author: Baches, V. C.

text:
    James D. Carton, complainant, v. Morris Eichengreen and Eichengreen Land Company, Incorporated, a corporation, defendants.
    [Decided December 6th, 1926.]
    Evidence analyzed, and held, that the case is not within the doctrine, that “He who undertakes to act for another in any manner of trust or confidence shall not in the same manner act for himself against the interest of the one relying upon his integrity.”

      Messrs. McCarter & English {Mr. Robert H. McCarter), for the complainant.

      Mr. Merritt Lane, for the defendants.
   Baches, V. C.

The complainant, Carton, owned the tax title in fee, unforeclosed, to eighteen acres of land in Neptune City, Monmouth county. He claims to have had an agreement with the owners, McNulty and the Gulicks, to buy their estates for $2,500 each, and that the defendant, through its president, Eichengreen, agreed to purchase the tract from him for $25,000, upon his title being perfected. He further claims that he accepted Eiehengreen’s offer to see the owners, in order to speed up the conveyances by' them to complainant, so that the agreement with Eichengreen could be carried out, but that Eichengreen double-crossed him, and instead, purchased the tract from them and had it conveyed to his, the defendant, eompa,ny. It is charged that Eichengreen’s conduct was fraudulent, and that in the' circumstances he could not acquire any title or interest in the land “in derogation of the rights of the complainant therein” (meaning, presumably, his contract with the owners). The prayer is that, upon reimbursement, it be declared that the defendant company holds the property in trust for the complainant, and that the defendant be decreed to convey it to him. In his brief the complainant rests his ease upon the principle that Eichengreen was engaged, and had undertaken to procure the title for the complainant, and that it was a violation of his trust to secure it for himself, and Rogers v. Genung, 76 N. J. Eq. 306, is relied upon. The doctrine there laid down is “that he who undertakes to act for another in any manner of trust or confidence shall not in the same matter act for himself against the interest of the one relying upon his integrity.”

The history of the case, as disclosed by the evidence, is that the title was in litigation from 1910 until after 1916 (Bennett v. Platt, 85 N. J. Eq. 436; affirmed, Ibid. 602), and in this litigation the complainant represented the McNulty and Guliek interests as solicitor. In the early stages of the litigation, and almost yearly thereafter, the property was sold for taxes, sometimes for a term of years and other times in fee. Except for the first year, 1911, the complainant was the purchaser, and for that year the sale certificate was assigned to him by the purchaser. His total investment was approximately $4,000. He was moved to do this at first to protect his clients, and later to save himself. Under his deeds, the complainant was entitled to, and took, possession, and in later years was reputed to be the owner of the property, which he was at no pains to dispel. Eichengreen, who had developed two adjacent tracts and was intent upon extending his operations to this property, was of that opinion. He knew who the owners had been, for in 1911 he had an option to purchase from McNulty and the Gulicks, and attempted to foreclose it by bill (Docket 34-262), but had the impression that Carton had acquired their interests, and this he felt was confirmed when he learned that Carton and wife had given a deed to the town for a strip of land to widen a street. After a call or two and offers by Eiehengreen, first of $20,000, then $22,500, Carton says that in March, 1922, he, Carton, agreed, but declined to commit himself in writing, to let him have the property for $25,000 upon getting in the outstanding interests, either by purchase or by foreclosure of his tax liens, and that Eiehengreen accepted. Eichengreen’s version is that Carton represented that he had acquired all the outstanding interests except a small share, and that he offered $20,000; that Carton wanted $25,000, and that the nearest approach to a bargain was Carton’s promise to sell the property to him when he got in the remaining interest, which he said would be within thirty days, and that then they would “make a deal and close it up.” There was no doubt some loose understanding to sell in the future either for $20,000 or $25,000, but there can be no question that Carton did not regard himself as bound to Eiehengreen, for in April he wrote the attorney of the McNulty interest, in an effort to buy that interest, that “to date I have been unable to make any disposition of the same,” which was literally, but disingenuously true; and in March of the following year, in answer to an importuning letter from Eichengreen, he wrote, “I have not yet completed my matter sufficiently to enable me to take up with you the negotiation for the property about which you spoke to me, but hope to within a short time.” Eiehengreen was anxious to buy, and in a letter to Carton a few days after his offer spoke of the property as “purchased” by him, which, it is argued, evinces that an agreement had been reached, but, it would appear, that that referred to the only thing definitely arrived at, that Carton would sell to Eiehengreen when he had cleared up his title. Their testimony is in agreement as to that, but not as to the price, which Carton says was $35,000, while Eiehengreen says Carton wanted that sum but that his offer was $30,000. The purchase price was held in abeyance until Carton was in a position to give title. Upon this phase of the case the situation is conceived to be that Carton did not .consider himself bound beyond driving the best bargain he could with Eichengreen when the time arrived, and that he was free to bargain for better terms with others if opportunity presented itself. His disinclination to give written evidence of the understanding, his letter just quoted, and his later indifferent conduct, to be presently commented upon, all strongly indicate his attitude that he was not committed to Eichengreen.

In 1914 Carton had negotiated with the owners, and had a contract with the Gulicks, which the McNulty interest refused to sign. The contract was not to be executed until the litigation involving the title was out of the way. Nothing came of it, and all negotiations ceased in 1916. They were revived in 1931. By that time the McNulty interest had passed to his widow and then to his daughter, represented by one Morehouse and later by one Ronon, and the Gulick interests were held by five parties, represented by their attorney, Lawrence. In that year Carton opened correspondence with Lawrence, and in 1933 with Morehouse, and to the latter, by way of introduction, stated his desire for the address of Miss McNulty, and harking back to Morehouse’s letter to him of June 16th, 1916, recalled that the writer had there stated that Mrs. McNulty would sell her interest for $4,000, less taxes and interest. Morehouse referred him to Ronon, his successor. Erom that time on until August, 1933, there was desultory correspondence between Carton and the two lawyers, all plaintiff on the part of Carton, that the margin between his investment and the value of the property was narrow, and that something had to be done to reimburse him, and salvage a little out of the wreck for themselves, or he would have to foreclose to save himself. His letters were as from one discouraged, and while their tone was urgent that they relieve him, and also solicitous that they save what they could for themselves, there was always subtle suggestion that the prospects wore not bright. He never let out a peep that he had an offer of $20,000 or $25,000 from Eichengreen. On August 16th, 1923, Lawrence wrote asking if he would give $2,500 for the GuJick interest, and if so he would forward deeds to his clients for execution, and on the 17th Carton answered: “You suggest that I agree to pay $2,500 for one-half interest in the property. In view of what I already have in the property and the large outstanding claim against it, the figure is high and I am sure more than tho interest would amount to. However, I appreciate that because there are so many parties in interest with whom it would have to be divided and so that your suggested fee may be taken care of, I am, without prejudice, willing to make you this offer at this time,” &c. Lawrence was away on vacation but acknowledged receipt on the 24th, and on the 29th promised prompt attention on his return, and it was about that time that Eichengreen bought for $3,500. On August 23d, 1923, Carton wrote to Eonon, after some letters leading up to it: “However, and without prejudice, I am willing to make your client an offer of $2,000 for one-half interest in the property, which I consider is a very fair one, and I wish you would let me know at your early convenience if it is accepted or not. If it is not I must take some steps to protect my own interest under my tax title.” Carton says a few days later, over the phone, he raised the figure to $2,500, which, he claims, was accepted, but the correspondence indicates that he is mistaken. In the meantime Eichengreen stepped in and purchased from McNulty for $2,500. The documentary evidence clearly shows that in March, 1922, at the time of the alleged agreement between Carton and Eichengreen, there were no contracts between Carton and the owners of the equity of redemption, and if there were any later, there was none that Eichengreen was bound to take notice of before he purchased. Carton had no right or interest in the land in this respect which he, in his bill, alleges was threatened to be “derogated” by the title acquired by the defendant.

Prom March, 1922, to August, 1923, Eichengreen called upon Carton a score of times to inquire as to the progress he was making to clear up the title (he was of the impression that a fractional interest was yet to be secured) and to urge it along, and each time was put off with a hopeful promise of an impending adjustment until his impatience reached a critical point, and, according to Carton, he came to his office in the middle or latter part of August, 1923, “for a showdown, apparently.” (He says he thought that it was before bis offer to Ronon of August 23d, and after his offer to Lawrence of August 17th.) Before that, Carton says, on two or three occasions, when Eichengreen was insistent, he, Carton, had told him: “He didn’t want to be bothered with it, that he was busy with other things, and if he didn’t want to carry out his agreement, they would abandon the thing; that he would take his own time to fix it up.” At the August meeting, so Carton says, Eichengreen, threatening and importuning in turn, was told in some detail about the efforts he was making, and was given the names and addresses of the lawyers and’ of the parties, and was shown a letter from Lawrence giving that information; that Eichengreen took the names and addresses of Lawrence and Ronon, suggesting that he might see them, and then, as Carton says: “I told him it was not necessary to go to see them, that I had about concluded the matter, but I did tell him during the conversation, if he could do any better, if he could hurry the thing faster, go on and hurry it up himself,” and, Carton adds, “It turned out after that that is exactly what he.did.” Carton characterizes his remark as “foolish,” that it was meant only to appease Eichengreen; that Eichengreen was not to call on the parties; that there was no agreement (understanding) that he would; that he did not agree to it, and that he certainly did not expect him to see them, and that he simply suggested that “if he could speed this up and make these people move faster than I am ‘you can do it yourself.’ ” The remark was not a request, but a defiance, and, as Carton says, made with some asperity. Upon this assumed state of facts it is observed that there was neither authorization by Carton nor assumption by Eichengreen to act for Carton. In fact, Carton seems to resent the imputation that there was. There was no agency nor trust relation, either express or implied, and, obviously, this state of facts does not bring the case within the doctrine of Rogers v. Genung.

But Eichengreen tells a different story. Carton claims he knew he had but a tax lien; that he had told him so, and that the entire equity of redemption was still in McNulty and the Gulieks. It is hardly likely that Eichengreen, who had some familiarity with real estate matters, would have treated with Carton as the owner had he known he had but a lien, and his story that he thought Carton owned all but a fragment or two commends itself as the more reasonable of the two. Eichengreen denies that he sought, or that Carton gave him, the information, or that he offered to, or was directed to, see the parties to hurry the matter along, as related by Carton, lie knew as well as Carton who the owners were, or might be, for he had had an option from them and he had called upon Miss McNulty and Bonon, her lawyer, two years before to negotiate a purchase. It was because Bonon failed to reply to his follow-up letter, and Carton’s deed to the town for a strip of the land, that he had assumed that Carton had acquired her interest. The thing that excited his attention at the August meeting, he says, was Carton’s remark that a holder of one of the interests was in California, whereas he had previously said he lived in Massachusetts. He consulted his lawyer and they had the title searched and found that McNulty and the Gulieks were still the record owners, and Carton only the holder of a tax lien. Eichengreen hied himself to Philadelphia, and, after getting the house address of Miss McNulty out of the directory, telephoned his lawyer to come on. He also got in touch with Mrs. House-right-Johnson, in Mt. Vernon, New York, who referred him to her lawyer, Lawrence. Mrs. Houseright-Johnson at one time owned the Guliek half interest and with McNulty had given Eichengreen the option, which, as already told, he tried to enforce by suit. She later conveyed half of her share to the Gulieks, which later came to those with whom Carton was angling and from whom Eichengreen purchased. The rest of the story is mostly told by Eichengreen’s lawyer, Charles Jones, of Newark. Jones says he, too, was of the opinion that Carton owned the property, and that it was upon his suggestion that Eichengreen approached Carton to buy it, and that when Eichengreen reported Carton’s discrepancy in the party’s address he dispatched him to a searcher in Freehold for an examination of the records, and upon learning the result, and receiving the telephonic call from his client, he went to Philadelphia and met Miss McNulty and Ronon at her home. A week later Jones called Ronon on the phone- and they closed the deal. Jones says he learned of Lawrence independently of Eichengreen, and he explains how, and negotiated with him and purchased. Upon the issue of fact, whether Carton divulged to Eichengreen the names and addresses of the lawyers and owners, with direction to see them in his behalf, and that he took advantage of the confidence, all that need be said is, that Carton’s affirmation is met by Eiehengreen’s denial, and that the burden of proof is on the complainant, which he has not sustained. It may not be amiss, however, to observe that in the race to the swift, Eichengreen was not disqualified, though Carton manipulated the stake and ¡joekied into position to capture it himself.

The point made by the defendant that Carton was not entitled to be heard to complain of the defendant’s conduct because of his own. alleged unconscionable dealings with the owners of the equity of redemption, towards whom it is claimed he still bore the confidential relation of attorney and client, is not well founded. The relation was with their predecessors and had long since ceased, and he dealt with them at arm’s length, and with their attorneys. Although the criticism of his methods with them reflects upon his integrity as a witness it is not justly addressed to professional relationship.


source: Caselaw Access Project

author: Backes, Y. C.

license: Public Domain

text:
    Abraham A. Kaufer, complainant, v. Jacob Rothman, defendant.
    [Decided December 6th, 1926.]
    Partnership—Construction of Agreement—Master’s Report Considered—Facts Presented, and Held, That Contention of Partner Rothman, the Defendant, For a Literal Performance of the Terms of the Agreement Providing For an Equal Division Should Not be Sustained—To do so Would be Unjust.
    On final hearing.

      Mr. Herman Krohn, for the complainant.

      Mr. Philip J. Schotland and Mr. Milton M. Unger, for the defendant.
   Backes, Y. C.

The matter is before the court to confirm the master’s report and for the construction of the partnership agreement.

1. After the decision sustaining exceptions to the master’s report (98 N. J. Eq. 467) the case was re-referred to the master, who, conformably, reported the value of the merchandise at $6,444, as per inventory, and after deducting $150, the value of merchandise sold by the firm after the inventory was taken, and $1,304.35, the value of the goods that came to the receiver’s hands, charged the defendant with the balance, $4,989.79, and to this there seems to be no objection, except that it is insisted that the appraisement should not have been made, as it was, on “going business” prices, but on a dissolution price basis, as the firm was about going out of business. The distinction, if there is one, is not judicially noticeable, and no evidence appears from which it may be deduced.

2. Kaufer borrowed $10,000 from a Mrs. Krumholtz, with which he purchased merchandise, and is reflected in his original contribution of $13,622.79, as shown by the master’s report. This loan was a personal obligation, although evidenced by co-partnership papers. It formed no part of the accounting between the partners and has not been included, save that it appeared that the partnership from time to time paid on account of the debt a total of $5,000 and interest, and this was charged against Kaufer and is included by the master in the withdrawal charges against him of $6,392.17 and $1,144. Two thousand dollars was evidently paid on account by Kaufer •—obviously, not by the firm—and for the balance Kaufer concedes his personal liability, although Mrs. Krumholtz has filed a claim for that sum with the receiver of the firm. The personal liability of Kaufer was found in the earlier decision in which he was charged with $250, the price of.a fur coat sold by the firm to Mrs. Krumholtz, and for which Kaufer took credit on account of interest on his debt.

Rothman claims he paid Al. Klein, a. creditor of the firm, $647.23, which the master allowed in an earlier report, but on exception was disallowed, with leave to furnish better proof. 98 N. J. Eq. 467. The books show the firm owed Klein $246.66, which the master allowed in his later report. Roth-man protests that he should have credit for the larger sum. Upon the proofs the master would have been justified in rejecting the claim in its entirety.

The point is made that Kaufer should not have been given credit for contribution to the firm of merchandise amounting to $13,622,71, and that Rothman should have been credited with $4,000 as his contribution instead of $1,634.71. The proofs amply support the finding of the master in these respects.

The contract of co-partnership provides that "at the expiration of one-year period of the co-partnership, and in the event that it is mutually decided to discontinue the partnership, the said Abraham A. Kaufer is to retain the aforesaid business and said Abraham A, Kaufer is to pay to the said Jacob Rothman one-half of the physical assets of the firm at the termination of the co-partnership.” This was predicated upon the terms of the agreement that the partners were to make equal contribution to the capital. The amount was left blank in the contract. Kaufer contributed $13,622.11 as against Rothman’s $1,634.11. Rothman contends for a literal performance of the terms and an equal division. Manifestly, that would be unjust. A decree will be advised in accordance with the report of the master and the views herein entertained.


author: BACKESy' Y. C.

text:
    Harry Harris, complainant, v. L. Joseph Bellet et al., defendants.
    [Decided December 6th, 1926.]
    Partnership—Joint Adventure—Agreement to Engage in a Joint Adventure Called by the Adventurers a Co-partnership—Defendant Claims Agreement was Not Consummated Because of Failure of Complainant to Supply the Agreed Upon Capital—Held, Whether, Capital was so Supplied or Not, Condition was Waived by Both Parties Actively Participating in the Venture Until it Come to an End.
    On exceptions to master’s report.

      Mr. Pierce R. Franklin, for the complainant.

      Mr. John A. Bernhard, for the defendants.
   BACKESy' Y. C.

The bill in this case is for an accounting, and by agreement of counsel it was referred to a master to ascertain and report if a co-partnership had existed between the parties, and if he found it had to state an account. The master found no partnership, to which an exception was taken.

The bill alleges, and the proofs abundantly show, that Harris and Bellet, in August, 1925, entered into a joint venture, called by them a co-partnership, for the single purpose of marketing the capital stock of the Syncho Products Company. There can be no question as to this, and Bellet virtually admits it in his answer, his contention being, that there was no co-partnership, in fact, because Harris failed to contribute $1,000 towards the capital of the firm, which he claims was a condition to its formation. The obligation to do so is denied by Harris, and his explanation is that that sum was thought to be required .to start with, that he advanced $400, but more capital was found to be unnecessary because it was provided out of the profits of the business. Be that as it may, and assuming that it was a condition precedent to the engagement of the joint venture or co-partnership, the condition was waived by both parties actively participating in the venture for seven months, when it came to an end.

The exception is sustained, and the matter will be re-referred tó the master for an accounting.


author: Plannagan, J.

text:
    Essex County Orphans Court.
    In the matter of the estate of Frances C. Henderson, deceased.
    [Decided November 16th, 1926.]
    Wills—Construction—Accounting—Question Whether Estate in Trust For Granddaughter of Testatrix Shall be Paid at Her Death to Her Personal Representatives Who are Not Blood Relations, or to Grandson of Testatrix, Brother of Deceased Granddaughter—Held, That Will Must be Viewed as a Whole, and That From Such a View Estate Must Go to Grandson.
    On petition upon an accounting for decree of distribution.

      Messrs. Waddington & Mathews, for Pennsylvania Company for Insurance on Lives and Granting Annuities and Andrew A. Blair, as trustees under the will of Prances C. Henderson.

      Mr. Robert E. McCarter, for Arthur H. Geissler.

      Mr. John M. Emery, for Pinckney H. Adams, as guardian for Plorenee and Elizabeth Adams.

      Messrs. Lindabury, Eepue & Faulks, for Pinckney H. Adams, individually.

      Messrs. Garrick & Worbendyke (specially), for Ernst Pranz and Clemens von Pruschen.
   Plannagan, J.

This is a proceeding by petition for instructions upon an accounting as to the distribution of income under the will of Prances C. Henderson, deceased.

All the parties are before the court, the von Pruschens having been lately brought in by order to show cause. They fail to appear except to contest the jurisdiction of the court to dispose of corpus of the estate.

At the time of the death of testatrix she had two living children, both daughters, both married, one Mrs. Eanny von Pruschen and the other Mrs. Julia Adams.

Testatrix also had five grandchildren, four of them grandsons and one a granddaughter, three of these grandsons were young men all over twenty-five years of age, the sons of Mrs. Eanny von Pruschen. The granddaughter and the other grandson were children of Mrs. Adams, the granddaughter being about twenty-eight years of age and the Adams grandson about eighteen years of age. None of the grandchildren were married, but all were of marriageable age except the Adams boy (J. Pinckney H. Adams).

This was the family situation at the time of the death of the testatrix, and also substantially at the time of the making of her will, her will having been made only about two years before her death.

After disposing of her jewelry, furniture and other domestic effects to her daughter Mrs.. Julia Adams, the testatrix’s will divided her property into two equal shares or parts, both parts being left to the same trustees, the interest and profits from one part to be paid to her daughter Eanny von Pruschen, “regularly as long as she lives,” and the interest and profits from the other part to* be paid to her daughter Julia Adams, “regularly as long as she lives.”

The testatrix then made express provisions for the following contingencies—

First. Eor the accumulation of income for his or her benefit in case either of the grandchildren should be under thirty years of age at the time of the death of their mother, such accumulation to continue until such grandchild should attain to thirty years óf age, whereupon his or her “moiety” should be paid over to him or her “regularly.”

Second. In the event of either grandchild dying “unmarried,” his or her share to* be added to the share of the sister or brother.

Third. In case of the marriage of the granddaughter, such granddaughter’s share to be free of any control, interference or debts of any husband.

Fourth. The share of any grandson to be clear of any claim or demand of any creditor of his.

Fifth. In the event there should be no great-grandchildren, on the Julia Adams side, left at the time of the death of the grandchildren (the testatrix’s child, Julia Adams, being dead also), then, all the property left in trust for the daughter Julia Adams, and for her children, is directed to be placed in trust for the other daughter of testatrix, Fanny von Pruschen, or her children and “only the income paid over.” The clause making these last provisions reads as follows: “Should neither of the children of my daughter Julia leave children, then, after her death and theirs, all the property herein left in trust for her or them shall be placed in trust for my daughter Fanny or her children, and only the income paid over.”

No express language is found in the will providing for the termination of the trust, and no other contingencies which now exist or may hereafter arise are expressly provided for, except those already above stated.

No questions are before the court in regard to the Fanny von Pruschen share—the only question which must now be disposed of being the disposition of a subshare of the income arising out of the Julia Adams share.

This question arises out of the following facts:

After the death of testatrix, one of her grandchildren, i. e., the granddaughter (herself named Julia, and the daughter of Julia Adams), married a Mr. Geissler, and the testatrix’s daughter, Julia Adams, having died, the income of one-half the Adams share was paid to Mrs. Geissler, the income from the other half being paid to the other Adams grandchild, to wit, Pinckney Adams. On March 1st, 1925, Mrs. Geissler died without issue, leaving a husband surviving and a will in his favor as residuary legatee, and appointing him her executor.

The question presented is, Who is now entitled to the income formerly paid to Mrs. Geissler during her lifetime? It is claimed, first, by her husband, Mr. Geissler; second, by her brother, Pinckney Adams, and third, by the infant children of Pinckney Adams, being the testatrix’s great-grandchildren, Florence Day Adams and Elizabeth M. Adams.

As there is, as already indicated, no express language in the will covering the situation presented, the answer to the question, if it is to be found in the will at all, must be found by viewing it as a whole and by implication from its terms.

Viewing the will as a whole, there is manifest in its provisions a strong family instinct and the dominant purpose to benefit • testatrix’s own kin equally, per stirpes. Not a dollar goes to any outside object or purpose. Except for her household and personal effects, she ties up her entire estate in trust, specifying none but her own kin as beneficiaries. Her beneficial contingent provisions extend beyond the end of the lives of unborn great-grandchildren, the possible issue of unmarried grandchildren; and she saw to it that in the event of failure of great-grandchildren of the Julia Adams line, the Julia Adams share should be “placed” in trust for beneficiaries of her own blood line, going to the Eanny von Pruschen branch. Not an express provision is found contemplating any control or benefit outside of those of her own blood, and, on the contrary, she expressly provides that her bounty shall be free of any control of any husband of her granddaughter (Mrs. Geissler), or from the creditors of her grandson (Pinckney Adams). No thought of an ultimate distribution of the corpus of the estate finds definite expression anywhere in the will, the thought continually recurring being the enjoyment of income by those of her own blood, reserving the corpus to produce more income for the benefit of succeeding kin; each succeeding generation in each line enjoying the share of its progenitor.

The dominant purposes manifested in the will by testatrix were natural and normal. They were, first, to dispose of her entire estate; second, to benefit those of her own blood, and third, to do so in proportion to the nearness of their relationship to her, each generation succeeding to the share of its predecessor.

As to the contention that Mr. Geissler, as executor of his wife, is now entitled to the income which was enjoyed by her during her lifetime, the result of such contention, if it be sound, would be that Mr. Geissler, individually, as residuary legatee under his wife’s will, would enter upon the enjoyment of her subshare of the income. Mr. Geissler stands as a stranger to testatrix and not of her blood, and the contention flies in the face of the dominant purposes of the will.

The foundation of the contention in behalf of Mr. Geissler is the following clause taken in connection with the clause already quoted:

“As each child [referring to children of testatrix’s daughter Julia] reaches the age of thirty [if my daughter Julia is already dead], his or her share of the accumulated interest as well as of the regular income from said moiety is to be paid to him or her regularly. Should either child die unmarried his or her share is to be added to the share of the sister or brother, as the case may be.”

The theory upon which the claim is based is set forth in the brief of Mr. Geissler’s counsel, as follows:

“Mr. Geissler’s contention of his right as executor to the income of one-half of the moiety accumulated and current is based upon the following idea: That at the time of his wife’s death, she [Julia H. Geissler] was seized, possessed and the true owner of the corpus of one-fourth of the entire estate of Frances 0. Henderson, subject to the contingency that she die married, and further subject to the contingent remainder in favor of the three von Pruschens; that the fact that Mrs. Geissler died married, defeated the remainder in favor of J. Pinckney H. Adams.”

It is not contended that any express provision is to be found in the will leaving any corpus of the estate to Mrs. Geissler—the will provides that “the regular income” is to be paid to her “regularly.” The claim rests upon the theory of an implied bequest of corpus, such implication arising, as is claimed, from the gift of the income under the terms of the clauses quoted.

It is conceded by Mr. Geissler that this income would end with the life of Pinckney Adams, leaving no surviving issue, when it would pass to the von Prusehen branch.

At the time of the death of testatrix, Mrs. Geissler (her granddaughter) was not married to Mr. Geissler. Mr. Geissler’s contention involves imputing to the testatrix the intention that in case of Mrs. Geissler dying married, but childless, then her nominees or next of kin should enjoy an estate terminable with the life of Pinckney .Adams, dying childless. The testatrix’s will expressly provided that in ease of the death of the granddaughter unmarried her share should pass to her brother, Pinckney Adams. There is no conceivable natural reason of affection, or otherwise, why the testatrix should intend to give the share of her granddaughter to her grandson in case the granddaughter died unmarried and yet give the next of kin or nominees of the granddaughter, in case she dies married, but childless, an income terminable with the life of the grandson and to his exclusion. No connection between the grandson’s life and an income to a nominee of the childless granddaughter is imaginable from the facts presented.

The court will not raise an implication for the purpose of making a distribution of testatrix’s property in a manner for which no natural or logical desire can be seen.

The paramount intentions of the testatrix, as plainly evident from her whole will, can only be satisfied by a distribution of the subshare of the income, enjoyed heretofore by Mrs. Geissler, to her brother, Pinckney Adams. The reasoning of the court in Denise v. Denise, 37 N. J. Eq. 163; Hanneman v. Richter, 62 N. J. Eq. 365; affirmed, 63 N. J. Eq. 803; Holton v. White, 23 N. J. Law 330; Barnard v. Barlow, 50 N. J. Eq. 131, and 51 N. J. Eq. 620 (the latter as to disposition of income), sustains such an implied bequest. Distribution will be ordered accordingly.


author: Ingebsoll, Y. C.

text:
    Marion Ruppel, petitioner, v. Andrew Ruppel, defendant.
    [Decided December 14th, 1926.]
    Divorce—Desertion—Husband Brought Suit in 1923 Which was Not Diligently Prosecuted—Wife in 1925 Brought This Suit —Both Suits Alleged Desertion—Held, That Defendant in Previous Case Having Refrained From Filing Answer Cannot Now, Because That Suit was Not Vigorously Prosecuted, Without Making Any Motion Therein, File a Petition Charging Previous Petitioner With Actual Desertion—Petition Dismissed.
    On petition for divorce. On exceptions to master’s report.

      Mr. Elwood 0. Weeks, for the petitioner.
   Ingebsoll, Y. C.

On January 22d, 1923, Andrew Ruppel filed in this court a petition for divorce, in which he charged that in the month of Eebruary, 1905, Marion Ruppel, his wife, deserted him. Citations were issued, and served personally upon the defendant on Eebruary 10th, 1923. No answer was filed, and on the 28th of July, 1923, it was referred to Joseph T. Hague, one of the special masters of this court. No further action appears to have been taken.

On October 31st, 1925, Marion Ruppel filed a petition for divorce, making Andrew J. Ruppel defendant, in which she charges that the defendant deserted her on May 30th, 1925. Citation was returned non esi. An order of publication was taken and proof thereof made. Although the present petitioner was served personally with the citation, and a certified copy of the petition filed in the first case, she evidently refrained from informing her solicitor that such papers had been served and that defendant was represented by a solicitor of this court.

An examination of the affidavits on file disclose that no attempt was made through the solicitor of the present defendant to give him* notice or to ascertain his present address. The order of reference in the present cause was made to Anthony J. Siracusa, one of the special masters of this court, who, after hearing the testimony, filed his report in which he advised that the petition should be dismissed upon two grounds—first, that the evidence failed to prove actual desertion as alleged in the petition, but that it did show a constructive desertion, and secondly, upon the ground that there was a suit now pending and undetermined in this court, in which the same charge was made against the present petitioner.

Without determining the question raised by the master, I am satisfied that the petition should be dismissed.

Can it be said that a defendant in a previous case, who has personal knowledge that she is charged with desertion, refrain from filing an answer if she is not guilty, and then because that action is not vigorously prosecuted, and without making any motion or application therein, file a petition charging the former petitioner with actual desertion, refrain from informing her solicitor of the fact that the former petitioner was or had been' represented by a solicitor of this court, be entitled to a decree nisi upon producing proof that the then defendant was guilty of a constructive desertion ?

The exceptions will be overruled and an order will be advised dismissing the petition.


text:
    James R. Nugent, complainant, v. Mary R. Meeker, defendant.
    [Decided December 6th, 1926.]
    A comptroller’s deed in fee under the Martin act is inoperative as against the owners not served with notice to redeem.
    On final hearing.

      Mr. James R. Nugent, for the complainant.

      Mr. Herbert Boggs, for the defendant.
   Backes, Y. C.

This bill is to partition lands in Newark meadows acquired by Jedadiah J. Baldwin, of Newark, in 1820, and of which he died seized intestate in 1858. In 1921 the complainant obtained title to a one-seventh interest from Mary Augustus Baldwin Dominick, a granddaughter, daughter of Baldwin’s son Edward. In the same year he acquired another one-seventh from Gertrude Atwater, granddaughter, daughter of Baldwin’s daughter Henrietta Oakley; and in the same year acquired an additional one-seventh interest from the two children of William J. Magie, late chancellor, who had married Sarah Francis, daughter of Baldwin. The defendants are the remaining descendants of Baldwin, and Stuart Lindsley, who holds a tax title deed in fee, which was given by the comptroller of Newark to Florence E. Cahill, August 12th, 1907, by virtue of the Martin act, and by her conveyed to Lindsley. Service of notice to redeem was by publication directed to Jedadiah J. Baldwin and Mrs. Jedadiah J. Baldwin, who were long since dead, to the knowledge of the purchaser. The statute permits service to be made by publication, but it must be addressed to the owners or mailed to them if their residence can be ascertained by due inquiry upon the premises if occupied “and wherever else in the city the same may be likely to be ascertained." Cahill’s affidavit of inquiry and the notice by publication to the dead were mere pretenses to induce the execution of the comptroller’s deed. Cahill took nothing by the. deed. Lindsley has a tax sale lien which the complainant may redeem. A reference will be ordered to determine the ownership of the fractional interest of the complainant and defendants, and they will be' charged proportionately with the amount necessary to redeem the tax sale lien and such other taxes as complainant has since paid.

The question of jurisdiction decided in Nugent v. Lindsley, 4 N. J. Mis. R. 649, is not raised.

The defendant (Lindsley’s) contention that the ancestor of the complainant’s grantor was Jediah J. Baldwin, and not Jedadiah J. Baldwin, is without substance. He was sometimes called Jediah J. and other times Jedadiah J. Baldwin, 'as appears by the city directory of Newark, wherein he is styled as Jediah J. Baldwin, annually from 1837 to 1854, and as residing in Union township, Upper road to Elizabeth, and in 1855 and 1856 as Jedadiah J. Baldwin, same address. In the application for letters of administration filed by his widow, Abby, in the Essex county surrogate’s office in 1858, he is called Jediah J. Baldwin, and the names of his surviving children and their addresses are given. In a deed by him to Aaron Coe, in which he was joined by his wife, Abby, for property in Newark, he is designated and signed as Jediah J. Baldwin. There is nothing to show other than thaJ Jediah J. Baldwin and Jedadiah J. Baldwin were one and the same person.


author: Bagaes, V. C.

text:
    James R. Nugent, complainant, v. Henry R. Spinning, defendant.
    [Decided December 6th, 1926.]
    A comptroller’s deed in fee under the Martin act is inoperative as against the owners not served with notice to redeem.
    On final hearing.

      Mr. James B. Nugent, for the complainant.

      Mr. Herbert Boggs, for the defendant.
   Bagaes, V. C.

The title to the Newark meadow land sought to be partitioned in this suit was in Calvin Cole, who, in 1804, by deed of gift, recorded in Essex county, conveyed the same to Sally Yance, wife of Edward Yance, for life, remainder to her children. In 1907 the comptroller of Newark conveyed the property to Florence E. Cahill in fee, who purchased it at a sale for taxes under the Martin act, and conveyed it to the defendant Lindsley. The proof shows, and it appears by the deed, that the comptroller’s conveyance was delivered upon proof of service of notice to redeem by publication addressed to Sally Yance and Edward Yance, then nearly a century dead. Sally Vance had six children. The complainant, Nugent, holds an undivided interest in the land by conveyance from some of the descendants of Sally Vance’s children. The question of jurisdiction raised is decided in Nugent v. Lindsley, 4 N. J. Mis. R. 649. The invalidity of the deed is disposed of as in Nugent v. Meeker, 4 N. J. Mis. R. 1041. Lindsley has only a tax lien which may be redeemed. The case will be referred to a master in the manner directed in Nugent v. Lindsley.


author: Per Curiam.

text:
    LEO SINGER v. HOME INSURANCE COMPANY OF AMERICA. LEO SINGER v. QUEENS INSURANCE COMPANY.
    Decided December 9, 1926.
    Insurance—Fire—Business Devoted to Buying and Selling Motion Picture Film—Loss Proved—Defendant Claims False Swearing, Alleging That There is no Legitimate Second-Hand Film Business—Plaintiff Presents Proof That There is Such Business—Insured Claimed Entire Title to ail Film—Held, That if Assured Has Possession and Use Under a Claim of Right, the Court is Not Disposed to Pass on the Validity of the Title—No Error in the Court’s Charge.
    On rule to show cause, Essex Circuit.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Eor the plaintiff, Louis Ogust.

    For the defendant, Arthur T. Vanderbilt.

   Per Curiam.

The case was tried before the court and a jury. The plaintiff brought the action on policies issued by defendant insurance companies for loss by fire of fixtures and stock of merchandise, consisting of moving picture film. The jury returned verdicts against the defendants for the full amount of the policies, together with interest as follows: Against Queen Insurance Company, $2,167.67; against the Home Insurance Company, $5,961.09, being $4,335.34 on stock and $1,625.75 on fixtures. By stipulation the amount recovered for fixtures is not involved in this rule to show cause.

The plaintiff, before the fire,, occupied his own building devoted to the business of buying and selling motion picture film; the film covered by the policies was alleged to have been bought from dealers in second-hand film, and in the regular channel of trade. The proofs of loss showed a loss on film of $16,692 against a total insurance of $6,000.

The defense was that plaintiff was not the sole and unconditional owner, and that he was guilty of false swearing. The defendant produced officials of certain well-known film producing companies, who testified that there was no legitimate second-hand film business; that the practice of their companies, and of the industry in general, was merely to lease film and never to sell it outright while fit for use; that when no longer usable, the film is deemed mutilated and sold for scrap; that their companies produced film bearing a title of film included in the plaintiff’s inventory; that said film was copyrighted and never sold; that there are “pirates” in the business, who made and sold prints of leased copyrighted film. The film for which the plaintiff made claim, and which bore titles of film produced by witnesses’ companies, numbered about one hundred and ninety-three reels, and was of a value of $1,220; plaintiff’s total claim was for two thousand six hundred and thirty-six reels of a value of $16,692.

The plaintiff produced evidence to the effect that there are hundreds of film producing and releasing companies; that some of them do not copyright their film; that there is a large business and hundreds of dealers in second-hand film; that film, copyrighted and otherwise, is bought and sold in open market; that film is sold outright by producing companies, and by their branch managers or agents, who have apparent authority to so sell it; that film is sold outright by storage, express and railroad companies to satisfy lien claims for charges, and by the government for non-payment of custom duties; that producing companies sell used film in unmutilated condition to junk dealers, without restriction as to use. The insured claimed the entire title of all film in the inventory submitted in the proofs; he did not claim unqualified or undivided interest or an interest in common. The legal rule in this department of the law is settled that if assured has possession and use under a claim of right, the court is not disposed to pass upon the validity of the title. Rich. Ins. 337.

So, also, where the insured is in possession of property, claiming full title under bills of sale, conveying title, his claim is deemed sole and unconditional. Norris v. Insurance Co. (New Jersey), 123 Atl. Rep. 762; Savarese v. Insurance Co. (New Jersey), Id. 763.

The first reason for the rule is that the court charged that a warranty of title made in good faith does not, of itself, deprive the insured of his rights under the policy, even if he was not the unqualified owner. This was charged in reference to false swearing in representation of ownership- made ■in proof of loss. The court elsewhere properly charged on the sole and unconditional ownership clause of the policy, and the matter was also adequately covered in the defendants’ seventh request, which was fully charged.

The third reason assigned is that the court refused to charge that if the assured overstated the value of the merchandise, in .proof of loss, with intention that the defendant companies act in reliance therein, the verdict must be for the defendants. The court properly charged in this respect, that there must be fraud to vitiate the plaintiff’s claim, and that the overvaluation in the proofs must be knowingly and intentionally made in order to avoid the policies.

We have examined the remaining reasons urged in support of the rule, and find them insubstantial. The rule will be discharged.


text:
    STATE OF NEW JERSEY v. ALBERT MELLINI. STATE OF NEW JERSEY v. SILVIO SANTINI. STATE OF NEW JERSEY v. ALBERT MELLINI AND SILVIO SANTINI.
    Decided December 9, 1926.
    Crimes—Sale of Liquor—Indictment Alleged Sale in Landis Township—At Trial it Appeared That Sale was in Vineland— Indictment Amended—Held, Not Error, Also Not Error to Offer in Evidence Liquor Which Had Been Unlawfully Seized Without a Legal Search Warrant—Conviction Confirmed.
    On error to the Cumberland Sessions.
    Before Gummere, Chief Justice, and Justices Trenchard and Mixturn.
    Por the plaintiffs in error, Henry Burl Ware and William A. W. Grier.

    For the state, Thomas G. Tuso.

   Per Curiam.

These defendants were indicted for violating the provisions of the Hobart act, having in their possession, illegally, intoxicating liquor, one of the indictments charging the sale of liquor contrary to that law. The cases were tried together and resulted in a conviction of the defendants upon each indictment. While it is attempted to bring up the convictions under the one hundred and thirty-sixth section of the Criminal Procedure act, no reasons for reversal have been specified, and the cases are therefore here on strict writ of error.

In case No. 16, the indictment charged the defendant Mellini with the illegal sale of liquor or having the same in his possession on September 9th, in Landis township. At the trial it appeared that the location of the place was in the borough of Yineland, and that the date on which the liquor was found was the 14th day of September. An application was then made by the prosecutor to amend the indictment by substituting the borough of Yineland in the place of Landis township, and September 14th in place of September 9th, which amendments were allowed, and this judicial action is made one of the grounds for reversal, upon the theory that thereby a different offense is substituted for that laid in the indictment. The law, however, is settled to the contrary. State v. Ham, 72 N. J. L. 4. We there held that an amendment to the indictment for the sale of intoxicating liquor, by substituting another place for that laid in the indictment, was not permissible under section 34 of the Criminal Procedure act, because the sale of liquor was not in itself criminal, but only the sale of liquor without a license, and that by substituting a place located in another municipality the defendant was deprived of setting up that in the locality specified in the indictment he was selling under a license, duly issued to him, and that this would be the substituting of another offense, but, by inference, where the act is criminal per se, a misstatement of the place is immaterial, as it would be in the case of a disorderly house.

In State v. Calabrese, 99 N. J. L. 315, we held that time is not of the essence of the offense, except in cases where an act may be innocent if done at one time, but criminal if done at another, and such, manifestly, is not the situation here.

It is next contended that upon the entire evidence, the convictions in each case were not warranted. The rule is well settled, however, that upon a review on assignments of error that question cannot be considered.

It is next argued that it was error to permit a witness to answer the question: “You are asked to state, if you know, if this is the liquor that you got from Seventh and Cherry on March 25th, 1925?” That question appears unobjectionable, but if it were objectionable, the objection came too late as the question was answered, and no motion was made to strike out the answer.

It is also urged that there was error in allowing the same witness to be asked: “Is this the first time you bought whiskey in that place?” But since the question was not answered the question was harmless.

It is also urged that in various aspects the court’s charge to the jury was erroneous, but excepting a misstatement of the name Mellini for Santini no error appears, and that slip was plainly harmless, for the jury, having followed the testimony, could not be misled by a verbal error so obviously transparent.

It is finally urged that the court erred in permitting the state to offer in evidence liquor which had been unlawfully seized without a legal search warrant having been issued as a justification for the seizure. Under the rule laid down in State v. McQueen, 69 N. J. L. 522, however, where the question was not directly involved, but was commented on, and the later cases which have approved the doctrine there laid down, the action of the court was legally correct. That course of procedure has also1 received the approval of the United States Supreme Court in Adams v. New York, 192 U. S. 585; affirming, 176 N. Y. 351; Weeks v. United States, 232 U. S. 383; Carroll v. United States, 267 Id. 1581.

The conclusions lead to an affirmance of the convictions in each ease.


author:
Harry J. Coas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    THOMAS CREW, PETITIONER, v. WEIDiMANN SILK DYEING COMPANY, RESPONDENT.
    On determination and rule for judgment.
    Eor the petitioner, Nathan Rabinowitz.

    Eor the respondent, Richard W. Baker.

   The deputy commissioner .was asked to approve this compromise and enter an award on the same.

I, therefore, find and determine that the petitioner, in accordance with the compromise, is entitled to compensation for temporary disability for a period of one and five-sevenths (1 5/7) weeks, all of which has already been paid, and compensation for permanent disability for a period of four and one-half (4%) weeks based upon three (3%) per cent, of the left hand, the compensation rate being seventeen ($17) dollars.

It is therefore, on this 27th day of September, 1926, ordered that judgment be entered in favor of the petitioner for one and five-sevenths (1 5/7) weeks’ temporary compensation, which has already been paid, and four and one-half (41/2) weeks’ permanent compensation, to be paid immediately by the respondent at the rate of seventeen ($17) dollars per week.

Harry J. Coas,

Deputy Commissioner.


text:
    JOSEPH ELLIS, PLAINTIFF, v. NORTH HUDSON AUTO BUS COMPANY, DEFENDANT.
    Decided December 9, 1926.
    Negligence — Injury to Municipal Fireman When Fire Truck was In Collision With Defendant’s Bus — New Trial as to Damages Only.
    Before G-ummere, Chief Justice, and Justices Treno hard and Minturn.
    Bor the plaintiff, Hirschberg & Rubenstein.

    Bor the defendant, Truex & Koch.

   Per Curiam.

The action was tried before the court and a jury in the Hudson Circuit, and a verdict went for the plaintiff for $2,300.

The plaintiff, while serving as a fireman of West New York, was injured in collision with defendant’s bus, while standing on the running-board of the fire truck enroute to a fire.

The plaintiff’s rule is based upon the inadequacy of the damages allowed, and he asks for a new trial as to damages only.

The plaintiff was twenty-nine years old, and sustained a comminuted fracture of the tibia and fibula of the left leg, and a fracture of the metatarsal of the right foot, as well as a three-quarter-inch shortening of his leg. He was confined to the hospital for four months, and to his home three months. He incurred a medical bill for $600, but he makes no claim for loss of his past wages.

The defendant reasons that the verdict was of a compromise character, the jury evidently not considering that the defendant was negligent, but upon humanitarian grounds indulged in a species of “Crowners Quest law,” based upon the theory that one can afford to be generous and liberal with another’s property.

We must, however, in view of the verdict for the plaintiff, recognize the liability of the defendant, and in view of that fact we conclude that as to the question of damages only a new trial should be ordered.

The rule will be made absolute for that purpose.


text:
    ERNEST OELFKE v. HUDSON AND MANHATTAN RAILROAD COMPANY.
    Decided December 9, 1926.
    Negligence — Injury to Employe of Railroad Engaged in Interstate Commerce — Complainant Alleged Accident Happened Because of Lack of Proper Safety Appliances as Required by Federal Statute — Proof Showed Automatic Couplings Were Not Used — Held, That Complainant was Within Federal Statute Which Provided That Employe Shall Not be Held to Have Assumed Risk of Employment Where Common Carrier was Violating Statute — Other Alleged Errors Overruled.

      On appeal from the Hudson Circuit.
    Before Gummere, Chief Justice, and Justices Trekchard and Mi-Vtueh.
    Eor the plaintiff-respondent, Alexander Simpson.

    Eor the defendant-appellant, Collins & Corbin.

   Per Curiam.

The plaintiff was an employe of the defendant, at its terminal at Thirty-third street, New York City, and brought suit for damages under the Federal Employers’ Liability act for injuries received while coupling defendant’s cars. The trial resulted in a verdict in favor of the plaintiff, and the defendant has appealed.

The first contention is that the trial judge erroneously refused to direct a verdict in favor of the defendant, upon the ground that there was no evidence of a.ny alleged negligence which was the proximate cause of the injury. The complaint alleged, inter alia, that the accident happened because of the failure of the defendant to supply proper and sufficient instrumentalities, drawheads, links, bars, &e. The Federal Safety Appliance act provides that in personal injury actions, based upon the violation of that act, it is not necessary, in order to sustain a recovery thereon, that the plaintiff should cite the statute or expressly invoke its terms. It is enough if he set out facts from which it may be inferred that a violation of that statute resulted causing the damage in question.

The Safety Appliance act requires railroad companies to use automatic couplings, and the proofs showed that there was no such coupling on the cars between which the plaintiff was crushed, and that because of this fact he was standing in between them for the purpose of attaching the drawbar. The language of the statute is that “it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers, coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of cars.” Because of the failure of the defendant to comply with this statute the accident occurred.

The next contention is that there should have been a direction of a verdict, because the plaintiff assumed the risk of the injury which he received. The federal statute provides that “in any action brought against any common carrier, under or by virtue of any of the provisions of this act to recover damages for injuries to any of its employes, such employe shall not be held to have assumed the risk of his employment in any case where the violation of such common carriér of any statute enacted for the safety of employes contributed to the injury of such employe.” Manifestly, this contention is without merit. Parker v. Atlantic City Railroad Co., 87 N. J. L. 148.

It is next argued that the trial judge erred in submitting to the jury the question as to whether or not the defendant was liable for a violation of the Safety Appliance act. The court’s action in that respect, in view of the provisions of the act cited, was correct.

It is contended that the trial court erred in instructing the jury on the question of assumption of risk, and in refusing the defendant’s requests to charge on that subject. What has been said as to the requirements of the federal legislation makes it manifest that the charge of the court, in consonance with the provisions of that legislation, was correct, and that the refusal.of the court to charge the requests, based upon a contrary conception of the law, was proper in view of the determination of this court and the Court of Errors and Appeals to that effect. McDonald v. Central Railroad, 88 N. J. L. 11; affirmed, 89 Id: 251; Steidler v. Pennsylvania Railroad Co., 94 Id. 197; Swank v. Pennsylvania Railroad Co., Id. 546; Cork v. Lehigh Valley Railroad, 98 Id. 143.

The judgment will be affirmed.


text:
    ELIZABETH STREET, PLAINTIFF-APPELLANT, v. THOMAS C. SMITH, EXECUTOR OF AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF NELLIE M. FOYE, DECEASED, DEFENDANT-RESPONDENT.
    Submitted May 15, 1926
    Decided December 15, 1926.
    Real Estate — Agent’s Commissions — Agent Produced a Purchaser Who Paid $2,000 Deposit — Agent Retained $1,250 as His Commission — Sale Not Consummated and Specific Performance Denied on Ground That Agreement was Incomplete— Judgment in Suit at Law to Recover Deposit — This Suit is to Recover Money Retained by Agent — Nonsuit in Case Reversed on Ground That it Did Not Appear in Case Whether Agent Had Earned His Commission According to the Terms of His Contract With Plaintiff — New Trial Awarded.
    On appeal from a judgment of the Hudson County Court of Common Pleas.
    Before Gummeke, Chief Justice, and Justices Teenchabd and Minturn.
    For the appellant, Collins & Corbin (David A. Newton, of counsel).
    For the respondent, George G. Tennant.

   Per Curiam.

George Foye was a real estate broker. He was employed by the plaintiff, Mrs. Street, to sell her apartment-house, located on the Boulevard, in Jersey City, and Mrs. Street agreed to pay him $1,250 for his commissions. Foye produced a man named Harris as a purchaser, and Harris made a contract with the plaintiff for the purchase of the property in question. One of the provisions of this contract was that Harris should pay $2,000 upon the signing of the contract. He paid this money to Foye. Foye paid Mrs. Street $750 of it, and re-tamed the other $1,250 under a claim that he was entitled to this amount for his commissions. After the contract was executed, a dispute arose between Mrs. Street and Harris with relation thereto, Harris claiming that the conveyance proposed to be executed by her to him was not in conformity with the provisions of the agreement. Thereupon, Mrs. Street filed a bill in equity to compel the performance of the contract by Harris. The result was a dismissal of the bill on the ground that the minds of the parties had never met on the alleged contract. 93 N. J. Eq. 83; affirmed, Id. 503. Subsequently, Harris brought suit against Mrs. Street to recover the $2,000 advanced by him on account of the purchase-money. She claimed that she had only received $750 of the amount. The Supreme Court, however, held that she was obliged to pay the whole of it back to him; that it was paid to Eoye as her agent, and that the fact that he had appropriated $1,250 of it to his own use was no bar to the right of Harris to recover from her. 1 N. J. Mis. R. 366, 367. In the meantime Eoye had died, leaving all of his estate to his wife. Before the present suit was instituted Mrs. Eoye died, appointing by her will Smith as her executor. The present suit is brought by Mrs. Street against Smith, executor, to recover out of the moneys in Mrs. Eoye’s estate received from her husband the $1,250 which she was obliged to pay on the judgment recovered against her by Harris. At the conclusion of the plaintiff’s case a nonsuit was directed, and the plaintiff has appealed.

We think the nonsuit was improperly ordered. If Eoye had not earned his commissions, his appropriation of the $1,250 out of the $2,000 paid to him as the agent of Mrs. Street was clearly illegal. Whether or not he had, in fact, earned his commissions depended, of course, upon what were the terms of his brokerage contract with Mrs. Street.

That contract was not offered in evidence, nor does its terms otherwise satisfactorily appear in the record. It may be that by its terms he was only entitled to a commission in ease an actual sale was made, or he may have been entitled to commissions upon his producing a purchaser able and willing to buy. Although the results of the litigations between the plaintiff and Harris are not res adjudícala, as to the broker, Eoye, who was not a party thereto, they are, nevertheless, glare decisis in a case where all the facts are identical with the subject-matter of the litigation. This being so, we think we are justified in saying that, in the absence of proof to the contrary, the payment by Harris to the broker was a payment to the plaintiff, the broker being her agent for the receiving of the money; and that he was under a legal obligation to pay all of it over to her upon his receiving it unless he had then earned his commissions, and whether or not he had then earned them depended upon the terms of his brokerage contract, as we have already indicated.

The defendant sets up in his answer as a defense that there was an executed settlement between Eoye and the plaintiff of all matters in dispute between them, including this question of commissions. But this is denied in the replication, and, of course, in the absence of proof in support of it, of which there was none, amounts to nothing.

Our conclusion is that the plaintiff was entitled to recover on the proofs submitted, unless the defendant showed either that by the terms of the contract of brokerage Eoye was entitled to his commissions at the time he appropriated this $1,250, or else that the matter involved in the litigation had been settled between the parties.

The judgment will be reversed and a new trial awarded.


text:
    LEHIGH STOVE MANUFACTURING COMPANY, A CORPORATION, PLAINTIFF-RESPONDENT, v. BERNARD KESSLER, TRADING, ETC., DEFENDANT-APPELLANT.
    Submitted May 15, 1926
    Decided December 15, 1926.
    Sale of Goods — Defendant-Appellant Alleges Special Contract, and That the Action was Actually Brought on Book Account — Held, That Where the Real Question in Controversy Has Been Fully and Fairly Tried, Though Perhaps Not Precisely Pleaded, and the Complaining Party Has Not Been Surprised or Injured, the Reviewing Court Will Amend the Pleadings to Support the Judgment — Held, Further, That Evidence Tended to Show That There Had Been Actual Acceptance of Goods and That the Case is Not Within the $500 Limitation Contained in Sale of Goods Act Relating to Sales Not in Writing.
    On appeal from the Passaic County Circuit Court.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturw.
    Eor the appellant, Ward & McGmnis {Peter J. McGinnis, of counsel).
    Eor the respondent, Freeman & Freeman {Forster W. Freeman, of counsel).
   Per Curiam.

This suit is brought to recover the price of certain stoves sold by the plaintiff (a manufacturer) to the defendant (a retail dealer). The stoves were of two kinds, and all told were of a value of $976.68. The jury rendered a verdict in favor of the plaintiff for the amount of its claim, with interest, and the defendant took this appeal.

The first ground for reversal is that a nonsuit should have been ordered, for the reason that the action was founded on a book account, while the proof showed a special contract. Our examination of the record discloses that the motion to nonsuit was not based on that ground. But even if it had been, where, as here, the real question in controversy has been fully and fairly tried, though perhaps not precisely pleaded, and the complaining party has not been surprised or injured, the reviewing court will amend the pleadings in order to support the judgment, in the interest of justice.

The next point is that the trial court should have nonsuited on the ground that the alleged contract sued upon was not enforceable in view of section 4, part 1 of the Sale of Goods act (Comp. Stat., p. 4648), providing that a contract (not in writing) to sell goods of the value of $500 or upwards is not enforceable unless the buyer accepted and actually receive part of the goods or give something in earnest to bind the bargain.

We think the trial judge properly refused to nonsuit because we believe the evidence tended to show acceptance and actual receipt of the stoves by the buyer.

The last contention is that the judgment should be reversed because of the refusal of the judge to direct a verdict in favor of the plaintiff for $4.2 only on the ground that the defendant had refused to accept the stoves, although they were shipped to him, with the exception of one, which was of the value specified. What we have already said with relation to the proofs relating to acceptance is the answer to this point.

The judgment will be affirmed, with costs.


text:
    JAMES BOWEN, APPELLANT-RESPONDENT, v. THE STATE HIGHWAY COMMISSION OF THE STATE OF NEW JERSEY, RESPONDENT-APPELLANT.
    Decided December 16, 1926.
    Eminent Domain — Appeal From Award — Appellant Relied on Five Grounds — None of the Grounds Disclosed Testimony to Have Been Illegally Admitted — Held, That This Method of Presenting Issues of Law Arising Out of Admission or Rejection of Evidence is Contrary to Well-Settled Rules.
    On appeal from the Hudson County Circuit Court.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    Por the appellant, state highway commission, Mark A. Sullivan.

    Por the respondent, James Bowen, Edward P. -Stout.

   Per Curiam.

This is an appeal from a judgment entered on the verdict of a jury in the Hudson County Circuit Court, in favor of James Bowen against the state highway commission for the sum of $47,000. There was an award made to James Bowen by commissioners in a condemnation proceeding instituted by the state highway commission against the land of the former, and he being dissatisfied with the amount awarded to him by the commission for the taking of his property, appealed to the Hudson County Circuit Court, which appeal, after trial, resulted in the verdict as above stated.

The grounds of appeal relied on by the state highway commission are five in number, and are as follows: 1. The court permitted evidence to be introduced showing the selling prices at different times of property located at or near the corner of Communipaw avenue and Marcy avenue, which property is not substantially similar to the property under consideration. 2. The court permitted evidence to be introduced showing the selling price at different times of property located at or near the corner of Communipaw avenue and Mallory avenue, which property is not substantially similar to the property under condemnation. 3. The court permitted in evidence a lease of property at or near the corner of Communipaw avenue and Marcy avenue and a computation of the value of the property mentioned in such lease, based upon the rentals reserved therein, which property is not substantially similar to the property under condemnation. 4. The court permitted in evidence a comparison of the increase in values between property at the corner of Communipaw avenue and Marcy avenue and property at the corner of Communipaw avenue and Mallory avenue, neither of which properties is substantially similar to the property under condemnation. 5. The court refused to admit in evidence the selling price of property located at the southwest corner of Lincoln Highway and Hackensack river, which property is substantially similar to the property under condemnation.

It is manifest from a reading of these grounds of appeal that in none of them is the error relied on for a reversal of the judgment exhibited to this court, except in a most general and vague manner. There is no allegation in any of the first four grounds of appeal that the testimony introduced was against the objection of the defendant or that it was erroneously admitted. The fifth ground of appeal does not allege that the court erroneously refused to admit the evidence offered by the appellant. These objections might readily be ignored, but for the fact that all of them as set forth are conclusions of law based upon disclosed alleged specific rulings of the trial court on the admission and rejection of testimony. None of the four grounds discloses the testimony alleged to have been illegally admitted, and the fifth does not set forth the testimony illegally rejected. This method of presenting issues of law arising out of the admission or rejection of evidence is contrary to the well-settled legal rule on the subject.

In Kargman v. Carlo, 85 N. J. L. 632, the Court of Errors and Appeals (at p. 636), speaking through Mr. Justice Trenchard, says: “It is true that by section 35 of the Practice act (Pamph. L. 1913, p. 383) ‘bills of exception and writs of error in civil cases is abolished.’ That abolished the old time bills of exceptions which consisted either in writing out the exception and presenting it to the judge to be signed and sealed, or in handing up a stenographic transcript with the stenographic exceptions noted and having that actually signed and sealed. The objection or exception which must now be noted is no longer ‘prayed’ by counsel. It is not addressed to the discretion of the judge. It is made and should be noted as a matter of right, and the grounds of objection or exception should, be stated as heretofore.” And to the same effect is Miller v. Delaware River Transportation Co., decided at the same term by the Court of Errors and Appeals (at p. 700). The grounds of objection or exception should be stated as heretofore. In Donnelly v. State, 36 N. J. L. 463, Chief Justice Green, speaking for the Supreme Court (at p. 513), says: “So, in the assignment, the grounds of error should be specified. The adverse counsel are entitled to know what the exception is, and the court are not required to search for errors not definitely pointed out.” To the same effect is State v. MacQueen et al., 69 Id. 476, 478; State v. Hendrickson, 95 Id. 10, 13. Erom these cases and. the long-existing practice which has continued down to the present time it is essential that the ground of appeal should state the name of the witness, the question or answer objected to and ruled upon by the trial judge. And, so, in the case of testimony rejected by the court, such testimony rejected should be set forth in the ground of appeal. The same rule, as applied to exceptions to the judge’s charge, in that the .portion of the charge excepted to must be set forth in the ground of appeal, and in a case of a refusal to charge a request of counsel, the same course must be followed as to such request, applies with equal force to the admission or rejection of testimony.

Eor the defects pointed out in the grounds of appeal the appeal is dismissed, with costs.


text:
    FRANK BENSON, PLAINTIFF, v. EDWARD BRADY, DEFENDANT.
    Decided December 16, 1926.
    Negligence — Injury to Motor Vehicle and Driver Through Collision Caused by the Driver of Another Car — Plaintiff’s Car Properly Standing Alongside of Highway Undergoing Minor Repairs — Sufficient Evidence That the Colliding Car was That of Defendant to Justify Letting Case go to Jury— Nonsuit Properly Refused and Rule to Show Cause Dismissed.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kaliscii and Campbell.
    Eor the rule, Elmer .V. Jlomine.

      Contra, King & Vogt.

   Per Curiam.

A verdict of $1,000 was awarded at the Morris Circuit in favor of the plaintiff and against the defendant in an action brought by the former against the latter for damages sustained by him, by reason of the negligent operation of an automobile, by the defendant, while driving the same along Kenvil road, in Dover, Morris county, in that the plaintiff was hit by the said automobile while lawfully on the road, and under the following circumstances: On the night of August 13th, 1924, the plaintiff, according to the testimony, was driving a motor car along Kenvil road, when he noticed that the car was not working properly, so he stopped it on the right-hand side of the road, off the amasite pavement, which is eighteen feet in width, and the left wheel of the car rested on the dirt shoulder of the road which is about five feet in width. The car was lit. The plaintiff then took from the mechinism of the car the spark plug, cleaned and replaced it and was ready to put the hood down when an automobile coming from the rear, on the right-hand side of the road, going in a zigzag fashion, brushed against the car and struck the plaintiff, hurling him a distance of twenty or twenty-five feet where he landed in a ditch.

A rule to show cause was allowed to the defendant why the verdict should not be set aside. Although eleven reasons are presented to that end, under the rule, defendant’s counsel, in his brief, argues and relies on the following: 1. Eefusal to grant defendant’s motion for a nonsuit. 2. “The trial court admitted illegal evidence.” 3. “The court committed error in its charge.” 4. The verdict was contrary to and against the weight of the evidence.

Seasons two and three are not properly subject to consideration, since they are not in compliance with rule 125 of the Supreme Court, which rule requires “the party entering the rule shall write down the reasons upon which he rests his motion to set aside the verdict ‘with such particularity as is now required in stating grounds of appeal,”’ and cause the same to be filed and a copy thereof to be served on the opposite party within thirty days after the entry of the said rule, &c. It is therefore apparent that reason two, which states that the trial court admitted illegal evidence, is too vague and does not comply with the rule. The alleged illegal testimony objected to — question and answer should be embodied in the reason. This is the settled legal rule relating to the stating of a ground of appeal in a case upon appeal. Donnelly v. State, 26 N. J. L. (at p. 512); State v. MacQueen et al., 69 Id. 476, 478; State v. Hendrickson, 95 Id. 10, 13. In Donnelly v. State, Chief Justice Green (at p. 512), in dealing with this question, says: “So, in the assignment, the grounds of error should be specified. The adverse counsel are entitled to know what the exception is, and the court are not required to search for errors not difinitely pointed out.” It may be well to state in this connection that in reading the testimony for the purpose of passing on the question whether or not the verdict was contrary to and against the weight of the evidence, we find that the testimony objected to by defendant’s counsel as illegally admitted was stricken out by the court. What has been said on this subject relates with equal force to the reasons argued in defendant’s brief, viz., “the court committed error in its charge.” Wherein the court committed error in the charge is not pointed out in the reason.

There was a motion for a nonsuit and a motion for a direction of a verdict, counsel of defendant being content to rest upon the alleged insufficiency of the testimony adduced by the plaintiff to establish liability on part of the defendant to respond in damages to the plaintiff for the latter’s injuries. Both of these motions were denied. The defendant was in court and did not take the stand in his own defense. Of course, this circumstance would be inconsequential if it had appeared that there was no factual question presented by the testimony as to whether or not it was the defendant’s car which injured the plaintiff. But we think there was proof which tended'to establish that it was the defendant’s car which produced the mischief. By this answer the defendant admitted that he was the owner of an automobile, registration number 275110.

Christy, a witness for the plaintiff, testified that he caught sight of the first three numbers of the car that hit the plaintiff and that these numbers were 275. Kondrup, a trooper, called at the defendant’s resident the day following the accident and asked him if he had been out the night before with his car, and he replied that he had not taken his car out. Thereupon, the witness requested the defendant if he would permit him, the witness, to look at his, the defendant’s, car, and having received his assent, they both went out to look at the car and upon viewing it the defendant said, “I will say somebody has been out with the car,” but that he did not know who it could have been. The witness further testified that the car looked as if it had been run several miles on a flat tire; that upon calling defendant’s attention to a break on the right rear mudguard, the defendant at first said that it was an old mark and finally admitted it was a fresh mark. There was also the circumstance that the fresh mark was on that side of the defendant’s car where it would naturally be as a result of the impact with the plaintiff’s car in passing it.

The posture of the plaintiff’s case at the time he rested was that there was proof of the facts which gave rise to. a permissible inference that it was the defendant’s car which did the mischief to the plaintiff, and, hence, in this situation, the trial judge properly submitted the case to the jury for its determination. The nonsuit was properly refused. The motion for a direction of a verdict was also properly denied. As has already been pointed out, the defendant did not avail himself of the opportunity to be sworn and to deny that he was the owner of the car that caused the plaintiff’s injury, or that he was operating it at the time, or that it was taken with his consent by another and driven for his benefit or on his business, and, therefore, the status of the case was the same as at the time when the motion for a nonsuit was made.

The factual question whether the defendant was the owner of the offending car still remained to be solved by the jury, and as has been said there was sufficient proof to warrant the submission of the question of the ownership of the car that struck the plaintiff, to the jury.

As to the fourth reason urged, that the verdict was contrary to the charge of the court and against the weight of the evidence, we find this contention to be without merit.

The rule to show cause is discharged, with costs.


text:
    MAX ECKERT AND MARGARET ECKERT, PLAINTIFFS-RESPONDENTS, v. MORRIS DEUTSCH, DEFENDANT-APPELLANT.
    Decided December 17, 1926.
    Assault and Battery and Attempted Rape — Judgment for Both Plaintiffs, Husband and Wife — Fair Reading of the Testimony and a Consideration of the Legal Principles Applicable Thereto Which Were Properly Charged, Make it Clear That the Principles Were Through Mistake or Prejudice on the Part of the Jury, Overlooked or Ignored by it — Verdict was Against Clear Weight of Evidence.
    On defend ant’s rule to show cause.
    Before Gummebe, Chiee Justice, and Justices Kalisch and Campbell.
    For the rule, Robert Newton Crane (Alfred A. Stein, of counsel).

      Contra, Emil J. Hoos.

   Per Curiam.

In an action by the plaintiffs, husband and wife, against the defendant for an outrageous assault and battery of, and attempted rape alleged to have been committed by the defendant upon, the wife of the co-plaintiff, the complaint filed by them in the cause contains two counts, the first of which, after alleging the injuries suffered by the wife, concludes: “Plaintiff Margaret Eckert demands as damages upon the first count the sum of fifteen thousand dollars.” There is no claim made by the husband for any damages. The second count is couched in the following terms: “Statement of the first paragraph of the first count is made part of this count and here repeated.” The paragraph referred to reads: “Plaintiffs were lawfully joined in the bonds of matrimony on the 25th of October, 1910. 2. During the months of November and Deeernber, 1924, defendant, by use of arts, flattery, affectionate conduct and deception, has and did design to alienate, impair and destroy the affections of Margaret Eckert for her husband. 3. By reason of defendant’s unlawful conduct toward the said Margaret Eckert, the defendant has robbed plaintiff Max Eckert of the affection of his wife, causing the said Max Eckert great suffering, humiliation and distress of mind. Plaintiff Max Eckert demands as damages upon the second count the sum of fifteen thousand dollars.”

In his answer to the charges made in the complaint against him, the defendant denied them in toto> and set up by way of counter-claim that the plaintiffs had conspired and combined together to falsely charge the defendant with an outrageous assault and battery and attempted rape upon the female plaintiff, and caused him to be arrested and incarcerated in the Union county jail, in default of his inability to furnish bail in the sum of $5,000 to answer the complainants’ action, and maliciously caused the proceedings taken by them to be published in the “Plainfield Courier Fews,” whereby his good reputation which he enjoyed among his fellow-citizens, friends and business acquaintances for chastity, morality and honest living was greatly damaged, &c.

The case was tried at the Union Circuit and resulted in a verdict for the female plaintiff for the sum of $15,000, and for the husband in the sum of $7,500.

A rule to show cause was allowed by the trial judge wiry the verdicts should not be set aside. Of the nine reasons presented on behalf of the defendant for setting aside the verdict, we have considered the reasons assigned that the verdict is contrary to the weight of the evidence and contrary to the instructions of the court. A fair reading of the testimony in the cause and a consideration of the legal principles applicable thereto and which were property charged by the court to be applied by the jury to the facts, as disclosed by the evidence, makes it clear to us that the legal principles were through mistake or prejudice on part of the jury overlooked or ignored bv it. Furthermore, we think that the verdict was against the clear weight of the evidence.

The rule to show cause is made absolute.


text:
    HILDA D. WALLER, PLAINTIFF-RESPONDENT, v. STERNER COAL AND LUMBER COMPANY, BODY CORPORATE, DEFENDANT-APPELLANT.
    Argued May 5, 1926 —
    Decided December 15, 1926.
    Mortgages — Mechanics’ Lien — Plaintiff Secured Constructive Loan — Contractor, With President of Defendant, a Material-man, Applied to Mortgagee for Money Due on Loan, to be Paid to Defendant, Presenting Necessary Releases and Affidavits of Contractor Relating to Absence of Other Lien Claims — After Payment of Money to Defendant it Appeared That He Had a Claim for Only a New Dollars of the Amount Paid, but That Another Builder Had a Valid Claim Not Released — Judgment for Plaintiff Sustained — No Error in Charge, in Refusal to Nonsuit.
    On appeal from the Monmouth County Court of Common Pleas.
    Before Gummeee, Chtee Justice, and Justices Tbenchabd and Mintuen.
    Por the appellant, Harry R. Cooper.

    For the respondent. Durani, Ivins £• Carton.

   Per Curiam.

The plaintiff owned land in Neptune City. She made a contract with one Gough for the building of a house thereon. To provide for payment therefor the plaintiff procured a mortgage of $5,400 through the Neptune Mutual Building and Loan Association. The money procured was what is known as a construction loan, and was to he disbursed by the association, depending upon the state of completion of the building, upon the furnishing of releases, in order that the contractor could provide for the payment of labor and materials furnished in the building.

Gough was also erecting, as contractor, certain other buildings on which were like mortgages held by such building association, and also erecting' other buildings on which no loans had been granted by such association.

Some time prior to October 31st, 1923, Gough, with one Sterner, president of the defendant company, came to the building association for some moneys under the $5,^00 mortgage on the Waller contract, and Campbell, secretary of the association, told Cough to procure releases on the Waller job and on the other jobs on which loans had been made by the association before payments could be made.

On October 31st, 1923, Gough had so far completed the construction of the Waller house that he was entitled to approximately $2,500 under the construction loan being made by the association, out of which he was supposed to pay materialmen and laborers. On that day Gough and Sterner appeared at the association, and according to the testimony of Campbell, Gough, in the presence of Sterner, directed Campbell to draw two checks, one for $1,817.80 from the Waller account, and the sum of $1,239.53 from the William and Ella O’Brien account, another construction loan being made by the association, and to pay the total these two checks to the defendant; but Sterner and Gough both denied that any mention was made of the accounts from which these payments would be made to Sterner. Sterner; at the time he came to the association for the money, signed a mechanics’ lien release on the Waller job, and Gough handed this release and two or three others on other contracts to Campbell. At the time this release was handed to Campbell, there was an affidavit on same signed by Gough certifying that there were no'materialmen or laborers entitled to any moneys on the Waller job other than those shown on the release. At that time, or a little later, Campbell paid to Sterner the two checks of $1,817.80 and $1,239.53. Later, Campbell learned that the Perrine & Buckelew Lumber Company had furnished materials on the Waller job for more than $1,500, and that that amount was owing to them. Perrine & Buckelew’s name did not appear on the release. Campbell paid Perrine & Buckelew a balance oí $636 then remaining in the Waller loan account, and that firm later filed a mechanics’ lien claim against the premises of the plaintiff for $906. Campbell also learned, after the payment of the check of $1,817.80 to Sterner, that the materials furnished by the defendant on the Waller job only amounted to $32.55, which sum was admitted at the trial by Sterner to be correct.

This action was brought i» recover the sum of $1,817.80 so paid to the defendant under the Waller mortgage, the plaintiff alleging fraud. At the conclusion of the plaintiff’s case, the defendant moved for a nonsuit and the plaintiff moved for an amendment to her complaint by adding an additional count alleging money had and received. Plaintiff’s request was granted and defendant’s motion for a nonsuit was denied. The jury found for the plaintiff in the sum of $1,785.25.

The first point argued is that the judgment is contrary to law, and the argument, as we see it, is that the amount of the recovery is excessive. But we find no objection or exceptions at the trial upon which such argument can be predicated. This is not a rule to show cause. It is an appeal.

We think that there was no error as claimed under point two of defendant’s brief.

Under this point several grounds of appeal are argued, the first one being that the court charged the jury as follows:

“Whereupon on examining his record and finding that the sum of $1,817.80 remained in the Waller account, he drew his cheek for that amount to the defendant company.”

We think that charge was justified.

In the fourth ground of appeal complaint is made of the court’s charge as follows:

“It makes no claim that Mrs. Waller, or the contractor, Gough, owed it any such sum as the amount of the check in question.”

This, when considered in the light of its context, we think was not prejudicial.

Under ground twenty, the defendant complains of the statement of the court on the motion for a nonsuit, that the release was a misrepresentation. But that statement of the court was immediately withdrawn, as the record shows.

Under ground twenty-four, the defendant claims error because of the question the trial court asked of the witness Gough as follows: Q. “Why didn’t you tell him to charge to the Waller job $32 ?”

We think that was not improper.

We incline to think that the evidence admitted, of which complaint is made under points three and four, was competent, but whether so or not, it was not prejudicial.

We find no error in the action of the court in refusing the motion to nonsuit and in allowing an amendment of the complaint. The motion to nonsuit was urged upon the ground that the action was based upon fraud, of which there was no proof. The judge thereupon allowed plaintiff’s motion to add a count to the complaint, alleging money had and received, and denied the motion to nonsuit. We think both such actions were right and were not prejudicial to the defendant.

We think there was no prejudicial error in the comment of the court on defendant’s objection to the ruling of the court on the amendment of the pleading.

We think there was no error in the refusal of the court to charge defendant’s requests. The case was presented to the jury by the trial judge, not upon the theory of fraud, but upon the theory of money had and received, and defendant seems to have admitted at the trial that the requests as drafted had no application in such case.

Binding no prejudicial error presented in this record, the judgment will be affirmed, with costs.


author: Smith, J.

text:
    Essex County Circuit Court.
    UBALDO MASUCCI v. ROSARIO TIERNO.
    Decided December 9, 1926.
    Capias ad Respondendum — Motion to Discharge on Ground That Affidavit is Entitled in Cause, and That There is no Proof Therein to Show That Defendant is Non-resident, or That He Intends to Depart the State — Intended Action is For Mayhem — Held, That the Title was Mere Surplusage, That the Affidavit Showed That the Suit was About to be Commenced; Held, Also, That Statute Provides Exceptions Where Capias May be Issued in Actions, and Mayhem is Included Among Them — Motion Denied.
    On motion to discharge order to hold defendant to bail under capias ad respondendum.

    Eor the defendant, Donohue & O'Brien.

    For the plaintiff, Pasqualino O. Gorbo.

   Smith, J.

The defendant was arrested upon an order based on affidavits showing mayhem, and application is made to dismiss the order to hold to bail and to discharge the bail on the ground that ,the affidavit is entitled in the cause, and that there is no proof in the affidavit to show that the defendant is a non-resident or that he intends to depart the state, and that there is nothing in the order finding any such fact.

I am not satisfied that the order should be discharged because the affidavits and order are entitled in the cause, because the parties are fully stated in the affidavits and in the order, and reference is made that a suit is about to be started by the proposed plaintiff against the proposed defendant, and, therefore, the caption may be discarded as surplusage. In fact, it is a mere title and not a title in a cause, as no reference is made to any court on the face of the order or affidavits.

The action, however, is one for mayhem, and the court is of the opinion that no special cause for holding the defendant to bail must be shown where the action is of such a character.

Section 56 of the Practice act provides for the exceptions where capias may be issued in actions. They are — (a) seduction, outrageous battery and mayhem; or (b) recovery of damages for misconduct or negligence of a public official; or (c) proof of special cause as heretofore for holding the defendant to bail.

It will be noted that the plain construction of this section is that special cause for holding the defendant to bail is not required where the charge is one of those stated in paragraph (a) supra. This is so held in Wert v. Strause, 38 N. J. L. 184 (at p. 188), where the action was by a father for seduction of his daughter. The exception is also recognized in Hufty v. Wilson, 78 Id. 241 (at p. 242), and Logan v. Lawshe, 62 Id. 567.

I might say that I have examined the case of Vitalano v. Roffo, decided by our Supreme Court November 2d, 1925, 3 N. J. Mis. R. 1130, where the capias was set aside on the ground that the papers in the case were entitled in the cause, and also on the ground that the order did not adjudicate that the defendant was a non-resident or intended to depart the state to avoid answering the judgment. The court, however, refers to Hufty v. Wilson, supra, for its authority, which recognizes Wert v. Strause, supra, and under the circumstances I feel it my duty to also deny the motion on this latter ground.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PETER PIZZIRUSSO, PETITIONER, v. UNION BUILDING COMPANY, RESPONDENT.
    Hernia — Held, Not Compensable — Petition Dismissed.
    On order dismissing judgment.
   This cause came on for hearing on Friday, September 24th, 1926, before the department of labor, at Newark.

The petitioner appeared with his attorney, and upon opening the cause to the court it appeared that the petitioner suffered a hernia on or about January 15th, 1926, while he was engaged as a fireman and watchman at the building of the defendant, at Newark, New Jersey.

It further appearing that the said hernia is not compensable and that this department is without jurisdiction to award compensation to the petitioner herein.

It is, on this 24th day of September, 1926, on motion of Frank G-. Turner, attorney of the respondent, ordered that the petition herein be and the same is hereby dismissed.

Harry J. Goas, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN RECKER, PETITIONER, v. GRASSELLI CHEMICAL COMPANY RESPONDENT.
    Injury to Foot Through Falling Into an Open Ditch Containing Hot Water — Temporary and Permanent Disability.
    On determination and finding of facts.
   ❖ ❖ ❖ ❖ ❖

1. That the petitioner met with an accident arising ont of and in the course of his employment by the respondent on the 5th day of December, 1925, when he fell into an open ditch containing hot water and burned both feet at the plant of the respondent.

2. That the petitioner received the sum of $208.88 for temporary disability at the compensation rate of $17 per week from the date of accident.

3. That the petitioner is entitled to permanent disability of fifteen per cent, of loss of function of the left foot amounting to eighteen and three-quarter weeks at the same compensation rate. The said compensation to be paid following the last payment of temporary disability compensation.

4. The attorney for petitioner is entitled to a counsel fee of $25, payable by the petitioner.

Charles E. Corbin, Deputy Commissioner.