text:
    JULIA B. L. MILLER v. ALBERT STIEGLITZ ET AL.
    Before Justice Parker, at chambers.
    For the plaintiff, Samuel Press.

    For the defendants, Nathaniel WeltcheJc.

   Parker, J.

The cross-motions are presented for decision without any submission of the pleadings or statement of the subject-matter of either suit. What appears is that Miller began the first entitled suit and died while it was pending, and thereupon Julia Miller, administratrix, was substituted as plaintiff pursuant to the Abatement act. The case went to trial, the jury found for defendants, and the trial judge signed a postea accordingly, containing the clause "with costs of suit to be taxed in favor of the defendants.” On this postea judgment was entered and costs were taxed and I presume served. Thereupon plaintiff’s attorney moved on notice to amend the postea, and the judge signed another postea making no mention of costs, but the clerk refused to alter the judgment without a rule of the court. This is the first motion before me. The counter motion is in the second suit, begun by Mrs. Miller in her own right, and is directed to a stay in that suit, first on the theory of res adjudicata, and secondly for non-payment of the costs in the first action.

The counter motion may be readily disposed of. As has been said, there is nothing before me to show the subject-matter of either action, and nominally the plaintiff is not the same in both. No case is presented for a stay on that ground. As to non-payment of the costs, and assuming they were properly awarded, of which more presently, the point is immaterial, because in the first case there was no nonsuit but a final judgment for defendants. If the issues and parties are the same in both, the second suit is barred, and the question of stay is superfluous. If they are not the same, nonpayment of costs in the first will not stay the second. Defendants’ motion is denied.

As to the costs, I am satisfied that plaintiff is not liable for them. Section 229 of the Practice act of 1903 so provides with regard to executors or administrators prosecuting in the right of their testators or intestates. In Hupfer v. Siegfried (1903), 26 N. J. L. J. 215, cited by counsel, I held in the Circuit Court as a judge thereof, that the exemption applied in cases where the deceased had begun the action and had died pendente lite. That is the present case. I am ready to reaffirm that decision at this timé.

It is urged that the Costs act of 1911 (Pamph. L., p. 756) . substantially re-enacted in this regard in 1927 {Pamph. L., p. 204) has repealed the exemption in question. But to this I do not agree. The phrase “except where otherwise provided by law” is somewhat ambiguous, it is true: but in Ellis v. Pennsylvania Railroad Co., 90 N. J. L. 349; 101 Atl. Rep. 415, decided in 1917, it was not suggested that the act of 1911 had changed the rule as to an administrator; and in Ryan v. Public Service Railway Co., 3 N. J. Mis. R. 492; 128 Atl. Rep. 864; reported also in 48 N. J. L. J. 229, it appears on page 230 that the Court of Errors and Appeals in 1925 vacated an award of costs against an administrator as improvident.

I will sign a rule to file the second postea and modify the judgment by eliminating costs.

The plaintiff is entitled to costs on both motions.


source: Caselaw Access Project

author: Stangee, J.

license: Public Domain

text:
    JOSEPH A. FUERSTMAN, TRUSTEE, ETC., PLAINTIFF, v. WILLIAM M. CHARLES AND CHARLES MARKET, INCORPORATED, DEFENDANTS.
    Decided December 4, 1933.
    For the rule, Leslie 8. Kohn and Joseph A. Fuerstman.

    Opposed, Joseph T. Brienza.

   Stangee, J.

The written communication of counsel for plaintiff and defendant indicate that the only matter in difference between the parties is a question of taxed costs. This is not a proper question to be determined upon a rule to show cause why a verdict should not be set aside and a new trial granted. It seems that the other matters originally raised have been settled by the parties, and there is nothing for the court to do but to dismiss the rule.

I will sign a formal order dismissing the rule to show cause.


author: Lawrence, C. C. J.

text:
    WILLIAM C. DURANT, PLAINTIFF, v. BENJAMIN BLOCK, J. HORACE BLOCK, WILLIAM B. ANDERSON, ALFRED L. ROSENER, ALBERT F. STRAIGHT, WILLIAM B. GILES AND BERNARD MILLER, CO-PARTNERS, TRADING UNDER THE FIRM NAME AND STLYE OF BENJAMIN BLOCK & COMPANY, DEFENDANTS.
    Decided November 27, 1933.
    Por the motion, Perkins, Drewen <& Nugent.

    Opposed, Applegate, Stevens, Foster & Beussille.

   Lawrence, C. C. J.

In disposing of this motion, in the conclusion filed by me it was through inadvertence stated that, “the only damages to which plaintiff is entitled are those arising from the improper sales of October 11th and 14th, 1930.” The expression should have been, in accordance with the original finding of facts, determination and rule for judgment, “the only damages to which plaintiff is entitled are those arising from the improper sales of October 11th, 1930.” The court had no intention of changing the finding of facts, determination and rule for judgment in this regard.

Since no rule has as yet been submitted denying the motion in question in accordance with the court’s conclusion, such rules when submitted may carry the correct recital that the damages to which plaintiff is entitled will be limited to the sales made on October 11th, 1930.


author: Per Curiam.

text:
    ROBERT S. TIPPING, COUNTY TREASURER OF THE COUNTY OF BERGEN IN THE STATE OF NEW JERSEY, RELATOR, v. WILLIAM L. DOUGHERTY, CITY TREASURER, JACOB NOONBURG, COLLECTOR, AND THE MAYOR AND CITY COUNCIL OF GARFIELD, IN THE COUNTY OF BERGEN, THE LATTER BEING THE GOVERNING BODY OF THE CITY OF GARFIELD, RESPONDENTS.
    Submitted May 2, 1933
    Decided December 5, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the relator, Stanton T. Lawrence.

    For the respondents, Richard 3. Baker (William M. Seufert, of counsel).
   Per Curiam.

The relator is the county treasurer of Bergen county, and he brings these proceedings on behalf of the county as such official charged under the statute with receiving and collecting the taxes from the several municipalities of the county. William A. Dougherty, as city treasurer, and the mayor and city council of Garfield constituting the governing body, are respondents. Garfield is a duly incorporated city. It has a population of approximately thirty-one thousand and an assessed valuation of $22,000,000. It is one of the seventy municipalities of the county.

In this application for mandamus to require the city treasurer to pay to the county treasurer the amount of state and county taxes which the city treasurer has received and has not paid to the county treasurer, the pleadings and exhibits disclose the following undisputed facts:

Dor the year 1931 the county board of taxation assessed and apportioned the sum of $265,304.96 to be raised and paid by Garfield to the county, embracing state and county taxes. Likewise, for the year 1932, $273,706.25 was assessed and apportioned. Of the 1931 taxes Garfield paid $125,312.78 leaving a balance due of $139,992.18, which balance of 1931 taxes and all of the 1932 taxes are wholly unpaid, leaving a total sum due from the city to the county as state and county taxes of $413,698.43, together with interest thereon. During this time the city treasurer admits receipt of taxes for 1931 of $1,076,412.15, and for 1932 of $1,150,832.39, a total of $2,227,245.04, more than four times the amount of state and county taxes.

These facts are admitted by the respondents both in the argument and in the pleadings. Respondents’ excuse for failure to pay, as set up in the return to the alternative writ, is that they are now without money due to present economic conditions in the city. They do not deny that such tax moneys were received but point out that they were paid out for interest on bonds, for the redemption of notes and bonds, and for payments into the sinking fund for the retirement of bonds falling due in the future. In respondents’ return to the alternative writ appears the following:

“Dor the treasurer of the city of Garfield to cope with the situation in strict accordance with the various statutes, * * * he was forced'to exercise in many instances his own discretion and judgment in the allocation of whatever moneys were received by him from the collector of taxes.”

We think that the obvious answer to all that is this: The city treasurer clearly disregarded the ministerial duty imposed upon him by statute, to make payments of state and county taxes annually out of the first moneys received by him, and that he disregarded such duty by diverting the money to sinking funds and other purposes.

The right of the relator to a peremptory writ of mandamus is clear. See Tax act, chapter 236, laws of 1918, section 605, as amended by Pamph. L. 1924, ch. 215, and chapter 135 laws of 1899, sections 9 and 29. The pleadings disclose the undisputed fact that the city of Garfield “is a municipal corporation existing under and by virtue of chapter 135 of laws of 1899 entitled £An act for the incorporation of cities, and providing for their officers, government and powers/” section 29 whereof defines the duties of the city treasurer, as follows :

“He shall receive * * * all moneys belonging to or under the control of the city; he shall keep an accurate account of all receipts and payments in such manner as the council shall direct; no moneys shall bo paid out of the treasury except on warrant signed by the mayor and attested by the city clerk, excepting payments of state and county taxes, which the said treasurer is hereby required to make annually out of the first moneys received by him.”

As seen the statute makes it an inflexible statutory duty upon the part of the city treasurer to pay out of the first moneys received by him, the state and county taxes. The duty is a ministerial one, and the duty to perform it in a definite way is clear, and the proper remedy to compel this statutory officer to comply with this statutory regulation is by mandamus. O’Hanlon v. Calvert, 88 N. J. L. 33; 95 Atl. Rep. 631.

All of which seems not to be denied by the respondents. They urge only that mandamus is a discretionary writ, that its award in this case would result in confusion and that respondents have no power to comply.

To that we must answer that taxes are an exaction, and failure of the city treasurer to pay the same when sufficient money has been collected, cannot be excused. Slate Board of Assessors v. Central Railroad Co., 48 N. J. L. 146; 4 Atl. Rep. 578. The Court of Errors and Appeals, in Bayonne v. Kingsland, 41 N. J. A. 368, in considering a statutory provision similar to that in the act of 1899, declared the state policy to be to give the first fruits of taxation to the state and county, in derogation to the claims of townships and cities, because this adjustment is necessary in order to exempt the state and counties from bearing any part of the loss annually sustained by the deficit occurring in the collection of taxes, the sum collected invariably falling below the sum assessed, and that such deficiency must be sustained exclusively by the local authorities to the exclusion of the state and county.

That case was followed by Ross v. Walton, 63 N. J. L. 435; 44 Atl. Rep. 430, affirmed by our Court of Errors and Appeals in 67 N. J. L. 688; 52 Atl. Rep. 1132, in a similar situation, and we think furnishes a complete answer (certainly as far as this court is concerned) to respondents’ contention. Ross, as collector of Cape May county, sought mandamus against Walton, as collector of the borough of South Cape May. There the taxes amounted to about one-third of the moneys collected by the borough, and, as here, the borough authorities failed to comply with the demands for payment; and the court laid down the principle that:

“No excuse for .failure to perform the duty imposed by statute can avail if the local collector has received from the general taxation in the municipality sufficient to pay such county taxes. They must be paid as fast as collected, as the law appropriates all the moneys collected until they are all paid and until the primary obligation to the county is discharged.”

Therein the court held:

“The legal right in this matter is clear, and therefore a peremptory writ of mandamus to the defendant compelling the payment of these taxes is awarded.”

The relator is entitled to judgment on the demurrer to the return to the alternative writ, and the peremptory writ sought must issue, with costs.


author: Lawrence, S. C. C.

text:
    FERDINAND GREGORY, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ELLA ANN GREGORY, DECEASED, AND FERDINAND GREGORY, INDIVIDUALLY, PLAINTIFFS, v. LOUIS HARRIS, I. EZRA NEWMARK, HARRY HARRIS AND STEPHEN CHAPMAN, DEFENDANTS.
    Decided November 28, 1933.
    For the motion, Harry Silverstein.

    Opposed, George IF. Gregory.

   Lawrence, S. C. C.

This is a motion to strike count 1 of the complaint in this suit on the ground, first, that it is multifarious; second, that it sets forth no' cause of action, and, third, that it is so framed as to harass and hinder defendants in filing a proper answer. It is also suggested that it is frivolous.

The gravamen of the count as drawn appears to be that on the 21st day of July, 1933, the defendants JSTewmark and Louis Harris sent their agents, servants or employes, including defendants Harry Harris and Chapman, to the premises in Morristown occupied by Ferdinand Gregory, his wife, Ella Ann Gregory, and their children, and that with great force and arms they unlawfully broke and entered the dwelling house, and after putting the occupants in terror and fear, by threatening them with bodily harm, did, with great force and violence grab hold of Ella Ann Gregory, who was at the time convalescing from a severe illness and confined to her bed. and in no condition to be disturbed, all of which defendants .knew, but notwithstanding pulled, jerked, snatched and pushed her from her sick bed, thereby compelling her to dress and leave the premises with the rest of the family. It is then alleged that the condition of Mrs. Gregory became steadily worse and her ailment was so aggravated that she subsequently died. The complaint further sets up that Gregory, the husband, has been and will be forever deprived of the conjugal relationship of his wife, as well as her society, comfort, assistance and association. A statement of the next of kin of Mrs. Gregory follows and it is alleged that they suffered a pecuniary loss by her death. The conclusion of the count is that because of the circumstances an action has accrued to the plaintiff as administrator ad prosequendum of the estate of his wife, and that the suit was commenced within twenty-four calendar months of her death.

A second count setting up that defendants unlawfully removed the furniture of the family from the premises in question and allowed the same to remain unprotected in the street, whereby it was damaged, appears not to be included in the motion to strike.

It seems obvious that the pleader has not stated a cause of action within the purview of the Death act. The cause of Mrs. Gregory’s death is given as pernicious anemia and it is stated that it was brought on by reason of the acts and conduct of defendants in violently ejecting her from the premises while she was still ill and confined to her bed. In other words, the commission of a trespass to her person is charged with physical consequences of a serious nature to Mrs. Gregory. The count under criticism comprehends two causes of action, neither of which can be brought within the provisions of the Death act. First the trespass to the person of Mrs. Gregory, in her lifetime, which would have survived to the general administrator of her estate; and, second, an individual claim of Mr. Gregory for the loss of consortium and the services of his wife in his household, are set forth. See Meyer v. Peter, 9 N. J. Mis. R. 1309; 157 Atl. Rep. 250, and Souvay v. Fricke, 11 N. J. Mis. R. 882, for a general diseussion of the subject of abatement and survival, under the statutes.

Count 1 in the complaint will accordingly be stricken as not stating a cause of action at the suit of the plaintiff administrator ad prosequendum, without prejudice to the institution of new suits by the general administrator of the estate of Mrs. Gregory and one based on the alleged individual claim of the husband. The causes of action can, of course, be combined by appropriate pleading in one suit, which may also include count two in the present complaint if desired.


text:
    JOSEPH BREISIA, PROSECUTOR-DEFENDANT, v. THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF HUDSON, RESPONDENT-COMPLAINANT.
    Submitted October 13, 1933
    Decided December 7, 1933.
    Tor the prosecutor-defendant, Levitan & Levitan (Abraham Levitan).

    Tor the respondent-complainant, James A. Hamill.

    Before Justices Case, Botone and Donges.
   Per Curiam.

The prosecutor seeks to set aside his conviction for the offense of wandering abroad on a public street and not giving a good account of himself. The offense was alleged to be under section 1 of An act concerning disorderly persons. (Revision of 1898.) Prosecutor is a married man, thirty years old, living with his family at a fixed abode and working at trucking when employment existed. He was observed wandering from the Palace lunch at about two o’clock in the afternoon of the day in question.

A conviction under the act must be for some offense under the statute. State v. Regan, 67 N. J. L. 106; 50 Atl. Rep. 591. The prosecutor challenges the conviction.

The question before us is whether wandering abroad on a public street and not giving a good account of oneself is a disorderly act under the statute in question. Mr. Justice Parker, in Archer v. First Criminal Court of Bergen County, 10 N. J. Mis. R. 1159; 162 Atl. Rep. 914, held not. The decision, though perhaps not binding upon us, is persuasive since the statute is aimed at paupers or those “who shall wander abroad and lodge in taverns, inns, beer-houses, outhouses, houses of entertainment, market houses, barns, or places or in the open air, and not give a good account of themselves.” 2 Comp. Stat., p. 1927.

To arrive at any other conclusion violence must be done to the legislative language, and any citizen and householder will be subject to arrest because a police officer does not like his manner of walking and answering questions.

The conviction will be set aside.


author: Parker, J.

text:
    LLOYD G. BEATTY, RECEIVER OF JERSEY MUTUAL CASUALTY INSURANCE COMPANY, PLAINTIFF, v. LINCOLN BUS COMPANY, A CORPORATION, BERNARD ACKERMAN AND JOHN ADUBATO, DEFENDANTS.
    Decided November 23, 1933.

      Before Justice Pabker, at chambers.
    Por the plaintiff, Israel B. Greene.

    Por the defendants, William Newman.

   Parker, J.

The objection to the complaint is that separate causes of action are joined therein as against several defendants sued severally and not jointly; which is the fact.

Plaintiff is the receiver of a mutual insurance company of this state and, as such receiver, claims to be entitled to collect the whole or unpaid part of a large number of assessments made by direction of the Court of Chancery against parties who had insured with the compan}', among whom are the three defendants. See Lincoln Bus Co. v. Jersey Mutual Casually Insurance Co., 112 N. J. Eq. 538; 165 Atl. Rep. 112. The motion to strike, tantamount to a demurrer, admits for present purposes the truth of plaintiff’s claim. It is plain that except as to the amount, the claims against the three defendants are identical in character, namely, the liability to assessment pro rata to meet claims against the company. There is, therefore, a joint question of law and I think of fact also. Of course, any defendant may have a defense that is personal to himself, as for example, infancy, or duress, or fraud in procurement, and so on. But these are defenses: the various causes of action are on the face of the complaint substantially identical as to amounts claimed.

It is conceded, and is clear, that at common law, a separate action against each defendant would be necessary. The situation is analogous to that under a Lloyd’s insurance policy, wherein several individual underwriters insure, each for a specified part of the risk. In such case the insured sustaining a loss would sue each of them for his individual liability based on the amount he had underwritten. 2 Chit. Pl. 178. Even under the modern English practice this seems to be still the rule. See forms in Bull. & L. 202, &c. A recent New York case is to the same effect. Fish v. Vanderlip, 112 N. E. Rep. 425; 218 N. Y. 29.

But our Practice act of 1912, though based on the late English practice ordinances, seems even more liberal than they. Pamph. L. 1912, p. 377. The second paragraph of section 6 provides that “the plaintiff may join separate causes of action against several defendants if the causes of action have a common question of law or fact' and arose out of the same transaction or series of transactions.” Section 1 says the act “shall be liberally construed, to the end that legal controversies may be speedily and finally determined according to the substantive rights of the parties.” Paragraph (b) of the rule 211 construes the word “transactions.”

It has been said above that the three claims herein involved have a common question of law and fact, viz., the individual liability of each defendant to pro rata assessment, the insolvency and the assessment on the several policyholders in the administration of the receivership. I think they also arose out of the same series of transactions, namely, the underwriting of risks by the company, for which risks the defendants became obligated according to the terms of their policies and the by-laws and statutes applicable.

As has likewise been said, any defendant may set up any defense to which he is entitled, either common to all or peculiar to himself. But that is not the determinative test. It is settled, and is now common practice, to join master and servant as defendants in an accident case, as in Davis v. Groner, 98 N. J. L. 873, 878; 121 Atl. Rep. 446, although the master might deny the relation, or plead deviation from the employment. Similarly in Cramp v. Doughty, 89 N. J. L. 288; 98 Atl. Rep. 260, a surety was joined with the principal in a contract case, as the question of breach of the contract was common to both cases and although it was open to the surety to plead any or all the special defenses, releases and the like, open to sureties in such cases. In the Black Tom cases (Metropolitan Casualty Insurance Co. v. Lehigh Valley Railroad Co., 94 N. J. L. 236; 109 Atl. Rep. 743, twelve plaintiffs joined, each in his or its own right, in one action for damages growing out of an explosion; and the clause “transaction or series of transactions” was held to cover the alleged acts of negligence.

On the trial of this present multiple action, the evidence on the plaintiff’s case against every defendant would be the same except as to the issue and acceptance of the several policies. It may well be that one or more defendants might present special defenses justifying a severance for trial, but that could readily be accomplished under rule 108. However, looking at the face of this complaint, it seems plainly to present a case within section 6. Only three defendants are before me, but the statute places no limit on the number that might be joined on the same theory.

The motion to strike out the complaint is denied, but without costs, as the particular point is new in this state and it was manifestly proper to raise it.


author: Case, J.

text:
    ARTHUR W. CROSS, PLAINTIFF, v. SALVATORE F. LACORTE, DEFENDANT.
    Decided November 10, 1933.
    For the plaintiff, Aquila N. Venino.

    For the defendant, Salvatore F. LaCorte, pro se.

   Case, J.

Plaintiff recovered a judgment for $209.79 against the defendant in the District Court for the Second Judicial District for the county of Union. Thereafter the judgment was docketed in the Supreme Court. Nothing has been paid thereon. Application is now made (on notice to the defendant) for a salary execution under the statute. 1 Cum,. Supp. Comp. Stat., lit. "Executions ” pi. 71-9L, 71-9M. Defendant is judge of the District Court for the First Judicial District of the county of Dnion and as such receives an annual salary of $5,000, payable in monthly installments, from the county of Dnion. Plaintiff seeks to fasten an installment execution upon that salary. Defendant contends that because of public policy his judge's salary is exempt from the application of the statute, citing Schwenk v. Wyckoff, 46 N. J. Eq. 560; 20 Atl. Rep. 259; and Spencer v. Morris, 67 N. J. L. 500; 51 Atl. Rep. 470, also citing holdings of like import in other jurisdictions. The Schwenk case held that an assignment by a retired officer of his unearned pay was invalid as opposed to public policy. The Spencer case applied the doctrine to the instance of a municipal officer and held that the salary of such a one was not liable to be reached on an installment execution under the supplement to the Execution act approved March 21st, 1901. Pamph. L. 1901, p. 372. The reasoning upon which the last mentioned decision was reached was that such a public policy had theretofore been declared, that a purpose at variance with public policy as thus declared should not be attributed to the legislature except upon cogent evidence and that the statute then under consideration did not disclose a dissonant purpose.

In 1915, and particularly in 1916, much later of course than either of the mentioned opinions, the legislature gave “cogent evidence” of an opposite purpose. It then enacted 1 Cum. Supp. Comp. Stat., p. 1208, pl. 71-9M (referring to an execution against salary or other income), that “it shall be the duty of any * * * treasurer or other fiduciary officer of a * * * public municipal corporation, including any county and the state * * * to pay over to the officer presenting the same * * * the sum directed, and that “if such * * * proper officer of the corporation, municipal, county or state, to whom such execution shall be presented shall fail or refuse to pay over * * * the percentage * * * he shall be liable to an action therefor by the judgment creditor * * Our Supreme Court, speaking through Mr. Justice Trenchard in Petersen v. Jersey City, 89 N. J. L. 93; 97 Atl. Rep. 963, held that the statute permits of an execution against the salary of a municipal officer and that the declared public policy to the contrary had, whether wisely or unwisely, been ended by the legislature. The control by the court over the percentage of salary or other income that may be so reached was probably intended to be, and doubtless is, an assurance that the salary of a public officer will not be exhausted to the point of injury to the public service. No statute, determination or reasoning has been brought to my attention whereby a public officer whose salary is paid by a county is in different posture from one who receives his salary from a municipality, or whereby one occupying the position of the defendant is, under the statute, to be distinguished from any other public officer.

The statute is mandatory where an application is, as the present one seems to be, within its purview. An order will go directing that an execution issue against the defendant’s salary payments to the extent of five per centum thereof.


author: Heher, J.

text:
    CHARLES F. BROWN, PROSECUTOR, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF PATERSON, CONSISTING OF THEODORE L. SLOAN ET AL., RESPONDENTS.
    Submitted April 27, 1933
    Decided December 5, 1933.
    Before Justice Hbheb, pursuant to the statute.
    For the prosecutor, Vincent G. Duffy (Minium & Weinberger, of counsel).

      For the respondents, Salvatore D. Viviano (Charles F. Lynch, of counsel.)
   Heher, J.

This certiorari brings up the proceedings had upon a complaint charging that prosecutor, a patrolman in the police department of the city of Paterson, was guilty of misconduct, in violation of departmental rules and regulations, in that (1) he was intoxicated while on police duty on a specified day; (2) he failed, twice on that day, to signal his presence on post at the appointed time, and (3) he failed, also on that day, to answer a rollcall, and to report for duty at the designated time. He pleaded guilty to the charges growing out of the alleged failure to signal his presence on post, and to answer the rollcall and report for duty at the proper time, and went to trial on the charges based upon his alleged intoxication. He was found guilty of this charge, and dismissed from the service.

The grounds of attack argued are (a) that there was no legal evidence to support the order of dismissal, in that the witnesses called were not sworn; (b) that the evidence before respondent board, assuming that it was legally introduced, was insufficient to sustain the judgment, and (c) that prosecutor did not have a fair trial.

The return to the writ, which includes the minutes of the proceedings before the respondent board, certifies that the witnesses who testified were first duly sworn. Every intendment is in favor of the return as made, and until it is proved erroneous it must stand. Gory v. Jackson, 76 N. J. L. 387; 74 Atl. Rep. 658. The only evidence offered to contradict the return in this respect was that given by prosecutor, who testified, when examined in these proceedings, that "a Bible or other religious script” was not "used at the hearing to make their [the witnesses’] testimony binding.” Assuming its competency for the purpose offered, this testimony avails prosecutor nothing. Counsel is evidently under a misapprehension as to the requisites of a valid oath. There is no such statutory requirement. 3 Comp. Stat., p. 3772. This point is therefore without substance.

As to the second point, the proofs were ample to warrant the respondent board’s finding that prosecutor was guilty of the charge of intoxication. The evidence, fairly weighed and considered, is persuasive of prosecutor’s guilt of this charge.

Prosecutor urges, in support of the third point, that he was deprived of a fair trial because of the presence of the city attorney and respondent board’s clerk at the executive session of the board, held to consider the evidence and determine the matter. A fair trial in such case does not mean a trial conducted with regard to all the formalities of a trial upon an indictment. It means a trial which insures the doing of substantial justice. Ayers v. Newark, 49 N. J. L. 179; 6 Atl. Rep. 659; Capone v. Union County Park Commission, 9 N. J. Mis. R. 1105; 156 Atl. Rep. 782. It is not shown that the presence of the named officials resulted in injury to prosecutor. On the contrary, the proofs show that they took no part in the discussion of the matter by members of respondent board, and in no sense participated in their deliberations. There is, therefore, no basis for a finding that they influenced, in any respect, the final determination of respondent board.

Writ dismissed, with costs.


text:
    FRANK McKENNA, PROSECUTOR, v. CITY OF PATERSON, ANDREW W. BRENNAN, REGISTRAR OF LICENSES OF THE CITY OF PATERSON, AND HARRY JOELSON, RECORDER OF THE CITY OF PATERSON, RESPONDENTS.
    Submitted May 26, 1933
    Decided December 11, 1933.
    Before Justice Heher, pursuant to the statute.

      For the prosecutor, Cohn <& Eohlreiter.

    For the respondent, Salvatore D. Viviano and Charles F. Lynch.

   Heher, J.

This writ brings up the conviction of prosecutor on a complaint charging a violation of section 6 of an ordinance of the city of Paterson, entitled “An ordinance to license and regulate the business of transient merchants or itinerant vendors in the city of Paterson,” approved December 19th, 1931. The return to the writ includes a stenographic transcript of the testimony taken on the hearing of the complaint.

It is necessary to consider only one of the reasons advanced by prosecutor for setting aside the conviction, viz., that the complaint did not charge a violation of the ordinance. The complaint, verified by the registrar of licenses of the city of Paterson, alleged that on February 23d, 1932,, prosecutor, at 134 Market street, in the city of Paterson, “did offer for sale goods, wares, merchandise or bankrupt stock before applying for and receiving a license from the registrar of licenses of the city of Paterson, to do a transient business, in the said city of Paterson, county and state aforesaid, in violation of section 6,” of the ordinance in question.

Section 6 of the ordinance provides that “a transient merchant or itinerant vendor defined in sections one and two of this ordinance, before offering for sale any goods, wares, merchandise or bankrupt stock, shall apply for and receive a license from the registrar of licenses of the city of Paterson to do a transient business.” Section 1 of the ordinance provides that the words “transient merchants” or “itinerant vendors” shall be construed to mean and include persons who engage in a merchandising business “with intent to close out or discontinue such business within a period of one year from the date of commencement, and including those who for the purpose of carrying on such business, hire, or lease or occupy any building, structure or railroad car for the exhibition and sale of such goods, wares and merchandise.” Section 2 provides that the words “with intent to close out or discontinue such business” shall be construed to mean “the operation of the business at one address and the removal of a business from one address to another shall be deemed to be the closing out of the business, and the opening of a new business shall not be considered to mean the continuance of the same enterprise at another address.”

Prosecutor seasonably challenged the sufficiency of the complaint. Manifestly, it did not charge a violation of the ordinance. The scheme of the ordinance was to require a license for the doing of a transient business. Only a “transient merchant” or “itinerant vendor,” within the definition and intendment of the ordinance, was obliged, before offering goods, wares or merchandise for sale, to have the license prescribed by the ordinance. It does not appear from the allegations of the complaint that prosecutor was a transient merchant or itinerant vendor, within the definition of the ordinance. Unless he had such a status, a license was not a prerequisite to the right to offer goods, wares and merchandise for sale. It was incumbent upon the complainant to make allegations of fact, that, if true, would constitute a violation of the ordinance. In this respect the complaint in the instant case is obviously deficient. This ordinance is of a penal nature. The proceeding is a summary one. The settled legal rule is that nothing will be presumed or intended in favor of the validity of a complaint or of a conviction had thereon, in proceedings of this character. Owens v. Camden, 6 N. J. Mis. R. 379; 141 Atl. Rep. 34.

The complaint being deficient in this fundamental particular, the conviction must be set aside.

Conviction set aside, with costs.


author: Ackerson, S. C. C.

text:
    CLARENCE EDWARD STEWART, PLAINTIFF, v. HARRY M. SCHACHTER AND EDWARD M. SCHACHTER, DEFENDANTS.
    Decided December 8, 1933.
    For the plaintiff, Dippel, Davis •& Stewart.

    For the defendants, Samuel Moshowitz.

   Ackerson, S. C. C.

This motion is to strike out the answer of the defendants interposed in an action upon a bond made by them to the plaintiff, and accompanying a mortgage which has been foreclosed resulting in a deficiency, to recover which this action is brought.

The sufficiency of the answer in question depends upon the constitutionality (so far as it affects the bond in question) of chapter 82 (Pamph. L. 1933), approved March 29th, 1933, which in effect permits the question of “fair market value” of the premises foreclosed to be raised in an action at law on the bond for a deficiency resulting from the foreclosure sale, notwithstanding the order of the Court of Chancery confirming such sale.

Since the bond in question was executed prior to the time when the above mentioned act took effect, this motion is controlled by the recent decision of our Court of Errors and Appeals in the case of Vanderbilt v. Brunton Piano Co. et al., 111 N. J. L. 596, which held that the above mentioned act, in so far as it permits the question of “fair market value” of the mortgaged premises to be raised in an action on the accompanying bond for a deficiency is unconstitutional so far as pre-existing contracts are concerned.

The plaintiff’s motion must, therefore, be granted and the defendant’s answer will be stricken out as sham in part and frivolous in part, and an order may be presented in accordance with the conclusion thus reached.


text:
    QUEEN ANNE PARK HOLDING COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. CORNELIUS VAN SADERS AND MARTHA A. VAN SADERS, DEFENDANTS.
    Decided December 8, 1933.
    For the plaintiff, Gross & Gross.

    For the defendant Cornelius Yan Saders, Fetter & Smith.

   Ackerson, S. C. C.

This action is upon a bond to recover a deficiency resulting from the foreclosure and sale of the lands covered by the accompanying mortgage which bond was made by the defendants to the plaintiff.

The defendants have filed an answer setting up several defenses, but by a signed stipulation counsel have agreed that the answers of each defendant including the separate defenses contained therein be stricken out and abandoned except the first separate defense in the answer of Cornelius Yan Saders and the second separate defense in the answer of Martha A. Yan Saders, which are to be ruled upon by the court upon this motion.

These defenses are the same in each answer, and each raises the question of the constitutionality of chapter 82 (Pamph. L. 1933 — approved March 29th, 1933), amendatory of an act entitled “An act concerning proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of the mortgaged premises thereunder.” This amendment provides that the obligor on a bond may, by his answer in an action at law on the bond for a deficiency, dispute the amount of the deficiency and raise an issue of the “fair market value of the mortgaged premises at the time of the sale under the foreclosure proceedings,” whereupon the court which is trying the action on the bond, sitting with or without a jury, shall assess the “fair market value” and determine the deficiency by deducting that value from the debt.

In view of the above stipulation, it must be taken as conceded that the bond in the case sub judice was executed on June 26th, 1926, and that on February 1st, 1933, the sheriff of the county of Bergen pursuant to a final decree of the Court of Chancery in the foreclosure proceedings sold the lands and premises covered by the mortgage accompanying the said bond for the sum of $100, which sale was duly confirmed,. resulting in a deficiency of $8,286.04.

It will be noted that not only was the bond in question executed prior to the above mentioned amendment but that the foreclosure sale resulting in the deficiency was held prior thereto. The disposition of this motion is, therefore, controlled by the recent decision of our Court of Errors and Appeals in the case of Vanderbilt v. Brunton Piano Co. et al., 111 N. J. L. 596, in which it was held that chapter 82 (Pamph. L. 1933), in so far as it affects a pre-existing contract, involves a right and not a mere procedure, and is such a restriction and limitation upon a mortgagee’s right of recovery on a bond under chapter 157 (Pamph. L. 1880, as amended by Pamph. L. 1881, ch. 147), as to be an impairment of a pre-existing contract and therefore and to that extent in conflict with article 1, section 10, subdivision 1 of the constitution of the United States and with article 4, section 7, paragraph 3, of the constitution of the State of New Jersey. Furthermore it was held that the amendment in question, with respect to pre-existing contracts, cannot be sustained as an exercise by the legislature of the police power.

It follows, therefore, that the above mentioned defenses in the answers of the respective defendants must be stricken out as not constituting legal defense in this action, and an order may be presented in accordance with the conclusion thus reached.


text:
    CARLO J. AIMONE, PLAINTIFF, v. HARRY BRENNER AND ESTHER BRENNER, HIS WIFE, DEFENDANTS.
    Decided December 8, 1933.
    For the plaintiff, J. Raymond Tiffany.

    For the defendants, Garey & Lane.

   Ackerson, S. C. C.

This motion is to strike out the answer of the defendants interposed in an action upon two bonds made by them to the plaintiff’s assignor and accompanying mortgages which have been foreclosed resulting in a deficiency, to recover which this action is brought.

The sufficiency of the answer in question depends upon the constitutionality (so far as it affects the bonds in question) of chapter 82 (Pamph. L. 1933), approved March 29th, 1933, which in effect permits the question of "fair market value” of the premises foreclosed to be raised in an action at law on the bond, for a deficiency resulting from the foreclosure sale, notwithstanding the order of the Court of Chancery confirming the sale.

Since the bonds in question were executed prior to the time when the above mentioned act took effect, this mótion is controlled by the recent decision of our Court of Errors and Appeals in the case of Vanderbilt v. Brunton Piano Co. et al., 111 N. J. L. 596, which held that the above mentioned act, in so far as it permits the question of "fair market value” of the mortgaged premises to be raised in an action on the accompanying contracts are concerned.

The plaintiff’s motion must, therefore, be granted and the defendants’ answer will be stricken out as sham in part and frivolous in part, and an order may be presented in accordance with the conclusion thus reached.


text:
    AMERICAN HOMES BUILDING AND LOAN ASSOCIATION OF HOBOKEN, PLAINTIFF, v. PAUL ANGELILLIS AND JOHN MOSSA, DEFENDANTS.
    Decided December 8, 1933.
    For the plaintiff, Matthew J. TacTcella.

    For the defendants, Joseph H. Gaudielle.

   Ackerson, S. C. C.

This action is upon two bonds, both dated June 13th, 1933, made by the defendants to the plaintiff, accompanying mortgages which have been foreclosed resulting in a deficiency for .which this action is brought. An answer was filed by the defendant John Mossa, consisting of a general denial and one separate defense, in which the defendant disputes the amount of the deficiency and claims that the fair market value of the mortgaged premises at the time of the foreclosure sale was greater than the established deficiency, and that, therefore, no deficiency resulted on said bond. The defendant expressly states that “this defense is interposed pursuant to chapter 82 of the laws of 1933.”

The plaintiff now moves to strike out this answer as not constituting a legal defense, and the only question presented at the argument and in the briefs is the constitutionality of chapter 82 (Pamph. L. 1933), approved March 29th, 1933, which is amendatory of an act entitled “An act concerning proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of mortgaged premises thereunder.” The amendment provides in effect that the obligor may, by his answer in an action at law on the bond for a deficiency, dispute the amount of the deficiency and raise an issue on the fair market value of the mortgaged premises at the time of the sale under the foreclosure proceedings, whereupon the court which is trying the action on the bond, sitting with or without a jury, shall assess the “fair market value” and determine the deficiency by deducting that value from the debt.

Since the bonds in question were executed prior to the approval of chapter 82 (Pamph. L. 1933), this motion is absolutely controlled by the recent decision of our Court of Errors and Appeals in the case of Vanderbilt v. Brunton Piano Co. et al., 111 N. J. L. 596, wherein the court held that chapter 82 (Pamph. L. 1933), in so far as affects a pre-existing contract involves a right and not a mere procedure, and is such a restriction and limitation upon a mortgagee’s right of recovery on a bond under chapter 157 (Pamph. L. 1880, as amended Pamph. L. 1881, ch. 147), as to be an impairment of a pre-existing contract and therefore and to that extent in conflict with article 1, section 10, subdivision 1 of the constitution of the United States and with article 4, section 7, paragraph 3 of the constitution of the State of New Jersey, and the court also held that the amendment in question, with respect to pre-existing contracts, cannot be sustained as an exercise by the legislature of the police power of the state.

It follows, therefore, that the plaintiff’s motion to strike out the entire answer as sham in part and frivolous in part must be granted, and an order may be presented in accordance with the conclusion thus reached.


text:
    MORRIS PLAN CORPORATION OF NEW JERSEY, APPELLANT, v. NAT LESCHINSKY, I. RAE RACHLES AND MORRIS BERNSTEIN, APPELLEES.
    Argued October 3, 1933
    Decided December 12, 1933.
    Before Justices Parker, Lloyd and Perskie.
    Por the appellant, Charles Blume.

    For the respondent, Joseph B. Btadtmauer.

   Per Curiam.

The case arises under the so-called “Small Loan act” of 1914 as amended, and particularly section 5. Pamph. L. 1914, p. 78; Pamph. L. 1928, p. 497; Pamph. L. 1929, p. 685. The note sued on was dated May 17th, 1930, and is signed by all three defendants, promising jointly and severally. After eight months the payments stopped, the plaintiff called the balance and brought suit, and defendants counter-claimed for the return of payments made, pursuant to section 6. See Langer v. Morris Plan Co., 10 N. J. Mis. R. 128; 158 Atl. Rep. 325; affirmed, 110 N. J. L. 186; 164 Atl. Rep. 428. There was a judgment in their favor and the plaintiff appeals.

We conclude that the judgment should be affirmed. The first point made for reversal is that judgment was in favor of all three defendants, whereas the pass book put in evidence shows payments by Leschinsky alone: e. g., he was the “borrower” and judgment could be for him alone. We are not impressed with the argument, in view of the fact that all three signed as joint makers and were sued as such.

The second point it is not necessary to decide. The third is that it was error to hold that the plaintiff failed to furnish the borrower with the “statement” required by statute. But the “statement of payments or pass book” was put in evidence over objection, which, as it stated no ground, was without legal force; and the trial proceeded to a finish without a suggestion, so far as shown by the state of the case, that any other paper was delivered by plaintiff to defendants or any of them. There were motions to nonsuit, and to “direct a verdict” (sic-—there was no jury), but no ground of either motion appears. The court obviously treated the pass book as the “statement” and so far as appears without challenge, as was made in North Hudson Loan Co. v. Roth, 5 N. J. Mis. R. 409; 136 Atl. Rep. 712, cited for appellant. Moreover, there was a motion for new trial in the present case, in which apparently this vital point was not even alluded to. We conclude that the parties at the trial treated the pass book as the only “statement” there was. That document contained no copy of the statute; did not show the date when the loan was made; or the amount of the loan; or the amount and rate of interest charged. All these particulars are required by the statute. The counter-claim was consequently well founded, the loan was void under section 6, and the judgment on the counter-claim was right, and will be affirmed.


author: Pee Ctteiam.

text:
    JANE McDONOUGH, PETITIONER-RESPONDENT, v. HORACE HAMMOND ESTATE, DEFENDANT-PROSECUTOR.
    Submitted October 3, 1933
    Decided December 15, 1933.
    Before Justices Case, Bodine and Donges.
    For the petitioner-respondent, Martin P. Devlin & Son (Marlin P. Devlin, Jr.)

    For the defendant-prosecutor, Howard Eastwood.

   Pee Ctteiam.

The writ brings before us an award in a compensation ease. There is no doubt that petitioner’s decedent met with an accident arising out of and in the course of his employment. But it is urged before us that there is no evidence to support the finding of the bureau and the Court of Common Pleas that his death was the result of the accident. The deceased suffered an injury to his leg January 7th, 1929. He died February 9th, 1931, due to an embolism. One of the physicians testified that an embolism, or fragment from the clot, which in his judgment came from the area of injury, lodged near some terminal vessel in the lung, causing death, which was a result of pulmonary thrombosis or embolism. Another that the deceased on the day of his death complained of more severe pains than usual in the injured leg, he was helped to bed, his shoe removed and his leg rubbed; he then complained of pain in the heart area. The pain in the leg ceased. Deatt he attributed to an embolism. A third physician gave corroborative testimony.

The defense offered medical testimony to the contrary. Two doctors attributing death to an independent cause and a third did not know the cause.

The commissioner heard all the testimony. We cannot say that there was no testimony to support the bureau’s findings. Hor does it seem to us that its findings, or those of the Court of Common Pleas were the result of guess or speculation, but on the contrary we think they were supported by the proofs, even if we were not aware of the rule, that two concurring findings by independent tribunals will not be lightly disturbed.

The writ will be dismissed.


author: Pee Cueiam.

text:
    HAROLD E. PATTERSON, PETITIONER-APPELLEE, RESPONDENT IN CERTIORARI, v. S. S. THOMPSON, INCORPORATED, RESPONDENT-APPELLANT, PROSECUTOR IN CERTIORARI.
    Submitted October 13, 1933
    Decided December 15, 1933.
    Before Justices Case, Bodine and Donges.
    Por the prosecutor, Meehan Brothers (John J. Meehan).

    Por the respondent, Patterson, Bhome & Morgan.

   Pee Cueiam.

The prosecutor seeks to bring before the court an award in a compensation case. The petitioner was assaulted and injured by a number of men in Jersey City. He was a chauffeur operating one of defendant’s trucks. The truck was business, and had stopped for fueling. Liability exists only for an accident arising out of and in the course of the being driven from Eed Bank to Long Island upon defendant’s employment.

The question for the bureau was whether the injuries were due to an accident arising out of and in the course of the employment. The accident must be reasonably connected with the employment. If the employer had been struck by an automobile while engaged in his master’s business the liability would have been clear. But since he was willfully struck by a group of men congregated in the neighborhood, the employer apparently would not be chargeable, unless the injury was due to some peculiar and extraordinary situation then existing of which he should have had knowledge. Schmoll v. Weisbrod & Hess Brewing Co., 89 N. J. L. 150; 97 Atl. Rep. 723; Foley v. Home Rubber Co., 89 N. J. L. 474; 99 Atl. Rep. 624; affirmed, 91 N. J. L. 328; 102 Atl. Rep. 1053.

The proofs indicate that in the vicinity of the assault many fights had for a long time occurred between union and nonunion men. The police had been organized into a riot squad.

The appellant, an employer of non-union labor, had previously experienced great difficulty in protecting its men and had long employed guards for that purpose. It had done considerable work in the vicinity of the troubled area and must have been aware of the unwholesome labor conditions prevalent. The bureau found that the assault might reasonably have been anticipated by the employer, and that instructions to take a route less exposed to danger could have been given. Foley v. Home Rubber Co., supra.

“Where the assault is of such a character as is incidental to the employment—that is such as is likely to happen because of the very nature of the work performed—it has been held to arise out of and in the course of the employment. Nevich v. Delaware, Lackawanna and Western Railroad Co., 90 N. J. L. 228; 100 Atl. Rep. 234; Emerick v. Slavonian Roman Greek Catholic Union, 93 N. J. L. 282; 108 Atl. Rep. 223. In the Eevich case two strangers had carried away a short distance a barrel of the employer who directed the employe to recover it, and when he endeavored to do so, they assaulted and injured him. In the Emerick case the employe was a bartender who was shot by customers during a dispute as to the price of liquors sold to them.” Lange v. Eureka Printing Works, 108 N. J. L. 223, 226; 157 Atl. Rep. 253.

We think that under the proofs in this ease the assault was of such a character as to be incidental to the employment.

The writ will be denied.


text:
    PETER McLAUGHLIN, PETITIONER - DEFENDANT, v. HAHNE & COMPANY, A CORPORATION, RESPONDENT-PROSECUTOR.
    Submitted October 13, 1933
    Decided December 15, 1933.
    Before Justices Case, Bodine and Donges.
    Por the respondent-prosecutor, Cohen <& Klein (Philip Klein).

    Por the petitioner-defendant, ■ Herman M. Wilson (Elias C. Willman).

   Per Curiam.

The writ brings up for review a ruling of the bureau entertaining a petition for review of compensation filed June 13th, 1933. The petitioner, a porter employed by the defendant, was injured September 30th, 1930, by an accident which arose out of and in the course of his employment.

A petition for compensation was filed March 1st, 1932. After informal and formal hearings, a rule for judgment commuting the balance of the award was made. More than a year after this judgment was fully paid the petition for review was filed. The writ seeks a review of an order denying the motion to strike this petition.

In Herbert v. Newark Hardware Co., 107 N. J. L. 25; 151 Atl. Rep. 502, Mr. Justice Parker reviewed the provisions of the statutes relating to petitions for review because of increased disability and said: “The payment of the judgment was not such a 'last payment of compensation’ in the intendment of the statute, as would support an application to 'review the award’ within a year after such payment of the judgment.”

When the present judgment was recovered, the act had been amended by Pamph. L. 1931, p. 104, as follows: “(f) An agreement for compensation may be modified at any time by a subsequent agreement or a formal award reviewed within two years from the date when the injured person last received a payment, upon the application of either party on the ground that the incapacity of the injured employe has subsequently increased, or reviewed at any time on the ground that the disability has diminished.” See, also, amendment to paragraph 23 (h) and Pamph. L. 1931, p. 708.

It clearly appears from the foregoing that if the accident had occurred shortly before the hearing was held the action of the bureau would have been proper. But it is urged that the rights of the parties were fixed by the provisions of the statute existing when the accident occurred. Smith Manufacturing Co. v. Essex Pleas, 101 N. J. L. 38; 150 Atl. Rep. 771. However, that was a case where the statute, as amended, fixed a period of limitation upon the right to review. Obviously, it would not be given a retroactive effect. But it is equally apparent that the legislature in enlarging the period for a review by the 1931 amendment intended that such enlargement should apply as specified. Otherwise, the time in which a review could be made would depend upon the date of the accident and not upon the date of the award. The legislature in extending the time in which a review would be had must be understood as desiring that the extended period should relate to the times mentioned by them and not some other time. Giving the statute its plain meaning the bureau quite properly entertained the petition for review.

We have not considered the other matters discussed in the opinion of the bureau, because unnecessary.

The denial of the motion to dismiss the petition of review is affirmed.


text:
    ELIZABETH TRUST COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CENTRAL LUMBER COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted May 2, 1933
    Decided December 15, 1933.
    Before Brogan, Chiee Justice, and Justices Trenchard and Heher.
    For the defendant-appellant, Francis A. Gordon (John M. Mackenzie, of counsel).
    For the plaintiff-respondent, Samuel Koestler.

   Per Curiam.

The plaintiff moved to strike defendant’s answer and counter-claim and for a summary judgment. The judge of the Union County Circuit Court granted the motion upon the presentation of affidavits and answering affidavit.

We find no fault with such action.

The suit was based upon a promissory note made by the defendant for the sum of $14,000 which note was due and unpaid and had been protested for non-payment. The answer admitted that no part of the note had been paid, and denied merely that such sum of money was due and owing from the defendant to the plaintiff; and the answering affidavit we think sets up no defense to the cause of action.

The main and it seems the only contention of the defendant is based upon its counter-claim, which is in three counts, and which, in effect, allege the delivery to the plaintiff of one hundred and fifteen shares of stock by a third person who held the legal title thereto, which it is alleged the plaintiff, after demand, refused to return, and the counter-claim seeks to recover damages for the value of such stock upon the theory that it was really the property of the defendant.

The pleadings on their face show that an assignment of these shares was given by such third person to the defendant on July 15th, 1932, while the original summons and complaint was issued on July 8th, 1932, and was served upon that date.

The first question is whether a cause of action accruing to the defendant, after the original cause of action had been started, can be set up in the way of a counter-claim. Obviously this cannot be done in the circumstances of the present case, and the court below so determined. Whitaker v. Turnbull, 18 N. J. L. 172.

The contention of the defendant is that this cause of action was always in the defendant, and that this transfer of July loth was merely for the purpose of placing in the defendant the legal title to the shares of stock. In such case the question is one for a court of equity, and not for a law court, because, upon the admitted facts, on July 8th, at the time when the suit upon the note was begun, the legal title to the shares of stock was at that time in someone other than this defendant, and such legal title was not acquired by this defendant until July 15th, some seven days after the original cause of action had been instituted.

Furthermore, as the court below pointed out, a suit against the bank for the conversion of this stock is one that could not be conveniently tried in this suit upon the note, because such a suit would be for conversion of such stock, and would so confuse the issues that a jury could not conveniently pass upon the questions raised in the case.

We think that the court below, under the circumstances, properly struck out the answer and counter-claim and entered summary judgment for the plaintiff on the note, leaving the defendant, if it is so advised, to its remedy of a separate cause of action against the bank for whatever damages, if any, it has sustained because of its alleged conversion of the stock in question.

The judgment will be affirmed, with costs.


text:
    STATE OF NEW JERSEY, RESPONDENT, v. LEO J. DAVEY, DEFENDANT-PROSECUTOR.
    Argued October 4, 1933
    Decided December 15, 1933.
    Before Justices Case, Bodine and Donges.
    For the defendant-prosecutor, George M. Eichler.

    For the respondent, Clarkson A. Cranmer.

   Per Curiam.

The prosecutor seeks a review of a conviction under the Motor Vehicle act. The sole question before us is whether the acting mayor, the president of the council, may at the request of the mayor and during his absence from the borough for a less period than three days, hold the Kecorder’s Court. We think he can. Under the Borough act (1 Comp. Stat., p. 232), one of the mayor’s chief duties is to see to the enforcement of law and order. He has the power of a justice of the peace in cases of this character. In fact, laws have no purpose if they are not enforced.

The legislature in providing, under section 25 of the Borough act (1 Comp. Stat., p. 237), that the president of council should become acting mayor under certain contingencies in no sense precluded the mayor from requesting the president of council to become acting mayor for a day or two. Obviously, an executive officer must be able to on occasions delegate his powers to another. The legislature in enacting section 25 must be regarded as merely providing for a time when the president of council must become acting mayor and also imposing a duty upon the mayor to delegate his powers when his contemplated absence would exceed three days. But by so doing they cannot be regarded as precluding the mayor from providing for the due execution of law within the borough when his absence would be for a less period of time. Otherwise short but recurring absences from the borough might result in the suspension of law enforcement.

The writ will be dismissed.


text:
    FRANCIS W. DOWNS, PROSECUTOR, v. BOROUGH OF SEA BRIGHT, A MUNICIPAL CORPORATION, AND CYRIL SMACK, BOROUGH RECORDER OF THE BOROUGH OF SEA BRIGHT, DEFENDANTS.
    Submitted October 13, 1933
    Decided December 15, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Kremer, Keuper, Proctor é Fischer (Ward Kremer).

    For the defendants, Edward W. Wise and Lester Leonard.

   Per Curiam.

Prosecutor of this writ seeks a review of the validity of a zoning ordinance of the borough of Sea Bright and a proceeding instituted against him in the Recorder’s Court for an alleged violation of such ordinance.

The zoning ordinance was adopted December 18th, 1931. Proofs tending to show that for a number of years prior thereto prosecutor had conducted a boarding house and bathing establishment in what had become a residence district were controverted.

The ordinance has the usual provision that any nonconforming use existing at the time of passage may be continued.

Prosecutor does not argue that the ordinance was illegally adopted. This ground, therefore, must be regarded as abandoned. We cannot review the proceedings before the recorder because they have not been terminated. Since the ordinance is not retroactive, there is nothing to suggest that the prosecutor will be disturbed in the prosecution of a business existing at the time of the adoption of the ordinance, if such is the fact.

The writ will be dismissed.


author: Pee Ctjeiam.

text:
    NELSON ALLEN, PROSECUTOR, v. WILLIAM J. McGOVERN, JUDGE OF THE SECOND CRIMINAL COURT OF JERSEY CITY, ET AL., RESPONDENTS.
    Argued October 3, 1933
    Decided December 15, 1933.
    Before Justices Case, Bodine and Donges.
    Por the prosecutor, Edmund 8. Johnson (John W. Ochford).

    Por the respondents, James A. Hamill and Charles Hershenstein.

   Pee Ctjeiam.

The writ brings up for review a conviction under section 2 of an ordinance of Jersey City designed to regulate the unsolicited distribution of newspapers, periodicals, books, magazines, circulars, cards and pamphlets. The ordinance provides as follows: “No person shall distribute or cause to be distributed to the occupants of any house, place or cause to be placed in any areaway, in front of, or along the side of any house, or upon the doorstep thereof any newspaper, paper, periodical, book, magazine, circular, card or pamphlet, unless the same has been previously ordered by the person in actual occupation of the house, in the areaway of which, in front of which, or along the side or doorstep of which said newspaper, paper, periodical, book, magazine, circular, card or pamphlet shall be distributed or placed.” The prosecutor had called at a private residence and delivered an unsolicited advertising circular to the occupant.

It is first urged that the ordinance was ultra vires. We think not. The legislature has delegated to the municipality the duty to preserve the public peace and good order. Pamph. L. 1932, p. 151, 152. There is also power to regulate the ringing of bells and the crying of goods. City life is very complex. There can be no doubt that the city can prevent the misuse of the streets. But can it prevent the distribution to householders of unsolicited advertising matter? We think it can.

The right to circularize the householders, in certain ways, is absolutely prohibited by the ordinance. It was apparent to the city commission that the mere regulation as in Philadelphia v. Brabender, 201 Pa. 574; 51 Atl. Rep. 374, was not sufficient to prevent the public peace and good order in Jersey City but was inadequate, for the reason that the doorbell method was adopted not only to secure a hand distribution of the advertising bills but also to avoid the provisions of section 1 of the ordinance under review.

The doorbell method not only tends to clutter the streets and areaways with waste paper but in addition the distributors unfortunately acquire an intimate knowledge of the unoccupied residences and the habits of the householders.

It is contended that the ordinance unreasonably interferes with the right to choose an occupation and to advertise merchandise by the handbill method. The Supreme Court of the United States upheld a Hew York ordinance prohibiting the display of advertisements upon the Fifth avenue buses (Fifth Avenue Coach Co. v. New York, 221 U. S. 467) and also a state statute prohibiting drumming or soliciting on trains for hotels'and lodging houses. Williams v. Arkansas, 217 U. S. 79.

The records in this case demonstrate that the municipality had reasonable cause to believe that the unsolicited distribution of the advertising mediums named in the ordinance was detrimental to the public peace and good order. By so doing the city has not violated the organic law. It has not deprived advertisers of the opportunity to advertise their goods or to approach possible customers. All that it has prohibited is the unsolicited' distribution of books and papers among householders. Ordinances have been long upheld as within the police power when the design was to prevent the cluttering of the streets and the frightening of horses. The fact that the prosecutor first rang the door bell and then handed in the unsolicited advertising matter does not alter the situation, since the city must regulate the use of its streets for the good of the greatest number. There are restraints upon every one for the common good. The city commissioners being familiar with the local conditions are primarily the‘judges of the necessity. Jacobson v. Massachusetts, 197 U. S. 11.

There can be no question that the city could exclude beggars, peddlers and panhandlers from its streets and the mere circumstance that these persons should adopt the doorbell method of approach would in no sense enlarge their rights. It seems to us that therefore the ordinance, in so far forth as it prohibits the unsolicited distribution of papers, magazines, advertising matters and other articles mentioned in it, violates no consitutional privilege.

The writ will be dismissed.


author: Pee Curiam.

text:
    FRANK LICATA, PROSECUTOR, v. NEW JERSEY STATE BOARD OF TAX APPEALS, RESPONDENT.
    Argued October 3, 1933
    Decided December 15, 1933.
    Before Justices Cask, Bodine and Donges.
    For the prosecutor, Samuel Morris.

    For the respondent, William A. Stevens.,
   Pee Curiam.

The writ brings up for review a ruling of the state tax commisioner granting exemption from a motor fuel tax to operators of auto buses, commonly known as jitneys, in Atlantic City, pursuant to chapter 357 of the laws of 1931.

Chapter 136 (Pamph. L. 1916, p. 283, as amended by Pamph. L. 1926, ch. 144, p. 219), provides that owners and operators of auto buses must file monthly statements with the fiscal officer of the municipality in which they operate, showing their gross receipts. The act further provides that the owners or operators shall pay five per centum of such gross receipts as a monthly franchise tax.

Section 1 of a supplement to this act (Pamph. L. 1917, ch. 78, p. 145), is as follows: “In lieu of the monthly franchise tax provided for by section 3 of the act to which this is a supplement, any city of the fourth class of this state which may consent to the operation of auto buses along or over any of the streets of such municipality may, by ordinance, provide for an annual license fee of any amount not exceeding one hundred dollars, to be paid at such period as may by said ordinance be designated, by the owner or operator of such auto bus before engaging in such business. Should such annual license fee be so provided, monthly statements of gross receipts need not be filed with the city treasurer of such municipality.”

Atlantic City pursuant to this act passed an ordinance providing that operators of jitneys should pay a municipal license tax of $100 per annum.

Section 1 of the Motor Vehicle Fuel Tax act (Pamph. L. 1927, p. 782, as amended by Pamph. L. 1931, p. 875), provides that: “The term ‘motor vehicle’ shall include any vehicle * * * except * * * auto buses, commonly called jitneys, which now pay a municipal or franchise tax based on their gross receipts.”

The state tax commissioner ruled that operators of jitneys in Atlantic City pajdng a flat municipal tax of $100 were exempt from payment of the motor fuel tax and the state board of tax appeals concurred in this ruling, and dismissed the prosecutor’s appeal.

It seems to us clear that the jitneys paying the Atlantic City municipal license tax fall within the meaning of the legislative exemption. It is obvious that in the smaller municipalities of the state a license fee in a definite sum is preferable to the tax computed on gross receipts. That the owners of jitneys paying such license. fee make the payment in lieu of a tax based on their gross receipts cannot be doubted. The tax is imposed because of the special use of the streets. It is reasonable that the legislature should exempt those already paying a franchise tax based on their gross receipts, and it is reasonable to suppose that they also intended to exempt those paying by legislative authority and municipal action a municipal license fee fixed by ordinance in lieu of the tax on gross receipts. The 1917 act (Pamph. L., p. 145), merely makes it optional with a municipality of the fourth class to impose an annual license fee upon the operators of jitneys in lieu of the tax based upon the gross receipts. When a municipality adopted this method, the jitney operator was obliged to conform. The franchise tax was in lieu of the tax based upon the gross receipts and a substitute for it. The difference in method of calculation was merely for the convenience of the municipality.

We can hardly believe that the legislature intended to exempt jitneys because the municipal franchise tax was fixed by one method of calculation and not to exempt those upon whom the tax was fixed by another method of calculation. It is far more reasonable to regard the exemption as running to those paying a municipal franchise tax however calculated. Looking at the design of the taxation, we can only conclude that the ruling of the state board of tax appeals was correct. Their ruling co-ordinates and makes reasonable the legislative scheme as embodied in the various acts referred to.

The writ will be dismissed.


text:
    ANNA SOKIERA, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF-RESPONDENT, v. H. A. JAEGER, INCORPORATED, A CORPORTION, DEFENDANT-APPELLANT.
    Submitted May 2, 1933
    Decided December 15, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the appellant, McDermott, Enright & Carpenter (Carl 8. Kuebler, of counsel).
    For the respondent, Martin P. O’Connor.

   Per Curiam.

The plaintiff obtained a judgment against the defendant for damages for the death of her husband, and the defendant appeals.

At the trial it appeared, among other things, that on July 27th, 1928, between ten and eleven o’clock at night, the defendant’s automobile truck, to which was coupled a trailer, upon which was loaded a steam shovel, was being driven along Edgar road, a public highway in the city of Linden. The apparatus was about forty-nine feet in length and was in charge of defendant’s employes. At the time of the accident there was a heavy rain, accompanied by wind and fog. While the plaintiff’s intestate, about forty years of age, and in good health, was crossing Edgar road where it intersects Ashton street, he was struck by the caterpillar wheel of the steam shovel, which projected over the side of the trailer, and was drawn under the wheel and killed.

The defendant first says that the trial court erroneously refused to grant defendant’s motion for a nonsuit.

We think not, in view of the testimony as to inadequate lighting of the truck and trailer in the circumstances. Thus Prank Sobozenski testified that he lived at the corner of Edgar road and Ashton street where the accident occurred; that he had been to a carnival on Edgar road and was on his way home when he saw a man (decedent) in front of him about fifteen feet away walking in the same direction; that when decedent got to the corner of Ashton street and Edgar road he stepped into the street and started to cross, at which time it was raining and foggy, when suddenly he heard a distressing cry and saw a white object fly; that he went across the street and saw the decedent lying on the ground; that a man took decedent’s body out from underneath the wheel; that he saw the truck when he got alongside of it; that he did not see the apparatus passing along Edgar road. He testified that the lights on the machine could not be seen until he got "right close to it, I seen one light.” There was other evidence to the same general effect.

The motion for nonsuit was made based upon two grounds: first, that there was no proof of negligence of the defendant, the contention being that the truck was operated at five miles per hour; that there were two lights on the front of the truck; that there was a red light on the left side of the crane cabin and within a few feet of where the man came in contact with the cabin, and another light on the rear left side of the crane cabin; the second ground was contributory negligence of decedent, the contention being that he was running toward the truck; that he was looking toward headlights which were approaching him and that he ran in front of the caterpillar on the left side of the crane at a point which is a few feet from where there was a red light.

We think that defendant’s motion failed to take into account the condition of the weather, the absence of lights in the neighborhood, and the condition and location of such lights as there were on the truck and trailer. The evidence tends to show the following matters of fact: It was a very dark night, and at the point of the accident there was no street light, and the absence intensified the darkness. There was a very heavy rain falling, and misty and foggy weather prevailing. On the front of the automobile truck two ordinary kerosene lanterns were used for headlights. A red lantern was placed on the side of the cabin of the shovel or crane three or four feet removed from the surface of the caterpillar wheels which went over the decedent. These lights were very dim. The globes were smoky and dirty, and the condition of the weather did not render them visible. The evidence tended to show that they could not be seen until one was alongside of them. It was therefore open to the jury to find that these lights did not reasonably apprise a pedestrian using the highway of the danger present. Of course it was the duty of the defendant to give warning by proper lights of sufficient brilliance and volume and properly located on the apparatus as notice or warning of the approaching danger to one lawfully using the highway. Whether or not the lights used were of sufficient strength and properly located on the apparatus, in the existing circumstances, we think was a factual question for the jury to determine and the evidence is ample from which the jury could, as they did, find negligence on the part of the defendant. As to the question of speed we think it was open to the jury to find negligence in driving even as slowly as five miles an hour this apparatus if its approach could not be seen or identified upon the highway by reasonable lights as notice or warning of the danger to pedestrians lawfully using the highway, as the jury evidently found.

As to the contributory negligence, there was evidence that decedent was walking across a street intersection. As we have said, there was evidence tending to show that the light or lights on this apparatus gave no warning of the danger present; that the lights were dim by reason of smoky globes and could not be seen until one was upon them; that the weather also tended to diminish the effect of these lanterns. Of course the decedent was not required to look in any one direction continuously. His safety required him to make other observations of approaching vehicles. Whether or not he made reasonable observations for his safety in the particular circumstances, was a question of fact for the determination of the jury.

The defendant next says that the trial court erroneously refused to direct a verdict in favor of the defendant.

If, as we think, it was proper to deny the motion for a non-suit, it seems clear that the situation was not changed at the conclusion of the defendant’s case so as to make it the duty of the court to grant the motion for a direction of a verdict in its favor.

It is next said that the trial judge erroneously refused to charge the defendant’s fifth request to charge which was as follows: “If the lights on the truck and trailer were rendered less visible by heavy rain or storm, it was a circumstance beyond the control of the defendant and for which the defendant cannot be chargeable.”

We think such request was properly refused because it assumes as a fact that the lights on the truck and trailer were of reasonable brilliancy, volume and strength as to light and reasonable in number and location on the apparatus to give reasonable and proper notice and warning to others, who had a lawful right to be in the highway, of the danger present. If, as the evidence tended to show, they were not within the assumption of the request and their condition became aggrarated by rain and storm, the defendant could not be relieved or excused from liability on the theory that he had no control over the storm. If the storm or rain had a tendency to diminish lights which were not reasonable in the first instance, such circumstance would not exclude defendant from liability. True, the defendant had no control over the storm, but it did have control over the lights, and if they were insufficient in the circumstances of the storm so as to render them not reasonably effective as a notice and warning to others lawfully in the highway, defendant proceeded at its peril, and if in such circumstances injured another who was exercising reasonable care, it would be responsible.

Lastly it is said that the trial judge erroneously refused to charge the defendant’s sixth request to charge which was as follows: “If the deceased could have, with the exercise of that precaution expected of a reasonably prudent man, seen or heard the approaching truck and trailer or seen the lights thereon, he is guilty of contributory negligence and the plaintiff cannot recover.”

It seems to us that the court in its charge fairly and substantially stated the law as pertinent to the defense of contributory negligence, and it was not error to refuse to repeat it in language chosen by the defendant. Further, the request to charge was properly refused because as drafted it did not correctly state the rule applicable to the case. It overlooked the element of the proximity of the truck or its lights to decedent when the truck was seen or heard by him, or capable of being seen or heard by him, while exercising due care.

The judgment will be affirmed, with costs.


text:
    THE TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT, v. THE CLINTON ASPHALT COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT. THE TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT, v. THE CLINTON ASPHALT COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT. THE TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT, v. THE CLINTON ASPHALT COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Submitted May 2, 1933
    Decided December 15, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the plaintiff-appellant, Nicholas S. Schloeder.

    For the defendant-respondent, Burke, Sheridan Hourigan (John Milton, of counsel).
   Per Curiam.

These are appeals from judgments entered in the Hudson County Court of Common Pleas in three cases referred to as-Central Outlet Sewer, Northern Outlet Sewer and John Street, upon rules made by that court, striking out the complaints and ordering judgments for the defendants.

The questions involved are common to all three cases and are argued together, and will be so dealt with here, as they were below, with particular reference to the Central Outlet Sewer case.

The cases, as we see them, all seek to recover losses alleged to have been, sustained by the township of North Bergen as the result of alleged fraudulent and ultra vires contracts entered into between the defendant, Clinton Asphalt Company, and the former governing body in behalf of the plaintiff, township of North Bergen.

The defendant’s answer consists principally of a denial of the allegations of the complaint, an allegation that the payments were made to the defendant by plaintiff’s former governing body upon engineer’s certificates, and in addition, sets forth an objection in point of law to each of the several counts of the complaint, together with a general objection to the entire complaint, and further stated that the defendant would object that the complaint disclosed no cause of action, and reserved the right to move to strike out the complaint at or before the time of the trial on the ground that it does not set forth any cause of action against the defendant.

No motion was made by the defendant prior to filing the answer. The reply was filed and the case was noticed for trial.

Then the notice of motion was given to strike out the complaint and for summary judgment in favor of the defendant, on the ground that the complaint did not state a cause of action, and was sham and frivolous, and annexed to the motion papers was an affidavit of the president of the defendant company to disprove the various allegations of the complaint. The motion came on to be heard and the Common Pleas judge directed that the complaint be stricken out upon the ground that the complaint failed to disclose a cause of action, and ordered judgment for the defendant which was entered, and from which the plaintiffs appeals.

The plaintiff first contends that the court erroneously struck out the complaint since the order was made upon a motion by the defendant addressed to the complaint under rule 30 of the Supreme Court after the defendant had filed an answer to the complaint.

There seems to be merit in that contention.

The motion addressed to the complaint seems to have been made pursuant to rule 30 of the Supreme Court as is particularly indicated by the filing of an affidavit by the defendant to disprove various allegations of the complaint. Such a motion addressed to the complaint, after answer filed, comes too late, even though there was reserved the right to make such motion. Apfelbaum v. Pierce, 2 N. J. Mis. R. 1150, 1152; 126 Atl. Rep. 738; Klughaupt v. Acquackanonk Water Co., 2 N. J. Mis. R. 1188; 126 Atl. Rep. 739; Great American Indemnity Co. v. Gronowicz, 6 N. J. Mis. R. 821; 142 Atl. Rep. 897.

But the defendant maintains that the court below had power to strike the complaint and enter judgment under rule 40 of the Supreme Court on the ground that it disclosed no cause of action.

Assuming for present purposes that this power existed in the circumstances of the present ease, the question remains was it properly exercised in view of the allegations of the complaint, and, hence, we proceed to examine the contention of the defendant in the light of plaintiff’s argument.

The contention is that the complainant presents no triable issue.

We are not persuaded that this is so.

The court below seems to have regarded the complaint as consisting of mere conclusions. We think it consists of more, and the mere fact that conclusions are averred is not a sufficient reason for striking the complaint, if upon the whole it fairly apprised the adverse party of the state of facts, which it intended to prove.

We think the complaint meets this requirement. The first count alleges, in substance, that the former governing body of North Bergen entered into a contract with the Clinton Asphalt Company at a price vastly in excess of its maximum fair value (both such value and the excess being plainly stated in the complaint), which fact was known to both; that payments were made under this contract at a price so excessive as to shock the conscience, and was a fraudulent diversion of the funds of the plaintiff, and was known to the parties to-be such, and that the plaintiff corporation, consisting of the inhabitants of the township, is entitled to recover back the money to the extent of such excess. It seems to us that this fairly apprises the defendant of a state of facts which it is intended to prove. Obviously, the proof itself may consist largely of the facts or evidence, as distinguished from the state of facts, relating to these prices in detail, and such evidence has no proper place in the complaint. The second count charged in substance that additions were made to the contract and payments made thereon to the defendant, with* out previous advertisement and public bidding, in an attempt to evade the statute requiring advertisement for bids,-without the existence of any unforseen emergency, and not incidental to the work provided for in the original contract, all of which was without any benefit to the plaintiff, but resulted in a stated loss to the plaintiff, and was the product of an effort by the defendant, together with the then governing body of the plaintiff, to evade the statute.

The fact alleged that the contract was changed and what change was made, is an averment of fact, not a conclusion. The fact that it was not publicly advertised is likewise an averment of fact. That the change resulted in no benefit to the municipal corporation is an averment of fact. That the work was not occasioned by an unforeseen emergency is an averment of fact. These facts, if true, are sufficient to indicate as charged that the work was the product of an effort by the defendant in collusion with the governing body to evade the statute providing for advertisement, and so became a question of fact for the jury. Both counts aver that the moneys so charged as fraudulently diverted and which the defendant holds, should in equity and good conscience be paid to the plaintiff.

It seems to us that the court below, and the defendant here, misconceived the nature of the claim made in the complaint.

The defendant seems to think that there was no charge of fraud or collusion. We think there was. In short, we think the complaint is based'upon and is well within the principles enunciated by the Court of Errors and Appeals in the case of Township of Franklin v. Jones, 86 N. J. L. 224; 90 Atl. Rep. 1010. In that ease it was said:

“The essential nature of this implied assumpsit is thus stated in 27 Gyc. 849, under the title, 'Money Received.’ 'An action for money had and received is an equitable action governed by equitable principles [and] may in general be maintained whenever one has money in his hands belonging to another which in equity and good conscience he ought to pay over to that other.’ 'The question, in an action for money had and received,’ the same authority continues, 'is to which party does the money in equity, justice and law belong.’ All that the plaintiff need show is that defendant holds money which in equity and good conscience belongs to him; but if he fails to show such superior right he cannot recover.”

Certainly there are averments of the complaint, as has already been indicated, according to the legal effect of the essentials set forth in the above ease, upon a state of facts which the complaint itself set forth. Such state of facts, if true, constitute a ground for such action, for it is elementary, if moneys are fraudulently and collusively paid upon an .illegal or ultra vires contract, they generally may be recovered by a municipality in an action for money had and received, such as the present action.

Upon the whole, we think that the complaints in these three cases were improperly stricken. The orders striking them will be set aside and the judgments entered will be reversed.


text:
    PASQUALE IMPERATO, ADMINISTRATOR AD PROSEQUENDUM, AND IN THE ALTERNATIVE, GENERAL ADMINISTRATOR OF THE ESTATE OF DOMINICK IMPERATO, DECEASED, PLAINTIFF-RESPONDENT, v. CONCORD CASUALTY AND SURETY COMPANY, DEFENDANT-APPELLANT.
    Argued May 2, 1933
    Decided December 16, 1933.
    Before Brogan, Chiee Justice, and Justices Trenchard and PIbher.
    For the appellant, Harry H. Young (William H. Campbell, Jr., of counsel).
    For the respondent, Harry Kalisch.

   Per Curiam.

This is the appeal of the Concord Casualty and Surety Company from a judgment entered upon the verdict of a jury in favor of the plaintiff on a liability insurance policy issued by the defendant company to the owner of the automobile •covered by the policy.

The automobile covered was involved in an accident, as the result of which plaintiff’s decedent, Dominick Imperato, a passenger in the automobile, sustained injuries from which he died.

On the occasion in question, one Jerry Ladalardo had borTowed the car from the owner for his personal use, and plaintiff’s intestate was riding with him on his invitation, and it was on this trip that the automobile ran into a tree and, as a result of which, injury was inflicted upon the plaintiff’s intestate.

Suit was instituted by the administrator of the decedent against Jerry Ladalardo and was based upon his negligence-in the operation of the car, and in that suit plaintiff recovered a verdict of $6,000 upon which judgment was entered. Execution was issued and was returned unsatisfied.

Then the present suit was instituted, based upon that judgment and the policy upon the theory that the policy not only insured the owner of the car, but also Ladalardo, and was-thus brought within section 9 of the policy which provided, among other things, that “the term assured shall include any person while riding in or legally operating such automobile * * * provided (a) such automobile is. being used with the permission of the named assured or * * * with the permission of an adult member of his household other than a chauffeur or domestic servant * * *.” This suit resulted in a verdict and judgment for the plaintiff from which defendant appeals.

The first point is that the trial court erroneously struck out the fourth separate defense of the answer. We think not. The fourth separate defense was this: “The defendant says Jerry Ladalardo was not insured by the said defendant under the terms of the policy as alleged in the complaint.” That defense merely stated a conclusion of law and gave no facts upon which that conclusion was based, and it was therefore insufficient. Taylor v. New Jersey Title, &c., Co., 70 N. J. L. 24; 56 Atl. Rep. 152. Furthermore, if it had been permitted to stand the defendant could have offered no evidence under it. The plaintiff in the instant case averred performance of conditions precedent generally in compliance with section 118 of the Practice act of 1903. The defendant did not specify in its pleading any conditions precedent the performance of which it intended to contest, and hence under section 118 would not be permitted to offer any evidence of any matters tending to show failure on the part of the plaintiff to comply with conditions precedent. Vreeland v. Beekman, 36 N. J. L. 1; Dimick v. Metropolitan Life Insurance Co., 67 N. J. L. 367; 51 Atl. Rep. 592.

The next point is that the trial court erroneously refused to order a judgment of nonsuit in favor of the Concord Casualty and Surety Company on the ground that the plaintiff failed to prove that Jerry Ladalardo was driving the car. The answer to this is that the question whether Ladalardo was driving the car was a jury question under the evidence. The plaintiff’s evidence tended to show that Ladalardo and Imperato were the only persons in the car at the time of the accident; that the car was loaned to Ladalardo and that, at the time of the accident, he was behind the wheel on the left-hand side; decedent’s body was found on the right-hand side of the car which was wrecked, and that Ladalardo stepped out of the left-hand side of the car, where the wheel was, which side was not damaged, and he was not injured. Of ■course that evidence was sufficient to take the question to the jury.

It is next contended that “the trial judge erroneously refused to order a judgment of nonsuit in favor of the defendant, Concord Casualty and Surety Company on the ground that the plaintiff failed to show that the defendant received any notice of service upon the alleged insured, Jerry Ladalardo, ■of any suit papers in an action instituted in the ISTew Jersey Supreme Court by Pasquale Imperato, the plaintiff herein as administrator ad prosequendum of the estate of Dominick Imperato against the said Jerry Ladalardo.”

To that point it is sufficient answer to say that no such reason was urged for nonsuit so far as the record discloses.

It is next contended that “the trial judge erroneously refused to order a judgment of nonsuit in favor of the defendant, Concord Casualty and Surety Company, on the ground that the plaintiff failed to prove a prima facie case under the allegations of the complaint.”

To that contention a sufficient answer is that the plaintiff proved facts more than sufficient to make out a prima facie case, viz., the judgment obtained by the administrator of Dominick Imperato against Jerry Ladalardo at the Monmouth County Circuit; the execution upon such judgment returned unsatisfied; the letters of administration; the insurance policy issued by the defendant to the owner of the ear covering the car involved in the accident, and that Jerry Ladalardo was driving the car. Gee v. Independent, &c., Insurance Co., 109 N. J. L. 563; 162 Atl. Rep. 644.

We have examined the points made by the appellant to the effect that the court erred in the exclusion of testimony, and with respect thereto it is sufficient to say that, considering the state of the pleading and evidence, certainly there was no prejudicial error.

It is said that the court erred in refusing to direct a verdict for the defendant on the ground that Ladalardo was not insolvent or a bankrupt. The answer to this is that the proof tended to show that he was insolvent and that execution was returned unsatisfied. Other points urged respecting error in refusing to direct a verdict for the defendant are sufficiently disposed of by what we have said.

It is said that the court erred in charging the jury. We think not, considering the issues raised by the pleading and the evidence.

The judgment will be affirmed, with costs.