text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CHARLES NORTON, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, A CORPORATION OF NEW JERSEY, RESPONDENT.
    Injury to Employe Caused by Falling on Back — Some Conflict In Testimony, but Accident Clearly Occurred, and Judgment For the Petitioner.
    On determination.
    For the petitioner, David Roslcein.

    For the respondent, James O. Boyd.

   From the evidence submitted, it appears that the petitioner, on May 18th, 1925, while tightening a bolt while in the course of his employment, slipped and fell backwards on a float on which he was working, sustaining injuries to his back. Petitioner was compelled to cease work immediately and was lowered down by ropes to the ground, where he was treated by the respondent’s physician, Dr. James H. Lowrey. Dr. Lowrey strapped the petitioner with adhesive, and petitioner thereupon returned to light work in the respondent’s employ on June 5th, 1925.

It appears that the petitioner’s strapping was reinforced from time to time by respondent’s physicians, and some time in December was ordered to wear a pelvic belt which respondent furnished.

The petitioner is a man of good physical appearance and impresses me very favorably, and I find no sign of malingering. The testimony of the petitioner and of his several physicians show an injury to the lumbar-sacral region and both sides of the cervical dorsal region.

The testimony of Dr. Henry H. Kessler, who examined the petitioner on January 12th, 1926, bears out the testimony of the petitioner’s witnesses, and it indicates to me that the injuries complained of are not separate and distinct injuries, but was a continuous injury originally extending from the lumbar-sacral region to the cervical dorsal region. The testimony of Dr. Lowrey, who treated the petitioner on the day of the accident for the respondent, diagnosed the condition as a sprain of the lumbar region, mostly on the left side, and from the strapping done by him it would indicate that the injuries were of a general nature. The medical witnesses for the respondent admit that he has some permanent disability in the right sacrum region over the right sacro-iliac joint. The only difference in testimony is that the petitioner now complains of injuries over the right sacrum, whereas, originally, he complained of pain in the lumbar region, mostly on the left side. Prom the testimony, it would appear that the original injury was a general injury and not a localized one, which is now settled more definitely in the right sacral region. There is no history of any intervening accident, and from the testimony of medical witnesses and the petitioner himself I am of the opinion that the petitioner has sustained the burden by the preponderance of evidence in his favor.

I do therefore find and determine from the evidence as follows:

1. That Charles Norton was on May 18th, 1925, in the employ of the Public Service Production Company, the respondent herein.

2. That the petitioner, on May 18th, 1925, met with an accident arising out of and in the course of his employment; that intoxication was not the proximate cause, nor was the said injury intentionally self-inflicted.

3. That the respondent had knowledge of the said accident, and the petitioner at the time thereof was earning $66 per week as wages.

4. As a result of said accident the petitioner was injured and sustained injuries to his back, which are of a permanent nature, and because of the injuries aforementioned the petitioner has sustained an impairment equivalent to fifteen per cent, of total permanent disability.

I, therefore, order the respondent to pay the said petitioner compensation at the rate of $11 per week beginning June 5th, 1925, for a period of seventy-five weeks.

I do further order the respondent to pay David Roskein, Esqnire, attorney for the petitioner, the sum of $150 as counsel fee for services rendered and incurred in connection with the formal hearing of the within matter.

Harry J. Goas, Deputy Commissioner.


source: Caselaw Access Project

author: W. E. Stubbs, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    TONY PINA, PETITIONER, v. WALL ROPE WORKS, RESPONDENT.
    Employe Had Been Operated Upon For Appendicitis — Returned to Work but Work Proved too Heavy For Him in His Weakened Condition — No Evidence That There was Any Unusual Occurrence or Accident — Held, That Compensation Carfnot Extend to Payment For an Aggravation of an Existing Condition Through the Regular Employment.
    On petition for compensation. On determination of facts and order dismissing petition.
   The petitioner averred in his petition that the alleged injury occurred on or about March 11th, 1925, while he was operating machinery in the preparation room, lifting and pulling rope. In this connection the petitioner testified that in the fall of 1924 he was operated on for appendicitis, and that after a short period of convalescence- he returned to work for the respondent; that the operative wound, following the appendicial operation, bothered him ever since the operation; that when he first returned to work after the operation, the wound did not pain him so very much, but that the character of the work which he was obliged to do by the respondent was such that it interfered with his improvement, and that instead of getting better, after the operation and after he started to work, his condition continued to get worse, until he was obliged to remain away from work altogether. There is in tile record evidence that the hospital authorities suggested that the petitioner return to light work, and that his condition would improve much faster if he had light work. It furthermore appears from the petitioner’s testimony that the work he was obliged to do caused him considerable pain and trouble. There does not appear, however, anywhere in the petitioner’s testimony, any reference to any unusual or accidental strain or occurrence. The work that he was doing on the day that he stopped working, and at the time he stopped working, was no different from the character of work he had been doing for some time past, and the difficulty that the petitioner had in doing that work, and the pain caused by the work was no different from the difficulty and the pain he had experienced since his return to work after the operation. He had to pull, he had to lift, he had to shove, he had to work machinery, and these various movements all interfered with a speedy recovery from his appendicial operation. Although this work gave the petitioner some pain and trouble, he continued at his work, according to his testimony, until some time in March, when his condition was such that lie did not feel capable of working any longer.

d’he petitioner was carefully examined in order to elicit information from him concerning the occurrence of something unusual or sudden, either in the way of something unusual about the work or something unusual about the way the work affected him differently from what it had been affecting him.

A careful examination of the petitioner’s testimony impresses me with the fact that the petitioner was undertaking to do heavier work than his physical condition warranted, and that the effect of that was to prevent him from accomplishing an early recovery of normal health.

Not only is the petitioner’s testimony unsatisfactory on the question of any accidental occurrence which he may have sustained, but the petitioner’s statement that he worked up to the early part of March is flatly contradicted by the record of his employment. There is in evidence the time cards of the petitioner, which show that he worked full weeks up to and including the week ending April 4th, 1925, and that he worked part of the following three weeks up to and including the week ending April 25th, 1925.-

On the last day that the petitioner claims he worked, he testified that he went to his boss and simply told him that he did not feel good. The petitioner testifies to no mention of any accident to his employer. He says, after he stopped working, he called upon Dr. Downs.

Dr. Downs, by agreement of the parties, has submitted a statement to the effect that the claimant had been operated on for appendicitis about September of 1924; that he returned to work about January, 1925, but that in March, or April, he became ill with vague abdominal symptoms. Dr. Downs stated that he was unable to give the cause of the claimant’s condition.

The petitioner was examined by Dr. Eeddan, whose report was also submitted to me, by agreement of the parties, and according to Dr. Eeddan’s report, the man’s present condition is not related to any accident that he claims to have sustained.

The claimant produced some witnesses on his behalf, but none of them gave any evidence bearing on any accidental occurrence.

In order to entitle the petitioner to compensation, the burden is on him to produce credible evidence which persuades me to believe that he has met with an accident arising out of and in the course of his employment, and that as a result of such accident, he is suffering a disability. There is, furthermore, a burden on the petitioner to show by competent medical evidence a casual relationship between the alleged accidental injury and his disability.

While it is clearly established that compensation is to he paid for the aggravation of an existing injury, as well as for an injury directly caused by accidental means, it does not follow that an employe is entitled to compensation for the aggravation of an existing condition merely because that aggravation occurs during the performance by the employe of his regular work, nor is the employe entitled to be compensated. as for an aggravation of an existing condition, even though the performance by the employe of his regular work may be a factor in causing the aggravation. In the case before me now, the claimant is suffered from a weakened physical condition, following his operation, and he chose to undertake the performance of work which was too- heavy or too strenuous, for his impaired physical condition, and as a result thereof, his condition was aggravated. It must be held that he elected to assume the risk of the aggravation, and that the aggravation is a risk Which he elected to take and which was incident to- the regular performance of his occupation. In other words, aggravation of an injury, under the circumstances in this ease, is not accidental, but. occupational. ; jj: sfc sjt jjs

W. E. Stubbs, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    OCTAVIA MISCHAART AND HUSBAND, PETITIONERS, v. SEBASTIAN GIANNI, RESPONDENT.
    Death of Employe — Employe Lived at Home of Parents, to Whom He Contributed a Certain Sum — In Return He Received His Board, Etc. — His Mother Kept Boarders, His Father Worked —Employe was in Debt to His Father — Held, That Neither the Father nor Mother Were Dependent Upon Employe.
    On determination of facts and rule for judgment.

      Eor the petitioners, Weinberger & Weinberger (Joseph Weinberger appearing in their behalf).
    For the respondent, Collins & Corbin (Charles W. Broadhurst appearing in his behalf).
   H: Hi ❖ ❖ Hi Hi Hi

It appeared from the evidence that the petitioner Octavia Mischaart, fifty-one years of age, and the petitioner Camiel Mischaart, forty-nine years of age, were the mother and father, respectively, of the decedent. He was living in their house at the time of his death and contributing to his mother a sum of money each week, the amount of this was in dispute; the mother stating it was $12 a week, and other testimony or the inference from it would indicate that it was $6 a week. In return for this he had a room in the house, obtained his meals there, had his laundry, mending, &c., performed’ by his mother. The earnings of the decedent were $30 a week at the time of his death. Fie had been working for respondent one week at the time of his death, and prior to that had been out of work for a number of weeks, and was indebted to his mother to the extent of about $200 for money borrowed. The mother, at the time, was keeping boarders, who paid $7.50 a week, and she had four boarders, or an income of $30 a week from this. The father was working and earning from $30 to $35 a week.

The above resume of the testimony, although not complete in all details, is sufficient to show that the preponderance of the testimony and the fair inference that can be drawn from it indicate there was no dependency by the mother, Octavia Mischaart, or the father, Camiel Mischaart, within the meaning of the provisions of the Workmen’s Compensation act, and they, therefore, cannot recover against the respondent except for the allowance provided by the statute for funeral expenses.

Hi H* Hs H« H« H« Hi

Harry J. Goas, Deputy Commissioner.


author: Parker, J.

text:
    DONALD M. PLANTER v. HARRY ZINTZ ET UX.
    Submitted May 6, 1927
    Decided May 7, 1927.
    Sale of Real Estate — Contract to Deliver Free of All Encumbrances — Deed Contained Restrictions Which Might Constitute Encumbrances — Suit Turned on the Meaning of the Word “House” — Held, That Though Covenants of This Kind are Strictly Enforced, This is No Time to Decide the Question Whether Some Grantor or Some Adjoining Owner, Not a Party to the Present Litigation Could Prevent the Erection on Forbidden Ground of a “House” Intended For Business Purposes — A Purchaser is Entitled to Reject the Title and Recover Back His Deposit in a Case Where a Substantial Defect is Shown.
    Oil motion for summary judgment.
    Before Mr. Justice Pariter, at chambers.
    For the plaintiff, Ward G. Berry.

    For the defendants, Howard Mack ay.

   Memorandum by

Parker, J.

The suit is to recover back money paid on account of the purchase of real estate, the claim being that the title is not as stipulated in the contract. It is stated in one of the briefs that a copy of the contract is annexed to the complaint, but .1 do not find it annexed to the copy submitted to me, nor is it referred to in the body of the complaint as annexed as provided by rule 37 of the Supreme Court. 1 take the provisions of the contract as pleaded in the complaint, as well as the alleged restrictions claimed to be of record and affecting the title.

The complaint begins by pleading a contract to convey by warranty deed free of encumbrances, and it seems quite manifest that the eight restrictions on the use of the premises set up in the complaint, and for the most part admitted in the answer, amount to such encumbrances as would entitle plaintiff to reject the title unless they are removed. Oddly enough, no reliance is placed on this clause, but plaintiff resorts to a special clause that the plaintiff should at his option be entitled to be released from all obligation under the contract should an examination of title disclose that said premises are subject to restrictions preventing the use of said property or any part thereof for business purposes. The complaint then recites eight restrictions, among which is: 3. That no part of any house erected upon the premises shall stand within twenty feet from the line of the street upon which the premises front; porches, porch steps and portecocheres excepted. The question argued is whether this prevents the use of any part of the property for business purposes, and seems to turn upon the further question whether the word irhouse” is to have a meaning confined to a building used exclusively for dwelling purposes. The defendants argued for this restricted meaning and invoke the clause about “porches, porch steps and porte-cocheres” as supporting it.

In 30 C. J. 472, the word “house” is characterized as “an ambiguous word with various meanings dependent upon or made evident by the purpose of the parties and the subject-matter of the instrument.” In Webster’s International Dictionary we read that ”prima fade, the term means a dwelling-house with its appurtenances.” It was so treated by Vice-Chancellor Emery in Righter v. Winters, 68 N. J. Eq. 252, but in connection with, if not apposition to, the compounded word “dwelling-house.” In State v. Garity, 46 N. H. 61, cited in 19 C. J. 846 (state report not accessible at this writing), it seems to have been said that the word “house” is of wider significance than dwelling-house and narrower in scope than “building.”

When we stop to think of the multifarious business uses to which buildings erected as dwelling-houses are converted and for which they are occupied, it should be obvious that the manifest spirit of the restrictive covenant would be violated if the purchaser should undertake to erect on the premise and over the twenty-foot line a building to all appearance a dwelling-house, but for use — e. g., as a sanitarium, a private hospital, a funeral home, a nest of offices for phjfficians and dentists, a dressmaker’s 'establishment, a woman’s exchange, &c. Externally, such a building would have all the usual characteristics of a “house;” essentially it would be a building for business purposes. See 18 C. J. 391.

It is true that covenants of this- kind are strictly construed. Trainer v. Calef, 96 N. J. Eq. 657. But this is no time to decide the question whether some grantor or adjoining owner not a party to the present litigation could prevent the erection on forbidden ground of a “house” intended for business purposes; especially if such decision were now to- be advice to such grantor or adjoining owner. The general rule, which I consider applicable to the stipulation in question, is that the purchaser is entitled to reject the title and recover back his deposit in a case where a substantial defect is shown. Eisler v. Halperin, 89 N. J. L. 278. The plaintiff is not required to take the title at the risk of litigation in which he may be defeated.

These considerations require the entry of a summary judgment over the answer.


author: Per Curiam.

text:
    PETER ZENKERT, PROSECUTOR, v. CITY OF GARFIELD, FRANK J. MATISOVSKY ET AL., DEFENDANTS.
    Decided May 3, 1927.
    Municipalities — Public Officers — Certiorari to Review Election of Recorder, a Lack of Quorum Being Alleged — The Officer was Already In Possession of His Office at Time Rule was Served Upon Him — Clear That Certiorari Will Not Lie — Quo Warranto is the Exclusive Remedy.
    On rule to show cause why a writ of certiorari should not be allowed.
    Before Justices Parker, Black and Campbell.
    Eor the prosecutor, Arthur T. Vanderbilt.

    For the defendants, Merritt Lane.

   Per Curiam.

The prosecutor, a member of the city council of Garfield, seeks to review and to have set aside the alleged illegal action of the council in confirming the, appointment of defendant Matisovsky as recorder of Garfield. The basic ground of the application is that there was no quorum present at the time, and hence no valid- confirmation. The meeting was on March 22d. Matisovsky took the oath of office on the 25th, and at the time the present rule was served on him had entered upon the discharge of his official duties.

In this posture of affairs the question at once arises whether quo warranto is not the exclusive remedy. It is plain enough that the title of Matisovsky to a public office, of which he is in actual occupancy, is in question. There is no question about the existence of the office, and none as to the power of the mayor and council to fill a vacancy; the question is whether that vacancy was lawfully filled. As to whether the quorum had been broken by the departure of prosecutor and three of his associates from the council chamber, the facts are in substantial dispute. We consider that we are not called upon to settle that dispute of fact, because we are clear that certiorari will not lie. The new term of office began on April 1st, and the rule to show cause, made herein on March 30th, was served on defendant Matisovsky on the morning of April 1st, after he had taken his seat on the recorder’s bench and called lor the calendar of cases. He was in full possession of the office, which had been vacated by his predecessor the night before, and which is not now claimed by the latter.

It is urged that the case of Lewis v. Newark, 74 N. J. L. 308, 313, is applicable: but an examination of that case shows at once that the question was as to the existence of the office itself, not the title to it. A similar case is Loughran v. Jersey City, 86 Put. 442.

There is a line of cases, cited in Moore v. Bradley Beach, 87 N. J. L. 392, and Murphy v. Freeholders, 92 Id. 244, holding that the actual incumbent of an office may maintain certiorari to remove some obstruction to his performance of its duties. Rut the present case is in no way within that rule. It is plainly within the ruling of Simon v. Hoboken, 52 Id. 367, and Wygant v. Hackensack Improvement Commission, 89 Id. 454 (at pp. 457, 458). See also Diebert v. South Amboy, 1 N. J. Mis. R. 543.

It is suggested that certiorari should be allowed to this prosecutor because he has no standing in a quo warranto proceeding, not being a claimant of the office. But this ignores section 1 of the Quo Warranto act (Comp. Stat., p. 4210), which permits a citizen or taxpayer to institute such proceeding by leave of the court. McGuire v. De Muro, 98 N. J. L. 684.

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


text:
    STATE OF NEW JERSEY, EX REL. JACOB HORN, RELATOR, v. REINHART O. OSTERMANN, BUILDING INSPECTOR OF THE TOWNSHIP 0F MAPLEWOOD, AND THE TOWNSHIP OF MAPLEWOOD, RESPONDENTS.
    Submitted January 28, 1927
    Decided May 13, 1927.
    Zoning — Stores and Apartment-House in Residence District— Case Within Rule in the Nutley Case.
    On application for mandamus. On demurrer to return to an alternative writ.
    Before Gummere, Ciiiee Justice, and Mr. Justice Trenci-iard.
    Eor the relator, Zucher & Goldberg (Maurice J. Zucher, of counsel).
    Eor the respondents, Samuel D. Williams.

   Per Curiam.

The relator applied to the building inspector of the township of Maplewood for a permit to erect a two-story building to contain stores on the lower floor and apartments on the second floor.

It appears that the permit was refused solely because the land in question was within the single or two-family residence district as established by a zoning ordinance, and that the building in question was prohibited thereby.

We think that the case is controlled by the case of State v. Nutley, 99 N. J. L. 389. That case in the Court of Errors and Appeals is binding in this court in the absence of modification in that court, and as yet there has been none.

The relator is entitled to judgment, with costs, and a peremptory writ will issue.


text:
    ROSINA DE LUCIA, BY HER NEXT FRIEND, ET AL., PLAINTIFFS, v. ANTON BLEHA AND EDWARD BLEHA, DEFENDANTS.
    Submitted January 29, 1927
    Decided May 13, 1927.
    Negligence — Injury by Automobile to Small Child While Walking in the Road — Testimony of Defendant That He Used Due Care and Had His Car Under Control, That the Child Ran in Front of His Car and That the Car was Stopped Within Its Own Length, All Facts For Jury Consideration— No Error Found in Charge — Judgment Affirmed.
    On plaintiffs’ rule to show cause why defendants’ verdict should not he set aside.
    Before Gummere, Chief Justice, and Mr. Justice Trexchard.
    For the rule, Theodore Strong.

      Contra, William K. Flanagan {John Trier, of counsel).
   Per Curiam.

This is plaintiffs’ rule to show cause why a verdict in favor of defendants should not be set aside.

The defendants were the driver and the owner of an automobile. The plaintiffs were a child five years of ago (who sued by her next friend) and her father.

This child, together with three other children, was walking along the public highway on her right-hand side of the concrete part of the highway. Defendants’ automobile was being driven along this public highway and was on the driver’s right-hand side of the road and on the concrete near his right-hand edge of the concrete. The weight of the testimony was that the speed of the ear was from sixteen to twenty miles an hour; that when about twenty-five feet away the driver blew the horn to warn the children of his approach; that shortly thereafter, when he was about seven or eight feet from the children, the little girl, plaintiff, suddenly ran in front of the ear; that the driver instantly applied the brakes and pulled to his right; but, nevertheless, struck the child; that the car was stopped within its own length.

This, obviously, presented a. typical jury case, and we cannot disturb the verdict upon the theory that it was against the weight of the evidence.

It is also said that the verdict is contrary to the court’s charge, as follows:

“Now I charge you that it was his duty to keep the car under such reasonable control as to be able to stop it in time to prevent the striking of the children, assuming that he was able to see them in time to do so.”

But, manifestly, it was not, for the jury is presumed tó have found that the driver was unable to stop the car in time to avoid striking the child, after she had given indication of putting herself in the way of the car.

The next point is that the court erred in refusing to charge plaintiffs’ second request. But we think that the court was not obliged to charge it because it had no application to the state of facts appearing in evidence.

It is next said that the court erred in refusing to charge the fifth request. That we think was not erroneous; but if it was it was harmless, because the request related to the duty of the owner of the car, and the owner of the ear could not be liable in the absence of negligence of the driver, which the jury found did not exist.

Eor the same reasons we think there was no error in refusing to charge plaintiffs’ eleventh request.

The testimony of the witness, which was stricken out, about his having been in the Middlesex county workhouse, we think was properly stricken out. The proper question was whether or not he had been convicted of crime. That question was put and was answered by the witness in the negative. There was no effort to show that he was there under conviction for any .crime, or upon a plea of non vult, nor was there any proposal to' contradict him by the production of a record of his conviction.

The rule will be discharged, with costs.


text:
    No. 410.
    NATIONAL SHEET METAL ROOFING COMPANY, PLAINTIFF-APPELLANT, v. NEW YORK TELEPHONE COMPANY, DEFENDANT-RESPONDENT. NATIONAL SHEET METAL ROOFING COMPANY, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY (IMPLEADED AS PUBLIC SERVICE GAS COMPANY), DEFENDANT-APPELLANT.
    No. 419.
    Submitted October 15, 1926
    Decided February 14. 1927
    Filed May 16, 1927.
    Negligence — Injury to Property of Plaintiff Through' an Explosion in a Telephone Conduit — Plaintiff Alleged That Defendant Telephone Company’s Conduit was Defective and That the Pipes of Defendant Gas Company Were Leaky, but Produced No Evidence to Support the Allegation — The Trial Court Directed Verdict For Telephone Company, but Let Case Against the Gas Company Go to Jury, Which Rendered a Verdict For Plaintiff — Gas Company Appeals From This Verdict, and Plaintiff Appeals From Court’s Ruling in Favor of Telephone Company — Held, That the Court Erred in Assuming That the Doctrine of Res Ipsa Loquitur Applied Against the Gas Company, and That the Judgment Against the Gas Company Should be Reversed, and Held, Also, That the Verdict in Favor of the Telephone Company Should be Sustained.
    On appeals from judgments of the Second District Court of Jersey City.
    Before Justices Kalis cn, Katzenbach and Lloyd.
    For the National Sheet Metal Roofing Company, appellant and respondent, Insley, Vreeland & Decker and Hamilton Cross.

      Eor the New York Telephone Company, respondent, Smith & Slingerland.

    Eor the Public Service Electric and Gas Company, appellant, Joseph Ooult and Henry H. Fryling.

   Per Curiam.

On February 13th, 1923, an explosion occurred in a conduit of the New York Telephone Company, located in Grand street, in the city of Jersey City, opposite the property of the National Sheet Metal Roofing Company. The property is known and designated as Nos. 339-345 Grand street. The National Sheet Metal Roofing Company (hereinafter called the plaintiff) commenced an action against the New York Telephone Company (hereinafter called the Telephone Company) and the Public Service Electric and Gas Company (hereinafter called the Public Service Company) to recover the damages it sustained to its property by reason of the explosion. The suit was instituted in the Second District Court of Jersey City. The state of demand alleged that the conduit of the Telephone Company was defective and that the gas pipes of the Public Service Company were leaky. When the case came before the court for trial (a jury having been summoned) the plaintiff proved the explosion and the damages it sustained. The testimony as to the explosion was to the effect that the street heaved up for a space of approximately ten feet by fifteen feet. The plaintiff produced no evidence that the conduit of the Telephone Company was defective. There was also no evidence offered by the plaintiff that the gas pipes of the Public Service Company were leaky or in bad repair.

Upon the conclusion of the plaintiffs testimony, counsel for the Telephone Company asked the court to grant a non-suit. The counsel for the Public Service Company made the same motion. The court stated that it would reserve its rulings on these motions until the end of the case.

The Telephone Company then proved by expert witnesses the method of construction of the manhole, where the explosion had apparently taken place. The testimony showed that it had been constructed in the year previous to the explosion; that the cables were in good condition after the explosion; that the cover and sides of the manhole were damaged; that the construction employed by the Telephone Company was of the most approved type; that there was not trace of any escaping gas. The Public Service Company then offered the testimony of a witness to the effect that no notice of any seepage or leaking of gas pipes had been brought to the attention of the company. On cross-examination this witness admitted that it might have been one, two or three years since the gas pipes in this part of Grand street had been inspected.

Upon the conclusion of the testimony the counsel for the Telephone Company made a motion for a direction of a verdict for that company. Counsel for the Public Service Company made a similar motion. The court directed the jury to return a verdict in favor of the Telephone Company. In so deciding the court stated that in its opinion it was not a case where the doctrines of res ipsa loquitur applied to the Telephone Company. The motion of the Public Service Company was denied and the court permitted the case to go to the jury as against the Public Service Company. The jury returned a verdict against the Public Service Company and in favor of the plaintiff for the sum of $444.60.

The plaintiff has appealed to this court from the ruling of the District Court in directing a verdict in behalf of the Telephone Company. The Public Service Company has appealed to this court from the judgment rendered against it. The cases were tried together. There is but one state of the case. The appeals have been argued together in this court.

The appeal of the Public Service Company (No. 410) will be first considered. The appellant contends, first, that the court erred in its refusal to grant the motion for a direction of a verdict. We think this ground well taken. The doctrine of res ipsa loquitur did not apply as the court seemed to think. The principle of this doctrine is that when, through any instrumentality or agency under the management or control of a defendant or his servants, there is an occurrence, injurious to the plaintiff, which, in the ordinary course of things, would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care. Mumma v. Easton and Amboy Ry. Co., 73 N. J. L. 653. In the present case the explosion was in a manhole which was the property of and under the control of the Telephone Company. The Public Service Company could not be held responsible under the doctrine of res ipsa loquitur for an occurrence which happened in or on the property of another. Chalmers v. Suburban Telephone Co., 66 Id. 41.

The ruling was also erroneous because there was no evidence offered by the plaintiff to show negligence on the part of the Public Service Company. Negligence is not presumed. It is a fact that must be proven. McCombe v. Public Service, 95 N. J. L. 188. There was no testimony offered by the plaintiff which showed that the explosion occurred by reason of the leakage of any gas, which leakage the Public Service Company was responsible. While there was evidence that there had been no inspection of the gas pipes of the Public Service Company for some period of time, yet this was not evidence of negligence when there was no proof that any gas had escaped from the mains of the Public Service Company and entered the manhole and caused the explosion. If no gas escaped it made no difference that no inspection had been made. Illuminating and fuel gas is not the only kind of gas which will explode. If gas caused the explosion in the manhole it may have come from an entirely different source than the mains of the Public Service Company.

In his charge to the jury the trial judge used the following language:

“If, on the other hand, you feel the plaintiff has produced sufficient facts, you bring in your verdict against the defendant. The two questions you have got to consider are these: If you are satisfied by all the proof in the case from the plaintiff that the happening of this accident speaks of itself negligence on the part of the Public Service Corporation, and if you are satisfied by the defense that the happening of the accident was not by the negligence of the defendant company, Public Service Corporation, then you can find and determine in favor of the defendant.

“If, on the other hand, you decide that the doctrine of res ipsa loquitur applies, you apply the law of negligence and you say: Did the plaintiff prove his case under this case as I cited to you, Chalmers v. Suburban Telephone Company? In that case, which is almost the same as this, the court said it became necessary for the plaintiff to show that the gas did escape into this conduit and did cause this explosion and cause the injury to the plaintiff. Now, if you don’t find any evidence in this case that the gas did escape, or that there is no evidence that the gas did escape, why, you have a perfect right to say that this accident did not happen either by the doctrine of res ipsa loquitur or by the doctrine of ordinary proof in a tort action, based upon negligence, and can find a verdict for the defendant Public Service Corporation.”

To this portion of the charge an exception was taken. Whether or not the doctrine of res ipsa loquitur applied was a question of law for decision by the court and not a question for the determination of the jury. The portion of the charge above quoted is erroneous in this respect.

These views, lead to a reversal of the judgment against the Public Service Company.

With reference to the appeal of the plaintiff below from the direction of a verdict in favor of the Telephone Company we have reached the conclusion that it was properly directed. We do not consider that it is necessary to consider whether the doctrine of res ipsa loquitur was applicable under the circumstances because the proofs offered by the Telephone Company and hereinbefore referred to so completely rebutted any inference of negligence arising from the occurrence (assuming an inference of negligence) that there was no evidence on the part of the plaintiff which justified the submission of the case to the jury upon the completion of the proofs offered by the Telephone Company.

The judgment rendered in favor of the Telephone Company is affirmed.


text:
    WARREN ROBINSON v. ANDREW W. MELLON.
    Decided May, 17, 1927.
    Contracts — Construction — Contract For Filing — Defendant Breached Contract — Judgment For Plaintiff — Upon Rule to Show Cause, Defendant Alleged Excessive Award — Plaintiff Proved Amount of Profit to Him if Contract Had Been Completed — Award Sustained.
    On defendant’s rule to show cause.
    Before Gummeke, Ciiiee Justice, and Mr. Justice Tkenchakd.
    For the rule, Patrick H. Harding.

    Contra, Riggins £ Davis.

   Per Curiam.

This was an action for breach of contract. The plaintiff’s claim was that he entered into an agreement with the defendant, by the terms of which the latter promised, among other things, to pay him at the rate of $1.50 per cubic yard for all filling required to be made in an improvement contemplated by the defendant on the east side and west side of Morgan boulevard, in the city of Camden, from Olive street to Newton creek; that he, the plaintiff, subcontracted for this filling, the subcontractor agreeing to do the work and supply the materials at the rate of one dollar per cubic yard; and that the defendant afterward breached the contract, refusing to permit the plaintiff to perform the work and procuring other contractors to do it. The proofs supported the claim as to the breach of the contract. They also showed that the amount of the filling would be about thirteen thousand cubic yards, according to the testimony of the defendant’s own engineer. The jury rendered a verdict in favor of the plaintiff and awarded him $6,000 as damages.

The defendant thereupon applied to the trial court for a rule to show cause why this verdict should not be set aside. His application was granted, and he now contends before us that the verdict rendered is grossly excessive. If the plaintiff’s evidence with relation to the subletting of the contract was true, he would have made a profit of fifty cents per cubic yard. Not only was this evidence uncontradicted, but it was supported by the testimony of the intended subcontractor. On such proofs the jury was entirely justified in awarding $6,000 as compensation to the plaintiff.

The alleged excessiveness of the verdict is the only ground upon which we are asked to make this rule absolute.

For the reason indicated, the rule will be discharged.


text:
    SAMUEL CALANDRO, PLAINTIFF, v. ELSA A. STIASNY MASHEY, DEFENDANT.
    Decided May 16, 1927.
    Negligence — Motor Vehicle Collision With Motorcycle Side Car —Plaintiff Occupying Side Car Obtained Judgment — On Rule to Show Cause the Verdict Appeared to Have Been Against the Clear Weight of Evidence, Since From the Circumstances the Defendant Could Hardly Have Been at Fault.
    On defendant’s rule to show cause why plaintiff’s verdict should not be set aside.
    Before Guaimeke, Chief Justice, and Mr. Justice Tkenchakd.
    For the rule, Robert Co,rey.

      Contra, -John B. Zabriskie.

   Per Curiam.

This defendant’s rule to show cause why plaintiff’s verdict for $4,000 should not be set aside.

The case grew out of a collision between an automobile and a motorcycle, which occurred on Sunday, July 12th, 1925, on Boulevard East, in Hudson county. At the time of the collision the plaintiff was riding in a side car of the motorcycle and proceeding in a general westerly direction, and the defendant’s automobile was being operated by an agent in the opposite direction. The accident occurred about ten o’clock at night.

Two questions were argued — first, that the verdict was contrary to the clear weight of the evidence; secondly, that the verdict was excessive.

We feel constrained to hold that the physical aspects of this collision, as made plain by the evidence, are such as to show that the accident could not have happened as the plaintiff says it happened, and to make it clear by the great weight of the evidence that there was no negligence on the part of the defendant’s driver. At the point of the accident there was a sharp curve in the road which amounted almost to a right angle turn in the road, but being accomplished by means of this sharp curve. As pointed out, the plaintiff on his motorcycle was proceeding in a general westerly direction and the curve was to his right side of the highway. The defendant’s car was proceeding generally in an easterly direction and the curve was to his left. The defendant’s car was in a long line of automobiles following closely one after the other. This long line of cars, according to the weight of testimony, as we understand it, was proceeding on the right-hand side of this curve as defendant’s car was making the curve. When plaintiff’s motorcycle and defendant’s car had about reached the centre of this curve, this collision occurred.

Now, it is significant that the photographs and other evidence demonstrate that it was the right-hand side of plaintiff’s motorcycle which was injured in the collision, and it seems to be undisputed also that it was the right fender of defendant’s automobile which was damaged by the impact. The great weight of the evidence is to the effect that plaintiff’s motorcycle cut out from the line of traffic on its side of the road and, miscalculating, got into and through the procession of cars on the other side, and this accounts for the fact that it was the right-hand side of the motorcycle that came in contact with the right front fender and wheel of defendant’s automobile. It follows, we think, that the verdict is against the clear weight of the evidence.

The rule to show cause will be made absolute.

Argued January 19, 1927

      Argued January 19, 1927


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MORRIS RUBIN, PLAINTIFF IN ERROR.
    Submitted January 28, 1927
    Decided May 13, 1927.
    Crimes — Larceny—Picking Pockets — No Error Found in Refusal to Direct Verdict — All Other Objections to the Charge of the Court Found to be Without Merit.
    On writ of error to the Hudson County Court of Quarter Sessions.
    Before Gummbbe, Chief Justice, and Mr. Justice Teenciiaed.
    Eor the plaintiff in error, John J. Carlin (George E. Cutley, of counsel).
    For the defendant in error, John Milton, prosecutor of the pleas.
   Per Curiam.

Bubin was convicted in the Hudson County Quarter Sessions upon an indictment charging him with larceny from the person in that he stole $65 from one Charles E. Sparrow.

The testimony tended to show that Sparrow was on the Hudson tube train in the midst of a crowd and found himself jostled by two men; that one of them was Rubin, who hit him on the left trousers pocket as Sparrow was leaving the train, and took $65 from his pocket. Upon-Rubin’s arrest later Sparrow identified him as the man who jostled him and who picked his pocket.

The defendant complains that the judge erred in refusing to direct a verdict of not guilty at the close of the testimony. That complaint is manifestly without merit. Indeed, no reason for such action was suggested.

It is next said that by the charge of the court the jury “were led to believe that their function was not to acquit the defendant if the evidence satisfied them beyond a reasonable doubt, but were justified in finding tlie defendant guilty according to a criterion which has no basis in the criminal law.” Whatever that may mean, our examination of the whole charge satisfies us that there is no merit in the apparent contention. The jury was told distinctly and without qualifications that it was their duty to acquit unless defendant’s guilt was established to the satisfaction of the jury beyond a reasonable doubt.

The defendant contends that there was error in the comment of the judge upon the failure of the defendant to testify. We think that the comment was justified by the rule in State v. Kisik, 99 N. J. L. 385.

Other objections to the charge are without merit, the matters objected to being legitimate comment.

The judgment will be affirmed.


text:
    HERMAN & COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, RELATOR, v. JOHN G. SCOTT, INSPECTOR OF BUILDINGS OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Argued January 19, 1927
    Decided May 13, 1927.
    Zoning — Stores and Apartments in Residence Territory — Case Within the Rule in the Nutley Case.
    On application for mandamus. On demurrer to return to an alternative writ.
    Before Gummbbe, Chief Justice, and Mr. Justice Tjkenohabd.
    Eor the relator, Philip J. Schoiland.

    Eor the respondents, Walter C. EUis.

   Per Curiam.

The relator applied to the building inspector of the city of East Orange for a permit to erect a two-story brick building containing five stores on the ground floor and apartments for four families on the second floor.

The permit was refused because, under the zoning ordinance of the city, the property was located in the small volume residence district, in which district no building containing stores and apartments is permitted.

We think the case is controlled by the case of State v. Nutley, 99 N. J. L. 389. That case in the Court of Errors and Appeals is binding on this court in the absence of modification by that court, and as yet there has been none.

The relator is entitled to judgment, with costs, and a peremptory writ will issue.


text:
    STATE OF NEW JERSEY, EX REL. ROCKWELL H. NEWMAN, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Argued January 19, 1927
    Decided May 13, 1927.
    Zoning — Stores and Offices in Residence- Territory — Case Within Rule in Nutley Case.
    On application fox mandamus. On demurrer to return to an alternative writ.
    Before G-ummere, Chief Justice, and Mr. Justice Tbenci-iakd.
    For the relator, Levy, Fenster & McGloskey (John J. Mc-Oloskey, of counsel).
    For the respondents, Walter G. Ellis.

   Per Curiam.

This is a zoning case. The relator owned a plot of ground in East Orange. He applied to the building inspector of the city for a permit for the erection thereon of a two-story brick building to be used for stores and offices. The permit was refused upon the sole ground that the proposed building was in a district designated as a medium volume residence district in the zoning ordinance of the city, in which a building of the character proposed by the relator was excluded.

We think that this case falls within the case of State v. Nutley, 99 N. J. L. 389. That case in the Court of Errors and Appeals is binding on this court in the absence of modification by that court, and as yet there has been none.

The relator is entitled to judgment, with costs, and a peremptory writ will issue.


text:
    STATE OF NEW JERSEY, EX REL. SAM SPERBER, RELATOR, v. GEORGE F. SCHMITT, BUILDING SUPERINTENDENT OF THE TOWN OF IRVINGTON, AND THE TOWN OF IRVINGTON, RESPONDENTS.
    Submitted January 28, 1927
    Decided May 13, 1927.
    Zoning — Stores and Apartment-Houses in Residence Dictrict— Case Controlled by Rule in Nutley Case.
    On application for mandamus. On demurrer to return to an alternative writ.
    Before Gummere, Chief Justice, and Mr. Justice Trenchaed.
    For the relator, Zucker & Goldberg (Maurice J. Zucker,, of counsel).
    For the respondents, Charles II. Stewart.

   Per Curiam.

The relator is the owner of a tract of land in the town of Irvington. He applied to the building inspector for a permit for the erection of a building containing stores on the first floor and apartments on the second floor. He was denied the permit solely because the zoning ordinance of the town forbids the erection of such building on the premises, the property being located in what is known as Zone A, which permits the erection of one-family dwellings only.

We think the case is controlled by the case of State v. Nutley, 99 N. J. L. 389. That case in the Court of. Errors and Appeals is binding on this court in the absence of modification by that court, and there has been none.

The relator is entitled to judgment, with costs, and a peremptory writ will issue.


text:
    JACOB LEVENSON, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Argued January 18, 1927
    Decided May 13, 1927.
    Zoning — Apartment-House in Residence District — Case Within Rule in Nutley Case.
    On application for mandamus. On demurrer to return to an alternative writ.
    Before Gummeke, Chibe Justice, and Mr. Justice Trenciiard.
    Por the relator, Benjamin Newman.

    Por the respondents, Walter O. Ellis.

   Per Curiam.

The relator applied to the building inspector of the city of East Orange for a permit for the erection of a four-story building in that city containing forty apartments, on land owned by him.

The building inspector denied the permit solely because the property was located within what is known as the medium volume residence district as designated in the zoning ordinance of the city, and is thereby zoned against the use of the property for apartment-houses.

Our examination of the case results in the conclusion that it is controlled by the case of State v. Nutley, 99 N. J. L. 389. That case in the Court of Errors and Appeals is binding on this court in the absence of modification by that court, and as yet there has been none.

The relator is entitled to judgment, with costs, and a peremptory writ will issue.


text:
    STATE OF NEW JERSEY, EX REL. JACOB HORN, RELATOR, v. REINHART O. OSTERMANN, BUILDING INSPECTOR OF THE TOWNSHIP OF MAPLEWOOD, AND THE TOWNSHIP OF MAPLEWOOD, RESPONDENTS.
    Submitted January 28, 1927
    Decided May 13, 1927.
    Zoning — Stores and Apartment-House in Residence District— Case Within Rule in Nutley Case.
    On application for mandamus. On demurrer to return to an alternative writ.
    Before Gummebe, Chibe Justice, and Mr. Justice Tbenohabd.
    E'or the relator, Zucker & Goldberg (Maurice J. Zucker, of counsel).
    For the respondents, Samuel 1). Williams.

   Per Curiam.

The relator applied to the building inspector of the township of Maplewood for a permit to erect a two-story building to contain three retail stores on the first floor and two apartments on the second floor, on property owned by the relator in Maplewood.

The permit was refused solely because under the zoning ordinance of the township the erection of retail stores on the premises of the relator was prohibited.

We think that the ease is controlled by the case of State v. Nutley, 99 N. J. L. 389. That case in the Court of Errors and Appeals is binding in this court in the absence of modifications by that court, and as yet there have been none.

The relator is entitled to judgment, with costs, and a peremptory writ will issue.


text:
    STATE OF NEW JERSEY, EX REL. G. & G. REALTY COMPANY, A CORPORATION OF NEW JERSEY, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted January 28, 1927
    Decided May 13, 1927.
    Zoning — Stores and Apartments — Case Within Rule in Nutley Case.
    On application for mandamus. On demurrer to return to an alternative writ.
    Before Gummere, Ci-iiee Justice, and Mr. Justice Trenci-iard.
    For the relator, Zuclcer & Goldberg (Maurice J. Zuclcer, of counsel).
    For the respondents, Walter O. Ellis.

   Per Curiam.

The relator is the owner of a tract of land in the city of East Orange. He applied to the building inspector for a permit for the erection of a building containing three stores on the first floor and two apartments on the second floor.

The building inspector refused the application upon the sole ground that the zoning ordinance in force forbids the erection of stores and apartments on the said premises, the property being located in what is known as the small volume residence district.

We think that the case is controlled by the case of State v. Nutley, 99 N. J. L. 389. That case in the Court of Errors and Appeals is binding on this court in the absence of modification by that court, and as yet there has been none.

The relator is entitled to judgment, with costs, and a peremptory writ will issue.


text:
    ANNA LEVIN v. NATIONAL BENJAMIN FRANKLIN FIRE INSURANCE COMPANY ET AL.
    Decided May 17, 1927.
    Insurance — Fire—Application For Rule to Show Cause, All Exceptions Being Reserved — Allegations That Policy Had Been Canceled Before Fire, That the Defendant’s Agent was Also Plaintiff’s Agent, and His Acts Binding Upon Her, and That There was No Legal Proof to Establish a Basis For Computation of Damages, Were All Made a Basis For a Motion For Nonsuit, Which Motion was Denied and to Which Exceptions Were Taken — Held, That it is Inadvisable in Considering Rule to Show Cause to Pass Upon Merit of These Allegations — Held, Also, That it Cannot be Said That Finding of Jury That Premium Had Been Paid was Against Weight of Evidence.
    On defendants’ rule to show cause.
    Before Gummere, Chief Justice, and Mr. Justice Trex-CJIARD.
    Eor the rule, Richard Boardman.

      Contra, Durand, Ivins & Carton.

   Per Curiam.

This action was brought by Anna Levin against the defendants, doing business as the Pittsburgh Underwriters, on a policy of fire insurance. The trial resulted in a verdict in favor of the plaintiff. The defendants thereupon applied for and were allowed a rule to show cause why this verdict should not be set aside; all exceptions being reserved.

The first contention is that this rule should he made absolute because it appears without contradiction that the policy in suit had been canceled some time before the loss occurred and had, consequently, ceased to be a contract binding upon the defendants at the time of such loss. It appears from an examination of the state of the case that when the plaintiff closed her proofs there was a motion to nonsuit submitted by the defendants. This motion was denied, and an 'exception to the denial was allowed. One of the grounds upon which the motion was rested was that it affirmatively appeared that the policy was canceled prior to the occurrence of the fire, and had then ceased to be a binding contract upon the defendants. This question, consequently, is within the reservation of the rule, and for that reason we consider it inadvisable for this court to pass upon it.

The next ground urged for making the rule absolute is that it appeared by the greater weight of the evidence that the insured never paid the premium called for by the policy. This question was submitted to the jury, and their finding was contrary to this contention. We cannot say that such finding was so clearly against the weight of the evidence as to justify us in setting the verdict aside.

The next ground upon which counsel urges that the rule be made absolute is that the defendants’ agent, Le Oompte, who wrote the policy in suit, was in fact the agent both of the plaintiff and the defendants, and that his acts with relation to the issuing of the policy and the notice of cancellation were binding upon her. It is enough to say in disposing of this contention that it was submitted as one of the grounds upon which the motion to nonsuit was rested. This being so, for the reason already indicated, we consider it inadvisable to determine its soundness.

The only other ground for making the rule absolute urged on behalf of the defendants is that there was no legal proof to establish a basis for the computation of damages. But this was also made one of the grounds upon which the motion to nonsuit was rested, and for that reason we decline to consider it.

The rule to show cause will be discharged.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    NELLIE RAYMAR, PETITIONER, v. SAMUEL ADOLFF, RESPONDENT.
    Dispute as to Amount of Wages — Overtime—Proper Basis of Compensation Determined.
    On determination of facts and rule for judgment.
   This is a workmen’s compensation ease coming on for hearing in New Brunswick on December 8th, 1926, after due notice to Freeman Woodbridge, counsel for the petitioner, and the Maryland Casualty Company, the insurers, for the respondent, at which hearing no one appeared for the defendant.

From the testimony taken at the hearing, it appears that the only question at issue is the wages upon which the compensation rate should be calculated. The testimony of the wife of the decedent was that he was being paid $48 per week, which wage he had been gettihg for about a year. This claim was corroborated by the respondent, who testified that this was so, and further explained that the deceased previously was receiving $45, the sum paid other employes, but that opportunity to take on additional business occurred, which could only be cared for by Mr. Baymar’s coming to xvork early. AdolfE agreed to pay Bavmar an additional $3 a week, and the latter accepted the agreement.

According to counsel for the petitioner, the insurance carrier was willing to pay compensation on the basis of a weekly wage of $45 only, claiming that the extra $3 was for overtime. A reference to the state — paragraph 23 (g) — should determine this question. A careful reading of this section of the law shows that the ordinary custom in vogue at the time must determine the weekly wage, whether it be fixed by the hour, day or week. In the present case it was the custom for the employer to pay this employe $48, and the compensation rate must be based on that figure.

A study of the various amendments to the Compensation act will show that the original act of 1911 contained no reference to overtime. The amendment of 1913 prescribed that in calculating the weekly wage in connection with piece work, overtime must be excluded. In 1919 this provision of the law was stricken out, and in the statute as it stands to-day, there is no authority for excluding overtime, consequently, no citation of cases occurring between 1913 and 1919 can have any control of this issue, and compensation in this case must be based on a wage of $48.

Inasmuch as the respondent was present at the hearing, and the facts of employment, fatal accident therein, and dependency were established by his testimony and that of the petitioner, it is, therefore, on this 6th day of January, 1927, ordered that compensation be paid the petitioner by the respondent or his insurance carrier, at the rate of $17 per week for three hundred weeks, following which the rate shall be $16.80 for the next ensuing two hundred and forty-two and three-sevenths weeks, at which time Agnes Baymar will-reach the age of sixteen years. The respondent will also pay the sum of $125 to the petitioner’s counsel as his fee for his services in this case.

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CHARLES E. JONES, PETITIONER, v. PUBLIC SERVICE TRANSPORTATION COMPANY, IMPLEADED AS PUBLIC SERVICE RAILWAY COMPANY, RESPONDENT.
    Petitioner, Employed as an Electrician, was Injured After Hours While Using an Emery Wheel to Grind Down a Lock He Had Purchased For His Locker — Held, That the Injury Did Not Occur During the Employment.
    On determination and order for dismissal.
    Eor the petitioner, Naihan Wiesfled.

    For the respondent, James O. Boyd.

   From the evidence submitted it appears that Charles E. Jones, the petitioner, had been engaged by the respondent on April 5th, 1926, as an electrician: his work would be mostly ignition work on buses. It would seem that he was hired around noon time and was sent to the company doctor around three o'clock in the afternoon for a physical examination lie-fore he would he accepted as an employe. Petitioner states he left the doctor’s office in the Terminal Building in Newark just about five o’clock and would have to go from the Terminal Building in the center of Newark to the Lake Street garage, which is located on Bloomfield avenue. His regular quitting time at the Lake Street garage was five-thirty. On cross-examination he admitted that he would have to get his car, which was located on one of the side streets near the Terminal Building, and that he drove from there to a hardware store and bought a lock, and that he then drove from the store to the Lake Street garage. He then went to an emery wheel in the machine shop of the respondent, and in attempting to grind this lock, which he had purchased for his locker, caused the lock to jam in the emery wheel, with the result that he was either struck with a piece of the emery wheel or a piece of the lock, which caused him to lose several teeth and inflicted a scar on the side of his face. The foreman of the Lake Street garage and his assistant both testified that petitioner arrived at the Lake Street garage after five-thirty, and that, therefore, the grinding of the lock was done after quitting time. The evidence further showed that there was no occasion for the petitioner to use the emery wheel, and there was no obligation upon him to buy a lock for his locker.

Respondent contends that, therefore, the accident did not arise out of and in the course of the employment. Under the ease of Bryant v. Fissel, 86 Atl. Rep. 458, it was held that an accident, to arise out of and in the course of the employment, must be an accident within the reasonable contemplation of the parties at the time of hiring. It has also been held that for the petitioner to meet with an accident arising out of and in the course of his employment, he must be in a place where he could. reasonably be expected to be and doing the work that he was employed to do.

In the ease at bar the petitioner was in the machine shop division of the garage working on an emery wheel, which the foreman testified was no part of his employment. He was employed as an electrician, and working after his regular working hours grinding a lock which was his own personal property.

Therefore, it is my opinion that this accident did not arise out of and in the course of the petitioner’s employment, and the petition, -therefore, should be dismissed.

Harry J. Goas, Deputy Commissioner.


author: Berry, V. C.

text:
    Henry V. Vreeland, complainant, v. Herman Heinrich Wachendorf et al., defendants.
    [ Decided May 19th, 1927. ]
    Conveyances — Bill to Set Aside — Defendant Conveyed to Wife in Fraud of Creditors — Plaintiff Became a Judgment Creditor — Conveyance in 1912 and Judgment in 1913 — Execution Not Issued Until 1924 — In 1924 Property was Acquired For Bona Fide Consideration by Another, Who, in Turn, Sold Again — Also For a Bona Fide Consideration Without Actual Notice of Complainant’s Claim — Held, That Bill Must be Dismissed.
    Oil bill, &c. On final hearing.

      Mr. John P. Lloyd and Mr. fiamuel A. Besson, for the complainant.

      21r. George M. Eichler, for the defendants.
   Berry, V. C.

On March 12th, 1912, the. defendant Herman Heinrich Wachendorf was the owner of a one-sixth interest in certain lands in. Hoboken, the remaining interests being owned by his step-mother, the defendant Theresa Wachendorf, and his brothers and sisters. His step-mother owned a one-third interest, and he and the brothers and sisters each a one-sixth interest. Herman Wachendorf conveyed his interest to his wife, Anna, through an intermediary, by deeds dated March 12th, 1912, recorded March 13th, 1912. These conveyances were palpably for the purpose of defrauding complainant, to whom Herman Wachendorf was indebted in the sum of approximately $1,000, and who had at that time begun suit in the supreme court against his debtor for the enforcement of that claim. On April 13th, 1913, judgment on relicta was entered in said suit against Herman Waehendorf for $1,063.06. Execution was not issued on this judgment until August 30th, 1934, after which the execution was delivered to the sheriff and returned unsatisfied. No further steps were taken to enforce the collection of this judgment until the filing of the present bill in February, 1936.

In Februarjq 1914, the defendant Theresa Waehendorf purchased the outstanding interests of her children and stepchildren, including that of Herman Waehendorf, previously transferred to his wife, for valuable consideration on the basis of a valuation of $5,100 for the entire property. Herman Waehendorf received in cash for his share only a small amount of money — my recollection is that it was less than $100 — the balance of the amount to which he was entitled being applied by his step-mother, and with his consent, to the payment of debts due her and her sister. The defendant Theresa Waehendorf occupied the premises in question down to July, 1934, when s'he conveyed to the defendant Linkogel, taking as part payment of the purchase price a purchase-money mortgage for $6,000, due in 1939, and which she still holds.

In March, 1935, Linkogel conveyed to the defendant Holland, who now holds title.

This bill is filed to set aside these various conveyances as fraudulent, and to subject the property to the lien of complainant’s judgment. There is no question as to the first conveyance by Herman Waehendorf being in fraud of creditors; that is practically admitted. But the subsequent conveyances are also attacked on the ground that the parties thereto either had notice of the fraudulent nature of the original conveyance, or of such facts as would'*' put them on inquiry, and thus amount to notice in equity.

As to the defendants Linkogel and Holland, I announced at the hearing that the bill would be dismissed as to them, because I was convinced that they were bona fide purchasers for value, without notice of complainant’s rights, or of such .facts as would have put them on inquiry, and although this question has been fully argued in complainant’s brief, I can see no reason now to alter my decision previously announced.

The question as to the position of the defendant Theresa Wachendorf is more difficult. It is quite clear that she had no actual notice of complainant’s claim or judgment, but it is contended that at the time of the conveyance to her, in 1914, the judgment then being of record, she was then put on inquiry as to the character of the prior conveyances by her son to his wife, through an intermediary, and that she accepted the conveyance to her subject to all equities in favor of complainant. It is also urged that she had sufficient knowledge of her son’s financial difficulties to have put her on notice. The answer to these two propositions is that, as to the first, she had no actual notice of the claim or judgment and was not obliged to search the records for judgments beyond the date of the record of the conveyance from her son to Mortenson, the intermediary; and, as to the second, there is no- proof of any knowledge on her part of the financial condition of the son. All the argument of the complainant is based on inference and suggestion. At the time of the conveyance to the defendant Theresa Wachendori, in 1914, it was subject to a mortgage of $1,800, so that the value of Herman Wachendorf’s share was one-sixth of $3,900, or $650. Theresa Wachendorf testified that Herman owed her and her' sister various sums amounting to the difference between the $650, which would otherwise have been due Herman, and the amount of the cheek which he received representing the balance due him after the deduction of those debts. In this she is corroborated both by the testimony of the defendant Herman Wachendorf and documentary evidence. There is no testimony offered in contradiction of these facts. Coupled with this situation is the long delay of the complainant to seek the aid of this court, during which period some witnesses have died, and time has affected the memory of others. I shall therefore advise a decree dismissing the bill.


author: Backes, V. C.

text:
    In the matter of the application of Walter G. Williams, for a writ of habeas corpus.

    [Decided May 12th, 1927.]
    If, in a requisition for a fugitive from justice, the indictment charges a crime against the laws of the demanding state, the sufficiency of the indictment, to warrant conviction and judgment according to the law of the land, must be determined by -the courts of that state, not by those of the asylum state.

      Mr. Frederick A. Pope, for the writ.

      Mr. William New corn, for the state.
   Backes, V. C.

The governor of this state, upon the request of the executive of the State of Florida, issued his mandate for the arrest of the relator, Walter G. Williams, as a fugitive from justice, and that he be delivered to the agent of the State of Florida designated to receive him for delivery to that state. Upon being taken into custody by the sheriff of Somerset county the relator sued out a writ of habeas corpus, to be set at large, claiming that the mandate was unlawfully issued, and assigned as grounds various infirmities in the requisition; that he had committed no crime in Florida; that he is not a fugitive from justice, and that the governor of this state was without jurisdiction to issue the mandate.

The requisition is in the accepted form, duly signed and sealed, and recites that it appears by the annexed documents, which are certified to be authentic, that the relator stands charged.with the crime of resisting an officer, without force, as shown by the indictment found, committed in the State of Florida, and, upon information, that the relator has fled from justice and taken refuge in New Jersey. Annexed is a copy of an indictment, in due form, found by the grand jury in and for Collier county, and returned at the spring term of 1926 to the circuit court of the twelfth judicial circuit of the State of Florida, which presents: “That W. G. Williams, whose Christian name is to the grand jurors unknown, did on the 14th day of September, a. d. 1925, resist, without force, an officer, to wit, a deputy sheriff, in and for the county of Collier, State of Florida, in the performance of his duty, to wit, Henry W. Love, who then and there at the time aforesaid, did have II. B. Williams, Vincent Jordan and John W. Carter under arrest for the crime of trespassing, and the said W. G. Williams did then and there knowingly and willfully obstruct and oppose, without violence, the said Henry W. Love in taking the said W. G. Williams into custody and into the jail in Collier couidy, Florida, while the said II. B. Williams, Vincent Jordan and John W. Carter were then and there in the custody of and under arrest by the said Henry W. Love, and he, the said W. G. Williams, then and there knew, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida.” Attached to the requisition is an “application for requisition” in the form of an affidavit made by one Maynard, who deposes that Walter G. Williams was charged by the indictment, a certified copy of which is annexed, with the crime of resisting an officer, without force, committed on or about September 14th, 1925, in the county of Collier, State of Florida, and since the commission of such crime actually fled from the State of Florida, and that he was a fugitive from the justice of that state, and that he has reason to believe is in the State of New Jersey.

It is not denied that under the statutes of Florida (volume 2, section 5386) it is a crime to obstruct or oppose a deputy sheriff in the execution of any legal duty without offering or doing violence to the person of the officer, nor that the relator was in Collier countjg Florida, at the time the crime charged is alleged to have been committed, and that he has since come into the State of New Jersey.

The criticism, that the requisition certifies that the relator stands charged with the crime of resisting an officer without force, while the indictment charges that he obstructed and opposed the officer, without violence, is addressed to what may be an inaccurate definition, which at all events is cured by the reference in the requisition to the indictment and the crime therein charged.

The criticism, that the indictment fails to allege facts sufficient to constitute a crime in the State 'of Florida is without merit. The manner in which the relator obstructed and opposed the officer is of no concern on this application; nor is the fact that the indictment is somewhat obscure in this respect, for it appears to be charged that while three named persons were in custody, under arrest, of a named deputy sheriff the relator willfully obstructed and opposed him in the discharge of his duty. If the indictment charges a crime against the laws of the demanding state, the sufficiency of the indictment, to warrant conviction and judgment according to the law of the land, must be determined by the courts of that state, not by those of the asylum state. In re Thompson, 85 N. J. Eq. 221; Matter of Peter Voorhees, 32 N. J. Law 111; Hogan v. O’Neill, 255 U. S. 52.

The requisition and the attached documents, all duly authenticated by the executive of Florida, sufficiently disclose to the governor of this state that the relator was, according to the laws of the demanding state, charged by that state, upon indictment, with a crime against that state, and that he fled from that state to this state, and as his determination, evidenced by his mandate, stands unimpeached by anything tendered by or on behalf of the relator, the writ of habeas corpus will be dismissed and the relator remanded.


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    Morris Drapktn and Joseph Feigelstein, executors of the estate of Ida Eeigelstein, deceased, complainants, v. Arthur Klebanoff, defendant.
    [Decided May 11th, 1927.]
    A partner who continues the business after dissolution of the partnership must account for the profits made after dissolution.

      Mr. J'srael B. Green, for the complainants.

      Mr. Milton M. Unger, for the defendant.
   Backes, V. C.

The complainants’ testatrix and the defendant were equal partners, until the former’s death, in newspaper routes, under an agreement that the defendant should do all the work and be responsible for all the debts and out of the profits pay his partner $18 a week. Complainants’ testratrix died February 20th, 1927, and the defendant carried on the business until April 8th, when it was sold by a receiver appointed in this suit and the proceeds were divided.

The present petition is for an accounting by the defendant for the profits of the business derived during the time he ran it, after his partner died, which, if allowed, it is agreed, should be $18 a week. It is an established principle that where a partner continues the business after dissolution of the partnership he must account for the profits made after dissolution. Phillips v. Reeder, 18 N. J. Eq. 95, 99.

The defendant will he ordered to pay to the complainants the amount stipulated.


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    BENJAMIN E. HUNT v. ELIZA E. BARRETT ET AL., EXECUTORS, ETC.
    1927.
    Contracts — Employment—Plaintiff Sought to Recover For Services to Defendant’s Testatrix Rendered During Her Lifetime Covering a Period of Twenty Years — Court Restricted Right of Recovery to Six Years Prior to Testatrix’s Death, if Such Right Existed at all — Judgment For Plaintiff — Held, That Judgment was Not Against Weight of Evidence, Not Contrary to' Charge of Court, and Not Excessive.
    On defendants’ rule to show cause.
    Before Gummere, Chief Justice, and Justice Teenci-iard.
    Eor the rule, Howard, F. Barrett.

    Contra, Edward Sachar.

   Per Curiam.

This was an action brought by the plaintiff to recover from the executors of one Lottie A. Van Eleet compensation for services rendered by him to her during her lifetime, and extending over a period of some twenty odd years. The statute of limitations was pleaded, and the court restricted his right of recovery (if such right existed) to the six years preceding the death of Mrs. Van Eleet. On this basis the jury found a verdict in favor of the plaintiff, awarding him as compensation for the services rendered during this limited period the sum of $5,400.

The first ground upon which we are asked to make this rule absolute is that the verdict in favor of the plaintiff is against the clear weight of the evidence. Our examination of the proofs in the case leads us to the conclusion that this contention is not justified.

Next, it is said that the verdict is contrary to the charge of the court. We find this contention without merit. All the matters referred to by the court in its charge were left to the jury for its determination.

Next, it is contended that the verdict is contrary to the. issues which were permitted to go to the jury. We find this contention not supported by the fact.

Next, it is contended that there was no evidence produced by the plaintiff to support a verdict in his favor, and that the court should therefore have directed a nonsuit upon the application of the defendants. What we have already said with relation to the first point is dispositive of this one.

Lastly, it is said that the verdict is excessive. The jury apparently concluded from the testimony that plaintiff’s services were worth about $75 per month for the six years preceding the death of Mrs. Van Eleet. We cannot say that this is so plainly excessive as to justify setting aside the verdict upon this ground.

The rule to show cause will be discharged.


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    STATE OF NEW JERSEY, EX REL. SAVITZ-DENBIGH COMPANY, A CORPORATION, RELATOR, v. FREDERIC BIGELOW, SUPERINTENDENT OF BUILDINGS OF THE CITY OF NEWARK, AND THE CITY OF NEWARK, RESPONDENTS.
    Submitted January 28, 1927
    Decided May 16, 1927.
    Building Permits — Motor Vehicle Service Station in Territory Restricted to a Specified Distance From Public School, Church, Etc. — Ordinance Examined and Held, That the Specified Distance as Provided in the Ordinance Does Not Cover the Case in Issue.
    On application for writ of mandamus. On demurrer to the return to an alternative writ.

      Before Gummere, Chiee Justice, and Justice Trenci-iard.
    Por the relator, Thomas Brunetto.

    Por the respondents, J eróme T. Gongleton and Charles M. Myers (William J. Kearns, of counsel).
   Per Curiam.

Relator desires to erect a motor vehicle service station on the corner of Lyons avenue and Willoughby street, in the city of Newark, and applied to the local authority for a building permit, which was refused on the ground that the ease was within the prohibition of an ordinance previously enacted, the pertinent portion of which reads as follows: “Section 6 a. Special regulations relative to garage and service stations: Under no circumstances shall a permit be issued for the erection or enlargement of a public commercial garage, as defined in the fire prevention code of the city of Newark, or for a motor vehicle service station or for the conversion of any premises not so used to be used for such purposes, in any district, whether it be a business district or an industrial district, if any part of the lot or plot in question is situated within a radius of two hundred feet of: 1. A public school; 2. A duly-organized school giving regular instruction at least five days a week for eight or more months a year; 3. A hospital; 4. A church; 5. A theatre or opera house or other building used or intended to be used for theatrical "or operatic purposes or for public entertainment; 6. A public library; or 7. A public art museum.”

The Supreme Court, on application of the relator, awarded an alternative writ in an opinion reported in 4 N. J. Mis. R. 819. We have now a demurrer to the return made to such writ.

No doubt such provision of the ordinance, so far as it goes, is a legitimate exercise of the police power of the municipality. It has been so determined by Schait v. Senior, 97 N. J. L. 390 But there is raised by the pleadings the question -whether the language of the ordinance “situated within a radius of two hundred feet of (1) a public school,” &c., means within a radius of two hundred feet of the building in question, or means the nearest point of the curtilage, and, hence, whether the present ease is within the ordinance.

This question is raised because we have the following state of facts: Diagonally opposite the nearest corner of the lot proposed to he utilized for a gasoline station are the grounds and buildings of a church orphan asylum. The tract of land is about seven hundred and thirty feet in front on Lyons avenue, and about seven hundred and eighty feet deep, and all the buildings are set well back from the street, and toward the middle of the tract. The nearest corner of the land is one hundred and five and six-tenths feet from the nearest corner of the relator’s premises, while the nearest corner of the nearest building (marked “chapel and home”) is two hundred and sixty-six feet; of an outlying chapel, three hundred and twelve feet; of the “school building,” about three hundred and eighty-live feet.

We feel constrained to hold that the present case is not within the ordinance, which, being designed to limit the use of property, must be construed strictly.

The result is that a peremptory writ must he awarded.


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    CAMDEN COMMERCIAL COLLEGE, A CORPORATION, v. MAY H. PIPER AND HELEN M. PIPER.
    Argued May 3, 1927
    Decided May 18, 1927.
    Contracts — Promissory Note Given by Mother and Infant Daughter For Schooling — Consideration Paid — Judgment For Both Defendants Manifestly Wrong and Must be Reversed — The infant Defendant Should, on New Trial, be Properly Brought Into Court Through Next Friend Where Infancy May be Pleaded and Where Plaintiff May Invoke Rule of Necessaries.

      On plaintiff’s appeal from the Camden District Court.
    Before Justices Parker and Campbell.
    For the appellant, A. Moulton McNutt.

    For the appellees, T. Harry Rowland.

   Per Curiam.

The suit is on a promissorjr note payable thirteen months after date, signed by a mother and daughter, the consideration being schooling of the daughter who, at the date of the note, was, and still is, an infant. By the state of the case it appears that there is due on the note $163.80, with interest. The record shows that the District Court rendered a judgment in favor of the defendants; oh what ground we cannot conceive, as there is no question raised but that the defendants executed the note for a valuable consideration then or later advanced by the plaintiff; that the plaintiff holds the note, that it has matured, and has not been paid.

As to the mother the judgment is manifestly wrong, and must be reversed. The case of the daughter presents the technical difficulty of procedure, that she is an infant, and that as no next friend or guardian ad litem has been appointed to represent her in the suit, until a next friend is appointed, no judgment as to her can be lawfully rendered. Foulkes v. Young, 21 N. J. L. 438.

The judgment will be reversed as to both defendants below and the case remanded for a new trial, prior to which the infant should be properly brought into court through a next friend, and may if desired plead her infancy at the time of signing the note. Fenton v. White, 4 N. J. L. 100, in which case the plaintiff may, of course, invoke the rule of necessaries with whatever effect it may have under the circumstances of the case. See 31 C. J. 1079.

Let the judgment be reversed and the cause proceed as indicated herein.


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    STATE, EX REL. SAM. FINKEL, v. TOWN OF IRVINGTON AND GEORGE F. SCHMITT, BUILDING SUPERINTENDENT.
    Decided May 17, 1927.
    Zoning — Stores and Apartments in Residence Territory — Case Within Rule in Nutley Case.
    On mandamus.

    Before G-ummere, Chief Justice, and Justice Trenchard.
    For the relator, Maurice J. Zucker.

    For the respondents, Charles H. Stewart.

   Per Curiam.

The relator is the owner of a tract of land fronting on Myrtle avenue, in the town of Irvington. He applied to the building superintendent of the town for a permit authorizing him to erect upon this plot a building to be used for stores on the first floor and apartments on the second floor. His application was refused upon the sole ground that the erection of such a building in that locality was prohibited by the zoning ordinance of the town. The relator thereupon applied for and obtained an alternative writ of mandamus, calling upon the respondents to issue to the relator the permit requested or to show good cause to the contrary thereof. In making return to the writ, the respondents made no attempt to justify the refusal of the building superintendent upon any other ground than that the ordinance of the town prohibited the erection of such a building upon the relator’s property.

The case thus presented is identical in its legal essence with that of State v. Nutley, 99 N. J. L. 389. As the decision of the ease cited was by the Court of Errors and Appeals, it is controlling upon us.

A peremptory writ will be awarded to the relator, together with costs of suit.


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    HARRY J. TEETS, PLAINTIFF-APPELLANT, v. PERCY E. HAHN, DEFENDANT-RESPONDENT.
    Argued May 4, 1927
    Decided May 20, 1927.
    Negligence — Motor Vehicle Collision — Value of Wrecked Car— Where Plaintiff Fails to Prove Value of Car a Direction of Verdict of Nominal Damages Will be Affirmed — Proof of Value Failed In This Case at Critical Point.
    On appeal from the District Court.
    Before Justices Parker and Campbell.
    Eor the appellant, Earl A. Merrill.

    Eor the respondent, William E. Flanagan.

   Per Curiam.

Plaintiff’s daughter was injured while driving plaintiff’s motor car, by collision with a truck of the defendant. The suit was for loss of services of the daughter (an infant), expenses of her treatment and cure, and damages to the motor car. Eor this last item the jury awarded six cents under direction of the court, and this is the sole point raised on this appeal.

We consider that the trial judge ruled correctly, and for the reason that the proof of damages failed on a fundamental point. It appeared that the motor car after the accident was a worthless heap of junk, not susceptible of repair. Hence, the measure of damages was the fair value of that car before the collision. There was no evidence from which the jury could legally assess that value. The evidence the plaintiff indicated that the car was a 1922 model, costing, when new, $1,590 on the installment plan, or about $1,100 cash. It was approximately five years old when destroyed, was in first-class condition, though it looked rough and needed painting. This was all the testimony on value: it was competent, but only partial. Plaintiff’s counsel very properly tried to show by the testimony of the plaintiff himself, and that of a garage keeper what the value was before the collision. The questions were excluded, neither witness appearing to be qualified to give an opinion on value, and it is not claimed that this exclusion is erroneous. Some photographs of the wrecked car were introduced, but they did not help matters.

The argument seems to be, and necessarily must be, that given a car five years old, in good order but needing paint and costing when new $1,100 cash, the jury are entitled to guess at its fair value (for it is no more than a guess) and award a verdict against the defendant for any sum they see fit, between the limits of zero and $1,100. To this we cannot give our assent; undeniably, the price when new, and age, and condition are elements to consider in fixing-value, but they are not enough in themselves. Our leading cases go no farther than to say that they are elements for consideration. Luse v. Jones, 39 N. J. L. 707. See State v. Duelks, 97 Id. 43, 47; Lebkuecker v. Pennsylvania Railroad, Co., Id. 116.

In Luse v. Jones, supra (at p. 709), the court said: “A sale [when new] was evidence of the market value of the thing when new, and the value of such goods, when worn, can scarcely be ascertained except by reference to the former price and the extent of depreciation.”

The proof failed, therefore, at the critical point, viz., the fair value of the car when wrecked; and in that event a direction of a nominal verdict was proper.

The judgment will be affirmed.


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    BARNET BERKOWITZ v. HENNING HANSEN.
    Argued May 3, 1927 —
    Decided May 20, 1927.
    Contracts — Negotiable Instruments — Defendant Not Present at Trial Due to List Going to Pieces on First Day of Term — ■ Not Necessary to Determine Whether Application to Set Aside Verdict Should be Made to the Trial Judge In the First Instance Since the Postea Had Not Been Filed Within Teh Days After the First Day of the Term Next After the Trial as Provided in Rule 117 — Either Side May, and Plaintiff Normally Should, Notice the Cause For Retrial at the Next Term.
    On motion to set aside verdict taken by default at the Circuit and award a retrial.
    Before Justices Paekee and Campbell.
    Eor the plaintiff, Harry L. Stout.

    Eor the defendants, Hyman Herr.

   Per Curiam.

The suit is by payee against maker of three promissory notes. The affidavits for defendants set up a defense which if true is undoubtedly meritorious; as to the third note they deny making it at all and so denied in their answer.

As to the first two notes they admit the execution of them but say the}r were in payment for cattle sold them by plaintiffs and warranted free from tubercular infection, but which were, in fact,, tubercular and were slaughtered by the state authorities and were useless even for food.

The phase of surprise is not so clear. The venue in this case is laid in Hunterdon; defendant’s attorney is located in Somerset. The Somerset and Hunterdon Circuits opened on the same dajr, and this may be the reason why the attorney asked a local lawyer at Elemington to answer the call, for him. The case was not at the top of the list, and relying on eases ahead of it lasting through Tuesday, the opening day, he arranged to attend on Wednesday, and as so frequently happens the preceding cases vanished into thin air, his ease was called and moved, and tried in his absence.

There are some technicalities in the practice which make it doubtful whether on the present state of the record we could interfere at all, and whether application should not be made to the trial judge in the first instance. We need not stop to unravel them, because it appears that no postea has been filed up to this writing. Rule 117 of this court provides that “unless the postea be filed within ten days after the first day of the term next after the trial, such failure shall be considered, at the option of the opposite party, a waiver of the verdict or finding, unless the court in its discretion shall order otherwise.” The ten days have elapsed, and under the circumstances we see no reason for interfering with the normal operation of the rule in this case, and it is safe to assume that defendants wish to rest upon it.

Hence, we need not deal further with the application before us.

Either side may, and plaintiff normally should, notice the cause for retrial at the next term.

The motion is dismissed; no costs awarded.


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    ADELINE M. WALKER, PLAINTIFF-RESPONDENT, v. F. & W. GRAND FIVE-TEN-TWENTY-FIVE-CENT STORES, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted January 28, 1927
    Decided May 21, 1927.
    Negligence — Injury to Customer in a Store Through Falling on Stairs Which Had Been Worn Smooth Through Use — Judgment For Plaintiff Reversed on Ground That Such a Situation Did Not Constitute Negligence — Case Heard Under Act of 1916, Page 109, Which Gives Aggrieved Party Right to Appeal Case Where There is Any Error in Giving Final Judgment Without the Grounds of Objection Being Specifically Submitted.

      On appeal from the Elizabeth District Court.
    Before Justices Kalisoh, Katzenbach and Lloyd.
    For the appellant, McDermott, Enright & Carpenter.

    For the respondent, Frank Cohn.

   Per Curiam.

The defendant appeals from a judgment rendered against it in the Elizabeth District Court by the judge sitting without á jury at the suit of Adeline M. Walker, who claimed to have been injured by a fall due to the faulty condition of stairs in the defendant’s store.

The. evidence disclosed that the plaintiff visited the store on the 21st of December, 1925, to make some purchases, and that as she was going down a stairway from the first floor to the basement she fell and sustained injuries. It was proven that at the edge of each step on all of the stairways in the store (there were two others) there was a brass metal nosing about one inch wide which had become worn by use, and it is inferable that the plaintiff slipped on one of these worn metal nosings. There was a motion for a nonsuit at the end of the plaintiff’s case and this was denied and judgment rendered for the plaintiff. The refusal of the court to grant the motion for nonsuit and the rendition of the judgment for the plaintiff are the basis of the present appeal.

No exception appears to have been taken at the time the motion for nonsuit was made, and it is therefore not a ground of appeal. The act of 1916 (Pamph. L., p. 109), however, gives to an aggrieved litigant a right to have reviewed on appeal any error in the giving of final judgment without the grounds of objection being specificalty submitted.

Upon the latter ground we must consider the case, and as a result we think the judgment below cannot be sustained. The facts practically parallel the case of Garland v. Furst, 93 N. J. L. 129, in which the proofs were identical, except in that case the offending instrument was a smooth, slippery floor, and in the present case it was a smooth nosing on the steps. These nosings are such as are commonly placed on stairways where large numbers of people are passing up and down. It is common knowledge that such metals become smooth when worn, but under the case cited it does not constitute negligence to permit their continued use. The tendency of a much-used substance of, any sort is to become smooth, and it would be a hard rule to require that floors, stairs, steps and similar constructions should be changed whenever use might smootheu their surfaces.

The respondent contends as ground for refusing consideration of the case that there is no state of the case presented in the record. This contention is not well founded. The record discloses that at the end of the book the judge used this language: “It is herein stipulated that in addition to the foregoing testimony the state of the ease in said cause is as follows.” This is signed by the judge and the “foregoing testimony” is the stenographic transcript of the testimony taken in court.

The judgment is reversed.

Mr. Justice Kalisch dissents.


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    IN THE MATTER OF THE APPLICATION OF RAYMOND RINALDI FOR A REVIEW OF THE PROCEEDINGS FOR CONTEMPT.
    Submitted January 28, 1927
    Decided May 21, 1927.
    Contempt of Court — Petitioner Convicted of Contempt in Refusing to Answer Questions While a Witness in a Criminal Case — Petition Brought Under Act of 1884 Authorizing a Rehearing on the Petition of Two Counseiors-at-Law — Held, That Petitioner Has Failed to Provide a Proper Presentation of Facts as Provided For in the Act, and That There is Nothing Upon Which a Decision Can Rest — Leave Granted to Petitioner to Take Further Proceedings.
    Ou appeal from a judgment of contempt of court.

      . Before Justices Kalisoh, Katzehbach and Lloyd.
    Eor the petitioner, George E. Cutley.

    For the state, John Millón.

   Per Curiam.

Raymond Rinaldi has presented his petition to this court setting forth a conviction and sentence for contempt of court in the Hudson County Court of Quarter Sessions for refusal to answer a series of questions propounded by the court and by the prosecutor of the pleas in the trial of the case of State v. William Bromley in that court. This petition is signed by two counselors-at-law in accordance with the act of 1884. Comp. Stat., p. 1737.

Subsequently, -to the presentation of the petition briefs were filed by petitioner’s counsel and also by the prosecutor of the pleas. Accompanying the brief for the petitioner there is a schedule purporting to contain the proceedings, or a part of the same, in the Bromlej' case, but of which the court cannot take cognizance as it does not appear either by stipulation of counsel or certificate of the court to be such record, nor any stipulation that it shall be used in lieu of the proceedings indicated by the act of 1884. Section 2 of that act provides that “every such conviction and judgment shall upon the petition of the person or persons convicted, signed by at least two counselors-at-law, be by the court wherein such conviction is had, immediately certified and sent to the ■Supreme Court * * * to which the same shall be certified and sent together with the petition of appeal and all proceedings touching the conviction and judgment.” The act further provides that “this court shall be invested with jurisdiction and be required to rehear the matter of contempt upon which the conviction was founded, both upon the law and upon the facts, which shall be inquired into and ascertained by depositions or in such other way or manner as the court above shall direct.”

While the court is empowered and required to rehear the matter of contempt, it can only do so upon a proper presentation of the facts, and the initiative for the presentation of such facts must rest upon the petitioner.

There is, in the present state of the record, nothing upon which we can rest a decision except to dismiss the petition for want of prosecution. In view of the fact, however, that the proceeding in the court below and here involves the liberty of a citizen, and inasmuch as counsel for the state has not moved for a dismissal, the court will not of its own motion order such dismissal, but will grant leave to the petitioner to take further proceedings upon his petition in accordance with the act of 1884, supra. See Attorney-General v. Verdon, 90 N. J. L. 494.