text:
    MICHAEL MARGUES, PLAINTIFF-RESPONDENT, v. LEWIS MIR, DEFENDANT-APPELLANT.
    Decided June 11, 1926
    Negotiable Instruments—Promissory Note—Defendant Made a Series of Notes Falling Due at Stated Intervals Without Interest—Notes Were in Payment of Partner’s Interest In Business—There was an Agreement That if Default was Made on Any One of the Notes, All Would Become Immediately Due—Default was Made on One of the Prior Notes— Upon Trial for This Default the Contention of Plaintiff That All Were Due was Not Sustained—This Did Not Constitute a Defense of Res Adjudicata for Default in Payment of This Note at Maturity.
    On appeal from the Hudson County Court of Common Pleas.
    Before Gummere, Chief Justice, and Justices Kalis ch and Campbell.
    For the appellant, Joseph M. Alsoform (Leo Blumberg, of counsel).
    For the respondent, Alex. B. Desevo (Alexander Simpson, of counsel).
   Per Curiam.

This is an appeal from a judgment of the Court of Common Pleas of Hudson county, in which tribunal a verdict was directed by the trial judge in favor of the plaintiff and against the defendant, in an action upon a promissory note for the sum of $2,000, with interest, from January 1st, 1925, which interest was calculated to be $120.

The two grounds of appeal relied on for reversal are— first, that the trial judge erred in directing a verdict for the plaintiff; second, that the trial judge erred in refusing to direct a verdict for the defendant.

The present action was brought to recover $2,000 due on a promissory note, of the following tenor:

“$2,000. September 26th, 1922.

January 1st, 1925, after date, I promise to pay to the order of.Michael Margues, two thousand dollars, without interest, value received.

Due January 1st, 1925.

No. 2. Lewis Mik.”

To the plaintiff’s complaint, after denying the allegations contained therein, the defendant set up the following defenses : 1. “Res adjudicata-.” 2. The note was executed without any consideration. 3. That the note was executed under duress.

The case came on for trial on May 25th, 1925, and the defendant, being called on behalf of the plaintiff, testified that he signed the note. He was asked: “Have you paid any part of the $2,000 due on it?” The witness answered, “No, sir.” He was not cross-examined, and the plaintiff rested his case.

The defendant’s counsel, on behalf of the defendant, offered in evidence the summons and the complaint in the case of Michael Margues against Lewis 'Mir, in the Hudson County Court of Common Pleas, tested August 2d, 1925. He also offered in evidence the amended answer, the rule for judgment entered January 22d, 1925, on motion of Alexander Simpson, attorney for plaintiff, in book 22 of the minutes of the Court of Common Pleas.

Joseph Alsofrom, the defendant’s attorney, then took the stand and testified that he was attorney of record in a prior suit brought by the same plaintiff, Michael Margues, against Lewis Mir, the defendant, and that he was present at the trial, and that the plaintiff’s Exhibit P-1 was one of the notes included in the plaintiff’s complaint and offered in evidence.

In that complaint the plaintiff sued to recover from the defendant the sum of $36,000, arising out of a transaction between the parties, 'in which the plaintiff, being the owner of a one-third interest in the business, carried on by him ' with the defendant and another person, sold his interest in the business to the defendant on the 26th day of September, 1922, for the sum of $40,000, of which sum the defendant paid to the plaintiff $4,000 in cash and executed thirteen promissory notes for $2,000 each, payable without interest, the first note to fall due on January 1st, 1924, and of the remaining twelve notes, one was to become due and payable on January 1st of each succeeding year until the entire series was paid, so that the last note of the series was made due and payable on January 1st, 1926. The complaint further alleged that one of the notes was due on January 1st, 1923, and was not paid, and that, under an agreement had by the plaintiff with the defendant, if any of the notes was not paid in time,- then the entire balance became due. And this was one of the issues involved in that action, and was decided adversely to the plaintiff by the jury. In so far as to that particular question the former case is controlling, and set the matter at rest. But no such issue was involved in the present action. Counsel of appellant states his position to be that, while it is true that on January 21st, 1925, the plaintiff offered in evidence the thirteen notes, it is not claimed that the matter is res ad judicata on all thirteen notes, but only upon the note now sued upon, for the reason that the former action was to recover thirteen promissory notes, and, therefore, the jury should have brought in its verdict for such of the notes as were due at the time of the trial January 21st, 1925, and there were two then due. This reasoning is, apparently, unsound. In the former case the action was brought on the first note due January 1st, 1924, in August, 1924, and which note was the only note then due and upon which the plaintiff could found his action, the jury having by its verdict found as a fact that there was no agreement between the parties to the effect that if a note remained unpaid at maturity the remainder of them shall become due and payable. The fact that the second note was due at the time of the trial was a matter of no importance, since it was not due and payable at the time when the action was commenced to recover on the thirteen notes, and, furthermore, the only theory upon which a recovery could properly be predicated on the first note receives its legal force from the fact that the note was due when the plaintiff’s action was brought.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HACKENSACK WATER COMPANY, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT, TOWNSHIP OF OVERPECK, DEFENDANTS.
    Argued May 5, 1926
    Decided June 15, 1926.
    Taxes and Assessments—Prosecutor Alleges State Board Refused Introduction of Evidence to Show True Value—That Assessment Had Been Based on Book Value, and Because of Refusal to Admit Evidence to Show That the Cost Had ho Bearing on Value—Evidence Could be Considered in This Court Only if the Prosecutor Had Brought it by Depositions Taken in Accordance With a Rule for That Purpose—Certiorari Dismissed.
    “On certiorari.

    Before Justices Black and Campbell.
    Por the prosecutor, Wright, Vander Burgh & McCarthy.

    Por the defendants, Morrison, Lloyd & Morrison and Edward Lj. Katzenbach, attorney-general.
   Per Curiam.

The writ of certiorari in this case seeks to review the taxes for the year 1925 levied by the township of Overpeck, Bergen county, New Jersey, against the Hackensack “Water Company, the prosecutor, on “mains, hydrants, meters and connections” valued at $236,200. The state board of taxes and assessment dismissed the prosecutor’s appeal, affirmed the judgment of the Bergen county board of taxation and confirmed the assessment. The assessment was made by the assessor in accordance with a statement furnished b3^ the prosecutor (Exhibit PI), dated December 8th, 1924, to the assessor, fixing the total value at the figure indicated, viz., $236,200.14 for mains, hydrants, meters and services in the municipality, as of the datenf October 1st, 1924. The record shows that the case made before the state board of taxes and assessment was on the appeal of the township of Weehawken, Hudson county, New Jersey. The record also shows that the testimony taken in that case was made to apply as if given in this case in view of the decision of the state board in the Weehawken case; the appeal in this case was dismissed and the assessment confirmed. The prosecutor now writes down five reasons for setting aside the judgment of the state board in the present ease:

First. Because the prosecutor’s appeal was dismissed by the state board.

Second. Because the state board refused to permit the prosecutor to introduce evidence to prove the true market value of the property under review.

Third. Because the judgment of the state board was based upon erroneous principles of law.

Fourth. Because it appeared that the assessment was based solely upon the book value of the property and the state board refused to allow or consider any testimony or evidence with respect to the true value of the property.

Fifth. Because the state board refused to admit evidence tending to show that the cost had no bearing upon the true value of the property under review. The only evidence “taken before the board” in the case is that which shows the prosecutor furnished to the assessor a statement of its property and the value thereof in the township as of October 1st, 1924, and the assessor assessed the prosecutor for that property at those values furnished by the prosecutor. The other evidence tendered, viz., “balance sheet of prosecutor as of December 31st, 1924.” Exhibit P 2. “Condensed statement of Income Deductions for year ended December 31st, 1924.” Exhibit P 3. This tender or offer of evidence was overruled by the state board and properly so, we think, if for no other reason than these statements tended to show the condition of the prosecutor as a whole. They do not show what part of its assets ox of its income should be allocated or apportioned to the defendant township. The state board could not be expected to furnish the evidence to make such an apportionment. Even then, we do not want to bo understood as holding that these exhibits would be evidential. But we do not place our decision upon that ground, because, such evidence could be considered by this court only if the prosecutor had brought it before the court by depositions taken in these proceedings under a rule granted for that purpose. This the prosecutor has not done. If so, the case and the practice would then stand in the position pointed out in the case of Mercer County Traction Co. v. Mercer County Board of Taxation, 92 N. J. L. 398. This disposes of all the reasons and leads to a dismissal of the writ of certiorari, with costs, and the affirmance of the judgment of the state board of taxes and assessment and of- the assessment.


author: Pee Cueiam.

text:
    NEW YORK LIVE POULTRY TRUCKING COMPANY, PROSECUTOR, v. LOUIS SCHWARTZ, DEFENDANT.
    Argued May 5, 1926
    Decided June 15, 1926.
    Workmen’s Compensation—Compensation Bure'au Dismissed Case as Having Been Fully Compensated—The Employe Now Suffering From Disease—Common Pleas Reversed Bureau but Does Not Cite Evidence to Support Its Judgment—This Court Unable to Find Such Evidence in Record —Certiorari Allowed.
    On rule for certiorari.

      Before Justices Black and Campbell.
    For the prosecutor, Frank G. Turner.

    For the defendant, Kent & Kent.

   Pee Cueiam.

The record in this case reveals these facts. In the petition for compensation the petitioner states: “I was assisted in loading an automobile truck with crates of live poultry, when I slipped from the truck to the ground, injuring the right side of my body and leg.” On March 12th, 1925, the workmen’s compensation bureau found that the petitioner “is not suffering from injury and that he suffered no permanent injury in said accident. He has been fully paid and compensated for all temporary disabilities growing out of said accident. He now suffers, and since August 4th, 1925, has suffered from disease.” The petition was therefore dismissed. This judgment was reversed by the Hudson County Court of Common Pleas on the ground that the petitioner suffered injuries “partial in character, permanent in quality, amounting to fifteen per cent. (15%) of total and permanent disability.” The court cites no evidence on which this judgment is based and we are unable to find any such evidence in the record. The most we can find is, the petitioner testified: “I feel pain in my veins and my hip and thigh. I feel pain. I can hardly walk.” Dr. John Boti testified, the. accident probably precipitated some rheumatic condition, a toxic condition. Dr. Joseph M. Rector testified: “A. The man has a previous gonorrhea and it hhs not been completely cured, and the man is .being infected both from the condition of his inguinal glands and also from his mouth.” The certiorari prayed for in the rule to show cause will be allowed diréeted to the Court of Common Pleas of Hudson county.


text:
    MARGARET W. DEYMANN, RELATOR, v. MAYOR AND ALDERMEN OF JERSEY CITY AND JOHN SAUL, BUILDING INSPECTOR OF JERSEY CITY, RESPONDENTS.
    Submitted January 29, 1926
    Decided May 4, 1926
    Filed June 19, 1926.
    Municipalities—Building Permits—Relator Claims Plans Submitted do Not Contain Objections Upon Which the Refusal of Permit was Based—It Appears That There May be a Confusion of Two Sets of Plans—An Alternative Writ Allowed.
    On rule to show cause why a mandamus should not issue.
    Before Justices Trenchard and Katzenbaoh.
    Bor the relator, Pierre F. Cook.

    For the respondents, Thomas J. Brogan (Frank J. Rear-don, of counsel).
   Per Curiam.

This case comes before us on a rule to show cause why a writ of mandamus should not issue commanding the municipal corporation, the mayor and aldermen of Jersey City and its building inspector, to issue to Margaret W. Deymann, the relator, a building permit for the erection and construction of two stores, a show room and offices on property known as 804 Bergen avenue, in the city of Jersey City. Under the rule depositions have been taken.

The testimony shows the relator is the owner of the property. On September 12th, 1925, the relator claims that she filed with the commission on building districts and restrictions of Jersey City (known as the zoning commission) plans and specifications for the erection of the improvements mentioned for its certification and approval, and that the plans and specifications were approved and afterwards presented to the building inspector with the request that the permit be granted, and that he refused to grant it and referred the matter to the board of commissioners of Jersey City. On October 6th, 1925, the board of commissioners passed a resolution that the application of the relator be denied, for the reason that the show room which it was proposed to build might possibly be used as a garage, and for the further reason that the contemplated building would be within ten feet of a building on the adjoining property. The depositions show that the relator is not to use the proposed show room as a garage, and that it will not be within ten feet of a building on any adjoining property. The testimony taken under the rule further shows that the relator has a garage on the rear of the tract of land in question. Bergen avenue is not zoned for residential purposes, but for commercial uses. The testimony fails to support the contention that the show room in to be used for garage purposes. If Jersey City has a right to prevent such a use this right can be invoked when the relator attempts to use it for such a purpose. H. Krumgold & Son v. Jersey City, 3 N. J. Adv. R. 1546.

The difficulty which we have with the case is that the proofs, with respect to the filing of the plans and specifications for the proposed building, are indefinite and unsatisfactory.

The respondents contend that there is not a single line of evidence on the part of the relator to corroborate her statement that, on the 22d of September, 1925, she filed with the building inspector plans and specifications for the construction of said stores, offices and show rooms upon the lot mentioned.

Looking with care at the testimony, we are inclined to think that the respondent’s contention is right in this respect. The witness Hugh A. Kelly, who claimed that he filed the plans and specifications, admitted on cross-examination that the plans which he filed were stamped by the building department and handed back. He likewise admitted that the plans which were offered in evidence by the relator did not bear the stamp of the building department, and that the plans offered in evidence were not the plans filed with the building department.

It seems a reasonable inference that this confusion arises from two sets of plans being in existence, one handed to the department and the other, apparently, not handed to the department. On the part of the city custodians of the records show that the records indicate no filing of plans and specifications. The testimony of the city officials is to that effect.

To grant a peremptory writ of mandamus the proofs of the relator’s right thereto must be clear. In view of the uncertainty of the testimony regarding the proofs of the filing of the plans and specifications by the relator, we have reached the conclusion that a peremptory writ of mandamus should not be awarded. An alternative writ will be awarded.


text:
    THE STATE, EX REL. MAX L. RUDENSEY, PROSECUTOR, v. WILLIAM SENIOR, INSPECTOR OF BUILDINGS OF THE TOWN OF MONTCLAIR, IN THE COUNTY OF ESSEX, AND THE TOWN OF MONTCLAIR, IN THE COUNTY OF ESSEX, DEFENDANTS.
    Submitted February 15, 1926
    Decided May 4, 1926
    Filed June 19, 1926.
    On certiorari.

    Before Justices Teenchabd and Katzenbach.
    For the prosecutor, Whiting & Moore (Ira 0. Moore, of counsel).
    For the defendants, George B. Beach.

   Pee Cueiam.

In the above case the prosecutor applied for an order awarding to the prosecutor the costs of this proceeding. This application is denied.


author: Per Curiam.'

text:
    THE STATE, EX REL. D. A. SCHULTE, INCORPORATED, A CORPORATION, RELATOR, v. JAMES H. LONDRIGAN, DIRECTOR, ETC., OF THE CITY OF HOBOKEN, ETC., AND OTTO SCHWAFF, RESPONDENTS.
    Submitted January 29, 1926
    Decided May 4, 1926
    Filed June 19, 1926.
    Municipalities—Ordinances—Removal of Obstructions to Sidewalks—A News-Stand was Maintained in Such a Way as to Constitute an Apparent Nuisance Both of a Public and a Private Nature—An Ordinance Provided for the Removal of Encroachments, and Upon Failure of Owner to do so it Became the Duty of- Director of Streets—Court Held That Ordinance was Not Broad Enough to Entitle Relator to Mandamus Against Director of Streets, and Rule was Discharged With Leave to Apply for Another in Which All interested, Including City, May be Made Parties.
    On rule to show cause why a peremptory mandamus should not be issued.
    Before Justices Trenchabd and Katzenbach.
    Eor the relator, Tiffany, Bruglar & Wittreich (J. Raymond Tiff my, of counsel).
    Eor the respondent James H. Londrigan, John J. Fallon.

    For the respondent Otto Schwaff, Edward Stover.

   Per Curiam.'

The above-entitled cause is before this court upon a rule to show cause why a writ of peremptory mandamus should not be issued directing James H. Londrigan, director of the department of streets and public improvements of the city of Hoboken, to remove a news-stand or booth occupied and used by Otto Schwaff and located upon the northerly public sidewalk of Newark street, at or near the intersection of Newark and Washington streets, in the. city of Hoboken. The property on which the stand is located is owned by George Caldes. The tenant is A. Schulte, a corporation conducting a chain of cigar stores. The tenant is the relator. The owner of the premises is not a party. The stand has been in its present location for a considerable period of years. In the beginning it was small. It has been from time to time enlarged. The photographs offered in evidence show that the stand narrows the sidewalk and obscures the show windows of the relator.

The respondents are the director of the department of streets and public improvements, and the occupant of the stand Otto Sehwaff. The relator bases its contention for the removal of the stand upon an ordinance of the city of Hoboken, passed July 18th, 1907, and entitled “An ordinance to remove all encroachments, encumbrances and easements in and upon the streets and avenues in the city of Hoboken.” Section 1 of this ordinance declares to be nuisances all stoops, signs or any post or erection now erected in, over or upon any street or avenue in the city of Hoboken. The second section requires that these shall.be removed by the owner or occupant of the premises in front of which either of the aforesaid nuisances exist, before August 15th, 1917. The third section provides that if the owner or occupant does not do so, then the director of department of streets and public improvements is authorized and directed to remove the same in a summary manner at the expense of the owner or occupant of the premises in front of which either of the aforesaid nuisances exist.

We have no doubt that-the news-stand in question is a nuisance and should be removed. The record offers no sufficient reason for its presence. Sehwaff claims that he was given permission by the mayor to maintain it in its present location. The mayor had no authority to grant such permission if he did so. Sehwaff also in his testimony appears to take the position that the stand belongs to a sister, but his testimony in this respect is uncorroborated and is contradicted by statements made by him and testified to by others to the effect that the stand, was his property. There are cases which hold that where a writ of mandamus -is sought for the purpose of requiring a municipal board or body to perform a statutory duty, purely ministerial in character, designed to redress or prevent public wrongs affecting the peace and good order of the community at large, the writ may issue upon the application of a private relator, who is a resident and taxpayer of the municipal district. Lay v. Hoboken, 75 N. J. L. 315.

The present case, however, is different from the case of Lay v. Hoboken. In the present case there is a public wrong which exists, namely, the taking up of the sidewalk by the news-stand. There is also a private wrong, because the stand interferes with the business of the relator. If the ordinance upon which the relator relies was perfectly clear we would have no hesitation in granting a writ of mandamus, but we have hesitation in doing so, because the ordinance seems to us to refer only to nuisances which have been created by the owner or occupant of the premises. The sections of the ordinance invoked by the prosecutor require that the nuisance maintained shall be removed by the owner or occupant of the premises in front of which the nuisance exists, and upon failure of the owner or occupant to remove the nuisance then the director of the department of streets and public improvements shall remove the same at the expense of the owner or occupant of the premises in front of which the nuisance exists. We are of the opinion that this ordinance cannot be construed to refer to such a nuisance as is being maintained by the erection and use of this news-stand, as it was not erected or is not maintained by either the owner or occupant of the premises in front of' which the stand is located. It seems to us that the proper defendants are not before the court. The city of Hoboken should be a defendant. We can see no valid defense to the removal of the stand which the city can interpose, yet the city ought to be afforded an opportunity to defend if it desires. It it well settled that where the right of the relator is not clear a writ of mandamus will not issue.

The rule to show cause will be discharged with leave to apply to this court for the allowance of another rule in a proceeding in which all interested in the matter have been made parties.


author: Peb Ctjeiam.

text:
    THE STATE, EX REL. MAX L. RUDENSEY, RELATOR, v. WILLIAM SENIOR, INSPECTOR OF BUILDINGS OF THE TOWN OF MONTCLAIR, IN THE COUNTY OF ESSEX, AND THE TOWN OF MONTCLAIR, IN THE COUNTY OF ESSEX, DEFENDANTS.
    Submitted February 15, 1926
    Decided May 4, 1926
    Filed June 19, 1926.
    Zoning—Stores in Restricted Territory—Case Within Ignaciunas v. Risiey as to the Nature of Building-—As to Regulation Relating to Building Line, Held, Not Valid—As to Side Yard, There is No Evidence That Such a Requirement is Necessary, and Its Legality Will Not be Decided Here.
    On rule to show cause why a peremptory or alternative writ of mandamus should not he issued.
    Before Justices Tbenchabd and Katzenbach.
    For the relator, Whiting & Moore (Ira C. Moore, of counsel).
    For the defendant, George B. Beach.

   Peb Ctjeiam.

This case is before this court upon a rule to show cause why a peremptory or alternative writ of mandamus should not issue to direct the inspector of buildings of the town of Montclair to deliver to the relator a building permit for the erection of a building designed for stores, with one apartment above. The lot of the relator upon which he desires tó erect the building is located upon the northwest corner of Valley road and Lanrel place. Valley road is the main thoroughfare from Montclair to Paterson. A trolley line and bus- lines are operated over it. A short distance from the rear of the property in question the tracks of the Erie Railroad Company are located. There are places of business in the immediate neighborhood, but principally the braidings in the vicinity of the relator’s lot are residences.

The application, when made to the building inspector, was denied upon the ground that it did not comply with the zoning ordinance of the town of Montclair, in that, first, the building was designed for business purposes and was to be located in a residential zone, and second, that in the plans for the building there was no set back of twenty-five feet from Valley road and Laurel place and no side yard, as required by the zoning ordinance. The building inspector recommended to the relator an appeal to the board of adjustment of the town of Montclair. The board of adjustment sustained the position taken by the building inspector.

At the October term, 1925, of this court, this case was before this court upon a writ of certiorari. This the court held was not the proper method of review. The present rule to show cause was then allowed.

The questions herein presented are the same questions which have heretofore been considered by this coúrt and the Court of Errors and Appeals.

The first ground of refusal, namely, that the proposed building is to be used for store purposes, and is to be erected upon a parcel of land classified in the zoning ordinance as a residential section, has been considered and held to be without merit in the eases of Ignaciunas v. Risley, 98 N. J. L. 712 (affirmed, 99 Id. 389), and H. Krumgold & Sons v. Jersey City, 3 N. J. Adv. R. 1546.

The second ground assigned for the refusal to issue the permit was that the plans did not provide for the building being set back twenty-five feet from Valley road and Laurel place. Similar provisions in zoning ordinances have been considered in eases before this court and the Court of Errors and Appeals, and such regulations have been held to be invalid. These cases are Eaton v. South Orange, 3 N. J. Mis. R. 264, 957; Heller v. South Orange, 3 Id. 1080; Scola v. Senior, 3 N. J. Adv. R. 1800; Vatter v. Kaltenbach, 3 N. J. Mis. R. 665; 4 N. J. Adv. R. 343.

The third ground for the refusal to issue the permit was that there was no provision by the relator for a side yard as required by the Montclair ordinance. The respondents contend that this is a new feature and one which has not been passed upon by the court of this state. We do not deem it necessary to decide this question, as there is no evidence in the record that such a requirement for the kind of building proposed to be erected «by the relator is necessary for the public health and safety.

A peremptory writ of mandamus is awarded.


author: Pee Cukiam.

text:
    JAMES WESTERVELT, PROSECUTOR, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF TENAFLY, DEFENDANT.
    Submitted January 29, 1926
    Decided May 4, 1926
    Filed June 19, 1926.
    Municipalities—Ordinances—Police Promotions—Constitutionality of Chap. 192 of 1922—Prosecutor of Writ Challenged Promotion of a Policeman Which Had Been Made by Virtue of an Ordinance, as Against the Provisions of Act 1922, c. 192—Provisions of That Act Considered, and Its Unconstitutionality Declared, as Falling Within the Class of Cases Having a Double Limitation—The Act Only Affects Promotions in Police Departments Which Have Been in Existence at Least Three Years Prior to the Passage of the Act—The Classification is Illusive.
    On writ of certiorari.

    Before Justices Tkenchaed and Katzenbach.

      Eor the prosecutor, James 8. De Turck.

    Eor the defendant, Le Roy Yander Burgh (Wendell J. Wright, of counsel).
   Pee Cukiam.

This case is before this court by virtue of the allowance of a writ of certiorari directed to the mayor and council of the borough of Tenafly, in the county of Bergen. The writ brings up for review the appointment of Chester E. Campbell, as sergeant of the police department of Tenafly.

Mr. Campbell was appointed on February 27th, 1925. The appointment was made by the board of police commissioners. It was approved by the mayor and council at a meeting held on February 27th, 1925. The appointment took effect from March 15th, 1925.

On February 13th, 1925, an ordinance was passed by the borough council of Tenafly entitled “An ordinance to establish, maintain, regulate and control the police department in the bqrough of Tenafty, and to prescribe and establish just rules and regulations with respect to such department.” The ordinance created a board of commissioners and designated the rank of the members of the police department. It further provided that the chief of police, the captain, lieutenant, detective sergeant and police sergeant should be appointed by the board of police commissioners with the approval of the majority of the members of the borough council. It also designated the qualifications of the members of the department and the salaries each was to receive.

The prosecutor, a resident and taxpayer of the borough of Tenafly, seeks to set aside the appointment of Campbell, who was a patrolman, as sergeant. The prosecutor relies upon the provisions of a statute known as, chapter 192 of the laws of 1922. This act provides that “wherever in any municipality of this state, other than a city of the first class, a police department has been in existence for at least three years prior to the passage of this act, the promotions to superior positions shall be made from the membership of such police department as constituted at the time of such promotion; provided, however, that no person shall be eligible to promotion to a superior position unless such person shall have served for a period of at least three years in the grade of patrolman.” This act was passed March 11th, 1922. It is admitted that Campbell first became a member of the Tenafly police department as a patrolman on November 1st, 1923. He, therefore, at the time of his appointment as sergeant, had not served on the police force for a period of three years in the grade of patrolman. There was a patrolman who had been there for more than three years and who was eligible to appointment to the office of sergeant.

The respondent contends that chapter 192 of the laws of 1922 is unconstitutional, as it contravenes paragraph 11 of section 7 of article 4 of the state constitution, which provides that "the legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say, * * * regulated the internal affairs of towns and counties, &e. The legislature shall pass upon such laws provided for the eases enumerated in this paragraph, and for all other cases which, in its judgment, may be provided for by general laws.” If the act of March 11th, 1922, is unconstitutional, then the appointment of Mr. Campbell is a valid appointment. An examination of chapter 192 of the laws of 1922 has brought us to the conclusion that the act is unconstitutional. We base this view, however, not upon the exclusion of cities of the first class from the operation of the act, but because the act only affects promotions in police departments which have been in existence for at least three years prior to the passage of the act, and does not relate to promotions in police departments which have not been in existence for at least three years prior to the passage of the act. We think this classification illusive. It falls within that class of cases which contain a double limitation of a class. This subject was considered in the ease of Cook v. Ramsey, 86 N. J. L. 263. In that case the act under review provided that no person should be promoted unless such person should have served continuously as a member of the police force for at least five years. Mr. Justice Parker, in writing the opinion in Cook v. Ramsey, said that the provision did not cover municipalities where there is at present no police force, nor did it include municipalities where no member of the force had served for a period of five years. The act was held unconstitutional. Legislation like the act under review would, if sanctioned, permit the legislature to pass an act which would aj ply to a single municipality. This is what we think the constitution inhibits.

The writ of certiorari is dismissed and the appointment of Mr. Campbell as sergeant is affirmed. Costs are awarded to the defendant.


text:
    HARRY A. GOLDBERG, PLAINTIFF-RESPONDENT, v. SAMUEL J. KRAVET, DEFENDANT-APPELLANT.
    Argued January term, 1926
    Decided June 23, 1926.
    Sale of Personal Property—Commissions—Agreement of Vendor to Pay Commissions Constituted a Question of Fact, the Conclusions of Which Will Not be Disturbed.
    On appeal from the East Orange District Court.
    Before Justices Parker, Minturn and Black.
    Eor the defendant-appellant, Arthur B. Seymour.

    Por the plaintiff-respondent, William J. O’Hagan.

   Per Curiam.

This action was tried in the District Court of East Orange, without a jury, and both counsel in briefs admit judgment was for plaintiff for $350, but no record of same is in clerk’s docket, as printed in the state of the case.

The action was to recover $350 balance due on a three per cent, commission for services rendered by plaintiff in selling the drug store of his friend, the defendant, for $15,000.

Plaintiff’s testimony was that the defendant stated that he was in receipt of a letter which caused him to desire to sell his business; that defendant asked plaintiff if he knew anybody who might buy it; that plaintiff replied he knew a man who might be interested; that in response to plaintiff’s questioning defendant said he wanted $15,000 for the business; that plaintiff asked what the commission was, and defendant replied, “It’s three per cent., isn’t it?” To which defendant assented.

Defendant’s testimony was that plaintiff agreed to his proposition, “If you will get me a purchaser for $15,000 I will give you $200.” The defendant’s main contention is that there was no evidence from which a judgment for plaintiff could be found, either as to the existence of a contract or as to the damages allowed.

We think the testimony in the case presented entirely a question of fact, the conclusion upon which we are not, under the well-settled rule, warranted in disturbing.

The judgment will therefore be affirmed.


author: Pee Curiam.

text:
    ANTHONY GIGLIO v. JAMES M. KRAEMER.
    Argued January term, 1926
    Decided June 23, 1926.
    Contracts—Purchase of Motor Vehicle—Defendant Took in Part Payment Another Car at $700 Which He Sold at $500—Plain-tiff Defaulted and Defendant Returned $400, Retaining $100, but Plaintiff was Still Entitled to $300 on Account of the $700 Allowance—Judgment was for $200—Defendant’s Offer was for Valid Consideration, That is the Discontinuance of Pending Action.
    For the defendant-appellant, Dembe & Dembe.

    For the plaintiff-appellee, Samuel Cooper.

   Pee Curiam.

This action was tried in the Second District Court of Jersey City, without a jury, and judgment was rendered for the plaintiff for $200. The facts are somewhat complicated, owing to the fact that the judge who tried the case resigned, and is succeeded by another who certified the record.

In November, 1921, the plaintiff entered into a contract to purchase from defendant a Dort automobile. The defendant took in part payment an old Dort car at a valuation of $700, and later sold the same for $500. Because of illness the plaintiff defaulted in his contract, and the defendant returned to him $400 and retained $100, but by reason of the $700 allowance agreed upon this still entitled the plaintiff to a credit of $300.

The above facts became the subject of a suit before District Court Judge O’Regan, during the trial, of which it was agreed by defendant that plaintiff was entitled to a credit of $300 to be applied on the purchase price of a Dort ear, or if plaintiff should want another car at a lower price the credit thus allowed was to be proportionately reduced. The action was thereupon discontinued by the plaintiff.

The plaintiff subsequently offered to purchase a Dort car, but the defendant was unable to supply the same, and in lieu thereof offered to allow the plaintiff a credit of $200 if he would purchase a Maxwell car. Plaintiff refused the offer, unless the full credit of $300 was granted; defendant refused to make that allowance, and the plaintiff therefore brought this action.

The defendant’s first point is that the court had no power to make the order sued upon, but the defendant admits that he voluntarily made the offer, and gave the plaintiff a receipt for the credit allowed. Whether or not the offer originated in the suggestion or so-called order of Judge O’Eegan is immaterial, since the offer was actually made, and if necessary the state of demand could be amended to cover the actual situation. The case went to trial upon that theory, and we shall assume everything necessary where the record is deficient to support the judgment upon the theory upon which the ease was tried.

The second point urged is that there was not evidence upon which damages of $200 could be predicated. The inference is that the judgment should have been for $300, but since this finding was beneficial to defendant he is not injured by a more beneficient result. We think the testimony supports the judgment.

The third point is that defendant’s offer of $300 was nudum pactum. The record shows that the basis was the discontinuance of the action then pending, and the rule is well settled that such a concession presents a valid consideration for a promise.

The judgment will be affirmed.


text:
    TONY PETRULLO v. MECHANICS INSURANCE COMPANY OF PHILADELPHIA.
    Argued January term, 1926
    Decided June 23, 1926.
    Insurance—Theft—Automobile—Notice of Loss Promptly Made —Delay in Adjustment—Final Refusal to Pay on Ground That Covenants of Contract Had Been Breached—Action Brought More Than One Year After Loss Against Express Provisions of Policy Requiring Suit Within One Year— Judgment for Plaintiff Reversed.
    Before Justices Parker, Minturn and Black.
    Eor the appellants, Lum, Tamblyn & Oolyer.

    Por the appellee, Feder & Binzler. •
   Per Curiam.

The action was tried in the Bergen County District Court without a jury, and judgment went for the plaintiff for $450. • The action was brought upon an insurance policy to recover damages for the theft of the plaintiff’s automobile. The auto was stolen on December 15th, 1923, which was a Saturday night. The police department received immediate notice of the loss. The defendant’s agent received timely oral notice, and in turn sent written, notice to his company. When notified of the loss, the agent advised plaintiff “he would take care of everything.” The last interview the plaintiff had with the agent in relation to the loss was a month after the theft. The plaintiff testified that he had two interviews with defendant’s adjuster, the last being about two and a half months after the theft. The plaintiff received a letter from adjuster dated Eebruary 11th, .1924, in which the adjuster stated that he would not recommend any payment, because plaintiff breached certain warranties.

The defendant contends that there was error in the refusal of the trial court to direct a verdict in its favor, because the action was not brought within twelve months after the loss, as provided in the policy, as follows :

“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless the assured shall have fully complied with all the foregoing requirements, nor unless commenced within twelve months next after the happening of the loss.”

The theft occurred on December 15th, 1923. The summons was tested April 22d, 1925, a period of more than sixteen months after the loss. Without discussing the other objections urged against the judgment, we think that as there was no proof of waiver of this requirement upon the part of the defendant, or its agents, that this objection is fatal to a recovery. Ignazio v. Fire Asso. of Philadelphia, 98 N. J. L. 602.

Eor this reason the judgment must be reversed.


text:
    PETER LONG ET AL., RELATORS, v. JOHN SCOTT, BUILDING INSPECTOR, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Argued May 4, 1926
    Decided June 23, 1926.
    Zoning—Gasoline Station in Residence District—Burden of Proof on Relators to Show Ordinance Unreasonable—This They Have Failed to do—Rule Discharged.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Parker, Black and Campbell.

      Eor the relators, Harry A. Augenblick.

    Eor the respondents, Walter C. Ellis.

   Pee Curiam.

This is a zoning ordinance case. Prosecutors ask a mandamus to require the issuance of a permit to erect and install a gasoline station on the northeast comer of Park avenue and Thompson street, East Orange, directly opposite the end of the East Orange Parkway and on an important avenue separated into two roadwa3’s by a central planting strip. The locality is residential, and zoned as “large volume residence,” which permits apartment-houses.

As in the case of Hench v. East Orange, 2 N. J. Mis. R510, and Portnoff v. Bigelow, No. 266 of the present term (4 N. J. Mis. R. 539), the question is whether the ordinance in its application to thé particular case is an unreasonable, and therefore an unlawful, exercise of the police power; the presumption being that it is reasonable, and the burden being on relators to show that it is not. Neuman v. Hoboken, 82 N. J. L. 275; Hench v. East Orange, supra; McGonnell v. Orange, 98 N. J. L. 642, 647; Falco v. Atlantic City, 99 Id. 19. Taking the physical situation into consideration, the prosecutors have altogether failed to satisfy us that the application of the ordinance in the case .before us is an unreasonable exercise of the police power. The rule to show cause will be discharged, with costs.


text:
    NATHAN II. BERGER v. BONNELL MOTOR CAR COMPANY ET AL.
    Argued January term, 1926
    Decided June 23, 1926.
    Liens—Alleged Lien for Repairs of Automobile—Plaintiff Contends That Defendant Agreed to Repair for a Stipulated Sum—Upon Tender of That Amount a Larger Sum was Demanded, Which was Paid Under Protest, and Action Brought to Recover—Held, Recovery May be Had Where the Claim was Without Merit.
    Before Justices Parker, Minturn and Black.
    Attorney pro se, Nathan II. Berger.

    Attorney for the appellants, 11 owe & Davis.

   Per Curiam.

The plaintiff alleged that the defendant agreed to repair plaintiff’s automobile for $64, and that, after making the repairs, the defendant refused to surrender the car to the plaintiff unless upon payment of $108.25, which sum included $83.23 for repairs and $25 for legal fees. The plaintiff paid the amount demanded under protest, however, and brought this action to recover the amount paid in excess of the contract price.

The defendant’s contentions are that the payment by the plaintiff was voluntary, and that plaintiff had an adequate remedy at law, and hence there was neither duress nor extortion, and that, therefore, plaintiff could not recover. The rule is settled otherwise. It has been declared quite generally that “money paid by one to get possession of Ins property held by another claiming a lien on the same, may be recovered where the lien claim is without merit.” Anno. Cas. (1913A) 1356.

In pursuance of that rule, it has been held that “money paid to a common carrier to obtain possession of one’s goods, beyond the amount to which the carrier is entitled, may be recovered.” E. D. Clough v. Boston and Maine Railroad, 90 Atl. Rep. 863.

The judgment will therefore be affirmed.


text:
    THE STATE OF NEW JERSEY, EX REL. THE BOROUGH OF SOUTH BELMAR, PROSECUTOR, v. WILLIAM WHITTINGTON, DEFENDANT.
    Argued May 4, 1926
    Decided June 23, 1926.
    Disorderly Conduct—Loud Language—Plea of Guilty—Common Pleas Set Aside Conviction on Ground That Record Did Not Contain Ordinance—Conviction Affirmed.
    On certiorari.

    Before Justices Parker, Black and Campbell.
    Eor the prosecutor, Harry R. Cooper.

    Eor the defendant, Charles E. Cook.

   Per Curiam.

' A certiorari was allowed in this case to review an order of the Court of Common Pleas of Monmouth county. The order of that court was made upon a petition to review the conviction of William Whittington.

William Whittington was convicted on November 21st, 1925, before Claude W. Birdsall, mayor of South Belmar, of violating an ordinance of the borough, approved July 14th, 1924, to prevent and suppress disorderly conduct, vice and immorality. He was convicted upon a plea of guilty of violating sections 2 and 3 of the ordinance of using loud, indecent and profane language, being under the influence-of intoxicating liquor. The order made by the Court of Common Pleas, setting the conviction aside, was based upon two grounds—first, because there is nothing in the record to indicate that the ordinance was offered in evidence at the hearing before the magistrate, and since it is of a local character, proof of it was required. Here we think the Court of Common Pleas fell into error. This court has held, a municipal court takes judicial notice of the ordinances of that particular municipality. Galen Hall Co. v. Atlantic City, 76 N. J. L. 20. The second reason assigned for setting aside the conviction was the plea of guilty made by the defendant in the mayor’s court would not support a conviction of the offense alleged in the complaint. Obviously, under our decisions that is not so. State v. Webber, 76 N. J. L. 199. He cannot deny what his pleas admits. State v. Heyer, 89 Id. 187. The order of the Court of Common Pleas of Monmouth county setting aside the conviction of William Whittington is reversed, and the conviction affirmed.


text:
    BERNARD BIEDERMAN ET AL. v. COMMERCIAL CASUALTY INSURANCE COMPANY.
    Argued January term, 1926
    Decided June 28, 1926.
    Insurance—Robbery—Insurer Disputed Claim on Account of Lack of Due Notice by Telegraph—Notice was by Telephone and as Prompt as Circumstances Permitted—Judgment for Plaintiff Affirmed.
    Before Justices Pabkee, Minturn and Black.
    Eor the plaintiff-appellee, Fleming & Handford.

    Eor the defendant-appellant, Raymond F. Taylor and William F. Holmwood.

   Pee Cueiam.

The action was tried in the Second District Court of Newark without a jury, and judgment went for the plaintiff for $500.

The suit was instituted by plaintiff under defendant company’s policy of insurance against loss by robbery. Plaintiff reached' his home in Passaic at ten-thirty Saturday night, and immediately retired. At eleven-thirty he was awakened from his sleep and found a man in his room, who advised the plaintiff to “shut up,” and who thereupon backed out of the, room with the- plaintiff’s trousers, in the pockets of which were $532 in cash and some checks, representing the plaintiff’s business receipts for the day, together with some rent collections.

The plaintiff’s wife would hot permit him to leave the house that night. The next morning (Sunday), at five o’clock, he notified the police department over a neighbor’s ’phone of the theft, and at nine o’clock he personally notified police headquarters. He also attempted, without success, to telephone notice of the theft to his insurance broker, and to the defendant company. On Monday morning, at eight o’clock, the plaintiff attempted to notify his broker of the theft, and, after several efforts, succeeded in doing so- at eight forty-five o’clock. The broker immediately notified the agent “who wrote the policy for him,” and the latter, in turn, telephoned notice to defendant company. The defendant admits receiving notice at four-thirty u. m. on Monday.

The defendant’s manager testified that the reason the loss was not paid was because it was considered a loss by burglary and not a loss by robbery. The defendant contends there was error in the refusal of the court to grant motions of nonsuit, and a direction on the following grounds:

First. That plaintiff failed to notify defendant of loss by “telegram.” We consider that the notice- by telephone was a substantial compliance with that requirement of the policy. Miller v. New Amsterdam Casualty Co., 94 N. J. L. 508.

Second. That notice given was not “immediate notice.” It was reasonable notice, and as “immediate” apparently as the circumstances permitted. The law does not require impossibilities where the intent and effort of the party concerned have been exerted in a bona fide endeavor to comply with the terms of the contract, and it is not apparent that the defendant suffered loss thereby. Lex non cogit ad impossibilia. Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1; Ann. Cas. 1914a, 268; 14 R. C. L. 1328.

We think the case presented a question of fact, and that the judgment should be affirmed.


text:
    HERMAN BULLWINKEL, PROSECUTOR, v. CITY OF EAST ORANGE ET AL., DEFENDANTS.
    Argued June 8, 1926
    Decided June 23, 1926.
    Municipalities—Garbage Contract—Grounds of Attack and Does Not Justify Interference.
    On application for writ of certiorari.

    Before Justices Parker, Black and Campbell.
    For the prosecutor, John J. Fallon.

   Per Curiam.

Prosecutor seeks a writ of certiorari to review the award of a contract for the removal of garbage over a period of five years, to begin July 1st, next. Application was made a few days ago to the Chief Justice, who denied the writ on the ground (as we are informed) of laches.

We have given due consideration to the grounds of attack urged on the argument before us, and we are unable to discern sufficient merit in any of them to justify us in interfering with the performance of a contract involving the well-being of an entire community, and requiring the utmost energy on the part of the contractor in preparing to take over the work at a very early date, especially as an attack, on municipal action of this character should be made with the .utmost promptitude, and, if practicable, at the very outset. Any, irregularity in the reception of the bids, if existent, could have been questioned at any time after April 12th, and, similarly, as to the award of the contract, at any time after April 26th.

Allocatur will he denied.


text:
    ANDREJ SIMKO ET AL. v. FIRST CATHOLIC SLOVAK UNION OF THE UNITED STATES OF AMERICA.
    Argued January term, 1926
    Decided May term, 1926.
    Beneficial Societies—Damages for Illegal Expulsion—Defective Service of Summons—Service Made Upon Secretary of Local Lodge, a Corporation of the State, Grand Lodge was an Ohio Corporation and There was no Proof That the Secretary of the Local Lodge Represented the Grand Lodge— Service a Nullity.
    Before Justices Parker,-Minturn and Black.
    Por the appellants, Feder & Rinzler.

    Por the appellees, Weinberger & Weinberger. ■

   Per Curiam.

This is an appeal from an order of the judge of the District Court (Second Judicial District, Bergen) setting aside service of a summons, and dismissing sixteen actions brought to recover damages for alleged illegal expulsion from membership in defendant beneficial society, organized under the laws of the State of Ohio, and not authorized to do business in New Jersey.

The defendant appeared specially and moved on the ground of lack of legal service of the summons, in that, notwithstanding the constable’s return, the service was made upon Michael Bednarcik, the secretary of a local branch, and not the secretary of the defendant (also known as the grand lodge).

The evidence showed that Michael Bednarcik was the financial secretary of “The St. John the Baptist Society,” a local New Jersey incorporated society with its own charter and dispensation; that at meetings of aforesaid local branch dues for both the local branch and the “grand lodge” were paid to its treasurer, and a record of same kept by the financial secretary; that the amounts received were placed in the treasury of the local branch, and that checks against these funds were drawn by officers of the local branch and forwarded by its secretary to the grand lodge for the amounts due to it.

There was no proof that the secretary of the local lodge was empowered to represent the grand lodge, and, hence, under the determinations of this court in Peterson v. Woodmen of the World, 98 N. J. L. 196, and Anderson v. Independent Order of Foresters, Ibid. 649, the service of the summons was properly declared a nullity.

The judgment of' the District Court will therefore be affirmed.


author: Jess, J.

text:
    Burlington County Circuit Court.
    AIDA O. SMITH, PLAINTIFF, v. WALTER E. SMITH, DEFENDANT.
    Ejectment—Right of Married Woman to Bring Suit in Ejectment Against Husband—Wife Has a Maintenance Decree Against Husband, From Whom She is Living Apart—She Has Unquestioned Title to the Property—Held, That Under the Statute Providing That Nothing Therein Shall “Enable Husband or Wife '* * '* to Sue Each Other, Except as Heretofore,” the Ejectment Action Cannot be Maintained.
    In ejectment. On motion to strike complaint.
    Por the motion, Walter S. Keown.

    Opposed, Norman W. HarTcer.

   Jess, J.

This is an action in ejectment brought by Aida 0. Smith against her husband, Walter E. Smith. It appears that the parties are living separate and that the wife has obtained a maintenance decree against her husband. She complains that her husband deprives her of the possession of real estate, which, admittedly, is her sole and separate property. She seeks by this suit to recover possession.

The defendant moves to strike out the complaint. The motion is rested upon the provision of section 14 of the Married Woman’s act (Comp. Stat., p. 3237), which reads: “Nor shall anything herein enable husband or wife to contract with, or to sue each other, except as heretofore.”

Counsel for the defendant argues that this provision of the statute estops the plaintiff from prosecuting her suit. I thihk that position is well taken.

It is true that our Married Woman’s act expressly declares that the real and personal property of a married woman, however acquired, shall be her sole and separate property, as though she were a single woman. Comp. Stat., p. 3225, § 3.

It is true, also, that the statute empowers a married woman to maintain an action in her own name, and without joining her husband therein, for the recovery of all such property, and that she shall have, in her own name, the same remedies for the recovery and protection of such property as if she were unmarried. Comp. Stat., p. 3235, § 1L

The broad power thus granted to a married woman with respect to the enforcement of the property rights which the act vests in her is restrained, however, so far as suits at law are concerned, by the express declaration of section 14, to the effect that nothing in the act should “enable husband and wife * * * to sue each other, except as heretofore.” Turner v. Davenport, 61 N. J. Eq. 18, 20.

Counsel for the plaintiff points out that the question here raised, as applied to a suit in ejectment, appears not to have been flatly answered by any reported New Jersey decision, but he cites a number of cases from other jurisdictions in support of the plaintiff’s claim to a remedy at law. So far as I have been able to examine these decisions, I find that they deal either with the wile’s equitable remedies or with the rights of married women under statutes which confer powers without the restraining clause as to suits between husband and wife, which appears in our own act.

On the other hand, under a similar provision in the Massachusetts statute, it was declared by the Supreme Court of' that state that a married woman cannot maintain an action at law against her husband, and a decree granting her relief in equity was affirmed. Frankel v. Frankel, 173 Mass. 214.

So, in this case, the plaintiff is not without a remedy, but the Court of Chancery is the form in which it must be sought.

In equity, a bill filed by a wife against her husband may be maintained for the protection or restoration of her separate estate. Laszewski v. Laszewski, 4 N. J. Adv. R. 797.

As the law gives an injured wife no relief against her husband for an invasion of her rights of property, equity will come to her aid and give sneh redress as the circumstances .and facts of the case may require. Heckman v. Heckman (Penna.), 64 Atl. Rep. 425; McKendry v. McKendry, 131 Pa. 24; 18 Atl. Rep. 1078; 6 L. R. A. 506.

An order will be made striking out the complaint.


author: Caffbey, J.

text:
    Essex County Orphans Court.
    In the matter of the estate of Martin Straulina, deceased.
    [Decided June 22d, 1926.]
    Wills—Probate—Soldiers Will, in Form of a Letter Addressed to His Mother, Without Attestation of Witnesses'—Will was Written While Testator was in Camp During World War— He Afterward was Killed in Battle in France, Proof of Which is Made by Reference to Army Records—One Statute Provides for Wills of Those “in Actual Military Service”— Cases Examined and it Appears That Persons in Camp Awaiting Call to Actual Service are Within the Definition, Notwithstanding the Observation of Godolphin That “Those Who Lie in Some Castle, Garrison or Other Like Place or Defense” are Not Included—Law of Soldiers’ Wills Reviewed at Length.
    On application for probate.

      Mr. Charles Jones, for the proponent.
   Caffbey, J.

This is an application for the probate of a paper-writing, in the form of a letter, which, including the signature, is in the handwriting of the decedent as his last will and testament. The paper is unwitnessed, but any doubts as to its being testamentary in character are resolved by the use therein of the phrase: “This letter to be considered as my last will and testament.” The letter is dated March 28th, 1918.

Martin Straulina, the decedent, was unmarried and over twenty-one years of age, and resided, in his lifetime, in the borough of Yerona, Essex county, New Jersey. He entered the services of the United States government as a soldier in September, 1917, and, after being in various camps, was, in March, 1918, transferred to Camp Merritt, and a short time later was sent abroad. Just before he sailed he mailed the letter in question to his mother, wherein he stated that he had taken out a war risk insurance and directed how the same should be distributed in case of his death. Decedent left no other property.

On October 9th, 1918, he went into action and was killed, and the paper-writing is offered for probate as a soldier’s will.

Eirst, as to the proof of his death, there was offered in evidence a copy of the records of the United States war department, in which it is recited that decedent during the war, while serving as a corporal, received a severe gun shot wound on side in action on October 9th, 1918, and was left on the field as the company advanced, which certificate further identifies his grave and is under the hand of John W. Weeks, secretary of war, and the seal of the war department is affixed thereto. This is plenary proof of his death.

Section 18 of the Wills act (4 Comp. Stat. p 5865 § 18) provides as follows: “That not withstanding this act, any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his movables, wages and personal estate as he might have done before the making of this act.” Our statute providing for the manner in which will shall be executed, as well as this section of our Wills act, are copies of the act of 29 Car. II ch. 3.

The first question to be considered is, Was the decedent “in actual military service” at the time he wrote this letter?

Godolphin, who wrote in 1701, in discussing the privileges of soldiers in executing their wills before the statute (29 Car. II ch. 3), says: “Only let it not here escape our observation that these privileges apply only to such soldiers as are in expedition or actual service of war, and not so much as lie safely and securely in some castle, garrison or other like place or defense.”

The leading ease of Gattward v. Knee, decided in 1902, and reported in 4 Brit. Rul. Cas. (at p. 895), is very much in point. In considering this case, it must be kept in mind that the English statute is identical with ours. In that case it appeared that on September 7th, 1899, the soldier was warned for service and embarked September 19th, 1899. He wrote the letter sought to be admitted to probate as his last will and testament on September 8th, 1899, and, it will be noted, before embarkment. He died of fever during the siege of Ladysmith, February 9th, 1900, and it was held that he was, at the time he wrote the letter, “in actual military service”'within the language of the statute. In the matter of the estate of George Bignier, recently disposed of by Surrogate O’Brien, of the county of New York, in an unreported opinion, a very similar situation was presented. In that case the letter was written by the decedent to his sister while in a training camp at South Carolina and shortly before he was sent overseas. It was held that the letter was written while he was “in actual military service,” and the letter was admitted to probate as his last will and testament. In his opinion the surrogate used the following language: “It would be a great injustice to patriots whose service was confined to camps in this country, many of whom made the supreme sacrifice, to hold that they were not fin actual military service/ as it would be also to those who executed wills while in camps here and later gave up their lives on foreign soil.” From the foregoing it would appear that there can be no question but that the document offered was executed while the decedent was “in actual military service.”

Tt will be recalled that our act provides that a soldier in actual military service may “dispose of his personal estate as he might have done before the making of this act.” The question then arises, What might have been done before the making of this act? In other words, what was the requirement for the execution of wills prior to the statute of 29 Car. II ch. 3, which has been seen is the origin of our act.

Swinburn, in his Treatise on Wills—at p. 334. (5th ed., 1727), in which he reviews the practice prior to the enactment of the statute of 29 Car. II ch. 3, uses the following language: “Concerning the last question, viz., whether it be necessary that there be witnesses to a written will. This is the answer. That if it be certain and undoubted that the testatment is written or subscribed with the testator’s own hand; in this case the testimony of witnesses is not necessary. But if it be doubtful whether the testament were written or subscribed by the testator; in this case the testimony of witnesses is necessary to confirm the same to be the testator’s own hand.”

Godolphin (at p. 66 ^ 2), uses the following language: “A testament written by the testator’s own hand proves 'itself, without the help of such witnesses, yea, though it hath not his name subscribed to it, nor his seal affixed to it, nor witnesses present to it; provided, it be undoubtedly known to be his writing, or can be sufficiently proved to be.”

1 Jarm. Wills (6th ed.) 102, says: “Under the old law, prior to passing of the Wills act, a will was sufficient to pass personal estate, even though not signed or sealed, and no authentication was required in case of personal estate. 1 Bl. (Cooley’s ed., 4th ed.) *502, says: “As to written wills, they need not any witnesses of their publication. I speak here of devises of lands, which are quite of a different nature, being conveyances by statute unknown to feudal or common law, and not under the same jurisdiction as a personal testament. But a testament of chattels written in the testator’s own hand, although it has neither his name or seal to it nor witnesses present at its publication is good, provided sufficient proof can be had that it is in his handwriting.”

So far as a somewhat exhaustive research has revealed, tins question has never been considered by the courts of this state. The leading case in this country, however, appears to be the case of Hubbard v. Hubbard, 8 N. Y. 196, where it was held that “as to wills of soldiers in actual service, and mariners at sea, they are left entirely untrammeled by our statutes, and are governed by the principles of the common law. The exception in our statute in favor of soldiers and mariners was taken from 29 Car. II ch. 3, and is precisely the same language. * * * The courts have given a very liberal construction to this exception in behalf of mariners, &c.” And (at p. 201) the opinion continues: “Before the statute, the. ecclesiastical courts, to whose jurisdiction the establishment of personal testaments belong, require no ceremony in the publication thereof, or the subscription of any witnesses to attest the same. 1 Bob. Wills 147. A will of personal estate, if written in the testator’s own hand, although it has neither his name or seal to it, nor witnesses present in its publication, was held effectual, provided the handwriting could be proved.” 1 Bob. Wills 148.

Erom the foregoing it follows that the letter in question was executed as a valid soldier’s will, and, there being ample proof that it is in the handwriting of decedent, it should be admitted to probate as his last will.


author:
Charles E. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH KAZLOWSKIS, PETITIONER, v. SINGER MANUFACTURING COMPANY, RESPONDENT.
    On determination.
    Eor the petitioner, Samuel Greenstone.

    Eor the respondent, Ralph Cooper.

   I do hereby find from stipulations and evidence as follows:

1. That the petitioner met with an accident arising out of and in the course of his employment on January 37th, 1925, while operating the hand-lifting mechanism of a lifting truck, the handle slipped from his hand and forcibly struck him in the chest, fracturing the eighth and ninth ribs.

2. That the petitioner received temporary disability amounting to $18.86, which has been paid, and that he suffered permanent disability of two per cent, of total body disability which is allowed for injuries suffered by the petitioner, amounting to ten weeks at the compensation rate of $13.20 per week.

3. That the attorney for petitioner to receive a counsel fee of $50, together with medical expert testimony, disbursements amounting to $50 for the two physicians who, testified in behalf of the petitioner, payably by the respondent, together with stenographer’s fee of $10.

Charles E. Corbin,

Deputy Commissioner.


author: Bacices, V. C.

text:
    Charles R. Hedden Company, a corporation, complainant, v. Walter J. Dozier, defendant.
    [Decided June 30th, 1926.]
    Corporations—Minutes—Frauds—A Secretary of a Close Corporation Sought for Some Time to Sell His Holdings to the Majority Shareholders Without Success—Finally, a Check for the Amount of His Shares at Their Book Value was Included Among a Batch of Current Business Checks Put Upon the Desk of the Majority Holder for His Signature—It was Duly Signed With the Other Checks and Delivered, With Them, to the Secretary, Who Immediately Had it Placed to His Credit at the Bank—Later, He Tendered His Certificate of Shares to the Company, but the Tender was Rejected—After the Existence of the Check was Discovered it Transpired That There was a Resolution on the Minute Book Directing the Board to Buy Such Shares at Book Value Whenever the Secretary Asked That it be Done—Facts Considered and the Entire Transaction Held to be the Secretary’s Fraud on the Company.
    Treasurer of. a company ordered to return money fraudulently abstracted.

      Messrs. Lum, Tamblyn & Colyer (Mr. 'Ralph E. Yum), for the complainant.

      Messrs. McCarter & English (Mr. Conover English), for the defendant.
   Bacices, V. C.

The Charles E. Hedden Company sues to recover from Walter J. Dozier, its former treasurer, $65,219, which it charges he procured through fraud. The defendant answers that the sum was paid to him as the purchase price of his two hundred and seventy-five shares of the capital stock of the company.

There appears in the minutes of the company a resolution purporting to have been passed by the board of directors at a meeting on August 15th, 1922, that “should the treasurer at any future time and at his pleasure withdraw from the active management of the company’s affairs, his stock-holdings in the company shall be purchased by the Charles E. Hedden Company at the book value per share at the closing of business for the fiscal year ending December 31st, preceding his intention to withdraw, and date of resignation.” It is charged that this resolution was never before the board for its consideration and is a false record, surreptitiously incorporated in the minutes by Dozier; and it is further charged that a cheek of the company, dated January 14th, 1924, to the order of D'ozier for $65,219, which he claims was given for his stock, was fraudulently obtained.

The business of the Hedden company is that of constructing engineers and builders of large structures, and its operations are extensive. It is a close corporation, with Charles E. Hedden, now seventy-three years of age, the master mind. He has been engaged in that line in Newark for upwards of fifty years, and erected many of the imposing buildings of that city and vicinity. Dozier, a much younger man, was for many years his bookkeeper and confidential secretary, until the company was formed in 1918 by Hedden and Dozier, and two others, who later sold their holdings to Hedden and Dozier. In February, 1922, James H. Toothe and Harold F. Fisher became stockholders. Toothe held twenty shares by gift from Hedden, his grandfather; Fisher, one hundred and fifty shares; Dozier, two hundred and seventy-five shares, and Hedden the balance, slightly more than a majority of the outstanding nine hundred shares, of the par value of $100. Hedden has always been the president and the practical man in charge of operations and Dozier was treasurer and the indoor man in charge of the finances and clerical force and affairs of the company, until he resigned January 15th, 1924. He was also secretary until he was succeeded by Toothe in February, 1922. Hedden, Dozier and Fisher constituted the board of directors from the time Fisher became a stockholdehr until Dozier quit the company in 1924. These three, according to the minutes, are supposed to have voted for the disputed resolution of August loth, 1922.

Whatever question there may be as to the integrity of the August 15th, 1922, resolution, there can be no doubt that the check of January 14th, 1924, was not the result of negotiation and settlement based on that resolution. The resolution was never adverted to either by Hedden or D'ozier, as the latter admits, from the date it bears until, as he says, at the conference of January 5th, 1924, he mentioned it to Hedden, and that “he didn’t say very much about it.” In view of what he says happened at that meeting and the ensuing events, it is not believable that Dozier referred to it at that time. The relations between Hedden and Dozier became strained in the fall of 1923, and Dozier was constantly pressing Hedden to buy his stock, Hedden always refusing. Finally, at a pre-arranged conference on January 5th, 1924, Dozier says he offered to sell his or buy Hedden’s shares at $200 per share; that Hedden refused the offer, but agreed that the company would take his (Dozier) shares at their book value as of December 31st, 1923, and directed him to prepare a statement of the financial standing of the company, which, he says, he forthwith proceeded to do; that on January 11th he showed Hedden his work sheets and told him that the book value of the stock would be, approximately, between $225 and $240 per share, and that he again expressed himself as willing to sell for $200 per share, as he had offered to do on January 5th, but that Hedden told him to go ahead and settle on the basis of the book value, which later, Dozier says, he determined to be $237.16 per share, by including in the assets items amounting to $134,279, anticipated profits on the incompleted contracts, which, on completion, according to a later accounting, were $57,061.02, and an item for good-will of the business of $52,354.16, which in the treasurer’s annual statement was set down at one dollar. Upon completing the statement on January 14th, Dozier, according to his own admission, without again consulting Hedden or advising him of the result, drew the company’s check for $65,219, and the next morning put it in an envelope with seventy-five other checks to be signed by Hedden, and placed the envelope on his desk. Hedden arrived later, signed them and handed them back to Dozier, who quickly drove to the Montclair bank, had his check certified and deposited it to his credit. He was late getting back to the annual meeting of the company held that afternoon. At the meeting he submitted the financial statement of the company showing assets, $490,166.51; liabilities, $329,066.99 (not including the outstanding capital stock, $90,000), and net worth, $161,099.52, which was approved, subject to audit. Thereupon, Dozier submitted this resolution:

“Resolved, That Charles R. Hedden Company purchase shares of stock of Charles R. Hedden Company now standing in the name of Walter J. Dozier on the books of the said company at the book value thereof as shown on the treasurer’s report submitted to this meeting and accepted and approved.”

The resolution was rejected by a two to two vote, Dozier and Eisher voting for and Hedden and Toothe against. Dozier thereupon resigned as vice-president and treasurer and the next day turned his books over to Toothe, his successor, and also tendered him his certificate of stock, which he refused to accept. On the following day the bookkeeper discovered the entry of the check of $65,219 on the stub of the check book and reported it to Hedden. The reaction was confusion and consternation. The resolution of August 15th, 1922, was also found, and immediately a bill was prepared, filed on January 31st, in the name of Toothe on behalf of the company. Toothe v. Dozier, 96 N. J. Eq. 46; reversed, Ibid. 601. Upon the dismissal of that suit, as improperly brought by a stockholder, this bill was filed by the company.

There is not much mystery as to how Dozier got the check. He was in charge of the financial affairs of the company, was implicitly trusted, and he was all prepared. A few days before he deposited a check for $82,000 in the Montclair bank, which, on account of its size, ordinarily would have gone to the Fidelity-Union in Newark, and he gave directions that it be not drawn against. Of the seventy-six checks made out by his secretary, Miss Jackson, on the morning of January 14th, 1924, all but the one to Dozier had the amount filled in, transversely, in heavy red type, seemingly by a check-protecting device. Dozier filled in his own in the same red type the next morning, slid it into the envelope with the rest, laid the envelope on Hedden’s desk and took a gambler’s chance that it would be signed as routine, and he was not disappointed. To Hedden they were simply a batch of business checks—and they were, all but one—and, unsuspectingly, he signed them on the dotted line without inspection, as he had done thousands of times before, exactly as Dozier expected he would. It was not a clever trick, just a vulgar cheat, a constructive forgery, perfidious and despicable. Dozier’s fanciful story that he had offered his stock at $200 per share, and that Hedden insisted upon paying him the book value approximated to him at between $225 and $240 per share, and that he assumed that Hedden signed the check without comment in consequence of that arrangement, and without curiosity or inquiry as to how the obviously excessive sum total was reached, is only further testimony of his cunning. There was nothing in the activity over the books, or even if Dozier showed Hedden the work sheets or told him the approximate value of the shares to attract Hedden’s attention or to arouse his suspicion, for it was the time for the annual statement which Dozier had been getting out for years. If the deal had been as amicably arranged as Dozier professes it was, why did ho plant the check among others of ordinary affairs, and to which it bore no relation ? Why was there no allusion to this check, given in settlement of this extraordinary transaction and that brought to a close a lifetime affiliation, either before or after it was signed, and why did Dozier rush to the bank to hare it certified? And why the resolution that the company buy the stock at the book value as shown by the treasurer’s report when he had already pocketed the price at his own figures? And again, why, when his resolution was turned down, did he not retort that the stock had already been bought and paid for? The fraud is so palpable and glaring, on his own word, that it hardly need be stated that Hedden denies making any arrangement with Dozier on January 5th or at any other time to buy his stock, and it is not believable that he, having consistently refused to be a purchaser, suddenly shifted the sale to the company, of which he was the majority stockholder, and at a price of from $225 to $240 per share when the shares had been offered at $200.

The indictment against the resolution of August 15th, 1922, is of secondary interest. ,

The minute book is of the loose-leaf type, and the minutes of meetings from the election of Toothe as secretary, February 14th, 1922, to the last entry, January 16th, 1925, twelve in all, appear to have been regularly entered, and to each is appended a formal certificate signed by Hedden as president and Toothe as secretary that they were present at the meeting, and that they “have read the foregoing minutes of said meeting, and the same are in all respects a full, true and accurate record of the acts and things done thereat.” Moreover, each page bears the impress of the corporation seal and each impression bears Toothe’s initials. Dozier and Fisher affirmed that it was duly passed, after discussion, while Hedden and Toothe deny and say that there were no meetings held after Toothe was elected secretary until the annual meeting the following January (1923). Fisher denied having any recollection of it at first when Hedden discovered it, but on the witness-stand professed to have dissembled because he was in sympathy with Dozier. The minutes, as a whole, appear regular on the face of the record, and Hedden and Toothe, because of their certifications, would, ordinarity, be estopped from challenging them, and particularly so in view of the allegations in the bill of Toothe v. Dozier, supra, that the board of directors had adopted the resolution, and a similar allegation in the complaint in a civil action in the supreme court brought by the company against Dozier, Fisher and others for conspiracy to ruin the company’s business, and a sworn statement to the same effect in an affidavit made by Toothe as a basis for criminal prosecution against Dozier. Yet, in the face of this impressive evidence, it is impossible to escape the feeling that the fraud had its inception in the disputed resolution. It is admitted by Dozier that up until the very day of the resolution lledden refused to agree to an option to- buy Dozier’s stock or to sell his to Dozier upon the death of either, and Hedden says that was the day following the date of the resolution, and he has an entry of it in his diary. Dozier again pressed him to sign a form of agreement which he had previously submitted. It is singular that Hedden should refuse to buy at Dozier’s death, and still, according to the resolution, agree to take at Dozier’s pleasure. The minutes were prepared under Dozier’s direction after Toothe was elected secretary of the company until the fall of 1923. His secretary would place them on Hedden’s desk for signature. Hedden in his blind confidence signed them without much attention, and Toothe, inexperienced, followed suit to his grandfather’s signature. It is not strange that the disputed resolution, which is one of many of the alleged meetings, covering three typewritten pages, should have escaped notice. It is in evidence that many of the minutes of meetings were prepared in group and handed to Hedden in batches, and it is evident that some of them were manufactured, as, for instance, the noting of Toothe’s presence at the meeting of February 14-th, 1922, when he was away on his honeymoon; Dozier’s record of the meeting of September 19th, 1922, when he (Dozier) was away, and the recital in the minutes of the meeting of October “that the reading of the minutes of the regular meeting of the board of directors held on the 12th day of August, 1922, be ratified, approved and confirmed,” which appears as the first entry, when, according to Dozier, the reading was had in connection with another subject before the meeting (Kelly Tire Company). These discrepancies adverted to go to prove Dozier’s complete domination over the internal management. The things that are inexplicable' and utterly discredit the minute of the disputed resolution are the facts that Dozier at no time for nearly a year and a half after the entry alluded to it, and that after its date, and especially in the fall of 1923, Dozier constantly importuned Hedden to buy his stock, and at the January 5th conference, and again at the January 11th interview, when, according to his story, the book value approximated between $225 and $240 per share, he offered to sell for $200. Why, if he had the promise of the company by resolution, honestly enacted, to take his shares at any time he felt like quitting, and if he were not conscious that it would stand daylight, did he pursue and urge Hedden to take them off his hands? It is not difficult to believe that one wicked enough to stoop to.the mean deception of which Dozier stands convicted upon his own attenuated recital of the manner in which he raided the treasury of the company, would lay his plans far enough in advance to have, as Fisher, his friend, naively wrote to Toothe’s father, “a card up his sleeve” for an emergency.

Whatever may be the secret behind the resolution, or the solution of the manner in which it crept into the minutes, there is no question in my mind that Hedden was not aware of its existence until after his disillusionment of faith in Dozier in January of 1924. The allegation in the suits and the averment in the affidavit to which reference has been made ought not to be held against him. They were matters of pleading dictated by counsel, who assumes responsibility of failure to accurately state the facts by prefixing “it appears by the minutes of the company,” &c.

The fraud has been so clearly established that little need be said of the inef&caey of the resolution as a binding obligation, assuming that it was adopted. There was no consideration. It was not the unanimous act of the stockholders. Toothe did not assent to it, and its consummation would have impaired the capital of the company. The statute forbids the payment of any part of its capital stock to a stockholder. Comp. Stat. p. 1617; Siegman v. Electric Vehicle Co., 72 N. J. Eq. 403. Of course, Hedden’s alleged promise of January 5th could not bind Toothe or the company.

Dozier will be decreed to pay back the money he unlawfully abstracted, with interest and costs.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WALTER CARLSON, PETITIONER, v. AMERICAN WIRE AND FORM COMPANY, RESPONDENT.
    On petition for compensation. On determination and rule for judgment.
   This matter coming on to be heard before Honorable Charles E. Corbin, deputy commissioner, on August 6th, 1926, in the presence of the respective parties, on the claim of the petitioner that on March 29th, 1926, while in the employ of the respondent, he sustained a hernia, and after hearing and considering the testimony and the arguments of counsel, and being of the opinion that the conditions under which the Compensation law permits recovery for hernia were not proved to exist in this case, it is, on this 30th day of August, 1926, ordered that the petition be dismissed and that judgment be entered in favor of the respondent and against the petitioner.

Charles E. Corbin,

Deputy Commissioner.


author: Ikgersoll, Y. C.

text:
    Peter J. Glasser and William A. Baker, complainants, v. Lewis K. Ewing and Harry H. Keener, defendants.
    [Determined June 8th, 1926.
    Filed June 24th, 1926.]
    On bill, &c. On final hearing.

      Messrs. Bolie, Sooy & Tripician, for the complainants.

      Mr. Albert C. Abb oil, for tlio defendants.
   Ikgersoll, Y. C.

The complainants and defendants entered into an agreement wherein each agreed to assume the payment of one-fourth of the amount necessary to comply with the conditions of a certain agreement executed by Ewing, to purchase a tract of land in Atlantic City. Each advanced the sum of $500 to provide the amount necessary to make the first payment called for in said agreement. The complainants failed and refused to make the further payments necessary to complete the remaining payments as set forth in the agreement.

Ewing, after securing an extension of time, completed the purchase—the defendant Keener furnishing the necessary funds. The complainants deny they had knowledge of this extension of time or completion of the contract, and insist that there refusal to furnish the additional funds was based upon the supposed inability to obtain the extension of time.

The bill prayed for—1. An accounting of the profits, or for a decree for the return of the deposits made by them. At the close of the hearing the prayer for an accounting was specifically waived. The only question is, Are they entitled to a return of the money paid by them?

The testimony is, that the amount paid by them was credited to Ewing and by him used in making up the total of the consideration.

The reasoning of Vice-Chancellor Buchanan in Turtur v. Isserman, 2 N. J. Mis. R. 1084.

A decree in favor of complainants for the return of the money advanced by them wall be advised.


author: Pee Ctjeiam.

text:
    JAMES J. FINNEGAN, RELATOR, v. FRANCIS J. MCDONALD, DEFENDANT.
    Argued June 8th, 1926
    Decided June 24th, 1926.
    Municipalities—Election Under the Commission Government Act —Clerk Decided Petition Inadequate—Mandamus Will Not Lie to Compel Him to Call an Election.
    On mandamus. On rule to show cause.
    Before Justices Pabkeb, Black and Campbell.
    Por the relator, Robert Carey and Harry Lane.

    Por the defendant, Fallon & Fallon.

   Pee Ctjeiam.

This matter comes before the court on a rule to show cause why a peremptory or alternative writ of mandamus should not issue directed to the clerk of the town of Harrison, commanding him to call an election for the adoption or rejection of the so-called “Walsh” act. The clerk having on the seventh of April, 1926, decided that the petition presented for that purpose was insufficient. Our consideration of the ease leads us to the conclusion that the rule must be discharged and the writ refused. The case of Haines v. Standoven, 91 Atl. Rep. 804, is directly in point, and that ease is controlling. This court said, in that case: “The clerk may have committed errors either in the method of investigation pursued by him or in the conclusions reached by him, but such errors cannot be reviewed or corrected by the writ of mandamus.” Tf the clerk failed or refused to perform the duties required of him by statute, then, in such a case, this court has said, “mandamus is the proper remedy to enforce obedience.” Ford v. Gilbert, 89 N. J. L. 482, 486. The rule to show cause is therefore discharged and the writ of mandamus refused.


text:
    MORRIS SAFFRAN AND BENJAMIN SAFFRAN, TRADING AS M. SAFFRAN & SON, PLAINTIFFS-APPELLEES, v. ANGELO GRILLO, DEFENDANT-APPELLANT.
    Argued January term, 1926
    Decided June 23, 1926.
    Sales of Goods—Conditional Sales—Note Given With Conditional Bill of Sale and Renewed—Held, That Neither the Original Note nor the Renewals Constituted a Sale or Terminated Its Conditional Terms—No Error in Admitting Notes in Evidence nor in Excluding Evidence Regarding the Conditions Under Which Contract was Signed, the Contract Being in Evidence.
    On appeal from the Elizabeth District Court.
    Before Justices Parker, Minturn and Black.
    Eor the appellant, David 8.. Feinbe-rg.

    Eor the respondent, Stamler;, Stamler & Koestler.

   Pee Curiam.

This is a replevin suit for the recover of a piano, sold under a conditional sale or leaser which provides for the purchase price of $600 to be paid $15 in cash and $575 by the note from Phillippo Stasi, and then recites: “But in default of either of said payments * * * I will return and deliver the same to M. Saffran & Son in good order.” The instrument is in form a lease, but under the terms of the statute presents a conditional hill of sale.

A verdict was directed in favor of the plaintiffs, judgment was entered, and three grounds of appeal are urged for reversal—

1. That the court improperly admitted and refused evidence ;

2. That a nonsuit should have been granted, and

3. That there was an error in directing a verdict.

The conditional sale or lease provided for the return of the piano in the event of default in payment. The contract calls for $600, but this was adjusted by the parties at $590, as Grillo paid $15 cash and gave the Stasi note for $575. This note was not produced, under a claim that it was destroyed. The contract of sale shows that Stasi’s note was merely a conditional payment, and not accepted in satisfaction of the sale price. When the three months’ note was not paid other notes were given in its place, providing for $50 payments per month. These notes were also the notes of Phillippo Stasi, under a company name. They were taken, as is claimed, in substitution of the note of $575 for the greater convenience of the parties, and not to release Grillo from his primary obligation to pay under his conditional agreement which was never surrendered, but was retained by plaintiff, and constitutes the basis for this suit.

Defendant’s first point is error in admitting in evidence the series of ten substituted notes, because the same were made by P. Stasi Construction Company as drawer, and J. L. Saffran as payee, neither drawer nor payee being parties to the original contract. These notes were properly admitted in evidence to show the non-payment of the original note given under the terms of the contract of leasing, and were in nowise injurious to defendant, since they simply constituted an extension of the time afforded him by the contract, to comply with its terms.

The next point is error in excluding evidence as to the conditions under which contract of sale was signed. The contract was in evidence, and presented under the parol evidence rule the sole agreement between the parties, evidencing the conditions upon which the sale was made, particularly where fraud is not alleged as the basis for the claim.

The defendant’s third point is error to grant a nonsuit on the ground of novation. The motion for the nonsuit at the trial was not made upon this ground, and cannot be urged here; besides, this contention ignores the fact that defendant expressly agreed to return the piano upon default in payment oi the note, and no question is made that these substituted notes were given for the same considerations, and were not paid. Novation exists only by reason of an agreement, and there is no proof- that plaintiffs waived their rights at any time, to enforce the conditional agreement. Cooke v. McAdoo, 85 N. J. L. 693.

The final point is error in the refusal of defendant’s motion for a direction of a verdict upon the ground that the receipt by plaintiffs of Stasi’s note was payment and a compliance with the conditions of the sale. The court construed the condition to be the actual payment of the note as a basis for vesting title. To accept the defendant’s construction would be to spell out of this agreement an absolute sale of the piano, a situation which clearly was not within the contemplation of the parties, and not evidenced by the agreement.

Under this point the defendant also contends that the plaintiffs’ acceptance of the series of new notes was equivalent to payment and discharge of the original note. It is enough to state that this question was not raised belo-y. At the trial the defendant objected to the admission in evidence of the substituted notes as “having nothing to do with the cíase,”' and he reiterated the quoted statement in his motion for direction of a verdict. It cannot therefore be urged here. In any event the mere acceptance of the series of installment notes in renewal or substitution of the original note raised no presumption of its payment, in the absence of other evidence of payment, to submit to the jury. The presumption is that the notes were given in furtherance of the agreement of the parties, as evidenced by the contract. American Woolen Co. v. Maagel, 86 Conn. 234.

The judgment will be affirmed.


text:
    MANASQUAN FISH COMPANY, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY ET AL., DEFENDANTS. HARRY MAY ET AL., TRADING AS THE FEDERAL FISH COMPANY, PLAINTIFFS, v. PENNSYLVANIA RAILROAD COMPANY ET AL., DEFENDANTS. SEASIDE HEIGHTS FISH COMPANY, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY ET AL., DEFENDANTS.
    Argued January term, 1926
    Decided June 23, 1926.
    Negligence—Railroad Locomotive Causing Fire on Adjoining Property—Urged That Plaintiff’s Verdict was Against Clear Weight of Evidence—Testimony Here Presented a Situation Upon Which Reasonable Minds May Differ, and it Cannot be Said, Therefore, That the View of Either Side Cannot be Supported by a Construction of Testimony Invoked to Support it—Verdicts Rendered in Such Cases Cannot Legally be Disturbed by the Court Without Manifestations of Mistake, Passion or Prejudice on the Part of the Jury Who Are Constituted by Law as the Arbiters of the Facts.
    On rule to show cause.
    Before Justices Parker, Mintuen and Black.
    For the rule, W. Holt Apgar.

      Contra, James Mercer Davis.

   Per Curiam.

These three actions were tried before the court and jury in the Ocean Circuit, and judgments aggregating $13,250 were rendered for the plaintiffs. The defendants thereafter obtained rules to show cause. The respective plaintiffs brought suits to recover damages against the defendant railroad companies for the destruction by fire of fish nets which had been spread on land adjoining the railroad right of way at Seaside Park. The Pennsylvania and Atlantic Eailroad Company owned the right of way and the Pennsylvania Eailroad Company operated trains thereon. It is urged in favor of the rules that the verdicts were against the clear weight of the evidence.

The plaintiffs’ evidence was that the fire occurred on April 8th, 1925, upon a clear, windy morning. The Pennsylvania railroad train passed about ten forty-three a. m. ; the fire was seen “fifteen minutes after,” “fifteen or twenty minutes later,” “shortly after,” “not over twenty minutes at the longest,” “ten or fifteen minutes,” according to the memories of the witnesses. It started “fifteen feet from the track,” “five or six feet down the embankment,” “six or eight feet from tracks,” according to the testimony of witnesses. One witness noticed a locomotive “spitting” a few cinders out as it passed. It was further in evidence that the railroad right of way was not cleared of combustible materials made up of vegetable growth.

The defendants’ witnesses testified that the smoke screens and ash pans upon the locomotive in question were in good repair, as evidenced by examination made by witnesses. The testimony, pro and con, presents a situation upon which reasonable minds may differ in seeking to solve the cause of the damage, and it cannot, therefore, be said, arbitrarity, by a court, that the view of either side as a debatable question cannot be supported by a construction of the testimony invoked to support it. Manifestly, verdict rendered in such situation cannot bo legally disturbed upon the mere difference of view of the court, based upon a critical analysis of the testimony, without the apparent manifestations of mistake, passion or prejudice upon the part of the jury, who are constituted by law as the arbiters of the facts. Boesch v. Kick, 97 N. J. L. 92.

Such is the situation presented by this record, and, for that reason, we conclude that the rule to show cause must be discharged. . %