text:
    SOPHIE McCARTY, RESPONDENT, v. MARIE ENNIST, ADMINISTRATRIX, ETC., APPELLANT.
    Decided June 21, 1929.
    Before Gummere, Chiee Justice, and Justice Parker.
    Eor the appellant, Lionel Isaacs.

    Eor the respondent, J. Emil Walscheid.

   Per Curiam.

The plaintiff was the sister of Edward McCarty, who died in November, 1926. The defendant is administratrix of the latter. On November 29th, 1909, until the date of her brother’s death, the plaintiff lived in his home, rendering all oí the services which a housekeeper and maid of all work would perform, and also numerous outside services. After her brother’s death and the appointment of his administratrix, she presented a claim to the latter for $8,500 for the services rendered by her to the decedent. The administratrix refused to recognize her claim, and thereupon the present suit was brought, the action being based upon a quantum m,eruit. The trial resulted in a verdict in the plaintiff’s favor, the jury awarding her $9,945.37, and judgment was entered for that amount.

The first ground urged by the appellant before us for the reversal of the judgment under review is that there was no evidence of a promise made by the decedent during his lifetime to the plaintiff sufficient to support a contract; no evidence to rebut the presumption that the services were gratuitous. But this, we think, is not the fact. One of the plaintiff’s witnesses, Charlotte Weber, testified that on an evening in the year of the decedent’s death she had a conversation with him about his sister, the plaintiff, in the course of which he told her that almost immediately after his mother’s death, which occurred in 1911, he had had a conversation with his sister, in which she said that she would do all she could for him, would take care of him as a wife would and would not get married; and that she said this in response to his question whether she would be willing to live with him as long as he lived; and that after she had promised to do this he said to her: “If you stay single and do not get married, then you will get the house and everything that belongs to me.” Having testified to the above facts, the witness was then asked this question: “He said that he had made that arrangement with her” A. “Yes, he told me that that night.” This testimony justifies the inference, we think, that the plaintiff worked for her brother, at least partly, upon the basis of this promise. The testimony of Edward McDermott, a witness called by the plaintiff, and who, as he states, was the adviser of Edward McCarty during the latter part of decedent’s life, corroborates that of Mrs. Weber. He stated that shortly before McCarty’s death the latter told him that he proposed to make a will giving all of his property to the plaintiff in compensation for her faithful service to him during his lifetime. ' This statement, as we see it, indicates that the decedent recognized that the services rendered to him by his sister were not merely the ordinary ones rendered by one member of a family to another, but were such as entitled his sister to compensation for their rendition; and indicates his intention to carry into effect the promise which he told Mrs. Weber he had made immediate^ after his mother’s death.

It may be conceded that the promise of the plaintiff not to marry during her brother’s lifetime was against public policy. But this does not invalidate her agreement as a whole; and, having rendered the services which she undertook to perform, she is entitled, under her contract, to compensation therefor.

Other.grounds for reversal are based upon the refusal of the trial court to charge certain requests submitted by the defendant ; but no exception was taken to the refusal to charge any of such requests, and, in the absence thereof, the rulings of the trial court cannot be made the ground of reversing the judgment under review.

Lastly, it is argued that this action cannot be sustained because it was brought on a quantum meruit and not upon the express contract referred to in testimony; and that the contract entered into was one by which the decedent promised to leave real estate to her at his death, as well as other property, and, consequently, was not enforceable under the statute of frauds. But this contention is in the face of our decided cases. As has frequently been held by our courts, where an agreement to devise land as a compensation for seryices rendered has been entered into, the statute of frauds being a bar to a suit based upon such contract, the person rendering the services may recover on a quantum meruit for the value thereof. Bente v. Bugbee, 103 N. J. L. 608, 610, and cases therein cited.

The judgment under review is affirmed.


source: Caselaw Access Project

author: Pek Cubiam.

license: Public Domain

text:
    MEYER BLITZER, PLAINTIFF, v. CHARLES MICHAELS DEFENDANT.
    Decided June 21, 1929.
    Before Gummeke, Chief Justice, and Justice Pakkek.
    For the rule, William I. Lewis and Charles II. Roemer.

    Contra, Bernard L. Stafford.

   Pek Cubiam.

The plaintiff: was an employe of the defendant at the latter’s store, in Paterson, where ladies’ clothing of all kinds apparently was sold. In March, 1927, the defendant discovered that a lady’s sport cloth coat, valued at $39.50, had disappeared. An investigation was thereupon made, and the plaintiff, upon being questioned, said that he had sold the coat and had turned in the purchase-money to the cashier. This the cashier denied. The defendant then called upon the police authorities in Paterson and told them that the coat was missing. They made an investigation, and then one of the members of the police force took the plaintiff to the police station, as he said, for examination and interrogation, although he did not formally arrest him. The defendant was afterward advised by the police authorities to make a complaint against the plaintiff for the larceny of the coat. This he refused to do until he had consulted his lawyer. After such consultation, in which, he testified, he disclosed every fact of which he had knowledge, he made a complaint against the plaintiff, charging him with the larceny of the coat. A warrant was thereupon issued, and the plaintiff was arrested. He gave bail, and was taken the next day before the recorder of the city, and at the close of the trial the recorder rendered a finding in his favor of not guilty. The plaintiff then instituted the present suit, and the jury awarded a verdict in his favor, assessing his damages at $5,000.

It is argued on behalf of the defendant' that a new trial should be directed, for the reason that the court, in dealing with the question of defendant’s liability, erroneously charged the jury that the absence of probable cause necessarily infers the existence of malice in the defendant’s conduct. This statement is taken verbatim from the opinion of Mr. Justice Minturn in the case of Sunderbrand v. Schills, 82 N. J. L. 102. This rule of law declared by our court of last resort was binding not only upon the trial court in the present case, but is also binding upon this court in determining the soundness of the defendant’s contention. We deem it proper, however, to point out that there is no suggestion in the opinion referred to that this necessary inference cannot be overcome by proper proof controverting its existence; and that it is entirely settled by our decisions that this may be done.

It is further contended that the trial court erroneously admitted, over objection, certain testimony given by one Herman, a witness called by the plaintiff. The witness was permitted to testify that on a visit made by him to “The Credit Clearing House,” in Few York, he saw among the files of that corporation a letter written upou the defendant’s business paper, and signed by the defendant; and that he saw the following sentence therein: “We do not recommend him for credit.” The purpose of this testimony manifestly was to induce the jury to believe that the letter referred to the plaintiff, and that the defendant, Michaels, had written it to The Credit Clearing House for the purpose of injuring the plaintiff’s reputation. But the plaintiff was not named in the letter nor referred to therein, so far as Herman’s evidence showed, for he testified that the sentence that has just been quoted was the only thing in the letter that he was able' to read, except the signature of the defendant. Consequently, the letter might just as well have referred to anyone else in the world as to the present plaintiff, so far as the jury could tell. There not being anything in it to identify it as an attack upon the plaintiff, it should have been excluded, and the refusal of the trial court to do so constituted harmful error.

Moreover, the testimony as to the contents of the letter, even if it showed that the plaintiff was the subject thereof, was secondary evidence, and was not competent unless a satisfactory explanation of the failure to produce the letter itself was first given, and no such explanation appears in the state of the case submitted to us.

Eor the reason last discussed, the rule to show cause will be made absolute and a retrial ordered.


author: Per Curiam.

text:
    NEWS PRINTING COMPANY, APPELLEE, v. DILLISTIN LUMBER COMPANY, APPELLANT.
    Submitted May 17, 1929
    Decided June 21, 1929.
    Before Justices Pakkeb, Black and Bodine.

      Eor the appellant, Bayion E. Horton.

    Eor the appellee, Alex Moshowilz.

   Per Curiam.

The plaintiff-appellee recovered a judgment in the District Court of $500 based on the publication of two full-page advertisements of the defendant company and its business at $250 a page. There was no question about the publication or of the rate. The defense was that the advertisement had been inserted without any lawful authority from the company. The claim of. the plaintiff was pressed upon three grounds: first, that the employe of the defendant, a man named Willocks, who was shortly afterwards discharged, was in fact an authorized agent of the defendant to order the advertisement; secondly, that whether authorized or not, he was held out by the defendant as so authorized; and thirdly, that in any event this action in ordering it was ratified by said defendant.

The pertinent facts in the case as developed on the evidence were that the defendant was in the lumber and building material business and that some sort of a “Model Homes” compaign was on; that the solicitor for the plaintiff was well acquainted with Willocks and had often asked for advertisements but had not succeeded in getting them; but that on this particular occasion he succeeded in persuading Willocks to sign a written order for the advertisement which was put in evidence. This was on May 24th. The advertisement was not to appear until August, and in fact did appear at that time, when, of course, it was noticed by the people in the defendant’s office and some comment was made upon it; and what took place at that time is relied upon by the plaintiff as ratification.

We deem it unnecessary to consider either the question, of original authority in Willocks, or of subsequent ratification, because we think it is sufficient for an affirmance of the judgment to say that we are of opinion that Willocks was fairly held as having sufficient authority for that purpose. The defendant’s office seems to have had a number of employes in it; Mr. Dillistin, the president, was present only part of the time and the court, sitting as a jury, was fairly entitled to find from the testimony produced that Willoeks was the person appearing to have the general supervision of all ordinary business matters and authority to act in the company’s behalf with reference thereto. We think the testimony brings the case clearly within the rule laid down in such cases as Bridgeton v. Fidelity and Deposit Co., 88 N. J. L. 645, and the very recent case of White Door Bed Co. v. United States Mortgage Title Guarantee Co., 7 N. J. Adv. R. 862.

On this ground we think the judgment should be affirmed.


text:
    BENJAMIN BARON, APPELLEE, v. CITY OF BAYONNE, APPELLANT.
    Submitted May 17, 1929

      Decided June 21, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the appellant, Maurice G. Brigadier.

    For the appellee, Benjamin Baron, pro se.

   Per Curiam.

The suit arises out of a collision between the defendant’s truck and an automobile belonging to the plaintiff which was parked. Of tlie four grounds of appeal the first three relate to the admission of evidence and the fourth is that the court erred in refusing a nonsuit.

No question was raised about the negligence of the driver of the. truck.. The fundamental question in the case was whether the city as a municipal corporation was liable for that negligence; the plaintiff’s claim, that such liability existed, was predicated on the proposition that the truck was a truck of the Bayonne water department, and that as in most other cases the city operated its water plant and sold water to customers at a price intended to cover expenses and perhaps •produce a- profit. It ivas in evidence that the city sold water to outside manufacturing plants in addition to its own citizens, and that would ordinarily be enough to bring it within the principle laid down in such cases as Olesiewicz v. City of Camden, 100 N. J. L. 336,; and the very recent case of Harper v. East Orange, 6 N. J. Adv. R. 1539, in which the water department of that city was involved.

The defendant undertook to show that as a matter of fact the city did not make any profit on its sales of water but actually made a loss. These questions were excluded as immaterial and properly so, as that is not the legitimate test of liability.

The "judgment will be affirmed.


author: Pee Curiam.

text:
    FREDERICK ANDERSON, PLAINTIFF-APPELLEE, v. ELECTRIC LAUNDRY COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January 26, 1929
    Decided June 28, 1929.
    Before Justices Teen chard, Kalisch and Lloyd.
    For the appellant, Pilgrim & Riiger (Frederick J. Bilger, of counsel).
    For the appellee, Edward M. and Runyan Colie (Frederick R. Colie, of counsel).
   Pee Curiam.

This is an appeal from a judgment of the District Court of the city of Orange. There was a judgment for the plaintiff entered upon the verdict of a jury, and the defendant appeals.

The plaintiff sued to recover for damage done to his Buick car by the defendant’s automobile in the course of reckless and careless driving by the driver of the defendant’s car.

The first reason assigned for reversal is that “the District Court erred in giving judgment to the plaintiff instead of the defendant.” There is no merit in this. The case was tried before a jury and the judgment followed as a matter of course upon the verdict, and we perceive nothing wrong with such judgment.

The second reason is that the judge erred in refusing to nonsuit on the ground that (1) “there was no legal evidence of the kind of damages,” and (2) “there was no legal evidence of the amount of damages.”

We think this point is without merit. There was certainly some evidence of the kind of damages. It tended to show that defendant’s car crashed into plaintiff’s car necessitating repairs for which plaintiff paid $325. We think that was some evidence of the amount of damages which certainly precluded a nonsuit.

The third reason is that the judge “admitted testimony of the plaintiff as to the value of his automobile before the accident, over objection of the defendant that such testimony was incompetent without proper evidence of the condition of the car at the time of the accident and that plaintiff was not qualified to give his opinion.”

We think there is no merit in this point. The plaintiff testified that his car was new in 1927 and was in good condition at the time of the accident. He testified that in his opinion $1,800 was the value of the car before the accident. That testimony was competent. Teets v. Hahn, 6 N. J. Adv. R. 491.

The fourth and last reason is that the court “admitted plaintiff’s testimony as to the value of his automobile after the accident over the objection of the defendant that such testimony was incompetent and inadmissible because there was no evidence of the actual damages and that plaintiff was not qualified to give his opinion of such value without evidence of the kind of damages.”

We think there is no merit in this. We have pointed out that there was evidence of actual damages, and it was competent for the plaintiff to testify as to the value of the car after the accident. Teets v. Hahn, supra. Under that case it was not necessary that the plaintiff be qualified as an expert.

The judgment will be affirmed, with costs.


text:
    TOLEDO SCALE COMPANY, APPELLANT, v. PETER MUCHA, APPELLEE.
    Submitted May 17, 1929
    Decided June 21, 1929.
    Before Justices Parker, Black and Bodlne.
    For the appellant, Samuel G. Meislerman.

    Eor the appellee, George I). Mulligan.

   Per Curiam.

The plaintiff is a vendor by contract of conditional sale which was not recorded, in which contract one Grentius was the conditional vendee. Grentius was also a tenant of the defendant, Mucha, and was indebted to him for rent. Mucha started distress proceedings to recover his rent, and while these were pending Grentius and Mucha made a settlement whereby Grentius sold and delivered to Mucha the property covered by the conditional sale contract, and other property in satisfaction either wholly or partially of the claim for rent. It does not specifically appear in the state of the case that Mucha had no knowledge of the contract of conditional sale, but as nothing is said about this point we assume that the parties so understood at the trial. The appellant vendor seeks to hold Mucha for a conversion of the property covered by the conditional sale.

The case of Commercial Credit v. Vincis, 98 N. J. L. 376, is authority for the proposition that the lien of the landlord by distress is not such a lien as will take precedence of an unrecorded contract of conditional sale; but that is not this case. In the case at bar there was an existing debt and a transfer or an attempted transfer of title by the debtor of his property in satisfaction of that debt. It is argued that such transfer lacks the necessary consideration as against the claim of the holder of an unrecorded contract of conditional sale; but we hold to the contrary, on the authority of Knowles Loom Works v. Vacher, 57 N. J. L. 490; and as we deem there was lawful consideration for the transfer and on the assumption that the defendant landlord had no actual knowledge of the contract of conditional sale, the transfer was good and the judgment which was for the defendant will be affirmed.


author: Pee Cueiam.

text:
    MORRIS COHEN, ETC., PLAINTIFF-APPELLANT, v. LENA BARONE, DEFENDANT-RESPONDENT.
    Submitted May term, 1929
    Decided June 21, 1929.
    Before Justices Paejcek, Black and Bodine.
    For the plaintiff-appellant, Weinberger & Weinberger.

    For the defendant-respondent, Feinberg & Feinberg.

   Pee Cueiam.

This suit was in replevin, '"mught in the Bayonne District Court, to recover certain store fixtures set out in a schedule under a written agreement, executed at New York, on the 22d day ol February, 1927, for $375, payable in installments. The balance due the defendant was secured by three promissory notes. A counter-claim was filed, demanding damages in the sum of $450, setting up that the plaintiff neglected to perform the labor in a good workmanlike manner and failed to furnish first-class material, or properly install the articles in accordance with the terms of the contract. The trial of the ease resulted in a verdict for the defendant. The plaintiff filed nine specifications for a new trial. We think the judgment of the District Court of Bayonne should he affirmed. We find no legal merit in any of the grounds of appeal. The judgment is affirmed, with costs.


text:
    ETHEL VOORHEES, EXECUTRIX OF THE ESTATE OF ETHEL CATHERINE THOMAS, DECEASED, PLAINTIFF-RESPONDENT, v. THOMAS THOMAS, DEFENDANT-APPELLANT.
    Submitted May 8, 1029
    Decided June 21, 1929.
    Before Justices Parker, Black and Bodtne.
    For the plaintiff-respondent, Frank J. Baches.

    For the defendant-appellant, George Gildea.

   Per Curiam.

This was an action of replevin instituted in the District Court of the city of Trenton. The judgment is assailed on two grounds—first, that there was no proof as to the value of the goods in question, and second, that since the possession of the defendant was not unlawfully taken that there was no proof of a demand for their return having been made. The record does show that there was evidence as to the value of the goods in question, and that a written demand for their return was made before the action was commenced.

The judgment should be affirmed.


text:
    TRUSTEES SYSTEM COMPANY OF NEWARK, PLAINTIFF-RESPONDENT, v. MICHAEL A. LISENA ET AL., DEFENDANTS-APPELLANTS.
    Submitted May term, 1929
    Decided June 21, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff-respondent, Haines & Chanalis.

    For the defendants-appellants, George A. Henderson.

   Per Curiam.

This suit was brought in the East Orange District Court to recover the sum of $223.64, the balance'due on a promissory note. The case was tried by the court with a jury, resulting in a directed verdict for the plaintiff for the sum of $297.30.

The plaintiff’s only witness ivas the manager of the plaintiff company, who testified that he has charge of the records of the company, and that there was paid on account of the promissory note the sum of $76.36. The credibility of the witness and the existence of the facts testified to by him, not being admitted, are questions of fact, under our cases, of which the case of Second National Bank v. Smith, 91 N. J. L. 531, is illustrative. It was error to direct a verdict for the plaintiff, a jury question was involved. The judgment of the East Orange District Court is therefore reversed.


author: Pek Cukiam.

text:
    MORRIS SILVERBERG, PLAINTIFF-RESPONDENT, v. JOSEPH C. MASON, DEFENDANT-APPELLANT.
    Submitted May term, 1929
    Decided June 21, 1929.
    Before Justices Pakkeii, Black and Bodine.
    Por the defendant-appellant, Thomas F. Doyle.

    Por the plaintiff-respondent, Aaron A. Melniker.

   Pek Cukiam.

This suit was brought in the District Court of Bayonne to recover one hundred and fifty ($150) dollars, two months’ rent for premises No. 277a Fairmount avenue, Jersey City. The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $150.

This case turned upon a question of fact. The trial court found that the plaintiff’s contention was the correct one. We cannot disturb a judgment when based upon evidence found to be correct by the trial court.

The judgment of the District Court of Bayonne is therefore affirmed, with costs.


text:
    JAMES McHUTCHINSON, TRADING, ETC., PLAINTIFF-APPELLANT, v. MICHAEL ZAKUTYNSKI, DEFENDANT-RESPONDENT.
    Submitted May term, 1929
    Decided June 21, 1929.
    Before Justices Paekee, Black and Bodine.
    Por the plaintiff-appellant, Freeman & Freeman.

    Por the defendant-respondent, Ghandless & Weller.

   Per Curiam.

This suit was brought in the Pourth Judicial District Court of Bergen county to recover the sum of $159.25 on a book account, viz., Sep. 28, 1926 Dutch Bulbs $133.13

Nov.' 10, 1926 Lily Bulbs 22.50

- $155.62

with interest. A counter-claim was filed setting up the fact that the bulbs were defective and of no value. The plaintiff was notified of that fact, demanding $500 damages. The case was tried by the court without a jury, resulting in a judgment on the counter-claim for the defendant for the sum of $175. There is no appeal as to the amount of' damages assessed If any is to be allowed. The case presents one 'of fact decided by the trial judge based upon the evidence set out in the state of the ease sent up with the appeal. The judgment of the District Court is therefore affirmed, with costs.


text:
    PHILIP R. LICKER, RECEIVER, APPELLANT, v. JACK R. RUDD, APPELLEE.
    Submitted May 17, 1929
    Decided June 21, 1929.
    Before Justices Paeicer, Black and Bobíne.
    For the appellant,
    For the respondent,
   Pee Curiam.

The suit was for December and January rent of an apartment in an apartment house. Pending the suit, the defendant paid the January rent into court, but defended as to that for December, and the District Court awarded him a judgment.

The ground of defense was that the landlord, represented by the plaintiff as receiver, had undertaken to keep the apartment heated, but that during the month of December failed to do so, and according to the language of the state of the case the defendant stated “that the plaintiff failed to furnish heat sufficient to make the premises comfortable for living purposes, and that said premises were so cold during the month of December, 1928, that he and his wife were compelled to leave the premises from time to time during December, and on one occasion they were compelled to stay at the home of the defendant’s mother.”

It does not appear that the defendants vacated the premises in the real sense of that term. On the contrary they seem to have retained possession and actually did pay the rent for January.

In the case of Higgins v. Whiting, 102 N. J. L. 279, it is intimated that in a situation of this kind the failure to supply agreed heat is a defense to the suit for rent. But this must be read in connection with the fact appearing -in that case that when heat agreed upon was not supplied, the tenant moved out.

The general rule appears to be that where a constructive eviction is claimed it is the duty of the tenant to vacate the premises if he proposes to contest the landlord’s claim for rent. This rule is laid down in such cases as Metropole Co. v. Hartigan, 83 N. J. L. 414; Gunther v. Oliver, 97 Id. 376, and Pabst v. Schwarzstein, 101 Id. 431 (at p. 433). These cases all rest on the leading ease of Murray v. Albertson, 50 Id. 167; and the reason is that a tenant cannot at the same time continue to occupy premises and say that he was prevented from using them by some act or omission of the landlord.

It was therefore error in the trial court to award a judgment for the defendant on this ground, and as no other ground was urged, the right of the landlord to recover the rent stood unimpeached.

The judgment will be reversed, and as all the facts before us judgment may be entered in this court for the amount of the unpaid rent, in accordance with the usual practice. Sullivan v. Visconti, 68 N. J. L. 543, and cases cited.


text:
    EDWARD W. SMITH ET AL., PARTNERS, ETC., PLAINTIFF, v. ERIE RAILROAD COMPANY, DEFENDANT.
    Decided June 21, 1929.
    Before Gumraun, Chief Justice, and Justice Parker.
    Eor the rule, George F. Hobart and John F. Selser.

      Gonbra, Walter J. McIntyre.

   Per Curiam.

Thomas Smith, a member of the firm of Smith & Sons, the present plaintiffs, who are engaged in the trucking business, was called np by the Pittsburgh Plate Glass Company, and requested to bring one of the firm’s trucks to the plant yard of that company, located in Newark, for the purpose o£ having a load of paint put on it and taken to destination. In response to this request, Smith brought one of the plaintiff’s trucks to one of the loading platforms in the yard of the Pittsburgh Plate Glass Company, where in due course it was loaded with paint; and he then started to drive out of the plant yard through a gate in the fence, which was the only means of access to an egress from it. The defendant company had constructed a track through the Pittsburgh Glass Company’s plant yard and ran cars over it. The plaintiffs’ truck, in order to get from the platform where it was loaded, to the gate, had to be driven across the defendant’s track. While this was being done the truck was struck by a train of the defendant, which was being moved over the track, and was greatly damaged by the collision. The present suit was instituted to recover compensation for this damage.

Thomas Smith, the driver of the truck, testified that as he approached the track he received no warning of the approach of the train; that he could not see it as it approached, on account of the buildings in the yard, until it was within approximately thirty-five feet of the point where he was crossing, and that it did not come within his view until he arrived at that point; that when he saw it he was partly over the track, and that before he could clear the track, the truck being some twenty-five feet long, the collision occurred. The trial resulted in a verdict in favor of the plaintiff, the amount of the award being $1,675.

The first ground upon which-we are asked to set this verdict aside is that the trial judge failed to point out what the standard of action or conduct of the defendant was from which the jury might infer negligence. This contention seems to us to be without merit. The court, after referring to the testimony in the case, stated that both parties had a right to be where thejr were, but that, in the operation of the cars and of the truck, the operator of each was bound to use reasonable care not to inflict injury upon the other, or upon the property in charge of the other. The court further instructed the jury that the plaintiffs, in order to recover, must prove that the persons in charge of the defendant company’s cars did not use reasonable care to prevent the collision; and also that it must appear that the collision was solely their fault and was not contributed to by the driver of the plaintiff’s truck. In our opinion, this instruction was all that the defendant was entitled to, fully covered the matters specified in this reason for setting the verdict aside.

It is further contended that the verdict was against the clear weight of the evidence upon the issues of the defendant’s negligence and the plaintiffs’ contributory negligence. Our examination of the proofs satisfies ns that this contention is also without merit. As has already been indicated, the drive]1 of the plaintiffs’ truck testified that he was unable to see the defendant’s train as he was approaching the track, and that it did not appear within his vision, because of the obstructions to sight already indicated, until his truck had actually started across the track. The jury had a right to accept his testimony as a true statement of the conditions under which the accident occurred, and, having done so, they were justified in finding that he was not guilty of negligence contributing to the accident. They were also justified in finding that, if the employes operating the cars of the defendant company failed to give any warning of their approach, as plaintiffs’ driver tetsified, that was negligence on their part which was the sole cause of the accident.

These are the only questions argued before us, and we conclude that the rule to show cause should be discharged.


text:
    CARLTON AGRY, PLAINTIFF-RESPONDENT, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 8, 1929
    Decided June 21, 1929.
    Before Justices Pabkek, Black and Bodine.

      Eor the defendant-appellant, Wall, Haight, Carey & Hart-pence.

    Eor the plaintiff-respondent, Harry Tartalshy.

   Pee Cueiam.

The plaintiff, a passenger on one of the defendant’s trains, approaching the station stop, passed out of the car onto the vestibule, the door being opened. -He took hold of the jamb of the door, the train giving a lurch the door closed, cutting his fingers.

The record is silent on any motion for a nonsuit or a direction of a verdict. The brief for the defendant states that these motions were made. The record, however, is not in accord. Coming to the merits, no negligence of the railroad company was proved, and there was no proof that the door, the hinges or the jamb were out of order. Lurches of trains are to be expected. Persons who put their hands in door jambs do so at their own peril.

The judgment should be reversed.


text:
    JOHN A. BENVENUTE, PLAINTIFF-APPELLEE, v. CLIFFORD I. VOORHEES, EXECUTOR OF AND UNDER THE LAST WILL AND TESTAMENT OF ABRAM COLLIER, DECEASED, DEFENDANT-APPELLANT.
    Submitted May 8, 1929
    Decided June 21, 1929.

      Before Justices Parker, Black and Bodixe.
    For the defendant-appellant, Clifford I: Voorhees.

    For the plaintiff-appellee, Freeman Woodbridge.

   Per Curiam.

This is a suit against an executor. The proofs in the District Court showed that someone had seen the plaintiff loan to the defendant’s testator money which he told others he had borrowed. The plaintiff testified that the money had not been repaid, and was still due and payable.

The proofs further consisted of letters from the testator, in which he admitted that he owed the plaintiff money which would be repaid. These letters were necessary to take the case out of the six-year period of limitation.

It seems to us that the action of the trial judge in giving judgment for the plaintiff did not offend either the Evidence act or the statute of limitations.

The judgment is affirmed.


author: Per' Curiam.

text:
    ANNIE HOWARD ET AL., PLAINTIFF-RESPONDENT, v. LEHIGH VALLEY RAILROAD COMPANY, A CORPORATION OF PENNSYLVANIA, AND LEHIGH VALLEY RAILROAD COMPANY OF NEW JERSEY, A CORPORATION OF NEW JERSEY, DEFENDANTS-APPELLANTS.
    Submitted May 8, 1929
    Decided June 21, 1929.
    Before Justices Parker, Black and Bodixe.

      For the defendants-appellants, Collins <& Corbin.

    For the plaintiffs-respondents, Harry Tartalshy.

   Per' Curiam.

In these cases the plaintiffs were injured by driving their automobiles into a railroad crossing signal located in the center of the public highway. The crossing signal was placed in the highway by the permission of the board of freeholders of Somerset county, and conformed to the usual cross-arm type.

The case is ruled by Mr. Justice Parker’s opinion in Lorentz v. Public Service Railway Co., 103 N. J. L. 104. It appears that the structure was a lawful structure, erected, pursuant to lawful public authority and similar to many such structures. Such a structure facilitates and makes safe public travel, and although it is an obstruction in the street it is not a nuisance and the traveling public must take notice of it. The point is made that no sign was set up under section 35 of the Railroad act, but none seems to have been required.

There being no evidence to justify a recovery under the circumstances the court should have found in favor of the defendant.


text:
    JOSEPH KENNEDY ET AL., PARTNERS, ETC., PLAINTIFFS-RESPONDENTS, v. PETER GOD, DEFENDANT-APPELLANT.
    Submitted May term, 1929
    Decided June 21, 1929.

      Before Justices Pabkek, Black and Bodike.
    For the plaintiffs-respondents, Simon Bnglander.

    For the defendant-appellant, Harry L. Brittingham and George D. Mulligan.

   Pee Curiam.

This suit was brought in the First District Court of Newark. The state of demand sets up a contract made August 30th, 1928, between the parties to furnish and install the following forced draft equipment, viz.: “Two [2] 600 Essex blowers with two [2] automatic boiler controls at No. 459 High St., Newark, N. J.; which I agree to pay six hundred [$G00] dollars, to be paid in live equal monthly payments, first payment Oct. loth. Discount 10%.” “The Essex Coal Economies Company guarantees that when the above equipment is installed, it will be mechanically perfect.” The plaintiffs completed the contract and waives any excess over $500. The plaintiffs before installing examined the premises and advised the size and style of blower to be installed. The trial court found there was nothing the matter with the blowers, and that under normal conditions they worked all right, but the complaint arose from the fact the defendant had not informed the plaintiffs, and the plaintiffs had failed to discover for themselves that at the base of the chimney into which the flue from the blowers led, there was an incinerator, which was in operation part of the time, and when so operating with the blowers made them work unsatisfactorily. The trial of the case by the court without a jury resulted in a judgment in favor of the plaintiffs for $500. We concur in the result reached by the trial court and agree with the .reasons therefore given by Judge MacMahon in the memorandum filed by him. The judgment of the First District Court of Newark is therefore affirmed, with costs.


text:
    JAMES A. CLARK, Jr., PLAINTIFF-APPELLEE, v. MARION S. BALDWIN AND MARY S. BALDWIN, EXECUTORS OF THE ESTATE OF CLARENCE W. BALDWIN, DECEASED, DEFENDANTS-APPELLANTS.
    Submitted January 26, 1929
    Decided June 28, 1929.
    Before Justices Trenci-iard, Kalisch and Lloyd.
    Eor the appellants, William J. McCormack and Horace £ Henry T. Stetson (Charles F. Mapleioft, of counsel).
    Eor the appellee, Richard J. Fitzmaurice.

   Per Curiam.

This is a broker’s suit for commission where judgment for $500 was recovered by the plaintiff in the District, Court, and the defendants appeal.

The case was heard by the trial judge sitting without a Jury.

At the trial it appeared that the employment was in the form of a letter dated May 9th, 1928, addressed to the plaintiff, as follows:

“Confirming my conversation with you of recent date, I beg to advise you that until further notice in writing, I will accept fifteen hundred dollars ($1,500) net to me, for the property owned by the estate of Clarence W. Baldwin on River street, in Orange and East Orange. Anything in excess of this amount, namely, $1,500, is for your remuneration, instead of a stipulated commission. Please remember that I reserve the right to withdraw this price at my pleasure, without stating a reason for so doing, and also reserve the right to sell it myself or through some other agent if opportunity offers.

Trusting that this is satisfactory to you and that you may be able to find a buyer in the near future, I beg to remain,” &c.

The first point is that the court erred in refusing to non-suit the plaintiff, the contention being that the contract did not comply with the statute of frauds because it does not specify the rate of commission on the dollar. But this contention is contrary to the decision of this court in the case of Mendels v. Danish, 74 N. J. L. 333, and approved by the Court of Errors and Appeals in Haber v. Goldberg, 92 N. J. L. 367. This point, therefore, is not well taken.

The second point in substance is that the motion for non-suit should have been granted because, as was contended, the plaintiff could not "recover until the owner received the sum of $1,500.” We think this point is without merit. The testimony showed that the plaintiff procured a purchaser who entered into a written contract with the owner for the purchase of the property, making a deposit of $100. The trial judge found as a fact that the evidence disclosed that the purchaser "was ready, willing and able to carry out that contract,” and the evidence justifies that finding. Appellants do not contend that the purchaser was not found; indeed they cannot, because a written contract was entered into between them, nor do they seem to contend that the purchaser was not responsible and able to carry out his contract, and if they did that contention would be in the face of their own evidence. The contract called for the payment of $2,000, and under the terms of the employment between the plaintiff and the defendants, all excess over the sum of $1,500 was the commission to the broker, and sneh was the judgment rendered by the trial judge.

We believe that these observations, in effect, dispose of every question raised and argued on this appeal.

The -judgment will be affirmed, with costs.


text:
    JOHN SCOGNAMIGLIO, PLAINTIFF-APPELLEE, v. ANTONIO MODERO AND INNOCENZA MODERO, DEFENDANTS-APPELLANTS.
    Submitted January 26, 1929
    Decided June 28, 1929.
    Before Justices Trenchard, Kalisch: and Lloyd.
    For the appellants, Dante Reveiti.

    For the appellee, A. Michael Lepore.

   Pee Curiam.

This is defendants’ appeal from a judgment entered in favor of plaintiff in the District Court of the First Judicial District of the County of Hudson, by the trial judge, sitting without a jury.

Defendants were the owners of a store and apartment. The plaintiff was their tenant. When the lease was made plaintiff deposited $250 as security. Before the expiration of the lease a fire occurred rendering the premises occupied by plaintiff unfit for use, and the owners decided not to restore the premises, but instead accepted the keys from the tenant about a week after the fire. No repairs were made for more than two months. The premises were never restored to their original condition, hut two months after the fire were altered by the owners to suit their own purposes, and the owners thereafter occupied the same. The tenant thereupon demanded his deposit, hut it was refused. He thereupon brought this suit for the amount of his deposit, and the trial judge, without reciting the evidence, made a finding of facts from which the foregoing matters are extracted.

The trial judge also found that the defendants had accepted a surrender of the premises.

The defendants complain that the latter finding was not within the issues raised by the pleadings. To this the answer is that evidence showing acceptance of a surrender of the premises was competent under the pleadings, and it will be presumed that at the trial there was evidence justifying the finding, nothing appearing to the contrary.

We believe that these observations dispose of every question argued which seems to justify remark.

The judgment will be affirmed, with costs.


text:
    ELEANOR BROWN, BY HER NEXT FRIEND, ET AL., PLAINTIFFS-RESPONDENTS, v. WEBSTER REALTY COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1929
    Decided June 28, 1929.

      Before Justices Parker, Black and Bodine.
    Eor the plaintiffs-respondents, Jolm L. Ridley.

    Eor the defendant-appellant, Harley, Gox Walburg.

   Per Curiam.

This suit was commenced in the Second District Court of Jersey City to recover damages for personal injuries. The plaintiff Clarence Brown was a tenant of premises No. 228 Hancock avenue, Jersey City, living with his child and wife, the other plaintiffs. The charge is that on September 28th, 1928, the kitchen ceiling of the premises fell, striking Eleanor Brown and Mabel Brown, causing the injuries complained of. Negligence in maintaining the ceiling in a defective condition is charged. The case was tried by the court with a jury, resulting in verdicts for the plaintiffs Eleanor Brown,'$50; Clarence Brown, $18; Mabel Brown, $100. The defendant appeals and files fourteen specifications of determinations, with which it is dissatisfied in point of law. The judgments will have to be reversed on account of trial errors. The case was submitted to the jury by the trial judge in the charge to the jury on a theory of the law that is fundamentally unsound. It is the settled law in New Jersey applied to the liability of a landlord for injuries to the tenant, viz.: As a general rule the landlord is not liable for injuries sustained by a tenant or his family or guests by reason of the injurious condition of the premises demised, there being in the letting of a house or lands no implied contract or condition that the premises are or shall be fit and suitable for the use of the tenant. Reilly v. Feldman, 103 N. J. L. 517, 518; Siggins v. McGill, 72 Id. 264.

Therefore, it was error to submit the case to the jury on the theory that liability might be predicated upon the mere fact that the agent of the defendant company had been told of the crack in the ceiling and that he looked at the crack and it was for the jury to say whether he had notice of the crack, it was his duty to repair it. So, it was error to charge the jury: “If you find that the accident was caused by the negligent act of the defendant company, you may bring in a verdict in the sum of whatever you feel like after a discussion of the testimony and an agreement, among you men, as you do in the jury room, up to $500.”

The vice of this instruction is, it fails to fix a standard for the guidance of the jury on the subject of damages. The judgments of the Second District Court of Jersey City is therefore reversed.


text:
    FREDERICK E. KOCH, PLAINTIFF-RESPONDENT, v. BOARD OF HEALTH OF THE TOWNSHIP OF MIDLAND ET AL., DEFENDANTS-APPELLANTS.
    Submitted May term, 1929
    Decided June 28, 1929.
    Before Justices Pakkek, Black and Bodine.
    For the plaintiff-respondent, Feder ■& Rinzler.

    For the defendants-appellants, Max E. Thiem and Mackay & Mackay.

   Per Curiam.

This suit was brought in the Third Judicial District Court of Bergen county to recover the sum of $192.50.

The case was tried by the court without a jury, resulting in a judgment of nonsuit, as to the township of Midland, a dismissal of the action as against the board of health, and a judgment in favor of the plaintiff, Frederick E. Koch, for the sum of $175 against the defendant Max H. Thiem. The defendant Max H. Thiem appeals and files four specifications of the determinations, with which he is dissatisfied in point-of law. The basis of the court’s decision, as set out in the state of the case, settled by the court and sent up with the appeal, is as follows: “On July 20th, 1926, the plaintiff and defendant Max H. Thiem talked about the emergency that existed, whereby some three hundred families were without water due to the orders of the state and local boards of health, and at the conversation the defendant told the plaintiff he would be given the same consideration as Augusta Thiem would be given if he would allow his pipes to be donnected with the water supply of Augusta Thiem [which was $1.25 per month]. To this the plaintiff agreed. Albert Snyder, a witness, corroborated the plaintiff’s testimony as to this conversation between the plaintiff and defendant Max H. Thiem. The pipe lines of the plaintiff were connected with the water supply of said Augusta Thiem, and water was supplied by these means to at least seventy houses for two months.”

From this evidence the court concluded there was sufficient evidence to prove that a contract existed between the plaintiff and the defendant Max H. Thiem, whereby the plaintiff agreed to allow his pipes to be used, and that the plaintiff would be paid $1.25 per month, &c. We concur in the conclusion reached by the trial court. This covers all the points involved in the case. The judgment of the District Court is therefore affirmed, with costs. ,


author: Pee Cukiam.

text:
    THE SENECA COUNTY TRUST COMPANY, PLAINTIFF-APPELLEE, v. SWILLER BROTHERS, A NEW JERSEY CORPORATION (IMPLEADED AS ABRAHAM P. SWILLER AND MAX SWILLER, PARTNERS, TRADING AS SWILLER BROTHERS), DEFENDANT-APPELLANT.
    Submitted January 26, 1929
    Decided June 28, 1929.
    Before Justices Thexchaed, Kalisch and Lloyd.
    Por the appellant, Herman H. Anehslein (John P. Kirlcpairiclc, of counsel).
    For the appellee, Clifford I. Voorhees.

   Pee Cukiam.

The plaintiff below recovered a judgment rendered by the trial judge, sitting without a jury.

The suit was on a trade acceptance drawn by Pratz, Kime & Pratz, Incorporated, at Waterloo, New York, and was drawn on the defendant Swiller Brothers. On the same day that it was drawn the drawer took the trade acceptance to the plaintiff bank where it was discounted, the plaintiff crediting the account of Pratz, Kime & Pratz, Incorporated, with the amount of the trade acceptance, less discount charges. Ten days thereafter Swiller Brothers accepted the trade acceptance, but on its maturity refused payment, contending that there was no consideration. In this suit by the trust company against Swiller Brothers, the acceptor, judgment was rendered for the plaintiff in the New Brunswick District Court. From this judgment the defendant appeals, contending that the plaintiff was not a bona fide holder within the Negotiable Instruments act and that there was a failure of consideration in consequence of which the defendant was not liable.

Respondent contends, on the contrary, that the plaintiff is the holder in due course and that the judgment was right.

The specific ground upon which the appellant rests is that inasmuch as the trade acceptance had not been accepted at the time it was negotiated to the plaintiff, it was not complete and regular on its face, and therefore under the Negotiable Instruments act the plaintiff was not a holder in due course, and might defeat plaintiff’s recovery by showing no consideration from the, drawer. Appellant seems to concede that the cases of Meyer v. Beardsley, 30 N. J. L. 236, and Trent Tile Co. v. Fort Dearborn National Bank, 54 Id. 33, are adverse to its contention, but contends that the rule established by those cases was modified by the Negotiable Instruments act when it declared that one of the characteristics of a holder in due course is that the instrument be taken when it is complete and regular on its face. The construction contended for by the appellant is not the construction which has been placed upon the statute by the courts. Appellant cites no authority in support of its contention, and we know of none. In 8 G. J. 330, it is said: “The rights of the holder of the bill are the same whether the acceptance was before or after his acquisition of title. * * * A bona fide holder for value of a bill of exchange before acceptance does not require an additional consideration to the drawee for his acceptance in order to enforce it against him.” For these propositions authorities are cited and there appear to be none to the contrary.

Furthermore we incline to think that the question of failure of consideration, if that be considered, was one for the court, sitting as a jury, the finding on which precludes its being disturbed here. The statement in the bill itself is that it arises out oí the purchase of goods from the drawer. The evidence does not disclose any repudiation of a contract to purchase goods but simply is to the effect that appellant received a bill of lading and learned that no goods had been shipped to and received at the destination named in the bill of lading, and that as no goods arrived within a few days Swiller Brothers returned the bill of lading to the drawer, and had not received another bill of lading nor the merchandise mentioned in the bill. This we think did not as a matter of law relieve against the contract nor did it show as a matter of law that the sellers were repudiating or rescinding their contract. So far as appears it may be that the goods were not shipped because of an arrangement of the parties. The mere fact that the goods did not accompany the bill of lading, or that they had not been received for an indeterminate period, might be some evidence from which the judgment couid determine that the sellers intended no longer to be bound by their contract, but it certainly was not conclusive evidence from which the court must find that Swiller Brothers’ rights as purchasers of the goods had in any way been impaired.

The judgment below will be affirmed, with costs.


text:
    NATHAN ZINADER, PLAINTIFF-RESPONDENT, v. NEVIN BUS LINE, DEFENDANT-APPELLANT.
    Submitted May term, 1929
    Decided June 28, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff-respondent, Nathan Zinader and Jacob Feinberg.

    Eor the defendant-appellant, Record, Higgins & Teese.

   Pee Curiam.

This case was commenced in the District Court of Bayonne. It is a companion case to No. 437, May term, 1929; in addition to the grounds of appeal stated in that case, it is alleged, as a ground of appeal, the court tried the case with a jury of six women, nothwithstanding, the state of demand alleged damages in the sum of $500. The verdict of the jury was a verdict of $500 in favor of the plaintiff. Manifestly, this verdict is illegal and cannot stand. 2 Comp. Statv p. 1999, § 149. The judgment of the Bayonne District Court is therefore reversed.


text:
    BEN HORWECH, PLAINTIFF-RESPONDENT, v. NEVIN BUS LINE, DEFENDANT-APPELLANT.
    Submitted May term, 1929
    Decided June 28, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff-respondent, Nathan Zimader and Jacob Femberg. ■

    Eor the defendant-appellant, Record, Biggins & Teese.

   Per Curiam.

This case was commenced in the Bayonne District Court on July 5th, 1928. The summons was returnable on July 12th, 1928. The state of the case shows that thereafter it was on the court’s calendar a number of times, viz., five times, until on November 13th, at the request of the defendant, the case was adjourned until November 23d and marked “peremptorily,” and then at the request of the defendant, the case was adjourned to two o’clock, at that time the defendant presented an affidavit of George Cassidy for a further adjournment on account of an absent witness,, Joseph Hogan, who, when an effort was made the day before to subpoena him he could not be found. This is the sole ground of appeal in this case alleged as error. This we think was not error. It was a matter resting in the discretion of the trial court. Moss v. Newmark, 6 N. J. Mis. R. 1040. The judgment of the Bayonne District Court is therefore affirmed, with costs.


text:
    GEORGE P. ROBERTS AND EVA V. ROBERTS, RESPONDENTS, v. THE C. R. REALTY COMPANY, INCORPORATED, APPELLANT.
    Submitted January term, 1929
    Decided July 3, 1929.
    Before Justices Teenchakd, Kalisch and Lloyd.
    For the appellant, Anthony Armore (Nicholas S. Schloeder, of counsel).
    For the respondents, Gliedt <& Wienche.

   Per Curiam.

This was an action in the District Court of Hudson county to recover a deposit of $500, made under an agreement for the purchase of real estate. The case was heard by the judge, sitting without a jury. There was a verdict for the plaintiffs, and the defendant appeals.

The specifications of error are that the court erroneously denied a motion for nonsuit, and that it erred in its finding against the defendant on the facts.

We think the motion for'nonsuit should have been granted. Prom the state of the case it appears that there was a written contract calling for closing title on December 31st, 1927, at which time the vendor was to deliver a full covenant and warranty deed, free from all encumbrances, except a building and loan mortgage which the plaintiffs were to pay off or assume. Plaintiffs’ proofs showed that they were ready to take title on the date of settlement, but that the defendant was unable to deliver a marketable title because of an open mortgage not yet due. The closing was postponed to enable defendant to clear up the title. In March, 1928, the plaintiffs became tired of waiting for the title defect to be cleared, notified defendant they would not take the property, and demanded the return of their deposit, which was refused.

It further appeared that the defendant did not tender a deed until after the suit was started April 26th, 1928; also that when the demand for the deposit was made the defective title had not been cleared up. It was in this state of the proofs that the motion for a nonsuit was made.

The defendant’s proofs did not materially modify this state of facts.

A date for settlement having been fixed in the agreement without making such date of the essence of the contract, and such date being permitted to pass 'by the agreement of the parties, neither could put the other in default without notice and the affording of a reasonable time to the owner within which to perfect the title. The eases to this effect are many and clear; a late ease on the subject is that of the Orange Society v. Konski, 94 N. J. Eq. 632; affirmed, 95 Id. 254. Still a later authority to the same effect is Nass v. Munzing, 100 Id. 421. Time not having been made of the essence of the contract, either in the written agreement or by any specification of time by the plaintiffs giving reasonable opportunity to the defendant to clear up its title, the plaintiffs were not entitled to recover the deposit of $500.

The judgment is reversed.


author: Peb Cueiam.

text:
    CHALES J. TAYLOR, RESPONDENT, v. HARRY BERNER, TRADING UNDER THE FIRM NAME OF MUTUAL MINERAL WATER WORKS, APPELLANT. SUSIE TAYLOR, RESPONDENT, v. HARRY BERNER, TRADING UNDER THE FIRM NAME OF MUTUAL MINERAL WATER WORKS, APPELLANT.
    Submitted January term, 1929
    Decided July 3, 1929.
    Before Justices Tbenchabd, Kalisch and Lloyd.
    For the appellant, Samuel Harber.

    For the respondents, Levitan, Levitan & Auerbach.

   Peb Cueiam.

The question presented on these appeals is whether the proofs established by the plaintiff in the trial below justified the application of the doctrine of res ipsa loquitur. The actions were to recover damages for injuries received t>3r Susie Taylor, one of the plaintiffs, from the explosion of a bottle containing vich3r, which had been sold and delivered to the plaintiff’s employer by the defendant-appellant. While not the manufacturer of the vichy, the defendant was engaged in the bottling business, and as part of such business had filled the bottle, which, on the occasion in question, exploded.

The plaintiff’s proofs established this and nothing more. At the conclusion of the plaintiff’s case the defendant moved for a nonsuit, and on the ground, among others, that there was no proof of negligence in the defendant or his servant. The motion was denied, and the defendant then offered proofs, tending to show that the bottle used was purchased from a reputable manufacturer, and that proper care was used in the bottling of its contents. At the conclusion of the entire case the defendant moved the court for the direction of a verdict in his favor. This also the court denied. From the judgments entered defendant appeals.

The grounds of appeal are that the rulings on these motions were erroneous, and that the charge to the jury was prejudicial to the defendant. It is sufficient to say with respect to the instructions, that no specific part of the charge was brought to the attention of the court by exception, and it is not, therefore, before us.

The refusal of the motions for nonsuit and the motions for the direction of verdicts for the defendant were properly refused. The defendant, as a bottler, was obliged to rise reasonable care in the filling of the bottle of vieh3r. With the exercise of reasonable care it is obvious that an explosition, such as here occurred, does not ordinarily result. This being true, we think the rule of res ipsa loquitur applied, and that it 'was permissible for the jury to infer from the occurrence of the explosion want of such reasonable care. The proofs presented by the defendant did not remove the cases from the consideration of that body. Hughes v. Atlantic City Railroad, 85 N. J. L. 212.

The judgments are affirmed.


text:
    THOMAS NOLAN, RESPONDENT, v. FIREMEN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY, A CORPORATION, APPELLANT.
    Submitted January term, 1929
    Decided July 3, 1929.
    Before Justices Teenciiabd, Kalisch and Lloyd.
    For the appellant, Lum, Tamblyn & Golyer.

    For the respondent, Quinn, Parsons & Doremus.

   Pee Cukiam.

Plaintiff below obtained a judgment on a Are insurance policy in the Monmouth County District Court, and defendant appeals, claiming that there should have been a nonsuit, and that in any event the loss should have been apportioned.

The policy covered a greenhouse, which a tenant had erected on plaintiff’s property, and which the tenant had also insured as property belonging to himself. It was contended by defendant that the greenhouse, which was destroyed by fire, was conclusively presumed to belong to the tenant as a trade fixture, and that in any event, under a provision of the policy that the company should not be liable under the policy “for a greater portion of the loss than the amount * * * insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers covering such property,” there was no liability.

We think the case of West Shore Railroad Co. v. Wenner_, 75 N. J. L. 494, is controlling as to the right of the tenant to the greenhouse. It was there said that “the right of a tenant to remove trade fixtures at the expiration of his term has no application to a building by a tenant .upon the land which he has leased. When so erected the building becomes part of the freehold and the property of the landlord, in the absence of an agreement between the parties that it shall remain the property of the tenant.” On the facts it is difficult to distinguish the same. It was there a hotel to be used for business purposes; here it was a greenhouse to be used for like purposes, and the tenant had no agreement that it should he his. To like effect, in principle, is the Chancery case of Saling v. Saling, 95 N. J. Eq. 611.

We think the decision below was also right as to the amount of the verdict. The limiting clause has no application to the present situation. As determined by the judge, the tenant was a stranger in interest to the property. He had no insurable interest, and it was not the intention of the policy to compel an owner to reduce his claim whenever an interloper saw fit to obtain a policy on his buildings. To hold otherwise would permit insurance companies to make the provision a means of grossest fraud on their policy holders.

The judgment is affirmed.


text:
    WALTER E. CHANDLER, PLAINTIFF, v. NEW YORK AND PHILADELPHIA BUS LINE, INCORPORATED, DEFENDANT.
    Argued January 17, 1929
    Decided July 3, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, Record, Higgins & Teese and Martin P. Devlin.

    Contra, Vmidewater & Manser.

   Per Curiam.

This is defendant’s rule for new trial in an automobile collision case in which a verdict for $8,500 was awarded to the plaintiff for personal injuries and damage to his car. A new trial is asked on, among others, two grounds: (1) that the verdict on the liability of the defendant was against the weight of the evidence, and (2) that the damages are excessive.

The rule should be made absolute on both grounds. Plaintiff was driving his touring car toward New York on the Lincoln Highway between Princeton and Kingston. While proceeding he came into collision with the rear left wheel of the bus of the defendant company proceeding toward Trenton, as a result of which the plaintiff was injured and his car damaged. The plaintiff stood alone in his evidence as to how the accident happened, his contention being that the defendant’s bus turned out. from behind a truck a short distance ahead of it and collided with the plaintiff’s car which was on its proper side of the highway. The bus driver testified that there was no truck in front of him; that the driver of plaintiff’s car was observed a long distance ahead zigzagging across the road; that the bus remained on its own side of the highway, and had almost stopped to avoid the zigzagging of plaintiff’s car when the plaintiff ran into the left rear wheel, throwing the car around and turning it over. In this he was corroborated by a number of disinterested witnesses. In addition, there was evidence that the plaintiff was in an intoxicated condition when he reached the hospital, to which he was taken, and that a bottle of liquor was found in his car.

We think also that the damages are grossly excessive. Plaintiff’s injuries were not greatly severe nor permanent in character. The value of the car was small and plaintiff’s earnings doubtful.

The rule will be made absolute.


author: Prat Curiam.

text:
    ABRAHAM LEVIN, PLAINTIFF, v. SAMUEL WENOF ET AL., DEFENDANTS.
    Argued January 16, 1929
    Decided July 3, 1929.
    Before Justices Teen chard, Kalisch and Lloyd.
    For the plaintiff, Frank G. Propert (Lewis Starr, of counsel).
    For the defendants, D. Trueman Stackhouse.

   Prat Curiam.

This is a proceeding taken by defendants to vacate a judgment entered on two bonds.

Plaintiff held two mortgages made by defendants (husband and wife), one for $13,800 and one for $2,200. These mortgages were' foreclosed and the property sold and a deficiency resulted. Plaintiff later appeared before a Supreme Court commissioner and filed with him proceedings for entry of judgment on the two bonds and warrants, and judgment was entered for the deficiency.

Defendants contend that this judgment must be vacated. They say the Bond and Warrant act (Comp. Stat., p. 219) permits a judgment by confession only “where the bond or other obligation is given for the payment of money only.” But even so, we think the bonds in this case are not such as are so precluded from judgment by confession. See Harwood v. Hildreth, 24 N. J. L. 51, and Earl v. Jenkins, 71 Id. 416.

They say that judgment by confession cannot be entered on two bonds in one proceeding. We think they are wrong about this. The actions were consolidated in Chancery, and there was one decree only. We think this point is disposed of by Mutual Securities Corp. v. Harris, 100 N. J. Eq. 365.

They say that the proof before the commissioner should have shown the filing of the notice of intention to enter judgment for the deficiency. We think the answer to that is that the act does not require that plaintiff must set out in his affidavit that notice has been filed. It is sufficient if in fact the notice was filed, and that appears.

They say that the judgment is irregular because no appearance was entered by an attorney. We think the answer to that is that it is ill-founded in point of fact, and certainly there was in legal effect an appearance by an attorney.

They say that the statute in relation to the entry of judgment on bonds and warrants is unconstitutional in that it permits a judgment to be entered without any personal appearance by attorney on behalf of the defendant under warrant to confess. We do not think the act is unconstitutional in that regard. Thousands of judgments have been entered, as this one has been entered, under this same act of long standing, and no suggestion was ever made heretofore, so far as we are aware, that the act was unconstitutional in that regard.

They say further that the judgment is illegal because the plaintiff received (or will or may receive) some rents from the receiver under the foreclosure proceedings after judgment was entered. We think the answer to this is that the sale took place on March 2d, 1928; that the action on the bonds was started on March 17th, 1928, and judgment was entered on March 19th, 1928. It further appears that the report of the receiver (upon which defendants rely on this point) was not filed until September 17th, 1928. It would seem to follow that anything appearing in that report could not invalidate the judgment nor justify us in vacating it, since the entry of the judgment is shown to have followed the statutory requirements. Whether if circumstances in the future seem to call for it, the court could and would control the execution as to this rent, is a matter with which we think we are not now concerned, and which need not be now determined.

The petition to vacate the judgment is denied, with costs.


author: Pee Cueiah.

text:
    LOUISE P. HARING ET AL., RESPONDENTS, v. CHARLES W. BANKS, APPELLANT.
    Decided July 3, 1929.
    Before Gummeee, Chibe Justice, and Justice Parker.
    For the appellant, William P. Braun.

    For the respondents, Joseph Coult.

   Pee Cueiah.

This action was brought to recover compensation for personal injuries sustained by the plaintiff Louise Haring, resulting, as she claimed, from the negligence of the defendant, and also compensation for the consequential damage suffered by her husband therefrom. The trial resulted in the rendition of verdicts in favor of the plaintiffs, and the defendant has appealed from the judgment entered thereon.

Mrs. Haring was suffering from a diseased appendix and a fibroid tumor. Her family physician recommended an operation, and Dr. Banks, the present appellant, was employed to perform it. By his advice, Mrs. Haring was taken to St. Mary’s Hospital, in Orange, and he arranged for her reception there. The operation having been completed, Mrs. Haring was put upon a carrier used to transfer patients from the operating room, and was taken to another room in the hospital assigned for her use, and was there placed upon a bed. This bed had a hot water bottle lying in it at about the point where her shoulders would rest. This bottle had apparently been used for the purpose of warming the bed, and the person who had been doing that work had negligently left it there. Mrs. Haring was placed upon her back in the bed in such a position that the hot water bottle lay between her shoulders, and as a result thereof she was severely burned. These'facts are undisputed.

According to the testimony submitted on the part of the plaintiffs, shortly after Mrs. Haring began to recover from the effects of the anaesthetic that had been administered to her, Dr. Banks came into the room to see how she was getting along. She then seemed to be in great pain, crying a good deal, and told the doctor that she felt terrible, saying: “I expected this” (pointing to the place where the operation had been performed), “but not this” (pointing to her shoulders) ; and then said: “Get me out of this. I feel terrible. My shoulders are all cut.” Dr. Banks paid no attention to this statement, merely saying that the patient had a fine jag on, and then walked out of the room.

At the close of the plaintiff’s case the defendant moved for a nonsuit on the ground that the testimony submitted failed to show any negligence on his part; and afterward, and when both sides had rested, he moved for the direction of a verdict in his favor upon the same ground. Both of these motions were denied, and the principal reason argued for a reversal of the present judgment is that there was error in the refusal to grant these motions. We are not impressed with this contention. Whether or not when his patient made the complaint to him above set out Dr. Banks owed her the duty of making an examination for the purpose of ascertaining whether the patient really was suffering pain between her shoulders, and, if so, what was the cause of it, and, if he did owe her that duty, whether his failure to perform it was at least to some extent the cause of her injury, were each of them questions for the jury and not for the court to determine; and, therefore, the refusal of the court to take away from the jury the decision of these questions was proper.

We are also asked to reverse this judgment because, as it is alleged, the court improperly admitted a photograph taken of Mrs. Ilaring’s back some little time after the injury resulting from the burn. This photograph showed the location and character of the wound. Counsel for the appellant argued that it ought not to have been admitted, unless the photographer who took it was first called to prove its identity. It appeared from the testimony, however, that Mrs. Ilaring’s husband was present when the photograph was taken, and he testified that it was a correct depiction of the then condition of his wife’s shoulders. This, in our opinion, justified its admission in evidence.

Other grounds for reversal are directed at alleged errors in rulings upon the admissibility of testimony, and in the charge to the jury. They are not of sufficient importance to require discussion. We deem it sufficient to say that our examination of them leads us to the conclusion that each one of them is without legal merit.

The judgment under review will be affirmed.


text:
    GUSSIE REICHNER AND MAURICE REICHNER, HER HUSBAND, PLAINTIFFS, v. SAMUEL T. DAVIDSON, DEFENDANT.
    Argued January 17, 1929
    Decided July 3, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, Weinberger <& Weinberger (Joseph J. Weinberger, of counsel).

      Contra, Feder ■& Binder.

   Per Curiam.

Plaintiffs sued the defendant to -recover back the sum $2,500 (and interest) which they paid to the defendant, as they claim, as the result of the false and fraudulent representations of the defendant, and his son, who acted as his agent.

The defendant was employed by the plaintiffs to act as their broker,. to sell certain of their property, in consideration of which they agreed to pay him a commission. Whereupon contracts for exchange of properties were entered into between the plaintiffs and Mr. and Mrs. Connolly. The plaintiffs claim that the defendant and his son, who was his agent, made certain false and fraudulent representations to the plaintiffs, upon which they relied, to induce the plaintiffs to accede to temporary terms, which were at variance with the terms oí the contracts oí exchange, which the parties had originally entered into, because the Connollys were unable to convey their property in accordance with the terms of their contract, and that in order to induce the plainitffs to go through with the exchange on other terms, and in order that the defendant might be paid his commission, the defendant and his son falsely represented to the plaintiffs that a document (which the Connollys executed to secure the payment of part of the purchase price on the exchange) was a mortgage on a particular parcel of real estate, whereas in truth and fact the instrument was a third mortgage on the property which the plaintiffs were conveying in exchange, and not the property represented.

The trial occurred at the Bergen Circuit, and resulted in a verdict for the plaintiffs in the amount claimed, with interest, making a total of $2,815.28.

We now proceed to deal generally with the various groups of reasons which the defendant has written down for a new trial.

We have examined with care the evidence and charge of the court, in the light of the pleadings, and we cannot say that the verdict is against the weight of the evidence, or outside of the issues raised by the pleadings, or that it was contrary to the charge of the court.

One of the issues raised by the pleadings is, whether fraud existed as claimed by the plaintiffs. The complaint charges the defendant with the fraudulent representations and misconduct already referred to, and the answer denies this. Now the evidence which was adduced deals mainly with that issue. The trial judge submitted such evidence to the jury, and the jury’s verdict on that issue is that the fraud charged against the defendant and his sou, who was his agent, actually existed. The plaintiffs’ case was made out by the testimony of both plaintiffs, Mr. Edwards and Mr. Connolly. True, this ease of plaintiffs was stoutly denied by the defendant and his witnesses, but we consider that the verdict is not legally subject to the objections now under consideration.

We are also of the opinion that the verdict was not excessive.

We are also of'the opinion that the trial court did not err in the. admission or rejection of evidence, certainly not as to any matter which may fairly be said to be prejudicial to the defendant.

We find no error in the charge of the court, certainly none of which has been made the subject-matter of a reason-for anew trial.

Upon the whole case our conclusion is that the rule to show cause.must be discharged, and it will be so ordered.


author: Pee Ctjeiam.

text:
    JAMES HANCE AND SUSAN HANCE, HIS WIFE, PROSECUTORS, v. CITY OF NEW BRUNSWICK ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided July 3, 1929.
    Before Justices Tkenchakd, Lloyd and Case.
    Por the prosecutors, Walter H. Bacon, Jr.

    Por the defendants, Thomas H. Hagerty (Russell E. Watson, of counsel).
   Pee Ctjeiam.

Prosecutors apply for a writ of certiorari to set aside a tax sale of their property in New Brunswick. They are purchasers of the property from one Weller, who in turn was the purchaser from the United States Housing Corporation (an agency of the United States government), under an agreement of sale. The Weller agreement was made on February 11th, 1920, and Weller’s interest was purchased by the prosecutors March 27th, 1923. Since the transfer to the prosecutors they have been in possession and enjoying the property, together with the incidental protection afforded by a city government. This contract called for payment of the purchase price in installments, and these installments were paid as they fell due. From 1921 to 1927 the property was assessed for taxes, and the same remaining unpaid, the sale above mentioned resulted.

There is no attack on the regularity of the proceedings incident to the sale, but it is contended that the interest of the prosecutors is not subject to taxation by the city inasmuch as the title to the property still remains in the federal agency, and will continue to so remain until the last installment of the purchase price under the agreement is paid and a deed delivered to the prosecutors.

We find no legal support for this contention. The status of the property for purposes of municipal taxation has been clearly defined by the Supreme Court of the United States in the case of New Brunswick v. United States, 276 U. S. 547, and it is to the effect that the city may, in so far as federal rights are concerned, “assess the taxes against the purchasers upon the entire value of the lots and enforce collection thereof by sale of their interest in the property.” It was further held that such sale could not affect the interest of the Housing Corporation consisting of the unpaid portion of the purchase price, as to which the corporation stood in the relation of a mortgagee.

The situation is therefore that the tax sale effects a transfer of the property to the purchaser, subject to the interest yet remaining in the Housing Corporation, which interest is not subject to taxation. This results from the immunity of federal property from state taxation, under the federal constitution, and hence a fee is conveyed to the purchasers as required by state laws, subject to the paramount claim held by the Housing Corporation, which in the opinion cited is likened to that of a mortgage.

On meritorious grounds, therefore, the writ of certiorari should be denied. It appears, however, by the stipulation of facts submitted in the present .ease, that this is the fourth attempt to raise this question, either by a like application to this court, or to its indivdual members, all of which applications have been refused. Eor this additional reason we think the writ should mot issue, and it is therefore denied.


text:
    BELLA CHAUSMER, APPELLANT, v. HERMAN ARONS, RESPONDENT.
    Argued January 16, 1929
    Decided July 3, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    Eor the appellant, Joseph Zemel.

    Eor the respondent, Fast & Fast.

   Pee Curiam.

This was an action by a landlord to recover three months’ rent of premises on Springfield avenue, in Newark. There was judgment by the court for one month’s rent only, amounting to $175, and from this judgment the plaintiff appeals.

From an agreed state of the case it appears that the tenancy was under a lease from August 5th, 1925, to August 31st, 1928, at the rental of $175 per month. The tenant paid the rent for the month of May, 1928, but refused to pay for June, July and August, 1928. The reason for this refusal was that on June 5th there was a fire which resulted in a partial destruction of the building on the leased premises. On June 6th plaintiff learned of the fire and made immediate offer to repair. The defendant, not having come to an agreement with his insurance carriers as to his damages, refused to permit the plaintiff to make the repairs until the early part of August, when permission was given and the repairs were begun and completed bjr September 1st. The defendant claimed abatement of the rent for the time necessary to make the repairs, and the plaintiff claimed that there should be no abatement. The lease contained this clause:

“That the tenant shall, in case of fire, give immediate notice thereof to the landlord, who shall thereupon cause the damage to be repaired forthwith; but if the premises be so damaged that the landlord shall decide to rebuild, the term shall cease and the accrued rent be paid up to the time of the fire.”

While the lease calls for the immediate report of the fire and repair of the property, it contains no stipulations for suspension of the rent and in no event could the tenant refuse permission to make the repairs and then complain that they were not made.

Nor does section 31 of the Landlord and Tenant act (Comp. Stab., p. 3078), which provides that “whenever any building or buildings erected on leased premises shall be injured by fire, without the fault of the lessee, the landlord shall repair the same as speedily as possible, or in default thereof the rent shall cease until such time as such building or buildings shall be put in repair/’ aid the defendant. This statute only modifies the common law under which the tenant was liable absolutely for the rent by requiring that the landlord shall repair the damage as speedily as possible and relieves from payment of rent only on the landlord’s failure to repair when the fire shall be without the fault of the tenant. Here there was no failure to repair "as speedily as possible” (the tenant having refused permission), nor, as was essential, did the defendant meet the burden imposed on him to prove that the fire was without his fault. Colonial Land Co. v. Asmus, 77 Atl. Rep. 1022.

The judgment is reversed'.


text:
    SAMUEL TABAS AND MORRIS TABAS, TRADING AS ACORN IRON AND METAL COMPANY, PLAINTIFFS, v. MORGAN TERMINAL COMPANY, A CORPORATION, AND ABRAHAM JELIN, DEFENDANTS.
    Argued January 16, 1929
    Decided July 3, 1929.
    Before Justices Tkenoi-iaed, Kalisch and .Lloyd.
    For the rule, Samuel D. Hoffman (Samuel G. Meisterman, of counsel).
    Contra, Godfrey & Garrison.

   Per Curiam.

This is defendants’ rule to show cause why a verdict at the Atlantic Circuit of the Supreme Court, in favor of the plaintiffs, for $3,81'5, should not be set aside.

The suit as originally brought was against both the Morgan Terminal Company and Abraham Jelin; but on motion, after opening of plaintiffs’ case, and by consent of attorneys of plaintiffs, a nonsuit was entered in favor of defendant Abraham Jelin. The jury rendered a verdict against defendant Morgan Terminal Company, and it is this company that obtained the present rule to show cause.

It appears that on October 16th, 1925, plaintiffs wrote to the defendant company that they “purchase of you all of your buckwheat coal lying at your plant at Morgan, Yew Jersey, for the sum of seventy-five cents per gross ton, as is and wliereis.” The letter further said, “we are to remove all of the coal that we can possibly get away from the property,” but within what time was not stated in the letter. Accompanying the letter was a check for $250 on account “as good faith in the deal and to bind the contract, and balance will be paid after the coal is removed and weights obtained.” The next day the Morgan Terminal Company replied: “1 have your letter and cheek of October 16th and note contents, and beg to advise that this material must be removed by December 1st, 1925.”

At the trial it appeared that after the receipt of this letter one of the plaintiffs answered the letter by calling on the vice-president of the company, who conducted the negotiations for the defendant. As to what was said in that conversation there is dispute, but it was open to the jury to find, if they saw fit, that it was agreed that plaintiffs were to have a reasonable time in which to remove the coal. As we have said, that question was in dispute in the testimony, and consequently a jury question was presented, and that question was accordingly presented by the trial judge to the jury. The jury found apparently that the plaintiffs were to have a reasonable time in which to remove the coal. We cannot say that the verdict in this regard was, against the great weight of the evidence.

Another question submitted to the jury was the amount of damages the plaintiffs suffered because of defendant’s alleged failure to carry out its contract and allow the plaintiffs to have the coal. The verdict was $3,875, and defendant contends that in any event, it should not have exceeded $1,875. The contention is based upon the theory that only one of two or three piles of coal in the yard was sold. But defendants’ theory as to that was likewise submitted to the jury, and it found against the defendant, and in favor of the plaintiffs’ theory which was that they bought “all of your buckwheat coal lying at your plant at Morgan * * * as is and where is,” as stated in plaintiffs’ letter.

The jury’s finding in favor of the plaintiffs as to the amount of coal purchased cannot be said, under accepted rules, to be against the great weight of the evidence, nor can any legal fault be found with the verdict as to its amount, or otherwise.

The rule to show cause will be discharged.


text:
    FRANK A. GILLAN, RESPONDENT, v. BOROUGH OF EAST NEWARK, HUDSON COUNTY, NEW JERSEY, APPELLANT.
    Submitted May 8, 1929
    Decided July 5, 1929.
    ' Before Justices Parker, Black and Bodine.

      For the respondent, Tumulty & Tumulty.

    For the appellant, Wother & Oilhooly.

   Per Curiam.

The pertinent facts, as stated by the District Court, are as follows: The plaintiff had been employed as auditor by the defendant for a period of twenty-one years at a yearly salary. In the months of December, 1927, and January, 1928, it became apparent to the council of the borough that there were irregularities in the account of one of the officials, and on February 7th the plaintiff was authorized and directed, by resolution of the council, to investigate and report as to the shortages. On February 8th he began the investigation and made a survey of four hundred and ninety-eight accounts connected with the water supply, gave notices to all those who were concerned in the water accounts, and discovered a shortage of $7,600 on March 14th. Later, on March 26th, he made a supplemental account, and thereafter met with certified accountants to aid them in their work and 'to verify his report. He spent six weeks of eight-hour days on this work. It was entirely aside from the routine work which he had been called upon to perform as auditor at his yearly salary. He presented a claim to the defendant for $500. Nothing had been said expressly as to compensation by the parties when the work was undertaken, or as it progressed.

A public officer cannot receive extra money for extra work. Evans v. Trenton, 24 N. J. L. 764. The District Court, however, found that Gillan was not .a borough officer and had performed his extra work under the expectation of payment. A municipality might properly agree to pay an employe additional money for additional work. Crane v. Shoenthal, 76 N. J. L. 378. There can also be a recovery on a quantum meruit for work and materials furnished at the request of a municipality. Wentink v. Passaic, 66 N. J. L. 65.

This leads to an affirmance of the judgment below.


text:
    PATRICK H. GALLAGHER, RESPONDENT, v. EUGENE J. ANSPACH, TRADING AS ANSPACH BROS., APPELLANT.
    Submitted May 8, 1929
    Decided July 5, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the appellant, Griffinger & Griffinger.

    Eor the respondent, John W. McGeeham,, Jr.

   Per Curiam.

The court directed a verdict for $400. The defendant, Anspach, was indebted, as evidenced by his letter of May 5th, 1937, to the Eidelity Mortgage Company for commissions for leasing a store in Asbury Park. The letter is as follows:

“Anspach Bros.
Opticians,
. 833 Broad Street,
Newark, N. J.
May 5, 1937.
Mr. Wm. J. Blair, President,
Eidelity Mortgage Co.,
Asbury Park, N. J.
Dear Sir:
As per our conversation this morning I am enclosing herewith our check for $353.50 as the first payment of your commission totaling $953.50 for renting our store at No. 634 Cookman avenue, Asbury Park, New Jersey.
The balance of $600 is to he paid as follows:
July 1 .....................$200
September 1................. 200
November 1 ................... 200
Kindly sign one of these indicating your acceptance of this arrangement and return same to me.
Respectfully,
Eugene J. Anspaoit.”

The July payment was met, but the September and November payments were in suit. The mortgage company assigned to the plaintiff in this action the indebtedness evidenced by this letter for which judgment was entered.

The admission of the assignment in evidence is challenged, because it is said (1) that consideration between the assignor and assignee was not shown, and (2) because there was no proof of corporate action. This is not, in fact, true.

The court was not concerned with the prevailing rate of commission, and hence refused to receive evidence with respect thereto. The other assignments of error deserve no further comment.

The judgment is affirmed, with costs.


text:
    JOSEPH MEYERS, RESPONDENT, v. COLUMBIA CASUALTY COMPANY ET AL., APPELLANT.
    Submitted May 8, 1929
    Decided July 5, 1929.

      Before Justices Parker, Black and Bodine.
    Eor the respondent, David M. Litwin.

    For the appellant, Ealisch & Ealisch.

   Pee Curiam.

The court entered a judgment in favor of the plaintiff for $473.64. This judgment covered the difference between the rent reserved in the lease on a garage upon which this suit was brought and the amount of rent received under a new lease, executed by the plaintiff below with a new tenant, for the months of June, July, August, September, October, November, December, 1927, and January, 1928. There were three defendants, the two tenants, Busweiler and Reese, and the Columbia Casualty Company, which company became surety to the landlord for the performance of the covenants in the lease by Busweiler and Reese.

The right of the plaintiff to recover is based upon a written lease and a bond. The defendant contends that the parties to the original lease surrendered the same, and that hence there is no liability. There is no proof of such surrender. In fact, the proofs do show that the minds of the parties never met on such a relinquishment.

The next point suggested is that the new lease was made without notice to the surety. But no notice was required under the contract. Counsel for the appellant states in his brief that the surety in this case is in an identical position with the tenant.

The judgment below should be affirmed.


text:
    THE STATE OF NEW JERSEY, EX REL. ALFRED E. GA NUN, RELATOR, v. HENRY T. LEFFERTS, RESPONDENT.
    Submitted January term, 1929
    Decided July 3, 1929.
    Before Justices Trestohard, Kalisch and Lloyd.
    For the relator, Osborne, Cornish & Scheck.

    For the respondent, William, F. Gorman.

   Per Curiam.

This is an information in the nature of a writ of quo warranto, filed by Alfred E. Ga Nun, who thereby seeks to oust Lefferts, incumbent of the office of tax assessor in the town of Nutley, and to have himself declared entitled thereto. The information alleges that Lefferts, the incumbent, has held the office unlawfully since August 1st, 1928, and that the relator was on July 31st, 1928, duly appointed to the office for a period beginning August 1st, 1928, and ending the third Tuesday in May, 1929; that the relator demanded the office and the books, papers, &c., but was refused. The incumbent replies, claiming a right to hold the office until his successor is appointed, and denying that the relator was legally appointed.

The town of Nutley is governed by three commissioners elected under the Walsh act. Under that act the commissioner of revenue and finance is created, and that office, on July 31st, 1928, was held by Ealeigh S. Eeif, who made the appointment of the relator already referred to. Under the terms of the Walsh act, and legislation prior and subsequent thereto, the term of office of assessor is for the period of three years, and by the act of 1920, page 42, it is enacted that the term of office shall commence on the first day of July and continue for the number of years designated in the act under which the election is held, and that the terms of those then holding office, and ending on a day other than the 30th of June of any year following the passage of the act, should be extended until the June following the end of their term.

Lefferts, the incumbent, was elected assessor, taking office July 21st, 1921, when he was elected for a period of three years. In July of 1924, 1925, 1926 and 1927 he was reelected, but each time for the period of one year. The election of July 12th, 1927, provided that his term of office was to expire on June 30th, 1928, since which time he has not been elected.

Without determining the status of the incumbent, we think it clear that the relator is without standing to contest the title to the office. In the recent case of Noccolini v. Ubertino, 96 N. J. L. 306, it was held that “where the law prescribes the term of a municipal officer, it is beyond the power of the governing body of the municipality to appoint for a greater or less term.”

The legislature in its-wisdom has declared the term of office of the assessor in the present ease to be for the term of three years and that this term shall expire on the 30th day of June at the expiration of such period. The relator, for reasons which do not appear, was appointed by the commissioner of revenue and finance on July 31st, 1928, to hold office for a period beginning August 1st, 1928, and terminating on the third Tue'sday of May, 1929. Such appointment under the authority of the case cited was a nullity, the relator acquired thereby no title to the office, and ior this reason the relief prayed must be denied, and j udgment given for the respondent.


author: Pee Ouetam.

text:
    ARTHUR C. FOSTER, RESPONDENT, v. HENRY J. BEHRE, APPELLANT.
    Decided July 5, 1929.
    Before Justices Parker, Black and Bodine.
    For the appellant, 17. Warner Dor emus.

    For the respondent, Oliver K. Day.

   Pee Ouetam.

The plaintiff had owned an Irish setter dog, “Red Bounce” by name. He brought replevin and the defendant claimed property.

It is apparent from the record in the case that the plaintiff was the owner of the dog, and that if a sale occurred it occurred on a Sunday. The balance due had uot been paid by the defendant, nor had the parties been in such relation one with the other that a new promise could be found. Rosenblum v. Schachner, 84 N. J. L. 535.

In the case of Reeves v. Butcher, 31 N. J. L. 224 (at p. 228), Chief Justice Beasley said: “The law leaves the parties to an illegal transaction where it finds them; it will not actively help either, and therefore such law cannot be invoked to imply a promise in favor of a particeps criminis to pay money due on an agreement, which such law denounced as invalid. Nor do I think there is any hardship in such a case; for he who knowingly infringes a positive provision of the penal code has no just ground of complaint, if the law, which he has contemned, shall refuse to help him avoid the consequences of his own misconduct.”

Vice-Chancellor Learning said, in County Engineering Co. v. West, 88 N. J. Eq. 109, 111: “The effect of our statute on contracts made on Sunday has been before the courts of this state so frequently that little doubt touching the law of this state in that respect can be said to exist.” And after citing a number of cases concluded: “In these several decisions the view is consistently maintained that where the contract is concluded on Sunday our courts will not enforce it.”

Counsel for the appellee, however, argues that his client was entitled to judgment because of the rule laid down in Wooden v. Shotwell, 24 N. J. L. 789. In that case, an ejectment suit, the party in possession claimed under a deed given as a result of a lottery. The statute provided that every grant of land made in pursuance of any lottery should be absolutely void. Hence, to give effect to the statute the court gave judgment for the lessee, who took from the party who had made the grant pursuant to the terms of the lottery. Such is not our case. Sunday transactions are merely forbidden by the statute.

The judgment below must be reversed.


text:
    ALPHONSO EMELE AND BERTHA EMELE, PLAINTIFFS, v. ARROW CARRIER CORPORATION, DEFENDANT.
    Submitted January term, 1929
    Decided July 3, 1929.
    Before Justices Teenchaed, Kalisch and Lloyd.
    For the rule, William K. Flanagan.

      Contra, William C. Cebhardt & Son.

   Pee Cukiam.

This is a rule for change of venue in a transitory action. From a stipulation of facts entered into by the parties it appears that the plaintiffs reside in Easton, Pennsylvania; that the cause of action arose in the city of Easton; that the defendant is a New Jersey corporation with its principal office in Paterson; that the process was served in Passaic county; that the venue was laid in Hunterdon county; that an answer was filed and the case noticed for trial at the December term, 1928, at the Hunterdon Circuit, and that only thereafter was the present rule applied for and allowed.

The cause of action arising in another state and the plaintiffs residing out of this state, the venue could only properly be laid in Passaic county, where the defendant’s principal office was located, and where the process was served. This, however, does not control the case. In Peister v. Public Service, 100 N. J. L. 53, it was said by this court that “an application for a change of venue should be made as soon as the moving party acquires knowledge of the facts upon which the motion is based and failure so to do will constitute a waiver.”

Defendant has not shown in the present case, nor does the- stipulation establish) that the application was made as soon as the facts were known. On the contrary we think it fairly inferable that the defendant deliberately permitted the case to reach the point of trial before it moved in the matter.

The rule is discharged.