text:
    DELIA V. KNOX, RELATOR, v. WILLIAM J. O’SHEA, AS COLLECTOR OF TAXES OE THE BOROUGH OF PALISADES PARK, RESPONDENT.
    Submitted October 16, 1925
    Decided February 5, 1926.
    Taxes and Assessments—Tax Bills Withheld by Collector Because of an Alleged Lien for a Grading Assessment Which Had Not Been Removed—Tender of Payment of Taxes Made but Refused—Held, That Relator is Entitled to Receive Tax Bills and That Collector Should Accept and Give Proper Receipts for Payment.
    On rule to show cause why a peremptory or alternative writ of mandamus should not be allowed.
    Before Justices Tebnchaed, Katzenbach and Lloyd.
    For the relator, Wright, Vander Burgh & McCarthy (Wendell J. Wright, of counsel).
    For the respondent, William M. SeuferL

   Pee Cueiam.

This case is before us on a rule to show cause why a peremptory or alternative writ of mandamus should not be issued commanding William J. OShea, collector of taxes of the borough of Palisades Park, in the county of Bergen, to issue to and deliver to the relator, Delia Y. Knox, tax bills for the taxes for the years 1924 and 1925 against Tot No. 17 in block 159 on the tax map of the borough of Palisades Park, to accept and receive such taxes from the relator, or her agents, to give proper receipts therefor, and to discharge and satisfy the lien of such taxes against said lot for said years. The record contains a stipulation of facts. This stipulation admits that Delia Y. Knox is the owner of said lot No. 17, and that she acquired title thereto by deed on September 15th, 1918. The stipulation further admits that no tax bills for the years 1924 and 1925 were sent by the coBeetor of taxes of said borough to the relator; that request therefor were made; that the amount of the taxes for the said years have been rendered to the collector of taxes; that tender was refused, until an alleged lien for an unpaid assessment for grading is paid and satisfied; that the assessment for grading was affirmed on May 14tli, 1915; that on February 21st, 1924, the collector of taxes held a sale to meet certain unpaid taxes, and the said lot was struck off and sold to the borough because of the said unpaid assessment for grading. The relator argues in his brief that the alleged assessment for grading is not a lien against the lot in question. We think this question is not before us under the present rule. We will therefore not pass upon it.

We do think, however, that the relator is entitled to receive from the collector of taxes of the borough of Palisades Park the bills for taxes against said lot for the years 1924 and 1925, and that the collector should accept and re-receive such taxes and give proper receipts therefor if payment be tendered by the relator. The Tax law of 1918, section 601 (Pamph. L. 1918, p. 872), provides that as soon as the tax duplicate is delivered to the collector (on or before April 1st, section 509, Pamph. L. 1918, p. 868), he shall at once begin the work of preparing, completing, mailing or otherwise delivering tax bills to the individuals assessed, and shall complete such work on or before the 15th day of May. It is no defense to the obligation thus imposed that there is an alleged lien for an unpaid street assessment outstanding against the lot. We find nothing in the Tax act which justifies the action of the said collector of taxes in refusing to deliver to the relator the tax bills and to accept payment of the taxes due for the years 1924 and 1925.

A peremptory writ of mandamus is therefore awarded to the relator. The writ, to be issued out of and under the seal of this court, shall command and enjoin William J. O’Shea, collector of taxes of the borough of Palisades Park, in the county of Bergen, to issue and deliver to Delia Y. Knox tax bills for the taxes for the years 1924 and 1925 against lot No. 17 in block 159 on the tax map of the borough of Palisades Park, t'o accept and receive-such-taxes from the said Delia Y. Knox, or her agents, thereupon to give proper receipts therefor, and to discharge and satisfy the lien of said taxes against said lot.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    JOHN J. MARX, PROSECUTOR, v. MAYOR AND COUNCIL OF BOROUGH OF FORT LEE AND THOMAS DALTON, DEFENDANTS.
    Submitted October term, 1925
    Decided March 2, 1926.
    Public Officers—Policeman—Ordinance Fixes Salaries—Policeman Left Force in 1922—In 1925, Upon Condition That He Release Municipality From All Claims, He was Reinstated at a Salary in Advance of the Legal Schedule—Held, That His Reinstatement was Legal, but That His Salary Must Conform to Ordinance.
    On certiorari, &c.
    Before Justices Teenohaed, Katzenbaoh and Lloyd.
    Eor the prosecutor, Morrison, Lloyd & Morrison.

    Eor the defendant Thomas Dalton, Wright Yander Burg & McCarthy.

    Eor the defendant borough of Eort Lee, Macicay & Mackay.

   Pee Cueiam.

On February 28th, 1923, the mayor and council of the borough of Fort Lee passed an ordinance to establish and regulate the police department of the borough. By section 8 of this ordinance certain qualifications as to the mental ability, physical condition, citizenship and residence, were required of applicants for appointment to the police force, and that the applicant met these requirements was to be determined by an examination made by the police examining board.

On May 16th, 1933, another ordinance was passed fixing the compensation of the members of the police force. The annual salary for patrolmen thereafter appointed was fixed at $1,700, and for patrolmen then serving at $1,900 with an annual increase of $100 for a limited number of years thereafter.

On January 3d, 1933, the defendant Thomas Dalton, having (according to the recital of the resolution hereinafter mentioned) been a policeman in Port Lee, “left the department and did not act as a member of the same” from that date. On January 31st, 1935, the mayor and council “upon condition that said Dalton release the borough from all claims or demands of any kind or nature, or any wage, salary or compensation that he might have from the second day of January, 1933, to the date hereof,” by resolution reinstated him as a member of the police department as a “patrolman from the 31st day of January, 1935,” and by another resolution on February 4th, 1935, fixed his salary at $3,100 per year.

The prosecutor, having no interest except as a citizen and taxpayer of the borough, obtained this writ, and contends that Dalton’s appointment is illegal, because no examination of Dalton was made as required by the police department ordinance, and that the resolution fixing his salary at $3,100 is illegal, because in excess of the salary as fixed by the salary ordinance.

No depositions were taken for use on this hearing, and the return, consisting only of the resolutions and ordinances, does not disclose that Dalton was appointed without examiation, as required by the police department ordinance. There is therefore nothing before us to overcome the presumption that the appointment was, in this respect, properly made. And in saying this we do not desire to be understood as holding that the validity of Dalton’s appointment can be properly questioned by certiorari, as is attempted in this case. That question we do not find it nécessary to determine, for the reason that in this record there is no indication of illegality, and the appointment here must be treated as legal.

But we think that the resolution fixing the salary to be paid to Dalton exceeds the lawful amount and must be set aside. By it he is to be paid $2,100. The salary for patrolmen “now serving” when the salary ordinance was passed, May 16th, 1923, was fixed at $1,900, with an increase of $100 per year for three years “for each year of consecutive service.” Dalton was not “now serving” on May 16th, 1923, nor was he in “consecutive service” from that date until his appointment on January 21st, 1925. His appointment was made upon the express condition that he release the borough “from all claims of any kind” from the date he had left the police department. He had left the department January 2d, 1922, and he did not serve as a member of the same from .that date. He was therefore not entitled to the pay for patrolmen “now. serving” with increase for “continuous service,” but he was, as to the police department newly established by the ordinance of’February 21st, 1923, a patrolman “hereafter appointed,” and was entitled to a salary of only $1,700 with an increase of $100 “for each .year of consecutive service” thereafter. The mere .resolution of the governing body, fixing Dalton’s salary at an amount in excess of that provided by the ordinance, will not serve to repeal or modify the ordinance. To do so necessitates action of like formality to that required for the enactment of the original ordinance. American Malleables Co. v. Bloomfield, 83 N. J. L. 728. In Christie v. Bayonne, 64 Id. 191, this court held that certiorari is the appropriate method of testing the legality of municipal action providing for the payment of official salary.

The resolution fixing Dalton’s salary at $2,100 per year will be set aside.


author: Pee Curiam.

text:
    GEORGE KLEIN RELATOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY, FRANK HAGUE, JOHN SAUL, A. HARRY MOORE, MICHAEL J. FAGEN AND WILLIAM B. QUINN, BOARD OF COMMISSIONERS OF JERSEY CITY, AND JOHN SAUL, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Submitted October 16, 1925
    Decided March 11, 1926.
    Zoning—Private Garages in Restricted Zone—Chain of Private Garages—Provision of Ordinance Defining a Private Garage to be a Building Not More Than Twenty-five Feet in Width, etc., Unreasonable.
    On rule to show cause why a writ of mandamus should not be awarded.
    Before Justices Trenohabd, Katzenbach and Lloyd.
    For the relator, Griffin & Griffin.

    For the respondents, Charles Hershenstein (Thomas J. Brogan, of counsel).
   Pee Curiam.

George Klein is the owner of a tract of land located on the southwesterly side of Clarke avenue, in the city of Jersey City, known as Fos. 147-149 Clarke avenue. On May 4th, 1925, Klein made an application to the building department of Jersey City for a permit to erect on said premises ten onestorv private individual garages. He filed with the building department plans which fully complied with the building code and the regulations of the building department of Jersey City. By direction of the building department, Klein, on the same day, made application to the zoning commission of Jersey City for permission to erect said garages. On May 15th, 1925, his application was rejected by the zoning commission. The reason alleged lor the rejection of the application was that under section 3 of the ordinance regulating and restricting the location of trades and industries (known as the zoning ordinance) the lands of Klein were zoned as a residential district. This section was interpreted by the zoning commission as prohibiting the construction of said garages. Because of this' decision of the zoning commission the building department of Jersey City refused to grant the application of Klein for a building permit. Klein then appealed to the city, commission of Jersey City. The city commission, on June 16th, 1935, refused to reverse the action of the zoning commission and building department. Klein then applied to this court for the award to him of a peremptory or alternative writ of mandamus requiring the issue to him of a building permit for the erection of said garages. Upon the making of the application a rule to show cause was allowed. The case is before us upon this rule to show cause.

The facts have been stipulated and are as hereinbefore set forth. The provisions of section 3 of the zoning ordinance referred to are contained in paragraphs 4 and 13. These paragraphs, with the preamble, read as follows:

“In a residential district, as designated on the ‘Use District Map/ no building shall hereafter be erected, constructed, altered or used which is intended or designed for, and no premisés shall hereafter be used for:

“4. A group of private garages to accommodate more than two automobiles.

“13. ‘Private garage’ is hereby defined to mean a building not more than twenty-five [35] feet in width, not more than twenty [30] feet in depth, not more than eleven [11] feet in height, and to be erected on the rear line of the lot to store a pleasure automobile for the accommodation of the owner or tenant residing on said property.”

Under subdivision 13, .above quoted, it will be noted that the private garage must be erected on the rear line of a lot for the purpose of storing a pleasure automobile for the accommodation of the owner or tenant residing on such property. In other words, a garage can only be erected upon a lot upon which there is a residence, for the storage of a pleasure automobile for the accommodation of the owner or tenant of such residence. The stipulation in the present case is meagre. We do not infer that the refusal to grant the building permit is based upon the provisions of the ordinance set forth under subdivision 12. If it be, we are of the opinion that this provision is unreasonable and1 illegal, for the reasons recently given in the opinion filed in this court in the ease of Wittkop v. Garner, Building Inspector of the Town of Bloomfield, et al. (and not as yet reported). We presume that the respondents rest upon the fourth subdivision above quoted. We are of the opinion that this prohibition is not a valid exercise of the police power. In the erection of ten private individual garages in a residential zone we see nothing detrimental to public health, safety or welfare. Garages are no more detrimental to public health, safety or welfare in a residential zone than in a business zone. There is more need of garages in a residential zone than in a business zone. This matter has been -recently considered in the case of Wittkop v. Garner, supra.

The respondents endeavor to bring this case within the decision in Hench v. City of East Orange, 2 N. J. Mis. R. 510. We think the present case can be differentiated from the case of Hench v. East Orange. In that case there were to be constructed two garages for the accommodation of sixteen automobiles. The court, in its opinion, apparently looked upon these garages as public garages, as it applied to them the language used in the case of Ninth Street Improvement Co. v. Orange City, 90 N. J. L. 107, which seems more applicable to a public garage than to private garages. Since the decision in the case of Hench v. East Orange, supra,' there have also been several cases decided which greatly limit the deductions which may be gathered from the language employed in this opinion.

It would have been preferable to have had the situation in the present case more fully revealed in the stipulation of facts or by depositions. We are of the opinion, however, after a review of the entire case, that the relator is entitled to a peremptory writ of mandamus. Such a writ is awarded. Permission is given to the respondents to mould the pleadings for the purpose of an appeal, if an appeal is desired.


text:
    JOSEPH BURSTINER AND FANNIE BURSTINER, PROSECUTORS, v. CITY OF EAST ORANGE ET AL., RESPONDENTS.
    Submitted November 7, 1925
    Decided March 12, 1926.
    Taxes and Assessments—Municipal Improvements — Paving and Repaving—Review of Ordinance on Ground of Unfairness Under Home Rule Act is by Appeal, Not by Certiorari— Prosecutors Here do Not Contend They Had No Knowledge, nor do They Claim That the Work was to be Done as a General Improvement—Prosecutors Also in Laches.
    On writ of certiorari, &c.
    Before Justices Teenchaed, Katzenbach and Lloyd.
    Por the prosecutors, Aaron Harder.

    Por the respondents, Walter G. Bilis.

   Pee Cueiam.

The subject-matter of these proceedings is an assessment for special benefits for the improvement of North Harrison street, in the city of East Orange.

The city was incorporated under chapter 250 (Pamph. L. 1908), and the improvement was made thereunder except in so far as such act was affected by the so-called “Home Rule act” of 1917, and the amendments and supplements thereto.

The ordinance for the improvement wa"s introduced and passed on first reading on April 24th, 1922. On that date the city council fixed May 8th, 1922, at eight p. si., at the city hall, as the time and place for the further consideration of the ordinance, and a notice of intention, in the language of the statute, was duly published, and a copy of said notice of intention was also mailed to the prosecutors herein, who do not deny the receipt of such notice. On May 8th, 1922, at the appointed time, the city council, after the public hearing, adopted the ordinance on second and final reading (no one objecting thereto), and the same was approved by the mayor. The ordinance by section 1 provided “that Main street and North Harrison street, at their intersection, as widened iy ordinance 28 of 1920, be improved by resetting the curbs in concrete and repaving the roadway with bitulithic pavement on a six-inch concrete base.” Section 5 provided that “the property in the vicinity of such improvements benefited or increased in value by reason thereof will be subject to an assessment hereafter to be levied.” In the manner prescribed by statute, the city advertised for bids, awarded the contract and carried the improvement to completion. This was all done with full knowledge of prosecutors, they admitting that they knew of the improvement and were aware that the work was being done. On February 26th, 1923, the city engineer and city auditor presented to the city council certificates, reporting in deail the cost and improvement of North Harrison street “[as widened at its junction with Main street by ordinance No. 28 of 1920], as provided for by ordinance No. 18 of 1922,” in the sum of $3,781.68, and thereupon the city council, by resolution, determined the cost of said improvement to be $3,781.68, and directed that the matter be referred to the board of assessments in conformity with chapter 152 (Pamph. L. 1917), and the amendments thefeto. On June 22d, 1925, the board of assessments submitted to the city council its report and map showing assessments for benefits for such improvement, dated June 10th, 1925, and the city council on that.day fixed July 13th, 1925, at the city hall, as the time and place for consideration of the report and map, and to hear any objections thereto, and directed that said report and map be advertised for a public hearing. The publication of notice of such public hearing was duly made and a copy thereof mailed to prosecutors. On July 13th, 1925, the city council held a hearing on such report, at which time prosecutors appeared and objected verbally to the said assessment against the prosecutors. Further consideration of the report and map was, by proper action, postponed until July 27th, 1925, at which time the report and map were adopted, and confirmed by the majmr and city council. The report of the board of assessments for benefits provided for assessments against Joseph Burstiner and Fannie Burstiner, the prosecutors herein, in the sum of $2,194.26, and assessments against one Louis Levy of $1,091.96 and against the city of East Orange at large in the sum of $495.46.

It appears that the ordinance in question used the word “repaving,” whereas, strictly speaking, the work was “paving and repaving,” but attention is called to the fact that the ordinance provided the street be “repaved as widened,” and that the prosecutors had full knowledge of the work.

With respect to the objection now urged as to the amount of the assessment against the prosecutors, it is sufficient to say that when an attack is made upon an assessment on the ground that it is unfair, the Home Rule act • provides a remedy by appeal, and a dissatisfied landowner must use this method before resorting to a writ of certiorari. Braham v. Ocean City, 98 N. J. L. 426; Breckenridge et al. v. Newark, 94 Id. 361.

The prosecutors urge that the assessment in its entirety be set aside because the notice of intention, prescribed by statute, was given after the governing body had considered the ordinance on first reading, and because the ordinance used the word “repaving,” whereas, strictly speaking, a part «)f it was for “paving.”

It is to be noted, however, that the prosecutors did not contend that they had no knowledge of the improvement, and they did not claim they understood the work was to be done as a general improvement, and in this latter connection it is significant that the ordinance advised that properties benefited would be assessed for the work. Since the language of the ordinance was that the street “as widened by ordinance No. 28 of 1920” be improved by repaving the roadway with bitulithie pavement on a six-inch concrete base, we believe that the prosecutors cannot complain that they were misled by the inadvertent use of the word “repaved,” in view of the fact that the prosecutors admit full knowledge of all the work, and they stood by and said nothing in spite of this knowledge until they were assessed for benefits.

We also think that, regardless of the irregularity in the procedure in the enactment of the ordinance, the certiorari should be dismissed because of gross laches of the prosecutors, who, having full knowledge of the facts, and knowing the work was going on, allowed the city to expend a considerable sum, which they knew the city, as provided for in its ordinance, expected to assess against properties especially benefited. They waited until they were assured that all benefits to their property would be deprived from the improvement, and now seek to escape their proportion of the cost of the work. That they cannot do.

The writ will be dismissed, with costs.


author: Per Curiam.

text:
    HELLER-RICKARDS, INCORPORATED, v. SOLOMON BERLA ET AL.
    Argued October term, 1925
    Decided March 16, 1926.
    Common Carriers—Insurer of Safety of Goods—Goods Delivered by Truck Driver—Alleged Negligence In Piling Goods in Cellar of Consignee—Held, Question One of Fact.
    On appeal from the First District Court of Newark.
    Before Justices Parker, Minturn and Black.
    For the defendant-appellant, Philip J. Schotland.

    For the plaintiff-appellee, Harry Silverstein.

   Per Curiam.

This action was tried in the First District Court of Newark without a jury, and judgment went for the plaintiff for $370.75.

The plaintiff corporation, engaged in the trucking business, brought this action to recover charges for carting and delivering certain boiler sections (weighing one thousand nine hundred pounds each) from the railroad yard to the cellar of a building in course of construction, for which building the defendant had the heating contract.

The plaintiff delivered the boiler sections on a Saturday afternoon, in the absence of the defendant, who first learned of the delivery on the following Monday. The sections, as delivered, were placed in the basement of the building on an uneven floor, by piling one on top of the other. On Monday morning following, the section next to the ground was found to be broken. The defendant counter-claimed for $381.53 damages, alleged to have been caused by negligence in hauling and delivering the boiler parts.

The defendant contends that the plaintiff is a common carrier, liable as an insurer, and that the court therefore erred in overruling the counter-claim. The -court found: “When the sections were delivered, unloaded, placed and left by the plaintiff they were all in good condition. * * * The break was occasioned because the lowest section was lying on uneven ground, and the weight superimposed had been too much for the lowest section to sustain on the uneven ground.”

The evidence did not show the extent of the unevenness of the ground, but there was enough in the case to enable the court, sitting as a jury, to reasonably infer it. The court found no negligence upon the plaintiff’s part, and since the situation presented a question of fact, we are not inclined to disturb the finding of the trial court.

■ The judgment will be affirmed.


author: Pee Gueiam.

text:
    CECILE S. SAVAGE, PLAINTIFF-APPELLEE, v. WILLIAM L. VANDERHOOF, DEFENDANT-APPELLANT.
    Argued October term, 1925
    Decided March 18, 1926.
    Sale of Real Estate1—Defendant Received Deposit as Bailee to be Returned Under Certain Conditions—No Evidence That such Conditions Arose—Half of Deposit Afterward Returned by Principal—Action Against Bailee for Remainder Will Not Lie.
    On appeal from the Orange District Court.
    Before Justices Pabkeb, Minttjbn and Black.
    For the plaintiff-appellee, Howe & Da-vis.

    For the defendant-appellant, William Tyacke.

   Pee Gueiam.

This appeal lies from a judgment for $55, rendered in the Orange District Court, without a jury, in favor of plaintiff.

The state of demand alleges that plaintiff made and executed a written contract with the estate of George B. Harrison for the purchase of certain realty; that upon the execution of the contract plaintiff paid to defendant, as agent of the estate, the sum of $100 as a deposit on the purchase price of the property; that plaintiff has had returned to her by the estate of G. B. Harrison the sum of $50, and has been advised that the remainder of said deposit is in the possession of the defendant. Eor some unstated reason the title never passed, and this action was brought to recover $50, the unreturned balance of the deposit. The proof showed that the deposit was paid to the defendant on the day preceding the day of execution of the contract. The receipt given by the defendant was as follows:

“May 22, 1922.

Received Mrs. C. Savage a deposit of $100 on lots [description]. Selling price $1,000. Balance $900 if owners are satisfied or money refunded.

W. L. Vajstdekhooe.’’

If the facts were as alleged in the state of demand, it was the defendant’s duty, as agent of the owner, to turn the deposit over to his principal; if he failed in this duty the right to its payment vested in the principal and not in the plaintiff. Lewis v. Morris Realty Co., 3 N. J. Mis. R. 393; affirmed, 3 N. J. Adv. R. 1721.

The court found as a fact “there was no disclosure of the principal, or that there was a principal beyond the defendant until after the money had been paid.”

We conclude that the defendant received the deposit as a bailee, trustee or stakeholder, under terms which imposed upon him a personal liability to refund the deposit upon a certain contingency, i. e., if owners were not satisfied with the offer.'

There was no proof that the contingency ever happened; that the contrary was the fact is evidenced by the contract wherein the owner agreed with the plaintiff to sell him the property.

It is also to be observed that the contract of sale executed by the plaintiff recited that the $100 deposit was part of the consideration for the sale, and its receipt was acknowledged by the owners.

The ease, in essential particulars, is not unlike Sherwood v. Gaddis, 26 N. J. L. 11, and McCauley v. Ridgewood Trust Co., 81 Id. 86.

The judgment will therefore be reversed.


text:
    ROBERT STURLA, JOHN MILLER AND CHARLES REIFF, PLAINTIFFS-RESPONDENTS, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted November 5, 1925
    Decided March 18, 1926.
    Malicious Prosecution—Alleged Unlawful Interference With Railroad Train Emergency Stop Cord—Judge's Charge Examined and No Error Found.
    On appeal from the Monmouth County Common Pleas.
    Before Gummere, Chibe Justice, and Justices Kaltsch and Campbell.
    For the appellant, Devoe Tomlinson and George Holmes.

    For the respondents, William Hartshorne.

   Per Curiam.

The action is for malicious prosecution, and each of the three plaintiffs recovered verdicts of $300. From the judgment entered upon such verdict this appeal is taken. They were arrested by a railway policeman in the employ of :the appellant on a charge of unlawfully pulling the emergency stop cord on a train on which they were riding from Freehold to Matawan. They were locked up for some hours, then taken to the mayor’s court in Keyport, where a hearing was had upon the charge, which hearing resulted in a discharge of the plaintiffs-respondents. The proofs show that Eobinson, the member of the railway police who made the charge against respondents, had been notified by the train despateher of the appellant at Long Branch that this whistle cord on a particular train had been interfered with and was directed to make an investigation; that Eobinson proceeded to make an investigation, and, as a result, made the complaint against the respondents. The proofs further show that at the hearing certain emploj^es of the appellant appeared as witnesses, and an attorney of appellant also was present, apparently, for the purpose of conducting the prosecution.

The first ground urged for reversal is that the trial court erred in refusing to direct a verdict in favor of appellant. This motion was based upon the ground that Eobinson, who made the complaint, had his commission as a police officer from the state under section 4 (Comp. Stat., p. 369), and was responsible for his acts to the state, and that no liability for his acts was imputable to appellant.

We find the proofs such, however, that a jury question was raised as to whether Eobinson’s acts were instigated by the appellant company or by some of its officers and employes, likewise as to the acts of those employes who attended the trial as witnesses and that of the attorney of appellant who attended the hearing and prosecuted the complaint. Tucker v. Erie Railway Co., 69 N. J. L. 19; Goldberg v. Central Railroad Co., 97 Id. 374; Rockwell v. Erie Railroad Co., 3 N. J. Mis. R. 373.

The remaining ground urged for reversal is alleged error in the charge of the trial court as contained in the following excerpts:

“(a) The question arises whether the request for an investigation by the train despatches and the appearance of Mr. Brown at the hearing would justify the jury in finding as a fact that agents and employes of the company instigated and forwarded this prosecution. If your answer is in the affirmative, then I charge you, you would have a right to consider the question of damages, but not otherwise.

“(b) It is said that Mr. Brown was in the employment of the railroad company in some capacity—as legislative agent, for example, or as a representative of the company on what is known as a committee of safety, which you have heard designated and described to you by counsel of the defendant, company as a witness. That at the hearing the crew of the train, upon which the occurrence in question is said to have-been, appeared. Now, you can find from the evidence in what capacity he appeared. Did he appear to prosecute the plaintiffs? That would be the natural inquiry that would arise-from the admission of the fact that he did appear. Did he appear for the company in an unsuccessful prosecution of the proceeding, maliciously instituted and without probable cause ?

“(c) It appears that these men were arrested, deprived of their liberty in such a way as to be physically restrained for some hours, until bail was procured, conditioned for their appearance at a subsequent hearing of the complaint, and, in fact, they did subsequently appear and the hearing was-held, at which the persons were present as indicated to you-before. These persons referred to were either employed by the railroad company as trainmen or as agents, as in the case of Mr. Brown.

“(d) Should you decide that this prosecution was malicious and without probable cause, bearing in mind that the act of Robinson, in view of the law, cannot be charged to the defendant company, so far as his participation is concerned, and that the railroad company can only be held in the event that you find its agents or employes instigated the prosecution, and that their appearance at the hearing was in evidence, it is only with such evidence that you can pass upon the question of damages.”

We find no error therein, particularly when the charge as a whole is read and considered.

■ The instructions contained therein are in line with the law as expressed. in the cases réferred to under the first ground .of appeal.

The judgment below is affirmed, with costs.


author: Pee Ctjeiam.,

text:
    SAMUEL DUBOWY, PLAINTIFF-APPELLEE, v. JACOB BEAN AND, LOUIS SILPE, DEFENDANTS-APPELLANTS.
    Argued October term, 1925
    Decided March 18, 1926.
    Sale of Real Estate—Broker’s Commission—Contract Not in Writing—Defendant Under No Legal Duty to Purchase Through Plaintiff—Loss of Sale One of the Ordinary Hazards of Business Dealings.
    Before Justices Paekeb, Mintuen and Black.
    For the defendants-appellants, Philip J. Schotland.

    For the plaintiff-appellee, Milton M. Unger.

   Pee Ctjeiam.,

This action was tried in the Second District Court of Newark, without a jury, and judgment was rendered for the plaintiff in the sum of $300.

The plaintiff, a real estate broker, was orally authorized by one Jacob Bing to sell the latter’s house, the said Bing agreeing to pay, as commission, such part of the selling price obtained by the plaintiff as might exceed the sum of $13,000.

The plaintiff negotiated with the defendant Jacob Bean for the sale of the house. Bean offered a sum in excess of $13,000, but this proposal was never consummated.' Bean subsequently piirchased the house from one Louis Silpe for $13,200, the latter having bought direct from the owner lor $13,000. The plaintiff brought this action against Bean and Silpe, alleging conspiracy in defrauding him of commissions.

The defendants contended that on the law and the facts, the judgment should have been in their favor, and in this contention we think they are correct. In many particulars the case is not unlike that of Resky v. Meyer, 98 N. J. L. 168.

The defendant Bean was under no legal duty to purchase the property through the plaintiff, as an intermediary. If he could purchase at a lower price, either directly or indirectly, he had a legal right to do so. The loss of the prospective sale was an ordinary hazard of business dealings, and in any event the broker could have protected himself by a special contract with the owner.

The judgment should be reversed.


author:
Harry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY HEALEY (GUARDIAN) MARTIN HEALEY, PETITIONER, v. J. W. FERGUSON COMPANY, RESPONDENT.
    On determination and dismissal.
    Eor the petitioner, Viviano & Kehoe.

    For the respondent, Richard W. Baiter.

   After listening to the testimony in the ease, I find that the petitioner has failed to sustain the burden of proving conclusively the five points of the hernia section of the Compensation law, in that he has failed to show that the attendance of a licensed phjfsician was required within twenty-four hours, and, further, has failed to show such prostration that the petitioner was forced to cease work immediately.

I further find that the death of the deceased, to be compensable, hinges upon the compensabilitjr of the hernia. I find that the petitioner has failed to show that the hernia and the operation for the hernia did cause the death of the deceased, as the medical testimony of Dr. Boylan and Dr. Dwyer was merely to the effect that this was a possibility, and they did not state that this was a probability or that in their opinion the death was caused by the injury and the operation.

*******

Harry J. Goas,

Deputy Commissioner.


author: Buchanan, Y. C.

text:
    Robert Newton Crane et al., complainants, v. Elizabeth Hathaway, defendant.
    [ Filed March 22d, 1926.]
    Conveyances—Restrictive Covenants—Covenant is That Only One Dwelling-House and Private Garage Shall Occupy Each Lot— Building Consisted of a Building to Which Had Been Added Two “Shacks” in Such a Way as to Make an Actual Consolidation, Not Two Buildings in Close Juxtaposition—Two Families Occupied it Though Arranged for Only One—Held, That it was Not Two Houses nor a Two-Family House.
    On final hearing.

      Mr. Robert Newton Crane, for the complainants.

      Mr. Ira F. Smith, for the defendant.
   Buchanan, Y. C.

Complainants sue to restrain an alleged violation by defendant of a community scheme restrictive covenant, the two parties being adjoining lot owners. The covenant is “that only one dwelling-house and a private garage shall occupy this property” (i. e., each lot).

There was originally on defendant’s lot a one-and-a-half or two-story frame house or bungalow of five rooms—kitchen, dining-room, living-room and two bedrooms. To this she has joined two two-room “shacks” so as to make the whole consolidated physical structure under one continuous roof, the result being the addition of three bedrooms and a toilet or bath room to the original structure. Those exterior walls of the two added buildings, which would have made double walls at the sides of contact, were eliminated so that there was an actual consolidation, and not a mere placing of the two buildings in close juxtaposition to the original dwelling.

The locality is a summer resort. At the end of last summer the structure was for some weeks rented to two separate tenants or sets of tenants, one set occupying the original dwelling and the other set occupying the added three rooms.

Complainants contend that the present structure is not a single structure, and secondly, that even if it be a single structure, it is a two-family house, and that that is proscribed by the covenant.

On the questions of fact the evidence is clear that the consolidated structure is not a collocation of two or three houses, but “one dwelling-house;” that the situation in that behalf is no different from what it would have been if the added rooms had been the result of new construction instead of the utilization of the other buildings.

The evidence fails to show that this dwelling-house is a “two-family” house; on the contrary, I think it shows that it is only a one-family house, notwithstanding that it was occupied by two families at the same time. Many occupants of unquestioned one-family houses rent the upper floor (or other portions) of the house to a separate family for separate use, and in the case of practically all single family houses (of sufficient size) this could be done, but that, obviously, does not change the essential character of the house.

Furthermore, even if the house in question were admittedly a two-family house, complainant would not be entitled to the restraint he seeks. The covenant provides only that not more than one dwelling-house shall be erected on the lot. It does not say that that dwelling-house may not be a two-family house, nor that such house may not be occupied by more than one family; neither can it be said that by clear (or even probable) inference the meaning of the covenant extends any further than ordinary meaning of its actual verbiage.

It is possible that the common grantor intended by this covenant to prohibit the construction or maintenance upon the lot of any house which should be designed to be occupied by more than one family, or which should, in fact, be occupied by more than one family; but it is, to say the least, not clear that such was the intention. That being so, the court cannot, and will not, say that the covenant is to be so construed. Fortesque v. Carroll, 76 N. J. Eq. 583 (a case which is also, in respect to its- facts, quite strongly analogous to the present case).

The bill must be dismissed, with costs.


text:
    EMMA J. PETTY ET. AL. v. EDWARD H. LOOMIS.
    Submitted November 5, 1925
    Decided March 18, 1926.
    Damages Awarded—Verdict Found Inadequate.
    On rule to show cause.
    Before Gummeke, Chibe Justice, and Justices Kalisch and Campbell.
    Por the rulé, Samuel Kalisch, Jr.

      Contra, Samuel D. Williams.

   Pee Cueiam.

This is a plaintiffs rule and is restricted to the amount of damages awarded.

The plaintiff Emma J. Petty has a verdict for $450, and her husband, the plaintiff John Petty, was awarded nothing by the jury.

Our consideration of the testimony brings us to the conclusion that the verdict in favor of the wife is inadequate and that the .husband was entitled to damages for the loss of the society and services of his wife.

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


author: Per Cubiam.

text:
    AARON M. DICHTER, PLAINTIFF-RESPONDENT, v. HARRY ISAACSON ET AL., DEFENDANTS-APPELLANTS.
    Argued October term, 1925
    Decided March 18, 1926.
    Sale of Real Estate—Return of Deposit Money—Alleged Defect In.Title—Part of Deposit Money in Note Which Became Due Before Time to Pass Title and Was Not Paid Because of Alleged Defect—Plaintiff Entitled to Receive Deed Free and Clear of Restrictions—Defendant Made No Effort to Convey Such Title.
    On appeal from the Plainfield District Court.
    Before Justices Pabkee, Míntuen and Black.
    Por the plaintiff-respondent, Joseph J. Mutnick.

    Por the defendants-appellants, Winfield 8. Angelman.

   Per Cubiam.

This action was tried in Plainfield District Court without a jury, and judgment went for the plaintiff for $238.41.

The action was instituted by a vendee to recover deposit money and search and surveyor’s fees, because of the vendor’s inability to convey by good and marketable title, in accordance with the terms of the agreement between them.

The plaintiff produced a deed in the chain of title (known as the Bettmen deed, dated 1882), which conveyed the locus in quo and an adjoining lot, and which contained a covenant restricting the erection of a dwelling-house thereon, nearer than thirty feet from the road. The premises in question had thereon a dwelling built a year before the date of the contract, which stood about twenty-six feet and eleven inches from the road, and to which no objection had ever been made because of its propinquity to the road. The title had been transferred four or five times since 1882 by deeds which contained none of the restrictive covenants of the Bettmen deed. The house on the adjoining lot included in the Bettmen deed was located slightly less' than thirty feet from the road.

There was evidence that the buildings on the same block were located thirty feet or more back from the road, but there was no proof of a common agreement, covenant or scheme to establish such line as a modus vibendi. The defendants contend that the situation thus existing does not show a defective title.

The plaintiff gave in part payment of the deposit money a note for $400, which fell due about two weeks before the date fixed for the closing of the title, and which plaintiff neglected to pay because of his knowledge of the alleged defect in the title, and defendants’ refusal to rectify the same. The plaintiff made no tender of the purchase price. The defendants contend the situation thus outlined shows a default in plaintiff, notwithstanding plaintiff’s repeated professed willingness to accept title, provided it were made marketable.

The trial court found that the plaintiff under this agreement was entitled to receive from defendants a deed of conveyance free and clear of the ■ restrictions mentioned, and that, as defendants made no effort .to convey such title, tender of the consideration by plaintiff was unnecessary. In that conclusion we concur.

The judgment will be affirmed.


text:
    WILLIAM T. S. CRITCHFIELD, PROSECUTOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY, A MUNICIPAL CORPORATION, AND LETTIERI & BELLEZZA COMPANY, A CORPORATION, DEFENDANTS.
    Submitted October term, 1925
    Decided March 5, 1926.
    Municipalities—Construction Contracts—Prosecutor Questions Awards on Several Grounds, None of Which Seems Sustained, but, if True, Ail He Lost was an Illegal Award, Since His Own Position was Subject to Similar Attack—Prosecutor Not a Resident or Taxpayer in Municipality and Without Standing to Defeat the Successful Bidder Unless Himself Entitled to Award.
    On certiorari, &e.
    Before Justices Tren chard, Katzenbach and Lloyd.
    For the prosecutor, Collins & Corbin.

    For the respondents, Thomas J. Brogan and Charles Hershenstein.

   Per Curiam.

The prosecutor is an unsuccessful bidder for a contract for the improvement of Columbia avenue, in Jersey City. He was not the lowest by $12,000, The award was made by the board of commissioners to Lettiere & Bellezza, who were the lowest and successful bidders. This award is -attacked upon several grounds—

1. That bids were received at an hour different from that specified in the notice. It seems the hour set for the meeting was three p. m., and it may be that it was ten minutes after that the meeting was called and the bids tendered.

2. That the successful bidders failed (a) to file samples with its bid. It did supply a sample with the bid, and a day or two later supplemented the remaining samples. It appeared that this was a usual procedure; (b) it failed to file with its bid certificates showing the kind and character of material to be used; (c) it had no paving plant and no satisfactory reasons were given for preparation of cement elsewhere, and the same was not permitted in writing by the engineer. This is an obligation to be fulfilled in the performance of the contract, and is not pertinent on this proceeding.

3.. The ordinance authorizing the issuance of bids for the improvement did not fix the rate of interest. It fixes it at not exceeding six per cent., which is the statutory limit.

4. The contract was awarded prior to the passage of the financing ordinance. The resolution awarding the contract provided that it should take effect eleven days after publication of the ordinance.

None of these do we consider meritoriously substantial, as appears by the supplemental notes, but, even if the facts were otherwise, the prosecutor is in no position to contest the award. He is not a resident of Jersey City, and was not at the time of the award of the contract. He was, in fact, and still is, a resident'of Summit, New Jersey. He is not a taxpayer. Unless, therefore, his bid as presented would have entitled him to the award of the contract if the bid of Lettieri & Bellezza had been illegal, he is without standing to make this contest.

One of the grounds upon which he attacks the successful bid is that samples as required .by specifications were not supplied. Conceding this to be true, and that such samples were an essential element in compliance. with the specifications, it clearly appears from the evidence that the prosecutor himself was in like default. He presented no samples with his bid, but wrote a letter ’ to the board of commissioners referring to samples that had been “previously filed with your department.” To whom these samples were sent, to what department delivered, for what purpose and when, except during 1924, where they were to be found, if they existed at all, was not disclosed in the letter. This, obviously, was not a compliance with this requirement of the specifications. If the successful bidders are to be debarred upon the ground, the prosecutor is in like condemnation, and his standing to contest the award fails. It is probably not usual to retain samples of such materials indefinitely after they have answered their purpose, and no one seems to have known what or where the supposed samples could be found. 'That samples are an essential part of a bid on specifications requiring them is decided by the Court of Errors and Appeals in Case v. Trenton, 76 N. J. L. 696. In the case before us the defendants did furnish canned samples of the materials to be used. The city, at least, had some guide as to the materials to be used in the performance of the contract. The prosecutor offered nothing but his unidentifying letter. In Avon v. Neptune City, 57 Id. 701, the same court said: “The right to prosecute is not primarily involved unless the return to the writ, or the proceedings taken under it, affirmatively show lack of legal interest in the controversy.” In West Jersey Traction Co. v. Camden, 58 Id. 362, the status of a prosecutor of certiorari was again discussed, and it was held that where the prosecutor failed to show its own interest in the controversy, it had no standing in court to question the right of its adversary. This rule, as applied to the case of which the present is a class, is to be found in the case of Atlantic City Gas and Water Co. v. Atlantic City, 73 Id. 360, where it was held that the action of a municipal council, clearly in the interest of the taxpayers, will not be set aside upon a doubtful point of procedure at the suit of a prosecutor who has suffered no special injuries of which he can be heard to complain, Mr. Justice Garrison, speaking for this court, saying: “The standing of the prosecutor as an unsuccessful bidder rests upon his right to have his bid accepted. Certiorari is a remedial writ. If the present contention of the prosecutor is true, then all that it has lost is an illegal award. Eor this the present proceeding affords him no remedy.” Words more fitting to apply to the present situation could not be found. Upon wholly technical grounds, most of them unworthy of consideration, the prosecutor, as an unsuccessful bidder, seeks to deprive the municipality of an obviously advantageous contract. He, himself, on his own showing, could not obtain the award, and is not a party in interest. In this situation he will not be heard to prevent the making of the contract and a completion of the city’s work.

The writ will be dismissed and the award confirmed.


text:
    EDWARD MICHEL, RELATOR, v. VILLAGE OF SOUTH ORANGE AND IRA T. REDFERN, BUILDING INSPECTOR OF THE VILLAGE OF SOUTH ORANGE, RESPONDENTS.
    Submitted October term, 1925
    Decided March 5, 1926.
    Zoning—Apartment-Houses, and Stores in Restricted Territory and Beyond the Building Line Established by Ordinance— Case Within Rule of Ignaciunas v. Risley—Building Line Cannot be Maintained Against Owner’s Will.
    On mandamus.

    Before Justices Tren chard, Katzenbach and Lloyd.
    Eor the relator, Howe & Davis.

    Eor the respondents, RiJcer & Rilcer.

   Per Curiam.

The relator is the owner of a large piece of ground in the village of South Orange, at the corner of South Orange avenue and Turrell avenue, and on the plot proposes to erect three buildings, an apartment-house facing Turrell avenue to accommodate forty-four families, an apartment-house facing South Orange avenue to accommodate thirtj’-two families, and at the junction of the two avenues a building intended to contain nine stores.

Application was. made to the proper authorities for permits to build in accordance with the foregoing purposes and; uses. The applications were refused on the ground that a zoning ordinance prohibited such constructions, and also-required that any building should be back from one street the distance of fifteen feet and from the other twenty-five-feet, and with the further provision that no- building should be higher than the distance it sets back from the street on which it faces.

The lot in question is triangular in form, coming to a point in an acute angle at the street corner. Enforcement of the provisions of the ordinance against the relator would result in depriving him of a building space comprising a large part of his ground, and can only be justified if it be a proper exorcise of the police power as defined by the Court of Errors and Appeals in Ignaciunas v. Risley, 2 N. J. Adv. R. 852.

Tested by the rules therein laid down, we think the ordinance in the particulars named cannot be justified. Apartment-houses . and stores have been repeatedly held to be innocuous to any public interest within the police power,, and citia of authority is unnecessary.

The enforced set back of buildings we also deem to be an unlawful invasion of the private right of the owner in the-use of his property. This provision of the ordinance is sought to be justified by reason of an alleged danger in the-use of the highway which would result from construction of buildings nearer to the street line. This we consider an. insufficient reason. Twenty years ago the Court of Errors and Appeals in the case of Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285, held that the placing of signs or billboards could not be so restricted on the ground of public safety, although it was claimed that such construction in-times of storm or by reason of decay might become a source of danger to users of the highway. In the present case we think the reasoning in support of the limitation is even less forceful. The highways are for the use of the traveling public in reasonable manner. This use implies a recognition of the conditions of the highways and of their surroundings. If streets are too narrow for safe use théy should be widened by lawful means, and these means have been accorded the various municipalities by the exercise of the right of eminent doman through condemnation proceedings. In the present case, to impose on the owner of abutting property the •duty of making the street safe, is to transfer a public obligation to the individual, and to impose it to such a degree that he is deprived of the use of a large portion of his property without the just compensation which the constitution secures to him.

It was suggested in the briefs of the defendants that a fire hazard is created by the size of the contemplated buildings with which the fire apparatus would be at present unable to cope. This can afford no justification for the restrictions 'in this respect. The height of the highest building is to be forty-nine feet. It is said the village has a population of twelve thousand persons. Buildings of such height are usual in communities of similar size, and are, no doubt, to be found here. If the municipal authorities. have not -provided adequate fire-fighting facilities to meet the reasonable needs of their people the remedy is not to be found in a denial of the right to construct buildings of the size here desired, but in the performance of the duties imposed in the trust they have assumed.

The questions here involved were all passed upon adversely to the defendants in the similar case of Eaton v. Village of South Orange, 3 N. J. Mis. R. 957, and to these views therein expressed we adhere, and follow the decision there reached.

The relator in the situation above narrated has applied for a peremptory or alternative writ of mandamus to compel the issuance of the permit applied for. The facts are stipulated and are not doubtful in their import. We think the relator is entitled to a peremptory writ, and it is therefore awarded.


author: Per Ctjhiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. DUSAN ZEKICH, PLAINTIFF IN ERROR.
    Submitted November 1, 1925
    Decided March 8, 1926.
    Crimes—Grand Larceny—Swindle—-Evidence to Sustain Conviction—Judge’s Charge Not Prejudicial or Erroneous—Admission of Evidence Not Erroneous—Thirty Assignments Considered and Judgment Affirmed.
    On writ of error to the Hudson County Court of Quarter Sessions.
    Before Justices Trenchard, Katzenbach and Lloyd.
    For the plaintiff in error, Frank J. Guarini and I. Faerber Goldenhorn. .
    For the defendant in error, John Milton, prosecutor of the pleas.
   Per Ctjhiam.

The plaintiff in error, Dusan Zekich, was indicted for grand larceny by the grand jury of Hudson county, and was tried upon that charge and was convicted and sentenced. He now prosecutes this writ of error, both on assignments of error and on specifications of causes for reversal, pursuant to section 136 of the Criminal Procedure act. The assignments of error and canses for reversal are identical in form and substance. The brief of the plaintiff in error is cast in such a general form and character that it seems desirable, and, perhaps, necessary, to consider all the assignments and specifications of causes seriatum.

Number 1 is “because the verdict is against the weight of the evidence.” Our examination of the evidence satisfies us that this is not so. The complaining party, Theodore Cislak, testified in substance and effect that on February 17th, 1924, he met a stranger (who will be referred to as the third party) on Greene street, in Jersey City; that he met him by appointment at the same place the following day; that on the occasion of his second meeting with this third party, while he was walking down the street with him, the two of them were approached by this defendant, Zekich; that Zekich started some conversation with them and told them a story about his father having formerly lived in Jersey City, and that his father was in partnership' in Jersey City with some man; that while his father was in the hospital the partner embezzled funds of the partnership; that when his father came out of the hospital he had a lot of debts on his hands; that his father went in-consultation with some friend who advised him to go west, and his father subsequently went to'California and bought a farm out there for $9,000; that on this farm he afterward found oil, and the Standard Oil Company purchased the property from his father for the sum of $135,000; that the father had died, and before he died he enjoined his son (the defendant) to go back to Jersey City to pay back the debts his father owed at the time that he left Jersey City; that as a result of some further conversation the defendant told the complaining witness that he was going to give him .some money to pay off these debts, after giving him some for himself and something for his family, but before he would trust the complaining witness the latter had to produce a certain amount of money; that the third man then went away and came back with $2,500, and that he himself produced a bank book on the Provident Institution for Savings in Jersey City; that the defendant said that the bank book was no good, he would, have to see cash, and that then the complaining witness went to the Provident Institution for Savings and drew out $4,000; came back to Van Vorst Park where the defendant was waiting, he being accompanied by the third party; that there in Van Vorst Park the defendant produced a tin box, which was produced at the trial, and defendant said he was going to put the money of the third party and the money of the complaining witness in that tin box, and that the latter was to keep it; that it seemed to the complaining Vitness that the defendant did put the money in that box; that defendant locked it and took the keys and gave the box to the complaining witness, who, by arrangement, took it home and kept it in his custody until several days later, when, the other parties not appearing, he chiseled off the lock of the box, and, upon opening it, found it did not contain any money other than a few dollar bills and some rolls of paper.

The defendant testified that he knew nothing of the matter complained of, and had never seen the complaining witness until after his arrest a few days following the transaction complained of. He maintained that he was the victim of mistaken identity. While there was some evidence supporting the contention of the defendant, there was also some evidence supporting the story told by the complaining witness and the contention of the state as to the identity of the defendant, and our'examination of the evidence has not satisfied us that this verdict was against the weight of the evidence.

Assignment number 2 is “because there was no proof which warrants the finding that the defendant was guilty.” This, for reasons above expressed, we find to be without merit.

Number 3 is “because the charge of the court in its entirety was prejudicial to the defendant.” Assuming, without deciding this to be a proper assignment of error, it is sufficient to say that there is no merit in the complaint.

Number 4 is “because the court erroneously charged that if the defendant was guilty of anything he was guilty of grand larceny.” We think that charge was manifestly correct.

Number 5 is “because the court refused to charge the second request of the defendant.” The answer is that it was charged in effect.

Number 6 is “because the court erroneously charged a certain quoted comment upon evidence.” The answer to that is that the comment was justified by the evidence.

Numbers ?, 8 and 9 complain of the charge in respect to certain quoted recitals by the court of the general substance of the testimony given by the complaining witness. We have examined the charge with these assignments in mind, and find no merit in the complaint. The judge was undertaking to recite the substance of the testimony, and we find no fault with it, more especially in view of the fact that the judge distinctly charged the jury that “If I may state any portion of the evidence wrongly, you will disregard what I have misstated, and take your own recollection.”

Numbers 10, 11, 12, 13 and 14 complain of other quoted portions of the charge, comprehending, substantially, all of the charge. In line with what we have already indicated, we deem it to be sufficient to say that we find nothing legally objectionable in it, certainly nothing prejudicial to the defendant.

Number 15 is because the court admitted the following question to be asked of the complaining witness over defendant’s objection: “Did you open the box when you got home ?” We think that question was manifestly proper.

Number 16 is because the court permitted the following question and answer: “Q. What did you find when you got home; did you open the box when you got home?” “A. Yes, Priday morning; that was three days after.” We likewise find no fault with this examination. We think it was manifestly proper.

Numbers 17, 18, 20, 21, 23 and 26 each is an indefinite complaint as to the admission of testimony, but none of the assignments specify the testimony alleged to have been erroneously admitted, as required by State v. Herrin, 77 N. J. L. 523, and are, therefore, under the authority of that case, manifestly not such as to merit or require investigation and consideration.

Number 19 is because the court stated to counsel for the defendant: “You cannot object until he has answered.” But neither the question nor answer, if there was a question and answer in this connection, is assigned as error, and, consequently, we see no cause for reversal here.

Number 22 is “because the court refused to direct a verdict for the defendant.” We have already indicated that we think there is no merit in this point.

Number 24 is “because the court below permitted, over the protest and objection of counsel for defendant, the following question: fQ. Were’nt you held and were you not convicted of working the poeketbook drop game in Cleveland, Ohio, and wasn’t that what you got thirty days for ?’ ” With respect to that assignment, it is sufficient to say that that question was put and answered without any objection by the defendant. It therefore cannot lead to a reversal.

Number 25 is “because the court permitted the defendant to answer the question as to whether he was ever tried in Cleveland, Ohio, when the defendant had already stated that he never had been convicted anywhere before.” Our careful examination of the record discloses that that question was not put to the defendant, and no reference is made to that question in the brief of plaintiff in error. In such circumstances no consideration of the assignment is required.

Number 27 is “because the court admitted illegal evidence and refused to admit legal evidence.” We have already indicated that this assignment of error does not comply with the requirements laid down in State v. Herrin, supra, in that it does not specify the testimony alleged to have been illegally admitted or legally excluded.

Number 28 is “because there was identity of the defendant as the person who committed any crime, and, if any crime were committed, it is not the crime charged in the indictment.” With respect to that it is sufficient to say that, in our judgment, there was ample evidence of the identity of the defendant, and there was likewise ample evidence to justify the finding of the jury that the crime committed was the crime charged in the indictment.

Number 29 is “because there was no evidence whatever to show that the defendant ever had in his possession any money whatever belonging to the complainant, or that he was ever seen by anyone with money, or that he-ever appropriated any part of it to his own use; nor is there any evidence that he was guilty of the charge of grand larceny set forth in the indictment.” With respect to this assignment it is sufficient to say that we have already pointed out -that there was such evidence.

Number 30 is the last assignment, and it is “because there were other and divers errors in the record and proceedings aforesaid in the giving of the verdict and judgment aforesaid.” We think that assignment requires no comment except to say that it points to nothing requiring examination.

The judgment of the court below will be affirmed, with costs.


text:
    CRICHFIELD-LOEFFLER, INCORPORATED, A CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT, v. JAMES J. TAVERNA, DEFENDANT-APPELLANT.
    Submitted February term, 1924
    Decided March 5, 1925.
    Corporations—Sale of Stock—Contract Examined and Held not to Have Been a Subscription for Stock but One to Buy Stock, an Executory Contract, Upon Which Either Party May Stop Performance Subject to the Other Party’s Right to Damages —Court Below Wrong in Giving Judgment for Purchase Price —Judgment Should Have Been for Difference Between Contract Price and Current Price of Stock.
    On appeal from the District Court of Hoboken.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor the plaintiff-respondent, Besson é Pellet,' Oimar J. Pellet and Harlan Besson.

    Eor the defendant-appellant, George J. McEwan.

   Pee Cueiam.

This is an appeal from a judgment of the District Court of the city of Hoboken. The defendant below is the appellant. The suit was instituted upon a contract in writing, which reads as follows:

“The undersigned hereby purchases fifty shares of the capital stock of the Crichfield Co., Inc., a corporation organized under the laws of the State of New York, at ten [$10.00] dollars per share, par ten [$10.00] dollars, and agrees to pay for the same as follows:

H-* * # ❖ * íji # #

It is understood and agreed that the certificates will be issued as soon as available provided the purchase price as aforementioned has been paid in full.

It is also understood and agreed that in the event proceedings to change the name of the corporation be commenced, that the shares purchased as aforementioned will be issued after proceedings to change the name have been completed, and that the certificates will. then be issued in the new name.

In consideration of the agreement aforementioned, the said corporation hereby agrees to transfer the stock to the purchaser.as aforementioned, upon performance on the part of the purchaser of the terms hereof.

Jambs J. Taverha,
Purchaser,
Residence, 134 Central Ave., W. H., N. J.
The Gkicheield Co., Inc.,
By JOHisr C. Loeeeler,
President."

The plaintiff tendered the stock mentioned in the agreement to the defendant, who refused to accept the same. The plaintiff sought to recover the full purchase price of the stock in an action instituted in the District Court of the city of Hoboken. The plaintiff claimed that, by virtue of the contract and the tender of the stock to the defendant, the defendant became liable for the full purchase price. This theory of the case was accepted by the District Court, which gave judgment for the full purchase price. The District Court held that, by virtue of the above agreement, the defendant became a stockholder in the plaintiff corporation, and that it made no difference that no certificate of shares had been issued to the defendant. The decision of the District Court amounted to a holding that the contract was a subscription agreement. Upon an examination of the contract we have reached the conclusion that it is not. a subscription agreement, but a contract for the sale of stock controlled by the law appertaining to the sale of goods. It does not necessarily follow that if a corporation sells its stock the agreement under which the sale is made is a subscription agreement. Whether it is a subscription agreement or not is a question for the determination .of the court by an inspection of the contract. A corporation may have stock in its treasury which it can sell. There is nothing in -the agreement to show that it was not a sale of stock which the corporation may have issued, bought back, and then resold under the agreement under consideration. We hold the agreement to be an executory contract. The law is that every party to a contract, wholly or partially executory on the part of the other party, always has the right to stop performance by the other party subject to that party’s right to damages. Bixler v. Finkle, 85 N. J. L. 77. Repudiating a contract to sell goods or countermanding performance does not rescind the contract, but constitutes a breach of it. Bixler v. Finkle, supra. While there was tender of-the stock in the present case there was no acceptance of it. If the breach of contract takes place before any of the goods have been delivered, the measure of the damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer’s breach of contract. Sales of Goods act, section 64(1), 2 Comp. Stat., p. 4662. And where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price when the goods ought to have been accepted. Bixler v. Finkle, supra.

In the facts agreed upon in the present case it is stipulated that for several weeks after the date of the contract the plaintiff sold the same kind of stock for the same price as set forth in the contract. There is no evidence in the present case that the goods in question were not manifestly of the kind for which there was an available market. The lack of this evidence takes the case out of section 64, subdivision 3 of the act relating to sales of goods. 2 Comp. Stat., p. 4662. Eor this reason we think the court erred in giving judgment for the purchase price of the stock. The judgment should have been one for damages based upon the difference between the contract price and the market or current price at the time the goods should have been accepted. As there was no evidence of the difference between the contract price and the market price, the judgment should have been one for nominal damages.

The result which we have reached on this point makes it unnecessary to consider the other ground for reversal urged by the appellant. The judgment is reversed. The case is sent back to the District Court of the city of Hoboken for retrial.


text:
    AARON RIPS, PROSECUTOR, v. ABRAHAM LEVITAN ET AL., RESPONDENTS.
    Decided March 11, 1926.
    Costsi—In This Case They Should Abide Result of New Trial.
    On motion by the respondents to modify the judgment of this court in the above matter, and also: motion by the prosecutor to have costs taxed in his favor.
    Before Justices Teenchard, Katzenbach and Lloyd.
    For the prosecutor, G. Earl Brugler.

    For the respondents, Abraham Levitan.

   Per Curiam.

We see no reason to modify our judgment.

We think the costs should abide the event of the new trial. Both motions are accordingly denied.

No costs on these motions.


author: Pee Oubtam.

text:
    JOSEPH HEDGE AND MARY E. HEDGE, PLAINTIFFS, v. PENNSYLVANIA RAILROAD COMPANY, RICHMOND, FREDERICKSBURG AND POTOMAC RAILROAD COMPANY AND ATLANTIC COAST LINE RAILROAD COMPANY, CORPORATIONS, DEFENDANTS.
    Decided March 10, 1926.
    Process—Foreign Corporations—Negligence—Connecting Railroads With Those Operating in the State, but Who Maintain no Office nor Engage in Any Business Here, Though the Connecting Company Sell Coupon Tickets Here Good for Passage Over Such Roads, is Not Engaged in Business Within the State, and the Connecting Company’s Agent Here is Not Their Agent to Accept Service of Process—Plaintiff’s Alleged Injury Occurred Outside This State on Lines of Company Not Operating Here.
    Before Mr. Justice Mintrrn, sitting alone.
    Eor the rule, Haight, Carey & Hartpence.

      Contra, Alexander Simpson.

   Pee Oubtam.

The application is made upon a rule to show cause heretofore granted why the summons and complaint served upon the alleged agent of the two'defendant railroad companies other than the Pennsylvania Railroad Company should not be set aside upon the ground of the invalidity of the service.

Testimony was taken on the rule to- show cause, from which it appears that the plaintiff, a resident of New Jersey, purchased a return ticket to Jacksonville, Elorida, and, while traveling on the line of o-ne of the defendants in the neighborhood of Richmond, Virginia, was injured by the alleged negligence of the railroad. She purchased her ticket from a ticket agent in Jersey City station of the Pennsylvania Railroad Company, the initial carrier in the case, from Jersey City to Jacksonville, Florida, and service upon all three railroad companies was made upon the ticket agent in that station who was concededly the agent of the Pennsylvania Railroad Company, the initial carrier.

The Pennsylvania Railroad Company maintains a station in Jersey City and maintains therein the.agent who sold to the plaintiff the coupon ticket for transportation over its own line to Washington, D. C., and thence over the Richmond, Fredericksburg and Potomac Railroad Company to Richmond, Virginia, and thence over the Atlantic Coast Line to Jacksonville, Florida. • The practice has been for the Pennsylvania Railroad Company to sell tickets in this state to points on its own line, and also, in common with other railroad companies, under traffic arrangements, to sell through coupon tickets to points beyond its own line on connecting railroads, but that it never sells tickets to a point upon a connecting line unless in conjunction with a ticket for transporting originating from a point on its own line. When it collects the full fares for through coupon tickets it eventually accounts to the connecting carriers by remitting to them the amount of the fares collected on their tickets for mileage traveled over their railroads.

It is further shown that the two railroad companies other than the Pennsylvania are foreign corporations; that they do not operate or maintain any trackage in New Jersey, nor do they own property or maintain offices or other places of business in this state; that they have no employes and transact no business in this state except such as may be inferred from the incidental sale of coupon tickets over their lines by agents of other railroads operating in New Jersey, such as, in this instance, the Pennsylvania railroad.

The question presented upon the rule is whether the ticket agent of the Pennsylvania railroad, selling the ticket in the manner indicated, was the agent of the two defendant foreign railroad companies, and whether the said railroads are doing business in this state so as to make him their agent within the contemplation of our legislation upon that subject.

An examination of the authorities in the United States Supreme Court, as well as in the courts of such states as have had the matter under consideration, seems to lead to the conclusion that the rule is settled beyond controversy that the agent in this instance was not the agent of the two foreign railroad companies for the purpose of accepting service or process in an action at law; that the two defendant companies are not doing business in the State of New Jersey within the contemplation of our legislation upon that subject, and that the service upon the said companies under the circumstances is a nullity. Phila. and Reading R. R. Co. v. McKibbon, 243 U. S. 264; General Investment Co. v. Lake Shore and Michigan Railroad Co., 250 Fed. Rep. 160; affirmed, 260 U. S. 268; Steward Fruit Co. v. Chicago, Minneapolis and St. Paul Railroad Co. (Court of Appeals, Maryland), 121 Atl. Rep. 837; James v. Illinois Central Railroad Co. (Iowa), 175 N. W. Rep. 316; Ritchey v. Illinois Central Railroad Co. (Neb.), 138 N. W. Rep. 35.

The result is that the service of the summons and complaint in this instance upon the Richmond, Fredericksburg and Potomac Railroad Company and the Atlantic Coast Line Railroad Company must he set aside.

The rule to show cause heretofore granted is therefore made absolute.


text:
    ANNIE RUDOLPH, PLAINTIFF-RESPONDENT, v. COCA-COLA BOTTLING COMPANY, DEFENDANT-APPELLANT.
    Argued October term, 1925
    Decided March 18, 1926.
    Negligence—Improper Food—Bottle of Coca-Cola Contained a Portion of a Suspender Strap—Bottle was Sealed When Purchased—Foreign Substance Not Noticed Until Part of Contents Had Been Consumed—Contributory Negligence Not Shown—No Error in Refusing Nonsuit on Account of Discrepancy in Corporate Name of Defendant.
    On appeal from the Paterson District Court. ■
    Before Justices Parker, Minturn and Black.
    For the plaintiff-respondent, Thomas J. Kennedy.

    For the defendant-appellant, Frank G. Turner.

   Per Curiam.

This action was tried in the Paterson District Court, without a jury, and judgment went for the plaintiff for $300.

The action was predicated upon defendant’s negligence in negligently permitting to be placed in its beverage, in a bottle, a foreign substance, i. e., a piece of suspender strap, which contaminated its product, and made the same so unwholesome and deleterious as to subject the plaintiff to sickness. The beverage was known as “Coca-Cola” and was sold to the retail trade for public consumption. The plaintiff, while drinking the fluid, noticed the illusive human appendage safely ensconced in the neck of the bottle, but too late to escape the contaminating effect of the super-charged mixture.

The first point is error in denying a nonsuit because of no proof of the negligence alleged. The evidence was that the plaintiff purchased the bottle of “Coca-Cola” in a retail store; that the storekeeper open the bottle for her, and that after drinking some of the contents through a straw, plaintiff found a piece of leather strap (part of a suspender) floating therein; that she became sick to the point of vomiting, and on the following morning brought the bottle with the suspected suspender to her lawyer, who thereafter instituted suit. We think that this situation presented a jury question.

The second point urged is that the court refused to grant a nonsuit on the ground of plaintiff’s contributory negligence. While it is true that the plaintiff might have discovered the suspender strap sooner, yet it was shown that the bottle was sealed when purchased; that the storekeeper who opened it failed to notice the strap; that the plaintiff used a straw in drinking the beverage, and that the leather and the beverage were of similar color. These facts, per se, were sufficient to justify a finding of no negligence in the plaintiff, and created a jury question.

The third point urged is that the court erred in refusing a nonsuit, on the ground that there was no proof that this peculiar decoction was furnished by the defendant. This contention left an inference that the storekeeper may have been the intermediary who injected it in the bottle, but the storekeeper testified that he told plaintiff: "You don’t have to pay for that. I will have to call the attention of Coca-Cola Bottling Company to it.” He also testified:

“Q. How do }rou buy that Coca-Cola?
"A. The branch was in Passaic. Usually we call them up, the driver comes and delivers so many cases and takes the empties.
“Q. The cases, how are they marked?
“A. Coca-Cola on the case and each bottle Coca-Cola.
"Q■ You say you bought this from the driver?
"A. Yes.
"Q• Did the driver have a wagon or an automobile ?
“A. A Coca-Cola truck.
“Q. You paid cash to the driver for it?
“A. Yes.”

That situation manifestly presented a status practically identical with the case recently decided by the Court of Errors and Appeals (DeGroat v. Ward Baking Co., 3 N. J. Adv. R. 1580), -where particles of an electric light bulb were found imbedded in a loaf of bread; the only perceptible difference being that bread was a necessary staple,' while the beverage in question is a tempting luxury in the economic dispensation of everyday life. Whether, as defendant argues, the beverage did not cause the indigestion complained of, presented a question of fact and was properly submitted to the jury.

It is urged that the court erred in permitting the name of defendant (Coca-Cola Bottling Company) to be amended to read Coca-Cola Bottling Company of New York, Inc., the contention being that the latter corporation- was not served with process and was not in court.

After denial of defendant’s motion for a nonsuit, the counsel for the defendant stated that: “The defendant is not in court. There is no such a corporation sued here,” and thereupon he proceeded with the defense.

Defendant’s witness stated that his corporation was the Coca-Cola Bottling Company of New York, Inc.; that he never heard of Coca-Cola Bottling 'Company; that if such company existed, it did not market its product under the trade name of Coca-Cola; that the Coca-Cola Bottling Company of New York had a branch manufactory in Newark, and a distributing plant in Passaic; that one William Lamberton was in their employ in September, 1923. The record shows service of the summons on September 26th, 1923, upon William Lamberton, the manager of the defendant corporation (Coca-Cola Bottling Company). The defendant then continued with his defense, and presented his ease, after plaintiff had moved to amend, which amendment was allowed.

The continuance of defendant’s counsel in the case after the objection had been made constituted an estoppel or waiver of his right, to present that question at this time, and in any event it seems manifest from the testimony that.the defendant was in nowise injured by the formal amendment ordered. Feinberg v. Stasilitis, 98 N. J. L. 74; McVoy v. Bauman, 93 N. J. Eq. 638.

The result is that the judgment must be affirmed.


text:
    PUBLIC SERVICE RAILWAY COMPANY v. SADIE GROSS.
    Argued October term, 1925
    Decided March 18, 1926.
    Negligence—Injury to Trolley Car by an Automobile—Car Had Partly Crossed the Street When it was Struck on the Rear Left Side—Though There was an Erroneous Statement of Law Regarding the Rights of Way of Trolley Cars, There ' was Evidence to Support the Court’s Finding of Fact.
    On appeal from the Third Judicial District Court of Bergen county.
    Before Justices Parker, Minturn and Black.
    For the defendant-appellant, John M. Nolan.

    For the plaintiff-appellee, Carl T. Freggens.

   Per Curiam.

This action was tried in the Third Judicial District Court of Bergen county, without a jury, and resulted in a judgment for the plaintiff for $53.64.

The action was brought to recover the amount of damages caused to plaintiff’s trolley car, under these circumstances: The trolley car had stopped to receive and discharge passengers at the corner of Van Nostrand avenue and Grand avenue, in Englewood, and then proceeded to cross Grand avenne in a westerly direction. The front of the trolley car had entirely crossed Grand avenue, the trolley car being about thirty-five feet in a private right of way, leaving about fifteen feet extending into Grand avenne, when it was hit in the rear left side by defendant’s automobile, which was proceeding along Grand avenue, in a northerly direction, at a speed of from fifteen to twenty miles an hour.

The defendant claims error in the refusal of the usual motions, on the grounds of no negligence upon the part of the defendant and contributory negligence upon the plaintiff’s part.

There was evidence that the motorman looked before crossing, and that he saw the defendant a considerable distance away.

The court, in giving judgment, erroneously stated the law to require the drivers of vehicles to give the right of way to trolley cars, especially where passengers are being discharged or received. The case at bar did not involve the application of that statutory rule under the facts in evidence. The court no doubt had in mind the rule concerning vehicles going in the same direction as a trolley car, where the car has stopped to take on or to discharge passengers.

There was evidence to support the court’s finding of fact, upon the gravamen of the case, even if- one of the considerations upon which the judgment was based was erroneously stated. Where the result reached upon the testimony, as in this case, was manifestly correct, an erroneous discussion of an abstract and extraneous question by the court will not vitiate the result. 14 R. C. L. 816, and cases.

The judgment will.be affirmed.


text:
    THE BELMONT MOTORS CORPORATION, PLAINTIFF, v. IRVINGTON CONCRETE BLOCK COMPANY AND TONY GIARDINA, ALSO KNOWN AS ROSARIO GIARDINA. DEFENDANTS-RESFONDENTS, AND SAMUEL W. BERLOWE AND PACIFIC FINANCE CORPORATION, DEFENDANTS-APPELLANTS.
    Submitted November 5, 1925
    Decided March 18, 1926.
    Replevin—Motor Vehicle—Refusal to Nonsuit—Allegation That Appellees Established no Bill of Sale as Required by the Act of 1919 Will Not Defeat the Suit—Claim That Vendors of Giardina Had No Title to Convey Not Borne Out by Evidence.
    On appeal from the Essex Circuit.

      Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellants, Harold Simandl.

    Eor the appellees, Harry Greene.

   Pee Cueiam.

The judgment under review was entered upon verdict in an action of replevin to recover possession of a motor truck.

Appellants urge that the judgment should be reversed because the learned trial judge refused to nonsuit the appellees.

This ground is urged for two reasons: The first is that the appellees established no bill of sale or manufacturer’s receipt for the truck as required by the act entitled “An act relating to and regulating the sale and purchase of motor vehicles requiring presence of manufacturer’s number on same, requiring issuance of bill of sale and assignment of same, and providing penalties therefor,” approved April 15th,1919 (Pamph. L. 1919, ch. 168), and the supplements and amendments thereto.

This is fully answered against the contention of the appellants in General Motors Acceptance Corp. v. Smith, 3 N. J. Adv. R. 204.

The second reason is that the title to the motor truck was in the Belmont Motors Corporation and the Nonpariel Motors Corporation, from which Giardina purchased, had no title it could convey.

This we find to be not borne out by the testimony.

The judgment below is affirmed, with costs.


author: Per Guriam.

text:
    HUGO ROSEBERG ET AL., PLAINTIFFS-RESPONDENTS, v. AMERICAN HOTEL AND GARDEN COMPANY, DEFENDANT-APPELLANT.
    Argued October term, 1925
    Decided March 18, 1926.
    On motion to dismiss complaint.
    Before Justices Parker, Minturn and Black.
    For the motion, John C. Reed and Clarence L. Cole.

      Contra, William Elmer Broiun, Jr., and Emerson L. Richards.

   Per Guriam.

Our examination of the record in this case leads us to conclude that therp is no merit in the motion, except in so far as the identity of some of the counts is concerned. Counts three and five are practically identical with counts one and two, and should be consolidated or struck out to avoid prolixity in pleading. Otherwise the motion to strike out will be denied.


text:
    ARTHUR J. BANTIN, PLAINTIFF-APPELLEE, v. STANLEY AUTOMOBILE AGENCY, DEFENDANT-APPELLANT.
    Argued October term, 1925
    Decided March 18, 1926.
    Contracts—Sale of Motor Vehicle—Vendee Afterward Found Model was Not of the Year Represented, and Rescinded, Demanding Return of the Purchase Price—Testimony Admissible for Purpose of Showing What Contract wasi—Judgment for Plaintiff Affirmed.
    On appeal from the Essex Oircnit Court.
    Before Justices Parker, Minturn and Black.
    Eor the defendant-appellant, Jacob Lubelhin.

    Eor the plaintiff-appellee, Dalrymple & Campbell.

   Per Curiam.

This action was tried in the Essex County Circuit Court, with a jury, and a verdict for $67,5 was rendered in favor of the plaintiff.

The plaintiff entered into a contract to purchase from defendant a second-hand Stanley automobile; a car was later delivered to plaintiff, together with a bill of sale, dated March 29th, 1923, and describing the car as “one Stanley, seven-passenger touring, 728 model, serial 16146, manufacturer’s No. 1584.”

Plaintiff alleges that defendant’s agent fraudulently misrepresented the model to be 1918, whereas, in fact, it was 1917. Plaintiff discovered the fraud in October, 1924, whereupon he rescinded the contract, offered to return car, and brought this action to recover the purchase price of $675.

In a similar case (Crowley v. Homan Co., 3 N. J. Mis. R. 970), in the May term, this court held parol evidence inadmissible to vary the contract; but no objection to parol evidence was made below, nor is this objection pressed here. The question, however, is fully considered in Auto Brokerage Co. v. Ullrich, by the Court of Errors and Appeals, in the present term, where it is held that the testimony is admissible for the purpose of showing that the contract was, in fact, other than that sued upon.

The defendant’s single ground of appeal is the court’s refusal to grant a nonsuit, because (1) there is no proof of a misrepresentation of a material fact; (2) the plaintiff did not rely upon the misrepresentation, and (3) the plaintiff is guilty of laches in not discovering the fraud within a reasonable time.

We think there was evidence pro and con before the court and jury upon these various contentions, and under the circumstances they presented a jury question.

The judgment will therefore he affirmed.


author: Pee Cobiam.

text:
    BENJAMIN DRILL, PROSECUTOR, v. LEWIS G. BOWDEN ET AL., BOARD OF FREEHOLDERS OF ESSEX COUNTY AND CIVIL SERVICE COMMISSION OF NEW JERSEY, DEFENDANTS.
    Argued January term, 1926
    Decided March 18, 1926.
    Officers—Prison Guards—Guard Absent From Duty—Result, Prisoners Escaped—Guard Discharged—Reason, Alleged Cali of Nature—Guard’s Position Not Unlike That of Sentry and Should Have Called Substitute—Prosecutor Also in Laches in That He Waited Nearly a Year Before Bringing Action.
    On rule to show cause.
    Before Justices Pakkbk, Minturn and Black.
    Eor the prosecutor, Thomas L. Parsonnet.

      Contra,, Arthur T. Vanderbilt.

   Pee Cobiam.

The writ removes action, judgment and proceedings of the county supervisor of Essex county, removing the prosecutor from his position as guard of the Essex county penitentiary for his misconduct and violation of the rules of the penitentiary in leaving his post, without permission, unguarded, whereby three prisoners escaped from that corridor during his absence. It is argued that the judgment or order of the supervisor, which was thereafter upon appeal sustained by the civil service commission, upon the same testimony, is not supported by the testimony taken. Our examination of the testimony leads us to the conclusion that the judgments of both the supervisor and the commission are amply supported by the facts in evidence. Assuming that the prosecutor left the corridor as he contends, with all his responsibilities behind him, to attend to a call of nature, upon another corridor, it is not clear wiry he did not take advantage of the convenience supplied upon his own corridor for that purpose. Nor is it at all manifest why ho neglected to inform someone in authority of the danger his absence was thus creating, and that he intended to leave the post unguarded. A proper conception of his responsibility and trust, in that regard, would have warned him of the danger incident to his negligence. In any event, he should have maintained his post until properly relieved by a substitute guard. A person placed in a position of such responsibility occupies a status not unlike that of a sentry or guard in a military sense, charged with the duty of patrolling and protecting his post until relieved. His mental attitude of apparent indifference on this occasion is accentuated by the fact that his past record in the institution was not of a character to substantiate a plea of leniency by him or in his behalf.

For eleven months he has allowed the order and judgment of reviewing authorities to stand unchallenged. Since his dismissal another guard has necessarily been appointed, at an annual salary, in his place, who has since that period been performing the duties of the prosecutor, during which time the prosecutor, apparently, in full acquiescence with the legal situation thereby created, has entered into business relationships which, apparently, satisfied his necessities, and rendered him indifferent to the loss of his official station. The . situation thus created by his inaction, and apparent assent, is distinctly one of laches, and since the granting of the writ of review, which he now seeks, is entirety a discretionary act of this court, neither the law applicable to such a status nor the equities of the situation would seem to justify its issuance in this instance.

The rule to show cause will therefore be discharged.


text:
    JOHN SHALLCROSS, PLAINTIFF-RESPONDENT, v. ISBELL PORTER COMPANY, DEFENDANT-APPELLANT.
    Argued October term, 1925
    Decided March 18, 1926.
    Negligence—Motor Vehicle Collision—Truck, Disabled, Had Been Temporarily Abandoned on Side of Road on a Rainy Night— Complainant Alleges Without Light—Defendant Claims There was a Light Under Car, Also a Light on Street, Rendering Car Visible for Fifty or Seventy-five Feet1—Jury Question—Judgment for Plaintiff Affirmed.
    Before Justices Parker, Minturn and Black.
    Eor the defendant-appellant, Kellogg & Ghance.

    For the plaintiff-respondent, Jacob B. Mantel.

   Per Curiam.

This action was tried in the Second District Court of Essex county, without a jury, and judgment was rendered for the plaintiff for $212.50.

The action concerned an automobile collision, in these circumstances: The plaintiff’s driver and helper testified that plaintiff’s truck was running at not more than ten miles an hour, upon a windy, rainy night; that it was difficult to see ahead; that they did not see defendant’s truck until five feet from it; that there was no light on the truck or near it, and that it stood on the right-hand side of the road, with no one on it or near it to warn any person approaching of its presence.

The defendant’s driver and helper testified that because of engine trouble they stopped the truck on the side of the road, abandoned it and returned to Jersey City; that they left a lighted tail lamp, two or three feet under the body of the truck, and that directly across the street was a light, rendering objects visible for fifty or seventy-five feet. Whether under such circumstances the defendant was guilty of negligence presented a jury question.

A case presenting a situation to some extent similar, but probably presenting á more aggravated and excusable status, owing to the presence of a violent snowstorm which obscured the entire environment, was held by the Court of Errors and Appeals to present a question of fact for the jury. Seibert v. Goldstein Co., 99 N. J. L. 200.

The case at bar for that reason must be affirmed.


text:
    JOSEPHINE M. TALLMAN ET AL., PLAINTIFFS-RESPONDENTS, v. TRIANGLE BUS COMPANY, DEFENDANT-APPELLANT.
    Submitted November 5, 1925
    Decided March 18, 1926.
    Common Carriers—Payment of Fare—Dispute About Payment— Evidence to Let Case go to Jury—Evidence Also Admitted Regarding Failure of Defendant to Use Bus Afterward and Loss Sustained Thereby—No Evidence That She was Refused the Use of the Bus, the Proofs Showing She Made no such Effort—Judgment Reversed.
    On appeal from the Monmouth Circuit Court.
    . Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the appellant, Quinn, Parsons & Doremus.

    For the respondents, Howard S. Higginson.

   Per Curiam.

This is an appeal from a judgment of the Monmouth Circuit Court in the sum of $500 in favor of Josephine M. Tail-man, recovered by her in-an action against the appellant for alleged unlawful ejection from one of its vehicles used in the transportation of passengers for hire.

There are three grounds of appeal.

The first and second are that the trial court was in error in refusing to nonsuit and direct a Verdict in favor of appellant. '

These motions were made upon the ground that the evidence did not show that the respondent had paid the correct and lawful fare.

The proofs, however, left this question to be settled as one 'f fact. The respondent testified that she had paid her fare and that the operator of the bus demanded of her the payment of a fare which he insisted she had failed to pay him on a previous trip. The operator of the vehicle testified that respondent paid him ten cents as her fare, while the correct amount was twenty cents, and she refused to pay the balance and became abusive and disorderly.

We conclude that it was not error, therefore, to refuse to nonsuit or direct a verdict because there was testimony requiring a submission to the jury to ascertain the truth as to the matter.

The third ground of appeal is directed to> the alleged erroneous rulings of the trial court in permitting answers to the following questions upon the direct examination of the respondent :

(a) “Did you walk that entire distance?” This related to the fact that after the occurrences complained of respondent ceased using the vehicles of appellant and walked from her home to her place of business. This question was objected to by appellant and the objection was overruled.

(b) “Did you lose any days with Eisner?” This question was not objected to nor was the following one, although an objection came immediately after answer thereto, and after argument counsel for respondent stated “I will not press it. 1 will withdraw it.”

(c) “Was it one of those cold or warm January days?” This was objected to and an objection made to entire line of testimony of this character.

(d) “Gan you tell how many times you did walk?”

(e) “Did you procure the services of a. doctor?”

We find nothing in the case warranting testimony upon these lines. There is nothing showing that respondent, by the payment of the proper and legal fare, could not have continued to be transported by the buses of appellant to and from her place of work.

The proofs show that she made no such effort. Testimony that she lost time from her work, that she suffered physical discomfort and that she became ill because of exposure and exertion in walking this distance to and from her place of employment was therefore irrelevant and harmful, and prejudicial to appellant.

Eor this trial error the judgment below must be reversed, with costs.