text:
    CHRISTOPHER L. EDELL, RELATOR, v. ROBERT J. McDERMOTT, AS JUDGE OF THE FIRST DISTRICT COURT OF PATERSON, RESPONDENT.
    Argued January 17, 1933
    Decided February 6, 1933.
    Before Justices Parker, Lloyd and Heher.
    For the relator, Randal B. Lewis.

    For the respondent, Addison P. Rosenkrans.

   Per Curiam.

The rule calls on respondent to show cause why mandamus should not issue requiring him to appoint a clerk of his court from the eligible list provided by the civil service commission.

What relator manifestly desires is not that the office shall be filled, but that he be appointed to fill it, his name standing first on the list of three eligibles as a disabled veteran. In fact, this is the only status that he appears to have in the matter, for a status as a citizen and taxpayer does not seem to be suggested.

The explanation made by respondent for his refusal to appoint relator is that he considers relator not to “possess the business capacity necessary to discharge the duties of the particular position involved.” Pamph. L. 1929, p. 784. It is true that the relator passed the civil service test, and that chapter 122 of Pamph. L. 1932 (at p. 206) provides that this is to be regarded as evidence that he possesses the business capacity and is qualified; but we have in this case the testimony of respondent that he was well acquainted with relator both personally and officially, and for reasons stated in some detail by him, but which need not be restated here, considered him unfit. In this aspect the case is similar to Davison v. Patterson, 94 N. J. L. 338. We think he was justified in that conclusion; but even if we were in doubt on that point, a writ should not go, as it is fundamental that to justify a writ of mandamus the legal right must be clear. Browne v. Lee, 98 Id. 1, and cases cited.

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


source: Caselaw Access Project

author: Pee Ctjeiam.

license: Public Domain

text:
    ANDREW MUDRI, PETITIONER-RESPONDENT, v. UNITED ENGINEERS & CONSTRUCTORS, INCORPORATED, IMPLEADED AS PUBLIC SERVICE COMPANY, AND/OR UNITED ENGINEERS AND CONSTRUCTORS, INCORPORATED, RESPONDENT-PROSECUTOR.
    Submitted October 14, 1932
    Decided March 31, 1933.
    Before Justices Pabkee, Lloyd and IIeliee.
    Por the petitioner-respondent, Joseph F. A. Bubaclcy (Feder & Binzler, of counsel).
    Por the respondent-prosecutor, Henry II. Fryling (Elmer W. Bomine, of counsel).
   Pee Ctjeiam.

This writ brings up for review the judgment of the workmen’s compensation bureau, awarding to the petitioner eompensation on the basis of fifteen per cent, of total and permanent disability.

It is conceded that the petitioner suffered injury from an accident which arose out of and in the course of his employment, but the prosecutor insists that no permanent disability resulted, and that therefore the findings of the deputy commissioner are not supported by the proofs.

The petitioner undoubtedly sustained severe injuries. While he was in a trench, assisting in the construction of concrete forms, a cave-in occurred, and heavy pieces of timber and sand fell upon him, inflicting head and shoulder injuries. The commissioner found that at the time of the hearing, some eighteen months after the accident occurred, he had a rigidity of the neck, and that his head inclined toward the right shoulder. There was evidence of injury to the cervical nerves and muscles. There was also testimony tending to show impaired hearing of the right ear, and numbness of the right side of the head.

The prosecutor contends (1) that the petitioner does not suffer from these alleged disabilities, and (2) that if he is so afflicted, they did not have a traumatic origin. The commissioner rejected these contentions, and rightly so. We find in the proofs ample support for his conclusion that petitioner suffered permanent injury from the accident in question, and that he was permanently disabled to the extent of fifteen per cent, of total disability. The physicians, as is usual in such cases, gave varying estimates of the extent of petitioner’s disability. We do not understand that it is the prosecutor’s contention that if the petitioner was injured to the extent found by the commissioner, and such injury was the result of an accident which arose out of and in the course of petitioner’s employment, the award is excessive. If so, it is devoid of merit.

The judgment brought up for review will therefore be affirmed, with costs.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, EX REL. JAMES J. TROY, RELATOR, v. J. VINCENT BARNITT, PROSECUTOR OF THE PLEAS OF PASSAIC COUNTY, AND NATHANIEL KENT, SUCCESSOR IN OFFICE, RESPONDENTS.
    Submitted October 14, 1932
    Decided March 31, 1933.
    Before Justices Pabker, Lloyd and Heher.
    Por the relator, M. Metz Cohn and Minium & Weinberger.

    Por the respondents, William B. Gourley and John D. Masierton.

   Per Curiam.

This rule directs respondents to show cause why a peremptory or alternative writ of mandamus should not be issued, commanding the prosecutor of the pleas of Passaic county to appoint the relator to the position of county detective.

The relator, an honorably discharged soldier who has a record of disability incurred in the line of duty in the war between the United States and Germany, and its allies, passed a civil service examination for the mentioned position. He was classified as a disabled veteran by the civil service commission, and given first place on the eligible list. Two others, John C. Cluney and James B. Trueman, likewise disabled veterans, were given second and third places, respectively. The latter two were appointed to fill the vacancies in the county’s staff of detectives, while the relator was ignored. He asserts the right to preference under the following provision of chapter 349 of the laws of 1929 (Pamph. L. 1929, p. 784) : “If more than one soldier, sailor, marine or nurse as aforesaid, pass such examination, and is placed upon the eligible list, then the preference for any such vacancy and position shall be given in accordance with the results of the examination.”

This act provides, however, that to be entitled to such preference the claimant “shall possess the business capacity necessary to discharge the duties of the particular position involved.” The prosecutor of the pleas found that the relator did not possess the requisite business capacity. There was evidence that supports this finding.

This case is controlled by the somewhat similar case of Edell v. McDermott, 11 N. J. Mis. R. 272. The office of the writ of mandamus when directed to a public officer, is to compel him to do something that he is required by law to do, and has failed or refused to do, rather than compel him to do in a different way what he has already done, Newark v. Lewis, 82 N. J. L. 279 (at pp. 281, 282); 81 Atl. Rep. 1072.

If he is vested by law with discretionary power or with the jurisdiction to decide questions of law, or to ascertain matters of fact, the court will not by proceedings by mandamus usurp the power to dictate how the discretion shall be exercised, or to decide what conclusions of law or of fact shall be reached. Davisons. Patterson, 94 N. J. L. 338 (at p. 341); 110 Atl. Rep. 827. Mandamus should not issue unless the legal right clearly appears.

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


text:
    WASHINGTON ASSOCIATION OF NEW JERSEY, RELATOR, v. ALBERT C. MIDDLETON, AS TREASURER OF THE STATE OF NEW JERSEY, ET AL., RESPONDENTS.
    Argued October 5, 1932
    Decided April 5, 1933.
    Before Brogan, Chirp Justice, and Justices Trenchard and Case.
    For the relator, Frank Bergen.

    For the respondents, William A. Stevens, attorney-general.
   Per Curiam.

This is a rule to show cause why a mandamus should not issue commanding the treasurer and comptroller of the state to pay to the relator the sum of $2,500 alleged to be due on April 1st, 1932.

A sufficient statement of the facts for present purposes is as follows:

In 1874, by Pamph. L. 1874, p. 1147, the relator was incorporated, and by section 7 of that act it was provided:

“7. And be it enacted, that so long as the building known as the Washington headquarters shall be open to the public free of charge, at all proper times; and so long as it shall be held as an historical building, within which all the people of New Jersey may deposit articles of interest connected with the men and events of our revolutionary struggle, the treasurer of this state shall pay to the president or treasurer of the Washington Association on the first days of April and November of each and every year, the sum of twelve hundred and fifty dollars, to be used by the trustees for the care, maintenance and perpetuation of the headquarters, and the trustees shall render to the governor of this state on the first day of December, each year, an account of their expenditures made from the funds thus appropriated.”

The relator kept and still keeps the headquarters open to the public, free of charge, in which all the people of the state may deposit articles of interest connected with the men and events of the revolutionary struggle; and since its incorporation, in addition to its original holdings, the relator has purchased three tracts of adjoining lands and has erected additional buildings.

Payments under section 7 of the above mentioned act were made until April, 1932.

By chapter 46 of the laws of 1931 (approved April 6th) the charter of the relator was amended, and, among other things, section 7 was re-enacted in its entirety with one exception, which exception was that the sum of $2,500 was increased to $5,000, semi-annual payments of $2,500 each to be made on the first days of April and November of each year. However, during the same session, in 1931, the legislature, in the annual Appropriation act, approved April 28th, 1931, in Item K-21, appropriated to the association only the sum of $2,500.

On December 3d, 1931, the treasurer of the state paid to the treasurer of the Washington Association the sum of $2,500. Therefore, when that payment was made the appropriation for the fiscal year of 1931-32 was exhausted and there remained in the hands of the treasurer no funds out of which a second payment could be made. The relator, in April, 1932, demanded payment of $2,500 from the state treasurer. The demand of the relator was refused for the reason as stated in relator’s petition, namely, that payment could not be made in excess of available appropriated funds.

Perhaps it should also be noted that it appears that the relator had issued seven hundred and ninety-five shares of its capital stock, and pursuant to the provision of section 4 of its charter, two hundred and eighty-eight of such shares have been forfeited to the state.

Several interesting and fairly debatable questions have been argued which we find unnecessary to discuss, and, in the circumstances, unwise to determine in this proceeding, because of the view we take respecting the point made by the respondents that mandamus does not lie againts the treasurer and comptroller under the circumstances of this case.

As we have seen it appeared to those state officials that the amount specified to be paid in the 1931 amendment to the charter was withdrawn by the annual Appropriation act of that year (chapter 382, laws of 1931) effective July 1st. That annual Appropriation act contains appropriation of $2,500 only to the relator, and in section 3, at page 1206, provides that no money shall be drawn from the treasury except for objects specifically set forth in the act, except as to certain other sums of money mentioned in that section, none of which are applicable to the relator. It seems clear, therefore, that the treasurer and comptroller were justified in giving effect to that annual Appropriation act. The question whether it was competent for the legislature to thus in effect withdraw the order for payments contained in the earlier act of 1931, we think does not call for decision on this motion for mandamus. In the case of Mooney v. Edwards, 51 N. J. L. 479; 17 Atl. Rep. 973, Mr. Justice Garrison, in referring to those cases where mandamus proceedings will lie, said: “Stated in a general way, the distinction is, that the writ of mandamus will issue to compel performance, in a specified manner of ministerial duties, so plain in point of law and so clear in matter of fact that no element of discretion is left as to the precise mode of their performance, but that as to all acts or duties depending upon a jurisdiction to decide questions of law or to ascertain matters of fact, on the part of the officer or body at whose hands their performance is required, mandamus will not lie."

Upon the whole it seems clear that mandamus does not lie against the treasurer and comptroller under the circumstances of this case. The treasurer could not make payment of an amount in excess of available appropriated funds at the time the demand was made. Article 4, section 6, paragraph 2 of the constitution of the State of New Jersey, reads: “No money shall be drawn from the treasury hut for appropriations made by law.” Pursuant to the above constitutional limitation the legislature passed an act entitled “An act concerning appropriation of money” (Pamph. L. 1895, p. 788), section 1 of which reads: “1. That from and after the first day of November, eighteen hundred and ninety-five, no money shall be drawn from the treasury unless it shall have been explicitly appropriated by the annual Appropriation act to the purpose for which it is drawn.” The power of a subsequent legislature to disregard that statute, if it chose so to do, is not here involved, for it is plain that there was nothing in the 1931 legislation indicating any intention of direct, indirect or pro tanto repeal of the 1895 statute. Since the treasurer was without funds to satisfy the demand made by the relator, he could not make payment of the amount requested. Mandamus only lies to compel the performance of a duty and such duty must exist at the time of the application for the writ. The duty to be enforced must not only be a ministerial one, but it must be a duty which exists at the time when application for mandamus is made, and the obligation must he mandatory and final. Mooney v. Edwards, supra. The writ, under no circumstances, will issue to compel performance of an act forbidden by law. Edward C. Jones Co. v. Guttenberg, 66 N. J. L. 58; 48 Atl. Rep. 537; Drew v. Flynn, 83 N. J. L. 1; 84 Atl. Rep. 1061; McAllister v. Atlantic City, 90 N. J. L. 93; 100 Atl. Rep. 198. Manifestly, since the treasurer of a state is not authorized to pay a claim out of the general fund of the state because of the failure or refusal of the legislature of the state to provide for the payment of such claim by an appropriation, and since the constitution and the statute prohibit such pajfment of money, except by an appropriation made by law, mandamus is not the appropriate remedy under the circumstances; and, hence, the rule to show cause must he discharged.

If an appeal is desired counsel are given permission to so mold the pleadings that an appeal may be taken.


text:
    NORTH JERSEY FOUNDRY COMPANY, PROSECUTOR, v. JOSEPH MACCHIARELLI, RESPONDENT.
    Submitted October term, 1932
    Decided April 11, 1933.
    Before Justices Parker, Lloyd and Heher.
    For the prosecutor, James M. Dunn.

    For the respondent, Salvatore D. Viviano.

   Per Curiam.

This certiorari brings up for review a judgment entered in the workmen’s compensation bureau in favor of the petitioner. The writ was allowed on March 5th, 1932, and was directed to the compensation bureau. It commanded the certification and return of a determination and judgment entered on May 5th, 1931. The return shows the entry of a determination and rule for judgment on Majr 5th, 1931, and a supplementary determination on June 12th, 1931. The transcript of the testimony was also returned, and shows that the testimony of one of the witnesses was taken on December 22d, 1931. Chapter 388 of the laws of 1931 (Pamph. L. 1931, p. 1217), providing that the judgment of the compensation bureau shall be reviewable by certiorari only, took effect on June 30th, 1931, while the superseding act, chapter 25 of the laws of 1932 (Pamph. L. 1932, p. 38), providing for an appeal to the Court of Common Pleas, became effective March 21st, 1932. The right of the prosecutor to have the judgment reviewed by certiorari direct to the compensation bureau is not challenged by the respondent, and that question therefore need not be considered. The sole ground of attack is that the judgment is contrary to the weight of the evidence.

The prosecutor employed respondent as the operator of a foundry air gun. The air gun weighed about eighty pounds. There was a chisel attached. Respondent claimed that on August 21st, 1930, while using this instrument to level a piece of cast iron, the chisel slipped, and thereby he lost his firm control of the instrument, and in an effort to prevent injury to a fellow-employe he wrenched his left wrist. The condition which respondent insisted was the immediate result, was diagnosed as a sprain by the physicians. He had been employed in this capacity for two or three months prior to the date of the accident, and it is the prosecutor’s contention that the condition of which he complained was due “to the constant vibration of the air gun,” and not to an accident which arose out of and in the course of the employment.

Counsel relies upon the rule laid down by Mr. Justice Swayze in Liondale Bleach, Dye and Paint Works v. Riker, 85 N. J. L. 426; 89 Atl. Rep. 929, that where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no “injury by accident” within the meaning of the Workmen’s Compensation act.

The evidence, in our judgment, supports the conclusion of the deputy commissioner that respondent’s condition was the result of an accident suffered' while he was using the air gun at the stated time. He made immediate report of the accident to his superior, who applied iodine and bandaged the wrist, and directed him to report for treatment at a hospital. The wrist was then in a swollen condition. One of the prosecutor’s physicians, Dr. Irving, diagnosed the condition as a sprain of the wrist. Another physician, Dr. Ciccone, made the same diagnosis. Prosecutor argues that the respondent did not claim that he had suffered an accident, but the hospital record, made under the supervision of one of the prosecutor’s physicians, Dr. Irving, states that the respondent “hurt wrist while trying to prevent piece of machinery from slipping.” One of the prosecutor’s physicians, Dr. Hollingsworth, diagnosed the condition as arthritis, but there was evidence that this condition, if it existed, was inactive, and there was therefore a basis for the inference that it was aggravated and rendered active by the injury resulting from the accident.

In our opinion the conclusion of the commissioner rests upon a basis of rational inference, tantamount to legal proof of the fact. Manziano v. Public Service Gas Co., 92 N. J. L. 322; 105 Atl. Rep. 484. That being the case the judgment should not be disturbed.

The judgment of the compensation bureau will therefore bo affirmed, with costs.


text:
    THE STATE OF NEW JERSEY, LLOYD WILLIAMS, RELATOR, v. BERNARD GODFREY, RESPONDENT.
    Submitted October term, 1932
    Decided April 15, 1933.
    Before Justices Parker, Lloyd and IIeher.
    Por the rule, William I. Garrison.

      Contra, Thompson & Hanstein.

   Per Curiam.

The so-called relator, Lloyd Williams, filed a petition for leave to file an - information in the nature of a writ of quo warranto, to be exhibited against the respondent,. Bernard Godfrey, to show by what authority he claims to hold the office of township committeeman of the township of Egg Harbor, in the county of Atlantic, and a rule was entered directing the respondent to show cause why such information should not issue, and why leave to file the same should not be granted.

The case made by the petition is that the petitioner, Williams, at the general election held in the township of Egg Harbor, in November, 1930, was elected to the office of township committeeman; that he duly qualified, and performed the duties of the office until June 6th, 1932, when the township committee adopted a resolution removing him from office, and elected the respondent to fill the vacancy thereby resulting; and that said respondent has ever since usurped, intruded into and unlawfully held and exercised said office to the exclusion of the petitioner. The resolution vacated the office held by petitioner because of his alleged non-residence. Testimony was taken pursuant to the authority granted by the rule to show cause. Petitioner insisted that the finding of non-residence, upon which the resolution vacating the office was predicated, was not based upon fact; and that he was then, and had been during his term of office, a resident of the township.

Counsel for petitioner contends (1) that the township committee had no authority or right to declare the office vacant; and (2) that if it did have such authority, the resolution was illegal and void, in that the proceedings were without notice to the petitioner, who was not afforded an opportunity to be heard in opposition thereto, and that the. finding of non-residence was not based upon fact, and that therefore he “still remains a member of the township committee, and has never ceased to be such officer, and therefore the said Bernard Godfrey is an intruder having no right to the said office.”

Petitioner apparently proceeded under section 1 of the Quo Warranto act. 3 Comp. Stat., p. 4210. The cause was entitled in the name of the State of New Jersey, and leave to file the information is sought. Section 4 of the act provides that upon allegation that “any person usurps, intrudes into or unlawfully holds or executes any municipal office, * * * any citizen of this state, who believes himself lawfully entitled to such office, may, as relator, file in the office of the clerk of the Supreme Court an information in the nature of a quo warranto, against such person * *

In the situation here existing, where both parties are claiming title to a municipal office, petitioner’s remedy is under section 4 of the act, and under this section leave to file an information is not necessary. Section 1 applies only to cases where the relator, as a taxpayer and resident, seeks to conserve the public good and convenience. McGuire v. De Muro, 98 N. J. L. 684 (at p. 688); 121 Atl. Rep. 739; Anderson v. Myers, 77 N. J. L. 186; 71 Atl. Rep. 139.

The application will therefore be denied, with costs, but without prejudice to the filing of an information under section 4.


author: Lawrence, C. C. J.

text:
    JOHN A. G. GRANT, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF OSWALD O. SLADE, DECEASED, PLAINTIFF, v. FRANK E. GROOM, DEFENDANT.
    Decided April 12, 1933.
    For the rule, Coult, Satz & Tomlinson.

    Opposed, James Mercer Davis.

   Lawrence, C. C. J.

This was a death case tried before me and a jury at the Ocean Circuit. The suit was instituted, under the statute, in behalf of the widow of Oswald O. Slade, who was killed in a collision between the motorcycle on which he was riding and an automobile driven by defendant. The jury found that death was due to the negligence of the latter. It was not seriously argued under the rule taken out by defendant that the verdict was contrary to the weight of the evidence in this regard. It was urged, however, that the award of $2,000 was excessive.

The evidence disclosed that Slade when eighteen years of age married a young girl of fifteen; that they lived together a few months in Florida and that she then returned to the home of her parents; later they were together a month or so in New York where he had obtained employment. She again went back to her parents and it did hot appear that they had lived together at any time thereafter. There was no child of the marriage. It was admitted that a year and a half after young Slade’s death she had remarried and that she was living with the second husband at the time of the trial. Shé did not attend it, owing, it was said, to illness, with the result that there was no proof offered as to the financial contribution deceased had made to her, other than the presumption of maintenance while they were living together, nor was there any proof that he had provided for her otherwise or that any steps had been taken to require him to provide for her. The inference is that the separation was voluntary. At the time of his death he was earning $30 a week as a clerk, and there was testimony to the effect that he had averaged that sum during the preceding year, although before that it appeared that he had been irregularly employed. While this may have accounted in part for the separation and the return of the wife to her parents, it was stated at the trial that it was really due to her desire to go back to school and graduate, which she had done.

On the argument of the rule, counsel for defendant insisted that the verdict was excessive, because the jury had failed to consider the fact that the proof of financial support by the husband was slight; that the parties themselves had not regarded the status of husband and wife as involving any real obligation in that respect, as evidenced by their apparently voluntary separation and the absence of testimony of any affirmative action by or in behalf of the wife to require the husband to provide fox her, together with the further fact that after his death she had remarried. Citing Klemann v. Atlantic City Railroad Co. et al., 5 N. J. Mis. R. 133; 135 Atl. Rep. 664, a case, under the Death act, arising out of an accident in which two women were killed, and in which the court said that “we cannot shut our eyes to the probability that each surviving husband may remarry and thus obtain pecuniary benefits akin to those lost through death of the respective wives,” and the awards were reduced.

Counsel for plaintiff, however, relied on Chicago and E. I. R. R. Co. v. Driscoll, 69 N. E. Rep. 620 (an Illinois case), in which it was held that in an action by a wife to recover for the wrongful killing of her husband, the remarriage of the wife cannot be considered in mitigation of damages. Also Philpott v. Pennsylvania Railroad Co., 175 Pa. 570; 34 Atl. Rep. 856, resting on the text in 8 Am. & Eng. Encycl L. (2d ed.) 937; likewise 17 Corp. Jur. 1343, § 226, stating that “the rule is general, although not universal, that in an action by a husband for the death of his wife, or by a widow for the death of her husband, the subsequent marriage of the survivor is not to be considered in mitigation of damages,” nor, it seems, can a separation be shown.

In Muradian v. Paganessi, 3 N. J. Mis. R. 320; 128 Atl. Rep. 158, it was held error to admit evidence of the amount of the insurance collected by the next of kin on the life of the deceased; while in Hexamer v. Public Service Railway Co., 4 N. J. Mis. R. 184; 132 Atl. Rep. 310, the widow’s inheritance from the husband’s estate, it was said, could not be considered as lessening the amount of her pecuniary loss, extracting from the authorities cited the rule, generally applicable to suits sounding in tort, that “when an action is brought against a wrong-doer, he is not entitled to have the damages consequent upon the commission of his wrongful act reduced by proving that the plaintiff has received, compensation for the loss from a collateral source wholly _ independent of himself.”

While trial judges in charging juries as to the admeasurement of damages in death cases depend upon the interpretation of the rule as given in Hackney v. Delaware and Atlantic Telephone Co., 69 N. J. L. 337; 55 Atl. Rep. 252, by which the jury is permitted to consider the various possibilities there indicated, such as financial reverses, the death of the intestate by course of nature shortly after the accident, and death of the wife before the intestate had he lived, to which may now be added, seemingly, although not definitely stated, the probable remarriage of the surviving spouse (Klemann v. Atlantic City Railroad Co., supra), particularly, it appears, where young people were involved, it is recognized that the application of the rule, so interpreted, is not easy, since it is also said that the jury may weigh not only probabilities but possibilities and to a large extent form their estimate of damages from conjectures and uncertainties, in order to determine what sum will compensate for the “deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased.” Harris v. Johnson, 6 N. J. Mis. R. 700; 142 Atl. Rep. 647. It may thus be said that the matter rests largely within the province of the jury. Unless, therefore, the action of the body appears clearly arbitrary and the sum awarded manifestly excessive, the reviewing court will not disturb the verdict. In the present case, considering the age of deceased, at the time of his death, and that of his widow, with the average life expectancy of each, and his potential duty to provide for her, had he not been killed, it does not appear that the verdict rendered by the jury offends in either aspect. It can hardly be said that an award of $2,000 in a death case, even such as this, is so clearly excessive as to require reduction. The rule to show cause will be discharged.


author: Ackerson, S. C. C.

text:
    GEORGE PFORR, PLAINTIFF, v. AMERICAN CAKE COMPANY AND STANDARD OIL COMPANY OF NEW JERSEY, DEFENDANTS.
    Decided April 20, 1933.
    For the plaintiff, Garey & Lane.

    For the defendants', Robert Gordon.

   Ackerson, S. C. C.

This matter comes before me upon a motion by Frank Gordon and Frank Schapiro, partners trading as the American Cake Company, for an order to dismiss the summons and complaint as to the defendant “American Cake Company,” and to set aside the service thereof upon the ground that the “American Cake Company” is merely a trading name used by the said Frank Gordon and Frank Schapiro, as partners, and as such has no legal status and cannot, therefore, be a proper legal party to this suit.

Unfortunately, the question thus propounded cannot be decided on this motion, for the reason that the matter is presented upon the ex parte affidavits of the aforesaid individuals as partners which is not the proper practice in such cases.

As was pointed out by the Supreme Court in Baldwin v. Flagg, 43 N. J. L. 495, the proper practice to support motions (or, rather, as they should be, rules to show cause) of this character in courts of law, as by depositions taken under rule, upon notice, or in accordance with the rules of the Supreme Court, and not by ex parte affidavits, as was done in this case. Missell v. Hayes, 86 Id. 348 (at p. 351); 91 Atl. Rep. 322.

The plaintiff has submitted no affidavits, but this does not help the situation, because the ex parte affidavits which are before me cannot be considered for the reason above stated.

The present motion will, therefore, be denied without costs, and without prejudice to the right of the moving parties to bring the matter before the court upon rule to show cause and depositions taken thereunder upon notice pursuant to the rules of the Supreme Court.


author: Mountain, C. C. J.

text:
    GENERAL CONTRACT PURCHASE CORPORATION, A CORPORATION, PLAINTIFF, v. IDA BRONSTEIN, DEFENDANT.
    Decided February 3, 1933.
    Por the plaintiff, Green ■& Green (Ira J. Katchen).

    Por the defendant, Berlin <& Berlin.

   Mountain, C. C. J.

This case comes before me on an agreed state of facts. It is an action upon an insolvent bond. The condition of the bond is that one Samual Bronstein “shall appear before the next Court of Common Pleas to be holden in Union county and petition the said court for the benefit of the insolvent laws of this state and will, in all things, comply with the requirements of said insolvent laws, and shall appear in person at every subsequent court until he shall be duly discharged as an insolvent debtor, and, if refused a discharge, surrender himself immediately thereafter to the sheriff or keeper of the jail of said county, there to remain until discharged by due course of law.” The breach alleged in the said complaint is that the said Bronstein did not appear before the Court of Common Pleas of Union county on October 11th, 1932, which was the next Court of Common Pleas following the execution of the bond, and that he failed on that day to petition the said court for the benefit of the insolvent laws; that he failed to properly publish or have served on the plaintiff notice in writing of the time and place so appointed by the court.

It is admitted that Samuel Bronstein did not appear before the Court of Common Pleas next holden in Union county after the execution of his bond and petition that court for the benefit of the insolvent laws.

The bond was executed May 20th, 1932.

On July 19th, 1932, he appeared before the Union County Court of Common Pleas and petitioned it for the benefit of the insolvent laws. September 30th was set as the date of the hearing on the petition. When that day arrived it was found that the plaintiff had had no notice of this hearing, as is required by law. He then made application to the judge to continue the hearing until October 7th. On October 7th he applied for an adjournment of the hearing for the purpose of filing an new petition and reserving notice to all creditors. The court signed such an order and fixed the date of hearing as of November 18th, 1932, on which date the presiding judge dismissed the petition of the insolvent debtor for want of jurisdiction and he was remanded in the custody of the sheriff. This entire course of procedure evidences a substitution for the method provided by the legislature and exacted by the bond.

The history of the insolvency laws of this state seem to-be rooted in two^ separate lines of legislation.

To consider them separately we first find that on March 18th, 1795, the legislature passed “An act for the relief of persons in prison for debt.” The benefit of this act was limited to those who were in actual confinement, and it was provided among other things that such a person could present a -petition to the inferior Court of Common Pleas and that then a time of hearing would be fixed, before which time, however, notice had to be given to the interested parties. At the time of hearing the petitioner was required to tender a just and true account of his possessions, and submit to an examination by the court. If the court and the creditors decided that the conduct of the debtor had been fair, upright and just, then assignees were appointed and the debtor was released by the sheriff. Under certain circumstances a jury trial could be had. This section is section 1 of our present Debtor’s act. 2 Comp. Stat., p. 2824. The act of 1795 may be found in Pennington's Revision of the Laws of the State of New Jersey, 1821, p. 216.

In 1799 in the Practice act passed by the legislature (Revision of 1821, page 426), the Courts of Common Pleas were required to mark and lay out the bounds and rules of the prison in their several counties not exceeding three acres of land, and any person committed in a civil action by giving bond to the sheriff had the liberty to walk therein. If he went beyond the lines which were laid out, his bond was forfeited. So long as the latter was not the case and he kept within proper confines, he was entitled to apply for the benefit of the insolvent laws under the first section of the act of 1795.

It will be observed that all this legislation contemplated rendering assistance to a person in actual confinement, whose freedom was only obtained when he had followed the procedure laid down.

In an act approved April 16th, 1846, entitled “An act for the relief of persons in prison on civil process” (Rev. Stat. 1847), the legislature provided “that any person who now is, or who hereafter shall be in actual confinement for debt or damages in any jail of this state, and is willing to deliver up to his creditor or creditors all his estate, both real and personal, towards 'the payment of his creditor or creditors, shall have leave to present a petition to the Court of Common Pleas in and for the county wherein he is so imprisoned, at any stated term thereof,” &c.

Meanwhile another legislative act had been passed which gave immediate freedom to the confined debtor upon the filing of a bond. This law was enacted in 1830 (Pamph. L. 1830, p. 299), and provided that a person arrested upon civil process might give a bond to the plaintiff in the action, conditioned that he would appear before the next Court of Common Pleas and petition the court for the benefit of the insolvent laws. The second section of that act provided that the person giving such a bond should be entitled to make an application for his discharge as fully as if he were actually confined in the common jail of the county. Sections 1 and 2 of the act of 1830 have become sections 2 and 3 of the present Insolvent Debtor’s act. 2 Comp. Stat., p. 2824.

It would appear until the Revision of 1877 that the two methods of procedure alluded to were kept separate, but in that revision they were thrown together so that to-day on the one hand we find that the legislature has set forth the precise conditions of the bond which shall be given by a debtor who seeks his temporary freedom, and on the other hand we find a piece of legislation which provides among other things that he may present a petition to the Court of Common Pleas at any stated term thereof, &c., &c.

The history of this legislation has been set out by Mr. Justice Kalisch in the case of Koch v. Burpo, 91 N. J. L. 116; 102 Atl. Rep. 522.

In the case at bar the defendant urges that he followed the latter piece of legislation and that it was unnecessary, in view of the filing of his petition and certain orders signed by the judge, to appear at the next term of court as provided by the bond. It cannot be contended that this provision in the bond is of no consequence. In the case of Koch v. Costello, 93 N. J. L. 367; 108 Atl. Rep. 225, Chancellor Walker said: “Merely appearing in the Common Please Court is not a compliance with the condition to appear. The debtor is required to do- more; he must appear for a purpose. He is required, by himself or counsel, to crave audience of the court and announce the purpose of his presence, and must also in all things required of him comply with the insolvent laws. That was the undertaking in his bond.”

In that case, too, recovery was allowed on a bond given in persuance of the statute, though not in accordance therewith, as a voluntary bond, &c.

To review the situation, we see two legislative vines which grew up and were apparently and finally grafted to one stout trunk by the revision of our laws made in 1877. The defendant seeks to take the benefit from the fruition of each of these vines before the grafting took place. She has filed a bond with certain definite conditions after which she has turned to the other vine and plucked those fruits most favorable to her taste. The former is irreconcilable with the latter. • She took advantage of the first to' free a prisoner; of the second, to show that having freed him under a solemn premise under seal, she could escape the terms of her contract because of a method of procedure prescribed by the legislature in violation of the terms of the bond. If her argument was to prevail the legislature would have impaired the obligations of the very contract upon which it insisted and whose terms it enumerated. It may be assumed that the legislature never meant to prescribe the terms of a bond on the one hand and on the other to enact a system of procedure which would destroy it.

The plaintiff is entitled to judgment against the defendant in the sum of $1,265.48, with interest from April 1st, 1932.


text:
    Essex County Circuit Court.
    IN RE APPEAL OF VARIOUS PROPERTY OWNERS TO BENEFIT ASSESSMENTS FOR WIDENING MULBERRY STREET, NEWARK.
    Decided April 19, 1933.

      J. Henry Harrison (of Harrison & Roche), Abram A. Golden, Ralph Lum (of Lum, Tamblyn ds Golyer), Fred F. Greenberg, Joseph 8. Zemel, Lloyd G. Beatty (of Egner & Beatty), George J. II. Werner, Mason Kessler (of Kessler & Kessler), Andrew F. Zazzali, Richard J. Gongleton (of McCarler & English), Thomas E. Fitzsimmons, 8ol S. Marder.

   Mountain, C. C. J.

The matter under consideration is the appeal by nineteen property owners of land along Mulberry street in the city of Newark from an assessment for benefits made by the commissioners of assessments for widening the said street. They found no incidental damages.

Some of these property owners have been compensated iu another proceeding for land taken and damage to remaining land.

We are informed that seventy-five per cent, of the benefit has been placed on the city at large and twenty-five per cent, on the property holders. With the exception of Boudinot street, assessments extended, in the opinion of the board, to all properties on side streets within one hundred feet of Mulberry street. The vanishing point of the benefit was supposed to be reached at that distance.

Mulberry street was formerly sixty-six feet wide and is now one hundred and one feet wide.

In considering the benefit the board made three zones. It placed what it called a general assessment of $200 a foot south of Raymond Boulevard; at $150 a foot from Raymond Boulevard to Park street; and $100 a foot north of Park street. This is for a widened street.

Some of the factors considered as attributing a special benefit to the land were new frdntage, plottage, corner influence, visibility, accessibility, increased traffic, decreased congestion, light and air. Recognizing economic conditions the commission adopted a depression factor of sixty-seven and two-tenths per cent, which it applied to benefits and not to land value. This factor, as used, admits a depreciation of thirty-three and one-third per cent, in real estate since 1929.

The owner of a tract of land fronting on a highway, who has had his frontage taken by condemnation proceedings has been compensated for the land taken and for the damage resulting to the remaining land. The payment for the land taken is a pecuniary equivalent for it. Compensation for damage to remaining land is a pecuniary equivalent for such damage. The owner who has thus been paid has lost no value. Has any benefit been conferred upon the remaining land which he still owns, and which once having the character of back land, now borders the highway, if so, what is that beneficial advantage and what factors may be considered to determine it?

1. It may be said that a special benefit or new value is conferred upon land which had no frontage, but which now has that advantage by reason of condemnation proceedings which has moved away the front strip, provided it is shown that the highway thus opened adds to the value of this tract by giving it a new beneficial frontage. It arises as one witness said “from rear land being put in front.” It is synonymous with accessibility.

2. Plottage: that is, capacity of development attributable to a tract of considerable size. It is value in a parcel of land for some larger use than is generally considered in a business locality. For instance: use for a theatre or hotel.

3. Corner influence.

4. Visibility: that is, how a piece of land can be seen or viewed from the neighborhood. A piece that is plainly visible for some distance may be used to advantage for sign or other advertising.

5. Accessibility.

6. Increased traffic. This may or may not be a benefit, depending upon circumstances. If it is too great, it may amount to a practical suspension of all travel across the street except at the corners. If it is a loitering, business traffic, it may be helpful.

7. Decreased congestion. This too depends upon circumstances. Congestion may make business for a particular neighborhood. The congestion may exist because business is there.

8. Effects of widening. This depends on the particular street and neighborhood. In some places the very intimacy of the store windows which display their friendly wares for sale across a narrow street, extend an invitation to the pedestrian to cross and recross, to gaze and purchase. Who would widen Maiden lane or Nassau streets in New York City? Upon reflection it is obvious that a street could be so widened that communication from one side to the other would be impractical and that crossing would be hazardous except where regulated.

The question is, whether it has been satisfactorily shown, that considering these factors and a few minor ones, the commissioners employed an incorrect method, or, in particular instances, reached results inherently unfair, irrational or inequitable.

The report of assessments according to benefits bears date December 1st, 1932, and shows that by ordinance adopted May 14th, 1929, the board of commissioners of the city of Newark determined that Mulberry street should be opened and widened from a point about twenty-seven feet south of the southerly line of Market street northerly to Aronson Square (formerly Center street), and that said board later ascertained and declared the whole amount of the costs and expenses paid and incurred by the city of Newark in the Mulberry street matter to be the sum of $2,489,457.33. The report states the amount assessed to be the sum of $583,868, leaving the balance of the whole amount of the costs and expenses, exceeding the amount of the benefits, being the sum of $1,905,589.33 to be paid by the city of Newark. The report declares that the assessments are laid upon all the owners of all the lands and real estate peculiarly benefited, to the amount of the peculiar benefits conferred on said owners of said lands and real estate by said improvement, and that no others than the owners of said lands and real estate so assessed are peculiarly benefited by the said improvement.

There are some general objections to the actions of the commissioners which it is convenient to consider at this point.

One of these objections is that the city of Newark enacted its ordinance providing for an improvement consisting of the widening of Mulberry street from Market street to Aron-son Square, referred to.as parts one to eleven, inclusive, on December 29th, 1928; that on April 29th, 1931, a second ordinance was adopted by the commissioners ol the city of Newark providing for the widening of Mulberry street from Market street to Mechanic street, referred to as an independent improvement thirty-five feet in width; that on August 19th, 1931, the city adopted an ordinance repealing the ordinance of April 29th, 1931, and abandoned condemnation of the property required under said ordinance; that the entire improvement consisted of twelve parts and that the commissioners of the city of Newark had no authority to abandon less than the entire improvement and that the existing assessment is premature.

On an appeal from such an assessment the Circuit Court is to determine whether the action of the commissioners has resulted in a just and fair assessment or award. Pamph. L. 1925, p. 242. This limitation makes it improper for the court to inquire into the legality of the assessment. For the purposes of this appeal, it is assumed that the commissioners of assessments observed the statutory requirements, and failure to do so might have been tested by cerliorari.

There are other general objections which, for the same reason, will not be considered. In this group are allegations that the proceedings are unconstitutional; that one or more of the objectors had no notice of the hearings; that the methods employed by the commissioners were improper and irregular; that the report was prematurely made before the completion of the work, &e.

One of the general objections was to the effect that the area benefited by the opening and widening of Mulberry street was more extensive than the area assessed by the commissioners, or, to put it in another way, that the commissioners failed to assess for the benefits owners of property who actually received them. As has been said, the board of commissioners considered that the vanishing points of the benefits was reached on lateral street at a distance of one hundred feet from Mulberry street. In at least one instance, it was proved that one of the side streets was a one way street with traffic flowing into Mulberry street. It is not inconceivable that the widening of an arterial thoroughfare may, in some cases, be more beneficial to business on the side streets than to business on the larger highway. The determination of the area of assessment is one of the questions submitted by law to the consideration of the commissioners. Their decision is to stand unless there be very convincing evidence to the contrary. There is nothing irrational or inequitable in the zone of assessments established by the commissioners and this objection will not be sustained.

In the many hearings frequent fault was found by the objectors to the methods employed by the commissioners of assessments in determining the benefits. Benefit is the increment of value to the lands effected by the improvement.

In the case of Mangles v. Chosen Freeholders, 55 N. J. L. 88 (at p. 92); 25 Atl. Rep. 322, Mr. Justice Dixon said: “There is, however, a possibility of benefit to accrue from certain public uses for which land is taken, like the opening of highways, which should not be considered, for two reasons: First, because this benefit is to arise, if at all, in the indefinite future, while the compensation must be such as is just, at the time of the taking; second, because it is so uncertain in character as to be incapable of present estimation. Such benefit is that which may spring from the growth of population, if it should be attracted by the public improvement for which the land is taken, and from similar sources. It is usually styled general benefit, because it affects the whole community or neighborhood. But any benefit, which accompanies the act of taking the land for the contemplated use and which admits of reasonable computation, may enter into the award.”

The construction, alteration' or widening of a highway gives rise to no presumption of benefits. They must be proved as any facts.

It was urged by the commissioners that the widened street had relieved congestion, had provided for vehicular traffic to an extent where its capacity was only partially taxed, had increased business, and had resulted in better buildings or building fronts being constructed. There were certain other influences that should not be considered. They existed whether or not the street had been widened, such as the new Pennsylvania Station, Lefcourt Building, Federal Trust Building, Center Market and Raymond Bouleyard.

On the other hand, the objectors insisted that parts, at least, of the widened area have been blighted. That before the widening the street was sufficiently narrow for intimate business on either side, and that now in its widened condition, it affords only an artery for swift vehicular traffic which does not loiter to bargain, sell or buy. The objectors insist that the number of pedestrians using the street has been reduced. However, this may be accounted for by the collapse of the Center Market, and the removal of many of the merchants from, that market to the new market on Washington street. In any event, it is apparent that the commissioners considered all of these factors.

While the method of the commisioners is approved, it is apparent that in any calculation they had to make to ascertain a benefit, there had to be some figure which represented a starting point, some base value, and if that value was wrong, or any later figure, the entire calculation would of course be incorrect.

One of the general objections is to the effect that the special benefits would be less if a heavier assessment had been paid by the city on its property and if a contract had not been made with the Public Service Company whereby it, vacated certain land and gave it to the city in return for an agreement by the city that it would not be assessed for benefits. As Judge Adams said in his opinion on the Branford Place widening: “The law appears to be that every landowner has an unqualified right to insist that an assessment against his land is too large and to have it reduced, if he proves it to be absolutely too large, but that he has not an unqualified right to insist that an assessment against his land is only relatively too large, and to have it reduced, if he proves it to be relatively too large. To put it in another way, he cannot have his own assessment cut down because his neighbor’s assessment is smaller than his own, other things being equal; unless the fact that his neighbor’s assessment is smaller than his own, other things beeing equal, has or may have injured him by imposing on his land more than a proper assessment.”

As the Supreme Court said in Righter v. Newark, 45 N. J. L. 104 (at p. 109) : “I think it results that there was inequality in the assessments. But is the prosecutor in a position to complain? Had the whole amount of the expenses been placed upon the property, this unequal assessment would place the prosecutor in a position to attack it successfully, because a proper readjustment would result in relieving him from a portion of his burden. Where, however, a surplus representing the amount of the assessment above the benefits is placed upon the city, another question arises, and that is whether-the inequality results from the insufficient assessment of the other property or the excessive assessment of the property of the prosecutor.

He cannot complain of the inadequate assessment of his neighbor unless the peculiarity affects him. It could affect him only if by placing a proper assessment upon all the property that should be assessed, it would operate to place upon this property all the assessment made against the city, and also place upon this other property a part of the amount assessed against the prosecutor in order to make the assessment an equal one. How, while I think inequality appears, and I may say here that I also think it appears that some unassessed properties which were clearly benefited should have been included, yet I do not see how an increase and extension of the assessment could wipe out the $22,635.18 assessment against the city. I do not think that this result from a proper assessment is contended for or could be reasonably apprehended. The prosecutor’s right to complain must rest upon his contention that his property was assessed more than it was benefited.”

With this case should be read the cases of Raymond v. Rutherford, 55 N. J. L. 441; affirmed, 56 Id. 340; 29 Atl. Rep. 156; Davis v. Newark, 54 N. J. L. 144; 23 Atl. Rep. 276; reversed on another point in 54 N. J. L. 595; 25 Atl. Rep. 336; Humphreys v. Bayonne, 60 N. J. L. 406; 38 Atl. Rep. 761, and Coward v. North Plainfield, 63 N. J. L. 61; 42 Atl. Rep. 805.

Now, how does this affect the situation before us? The Pamph. L. 1917, p. 380, provides that “all assessments levied under this act for any local improvement shall, in each case be, as near as may be, in proportion to the peculiar benefit, advantage or increase in value which the respective lots and parcels of land and real estate shall be deemed to receive by reason of any such improvement, and in no case shall any assessment on any parcel of land exceed in amount such peculiar benefit, advantage or increase in value.”

The assessment will be greater against the city at large if the commissioners, following the mandate of the law, find, as I assume they will, that the amount of benefit assessments against these objectors is too large.

When the expansion of this street was first envisioned by the city commissioners there was a building on the southeast corner of Market street and Mulberry street owned by Fred Ehrenkranz, with a frontage on Mulberry street of twenty-seven and twenty-two hundredths feet, and on Market street seventy-five and forty-two hundredths feet. Next to that building and to the south was a piece of property owned by the Women’s Christian Temperance Union. East of Ehrenkranz’s property was a building owned by Samuel Forster, one of the objectors. After the condemnation proceedings had commenced, the city purchased the Ehrenkranz property and tore the building down. No part of the Forster or Women’s Christian Temperance Union property was appropriated. It is the insistment of the board of commissioners that the building of the Women’s Christian Temperance Union is now on a corner, although the proof is and the fact is, that Market street has been so widened; that north of this building is an open triangle, with the apex at the northwest corner of the Women’s Christian Temperance Union building, and the base line resting on the Forster property. The hypotenuse of this triangle is the line of Market street. The city insists that it cannot use this property except for the purposes for which it was purchased. It is impossible to conclude that the Women’s Christian Temperance Union building is upon a street corner in the ordinary conception of those words and, of course, the same applies to the Forster property, although it is apparent that, both of these properties enjoy corner influences. The width of Mulberry street in front of the Women’s Christian Temperance Union building is, I think, sixty-six feet, and the width of Mulberry street north of Market street is one hundred and one feet where it has been widened. It is claimed by the commissioners that the benefit accruing by these facts which I have recited, amounts to $43,782. This figure, in my opinion, is not only inequitable, but irrational. Commissioner Judge testified on the witness stand that he believed that the value of the Women’s Christian Temperance Union property on Market street before the widening was $2,500 a front foot considering that property an inside piece, and that he believed that its value at the time of the assessment for benefits was $3,500 a front foot because it now had Market street frontage. He added twenty-five per cent, for corner influence. In other words, with the Ehrenkranz property gone and an unpleasant dark triangle of land on its north, the benefit to the Women’s Christian Temperance Union building, entirely derived from corner influence, is alleged to be $43,782. This objection will be sustained, and the report, so far as this objection is concerned, will be sent to the commissioners of assessments for revision.

What has been said about the property of the Women’s Christian Temperance Union also applies to property of Samuel Forster, 246 Market street. The assessment is too high.

The group of properties known as Uos. 248-250 and 252 Market street, and owned by Samuel Silverstein, David Friedman and the S. & S. Investment Company, are beyond the zone of benefits established by the board of assessments and should not be assessed at all. If the apex of the triangle formerly owned by Ehrenkranz is considered the approximate corner, then the zone of lateral benefit would stop at the property of Samuel Silverstein. This should be corrected.

Before Mulberry street was widened the estate of Mary F. Casebolt owned a piece of property on the easterly side of Mulberry street extending from Clinton to Market street, a distance of two hundred and twenty-six and fifty-one hundredths feet. The lot was irregular in shape and after the taking, the estate found itself with a lot having a frontage on Mulberry street of one hundred and nineteen and sixty-eight hundredths feet and a frontage on Clinton street of twenty-three and ten hundredths feet. The southerly side of that lot measures thirty-eight and fifty hundredths feet. As is seen, it is irregular in shape and it is one of the insistments of the objecting estate that the irregularity of the lot lessons its availability for business and indicates a gravitation to a lower use.

The plottage of this lot of land is not of the best. The commissioners were cognizant of this, and gave it consideration.

The same condition exists with regard to 74 Mulberry Street, Incorporated, a lot of land on the northeast corner of Mulberry street and Baymond Boulevard.

A depression factor of sixty-seven and two-tenths per cent, was adopted by the commissioners because they used 1929 values as a starting point of their calculation. It was explained that this factor was a result of their judgment as to the depreciation in property between 1929 and 1932. I am neither in accord with the amount of depreciation as determined by the commissioners, or their method of its use. I think the depreciation was greater. If the alleged benefit had been ascertained in accordance with the method employed by the commissioners, then they were depressing the benefit and not the land value. I think that was a mistake and that its application should have been made to the value of the remaining land with frontage, otherwise the value of the remaining land with frontage was not a true value.

Generally speaking, the method employed by the commissioners in an imaginery case was about as follows:

(1) Entire value of the property before the taking, $400,000.

(2) Price paid for property taken and damages to remaining land, $200,000.

(3) Value of remaining land without frontage, $200,000.

(4) Value of remaining land with frontage, $250,000.

(5) Therefore, $250,000 less $200 equals the benefit.

Of course, in making this computation, the board of commisioners, where necessary, in their judgment, made allowances for plottage, visibility, corners and street influences, depression factor, &c. In my opinion, this method is excellent, and assuming that proper figures are used, it should give the approximate benefit, if any there is.

While item ISTo. 3 above is really not the value of the remaining land without frontage, still I adopt that description because it makes the calculation easy to understand. The back land always had a frontage on the street and its value was determined entirely by its accessibility. Condemnation proceedings makes such land more accessible. There is something phantom like about a benefit. It is elusive. To determine it, one must lay out a view of the present use of the property and the purposes of the owner in regard to its future enjoyment, and consider only what will be the influence on the proposed improvement in the market value of the property. What is it now fairly worth in the market and what will be its value after the improvement is made? Furman Street, 17 Wend. 668. In several briefs I notice that counsel have believed that the general use of the calculations made in the above imaginery case was not consistent with the opinion of Judge Adams in the Clinton street widening. I find no inconsistency. Judge Adams did not disapprove of this method. It may be noted that a benefit may consist of two values: market value and the value of use. The former is more comprehensive and takes account of more elements in the calculation. The inquiry as to use is mainly an inquiry as to accessibility. And too, the commissioners should consider not that a lot is on a street one hundred and one feet wide, but that the lot is on a street thirty-five feet wider than that street upon which it formerly bordered.

When a part of Clinton avenue was widened and a strip of land was taken for such purposes, Judge Adams, who heard the appeal, had much the same situation before him that the court now has. lie said: “I understand that the owners who will be affected by the award of the commissioners are four in number: the estate of William Riker, deceased; E. J. Stillwell, Mary A. Bergfels and James A. English. The tracts belonging to these owners front on one side of Clinton avenue, which it is proposed to widen by taking a strip varying in depth from six to twelve feet or more. The depth of the several tracts, that will remain after this strip lias been taken, will range from one hundred fifty to six hundred and seventy-five feet, or thereabouts.

The question is, in each case, of what advantage will the widening of the avenue deprive the owner.

Obviously, it will deprive the owner of some depth. To what extent this deprivation will be injurious will depend on whether the remainder will be rendered less available, and so less valuable than it was before. This involves a consideration of the contour of the land, the position of buildings, its capability of division into city lots, and other things that will occur to the commissioners.

Obviously again, the widening will not deprive the tract of frontage. It will merely set the frontage back. The tract will still, as before, front on the avenue. Whether the new frontage, considered merely as such, and without regard to depth, will be better or worse than the old frontage, or just as good, will depend upon circumstances. If it will be just as good, the change of frontage, merely as such, will not be an item of damage. If it will be worse, the change of frontage, merely as such, will be an item of damage. If it will be better, that will be a benefit, which the commissioners, in awarding damages, have, under the statute, no power to regard.”

There is another objection which should be examined. It is that of the Catholic Diocese of Newark. So far as that objector may profit by a revision of the report along the lines which I have indicated, it may do so>, but to claim it is entitled to incidental damages and in the amount of $31,000 because it acquired two additional pieces of property-in order to erect its present building, should be ignored by the assessment commissioners.

The court also wishes to point to the assessment for benefits levied on blocks 17, 21 and 23 of section 149, which has been called the Baum and Katzin property. If it is found that any benefit assessments should be levied against this property, the owners of block 23 should have a separate assessment from that of blocks 17 and 21.

The use of the base value of 1929 as a starting point seems entirely rational. Those values were fixed as of that year and damages were paid on that basis, or a little more. In short, the objectors and the city at that time seemed to have regarded them as more or less accurate. The court accepts those values. But, in the subsequent calculations, if any of the other figures are incorrect, it follows that the result will also be inaccurate. The following errors have crept into the calculations:

(1) The depreciation since 1929 is greater than has been allowed.

(2) The benefit allowed in each zone is too large.

(3) The method of using the depression factor should be changed.

This will alter the assessment upon each piece of property returned in the report.

In connection with the assessment levied against the Art Metal Works, while that company should have the benefit of the suggested changes, I see no objection to the board of assessments considering the plottage of that objector as more than one hundred feet from Mulberry street.

With these instructions, the entire report is returned to the board of assessments for further consideration and revision.


author: Reger, C. P. J.

text:
    Somerset County Court of Common Pleas.
    HERBERT VAN NUYS, PETITIONER-RESPONDENT, v. EMANUEL LEVINE AND SAM BASS, TRADING AS LEVINE & BASS, RESPONDENTS-APPELLANTS.
    Decided April 12, 1933.
    For the petitioner-respondent, James I. Bowers.

    For the respondents-appellants, Herr & Heath (Byman Herr, on the brief).
   Reger, C. P. J.

This is respondents’ appeal from a judgment of the New Jersey workmen’s compensation bureau in favor of petitioner awarding him compensation for injuries received in an accident which occurred on August 27th, 1930. The original petition was filed on April 18th, 1931, and judgment was entered September 6th, 1932.

The grounds of appeal are three in number, to wit:

(1) That petitioner was not an employe of respondents.

(2) If petitioner was an employe, that he is not entitled to compensation because his employment was “casual.”

(3) That the award is excessive.

The proof offered by petitioner of his employment by respondents is found in his testimony to the effect that on August 27th, 1930, he was employed by respondents to go to Newark with a load of peaches; that his work was to help load and unload the peaches; that on the return trip the accident occurred which resulted in his injuries and that sometime after the accident he was paid $4 for this work; that he had not done any particular work for respondents before but had done “odds and ends” of work. When these odds and ends were done does not appear.

It developed on cross-examination that prior to this alleged employment petitioner was a truck farmer and that in addition to and as a side line to his farming he solicited orders for peaches for a dealer named Sirokes for which he received a commission from Sirokes; that the peaches which were being transported at the time of the accident had been solicited for Sirokes from a man named Bush; that on the day in question Sirokes came for petitioner and togerher they went to respondents place and arranged with respondents for the transportation of the peaches to Newark; that then Sirokes, petitioner and Levine went to Bush’s and that the peaches were there loaded; that petitioner helped to load the peaches because he wanted them to get to Newark in good condition; that when they returned to respondents place Levine, one of the respondents, suggested that petitioner go along to Newark to help him and that petitioner assented and went along. Petitioner said that he had assisted respondents before at times but had not been paid wages and that respondents had at times helped him. That these were mutual exchanges between neighbors without thought of compensation except on this one occasion. That no wages had ever been paid him before by respondents but that sometimes he would be given a chicken or whatever happened to be there.

The respondents deny there was any employment but admit that in a statement to an insurance company after the accident they said that petitioner was employed by them and explained this statement by saying'that they wanted to help petitioner get compensation.

They deny also paying petitioner any money or wages.

While the proof of employment is not altogether satisfactory it would appear that respondents requested and aeeepted petitioner’s service on this occasion; that he rendered some service and that there was therefore an employment.

Was this employment casual within the meaning of the Workmen’s Compensation act?

Paragraph 23 of the act as amended Pamph. L. 1919 (at pp. 211, 212), defines casual employment “if in connection with the employer’s business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring.”

It may be noted that employment described as casual is divided into two classes: (1) that which is in connection with the employer’s business the occasion for which arises by chance or accident, and (2) that which is not in connection with the employer’s business and is not regular, periodic or recurring.

That the service of petitioner in this case, if rendered, was in connection with respondent’s business is not disputed so that the inquiry must be directed to the question whether the occasion for it arose by chance or was purely accidental.

What the legislature had in mind in exempting from the act, employment, the occasion for which arises by chance or is accidental, is not clear.

It will bo noted that it is the occasion for the employment that must arise by chance or accident, not the employment itself, that makes the employment casual. The employment itself could hardly be said to arise by chance or accident for employment contemplates a contract between employer and employe.

A reasonable construction of the language of this part of the statute would seem to be that when in the course of an employer’s business, the necessity for extra help arises and he employs such help temporarily for a particular job which is not to be continued at regular or recurring intervals, it is an employment the occasion for which arose by chance or accident, and is therefore casual.

The occasion for petitioner’s employment in this case accepting petitioner’s version of it, evidently arose without any prearrangement, when he was requested, according to his own testimony, to go along with Levine to Newark after the peaches were loaded. The occasion arose by chance.

In the case of Thompson v. Wagner, 103 N. J. L. 230; 135 Atl. Rep. 800; affirmed, 104 N. J. L. 198; 139 Atl. Rep. 344, the petitioner was-employed with others to remove snow from railroad track. He was injured on the day he went to work but worked all or a part of the second day and then stopped because of the injury.

It was held that this was an employment the occasion for which arose by chance and that it was therefore “casual” within the meaning of the statute.

This case is dispositive of the ease at bar. In the Thompson v. Wagner case the occasion for the employment was the need of the employer for help in removing a fall of snow which might not be recurring. In the case at bar the occasion for the employment was the need of respondents for help to unload a truck load of peaches with no expectation of further need of petitioner’s service. There is no proof nor any suggestion that petitioner’s service would be desired or required for any future day. The employment was casual within the meaning of the act.

My attention has been called to the case of Sabella v. Brazilerio, 86 N. J. L. 505; 91 Atl. Rep. 1032, but that case is distinguished from the case at bar in that the petitioner was employed to do a part of a service recurring somewhat regularly, with a fair expectation of the continuance for a reasonable period.

In the present case there had been no such employment before, nor was there any proof of the expectation of future employment.

In the ease of Mullen v. Walker, 105 N. J. L. 199; 143 Atl. Rep. 363, the employe was injured during a second day’s work after having been employed on a previous day in the same kind of work. It was held not casual evidently because recurring.

The conclusion reached that the employment was casual makes it unnecessary to consider the third ground of appeal that the award is excessive.

The award will be set aside.


text:
    GEORGE MAIER AND WLADYSLAW PRUSKO, PROSECUTORS, v. HONORABLE EDWIN C. CAFFREY, JUDGE OF THE BERGEN COUNTY CIRCUIT COURT; THE BOROUGH OF NORTH ARLINGTON, IN THE COUNTY OF BERGEN, ET AL., DEFENDANTS.
    Submitted October term, 1932
    Decided April 21, 1933.
    Before Justices Parker, Lloyd and Hehek.
    For the prosecutors, Robert W. Wolfe.

    For the defendants, Breslin & Breslin.

   Per Curiam.

The prosecutors attack by certiorari two orders made by Judge Caffrey of the Circuit Court on the appeal provided by the Home Pule act, article 20, section 42, as amended by Pamph. L. 1925, p. 231, reviewing assessments on a large number of building lots.

The facts of the case resemble those in Kearny v. Gleary, 6 N. J. Mis. R. 442; 141 Atl. Rep. 666. In this case, as in that, a speculative land company in the inflation period of 1928 and 1929 bought a worn-out farm, made a map subdividing it into blocks and lots where nothing of the sort existed on the ground, and immediately thereafter the municipal body proceeded to adopt ordinances looking to various improvements on the “Morningside Park” tract. The company took title in February, 1929; an ordinance for the laying of concrete sidewalks on the property was adopted February 26th; another, for curbing certain streets, March 4th; a third for the laying of concrete street pavement with curb and house connections, March 5th; a fourth and a fifth to construct storm water drains, April 2d. Contracts for some or all of these improvements were made with a corporation called Nesto Construction Company. They do not include a contract for a sewer system; that was made by the land company itself and is one of those considered in Holden v. North Arlington, 10 N. J. Mis. R. 1294; 163 Atl. Rep. 447. These ordinances and contracts exhibit a fairly complete scheme for the creation of a real estate speculation at the expense primarily of the borough to the extent of the work covered by the ordinances, and to underwrite the expense, the borough borrowed the needed money on its bonds sold in the market. The result of the improvements was intended to, and presumably did, transform an old farm into a realty development marketable in building lots instead of acreage. But before final fruition the crash of 1929 came, leaving the property subject to assessment for benefits, as of the date of the improvement. New Jersey Railroad Co. v. Elizabeth, 37 N. J. L. 330, 334. See 44 C. J. 583.

The prosecutor Prusko appears to own nine lots in all, constituting the northerly half of block 105-0, fronting on the south side of Canterbury avenue between First street on the west and Madison street on the east.

The prosecutor Maier stated in his petitions for writs of certiorari that he was the “owner” of numbered lots in some eighteen different blocks on the tract (in most cases the entire block). But so far as we discover in the voluminous printed case, there is no evidence of his ownership; and while the notices of appeal by Prusko relating to his nine lots are printed, there is no notice of an appeal as regards the lots of which Maier says in his petition he is the “owner” there being a general statement at the head of page 64 of the case that “notices of appeal were filed and served in the form hereinafter set forth (i. e., the Prusko appeals), affecting all lots referred to,” &c. The appellant is not named: and it is significant that on January 22d, 1932, a month before allowance of the writs, a consent order was entered, confirming all assessments “in so far as the right, title and interest of the Morningside Park corporation (is) involved in any of the tracts mentioned in the appeals.” At a motion before Judge Caffrey on November 20th, 1931, it was stated that the stock ownership in Morningside company had passed to new parties, who wished the assessment confirmed. The present attorney of record for the prosecutors then stated that “one of the appellants is the blanket mortgagee.” The court: “What standing has he?” Mr. Wimmer: “He is an appellant.”

The Morningside corporation is consequently out of the case. For the respondents it is urged that Maier (assuming that he actually appealed) is only a mortgagee and as such has no status to attack the assessment. We think the point is well taken. The language of section 42, supra, relating to appeals, is: “Any owner of any property assessed for benefits * * * may, within thirty days after confirmation of such assessment, * * * appeal from the same,” &c. Conceding the elasticity of meaning that may be attached to the word “owners” (see Murphy v. Lewis, 76 N. J. L. 141, 142; 69 Atl. Rep. 483), our decisions indicate clearly that in a case like that before us the statute is not intended to include a mortgagee claiming a lien on the land. Wade v. Miller, 32 N. J. L. 296; Shields v. Lozear, 34 Id. 496, 503; Kirscher v. Schalk, 39 Id. 335; Crane v. Elizabeth, 36 N. J. Eq. 339 (especially at pp. 341, 342). That the holder of an equity of redemption, even tenuous in character, is an “owner” for tax exemption purposes, is held in Princeton v. Stale Board, 96 N. J. L. 334 (at p. 338); 115 Atl. Rep. 342. We agree that the prosecutor Maier has no standing, and as to him the writs will be dismissed.

As to the prosecutor Prusko, the review asked by him refers to lots numbered 1 to 9 inclusive in block 109-0. As to these, the case exhibits a substantial reduction in the assessments, both as recommended by the commissioner and as effected in the two orders signed by Judge Cleary. We do not perceive in the brief, and have not found in the case any good reason why the assessments on those lots should be further reduced, or that there was error in the application of the front foot rule, either as regards corner lots or inside lots. As to Prusko, ■therefore, the orders under review will be affirmed.


text:
    JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, PROSECUTOR, v. MICHAEL LIEB ET AL., RESPONDENTS.
    Submitted January term, 1933
    Decided April 27, 1933.
    Before Justices Parker, Lloyd and Heher.
    For the prosecutor, Perlcins, Drewen & Nugent.

    For the respondents, Rosario 8. Mazzola.

   Per Curiam.

This writ of certiorari brings up an award in favor of a petitioner in a workmen’s compensation ease, the prosecutor being the employer. The only question for determination is the sufficiency of a notice served by the prosecutor on its employes, including the respondent Lieb, for the purpose of putting an end to its liability under section (or division) 2 of the Compensation act, entitled "elective compensation.”

The petitioner had been employed by the prosecutor as an outside insurance agent collecting his premiums in the usual manner. This employment had been on the basis of a tacit acceptance of the provisions of section 2 a.s provided by the statute. However, late in November, 1929, the company concluded that it would discontinue its responsibility under section 2 and undertook to serve the notice provided by statute in such case. The statute in paragraph 9 provides that every contract of hiring shall be presumed to be made under section 2 “and unless there be as a part of such contract an express statement in writing, prior to any accident, either in the contract itself or by written notice from either party to the other, that the provisions of section 2 of this act are not intended to apply, then it shall be presumed that the parties have accepted the provisions of section 2 of this act and have agreed to be bound thereby.” Cum. Supp. Comp. Stat. 1924, p. 3871.

Paragraph 10 provides as follows: “The contract for the operation of the provisions of section 2 of this act may be terminated by either party upon sixty days’ notice in writing prior to any accident.”

Now the notice given by the company reads as follows:

“Workmen’s Compensation Act Notice to Employees.

In accordance with the provisions of section 10 of the Workmen’s Compensation law of the State of New Jersey, you are hereby notified of this company’s withdrawal, effective February 1st, 1930, of its acceptance of the obligations imposed by the said Workmen’s Compensation act.

John Hancock Mutual Life Insukance Company,

November 19, 1929. . Michael J. Lieb,

8365 (Signature of Employee.)

Date November 20, 1929.

This copy to be signed, dated and returned.”

It will be observed that the foregoing notice undertakes to effect the withdrawal of the company, not only from the obligations imposed by section 2 of the Workmen’s Compensation act (elective compensation), but to withdraw its acceptance of the obligations imposed by the act itself. The commissioner held in effect that the company had undertaken to withdraw entirely from its amenability to the Workmen’s Compensation act and that this it could not do. It is true that the acceptance of the provisions of section 2 of the statute, which that act says is presumed in the absence of notice to the contrary, refers to section 2 and not to section 1, which in any event is compulsory, and it was argued by the company before the commissioner, and is argued here, that the notice should be read as withdrawing the acceptance of such provisions of the act as the company was presumed to have accepted in the first instance. However, we think that the commissioner was right. The statute provides apt and suitable language for both refusal to accept and for termination of the presumed contract. As has been set forth above, either party may notify the other party prior to an accident that the provisions of section 2 of the act are not intended to apply. This is the language of the statute itself, and paragraph 10 of the act says that “the contract for the operation of the provisions of section 2 of this act may be terminated by either party upon sixty days’ notice in writing prior to any accident.”

The presumption of acceptance of section 2 is one which is fundamental in the theory of the statute and there should be no substantial ambiguity either in the refusal of an employer to accept the provisions of section 2, or in a notice by the employer for the termination of such acceptance before an accident. It is noticeable that the statute both in regard to notice of non-acceptance and in regard to a notice of termination of that acceptance, is careful to speak specifically of section 2 of the act. It was a simple matter for the company to follow the statutory language, and this it did not do. While the defense is substantially a meritorious one; we feel constrained to hold that the notice was not good, and, therefore, that the writ must be dismissed, with costs.


author: Porter, S. C. C.

text:
    GORDON E. ADAMS, PLAINTIFF, v. LEON DeYOE, DEFENDANT.
    Decided January 25, 1933.
    For the plaintiff, Coult, Satz •& Tomlinson (John J. Francis, of counsel).
    For the defendant, Colie & Colie (Runyon Colie, of counsel).
   Porter, S. C. C.

The plaintiff, Gordon E. Adams, was injured in an automobile accident on July 20th, 1930. Ilis left arm was fractured. He brought suit in the New Jersey Supreme Court against Frank J. Billiams, the owner and driver of the automobile, charging negligence. He engaged Dr. Leon DeYoe, the defendant, a physician and surgeon, to perform an operation for the reduction of the fracture of his arm. After the last treatment given him by Dr. DeYoe, the plaintiff entered into a settlement with Billiams of his cause of action, executed a general release, and discontinued the suit.

The plaintiff then instituted this suit at bar against Dr. DeYoe for damages claimed because of malpractice in the operation and treatment of his arm. The defendant sets up as a defense the general release given to Billiams as a bar to the plaintiff’s right of action in this suit.

The plamtiff moves to strike out this defense on the grounds that the motorist and physician are not joint tort feasors, that no privity exists between the motorist and the physician, and that the release to the motorist is no bar to this action against the physician.

There seems to be no case in this state directly in point. After a consideration of numerous cases in other jurisdictions, I have concluded that the original tort feasor is responsible and that a general release given him under the facts in this case is a bar to an action against the physician. .

A case directly in point is Wells v. Gould (Me.), 160 Atl. Rep. 30. The pertinent language of the court there is:

“It is the duty of a person injured through the negligence of another to use reasonable diligence in securing medical or surgical aid, and, if he exercises due care in the selection of a physician or surgeon, their negligence, mistakes, or lack of skill, which aggravate or increase his injury, are regarded by the law as a part of the original injury, for which the original wrong-doer is responsible.

“As a corollary of this general rule, we find it held that a settlement with, and release of, all rights to recover against the original tort feasor by the injured person operates as a bar to another action for malpractice against the physician or surgeon who treated and aggravated, the injury.”

Other cases in point are Martin v. Cunningham (Wash.), 161 Pac. Rep. 355; Hooyman v. Reeve (Wis.), 170 N. W. Rep. 282; Purchase v. Seelye (Mass.), 121 N. W. Rep. 413; Retelle v. Sullivan (Wis.), 211 N. W. Rep. 756; Guth v. Vaughan, 231 Ill. App. 143; Edmondson v. Hancock (Ga.), 151 S. E. Rep. 114; Keown v. Young (Kan.), 282 Pac. Rep. 511; Smith v. Mann (Minn.), 239 N. W. Rep. 223; Phillips v. Werndorf (Iowa), 243 Id. 525; Feinstone v. Allison Hospital (Fla.), 143 So. Rep. 251.

The motion will therefore be denied.

This being the only question involved in the case, it is dis-positive of the litigation, and I feel that a judgment should be entered in favor of the defendant.


author: Lawrence, S. C. C.

text:
    SECOND NATIONAL BANK AND TRUST COMPANY OF RED BANK, NEW JERSEY, PLAINTIFF, v. FRANK PITTENGER, DEFENDANT.
    Decided April 22, 1933.
    For the motion, Edward W. Wise (Lester G. Leonard, of counsel).
    Opposed, Applegate, Stevens, Foster & Reussille.

   Lawrence, S. C. C.

This is a motion to strike the complaint in this suit on the ground that the maker of the promissory note on which recovery is sought has not been made a party defendant. It is laid against the endorser alone, and the theory seems to be that, since the maker is primarily liable and the endorser secondarily so, as between themselves, the complaint does not set forth a proper cause of action.

The plaintiff bank, it is urged, should have either first sued the maker and exhausted its remedy in that direction, or the suit should have been instituted against the maker and endorser, in order that the rights of the latter as to the former could and may be preserved. That the motion is not supported by any tenable ground is apparent. No action is to be defeated by non-joinder or misjoinder. New parties may be added and parties misjoined may be dropped, by order of the court, at any stage of the cause, as the ends of justice may require. Practice act of 1912 (Pamph. L., p. 379, § 9).

Plaintiff is the payee named in the note in suit and had a

right, if it saw fit, to sue defendant endorser alone, or to join maker and endorser. It was not obliged to do the latter. Prior to 1855, it was irregular to join the maker and endorser of a promissory note in an action (Craft v. Smith, 35 N. J. L. 302), because the contract, generally speaking, was not joint, nor joint and several, but several; hence, while both were liable to suit on the note, separate actions were necessary, since the endorser’s contract was distinct from that of the. maker. Of. Negotiable Instrument act {Pamph. L. 1902, p. 594, §§ 63, 64). By section 14 of the act of 1855 {Pamph. L. p. 288; Gen. Stat., p. 2537, § 29), it was provided that the holder of any bill of exchange or promissory note, instead of bringing separate actions against the persons separately liable thereon, might include all of them in the one action, and proceed to judgment and execution, in the same manner as though all the defendants were joint contractors, subject to certain indicated qualifications. See Mackintosh v. Gibbs, 79 N. J. L. 40; 74 Atl. Rep. 708; affirmed, 81 N. J. L. 577; 80 Atl. Rep. 554. This provision was carried into the Practice act of 1903 {Pamph. L., p. 542), as section 29, which was repealed by that of 1912 (at p. 384), since section 6 of the new act (at p. 378) evidently covered it.' It is apparent, however, that the provision was and is optional so far as the payee of a note is concerned, with the result that he may still sue an endorser alone without joining the maker in the action. Whether, under the present practice, the endorser when so sued may, in his own interest, and on his own motion, have the maker brought in as a party defendant, is not here involved, although it may be suggested by section 12 of the Practice act of 1912. It will suffice to say that the motion here made to strike the complaint in the present suit should be denied.


text:
    HARRY UNGER, PLAINTIFF-RESPONDENT, v. NOXON CHEMICAL PRODUCTS COMPANY, INCORPORATED, AND RALPH NOTTEBAUM, Sr., DEFENDANTS-APPELLANTS.
    Submitted January term, 1932
    Decided April 15, 1933.
    Before Justices Parker and Case.
    Por the plaintiff-respondent, Riker <& Rilcer.

    Por the defendants-appellants, George F. Seymour, Jr.

   Per Curiam.

The appeal is by the defendants from a judgment on a jury verdict of $1,450 against them and in favor of the plaintiff in the Essex Common Pleas. The claim sued upon was in the amount of $3,000 for legal services alleged to have been rendered by the plaintiff under employment by the defendants.

The first ground of appeal is that the trial court denied the defendants’ motion for a nonsuit. The argument thereunder is that the plaintiff’s pleadings disclosed, and that the testimony given in plaintiff’s behalf proves, that the claim against, the corporate defendant constitutes a separate and distinct cause of action from that against Eottebaum. Paragraph 2: of the complaint alleges “that on or about Pebruary 25th,. 1925, the plaintiff was retained by the defendants to represent them in certain legal matters and in pursuance of said employment and between the dates of Pebruary 25th, 1925, and April 8th, 1925, plaintiff rendered the following services: To all services rendered by plaintiff for the defendants in the case of William J. Bobb against ISToxon Chemical Products Company, Incorporated, in the United States District Court for the District of New Jersey;” then follows a statement, itemized day by day, of the services said to have been rendered. Paragraph 3 alleges that “the reasonable value of said services is the sum of $3,000, which the defendants promised and agreed to pay.” Plaintiff testified that he was employed by Nottebaum, president of the corporate defendant and owner of the majority of the stock therein, to render those services on behalf of the corporation and of Nottebaum individually. Joint liability was sufficiently pleaded and proved to take that question to the jury.

The second ground of appeal is that the verdict as rendered by the jury was not dispositive of the cause of action of the plaintiff against the defendant Ealph Nottebaum, Sr., for the personal services rendered by the plaintiff and for the defendant Ralph Nottebaum, Sr. This does not indicate a proper ground of appeal. The only matters properly before an appellate tribunal for determination are alleged errors committed by the court during the trial of the cause. Ratz v. Hillside Bus Owners’ Association, 103 N. J. L. 502; 135 Atl. Rep. 887; Van Sciver v. Public Service Railway Co., 96 N. J. L. 13; 114 Atl. Rep. 146. The verdict of a jury is not such a matter. Not only does judgment appear to have been regularly entered on the verdict as rendered, but nothing therein was made the subject of an exception. An alleged error by the trial judge should be contemporaneously excepted to if the judicial action is to be reviewed by an appeal. Kargman v. Carlo, 85 N. J. L. 632; 90 Atl. Rep. 292. Further, contrary to the point as stated, the verdict and judgment appear to be entirely dispositive of the plaintiff’s claim as sued upon against the defendant Nottebaum. There was an admission by the plaintiff that a specified service of the value of $25 to $30 had in fact been performed for Nottebaum alone; but the amount of the verdict is quite consistent with the elimination of this item, and defendants are the gainers thereby.

Finding no error, we conclude that the judgment below should be affirmed, with costs.