author: Newman, Judge.

text:
    MORRIS FEDER, JACOB PARKER AND MINNIE TERRIS, PLAINTIFFS, v. SAM SOLOMON AND JULIA SOLOMON, DEFENDANTS.
    Decided November 17, 1925.
    Party Walls — Encumbrance or Valuable Appurtenant — Plaintiff Agreed to Buy Property From Defendant Free of Encumbrance, With Specified Exceptions, Afterward It Was Found That One of the Walls Was a Party Wall — Held, That Party Walls, Without Agreement to Maintain Same, is Not An Encumbrance, That Ownership Goes Only to Center of Wall and That the Other Part, Supporting as It Does the Owner’s Wall, is a Benefit — If An Agreement to Maintain Wall Exists It May Become An Encumbrance.
    Oil findings of fact and conclusions of law.
    For the plaintiffs, Jacob I. Jajfe and Weinberger & Weinberger.

    For the defendants, Feeler & Rinzler.

   Newman, Judge.

This case was trUd before the court without a jury. I find the facts to he as follows:

On the 6th day of April, 1923, the defendant entered into a contract with the plaintiffs whereby the defendants agreed to convey to the plaintiffs certain lands and premises in the city of Passaic, known and designated as Nos. 220 and 22014 Monroe street, being a plot of ground having a frontage of thirty-seven and. one-half feet, more or less, on Monroe street, and a depth of one hundred feet, more or less. The purchase price was the sum of $40,000. The contract further provided that the premises were to be conveyed free of all encumbrances with the exception of two mortgages, the first in the sum of $10,000 and the second in the sum of $8,000. The plaintiffs paid $1,500 deposit and were to pay the difference in cash on or before May 11th, 1923, the date fixed for the closing of title.

After the signing of the contract the plaintiffs caused a search of the premises to be made, for which they incurred an expense of $150, and also caused a survey to be made at an expense of $50, both of which charges I find to be reasonable.

I further find that the two sides of the brick building erected on the premises were part of a wall used in common by the owners of the premises about to be conveyed and the adjoining owners on each side, and that the lines of the premises in question on each side run through the centre of this wall, the situation thus presented being what is commonly called a party wall.

I find that the district in which these premises are located is a business district; that the buildings are closely built; that the building on the premises in question contains stores, and that there is no agreement between the respective adjoining owners and the plaintiffs or their- predecessors in title as to the maintenance or repair of these walls.

The plaintiffs allege that these party walls were an encumbrance on the property, and for that reason they declined to accept the deed and pay the balance of the purchase price, and have instituted this suit for a recovery of the initial payment of $1,500, together with the reasonable expenses of the search and survey thus incurred. There is no dispute as to the essential facts, but the parties have joined issue on this interesting question of law.

No- case in this state has been called to my attention where the question has been 'flatly decided, and the only case approaching a solution of the point involved is the opinion of the Court of Errors and Appeals in this state in Burns v. Thomas, reported in 86 Atl. Rep. 382. In that case complainant had agreed to buy a lot in Jersey City twenty-five feet in width, together with a four-story brick apartment dwelling situated thereon. The deed as delivered described the westerly line of the lot as running through the centre of a party wall standing partly on the premises thereby conveyed and partly on the premises nert adjoining thereto. Complainant sought to have the deed reformed by including the whole of such party wall on such westerly side, on the theory that the contract provided for a four-story building, but that the description in the deed as given did not -include a complete building. The court said (at p. 383) :

‘‘The case is the ordinary case that occurs in our compactly-built cities, of a building with party walls. A building is none the less a complete building because one of its side walls requires, or is strengthened by, a supporting wall of an adjoining building. The right of mutual easements in such cases is wrell recognized, and each building is regarded as complete in itself. The language used by Chief Baron Pollock in Richards v. Rose, 9 Exch. 218, by the New York Court of Appeals in Rogers v. Sinsheimer, 50 N. Y. 646, and the Supreme Court of Massachusetts in Carlton v. Blake, 152 Mass. 176; 25 N. E. Rep. 83; 23 Am. St. Rep. 818, sufficiently vindicates this definition of a building.”

The better opinion seems to be that a wall standing equally on both lots, and held in common by the adjoining proprietors, is not an encumbrance, but a valuable appurtenant which passes with the title to the property. Maup. Mar. Tit. R. E. 326, citing cases.

In Hendricks v. Stark, 37 N. Y. 106, where there was no covenant to maintain and rebuild the wall, the Court of Appeals of that state said:

“A party wall, creating a communitv of interest between adjoining proprietors, is in no just sense to be deemed a legal encumbrance upon the property.
*fA party purchasing a hotel and premises at public auction, without being informed that part of the walls of the adjoining other buildings are party walls, cannot, for that cause, refuse to complete the purchase price.
“As between adjoining proprietors maintaining party walls, their mutual easement in walls is a benefit and not a burden to each of them. It is a valuable appurtenance, which-passes with the title of the property.”

This doctrine was aprpoved by the same court in the case of Bull v. Burton, 337 N. Y. 101. To the same effect is Schaefer v. Blumenthal, 169 Id. 331.

37 R. C. L. 507, § 333, lays- down the following rule:

“In the case of the sale of a city building the fact that the. side walls are party walls does not constitute such an encumbrance or defect in the title as will relieve the purchaser from completing the purchase. * * *
“For, as has been said since the title acquired by the purchaser will extend only to the middle of the party walls, it is obvious that the mutual easeinent for their support is a benefit, and not a burden, to him as well as the adjacent proprietors. It is a valuable appurtenance which passes with the title of the property, and its value to him -is not diminished by the fact that it is equally beneficial to the adjacent owners. Also, though the erection of a party wall creates a community of interest between neighboring proprietors, there is no just sense in which the reciprocal easement for its preservation can be deemed a legal encumbrance on the property. The benefit thus secured to each is not converted into a burden by the mere fact that it is mutual and not exclusive.”

Professor Reeves in his work on Beal Prop, (at p. 394), sa3rs :

“It is because of its characteristics, as above explained, that the existence of a party wfall on a lot of land, and the ordinary covenants relating to it, do not constitute an encumbrance within the meaning of a covenant against encumbrances in a deed of the land or in a contract for its sale.”

There is a distinction to be recognized where there is a covenant as to maintenance and rebuilding the wall made between the adjoining owners. In that case, there being a covenant running with the land, it is recognized as an encumbrance because of such perpetuity. That distinction was recognized by the Court of Appeals of New York in the case of O'Neal v. Van Tassel, 137 N. Y. 297, in which that court said:

“But the chief point of distinction consists in the fact that there is here a covenant running with the land, which compels the owner 'to rebuild and repair, and, when rebuilt, it must be on the same spot, of the same size, and of similar materials as when originally constructed Such a covenant cannot be regarded in any other light than as a perpetual encumbrance, which, in the case of urban property, restricts its free use and enjoyment, and may seriously embarrass the owner in respect to its future improvement. If he desired to build, enlarge or rebuild, he might be compelled to build an entirely independent wall upon his own premises, and thus further reduce the available space on his own lot, and still be liable upon his continuing obligation to repair or rebuild the party wall.”

In the absence of a covenant between the joint owners there is no obligation to rebuild a party wall. Heartt v. Kreuger, 121 N. Y. 386; Oman v. Day, 5 Fla. 385; Antomarchi v. Russell, 63 Ala. 356; Sherred v. Cisco, 4 Sand. Sup. Ct. 480; Reynolds v. Fargo, 1 Sheld. 531.

Plaintiffs further allege in their complaint that by their agreement to convey free and clear of encumbrances the defendants perpetrated a fraud upon them. Since it has been shown that there was no encumbrance that claim fails.

In their brief counsel for plaintiffs argue that they could recover on the ground o£ mutual mistake. Assuming that such recovery were possible in an action at law, there is no such claim in the complaint.

I, therefore, conclude that the plaintiffs were not justified in refusing to take title upon the ground that there was an encumbrance upon the property by reason of the presence of this party wall.

Judgment should, therefore, be entered for the defendants.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WILLIAM H. NUTT, OVERSEER OF THE POOR OF TRENTON, DEFENDANT IN CERTIORARI, v. ALEXANDER ARBITELLI, PROSECUTOR IN CERTIORARI.
    Submitted May 15, 1925
    Decided November 19, 1925.
    Bastardy — Appeal From Order of Trial Court Adjudging Defendant Not Guilty — Appellate Court Found Defendant Guilty— Defendant Now Alleges That Appeal Cannot Legally Be Taken, and That Record Not Complete Because No Written Order of Trial Court Dismissing Complaint Was Wladei— Held, That Neither Ground For Writ Was Substantial, and Judgment is Affirmed.
    On certiorari, &c.
    Before Justices Trenchard, Katzenbach and Lloyd.
    Por the presecutor in certiorari, John U. Kafes.

    Por the defendant in certiorari, Joseph J. Felcone and Martin P. Devlin.

   Per Curiam.

This was a bastardy proceeding instituted by William H. Nutt, overseer of the poor of the city of Trenton, against Alexander Arbitelli, wherein the defendant (the prosecutor "of this writ) was charged with being the father of the bastard child likely to be bom of the body of one Carmella Santasero, and likely to become a charge on the city of Trenton.

After warrant and arrest, and bail pending a hearing of the charge, the hearing came on before the judge of the, police court of the city of Trenton, on April 15th, 1924, when, after hearing, the court declared orally that, in his judgment, the overseer of the poor has not sustained the burden required of him hjr law, and, therefore, declared that he would not make any order against defendant. Two days thereafter the overseer of the poor appealed from such decision in the following language: “I do hereby appeal to the next Court of Quarter Sessions for the county of Mercer from the order dismissing the complaint in the above-entitled matter made on the 15th day of April, 1924, by you, as judge of the police court, in which it was adjudged that the said Alexander Arbitelli was not the reputed father of a bastard child of one Carmella Santasero.”

The hearing of the appeal came on before the judge of the Mercer County Court of Quarter Sessions. Defendant’s counsel thereupon moved for a dismissal of the appeal on the ground that “there was no order of the police court from which to appeal.” That motion was overruled. The defendant, through counsel, then announced that he “would appeal from the court’s ruling and would not put in any defense.” The judge of the Court of Quarter Sessions then ordered, over objection of defendant’s counsel, that the judge of the police court “be and he is hereby directed to file an order discharging the said Alexander Arbitelli, as adjudicated by the said court on April 15th, 1921, and that said order to he filed as of April 15th, 1924, nunc pro tunc ” and such order was filed accordingly.

The judge of the Court of Quarter Sessions thereupon found the defendant to ho guilty of the charge made against him, and thereupon ordered him to pay the sum of $3 per week and the sum of $50 for expenses, and also to enter into a bond in the sum of $500 with proper sureties, conditioned for the faithful performance of the weekly payments.

The foregoing recital is taken in substance from the brief of the defendant, the prosecutor of this writ, and sets forth (so far as essential) the proceedings leading up to the last-named order, which is brought up by this writ for review.

The prosecutor argues that the Court of Quarter Sessions had no jurisdiction over the matter — (1) because the overseer of the poor had no right of appeal, and (2) because of the failure of the judge of the police court originally to make an order or finding in writing dismissing the complaint.

We think these contentions without substance.

The right of appeal in such a ease as this was given to the overseer of the poor by section 12 of an act for the maintenance of bastard children {Comp. Stat., p. 187), which section reads as follows:

“Any person so ■ charged as aforesaid, or any township, that may deem himself or itself aggrieved by the finding of the magistrate or of the jury, or order of any magistrate, may, within five days thereafter, upon written notice to such magistrate, appeal therefrom to the Court of Quarter Sessions of the county wherein such trial was had, and such case may be brought to hearing before said court on ten days’ notice to the other side, or as soon thereafter as said court can hear the same, and such appeal shall not operate as a stay to'any order or filiation made by the magistrate before whom such case was tried.”

We also think that no written order or finding by the judge of the police court dismissing the complaint was necessarjq where, as here, it is conceded that such was the effect of the action of the magistrate. Section 13 of the act sets forth what papers must be forwarded to the Court .of Quarter Sessions on appeal. It is as follows:

“In case of appeal the said magistrate shall send any bond, which has been taken from the person charged, to the clerk of said Court of Quarter Sessions immediately after receiving said notice of appeal, together with the order of filiation and sustenance aforesaid and all papers connected therewith.”

These requirements of the statute seem to have been, in effect, observed in this case.

But if that is not so, the record was perfected for the purpose- of the trial in the Court of Quarter Sessions by that court ruling the police court to perfect the record in the respect in question while the cause was pending in the appellate tribunal. That the Court of Quarter Sessions was empowered to do. Taylor v. Cassidy, 38 N. J. L. 437. There the court said:

“Upon compliance with all the requisites of appeal, the right to enter the appeal in the appellate court becomes complete, and that court then obtains cognizance of the entire proceedings. At that moment control of all matters in, the canse attaches to the court above. Incident to that control is the authority to order a return when none has been made, or to complete it where an imperfect return has been transmitted. The order goes, not as a prerogative writ, but as a part of the machinery for compelling justice to be done in any cause before the appellate court. * * * The proceedings under the Bastardy act, so far as relates to appeals, are analogous to those under the Justices’ act. In this respect the Common Pleas and Quarter Sessions are of equal dignity as courts of record. There is no reason why the same power should not be lodged in each as courts of appeal, and that both should not have the authority incident to the superior courts of appeal, to rule the courts below to forward and perfect the record of the causes pending in the appellate tribunal. There is no doubt of the power of this court to issue the prerogative writ to an inferior court to transmit papers.”

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

The proceedings and order brought up for review will be affirmed, with costs.


author: Peb Cuelas!.

text:
    CHARLES W. BURNEY, PROSECUTOR, v. CITY OF PATERSON, DEFENDANT.
    Submitted May 15, 1925
    Decided November 19, 1925.
    Municipalities — Officers—Positions—Comfort Station Cleaner— Occupant, World War Veteran, Received $1,000, and Shoe-shining Privilege — Governing Body Found Cleaning Might Be Done For Shoe-shining Privilege Without Additional Salary, and by Resolution Abolished Position — Held, That Board Might, Acting in Good Faith, Abolish the Position on Ground of Economy, and That Good Faith Was Shown in This Instance.
    On certiorari, &c.

      Before Justices Teejíchard, Katzenbach and Lloyd.
    Por the prosecutor, Albert Comstock.

    For the defendant, Benjamin J. Spitz.

   Peb Cuelas!.

The board of public works of the city of Paterson has charge of the comfort station in the basement of the rear of the city hall. The prosecutor of this writ held the position of cleaner of the men’s comfort station in the rear of the city hall. He also had the shoe-shine privilege. For his work in keeping the men’s comfort station in a clean and sanitary condition between the hours of 9 a. m. each morning to 1 A. si. the following morning, he received $1,000, 'besides the shoe-shine concession. The board of public works ascertained that for the shoe-shine concession they could have the same work for which prosecutor was paid $1,000, done for nothing, the board having received written offers to that effect. And so, as the board claims, for the purpose of saving the city $1,000 a year, they abolished, by resolution, the position of cleaner of the men’s comfort station. It is that resolution which this writ brings up for review.

The prosecutor is a world war veteran, and we have presented for determination two questions — first, can such a position, held by a war veteran, be abolished by a municipalitjq acting in good faith and for the purpose of economy, without notice and hearing to the occupant thereof, and secondly, if so, whether the board of public works of the city of Paterson, in abolishing the position formerly held by the prosecutor, acted in good faith for the purpose of economy.

We think both questions must be answered in the affirmative.

A municipality, acting in good faith, can abolish such a position for the purpose of economy without notice and hearing to the occupant thereof: It has, in effect, been so held in a case where statutes very similar to chapter 14 of the laws of 1907, cited and relied upon by the prosecutor, were under consideration.

We think it also clear that the position in question was abolished in good faith for the purpose of economy, and not for any political reasons.

The prosecutor contends that because the comfort station at the city hall is still open, that, therefore, in spite of the language of the resolution abolishing the position, the position has not been abolished. But the prosecutor fails to distinguish between the men’s comfort station and the position of cleaner of the men’s comfort station. We think that the evidence shows clearly that the position of cleaner of the men’s comfort station has been abolished, and that the position was abolished for the purpose of economy.

The resolution brought up for review will be affirmed, with costs.


text:
    GEORGE BIGGS AND HARRY GAVITT, PROSECUTORS, v. EUGENE T. SHARKEY, RECORDER OF THE CITY OF BAYONNE, AND WILLIAM COUGHLIN, RESPONDENTS.
    Submitted May 15, 1925
    Decided November 19, 1925.
    Municipalities — Ordinances — Violations —Convictions.—.Conviction Defective in Several Respects — Offense Not Set Out— What Ordinance Violated Not Shown — ¡Proceedings Set Aside.
    On certiorari, &c.

    Before Justices Trench ard, Katzenbach and Lloyd.
    Eor the prosecutors, Alfred Brenner.

    For the respondents, Andrew J. Markey and James Benny.

   Per Curiam.

The complaint averred that on the 20th day of March, 1925, at the city of Bayonne, the defendants below, and prosecutors of this writ, “did willfully violate section 5 of an ordinance entitled ‘An ordinance regulating the installation, use and maintenance of the municipal water supply/ in that the said Harry Gavitt and George Biggs did install gas water heaters in a house at 83 West Third street, not being registered as licensed plumbers.”

Section 5 of that ordinance provides: “No person shall attach, alter or extend any water pipe or make any alteration in any tap-cock or other fixtures, nor do any work calculated to increase the facilities for using the water, nor 'turn on or off.the stop-cock or other fixtures, nor do any work calculated to increase the facilities for using the water, nor turn on or off the stop-cock on the main, or at the curb, unless registered as a licensed plumber by the water department, under penalty of ten ($10) dollars for each offense.” At the conclusion of the trial before the recorder’s court of the city Of Bayonne the defendants below, and the prosecutors of this writ, were “found guilty and fined $10 each.” The first point made by the prosecutor's is that there was no proof of the violation of the ordinance in the premises 83 West Third street as charged in the complaint, the testimony showing that, if there was a violation, it occurred at the premises 89 West Third street.

It, therefore, becomes important in our view to examine the conviction for- the purpose of finding out of what offense the defendants were convicted.

Turning to the conviction itself, we find it to be defective in severaal respects; among others it utterly fails to disclose of what offense the defendants were convieted. The charge or complaint is not adequately set forth therein. The only reference thereto is this: “Charge — Violation of section 5 of a city ordinance.” As to what city ordinance has been violated we are left entirely in the dark so far as anything in the conviction is concerned. With respect to the finding and action of the court there appears this only: “Round guilty and fined $10 each.”

In this posture of affairs the proceedings, conviction and sentence must be set aside, and it is so ordered.


author: Per Curiam-.

text:
    JOHN GOUGH, PLAINTIFF, v. MATTHEW G. BAILEY, DEFENDANT.
    Submitted January 16, 1925
    Decided October 15, 1925
    Filed November 20, 1925.
    Corporations — Purchase of Shares — Plaintiff’s Assignors Gave Defendant Money to Purchase Shares — Money Invested, But Certificates Never Delivered — Defendant Alleges Fraudulent Conduct of Company's Officer, and Had Already Obtained Judgment Holding Him Entitle'd to Shares — His Position, as Alleged Agent For Plaintiff’s Assignors, Not Set Up in That Suit — Was Defendant Charged With the Purchase of Shares or Was He Merely An Agent to Invest Plaintiff’s Funds?— Held, to be Chargeable With Shares. — Company Became Bankrupt and Judgment Against Defendant.
    On defendant's rule to show cause.
    Before Guw.uere, Chief Justice, and Justices Parker and K\tzexeach.
    For the plaintiff, Arthur T. Dear.

    For the defendant. Albert It. Jube and Conover English.

   Per Curiam-.

This ease is presented on a defendant’s rule to show cause. The plaintiff, John F. Gough, is the assignee of the claims of four men by the name of Caldwell, Ober, Walsh and Slaughter, each of whom paid $1,500 to the defendant, Bailey, to procure, as the plaintiff contended, stock in a company to lie formed under the laws of the State of New York for the purpose of manufacturing milk chocolate. The defendant and the four assignors were interested in a eompany known as the Brown & Bailey Company. This company was engaged in the milk business. The defendant represented to the four gentlemen mentioned, that a Mrs. Ilaaren. of Warwick, New York, had a process for manufacturing milk chocolate and was about to erect a plant near the Brown & Bailey Company’s plant. This would create another "buyer of milk in this district which it was thought might be detrimental to the interests of the Brown & Bailey Company. The defendant suggested to his four associates that they take an interest in the company to be formed for the purpose of making milk chocolate. The four gentlemen mentioned paid to Bailey $6,000 (each $1,500) for the purpose of buying shares of the capital stock of this company. The company was incorporated. It was at first known as the Haaren Special Milk Products Corporation. Afterwards the corporate name was changed to the Colleen Products Company. The company was riot successful and became bankrupt. The four gentlemen mentioned never obtained certificates of the capital stock of the company. .They thereupon assigned their claims to the plaintiff, who instituted suit against Bailey for the $6,000, upon the theory that Bailey had converted the money to his use.

The real question at issue was what the contract between the parties was, whether it was a contract by which for the money paid by the four mentioned they were to get shares of the capital stock of the company, afterwards known as the Colleen Products Corporation, or whether they made Bailey their agent for the purpose of investing their money in the business as he might think proper. At the trial the complaint was amended with the consent of the plaintiff’s attorney, so that the defense could be interposed that Bailey was the agent of the assignors of the plaintiff, and that his agency permitted him to invest the money in the business as well to purchase share of the capital stock of the company. This amendment enabled Bailey to show that he had advanced some $6,300 to the corporation. His contention further was that he was unable to get the shares of the capital stock of the 'company because of the fraudulent conduct of a man by the name of Barnett, who was connected with the new enterprise. The trial judge submitted the case to the jury, telling them that the question for their decision was for what purposes did Bailey receive the money. If the money was paid to him for capital stock then he was obliged to use the money to buy stock, and he had no right to pay it to the company for any other purpose. The trial judge told the jury that if they found that it was paid to Bailey to put into the company, and he did put it into the company, then the plaintiff would not he entitled to a verdict. The jury found a verdict in favor of the plaintiff for $6,000.

The chief point pressed under the rule is that the verdict is against the weight of the evidence. We are not impressed with the argument made in behalf of the defendant that the verdict is against the weight of the evidence. It may have the appearance of a hard case, because, if the defendant had procured for his four associates the capital stock, the stock would now be valueless. On the other hand, we are convinced by the testimony that the contract was that the money was to be paid to Bailey to purchase capital stock. Bailey had therefore no right to let the money out of his hands and into the treasury of the company without the delivery to him of shares of the stock. We gather from the, testimony that Bailey intended to get the stock himself from the company and then to transfer to his four associates the number of shares to which each would be entitled. Bailey commenced a suit against Barnett and the Colleen Products Company for the issuance of stock to himself. The judgment in this action was that Bailey was entitled to one hundred and fourteen and eighty-nine hundredths shares of the capital stock, in this suit Bailey appears not to have taken the position that he was acting as the agent of his four associates. , This suggests that the defense of Bailey’s agency in the present action was an afterthought. We have reached the conclusion that the verdict is not against the weight of the evidence.

The defendant insists that the trial court erred in refusing to permit the defendant’s counsel to ask a Mr. Caldwell the following, question: “Do you know what property the Colleen company owns at the present time?” The trial judge, on his own motion, said that he was not going to permit the question to he asked on cross-examination. It was immaterial as to what the Colleen Products Company owned. This was a question not involved in the controversy, and the trial judge rule.d properly in.excluding the testimony. The same question was asked of Mr. Ober. Eor the same reason it was proper for the trial judge to overrule the question.

The defendant contends that the court’s refusal to dismiss certain counts of the complaint was error. The ground of the motion was the insufficiency of the facts proven. We cannot see that the trial judge erred in overruling this motion. The defendant was in no way harmed by the court’s ruling.

The defendant further claims that there was no allegation in the complaint of the assignments of the claims sued on to the plaintiff. A' reference to the complaint shows that this claim is not well founded. The assignments were also proven and offered in evidence. One of them is printed as an exhibit (at p. 208).

Upon a review of the entire case we have reached the conclusion*that the defendant had a fair trial and that the rule to show cause should be discharged.

The rule is, accordingly, discharged.


text:
    RAY E. ANTHONY, PLAINTIFF, v. PUBLIC TRANSIT COMPANY, BODY CORPORATION, DEFENDANT.
    Submitted March 13, 1925
    Decided October 15, 1925
    Filed November 20, 1925.
    Negligence — Injury to Motor Bus Passenger — No Merit Found in Defendant’s Alleged Errors Regarding Charge to Jury— Charge Must Be Considered in Its Entirety — No Error Found in Court’s Permission to Allow Plaintiff to be Pierced With Needle in Presence of Jury For Purpose of Showing Paralysis — 'No Error in Refusal to Charge That if Jury Finds Witness Told An Untruth in Any Particular, Jury Was Justified in Not Believing Any of the Witness’ Testimony — Negligence Was Proven by the Fact That Vehicle Did Strike a Bridge.
    On defendant’s rule to show cause.

      Before Gummere, CniEE Justice, and Justices Parker and Katzekbach.
    Por the plaintiff, Reilly, Quinn & Parsons.

    Eor the defendant, Jacob Steinbach.

   Per Curiam.

This ease is before us on a defendant’s rule to show cause why a verdict obtained by Ray E. Anthony against the Public Service Transit Company should not he set aside and a new trial granted. The defendant operated a bus line between Red Balde and Long Branch. On June loth, 1924, Anthony was a passenger in one of the defendant’s buses. The bus struck a bridge. Anthony, by the impact, was thrown from his seat and fractured his right arm. This, subsequently, resulted in a partial paralysis of the arm, due to the fact that the fracture was adjacent to a nerve in the arm. The bus at the time of the accident was traveling at a fairly high rate of speed, which was the probable cause of the bus swerving and striking the end of the bridge.

The defendant assigns twenty reasons for setting aside the verdict. All of these, however, are not briefed.

The first point briefed by tlie defendant is that the court in its charge erred in assuming certain facts which wore not in the testimony. The first portion of the charge criticised in this respect is the following: “And in connection with that phase of the case you must determine whether the injury is shown by the evidence to be temporary or permanent, and also the question, if there is not a complete inability to perform labor, there has been an impairment of that ability which lias in the past, and may, under the evidence, in the future affect his earning capacity.” The defendant, from this portion of the charge, argues that the court charged the jury that there was a complete inability to perform labor on the part of the plaintiff. A reading of the entire portion of the charge' on this subject shows that there is no foundation for this assumption, and that the charge upon this subject, taken in its entirely, was proper. It is improper to take an isolated portion of a court’s charge and from such portion base an argument. The charge must on every point be considered as a whole.

The second point argued for the defendant is that the court said in its charge “that the failure of the bus driver to perform the duties called for by humanity should not influence the jury.” It is claimed that this was error. This is also only a portion of the charge on this subject. The portion complained of was beneficial to the defendant. The defendant was not injured by this portion of the charge.

The third point in which the charge is criticised is that the court said “there is no material conflict in the medical testimony.” This is also an isolated portion of the charge. When the whole charge is read on this subject it will be seen that the court’s comment upon the medical testimony was fully justified by the evidence.

The fourth point argued is that the court erred in permitting a needle to be stuck in the arm of the plaintiff in view of the jury to show that the plaintiff was suffering from paralysis and his arm lacked sensation. This was a matter within the discretion of the court.

The next point which the defendant raises is that the court erred in refusing to charge the following request of the defendant, namely, “If you find that the witness told an untruth in any particular you are, in your judgment, justified in not believing any of such witnesses’ testimony.” This request did not distinguish between an untruth caused by mistake and an untruth willfully told. The request was therefore not legally sound. State v. Dugan, 84 N. J. L. 603; Addis v. Rushmore, 14 Id. 649. It was also a comment upon the evidence which the court was not required to charge.

The next point made by the defendant is that there was no negligent act proven. There is no merit in this contention. It was perfectly possible to operate a bus over the bridge without striking thé bridge. There was testimony offered that the bus did strike the bridge. This was sufficient evidence of negligence to take the case to the jury.

The last point argued for the defendant is that the verdict is excessive. The verdict was for $5,000. The plaintiff was thirty-three years old. He had a wife and two children. He was obliged to earn his livelihood by manual labor. This requires lifting. This he cannot do. The nerves in his right- arm are paralyzed. He has no feeling in his right arm or in the fingers of his right hand. He suffers pain in his shonlder. His capacity to work as a laborer has been greatly lessened, if not destroyed. We think, under the circumstances, that the verdict is not excessive. The rale to show cause is discharged.


text:
    OXFORD FOUNDRY AND MACHINE COMPANY, A BODY CORPORATE, PLAINTIFF, v. GEORGE A. MYERS & COMPANY, INCORPORATED, A BODY CORPORATE, DEFENDANT.
    Submitted January 16, 1925
    Decided October 15, 1925
    Filed November 20, 1925.
    Contracts — Sale of Manufactured Articles — Refusal to Accept Delivery — Court Charged That Measure of Damages Was the Difference Between Cost of Production and Agreed Prices— Defendant Now Claims That Rule Should be Difference Between Market Value and Contract Pricer — When Plaintiff Sought to Take This Attitude at Trial, Defendant Objected on Ground That the Evidence of Market Value Was Inadmissible Where Plaintiff Had Agreed to Manufacture— Reversal For Error Committed at Instance of Party Alleging It, Not Allowable.
    On defendants^ rule to show' cause.
    Before Gummere, Ohtef Justice, and Justices Parfer and Katzestbach.

      For the plaintiff, Ilorion & Tilt (Ramon E. Horton and Charles G. Keulgen, of the New York bar), of counsel.
    For the defendant, Garlo D. Celia (John W. Oclcford, of counsel).
   Per Curiam.

This is a defendant’s rule to show cause. The suit was instituted by the Oxford Foundry and Machine Company against George A. Mjers & Company, Incorporated (both New Jersey corporations), to recover (1) the price of sash weights manufactured by the plaintiff and delivered to the defendant, and (2) damages for breach of a contract between the parties under which the defendant refused to accept further deliveries of sash weights. The venue was laid in Warren county. The case was tried before a jury. The trial resulted in a verdict for the plaintiff for $4,546.38, of which $742.58 was upon the first count, which claimed for the goods delivered,» and $3,803.80 was upon the second count. The jury awarded this latter sum for the damages sustained by the plaintiff by the failure of the defendant to accept further deliveries. The contract was an oral one made about September 4th, 1923. By it the plaintiff agreed with the defendants to manufacture, sell and deliver to the defendant, in accordance with the defendant’s orders, one thousand tons of sash weights, between September 4th, 1923, and January 1st, 1924. The price was $46 per ton, f. o. b. Oxford, New Jersey. Bills were to be paid within ten days from shipment. If paid within ten days a discount of two per cent, was to be allowed.

Upon the first count the only question at issue was whether or not the discount -should have been taken off of certain bills rendered. The payments were not made within ten days, but the two per cent, had been taken off. The defendant contended that the plaintiff had waived this two per cent, by acceptance of the money. This was denied,' and this question was submitted to the jury. The amount claimed under this count by the plaintiff was $913.14, so that the jury in returning a verdict on this count for $742.58 did find in certain instances waivers of the two per cent, where the money had not been paid within the ten days. The crux of the case turned upon the refusal of the defendant to accept seven hundred and sixty and twenty-one hundredths tons of sash weights. The amount delivered was two hundred and thirty-nine and seventy-one hundredths tons. The rule to show cause allowed by the trial judge reserves all exceptions. The brief submitted for the plaintiff considers questions reserved under the rule. These will not be considered by us, as the defendant does not argue them.

The defendant's brief deals only with the measure of damages and the court’s altitude upon this question. The court permitted the plaintiff to show the cost of production. He then charged the jury that the measure of damages in the case was the difference between the cost of production and the agreed price under fhe contract. The defendant contends that this was not a correct rule of law, and that the measure of damages in the present case was the difference between the market value and the contract price. The defendant further contends that there is no evidence in the case of market value, and that, for this reason, the judgment should only have been for six cents. This argument appears logical. The difficulty is that when the plaintiff sought to take this attitude and prove the market price of sash weights the defendant objected and argued that the contract was one to manufacture, sell and deliver to the defendant sash weights of the plaintiff’s manuiaeure, and that evidence of market value was inadmissible in a case where the plaintiff had agreed to manufacture. It was not a sale of goods which could he obtained in the open market. The court took this view of the case at the suggestion of the.defendant’s counsel. He offered to permit an amendment, but upon the condition that the defendant would be entitled to an adjournment. The plaintiff did not care for an adjournment. The motion to amend the complaint was thereupon withdrawn. The case was continued. This appears to be the situation. The defendant’s counsel was unwilling to permit the market value of sash weights to be proven. He now takes the position that the court erred in not permitting the market value to be proven. In other words, at the trial he sought the court to take a position against the admission of evidence as to market value. Now, he'is before this court contending that market value was the only evidence that should have been submitted. This is a position which the defendant is not entitled to take. In Bahrey v. Poniatishin, 95 N. J. L. 133, the Court of Errors and Appeals said: “Elementary justice in reviewing the action of a trial court requires that the court should not be reversed for the error committed at the instance of the party alleging it.” This is the only point argued by the defendant. The defendant either relies upon raising the other points on an appeal under the exceptions reserved or has abandoned them. We have treated the question raised upon its merits. The record, however, discloses no exception taken to the instruction. Seeing no merit in the question argued, the rule to show cause is discharged.


text:
    ERNEST SEMENTO, AN INFANT BY LOUIS SEMENTO, HIS NEXT FRIEND, AND LOUIS SEMENTO, INDIVIDUALLY, PLAINTIFFS, v. JOSEPH RECCA, LUCIANNO BENEDETTO AND PUBLIC SERVICE RAILWAY COMPANY, DEFENDANTS.
    Submitted March 13, 1925
    Decided October 15, 1925
    Filed November 20, 1925.
    Negligence — Injury to Passenger of Motor Bus in Collision With Trolley Car — Damages Awarded Excessive, But Rule to Show Cause Made Absolute Because Evidence Was Allowed Which Showed Unfitness of Motorman When There Was No Allegation of Such Unfitness In Complaint and Nothing on Direct Examination Which Warranted the Questions on Cross-examination.
    On defendant’s rule to show cause.

      Before Gum mere, Chief Justice, and J ustices Parker and Katzenbach.
    For the plaintiffs, Isadore Rabinowilz and Ward & McGinnis (Peter J. McGinnis, of counsel).
    For the defendants, Leonard J. Tynan.

   Per Curiam.

This case is before us on a defendants’ rule to show cause. The plaintiff Ernest Sementó was awarded a verdict for personal injuries against Joseph Recca, the owner of a bus in which he was a passenger at the time of receiving the injuries ; Luciano Benedetto, the driver of the bus, and the Public Service Railway Company. The bus was proceeding in a southerly direction on Revere street, in the city of Paterson. A trolley track is located in the centre of this street. Upon this track the Public Service Railway Company was operating a trolley car in a northerly direction. An automobile was parked on the westerly side of the street. The bus, in order to pass the parked automobile, turned into the railway- track. A collision occurred between the’bus and the trolley car, Sementó was thrown from his seat in the bus against another seat. He scraped his shin bone. This bone and his leg had been in bad condition prior to the accident. It had been - operated on. The plaintiffs’ contention was that the shin bone had been healed of the prior injury and that the accident caused a new wound from which infection started.

A great deal of medical testimony was offered. The leg, apparently, was a running sore at the time of the trial. It undoubtedly presented a bad- appearance. The jury was afforded an opportunity to see it. The accident occurred on November 4th, 1923. The trial took place about a year after the accident. The plaintiff was then eighteen years of age. The jury returned in favor of the boy a verdict for $20,000. The jury also awarded to the boy’s father, for consequential damages, $5,000. We consider these verdicts excessive, but consider it unnecessary to consider this question, for the reason that we feel there was testimony admitted at the trial which should not have been admitted, which' malees a new trial necessary.

The trial court permitted James Hopper, the motorman of the trolley car, to be cross-examined over objection regarding a suit which he had instituted against a company known as the Yreeland Chemical Company. The cross-examination was for the.purpose of showing that Holland was an ill man and unfit at the time of the accident to operate a trolley car. There was no allegation in the complaint-as to the unfitness of Holland to operate the trolley ear which he was operating at the time of the accident. This testimony was distinctly prejudicial. It must have had considerable weight with the jury upon the question of the negligence of the defendant Public Service Railway Company. It was improper to have admitted this testimony in view of the lack of any allegation in the complaint to the effect that Holland was an unfit person to operate a trolley car. There was nothing on direct examination which warranted the asking of the questions upon cross-examination. The following is an example of the questions asked: “Did you ever, because of' your dizzy condition, forget -to do anything in the operation of your car.” This did not apply to the car Holland was operating at the time. The principal questions were objected to and the objections overruled and exceptions taken. The rule to show cause is, for this reason, made absolute.


text:
    HENRY WEINERT, PLAINTIFF, v. WITAL RUBEL, DEFENDANT.
    Submitted March 13, 1925
    Decided October 15, 1925
    Filed November 20, 1925.
    Negligence — Motor Vehicle Injury to Pedestrian — Defendant Going Rapidly Around Corner — Question of Contributory Negligence Properly Submitted to Jury — Damage Excessive and Reduced From $6,500 to $4,500.
    On rule to show cause allowed to defendant.
    Before Gum mere. Chief Justice, and Justices Pariier and Katzkxeach.
    For the plaintiff, Robert II. Doherty.

    For the defendant, William H. TTohnwood.

   Per Curiam.

This case is before us on a rule to show cause allowed to the defendant. The action ivas for the recovery of damages for personal injuries received by the plaintiff, Weinert. On May 30th, 1924, at about five forty-five p. ma, Weinert was crossing Communipaw avenue, 'in Jersey City, from the east side to the west side at a point where Communipaw avenue is intersected by Pacific avenue. Communipaw avenue runs substantially north and south. Pacific avenue runs substantially east and west. The plaintiff was walking west on the north side of Pacific avenue and reached the curb at the northeast corner of Communipaw avenue. He started to cross over to the west side of Communipaw avenue when the defendant's car, which was going east on Pacific avenue, made a wide turn to go into Communipaw avenue. In making the turn the car came into collision with the plaintiff. The plaintiff sustained a dislocation of the right shoulder and a fracture of the neck of the right femur. His leg was shortened. The verdict was $6,500. The defendant contends that the verdict is against the weight of the-evidence both on the subject of the contributory negligence of the plaintiff and the negligence of the defendant. Upon the subject of the negligence of the defendant there was testimony that the defendant’s car made the turn at twenty-five miles an hour and went half way up the block on Oommunipaw avenue after hitting the plaintiff. There is also'other testimony to the effect that the speed of the defendant’s car at the time was from twenty to twenty-five miles an hour. The evidence seems to us ample to justify the submission of the case to the jury upon the question of the defendant’s negligence.

On the subject of the contributory negligence we think the facts presented a question for the jury. The plaintiff made an observation before he attempted to cross the street. In view of the speed of the defendant’s car, we think a jury question was presented as to the plaintiff’s contributory negligence.

The defendant contends that the verdict is excessive. While .the plaintiff received a permanent injury in the shortening of the leg injured, this can be largely obviated by using an elevated shoe. He was treated at a public hospital. He' paid no physicians’ or hospital bills. There was no testimony as to his earnings. He was sixt}'-six years of age. He suffered from rheumatism with which the accident had no connection. Under these circumstances we think the verdict excessive. If the plaintiff will file within, fifteen days from the filing of this opinion a stipulation to accept $4,500 the rule will be discharged, otherwise it will be made absolute.


text:
    JOSEPH J. CORN, PLAINTIFF-APPELLANT, v. HARRY KAPLAN AND OCEAN GARAGE, INCORPORATED, A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS.
    Submitted January 16, 1925
    Decided October 15, 1925
    Filed November 20, 1925.
    Contracts — Appeals—Jury First Offered a Verdict For Plaintiff to Clerk Who Had Been Directed to Receive It — Verdict Was For Plaintiff, But Did Not State Money Damages-— Cierk Directed Jury to Return For Further Consideration, and it Then Returned a Verdict For Defendants — Trial Court Refused Motion to Set Aside Verdict Without Prejudice in Case of Appeal — No Exception to This Rule Appears in the Record — Question Raised Cannot Now Be Considered on Appeal.
    On appeal from the Essex County Circuit Court.
    Before Cum mere, Chief Justice, and Justices Parker and Katzenb.uht.
    For the plaintiff-appellant, Corn & Silverman.

    For the defendants-respondents, Hilton M. Unger.

   Per Curiam.

This is an appeal from a judgment of the Essex County Circuit Court. The judgment was entered upon a verdict of a jury. The question sought to be reviewed is the action of the clerk in refusing to accept a verdict rendered by the jury which resulted in the jury retiring - for further consideration of the case after receiving from the clerk the pleadings in the case. The record contains a stipulation to the effect that the record to he submitted to this court shall contain only said stipulation, notice of appeal, complaint, answer, reply, judgment and transcript of the stenographer’s notes on the return of a rule to show cause allowed by the trial judge to the defendant.

The action was instituted by Joseph J. Corn against Ike Lustbader, Harry Margolis, Harry Ivaplan and the Ocean Garage, Incorporated, a New Jersey corporation. The three personal defendants and the plaintiff had caused to be incorporated the Ocean Garage, Incorporated. Its capital stock was $33,000 divided into three hundred and thirty shares of the par value of $100 each.. One hundred and sixty-five shares were divided equally between the three personal defendants and the plaintiff. One hundred and sixty-five shares went to Bernard Schwetzer and Regina. Blake. These shares were later transferred to the three personal defendants. The plaintiff claiming that he was entitled to forty-one and one-fourth shares of the one hundred and sixty-five shares thus divided, demanded possession of said forty-one and one-fourth shares of stock. This demand was refused. The present action for money damages was then instituted. The answer denied any refusal to give to the plaintiff the shares of stock claimed by him. The trial judge directed the clerk to receive the verdict. The juiy returned. The clerk asked him if they had agreed upon a verdict. • The foreman informed him that they had. Upon being asked by the clerk how they found, the foreman replied, “We find for the plaintiff and we vote forty-one and one-fourth of the three hundred and thirty shares of the stock, duly assigned, and assign no money damages.” The clerk then said. “If you find for the plaintiff you must- give him an amount.” There were some questions asked and the clerk said, “I am not. here to give you any instructions. You will have to retire.” He then banded the foreman the pleadings in the case. The jury retired. Later they returned and rendered a verdict in favor of the defendant. .

The court had alread.y directed that a verdict in favor of the defendants, Lustbader and Margolis, be entered. Counsel for the plaintiff made a motion for a new trial on the ground that the first verdict rendered should have been received by the clerk. The trial judge permitted the clerk to be sworn. He testified as above stated. The trial judge then said: “Regarding this as a motion to set aside the verdict because of irregularity, the motion will be denied, but without prejudice, to raise the same point upon appeal, if it is decided to appeal upon the evidence that has been introduced, and the return of the'court can he made precisely in accordance with the testimony given by Mr. Gineinor.'’ Mr. Gmeiner was the clerk.

Xo exception to this ruling appears in the record. If it was a motion substantially in arrest of judgment there would have to he an exception taken to the ruling of the trial court oil the motion, before this court; could consider the question. This court cannot decide a question on appeal to which no exception to the ruling of the court below has been taken. It would appear from the stipulation entered into that this motion was now sought to he turned into a rule to set aside the judgment so as to bring it within the ease recently decided of Folkner v. Hopkins, 2 N. J. Adv. R. 1857. If the proceedings in the Circuit Court amounted to a rule to show cause why a new trial should not be granted, the action of the judge was equivalent to discharging the, rule. From this discretionary action of the court no appeal will lie. The case of Folkner v. Hopkins was upon a rule to show cause in a case instituted in this court. The present action, as stated, was in the Circuit Court. We cannot consider the question raised if it be an appeal, because of the lack of an exception. From the action of the trial judge in discharging the rule no appeal will lie for the reason stated. This leads us to an affirmance of the judgment of the Circuit Court.

The judgment is accordingly affirmed.


author: Egan, Judge.

text:
    Hudson County Orphans Court.
    In the matter of the application for probate of the last will and testament of Frank Loh, deceased.
    [Decided November 9th, 1925.]
    Wills — Probate—Testamentary Capacity — Undue Influence and Fraud — Testator, a Person of Unusual Will Power — Last Days Brought Much Suffering and Probably Weakened His Mind, But There Was Clearly Intelligence to Control His Business Affairs — Hallucinations Regarding Legitimacy of Two Children Not Sufficient to Show Mental Incapacity — No Evidence of Undue Influence or Fraud.

      Mr. Charles W. Kappes, for the proponents.

      Mr. Emil Walscheid, for the caveators.
   Egan, Judge.

Frank Loh, a resident of Weehawken, Hudson county, died on December 36th, 1934, leaving a paper-writing purporting to be his last will and testament, against the probate of which caveats were filed -by Marie Goelz and Louis Loh, a daughter and son, respectively, of the decedent. Many hearings were held at which was submitted considerable testimony about the decedent’s life, his utterances and his actions. The will offered for probate was the fourth one decedent had made. The first will was executed before the death of the decedent’s wife, which happened some time in March, 19.33. In April, 1934, he made a second will, and the third 'will was executed in September, 1934, and the last one was executed on December 17th, 1934.

The wills of April, September and December, 1934, are alike, excepting a change made in the naming of the executors. The gifts and beneficiaries are the same.

The caveators contend that (a) the testator lacked testamentary capacity and that (b) the wills were the product of undue influence and fraud.

The assets of the estate, the proponents assert, amount to about one hundred and fifty thousand ($150,000) dollars, while the caveators contend they amount in the neighborhood of two hundred and sixteen thousand ($216,000) dollars. The testator bequeathed to his daughter, Marie Goelz (one of the caveators), the sum of ten thousand ($10,000) dollars; to his son, Louis Loh (one of the caveators), the sum of five thousand ($5,000) dollars; to his two grandchildren (the children of his son, Louis Loh) he bequeathed the sum of five thousand ($5,000) dollars each; to his grandchild Marie Brown (a child of his deceased daughter, Barbara) he bequeathed the sum of five thousand ($5,000) dollars. The residue or remainder of his estate was bequeathed and devised in equal shares to the three proponents — Prank Loh, a son; Margaret Franz, a daughter, and Emilie Loh, a daughter. If an equal distribution of the estate were made, the children entitled to share in the estate would receive a one-sixth part which, under the proponents’ figures, would be about twenty-five thousand ($25,000) dollars for each, and, under the caveators’ figures, would be about thirty-six thousand ($36,000) dollars for each.

The decedent acquired his estate through lifelong methods of thrift, energy, industry and frugality. He was an incessant worker and a close bargainer, strong willed and intolerant when‘his judgment was questioned, easily irritated, and quick to resent any interference in or with his business or household matters, where he assumed to be the sole and unqualified master. He was pronounced in his likes and' dislikes. Many months before his death he became afflicted with a chronic heart affection, chronic nephritis and diabetes malitis, which seriously affected his physical condition. He suffered considerable pain at times, but, notwithstanding, he was able to discuss affairs and business in which he was interested in a thorough, competent and intelligent manner. He fully described his feelings and explained his condition to his family physician, discoursed with him about his ailment and also topics of the times; conversed with his lawyers about his legal and business affairs, with his spiritual adviser about his religious duties, and also spoke with him of things of mutual interest to both. He talked, now and then, with relatives and -friends about differences he had with his two children, Marie and Louis, their attitude and conduct towards him and-his affairs; at times he questioned their legitimacy. Counsel for the caveators. contend that he suffered with an insane delusion that Marie and Louis were not his children, and that because of this delusion he lacked testamentary capacity. There is evidence that at times he expressed doubt as to the legitimacy of the two children. Again, he spoke of these same children with regard and affection. But in each will he executed, he remembered them and made them legatees to the same extent that he did in the last will. On occasions he was peevish and stubborn about these children, but that attitude cannot be confounded with mental incapacity. Ward v. Harrison, 3 N. J. Adv. R. 470. The fact that decedent, at irregular intervals, acted and spoke peculiarly may be indicative of mental decay, but they do not establish mental incapacity; all the attending circumstances must be considered and, if out of it appears that decedent is capable 'of recollecting of what his property consists, and who, in consequence of ties of blood or friendship, should be the objects of his bounty, and has a mind sufficiently sound to enable him to know and understand what' disposition he wants made of his property after his death, he is deemed competent. Tbid.

I do not think that the evidence shows the testator had a fixed delusion that his children, Marie and Louis, were illegitimate. The fact that they were beneficiaries under his wills, if there were no other evidence, would contribute somewhat to that belief, and this, though there were disparitv in-the amounts bequeathed to the caveators and the so-called favored ones.

Only a short time before his death, and close to the time of the execution of the last will, decedent discussed with his attorney, on several occasions, the terms and conditions of several contracts to convey portions of his real estate, and -he executed those contracts; during the discussion of execution of the contracts he displayed sagacity and decision which was indicative of testamentary capacity. Loveridge v. Brown, 3 N. J. Adv. R. 1050, 1061. The right of the testator, however feeble his powers of mind or body, to the control of his property by testamentary disposition, so long as he has intelligence to exert it, has been inflexibly maintained by the courts of this state. Ibid.

There is no doubt in my mind that the testator, at the time of the execution of his last will and testament, fully comprehended the property he sought to devise, and that he comprehended the objects of his bounty, and that he thoroughly understood the meaning of the .business in which he was, at the time, engaged. In re Freeman, 3 N. J. Adv. R. 484.

The decedent for some time prior to February 21st, 1924, liad lieen visiting his physician and receiving treatment for his ailments. After that date and at different intervals up to April 15th, 1924, on which day he sailed for Europe with his daughter, Emilie, his family physician attended him at his (decedent’s) home. While he was weak, physically, he was able to. and did, direct the conduct of his affairs. On April 11th, 1924, he testified intelligently and competently in certiorari proceedings, in which he was the prosecutor. Upon his return from Europe, the latter part of June, 1924, he engaged bis son, Frank, to look after his realty interests in the place of his daughter Margaret, who had been attending to those matters while he was in Europe. Margaret was married and had one infant child to care for; with her husband and child they took up their residence with decedent upon his return from Europe. She and her sister, Emilie, who also resided with decedent, cared for and assisted him. The son, Louis, had marital and other difficulties that caused him to lose favor with his father. The caveators contend that the proximity and constant presence of the proponents in the testator’s home was ground for suspicion, and that the difficulties of Louis were frequently discussed,- enhanced and exaggerated, and colored and exploited in an adverse, and unfavorable light by the children Prank, Margaret and Emilie to the decedent to the' disadvantage of Louis. The proponents strongly denied the allegations of the caveators, and offered testimony intending to show that their efforts were enlisted in several endeavors to bring Louis back into the favor of decedent. There was testimony by relatives that proponents, during decedent’s illness, prevented them from visiting the decedent in his “sick room,” and that, in effect, they were always on guard to prevent anyone but themselves from seeing or visiting him. This evidence was offered to show that the decedent was dominated by the proponents, and under their insidious control, all of which resulted to the detriment of the caveators.

A review of all the evidence does not incline me to the favor of the caveators’ argument, nor to the belief that the proponents exercised any undue influence; nor do I accept the contention of the caveators that all the circumstances surrounding the execution of the wills suggest the unerring inference of fraud; there is no satisfactory conviction of such a situation. The fact that the proponents were constantly in attendance upon the decedent, after his return from Europe, even to the exclusion of all others, is not, in itself, conclusive evidence of undue influence; it may be suggestive of an unfavorable presumption, but in the ease sub judice the decedent had unlimited opportunity before his trip to Europe and after his return therefrom to free himself .from the-influence against which the caveators complain. He was in close and private conference with his physician, his spiritual adviser, two different legal advisers and numerous friends. If there were undue influence it was not such as to destroy the free agency of the testator, and which amounted to moral and physical coercion. It has not been established that the acts performed in the execution of the wills were the results of such coercion. ' The testator’s body was undoubtedly racked by his illness, his mind, consequently, may have been enfeebled, but his intelligence to exert control over his property and business affairs at no time appears in doubt. The standard of testamentary capacity has been fixed at a very low point in the scale of intelligence. The right of the testator, however feeble his powers of mind or body, to the control of his property by testamentary disposition, so long as he has intelligence to exert it, has been inflexibly maintained by the courts of this state. The caveators were burdened with, the obligation of showing that the proponents, or some other person, exercised a control over the mind of the testator, or practiced an importunity which he could not resist. Loveridge v. Brown, 3 N. J. Adv. R, 1050, 1061. This they have not shown.

Under all the circumstances, the paper-writing offered in evidence as the last will and testament of Prank Loh, deceased, will be received in evidence and admitted for probate as such.


author: Buchanan, V. C.

text:
    Antonio Chianese et ux., complainants, v. Concetta Cachia, defendant.
    [Decided November 25th, 1925.]
    Specific Performance — Defendant Alleges Herself to be a Married Woman Whose Husband Had Not Joined in Agreement to Sell — Facts Considered and Found that She Had Lived Alone Many Years, Had Represented Herself a Widow to Complainants, and Had Executed Mortgages as a Widow, That Her Husband Had Not Been Heard From For Many Years, Except Through Son-in-law, Who Claims to Have Seen Him in Italy Two Years Ago — This Testimony Not Accepted and Performance Decreed.
    On final hearing.

      Mr. Joseph J. Falcone,.for the complainants.

      Mr. John H. Kafes, for the defendant.
   Buchanan, V. C.

The bill is by vendees against vendor for specific performance of a contract of sale of real estate in this county. The sole defense is that defendant was a married woman at the time of execution and acknowledgment of the contract, and that specific performance cannot be decreed against her because her husband did not join in the contract.

It is undoubtedly true that if she had a husband living at the time, the contract cannot be specifically enforced, because of the lack of her husband’s joining with her therein (Corby v. Drew, 55 N. J. Eq. 387, 392; Schickhaus v. Sanford, 83 N. J. Eq. 454, 457; Married Women’s Act § 14), although she may be liable at law for the breach of the contract.

The only issue, therefore, is the one of fact, as to whether she did, in fact, have a husband living. The defense set up is both an affirmative defense and a legal (as distinguished from an equitable defense). The burden of proof to establish it is on the party asserting it. Page v. Martin, 46 N. J. Eg. 585; Crandall v. Graham, 93 N. J. Eq. 675, 680.

This burden, to my mind, she has failed to meet. She executed ami acknowledged the contract as a widow. Complainants say that she induced the contract by telling them she was a widow; that her husband had died in a hospital in a hospital in Italy two years before. Defendant did not deny having made this statement to complainants. She had on two occasions — one seven years ago, the other nine years ago —executed and acknowledged mortgages as a widow. Her explanation is that her husband left her thirteen years ago and that she had not seen or heard from him therea Eter; that; she believed him dead and continued in this belief until a few weeks after the execution of the contract, when she was told by one John Lanza in April, 1924, that he had seen her husband two years before in Italy; that upon thus learning that he was alive she declined to carry out tlie contract, because she wanted to protect him and his rights.

This story is not worthy of credence. It is not to be believed that a wife and mother callously deserted by a husband for twelve or thirteen years, and left to support herself and their child by her own exertions alone, without one word of communication from him of anjr kind, would have any such solicitude or regard for such a husband or his interest-in property which she had acquired as the result of her own labors. The truth as to her regard for him clearly appears from her admission that she has never yet, in the year and a half since Lanza told her that her husband was living, made any effort whatever to communicate with him. Her conduct speaks more forcibly than her words.

In order to exclude the possibility that her refusal to consummate the sale might be duo to a belief that she had no legal right or power to convey, she was asked by the court whether she would be willing, at the expense of complainants to take proceedings under the Married Women’s act, to enable her to sell and convey to complainants without the joinder of a husband who had deserted and failed to support her, but this she declined, giving as the reason that “if” her husband had done a wrong she was willing to forgive him, and intended to protect him and any rights he might have in the property.

All this, in conjunction with her manner on the stand, and her significant refusals to answer questions as to- her opinion as to the value of the property, lead inescapably to the belief that the true reason for her refusal to convey is that she has repented of her bargain and has put forward the story of her husband’s existence as a means of avoiding performance.

Prom the evidence that the husband disappeared and had not been heard of for twelve or thirteen years, the presumption arises that he is dead and was dead at the time of the contract in March, 1924. What evidence is there to rebut this presumption? Nothing whatever but the testimony of John Lanza, and that is insufficient.

Lanza is by no means without interest in the result of the suit, being the defendant’s son-in-law. Nor was he a satisfactory witness. Amongst other things, he said that he saw defendant’s husband in Poggia, Italy, yet he could not say whether Poggia was the name of a city or town or of a province; nor could he give the name of the city or town where he saw him. Of much greater importance, however, is the fact that his testimony in so far as identifying the man he says he saw as defendant’s husband, is nothing but hearsay, and, hence, incompetent. Lanza is now twenty years old. He says he saw defendant’s husband in Italy four years ago. He had not -seen him before that since he was four or five years old. He did not recognize him visually, but he says he recognized his voice. That 'he should remember and recognize, after eleven or twelve years, the sound of a voice that he had last heard when a child of four or five, is not to be believed. His belief that the man was defendant’s husband (ii he, in fact, had such belief), obviously rests solely upon what he was told by his father and mother who were with him at the time, and is therefore hearsay.

It is significant that neither his father or mother were produced as witnesses, although they live in Philadelphia, and, apparently, could readily have come to testify, or, at least, could have had their testimony taken by commission.

1 conclude, therefore, that defendant has failed to prove that she had a husband living when she made the contract; that on the preponderance of the evidence the contrary is established, and that, her contract having been duly acknowledged by her under the statute, complainants are entitled to decree for specific performance.

The decree will carry the costs and counsel fee. Counsel may be heard on motion day as to the amount of the latter.


author: Pee Curiam.

text:
    DAVID STEINBERG, PROSECUTOR, v. FREDERIC BIGELOW, SUPERINTENDENT OF BUILDINGS OF THE CITY OF NEWARK; BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, AND THE CITY OF NEWARK, RESPONDENTS.
    Argued October 6, 1925
    Decided November 10, 1925.
    Zoning — Stores in Restricted Territory — -Case Within Rule in Ignaciunas v. Risley — Appeal to Board of Adjustment Not Necessary — Certiorari Does Not Give the Prosecutor the Right to Which He-is Entitled — Proper Remedy is Mandamus —Action of Board of Adjustment Set Aside.
    On writ of certiorari.

    Before Justices Teen chard, Katzenbach and Lloyd-
    Eor the prosecutor, Isadore H. Colton.

    For the respondents, Jerome T. Congleion and Charles M. Myers.

   Pee Curiam.

This case is before us upon a writ of certiorari allowed for the purpose of reviewing the action'of the board of adjustment of the city of Newark, which affirmed the action of Frederic Bigelow, superintendent of buildings of the city of Newark, in denying to the prosecutor a permit for the erection of a building to contain apartments and stores at Nos. 75-79 Avon street, in said city. The facts have been agreed upon. The statement of facts shows that David Steinberg, the prosecutor, is the owner in fee-simple of the property known as Nos. 75-79 Avon street, in the city of Newark. The property is located at the northwest corner of Avon street and Hillside place. It has a frontage on Avon street of seventy-two' feet and a frontage ón Hillside place of ninety feet. On March 2d, 1925, the prosecutor applied to the said superintendent of buildings of the city of Newark for a permit, to erect a fourteen-family apartment-house containing four stores. The stores were to be located on the Avon street side. The prosecutor tendered to the superintendent of buildings the legal fees in accordance with the ordinance of the city of Newark. On March 4-th, 1925, the superintendent refused to issue the permit on the ground that the plans (‘ailed for four stores in conjunction with the' apartment-house, and that the erection of said stores would be a violation of the zoning ordinance of the city of Newark adopted on December 31st, 1919. This ordinance placed the prosecutor’s lands in a zone where stores were prohibited. Upon the refusal of the superintendent to grant the permit the prosecutor appealed to the board of adjustment of the city of Newark, created under chapter 148 of the laws of 1924. Parnph. L. 1924-, p. 324. The board of adjustment refused to grant the permit upon the ground that the proposed building to be erected by the prosecutor was to contain stores, and affirmed the action of the superintendent in denying the permit. Avon street is a wide thoroughfare commencing at Clinton avenue, in the city of Newark, and extending to the town of Irvington. A part of this avenue is in the business zone. The building now located upon the prosecutor’s land is a public restaurant. Upon the refusal of the board of adjustment to grant the permit a writ of certiorari was applied for and allowed to review the action of the board of adjustment.

This case involves, we think, the same question as was decided by this court in the case of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed by the Court of Errors and Appeals, 2 N. J. Adv. R. 852. This decision has been followed in innumerable cases, among which are Falco v. Kallenbach, 3 N. J. Mis. R. 333; Becker & Son v. Dowling, 128 Atl. Rep. 395; Union County Development Co. v. Kaltenbach, 3 N. J. Mis. R. 341. At the time of the decision of this case the act of 1924 referred to had not been passed. The legislature could not by the enactment of a statute confer upon a municipality any power the exercise oi which would deprive an owner of property of the right guaranteed him by the constitution. The effect of the 1924 statute was considered in the recent case of H. Krumgold & Sons v. Jersey City, in the Court of Errors and Appeals, decided October 19th, 1925, 3 N. J. Adv. R. 1546. In that case the court said: “A legislature cannot confer upon a municipality any power the exercise of which will deprive one of the rights guaranteed him by the constitution. Every owner of property has guaranteed to him the right of holding, using, enjoying and disposing of' his property. It is true that every owner holds his property subject to the implied condition that it will not be used to the injury of others. Within proper limits his use thereof will be controlled for the promotion of the safety, health, morals or general welfare of the community. But when the state or any agency thereof seeks to restrict the use of private property under the guise of the police power the restriction must bear some definite and substantial relation to the public welfare.”

In the present case the restriction sought to be imposed upon the prosecutor’s property bears no. definite and substantial relation to the public health, safety or general welfare. This was decided in the case of Ignaciunas v. Risley, supra. It was not necessary for the prosecutor to appeal to the board of adjustment. This was so held in the case of E. Krumgold & Sons v. Jersey City, supra. The action of the board of adjustment in sustaining the refusal to grant the permit mil be set aside as illegal. This action, however, does not give to the prosecutor the right to which he is entitled, namely, a building permit for the erection of the apartment-house and stores. Certiorari was not the proper remedy to secure for the prosecutor his right. Falco et al. v. Kaltenbach, Building Inspector, et al., supra. The proper remedy is mandamus. It will, perhaps, however, not be necessary for the prosecutor to apply to this court for the issue of such a writ in view of the statement made in open court by the counsel for the respondents, which, as we recall it, was to the effect that if this court held that the action of the board of adjustment was unwarranted that a building permit would be forthwith granted to the prosecutor. The action of the board of adjustment of the cityr of Newark affirming the action of the superintendent of buildings of the city of Newark in refusing to issue a permit to the prosecutor is set aside, with costs.


text:
    THE CHANCELLOR DEVELOPMENT CORPORATION, A CORPORATION OF NEW JERSEY, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, FREDERIC BIGELOW, SUPERINTENDENT OF BUILDINGS OF THE CITY OF NEWARK, DEFENDANTS.
    Argued October 6, 1925
    Decided November 10, 1925.
    Zoning — Stores in Restricted Section — Case Within Rule in Ignaciunas v. Risley — Not Distinguished From Steinberg v. Bigelow Ooinion Just Filed.
    On writ of certiorari.

    Before Justices Treychard, Katzenbach and Lloyd.
    For the prosecutor, Philip J. Schoilaiul.

    For the defendants, Jerome T. Gonglelon and Charles M. Myers.

   Per Curiam.

This case is before us on a writ of certiorari allowed for the purpose of reviewing the action of the board of adjustment of the city of Newark sustaining the action of the superintendent of buildings of Newark in refusing to issue to the prosecutor a building permit. The prosecutor, a corporation, owns a tract of land on the northwest corner of Lyons avenue and .Irving place, in the city of Newark. On this plot of ground it desires to erect two two-story brick, steel and stone buildings. The building on the corner was to contain six stores on the ground floor and four apartments on the second floor. The other building is to be located immediately’west of and adjoining the corner building was to consist of four stores on the ground floor and four apartments on the second floor. Plans were prepared and submitted to the state board of tenement house supervision and approved by that board.

On Eebruary 6th and March 8th the prosecutor applied to the superintendent of buildings for a permit to erect the said buildings and tendered the legal fees. The superintendent of buildings refused to issue the permit on the ground that the premises were located in a district which had been zoned as a residence in an ordinance of the city of Newark adopted on December 31st, 1919.

On March 19th, 1925, the prosecutor appealed to the board - of adjustment of Newark from the decision of the superintendent of buildings. The board sustained the action of the superintendent in refusing to issue the permit. Lyons avenue, on which the plot is located, is a main thoroughfare of Newark running west from Elizabeth avenue to the town of Irvington. Part of this avenue is in the business zone. There is a constant flow of heavy traffic through Lyons avenue at all times. A hospital organization, which proposes to erect a hospital near the prosecutor’s lands, objected to the granting of the permit.

Upon the refusal of the board of adjustment to grant the permit, a writ of certiorari was applied for and allowed to review the action of the board.

This case cannot be differentiated from the case of Stein-berg v. Bigelow, Superintendent of Buildings of the City of Newark, et al., in which an opinion will be filed at the same time as the opinion in this case. Eor the reasons set forth in that -opinion the action of the board of adjustment of the city of Newark is set aside, with costs. The statement made by counsel for the respondents respecting the issue forthwith of a building permit to the prosecutor applied also to the p resent case.


text:
    HERMAN & COMPANY, A CORPORATION OF NEW JERSEY, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, FREDERIC BIGELOW, SUPERINTENDENT OF BUILDINGS OF THE CITY OF NEWARK, AND THE CITY OF NEWARK, DEFENDANTS.
    Argued October 6, 1925
    Decided November 10, 1925.
    Zoning- — Stores in Restricted Section — Case Not Differentiated From Steinberg v. Bigelow in Opinion Just Filed.
    On writ of cerliorari.

    Before Justices Teenchabd, Katzenbaoii and Lloyd.
    For the prosecutor, Philip J. Schotland.

    For the defendants, Jerome T. Congleton and Charles M. Myers.

   Per Curiam.

This case is before use on a writ of cerliorari allowed for the purpose of reviewing the action of the board-of adjustment of the city Newark, which affirmed the action of Frederic Bigelow, superintendent of buildings of the city of Newark, in refusing to issue to the prosecutor, a corporation of the State of New Jersey, a permit for the erection of a building on land owned by it. The land owned by the prosecutor consists of a vacant plot on Lyons avenue, in the city of Newark, sixty feet east of Clinton place. It has a frontage of sixty feet on Lyons avenue and an approximate depth of one hundred and ten feet. The building contemplated was to be a two and one-half story brick, steel and stone building containing four stores on the ground floor and four apartments-on the second floor. The plans for the proposed building were submitted to and approved by the state board of tenement house supervision. They comply in all respects with the building code of the city of Newark.

On March 8th, 1925, the prosecutor applied to the building department of the city of Newark for a building permit, tendering the legal fees to the superintendent of buildings. The superintendent refused to issue the permit on the ground that the premises were located in a residential district, under the provisions of a zoning ordinance of the city of Newark, adopted December 31st, 1919. The ordinance provided that no stores were to be erected in this district. On March 19th, 1925, the prosecutor applied to the board of adjustment of Newark, a board created under chapter 148 of the laws of 1924 (Paraph. L. 1924, p. 324), from the ruling of the superintendent of buildings. This board sustained the action of the superintendent of buildings.

Lyons avenue' is a main thoroughfare running west from Elizabeth avenue, in the city of Newark, and extenidng to the town of Irvington. A part of this avenue is in the business zone. The business zone is contiguous to the ¡>roperty of the prosecutor. All of the four corners of Lyons avenue and Clinton place are now in the business zone. The property of the prosecutor, as has been stated, is only sixty feet distant from Clinton place.

Upon the refusal of the board of adjustment to grant the permit a writ of certiorari was applied for and allowed to review the action of the board of adjustment.

This ease canont be differentiated from the ease of Stein-berg v. Bigelow, Superintendent of Buildings, et al., in which an opinion will be filed at the same time as the opinion in .this case. Eor the reasons sets forth in that opinion the action of the board of adjustment of the city of Newark is set aside, with costs. The statement made by counsel for the respondents respecting the issue forthwith of a building permit to the prosecutor applied also to the present case.


author: Buchanan, Y. O.

text:
    John W. Pyle, complainant, v. Paul Danczewski et al., defendants.
    [Decided October 15th, 1925.]
    Mortgages — Foreclosure—Complainant Acquired Mortgage Which Was on Property at Time He Sold Property, Subject Thereto, to Defendant — Defendant Gave Additional Second Mortgage to Complainant’ — Complainant’s Wife Did Not Join in Deed— Payment of Second Mortgage Conditioned on Wife’s Release of Interest — A Third Mortgage and a Judgment Afterward Became Liens — Master’s Report, Final Decree and Fi. Fa., Directed Sum to be Set Aside For Wife’s Inchoate Dower, Directed Payment of Second Mortgage and Judgment, But Not of Third Mortgage — Other Irregularities — Order Confirming Sale Reopened, Fi. Fa. Set Aside, Final Decree Vacated, Master’s Report Set Aside Except as to First Mortgage.
    On application to open decree, &c.

      Mr. Jamen Fisher, for the complainant.

      Mr. John M. Mills, for the defendants.
   Buchanan, Y. O.

Complainant's bill prays foreclosure of mortgage made by complainant and his wife on premises then owned by complainant and later sold to defendant Danczewski, the latter assuming payment of the mortgage, which was subsequently assigned to complainant. On this mortgage there was cine $300 and interest from October 1st, 1923. It also prays foreclosure of a second mortgage of $700 given to complainant by Danczewski at the time of his purchase of the premises. Both the deed to Danczewski and this second mortgage, except out of the premises as described in the first mortgage, a tract of an acre reserved by complainant to himself. ,

Complainant’s wife is still living. She neither joined in the deed to Danczewski nor otherwise barred her inchoate dower, which is therefore subject to the first mortgage but not to the second.

The bill further sets up a third mortgage of $360 held by defendant American' Trust Company, and a docketed judgment of $130 against Danczewski in favor of defendant Swift & Company. It expressly alleges the respective priorities of the several liens to be as above set forth.

No denial of any of the allegations of the bill was filed by any defendant; decree pro confesso was entered against all.

Defendant Mary Pyle (complainant’s wife) appeared before the master to have her dower ascertained; defendant Swift & Company appeared to have its judgment reported upon ; defendant American Trust Company did not appear.

The master reported $300 due complainant on the first mortgage, plus interest, from October 1st, 1923. This is correct and is not controverted.

The master further reported (and the final decree and fi. fa. provide) that the wife was entitled to be.paid $1,174.20 for what he calls her inchoate right of dower, but his calculation and direction to pay could only be justified if her husband were dead. Moreover, he has taken her age as of four years ago — apparently on some idea that she was then deprived of her dower, though she did not join in the deed to defendant. The .most that the wife can ask is to have such sum secured (not paid) to her as will suffice, in the contingency of her husband’s predeceasing her, to produce income equal to what she would receive for dower.

The master further reported that $700 and interest was due on the second mortgage, and the final decree and the fi. fa. provide -that $750.52 shall be raised and paid to- complainant in this behalf — this in the face of the express provision in the bond that “no part of .the principal shall become due and payable until such time as the said grantor” (the obligee-complainant) “shall .procure a release of his wife’s right of dower in the farm thus conveyed” or the wife’s decease. The wife is still living, and, admittedly, the release has never been procured (and the complainant has induced or permitted the master to direct the payment of $1,100 to the wife for her dower interest as heretofore mentioned). Certainly, on the face of things, it would seem that the most complainant might seek to have done would be to have the $700 set aside as security, if defendant has not kept up interest and taxes.

The master’s report further omits the American Trust Company as entitled to any payment or protection for its mortgage, apparently on the theory that its failure to appear in response to the master’s summons justified depriving it of its admitted rights. (There is not even any proof of service of master’s summons upon this defendant annexed to the report.) The bill expressly set up this mortgage and its priority over the lien of Swift & Company. No defendant denied. The searches produced before the master corroborated the allegations of the bill. Yet the master’s report (and the final decree and fi. fa.) deprive the defendant American Trust Company of all interest. This is unjustifiable, and is in direct contravention of rule 187.

It further appears that there were irregularities in the sheriff’s advertisements of sale, and that he did not sell all the property directed by the final decree and fi. fa., but excepted a portion. The petitioner was the purchaser at the sale and paid $520 on account of his bid.

The present application rests in the discretion of the court. Allaire v. Day, 80 N. J. Eq. 281; Schaffer v. Hurd, 8 Adv. R. 1364.

The proofs on the present application show that the defendant-petitioner liad made effort to present defense to the action, but that by the negligence (or worse) of Ms earlier solicitors his interests had in nowise been protected, and his own subsequent serious accidental injuries excuse what might otherwise seem delay ‘on his part. No interests other than those of complainant and the petitioner can be materially affected, and complainant, of course, is responsible for a number, at least, of the many and serious errors and1 irregularities with which the entire suit is replete, and which result to the damage of petitioner.

Petitioner tenders payment of the amount due on the first mortgage, and asks surrender and cancellation thereof and of the bond secured thereby.

"The order confirming sale will be opened and vacated; the sale will be set aside and petitioner relieved from his bid; the sheriff to pay into this court the amount paid by petitioner on said bid. The fi. fa. will.be set aside, and the final decree will be opened and vacated. The master’s report will be set aside except as to the findings of the amounts due on the first mortgage and the Swift & Company judgment. The decree pro confesso will be opened ’ as against petitioner to permit him to set up his defense to the second mortgage within twenty days. The clerk will be directed to pay to complainant out of petitioner’s $520 the amount due on the first mortgage, and complainant directed to surrender the bond and mortgage for cancellation.


author: Lloyd, J.

text:
    LYMAN E. WARREN, PLAINTIFF, v. HARRY P. DILKES, DEFENDANT.
    Decided December 1, 1925.
    Negotiable Instruments — Promissory Notes — Failure of Consideration — Material Alteration — Alleged Knowledge of Both by Third Party, Holder of the Note, For Valuable Consideration —Evidence Fails to Show Such Knowledge on Part of Holder —Payment May Be Enforced.
    Por the plaintiff, Lum, Tamblyn & Colyer.

    For the defendant, John G. Flanigan.

   The opinion of the court was delivered by

Lloyd, J.

In an action commenced by the plaintiff, Lyman E. Warren, against Harry P. Dilkes, on a promissory note drawn to the order of Thomas P. Dilkes at four months and payable at Main street, Moorestown, New Jersey, a judgment was taken by default. A motion was made to open the judgment, and upon this motion permission was granted to the defendant to take depositions to excuse the failure to make answer and to establish a meritorious defense.

The note was transferred to Warren, the plaintiff, by Dilkes, the payee, in consideration of the cancellation of an indebtedness held by Warren against the payee. The evidences tending to show a meritorious defense are claimed to he (1) that there was a failure of consideration as between the maker and the paj'ee; (2) that of this failure the plaintiff had notice before the negotiation of the note to him, and (3) that the note had been altered in a material part by the insertion in the blank space left therefor. It is also claimed that the note, upon its face, gave evidence of such alteration.

A careful examination of the depositions fails to satisfy me that there is a meritorious defense on any of these lines. •

Even'if it be assumed that the note was- altered-by the insertion of a place of payment, this would not vitiate the note in the hands of Warren if he be an innocent holder ignorant of such change, inasmuch as our Negotiable Instrument act of 1902, section 124, declares that “when an instrument has been materialy altered and. is in the hands of. a holder in due course not a party to the alteration, he may, enforce payment thereof according to its -original tenor.”' The original tenor of this note would have been exactly as it is with the place of payment omittted in so far as- payment of the note is concerned.

If, as is claimed, there was a failure of consideration, in whole or in part, as between the maker, Harry P. Dilkes, and the payee, Thomas P. Dilkes, the evidence fails to establish knowledge of this fact if it existed in Warren, the plaintiff, when he purchased the note, or notice of such facts as would charge him with bad faith'in purchasing the note. Rice v. Barrington, 75 N. J. L. 806. Assuming that the facts testified to by the defendant’s witnesses shifted the burden on the plaintiff to show that he was an innocent holder for value before maturity and without notice of defects in the instrument itself, this burden is amply met by the testimony of the plaintiff, who was examined at great length, denying such knowledge.

Taking this view of the merits of the case, it is unnecessary to consider the adequacy of the excuse for failure to file an answer as required by' law.

The motion to open the judgment will be denied.


text:
    THE STATE v. HARRY KNOWLES.
    Decided December 3, 1925.
    Crimes — Assault and Battery — Malicious Mischief — Alleged Error in Charge in Defining the Crimes — Held, That An Instruction Must Be Viewed With Regard to the Issues Raised by the Pleading in Evidence, and If a Charge, When So Construed, is Free From Error, It Will Not Be Ground For Renewal Although Wrong As An Abstract Proposition — Court, in Di- . recting Jury to Rely on Its Own Recollection of the Facts, Notwithstanding Any Statement by the Court, Negatives Any Error Contained in Such Statement — No Merit in Allegation That a Verdict Should Have Been Directed For Defendant, or That Verdict Was Against Weight of Evidence.
    On error to the Essex Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiff in error, Harold Simandl.

    For the state, John O. Bigelow, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error, together with six other men, was tried in the Essex Quarter Sessions on an indictment containing two counts, the first qf which charged that the defendants did willfully and maliciously break, destroy and damage an omnibus, the property of the Public Service Transportation Company, and the second charging an assault and battery upon one Dominick Savi, the driver of the omnibus. The trial resulted in the conviction of Knowles, and the present writ of error was sued out to review' the validity of that conviction.

The first contention before us is that the verdict convicting him of the charges made in the indictment was against the weight of the evidence. Our examination of the testimony sent up with the writ leads us to the conclusion that the jury was fully justified in its finding.

The second, third, fourth and fifth grounds of reversal-are directed at alleged errors committed by the trial court in its charge ,to the jurjr in defining the crimes of assault and battery and of malicious mischief, and instructing the jury as to the responsibility of all persons jointly engaged in the perpetration of a criminal act. In the case of State v. Jones, 71 N. J. L. 543, 546, and in the later case of State v. Egan, 84 Id. 701, 706, the following rule is laid down as the test to be applied in considering alleged errors in the charge delivered to the jury in a criminal case: “An instruction must be viewed with regard to the issues raised by the pleadings and the evidence;’ and, if a charge when so construed, is free from error, it will not be ground for reversal, although wrong as an abstract proposition.” Tested by this rule, we find nothing of merit in the attack upon the charge.'

It is further argued that there should be a reversal in this case because of the misstatment of certain facts by the trial judge in the charge to the jury. ‘ Assuming that the statements pointed out by counsel are to some extent inaccurate, that fact will not justify a reversal, for the reason that at the close of the charge the trial court said: “In reciting briefly, as I have, some of the facts, I wish you to disregard anything I have said with respect to the evidence unless it coincides with your own recollection. I may have erred in my recollection of what the evidence was. If I have, you must disregard it, because jrour recollection of what the evidence is must be your sole guide, and not what the court has referred to as the evidence.” This statement nullified any inaccuracies 'O'f the trial judge in reciting facts, and, consequently, the plaintiff in error is not entitled to a reversal because of such alleged misstatements. State v. Young, 97. N. J. L. 501, last syllabus.

The' last contention is that the trial court erred in refusing to direct a verdict in favor of the defendant at’the close of the ease. What has been said with relation to the first point argued is dispositive of this latter one.

The judgment under review will be affirmed.