text:
    THE STATE, DEFENDANT IN ERROR, v. CHRISTOPHER COLUMBUS, PLAINTIFF IN ERROR.
    Submitted January 30, 1931
    Decided May 5, 1931.
    Before Justices Parker, Campbell and Bodine.
    Por the state, J. Vincent Barnitt, prosecutor of the pleas.
    Por the plaintiff in error, Benjamin L. Stein.

   Per Curiam.

Plaintiff in error was convicted under an indictment charging incest with one of his two daughters, and also under another indictment charging incest with the other daughter. The evidence tended to show that the crimes were under threats and display of revolvers and a razor. The case is before us on strict bill of exceptions and also on certificate of the proceedings at the trial, and is submitted on briefs, the points being numbered to correspond with the assignments and specifications argued, the others being treated as abandoned. We take them up in the order in which they are presented.

I. Allowance of a question to one of the daughters, “is this occasion of January 18th the only time that your lather has had connection with you?” The objection was (a) “that we are not now concerned with anything else;” and (b) that the rule laid down in State v. Snover, 65 N. J. L. 289; State v. Faulks, 97 Id. 408, and a number of other cases is not applicable as between father and daughter. Those objections are now abandoned, and the argument made here is that the question was too broad as calling for subsequent as well as prior intercourse with the witness. The first answer is that the point was not made below and so cannot be made here; the second, the answer was confined to prior occurrences and hence the error, if any, was harmless.

Under this point it is further argued that the court omitted to instruct the jury that such evidence was merely corroborative of the specific charge in the indictment. But there was no request so to charge, and without such request, the failure to charge is not error.

3. Overruling a question asked of the same witness on cross-examination. We think this was within the discretion of the trial court, and that in any event no manifest wrong or injury contemplated, by section 136 of the Criminal Procedure act appears.

4, 5. Question on cross about hearing her father and mother quarreling were overruled. Wo think they were immaterial.

6. Allowance of a question asked of the other daughter by the prosecutor, “prior to this date, did you and your father have intercourse?” This was objected to as immaterial. As already noted, it was corroborative, and therefore material.

II. Permitting a physician who had examined the daughters to testify that they had been penetrated. Objected to as too remote, the examination having been about five months after the dates charged in the indictments. We agree that the evidence might well have been regarded by the jury as of little value, but the fact was at least evidential and to a certain extent corroborative. It was not error to receive it.

12. Refusal to direct acquittal when the state rested. The motion was rested upon two grounds: first, lack of proof of the relation of father and daughter, not here argued; and secondly, that the evidence, if it showed anything, showed rape, and that there could therefore be no conviction of incest. We think that the gist of the crime of incest is sexual intercourse within the prohibited degrees, and that while a father may commit rape upon his daughter, the crime is incest as well, and indictment for either will lie, particularly under section 46 of the Crimes act.

16 and 17. That the verdict is against the weight of evidence, and is the result of passion and prejudice. We are unable to agree that it is either.

18, 19 and 20. Refusal to arrest judgment on the grounds that messages were sent from the jury without consent of the court or knowledge of the defendant; that the sworn officers attending the jury conversed with them on matters not permitted by their oath; and that said officers did receive and transmit messages from jurors without permission of the court.

It may be that the conduct of the officers, and perhaps of the jury, was of such character that the court on proper motion should have set aside the verdict and ordered a new trial. There was a motion for new trial, but it was not argued on these grounds; and on a motion in arrest of judgment the court will consider only matters apparent on the face of the record. 1 Chit. Crim,. L. 661; 1 Arch. Cr. Pr. & Pl. 671; Powe v. State, 48 N. J. L. 34; State v. Hop, 90 Id. 390; State v. Lehigh Valley Railroad Co., 94 Id. 171.

The judgment will be affirmed.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    JACK LEVIN, PROSECUTOR, v. CITY OF ASBURY PARK ET AL., DEFENDANTS.
    Submitted January 30, 1931
    Decided May 5, 1931.
    Before Justices Pabkee, Campbell and Bodine.
    Eor the prosecutor, Benjamin M. Weinberg.

    Eor the defendants, James D. Carton.

   Pee Cueiam.

The writ is to review a conviction of the prosecutor in the recorder’s court, of violating an ordinance relating to itinerant venders, by doing business without a license. At the beginning of 1930 the license fee was $200 per month, and on March 13th Rose Levin, wife of the prosecutor, took out a license for a month and paid that fee. This was renewed on April 13th to expire May 5th, and a proportionate fee of $153.33 paid. On May 12th another license for a month, expiring June 12th, was issued, and a fee of $200 paid. On May 20th the ordinance was amended by raising the fee to $500 a month, and on June 11th, the day before the license of May 12th expired, the city clerk notified Mrs. Levin to pay the $500 fee. This was not done, no renewal was issued, and on June 13th complaint was made against Jack Levin, who, after a plea of not guilty aud an orderly trial at which he offered no evidence, was convicted and sentenced to serve thirty days in the county jail, but released in custody of his counsel to facilitate a review of the conviction.

Prosecutor urges that the conviction is unlawful both on the law and on the facts; on the law, because (a) it is in conflict with the general act for the licensing and regulating of itinerant venders (Pamph. L. 1921, p. 478); (b) because it is in conflict with Article XV of the Municipalities act (Pamph. L. 1917, p. 358, et seq., as amended by Pamph. L. 1929, pp. 406, 407); (c) the fee of $500 is unreasonable and excessive; (d) the fee was imposed for revenue, and the penalty is not in conformity with that purpose; -(e) the ordinance leaves the penalty to the discretion of the trial court; (f) the penalty is wholly corporal in its character {i. e., imprisonment only). These points will be considered before taking up the facts.

(a) The ordinance is not in conflict with the act of 1921 because in 1927 {Pamph. L., p. 521) the legislature repeated the authority of licensing conferred by the Municipalities act, stating that its object was not to repeal the act of 1921 but to confer “additional powers upon the municipality.” We concur in the view of counsel for the city that the effect of this was to leave the act of 1921 in force where the municipality had not adopted an ordinance, but to permit it to frame its own regulations on the subject.

(b) We are unable to see that there is any repugnancy between the ordinance and the Municipalities act.

(c) As to the amount of license fee, we cannot say that it is unreasonable or excessive in view of the peculiar and temporary character of the business involved.

As to (d) it is fair to say that a high license fee up to the point of being prohibitive, may reasonably be regarded as a revenue producer.

(e) The penalty is expressly authorized by the Municipalities act. Pamph. L. 1917, p. 347.

As to the facts: it is first urged that prosecutor was not an itinerant vender at all. The language of the act of 1921, supra, may be regarded as containing a statutory definition of the term. The important words are: “who engage in a temporary or transient merchandising business.” The evidence seems clearly to show that prosecutor was within the scope of this definition. He bought a bankrupt stock and undertook to dispose of it in a few days by the usual placard and hand bill methods. Treating him and his wife as in effect one person—of which more presently—the facts show that “Mr. E. Levin” took out an ordinary license on March 13th, and Mrs. E'ose Levin an itinerant license for a month on the same day. This, as already noted, was renewed twice, and such renewals may fairly be taken as an admission that the business had no permanent character. The fact that the second renewal was for a fraction of a month (until May 5th) gives force to this view; and the license of May 12th was again for a month only. If there had been any animus menendi why did this couple continue to pay a fee many times that of a permanent shopkeeper? The evidence is clear that they began on the temporary basis, and we find nothing to indicate that that status was changed, and much to indicate that it was not.

As to the point that the business was in fact that of the husband, we have the uncontradicted testimony of his declaration to another party that he was doing business in his wife’s name; and the frequency of that sort of thing as a matter of common knowledge does not impair the credibility of that testimony.

We find no error in law or fact, and the conviction under review is therefore affirmed, with costs.


author: Per Curiam.

text:
    LOUIS J. FRIED & COMPANY, A CORPORATION, RESPONDENT, v. JULIUS GELTZEILER, APPELLANT.
    Submitted January 30, 1931
    Decided May 5, 1931.
    Before Justices Parker, Campbell and Bodine.
    Por the appellant, Lionel P. Kristeller.

    Por the respondent, Koehler & Augenbliclc.

   Per Curiam.

Of the nine grounds of appeal, all but the first two are unavailing. State Highway Commission v. Zyk, 105 N. J. L. 156; State v. Blaine, 104 Id. 325; Chapin v. Kreps, 7 N. J. Adv. R. 1058; 147 Atl. Rep. 398. However, the meritorious question involved is substantially covered by Nos. 1 and 2, which have been duly considered.

The suit was based on a sale by plaintiff; to defendant of two hundred shares of “American Pounders New” for $8,325. There was a written memorandum of the sale signed by plaintiff and “accepted” in writing by defendant over his signature. Defendant paid $500 on account but defaulted on the remainder and plaintiff sold the stock in open market at a loss and sued for the difference. The written paper was offered and received in evidence over the objection “that it is not the contract alleged in the complaint.” This is the first ground of appeal, and appears not to be argued.

The second ground arises ont of the examination of one' Gang, an employe of plaintiff, who testified to delivering to defendant the certificate of stock, and to a conversation with him on that occasion. After the direct and cross-examination were concluded, the court asked: “Q. Did you have any authority to fix the terms of the sale of Fried & Company ?” (objected to by defendant: objection overruled, and exception entered. The witness answered in the negative).

It is now urged that this was error; but as no ground for the objection was stated, it was unavailing. Mooney v. Peck, 49 N. J. L. 232; Semkin v. Hollander, 82 Id. 485.

Notwithstanding the insufficiency of the other grounds of appeal, we have considered the points made in the brief, and find no error in the trial or the charge.

The judgment will be affirmed.


text:
    MORRIS GLASSMAN ET AL., PROSECUTORS, v. ESSEX COUNTY JUVENILE COURT, JOSEPH GLASSMAN ET AL., DEFENDANTS.
    Submitted January 30, 1931
    Decided May 5, 1931.
    Before Justices Parker, Campbell and Bodine.
    For the prosecutors, Harry Levin.

    For the defendants, Benjamin M. Weinberg.

   Per Curiam.

The writ brings up the determination of the Essex County Domestic Relations and Juvenile Court in application by a father to compel three of his sons to contribute to his support, based on section 74 of the revised Poor act. Pamph. L. 1924, p. 252 (at pp. 288, 289). The facts are somewhat complicated, but the following are sufficient for present purposes. The prosecutors are the three sons, and the father is a defendant. His wife whom he married in 1902, sued him for diVorce in 1928 or 1929 on the ground of cruelty and asked alimony for herself and her children. Defendant filed an answer but withdrew it, and the case went to an ex parte reference. The special master reported May 18th, 1929, in favor of a divorce, stated that the sons were working, that the father was epileptic but had worked for years and was still able to do so; and recommended award of alimony at $10 per week but without bond. Pinal decree carrying this alimony was signed on September 14th, 1929. On September 23 d, the father made complaint against the three sons under the Poor act, alleging that he was ill and unable to work. Before this complaint went to a hearing, there was an application in the divorce suit to hold him in contempt for not paying the alimony. As to this, all that is now laid before us is an order advised on October 8th, 1929, denying the contempt application “on good cause shown.” The hearing in the Juvenile Court was begun on October 16th, and concluded December 23d, after an adjournment, and on January 4th, 1930, the Juvenile Court ordered the three sons to pay the father $10 a week. They did so for a time, but at some time in March ceased making payments, and on May 2d there was an application to the Juvenile Court to adjudge them in contempt, followed by a rule to show cause. At this point there is a hiatus in the proceedings so far as the printed case shows, until September 13th, when the writ of certiorari was allowed. However, laches in applying for this writ does not seem to be urged.

The first point made is that the statute does not authorize complaint by an individual, but only by the overseer of the poor. Stark v. Fagan, 90 N. J. L. 187, so decided in 1917, but the statute of 1924, ubi supra, now allows complaint by the party seeking relief, or the court itself on its own initiative.

The second point is that there was no evidence which warranted a finding of the poverty of the petitioner and his inability to work. But this is in flat contradiction of the return, which cannot be impeached or qualified except by an amended return certified by the court below. Gory v. Jackson, 76 N. J. L. 387. There is another branch of this point, which will be considered presently.

The third point is that the defendants did not have their “day in court.” We.are unable to see any substance in this point, and are of opinion that they had full opportunity to present their case, and if they did not take advantage of such opportunity it was not the fault of the court.

The fourth point is that they are privies to the Chancery decree awarding alimony, and that such decree is res adjucticata as to the financial circumstances of the father and his ability to support himself.

We are unable to take this view. In the first place, a decree for alimony is always subject to a modification by the Court of Chancery. In the second place, it is plain from the facts stated above, that that court refused to enforce its own decree on a contempt application, and from this it is fair to presume that the husband and father satisfied the court of his inability to pay. In fact the refusal to act by way of contempt seems to be in itself tantamount to a modification of the decree, even if a temporary one. So we think the Chancery proceedings as exhibited to us, are not a bar to the action of the Juvenile Court.

There is one phase of the case, however, which in our opinion requires us to set aside the judgment below; and that is the apparent lack of any legal evidence of the amounts that the three sons were earning at the time of the hearing and judgment in the Juvenile Court. It was admitted that they were working, but that was all. The report of the special master in the divorce suit was put in evidence apparently ■without objection, but if evidential on the point now under discussion shows no more than that in May, 1929, the oldest son had “an earning capacity” of $20 per week, that the second son was then earning $18, and the third $6 per week. We hardly think the presumption of continuance of a former status is applicable to this situation, but think on the contrary that the petitioning father was under a duty of provin'g what the sons, who he claimed should be ordered to support him, were actually earning at the time.

Eor the reasons just stated, the judgment and order will be set aside, but without costs.


text:
    LILLIAN E. HERBERT v. LOLA M. BOICE ET AL.
    Decided May 7th, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the plaintiff, Lester G. Leonard.

    Eor the defendants, Harold McDermott.

   Per Curiam.

The plaintiff, a school teacher, was injured while driving to the high school at Bradley Beach, where she was employed. The injury was the result of a collision between the car in which she was riding and one driven by the defendant Lola Boice and owned by her co-defendant, the John C. Boice Company. The trial resulted in a verdict in plaintiff’s favor, the jury awarding her $2,500. She applied for and obtained a rule to show cause, claiming that this verdict was grossly inadequate. The defendants also applied for a rule, claiming that the finding of the jury that the accident was the result of any carelessness on the part of the defendant Lola Boice was contrary to the great preponderance of the evidence, and a rule was also allowed to them.

In Miller v. Liva, 8 N. J. Mis. R. 692, this court, in dealing with a situation similar to that in the case now before us, held that “as all of the parties to this litigation concur in the conclusion that the verdict is the result of prejudice on the part of the jury and is not based upon the preponderance of the evidence, we conclude that the proper course is to make both rules absolute and to direct a new trial on all the issues.”

Following the precedent established in the ease cited, both of the rules to show cause which are now before us will be made absolute.


text:
    ALEXANDER BELLICK AND JUSTINE BELLICK v. FRANK MARTZ COACH COMPANY.
    Decided May 7th, 1931.
    Before Gummere, Chief Justice, and Justices Teen-chard and Lloyd.

      Eor the rule, Augustus C. Studer, Jr.

      Contra, Addison P. Bosenhrans.

   Pee Cueiam.

The plaintiff Alexander Bellick, a boy seven years old, was walking along a public road in the county of Warren, following closely after a mowing machine drawn by a team of horses which his father, Justine Bellick, was driving. Prank Diltz, one of the defendants below, was operating a motor truck along this road in the rear of the mowing machine. He turned out to pass it, and as he did so a motor bus belonging to the defendant coach company, which was also traveling along the road in the same direction, and which was attempting to pass Diltz’s truck and the mowing machine, collided with the truck and drove it into the machine, causing it to strike young Bellick, and also to collide with the mowing machine, thereby injuring the father, who was driving it. The present suit was brought to recover compensation for injuries received by each of the plaintiffs and the expense incurred by the father in the treatment of his own injuries and those of his son. The jury found a verdict in favor of each of the plaintiffs and against the coach company, awarding the son $2,000 and the father $5,922.95.' The coach company thereupon applied for and obtained the present rule.

The only ground upon which we are asked to set the verdicts aside is that they are each of them excessive. Our consideration of the testimony relating to the character of the injuries received by the respective plaintiffs and their permanency, and the expenditures of the father in the treatment of those injuries, satisfies us that the awards made by the jury are each of them .reasonable in amount and that they should not be disturbed.

The rule to show cause will be discharged, with costs.


text:
    LENA GREENWALD, APPELLANT, v. ABRAHAM GELLER, RESPONDENT.
    Decided May 7, 1931.
    Before Gummere, Chief Justice, and Justices Teen-chard and Lloyd.
    Eor the appellant, James F. X. O’Brien.

    For the respondent, Edward A. Marlcley.

   Per Curiam.

This is an appeal from a judgment entered upon a verdict directed in favor of the defendant.

Geller was the owner of several stores adjacent to one another, and located on Runyon street, in the city of Newark. Each of these stores had rooms in the rear, the stores, and the rooms being occupied by the respective tenants thereof, and the several buildings each had a separate porch at the rear of the rooms, composed of three steps and a landing, to enable tenants and persons who visited them to get into and out of these rear rooms. The plaintiff was a friend and relative of one Goodman, who was in the possession as tenant of one of the stores and of the rooms at the rear thereof. She came up the steps of the porch at the rear of: his premises for the purpose of entering the room with which it communicated. One of the steps was out of repair, and she caught her foot in a break therein, and, falling, received the injuries for which she now seeks compensation from the defendant.

The lease made by Geller, the defendant and owner of the property, to his tenant, Goodman, had the following provision in it: “The tenant shall take good care of the premises, and shall at his own cost and expense make all repairs, and at the end or other expiration of the term shall deliver up the demised premises in good order or condition, damages by the elements excepted.” The lease also contained a provision that'the landlord or his representative should have the right to enter into and upon the leased premises for the purpose of examining the same and making such repairs or alterations as might be necessary for the safety and preservation thereof. The first of these provisions imposed upon the tenant the absolute obligation of keeping the leasehold property in repair; and, as the porch was for the sole use of parties occupying the leased premises and was not connected with any other of the stores or buildings owned by the defendant, it was, by necessary implication, included in the lease; for, if it was not, then neither the tenant or his invitees would have any right to use it for the purpose of ingress to and egress from the leased premises, and the landlord, at his pleasure, could have it remoyed, even against the protest of the tenant. The other provision contained in the lease, and hereinbefore referred to, is a mere right reserved to the landlord, which he may or may not exercise as he sees fit, and imposes no obligation upon him 'to relieve the tenant from the burden of making repairs to the leased property.

There being no obligation resting upon the defendant to keep the porch in repair, the trial court properly directed a verdict in his favor, and the judgment tinder review will be affirmed, with costs.


text:
    ROBERT L. GORDON, PLAINTIFF, v. HARRY DEWENDER, DEFENDANT.
    Decided May 7, 1931.
    Before Gummere, Chief Justice, and Justices Trenohard and Lloyd.
    Eor the rule, Charles Stoclcdell Gray.

    Contra, Francis A. Gordon.

   Per Curiam.

This suit was brought by the plaintiff to recover compensation for personal injuries and the pecuniary loss resulting from a collision between an automobile driven by the defendant and one in which the plaintiff was riding. The collision occurred on the Lincoln highway between Rahway and New Brunswick, at a point where the highway adjoins the side of the Pennsylvania Railroad Company’s right of way. About the time of the collision one of the railroad company’s trains came along, emitting a considerable amount of smoke and steam, thus obscuring to some extent the highway and persons traveling upon it, and the accident occurred upon that part of the highway thus obscured. The trial of the case resulted in a verdict in favor of the plaintiff, the jury awarding him $6,060. We are asked to set aside this award for two reasons: first, that the verdict of the jury was contrary to the charge of the court in relation to the obligations of the respective drivers; and, secondly, because the verdict is excessive.

In our opinion, the first contention is without merit. Tire instruction which the defendant asserts was disregarded by the jury is as follows: “When the vision of the driver of an automobile is obscured by a temporary obstruction, such as a cloud or a screen of smoke, or the like, then he is under the duty to use still greater care in the operation of his car and bound to'reduce his speed, and to stop his ear, if necessary, until the temporary obstruction has come to an end. This is to be measured by what any ordinarily prudent person would do under similar time, place and circumstances. We are required to use the judgment that an ordinarily prudent person would exercise under a similar emergency, and, if it so happens that there was a different line of conduct that could have been pursued that would not have had the result that was accomplished or effected, still we are not responsible if we have used reasonable judgment, the judgment ordinarily exercised by an ordinarily prudent person.” The argument on the part of the defendant is that the verdict is contrary to the latter part of this instruction. But the whole instruction on this point should be taken together, and, so taken, the finding of the jury was in compliance with it.

As to the contention that the verdict is plainly excessive: our examination of the testimony relating to the character of the plaintiff’s injuries and the pecuniary loss resulting therefrom satisfies us that this contention is well founded. If the plaintiff will consent to a reduction of his verdict to $4,000, he may enter judgment for that amount. Otherwise the rule to show cause will be made absolute.


text:
    DELIA CONDRA, RESPONDENT, v. NEW JERSEY AND STATEN ISLAND FERRY COMPANY, APPELLANT.
    Decided May 7, 1931.
    Before Gummere, Chief Justice, and Justices Trenchabd and Lloyd.
    Eor the appellant, William J. Gain.

    Eor the respondent, Francis A. Gordon.

   Per Curiam.

The plaintiff, a woman sixty-two years old, left her home, in Elizabeth, to visit her daughter, who was living on Staten Island. When she reached the Elizabethport ferry of the defendant corporation, she attempted to get on a ferry boat, which was fastened to the pier. There was a bridge connecting the pier with the boat, which was suspended in such a way that it could be raised and lowered to meet the conditions existing at times of high and low tide. The case of the plaintiff was that, as she walked down this bridge and over the apron connecting it with the ferry boat, her heel caught in the space between the apron and what is called the flop, causing her to trip and fall, thereby sustaining the injuries for which she brought suit. The trial resulted in a verdict in her favor, and the defendant has appealed from the judgment entered upon that verdict.

The first grounds upon which we are asked to reverse the judgment are that the verdict of the jury is excessive and that it is contrary to the weight of the evidence. These are matters which cannot be considered on an appeal to this court; they can only be raised on a rule to show cause why the verdict should not be set aside.

. The next contention is that the plaintiff’s proofs failed to establish facts sufficient to constitute a'cause of action. We find nothing in this contention. The proofs very clearly made the question of the defendant’s liability one to be passed upon by the jury.

Next, it is argued that the plaintiff failed to prove by a fair preponderance of the evidence that she met with the accident at the time'and place described in the complaint. What we have just stated with regard to the first grounds of reversal is dispositive of this point.

Next, it is said that the court committed reversible error in not granting the defendant’s motion for a nonsuit, and also in refusing the motion to direct a verdict in its favor. These motions were based upon 'the contention that there was no proof that the accident was the proximate result of the defendant’s negligence. Our examination of the evidence leads us to the conclusion that the question as to whether or not such negligence existed was one of fact, to be determined by the jury, and not one of law, to 'be determined by the court.

Lastly, it is specified as a ground of appeal that the charge of the court was contrary to law. This does not point out any specific error; but, assuming that it relates to that portion of the charge to which exception was taken, we find it without merit. The only exception asked for on behalf of the defendant was to the instruction of the court that the defendant was obliged to use a high degree'of care for the protection of its passengers. It is enough to say in disposing of this last ground of reversal that there is no suggestion in the argument submitted to us that this instruction was erroneous.

The judgment under review will be affirmed, with costs.


text:
    J. EDWIN ASHBURNE, PLAINTIFF, v. FRED H. WILLIAMS ET AL., DEFENDANTS.
    Decided May 7, 1931.
    Before Gummere, Chief Justice, and Justice Teenuhard.
    Eor the rule, Frank T. Lloyd, Jr.

      Contra, Floyd II. Bradley.

   Per Curiam.

This is an automobile accident case. The plaintiff’s car was being driven by him in an easterly direction along the Crescent Boulevard, in the city of Camden. The defendant Fred Williams, Jr., was operating a car belonging to his father, and was traveling in a westerly direction along said boulevard. These cars collided at a point not far from the Crescent Boulevard bridge over the Delaware river. Each of the parties claimed that the other was responsible for the collision. The jury found that the defendant Williams, Jr., was solely to blame for the collision, and returned a verdict in favor of Ashburne, awarding him $10,000, and thereupon the defendants applied for and obtained the present rule to show cause.

The Crescent Boulevard is an unusually wide highway. The plaintiff was following an automobile which was traveling in front of him, both of these cars being on the proper side of the road. The plaintiff attempted to pass the car in front of him, not crossing 'over the middle line of the road, however, in making the attempt, as it was not necessary to do so in order to get by the other car. As he was in the act of passing, the defendant, Williams, Jr., swung his car over and across the middle line of the highway toward the car of the plaintiff. The latter, not being able to swing to his right without colliding with the car which he was passing, swung to his left, thinking that he might be able to escape a collision with the defendant’s car by doing so. Williams, Jr., however, swung his car still further around, and'ran into the right side of the plaintiff’s car. This was the story told by the latter upon the witness stand, and it was corroborated by the testimony of other witnesses.

The first ground upon which we are asked to make the present rule absolute is that the proofs in the case did not justify the jury in finding that the accident resulted solely from the negligence of the defendant Williams, Jr. In our opinion, the jury was justified in deciding that the collision occurred under the conditions testified to by the plaintiff and his witnesses, and was the result of the negligence of the defendant Williams, Jr. Consequently, we find no merit in this reason for making the rule absolute.

The defendants further contend that the award of $10,000 is excessive. Our examination of the proofs as to the character of the plaintiff’s injuries leads us to the conclusion that this contention is well founded. If the plaintiff will consent to a reduction of the verdict to $7,000, he may enter judgment for that amount. Otherwise the rule to show cause will be made absolute.


text:
    HELMUTH ROBERTS, PLAINTIFF, v. MICHAEL VACCA, DEFENDANT.
    Decided May 7, 1931.
    Before Gummere, Chief Justice, . and Justices Tren■chabd and Lloyd.
    Por the rule, David L. Cole.

    Contra, Aaron L. Simon.

   Pee Cueiam.

The plaintiff brought suit against Michael Vacca, and his ■son, to recover compensation for injuries sustained by him .as the result of a collision with an automobile belonging to the defendant, Michael Vacca, and driven by his son, Louis. The trial resulted in a verdict against the defendant, Michael, the jurj' awarding the plaintiff $20,000. The defense was that at the time of the accident Louis Vacca was not driving the defendant’s car as the latter’s agent or for his benefit, hut solely for Louis’ own pleasure.

This is a second trial of the case. The first trial resulted in a verdict against the father and son, the award being $35,000. A rule to show cause was allowed, and this court reduced the verdict, so far as the son was concerned, to $20,000 and set it aside in tolo as against the father upon the ground that the latter was not responsible for his son’s carelessness. The plaintiff accepted the reduction in favor of the son, and the present trial was had against the father alone.

The uncontradicted testimony submitted at this second trial was that the son, having been authorized by his father to use the car for the purpose of taking three girls, who were in a beauty shop and who lived within a block or two of each other, to their respective homes, went to the beauty shop, got the girls, and then, instead of taking them to their homes, started off on a pleasure ride with them in the opposite direction, and that, after he had driven them on this pleasure ride for a mile or so, and before he had turned around to come back in the direction in which the girls lived, the accident which is the foundation of the present suit happened. We set the original verdict aside as to the father because, as has already been indicated, the great weight of the testimony made it plain that Louis, in taking these girls for a pleasure ride instead of taking them to their homes, was acting contrary to the instructions given to him by his father, and, reaching this conclusion, we held that liability on the part of the father had not been shown. The testimony at the trial now under review is practically the same as that submitted at the original trial, and the fact that a second jury has found the father liable for the negligence of his son is no. reason for allowing injustice to be done.

The rule to show cause will be made absolute.


text:
    MARGARET J. BARTINDALE, ADMINISTRATRIX, PLAINTIFF, v. AETNA INSURANCE COMPANY ET AL., DEFENDANTS.
    Decided May 7, 1931.
    Before Gummere, Chief Justice, and Justices Teen-chard and Lloyd.
    Eor the rule, Arthur T. Vanderbilt.

    Contra, McCarter & English.

   Per Curiam.

This suit was originally instituted by Jack Bartindale, the decedent of the present plaintiff, to recover from certain insurance companies the loss sustained by him from the burning of his residence and of the furniture and chattels stored therein. Decedent’s residence was located in Somerset county. He had bought it for a summer home and had spent a large amount of money in improving the old building, the furnishing of it, &c. The ease has been twice tried. The original trial resulted in a verdict in favor of Bartindale, the jury awarding him $10,000 as the amount of the loss resulting from the destruction of the dwelling house and $5,000 for the destruction of its contents. A rule to show cause why this verdict should not be set aside as inadequate was granted, and upon the return thereof the rule was made absolute and a new trial directed as to damages only. In the meantime, Bartindale having died and his wife having been appointed his administratrix, she was substituted as the plaintiff in the cause. The case came up for a second trial in due course, and the jury awarded a verdict in favor of the plaintiff for $29,250, with interest, for the destruction of the dwelling house, and $9,375, with interest, for the destruction of its contents.

The only question submitted for our consideration on the hearing of the present rule is whether or not these awards are excessive. Our consideration of the testimony sent up with the rule leads us to the conclusion that they are.

If the present plaintiff will consent to a reduction of the verdict, so far as it relates to the destruction of the house, to $18,000, and, so far as it relates to the destruction of its contents, to $7,500, she may enter judgment for those amounts, together with interest thereon from the date of the filing of the claim with the defendant insurance companies. Otherwise the rule to show cause will be made absolute.


text:
    W. W. SNYDER & COMPANY, A CORPORATION, v. JAMES F. MARSHALL ET AL., PARTNERS, ETC.
    Decided May 13, 1931.
    Before Justice Pakicek (at chambers).
    Eor the plaintiff, George R. Beach.

    Por the defendants, McCarter ■& English.

   Memorandum.

The plaintiff corporation, whose business, or at least a part thereof, appears to be stock speculation, sues to recover a balance of margins deposited with defendants, who acted as plaintiff’s brokers. The defense set up on the motion, and (appearing in the pleadings) is that the corporation plaintiff guaranteed the individual account of Snyder, its president, and Jackson, then its secretary, and that losses on those accounts amount to more than the balance claimed by plaintiff. A further defense rests on a similar guarantee of “Ardsley Syndicate,” with which plaintiff or its officers, or both, appear to be connected in some way.

At the argument counsel were advised that the question of prima facie authority to the president and secretary to execute the written guarantees would be regarded as settled for the purposes of this motion, leaving the ultimate disposition of it to a trial. The question reserved was whether for the plaintiff a case of ultra vires was made out, so that the guarantees should be disregarded as without legal validity. On reflection, and after reading the briefs with which counsel have favored me, I do not think that such a case has been made out so clearly as to call for a summary judgment. The powers stated in the plaintiff’s certificate of incorporation are very broad indeed; the good faith of defendants in relying on the guarantee is not impugned. It is said that on their face they should have been rejected by defendants. But this is not at all clear. The result must be a denial of the motion to strike out the answer, and a relegation of the parties to a trial in ordinary course.


author: Brown, J.

text:
    Hudson County Circuit Court.
    BRONISLAW SZALKOWSKI, PLAINTIFF, v. C. S. OSBORNE & COMPANY, DEFENDANT.
    Eor the plaintiff, Elias G. Zwillman.

    Por the defendant, Kellogg & Chance.

   Brown, J.

By the defendant’s answer there is presented for determination the objection that the complaint does not state a cause of action. The plaintiff contends to the contrary and also claims that the motion is one to strike out the complaint and is made out of time as a reply has been filed.

If the motion was of the class stated by the plaintiff his contention would be well founded. The question presented for determination is not a motion to strike out the complaint, which under Rule 30 of the Supreme Court should be made before an answering pleading is filed but an objection in point of law contained in defendant’s answer which under Rule 40 of the Supreme Court can be heard at any time before trial. Rule 40 of the Supreme Court allows objections in point of law to be raised in answering pleadings and provides for a determination of the point thus raised “on motion of either party * * * before trial.” Lehigh Valley Railroad v. United Lead Co., 102 N. J. L. 545; Wright v. Kroyden Co., 9 N. J. Mis. R. 287; Great American Indemnity Co. v. Gronowicz, 142 Atl. Rep. 897.

The complaint, objected to by the defendant, alleges generally that the plaintiff was hired by the defendant to grind tools with an emery wheel in the factory of the defendant. While thus employed, over a long period of time, particles of steel dust constantly surcharged and permeated the atmosphere of the building in which the plaintiff was employed which the plaintiff was obliged to inhale resulting in a lung disease to him. It is alleged that the disease contracted was due to the negligence of the defendant in not using proper safeguards to protect its employes from breathing the impure air. The defendant objects that a cause of action is not stated in the complaint for the reason that the plaintiff and defendant are bound by the provisions of the Workmen’s Compensation act and the amendments thereof and its supplements arguing that the word “compensation” used throughout the legislative acts to which reference is made, when considered in connection with the Workmen’s Compensation amendment of 1924 and the supplement of 1926, enlarge the compensable cases to include the occupational diseases therein mentioned; that the legislature intended to compensate only the accidents and occupational diseases described in those laws and excluded all other occupational disease as not being compensable under the act, and also precluded a person from instituting an action at law to recover damages for an occupational disease not described in the law. The defendant’s contention amounts to this; the plaintiff, though bound by the Workmen’s Compensation act, is not entitled to compensation under that act and is barred from bringing a suit at law to recover for his occupational disease. The defendant’s contention is novel and for a better understanding of the question a reference to the legislation in question is necessary.

The parties agree that the hiring of the plaintiff is controlled by section 2 of the Workmen’s Compensation act (.Pamph. L. 1911, ch. 95), and that he is not entitled to •compensation as his disease is not an occupational disease as described under that act.

Section 1 of the Workmen’s Compensation act provides •compensation for an injury caused to an employe by “accident.” Section 2 provides an inexpensive method of obtaining compensation and that the employer and employe are bound by the provisions of the act unless notice is given to-the contrary. The distinction between those sections of the act are discussed in Sexton v. Newark District Tel. Co., 84 N. J. L. 94; affirmed, 86 Id. 701. Both sections of the-act as originally enacted provided compensation for “personal injury to an employe by accident.” This act did not include compensation for any occupational disease. Where-there is no specific time or occasion that can be fixed upon as the time when the alleged accident happened, there is no-injury by accident within the meaning of the act. Liondale Bleach Works v. Riker, 85 Id. 426. Compensation may be-awarded for resulting conditions where you can put your finger on the accident from which they result; but the ground, of the action fixed by the statute is the injury by accident,, not the results of an indefinite thing which may not be an accident. The disease from which the plaintiff alleges he-suffers was not due to an accident and therefore is not compensable and the plaintiff; notwithstanding, the provisions-of the original Workmen’s Compensation act would have the right to bring an action at law to recover for his occupational disease. In Smith, v. International High Speed Steel Co., 98 Id. 574, it was held that a disease, similar to the one described in the complaint, is not within the Compensation act and the common law remedy is not affected thereby. The-defendant claims that subsequent legislation affecting workmen’s compensation justifies its contention. Those acts arePamph. L. 1924, ch. 123, p. 231, which is a supplement toPamph. L. 1911, ch. 95, and provides in part:

“22 (a) When employer and employe have accepted the-provisions of section 2 as aforesaid, compensation for personal injuries to or for death of such employe by any of thecompensable occupational diseases, hereinafter defined arising out of and in the course of his employment shall be made by the employer to the extent hereinafter set forth and without regard to the negligence of the employer.

“22 (b) Definitions. When applicable in this act to occupational diseases the following words and phrases shall be construed to have the following meanings:

A. Compensable occupational ’diseases shall not include any other than those schedules below and shall include those so scheduled only when the exposure stated in connection therewith has occurred during the employment, and the disability has commenced within five months after the termination of such exposure.

Occupational diseases: anthrax; lead poisoning; mercury poisoning; arsenic poisoning; phosphorus poisoning; benzine, and its homologues, and all derivatives thereof; wood alcohol poisoning; chrome poisoning; caisson disease.” Pamph. L. 1923, ch. 31, p. 62, which is an amendment to the supplement of 1924, provides in part:

“2. (b) Definitions. When applicable in this act to occupational diseases, the following words and phrases shall be construed to have the following meanings:

A. Compensable occupational diseases shall not include any other than those scheduled below and shall include those so scheduled only when the exposure stated in connection therewith has occurred during the employment, and the disability has commenced within five months after the termination of such exposure.

Occupational diseases: anthrax; lead poisoning; mercury poisoning; arsenic poisoning; phosphorus poisoning; benzine, and its homologues and all derivatives thereof; wood alcohol poisoning; chrome poisoning; caisson disease; mesothorium or radium necrosis.”

It appears that the 1924 act makes compensable not only injuries from accident but also the occupational diseases described in that supplement. The amendment of 1926 resulted in changing subdivision A, section 22 (b) of the act of 1924, by adding to the list of “Occupational Diseases,” “mesothorium or radium necrosis.”

The defendant argues that the legislature gave recognition to such occupational diseases as it deemed compensable and declared as non-compensable diseases not scheduled in the act, particularly the wording of section 22 (b) which provides: “compensable occupational diseases shall not include any other than those scheduled below,” and that the legislature in the use of the word “compensation” throughout the act meant the payment which a workman may receive from his employer whether as damages in an action at law or compensation under section 2 of the act, and that the plaintiffs disease was without the compensation thus provided for, hence, be cannot recover compensation in an action before the statutory compensation bureau or in an action at law. What the legislature intended by the supplement of 1924 and the amendment of 1926 was to extend the benefits of the Workmen’s Compensation act and make compensable the occupational diseases therein mentioned. If the legislature intended to bar an action at common law for an occupational disease contracted through the negligence of an employer the legislature would have said so. A comparable construction was so determined by the Supreme Court in Schmid v. Stanton Forging Co., 104 N. J. L. 47, when it said:

“If this was the intention of the legislature, it should have said, and probably would have said so, in express and unequivocal language.”

The objection in point of law contained in the defendant’s answer is overruled.


text:
    THOMAS McCORMACK, PLAINTIFF, v. ARTHUR C. WINDSOR, DEFENDANT.
    Decided May 7, 1931.
    Before G-ummere, Chief Justice, and Justices Trehchard and Lloyd.
    For the rule, B. Robinson Chance and William E. Sandmeyer.

    Contra, John W. Palmer.

   Per Curiam.

The plaintiff, who, according to his testimony, was a building and street inspector of the township of Lyndhurst, was injured while inspecting the erection of a public library for the township, which was being constructed by the defendant, Windsor, under a contract with the municipality. The plaintiff was standing on the floor of the building when a ladder which had been placed upon the second floor, and which was leaning against one of the beams intended to support the roof, fell over and struck him, inflicting the injuries for which he has sued. The fall of the ladder apparently was the result of a gust of wind which blew into the building, which was still open to the weather. The trial resulted in a verdict in the plaintiff’s favor, the jury awarding him $25,000 and the validity of that verdict is now attacked by the defendant under the present rule.

The first contention is that the verdict is excessive. Although the award is large, we cannot say, in view of the character of the plaintiff’s injuries and of their permanency, that it is so clearly excessive as to justify this court in setting it aside.

It is next contended that the trial judge erroneously excluded certain questions asked by counsel for the defendant of the plaintiff’s medical experts on cross-examination. Our examination of the testimony leads us to the conclusion that the court properly excluded them. Some of the • questions referred to were directed at matters which were entirely immaterial, and the others did not come within the scope of a legal cross-examination.

It is further contended that the court erred in admitting certain evidence claimed to be illegal. That evidence related to the practice of builders in the handling of ladders used in the work of construction and before the building was completely enclosed. We see no objection to the admission of this testimony. It merely indicated what the custom of builders was in the installing of ladders, under the conditions existing in this case, in such a way as not to be a threat to the safety of people at work in the building or present therein. We consider that this testimony was material and competent.

Next, it is argued that the court erred in denying the motion for the direction of a verdict in favor of the defendant. This motion was based upon the theory that the plaintiff was not legally appointed as a building inspector, and, therefore, was upon the premises as a mere licensee. We think there is nothing in this contention. Whether or not the municipal authorities exceeded their powers in appointing the plaintiff as such inspector is a matter that is not involved in the present litigation, for he was at least an inspector de facto, if not de jure, and was lawfully upon the premises as the representative of the municipality.

It is further argued that the court erred in refusing to charge certain requests submitted by the defendant, all of which were based upon the theory that the plaintiff was present in the building as a mere licensee. What has already been stated disposes of this contention.

Lastly, it is argued that the verdict is against the weight of the evidence. Our consideration of the testimony leads us to the opposite conclusion.

The rule to show cause will be discharged, with costs.


text:
    HENRY M. MARSH, PLAINTIFF, v. BENJAMIN SASANOFF ET AL., DEFENDANTS.
    Decided May 7, 1931.
    Before Gtjmmbre, Chief Justice, and Justices Teen-chard and Lloyd.
    Eor the rule, John J. Francis.

      Contra, William, Newcorn.

   Per Curiam.

This suit was brought by the plaintiff against Benjamin Sasanoff and Charles Southard to recover compensation for injuries received by him through being run down by an automobile belonging to Sasanoff and which was being driven by Southard. The jury returned a verdict in favor of the plaintiff, awarding him $3,500 as damages against the defendants. Each of the latter then applied for and obtained the present rule to show cause.

The defendant Sasanoff conducted a music store on Watehung avenue, in Plainfield. The defendant Southard was his friend. On the day of the'accident Southard stopped at Sasanoff’s store on a friendly visit. The lights on the car owned by Sasanoff were not working'properly, and Southard offered to take it to a repair shop to have them put in order. This offer was accepted, the arrangement between the two being that, after the lights were fixed, Southard would bring the car back to Sasanoff’s store, and this he did. Upon his arrival there, a woman, with two children, came out of a barber shop next door, which was occupied by her husband, and, seeing Southard, asked him to take them to her cousin’s house, which was about a mile and a half from the Sasanoff place. Southard agreed to do this, and the woman and children got into the Sasanoff car, and Southard drove them to their destination. He did this without any consultation with Sasanoff and without obtaining his permission, although he had taken the same woman on previous occasions to her home with Sasanoff’s consent. After leaving the woman and children at her cousin’s, he started back, and on the way ran into and injured the plaintiff. The above-recited facts were proved by a clear preponderance of the evidence, and, in our opinion, they do not disclose any liability on the part of Sasanoff for the happening of the accident, for Southard was not acting as nor was she the agent or servant of Sasanoff, nor was he using the car for the latter’s benefit. On the contrary, he was using it for a purpose with which Sasanoff had no concern and without first obtaining the latter’s permission for such use. We may add that, even if he had obtained permission to use it for the purpose of taking this woman and the children to their destination, that fact would not have rendered Sasanoff liable, for the mere loaning of one’s car to a friend, to be used by him for his own purposes, does not render the owner of the ear liable for the careless act of the friend in driving it.

The defendant Southard claims that the verdict of $3,500 is excessive. It is liberal, but we cannot say that it is so manifestly without legal justification as to warrant our setting it aside for this reason.

• Our conclusion is that the rule should be made absolute as to the defendant Sasanoff and discharged as to the defendant Southard.


author: Pee Curiam.

text:
    IRVING McCORMACK, PLAINTIFF, v. G. AUSTIN HAINES, DEFENDANT.
    Decided May 7, 1931.
    Before Gummeee, Chief Justice, and Justices Teenchabd and Lloyd.
    Eor the rule, Thompson & Hanstein.

    Contra, Clarence L. Cole.

   Pee Curiam.

This is an action to recover compensation for personal injuries. The case of the plaintiff was that in the evening of July 13th, 1929, he was fishing upon a bridge which is a part of the highway between Atlantic City and Somers Point, standing on the guard rail at the edge of the bridge and leaning against the railing; that while so standing the defendant carelessly drove his car so close to the guard rail that he struck the plaintiff, knocking him off of it and quite seriously injuring him. The defendant denied that he was driving carelessly, claiming that, on account of the brightness of the lights of cars coming in the opposite direction from that in which he was traveling, he could not see the plaintiff, and that, for this reason, he was not responsible for the accident. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him $10,000, and we are now asked by the defendant to set that verdict aside.

The first reason urged for making the rule absolute is that the court erred in refusing to nonsuit or direct a verdict in defendant’s favor; the contention being that the evidence produced by the plaintiff failed to show that his injuries were the result of the negligence of the defendant in the driving of his car. We consider this contention to be without merit. The bridge was forty feet wide; the plaintiff was standing on the guard rail, on the very edge of the bridge; and there was no reason why the defendant should have driven so close to it as to collide with anyone standing upon it, particularly in view of the fact that this bridge is intended for use of foot passengers as well as for automobile drivers.

It is further argued that the verdict is against the clear weight of the evidence. Our reading of the testimony sent up with the rule leads us to the conclusion that this contention is also without merit.

Lastly, it is argued that the court erred in refusing to charge a request submitted by the defendant, which was in effect that the plaintiff was not entitled to recover for any future loss of earnings or for any future pain and suffering; and in charging the contrary. The basis of this contention is that the plaintiff did not allege in his complaint that he was entitled to such compensation. The averment in the complaint was that as a result of the accident the plaintiff suffered severe injuries, which are therein specified, and other injuries, which are of a permanent character, and that by reason thereof he has suffered and undergone great pain and torment of both body and mind, and still suffers therefrom. It seems to us that the necessary inference to be drawn from this averment is that the plaintiff will continue to suffer for some period in the future. It is further averred'in the complaint that, by reason of his injuries, the plaintiff has been prevented up to “the present date” 'from carrying on and transacting the business in which he was previously engaged. This averment we consider carries with it, by implication, the claim that the plaintiff’s incapacity to carry on his business will continue for some period after the filing of the complaint. But, even if these implications are not justified, the verdict should not be set aside upon the ground that it embraces matters not contained in the complaint. The questions of future pain and suffering and future loss of earnings were dealt with fully in the testimony submitted to the jury, and no objection was made by the defendant to the admission of this testimony. That being so, and the real issues having been tried out, the proper course to pursue would be to direct that the complaint be amended so as to set up these matters as a part of the plaintiff’s claim.

The rule to show cause will be discharged.


author: Pee Gratiot.

text:
    EDWARD L. CARRAHER ET AL., PLAINTIFFS, v. BROWN AND WHITE CAB, INCORPORATED, DEFENDANT.
    Decided May 7, 1931.
    Before Gummeee, Chief Justice, and Justices Tkenchakd and Lloyd.
    Eor the rule. Turner & Staller.

      Contra, John W. Palmer.

   Pee Gratiot.

The plaintiff Carraher was the owner and operator of an automobile, which he was driving in a northerly direction along Bergen street, in the city of Newark. The plaintiff Ulrich was riding with him as his guest. The proofs submitted on the part of the plaintiffs showed that as the car came to the intersection of Thirteenth avenue Carraher looked up the avenue in the direction from which the defendant’s taxicab was approaching and observed it about seventy-five feet away; that he thereupon continued across Thirteenth avenue, and when he had passed over two-thirds thereof the the defendant’s taxicab struck his car; that the taxicab was on the wrong side of the street and was proceeding at a rapid rate of speed; and that the collision resulted in the injury of both of the plaintiffs. The jury found a verdict in favor of Carraher for $10,000 and a verdict in favor of Ulrich for $1,000.

The first contention is that the verdict of $10,000 for Carraher is excessive. We consider this contention well founded. Our examination of the evidence leads us to the conclusion that his injuries were nothing like as serious as he claimed and as the jury evidently found.

The next contention is that the court erroneously refused to charge the jury with relation to the possible mistakes of physicians because the opinions of such experts were generally nothing more than guesses. This request did not embody any principle of law, and, therefore, was properly refused.

Next, it is argued that Carraher was guilty of contributory negligence. We find no evidence in the case to justify this contention. The defendant company called no witnesses to show how the accident occurred, hot even the driver of its taxicab. Nor was there any explanation of its failure to do so. The evidence on the part of Carraher and Ulrich, in our opinion, justified the jury in finding that the collision was not the result of any negligence on the part of the former.

Next, it is contended that the verdict in favor of Ulrich is excessive. Our examination of the case leads us to the opposite conclusion.

Lastly, it is argued that the verdicts finding the defendant’s driver guilty of negligence producing the accident are against the weight of the evidence. Our consideration of the proofs leads us to the conclusion that this contention is without merit.

If the plaintiff Carraher will consent to have the verdict rendered in his favor reduced to $6,000, he may enter judgment for that amount against the defendant. Otherwise the rule to show cause will be made absolute as to him. As to the plaintiff Ulrich, we conclude that the rule to show cause should be discharged, with costs.


author: Per Cttrtam.

text:
    FRANCES LA ROSA, BY HER NEXT FRIEND, FRANK LA ROSA, AND FRANK LA ROSA, HER FATHER, IN HIS OWN RIGHT, RESPONDENTS, v. JOHN R. LIVEZEY, BURK MOTOR COMPANY, JOHN P. DIEBOLD AND EDWARD P. KOHL, DEFENDANTS; BURK MOTOR COMPANY, APPELLANT.
    Argued October term, 1930
    Decided May 15, 1931.
    Before Gummbre, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the appellant, Thompson & Hanstein.

    Eor the respondents, Anthony J. Siracusa.

   Per Cttrtam.

This action was to recover damages for injuries claimed to be due to negligence in the operation of an automobile. It was against several defendants, including the Burk Motor Company; there was a verdict against the Burk Motor Company alone, and that company appeals.

The liability of the Burk Motor Company could only arise through the negligence of one John P. Diebold, who, it was claimed, was its agent at the time of the accident, supervising the handling of the car. While Diebold was originally made a party, he was never served with summons and complaint, and his name was dropped out at the time of the trial.

The story of the case was that the defendant Livezey had purchased an automobile from the Burk Motor Company and at the time of the accident it was being driven by Livezey’s employe, Kohl. Seated beside Kohl was Diebold, an employe of the Burk Motor Company, and two questions are presented on the appeal: (1) whether Diebold was sent by the Burk company as an instructor to Kohl, and (2) assuming that he was, whether the accident was due to the negligence of Kohl or of Diebold, or of both.

The facts which the jury might find were that Kohl was a learner, without license to drive, and unfamiliar with the operation of a ear; that Livezey, in buying the car, sought an instructor (as seems to be usual), from the automobile company to accompany the driver so that the latter could learn to operate the car; that there was an arrangement made that Bannon, also an employe of the Burk company, should go out with Kohl and instruct him; that Bannon, who had on two previous occasions accompanied Kohl, was not available when the car was taken out on the day of the accident, and Diebold was substituted for the purpose. There was sufficient evidence to indicate that Diebold was sent by the Burk company as an instructor to Kohl, and if there was negligence on his part causing the plaintiff’s injuries, obviously that negligence would be chargeable to the Burk company.

As to the negligence itself, the plaintiff was walking along Atlantic avenue in Atlantic City. While so walking the automobile ran up on the sidewalk, pinning her against the wall, backed away and then struck her again. At the time Kohl was at the steering wheel and Diebold was sitting beside him. From this negligent operation could certainly be inferred, and under the circumstances that such negligence was that of Diebold. It must be that one situated in the position of Dielbold is available to avoid just such an accident as here occurred. Otherwise his presence in the car would be of little value. He was there to act in an emergency; to guide the car or to stop it. The ear was a lefthand drive and the manipulation of the gears was to the driver’s right between Diebold and Kohl. It seems to us, or at least the jury might find, that under such circumstances when the car started to leave the street and go up on the sidewalk it was incumbent on the instructor to take precautions, and failing to do this, an accident resulted and his employer would be responsible.

The motion for nonsuit was properly denied and the judgment is affirmed.


text:
    BEATRICE M. DUNN AND JANESE J. DUNN, BY JOSEPH C. DUNN, THEIR NEXT FRIEND, AND JOSEPH C. DUNN, INDIVIDUALLY, PLAINTIFFS, v. McCREADY SYKES AND WILLIAM FRAZIER, DEFENDANTS.
    Submitted October term, 1930
    Decided May 15, 1931.
    Before Gumjiere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the plaintiffs, Augustus S. Dreier.

    Eor the defendants, Thomas Brown.

   Pee Cueiam.

Both plaintiffs and defendants have rules for new trials in this case. The action was by two children, Beatrice and Janese Dunn, and their father, to recover damages for personal injuries to the children received when struck by an automobile owned by the defendant Sykes and driven by his servant, Frazier, due, it was claimed, to the negligence of the driver. There was a directed verdict in favor of the defendants as against the plaintiff Janese Dunn, and the jury found in favor of Beatrice and the father against Sykes. Its verdict in the case against Frazier was one of no cause for action.

Both parties to the action have rules for new trial; that of the plaintiffs resting on the grounds that the verdict in favor of Frazier was against the charge of the court and against the weight of the evidence; that of the defendant Sykes on the grounds that the verdicts were against the weight of the evidence, contrary to law and excessive.

Other than to say that there was evidence from which the jury could justly conclude that the speed of the automobile was such that a verdict resting on the negligence of the driver was fairly justified, it will be necessary to consider but one phase of the ease. As stated the verdicts were against the owner Sykes but in favor of the driver Frazier. It was only through the negligence of the servant that Sykes could be called upon to respond in damages. The verdicts were therefore so inconsistent as to demonstrate that they were the result of passion, prejudice or other improper motives, and that they should not be sustained. Hummers v. Public Service Gas and Electric Co., 8 N. J. Mis. R. 689.

Both rules are made absolute and new trials granted in all of the cases.


author: Pee Cubiam.

text:
    JOHN F. SAUNDERSON, BY HIS NEXT FRIEND, ET AL., PLAINTIFFS, v. ARDEN APPLEGATE AND ADOLPHUS B. CRANMER, DEFENDANTS.
    Submitted October term, 1930
    Decided May 15, 1931.
    Before Gummeke, Chief Justice, and Justices Teencitabd and Lloyd.
    Eor the rule, Howard Hastwood.

    Contra,, James Mercer Davis.

   Pee Cubiam.

This was an automobile accident case in which the plaintiffs obtained verdicts against the defendant Cranmer for damages arising from injuries to the plaintiff John E. Saunderson. Cranmer has a rule for new trial and presents two reasons upon which we are asked to make it absolute. The first is that there should have been a nonsuit because the plaintiff failed to prove negligence in the defendant, and second, that the verdict is against the weight of the evidence.

The facts which the jury might properly find were that the plaintiff John E. Saunderson was riding in a car driven by one Worth, an employe of the defendant Cranmer. While Worth was driving north on the road between Toms River and Lakewood a collision occurred between the car he was driving and that of the defendant Applegate. The Apple-gate car proceeding south on the same highway, and having stopped on its own righthand side of the road, endeavored to make a lefthand turn across the highway. When half way across it was struck by the ear of the defendant Cranmer. Whether the turn was at a time when it was reasonably sáfe to make it and whether, if it was, Worth driving the Cranmer car was negligent in disregarding the plaintiff’s rights, presented a case for the jury’s consideration, and the conclusion reached by that body should not be disturbed either on the ground that there was no proof of negligence or that the verdict was against the weight of the evidence.

The rule for new trial is discharged.


text:
    PETER TOTH, PLAINTIFF, v. CHARLES BAKSA, DEFENDANT.
    Submitted October term, 1930
    Decided May 15, 1931.
    Before G-ummere, Chief Justice, and Justices Trehchard and Lloyd.
    Eor the rule, McDermott, Enright & Carpenter.

      Contra, Nathaniel A. Jacoby.

   Per Curiam.

This is defendant’s rule for new trial in an automobile accident case, plaintiff having received a verdict of $5,000 for personal injuries and damages to his automobile. The reasons under the rule are that the verdict is against the weight of the evidence and the damages excessive.

We think that neither is well founded. The plaintiif was driving his Chevrolet car north on Pershing avenue in Camden and the defendant was driving an Essex car south on the same highway. The plaintiffs story was that the defendant negligently turned out from behind a line of cars in the face of his approaching car and that a side-swiping collision resulted, from which injuries were received causing him to lose parts of two fingers, producing considerable pain, and impairing his earning power. The testimony on liability fairly presented a question for the jury. A number of witnesses testified on each side supporting the respective contentions, but this only emphasized that the question was for the jury and the result reached was justified.

While the damages seem fairly high, we cannot say that they are so excessive as to justify the intervention of the court. Plaintiif was a laborer obliged to work with his hands. He lost part of the index and adjoining fingers, besides receiving injuries to his face and left side; he had approximately $500 expenses and loss of wages. For injuries somewhat similar damages in the sum of $3,850 were sustained by this court in the case of Hoppock v. Easton Transit Co., 77 N. J. L. 342, and this at a time when the purchasing power of money was appreciably higher than it is now.

The rule will be discharged.


text:
    BESSIE STERN, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ISAAC STERN, DECEASED, PLAINTIFF, v. FRANK BRABSON AND ABRAHAM B. COHEN, DEFENDANTS.
    Submitted October term, 1930
    Decided May 15 1931.
    Before Gummere, Chiee Justice, and Justices Treitchard and Lloyd.
    Eor the rule, Bernard Freedman.

    Contra, Jacob L. Newman.

   Per Curiam.

The defendant Cohen has a rule for new trial in a ease growing out of an automobile accident which resulted in the death of Isaac Stern, whose administratrix ad prosequendum brings this action. The reasons argued on the rule are that there should have been a nonsuit; that the verdict is against the weight of the evidence as to the negligence of the defendant and the contributory negligence of the deceased.

On the question of nonsuit, the learned trial judge was entirely right in refusing it, and we think the verdict' should not be disturbed on the weight of the evidence either on the question of negligence or on that of contributory negligence. There is little dispute in the facts.

The whole of the testimony as to the accident came from the defendant Cohen and a policeman who was riding ia the car with him. Erom this testimony the jury could find that Stern, on a drizzly night, holding an umbrella over his head, was proceeding easterly across Tenth street, in Newark, at the crosswalk on the north side of Clinton street. Cohen was driving in a westerly direction on Clinton street, and reaching Tenth, he blew his horn and turned into that street. As he did so the righthand side of the car struck Stern causing injuries from which he died.

The significant facts stand out that Cohen was proceeding west on a street different from the one deceased was attempting to cross on foot. When deceased attempted to make the start across the street there was nothing in his path; no reason to apprehend that a vehicle would dispute his right of way, which, at the crosswalk, was paramount. When the car made the turn into Tenth street on a drizzly night it was incumbent on the driver to exercise care commensurate with the circumstances to see that the crossing was clear. This we think it was open to the jury to find that he did not do. On the other hand it can hardly be said as a matter of law that the deceased was under a duty to anticipate that his right of passage would be disputed. Cars normally proceed longitudinally; they do not turn at every crossing or intersection, although liable to do so at any. The mere sounding of a horn when the deceased was four or five feet into the highway using the crosswalk could not be said as a legal proposition to be warning that the vehicle would turn in that direction in the face of the pedestrian’s higher right. Under all the circumstances of the case we think it cannot bo said that there was no proof of negligence in the operation of the car, or that the deceased was so clearly guilty of contributory negligence that a nonsuit should have been entered, nor do we think the finding of the jury on these questions was against the weight of the evidence.

The rule for new trial is discharged.


text:
    PHILIP TISCHLER, ADMINISTRATOR, ETC., ET AL., PLAINTIFFS, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT.
    Argued October term, 1930
    Decided May 15, 1931.
    Before Gummere, Ohiee Justice, and Justices Trenchard and Lloyd.
    Eor the rule, Bourgeois <&' Coulomb.

    Contra, William I. Garrison.

   Per Curiam.

This is the defendant’s rule for new trial. Verdicts were awarded in the case to Philip Tischler as administrator in the sum of $8,000 for the suffering of his wife, Dora Tischler, in her lifetime; to Philip Tischler, as administrator ad prosequendum, for $17,000 for loss sustained by the next of kin by her death; to Mendel Tischler, a son, for $2,000 for personal injuries, and $1,000 to his father.

The action grew out of a railroad crossing collision in Atlantic City. In the accident Mendel Tischler was injured and Dora Tischler received injuries from which she died twenty-four days later. Recovery was sought for the pain and suffering of Dora, for the loss suffered by the next of kin, for the injuries to Mendel, the son, and damages sustained thereby by his father.

The proofs established that Dora Tischler was the wife of Philip Tischler and was forty-four years of age; that in addition to the care of his household, consisting of the husband and a number of children, some of whom were grown, she at times assisted her husband in his fruit business.

On the proofs we think the verdicts as rendered for the suffering oí Dora Tisehler and for her death were so grossly excessive as to require a retrial of the case. It is impossible to conceive that the sufferings of Dora for a period of twentjrfour days, ameliorated as they were by opiates, could justify a verdict of $8,000; likewise the award of $17,000 to the next of kin was excessive. While it was true that the wife was helpful to her husband in his business and performed household duties in his home, we think the award of $17,000 was not justified.

As it is clear that the award of $8,000 at least was the result of prejudice, passion, or other improper motives, all the verdicts in the case should be set aside and a new trial granted.

The rule is made absolute.


text:
    HOWARD S. HOIT ET AL., TRADING UNDER THE NAME OF HOIT, ROSE AND TROSTER, APPELLANTS, v. DAVID ZYSKIND, RESPONDENT.
    Submitted October term, 1930
    Decided May 15, 1931.
    Before Gummeee, Chief Justice, -and Justices Teenchakd and Luoyd.

      Eor the appellants, Smith & Slingerland.

    Eor the respondent, Harold Simandl.

   Per Curiam.

The action in this case was to recover a balance alleged to be due to the plaintiffs on a stock trading account. The plaintiffs are a firm engaged in the business of buying and selling stocks, bonds and other forms of securities, usually securities not listed on the stock exchanges, and according to the proofs in the case after a number of individual transactions had been effected between the parties what was called an open account was started in the month of August, 1929. Under the arrangement then made defendant was required to deposit cash or securities in some form to be held as collateral security for the purchase price of the stocks that might thereafter be bought. Erom time to time thereafter various stocks were ordered.by telephone, and as the orders were filled the certificates would be placed in an envelope, defendant’s name placed thereon and slips containing his name and his interest in the securities attached thereto. Confirmations would be forwarded to him and acknowledged. These various confirmations were offered in evidence together with the account.

When the financial disaster in October, 1929,- came, the plaintiffs’ proofs were that they called for additional collateral; the defendant was unable to comply therewith and ordered the securities held for him sold at the best price obtainable. This was done and the balance already mentioned resulted.

The learned trial judge deemed the transactions nothing more than a course of gambling on the rise and fall of the stock market and on this ground entered a nonsuit. We think this was error. Erom the evidence produced the jury could find that the purchases were bona fide and were made either for investment or speculative purposes. The proofs show that the securities purchased were at all times available to the defendant and deliverable upon the payment of the purchase price. There was nothing in the case to suggest that the contract between the parties contemplated a mere gambling arrangement for the settlement of differences in market price. The case falls within the rule declared by the courts of this state in earlier cases, such as Flagg v. Baldwin, 38 N. J. Eq. 219, and Kendall v. Fries, 71 N. J. L. 402. As was said by the Court of Errors and Appeals in the former ■case and reiterated by this court in the latter case: “The act [to prevent gambling] is not intended to interfere with the right of buying and selling for speculation. The line is to be drawn between what is legitimate speculation and what is unlawful wager. When property is actually bought, whether with money or with credit, the purchaser and owner may lawfully hold it for a future rise and risk a future fall. With such transactions, the law does not pretend to interfere. They are within the line of lawful speculation.”

Tested by this rule it seems to us that the transactions between the plaintiffs and the defendant were not of such a character as to indicate that they came within the bar of the statute.

The judgment is reversed and a venire de novo awarded.


text:
    HUCK-GERHARDT COMPANY, v. AUGUST PARRECA ET UX.
    Decided May 16, 1931.

      Before Justice Parker (at chambers).
    Eor the plaintiff, Sydney T. Smith.

    For the defendants, Winfield S. Angleman.

   The defendants executed a written contract with the plaintiff, dated May 31st, 1930, for the erection by plaintiff of a porch enclosure, 'plaintiff to furnish all labor and material. The price agreed was $490. At the same time they executed the bond and warrant on which this judgment is based. Com siderable testimony was taken'by deposition on the question of defendants having been induced to sign this contract by fraudulent misrepresentation of its contents, and similarly with regard to the execution of the separate'bond and warrant which are the basis of the present judgment; but the proofs do not satisfy me that any of these documents was fraudulently obtained. Consequently the case will be considered on the theory that so far as execution is concerned, all are valid in law.

The bond and warrant are regular 'on their face and are not attacked in that regard, except as to attorney’s fee, presently to be considered. The affidavit required by section 11 of the Bond and Warrant act (Comp. Stat., p. 221) is, however, challenged. The section requires an affidavit “of the true consideration of the bill, bond, deed, note, or other instrument of writing, or demand for which 'the said judgment shall be confessed.” The affidavit in this case states that the true consideration of the bond “was and is the furnishing of or obligation to furnish labor and materials for the erection and installation of a certain porch enclosure on'the property of the obligors, by the obligee Huck-Gerhardt Company, Incorporated, pursuant to a certain written contract between the parties for the agreed or stipulated price or sum of $490 that a default has been made by the obligors, in the payment of the indebtedness represented by the said bond upon the date therein fixed for its payment; that the amount actually due hereunder in the sum of $563.50,” &c.

The contract is lengthy, and contains provisions, the substance of which is as follows:

1. The plaintiff to do the work and furnish materials as stipulated.

2. Defendants agree to pay “at once, upon the execution hereof and in consideration of the undertakings” of plaintiff, the sum of $490; provided, that in the execution of a bond and warrant of attorney, the plaintiff if judgment be entered thereon will accept $130 down and the balance in twenty-four moaithly installments of $15 each; and in case of any default in payment, plaintiff may proceed to levy and sell.

The depositions show that the plaintiff delivered the material at the job, and that a workman who went there to erect the porch enclosure was stopped by defendants. This -seems to have been in the latter part of June; the judgment was entered on July 18. Defendants admit the refusal to let the work be done. The material has never been removed.

It will be observed that the contract is so drawn as that payment is to be made in advance, unless by entry of a judgment the plaintiff is secured for the price. This seems to •differentiate the present case from Modern Security Co. v. Fleming, 6 N. J. Mis. R. 730; 142 Atl. Rep. 649. I can see nothing illegal about a contract to pay in advance for work to be done, which, under certain business conditions, is common enough; nor can I see anything illegal about giving security in advance to a prospective creditor. A mortgage to secure future advances is lawful. Reed v. Rochford, 62 N. J. Eq. 186; Lanahan v. Lawton, 50 Id. 276, 796; 41 Corp. Jur. 462. And the Court of Errors and Appeals has held that if there is a debt in existence at the time of the making of the affidavit, it will support a confessed judgment. Gaskill v. Buckman, 53 N. J. L. 665, adopting the opinion by Mr. Justice Garrison printed later in 95 Id. 14. In the present case the debt was actually due and matured under the ■contract before the judgment was entered, and it was not even necessary to depend on a default, as in State Mutual Building and Loan Association v. Batterson, 77 Id. 57. I see no infirmity in the statement of the “consideration” for the judgmert as contained in the affidavit. Either the furnishing of the labor and materials or the obligation to furnish them will support the judgment, and the latter consideration had admittedly passed to defendants. The case of Harwood v. Hildreth, 24 Id. 51, is not controlling, for there the bond itself incorporated a contract by reference, and the contract was also under seal, which is not the case here. For was it necessary to incorporate the contract in the affidavit, which fairly states the foundation of the bond.

The point relating to attorney’s fee of fifteen per cent., is, however, well taken. Our statute relating to bonds and warrants (Comp. Stat., p. 219 et seq.), does not recognize any such right in the plaintiff. Counsel have furnished me with a copy of an unreported opinion by Mr. Justice Donges, then a Circuit judge, in a case entitled Globe Automatic-Sprinkler Co. v. Small, wherein he supported a contract provision for an attorney’s fee as a stipulated item of liquidated damages in case of breach. That case does not seem to be-in point. In the present case the bond calls for “$490 with legal interest and attorney’s commission of fifteen per cent.”' Our statute (supra) provided specifically by section 13 (Comp. Stat., p. 222) that “the following, and no other fees-shall be- allowed.” Then follows a list of fees, totaling four dollars. The amount of “costs of suit” in the judgment before me is ten dollars, doubtless due to later statutory changes-which I have had no time to search out. But the expressed statutory policy is clear. Eaken v. Smith, 21 N. J. L. 97.. It follows that the true amount due is $490, perhaps with interest from date of default, and $10 costs. As the face of the judgment is the penalty of the bond, or $980, the judgment itself is not vitiated, and the real amount due may be-corrected on the execution. State Mutual v. Batterson, 77 Id. (at pp. 58, 59). Upon such correction being made, the-rule to show cause will be discharged. But as defendants are successful in part, no costs of this motion should be awarded to either party.


author: Peb Curiam.

text:
    EDNA PUGLEY, ADMINISTRATRIX AD PROSEQUENDUM FOR THE BENEFIT OF NEXT OF KIN OF MATTHEW PUGLEY, DECEASED, PLAINTIFF, v. ROCKEY TOTER, DEFENDANT.
    Submitted October 18, 1930
    Decided May 20, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    For the rule, William A. Moore.

    Contra, Andrew J. Buck (William Reich, of counsel).
   Peb Curiam.

The jury rendered a verdict in the Mercer Circuit in favor of the plaintiff for $6,500.

We think the motion for a nonsuit was properly denied. It was rested in part upon the contention that there was no evidence of the defendant’s negligence. We think there was. It appeared that the decedent was riding in an automobile operated by the defendant; that defendant operated the automobile in such a careless and negligent manner that while riding through Cadwalador Park in Trenton it left the road and thereafter traveled seventy-five feet when it collided with a tree, and the result was that plaintiff’s intestate was seriously injured and died the following day.

Defendant further says that the motion to nonsuit should have been granted because there was no proof that plaintiffs intestate was an invitee in his automobile. We think there was such proof, although the proof was contradicted. The testimony was that before decedent entered the car defendant said to him, “I will take you home,” and asked decedent -to get into the car. Decedent entered and they started.

The motion for a direction of a verdict was properly denied for the same reason that the motion for nonsuit was properly denied.

We cannot say that the verdict is against the weight of the evidence.

The criticism of the court’s charge contained in the defendant’s brief is not [assigned as a reason for setting aside the verdict.

The rule to show cause will be discharged, with costs.


text:
    THE STATE, DEFENDANT IN ERROR, v. CHRISTOPHER COLUMBUS, PLAINTIFF IN ERROR.
    Decided May 18, 1931.
    Eor the plaintiff in error, Benjamin L. Stein.

   Pee Cueiam.

The only feature of this application that need be noticed is the claim that we were mistaken in point of fact in saying that the alleged misconduct of the jury was not argued as a ground for setting aside the verdict, but only as a ground for arrest of judgment. We have re-examined the case in this aspect, and think no mistake was made in that regard. But assuming for the nonce that the concluding words of the argument in arrest of judgment amount to a renewal o£ the motion for new trial, previously denied with allowance of an exception, still the only assignments of error or specifications applicable are the eighteenth, nineteenth and twentieth, all of which are confined to the refusal to arrest judgment because of misconduct; and hence the point now made is without support in the record.

On its ultimate merits, the point is not well taken. All that happened was that a juror named L. gave a slip of paper to the attending constable at the door of the jury room while the jury were deliberating. The slip was produced, and contained telephone numbers with directions to “Tell Mr. P-that I am still on jury duty,” and “Tell Mrs. L. that I am still on jury duty.” It is suggested that this may have been a “code message;” but that is fanciful. On its face the incident could not possibly have harmed the defendant. The opinion of the Court of Errors and Appeals in the ease of State v. Nardella, just decided, is opposite.

The application is denied.


author: Parker, J.

text:
    Morris County Circuit Court.
    LEWIS C. VAN NEST v. ROBERT NAUMAN.
    Before Mr. Justice Parker.
    Eor the plaintiff, Lelúbach, Johnson & Ormond.

    Eor the defendant, Fast & Fast.

   Parker, J.

On May 12th, 1931, being the opening day of the current term, this motion was presented by counsel in the absence .of Judge Lawrence and, for their convenience, I consented to hear and determine it.

The application is to stay proceedings on a recognizance of bail given by the defendant, Nauman, as surety for one Hoaixfeld, also in the Circuit Court. Eor the plaintiff it is objected that the application comes too late because by section 77 of the Practice act of 1903 (Comp. Stat., p. 4075), the defendant must be rendered in discharge of his bail after judgment either within twenty days after the return day of the scire facias against the bail or within twenty days after the return day of the process in an action on the recognizance of bail and not after, unless for good cause further time be granted by the court or a judge.

The dates are as follows: A judgment against Honixfeld was entered on March 4th, 1931; capias ad satisfaciendum issued March 21st, 1931, and was duly lodged with the sheriff, and on March 28th, after seven days (four days being necessary under the old rule) the sheriff returned the defendant not found. On March 30th summons was issued in the present action against the surety and served on the 31st. On April 13th, the defendant Honixfeld in the original suit, gave notice of appeal and on the same day served a notice on the plaintiff of an application to render the defendant in discharge of Ms bail, such application to be made to the Circuit ■Court on May 12th. This, it will be observed, is forty-three •days after the issue of summons against the bail and forty-two days after it was served; and the plaintiff very properly invokes the twenty days’ rule laid down in the statute.

The only difficulty in the case arises out of the fact that in 1912 the Practice act was changed by the abolition of return days in the process of summons, and the question therefore arises as to how the twenty days’ rule is to be applied, the plaintiff claiming that the date when the summons is actually served should be considered as equivalent to the return day; and the defendant urging that because by the ■old English law an interval of at least fifteen days between the teste and return of a summons was required, that rule should now be applied, and if applied, it will be found that the application is still in time. Secondly, the defendant argues that it is the date of notice of the application and not of application itself that is to control, and as that notice was given within twenty days after the service of the summons, it is in time for that reason also.

I think both points are without legal merit. As to the notice being equivalent to the application, such a rule has no foundation in the practice and was expressly repudiated in the pern curiam, of the Supreme Court in Gallo v. Moffett, 8 N. J. Mis. R. 39. I think it unnecessary to search the books-for other authorities.

With reference to the fifteen days’ rule and on the assumption that the critical date is the date of the actual application, I fail to see how, even that rule if conceded, will save the-situation, because the sum of twenty days and fifteen days is thirty-five and the actual interval, as already noted, is forty-two days. I do not wish to be understood as concurring-in the fifteen days’ rule. It is true that in 3 Bile. 275, it is-laid down that a writ should be made returnable at the distance of at least fifteen days from the date, that the defendant-may have time to come up to Westminster, even from the-most remote parts of the kingdom; and upon some day in one-of the four terms, in which the court sits for the dispatch of business. The reason given for the fifteen days is that arr ordinary daj^s journey was considered to be twenty miles,, and three hundred miles was the limit of distance to be covered by the defendant in attending court. These writs-were also made returnable to a definite term as indicated by Blackstone, and such, as I understand it, was the practice-in this state until the legislature passed what is now section 46 of the Practice act of 1903, providing in part that courts of law shall always, except on Sunday, be open for the return of all process in civil actions, &e. As to the fifteen days’ rule the legislature modernized that by providing that where service is made at the place of residence, it should be served at least six days before its return, and if served on the defendant in person, at least two days before return. Section 52. Section 46, which was section 49 of the Practice act in the Eevision of 1877, did not cover the case of a municipal corporation and this led the Supreme Court to hold that in the-case of a municipal corporation the only thing to do was follow the fifteen days’ common law rule as laid down on page 107 of Tidd’s Practice. This was the holding in McNeal v. Gloucester City, 51 N. J. L. 445, and reiterated in Cooper v. Cape May Point, 67 Id. 437. But with respect to individuals, it is sufficient to quote the remarks of the late Mr. Justice Depue in Logan v. Lawshe, 62 Id. 567, in which he points out that the controlling factor in making a summons returnable was the length of time that was required to elapse between the service of the summons and the return day, and on page 570 he goes on to say: “The reason of this common law rule of practice having vanished, there is no ground upon which this court should be controlled by the dry husk of an obsolete precedent. The rule was superseded by the statutes which regulate the service and return of writs.” These cases and the ease of McCracken v. Richardson, 46 Id. 50, are the authorities cited in the footnote to Mr. Harris’ book on New Jersey Practice and Procedure as authority for the general proposition that fifteen days is the proper legal interval between the teste and return of a summons. McCracken v. Richardson relates merely to the enlargement of the return day in case the sheriff is unable to make service at a proper interval before the original return day; the McNeal and Cooper cases, as is obvious from what has been said, have no application to the suit against an individual and Logan v. Lawshe is precisely to the contrary.

In the present case if the sheriff could make personal service the summons could with propriety have been made returnable within three days from its date; or if service had to be made at the place of abode, then seven days would cover the necessary interval between the date and.return. Whether ■either of these periods ought to be considered as the starting point of the running of the twenty days mentioned in section 77 of the Practice act, is not necessary to decide; for, as has been said, even if the fifteen days’ rule were adopted, the application would be out of time.

The result is that the defendant is not entitled to a stay of the suit on the recognizance. The proviso of section 77 contains the additional clause “unless for good cause further time be granted bjr the court or a j udge;” and it is suggested that inasmuch as defendant’s counsel considered, mistakenly as I have held, that the date of giving notice of the application was equivalent to the application, this time ought to be extended. I am unwilling to deal with this phase of the situation, because both eases from their inception have been under the control of Judge Lawrence who is necessarily familiar with the details, and therefore I think it better for me to deal only with the question of law that has just been decided, and not interfere with his discretionary control of an extension of time if, indeed, the statute can be construed so as to permit of an extension being granted after the original time has expired.

The application for extension is denied with costs; but. without prejudice to a similar application to Judge Lawrence based upon such discretionary powers as he may have under section 77 of the Practice act.