text:
    ARMOUR & COMPANY, PROSECUTOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Argued May 5, 1927
    Decided August 15th, 1927.
    Arrears of water rents determined by methods and calculations resulting in charges that are arbitrary, inaccurate, uncertain and speculative cannot be recovered from the consumer and such charges and the proceedings for their collection must be set aside. Citing Lehigh Valley Railroad Co. v. Jersey City, 5 N. J. Adv. R. 1171.
    On certiorari.

    Before Justices Parker and Campbell.
    Por the prosecutor, John Milton.

    Por the respondents, Thomas J. Brogan and Stephen M. Egan, Jr.

   Per Curiam.

The writ in this matter brings up for review proceedings on the part of Jersey City to sell lands of the prosecutor for arrearages of water rents based upon a certificate of the director of the department of streets and- public improvements, filed with the city collector; the charges upon the books of the water department constituting such alleged arrearages and all proceedings thereon including the advertising of the lands for sale.

The return to the writ contains a copy of the statement of the water department and the advertisement of sale for arrears amounting with interest to $158,424.32.

The matter is in most respects similar to that of Lehigh Valley Railroad Co. v. Jersey City.

In the present ease the prosecutor has been in the possession of the property since 1913 and was supplied with water by the city. The water was measured by eight meters, most of which including the one which is the subject of this con-' troversy having been installed by the owners and occupants of the premises preceding the prosecutor. One of these meters was known as a Hersey detector meter. On April 6th, 1921, the city commenced a test of this meter, continuing such test to November 21st, 1921, such test showing that the meter was registering from fifty-nine and two-tenths per cent, to six and fifty-four one-hundredths per cent., or an average of eight and seven-tenths per cent, of the water passing through it. On November 22d, 1921, the city entered a charge in its books and rendered a bill to the company for ninety-one and three-tenths per cent, deficiency covering the seven and one-half months that period and the entire period back to July, 1918, amounting to $27,701.64. In May, 1922, a further entry was made on the books of the city, and a bill for a further sum of $65,620.29 was sent to the company covering an alleged shortage from September, 1914, to July, 1918. This made a total charge and demand of $93,377.93 for water alleged to have been consumed and not registered, and therefore not paid for by the company from September, 1914, to April, 1921.

■ The company paid the bill for water consumed during the test period — April to November, 1921 — but refused to pay the charge of $93,377.93, and the amount being certified to the city collector as representing arrears of water rents the property of the company was advertised for sale.

The meter in question, as its name implies, is of the “detector” type, consisting of a straight line, six inches in diameter, called the main line, in which is inserted a weighted check valve designed to prevent or retard the flow of water through the main line. There is also a three-inch by-pass line in which a device is inserted for measuring and registering the quantity of water passing through that line. In the main line near the check valve is a small orifice five-eighths inches in diameter and a tell-tale meter which registers the flow through the small orifice, but nothing of the flow through the main line; its sole purpose being to disclose that water has passed through the main line. In ordinary use water passes through the three-inch by-pass line, the capacity of which is called the “breaking point,” and which this is reached, water begins to flow through the main line, the volume being dependent upon the pressure and rate of flow to the city mains.

In this matter there are fifteen reasons for setting aside the tax and proceedings argued under six points as follows:

1. The theory upon which the city bases its claim is unsound.

2. The so-called test is unreliable.

(a) The testing meters were unreliable.

(b) Conditions during the test were not uniform.

(c) The test was not thorough.

3. The conclusions drawn from the test are fallacious.

4. The city is estopped from now asserting its claim.

5. The claims upon the average bills are untenable. '

6. The claims lor interest are unjustified and erroneous.

In this matter, for the reasons set out in Lehigh Valley Railroad Co. v. Jersey City, supra, we have considered only reasons 1 and 3, and while the conditions in the present matter are different from those in the case just cited, the result reached by us upon the question of the uncertain and speculative character of the charges is the same.

Therefore, the charges and water rents and all proceedings thereunder, brought up for review, are set aside, with costs.


source: Caselaw Access Project

author: Charles E. Corbin, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNA SNYDER, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF PAUL C. SNYDER, DECEASED, PETITIONER, v. AMERICAN BRIDGE COMPANY, RESPONDENT.
    Death — Testimony That Employe was Violating Express Orders of Employer — Compromise Proposed, Accepted and Approved.
    On petition for compensation.. On determination, finding of facts and rule for judgment.
   A petition having been filed in the above-stated matter praying for compensation to which the petitioner might be entitled by virtue of the terms and provisions of an act of the legislature of the State of New Jersey, entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule for compensation, and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, together with the several supplements thereto and amendments thereof, and the time and place for the hearing of the petition having been fixed, and it appearing to the court that the said petition and notice of the time and place of said hearing were duly served upon the respondent, and the matter having come in to be heard before Deputy Commissioner Charles E. Corbin on March 11th, 1927, and the respondent being represented by Messrs Lindabury, Depue & Faulks, and a letter having been produced signed by the petitioner and her attorneys, stating that a settlement on the basis of fifty per cent, of the amount which would be payable to her if she were entitled to full compensation, would be entirely satisfactory to her, and witnesses having been produced on behalf of the respondent- to testify that deceased, Paul Snyder, was violating express orders of the respondent at the time the accident to him occurred, and that the violation of such orders was the cause of his injury and death, and it appearing to the said deputy commissioner, from such letter and testimony, that there is grave doubt whether the said decedent died as a result of an accident arising out of and in the course of his employment by the respondent, and that the petitioner and other dependents are entitled to recover any compensation therefor under the Workmen’s Compensation act of this state, and it further appearing that the decedent left petitioner and four children under the age of sixteen years and that the total amount payable under such settlement would be $5,74.6, and the deputy commissioner being satisfied that the said settlement is just and fair, and that it is for the best interests of the petitioner and the other dependents of the deceased that a portion of said settlement be commuted and that the remainder thereof be paid in weekly payments, and that the respondent has agreed to the said settlement and the payment thereof in the manner hereinafter set forth.

It is therefore, on this 18th day of April, 1927, ordered that the settlement hereinbefore referred to be and the same hereby is approved and confirmed, and that the respondent pay to petitioner the sum of $5,746 in full satisfaction of any and all claims of the petitioner and other dependents of the decedent against the respondent for compensation or otherwise, upon the express condition and terms that—

(a) Respondent shall forthwith pay sufficient of such amount to satisfy the present mortgage or mortgages or other indebtedness which may encumber petitioner’s property located at Yo. 367 St. Helena, Dundalk, Baltimore, Maryland, and also to satisfy such other present indebtedness of petitioner as the respondent in its discretion may cpnsider to be for the best interest of the petitioner and the other dependents.

(b) The balance of said sum of $5,746, after making the payments set forth in paragraph (a) above, shall be paid by respondent to petitioner for herself and the other dependents of decedent in weekly payments of $17 per week.

Charles E. Corbin, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH BORGES, PETITIONER, v. PHILIP SINGER & BROTHERS, RESPONDENT.
    Hernia — Petitioner’s Claim Disputed in That the Five Requirements of the Statute Have Not Been Complied With — Compromise Proposed, Accepted and Approved.
    On determination.
    Eor the petitioner, Charles Becker.

    Eor the respondent, Richard W. Baker.

   The petitioner alleged he suffered a compensible hernia while working for the respondent on October éth, 1926, but the respondent denied that he complied with the five requirements of the hernia section of the law. After talking with the petitioner, and going somewhat into the facts of the case, I was asked to approve a compromise between all parties on a basis of three weeks’ temporary compensation at $17 a week, and ten weeks permanent compensation, together with an allowance of $25 for medical fees and $50 for counsel fee for the attorney to the petitioner.

Accordingly, I hereby order that the respondent pay to the petitioner three weeks’ compensation for temporary disability at the rate of $17 per week, and ten weeks’ compensation for permanent disability, together .with $25 to cover medical fees and $50 to cover counsel fee of the attorney for the petitioner.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANTONIO REYES, PETITIONER, v. THOMAS J. LIPTON, INCORPORATED, RESPONDENT.
    Injury to Employe Caused by Falling Over an Iron Bar — Respondent Showed That Injury Did Not Result in the Course of Employment, but as Result of a Fist Fight in Which the Employe was Engaged.
    On determination and judgment.
   The petitioner having filed his petition herein on January-loth, 1925, setting up that on September 25th, 1925, he was employed by the respondent and fell over an iron bar causing permanent injury to his jaw, and that the respondent had refused to pay compensation; and the respondent having duly appeared by Erank G-. Turner, its attorney, and having set up that the injury to the petitioner, for which his said petition was filed, did not arise out of and in the course of his employment, but were suffered by the petitioner because of a fist fight in which he had engaged; and it appearing that the injuries claimed to have been suffered by the petitioner arose out of a fist fight with one Eugene Pensari, growing out of personal difficulties between the said petitioner and the said Pensari, and during the course of their fight the petitioner was knocked down and the injuries for which compensation is claimed were caused when he was so knocked down by Eugene Pensari; and it appearing that the injuries suffered by the petitioner did not arise from an accident arising out of and in the course of the employment of the petitioner, and it further appearing that this department is without jurisdiction to hear and determine this cause under the statute in such ease made and provided;

It is on this 5th day of April, 1927, on motion of Erank G-. Turner, attorney of respondent, ordered, that judgment final be and the same hereby is entered in favor of the respondent and against the petitioner, and the petition is hereby dismissed.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNA NOWATKOWSKI, PETITIONER, v. BAKELITE CORPORATION, RESPONDENT.
    Death — Poisoning From Occupation Alleged — Possibly Benzol, Phenol, Phosphorus or Mercury — Death at Greystone Hospital; Where Disease was Diagnosed as Psychosis, With Cerebral Arterio Sclerosis — Held, That Petitioner Has Not Sustained Burden of Proving Death was Result of an Occupational Disease Arising Out of and in Course of His Employment.
    On determination of facts and judgment.
   A petition having been filed in the above stated matter, praying for compensation to which the petitioner may be entitled, by virtue of an act of the legislature entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the act amendatory thereof and supplemental thereto; and a time and place for the .hearing of the petition having been fixed, and the petitioner and respondent having appeared on March 9th, -926; April 27th, 1926; July 6th, 1926; July 28th, 1926, and October 17th, 1926, the petitioner being represented by Louis J. Eeit (Salvatore La Corte, Esq.), and the respondent being represented by Arthur F. Mead (Charles S. Gray, Esq.), and the deputy commissioner having heard the testimony offered on behalf of the parties hereto—

1. For the petitioner appeared the petitioner herself, her son, and her son-in-law, who testified that the decedent had worked with the respondent and had ceased work because of some rashes on his arms in 1933. The decedent then procured another position and was in normal health until he returned to his old position with the respondent in 1935, when he became ill, had a recurrence of rashes on his arms and had to stop work on June 35th, 1935. He was taken to the State Hospital at Greystone Park on August 3d, 1935, and died there on August 19th.

3. Dr. Nittoli, who attended the decedent in Elizabeth, testified that the decedent “was suffering from a gradual absorption of some poisonous material, the exact nature of which was undeterminable.” He went on to say that in his opinion “this case was one of benzol poisoning, but I cannot prove it.” He further said that the poisoning “may be benzol, may be phenol, or it may have been phosphorus or mercury.”

3. Dr. Plarris was a witness for the petitioner and testified that in his opinion the case might well have been one of alcohol poisoning. Dr. Harris, in answer to numerous hypothetical questions, testified relative to the work at the plant and the process of manufacture, but this was not of his own knowledge.

4. Mr. Chamberlain, superintendent of the company plant, and Kleinecht, foreman at the plant, were called, and testified as to the work which was done at the plant.

5. For the respondent appeared Dr. Washburn, who is the attending physician at the State Hospital at Greystone Park, where the decedent was confined from August 3d, 1935, until August 19th, 1935. Dr. Washburn diagnosed the case as one of “psychosis with cerebral arterio sclerosis,” and signed the death certificate to the same effect. He was of the opinion that there was no industrial poisoning involved.

6. Dr. Christian, the state pathologist, at the same institution, testified that the blood count and blood differential were normal on examination.

7. Dr. Willner, an expert on occupational diseases, testified that chemical poisoning was not a factor in causing the death of this man.

8. Dr. Alfred E. Edel, consulting chemist and taxicologist, testified especialty on benzine and wood alcohol poisoning.

9. The respondent showed that the decedent’s employment with the respondent for a period of only eighteen and one-half days would be too short an interval to contract an industrial disease chronic in its nature and of such intensity as to cause death.

10. The petition sets forth that the accident was "absorption of gas fumes,” and the testimony produced by the petitioner did not prove one specific, compensible, occupational disease, but dealt with many possible chemical poisons.

I do find and determine, therefore, that the petitioner has failed to sustain the burden of proving that her husband’s death was the result of an occupational disease arising out of and in the course of his employment with the respondent; nor has she proven that her husband’s death was the result of an accident arising out of and in the course of his employment with the respondent. Bryant v. Fissel, 84 N. J. L. 72; Schmoll v. Weisbrod Hess Brewing Co., 89 Id. 150; Dunnwald v. Steeris, 89 Id. 601; Reimers v. Proctor Publishing Co., 85 Id. 441, 443.

It is therefore ordered that the petition be dismissed and judgment be entered in favor of the respondent.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Woekmen’s Compensation Bureau.
    STEPHEN CHAPKLIN, PETITIONER, v. AUGUST DUNA CHANDELIER WORKS, INCORPORATED, RESPONDENT.
    Occupational Diseases — Benzol Poisoning — No Permanent Disability Found — Respondent, Without Admitting Liability, Offered Limited Temporary Compensation — Offer Accepted by Respondent and Approved by Bureau.
    Oil determination of facts and rule.
    Eor the petitioner, Meehan Brothers.

    For the respondent, McCarter £ English.

   í¡í V Jj* V •»< »!» *í*

It was alleged by the petitioner that he contracted an occupational disease, viz., benzol poisoning, out of and in the course of his employment with the respondent, on August 3d, 1926, at which time he was making $30 per week. Dr. Kelly, a witness for the respondent, who treated petitioner at the W'yeoff Heights Hospital, Brooklyn, stated to the court that petitioner’s temporary disability ceased in December, 1926, and that he had no permanent disability in any way arising out of the alleged occupational disease. Dr. Wm. J. Arlitz examined petitioner on the date of the hearing, viz., February 25th, 192*7, at the request of the court, and testified that the petitioner had no permanent disability arising out of any alleged benzol poisoning or similar condition. Fie further stated that whatever temporary disability the petitioner had suffered since August 3d, 1926, in his opinion, was due in large part to petitioner’s neurotic condition, which was in no way attributable to or connected with any alleged benzol poisoning or similar condition.

Despondent, for the purpose of disposing of this case, and not in any sense admitting that petitioner had contracted benzol poisoning, or similar condition, as alleged, agreed to pay petitioner temporary disability from August 3d, 1926, to February 25th, 1927.

It is therefore, on this 9th day of March, 1927, found and determined, on the statement of Dr. Kelly and the testimony of Dr. Arlitz, that petitioner has not sustained any permanent injury, directly or indirectly, or in any way whatsoever, from said alleged benzol poisoning, or similar condition, and on the agreement of respondent it is ordered that respondent pay petitioner, as and for the temporary disability agreed to, twenty-nine weeks at $17 per week, covering the period from August 3d, 1926, to February 25th, 1927, amounting to $493.

It is further ordered that petitioner’s attorneys be allowed a counsel fee of $150, $100 of which is to be paid by respondent as agreed, and $50 by the petitioner. Petitioner’s attorneys are to be reimbursed in the sum of $25, representing Dr. Kelly’s attendance fee paid by them, bjr respondent as agreed.

As the above amounts have now been paid, it is not necessary that judgment be entered.

Charles E. Corbin, Deputy Commissioner.


author: Per Curiam.

text:
    HERMAN HAGENS, PLAINTIFF-APPELLEE, v. WEST ENGLEWOOD LUMBER COMPANY, DEFENDANT-APPELLANT.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Negligence — Runaway Horse — Injury to Show Window — It was not Error to Allow Plaintiff to Refresh His Memory From Memoranda Made Some Time After the Accident — Its Introduction was Within the Discretion of the Trial Judge — It was Not Error to Permit Proof of Loss of Certain Articles on the Ground That it was Not the Proximate and Natural Result of the Accident — It was Error to Instruct That “This is an Unusual Occurence and it is for the Defendant to Explain to Your Satisfaction That the Defendant or His Servant was Not Guilty of Negligence in the Manner in Which These Horses Were Handled — Other Grounds of Reversal Considered, but Judgment Reversed on Above Ground.
    On appeal from the Bergen County District Court, Third Judicial District.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, M. Harold Higgins.

    For the appellee, no brief.
   Per Curiam.

A team of horses of appellant ran away, left the roadway of the street, coming upon and over the curb and sidewalk, and plunged into the show window of the jewelry store of the appellee, who brought suit to recover the loss of and damage to his goods. The action was tried before a jury, resulting in a verdict of $375, and from the judgment entered thereon this appeal is taken.

Several grounds for reversal are urged.

1. Because the trial court erroneously permitted the plaintiff below to refresh his recollection as to the goods damaged and lost from a memorandum made by him some time after the happening.

This is much a matter of discretion to be exercised by the trial judge. Myers v. Weger, 62 N. J. L. 432; More-Jones Glass Co. v. West Jersey, &c., Railroad Co., 16 Id. 108; Jones Ev. (1st ed.), § 882.

We think that under the facts and circumstances present in this ease there was no error in permitting the use of such memorandum.

2. That it was error to permit proof of loss of certain articles, particularly a diamond, upon the ground that it was not the natural and proximate result to be anticipated even if appellant's servant was negligent.

The contention of appellant is that after the happening the appellee permitted a young girl or some children to sweep up and remove the broken glass of the show window from •the sidewalk in front of the store, and that it is arguable that the diamond was lost in this manner.

Now, an intervening cause is the act of an independent agency which destroys the causal connection between the negligent act of the defendant and the wrongful injury, the dependent act being the immediate cause, in which case damages are not recoverable because the original wrongful act is not the proximate cause. Davenport v. McClellan, 88 N. J. L. 653.

Applying this rule, we think the trial judge was not in error under the facts in the case.

3. Because the testimony of appellee's wife as to the cause of the happening was hearsay.

Whether this be so or not, appellant cannot complain here, because the questions upon direct examination were not objected to nor was there a motion to strike out, and some of this class of testimony was elicited upon cross-examination by appellant's attorney.

4 and 5. Error in refusal to nonsuit and direct a verdict in favor of appellant because there was no evidence of negligence.

That there was no negligence cannot be said to be so. Whether the rule of res ipsa loquitur applies or not is beside the question. A team of horses running along a highway uncontrolled and coming upon the sidewalk of such highway and into the show window of appellee's store certainly, reasonably, raised a presumption of negligence calling for explanatory evidence by the appellant and presenting a jury question.

6. The trial court erred in charging the jury — “The happening of this accident is evidence of negligence on the part of the defendant.”

We do not think this was error warranting a reversal, although the trial court might have employed more appropriate language and instructed the jury that under the circumstances of the ease the happening raised a presumption of negligence calling for an explanation.

7. That the trial court erred in charging the jury — “This is an unusual occurrence, and it is for the defendant to explain to your satisfaction that the defendant or its servant was not guilty of negligence in the manner in which these horses were handled.”

The instruction that “it is for the defendant to explain to your satisfaction that the defendant or its servant was not guilty of negligence” was erroneous, as it placed upon the defendant the burden of exculpating itself, and this is not the rule even where the doctrine of res ipsa loquitur applies. Hughes v. Atlantic City, &c., Railroad Co., 85 N. J. L. 313.

This requires a reversal of the judgment.

8. Error in the refusal of the trial court to charge fourteen requests presented by appellant.

We have only examined one of these requests because the error raised under point seven, alone, requires a reversal, and this one request is closely connected with the matter urged under that point.

This request to charge was — “The jury must be satisfied by the greater weight of the testimony that the company was negligent, or the verdict must be for the defendant.”

This correctly presented the rule as to the burden of proof. An examination of the charge of the court will disclose that nowhere therein did the trial court charge as to such burden except as it erroneously charged in the portion attacked by the seventh ground of reversal, which was erroneous.

The judgment under review must therefore be reversed, with costs.


text:
    SAMUEL SCHWARTZ, PLAINTIFF-APPELLANT, v. H. H. MONDON, INCORPORATED, AND THE BANKERS AND SHIPPERS INSURANCE COMPANY, DEFENDANTS-APPELLEES.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Insurance — Automobile Theft — Admission of Rules of Underwriter’s Association Denied — Held, Not Harmful Error — Car was Locked and There is No Evidence, to Show What Kind of Locking Device was Required — Judgment for Insured Affirmed.
    On appeal from the Passaic District Court.
    Before Justices Paekeb, Mintubn and Campbell.
    Por the appellant, Joseph J. Weinberger.

    Por the appellees, Edward F. Merrey.

   Per Curiam.

This is an action seeking recovery under an automobile theft policy which was issued August 26th, 1924, and expired August 26th, 1925. It was contended that the car was stolen August 2d, 1925. It was found the next morning within a few blocks of the place from which it was said to have been stolen. . Suit was brought to recover $492. A nonsuit was granted as to H. H. Mondon, Incorporated, toward which action there is no objection raised. The trial judge, sitting without a jury, found for the other defendant and against the plaintiff. Prom this judgment the plaintiff below appeals.

The first ground for reversal is that the trial court erred in permitting the introduction in evidence of article 7 of a book of the rules of the Underwriters’ Association. The complaint is that the authenticity of this book was not established and that it was effective from a date which was subsequent to the date when the policy in question was issued.

All that this exhibit established was how an approved locking device is marked or labeled, and that such a device upon a Studebaker ear (which the car in question was) is on the transmission. This was entirely immaterial for any purpose in the case. There was no controversy over the question as to whether or not the lock on the car in question was one approved by the Underwriter’s Laboratories, Incorporated. There was testimony aside from this exhibit — unchallenged— that the locking device on the car in question was on the transmission. Plaintiff below admitted that upon this car there was a transmission lock, an ignition lock and door Locks, and that he locked the ignition only when he left his car parked in the public street at the place from which it was said to have been stolen. Any error in the admission of this exhibit was therefore harmless.

The remaining ground for reversal is that the trial court erred in giving judgment for the defendant below because the locking provision or rider in the policy is merely in the nature of a promissory warranty, that the car was locked and there was no evidence to show what kind of locking device was required.

The requirement of sucli a warranty has been passed upon by the Court of Errors and Appeals, adversely to the contention of appellant, in Billet v. Pennsylvania Fire Insurance Co., 101 N. J. L. 546.

There was evidence supporting the court’s finding.

The judgment will therefore be affirmed, with costs.


text:
    NEW YORK BANKERS, INCORPORATED, PLAINTIFF-APPELLANT, v. ETHAN S. BOSWORTH, DEFENDANT-APPELLEE.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Corporations — Foreign, Doing Business Within the State Without Certificate of Authority — Trade Acceptance — Goods Were Sold in This State by an Unlicensed Foreign Corporation — ‘ Trade Acceptance Given Which was Sold in New York to Plaintiff — Held, That There is No Evidence That the Vendor was Doing Business Within the State Within the Meaning of the Statute, a Single Transaction Not Being Within the Act —Held, Further, That Even if They Were, the Trade Acceptance was Sold to Plaintiff in New York and is in no Sense a Transaction Within This State.
    On appeal from the Orange District Court.
    Before Justices Parker, Minturn and Campbell.
    Eor the appellant, Ovidio Bianchi.

    Eor the appellee, Howe é Davis.

   Per Curiam.

This was an action on a trade acceptance drawn by the Mixall Sales Corporation, a New York corporation, on appellee, accepted by the latter, and sold by the Mixall Sales Corporation to appellant, also a corporation of the State of New York.

The sale of the goods, which the trade acceptance represents the selling price of, was made by an agent of the Mixall Sales Corporation to appellee in this state. The acceptance is dated in New York, accepted by appellee in New Jersey, payable at the First National Bank of Millburn, New Jersey, and sold by the Mixall Sales Corporation to appellant in New York.

Neither the Mixall Sales Corporation nor the appellant was authorized to do business in this state.

The trial court directed a verdict in favor ol the appelleedefendant below on the ground that the matter involved in the action had to do with a contract or transaction in this state, and that neither the Mixall Sales Corporation nor the appellant being authorized to do business in this state the action could not be maintained. Act concerning corporations. 2 Comp. Stat., p. 1658, § 98.

But this is not so because the statute does not apply to isolated and single items of transactions in this state. D. & H. Canal Co. v. Mahlenbrock, 63 N. J. L. 281; Hildreth Granite Co. v. Hudson, 87 N. J. Eq. 316.

Furthermore, there is no proof that the MixalJ Sales Corporation had any other transactions in this state. The evidence pointed to is that appellant had twenty-five or thirty transactions for the purchase of trade-acceptances but there is nothing to show that these resulted from transactions or business conducted by the Mixall Sales Corporation in this state.

But if there was such proof as warranted a finding that the Mixall Sales Corporation was conducting business in this state so as to make section 98 of the Corporation act, supra, applicable to it that fact would not preclude or prohibit the appellant from having or maintaining its action in this state because, as far as appellant is concerned, it purchased for value the trade-acceptance, and its transaction was beyond question exclusively in the State of New York. Hildreth Granite Co. v. Hudson, supra.

The judgment must be reversed, with costs.


text:
    EDWARD O. SMITH, PLAINTIFF-APPELLANT, v. JOSEPH PAZEN AND SARAH PAZEN, DEFENDANTS-APPELLEES.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Sale of Real Estate — Broker’s Commissions — Contract Provided Th^it “Regular Brokerage Commission” Shall be Paid — Held, That This Does Not Comply With the Statute of Frauds.
    On appeal from the Hudson Circuit.
    Before Justices Paekee, Mintuen and Campbell.
    Eor the appellant, Charles Hershenstein.

    For the appellees, David M. Elausner.

   Per Curiam.

Appellant brought suit to recover brokerage on a contract for exchange of properties in West New York and Ramsey, New Jersey. The contract provided: “It is understood and agreed that E. O. Smith, broker, of 494 Jackson -avenue, Jersey City, N. J., is the broker who consummated this exchange, and the respective parties hereby agree to pay the said E. O. Smith the regular brokerage commission on their respective properties as per prices mentioned in this agreement.”

The appellees moved to strike- out the complaint upon the ground that it did not comply with the statute of frauds in that the rate of brokerage was not fixed by the brokerage agreement upon which the action was based. The appellees contended that the statute was satisfied in this particular inasmuch as the real estate brokers of Hudson county had established and'fixed a schedule of rates.

The complaint was struck out upon authority of Hueth v. Stevenson, 100 N. J. L. 1, which holds: “A provision in a brokerage contract for the sale of land, that in case the broker shall procure a purchaser for the property the owner 'will allow you the legal rate of commission/ will not support an action brought by the broker to recover such commission. The tenth section of the statute of frauds bars such an action unless the rate of commission on the dollar is stated in the contract.”

The case before us is not like unto that of Haber v. Goldberg, 92 N. J. L. 367, which holds: “Although in an agreement between a principal and his broker for the sale of real estate the rate of commission on the dollar is not provided for as required by the terms of section 10 of the statute of frauds, nevertheless, the fixing of a sum certain by way of commission is within the true intent and meaning of the act and the broker is entitled to recover it.”

The judgment under review must therefore be affirmed, with costs.


text:
    JENNIE WALKER, BY NEXT FRIEND, ET AL., PLAINTIFFS-APPELLEES, v. VENTURI SILVIO, DEFENDANT-APPELLANT.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Negligence — Injury to Passenger of a Truck Conveying Passengers on an Outing — Contributory Negligence Alleged — Held, Matter for Jury — No Error Found in Taking Testimony— Judgment Affirmed.
    On appeal from the Cumberland Common Pleas.
    Before Justices Pabkkk, Mintuex and Campbell.
    Eor the appellant, Thomas G. Tuso.

    Eor the appellees, Morris V. McDonald.

   Per Curiam.

Jennie Walker, with other employes of the Kimball Glass Company, arranged for an outing at Centerton on June 14th, 1925, and two trucks of appellant were engaged to convey them from Vineland to Centerton. On reaching their destination and before the passengers had alighted, one of the trucks was moved close up to the one on which Jennie Walker was sitting, and was moved so near to the other as to strike it or, at least, strike the foot of Jennie Walker, injuring it or otherwise the situation was as contended for by the appellant, that as the rear truck moved up toward that upon which Jennie was riding she stuck up her foot, and coming in contact with the front of the rear truck she was injured. The jury found in favor of Jennie Walker in the sum of $1,500 and in favor of her father in the sum of $408.

Erom the judgments entered thereon the defendants below appeal.

Seven grounds of appeal are filed. None of them in form or substance is sufficient under the well-settled rules of this court to present any grounds of appeal and we might properly disregard them and affirm the judgments. We have, however, examined the matters raised with the aid of the brief of counsel for appellant where they are urged under three points.

The first point is that Jennie Walker was guilty of contributory negligence. This was a matter for determination by the jury.

The second point is in four parts—

1. Refusal of the trial court to strike out an answer of the plaintiff below because it was a conclusion. Such refusal was not error because the question itself was so framed as to call for a conclusion.

2. Because the trial court permitted Dr. Eoltz to testify to injuries shown by an X-ray which was not produced.

An examination of the proofs, however, shows that the doctor did not testify as to the X-ray but to what he found from a physical, objective examination.

3. Because the trial court excluded testimony as to an alleged direction by the owner of the trucks that the tail hoards must he kept up.

Such exclusion was proper because the proofs show that the plaintiff was not present at any of the times when such alleged order or admonition was given.

4. Because of alleged error in permitting an answer to a question to the witness Daglin on cross-examination, going to the question of the order in which the trucks started from Vineland. The objection is that it was not proper cross-examination. We think it was.

The third point is directed at certain portions of the court’s charge. We find no error therein.

The judgments under review will therefore he affirmed, with costs.


text:
    MULTIPLEX CONCRETE COMPANY, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Negligence — Injury to Motor Vehicle Through Collision With Trolley Car — Defendant Alleged No Negligence — Held, a Jury Question was Presented.
    On appeal from the District Court, Second Judicial District, Bergen county.
    Before Justices Parker, Mtnturn and Campbell.
    For the appellant, TIenry H. Fryling.

    For the appellee, John J. Breslin, Jr.

   Per Curiam.

Appellee was driving an automobile easterly on Crystal street, North Arlington, and on reaching Ridge road saw a trolley car approaching from the north. His automobile was then about ten feet from the tracks. He placed his car in low speed and proceeded to cross, and the trolley car then increased its speed. When he first saw the trolley it was about seventy-five feet distant. Finding that the trolley had increased its speed and that he could not safely pass in front of it, appellee turned his automobile to the right and was struck or side-swiped by the trolley, and his automobile damaged, for which he brought .suit and obtained a verdict and judgment. This judgment is attacked because it is said the trial court erred in refusing to nonsuit and direct a verdict upon the ground that there was no negligence established against appellant, and that appellee’s negligence was either the sole cause of the happening or contributed thereto.

From the proofs adduced, however, both of these matters presented questions to be determined by the jury, and therefore, as there was no trial error, the judgment below will be affirmed, with costs.


text:
    SEWARD G. DOBBINS, PLAINTIFF-APPELLEE, v. PAUL P. McINTIRE, DEFENDANT-APPELLANT.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Contracts — Architect’s Fees — No Error in Construction of Contract by the Trial Court, Sitting as a Jury — Judgment Affirmed.
    On appeal from the Atlantic City District Court.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, S. Paul Ridgway.

    For the appellee, William Charlton.

   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff below, an architect, in a suit for balance of fees under a contract.

•A counter-claim for unliquidated damages was filed and dismissed. With the correctness of this we are not concerned because no complaint or point as to this is made upon this appeal.

The complaint is directed at the finding of the trial judge, sitting without a jury, in construing the following portion of the contract, viz.: “A representative of the architect will make visits to the building, for the purpose of making general superintendence of such frequency and duration as in the architect’s judgment will suffice or may he necessary to fully instruct contractors, pass upon the merits of materials and workmanship and maintain a working organization of several contractors engaged upon the structure” as being complied with by five or six visits during the construction period.

There was proof from which such finding of fact could be found, and, therefore, we cannot disturb the result reached by the trial court.

The judgment below must be affirmed, with costs.


text:
    FRED STORK, PLAINTIFF, v. BARBOUR FLAX SPINNING COMPANY, DEFENDANT.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Negligence — Injury to Motorcycle Rider by Motor Truck — Alleged Excessive Award — Held, Award Not Against Weight of Evidence Nor Excessive.
    On defendant’s rule to show cause.
    Before Justices Parker, Minttirk and Campbell.

      For the rule, John L. Griggs.

    Contra, Jacob I. Jaffe.

   Per Curiam.

Plaintiff was riding a motorcycle on Main street, going toward Passaic. The defendant’s truck was ahead of him and proceeding in the same direction. A trolley car, going in the opposite direction, had passed. Plaintiff says he signaled to the truck his desire to pass, and that in obedience thereto it pulled over to the right and as plaintiff came alongside in an attempt to pass the truck pulled back to the left, crowding plaintiff over to the left and squeezing him between an on-coming trolley car and the truck, causing severe and permanent injuries, the chief of which was a compound fracture of the leg, resulting in a permanent shortening of the leg by one to two inches. His injuries required him to remain away from his work about half a year. His money loss was from $1,800 to $2,000.

He has a verdict for $7,500 which, under this rule, is asked to be set aside because it is said to be excessive and against the weight of the evidence.

We do not find it to be against the weight of the evidence, nor do we find the amount to be such that it can be said to be excessive.

The rule will therefore be discharged, with costs.


text:
    NORA AVELLY, PLAINTIFF, v. ELISEO V. RICCI, DEFENDANT.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Contracts — Promissory Note — Testimony Much in Dispute, but Verdict for Plaintiff Does Not Appear to be Either Against Weight of Evidence or Against Charge of Court.
    On defendant’s rule to show cause.

      Before Justices Pabucer, Minturn and Campbell.
    Eor the rule, Abraham Levitan.

      Contra, David T. Wilentz.

   Per Curiam.

The action was on a promissory note for $1,400, dated March 7th, 1922, made by the defendant to the plaintiff, held by the latter, and upon which she contends she advanced the maker the full amount thereof in cash. The cause was first tried on December 16th, 1925, resulting in a recovery in favor of the plaintiff. xY new trial was ordered to permit the defendant to present his defense, and such retrial was had January 3d, 1927, resulting again in a finding for the plaintiff.

The defendant’s contention was, that being desirous of borrowing $1,400 for his son-in-law he approached the plaintiff for the purpose of having her make the loan, and she suggested that he give her his note and she would endeavor to discount it at her bank. That such a note — incomplete in form and containing only the date, amount and defendant’s signature — was given to plaintiff, who was unsuccessful in discounting it at her bank, and informed defendant that she had destroyed it.

The plaintiff contends that she loaned the defendant $1,400 in cash, which she obtained partly from others and partly from her own funds. That the money was actually advanced and loaned some time in 1921; that defendant gave her a check dated May 25th, 1921, in repayment, but such check was not paid because of lack of funds in bank. The testimony seems to be much in dispute as to this check, and particularly as to whether its true date is 1921 or 1922.

The reasons advanced and urged for setting aside the verdict are that it is against the weight of the evidence and against the charge of the court and contrary to law.

Our examination of the proofs leads us to the conclusion that this is not so, and the rule must therefore be discharged, with costs.


text:
    EUGENE V. LEWIS, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Negligence — Motor Vehicle Collision With Trolley Car — Judgment for Motor Vehicle Owner, the Plaintiff — Held, That There was Sufficient Evidence to Send the Case to the Jury.
    On appeal from the Hoboken District Court.
    Before Justices Parker, Minturn and Campbell.
    Eor the appellant, Henry H. Fryling.

    For the appellee, J. Harry O’Brien.

   Per Curiam.

Appellee’s automobile was being driven easterly on Malone street and turned southerly into Palisade avenue, in Union City, and there came into collision with a trolley car proceeding northerly on Palisade avenue. Appellee has a judgment in the court below. Defendant below appeals, urging error in refusal of the trial judge to nonsuit because no negligence was established as against appellant and because appellee was guilty of contributory negligence, and also urging error in refusing to direct a verdict upon the same grounds.

Both, however, were questions of fact. There was testimony that the trolley car was traveling very fast as it approached Malone street, and no gong was sounded; that another automobile was parked at or near the corner, making it necessary for the driver of appellee’s automobile to turn out on the trolley tracks.

. It is apparent, therefore, that there was evidence to support the trial judge’s action and findings, and the judgment, therefore, will not be disturbed.

The judgment below is affirmed, with costs.


text:
    IRVING LEVINE ET AL., TRADING AS LEVINE AND ENGLANDER, PLAINTIFFS-APPELLEES, v. ETTA GOLDSTEIN AND MORRIS GOLDSTEIN, DEFENDANTS-APPELLANTS.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Contracts — Agreement to Secure Mortgage Loan Which Defendant Breached — Judgment for Plaintiff — Held, That There is Nothing Before Court Upon Which it Can Pass Upon Question of Amount of Damages — Other Points Considered and Judgment Affirmed.
    On appeal from the Passaic District Court.
    Before Justices Parker, Minturn and Campbell.
    Eor the appellants, Feder & Binzler.

    For the appellees, Victor Greenberg.

   Per Curiam.

This was a suit upon a contract to secure and furnish a mortgage loan in which it is alleged that the appellants breached the contract by refusing to accept the loan procured.

The cause was tried by the judge of the District Court and a jury, and resulted in a verdict and judgment in favor of appellees for $467.

Points one, two and four are that the trial court charged that if the jury found in favor of appellees the verdict should be for $46 7.

The complaint against this is that the amount of damages was a question to be determined by the jury. There is nothing before us upon which we can pass upon this question other than the state of the case which sets forth that this was the amount of damage established.

Point three is that although the judge was present the clerk of the court received the verdict. We are unable to see anything irregular or harmful in this.

Point five is that the clerk refused to poll the jury. There is nothing before us showing that a request to poll was made.

Point six is there was no evidence of actual damage. This has 'already been disposed of under points one, two and four. The judgment under 'review is affirmed, with costs. '


text:
    ELIZABETH COONEY, PLAINTIFF-APPELLEE, v. HUDSON AND MANHATTAN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Negligence — Injury to Railway Passenger Because of Alleged Unsafe Condition of One of Railroad Company’s Station Platforms — Held, That Judge’s Instruction Placed Upon Appellant a Greater Degree of Care Than That Imposed by Law —Judgment Reversed.
    On appeal from the Second Judicial District Court, Hudson county.
    Before Justices Parker, Minturn and Campbell.
    Eor the appellant, Charles W. Broadhurst.

    Eor the appellee, Deghin & Ormsby.

   Per Curiam.

Appellee brought suit to recover damages for personal injuries resulting from an alleged defective condition of the station platform of appellant at the Journal Square station in Jersey City. She had a verdict for $100, which was set aside as inadequate, and upon a retrial as to damages only had a verdict for $250. From the judgment entered thereon this appeal is taken and the sole ground for reversal is- directed at the following portion of the court’s charge: “Now, in this case the plaintiff is bringing her action against the defendant because there was a defective condition in the platform or a condition of disrepair or unsafe condition for the passengers who were using that platform to pass over. The sole question, therefore, for you to determine is whether or not such a condition which was unsafe, or such a state of disrepair existed there, which the company had notice of which would endanger anyone who was using that platform, endangering his life or limb or in anywise interfering with what he thought might be a safe condition. Now, the court instructs you that if you find there was such a condition and that this condition was proximately caused by the defendant’s failure to keep its platform in a good state of repair and in safe condition for its passengers, then your verdict should be in favor of the plaintiff.”

Obviously, such instruction placed upon the appellant a greater degree of care than that imposed by law, namely, reasonable care to keep and maintain its platform in a condition reasonably safe for use by persons exercising, upon their own behalf, reasonable care in the use thereof.

The judgment below must therefore be reversed, with costs.


author: Unger, S. C. C.

text:
      Essex County Court of Quarter Sessions.
    STATE OF NEW JERSEY, PLAINTIFF, v. HARRY MEDINKOWITZ, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, v. THOMAS CONBOY, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, v. MICHAEL SAMUELS, DEFENDANT.
    Liquor Law — Search Warrants — Statute Requires Liberal Construction but Not Violation of Express Provisions — Entire Subject of Search Warrants in Liquor Cases Considered.
    On motion to quash search warrants.
    For the defendants, Simandl & Simandl.

   Unger, S. C. C.

By virtue- of the provisions of paragraph 9 of “An act concerning intoxicating liquor used or to be used for beverage purposes” (Pamph. L. 1922, ch. 255), John J. Elliott, on July 9th, 1926, made complaint before a Supreme Court commissioner (who, by the act, is constituted a committing magistrate for that purpose), against a saloon on the southwest corner of Mulberry and Commerce streets, in the city of Newark, New Jersey, against a saloon at No. 5 Durand street, in the city of Newark, New Jersey, and against a saloon at No. 101 Mulberry street, in the city of Newark, New Jersey.

Each complaint was supported by the affidavit of the complaining witness, made before the commissioner, and by the affidavit of one Joseph Kaminski, and averred in substance that the complaining witness and Kaminski, on the morning of June 28th, 1926, visited the saloons in the city of Newark, New Jersey, described in the affidavits, and there each ordered, was served with, and paid for, a glass of whiskey; that Elliott also ordered, was served with, and paid for, a glass of beer in each of the three saloons, and that the complaining witness had probable cause to suspect and did suspect that sections 10 and 15 of the act referred to above had been and were being violated at the designated saloon.

Thereupon, the commissioner, on July 9th, 1926, issued three search warrants, directing the officers named therein to search, in the daytime, the premises described in each, for any liquor kept or stored therein, and to bring it before the commissioner to be dealt with according to law.

The warrants were executed, liquor was seized in each of the saloons, and return was made by the officer in each case, on July 10th, 1926. Upon the return and on the same day the defendants appeared before me for hearing. Their counsel moved to quash all the warrants, setting forth i u each ease twenty-one grounds.

Under section 9 of the act the Supreme Court commissioner, as a “magistrate,” is charged with the performance of any judicial act prior to the indictment of a violator of the act. State v. Lowenthal, 2 N. J. Mis. R. 18.

Under section 27 of the act it becomes the duty of the Supreme Court commissioner, sitting as a magistrate, to order the return of the property taken if it appears that the latter is not the same as described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued. With these provisions in mind, it becomes necessary to consider the grounds advanced by the defendants.

Section 10 of the act reads: “On and after the date when this act goes into effect, no person shall manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor * * Section 15 of the act is in the following words: “It shall be unlawful to keep, occupy or maintain any room, house, building, vehicle or place whatsoever, where liquor is manufactured, sold, kept, stored, transported, bartered, or otherwise disposed of in violation of this act, and any such liquor found in, on or about any such room, house, building, vehicle or place, and all fixtures, equipment or paraphernalia had or used in connection with maintaining or conducting any such room, house, building, vehicle or place, shall be subject to seizure, forfeiture, confiscation and disposal as in this act provided. A search warrant may issue, as hereinafter provided, to search any of the premises or property herein mentioned.”

In .considering the grounds set up by the defendants in support of the motion to quash, it is necessary to look to the provision contained in section 10 of the act which reads: “* * * all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.” This legislative direction places the act, for the purposes of construction, on a plane with that class of statutes commonly termed remedial statutes, which must be liberally construed in order to advance the remedy and suppress the mischief. Board of Conservation and Development v. Veeder, 89 N. J. L. 561; 99 Atl. Rep. 335. Concerning such a legislative declaration, it is said in 36 Cyc. 1105: “The legislature may define certain words used in the statute, or declare in the body of the act the construction to he placed thereon, and the courts are bound by such construction, and all other parts of the act must yield, although otherwise the language would have been construed to mean a different thing. But the interpretation clause should be used only for the purpose of interpreting words that are ambiguous or equivocal, and not so as to disturb the meaning of such as are plain.”

In Snyder v. Compton, 87 Tex. 374; 28 S. W. Rep. 1061, the Supreme Court of Texas held: “* * * in passing a law the legislature has the power to declare in the body of the act the construction which shall be put upon it. It is but a mode of expressing its intent, and that intent, however expressed, is binding upon the courts.”

The first ground urged by the defendants is that none of the search warrants describe the person to be searched, nor is he named or in anywise mentioned in the warrant, nor does the warrant or affidavit mention the name of the person from whom the whiskey was alleged to have been purchased, nor does it describe him as unknown.

Section 18 of the act provides: “A search warrant may be issued under this act by any magistrate, but only upon probable cause, supported by affidavit naming or describing the person, and particularly describing the property and the place to be searched.”

The “Espionage Act of Congress” U. S. Stat. at L. .1917, ch. 30, tit. 11, § 3, provides that a search warrant cannot be issued but upon probable cause, supported by affidavit “naming or describing the person and particularly describing the property and the place to be searched.” This last is the counterpart of our own act, and undoubtedly the New Jersey provision was modelled after the enactment of congress. Construing the latter act, the case of United States v. Kaplan, 286 Fed. Rep. 968, hold: “If the name of the person be known it should be so stated, but, if not possible, a description of him should be given. If, however, the property sought is not in the possession of anyone, so far as can be ascertained, this should not prevent search and seizure, and it is permissible to recite that the owner of the premises or property is unknown. United States v. Borkowski (D. C.), 268 Id. 408. If at the time of the search and seizure the property be not in the possession of the party complaining, he will not be heard to object. His right of privacy will not have been invaded. Haywood et al. v. United States, 268 Id. 795 (C. C. A. 7th Circuit).” The court also said: “The warrant should be full and complete in itself.”

In United States v. Borkowski, supra, the court said: “Where the name of the accused person is known, it should be stated in the affidavit and search warrant * * *. Frequently the name of the party is not known. In that case, the rule stated in Daugherty v. Gilbert, Tapp. 39, may be followed, it being there said that a warrant may be legal, although the name of the person charged is not inserted in it, provided he be properly described and it be stated that his name is unknown. Where it can be reasonably done, John Doe warrants are to be avoided. Citing United States v. Doe, 127 Fed. Rep. 982, and West v. Cabell, 153 U. S. 78, and citing Weaver v. Ficke, 174 Ky. 432.”

An examination of the warrants in the cases before me discloses that each of them fails to name the person from whom the property is to be taken, fails to describe him, and fails to state that he is unknown. Although the act. must be liberally construed, its plain terms cannot be evaded. Liberal construction cannot countenance a failure to comply with the unambiguous and unqualified terms of the act. Execution of a search warrant is far more distressing and humiliating to a citizen than any other form of process, and, therefore, should be attended with all the safeguards which the legislature has in unequivocal language seen fit to throw about it.

The warrants in this case must, therefore, be quashed and the evidence obtained through their execution must be suppressed. It may not be amiss, however, to examine some of the other grounds set up by the defendants.

The second point made is that none of.the warrants contains provisions requiring it to be executed and returned to the magistrate issuing it, within ten days after its date. Section 23 of the New Jersey act reads: “A search warrant must be executed and returned to the magistrate who issues the same within ten days after its date; after the expiration of this time the warrant, unless executed, is void.” .

Section 11, under title 11 of the Espionage act, supra, is exactly in the same words. Construing the latter enactment, the United States Circuit Court, in Giles v. United States, 284 Fed. Rep. 208, said: “There is no provision in the warrant requiring it to be executed and returned within ten days. While it may be argued that the requirement that the officer ‘shall report and act concerning the same as required by law’ is by implication a provision for a return, so as to relieve the warrant of one of the objections urged by Otis against the writs of assistance, yet, the great weight of authority is that the warrant should be specific and complete within itself. The officer serving it should not be left to ascertain and judge

of the requirements of the law.” This defect in the warrants furnishes another ground for granting the defendants’ motion.

The defendants further contend that the search warrants do not particularly describe the property to be seized. The point is made that the affidavits were all founded on an alleged purchase of whiskey, and it is argued that the search warrants should not have contained a command to seize any other liquors than whiskey. The warrants commanded the officers to whom they were directed to seize “any liquor on said premises.” The answer to this contention is found in section 2 (B) of the act, which reads: “In any complaint, warrant, accusation, allegation or indictment, the word ‘liquor’ shall be a sufficient description of any or all of the liquors or liquids defined herein.”

This provision permits the use of the word “liquor” .in a search warrant as a sufficient description of any one or all of the liquors or liquids mentioned in the act. This ground is therefore untenable.

Another ground advanced by the defendants is that the warrants did not contain a statement that the commissioner issuing the same found probable cause for their issuance. In United States v. Borkowski, supra, the court said: “The question of probable cause must be submitted to the committing magistrate so that he may exercise his judgment as to the sufficiency of the ground for believing the accused person guilty * * *. The United States commissioner, or other officer with whom an affidavit is filed, must not, simply because such affidavit is presented, issue a warrant.”

In United States v. Harnich, 289 Fed. Rep. 256, it was held: “The finding of the legal conclusion or of probable cause from the exhibit of facts is a judicial function, and it cannot be delegated by the judge to the accuser.”

Section 19 of the New Jersey act provides that “if the magistrate is satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, * * * stating the particular grounds or probable cause for its issue * * The warrants under consideration merely state that “John V. Elliott has probable cause to suspect and does suspect.” There is nothing contained in the warrants to inform the person upon whom they are to be served that the commissioner was satisfied that there was probable cause for the issuance of the warrants. It is the magistrate who must be satisfied and it is the magistrate who must state in the warrant that he finds probable cause for its issue. None of the warrants contains a statement by the commissioner that he finds probable cause, or a statement of the particular grounds or any grounds that he finds, for issuing the warrants, and upon this ground, also, the motion must prevail.

The point is also made that the warrants did not particularly describe the premises to be searched, and they were, therefore, invalidated. The descriptions contained in the warrants are as follows: “* * * at and within the building known and designated as the southwest corner of Mulberry and Commerce streets, Newark, New Jersey, and in the saloon located at the southwest corner of Mulberry and Commerce streets, Newark, New Jersey * * *.” The command in the same warrant reads in part as follows: “* * * to enter in the daytime into the said building and saloon * * * known and designated as the southwest corner of Mulberry and Commerce streets in said city * * *.”

The description in the second warrant reads: “* * * within the saloon and building on Durand street, Newark, New Jersey, known and designated as a separate building in the rear of a closed building at No. 56 Mulberry street, corner Durand street, Newark, New Jersey * * *.” The command in the same warrant reads as follows: * * to enter in the daytime the said building and saloon * * *,” and then proceeds in the words of the description above.

The third warrant describes the premises as follows : * * at and within the building known and designated as No. 101 Mulberry street, Newark, New Jersey * * The command in the same warrant reads: * * to enter in the daytime into the said building and saloon within the city of Newark, New Jersey, and known and designated as No. 101 Mulberry street, in said city * *

In United States v. 2,615 Barrels more or less of Beer et al., 1 Fed. Rep. (2d ed.) 500, the court said: “It must not be forgotten that a warrant is a command, which must be obeyed. It is true that the persons to whom it is directed are expected to use judgment and discretion in its execution, but the command is none the less imperative. Such a command should not direct a search which would be wholly unjustified. If the place described by street and number is used by a number of persons for different purposes, then it is not a place; but there are several places included in the one description. It is then a general, but not a 'particular’ description. * * * The description was too broad, and included premises to search which no probable cause appeared.”

In United States v. Innelli, 286 Fed. Rep. 731, the court, in considering objections to the warrant, said : "A further one is directed to the description of the place. It is described by street and number, and the name o£ the person to whom the premises then or formerly belonged. * * * The description was too broad, and included premises to search which no probable cause appeared. This does not mean that the facts are to be found after the search, and the warrant upheld or not, according as the facts are made to appear. The finding under review is one not of guilt, but of probable cause * * *. Had the whole premises included within the description belonged, as was doubtless erroneously taken for granted, to the person whose place was meant to be searched, such a description as that given might meet all practical needs.”

The descriptions quoted above authorize a search of both the building and the saloon, and in one of the warrants, that relating to the Durand street building, in the rear of a closed building, it may be observed that the officers could have searched any building in the rear of the closed building at No. 56 Mulberry street, corner of Durand street, as long as the building was on Durand street and was a separate building. In each of the other two cases, the saloon is not the only part of the building which is tenanted. The warrants, therefore, do not “particularly” describe the premises, and this ground of attack must also prevail.

The purpose of such strict conformity with the requirements of the law is perfectly obvious. By the fourth amendment of the constitution of the United States, it is provided that: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In Gouled v. United States, 255 U. S. 298, the court said, speaking of this amendment among others: “It has been repeatedly decided that these amendments should receive a liberal construction so as to prevent stealthy encroachments upon or ‘general depreciation’ of the rights secured by them, by imperceptible practice of courts or well-intentioned but mistakenly over-zealous executive officers.” The rights of personal security and personal liberty have always been regarded as the very essence of constitutional liberty, and while the New Jersey act must be liberally construed in order to prevent the sale of intoxicating liquors for beverage purposes, it certainly was not the intention of the legislature to permit the courts to dispense with the safeguards thrown about that extraordinary procedure accomplished by search warrant.

The warrants are quashed; the evidence obtained through their execution is suppressed and the property is directed to be returnd.


text:
    FRANK J. WILKINSON, PLAINTIFF-APPELLANT, v. LOUIS PLAKET, DEFENDANT-APPELLEE.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Landlord and Tenant — Landlord Appellant Here — Held, That While There was a Conflict of Evidence There was Proof Supporting the Finding of the Trial Judge for Defendant, and it was for Him to Pass Upon the Truth Thereof and the Weight of the Evidence — Judgment for Defendant Affirmed.
    Oil appeal from the Atlantic City District Court.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Babcock & Champion.

    Eor the appellee, no brief.
   Per Curiam.

This is an appeal from a judgment in favor of appellee, defendant below, in an action for rent.

The facts contended for by appellant are that on October 12th, 1923, Wesley A. Smith, then owner of a building containing a store and ail apartment leased the same to the appellee for one year from October 13th, 1933, to October 13th, 1934, for $480 per year, payable monthly, in advance, on the twelfth of each month. At the expiration of the term of the lease, appellee, the tenant, held over from October 13th, 1934, to October 13th,. 1935, and upon the expiration of that term again held over to October 13th, 1936. On November 6th, 1935, appellant purchased the property and took an assignment of the lease, as is said. The lease contained a provision that in case of a sale of the premises the tenant, upon written notice, would vacate, and such notice was given by Smith on September 3d, 1935, requiring him to vacate on or before December 13th, 1935. The tenant, appellee, did vacate and remove from the premises November 13th, 1935.

The contention of the tenant, appellee, is that in May, 1925, he and Smith, the then owner, entered into a new agreement, by parol, • that he would rent the dwelling or apartment only, at a rental of $25 per month from May 12th, 1925, and. that then Smith, the owner, would rent the store, and did so rent it from May 12th, 1925, to one Degler at $15 per month. That the last payment of rent made by appellee was October 12th, 1925, and that he vacated the apartment on November 12th, 1925, pursuant to the before-mentioned notice from Smith so to do. That by agreement with the owner, appellee collected for him the rent of the store and paid over to him such rent so collected as well as the rent for his apartment. Degler, the occupant of the store, testified that in April, 1925, he entered into an agreement with Smith, the then owner, to rent the store at $15 per month, commencing May 12th, 1925.

In rebuttal of this testimony of Degler, evidence was produced of an alleged admission by Degler that he had rented the store from the appellee and not from Smith. It was also stipulated that the store was used for election purposes by Atlantic City in June and November, and the check from the city for such use was to the order of appellee, who contends that he turned it over to Degler.

Files of a proceeding in the Atlantic City District Court, being the same court in which the present proceeding was brought and heard, between the same parties, were offered and admitted, showing that such action was for rent due as claimed herein and that judgment for possession was entered against appellee by default. Such action was in April, 1926. The present action was commenced August 31st, 1926.

The first contention of appellant is that the evidence as to the new letting by parol was improper as it varied the terms of a written lease and such agreement was without consideration.

These contentions are without legal.merit.

Contracts of this character not being required to be in writing, the parties may by parol cancel them, or alter or supplement them or make a new contract. Headley v. Cavileer, 82 N. J. L. 635. On a finding of fact favorable to defendant the case would show substantially a surrender of the former lease by operation of law and a reletting of part of the original premises on different terms, by parol.

The remaining grounds appear to be that there was no evidence to support the judgment and that upon the evidence submitted the judgment should have been for appellant.

While there was a conflict of evidence there was proof supporting the finding of the trial judge and it was for him to pass upon the truth thereof and the weight of the evidence.

Such being the situation his finding will not be disturbed by this court.

The judgment below is affirmed, with costs.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN MILIACCO, ALIAS JOSEPH DE LAURO, PLAINTIFF IN ERROR.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Crimes — Burglary—No Assignments of Error or Specifications of Causes — Nothing Before Court to be Reviewed.
    On error to Bergen County Quarter Sessions.
    Before Justices Parker, Menturn and Campbell.
    For the plaintiff in error, Alberico O. Giccarelli.

    For the defendant in error, Archibald O. Hart and John J. Breslin, Jr. ,
   Per Curiam.

This writ brings up for review a judgment of conviction under an indictment charging an attempted burglary and possession of burglar’s tools.

There are no assignments of error, specifications of causes of reversal nor certificate of the trial judge bringing up the entire record under section 136 of the Criminal Procedure act. There is therefore nothing before us to be reviewed. LeConey v. Koch, 4 N. J. Adv. R. 950; Abbe v. Erie Railroad Co., 97 N. J. L. 212.

The judgment below will therefore be affirmed, with costs.


text:
    PAUL J. FRANKLIN, PLAINTIFF, v. SAMUEL WIENER, DEFENDANT.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Negligence — Personal Injury — Excessiveness of Award — Testimony Considered and Award Sustained.
    On defendant’s rule to show cause.
    Before Justices Parker, Mifturf and Campbell.
    Eor the rule, Franlc G. Turner.

    Contra, McCarter & English.

   Per Curiam.

Plaintiff has a verdict of $5,000, and the single question before us is the alleged excessiveness thereof.

Plaintiff’s right leg was broken at, or near, the thigh, and he was otherwise injured and suffered facial paralysis. His left leg was crippled prior to the accident. His expenses in seeking a cure, &c., were about $600. His loss of wages was from $900 to $1,000, about a recovery for which there is some controversy because of the fact that they were regularly paid by his employer. Defendant claims he therefore had no recoverable loss in that direction, although the plaintiff contends that such payments were made him upon the understanding that they were made to him to cover a financial emergency and were to be repaid by him to his employer.

Aside from this, however, our examination of the proofs satisfies us that the verdict is not excessive.

The rule to show cause will therefore be discharged, with costs.


text:
    ANNA MATTHEWS, PLAINTIFF-APPELLEE, v. ARTHUR H. LEWIS AND VAN RIPER & COMPANY, INCORPORATED, DEFENDANTS-APPELLANTS.
    Submitted May 13, 1927
    Decided August 26, 1927.
    Negligence — Injury to Pedestrian, While Crossing Street, by a Motor Vehicle — Held, a Jury Question was Presented.
    On appeal from the Passaic District Court.
    Before Justices Parker, Minturn and Campbell.
    For the appellants, Charles W. Broadhurst.

    For the appellee, Feder & Rinzler.

   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff below in an action for damages for personal injuries resulting from being struck down by an automobile while crossing Cornelius street at Ann street, in East Eutherford. When appellee started to cross the street the automobile was one-half a block from her, and when she had reached within a few feet from the opposite curb, toward which she was walking, she was struck and injured. The only grounds of appeal are error in refusing to nonsuit and direct a verdict in favor of defendant below because there was no evidence of negligence and because of the contributory negligence of the plaintiff.

There was evidence to sustain the trial judge’s findings upon both these points, and, therefore, we will not disturb his findings.

The judgment below will be affirmed, with costs.


author: Lawrence, J.

text:
    Morris County Circuit Court.
    IN THE MATTER OF AN ORDINANCE FOR THE GRADING, ETC., OF WASHINGTON AVENUE, IN THE BOROUGH OF CHATHAM, NEW JERSEY.
    Municipalities — Streets—Paving—Public Necessity — A Local Improvement was Proposed — Two-thirds of Property Owners Objected — Council Then Declared Proposed Improvement a Public Necessity — Property Holders Appealed Under the Statute — Held, Upon Examination, That the Improvement Is a Public Necessity; That Questions of Benefits, Costs of Improvement, &c., are Not Matters Before the Court Under the Statute Authorizing This Review. ■
    On appeal from the determination of mayor and council that contemplated public improvement is a public necessity.
   Lawrence, J.

This is an appeal by property owners affected from the determination of the mayor and council of the borough of Chatham that the grading and paving of Washington avenue, a street of the borough, is a public necessity. The improvement contemplated is local in character and is being undertaken' pursuant to the provisions of an ordinance adopted by the council and approved by the mayor. Written objection was made by the owners of two-thirds in value of the land proposed to be assessed for benefits accruing from such improvement. Thereupon, the mayor and council determined that it is a public necessity, and this appeal was filed. The authority therefor is found in Pamph. L. 1922, ch. 112, p. 201. The pertinent provisions of the statute are that notwithstanding the objection of property owners to a contemplated local improvement, the governing body may determine that it is a public necessity and, after the lapse of ten days from the date of such determination, majr undertake it, unless in the meantime the property owners filing objection appeal to the judge of the Circuit Court of the county, who may hear such appeal in a summary way and determine whether the proposed improvement is a public necessity or not. Should he decide that it is, the governing body may proceed with the improvement, otherwise not.

The hearing on the appeal has accordingly been had, on due notice, and the undersigned, as judge of the Circuit Court, has considered the evidence offered and inspected the territory involved in the contemplated improvement. It is proposed, under the ordinance, to grade and pave with eight inches of concrete Washington avenue from its intersection with the southerly side of Main street to its intersection with the northerly side of Watclmng avenue, a distance of approximately two thousand five hundred and sixty feet, at a cost not to exceed sixt}' per cent, of which shall be paid by the borough at large and the balance assessed upon the lands and real estate in the vicinity of the improvement benefited thereby and to the extent thereof. Should the amount of the benefits received not equal the balance of the total cost, then the deficiency shall likewise he paid by the borough at large.

The objecting property owners rest their appeal on the following grounds: (a) The improvement contemplated is not a public necessity; (5) the property owners affected by the assessment will not be benefited by the improvement; (c) the cost of the improvement, if made, should be assessed against the borough at large and no portion thereof against the property owners fronting on the street, and (d) the assessment of forty per cent, of the cost of the proposed improvement on the property owners affected is not a public necessity and is an improper burden to impose.

It is not deemed necessary to consider any of these grounds excepting the first. Whether the property owners will be benefited by the improvement, and if so, to what extent, the manner and measure of distribution of the cost, and the policy to be followed with relation thereto, appear to be matters not within the purview of the statute invoked as the basis for the present appeal. These questions properly will arise before the assessment commissioners appointed to ascertain the cost of the improvement and its allocation. It may well be that they will find that the benefit to the property owners in question will not comprehend forty per cent, of the cost, and therefore the burden placed upon them eventually prove to have been anticipated instead of being ultimately realized. Since the street when improved, as suggested at the hearing of the appeal, may become a main thoroughfare, and generally used for a larger amount of traffic, it is conceivable that the property owners may have a cogent argument against the maximum assessments for benefits now apparently apprehended. These matters, however, are not thought germane to the present inquiry which will be confined to the question of the public necessity of the improvement.

An inspection, even though cursory, of the streets and avenues of the borough leads the unprejudiced and impartial mind to the conclusion that the problem of adequate drainage and rebuilding and paving many of them, including Lafayette and Washington avenues, to say nothing of Main street, is of immediate importance. The solution of the problem undoubtedly involves the public welfare and convenience and would seem to be quite within the realm of public necessity.

Necessity is defined to be a condition, state or quality of being necessary or needful, and the term “public necessity” appears to be used to designate the requirement of what is needed for reasonable convenience, facility and completeness in accomplishing a public purpose. The term, therefore, implies something more than a- mere unanticipated or unforeseen public emergency, and may include a generally progressive measure of municipal improvements consistent with reasonable convenience, the general welfare, and the fair ability of the community to meet the obligations incurred therefor without an unduly burdensome or what may be termed confiscatory tax rate. The policy to be followed in this regard necessarily rests with the governing body of the municipality. Whether, therefore, Lafayette avenue shall be rebuilt and paved before Washington avenue is entirely a matter to be decided by the mayor and council.

Washington avenue is one of the centrally located streets of the borough, connecting Main street with Watchung avenue, both of which are subjected to increasingly heavy traffic from year to year. To include it in a system, therefore, which will to a degree relieve the latter streets, provide adequate drainage and at the same time put it in a permanent condition of repair which it obviously needs, seems not to be unreasonable, particularly as sixty per cent., if not more, of the cost wiil fall upon the borough at large.

It is urged that the use of concrete rather than macadam is not a public necessity. It is assumed that this argument could be made against any street improvement in any municipality at any time, and yet, having in mind the definition of public necessity hereinabove adopted, the wisdom of laying a permanent pavement with reduction of annual maintenance to a minimum, as against a pavement of macadam constantly worn away in corduroy fashion by present day motor traffic and the resultant state of disrepair, of which the present condition of the avenue is a fair example, would seem to be clear. Many examples of it are to be observed in adjoining municipalities. In the circumstances, I am of the opinion that the a])peal should be dismissed.