per Curiam.

Defendant appeals from a judgment in favor of plaintiff, in an action to recover damages claimed to have been sustained as the result of the negligent operation of an automobile. A motor vehicle owned and driven by one Porman, and occupied by plaintiff, and an automobile. of defendant collided at a highway intersection in Asbury Park.

The several grounds of appeal assigned and pressed by appellant may be grouped under six heads.

The first point urged is that the trial court erroneously permitted counsel for plaintiff to address the following question to the jury, after it was empaneled and before it was sworn: “Are any members of the jury represented by the firm of Collins & Corbin, or by any members of that firm?” It is said that this is an “omnibus” question probihited by chapter 151 of the laws of 1911. Pamph. L. 1911, p. 220. This was not the ground of objection presented to the trial judge. The objection there was upon the ground that the question ivas “irrelevant, immaterial, improper and prejudicial.” The ground now urged is therefore not available to appellant here. Polgar v. Kantor, 3 N. J. Mis. R. 1122; 130 Atl. Rep. 732. Moreover, it is not shown that the departure from the practice prescribed by the statute was prejudicial to appellant.

The second point presented by appellant is that the trial court erred in certain rulings on evidence. These rulings are made the subject of the second, third, fourth and fifth grounds of appeal. We do not deem it necessary to treat individually the rulings thus criticised. Suffice it to say, we have examined each ruling complained of, and find no prejudicial error. In some instances the objections now urged were not presented below. In each instance the objection presented to the trial court is, in our opinion, untenable. In any event, if error occurred, it was harmless, and is not available to appellant as a ground for reversal.

The third ground advanced is that the trial court erred in allowing a hypothetical question propounded to plaintiff’s medical expert, and in permitting this witness to express an opinion based partly on the history of the case. It was urged in the trial court that the witness, in expressing his opinion, was limited to what he found objectively, and could not express his opinion based upon the history furnished him. This view is manifestly unsound. The witness qualified and testified as an expert, and the rule invoked by appellant did not apply in the situation here existing. Another ground of objection presented below was that “the question does not include many material facts; unless the entire evidence is set forth and presented in a hypothetical question, it is not proper.” This is not the rule. Molnar v. Hildebrecht Ice Cream Co., 110 N. J. L. 246, 255; 164 Atl. Rep. 300; Daggett v. North Jersey Street Railway Co., 75 N. J. L. 630, 637; 68 Atl. Rep. 179; Schreiner v. New York and New Jersey Telephone Co., 82 N. J. L. 743; 82 Atl. Rep. 887; Cottrell v. Fountain, 80 N. J. L. 1; 77 Atl. Rep. 465; Shoemaker v. Elmer, 70 N. J. L. 710; 58 Atl. Rep. 940. It is urged here that the question was objectionable upon the further ground that there was no proof that plaintiff sustained an ankle fracture, nor proof that he received medical treatment for a back injury. This criticism is without merit. In any event, it was not urged in the court below, and therefore cannot be laid hold of here for the purpose of working a reversal. In this connection, appellant contends that the court erred in permitting the expert to express an opinion, based, in part, upon a history of the case, that respondent’s condition was a permanent one. Appellant invokes the rule that a physician who examines, not for the purpose of treatment, but to give testimony, must form his opinion upon what his examination disclosed, entirely apart from the history furnished. This was not the ground of objection advanced below. There it was urged that the witness was “not competent to give an opinion.” Moreover, the information that his opinion was based, in part, upon the history furnished, came in response to a question propounded by appellant’s counsel. There was thereafter no motion to strike out the testimony of the witness upon the ground now presented. Appellant therefore can profit nothing by this ground for reversal.

It is next urged that the trial court erred in denying appellant’s motion for a mistrial, upon the ground of misconduct of some of the jurors. The trial judge investigated, and concluded that there was no evidence to warrant a finding that any of the jurors had been improperly influenced, or that any attempt in that direction had been made. We agree with the conclusion of the trial court. Such an application is addressed to the discretion of the court, and where no abuse of discretion is shown, the ruling does not furnish a ground for reversal.

Appellant also-criticises the ruling of the trial court in excluding from evidence a statement in writing alleged to have been made by respondent’s witness, Jackson, relating to matters made the subject of his examination, and rulings on evidence made when appellant’s witness, Capabianco, testified concerning it. This criticism is without substance. The trial judge ruled, and properly so, that a foundation for the offered statement and testimony had not been laid. Counsel for appellant conceded this, although apparently under a misapprehension as to the scope of the applicable rule. In reply to the query from the court, as to whether the foundation had been laid by appropriate questions put to the witness, Jackson, counsel replied: “No, I didn’t ask him; I submit I can offer it in evidence now; if they want Jackson to deny it they may do it by way of rebuttal.” The rule is entirely settled in this state that, where the purpose of questions such as those now under consideration is to show that the witness made a written statement before the trial contradictory of the testimony given by him at the trial, and thus discredit him before the jury, it can only be made admissible by first laying a foundation therefor, and this must be done by calling the attention of the witness to the contents of the paper, and then asking him whether he had not made the statements contained therein. State v. Cappiello, 107 N. J. L. 249; 151 Atl. Rep. 737. Tested by the rule thus laid down, the rulings complained of were free from error.

Lastly, it is claimed that there were errors in the charge. The first criticism made is that the charge relating to the applicable provisions of the Traffic act permitted the jury, “to totally ignore and exclude from its consideration rules of the road so called.” This is not so. The jury was expressly instructed to take into consideration the provisions of the Traffic act in determining whether or not there was negligence in the conduct of plaintiff or defendant. It is next said that the court’s charge was the equivalent of a binding instruction that defendant had violated the provision of the Traffic act, giving the right of way, when two motor vehicles reach an intersection at approximately the same moment, to the one approaching from the right. We do not so read the charge. The trial judge merely stated that “plaintiff was riding in a car coming from the defendant’s right.” The jury was not thereby advised, nor by any other statement in the charge, that plaintiff had the right of way. It may be that the instruction relating to this particular provision of the Traffic act was not as informative as it should have been, but it cannot be said that it misstated the law. It was correct as far as it went, and in the absence of a specific request, appellant cannot complain.

It is also urged that another passage of the charge permitted the jury to “consider such violation [of the Traffic act] as a circumstance in determining whether defendant was negligent,” even though it was a breach of the rules “that did not hurt.” There was no exception to this portion of the charge. Nor was the criticism now made brought to the attention of the trial judge. This ground of appeal is therefore of no avail.

It is also claimed that there was error in the passage of the charge relating to the compensation to be awarded for loss of wages. It is said that the charge in this respect was erroneous and harmful: first, as being too broad; second, it directs the jury to speculate; and third, there was no evidence to support such instruction. An exception was taken to this passage on the sole ground that “there was no proof of loss of wages.” Such was not the fact, and this criticism is therefore groundless.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Pee Cukiam.

license: Public Domain

text:
    IN RE APPLICATION OF FRED C. SACHS FOR PERMISSION TO TAKE EXAMINATION FOR THE BAR.
    Decided January 9, 1934.
    Before Justices Paekee, Lloyd and Peeskie.
    Por the petitioner, Irving I. Jacobs.

   Pee Cukiam.

The gist of the application is that an adequate qualifying certificate as required by rule 4, and issued in August, 1933', “may be filed as if it were obtained in August, 1930.”

The case seems to differ in no essential particular from “In re K,” 88 N. J. L. 157; 98 Atl. Rep. 668. On the authority of that decision the application must be denied.

It may be well to add that it does not appear that the certificate of August, 1933, has yet been filed. The present rule, dating from 1931, requires such filing before beginning the clerkship; and service prior to such filing may not be counted.


author: Bobine, J.

text:
    MANISTEE IRON WORKS COMPANY, PROSECUTOR, v. TOWNSHIP OF RARITAN AND MELVIN A. CAMPBELL, COLLECTOR OF TAXES, RESPONDENTS.
    Submitted October 13, 1933
    Decided January 25, 1934.
    Before Justices Case, Bobine and Donges.
    For the prosecutor, McDermott, Enright & Carpenter (Carl 8. Kuebler).

    For the respondents, Thomas L. Hanson.

   Bobine, J.

This writ brings up for review personal property taxes imposed upon the Manistee Iron Works Company for the years 1926 to 1931 inclusive. The Baritan township tax assessor, discovering that the property in question regularly assessed against the Building Materials Corporation was in fact the property of the prosecutor, made indelible pencil changes upon his records purporting to transfer the assessments. The tax receiver made like changes upon his books. The taxes remaining unpaid, a notice was sent that the property would be sold April 29th, 1932, for the taxes then in arrears.

The property in question was sold years ago under a conditional sales agreement to the Eastern Potash Corporation. This concern became bankrupt. Upon reclamation proceedings the reservation of title was held valid. The Building Materials Corporation succeeded to the rights of the Eastern Potash Corporation. A new conditional sales agreement being made, the new company defaulted and the prosecutor replevined the goods. Because of litigation by adverse claimants possession was not acquired until January 26th, 1931. Personal property taxes are assessed against the owner of goods. Prosecutor does not question the power of the municipality to assess taxes and concedes that the municipality may rectify mistakes made in the assessment of property.

The General Tax act of 1918 (Pamph. L., p. 847, § 513, p. 870), provides: “Ho tax or assessment imposed or levied in this state shall be set aside or reversed in any court of law or equity in any action, suit or proceeding for any irregularity or defect in form, or illegality in assessing, laying or levying any such lax or assessment or in the proceeding for collecting the same if the person against whom or the property upon which such tax or assessment is assessed or laid is, in fact, liable to taxation or assessment in respect to the purposes for which such tax or assessment is levied, assessed or laid; and the court in which any action, suit or proceeding is or shall be pending to review any such tax or assessment is required to amend all irregularities or errors, or defects, and is empowered, if need be, to ascertain and determine for what sum such person or property was legally liable to taxation or assessment, and by order or decree to fix the amount thereof; and the sum so fixed shall be the amount of tax or assessment for which such person or property shall be liable, and the same shall be and remain a first lien or charge upon the property and persons, and collectible in the manner provided by law, the same as if such tax or assessment had been legally levied, assessed or imposed in the first instance by the city, town, township, commissioner, board or other authority attempting to make, impose or levy the same; it shall be the duly of the court to make a proper levy, imposition or assessment in all cases in which there may lawfully be an assessment, imposition or levy; and such court is hereby given full and ample authority to make a lawful levy, assessment or imposition.’’

A somewhat similar statute was said by this court to be designed to correct evils arising from the evasion of taxes and has been liberally construed. State v. Montclair and Greenwood Lake Railroad Co., 43 N. J. L. 524. “We are forbidden to set aside the tax for irregularity or defect in form or illegality in assessing, laying or levying the tax, if in fact the prosecutor is liable to taxation in respect of the purpose for which the tax is imposed.” Musconetcong Iron Works v. Netcong, 90 Id. 58: 99 Atl. Rep. 914.

In Clark v. Mulford, 43 N. J. L. 550; affirmed, 44 Id. 439, Mr. Justice Van Syckel said respecting an earlier statute of reform: “The objection that lands of Elizabeth E. Clark are assessed in the name of the Union and Essex Land Improvement Company and that lands of William Hahn are assessed in the name of Ferdinand Blanche, cannot prevail, since it is cured by the statute. Revision page 1165, placitum 120. Tindall v. Vanderbilt, 33 Id. 38. If the assessments were irregular and defective in these respects, it would be the duty of the court to amend them under the act of March 23d, 1881. Pamph. L., p. 194.”

The true situation seems to have been that the assessor supposed the property in question to have been the property of another. The assessment was regularly made in each year and it was not until February or March of 1932 that it was discovered that the Manistee Iron Works Company was the true owner of the property in question, and an assessment of $150,000 against the Building Materials Company, the supposed owner, was reduced by $30,000 and the assessment heretofore made against it was transferred to the prosecutor.

Prosecutor does not question that the municipality would have had the right in the years in question to have taxed the prosecutor for the value of its property located in the township, but does contend that taxes assessed against the conditional vendee may not now be assessed against the conditional vendor. We can see no merit whatever in this contention since the purpose of the legislature is clearly expressed to the end that property shall be assessed against the true owner and the power of correction and amendment shall be very broad. Property sold under conditional sales contracts is usually assessable against the conditional vendor. Remington Cash Register Co. v. State Board, 8 N. J. Mis. R. 875; 152 Atl. Rep. 330; affirmed, 108 N. J. L. 418; 159 Atl. Rep. 93. The corporation, whose name was inserted in the assessment lists being in fact liable to assessment in respect to the purposes for which the tax was levied, it would seem that there was no legal doubt as to the propriety of the action taken.

It is urged that since prosecutor’s possession was interrupted by court proceedings that the property in question was not subject to taxation. We know of no such exemption in the law and no authorities are cited to support the contention. The mere circumstance that litigation is pending respecting the title to lands or chattels would seem, for obvious reasons, not to withdraw such property from taxation. State v. Montclair and Greenwood Lake Railroad Co., supra.

So far as appears the assessments were regularly made against the prosecutor’s property, but not against it as owner. It is manifest that the statute cures this irregularity, because the statute, provides that no court shall set aside such tax, provided the person or property was in fact liable to such taxation. Pamph. L. 1918, p. 847, 870. Nor can we regard such legislative enactment as confiscatory. The owner of property well knows that the same is subject to taxation, and is under a duty to make reasonable inquiry as to his taxes, and if he fails so to do he cannot complain if he subsequently learns of his liability to make payment which he should have anticipated.

We cannot review the provisions of the statute as limiter] to corrections of error for a current year, because the whole purpose of the legislation is to secure the just taxation of persons and property irrespective of irregularity or defect in form and illegality in assessment, to the end that the persons and property liable to payment shall be subjected to the same. Since the statute contains no limitation as to the time in which the corrections and changes to accomplish the legislative purpose may be made, we see no limitation upon our powers. Besides it was also so held in State v. Montclair and Greenwood Lake Railroad Co., supra, in construing a similar but somewhat narrower enactment.

Although the prosecutor could not appeal to the county board or other agency designed for the correction of errors, and in fact had no previous notice of the action taken, does not unjustly affect the prosecutor, since a review in the court affords a Ml and effective remedy within the purview of the organic law. The law does not require that the prosecutor shall have a right to a review by the state tax board. It is sufficient that he be not deprived of his property without due process of law.

Even though the prosecutor could not, because of the pend-ency of legal proceedings remove its property from the jurisdiction of the court, it still obtained benefits for which it may be subjected to taxation. The statute does not exempt from taxation property within the state which the owner desires to remove. The determining factor is the existence of property within the taxing district on the taxing day.

The property taxed cost in 1919, $369,000. A receivership proceeding resulted in the withholding of the delivery of a part which was subsequently delivered when a new corporation was formed. The proofs of value for taxation purposes are not too clear. There was a cost of possibly $290,000. Experts give various values to the property in question as equipment or junk. One witness testified that the equipment had the following values on the following taxing days: as of October 1st, 1926, $17,278; as of October 1st, 1927, $16,489; as of October 1st, 1928, $17,527; as of October 1st, 1929, $17,527; as of October 1st, 1930, $11,374; as of October 1st, 1931, $9,847. Another witness testified that on October 1st, 1925, it had as equipment a value of not less than $150,000, and a junk value of $25,000. Although its value for evaporation purposes was halved the junk value of $25,000 remained constant until 1930, when it slipped to $20,000. The spread between the testimony of the witnesses called is wide and both seem somewhat biased. Besides the evidence returned with the writ is meagre. The determination of the true value of machinery in these days is one of the most difficult tasks possible. Therefore, unless the parties are satisfied that the assessments may be reduced by half, the case will be sent back for further proofs, it is to be hoped by competent and impartial witnesses.

Under the circumstances of the case the exaction of interest seems inequitable. The court will, under the statute, fix an assessment of $15,000 for each year upon which taxes shall be paid, but without interest, until the time of demand. However, if this is unsatisfactory to either party further proofs may be taken.


author: Case, J.

text:
    NICK GUERRERO, PETITIONER-DEFENDANT, v. J. P. WHITE AND COMPANY, RESPONDENT-PROSECUTOR.
    Submitted October term, 1933
    Decided January 25, 1934.
    Before Justices Case, Bodine and Donges.
    For the petitioner-defendant, Isadore Rabinowitz and George Gold.

    For the respondent-prosecutor, Gov é Walburg (Arthur F. Mead, of counsel).
   The opinion of the court was delivered by

Case, J.

The writ brings up for review an award by the workmen’s compensation bureau allowing compensation to Nick Guerrero for a hernia found to have resulted from an accident arising out of, and in the course of, his employment, by J. P. White & Company.

The employer’s main contention is that the claimant did not prove his case with the conclusiveness required by the statute. There was no puncture or tearing of the abdominal wall. Consequently, the case comes within the classification which the statute (Cum. Supp. Comp. Stat. 1925-1930, p. 1977, ¶, § 2, subdiv. (x); Pamph. L. 1928, ch. 135) states “will be considered as either congenital or of slow development and not compensable, being a disease rather than an accidental injury; unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain” as to be followed by the conditions enumerated in the live particulars designated in the statute and recited at length in Borodaeff v. Province Line Dairy, Inc., 109 N. J. L. 25; 160 Atl. Rep. 513, and in numerous other decided cases. The statute need not be here, again, set out.

Regarding the general aspects of the case, we state our finding that the proofs unquestionably demonstrate the following facts: On January 12th, 1932, Guerrero was, and for sometime theretofore had been, employed by prosecutor and •engaged in the capacity of timberman in the construction of: a sanitary sewer in the city of Philadelphia. On that day, at about eleven o’clock in the .morning, Guerrero was in a deep trench with five other men carrying a timber weighing upwards of six hundred pounds. The ground was muddy ■and the footing bad. The timber, while being thus carried, struck Guerrero in the groin. Guerrero immediately collapsed and was instantly in pain. He had difficulty in raising himself to a standing posture and did no more work that day. His foreman observed the accident and at the noon hour accepted notice of injury on behalf of the employer but asked Guerrero to assist in finishing the job by remaining and directing a helper what to do. On that solicitation Guerrero continued his presence at the work for a period of about two weeks thereafter, performing no labor but directing another and less experienced man what to do in his stead. Prom the end of that period he was unable even to be present. On •June 9th, 1932, having done no physical labor since the accident, he went to a hospital and was operated upon for hernia. He was discharged from the hospital June 27th or 28th and made a normal recovery. Compensation was allowed from January 29th to June 28th.

The hernia was shown to have descended immediately within the interpretation of that requirement by our cases. Borodaeff v. Province Line Dairy, Inc., supra ; Danco v. Rice & Fishman, 10 N. J. Mis. R. 778; 160 Atl. Rep. 328. Guerrero observed the swelling on the evening of January 12th and because of it and the pain went that same night to Dr. Med, a Philadelphia physician, for treatment.

The proofs, taken as a whole, are convincing that Guerrero did in fact have' a hernia- that was the direct and immediate result of an accident that arose out of, and in the course of, his employment by the prosecutor; and we find that the five particulars 'were proved within the requirements of the statute.

The prosecutor further argues that compensation was improperly allowed from January 29th, 1932, to June 28th, 1932. During that interval Guerrero was unable to work and earn wages. Guerrero had called upon a number of physicians for treatment, repeatedly upon one Dr. Russell, and does not appear to have acted contrary to the instructions of any of them. That the doctors, for whatever reason, did not at once advise an operation does not alter the fact that he was, during that period, suffering a temporary disability. We find m> evidence of malingering. A workman, disabled by a compensable hernia and diligently seeking medical aid, is entitled to compensation during temporary disability. None of the circumstances that under the statute might have lessened the employer’s liability were present.

Prosecutor finally contends that the allowance of $109 counsel fee was excessive and beyond the powers of the compensation bureau. The statute (Pamph. L. 1928, ch. 224; Cum. Supp. Comp. Stat. 1925-1930, p. 1986, pl. **236-58), provides that “the official conducting any hearing under this act may, in his discretion allow to the party in whose favor judgment is entered, * * * a reasonable attorney fee, not exceeding twenty per centum of the judgment * * *.” The award was for $431.43. Twenty per centum amounts to' $86.29. The counsel fee allowed was $100—excessive in the amount of $13.71. Counsel for the respondent concedes that the allowance was excessive. The award may be modified in that respect. In other respects it will be affirmed, with costs.


author: Pee Ctjeiam.

text:
    HI-HEAT GAS COMPANY, PROSECUTOR, v. EDWARD J. DICKERSON, DEFENDANT.
    Argued October 4, 1933
    Decided January 26, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Michael N. Ohanalis.

    For the defendant, Simon M. Seley.

   Pee Ctjeiam.

This writ brings up a determination and award of the workmen’s compensation bureau, rendered April 10th, 1933, in favor of the defendant for temporary and permanent disability resulting from an accident which admittedly arose out of and in the course of his employment by the prosecutor, and a judgment of the Court of Common Pleas of Essex county, rendered August 2d, 1933, dismissing the appeal from the award of the compensation bureau. The question involved in the jurisdiction of the tribunals of this state.

Dickerson was employed by the prosecutor from the year 1928 until January, 1932, to install and repair gas tank regulators in and about Springfield, New Jersey. In January, 1932, he was laid off, the explanation of this act being that work was to be held up pending approval of a regulator by the board of fire underwriters.

On April 8th, 1932, one Lindbloom, who was in charge of the Springfield office of prosecutor, rehired the defendant for work to be performed principally in New City, Rockland county, New York, but to be performed partly in and about Springfield. The details of this employment were agreed upon at the company’s New York office.

On September 16th, 1932, defendant was instructed to proceed from New City to Walden, there to deliver a list of customers at a designated place, and then to continue to Springfield, New Jersey. While on this trip and while still in New York state, the accident occurred'Which resulted in his disability.

•There was a dispute of fact at the hearing as to whether the first employment of defendant had been actually severed and a new employment entered into on April 8th, 1932, or there had been merely a lay-off and then a resumption of the original hiring. The contention of the prosecutor here is that the first employment had been stopped and that there had been a re-employment entered into in the State of New York for work in New York, and that, since the accident also occurred in that state, the courts of this state are without jurisdiction to make an award.

The referee held that the re-employment, if such it was, was entered into in this state, and it made no difference whether the first hiring had ceased. When pressed to rule on this question he held as a fact that there had been no cessation of the employment and it is now contended that there is no evidence to support this finding. The original hiring was in this state for work to be performed herein.

The evidence clearly leads to the conclusion that the hiring of April 8th, 1932, if it was a new contract, was one entered into in this state, between a citizen of this state and a corporation authorized to do business here, for work to be performed partly in this state and partly in the state of New York.

Prosecutor’s first point is that “an entirely new contract of employment was made between petitioner and respondent in April of 1932.” And the second “the contract of hiring under which petitioner was working when injured was entered into in New York.” Granting the first point, we are of the opinion that the evidence justifies a finding that the contract of April, 1932, was entered into in the State of New Jersey, although some of the details were settled at a conference at the main office in New York.

The last point is “if the contract of employment was made in New Jersey, but to be performed exclusively in New York, the court below had no jurisdiction in this case.” In the first place the work was to be performed and was actually performed partly in this state and partly in New York. Finally, this court held in Rounsville v. Central Railroad Co., 87 N. J. L. 371; 94 Atl. Rep. 392; (reversed by the Court of Errors and Appeals on another ground, 90 N. J. L. 176; 101 Atl. Rep. 182), that the courts of this state have jurisdiction to enforce a contract of hiring entered into in this state for work to be performed out of the state. We conclude that such a situation is presented here.

The certiorari brings up the judgment of the Court of Common Pleas of Essex county dismissing the appeal, but that question is not argued here, so we have not considered it.

The award under review is affirmed, with costs.


author: Pee Cueiam.

text:
    FIRE COMMISSIONERS OF FIRE DISTRICT No. 2, OF TOWNSHIP OF MOORESTOWN, NEW JERSEY, PROSECUTOR, v. WILHELMINA A. MORRIS, RESPONDENT.
    Argued October 3, 1933
    Decided January 26, 1934.
    Before Justices Parker, Lloyd and Perskie.
    For the prosecutor, Carr & Carroll.

      For the respondent, Asa M. Stackhouse and Louis B. LeDuc.

   Pee Cueiam.

The writ is to review a judgment of the Common Pleas Court of Burlington county which affirmed a finding of the workmen’s compensation bureau. The judgment was in favor of the employe and the employer has the writ. Substantially the only reason, variously phrased, for reversal is that the death of Joseph H. Morris, husband of the petitioner, did not arise out of and in the course of his employment.

Morris was a member of the volunteer fire department of the township of Moorestown and up to the time of his death was in apparent good health, although of overweight. He was forty-eight years of age. On the evening of the 7th of March, 1933, the fire alarm signal sounded and Morris, having just eaten a hearty dinner, ran rapidly from his home to the firehouse, a distance of four hundred yards. On arriving at the firehouse, and while attempting to start the fire engine, he was seen to slump over the steering wheel. He was taken to a physician for treatment and an examination disclosed that death had already taken place. Medical testimony on behalf of the petitioner was to the effect that death wás due to dilation of the heart caused by the unusual strain of hurrying to the firehouse; on behalf of the prosecutor that death was due to natural causes, having no relation to the strain incident to the hurried effort to reach the firehouse.

Against the prosecutor’s proofs is the coincidence of the exertion under forbidding conditions and the ensuing death, circumstances to which we cannot close our eyes. We think the evidence amply sustained the finding of the deputy commissioner and the finding of the Common Pleas Court. That the death was incident to the employment there can be no doubt, and we think it equally clear that it arose out of and in the course of the employment. The hurry in reaching the firehouse was a natural and indeed necessary act in meeting an emergency where haste was essential. A person past middle age, with full stomach and of excess weight, undergoing unusual physical exertion may not unnaturally anticipate serious effects upon the heart. That the collapse and subsequent death occurred at the termination of his efforts to reach the firehouse is highly persuasive that they were due to this ■cause.

We agree with the result reached in the court below and the judgment is affirmed, with costs.


text:
    GENERAL THEATRICAL CORPORATION OF NEW JERSEY, PROSECUTOR, v. BOROUGH OF VINELAND, DEFENDANT.
    Argued October 3, 1933
    Decided January 26, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Herbert 0. Bartlett.

    For the defendant, Tuso & Stanger.

   Pee Cueiam.

This writ brings up for review ordinance No: 285 of the borough of Vineland, which ordinance regulates the operation of motion picture theatres and other amusements on Sundays. 'The voters of Vineland adopted the provisions of the 1933 .amendment to the Vice and Immorality act. This amendment permits Sunday amusements and gives power to the •governing bodies of municipalities to regulate such Sunday ■exhibitions.

The ordinance under review purports not only to be one •of regulation, but also to be an ordinance for the purpose of raising revenue. The revenue feature is not authorized by the act of 1933, but is claimed to be justified under the Home Pule act of 1917.

It is claimed by the prosecutor, the operator of a motion picture theatre, that the ordinance is unreasonable in its provisions prohibiting the opening of theatres except between one-thirty p. m. and six p. M., and between nine p. M. and eleven-thirty p. m. The purpose of this provision was to-prohibit shows during church hours and it does not appear to-us that the ordinance is unreasonable in this respect.

The eighth clause of the ordinance imposes a charge for the-privilege of operating on Sunday, varying from five cents-for every admission charge of twenty cents or under, to twenty cents for every admission charge over sixty cents. No such taxes are imposed by the borough upon operation of amusements on week days.

This feature of the ordinance is not justified by the act of 1933, because it is clearly not a matter of regulation but an attempt to raise revenue. The defendant claims it is proper under the provisions of article 15, paragraph 2 of chapter-162 of the laws of 1917, providing:

“2. Such governing body shall have the power to fix fees-for such licenses which may be imposed for revenue and to-prohibit all persons and places and vehicles unlicensed from acting, using or being used in such capacity and for such uses and purposes.”

When the legislature entrusts matters to the governing bodies of municipalities to regulate by ordinance, such ordinances must be reasonable, and the question of their reasonable character is one for the court. McGonnell v. Commissioners of Orange, 98 N. J. L. 642; 121 Atl. Rep. 135. We-can see no reasonable basis for imposing a greater tax upon admissions paid at Sunday performances than at those given-on other days of the week. The effect of the act of 1933, when adopted by the voters of a municipality, is to put Sunday amusements on the same basis as those on other days, except-that the governing body is given power to impose different regulations on Sunday operations than those imposed on other days. Whatever these regulations may reasonably include, they certainly may not include the imposition of revenue-raising taxes not imposed on week-day admissions.

The ordinance is set aside.


text:
    MICHAEL GALLAGHER, PROSECUTOR, v. WILLIAM H. SMATHERS, JUDGE, DEFENDANT.
    Submitted October 13, 1933
    Decided January 26, 1934.
    Before Justices Case, Bobine and Donges.
    For the prosecutor, Paul M. Salsburg.

    For the defendant, if. Albert Hyett.

   Pee Cueiam.

This certiorari brings up a judgment of affiliation of the Atlantic County Juvenile and Domestic Relations Court, adjudging the prosecutor to be the father of the bastard child of one Alice Morrow.

In the instant case the suit was not brought in the name of the overseer of the poor, as required by the statute. The affidavit was made by the mother of the child and the proceeding was in her name as complainant.

It is urged by prosecutor that the court never acquired jurisdiction under the statute. 1 Comp. Stat., p. 184. It has been so held in Kaufman v. Smathers. 111 N. J. L. 52; 166 Atl. Rep. 453. That case controls the instant case, the 'situation in essential respects being identical.

The judgment under review is reversed, but without costs.


author: Per Curiam.

text:
    FRANK MAZZELLA, RESPONDENT, v. JOHN B. LEE, APPELLANT. ANNA MAZZELLA, RESPONDENT, v. JOHN B. LEE, APPELLANT. ANNA MAZZELLA, RESPONDENT, v. JOHN B. LEE, APPELLANT.
    Submitted October 13, 1933
    Decided January 26, 1934.
    Before Justices Parker, Lloyd and Perskie.
    Por the appellant, Raymond E. Taylor (Frank P. Zimmer, of counsel).
    Por the respondents, Green & Green.

   Per Curiam.

These appeals are from judgments rendered against the appellant and in favor of the respondents, the cases being to recover damages arising out of injuries received by Anna Mazzella and damage to the ear of Prank Mazzella. The single specification of determinations argued is that there should have been a verdict directed in favor of the defendant on the ground that Anna Mazzella was guilty of negligence which contributed to the accident out of which the actions grew. .It is urged additionally (though without right) that as to one of the actions Anna Mazzella was a trespasser on the defendant’s car and that in such case the defendant owed no duty except to refrain from willful injury. This question, however, was not presented to the trial judge nor is it a specification of error in the determination complained of, and cannot be urged here.

There was a sort of combination of accidents, all, however, growing out of a single circumstance. Anna Mazzella was driving the car of her husband, Prank Mazzella, in an easterly direction on Central avenue in Newark. As she approached Dey street she was stopped by a line of cars, and the appellant coming up from behind collided with her car. Appellant passed out to the side of plaintiff’s car and stopped. Mrs. Mazzella got out, stepped to the rear of her car and called the appellant to look at its damaged condition. To this the latter paid no attention and refused to exhibit his license card which plaintiff had demanded to see. She was holding on to his car as she talked to him and appellant suddenly started his car and dragged her some fourteen or fifteen yards. She was not injured in the original collision but did receive injuries by being thrown and dragged.

Appellant’s contention was that the conditions of traffic were such that his car could not remain where it was, and that he offered to drive the car to a nearby garage and there exhibit his license.

It could scarcely be urged that Anna Mazzella was guilty of negligence contributing to the collision, and whether she was guilty of negligence in attempting to restrain the appellant from moving his car away after he had refused to show his driver’s license, we think was a fair question for the judge sitting without a jury.

Generally speaking the Traffic act of 1928, chapter 281, article 2, paragraphs 2 and 3, which require the driver of a car involved in an accident to stop his vehicle at the scene of the accident and to give his name and address, the registration number of his vehicle, and exhibit his operator’s license, are applicable and normally it is the duty of such driver to comply therewith. Whether the conditions here present were such that remaining where he was and exhibiting his operator’s license was impractical presented a question of fact for the judge sitting without a jury, and whether the efforts of the plaintiff Anna Mazzella in insisting upon his exhibiting his operator’s license and taking hold of his car constituted negligence on her part was also a question of fact to be determined by the judge. Having determined these issues adversely to the appellant, there being sufficient evidence to justify him in doing so, no error is exhibited justifying reversal, and the judgments are affirmed, with costs.


author: Pee Cubiam.

text:
    GEORGE PHILLIPS, PETITIONER-PROSECUTOR, v. FEDERATED METALS CORPORATION, RESPONDENT-DEFENDANT.
    Submitted October 13, 1933
    Decided January 26, 1934.
    Before Justices Case, Bodine and Donges.
    Bor the prosecutor, David BosTcein.

    Bor the defendant, Edwin Joseph O’Brien.

   Pee Cubiam.

This writ brings up for review a judgment of the Essex County Court ■ of Common Pleas affirming a determination of the workmen’s compensation bureau dismissing prosecutor’s petition for compensation.

Prosecutor claimed to be partially disabled through lead poisoning contracted after exposure in the plant of the defendant. He began work in that plant in 1925, and worked as a laborer in the dross room, where he might be exposed to lead poisoning, from February 18th, 1929, until February 12th, 1931; on that date he was transferred to the ingot department and worked there until April 23d, 1931, when he was transferred to the warehouse where he worked until August 7th, 1931, when he was laid off,

There seem to be two questions in the case; first, whether prosecutor has or ever has had lead poisoning; and second, whether he made known his condition to his employer within five months of his last exposure, as required by the statute. Both these questions were decided against him by the compensation bureau. The Common Pleas judge held that the evidence did not warrant a finding that prosecutor had lead poisoning, and further that he had never been sufficiently exposed to contract the disease.

It seems that on the main question, as to whether or not prosecutor suffered from the occupational disease of lead poisoning, there is presented a pure determination of fact upon which there was evidence upon both sides. Several physicians supported the contention of prosecutor and several others denied it. Two tribunals have found the testimony on behalf of the employer to be more entitled to weight and credence. The arguments of counsel indicate that the evidence is fairly evenly divided. We are of opinion that the weight of the evidence supports the finding of the compensation bureau and of the Essex County Court of Common Pleas.

As to the other question, there was also a question of fact as to whether there was any exposure during the latter months of prosecutor’s employment in the warehouse. There was evidence that he had to go about the plant and that fumes from one department permeated to the warehouse. The weight of the testimony leads to the conclusion that prosecutor was not so exposed within five months of the date when he gave written notice of alleged disability.

The writ is dismissed, with costs.


text:
    BIGBORO REALTY CORPORATION, A NEW YORK CORPORATION, APPELLANT, v. OTIS R. COLE, RESPONDENT.
    Submitted October 13, 1933
    Decided January 26, 1934.
    Before Justices Parker, Lloyd and Perskie.
    For the appellant, Julius Stein.

    For the respondent, Henry C. Berg.

   Per Curiam.

The action is for rent and the defense an eviction by the landlord and counter-claim based thereon. The plaintiff, the owner of an apartment house at 71 West Twelfth street, New York City, leased an apartment to the respondent on August 3d, 1931, to terminate September 30th, 1932. The tenant, an army officer, took possession, and having been assigned to other duties moved out on May 31st, 1932, retaining the keys and potential possession thereafter, paying the rent up to and including July 1st, in advance. Suit was brought for the two months’ rent of August and September, 1932. The judge gave judgment for the defendant on his counter-claim and the plaintiff appeals.

The contention of the appellant is that there was no adequate proof of eviction and that in any event the damages awarded were not justified under the evidence.

The defendant’s proofs were that when he learned of his assignment to other duties he talked to the landlord about being released from the rent, and failing that, about getting the property re-rented; that the agent agreed to try to re-rent but said that as there were a number of vacancies, his would have to take its turn; that he would not release defendant from the rent; that instead of doing this, in July, 1932, the landlord began to put furniture in the apartment; that defendant’s key would not open the lock of the door and he was unable to get access to the apartment on visits to the premises to see whether or not mail had been left under his door. The agent admitted that he did put a small amount of furitnure in the apartment, but that it was in pursuance of an agreement between them that the property might rent better if it were furnished.

The landlord appellant contends that this evidence was insufficient to justify an eviction and that in any event under a provision of the lease that “if the demised premises become vacant or shall be abandoned or deserted by the tenant * * * the landlord at any time thereafter may take possession,” and that the right to collect the rent should not be impaired, was violated and that the landlord’s right of recovery still remained.

We think the question of eviction was one for the trial judge sitting without a jury. If the tenant’s evidence was believed it was sufficient for the purpose. On the same basis the provision of the lease above quoted would not be applicable. Finding that there had been an eviction, it followed that the tenant was entitled to recover the damages sustained thereby, and there is nothing in the proofs to show that these were not properly accorded.

The judgment is affirmed, with costs.


text:
    POLISH NATIONAL ALLIANCE, RELATOR, v. ANTHONY PERRAPATO, MAYOR, ET AL., DEFENDANTS.
    Submitted October 13, 1933
    Decided January 26, 1934.

      Before Justices Case, Bodine and Donges.
    For the relator, Joseph J. Weinberger.

   Per Curiam.

This is a rule to show cause why a peremptory or alternative writ of mandamus should not issue to compel the city of Garfield, and its tax collector and governing body, to cancel of record certain tax and assessment liens upon certain property in that city.

It appears that in February, 1930, one George Delekta «owned property in Garfield. He applied for a mortgage loan to the relator herein, Polish National Alliance, which- was willing to grant the loan but required a title policy of the Equitable Title and Mortgage Guaranty Company. At the time of closing it appeared that a tax search by the collector showed outstanding certain taxes for 1928 and 1929, as well as sewer and other assessments. The title insurance was refused unless these were paid. Thereupon Delekta went to the tax office and paid the sums due by check, receiving receipted bills, and had the tax search marked “paid” by the collector. Subsequently, when the mortgage was being foreclosed, the relator learned that the liens had not been canceled because the checks given in payment therefor had been returned as not good.

Application for a peremptory or alternative writ of mandamus to compel the cancellation of the liens is made under 4 Comp. Stat., p. 5182, f 224, which reads:

“Whenever any collector of taxes, treasurer or other public-officer of any city, town, borough, township or other municipality of this state is authorized or empowered by statute or by resolution or ordinance of the common council or township committee, to make searches of the tax or assessment records thereof, or to make official certificates as to what tax, assessment or other municipal liens appear against any real estate therein, such'city, &c., shall as against purchasers and mortgagees in good faith procuring such official certificates, be estopped from collecting or continuing as liens or ecnumbrances upon any real estate to which such certificates shall refer, any tax, assessment or municipal liens which were encumbrances, thereupon during the period covered by such searcher not shown or mentioned in any such official certificate, &e.”

And under Pamph. L. 1918, ch. 231, p. 886, ¶ 14:

“Any person who shall acquire for valuable consideration an interest in any such lands covered by any such official tax search in reliance on said tax search, shall hold such interest free from any municipal lien held by the municipality and not shown on such search/-’

It thus appears that the relator, as a mortgagee in good faith, did rely upon a search of the tax collector which showed the liens in question as having been paid.

There is no affirmative showing that this collector had been authorized to make searches, although it is alleged that he was so authorized. The act of 1918, in section 10, requires the governing body of each municipality to appoint a bonded official to make examinations of its records as to unpaid liens and authorizes the official so designated to make official certificates of searches. So, for present purposes, it may be taken for granted that the law was complied with in this respect and that the tax collector, who made the search, was authorized to make such searches. Especially so, in view of the fact that the city makes no appearance upon this application.

An alternative writ of mandamus will issue.


text:
    PETER OLOSH, PETITIONER-PROSECUTOR, v. GENERAL LEATHER COMPANY, RESPONDENT-DEFENDANT.
    Submitted October 13, 1933
    Decided January 25, 1934.

      Before Justices Case, Bodine and Donges.
    For the prosecutor, Bospond & Bospond.

    For the defendant, Maurice J. McKeown.

   Per Curiam.

This writ brings up the action of the workmen’s compensation bureau in dismissing prosecutor’s petition for the reopening of a compensation case on the ground of increased disability.

Prosecutor was injured while working for the respondent on November 20th, 1928. A formal petition was filed and brought on for hearing on December 10th, 1929. It was admitted that the injury resulted from an accident which occurred in the course of the employment and arose out of the employment, the only question in dispute being the extent of disability. Some witnesses were heard and then it was announced to the referee that the parties had agreed upon an award of twenty-five per cent, disability of one hand. A formal determination was subsequently filed, reciting the testimony taken and that it was stipulated that the medical witnesses would have testified to certain facts, some to ten per cent, of disability of one hand and others as much as fifty per cent. Then the referee found a loss of twenty-five per cent, of the use of the right hand and announced that he made this finding on the basis of the evidence and the stipulations. The award was paid in a lump sum. Prosecutor had further trouble with his hand and within one year from the payment filed a petition claiming further disability.

The question is whether the second petition was filed “within one year after the date of any voluntary payment of compensation by the employer, or any agreement to pay such compensation,” since it was not filed within one year of the accident.

Herbert v. Newark Hardware and Plumbing Supply Co., 107 N. J. L. 24; 151 Atl. Rep. 502; affirmed, 109 N. J. L. 266; 160 Atl. Rep. 492, is relied upon by the respondent. There it was held that payment of a judgment in a contested case was not a voluntary payment within the meaning of the section of the statute in question.

In Thomas v. Liondale Bleach, Dye and Print Works, 10 N. J. Mis. R. 255; 159 Atl. Rep. 313, the parties entered into an agreement of compromise which was approved by the bureau and this was held not to be such a final judgment as would preclude the filing of a petition within one year after payment thereunder. It would appear in that case the approval was on the basis of the agreement of the parties and was not based upon any evidence presented to the bureau.

The instant case is like that of Boyko v. Federated Metals, 11 N. J. Mis. R. 807, affirmed by the Court of Errors and Appeals, 112 N. J. L. 87. There evidence was taken before a deputy commissioner and the case was finally compromised. A formal judgment was entered. It was held that Herbert v. Newark Hardware, supra, controlled and the judgment was a formal one which was a bar to the filing of a new petition. This case falls within the same rule, particularly in view of the fact that the deputy commissioner specifically said that he made his determination “from the testimony and the facts stipulated,” and apparently did not merely acquiesce in the compromise of the parties.

The writ is dismissed, with costs.


text:
    HENRY STEINHAUSER, TRADING AS SERVICE MOTOR COMPANY, PROSECUTOR, v. SAUL FRIEDMAN AND JUDGE OF THE DISTRICT COURT OF THE CITY OF CLIFTON, RESPONDENTS.
    Submitted October term, 1933
    Decided February 6, 1934.

      Before Justices Parker, Lloyd and Persicie.
    Por the prosecutor, William V. Rosenlcrans.

    Por the respondents, Samuel Heller.

   Per Curiam.

The writ of certiorari is to test the validity of the vacation of a judgment in favor of the defendant in the District Court, and the entry of a judgment in favor of the plaintiff in substitution after a lapse of more than thirty days following the entering of the final judgment.

The plaintiff sued to recover damages for personal injuries sustained through the sudden starting and stopping of the defendant’s car. The record shows that the ease was called for trial and the plaintiff'only appeared. The court proceeded to hear the case in the defendant’s absence, reserved decision on December 13th, 1932, and on January 4th, 1933, rendered a judgment of “no cause for action.” On the 1st of March following, plaintiff’s attorney gave notice that on March 7th he would move for a judgment in favor of the plaintiff, and on March 16th following, the judge vacated the judgment of “no cause for action” and entered judgment in favor of the plaintiff for $75.

Dnder the seventeenth section of the District Court act the judge is empowered to order a new trial provided the application is made within thirty days,after judgment, except in cases of newly discovered evidence. The record is devoid of anything to show that the application is based on newly discovered evidence, and hence the court was without authority to vacate its judgment of two months before.

• This, however, does not finally dispose of the case. Chapter 156, laws of 1932, page 277, enacts that “it shall be the duty of the clerks of the several District Courts, whenever any judge of any District Court shall have reserved decision in any cause tried before such judge, * * * to notify the attorneys of the respective parties, or if there be no attorneys, the parties themselves, of the court’s determination, when same shall have been made, forthwith by registered mail; the signed returned receipt therefor shall be accepted as proof of such notification, and shall be filed by the clerk with the papers in .said cause and the fact and date of its receipt shall be recorded by the clerk in the docket containing the entries of the said cause.

2. In the event of the failure of the clerk to comply with the requirements of section one, then the judge of said court, on application being made to him by any person aggrieved by such failure, shall direct the clerk of said court to enter said judgment or determination as of such date as shall be fixed by said judge, which said date shall be a date subsequent to such application and shall be the date of final judgment or determination to all intents and purposes as though the judge had not reserved decision in said cause.”

This act was approved May 2d, 1932, and went into effect on July 4th, of the same year. The summons in the present case was issued July 11th, 1932, and of course was subject to the provisions of the act. The record of the cause fails to disclose that the first section was complied with by the clerk. In the situation here presented no valid judgment has been entered in the cause either the one of January 4th, 1933, or the judgment of March 16th, 1933. It is, therefore, open to a party aggrieved to apply to the court for the entry of a judgment as of such date subsequent to such application as he shall determine.

The judgment is reversed and the cause is remitted to the court below to be proceeded in according to law.


text:
    SEEMAN BROTHERS, INCORPORATED, A CORPORATION, PROSECUTOR, v. LEO GOLDBERGER, JUDGE OF THE DISTRICT COURT OF THE CITY OF PERTH AMBOY, DEFENDANT.
    Submitted October term, 1933
    Decided January 31, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Milton M. Unger.

    For the defendant, Leo 8. Lowenkopf.

   The opinion of the court was delivered by

Case, J.

The writ of certiorari brings up an order made in the District Court of the city of Perth Amboy denying an application of Seeman Brothers, Incorporated, a corporation, appearing specially, to set aside the service of process in an action brought against it by Malve Levinson. The attempted service was on one Harry Wagner, and the return of the constable was: "I served the within summons July 5th, 1933, on Seeman Brothers, Incorporated, a corporation, by serving Harry Wagner, salesman for Seeman Brothers, Incorporated, a corporation, the defendant, by reading the same to him and delivering to him a copy thereof.”

The state of demand alleges that plaintiff was injured by biting upon a foreign substance contained within a can of peas that was purchased by Levinson from an unnamed distributor, and that was labeled and put up for sale by the defendant. The action is on a tort that in no way involves Wagner. In addition to the oral testimony and the exhibits received at the hearing, ex parte affidavits were submitted to, and considered by, the court below. Objection to that course was not made below and is not made here.

It does not appear from the record whether Seeman Brothers, Incorporated, is a domestic or a foreign corporation, although the proofs do show that its place of business is in New York City.

Wagner, under the employ and pay of Sanford C. Flint, a wholesale groeeryman of Asbury Park, New Jersey, was engaged in selling Seeman products to retail stores. He rendered minor incidental services for, but was not in the employ or pay of, the prosecutor. He did not have charge of the business or corporate concern of prosecutor and was not authorized by the latter to receive service of process. Neither in the pleading or the proofs is there aught to suggest that the article with which Levinson finds fault came within the business transacted by Wagner. He was essentially a field salesman and was served with the summons while in a Perth Amboy store soliciting business for Flint. There is nothing from which we can conclude that prosecutor was, as a foreign corporation, doing business in this state; such inferences as we may draw are to the contrary. Jager v. Breslow, 9 N. J. Mis. R. 1069; 156 Atl. Rep. 493.

Whether prosecutor is a domestic or a foreign corporation, the service upon Wagner was not service upon it. The statutes do not authorize such a service, and the cases are adverse. Sections 87 and 88 of “An act concerning corporations (Revision of 1896),” 2 Comp. Stat., p. 1653, § 46, of “An act concerning District Courts (Revision of 1898),” 2 Comp. Stat., p. 1966; Deraimonondo v. Caucimo, 109 N. J. L. 204; 160 Atl. Rep. 579; Erie Railroad Co. v. Van Allen, 76 N. J. L. 119; 69 Atl. Rep. 484.

A statement of partial facts of the case, compiled by the court below, sets forth that there was testimony “that customers dealt with Wagner as the ostensible representative of Seeman brothers,” and we infer that it was upon the theory of ostensible agency that the conclusion below was reached. That theory, is as we understand it, that when a principal has induced a third person to believe that another is his agent, he may, under sufficient circumstances, be equitably estopped from denying, as to such-third person, the fact of agency. 2 C. J. 427, 461. But-it has no present application because the suit itself does not turn upon Wagner’s agency.

The order made in the District Court was erroneous. The service of process and state of demand will be set aside, with costs.


text:
    GEORGE E. GEIER, PROSECUTOR, v. STATE OF NEW JERSEY ET AL., DEFENDANTS.
    Submitted October 13, 1933
    Decided February 1, 1934.
    Before Justices Case, Bodine and Donges.
    Por the prosecutor, James F. Murray.

    Por the defendants, James A. Hamill and Charles A. Rooney.

   Pee Cubiam.

Prosecutor was convicted by the Pirst Criminal Court of Jersey City of being a disorderly person within the intent and meaning of chapter 280 of the laws of 1933, a supplement to the act concerning disorderly persons, which conviction was affirmed by the Hudson County Court of Common Pleas, on prosecutor’s appeal thereto. This writ was allowed to review said judgment.

The complaint alleged that “George Geier, of 299 Grove street, Jersey City, Hew Jersey, was apprehended at Morgan and Henderson street, a public thoroughfare in Jersey City, a municipality of this state, who did have no legitimate business in said municipality, who did not give a good account of his presence therein and who did consort with one Charles Cuton and one Peter Keegan known criminals contrary to and in violation of the provisions of chapter 280, laws of 1933.”

The act provides in part:

“1. Any person who shall be apprehended in any municipality of this state or on any public thoroughfare, or in any automobile, vehicle or public conveyance, or in any public place, and shall have no legitimate business in said municipality of this state, and/or who cannot give a good account of his presence in said municipality of this state, and/or who shall be proven to the satisfaction of the magistrate before whom such person shall be brought, by the testimony of two competent witnesses, to have consorted with known thieves, burglars, pickpockets, swindlers, confidence men or other classes of criminals, * * * shall be deemed and adjudged a disorderly person.”

A number of reasons for reversal are written down, among them that it was error to find the prosecutor guilty as charged. We deem it necessary to consider only this point, and do not deal with the reasons challenging the sufficiency of the form of conviction and the constitutionality of the statute.

The act provides as a requisite to guilt that the person apprehended “shall have no legitimate business in said municipality of this state.” If this fact be established and concurs with one or more of the conditions mentioned in the act, then, under the terms of the act, such person may be deemed a disorderly person. In the instant ease, it was alleged in the complaint and testified to by the prosecutor without contradiction that he was born in Jersey City and had resided therein since his birth; that he was a constable of the municipality at the time of his arrest. In this situation it can hardly be successfully asserted that he had no legitimate business to be within the confines of the city, or that he did not give a good account of himself, within the meaning of the act, when he was apprehended within a few blocks of his place of residence. His explanation of his presence on the street was that he was endeavoring to have a petition signed by some of his fellow workers. He asserted that he had met the persons alleged to have been known criminals on only one occasion and that he did not intend to meet them again.

In the situation presented, we conclude that the proofs utterly failed to establish that the prosecutor had no legitimate business in the municipality and that he failed to give a good account of himself, within the intent and meaning of the statute.

Por this reason the judgment of the Hudson County Court of Common Pleas is reversed and the conviction is set aside, without costs.


text:
    GEORGE LIPINSKI, RESPONDENT, v. JOHN FRANK AND LOUIS BRESSMAN, APPELLANTS.
    Submitted October term, 1933
    Decided February 6, 1934.
    Before Justices Parker, Lloyd and Perskie.
    Por the appellants, Nathan H. Berger.

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

This was an action in the District Court by a tenant against his landlords to recover damages for eviction from the demised premises and damages for an unlawful distraint in that it was too great and unreasonable. There were two counts in the state of demand and the trial judge, sitting without a jury, found for the plaintiff on both and awarded damages in the sum of $100.

The distraint was for a month’s rent of $45, upon all of the goods upon the premises. The plaintiff was ordered off the property under threat of putting him out bodily, the place padlocked and plaintiff prevented from re-entering. Plaintiff offered to pay the rent, but not the costs incurred. This was refused and the goods were sold for $50. The fair market value of the goods according to the proofs was $450.

Section 1 of the act “concerning distresses” (2 Comp. Stat., p. 1939), provides “that all distraints made or taken or to be made or taken for any cause whatsoever shall be reasonable and not too great; and if any person shall take great and unreasonable distress or distresses he or she shall answer the damages to the party aggrieved.”

We think the evidence justified a finding in favor of the plaintiff that the distraint was “great and unreasonable,” and that the landlord would therefore be without right in impounding the goods and locking the plaintiff out of his property. This being true it would follow that there was not only the unlawful act of impounding but that the consequent padlocking of the property might properly justify a holding that there had been an eviction.

The judgment is affirmed, with costs.


text:
    GREENBLATT COAL COMPANY, APPELLEE, v. SARAH JACOBS, APPELLANT.
    Submitted October 13, 1933
    Decided February 2, 1934.

      Before Justices Parker, Lloyd and Perskie.
    Por the appellant, Paul Rittenberg.

    Por the appellee, Peter Cohn.

   Per Curiam.

The “brief specification of the determinations or directions of the District Court” required by rule 145 of this court as assigned by appellant, brings up no ruling of the District Court in such wise as to present a proper basis for review. There are three specifications. The first is that “the trial court erred in awarding judgment in favor of plaintiff against defendant.” This was definitely condemned by the Court of Errors and Appeals in Cohn v. Passaic National Bank, 109 N. J. L. 449; 162 Atl. Rep. 555. The second is that “there was no legal evidence adduced to support the judgment in favor of plaintiff.” This points to no judicial action to be reviewed. Klein v. Shryer, 106 N. J. L. 432; 150 Atl. Rep. 321. The third is that “the judgment in favor of plaintiff is contrary to law.” This has been overruled many times as constituting no specification of anything beyond mere general error. State v. Lavine, 96 N. J. L. 356, 357 (12); 115 Atl. Rep. 335; Booth v. Keegan, 108 N. J. L. 538, 539 (1); 159 Atl. Rep. 402.

If there be no specification at all, the practice is to dismiss the appeal; but if the judgment .cannot, be reversed on any ground specified, it will be. affirmed. Sentliffer v. Jacobs, 84 N. J. L. 128, 130; 86 Atl. Rep. 929; Booth v. Keegan, supra. ■ 1

No alleged error being properly specified, the judgment is accordingly affirmed, with costs.


text:
    JOHN W. VERNAM, Jr., RELATOR, v. BLAINE W. SCOTT ET AL., DEFENDANTS.
    Submitted October 13, 1933
    Decided February 1, 1934.
    Before Justices Case, Bodine and Donges.
    For the relator, Minton & Rogers.

    For the respondents, George A. Celia.

   Pee Cueiam.

This is an application for an alternative or peremptory writ of mandamus by a stockholder to compel the defendant corporation, Crane Milk Company, and its president, Blaine W. Scott, to permit an examination of the books of the corporation by the relator and an accountant. The relator is the holder of forty-four shares of preferred stock of the defendant-corporation which he acquired as part payment for a dairy business which he conveyed to the company early in 1930 when it was organized to take over the business of ten independent dairies operating in and about the city of Trenton.

It seems clear that a stockholder is entitled to examine the books of the company unless it be shown that the examination is not sought in good faith and for some ulterior motive. This is the issue in the case, the defendants having sought by the voluminous testimony to establish that the relator is not acting in such good faith as to be entitled to the assistance of the prerogative writ of this court. Feick v. Hill Bread Co., 91 N. J. L. 486; 103 Atl. Rep. 813; affirmed, 92 N. J. L. 513; 105 Atl. Rep. 725.

As stated, the evidence is voluminous and it is difficult to ascertain the true situation. The relator was one of ten milk dealers who in March, 1930, conveyed their business to Grané Milk Company, a subsidiary of United States Dairy Products Corporation. Pive of these dealers were given employment with the new company. All of them signed agreements covenanting not to engage in the dairy business in and around Trenton for a period of years, five years in some cases and ten years in others. The relator was given the position of sales manager at a salary of $56 per week, which employment lasted until July 14th, 1933.

At the time relator sold his business, he received in addition to the forty-four shares of seven per cent, cumulative preferred stock, approximately $4,500 in cash. Dividends were paid on the stock until July 1st, 1933, the payment due on that date being passed, as was that due on October 1st, 1933. Payment of dividends of the stock of Crane Company held by relator was guaranteed by the United States Dairy Products Corporation.

The conflict in the testimony centers around the conduct of the relator whilst employed by defendant. Dissatisfaction arose among the employes of defendant who had sold it their businesses and covenanted not to enter into competition. Some of them left the employ of defendant and started milk routes of their own, which resulted in suits in the Court of Chancery by which Crane Company secured injunctions enforcing the aforementioned covenants in the agreements of sale.

Mr. Scott, the president, being dissatisfied with the business of the company under the management of sales by relator, brought to Trenton from another branch of the parent company one P. Randolph Miller and placed him in authority above relator. This action clearly appears to have been resented by relator, and from that time on his attitude toward the employer by whom he was being paid seems to have definitely changed. Miller testified that the orders posted by himself and Mr. Scott were freely criticised by relator who would tell the men under him that the orders were impossible of execution.

There is in the record the testimony of one Davis, a driver of defendant, who sold his business in like manner to the company, to the effect that at the time when the trouble arose among the drivers, the relator in company with two other employes called at his house and discussed whether or not they should remain with defendant or leave its employ. On this occasion relator said to Davis that “he wished he could count on you and Lear the same as he could count on the rest of them.” This conveyed to Davis that relator wished he could count on him and Lear quitting defendant’s employ as much as he could count on the rest of the men involved quitting.

Joseph B. Scudder, a dairy farmer who sold milk to defendant, testified to a conversation with the relator during the course of which relator “said he was out to get Mr. Scott.”

Relator was finally transferred to Atlantic City for a period, in order, as Scott says, to see if his attitude toward co-operating with his superiors in Trenton would change. While in Atlantic City, according to the testimony of Wilson, a foreman, relator caused dissatisfaction among the drivers by telling them they were not being paid sufficient money for their sales in connection with a contest which the company was conducting. While relator was in Atlantic City he met one Blumberg, a former employe of Crane Company, who was out of work. Relator informed Blumberg that George Beck, Jr., one of the employes who had quit defendant company, was attempting to organize certain of the other employes and former employes into a company to compete with Crane Company. He advised Blumberg to get in touch with Reck and gave him thirty cents to telephone him at Trenton.

After his return to Trenton, relator’s relations with the company ceased, he stating that he was discharged and the company insisting that he quit.

The defendants offered other testimony of acts on the part of the relator which they claim show his lack of good faith in other respects.

The situation presented by the testimony leads to the conclusion that the relator’s conduct has not been such as to entitle him to the extraordinary aid of this court. He was disloyal to the employer which was paying him his weekly salary; he failed and refused- to co-operate with his superior officers; he counseled with those who were leaving the company and attempting to ruin its business by violating their covenants; all this while he was an employe and stockholder of the company which he now says was mismanaged. The failure to pay dividends is no evidence of mismanagement, because many large and' well managed companies have during the period of economic dépression been forced to forego payment of dividends on their preferred stocks.

Relator seems to be motivated largely by a feeling of animus toward Mr. Scott, the president, and other employes of the Crane Company. He stated he would “get Mr. Scott.”

- In McMahon v. Dispatch Printing Co., 101 N. J. L. 470; 129 Atl. Rep. 425, mandamus was denied because the evidence showed bad faith, and that the application was actuated by personal hostility against the president of the corporation, without any proof of mismanagement.

Relator makes a point of the fact that the annual reports of the corporation to the secretary of state for the years 1930 and 1932 do not show the issue of preferred- stock of which relator’s holding is a part as outstanding. It is admitted that these reports are erroneous and that relator holds valid stock.

Relator relies upon evidence of a decrease of business as evidence of mismanagement, but it appears that this loss of business was caused in part at least by the conduct of relator and other employes of defendant who, having sold their businesses and taken employment, became dissatisfied with their situations.

Relator contends that the evidence creates a suspicion that some of the dividends paid on preferred stock were not paid out of earnings, and that this is evidence of mismanagement. The testimony is not sufficient to sustain this argument.

In re De Vengoechea, 86 N. J. L. 35; 91 Atl. Rep. 314, lays.down the rule that the power to order an inspection of the books of a corporation is so great, and its exercise may have such ruinous consequences, that it will be ordered only when “a case is presented which indicates not only a hona fide desire to safeguard the interests of all stockholders but a probability that the interests of all will be served by the proposed investigation.”

On the whole the relator’s reasons for seeking the detailed examination of all the books of the corporation are not impressive. His application has the marks of a fishing expedition, designed to find Some entering place for a wedge to injure the corporation, and possibly drive it out of business. It does not appear to be in the interest of the stockholders. The fact that he is under contract not to enter into competition for a period of time is significant.

The rule is discharged and the application for the writ is denied, with costs.


author: Brown, S. C. C.

text:
    FLORENCE McBRIDE, PLAINTIFF, v. NEW AMSTERDAM CASUALTY COMPANY, A CORPORATION OF THE STATE OF MARYLAND, DEFENDANT.
    Decided January 23, 1934.
    For the plaintiff, Eichenbaum, Kantrowilz •& Eichenbaum.

    For the defendant, Joseph G. Paul.

   Brown, S. C. C.

The defendant moves to strike the complaint in the above entitled cause on the grounds that the “plaintiff is not in privity of contract as alleged in the complaint;” that the complaint does not set forth a cause of action; and “chapter 153, laws of 1924, does not contemplate .a cause of action as set forth in the complaint. The complaint to which the motion is addressed is in two counts; the first charging the defendant insurance company with having on January 15th, 1933, issued to one John Zemboski, a policy of insurance, a copy of which is annexed to the complaint in which the defendant company “did agree to indemnify the aforesaid John Zemboski as more particularly set forth in said policy of insurance.” Other further averments are to the effect that while the policy of insurance was thus in effect the plaintiff “sustained great bodily injuries by reason of an accident occurring on premises commonly known as 34 Orient avenue, Jersey, New Jersey, and owned by the said John Zemboski, the above named assured.

In February, 1933, the plaintiff brought suit against Zemboski for those injuries and on November 24th, 1933, was awarded a verdict in the sum of $1,800. The plaintiff demanded payment of the judgment without success and an execution was returned unsatisfied by the sheriff on December 14th, 1933. Plaintiff also charges Zemboski with being insolvent and financially irresponsible.

The second count repeats the allegations in the first count and further charges that the cause of action “has accrued by virtue of “An act to provide for the regulations and incorporations of insurance companies and to enact the transaction of insurance business in this state (laws of 1902, page 407) as amended by the laws of 1924, chapter 153, page 352, of the State of New Jersey, and the various supplements and amendments thereto.” While demurrers are abolished and motions are substituted therefore, the principles of the common law method of pleading are essentially followed :

The motion to strike is directed to the complaint generally and therefore is in the nature of a general demurrer. The motion not being in the nature of a special demurrer if there is a cause of action stated anywhere in the complaint the motion to strike should be denied.

By the terms of the policy of insurance, made part of the complaint, the defendant casualty company agreed to insure John Zemboski to the limit of $5,000 for bodily injuries sustained by any person by reason of the ownership, care and maintenance of the occupation of the premises referred to in the complaint. The complaint also contains the further provision that “the bankruptcy or insolvency of the assured shall not release the company from any payment otherwise due hereunder and if, because of such bankruptcy or insolvency, an execution on a judgment against the assured -is returned unsatisfied, the judgment creditor shall have a right of action against the company to recover the amount of said judgment to the same extent that the assured would have had to recover against the company had the assured paid the judgment.”

Pamph. L. 1902, p. 407, provides for the incorporation of insurance companies, among other things, to indemnify against loss or damage resulting from accident to or injuries suffered by any person for which loss or damage the insured is liable. Pamph. L. 1924, p. 352, is a supplement to the law of 1902, and provides:

“ISTo policy of insurance against loss or damage resulting from accident to or injury suffered by an employe or other person and for which the person insured is liable * * * shall be issued or delivered in this state by any corporation or other insurer authorized to do business in this state unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages for injury sustained or loss occasioned during the life of such policy, and stating that in case execution against the insured is returned unsatisfied in an action brought by the injured person * * * because of such insolvency or bankruptcy then an action may be maintained by the injured person * * * against such corporation under the terms of the policy for the amount of the judgment in said action not exceeding the amount of the policy * * *. A policy issued in violation of this section, nevertheless, shall be held valid but be deemed to include the provisions required by this section, and when any provision in such policy or rider is in conflict with the provisions required to be contained by this section, the rights, duties and obligations of the insurer, the policyholder and the injured person shall be governed by the provisions of this section.”

The policy upon which suit is brought contains this statutory requirement and both by the terms of the policy as well as-.the-statutory enactment last quoted the plaintiff has a right of action against the defendant insurance company. The defendant also makes objection that -the fact that execution was returned unsatisfied is no proof of insolvency. As stated in the case of Horn v. Commonwealth Casualty Co., 105 N. J. L. 616: . . - . . ...

.- .“It is hard to conceive a more cogent proof- of inability to answer pecuniary' engagements than the return of an execution unsatisfied.” :

The motion to strike' the complaint will be denied.


text:
    CHARLES L. SYLVESTER AND SIDNEY HARRIS, PARTNERS, TRADING AS SYLVESTER & HARRIS, RESPONDENTS, v. LOUISE KOEHLER AND HUGO KOEHLER, APPELLANTS.
    Submitted October term, 1933
    Decided February 6, 1934.
    Before Justices Parker, Lloyd and Perskie.
    For the appellants, Nicholas S. Schloeder.

    For the respondents, Alfred E. Modarelli.

   Per Curiam.

Plaintiffs are attorneys at law in the State of New York. They brought suit upon an agreement signed by the defendants obligating themselves to pay $500 for securing permission from the federal government for Hugo Koehler to leave the United States, return to Germany and then come back to the United States, or to get a warrant of deportation canceled. At the conclusion of the proofs the trial judge directed a verdict in favor of the plaintiffs. To this direction exception was noted and the ruling is the basis of the present appeal.

We think the direction of the trial court was error. While the signing of the agreement was admitted by the parties, the testimony of Mrs. Koehler was to the effect that' her first communication was with Charles F. Sylvester, one of the plaintiffs, on July 30th, 1932, at which time she requested him to handle the situation arising out of a warrant of deportation for her husband, and that it was agreed that if the plaintiffs were successful a substantial fee would be paid, but not otherwise; that on August 9th, 1932, she paid $100 to one Schirman, employed in the plaintiffs’ office. She further testified that on August 20th she again visited the office of the plaintiffs and saw Mr. Sylvester; that she discussed with him the matter of a bond, conditioned that her husband would not become a public charge, and was told she would have to sign an agreement to the effect that she would put up a bond for $500 as might be required, but nothing was said about legal fees. She further stated that Sylvester presented her with a letter (the writing on which the suit is brought) which she thought was the agreement to put up a bond, and that she signed but without reading. While the testimony of Sylvester is in conflict with the foregoing the credibility of the parties was for the jury and not for the court.

It is well settled that fraud may be committed by actions as well as by woi'ds. Puder v. Smith, 104 N. J. L. 150; 139 Atl. Rep. 23. If the testimony of Mrs. Koehler is to be believed the jury might infer an implied representation that the paper which she was asked to sign was solely with respect to the bond which she had been told would be required, and upon which she might have relied, particularly in view of the relation of attorney and client existing between the parties.

We find no error in overruling the conversation between Mrs. Koehler and the man Schirman respecting fees to be paid in the case in the absence of proof that Schirman was authorized to speak for the firm by whom he was employed.

The judgment is reversed and the record remitted for further proceedings according to law.


text:
    GEORGE KIDDER, RESPONDENT, v. HARRY HOFFMAN AND WILLIAM A. HOFFMAN, TRADING AS HOFFMAN’S MOTOR TRANSPORTATION, APPELLANTS.
    Submitted October term, 1933
    Decided February 6, 1934.
    Before Justices Parker, Lloyd and Pbrskie.
    Por the appellants, Holmwood & Creighton.

    Por the respondents, Jacob W. Silverman and Raymond J. McDonald.

   Per Curiam.

These two cases were tried together and resulted in a judgment for the plaintiff in each case, the one being for damages arising from personal injuries, the result of a collision between an automobile of the plaintiff and the defendant’s truck, the other for damages to the plaintiff’s automobile based upon the same cause of action. The defendant appeals and contends that there should have been a nonsuit or direction of a verdict in its favor because of the failure to establish negligence in the defendant and because the plaintiff himself was guilty of contributory negligence.

We think these grounds are without merit and that the motions were properly denied. The plaintiff was proceeding west between Jersey City and Newark on the right-hand side of the Lincoln highway (a street one hundred and ten feet wide) when the defendant’s truck, proceeding from the west, on the same highway, attempted to cross in front of plaintiff’s car for the purpose of entering Jacobus avenue, a street which enters Lincoln highway from the north but does not cross it. Plaintiff testified that when he was thirty feet from Jacobus .avenue the defendant’s truck was still five feet to the west of Jacobus avenue on the Lincoln highway: that when he was three-fourths of the way across Jacobus avenue his left front wheel was hit by the right front wheel of the defendant’s truck. While defendant’s proofs were in some respects at variance with the foregoing it was for the court to determine the facts.

The law in such situation has been expressed by this court on a number of occasions and it is to the effect that if one proceeding as was the defendant’s driver intends to cross a line of traffic he is obliged to use great care and to seek an •opportune time for doing so. Day v. Beyer, 5 N. J. Mis. R. 1069; 139 Atl. Rep. 317; Senofsky v. Frecker, 10 N. J. Mis. R. 505; 159 Atl. Rep. 797. (Neither officially reported.) Here was a wide highway with the parties initially proceeding thereon in opposite directions, each presumably upon his own side of the highway. Whether the defendants’s driver ■exercised the degree of care that the circumstances demanded by seeking an opportune time to cross, and whether the plaintiff, proceeding as he was, was guilty of negligence in failing to anticipate that the defendant might cross in front of him, were questions of fact for the determination of the court to whom the case was submitted without a jury. It would therefore have been error to have granted either one of the defendant’s motions.

The judgments are affirmed, with costs.


text:
    THOMAS J. McGLINCHEY, PROSECUTOR, v. J. H. THAYER MARTIN, STATE TAX COMMISSIONER, AND THE STATE OF NEW JERSEY, RESPONDENTS.
    Submitted May term, 1933
    Decided September 21, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Charles A. Rooney.

    For the respondent J. H. Thayer Martin, state tax commissioner, William, A. Moore.

    For Henry Ewald, .Jr., intervenor, Mark A. Sullivan.

   Per Curiam.

The. writ of certiorari recites a willingness to.be certified “of a certain failure” by J. H. Thayer Martin, state tax commissioner, to appoint the prosecutor to the position of district supervisor, transfer .inheritance tax bureau, Hudson county, and of the appointment of Henry Ewald, Jr., to that position, and brings up the order appointing Ewald and the-proceedings concerning the “failure to appoint Thomas J. McGlinchey.”

The real issue is whether Ewald is to be ejected and McGlinchey instated. That is made clear by the concluding-paragraph in prosecutor’s brief, as follows:

“It is, therefore, respectfully urged that the action of the state tax commissioner in appointing Henry Ewald, Jr., tn the position could be set aside, and the state tax commissioner be directed to appoint to the position Thomas J. McGlinehey, the prosecutor.” It is apparent, we think that the full measure of relief sought cannot be had by writ of certiorari> and that a mistaken procedure has been taken; particularly as we consider that the bone of contention is a public office, involving the governmental powers of taxation and including compulsory examination of witnesses and documents. Pamph. L. 1909, ch. 228, § 18 (the Property Transfer Tax act). The “district supervisor,” so far as we can determine, is the “appraiser” under the statute.

But, assuming the matter to be properly before us on the merits we think the prosecutor is not entitled to prevail and for the reasons following: The appointment, subject to the provisions of the Civil Service act, is by the state tax commissioner. Pamph. L. 1931, ch. 201. The civil service commission on March 3d, 1932, certified three names eligible for the appointment, all of the names so certified being of disabled veterans. The tax commissioner after an inquiry found and certified back to the civil service commission that the prosecutor, number one on the eligible list, did not have the necessary business capacity; that the intervening defendant, Ewald, number two on the eligible list, did have that capacity ; and that Ewald was appointed to the position. The record indicates that the commissioner’s act was not an abuse of’ the discretion lodged in him.

Prosecutor claims the benefit of chapter 122 (Pamph. L. 1932), in the particular that passing the civil service test is evidence that he possesses the business capacity. But the tax commissioner testified to the facts of the inquiry and his conclusions therefrom; and we are not justified, on the proofs before us, in disturbing his ruling. Edell v. McDermott, 11 N. J. Mis. R. 272.

The writ will be dismissed, with costs.


text:
    JAMES HOROWITZ, PROSECUTOR-RELATOR, v. CIVIL SERVICE COMMISSION ET AL., RESPONDENTS.
    Submitted May 12, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.
    Bor the prosecutor-relator, Merritt Lane.

    Bor the respondents, Durand, Ivins & Carton.

   Pee Cueiam.

This case is here upon a writ of certiorari allowed to review the action of the civil service commission in disapproving the appointment of prosecutor, James Horowitz, as clerk of the District Court of the Second Judicial District of Monmouth county, and in refusing to strike from the-eligible list the name of Sidney M. Reinhart, who, the commission held, was entitled to the appointment by reason of being a veteran of the world war; and also upon a motion to quash the return to an alternative writ of mandamus to-compel the commission to certify the name of relator, Horowitz, upon the payroll.

It appears that Horowitz was appointed by Judge Warwick as clerk in July, 1926, and served as such and was paid until Bebruary, 1931. The civil service commission then ordered an examination held for the position and on March 18th, 1931, certified to Judge Warwick three names of applicants who had passed the examination and who constituted the eligible list. Horowitz was high. The other persons were respondent, Reinhart, and one Russomano. Rein-hart was certified as a veteran and under chapter 298 of the laws of 1920 would be entitled to appointment if he had the capacity to hold the position.

Judge Warwick, however, appointed Horowitz and notified the commission to that effect. The commission disapproved the appointment and refused to approve Horowitz on the payroll after April 2d. On May 25th, 1931, Judge Warwick filed objections to Reinhart and asked that his name be struck from the list. These objections were that the applicant had not the qualifications for the position. It is sufficient to say that these objections were such that, if reasonably sustained, would justify the conclusion of the appointing officer that the applicant did not possess the qualifications essential to the holding of the position in question. A hearing was held and on June 19th, 1931, the commission announced a decision refusing to strike his name and insisting that Reinhart was entitled to appointment. The present proceedings were then instituted.

Several grounds are urged by prosecutor, but we deem it necessary to consider only one of these grounds.

In McGlinchey v. Martin, Commissioner, &c., 12 N. J. Mis. R. 188, we held that the appointing officer has a discretion in making appointment from the civil service eligible list. It was there said: “The tax commissioner after an inquiry found and certified back to the civil service commission that the prosecutor, number one on the eligible list, did not have the necessary business capacity; that the intervening defendant, Ewald, number two on the eligible list, did have that capacity; and that Ewald was appointed to the position. The record indicates that the commissioner’s act was not an abuse of the discretion lodged in him.”

Following the holding in that case, we conclude that the District Court judge did not abuse the discretion lodged in him, in the instant case, and that his appointment of prosecutor should be sustained.

This conclusion results in granting the motion to quash the return to the alternative writ of mandamus.


text:
    SARAH ABRAMSON ET AL., APPELLEES, v. W. T. GRANT COMPANY, APPELLANT.
    Submitted October 16, 1933
    Decided February 2, 1934.
    Before Justices Parker, Lloyd and Perskie.'
    :For the appellant, Maurice J. McKeown.

    For the appellees, Saul M. Mann.

   Per Curiam.

Passing technical objections relating to procedure, we conclude that the judgment should be affirmed on the merits.

.The female plaintiff was a customer in defendant’s store, and according to her testimony, slipped and fell on what she described as “a slippery floor.” The accident occurred on a Wednesday. This was the sum and substance of the evidence, for plaintiff on the matter of liability. There was a motion to nonsuit on the ground that the evidence failed to show any negligence, which motion was denied, and the defendant proceeded to -take testimony showing that the floor had been oiled the preceding Saturday night, and then on the following Monday treated with a compound calculated to absorb the oil and prevent the floor from being or remaining slippery. ■

If the defendant had rested on plaintiff’s case, there might well have, been a nonsuit. Abt v. Leeds Co., 109 N. J. L. 311; 162 Atl. Rep. 525. But the case as finally submitted showed a situation, as we view it, controlled by McGee v. Kraft, 110 N. J. L. 532; 16.6 Atl. Rep. 80, in which the Court of Errors and Appeals held that any error in the.refusal of a nonsuit was cured by the evidence later submitted.

The judgment will therefore be affirmed.