text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ALICE KING, PLAINTIFF IN ERROR.
    Submitted October 16, 1925
    Decided March 2, 1926.
    Crimes—Disorderly House—Liquor Taken in a Raid Made Without a Search Warrant—Trial Judge Not Warranted in Refusing to Admit in Evidence the Liquor Taken—Persons are Only Protected From Testimonial Compulsion, That is, From the Extortion of Unwilling Confessions or Declarations Implicating Him in Crime—Constitution Protects) Against Unreasonable Searches—In View of the Evidence, the Seizure in This Instance was Not Unreasonable—Admission in Evidence of the Liquor Seized was Not Error—Ample Evidence to Let Case go to Jury—In Misdemeanors Ail Who Aid, Abet or Assist Are Principals and Equally Guilty.
    On writ of error to the Monmouth County Court of Quarter Sessions.
    Before Justices Teenchaed, Katzenbach and Lloyd.
    For the plaintiff in error, James-Mercer Davis.

    For the defendant in error, John J. Quinn.

   Pee Curiam.

This ease is before us on a writ of error directed to the Monmouth County Court of Quarter Sessions. The writ brings up the record and conviction of Alice King upon an indictment charging her with maintaining and keeping a disorderly house in Monmouth county. The attempt is made to bring up the case on both a strict writ of error and under section 136 of the Criminal Procedure act. There are in the state of the case grounds printed for reversal and also specifications of causes for reversal. There is no certificate included in the state'of the ease to the effect that the entire record is brought up. The entire record could not very well be brought up because the record itself contains the statement that the first part of the trial was not reported.

The premises in question were located in Neptune City, on the west side of Ridge avenue, between Sylvania and Fourth avenues. The place was known as Laurel Garden Inn. The testimony offered in support of the indictments was chiefly that of detectives and of inmates of the house. The detectives testified that there was a dance hall in the place; that the girls danced with the men and asked them to buy drinks; that they would then ask them if they wanted to go upstairs; that if they replied they did arrangements were made with the defendant, Alice King, as to the room they were to occupy.

The first ground for reversal argued in behalf of plaintiff in error is that the trial court overruled a motion made before the trial of the indictment to direct the return of certain liquor seized by the state’s agents in the raid upon Laurel Garden Inn. The position of the plaintiff in error appears to be that when upon the direct examination of a witness for the state the witness was asked if on the night of the raid he got any liquor, and objection was made, and counsel for the defendant stated that his objection was on the ground of his motion before the commencement of the trial, and the court permits him to state, upon the record, that the offer of the liquor is objected to because it appears that no warrant to search the place was issued and therefore unauthorized, and testimony given without the legality of a search warrant is inadmissible, that this statement appearing upon the record as made by counsel is sufficient to raise the question as to the legality of the admission of testimony with reference to the liquor seized. We do no think the question can be raised in this manner. The entire proceedings relative to the motion mentioned as having been made prior to the trial should be a part of the record in order for us to properly pass upon this question. Assuming, however, liquor was taken in the raid and the raid was made without a search warrant, these facts do not warrant a trial judge in refusing to admit in evidence the liquor taken. A person is only protected from testimonial compulsion, that is, from the extortion of unwilling confessions or declarations implieating him in crime. Chattels obtained from a person’s control without the use of process against him as a witness may be used evidentially, for the proof of their identity, or other circumstances affecting them, must be made by others without the employment of the accused’s oath. Wigm. Evid., § 2264. In State v. Krinski, 62 Atl. Rep. 37, it was held by the Supreme Court of Vermont that in a prosecution for keeping for sale intoxicating liquors without a license, it was proper to admit in evidence liquors which had been seized, irrespective of the legality of the warrant. The provisions of the federal constitution regarding unreasonable searches and seizures are not limitations upon state powers. Section 6 of article 1 of the New Jersey state constitution protects persons and property only against unreasonable searches and seizures. In view of- the evidence which the state possessed of the character of the place prior to the raid, it cannot well be said, in our opinion, that the seizure of the liquor found in the place was in any sense unreasonable. The admission of the liquor seized in evidence was not error.

The-second ground urged for reversal is that the court refused to direct a verdict in favor of the defendant. In the case of State v. Moreshouse, 97 N. J. L. 285, it was held that if there was any testimony supporting the charge made in the indictment, the question of the defendant’s guilt or innocence was for the determination of the jury, and not for the court, and that it was proper to deny a motion to direct a verdict for the defendant. In the present case there was ample testimony furnished by the witnesses for the state of the character of the house and of the position of the defendant therein to warrant its submission to the jury. It is true the testimony principally came from detectives, yet, nevertheless, it was evidence, and it was for the jury to determine the weight of the testimony. The trial court ruled properly in refusing to direct a verdict.

The third ground advanced for a reversal of the judgment is that the trial judge erred in charging the jury that the defendant could be convicted as a principal, if she aided, abetted or assisted in conducting the establishment. The exact words of the charge in this regard are as follows: “It is my duty to say to you, gentlemen, even though the lessee was not included in the indictment, if the defendant aided, assisted or abetted in conducting the house in the way it is alleged by the state, that under our law she becomes a prin.cipal as well as the lessee, because if the things occurred that some of the witnesses testify, you may conclude that she was in active management of the place. Whether y-ou will or not is for you to say. That is mere comment of the court.”

The argument advanced is that this is applicable to felonies and that the keeping of a disorderly house is not a felony. The answer to this argument is that the keeping of a disorderly house was at common la,w a crime, and is defined by the Crimes act of New Jersey as a misdemeanor. Pamph. L. 1898, p. 854. In New Jersey, crimes created by statute ai’e either misdemeanors or high misdemeanors, but never felonies. In misdemeanors all who aid, abet or assist are principals and equally guilty. State v. Engerman, 54 N. J. L. 247; State v. Wilson, 79 Id. 241. The charge of the court was correct.

The final point argued for the plaintiff in error is that the verdict was contrary to the weight of the evidence. We cannot consider this question in view of the state of the record, which, as has been pointed out, does not contain the report of the first part of the trial. We cannot tell how we might be influenced by the testimony not included in the record.

The judgment of conviction is affirmed.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    THE STATE v. WILLIAM B. BEAM, DEFENDANT.
    Submitted October 16, 1925
    Decided March 2, 1926.
    Crimea—Embracery of Grand Juror—Application for Writ of Certiorari to Bring Indictment Into Supreme Court—Indictments Will Only be Brought Into This Court by Certiorari, for the Purpose of Moving to Quash, When it is Clear That No Judgment Can be Entered Thereon—Defendant’s Contention That There is No Such Offense as Embracery of a Grand Juror Not Sound—Embracery was a Crime at Common Law—Our Statute is Declaratory of the Common Law and Merely Amplifies It.
    On application for three writs of certiorari.

    Before Justices Tbenohard, Katzenbach and Lloyd.
    For the defendant, Alexander Simpson.

    For the state, J. Willard De Toe.

   Pee Cueiam.

Application is made for three writs of certiorari. Each writ is asked for to review, an indictment charging the embracery of a grand juror. Each of the three indictments is against the same defendant. Application was made to the trial court in the first instance to quash the indictment. This motion was denied. Applications were then made to Mr. Justice Black for writs of certiorari to remove the indictments into this court. These applications were denied. The present application is the same as that made to Mr. Justice Black.

The rule is that an indictment will not be brought into this court by certiorari for the purpose of making a motion to quash the same unless it is clear that no judgment can be entered upon the indictment. While it is contended by counsel for the defendant that' embracery is confined to petit jurors, and that there is no such crime as the embracery o.f a grand juror, we differ from this contention. In our opinion the indictments are good. Embracery was a crime at common law. Our statute is declaratory of the common law and merely amplifies it. It reads as follows: “Section 16. Embracery and all attempts to corrupt or influence a jury or any juror, or in any way to incline such jury or juror to be more favorable to one side than to the other by promises, persuasions, entreaties, threats, letters, money, entertainment or other sinister means; all indirect, unfair and fraudulent practices, arts and contrivances to obtain a verdict, and all attempts to instruct a jury or juror beforehand at any place or time or in any manner or way except only in open court at the trial of the cause by the strength of the evidence, the arguments of the parties or their counsel, or in the opinion or charge of the court, shall be a misdemeanor under this act.”

The three indictments are substantially the same. They state that upon the complaint of William B. Beam the grand jury was investigating criminal charges against the Paterson National Bank and others with reference to fraudulently withholding and converting the sum of $731.86 from the trustees of the estate of Carrie S. Beam, of whom William B. Beam was one, and that the said William B. Beam willfully and unlawfully, and intending to hinder a true and lawful decision upon such complaint, did unlawfully and wickedly solicit a grand juror and deliver to said grand juror a letter relating to the said complaint, and did then and there unlawfully and corruptly by means of said letter move to solicit and persuade the grand jury to find a true bill and to incline more favorably to the defendant, William B. Beam, and against the bank and the others named in the indictment.

We are of the opinion that this makes out a charge within section 16 above quoted, which makes a misdemeanor “all attempts to corrupt or influence a jury or any juror, or in any way to incline such jury or juror to be more favorable to one side than the other by * * * persuasions * * * letters or other sinister means.” The language quoted appears to us not to limit embracery to petit jurors only. New York and Pennsjdvania, under practically similar statutes, have held that there may be an embracery of a grand juror. We have, therefore, reached the conclusion that the three applica-’ tions for writs of certiorari should be denied. We think the full rights of the defendant upon the question which he-seeks to raise can be fully protected at the trial. The application for the writs of certiorari are accordingly denied.'


author: Per Curiam.

text:
    SAMUEL LESSER, PLAINTIFF-RESPONDENT, v. MORRIS STOLMAN ET UX., DEFENDANTS-APPELLANTS.
    Argued January 20, 1926
    Decided March 5, 1926.
    Sale of Real Estate—Agent’s Commissions—The Agreement for Sale and Commissions Examined and Found to Comply With the Statute of Frauds, and to be Otherwise Sufficient for the-Jury to Consider.
    On appeal.
    Before Justices Parker, Minturn and Black.
    Por the appellants, Atitenrieth & Gannon.

    Por the respondent, James J. Kearney.

   Per Curiam.

This is an appeal from a judgment entered in the Pirst District Court of Jersey City in favor of the plaintiff-respondent for $500 commissions as real-estate broker for procuring a buyer for premises known as No. 266 Duncan ave-' nué, Jersey City,' New Jersey. The case was tried by thé court without a jury. 'The appellants file eight reasons why' the judgment should be reversed. They are argued under three heads in the appellants’ brief. They all attack the legal effect of the authorization or writing (Exhibit PI) relied upon by the plaintiff, as the basis of the action. Exhibit PI is as follows:

Exhibit PI.

“August 29, 1924.

' Beceived from Louis & Anna Schair the sum of $100 (one Hundred dollars) as a deposit on store, stock, fixtures and good will, also building consisting of store and three families, situated at 266 Duncan Avenue, Jersey City, N. J. Contract to be drawn at the office of Thomas Boss, No. 1 Exchange Place, Jersey City, N. J., between the hours of 10 in the morning and 4 in the afternoon, Wednesday, September the 3rd, 1924, or otherwise agreed. The following conditions to be incorporated in the contract. Price........,. $14,500

Cash..................... $4,500

1st mortgagee ............ 5,600 Bldg. & L.

2nd “ • ............ 4,400 for 3 years.

$14,500

Same to be free and clear of all encumbrances and encroachments and additional $400 to be paid on the signing of the contract making the total deposit on signing of the contract $500. Commission to be paid to Samuel Lesser, 83 Coles Street, Jersey City, N. J., broker, the sum of $500.

Title to pass on or before 60 days after signing the contract. Balance on slicing machine to be paid by buyer.

Signed Morris Stolman.

Wit.

Jennie Stolman.

Albert Pakross.

We, Louis & Anna Schair, hereby authorize Samuel Lesser, broker, to give owner of 266 Duncan Ave., Jersey City, N. J., $100 as a deposit subject to the above conditions and agree to return said sum to him on Wednesday, September the 3rd, 1924.”

The attack made upon Exhibit Pi by the appellant is based upon three grounds:

First. That said writing did not comply with the requirements of section 10 of the statute of frauds, as amended Pamph. L. 1918, p. 1020.

Second. The writing relied upon was a mere receipt for a deposit directed to a prospective purchaser, and as- such would not constitute a compliance with section 10 of the statute of frauds.

Third. The writing is a mere executory agreement, if anything, which contemplated the execution of a formal contract, and, therefore, could be rescinded by the defendants at any time prior thereto. None of these points, we think, are well taken. The case of Heyman v. Stopper, 85 N. J. L. 128; affirmed, 86 Id. 357, relied upon by the appellants is not in point. It was not error for the trial court to refuse to non-suit the plaintiff or direct a verdict in favor of the defendants. On the facts the trial court found in favor of the plaintiff. We think the court was justified in so finding. The judgment of the Eirst District Court is therefore affirmed, with costs.


author: Peb Cubiam.

text:
    JOHN SIEBKE, PROSECUTOR, v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF CHESTER, IN THE COUNTY OF BURLINGTON AND STATE OF NEW JERSEY, RESPONDENT.
    Submitted October term, 1925
    Decided March 5, 1926.
    Public Officers—Municipal — Tenure — Prosecutor- Appointed Policeman for a Fixed Definite Time—Statute Authorizes Employment of Officers Temporarily and in Cases of Emergency—Writ Dismissed.
    On certiorari.

    Before Justices Tbmstchard, Katzenbach and Lloyd.

      Eor the prosecutor, Robert Peacock.

    Eor the respondent, T. Harry Rowland.

   Peb Cubiam.

The writ was issued in this case to test the validity of certain proceedings of the township committee of Chester township, in Burlington county, respecting the position of police officer held by the prosecutor.

The return to the writ shows that John Siebke was appointed a patrolman of the township of Chester on May 22d, 1924, “for the balance of the year 1924.” On January 1st, 1925, Leroy Jackson was appointed patrolman for the year 1925. On February 4th, 1925, Siebke was notified by the township clerk to turn over his uniform and equipment to Leroy Jackson immediately; this by direction of the township committee. It is claimed on this state of facts that they constituted a removal from office, and that this was in violation of the Home Buie act of 1917, article 16, paragraph 3, which prohibits removal except for cause and upon notice of charges and trial.

Whether the notification constituted notice of termination of his employment or simply, as it says, notification to the prosecutor to turn over uniform and equipment to Leroy Jackson, is, we think, of no importance. He was appointed for a definite term, and this term expired with the year 1924.

By the provision of the quoted paragraph the appointing power is authorized to “employ officers or men temporarily in cases of emergency, or for parts of years in cases where their services are not needed throughout the entire year, and discharge them at the expiration of such temporary employment.” Siebke was appointed definitely for part of the year 1924 only, and if he is correct in his construction of the notice, he was discharged at the end of the temporary employment. If he is wrong in the construction claimed, there is nothing in the record before use to rectify. There is nothing to show that the uniform and equipment are not the property of the township or that the prosecutor has any interest in them.

The affidavits originally filed and the statements contained in the briefs other than those shown by the return cannot be considered in determining the rights of the parties. The former served their only purpose when the writ was allowed (State v. Gardner, 34 N. J. L. 329), and the sole office of the brief is to aid the court by argument and citation of authority.

The writ of certiorari will be dismissed.


author: Pee Ctjkiam.

text:
    JAMES BOWEN, RELATOR, v. MAYOR AND ALDERMEN OF JERSEY CITY AND JOHN SAUL, SUPERINTENDENT OF BUILDINGS, RESPONDENTS.
    Submitted October term, 1925
    Decided March 5, 1926.
    Zoning—Garages—Relator Applied for Erection of Garages Within Restricted Territory and Application was Refused— New Plans Were Made Not in Conflict With Building Code nor With Zoning Ordinance, but Application was Refused Upon Reasons Held in Brief to be Justified by a Reasonable Right of Regulation—Peremptory Writ Awarded.
    On application for mandamus.

    Before Justices. Teenchard, Katzenbach and Lloyd.
    Eor the relator, John Milton.

    Eor the respondents, Thomas J. Brogan.

   Pee Ctjkiam.

James Bowen, the relator, seeks, in the rule to show cause allowed in this case, a writ of mandamus to compel the commissioners of Jersey City and the superintendent of buildings to grant to him a permit for the erection of two batteries of individual automobile garages on the relator’s property in that city.

Depositions have been taken under the rule to show cause, and from these it appears that the relator owns an interior lot with an outlet only through a ten-foot-wide alley leading to a public street; that because of the narrow outlet it is unavailable for residence or store purposes, but appears to be adapted to the construction of garages; that on December 19th, 1924-, he filed an application for a permit based upon plans which exhibited the location of the garages within (as provided by a zoning ordinance) a forbidden proximity to an apartment-house. The application was rejected and new plans were substituted. Based on these a new application was made and was likewise refused by the commissioners without any reason being given for the refusal, but claimed in their brief to be justified by a reasonable right of regulation. The last named plans and application are in conformity with the building code and are not in conflict with any zoning ordinance.

It must be borne in mind that the power to regulate by zoning within the police power is derived by the municipalities from the legislature. There is no inherent power in a local governmental agency such as a city, borough or town, to regulate the construction or type of buildings within its boundaries. In the act of 1924, chapter 146 (at p. 324), the legislature has specifically conferred the power to zone, but the manner in which this power should be exercised is also defined, viz., by official action of the governing body after public hearing, of which public notice is required to be given.

It cannot be exercised at the will of the commissioners on each individual application. In the present case the city respondent has adopted an ordinance on the subject, but it has not in that ordinance prohibited the construction contemplated by the relator. The case is therefore controlled by the decisions of this court in Reimer v. Dallas, 3 N. J. Adv. R. 1302, and G. M. S. Holding Corp. v. Commissioners of Jersey City, 2 N. J. Mis. R. 75.

While the state of the case does not show that the application was ever made to the superintendent of buildings, no point seems to be made of this fact in the respondents’ brief, but the denial of the permit is rested on the ground that the refusal was justifiable.

There being no dispute about the facts a peremptory writ will be awarded.


text:
    THE STATE, EX REL. HENRY V. WALKER, RELATOR, v. MILTON A. MAAS, RESPONDENT.
    Argued October 7, 1925
    Decided March 5, 1926.
    Corporations—Removal of Officers—By-laws Provided That President, Vice-President, &c., Should be Annually Elected, &c.—Another By-law Provided That “All Officers and Agents Shall be Subject to Removal at Any Time by the Affirmative Vote of a Majority of the Whole Board of Directors”—Held, That the President May be Removed at Any Time Without Cause and Without Notice—Argument of Respondent That the Writ of Quo Warranto Will Not Issue to Test the Title of a Strictly Private Corporation Cannot be Accepted.
    On rule to show cause for quo warranto.

    Before Justices Trenchard, Katzenbach and Lloyd.
    Eor the relator, McCarter & English.

    Eor the respondent, Pitney, Hardin <& Skinner.

   Per Curiam.

This is a rule to show cause why a writ of quo warranto should not issue to test the title to the office of president of Maas & Walstein Company, a private corporation.

The petitioner, Henry Y. Walker, was the president of the company, having been elected by the board of directors on December 2d. 1924, “for the ensuing year, in pursuance of a by-law, which directed that the president, vice-president, secretary and treasurer should be annually elected by the board of directors/’ and was receiving a salary of $24,000 per annum.

On February 2d, 1925, at a special meeting, he was removed from office by the board, and a Mr. Maas was chosen to succeed him. Walker had notice of the meeting, but the notice did not state that his removal was to be considered. The by-laws provided that, “unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.”

The petitioner did not attend this meeting. The corporation is a close one, having but three directors, of whom Walker was one. The proceeding seeks to test the right of Maas and of himself. This he may do if the proceeding itself is proper. Anderson v. Myers, 77 N. J. L. 186.

The action of the board of directors is sought to be justified, and the prayer of the petition is resisted on the following grounds:

1. The court is without jurisdiction, as the company is a stock company organized and operated for private gain, and the office of president was not filled by the vote of the stockholders, but by the directors.

2. The removal was for just and ample cause.

3. The directors had power to remove under a by-law, which declares that “all officers and agents shall be subject to removal at any time by the official vote of a majority of the whole board.”

4. The directors had the power under the by-laws to remove for cause without a hearing.

5. In the exercise of the court’s discretion the petition should be denied.

Maas & Waldstein were manufacturers of lacquers and an ingredient in their product was butyl alcohol, of which the principal source outside of Germany was the Commercial Solvents Company. They and four other companies were the principal users of butyl alcohol, and to them it was essential. Being concerned about dependence on the Solvents company, these five together organized a company known as the Carbinol Products Company to make butyl alcohol, invested money in it and obtained patent rights under which to manufacture. In this Walker, who had a large interest in Maas & Waldstein, took an active part and became president of the new company. Organized as a protective measure against dependence on the Solvents company, before the manufacture of the product was actually begun, negotiations were started with the latter company, and these negotiations resulted in a new contract based on a sort of a sliding price scale, but terminable by either party at any time after 1926 on a year’s •notice. In this situation the-new project was abandoned by ■the several companies, but Walker differed from his associates as to the wisdom of this course, and joined with some third persons in organizing still another company called Butyl Corporation, of which Walker became the active leader. ■This, apparently, incensed his associates in Maas & Wald-stein, and they took summary action to remove him as president.

Taking up the legal questions involved, we think the question of jurisdiction is not an open one in this state. Counsel for the respondent has presented a most enlightening brief on this phase of judicial authority, citing English cases as well as cases in our own and other states which he conceives establish that the writ of quo warranto will not issue to test the title to office in a strictly private corporation. We are not at liberty to accept this view. The Court of Errors and Appeals has definitely established the law to the contrary in an opinion by the present Chief Justice in Schilstra v. Van Heuvel, 82 N. J. Eq. 612, in which it is said that, “under the system of jurisprudence which prevails in this state, the only tribunal in which the right to an office can be judicially determined is the Supreme Court, and the only method by which it can be put in issue is by proceedings in the mature of a quo warranto [citing cases] * * *, and this is true, not only with relation to state and municipal officers, but also those private corporations.” While it is true, as suggested, that the views expressed may not have been essential to a determination of the questions involved in that case, it is an official deliverance concurred in by all members of that tribunal participating in the disposition of the ease.

Of the other reasons urged for a denial of the writ, in the view we take, it is important to consider only the effect of the by-law relied on in the fourth. This by-law, under the title “tenure of office,” reads:

“All officers and agents shall be subject to removal at any time by the affirmative vote of a majority of the whole board of directors.”

This is a by-law of the corporation adopted by its stockholders, and confers a sweeping power of removal on the board of directors, with the qualification that it must be done by a majority of the whole board. Obviously, it contemplates removal without cause, and, therefore, without notice. It is a protective instrument placed in the hands of the corporate directors to be wielded at discretion, and of its existence, of course, the relator had knowledge when he took office. The president, as in most corporations, was elected by the board, and for adequate cause could not be removed by that body at any time without the aid of special authority. This being true, the by-law in question would be futile in its purpose if the existence of cause of removal and notice of hearing be essential to the exercise of the powers it confers.

If we were to look at the alleged causes we should be obliged to hold that they were wholly inadequate. Dr. Walker, so far as the evidence indicates, actuated by high motives, engaged in a move which had for its object the protection of the interest of the company of which he was the executive head. It was apparently an effort to avoid a recurrence of the same precarious situation in which the company had found itself when the Carbinol company was formed, but as we are foreclosed from a consideration of this phase of the ease by the removal under the plenary power vested in the board of directors by the by-law, we refrain from its further discussion.

In conformity with the views above expressed, we are constrained to deny the application for the writ, and the rule to show cause is accordingly discharged.


text:
    STATE OF NEW JERSEY, EX REL. CHARLES WITTKOP. RELATOR, v. SAMUEL G. GARNER, INSPECTOR OF BUILDINGS OF THE TOWN OF BLOOMFIELD, AND THE TOWN OF BLOOMFIELD, IN THE COUNTY OF ESSEX, RESPONDENTS.
    Argued October 7, 1925
    Decided March. 6, 1926.
    Honing—Garages—Building Ordinances—Construction Within Two Hundred Feet of Parochial School—Ordinance Provided That “No Garage for Other Than Private Use of Owner or Occupant Should be Erected," &c.—Held, That Garages Erected for Renting to Private Occupants Are Not Within the Restriction of the Ordinance—Ordinances in Derogation of the Untrammeled Use of Private Property Will be Construed With Strictness.
    On rule to show cause why mandamus should not issue.
    Before Justices Then chard, Katzenbach and Lloyd.
    For the relator, J. Harry Hull.

    For the respondents, Raymond F. Dmis.

   Per Curiam.

Charles Wittkop, the relator, is the owner of a tract of land in the rear of a lot fronting Bloomfield avenue, in the town of Bloomfield. As such owner he planned to construct forty-five separate and individual garages to be occupied by individual tenants. In each garage but one car was to be kept, and no gasoline or other oils were to be kept except only the gasoline contained in the particular ear. The relator applied to the respondent Garner, inspector of buildings, for a building permit to erect the proposed garages, and the latter failed to act. Relator then, on March 1st, 1934, applied to the town council for a permit, which body, after some delay, denied his application. A rule was thereupon granted against the respondents to show cause why a writ of mandamus or an alternative writ should not issue to compel the issuance of the desired permit.

The refusal of the application by the council was based on a zoning ordinance adopted May 14th, 1923. The ordinance in question, in its pertinent part, reads:

“No public garage or service station and no private garage for other than the private use of the owner or occupant of the premises upon which it stands shall be hereafter erected within a distance of two hundred feet from any public, parochial or private school, college, seminary, church, hospital, public library, day nursery or public building.”

In the early summer of 1924 the Sacred Heart Eoman Catholic Church erected a parish house on Bloomfield avenue, two wings of which are used as a parochial school, while other portions of the building contain an auditorium, pool rooms and bowling alleys. The part of the school nearest to the garages, if the latter are erected, will be sixty feet distant, but the properties are separated by a bowling alley forty-five feet wide and a vacant lot fifteen feet in width.

If the ordinance is a valid exercise of the police power, and if it applies to the present situation, the permit for the construction was properly denied inasmuch as the proposed garages are within the two hundred feet of the parochial school prescribed by the ordinance. That it is a valid exercise of the police power is supported by the case of Schait v. Senior, 97 N. J. L. 390.

It is contended, however, by the relator that under any reasonable construction of the ordinance it is not applicable to the present case.

The record before us contains a stipulation of facts, and from this it appears that the section in which it is proposed to erect the garages is a highly mixed one of private dwellings, hotels, apartment-houses (the latter accommodati ug nearly two hundred families), and that there is already a block of thirty-seven garages and a gas filling station, as well as a bowling alley attached to a hotel in close proximity to the lot of the relator and to the school.

It is conceded by the respondents in the stipulation that there is urgent need of garages in this section of the town. In addition, however, to the stipulation it is clearly apparent that unless garages are constructed in large numbers many of the residents in this part of Bloomfield (a town of 31,000 persons) will either be deprived of the use of automobiles altogether or will be obliged to store cars at such distance from their homes as the town authorities would see fit to hold open for the construction of garages.

In the present stage of the automobile (no* longer a luxury*-, but now a recognized necessity) and its uses, it will be assumed that the town council, when it adopted the ordinance of 1923, did so in view of the necessities of its people, and that it was not planning to defeat the very need which it now concedes to exist. There is at present a car to every seven inhabitants of the state, and it is fair to conclude that Bloomfield would at least avail itself of its full quota of such vehicles. This nearly approaches the proportion of a car to each family. To meet this condition many houses have now attached garages either on rear lots, on separate lots or as part of the dwellings themselves. With apartments, however, the situation is different. Unless accommodated in some such fashion as the one here contemplated, their tenants must be denied the privilege accorded to their more fortunate neighbors.

Looking at the ordinance in the situation as it stands we should not adopt a construction leading to this result except upon the plainest expression of intention. By its language the erection of garages is only forbidden for other than the private use of the owners or occupants in the localities named. The respondents contend that garages on owned land or in connection with rented residences are alone permitted. Such a construction would, as above stated, not only practically debar the use of cars by the numerous occupants of apartment-houses and the many others whose property would not permit of garage accommodation, but would be placing in the ordinance itself a purpose which we do not find expressed. The tenant of a garage who uses it to store his car is sis much an occupant of the garage as is one who occupies a rented dwelling and stores his car in a building on a rear lot. The definition of the word fully sustains this construction. Webster calls him “one who occupies or takes possession; one who has the actual use or possession.” In a literal and legal sense the tenant of each individual garage will he the occupant of the premises (the lot or piece of land) on which it stands. If it were the intention to limit the construction of garages on lots of those who owned or rented dwellings it was the duty of the council to so declare in language that would clearly express this purpose. This the council has not done. The ordinance is in derogation of the untrammeled use of private property and should he construed with strictness.

Our conclusion is that the ordinance by its terms fails to prohibit the construction here contemplated, and that the permit applied for was wrongfully denied.

The facts being admitted a peremptory writ of mandamus will he awarded.


text:
    CENTRAL LUMBER COMPANY, A CORPORATION, RESPONDENT, v. HERBERT H. SMITH, ALSO TRADING AS H. H. SMITH BUILDING COMPANY, PROSECUTOR.
    Submitted October term, 1925
    Decided March 5, 1926.
    Bail—Application for Writ of Certiorari Almost Two Years After Commencement of Action—Applicant, by His Own Action, Has Debarred Himself From the Review He Seeks.
    On certiorari &e.
    Before Justices Tbenchabd, Katzenbach and Lloyd.
    Eor the prosecutor, James P. Mylod.

    For the respondent, Stamler, Stamler & Koestler,

   Per Curiam.

On October 22d, 1923, the Central Lumber Company instituted a suit by capias in the Monmouth County Circuit Court against Herbert II. Smith, trading as H. H. Smith Building Company, and on the same day Smith was arrested. To this action bail was entered and an answer filed. On January 9th, 1924, a motion was made before Judge Daly for a hearing and the discharge of the defendant from arrest. On June 26th, 1924, the motion was denied. Application was then made to Mr. Justice Kaliseh for a writ of certiorari to review the order to hold to bail and the order of J une 26th, 1924. The case being on the calendar for trial on the 30th day of June, this application was denied and the case itself was tried on June 30th, 1924, resulting in a verdict for the defendant. On a rule for a new trial this verdict was set aside and a new trial granted. On October 3d, 1925, almost two years after the commencement of the action, notice of the present application for a writ of certiorari was given.

The applicant, by his own action, has debarred himself from the review he now seeks. By appearing to the action and pleading to the complaint he waived the right even to have the order to hold to bail set aside. Ferenga v. Moskowitz, 1 N. J. Mis. R. 169. In addition, after a lapse of nearly two years, during which time motions to set aside the writ and for a writ of certiorari were heard and dismissed, a trial had on the merits and the resultant verdict set aside, it would be an abuse of discretion to entertain the present application on the eve of a retrial of the case, and it is accordingly denied.


author: Pur Cubiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LOUIS BISHOP, PLAINTIFF IN ERROR.
    Submitted October 16, 1925
    Decided March 6, 1926.
    Crimes—Sale of Intoxicating Liquor—Unlawful Possession of Liquor—Assignments of Error and Specifications of Causes for Reversal Intermixed—Grounds Argued All Without Merit.
    Ou writ of error to the Cape May County Court of Quarter Sessions.
    Before Justices Tkenciiaed, Katzknbach and Lloyd.
    Por the plaintiff in error, William Harris and James Mercer Davis.

    Por the defendant in error, William II. Campbell, Jr.

   Pur Cubiam.

This is an appeal from a conviction o£ the defendant, Louis Bishop, in the Court of Quarter Sessions of Cape May county, upon an indictment containing two counts, one charging the unlawful sale of intoxicating liquors and the other the unlawful possession of intoxicating liquors. There are six “assignments of error” and nine “specifications of causes for reversal.” The assignments of error are all general In their character, no not identify any part of the record of the case, and, therefore, fall under the condemnation of the Court of Errors and Appeals as expressed in the opinion filed in the case of Cheshansky v. Insurance Companies, Nos. 37, 38 and 39.of the October term, 1925. The appellant, however, has attempted to argue five of the “specifications of causes for reversal,” also without identification of the precise parts of the record, which are intended to be brought up for review.

The assignments of error and the specifications of canses for reversal are intermixed in the appellant’s brief, and, without determining the legal sufficiency of this method of consideration, we have gone over the grounds argued by the appellant, and have reached the conclusion that they are all without merit.

In the brief the first point is: Because the court erroneously and illegally permitted the witness Dacey to testify to matters which did not take place in the presence of the defendant.

Bishop, the defendant, was the owner and proprietor of a building and café and bar room in North Wildwood known as the Hotel Hereford. The place had been in earlier days an ordinary drinking saloon with the usual fixtures, the fixtures still remaining at the time of the offense. On April 26th, 1924, a number of young men drove in an automobile from Philadelphia to Wildwood and to the defendant’s place of business, and it was on the evidence of these men, together with that of an employe of the defendant, that he was indicted and convicted. It appears that the party visited the place three times on the day in question, twice in the day and again at night. Bishop was at home in the day, and, possibly, at night. His bar was running with two bartenders, and the saloon was crowded when the party in question got its drinks. The place being the defendant’s and the employes, as was testified, under his direction and control, it was competent to prove what was going on in the café and saloon. No identification in the record is given as to what Dacey said, but, on an examination of the specifications of causes in which his testimony' is quoted, we see no cause for reversal.

The second point argued is: Because an intimation was allowed in the face of the fact that one of the members of the ‘party alleged to have purchased intoxicating liquor died.

We are directed to page 38, line 34, page 72, line 15, and page 115, line 17, of the state of the case as a means of identification of this point, but are unable to find any trace of any testimony bearing on the subject, and, in any event, there appears to be no question raised at the trial touching the point here involved.

The third point argued is: Because the court refused to permit the witness Green to be interrogated as to his relations with the state trooper.

Again, we are pointed to no part of the record except page 73, line 13, from which it appears that a state trooper had taken dinner at Green’s Hotel with some of the party who had been at the defendant’s place. No objection seems to have been made to any of this testimony nor to any ruling of the court. There is nothing, therefore, in the third point.

The fourth point is: Because the court permitted the witness Bosenthal to testify as to his conclusions as to what the liquid was he received.

From the rigid cross-examination of Eosenthal by appellant’s counsel, we think it was fully demonstrated that the former was quite an expert on the subject. It appears, also^ that no objection was made to the qualifications of the witness.

The fifth point is: Because the verdict was contrary to the weight of the evidence.

We think the verdict was fully sustained and the judgment is affirmed, with costs.


text:
    JOSEPH F. TIERNEY, PROSECUTOR, v. DELIA TIERNEY, RESPONDENT.
    Submitted October term, 1925
    Decided March 5, 1926.
    Landlord and Tenant—Legal Notice was Not Served on Tenant and Court was Accordingly Without Jurisdiction—Respondents Contend That Defect was Waived by the Prosecutor Entering an Appearance—If Jurisdiction was Only as to the Person This Would be so, but the Summons is Predicated Upon Service of Notice and is Made an Essential to the Court’s Jurisdiction.
    On certiorari.

    Before Justices Trenchard, Katzenbach and Lloyd.

      Por the presecutor, Thomas Brunetto.

    For the respondent, Lane, Lynch & Smith.

   Per Curiam.

Under the writ of certiorari granted in this case the prosecutor, Joseph F. Tierney, seeks to set aside a judgment of dispossession of his dwelling-house rendered against him in the First District Court of Newark for non-payment of rent at the suit of Delia Tierney. °

The grounds upon which the judgment is attacked are— (1) that the affidavit filed in said suit by Delia Tierney * * * does not allege sufficient facts to give the court jurisdiction; (2) that the affidavit filed in said court does not state facts indicating that a relationship of landlord and tenant existed between the said Delia Tierney and the said Joseph F. Tierney.

We think the judgment must be reversed on the ground first stated. The proceeding was begun under the act of 1925 (amending the supplement of 1924 to the Landlord and Tenant act of 1874), page 398. Section 1 of this act authorizes the proceeding to recover possession for, inter alia, ■non-payment of rent, but prescribes notice as a condition thereto in this language:

«* * * jn gjjy such case landlord or lessor may .cause a written notice of the termination of such tenancy to be served upon the tenant or lessee, and a demand that they remove from the premises in question within three days from such notice and demand, and, in case such tenant or lessee shall not so remove, it shall be lawful for the landlord or lessor [and if the landlord or lessor be a body politic and corporate in law, or a municipal corporation, the duly authorized officers thereof], after the expiration of said three days, to make and file with the clerk of the court an affidavit setting forth any or all of the causes for 'removal set forth, and of the service of such notice and- demand, and thereon it shall be lawful for a summons to duly issue for the summary removal of the tenant or lessee.”

The notice thus required was not served on the tenant, and the court was therefore without jurisdiction to hear and determine the case. The respondent contends that this defect, if it existed, was waived by the prosecutor in entering an appearance and participating in the trial of the case. If. the jurisdiction were only as to the person, this contention would be sound, but the issuance of the summons is predicated on the service of the notice prescribed as above, and is made essential to the court’s jurisdiction of the subject-matter. This could not be waived. Hadelman v. Harris, 93 N. J. L. 66.

The affidavit upon which the writ issued being insufficient, we have not considered the remaining reasons for setting aside the proceedings.

The judgment is reversed, with costs.


text:
    FREDERICK FEHN AND LAWRENCE RYDER, Jr., PROSECUTORS, v. WILLIAM F. KEARNEY, DIRECTOR OF PUBLIC SAFETY OF THE CITY OF ORANGE, RESPONDENT.
    Submitted October term, 1925
    Decided March 5, 1926.
    Public Officers—Policeman—Convicted on Charges of Conduct Unbecoming an Officer, of Conduct Subversive of the Good Order and Discipline of the Police Force and of Failure to Properly Patrol Their Posts—Proven That They Illegally Entered a Club Room Without Warrant and Took Without Authority Ice Cream—Dismissal Sustained.
    On certiorari.

    Before Justices Trenohard, Katzenbach and Lloyd.
    Eor the prosecutors, John W. McGeehan, Jr.

    For the respondent, William A. Galhoun.

   Pee Cueiam.

Frederick Pehn and Lawrence Ryder, Jr., were police officers of the city of Orange, with the rank of patrolman, and subject to the rules of discipline of the department of police. In these rules it was provided that—

“Any officer or member of the force shall be subject to reprimand, suspension or deduction of pay or dismissal, according to the nature and aggravation of his offense, for any of the following causes:

15. Conduct not becoming an officer and a gentleman.

17. Conduct subversive to the good order and discipline of the force.

18. Not properly patrolling post.

On April 28th, 1924, the prosecutors, Pehn and Ryder, were served with copies of charges preferred by the chief of police, as follows:

1. Conduct not becoming an officer and a gentleman, in that they, while on duty on March 28th, 1924, entered the kitchen of Union Lodge, No. 11, P. & A. M., located on Main street, in said city of Orange, without a search warrant, and without being requested so to do.

2. Conduct subversive of the good order and discipline of the police force in having entered the aforesaid kitchen at the time and place aforesaid.

3. In not properly patrolling their respective posts on March 28th, 1924.

On May 7th, 1924, the prosecutors entered pleas of not guilty to the charges before the respondent, William P. Kearney, director of public safety, and were placed on trial, found guilty on all charges, and dismissed from the police force.

' The present writ was allowed to review these convictions and dismissals.

The evidence taken at the trial is printed in full in the return to the writ, and from this evidence it appears that Union Lodge, No. 11, P. & A. M., had its club room and kitchen on the fourth floor of a building located on Main street, in the city of Orange; that on various occasions ice cream, which had been left in the kitchen, had been missing, and on the night of March 21th, 1924, a number of its members set a watch to discover the cause of its disappearance. The light in the kitchen had been extinguished, the curtains left up, the door locked and the key placed on the club room table by the custodian of the building. About one o’clock in the morning the prosecutors entered the kitchen by their own key, placed some of their equipment on the table, and were in the act of removing the ice from one of the cans, having first pulled down the curtains of the windows and turned on the lights, when they were confronted by the watchers.

The reasons for setting aside the findings and conclusions of the respondents all rest upon the claim that they were not justified by the evidence.

Technically, the men were guilty of a misdemeanor in entering the kitchen for the purpose (as it is quite apparent) of helping themselves to ice cream, and in doing what they did offended against the police regulations in all the particulars charged against them. While supposed to be patrolling their beats, they entered the kitchen without warrant and for an unlawful purpose. This was surely conduct unbecoming an officer and gentleman, and subversive of the good order and discipline of the force.

The action of the respondent in dismissing the prosecutors will be affirmed.


text:
    THE TREASURER OF THE CITY OF PLAINFIELD, RESPONDENT, v. ELI BUSSELL, PROSECUTOR.
    Submitted October term, 1925
    Decided March 5, 1926.
    Ordinances—Conviction for Violation—Appeal to Common Pleas —Appeal Dismissed on Ground That No Right of Appeal Existed—Statutes Examined and Order of Common Pleas Affirmed—Act of 1895, Providing for Review of Ordinances by Certiorari, Held Controlling.
    On certiorari.

    Before Justices Teenchaed, Katzenbach and Lloyd.
    For the prosecutor, William B. Wilson.

    For the respondent, Charles A. Beed.

   Pee Cueiam.

Eli Bussell, the prosecutor of the writ of certiorari issued in this case, seeks to review an order of the Common Pleas Court of Union county dismissing an appeal from a judgment of conviction rendered against him in the city court of Plain-field for violation of a city ordinance.

Upon his conviction in the city court the prosecutor appealed to the Court of Common Pleas. On motion of the respondent the appeal was dismissed upon the ground that no right of appeal existed. It is upon this point that the present proceeding turns, and its disposition depends upon the application and controlling effect of chapter 384 of the laws of 1895 (at p. 764). The validity of the judgment in the city court or the regularity of the proceedings in that tribunal are not here brought in question, but only the propriety of the order of the Court of Common Pleas dismissing the appeal.

Under the law as it stood prior to 1895 there was accorded to persons convicted of violation of city ordinances an ap* peal to the Court of Common Pleas by the city charter. Pamph. L. 1872, p. 1134; amended Pamph. L. 1873, p. 482. In 1874 a second supplement to the charter was enacted containing a provision that review should be solely by certiorari to the Circuit Court. Pamph. L. 1874, p. 302. This provision was held to be unconstitutional as infringing a prerogative of the Supreme Court, the first attempt to eliminate unnecessary reviews of petty offenses came to naught, and the right of appeal under the charter was held still to exist. Flangan v. Plainfield, 44 N. J. L. 118. Thus, matters continued until 1895, when the legislature, evidently realizing the general necessity of the limitation, attempted specially in the act of 1874, amending the Plainfield charter, passed the general act of 1895, supra, which act reads as follows:

“That in order to establish uniformity in the premises in all cities of this state, all judgments or other judicial proceedings of any city judge, police court or other inferior court, had for or on account of alleged violation of city ordinances or ordinances of the city boards of health, whether with or without a trial by jury, shall be reviewable by writ of cerliorari, in accordance with the rules and practices of the Supreme Court, and not otherwise.

“All acts and parts of acts, general or special, inconsistent herewith, are hereby repealed.”

The act has been twice amended, but not to in anywise affect the question here involved.

The mere reading of the act discloses a purpose to. establish uniformity in the review of the class of cases of which the present is an example. Its language is comprehensive and all inclusive, and the repealing sections repeal both general and special acts inconsistent with its provisions. The charter of Plainfield, by its own terms, is declared to be a general act (section 66), and, hence, falls within the repealing clause of the act of 1895.

Counsel for the prosecutor cites the case of Rahway v. Hunt, 74 N. J. L. 116, holding that the provisions of an act passed in 1883 (Pamph. L., p. 177), constituting police courts in certain cities operates to modify the charter of Eahway and preserves a right of appeal in eases of the class here under consideration.

This case was rightly decided on the effect of the act of 1883. Pamph. L., p. 177. Curiously, the act of 1895 was not brought to the attention of the court at the time, and its effect was not considered or passed upon. This is made clear by the opinion filed and by the later case of Roarke v. Buckley, 86 N. J. L. 33, in Which the act of 1883 is held to be superseded by the act of 1895.

Prosecutor calls to our attention the act of 1899, which, in section 34, gives a right of appeal in cases of this class, but omits to say that the act provides for a referendum and is not effective until its adoption upon a vote of the people. Inasmuch as the record does not disclose such adoption (and respondent asserts it has not been adopted) its provisions are inapplicable. No other statute has been called to our attention. We, therefore, conclude that the act of 1895 controls, and that the Court of Common Pleas was right in dismissing the appeal.

The order is therefore affirmed.


author: Pee Curiam.

text:
    HYMAN PHILLIPS, PROSECUTOR, v. WILLIAM A. FOSTER AND TRENTON AND MERCER COUNTY TRACTION COMPANY, RESPONDENT, RESPONDENT.
    Argued October 6, 1925
    Decided March 5, 1926.
    District Courts—Jurisdiction—Pleadings—State of Demand Contains Three Counts, Each for $500, and Prosecutor Claims That in Consequence the Total Claim Alleged Exceeded, the Jurisdiction of the District Court—An Examination of the State of Demand Discloses Only a Single Cause of Action— This is a Familiar Pleading More Used in Times Past.
    On rule to show cause.

      Before Justices Teestchakd, Katzenbach and Lloyd.
    For the prosecutor, Frank 0. Turner.

    For the respondent William A. Foster, Minton & Rogers.

    For the respondent Trenton and Mercer County Traction Company, Eatzenbach & Hunt.

   Pee Curiam.

The District Court act of 1898, as amended in 1910 (at p. 238), enacts that “every suit of a civil nature at law * * * where the debt, balance penalty, damage or other matter in dispute does not exceed, exclusive of costs, the sum of $500, shall be cognizable in the District Courts of this state,” and section 28 of the act of 1898 requires that there shall be entered in the body of every summons the sum demanded, and that the amount, with costs, shall be endorsed on the summons. This amount the defendant can pay and take a receipt from the officer having the process and be discharged from the claim.

William A. Foster brought suit in the Trenton District Court to recover for damages to his automobile in a collision between that automobile owned by the plaintiff Foster and an automobile owned by Hyman Phillips, while the latter was endeavoring to pass a trolley car of the Trenton and Mercer County Traction Company. Phillips and the traction company both were made defendants and the summons issued therein demanded damages in the sum of $500.

A state of demand was filed in three counts, each count setting up the foregoing facts in more detail, alleging negligence and claiming $500 damages—in two of them against Phillips and in one one against the traction company. Judgment being given for the plaintiff against Phillips alone, he obtained a rule to show cause why a writ of certiorari should not be allowed to review the proceedings had in the District Court. °

The prosecutor files three reasons in support of the rule, all based on the fact that the state of demand contains three counts, each in the sum of $500, and claims that the cause of action in consequence exceeded $500, and that the District Court was therefore without jurisdiction.

It will be noted that the statute gives jurisdiction when “the debt, balance, penalty, damage or other matters in dispute,” does not exceed $500,.and requires the amount to be set forth in the summons and endorsed thereon. When thus stated the amount has been given paramount importance. Drake v. Mowder, 89 N. J. L. 306; Rips v. Levitan, 3 N. J. Mis. R. 1171.

If, however, we examine the state of demand we think it exhibits a single cause of action arising upon the same facts, but pleaded in different counts, each as to amount claimed within the limit of the court's jurisdiction. This is familiar pleading in the law courts, and was used more largely in times past to meet the varying phases of proofs when amendments were not so easily obtained as at present. When predicated upon the same state of facts they were not regarded as claims independent or in combination, but a variant statement of one basis of action. In 15 Corp. Jur. 770, it is said: “A plaintiff in summary proceedings may insert in his petition several counts on the same cause of action, and it is no objection that the aggregate amount claimed by all such counts exceeds the jurisdiction of the court, provided no single count does so.”

In the United States courts a like situation has been held not to exhibit a cause of action as to amount in the combined sum of the different counts. Pooser v. Western Union, 137 Fed. Rep. 1001. In view of the effect given by statute to the statement incorporated in, and endorsed on, the writ, it may be doubted whether even though the state, of demand contained a sum beyond the jurisdiction of the District Court that this would be fatal, provided the verdict did not exceed the jurisdictional limit. McCauly v. Barnes, 1 N. J. L. 52. We are not, however, palled upon to go further than to hold that the state of demand does not set forth a cause of action in amount beyond the jurisdiction of the court.

The rule to show cause will be discharged.


text:
    IRVY MYERS, PROSECUTOR, v. STATE OF NEW JERSEY AND HENRY J. GAUTSCHY, BUILDING INSPECTOR, RESPONDENTS.
    Submitted October term, 1925
    Decided March 5, 1926.
    Ordinances—Incombustible Roofs in Fire Zones—The Enactment of Regulations to Prevent Fires Clearly a Proper Exercise of the State’s Police Power—Conviction for Using Shingles to Relay a Roof in Violation of an Ordinance Limiting Repairs of Such Roofs to Twenty-five Per Cent. Sustained.
    Oil certiorari, &c.
    Before Justices Teeistchaed, . Katzenbach and Lloyd.
    Por the prosecutor, Samuel A. Travers.

    For the respondents, William W. Evans (Irving L. Werksman, of counsel).
   Pee Curiam.

The prosecutor of this writ was convicted before the recorder of the borough of Hawthorne of violating an ordinance of the borough, which in section 16 provides as follows :

"Every building hereafter erected within the corporate limits shall have an incombustible roof covering, and no existing wooden shingle roof, if damaged more than twenty-five per cent., shall be renewed with other than incombustible roof covering.”

The evidence established that the prosecutor replaced an old shingle roof with an entire new one, also of shingles, on his residence at 196 Lafayette avenue, in Hawthorne. The house on which the roof was placed was in- a section of the borough where the houses averaged one hundred feet apart. The borough contains a population of seven thousand seven hundred and sixty-five and has an area of thirteen and one-half square miles, but only a small congested section was affected by the ordinance. The shingles used were known as a perfection red shingle which the evidence showed was combustible, and this fact is not disputed.

The borough’s authority to pass the ordinance is rested by the defendants on the Home Buie act of 1917, page 354, which in subdivision N of paragraph 1 of article 14 authorizes the municipality "to regulate and control the construction, erection, alteration and repair of buildings and structures of every kind.”

The sufficiency of the' statute to justify the present proceeding and the ordinance upon which it rests is disputed by the prosecutor, who cites'cases from other states to sustain his contention. They are on different statutes, however, which do not seem to cover repairs.

We think subdivision N by its language covers the situation here -presented. It is evidently intended to confer on all municipalities the power to protest the lives and property of their people against the ever-eminent danger of fire, and, within reasonable limits, to reduce this danger to- the lowest point consistent with the dominion reserved to the individual owner over his property under the constitution. That the state has the power to limit the replacement of roofs with combustible materials in built-up communities we think clear. The roof is the one point of all buildings where ignition from fires is most likely to- occur. If inflammable the danger is greatly magnified. Sparks lie there, and, eventually, burst into flames. From the walls they fall to the ground and die. It is common knowledge that, pre-eminently, from this source great conflagrations spread.

Having the power the state could confer a like power on municipal authorities, and, as stated, we think it has done so.

The foregoing facts and reasoning lead us also to the conclusion that the ordinance is not unreasonable or discriminatory. The houses in the section set out in the fire zone are so near together as to justify special provisions for their protection, and the prosecutor has failed to establish that there is discrimination in fixing this zone.

After conceding that if the section of the ordinance in question is a valid and proper exercise of the police power the present proceeding must fail, the prosecutor proceeds to attack the penalty imposed as exceeding the legal limit, and cites statutes and decisions prior to the act of 1917. To this the answer is that the act of 1917, at page 347, authorizes penalties of imprisonment not exceeding ninety days, or a fine not exceeding $300. The ordinance in question provides “a fine of not more than $50, and the officer before whom any person or persons offending may be brought, on conviction, shall impose a fine in the discretion of such officer, of not more than $50.”

The prosecutor was convicted and sentenced to the maximum fine. Of this he cannot complain legally, nor actually, as, we think, inasmuch as he had been cautioned by the authorities against proceeding with the use of the shingles with which the roof was recovered.

The judgment will be affirmed, with costs.


text:
    EDWARD CAHILL, RELATOR, v. FRANK HAGUE, JOHN SAUL, A. HARRY MOORE, MICHAEL J. FAGAN AND WILLIAM B. QUINN, BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, AND JOHN SAUL, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Submitted October 16, 1925
    Decided March 2, 1926.
    Zoning—Garage in Restricted Locality—Case Controlled by Ignaciunas v. Risley.
    On rule to show cause why writ of mandamus should not issue.
    Before Justices Tbenchaed) Katzenbach and Lloyd.
    For the relator, Richard Doherty.

    For the respondents, Thomas J. Brogan.

   Pee Cueiam.

This case is before us on a rule to show cause why a writ of mandamus (peremptory or alternative) should, not issue requiring the board of commissioners of Jersey City and John Saul, superintendent of buildings of Jersey City, to issue a permit to Edward Cahill, the relator, for the construction of a fireproof garage on the rear of premises owned by him in the city of Jersey City, known as Nos. 211-213 Harrison avenue. The building for which a permit is sought is to replace one that was burned. The burned building had originally been used as a stable in connection with the residence of the relator. Its use as a stable was discontinued some years ago'. It was then used as a garage. The relator desires to construct in the place of the burned building a fireproof garage to accommodate nine cars. The building permit was refused upon the ground that the relator’s property was within a district zoned for residences. An appeal was taken to the city commissioners. The commissioners, sitting as a board of appeals, on June 2d, 1925, passed a resolution denying the application and assigning as the reason for its denial “that the building, under the law, cannot be reconstructed for garage purposes.” This reason we think the same as the one previously given, namely, that the proposed building was to be erected in a section zoned for residences. The testimony shows that within seventy-five feet of the relator’s residence there are five public garages. At the end of the street there are seven or eight public garages. There are garages connected with every house on the block. The Cadillac service station is next to the relator’s property. In the rear of the relator’s property is located the Belle Meade Corporation’s garage, which is a public garage. There are six garages across the street.

The respondents seek to bring the present case within the ease of Max v. Saul, 3 N. J. Mis. R. 265 (a Jersey City case). Tn the case of Max v. Saul, however, the garage was to be built within ten feet of a private dwelling, contrary to an ordinance of Jersey City. It was held that this prohibition was a proper exercise of the police power. In the present ease the proposed garage is not to be built within ten feet of a private dwelling. We cannot see in what way the proposed building is detrimental to the health, safety or general welfare of the community. We think the case is controlled by the ease of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 125 Atl. Rep. 121.

A peremptory writ of mandamus is awarded.


text:
    THE STATE, EX REL. THE NEW JERSEY SUBURBAN WATER COMPANY, RELATOR, v. JOSEPH P. RIORDAN AND FRANCIS J. McDONALD, THE MAYOR AND TOWN CLERK, RESPECTIVELY, OF THE TOWN OF HARRISON, RESPONDENTS.
    Submitted January 2, 1926
    Decided March 1, 1926.
    Water Supply—Act of 1923 Confers Upon Municipalities the Right to Contract for Water Supply Independent of the Restrictions and Other Provisions of the Home Rule Act—The Contract Between Relator and Town of Harrison Sustained and Writ Directing Its Execution by the Proper Municipal Officers Awarded.
    On alternative writ of mandamus, &c.

    Before Justices Trenchard, Katzenbach and Lloyd.
    Eor the relator, Dembe & Dembe (Thomas J. Brogan, of counsel).
    Eor the respondents, Joseph P. Riordan and Mark. A Sullivan.

   Per Curiam.

In this case there is an alternative writ of mandamus, a return thereto made by the respondent Riordan, a plea to the return, and depositions. Thereby the following matters of fact are established without dispute:

On June 26th, 1924, the relator, the New Jersey Suburban Water Company, a corporation of the State of New Jersey, offered in writing to the town of Harrison, a municipal corporation of the State of New Jersey, an extension of a contract now existing between both these parties for the supplying of water by the company to Harrison, such extension to be for a period of fifteen years from the date of the expiration of the present contract above referred to, which will expire in 1928, upon the same terms and conditions as are contained and set forth in the present agreement, excepting that the rate to be paid for water shall be $104.25 per million gallons instead of $82.50 per million gallons, and excepting, also, that the new rate of $104.25 per million gallons shall be subject to such modifications as may be made therein by the public utility commission of the State of New Jersey upon the application of either the town or the company; that on July 15 th, 1924, the town, by its mayor and common council, adopted a resolution accepting such offer of extension in all its particulars without change, and further by such resolution directed its corporation counsel to prepare an agreement between the town and the company in accordance with such offer and acceptance, and further resolved that the proper officers of the town be authorized and directed to execute such agreement when submitted by the said corporation counsel; that such corporation counsel did prepare and submit an agreement between the parties embodying the terms above set forth in the offer and acceptance, and that the signatory officers for the town, to wit, Joseph P. Riordan, its mayor, and Francis J. McDonald, its town clerk, have refused to sign and execute such agreement in accordance with the resolution of the town.

The respondent Joseph P. Riordan, in his return, says that he should not be compelled to sign the contract referred to, because (a) the contract has no approval of the governing body of the town endorsed thereon, nor is any security given for the performance of the same, as required by “An act concerning municipalities,” article 32, section 7 (Pamph. L. 1917, p. 434); (b) that the contract is for supplies, and as such should be advertised and awarded to the lowest bidder, as required by the act concerning municipalities, article 11, section 1 (Pamph. L. 1917, p. 347); (c) that the acceptance by the town of the offer by relator is an unreasonable and improvident exercise of the power of the council of the town and a palpable abuse of its discretion.

The question thus raised will now be considered.

The contract in question was entered into under the authority of chapter 194 of Pamph. L. 1923, entitled “An act to authorize municipalities and water companies to contract for a supply or an additional supply of water for domestic and public use in any municipality, or in all municipalities supplied, or to be supplied, with water by a water company, or water companies with which such contract is made.”

Section 1 thereof provides that "any municipality, or two or more municipalities of this state, may make and enter into a contract with any water company, or more than one water company, for a supply of water, or an additional supply of water, for domestic and public use therein, for a period not exceeding thirty years, on such terms and conditions, at such rates, and with such exclusive provision for revision of rates from time to time as may be agreed on, and any such company or companies is and are hereby authorized to make and enter into such contract.”

Section 4 provides that "all acts and parts of acts inconsistent with this act be and the same are hereby repealed.”

This statute is an independent, separate act which enables a municipality and a water company to enter into the precise kind of a contract now in question, and does not require, as did the act concerning municipalities of 1917, that the approval of the governing body of the town be endorsed upon the contract, nor does it require any security as a condition precedent to the execution of the contract.

Also, we think that the town, acting under the act of 1923, page 502, was not required by section 1 of article 2, chapter 152 of laws 1917, page 347, to call for bids for the water supply in question.

True, section — of article 2 of the latter provides that “no municipality shall enter into any contract for the doing of any work or for the furnishing of any materials, supplies or labor, the hiring of teams or vehicles, where the sum to be expended exceeds the sum of $500,'unless the governing body shall first publicly advertise for bids therefor, and shall award the said contract for the doing of said work or the furnishing of such materials, supplies or labor to the lowest responsible bidder.”

But that section is not applicable to a - contract for the extension of an existing contract for a water supply made pursuant to the act of 1923 (page 502), which is a broad, comprehensive and independent statute, and authorizes any municipality, or two or more municipalities, to make a contract with any water company or more than one water company for a supply of water for domestic and public use for a period not exceeding thirty years, on such terms and conditions, at such rates, and with such exclusive provision for revision of rates from time to time as may be agreed upon.

The case of Van Reipen v. Jersey City, 58 N. J. L. 262, is not in point. In that case the court pointed out that the act of 1888 “authorizes a contract for water supply without specifying how that contract shall be entered into;” that there was no inconsistency between the act of 1888 and the charter provision of Jersey City (Pamph. L. 1871, p. 1162) for call for bids for work and materials) and that “the fourteenth section of the act of 1891 [Pamph. L. 1891, p. 249, and applicable to Jersey City] clearly indicates the legislative purpose to preserve the charter provision of 1871 and to apply it to all contracts.” As we have pointed out, the act of 1923 authorizes the municipality to make such contract “on such terms and conditions, at such rates, and with such exclusive provision for revision of rates from time to time as may be agreed on,” and further provides that all parts of acts inconsistent with its provisions are repealed. One reason for this legislation no doubt was that, since the adoption of the Public Utilities act of 1911, a contract between a municipality and a water company, fixing the rate to be charged for service, imposes no restrictions on the sovereign power of the state to fix just and reasonable rates as subsequent conditions may make desirable, and when the state, through its board of public utility commissioners, exercises its sovereign power over rates, the contract rights of the parties must yield. Hackensack Water Co. v. Public Utility Board,, 96 N. J. L. 184.

There is no showing here that the contract in question is an unreasonable or improvident exercise of power or a palpable abuse of discretion. It is not shown to be so by the fact that it was- made four years in advance of the expiration of the present contract, nor by the fact that, subsequent to the making thereof, a proposition was received from another source for a supply at a lower rate. The resolution resulting in the contract received the vote of six of the eight members of council, including that of the respondent, and has not been rescinded. The governing body may well have considered, and is presumed to have considered, it unwise to take chances on obtaining a supply on short notice or at random; and the respondents concede in their brief that the rate “means very little, for the reason that the contract provides that either party may apply to the public utility commission for a modification of the rate.” Moreover, such questions should have been raised, if raised at all, by certiorari.

The relator is entitled to- judgment, and a peremptory writ of mandamus will be awarded.


text:
    LESTER CHARLOCK, PETITIONER-DEFENDANT, v. M. W. KELLOGG COMPANY, RESPONDENT-PROSECUTOR.
    Decided March 2, 1926.
    Workmen’s Compensation—Case Dismissed by Bureau, but Upon Appeal, Common Plea® Held Accident Occurred in Course of Employment—Prosecutor Here Contends That Common Pleas Erred in Not Treating as Conclusive the Determination of the Bureau, and That Findings of the Common Pleas are Not Supported—Held, That the Common Pleas Hears the Case De Novo and That the Supreme Court Will Not Interfere With the Common Pleas’ Finding of Fact if There Is Evidence to Support it.
    On writ of certiorari.

    Before Justices Trenchabd, Katzenbach and Lloyd.

      Eor the respondent-prosecutor, Kellogg & Chance.

    For the petitioner-defendant, Lazarus, Brenner & Vickers (George T. Vickers, of counsel).
   This case is before us upon a writ of certiorari. The writ brings up the record of the Hudson County Court of Common Pleas in a workmen’s compensation case. Lester Char-lock, a boy of eighteen years of age, was, on March 15th, 1934, in the employ of the M. W. Kellogg Company at their plant-in the city of Jersey City. On that day he lost a leg by having it caught in a rope attached to a winch, which at the time he was operating. The accident is admitted. The case was first heard before a deputy commissioner of the workmen’s compensation bureau. The deputy commissioner found against the petitioner upon the ground, that he had not sustained the burden of proof cast upon him to show that the accident arose out of and in the course of his employment. The petition was dismissed. An appeal was then taken to the Hudson County Court of Common Pleas. The ease was heard de novo under the statute on the proofs taken before the deputy commissioner. The Court of Common Pleas made a finding of fact to the effect that the petitioner’s injury arose out of and in the course of his employment. Compensation and counsel fees were awarded. The M. W. Kellogg Company then applied for and was allowed the writ of certiorari under which the record is brought to this court for review.

The prosecutor makes three contentions. These are—first, that the Court of Common Pleas erred in not treating as conclusive and binding the findings and determinations of the workmen’s compensation bureau, which were supported by legal evidence; second, that the conclustion stated by the Court of Common Pleas in the “finding of facts and determination” is not supported by the specific finding of such facts as may be submitted to and considered by the court of review, as justifying such conclusion; and, third, that the evidence does not support a finding of fact sufficient to justify the conclusion that the petitioner’s accident arose out of and in the course of his employment.

We find no merit in the first point. The act, by its terms, contemplates a review of the evidence by the Court of Common Pleas. The act of 1918 (Pampb. L., p. 429) grants a trial de novo in the Court of Common Pleas to the party appealing. The 1921 amendment of the act (Pampb. L., p. 734) directs that the trial of such appeal shall be exclusively upon the transcript and testimony taken before the workmen’s compensation bureau, and that the judge of the Court of Common Pleas shall, in a summary manner, decide the merits of the controversy, and that the judgment of that court on such appeal shall be conclusive and binding. The only difference between the act of 1918, as amended by the act of 1921, is that prior to the 1921 amendment the judge of the Court of Common Pleas heard the case de novo, that is, he heard the evidence anew. After the act of 1921 only the evidence taken before the workmen’s compensation bureau was to be. used upon an appeal. The difference in method provided by the 1921 amendment did not in any way alter the provision that the trial was to be a de novo trial. The appeal provides a new mind for the consideration of the testimony adduced. It was not intended by the legislation referred to that the Court of Common Pleas upon the appeal should be limited merely to questions of law as it would be if the contention of the prosecutor is well founded.

We likewise think the second point advanced by the prosecutor is not well taken. The finding of fact was sufficient if the final conclusion reached by the judge of the Court of Common Pleas is justified.

After a review of the evidence we have reached the conclusion that there is in the record evidence sufficient to justify the finding of the Court of Common Pleas that the claimant received his injury as the result of an accident arising out of and *in the course of his employment.

The petitioner, Charlock, was a general laborer or helper in' the shops of the prosecutor. The prosecutor had four shops in its plant. When the petitioner was injured he was operating the winch which was located in shop No. 3. This winch was driven by steam. There was attached to it a steel cable which pulled a truck back and forth through the shops. The particular work of the petitioner immediately prior to the accident was that of pickling pipe. This consisted of cleaning off the pipe in tanks provided for that purpose. The tanks were located at the end of the line where the truck operated by the winch stopped. The winch was used to operate the truck when it was carrying pipe to and from the pickling place. The petitioner had operated the winch a number of times. He had been told to operate it by a student, which was the name applied to one learning the trade. The gang foreman also had told him to operate the winch. On one occasion the foreman had directed him to operate the winch and bring a welding machine from one shop to another. On the day of the accident the petitioner had ceased his regular work. He had gone to the general foreman’s office, located in shop No. 1. He had there received orders to go back and start the new order of pipes. On his way back he stopped in shop No. 3, where the winch was located. He started the machine in operation. The regular operator, who was a man by the name of Kunkle, was not there. The accident then occurred in the manner stated. The petitioner was questioned by the deputy commissioner. The petitioner, in answer to these questions, said that he had operated the machine about two weeks after he had commenced to work in the prosecutor’s plant. He did this at the instance of one of the students. Duggan, the foreman, had also asked him to operate the winch. Duggan was his gang foreman. In answer to why he had started the machine on the day of 'the accident he stated that he was helping a man who usually operated it. He said that it was the custom for employes to help one another. This custom was known to Duggan. Duggan had been present when the petitioner and Henry (another employe) or Kunkel would relieve each other. The petitioner further testified that he had been paid overtime for work on the winch.

Erom this testimony it can be gathered that while the petitioner’s particular work was that of cleaning pipe, yet his work was not limited to that, and it was so understood by his employer through its foreman. We think the testimony justifies an inference that the winch would sometimes be operated by a helper, who would facilitate Hunkel’s work by so doing; that the petitioner was at times such an assistant; that this was done with the knowledge of his superiors; that it was not forbidden;' that on one or more occasions he had been directed to do this work, and that through the plant there was more or less an interchange of work. Erom this testimony it was a question of fact for determination whether from this state of facts there was sufficient evidence to justify the finding that the work which he was doing at the time of his injury was a part of his employment. The judge of the Court of Common Pleas found from this testimony that the operation of the winch was a part of the petitioner’s employment. It follows that the petitioner was then injured in an accident arising out of and in the course of his employment. • A finding of fact by a Common Pleas judge in a workmen’s compensation case is conclusive upon this court if there is any evidence to support it. Pfund v. Kauffeld, 97 N. J. L. 335; Lunday v. Brown & Co., 93 Id. 107. We think in the present case there was evidence to support this finding of fact. This leads us to an affirmance of the judgment of the Hudson County Court of Common Pleas. The judgment is accordingly affirmed.


text:
    WILLIAM F. LATIMER, PROSECUTOR, v. C. FRANKLIN WILSON ET AL., RESPONDENTS.
    Submitted October 16, 1925
    Decided January 15, 1926.
    Motor Vehicles—Drunken Drivers—Defendant Alleges No Proper Return to Warrant—Defendant was in Court and Cannot Now Complain.
    On writ of certiorari to the judge of the Court of Common Pleas of Morris county.
    Before Justices Teenciiaed, Katzerbaoh and Lloyd.
    Eor the prosecutor, Wolber & Gilhooly.

    For the respondents, David F. Barhman.

   Pee Curiam.

This case is before us by virtue of a writ of certiorañ directed to the judge of the Court of Common Pleas of the county of Morris. The writ brings up the conviction of the prosecutor, William F. Latimer, for violation of section 14, subdivision 3, of chapter 208 of the laws of 1921, as amended by chapter 211 of the laws of 1924. On June 7th, 1925, a complaint under this section of the statute was made against the prosecutor. The complaint alleged that on June 7th, 1925, on a public highway of the township of Denville, in the county of Morris, namely, on Rockaway road, the prosecutor operated a motor vehicle while under the influence of intoxicating liquor. Upon this complaint a warrant was issued commanding that the body of Latimer be taken before Thomas J. Hannon, Esq., justice of the peace. The state of the case shows that Latimer was brought before the justice of the peace, and that a hearing was had in which Latimer testified in his behalf. Latimer was found, guilty and a sentence of thirty days in the Morris county jail was imposed by the justice of the peace. Latimer then availed himself of the right of appeal by giving the customary notice of appeal. A trial de novo in the Court of Common Pleas was afforded Latimer. This court, after hearing all of the testimony offered in support of the complaint and Latimer’s witnesses, which included Latimer, found Latimer guilty and imposed a sentence of thirty days in the Morris County jail. A writ of certiorari was then applied for and allowed. When the case was moved in the Morris County Court of Common Pleas, a motion was made for the dismissal of the case on the ground that there was no proper return on the warrant issued by the justice of the peace, and for that reason the justice of the peace who tried the defendant was without jurisdiction to try and convict him. We see no merit in this contention. The warrant was issued. Latimer was in court. He participated in the trial.

The warrant commanded that the defendant’s body be taken and brought before the justice of the peace. As Latimer was present, either the warrant was executed or Latimer appeared voluntarily. He made no objection to the absence of any return on the warrant. The justice of the peace had jurisdiction of the subject-matter. The participation by Latimer in the trial on the merits waived any question as to whether or or not the justice of of the peace had acquired jurisdiction of the person of the accused. Latimer could not participate in the trial and take his chances of a favorable outcome thereof, and then, if the outsome were not favorable, make the contention, which he now does, that there was no proper return endorsed on the warrant. His presence and participation in the trial waived any question of jurisdiction over his person and any defect in the return, if such there was. State v. Rosenbloom, 3 N. J. Adv. R. 1713. (Not as yet officially reported.)

The prosecutor next argues that the Court of Common Pleas was without jurisdiction to try and convict the defendant, for the reason that there was no return to the warrant issued by the justice of the peace. This is, in effect, the same question as has already been considered. The answer to the contention is the same. Latimer by his presence and participation in the trial before the justice of the peace vaived any defect in the return of the warrant.

The two points, which are substantially one, which we have considered, are the only points which, in our opinion, the prosecutor is entitled to argue in this court. The insufficiency of the warrant, on the ground that there, was no proper return made thereon, was the only point raised in the Court of Common Pleas. It is a well-settled principle that in a court of review only those points which was raised and determined below can be considered. Ryer v. Turkel, 75 N. J. L. 677.

This precludes the consideration of the questions briefed by counsel of the prosecutor as to the constitutionality of the act under which the proceedings were instituted, in that it deprived the prosecutor of a trial by jury and gave to the Court of Common Pleas the power to try, summarily, without a jury, a criminal offense, and provided for compulsory imprisonment in the workhouse.

The judgment of the Morris County Court of Common Pleas is affirmed.


author: Pee Cubtam.

text:
    WILLIAM T. NEWBURY, PROSECUTOR, v. RULIF V. LAWRENCE, JUDGE, AND THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF MONMOUTH, THE STATE OF NEW JERSEY, AND WILLIAM S. HOLMES, RESPONDENTS.
    Submitted October 16, 1925
    Decided March 2, 1926.
    Motor Vehicles—Drunken Drivers—Seven Reasons Urged for Reversal are Examined at Length and Conviction Sustained.
    On writ of certiorari to the judge of the Court of Common Pleas of Monmouth county, and William S. Holmes.
    Before Justices Tkenchakd, Katzbnbach and Lloyd.

      For the prosecutor, James Mercer Davis.

    For the respondents, StoTces <& McDermott (William -HartsHorne, of counsel).
   Pee Cubtam.

This case is before us on a writ of certiorari directed to the judge of the Court of Common Pleas for the county of Monmouth, and William S. Holmes. The writ brings up the conviction of the prosecutor, William T. Newbury, at a .trial de novo in the Monmouth County Court of Common Pleas, upon the complaint made against the said William T. Newbury under subdivision 3, section 14, chapter 808 of the laws of 1981. This is 'the section prohibiting any person under the influence of intoxicating liquor * * * from operating any motor vehicle owned by him or in his custody or control.

The complaint was made by G. C. Paxton. It was subscribed to before W. A. Holmes, mayor. A warrant was issued upon this complaint and directed to any police officer of the borough of Freehold. Newbury was taken into custody under this warrant and brought before W. S. Holmes, who was the mayor of the borough of Freehold.. The complaint charged “that the said William T. Newbury did on the 1st day of July, 1985, on a public highway of the borough of Freehold, &c., to wit, on West Main street, said West Main street being at said time and place a public highway in the State of New Jersey, operated a motor vehicle while under the influence of intoxicating liquor and narcotics, a habit-producing drug, in such a manner so as to cause an accident with another motor vehicle, all of which is contrary,” &e.

Newbury was given a hearing before the mayor. Four witnesses testified that he was driving a car when intoxicated. Newbury testified in his behalf. He was convicted by the mayor and committed to the common jail or workhouse of the county of Monmouth for a period of thirty days.

Notice of appeal to the Court of Common Pleas was then given. On July 34th, 1935, a hearing of the appeal was moved before the judge of the Monmouth County Court of Common Pleas. Counsel for Newbury asked for a dismissal of the proceedings and a discharge of the defendant upon the following grounds: (a) Because the complaint had not been properly sworn to before the magistrate, who, as mayor of the borough of Freehold, had no jurisdiction; (b) because no official seal was attached to the complaint and warrant; (c) because the authority of the mayor to take the complaint and issue the warrant was not shown and does not appear. These objections were overruled. The court proceeded to a hearing and trial of the appeal de novo. New-bury was found guilty and sentenced to be committed to the common jail of the county of Monmouth for a period of thirty days. The writ of certiorari was allowed by Mr. Justice Minturn.

There are seven reasons urged for reversal. The first two are substantially the same. The argument is advanced that the conviction is abortive, because the original proceedings failed to set out the authority by which the person before whom they were had had jurisdiction. It seems to us there are two answers to this proposition. The first is that it can be inferred from the complaint and the record of the proceedings that W. S. Holmes was the mayor of Freehold, The complaint shows that the offense was committed in Freehold ; that the warrant was directed to any constable or any police officer of the borough of Freehold; that the proceedings were conducted at Freehold before the mayor, who signed the conviction and commitment as mayor, borough Freehold. In the second place, it is conceded in the brief for the prosecutor that the mayor of Freehold did have jurisdiction of the subject-matter. Such being the case, the prosecutor, by appearing and taking part in the proceedings, waived any defect in the proceedings. In the recent case of State v. Rosenbloom, 3 N. J. Adv. R. 1713, in which the opinion for the Court of Errors and Appeals was written by Chief Justice Gummere, it is held that where a magistrate has jurisdiction of the subject-matter participation by the' accused in a trial on the merits or participation in a trial de novojsi a Court of Common Pleas waives any question as to the jurisdiction of the person or any defects in the proceedings.

The next point made in behalf of the prosecutor is that the complaint did not charge Newbury with any offense set out in the statute. We think this' argument is not well founded in fact. The complaint has already been set forth. It sets forth that the prosecutor did operate an automobile while under the influence of intoxicating liquor and narcotics'in sucha manner as to cause an accident with another motor vehicle. Counsel for the prosecutor contends that you cannot tell from the complaint whether the charge ■ is operating a vehicle while intoxicated or while under the influence of narcotics, or because operated so as to cause an accident with anotoher motor vehicle. The complaint is not as exact or as artistically drawn as it might be. We think, however, that it sufficiently apprised the prosecutor of what charge or charges he must meet. Furthermore, this point was not advanced in the court below. It canont be made now. Turkel v. Ryer, 75 N. J. L. 677.

The third point is that no conviction of the prosecutor of. any violation of the Motor Yehicle act was ever made by W. S. Holmes, mayor of the borough of Freehold. This is not well founded in fact. The conviction and commitment is signed by William S. Holmes, as mayor of the borough of Freehold. Moreover, the only conviction which can now be complained of is that of the judge of the Court of Common Pleas. Any defect in the conviction and commitment made by Mayor Holmes has been waived by the appeal for a trial de novo in the Court of Common Pleas. This point was also made in the court below and need not be considered here. The fourth ground urged by the prosecutor is that the Court of Common Pleas failed to vacate the proceedings had below. It is contended that the appeal is a proceeding de novo and the judgment of that 'court becomes conclusive and final, but that there is still outstanding the formal conviction had before Mayor Holmes, which was’ not vacated, so that it is possible for the defendant to be committed to the county jail by the conviction before Mayor Holmes, and later to have lodged against him the conviction by the Common Pleas Court. We see no merit in this point. The conviction and commitment by the Court of Common Pleas takes the place of the conviction and commitment by Mayor Holmes.

The last point urged by the prosecutor for reversal is that there is no commitment in existence made by the judge of the Court of Common Pleas. The record of the conviction as set forth in the state of the case states: “It is accordingly ordered that said defendant, William T. Newbury, be and he is hereby committed to the county jail of the county of Monmouth for a period of thirty days.” This is signed by the presiding judge of the Court of Common Pleas of Monmouth county, Hon. Bulif Y. Lawrence. With a record in existence showing that the court adjudged the prosecutor guilty and sentenced him to the common jail of the county of Monmouth for thirty days, it cannot be said that there is no commitment. When the prosecutor is taken and delivered to the keeper of the jail the usual commitment will be signed by the judge. The allowance of the writ of certiorari acted as a stay in this regard. What counsel for the prosecutor asks is that, in the face of the adjudication that New-bury is guilty, he should be permitted to escape punishment, because the commitment which the writ of certiorari has stayed the issue of has not been actually signed. We see no merit in this argument.

The judgment of conviction is affirmed.