text:
    Piggly-Wiggly Delaware, Inc., complainant, v. Elwood S. Bartlett, defendant.
    [Submitted September 16th, 1924.
    Determined September 22d, 1924.
    Filed October 1st, 1924.]
    Corporations — Alleged Fraudulent Issue of Stock to Organizers —Alleged Fraudulent Conversion of Corporate Funds by Officers — Final Hearing Awaited to Determine Charges.
    On bill, &e. On motion.

      Messrs. Cole. <£■ Cole, for the complainant.

      Me-ssrs. Bourgeois & Coulomb, for the defendant.
   Ingersoll, V. C.

The complainant is a corporation, incorporated in 1922 under the laws of the State of Delaware, with an authorized stock of seven thousand five hundred shares of preferred stock of the par value of $10, and fifteen thousand shares of common stock without nominal or par value.

The bill sets forth that the defendant, Elwood S. Bartlett, a citizen and resident oE Atlantic City, this state, conceived a fraudulent plan to incorporate complainant company with a view of controlling and manipulating its affairs for his own personal gain and profit, at the sacrifice of the company, and that he was aided in said fraudulent plan by one James G. Hostutler and one Daniel H. Weissman, who were cognizant of said unlawful purpose.

That the defendant and Hostutler and Weissman subscribed (in the aggregate) to ten shares of the common stock, and that the said company was incorporated — they being the onfy incorporators. That on or about the 23d clay of February, 1922, the defendant and said Hostutler entered into an- agreement with the Piggly-Wiggly corporation, also a corporation of the State of Delaware, by virtue of which they agreed to open, equip and operate a certain number of stores using the Piggly-Wiggly system (the patent for which being owned by said corporation) in certain geographi'cal territory, and to pay therefor a prescribed percentage of the gross sales of said stores so owned and operated.

That on or about March 4th, 1922, the three incorpora tors met, as the first meeting of the incorporators, adopted by-laws, and the defendant and Hostutler offered to sell and assign to complainant their interest in the said agreement, and that the three incorporators passed a resolution approving the said offer, and recommending to the board of directors the acceptance of said offér and the issiie of the entire common stock to the said defendant and the said Hostutler.

That Bartlett, Hostutler and Weissman, as stockholders, elected themselves directors, and, as directors, elected the defendant president and treasurer, Hostutler vice-president, and Weissman secretary of the company.

, That, as directors, the three adopted a resolution agreeing to purchase the said agreement before mentioned, and authorizing the president and treasurer (the defendant) to issue the fifteen thousand shares of stock to the defendant and Hostutler.

The assignment made by Bartlett and ITostutler to the complainant was dated March 10th, 1922, and expressed a consideration of “one dollar and other valuable consideration..”

That on March 20th, 1922, the defendant and said Hostutler and Weissman (as directors and officers of the complainant) abrogated the assignment aforesaid by entering into a contract in the name of complainant with the PiggtyWiggly corporation.

That the defendant, Hostutler and Weissman, being officers and directors of the complainant company, “offered in the name of tlie complainant company, and in its name took subscriptions for a large number of the shares of tlie common stock of the complainant company and of its preferred stock,” and tliat they represented “that the said common stock was tlie possession of the complainant company, and that all moneys derived from such sales would be the moneys of complainant company and available for its business and operation.”

Exhibit, “tí” evidences that the subscription form was in the name of the complainant company.

“There are outstanding * * * eight thousand eight hundred shares of its common stock, all of which were issued to the holders as original subscribers direct from the company.

“That the exact amount of money received from the sale of the said shares of common stock is unknown to complainant compilin',” but it avers it “amounted to upward of $100,000.

“That all moneys [laid for common stock of complainant company as aforesaid were made payable to and were paid unto the treasury of complainant company.

“That between tlie organization of complainant company and the termination of defendant’s official connection with complainant company * * *, the said defendant then being both president and treasurer of complainant company, unlawfully and fraudulently withdrew large sums of money from the treasury of complainant company, and unlawfully and fraudulently diverted the moneys of complainant company to his own personal use and profit and to the personal use and profit of the said ITostutler and Weissman, and against the interests of complainant company. Thai tlie exact time of such withdiawal and the exact amount so withdrawn and diverted as aforesaid are unknown to this complainant company, and the defendant refuses to disclose the same, but tliis complainant company is informed and believes and so avers that the aggregate of the moneys fraudulently diverted as afoiesaid was upwards of $94.000.

“That the moneys so withdrawn from the treasury of complainant company were moneys paid to complainant company and intended for its use by subscribers to the capital stock of complainant company.

“That said withdrawal was without the knowledge or consent of the subscribers or shareholders of complainant company.

“That the withdrawal of said moneys was without any authority in law, and was not given even the color of authority by any corporate resolution or action.

“That the said defendant now pretends that the moneys so drawn out and diverted as aforesaid were the proceeds of the sale of the common stock of complainant company, and that the aforesaid resolutions of the incorporators’ meeting and of tiie directors’ meeting of complainant company relative to the Piggly-Wiggly agreement hereinbefore set forth gave the said defendant the right to withdraw said monev from the treasury of complainant company and devote the same to his own personal use and to the personal use of his aforesaid associates.

“And this complainant denies that the aforesaid resolutions of the incorporators’ meeting and of the directors’ meeting of complainant company gave the said defendant the right to withdraw said money from the treasury of complainant company, and expressly charges that said withdrawal was unlawful and constituted, and was, a breach of trust.

“That neither said defendant nor his said associates, nor any of them, has paid back the moneys withdrawn from the treasury of complainant company as hereinbefore set forth, nor any part thereof.

“That the said defendant has refused to account for said moneys, though requested so to do by the complainant company.

“That during all the time that the acts hereinbefore alleged took place neither the said"defendant, nor his said associates discloséd to the complainant company or to the subscribers of its capital stock or to its stockholders, or to any of them, that the said defendant or his said associates, or any of them, claimed any right, title or Interest in or to the common stock of complainant company, or to the proceeds front the sale thereof, or to any part of such proceeds, and did not disclose the resolution pretended to' be adopted at the incorporators’ meeting of March 4th, 1922, or the resolution pretended to be adopted at the directors’ meeting of March 4tli, 1922, hereinbefore referred to;, and did not disclose that they, or any of them, claimed or ejected any personal gain or profit, for or by reason of the, aforesaid assignment of the Piggly-Miggly agreement to complainant company, or for or by reason of the contract entered into by the said defendant in the name of complainant company with Piggly-Wiggly corporation hereinbefore referred to^ but concealed all these things from complainant company and its shareholders and subscribers to its capital stock.

“That the complainant company and its stockholders were not in possession of the facts concerning the fraudulent acts of the said defendant and his said associates hereinbefore alleged until after the defendant ceased to be a director and officer of complainant company as> aforesaid, and shortly before the filing of this bill of complaint.

“That neither the said complainant company nor its stock holders have ever ratified or acquiesced in any of the aforesaid fraudulent acts of the defendant and his said associates.'"

The prayer is for an accounting by Bartlett and a, decree for repayment.

An answer was filed. A motion made to strike certain portions of the answer was followed by a motion to1 dismiss the bill for lack of equity. The motion to' strike out answer has not been pressed, the part which is asked to he stricken being that which raises the point argued on the other motion.

The argument of counsel is based upon the claim that this common stock was the property of Bartlett and his associates. and that the complainant company could not be heard to complain as to their conduct, that if there was any cause of action, in any one,’ it was not in the company, but in each or such individual as purchased the stock under fraudulent representations or conditions.

Por the determination of this motion it is unnecessary? to decide that question.

It is unnecessary to cite authorities that on a motion to strike the bill the complainant is entitled (saving laches or acquiescence) to have his account given in the bill treated as strictly true. Bigelow v. Old Dominion Copper, &c., Co., 74 N. J. Eq. 492.

There'is no allegation in the bill that the stock (in question) was ever issued to Bartlett or his associates. In fact this is negatived by the averment: “All of which” (eight thousand eight hundred shares of common stock) “were issued to the holders as original subscribers direct from the company.”

The only allegations in the bill which could be deemed an averment that this common stock was the property of B’artlett and his associates, is the allegation and recital of a resolution at the stockholders’ meeting recommending, and the resolution in the directors’ meeting accepting, the offer of Baretlett and his associates, and agreeing to purchase the agreement, as consideration of the issuance of the said fifteen thousand shares of the common stock, and authorizing the issuance of the same aird the making of agreement.

The agreement making this sale was upon the expressed consideration of “one dollar knd other valuable consideration,” and was according to- the bill abrogated ten days later by the defendant and his associates as directors and officers of the company.

The only other material reference to the ownership of this stock is the allegation: “That by reason of the aforesaid acts and representations of the said defendant and his associates the said defendant became and was estopped from claiming or pretending any right or title to the common stock of complainant company, or to the proceeds from its sale.”

This issue as raised and argued on this motion may or may not be the determining point at a final hearing in this case, and it might be said that the court would be justified in considering all other points waived under sncli circum - stances, but although the argument was practically limited to this mooted question, the motion was not so limited.

The question remains, can a corporation demand of a defendant, who is a director, president and treasurer of this company, an accounting of moneys withdrawn by him from the treasury of the company with or without formal authorization so to do by the directors, which money was paid into the treasury by persons subscribing to the company for common stock of the company, and receiving therefor from the coni ¡muy its Common stock.

These are allegations in the bill, and for this purpose must be accepted as true.

The final hearing is the time when it will he determined whether the money alleged to< be withdrawn was properly withdrawn, or whether it was the property of the complainant or not, but the allegation is made that it is the proceeds of a contract made between the subscribers and the company and by reason thereof was paid into the treasury of the company, and that allegation with others, heretofore quoted, is .sufficient to compel the court to- refuse to dismiss the bill.

An order will bo advised in accordance with these views.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HAMPTON E. WILLIAMS, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE BOROUGH OF AUDUBON. RESPONDENT.
    Decided October 3, 1924.
    Ordinances — Street Improvements — Irregularity in Procedure Not Jurisdictional Defect.
    On application for a writ o£ certiorari.

    Before Justices Kalisoh and Campbell.
    For the applicants, Louie B. LeJDuc. •
    For the respondent, 11. Wayne Ifra-ft.

   Per Curiam.

This is an application, made upon notice, for a writ of certiorari to review an ordinance of the borough of Audubon, providing for the widening and improving of East Atlantic avenue.

It is urged that under the rule laid down in Haake v. Norwood, 2 N. J. Adv. R. 1046, the ordinance was improperly passed. This is not the first application made for a writ of certiorari to review this ordinance. Mr. Justice Katzenbach, on June 17th, 1924, allowed a. rule to show cause for that purpose, and this rule was dismissed on July 14th, 1924.

The infirmity in the ordinance complained of, we think, was a mere irregularity in procedure and not for jurisdictional defect, but, even if that be not so-, we feel it is but a proper exercise of discretion that the writ should be denied, for the reason that at the time of giving notice of such application the borough had sold and delivered its bonds and received the money therefor covering the cost of this and other improvements, and had also entered into1 a contract for the work contemplated by the ordinance, and work had been done thereunder and public moneys expended therefor.

The application for the writ is therefore denied, with costs.


text:
    HOWARD RICHARDSON, PLAINTIFF-RESPONDENT, v. JACOB HEINOCHOWITZ, DEFENDANT-APPELLANT.
    Submitted June 6, 1924
    Decided October 1, 1924.
    Contracts — Employment—Wrongful Discharge — ‘Defendant’s De, nial that He Executed Contract — Agent’s Right to Make Agreement, Clear.
    On appeals from the District Court of the Second Judicial District of the Count}’ of Essex.
    Before Justices Tbbxohabd, Mix’mtx and Lloyd.
    For the appellant, Millón M. Unger.

    For the appellee, Dairymple & Campbell and William II. Campbell, Jr.

   Per Curiam.

On November 21st, 1923, judgment ivas rendered against the defendant-appellant and in favor of plaintiff-appellee in two actions, one to recover wag-es earned and wages accruing under a contract after the alleged wrongful discharge of plaintiff-apellee by defendant-appellant, during which period the plaintiff-appellee was unable to secure other employment, and in the other case for a later period. Judgment in the first action ivas for $172.80 and costs, and in the second action for $400 and costs.

The two suits were tried together by the judge, sitting without a jury, and have been argued here together.

At the trial the plaintiff relied upon a written contract, which read as follows:

“May 39th, ’23.
"“Grand View Park Hotel,
“Morris Co., N. J.
“This is to certify that I, George L. Thompson, manager •of the above hotel, do hereby employ Howard Richardson as chef of the above hotel from May 29th, 1923, to June 30th, 1923, at the rate of $150 a month, and from July 1st, 1923, the said Howard Richardson is to receive $200 per mouth as chef to September 15th, inclusive, at which date, at midnight, the term of the contract expires. The said Richardson, however, agrees to remain as chief chef up to September 15th, 1923, one day per week off duty with pajr.
“Signed,
“Jacob Heinochowitz, Owner.
“By George L. Thompson, Manager.
“Howard Richardson.”

The defendant denied that he executed the contract, or that he authorized its execution, or that he knew of its existence. The court below found that the contract was entered into by Mr. Thompson as the duly authorized agent of the defendant, and there was abundant evidence to support that finding, and the court below was fully justified in finding that the contract was binding upon the defendant.

In an endeavor to prove the terms and conditions under which the plaintiff was employed, the plaintiff offered in evidence a letter purporting to have been written by Mr. Thompson to Thomas E. Reilly, the manager of the employment agency through which the plaintiff had been employed. It was objected to as not binding upon the defendant, but it was admitted in evidence. This letter, the evidence shows, was written by Thompson. It shows not only the terms tinder which the plaintiff was hired, but also that the “employment card” was mailed to the agency, in accordance with the requirement of the agency in its letter introducing plaintiff to the defendant, of which requirement, of course, the defendant was aware. The letter in question was therefore evidential upon the question oí compliance with that requirement. If the deiendant desired to limit its evidential force to that purpose, he should have indicated that wish by a proper motion, and that he did'not do. In this connection it is to be observed that it nowhere appears to what extent the trial judge made use of the letter in his determination of the case. The presumption is that he used it properly. We, therefore, conclude that there was no error in this matter.

The only remaining point is that the plaintiff abandoned his employment and was not discharged.

The trial judge found against the defendant upon this point and there was ample evidence to support his finding.

Both judgments will he affirmed, with costs.


text:
    LOUIS STAVE ET AL., PLAINTIFFS-APPELLANTS, v. SAMUEL A. NESBIT ET AL., DEFENDANTS-APPELLEES.
    Submitted June 6, 1924
    Decided October 1, 1924.
    Contracts — Leases of Apartments — Including Coal — Judge's Charge Misstated Evidence on Material Fact — New Trial Ordered.
    On appeal from the District Court of the city of Paterson.
    Before Justices Trexciiard, Mixturx and Lloyd.
    For the appellants, Abram 1. Bluestein and William T. BosenVrans.

    For the appellees, Michael J. Murphy and Michael Bunn.

   Per Curiam.

This is ail appeal from a judgment entered upon the verdict of a jury in favor of the defendants in the District Court.

The action was brought to recover one-third oí the cost of coal used to heat a three-family house owned by the plaintiffs in Paterson in which the defendants were tenants of one of the apartments.

The plaintiffs averred, and their testimony tended to show, that the defendants contracted to pay $50 a. month and one-third of the coal bill. The defendants (husband and wife) insisted at the trial that the contract of letting did not include payment for any coal, and this was the meritorious question to which the testimony was directed.

At the trial both defendants testified that the oral contract was made upon their part by one of the defendants (the wife) alone, and that the husband, the other defendant, was not present at the time, the husband testifying that he had no knowledge “what the agreement was, except what my wife told me.”

In this situation the trial judge in his charge called attention to the testimony of the plaintiffs, to the effect that the contract provided for the payment for the coal. He then further charged that “the defendants meet that testimony by a denial of the alleged agreement. * * * The defendants themselves both say there was no mention made about it (the coal bill) at the time they leased the premises.”

This instruction was, in effect, that both defendants had sworn that the contract did not include payment for the coal, when, in fact, only one defendant had so> testified. It was therefore a misstatement of the evidence on a material fact. It was probably misleading to the jury and was prejudicial to the plaintiffs. It was definitely excepted to and was not thereafter corrected, and hence was an error requiring reversal.

We reach this conclusion without hesitation,.for the reason that our examination of the charge leads us to the conclusion that it contained other inadvertent but material misstatements of the evidence prejudicial to the plaintiffs, which it would serve no useful purpose to dwell upon.

The judgment will be reversed and a venire de novo awarded.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    John Wetzel, petitioner, v. Steel Equipment Corporation, respondent.
    Injury to Forearm — Temporary Compensation — Permanent Disability.
    On petition for compensation. Claim petition No. 3192. Findings of facts and determination and rule for judgment.
   The petition having been filed and served in the above-entitled case, praying for compensation for injury to the petitioner’s left forearm in the .course of his employment by the respondent, and the answer having been duly filed by the respondent, and an agreement by compromise having been entered into between Attorney William Krueger, representing the petitioner, and Attorney Richard W. Baker, representing the respondent, the deputy commissioner was asked to approve this compromise and enter an award on the same.

T, therefore, find that the petitioner, in accordance with the compromise, is entitled to temporary compensation for a period of seven and three-sevenths weeks a.t the rate of $16.33 a week, five weeks of which have already been paid; that the petitioner is further entitled to permanent disability based upon thirty per cent, loss of use of the left hand; that William Krueger, attorney for the petitioner, is entitled to a counsel fee of $35, to be paid by the respondent.

It has further been determined and agreed that it is for the best interests of all the parties hereto that compensation be paid in a lump sum.

It is therefore on this 19th clay of September, 1924, ordered that judgment be entered in favor of the petitioner for seven and three-sevenths weeks’ temporary compensation at the rate of $16.33 a week, five weeks of which have already been paid, and forty-five weeks’ permanent compensation based on thirty per cent, loss of ns of the left hand at the same rate, such compensation to be paid in a lump sum less the statutory discount of five per cent, for interest, and the respondent is further ordered to pay to the attorney for the petitioner a counsel fee of $35.

William B. MoMichael,

Referee.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    John Wittenberg (guardian) and Fred J. Wittenberg, petitioner, v. C. S. Van Beekum, respondent.
    Apprentice Carpenter — Temporary Disability — Partial Permanent Disability.
    On rule for judgment.
   The above matter coming on for hearing, and having been submitted to me for decision, I hereby find and determine as follows:

1. That this is a proceeding brought by John Wittenberg (guardian) and Fred J. Wittenberg, petitioner, against the above-named respondent, C. S. Van Beekum, under an act entitled "An act prescribing the liability of an employer to make compensation for injuries, received by an an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure, for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the acts amendatory thereof and supplemental thereto; that a. petition was filed on the 16th day of Jufy, 1924; that an order was made setting down the same for hearing, on the 10th day of September, 1924; that the case came on for hearing on Wednesday, September 10th, 1924, which hearing was held in the presence of Nathan Rabinowitz, attorney for the petitioner, and on which day said petitioner was examined in the presence of said counsel.

2. That the petitioner was employed by the respondent as an apprentice carpenter on or about the 1st day of July, 1924, and that he continued in such emplojunent up to the 1th day oE July, 1924; that his duties consisted of working as an a2)prentiee carpenter.

3. That the petitioner at the time of the injury received for his services wages amounting to $22.

4. That the respondent had actual knowledge of the occurrence of the said injury.

5. That as a result the petitioner received injurjr, causing the petitioner a temporary disability which lasted for a period of four and two-sevenths weeks at the rate of $14.67 per week, and twenty-five per cent, total disability, amounting to one hundred and twenty-five weeks at $14.67 per week.

6. I find, therefore, that the petitioner is entitled to compensation for a period of four and two-sevenths weeks at $34.67 per week, and twenty-five per cent, total disability* amounting to one hundred and twenty-five weeks at $14.61 per week.

1. That the legal adviser of the petitioner is entitled to compensation in addition to his costs allowed by law in the sum o£ $15 and $10 for stenographic fees.

8. That the petitioner is entitled to $75 for medical expenses.

9. Costs will he allowed the petitioner.

It is therefore, on this 11th day of September, 1921, or dered that judgment final be entered in favor of the petitioner, John Wittenberg (guardian) and Bred J. Wittenberg, .and against the respondent, O. S. Van Beekum, in the sum of $62.87, on the basis of four and twO'-sevenths weeks’ compensation at the rate of $11.67 per week; one hundred and twenty-five weeks total disability or twenty-five per cent, at the rate of $11.67 per week, amounting to $1,833.75; $75 for the legal adviser of the petitioner; $10 for stenographic fees an.d $75 for medical expenses, amounting to the sum of $2,056.62, together with costs.

William B. McMichael,

Referee, Workmen’s Compensation Bureau.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    August Hullman, petitioner, v. A. J. Christopher, respondent.
    Rigger — Permanent Disability.
    On rule for judgment.
   The above matter coming on for hearing, and having been submitted to me for decision, I hereby find and determine as follows:

1. That this is a proceeding brought by August Hullman and against the above-named respondent, A. J. Christopher, under an act entitled "An act prescribing the liability of an employer to make compensation for injuries received by an employe m the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved. April 4th, 1911, and the ads amcndalory thereof and supplemental thereto: that a petition was tiled on the 9th day of July, 1924; that an order was made setting down the same for hearing on the 10th day of September, 1924, and that the answer of the respondent, was filed on the oth clay of August, 1924; that the case came on for hearing on "Wednesday, September 10th, 1924, which hearing was. held in the presence of Nathan Babinowitz, attorney for the petitioner. and McCarter & English, attorneys for the respondent, and on which day said petitioner1 was examined in the presence of said counsel.

2. That the petitioner1 was employed by the respondent as a rigger on or about the' 1st day of April, 1924, and that lie continued in such employment up to the'21st day of April, 1924; that his duties consisted of working pus a rigger.

3. That the petitioner at the time of the injury received for Iris services wages amounting to $36 per week.

-1. That the respondent had actual knowledge of the occurrence of the said injury.

•5. That as a result the petitioner received injury, causing the petitioner a permanent disability of sixty-five per cent., which lasted for a period of one hundred and twenty-seven and one-half weeks at the rate of $17 per week.

6. I find, therefore, that the petitioner is entitled to com pensaiion for a period of one hundred and twenty-seven and one-half weeks, or eighty-five per cent, permanent disability at the rate of $17 per week.

7. That the legal adviser of the petitioner is entitled io compensation in the sum of $200, to be assessed against petitioner, and $10 for stenographic fees, to he assessed against the respondent.

A Costs will he allowed the petitioner.

It is therefore, ;on this Ilth day of Sejitember, 1924, ordered that judgment final be entered in favor of the petitioner, August Hullman, and against the respondent, A. J. Christopher, in the sum of $2,167.50, on the basis of one hundred and twenty-seven and one-half weeks, or eighty-five per cent, permanent disability at the rate of $17 per week; $200 for the legal adviser of the petitioner, to be assessed against petitioner, and $10 for stenographic fees, to be assessed against respondent, amounting to the sum of $2,177.50, together with costs.

William B. McMichael,

Referee, ~Worlcmeris Compensation Bureau.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    August Kalayis, petitioner, v. George Puchinkis, respondent.
    Carpenter — Temporary Disability — Injury to Heart.
   This matter coming on to be heard on petition and answer on June 5th, June 12th and June 30th, 1924, petitioner being represented by Samuel Greenstone, Esq., and respondent by Charles W. Weeks, Esq., of Congleton, Stallman & Hoover, Esqs., and the court having heard the testimony offered in behalf of the parties and the argument of respective counsel.

I find from the evidence that the petitioner was, on the 29th day of October, 1923, employed by the respondent as a carpenter, and that on that day, while lifting a door prepaxatorv to setting the same, he experienced a pain in his chest, and, subsequently, spit some blood. Thereafter, and obout one-thiry i>. M'. on that day, lie stopped work ahd went to his home, whereupon his wife called in Dr. Chiger, who arrived at the house about eight o’clock that evening.

It appears from the testimony of Dr. Chiger that he found the patient suffering from acute dilatation of the heart, and that he prescribed for this condition, and did not see the man except at considerable intervals extending over a period o£ four or five months, and that the last time he saw him, in February or March, 1924, the condition of acute dilatation of the heart, for which he had been treating the petitioner, had been compensated for brr reason of the treatment.

The petitioner produced several doctors who- testified that, upon an examination made some two or three months after Dr. Chiger last saw petitioner, they found evidence of a pulmonary condition and an enlarged heart. These doctors all stated that the condition which they found at the time of their examination might have come from any one of several causes, and none of them were able to say with reasonable certainty that the condition was attributable to the happening on October 29th.

Before the hearing was resumed on June 12th, the petitioner was examined by Dr, Lewy in a room adjoining the court room in the presence of Drs. Fine, Brown and Avidan, and Dr. Lewy was subsequently sworn on behalf of the petitioner for the purpose of supporting the testimony of the petitioner’s other physicians, hut petitioner’s counsel did not ask this doctor what he found the condition of the petitioner to be as a result of his examination, contenting himself merely with asking the doctor a hypothetical question based upon what he conceived the facts to he in the case. Now, it seems peculiarly significant that if the doctor found any such condition as the other doctors sworn on behalf of the petitioner testified to, that he was not asked to give his «pinion based upon his examination, and that he did not find any such condition is further shown hv the fact that Drs. Brown, Fine and Avidau, who were all present at the examination just referred to, testified that in addition to observing the examination of the petitioner by Dr. Lewy, they made their own examination and found that the petitioner’s heart was normal, and that they could see no reason why he should not return to work at that time. Dr. Brown testified that when he examined the petitioner in December of 1923, petitioner had so far recovered as to be then able to return to work. And Dr. Pine examined the petitioner in his capacity as consultant to the health clinic of the board of health of the city o£ Newark, in February or March, 1924, and found no evidence of any enlargement of the heart, and in his opinion the petitioner’s heart was normal and he ivas able to work at that time. And it is to be remarked in this connection that Dr. Fine’s examinations were not made at the instance of either party.

’ A detailed discussion of the medical testimony will serve no useful purpose as from the whole of the medical testimony and the testimony and appearance of the petitioner at the trial, I am satisfied that he has not sustained any permanent disability as a result of the occurrence on October 29th.

I am inclined to the belief that the testimony of the occurrence of October 29th shows an accident within the meaning of the statute, and that the petitioner suffered some temporary disability, which, from the testimony, did not extend far, if at all, beyond the time when Dr. Chiger ceased to treat the patient in the latter part of March.

I will therefore award the petitioner in this case temporary disability at the rate of $17 per week, there being no dispute that the amount of his wages was $44 per Aveelc, doAvn to April 15th, 1924, or a total of twenty-three and one-third weeks. I will also award counsel fee to- the counsel for petitioner in the sum of $75, to be paid half by the petitioner and the balance by the respondent.

Harry J. Goas,

September 18th, 1924. Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    Wonza Carter, petitioner, v. Swift & Company, respondent.
    Death — Compensation—Counsel Fees.
    On determination and rule for judgment.
   The above matter coming on for a hearing, and having been submitted to be for decision, I hereby find and determine as follows:

1. That this is a proceeding brought under an act entitled "An act prescribing the liability of an employer to- make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the acts amendatory thereof and supplemental thereto. That a petition was filed by the petitioner and served on the respondent. That an answer was filed by the respondent and the cause set down for a hearing on the 20th day of March, 1924, when said matter was heard before the Honorable Iiarrv J. Goas, deputy commissioner of the workmen’s compensation bureau of the State of New Jersey, at No. 9 Franklin street, in the city of Newark, county of Essex and State of New Jersey.

The petitioner being represented by William L. Greenbaum, counselor-at-law, and the respondent by Lewis A. Ackley, connselor-at-law, on which day petitioner produced witnesses who were examined in the presence of said counsel, and on which day counsel stipulated on the record that certain interrogatories be propounded to Willitm A. Rebhan, a witness on behalf of the respondent.

That the said hearing was adjourned from time to time until September 3d, 1924, when the respondent produced the answers to the interrogatories propounded to the said William A. Rebhan, as well as testimony of another witness.

• 2. I find, as a fact, that Sylvester Carter was employed by the respondent and met with an accident on July 30th, 1923, which accident arose out of and in the course of his employment.

3. That the respondent had immediate notice of the accident.

4. That the said Sylvester Carter’s weekly7 wages averaged $30.41 per week.

5. As a result of the injuries sustained in the aforesaid accident, the said Sylvester Carter died on August 2d, 1923.

6. That the said Sylvester Carter left him' surviving, among others, Okereadus Carter, fourteen (14) years of age, who is an imbecile, being mentally deficient, and for such reason was totally dependent upon the income of the said Sylvester Carter.

7. That the petitioner is entitled to recover the cost of burial of the deceased, in the sum of $150.

8. That the petitioner is entitled to thirty-five per cent, of the weekly7 wages of the deceased, Sylvester Carter, for a period of three hundred (300) weeks.

9. That counsel for the petitioner is to receive the sum of three hundred ($300) dollars as counsel fee, two hundred ($200) dollars to be paid by the respondent and one hun dred ($100) dollars by the petitioner.

It is therefore, on this 18th day of September, 1924, ordered that judgment be entered in favor of the petitioner and against the respondent, and that the respondent make payments to the petitioner as follows:

The sum of $10.64 per week for a period of three hundred (300) weeks, starting July 30th, 1923.

The sum of $150 covering burial expense, and $200 covering counsel fee, to be paid forthwith by the respondent, and the remaining $100 payable by the petitioner.

Haeky J. Goas,

Deputy Commissioner, Workmen’s Compensation Bureau, Slate of New Jersey.


author: The Court Leaking, Y. O.

text:
    Arthur Raymond Chessman, petitioner, v. Marie Isabella Chessman, defendant.
    [Heard and determined September 30th, 1924.
    Filed October 6th, 1924.]
    Divorce — Adultery—Recrimination and Counter-Charge — Desertion Also Charged Against Complainant — Neither Charge Sustained.
    On petition for divorce.

      Mr. Walter 8. Keown, for the petitioner.

      Mr. Frank W. Darns, for the defendant.
   The Court

— Since you both appear to want to submit this case without argument, I have no objections.

Mr. Davis — I would just as leave submit it.

Mr. Keown — I am willing not to argue the ease.

Leaking, Y. O.

Well, I think it is perhaps just as well, unless Mr. Davis could say something to change my mind, because my own views are very fully defined, and I think there can be no doubt touching the soundness of the conclusions that I have reached in my mind subject to change by argument.

The evidence in support of the petition for divorce upon the part of Mr. Chessman is conclusive; there is no doubt touching what must be done in view of that evidence, unless the defense of recrimination can be said to be established. Several witnesses have testified positively to having caught Mrs. Chessman in bed with this man, whose name I do not at present recall, and Mrs. Chessman has admitted adultery and has given birth to a child that was necessarily conceived during the period of separation from her husband; so that there can be nn doubt that a divorce must be granted to Mr. Chessman unless the defense of recrimination is established.

The answer, including the amended answer, sets up that Mr. Chessman has been guilty of adultery with Mrs. Gertrude Davis, naming June 1st, 1922, as the specific date of the adultery, with an averment that the act was committed at divers other times, and also sets up as a separate defense a claim that Mr. Chessman deserted Mrs. Chessman in January, 1920, and that the desertion was willful, continued and obstinate, and has so continued for a period of over two years from that date, which, if true, would mature a course of action for her — in her behalf against him — prior to the time this petition was filed by him.

I am convinced that the evidence will not support a finding of either adultery or desertion. It is true there was a separation; Mr. Chessman apparently left the home in January, 1920, and has never lived with Mrs. Chessman since, but the only evidence we have on that subject is the evidence of Mrs. Chessman. There is m* corroboration to be found, or anything approaching corroboration, or showing the willfulness or the continuity of the desertion, or its obstinacy; so it cannot be said there is any corroborated"proof that Mr. Chessman has willfully, continuously and obstinately deserted his wife. All there is in the case on that subject rests upon her testimony, which cannot be accepted as a ground for the conclusion of statutory desertion.

On the question of adultery the situation is the same. In order to* make a finding of adultery between Mr. Chessman and Mrs. Davis we would he compelled to rely upon our own inferences; we would have to infer from their intimacy and their living together in the same house ostensibly as housekeeper and employer that the act of adultery was committed. We cannot go that far. No finding of fact that these two people have at any time committed the act of adultery could possibly be supported by the evidence. It is difficult for me to refrain from saying, at the same-time, that the suspicion of illicit relations between them is so strong that it forces itself upon my mind. 1 have seen so much of those intimate relations under the guise of business relations that it is very difficult for me to believe the truth of what the parties testify in claiming innocence on their part;' but I have no adequate ground for finding as an adjudicated fact that Mr. Chessman has committed adultery; the utmost I can say is I have my strong suspicions that he has, hut that is not sufficient. 1 am obliged to pronounce a decree of divorce in Mr. Chessman's behalf against his wife. I will advise a decree to that effect.


author: Fielder, V. O.

text:
    Joseph Barco, complainant, v. Luicci Tucillo et al., defendants.
    [Decided October 6th, 1924.]
    Partnership — Grape Business — Alleged Abandonment of Partnership by One Member and New Partnership With One of the Remaining Members — Original Partnership Found to Have ■ Continued — Accounting Ordered.
    On bill, &c.

      Messrs. McT)ermoll, Enright & Carpenter, for the complainant.

      Mr. Horace L. Allen, for the defendant Luicci Tucillo.

      2Iessrs. Lichtenstein & Lichtenstein, for the defendant Saverio Corrado.
   Fielder, V. O.

In July, 1922, the complainant, Barco-, who was then, and still is, a resident of San Pedro-, California, while on a visit at Hoboken, in this state, pro-posed to the defendants Tucillo-, Golizio and Lombardi that a partnership be formed for the purpose of buying grapes in California and shipping them to Hoboken for sale. The four men agreed to form a partnership, in which a fifth Hoboken man, to- be secured, was to be included, to which Barco ivas to- contribute $5,000 and the other four were to- contribute $2,500 each, and in which the- profits and lossess were to be shared in proportion to their contributions. Barco- returned to- San Pedro- the latter part of July, or early in August, and thereafter the three Hoboken men persuaded the defendant Corrado- to join the partnership. These four Hoboken men deposited $2,500 each in a common fund in the First National Bank of Hoboken, as their contribution to- the partnership funds, and they then sent Golizio to San Pedro- to represent them. He-arrived there on or about August 29th, and informed Barco that the partnership had been formed, naming Tucillo-, Lombardi, Co-rrado and himself as the partners, and that they had deposited $10,000 in the Hoboken bank for the use of the partnership. Barco and Golizio then proceeded to buy grapes for the partnership, their first- purchase being made by contract with Do-menieo & Rubino-, dated September 8th, 1922, and signed by Barco- and Gilizio. When this contract was signed the partnership funds had not arrived in San Pedro-, and Barco made a payment of $1,500 on account of the contract. The next day Golizio telegraphed the Hobo-ken partners to send him money, and they responded by sending him $8,000, which he deposited -in the First National Bank of San Pedro-, in his name, September 11th, and of which deposit Barco- was informed. September 10th Golizio wrote the Hoboken partners that he and Barco- had made contracts for the purchase of grapes, and that Barco had informed him that he (Barco-) had deposited $5,000 in bank, as his contribution to the partnership. Whether or not Barco actually made such special deposit does not appear, but beyond doubt a partnership of five men had been formed according to agreement, to which the four Hoboken men had contributed the agreed amount. Barco- and Golizio proceeded further with the purchases of grapes, for which Golizio made payment by his checks against the- $8,000 partnership funds on deposit with the San Pedro- bank, which checks were paid by the hank September 3 5th and 17th and October 5th, respectively, and are for a total of $4,589.44. About October 1st, differences arose between Barco and Golizio, and Barco finally notified Golizio that he would do no more business with him, and October 6th Golizio wrote his partners that he needed more money to buy grapes, and that he was buying alone because Barco wanted nothing more to do- with the grape business. In this letter ho speaks of “the fault of the partner I have for nothing has been true of everything that was promised,” and “I find myself in this muddle, and it was for shame sake that T did not return immediately as soon as I saw that things were not going right.” Allowing for the time necessary for mail from California to reach Hoboken this letter must have been received by the partners October 10th or lltli. The partners had sent more money to Golizio, probably before the receipt of his letter of October 6th, because he made two deposits of partnership money in his account in the San Pedro hank, both on October 13th, one of $1,475 and the other of $3,200. Upon the receipt of Go-lizio-’s letter of October 6th, the partners at once sent Tucillo- to- San Pedro-. He reached Barco’s homo October 16th, so late at night that he aroused Barco from bed to talk with him. Barco- told Tucillo- that he was disgusted with Golizio and was through with the partnership. They talked .for some hours, and the result of their conversation is in dispute. Tucillo-’s testimony is that lie told Barco there'was money left in the partnership fund, and lie urged Barco to continue to buy grapes, for the partner-shin, and that Barco- agreed; that he did not discuss with Barco- the formation of a new partnership between Barco and himself. Barco’s testimony is to- the effect that Tucillo- that night proposed a. new partnership to- which lie and Tucillo should contribute $5,000 each, and that Barco agreed, and that, pursuant to such agreement, Barco and Tucillo, on October 21st, went to the First National Bank of San Pedro-, where Barco borrowed $10,000 on his note and took Tucillo’s note to- his (Barco’s) order for $5,000, which $10,000 loan was deposited to Barco’s credit, and from which Barco paid for grapes thereafter purchased by him. Barco- maintains that, by this transaction, $5,000 for himself and $5,000 for Tucillo- was raised, which each had agreed to contribute to- a new partnership, in which Golizio, Lombardi and Oo-rrado were to have no- interest, and that the original partnership was at an end, while Tucillo says that he has no- recollection of signing a note to Barco- for $5,000, and that the original partnership continued.

Tucillo must have known that the money used by Barco for the purchase of grapes'after October 16th did not come from the funds of the five partners on deposit in Golizio’s name, but he makes no- explanation of the source from which said purchases were paid, except as to $1,500 which he received from his partners October 21st and gave to Barco. Notwithstanding this, and notwithstanding that the proo-f is clear that Barco- did raise $10,000 in the manner stated, and that Tucillo did sign a note to- Barco’s order fo-r $5,000, that Barco paid for grapes bought by him October 17th and 19th from his own funds and paid for grapes thereafter bought by him from the $10,000 proceeds of the discount of his note, I am not convinced that the old partnership was abandoned by Barco and that a new one was formed by him with Tucillo-, for reasons which I shall presently state. I think that after Tucillo- had come from Hoboken to- see Barco, and they had talked over the partnership troubles, Tucillo induced Barco to continue with the original partnership upon the assurance that Barco need no longer associate with Golizio in the purchase of grapes, but co-uld do- the purchasing by himself, and because Barco- wo-uld have no further relations with Golizio and could not draw on the partnership funds which were on deposit in Golizio’s name, new funds were required, and, pending their arrival from Hoboken, Barco and Tucillo raised the $10,000 fund in the manner testified to by Barco.

It does not seem probable that Tucillo, who had put up Ms money for a partnership of five persons, who- had arrived in San Pedro in the interest of that partnership, who had not yet seen Golizio, and had not learned from Golizio the reasons for or the cause of Golizio’s. troubles with Barco, would immediately desert his friends and form a new partnership with Barco, with whom he had but a slight acquaintance, and upon whom Golizio, in the letter which caused Tucillo to go to San Pedro, had placed the blame for the partnership difficulties. The fact is that on October 17th (the day after Tueillo’s arrival at San Pedro) Tucillo notified his partners by telegram of his arrival at San Pedro*; that he had found everything right and requested them to wire him all the money they could. In response to this telegram, they wired him $1,500 October 21st, which he gave to Barco and which Barco used for the purchase' of grapes.

While Tucillo was at San Pedro^ Barco made the following purchases of grapes; October 17th, $2,542.32; October 19th. $2,308.23; October 23d, $2,205; October 23d, $2,-431.25; October 23d, $1,947.81; October 24th, $1,968.18, all of which were consigned to Tucillo at Hoboken, when Barco knew that Tucillo would not be there to* receive them, and where they were received by the partners Lombardi and Corra do. Accompanying four of the invoices for these shipments are receipted bills from the sellers of the grapes, made out to "Joe Barca and Louis Tuecello & Go.” Tucillo left for Hoboken on or about October 25th, and thereafter Barco made one more purchase of guapes, namely, on November 3d. for $1,800, which was also consigned to Tucillo at Hoboken, and accompanying the invoice for this shipment, also, is the seller’s receipted bill, made out in the name of “Joe Barca and Louis Tuecello & Co.” I cannot believe that when Barco consigned grapes to* Tucillo at Hoboken at the time Tucillo was in San Pedro, and took receipted bills from the sellers in the name of himself, Tucillo. "& Co,” he did not know that the Hoboken partners would receive the grapes, and did not intend those partners to be included in the description “& Co.”

As further evidence that the partnership of five was still in existence, is a letter written by Golizio to Tucillo at Hoboken, under date of October 25th, requesting the partners to send money for grapes bought under contracts made while Tucillo was at San Pedro* and informing "Tucillo that Barco had bought and paid for another car and needed money. This letter is signed by Golizio* “Barco and Golizio,” and indicates that Barco and Golizio were together again, acting for the partnership.

A letter signed with Barco’s name, purporting to have been written b}r Barco to Tucillo* was admitted in evidence, although Barco denied having written it or authorizing it to be written. It is dated January 6th, 1923, and was sent by registered mail from San Pedro, and the envelope bears Bareo’s return home address. The envelope, its post-mark and the contents of the letter bear evidence that the letter was written at Barco’s dictation, and I am of the opinion that it was so written. It requests a settement of the loss sustained by Barco in a partnership of five persons, and speaks of $15,000 expended by Barco on account of such partnership, and refers to Tucillo’s note to Barco for $5,000. Railing to secure a settlement, Barco’s New York attorney, who sat in court throughout the trial and assisted the trial counsel, wrote a letter dated November 13th, 1923, to Tucillo’s attorney, informing him that he had been retained by Barco in a certain claim against Tucillo'“and two' others,” arising out of a shipment of grapes from San Pedro to Tucillo. These two letters are evidence that Barco considered thát his partnership was not with Tucillo' alone, but with Tucillo and others.

I feel that the facts recited disclose a partnership between Barco and the four defendants, which commenced in August or September, 1922, and continued for some months thereafter, and that all contracts for and purchases of grapes made by Barco during such period for shipment to Tucillo* or to Tucillo and others, were for the partnership of five persons. An account should be taken of all money expended and received by these five partners, or any of them, in connection with the purchase and sale of such grapes.

After Barco had refused, about October 1st, 1922, to have further dealings with Golizio, the latter remained in California and bought grapes for the partnership, paying therefor with partnership money deposited in his name in the San Pedro hank. The account to be taken should also include Golizio’s transactions with the partnership funds.


author: Fielder, V. C.

text:
    Margaret Malnack, petitioner, v. John Malnack, defendant.
    [Decided September 30th, 1924.]
    Divorce — Defendant Not Appearing — Case Proceeding Under Rule 266a.
    On petition for divorce.
   Fielder, V. C.

The above-entitled cause having been referred to me to hear for the chancellor and advise what order or decree should be made herein, and the cause having been set down for hearing on this day, and it appearing that due notice of hearing was given to the defendant, and the petitioner now moving the cause for hearing, I do hereby certify that the defendant has defaulted and failed to appear to oppose the petitioner’s petition, and that I have directed the petitioner to proceed under rule 266a of this court.


author: Pek Curiam.

text:
    WESLEY LIBERTY WIEDMER, PROSECUTOR, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY ET AL., RESPONDENTS.
    Decided October 3, 1924.
    Eminent Domain — Railroad Lines Intersecting Public Ways, Also Running Longitudinally — Right of Corporation to Condemn Questioned — Limited Nature of Order Questioned — Longitudinal Use of Street Considered.
    On certiorari.

    Before Justices Kalis ch and Campbell.
    Eor the prosecutor, Clarence Cole.

    For the respondents, Bourgeois £ Coulomb.

   Pek Curiam.

This writ brings up for review an order of June 21st, 1924, made by Mr. Justice Campbell, appointing commissioners to fix the compensation and assessed damages for the taking of property of the prosecutor for the purposes of respondent.

The railroad "tracks of the respondent are legally in Philadelphia avenue, in Wildwood Crest, up to the point where the easterly property line of the prosecutor, if extended, would intersect the centre line of said avenue and the respondent is proposing to continue such tracks from such point in front of the property of prosecutor diagonally through and across Philadelphia avenue to- the northerly side thereof, there entering a private right of way westerly of Lotus road, which will also- be crossed at its intersection with .Philadelphia avenue by such tracks.

Three reasons are urged why this order should be set aside

1. That there is no power in the respondent to condemn the lands in the public highway.

This is upon the theory that the tracks, when extended, will run longitudinally in Philadelphia avenue. We think that this is not so, but that it will be simply a crossing of Philadelphia avenue from the centre thereof to the northerlv line.

2. The order is too limited and restricted, in that it makes no provision for damages to the remaining land of the prosecutor as required by law.

We find that this reason is not well founded and that the order does make proper provision for fixing compensation and assessing damages as required by the statute.

3. The pretended ordinance referred to in the petition for the order was without the power of the city of Wildwood to enact, and its enactment was not procured and by the method required by law.

In view of our finding that the proposed extension of the tracks is not a longitudinal use of Philadelphia avenue, this reason is without application, but if it does apply to the situation before us, then this court has said in Philadelphia and Camden Ferry Co. v. Intercity Link Railroad Co., 73 N. J. 86 (at p. 89), under quite similar circumstances, that such a reason is without merit, because the proceeding in condemnation was framed to comply with the provision--' of section 34 of the General Eailroad act.

We conclude, therefore, that the writ of certiorari should be dismissed, with costs.


text:
    IN THE MATTER OF HAROLD C. MORFORD, AN ATTORNEY-AT-LAW, CHARGED WITH UNPROFESSIONAL CONDUCT.
    Decided October 6, 1924.
    Disbarment — Suppression for Two Years — Unprofessional Conduct — Gross Negligence.
    Before Justices Kalisch, Black and Campbell.
    For the prosecution, Charles F. Sexton.

    For Harold C. Morford, Thomas J. Brogan.

   Per Curiam.

After reading the testimony taken in the above matter before the board of bar examiners and its report of findings thereon, and after hearing arguments of counsel for the respective parties on the exceptions taken by counsel of Harry C. Morford, the accused attorney-at-law, in the latter’s behalf, to the findings and report of the board, we are of the opinion that the findings of the board that Harry C. Morford had been guilty of unprofessional conduct on two of the charges preferred against him and of gross negligence on the third, are fully sustained by the evidence. The gross negligence was his delinquency in a case in the Court of Chancery, for which grievous fault he was adequately penalized by the Chancellor.

A majority of the court, however, thinks that, in view of the fact that the unprofessional conduct of the accused attorney, as revealed by the other two proven charges, did not involve, clearly, any intent on his part to benefit, fraudulently, by the questioned transactions, and that he did not expect to benefit therefrom or thereby cause loss to hi? clients, and, in fact, caused no loss, a suspension of Harold C. Morford from practicing as an attorney and counselor-at-law and solicitor in chancery in the courts of this state for s period of two years from the date of an entry of an order to that effect, will not only be adequate punishment, but will serve as a deterrent example.

An order will be made to the effect as above indicated.


text:
    BENJAMIN GROSS AND ESTHER GROSS, PLAINTIFFS-APPELLEES, v. CASTLE’S ICE CREAM COMPANY, A CORPORATION.
    Decided October 6, 1924.
    Negligence — Motor Vehicle Truck Running Into Building— Truck Stopped on Incline on Icy Street — Brakes Found Not Holding.
    On appeal from the First District Court of Newark.
    Before Justices EAlisch and Kaizenbach.
    For the appellant, -Joseph T. IAeblich.

    For the appellees, Milton M. Unger.

   Per Curiam.

The plaintiffs brought their action against the defendant to recover damages done to their building by a motor truck of the defendant-appellant, running into and against the building and thereby injuring it.

There was a judgment for the plaintiffs against the defendant, from which judgment the defendant appeals to this court.

The state of the case, as settled by the trial judge, discloses that the driver of the defendant’s motor truck brought it to a stop on the upgrade of a public street and left it without any person in charge to g0' into a store to get an order, and while there, at least three minutes, he perceived the truck slowly backing clown the grade in the direction of the plaintiffs’ building, and he immediately ran out of the store and jumped on the truck and found that his emergency brake had given way: that the truck continued to back slowly clown the hill until it hit the curb of the plaintiff’ corner, where their building stood, which stopped the truck’s further progress; that the tailboard, which was projecting from the back of the truck between four and six feet, hit the comer of the plaintiffs’ building knocking off the corner board of the building, which was rotted from exposure; that immediately after the accident, the inside walls and plaster in six rooms on the Eose street side of the building were found to be»cracked and damaged, where such condition had not appeared before; that a builder, who for many years had been an inspector of buildings, testified that, in his opinion, the collision with the defendant’s truck was the sole cause of the damage to the walls and plaster-, and to^. repair the injury to the building caused by that collision would cost $430.20. The stated case further discloses that the street was covered with snow and ice at the time of the accident, and that there was no proof of any inspection of the emergency brake prior to the accident; that the defendant’s driver testified that the truck had been in a fine working condition from seven o’clock that morning and had traveled hills; that there was a motion on behalf of defendant, after the plaintiffs rested their case, for a nonsuit upon the ground that there was. no proof of negligence, which motion was denied, and an exception noted, and a motion at the close of the case for the direction of a verdict on the same ground, which motion was also1 denied and an exception noted.

We think both motions were propertly denied.

The circumstances, as established by the evidence, warranted a finding that the driver was negligent. He stopped the truck on an incline of a street covered with snow and ice and left it unattended. It does not appear that he took any precaution to block the wheels to1 prevent the truck from sliding down the grade. He made no attempt to ascertain whether the emergency brake was in good condition and was sufficient to- hold the truck in place.

It wa.s, therefore, in the face of these circumstances, a question of fact for the trial judge, sitting as a jury, to decide whether or not the driver had exercised that ordinary care or prudence which an ordinary prudent perso > would ordinarily have exercised placed in a similar situation.

While it is true that the state of the case does not in express terms declare that the trial judge found that the defendant’s driver was guilty of negligence, hut since it docs appear that a motion was made on behalf of the defendant for a nonsuit on the ground that the plaintiffs had failed to establish negligence of the defendant and a motion to direct a verdict for defendant upon the same ground, both of which motions the trial judge refused to grant, and gave 'judgment for the plaintiffs, this, in our opinion, was a sufficient finding of negligence.

Judgment was affirmed, with costs.


author: Pee Curiam.

text:
    ELIZABETH OLLEMAR, PROSECUTOR, v. TOWN OF IRVINGTON, IN THE COUNTY OF ESSEX, RESPONDENT.
    Argued May 6, 1924
    Decided September 29, 1924
    Filed October 7, 1924.
    Ordinances — Opening and Extending Streets — Objections of Prosecutor Led Governing Body to Proceed Formally to Find Improvement a Public Necessity — Presumption That Governing Body Has Personal Knowledge of Requirements —Comprehensiveness of Title of Ordinance Need Not Affect Validity.
    On cerliorari.

    Before Justices Kalisch, Black and Oampbbcl.

      For the prosecutor, ReecL & Reynolds.

    For the respondent, Charles E. Stewart.

   Pee Curiam.

This writ brings up for review an ordinance of the town of Irvington for the opening and extension of Madison avenue. Such opening and extension is entirely and solely through property of the prosecutrix.

The first reason assigned is:

The board of commissioners did not consider ot determine' whether or not two-thirds in value of lands to be assessed for the improvement objected thereto. The prosecutrix was the only objector, and while the record shows no formal adjudication by the governing body on this point, yet such omission worked no harm toward prosecutrix. Had they proceeded to pass the ordinance in question as if objections “by the owners of two-thirds in value of the lands > proposed to be assessed for benefits accruing from such improvement” had not been filed, then prosecutrix would have been harmed and her rights invaded, but the governing body undoubtedly conceded that the objection of the prosecutrix prohibited them from proceeding with the passage of the ordinance unless the improvement contemplated was a public necessity, and they proceeded, after the filing of such objection, by their resolution of February 26th, 1923, to declare and find, and did thereby determine that the improvement was a, public necessity, and thereupon proceeded to finally pass the ordinance in question.

We find nothing improper or irregular in such proceeding.

Second. That the resolution of public necessity goes only to the westerly side of Grove street, not to the tract at the northeasterly corner of Springfield avenue and South Grove street.

This, we think, is not so. The ordinance provides “that Madison avenue be opened and extended from the easterly line of East Speedway avenue easterly to Springfield avenue, iii accordance with the map for the, same made by I. J. Casey, Jr., town engineer, on tile with the department of streets and public improvements, and which map accompanies this ordinance.” Then follows a description of the proposed extension by centre line of the westerly line of South Grove street, and then follows a description of the tract at the northeast corner of Springfield avenue and South Grove street.

The statute provides for such a map. Pamph. L. 1922, p. 202, § 23.

Taking the language and description in the ordinance, and having reference to the map accompanying the same, there is no difficulty in finding the extent of the improvement, and that it includes the tract at the northeast corner of Springfield avenue and South Grove street.

Third. The commissioners adduced before themselves no evidence or facts upon which to base their conclusion tha+ the improvement was a public necessity.

The statute in question (Pamph. L. 1922, p. 201, art. 20, § 10) presents no such requirement. The presumption is that the governing body has that personal knowledge of conditions, requirements and necessities upon which they can base such a conclusion. Furthermore, such, determination was made on Febraary 28th, 1923. at a meeting of which prosecutrix had notice and at which she was entitled to be heard upon this question had she so desired. The record of the case does not disclose any such request on her part.

Fourth. That no public necessity in fact exists. The testimony abundantly shows the contrary.

Fifth and sixth. The title of the ordinance is insufficient and defective.

It is true that the title is not so comprehensive as the context. Tlie title is: “An ordinance to provide for the opening and extension of Madison avenue from East Speedway avenue to South Grove street,” while the context is for opening from the easterly line of East Speedway avenue to Springfield avenue.

But that has been held not to affect the validity of an ordinance. Hershoff v. Beverly, 45 N. J. L. 288 (at p. 291); Loertscher v. Jersey City, 84 Id. 537 (at p. 538).

And the prosecutrix does not show that she has been misled thereby.

The writ of certiorari should be dismissed, with costs’.


text:
    RUGGIERO DONNISE, ADMINISTRATOR, ETC., PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY, DEFENDANT.
    Submitted May term, 1924
    Decided October 7th, 1924.
    Negligjence — Federal Employers’ Liability Act — Death Act— Verdict Not Unjustified by Evidence — Verdict Excessive— Reduced or New Trial Ordered.
    On defendant’s rule to show cause.
    Before Justices Black and Campbell:'
    For the rule, Wall, Haight, Carey & Hartpence.

      Contra, John L. Ridley.

   Per Curiam.

This was an action brought under the Federal Employers’ Liability act, to recover damages under the Death act for causing the death of Carlo Rossi, the plaintiff’s intestate, on the 30th of January, 1923, in the Greenville yards of'the defendant company in Jersey City, New Jersey. The plaintiff’s intestate, Carlo Rossi, had been employed as a track laborer there for some time. He was killed by a draft of three freight cars, which came down a gravity incline. The. trial resulted in a verdigt for the plaintiff of $5,000. The defendant obtained a rule and writes down eight reasons for a new trial. It is argued that the evidence did not justify the submission of defendant’s liability to tbe jury. This, we think, is not so. Questions of fact were involved, hence we cannot disturb the verdict on that ground. Next, it is urged the verdict is excessive and not justified by the evidence. Our reading of the testimony leads us to. the same conclusion. The deceased had a wife and daughter living in Italy. He made remittances to his wife at various times of small amounts. We think the verdict should be reduced to three tlious. - ’ dollars ($3,000), and if the plaintiff will remit the excess the judgment may stand for three thousand dollars. ($3,000), otherwise the rude will be made absolute.


author: Pee. Curiam.

text:
    ALFERIO ROSARIO. PROSECUTOR, v. HELLER BROTHERS COMPANY, DEFENDANT.
    Submitted May term, 1924
    Decided October 7th, 1924.
    Workmen’s Compensation — Review of Findings of Common Pleas —Injury to Abdomen — Traumatic Hernia Not Found — Court. Sustained.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    For the prosecutor, Nathan Babinowitz.

    For the defendant, Collins & Corbin.

   Pee. Curiam.

A certiorari was allowed in this case to review the findings • of Judge Delaney in the Court of Common Pleas of Passaic county. He reversed the findings of the deputy compensation commissioner. This is a workman’s compensation « case. The basis of Judge Delaney’s decision is, the petitioner was injured on March 24th, 1922, in the course and scope of his employment, by being struck by the handle of a wheelbarrow, but there is no proof of a traumatic hernia. The proof failed to indicate anjr puncturing or tearing oi the abdomen wall or any prostration, both of which facts are required to be present under the statute. Pamph. L. 1919, p. 204, ¶ 11 (x). This statute was re-enacted in 1923. Pamph. L. 1923, p. 104, ¶ 11 (x). We think the findings of Judge Delaney are correct. There is a failure of proof to bring the case within the terms of the statute. The writ of certiorari is therefore dismissed, and the judgment of the Court of Common Pleas of Passaic county affirmed.


author: Per. Curiam.

text:
    WILLARD T. GIBBS, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS.
    Submitted May term, 1924
    Decided October 7th, 1924.
    Taxes and Assessments — Dispute Relating to Findings of County and State Boards Regarding Value of Property in Ciementon Township — Assessment Sustained.
    On certiorari.

    Before Justices Kalis ch, Black and Campbell.
    For the prosecutor, Rowland £ Bleakly.

    For the defendants, Brands D. Weaver.

   Per. Curiam.

The questions involved in this case are questions of fact, viz., the true value and acreage of a tract of land located in the township of Glementon, county of Camden, known as the Clenieuton Park tract. It was assessed in 1922 by the local assessor as twenty acres at the sum of $4,500. The Camden county board of taxation under Pamph. L. 1918, p. 866, § 507, ch. 236, increased the assessment to $65,000. This assessment was affirmed on appeal to. the Camden county board of taxation and the state board of taxes and assessment. The state board found, as set out in its judgment, that the tract of land contained thirty-three acres, and not twenty acres, as stated in the appeal. There is ample evidence on which the judgments of these boards are based. We cannot, therefore, disturb the valuation so ascertained and fixed. The judgments of the county and state boards are affirmed and the assessment of $65,000 confirmed, with costs.


text:
    MARVIN H. MEAD ET AL., EXECUTORS OF ESTATE OF ELIAS MEAD, DECEASED, PROSECUTORS, v. THE CITY OF PASSAIC, RESPONDENT.
    Submitted June 5, 1924
    Decided September 29, 1924
    Filed October 7, 1924.
    Ordinances — Opening of Streets — Passed Notwithstanding Objections of Two-thirds of Property — Determination of Public Necessity Not as Required by Act — Where Acts Complained of Are Jurisdictional, Recourse May be Had to This Court Notwithstanding Statute Provisions. *
    On certiorari.

    Before Justices Kalis ch, Black and Campbell.
    For the prosecutors, McCarter & English.

    For the respondent, Albert O. Miller and Harry H. Weinberger.

   Per Curiam.

These writs of certiorari bring up for review two- ordinances of the city of Passaic, passed March 25th, 1924, one entitled. “An ordinance to- extend and and open Union avenue from Spring street to River drive,” and the other entitled “An ordinance for the establishment of a grade for Union avenue between Spring street and River drive.”

These ordinances were introduced at a meeting of the com missioners on March 11th, 1924. On March 13th, 1924, notices were mailed to prosecutors of a hearing upon such ordinances to b'e held March 25th, 1924, and prosecutors on March 25th, 1924, before tire final passage of the ordinances, filed their objections thereto in writing.

The commissioners, notwithstanding such objections, proceeded to finally pass the ordinances. The proposed extension of Union avenue is solely through the lands of the prosecutors.

Section 10, article 20 of the Home Rule act (Pamph. L 1917, p. 319, as amended Pamph L. 1922, p. 201) provides that no local improvement (and the ordinance for extending and opening Union avenue, by its terms and language provided for a local improvement as defined under the Home Rule act), shall be undertaken where objections thereto in writing are filed by the owners of two-thirds in value of lairds proposed to be assessed for benefits, unless the governing body shall determine that such local improvement is a public necessity, when the improvement may be undertaken, notwithstanding such objections.

Concededly, the prosecutors, who objected in writing to the improvement, were the owners of two-tliirds in value of the lands proposed to be assessed for benefits accruing from such improvement.

Two questions are raised as to the validity of these ordinances, viz.:

First. That a resolution adopted by the city commissioners on March 11th, 1924, preceding the introduction of the ordinances, and purporting to determine such improvement to be a public necessity, was without notice and untimely; and second, such resolution was not a determination of tlie question of public necessity as required by the Home Rule act.

We think both of these reasons are well founded. Under section 10, article 20, of the Home Rule act, supra, the uncloubtod intention of the legislature is that such determination shall be made, if at all, after notice of hearing upon the ordinance, and after objections, if any, are filed. This resolution antedated the introduction of the ordinances, and, in fact, was made the basis for introduction thereof.

Furthermore, the statute in question clearly contemplates a determination by the governing body that a public necessity for the proposed improvement exists. The resolution in question makes no such determination. It treats of the public necessity merely by way of recital.

For both reasons the ordinances were improperly passed and are illegal. What we have said herein applies particularly to the ordinance providing for the extending and opening of Union avenue, but as the other ordinance seeks to establish a grade for such extension, it is dependent upon the first-mentioned ordinance, and if that falls the grading ordinance must also fall.

Now, it is true that section 10, article 20, of Home Rule act (Pamph. L. 1917, p. 319, as amended Pamph. L. 1922) provides for an appeal to the Circuit Court upon the question of public necessity, and that we have held that where such a remedy is provided it must be pursued. Breakenridge v. Newark, 94 N. J. L. 361; Graham v. Ocean City, 119 Atl. Rep. 772.

But where the defects complained of are jurisdictional, and in the present case they clearly are, recourse may be had immediately and directly to this court.

The ordinances in question must be set aside, with costs.


text:
    HARVEY ARBUCKLE ET AL., PLAINTIFFS, v. JACK KROMKA, FRANK R. KROMKA AND JOSEPH KROMKA, DEFENDANTS.
    Submitted May term, 1924
    Decided October 7, 1924.
    Contracts — Action on Promissory Notes — Rule Granted as to One Defendant Denied as to Others.
    On application for rules.
    Before Justices .Kaliscu, Black and Campbell.
    For the plaintiffs, Elmer W. Bomine.

    For the defendants Jack Kromka and Frank E. Kromka, King & Vogt:

    For the defendant Joseph Kromka, Edward A. Walsh.

   Per Curiam.

The suit in this case was brought to recover the amount of three promissory notes, all dated July 17th, 1922, one for $375 and two for $750 each. The case was tried by Hon. Peter F. Daly, Circuit judge, at the Morris Circuit. The trial resulted in the direction of a verdict in favor of the plaintiffs for $2,194.68 against the defendants Jack Kromka and Frank R. Kromka, and 'a verdict in favor of the defendant Joseph Kromka. The defendants are a father, Joseph Kromka, and two sons. Applications for rules to show cause having been denied by the trial judge, application is now made to the court by the plaintiffs and the two defendants. We think, after reading and considering the evidence, that the plaintiffs’ applications for a rule against Joseph Kromka should be granted, and hv a written stipulation it is agreed that if the court grants the rule it should grant a new trial, and such is the order of the court as to Joseph Kromka..

The application for a rule to show cause by the two other defendants Jack Kromka and Prank R. Kromka is denied, with costs.


text:
    No. 207.
    WILLIAM G. ROYER. PLAINTIFF, v. PHILADELPHIA AND READING RAILWAY COMPANY, DEFENDANT. ROCCO CRACKER, PLAINTIFF, v. PHILADELPHIA AND READING RAILWAY COMPANY, DEFENDANT.
    No. 206.
    Submitted May term, 1924
    Decided October 7, 1924.
    Negligence — Motor Vehicle Accident at Railroad Crossing— Judgment for Plaintiff Sustained.
    On application for rule.
    Before Justices Kaliscbt, Black and Campbell.
    For the rule, Katzenbach & ITuni.

      Contra, Harry Holier.

   Per Curiam.

These two cases were tried together. The trial resulted in a verdict in favor of the plaintiff, William G. Royer, for $1,-725, and in favor of the plaintiff, Roeco Cracker, for $300. The suits were brought to recover damages for the destruction of an automobile truck owned .by Royer and for damages for personal injury to Cracker, who was driving the automobile truck at the time of the accident. The accident happened at a grade crossing of the defendant railway company at Maple avenue, in the city of Trenton, on April 19th, 19&1. Application was made to the trial judge for rules, which were denied. We think the issues were fully and fairly tried out. The case properly submitted to- the jury. There was evidence on which the jury did base the verdicts. The applications for rules to show cause are denied in each case, with costs.


text:
    GEORGE ZELLERS, PETITIONER, v. CITY COUNCIL OF THE CITY OF BRIDGETON, NEW JERSEY, DEFENDANT.
    Submitted May term, 1924
    Decided October 7, 1924.
    Jitneys — Writ to Compel Municipality to Issue License Denied— Public Duty Sought to be Enforced Must be Clear and Specific.
    Before Justices Kalisch, Black and Campbell.
    For the petitioner, Bex A. Donnelly and Wescoib & Weaver.

    For the defendant, Waller H. Bacon.

   Per Curiam.

The petitioner in this case obtained a rule to show cause why a peremptory or alternative writ of mandamus should pot issue commanding the city council of the city of Bridge-ton to issue to the petitioner a license to operate auto buses of jitneys over the route set forth in his written- application made for such license. Yoluminous testimony was taken under the rule. It is sufficient to say that the granting and issuing of licenses for such purpose are not purely ministerial acts. To warrant the-issuing of the writ'in any case, the right of the petitioner to it must be clear and the public duty sought to be enforced must be clear and specific. The writ is never granted in a doubtful case. Uszkay v. Dill, 92 N. J. L. 329; Constam v. Darby, 95 Id. 318. It seems unnecessary to point out that the writ allowed in a former case by this court, Nos. 241 and 242, June term, 1922, is not in point. There the licenses were granted subject to the approval of the New Jersey state highway commission. No such approval was either required or obtained. The license having been withheld on that specific ground. The writ was allowed. No such state of facts appears by the record in the present case.

The writ is denied and the rule to show cause is discharged.


text:
    EDGAR O. HAYES, RELATOR, v. ALBERT S. BLANK, ENGINEER OF THE TOWN OF BELLEVILLE, RESPONDENT.
    Submitted June 5, 1924
    Decided September 29, 1924
    Filed October 7, 1924.
    Ordinances — Zoning—Case Falls Under the Ignaciunas Case.
    On rule to show cause for mandamus.

    Before Justices Kalisch, Black and Campbell.
    For the relator, Winne & Banta.

    For the respondent, Harold A. Miller.

   Per Curiam.

This is upon a rule to show cause why a mandamus should not be issued directed to respondent, requiring him to issue to relator a building permit for the erection of a garage on the northerly side of John street, in Belleville. The only reason assigned for refusal to issue the permit is that a building to be used for such purposes at the proposed location is prohibited by the zoning ordinance of Belleville. An examination of the ease satisfies us that the proposed location and the uses to which the surrounding lands are devoted does not make such prohibition in the ordinance neeessa'rj fox the protection of the public health of public safety. It therefore is unreasonable and falls under the rule of Ignaciunas v. Risley, 1 N. J. Adv. R. 1023.

A peremptory writ of mandamus is therefore awarded, with, costs.


author: Memorandum,

text:
    JEREMIAH HILL, PROSECUTOR, v. CITY OF BAYONNE, RESPONDENT.
    Decided October 7, 1924.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    For the prosecutor, Bichard Doherty.

    For the respondent, Eugene T. Sharkey.

   Memorandum,

The posecutor having failed to file his brief, the writ of certiorari is dismissed, with costs, for lack of prosecution.


text:
    THE STATE, MATH HANSEN, PROSECUTOR, v. PHILIP P. COSTELLO, CLERK OF THE BOARD OF ALDERMEN OF THE CITY OF PERTH AMBOY, RESPONDENT.
    Submitted June 5, 1924
    Decided September 29, 1924
    Filed October 7, 1924.
    Officers — Public—Title to Office Occupied by Another to bec Tested by Quo Warranto — Municipal Action to Oust Officer Tested by Certiorari.
    Oil certiorari.

    Before Justices Kalis err, Black and Campbell.
    For the prosecutor, Charles K. Seaman, Jr.

    Fox the respondent, David T. Wilentz.

   Per Curiam.

This writ brings up for review the proceedings of the governing body of the city of Perth Amboy, of January 1st, 1924, appointing Michael Stumpf overseer of the poor. Preceding and on such date prosecutor occupied such position of office, and Stumpf immediately, upon his appointment, on January 1st, 1924, qualified, assumed and entered into said office, and has since continuously performed the duties thereof.

This proceeding is not brought by prosecutor as a taxpayer. but for the purpose of contesting the right of Stumpf to such office, and asserting his own right thereto.

Prosecutor has mistaken his remedy, which is by quo war rani o and not certiorari.

Where one claims the right and title to an office from which lie has been ousted, and which is occupied by another, the remedy is by quo wa/rranio.

Where one is in the possession and occupancy of an office, and municipal action has been taken to onst him or interfere with his right, thereto^ certiorari is the proper method of reviewing such action. Moore v. Bradley Beach, 87 N. J. L. 391; Murphy v. Hudson County, 92 Id. 244; O'Neill v. Bayonne, 2 N. J. Adv. R. 645.

The writ of certiorari will be dismissed, with costs.


text:
    ERIC MUELBERGER, RELATOR, v. THEODORE WISLOH, BUILDING INSPECTOR OF THE TOWNSHIP OF WEEHAWKEN ET AL., RESPONDENTS.
    Argued May 7, 1924
    Decided September 29, 1924
    Filed October 7, 1924.
    Ordinances — Zoning—Application for Writ Not in Good Faith and Relator Not Owner, of Lands — Writ Denied.
    On rule to show cause for mandamus.

    Before Justices Kalis oh, Black and Campbell.
    Eor the relator, Pierson & Schroeder.

    For the respondent, William S. Stuhr.

   Per Curiam.

This is upon a rule to show cause why a mandamus should not issue directing respondents to issue a building permit to relator to erect-an apartment-house in a prohibited zone established by the zoning ordinance of the township of Weehawken.

Several reasons are assigned and strenuously urged why the writ applied for should be awarded.

Aii examination of the case brings us. to tlie conclusion that the application is not made in good faith, and, furthermore, that relator, if not the owner of all the lands required for the erection of tlie proposed building, and for that reason a moot question only is presented.

The application for tlie writ of mandamus is denied and the rule to show causo dismissed, with costs.


text:
    OTTO PIRL AND CHARLES PIRL, PARTNERS, TRADING AS PIRL BROTHERS, PLAINTIFFS, v. HARRY A. FRIEDMAN AND CHARLES KAUFMAN, DEFENDANTS.
    Submitted May term, 1924
    Decided October 7, 1924.
    Contracts — Promissory Note Secured by Conditional Sale Agreement for Motor Vehicle — Nothing to Support Defendants’ Position That New Trial be Granted.
    On rule to- show cause.
    Before Justices Kauisctt, Braca and Campbell.
    For the plaintiff, Ka-ppes & Llillc.

    For the defendant ITarry A. Friedman, Gross & Gross.

    For the defendant Charles Kaufman, Kelsey & Ludwig.

   Per Curiam.

The trial in this case resulted in a judgment- in favor of the plaintiffs and against the defendants for the sum of $1.511 Xu'. Both defendants obtained rules to- show cause why the verdict should not- he set aside. Friedman writes down thirtv-fonr reasons for a new trial and Kaufman twenty-five reasons. 'File suit was brought to recover the amount clue on a judgment recovered by the Continental Guaranty Corporation against the plaintiffs on a promissory note made and signed by the defendant Harry A. Friedman, which was secured by a conditional sale contract on a motor vehicle'. The snit grew out of the purchase and sale of a motor vehicle for which the promissory note for $2,438.40; was given secured by the conditional sale contract on said motor vehicle. Friedman sold his interest in the motor vehicle to the defendant Charles Kaufman and one Bobert Bennett. A recital of the testimony upon which the trial court submitted the issues made at the trial will serve no good purpose. -It is sufficient to say that we have carefully examined the record and find nothing to- support the defendants’ contention that there should be a new trial. We find no error in the1 admission and rejection of testimony. It was not error for the trial court to refuse the motions for a nonsuit or the direction of a verdict for the defendants. The trial judge quite fully covered the case in the charge to the jury, submitting to them the controverted questions of fact. It was not error for the trial judge to refuse the written requests to charge. The verdict is not against the weight of the evidence. The damages awarded by the jury are not excessive. The rules obtained by the defendants are discharged, with costs.


author: PiJit C URIAH.

text:
    EDWARD L. MAYER, PLAINTIFF-APPELLANT, v. CHARLOTTE MERRICK, DEFENDANT-APPELLEE.
    Submitted June 6, 1924
    Decided October 8, 1924.
    Rents — Alleged Failure to Make Second Payment — Plaintiff Claims Case One for Recovery of Deposit on Account of Rent.
    On appeal from the Atlantic City District Court.

      Before Justices Trbxuhard, Mixturx and Lloyd.
    Eor the appellant, Cass man & Gottlieb.

   PiJit C URIAH.

This is an appeal from the judgment of the Atlantic City District Court in favor of the defendant below, in an action brought by the plaintiff (lessee under a written lease of a house) to' receive back from the landlord (defendant) rent paid on the signing of the lease, which required such payment on signing.

The defense was that the lessee had failed to. make the second payment of rent at the time required by the express terms of the lease, and which the lessee had covenanted to pay, and that the landlord had thereunder treated the lease at an end and void pursuant to. the covenant which was: '“That if any rent shall be due and unpaid, or if default be made in any of the covenants herein contained, then this lease shall immediately cease and become void, and it shall be lawful for the said party of the first part, without notice and without any demand for said rent, to re-enter the said premises and remove all persons therefrom, or to proceed by action for the recovery of the possession thereof, or otherwise, however.”

This defense was supported by undisputed proof and the trial judge found for the defendant.

We think that was right, and no authority is cited to the contrary.

The plaintiff suggests that the case was one for the recovery of deposit on account of rent money, but that, as' we have indicated, is not so. It was for1 the recovery of rent paid pursuant to. the terms of the lease.

We perceive no reason for disturbing the judgment.

It will be affirmed, with costs.


text:
    MARGARET M. COWELL, ADMINISTRATRIX OF WILLIAM COWELL, DECEASED, PLAINTIFF-APPELLEE, v. THE PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted June 5, 1924
    Decided September 29, 1924
    Filed October 7, 1924.
    Negligence — Motor Vehicle Accident — Refusal to Nonsuit — Refusal to Direct Verdict — No Error Found.
    On appeal from the Hudson County Circuit Court.
    Before Justices Black and Campbell.
    For the appellant, Wall, Ilaight, Carey & Harlpence.

    For the appellee, Alexander Simpson.

   Per Curiam.

Plaintiff’s intestate was the driver of a truck engaged in delivering timber at the Waldo avenue yard of the appellant at Jersey City, and while so1 engaged on February 6th, 1933, as he was in the act of driving his truck out of the yard, after a delivery to the defendant company, he was killed. His truck was struck by an engine running reversed at a speed of two or three miles an hour. The truck was overturned and pushed along several feet.

Plaintiff has a verdict and judgment theron for $9,350. and defendant appeals.

The grounds of appeal assigned and urged are:

1. Refusal of the trial court to grant a nonsuit.

3. Refusal of the trial court to direct a verdict.

At the trial the grounds urged for a direction of verdict were the same as those urged for a nonsuit. The reasons urged at the trial for a nonsuit were "that there is no negligence shown in the case attributable to the defendant upon which liability may be predicated as charged m the comidaint, and on the further ground that from the evidence now in it must be perfectly apparent that the decedent’s contributory negligence was the producing cause of the injur?, and death of the deceased.” That decedent was in a portion of the yard to which his invitation did not require him lo be; that ho exceeded the bounds and limits of his invitation is suggested in the brief of the appellant, but this was nowhere urged at the trial, and cannot be urged here.

We think it would clearly have been error to nonsuit or direct a verdict upon either of the grounds urged. There was evidence from which it could have been found that due care upon the part of the engine driver would have caused him observes the presence of decedent’s truck upon the crossing- in time to bring his slowly moving engine to a standstill before reaching the truck. Again, there was evidence of a practice or custom of giving a signal of moving- locomotives by hell or whistle, and from the fact that decedent had been in the yard on many occasions during a period of eight months, the jury could have found that he had knowledge of such custom or practice, and, under such circumstances, he would he justified in relying upon the giving of such signals. Coyne v. Pennsylvania Railroad Co., 87 N. J. L. 257; McNally v. Pennsylvania Railroad Co., 88 Id. 277.

It could, from the evidence, have been found that such signals were not given.

Again, the engine was backing and scarcely moving, a fact from which the jury might be justified in finding that decedent did not know it was in motion.

Under all the facts and circumstances it was not error to refuse to nonsuit or direct a verdict.

3. The court permitted the following question of the witness MeLevy to be answed over objection:

O. What was the custom yon became aware of in reference to passing locomotives over this crossing? The witness had been in tile habit of going into this yard every day for six or seven months before the happening in question, therefore he was qualified and competent to testify. The question was directed to- a subject relevant and material — that is, to a practice or custom in the yard.

There was no error in-overruling the objection.

-4. The overruling of the objection to the question to witness Watson as being immaterial and irrelevant.

Q. Did you swear that it was customary' to keep on ringing the bell until you got completely over the crossing?

The evident purpose was to- get from the witness an admis-sion that he had so- testified at a previous trial, or, if he denied it, then to lay a foundation to- contradict him by proving that he did so previously testify. Of course, the proper method was to- place before the witness the question and answer as it appeared of record from the minutes of the previous trial or hearing. This,, however was not the ground of objection stated.

The answer, however, was entirely harmless.

"A. I do not remember that.” There was no effort later to prove that the witness had so testified. There was no error therein.

5. The overruling of the objection to the question to the witness Watson as immaterial and irrelevant--

“Q. Do you remember this being asked: ‘Q. What was the customary' thing you did going over this crossing to attract the people using it?J and did you answer, ‘A. I stated before to- ring the hell and bloyv the whistle/ ”

The answer thereto- wras “I must have, if it is there.”

We are unable to discover any error in this ruling. The purpose of the question was to secure an admission from the witness that, he had so testified upon a previous trial, hearing or examination, and the method of doing so- was proper., by presenting to the witness the question and answer, the admission as to which was sought.

6. The remaining reasons axe numbers seven, eight, ten and eleven of the grounds of appeal attacking- as erroneous certain portions of the charge of the court below, and number twelve of the grounds of appeal, -which charges error generally.

We find no error in the charge as attacked. It correctly charges the principles and rules applicable to the case.

Finding no error the judgment below is affirmed, with costs.


text:
    JOHN E. McMURTRY ET AL., PARTNERS, TRADING AS JOHN E. McMURTRY AND COMPANY, PLAINTIFFS, v. FARM SERVICE EXCHANGE, INC., DEFENDANT.
    Argued May 8, 1924
    Decided September 29, 1924
    Filed October 7, 1924.
    Contracts — Consignment Agreement — Commissions — Counterclaim of Sale of Goods to Complainant — Judgment for Defendant — Allegation That Judgment was Against Evidence Sustained.
    On rale to show cause.
    Before Justices KAlisch., Black and Campbell.
    For the plaintiffs, Darling, Barnas & Doioden.

    For the defendant, Treaojj & Millón.

   Per Curiam.

Plaintiffs sued to recover $909.43 for commissions, insurance and other charges claimed to be due them under a consignment agreement of wool.

Defendant counter-claimed, claiming a sale to plaintiffs of wool for which plaintiffs agreed to pay $11,451, upon which a payment on account of $6,000 had been made, leaving a balance due defendant of $5,451.44 and interest, or, secondly, that defendant sold to plaintiffs wool reasonably worth $11,451.44, upon which plaintiffs made a payment on account, leaving a balance due defendant of $5,451.44, or that defendant shipped to plaintiffs seventeen thousand nine hundred and forty-one pounds of wool, part of which' was consigned to be sold by them for defendant’s account; that plaintiffs disregarded their duty to defendant, and did not sell such wool for the best market price obtainable to defendant’s damage, $10,000.

Defendant has a judgment against plaintiffs for $3,170, and has a rule to show cause why such judgment and the verdict upon which it is based should not be set aside and a new trial bad, because—

1. The verdict is against the weight of the evidence.

2. Because the verdict is contrary to law.

As far as the counter-claim is concerned, that cause was submitted to the jury upon the ground that .they might find thereon if the greater weight of the evidence warranted them in- finding—

1. That there was a sale in April, 1920, by defendant to plaintiffs of the balance of wool in the hands of plaintiffs, at fifty cents per pound, and such selling price had not been paid; or

2. That plaintiffs were directed to sell at the market, and the market price was then at or around fifty cents - per pound, and plaintiffs did not sell, but sold at a much later date at a far less sum, entitling defendant to-the difference between price received and the market price a.t time of direction to sell.

An examination of the testimony satisfied us that the verdict is against the clear weight of the evidence as to both of said foregoing propositions.

The verdict not being supported by a fair preponderance of the evidence, it and the judgment entered thereon are set aside, with costs, and a venire de novo is awarded.