text:
    THE STATE BY FRANK I. ACKERMAN, PLAINTIFFS-RESPONDETNTS, v. PAUL STEINER, DEFENDANT-PROSECUTOR.
    Submitted May 18, 1929
    Decided November 15, 1929.
    Before Justices Teenchabd, Lloyd and Case.
    Por the prosecutor, Samuel F. Staff (Vincent J. Paterno, of counsel).
    Por the respondents, Joseph P. Betz (Joseph J. Weinberger, of counsel).
   Pee Cueiam.

The prosecutor of this writ was convicted in the police court of the city of Passaic upon two complaints, one charging that he erected a sign in front of his office without having obtained a permit therefor, and the other that he maintained the sign after he had been ordered to remove the same by the supervisor of buildings, both contrary to article 173 of the building ordinance of the.city.

Apparently the cases were tried together below, and they have been argued here together, since both raised the same questions.

We express no opinion as to the legal propriety of the procedure adopted by the prosecutor for the review of such convictions, hut deal with the matter as it is presented to us.

In our judgment none of the reasons, assigned for reversal (they are identical in both cases) will justify a reversal of these judgments.

The first reason is that “the sign set up by the prosecutor on which the complaint was based was not such as is contemplated by the ordinance which was claimed to have been violated.”

We think that is not so. The title of the building ordinance is “An ordinance to regulate and control the erection, construction, alteration, repair, demolition and moving of buildings and other structures in the city of Passaic, Passaic county, New Jersey.” It was enacted pursuant to article 14, section 1, paragraph N of chapter 152, Pamph. L. 1917, which grants to the municipality the right “to regulate and control the construction, erection, alteration, and repair of buildings and structures of every kind in such municipality.”

Article 173 of the ordinance by section 1 provides that “signs and billboards may be erected in any business and industrial districts in the city of Passaic if they conform to the provisions of this ordinance” and section 2 reads in part, “before any signs, fixed awning, or other projecting object, billboard or advertising device is altered or erected upon or above the ground or upon or above any building in the city of Passaic, a permit shall be obtained from the bureau of buildings, for which an annual fee shall be paid, except that temporary signs [as therein described] may be erected without a permit.” The sign in question was not a temporary sign.

The prosecutor argues that the sign in question was not a structure. We think that it was. It was an electrically lighted, swinging sign of wood and metal, five feet long by three feet eight inches wide, hung on the front of his dental office in a residential district of Passaic, and exhibited the words “Dr. Paul Steiner, Dentist.” Such a sign is a structure. Hendryx v. New Haven, 134 Atl. Rep. 77; City of New York v. Wineburgh Advertising Co., 122 App. Div. 748.

The second reason is that “the signs contemplated in the ordinance which prosecutor was alleged to have violated and of which he was convicted, are such as are in use in business and industrial districts, whereas the sign in question was set up in front of the entrance to his office situate in a residence district.”

The answer to this point is that an examination of the ordinance shows that the contention is untrue in point of fact. Besides the sections quoted, section 3 of article 173 provides that “the term sign shall be construed to include every sign, billboard or advertising device,” and section 15 provides that “all electrical equipment of signs * * * must be done in accordance with the rules and regulations of the electrical bureau of the city.”

The third reason is that “as to signs set up in residence districts, as was the ease in the convictions against the prosecutor, the ordinance of the city of Passaic regulating the same is what is commonly known as zoning ordinance, whereas the ordinance, the violation of which prosecutor was charged and convicted was what is commonly called the building code entitled cAn ordinance to regulate and control the erection, construction, alteration, repair, demolition and moving of buildings and other structures in the city of Passaic, Passaic county, New Jersey.’ ”

This point is answered by our answer to the second reason.

The fourth reason is that “if the sign set up by the prosecutor was within the so-called building code, the ordinance is illegal and unconstitutional because such ordinance would embrace more than one object and because such object is not expressed in the title.”

In his argument in support of this reason the prosecutor relies alone upon the provision of our state constitution referred to therein. The answer to that argument is that such constitutional provision has no application to city ordinances.

The fifth reason is that “if the sign in question was contemplated by the so-called building code, and if the title of the said ordinance were comprehensive to include such signs, the ordinance would be in violation of the guarantee given by article 1, section 1 of the constitution of the State of New Jersey.”

The argument is that the ordinance deprives the prosecutor of the rights of private property. We think that it does not, but that it is a valid exercise of the police power in the interest of public safety and welfare.

The sixth reason is that “the constitution of the State of New Jersey as amended by the first amendment still preserves to the citizens the rights guaranteed in article 4, section I, and article 1, section above quoted, because the amendment affects only zoning ordinances.”

In so far as this reason calls for any answer, it is answered by what we have already said.

The seventh reason is that “if the ordinance on the violation of which prosecutor was convicted does embrace the setting up of a sign such as prosecutor set up, it is unconstitutional because it is unreasonable exercise of police powers.”

We have already indicated that there is no merit in this reason. The ordinance did not prohibit the sign. It merely required that before it was erected a permit should be obtained from the proper city authorities; and it forbids the maintenance thereof without such permit after notice to remove same. The prosecutor never made any application for a permit.

Without expressing any opinion as to the reasonableness of the ordinance in other respects or as to other signs, it seems that there can be no question that the ordinance was quite reasonable in so far as it required a permit in respect to a sign of the type in question operated by electricity.

The judgments of conviction will be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CAMP NAMASCHAUG, INCORPORATED, A CORPORATION OF NEW HAMPSHIRE, PLAINTIFF-RESPONDENT, v. ELENITA KENNEDY, HARVEY FASSETT AND LOUIS J. BEERS, EXECUTORS OF THE ESTATE OF THOMAS F. KENNEDY, DEFENDANTS-APPELLANTS.
    Submitted May 18, 1929
    Decided November 15, 1929.
    Before Justices Trenchaed, Lloyd and Case.
    Eor the appellants, Louis J. Beers.

    Eor the respondent, J. Glenn Anderson.

   Per Curiam.

This was an action in the Essex Circuit Court to recover on a book account claimed by Camp Namaschaug, Incorporated, against the estate of Thomas E. Kennedy. The book account comprised items of supplies and also board supplied to the two sons of Kennedy. Kennedy was the president of the plaintiff corporation. A resolution was passed in February of 1924 by the board of directors that the administrative officers of the plaintiff, namely, Kennedy and one Maloney and one Myers, should receive as compensation for their services (they were apparently active managers) a share in the net proceeds of the camp. The resolution also provided that the term expenses should include the board and lodging for the camp managers and their immediate families. Kennedy acted as one of the managers and was at the camp with his wife, daughter and two sons. There was no profit and the camp refused to recognize the claim for free board of the two sons, and that is the matter in dispute.

It appears that on March 3d, 1924, the defendant wrote a letter to one of the directors of the plaintiff corporation which contains the following:

“Yesterday I presided at a meeting at my home with Mr. Maloney and Mr. Myers. We went over the whole situation and I succeeded in getting their consent to include depreciation in the expenses. We agreed at Baltimore that this should be $1,000, so I had it inserted in the minutes to avoid any possible misunderstanding. They felt that the administrative officers should receive board and lodging for their wives and themselves. I feel that if our wives should care to come they can be of great service in the office and in the hostess cottage. Of course, this does not include my boys whom I expect to be at the camp, and who will pay the regular charges.”

The case was referred to a referee without, so far as the appellants are concerned, a reservation of jury trial right, and he found that under the resolution as interpreted or modified by the appellant’s letter, that the plaintiff was entitled to recover board for the two sons. This report was confirmed and the defendants appeal.

It seems to us that the appeal is without merit, for two reasons. Eirst we think that for any error of law that might have been committed the sole mode of redress was on application to the Circuit Court to set aside the report and grant a new trial (Clayton v. Levy, 49 N. J. L. 577), and secondly because we think the judgment was right on its merits.

Appellant contends that the director had no authority to bind the corporation and while this might be true as against the corporation, yet the corporation had a perfect right to adopt her act, which was for its benefit, and sue to recover the amount due on it.

The judgment will be affirmed, with costs.


author: Pee. Curiam.

text:
    SADIE GROSSBERG AND SAMUEL GROSSBERG, HER HUSBAND, PLAINTIFFS, v. JOSEPH SHAPIRO AND RAYMOND DE KEZEL, DEFENDANTS.
    Submitted May 18, 1929
    Decided November 15, 1929.
    Before Justices Teenchakd, Lloyd and Case.
    Eor the plaintiffs, Herman D. Hdelson and Louis G. Friedman (Jacob L. Bernstein, of counsel).
    Eor the defendant Joseph Shapiro, Alexander M. MacLeod.

    For the defendant Raymond De Kezel, Schneider & Schneider (Wiliam P. Braun, of counsel).
   Pee. Curiam.

This is plaintiffs’ rule to show cause why a new trial should not be granted.

Plaintiff Sadie Grossberg was riding in an automobile owned and operated by Joseph Shapiro, as his guest and invitee. Shapiro was going west on Ridgewood avenue in Bergen county and defendant De Kezel was operating his automobile south on Paramus road. At the intersection of these highways the automobiles collided shortly before midnight. Mrs. Grossberg and her husband brought this suit against both Shapiro and De Kezel on account of the consequent injuries to Mrs. Grossberg. The jury found in favor of the defendants.

The plaintiffs’ first point is that the verdict was against the clear weight of the evidence.

Defendant De Kezel was called by the plaintiff. He testified that he was going about twenty-six miles an hour immediately before the accident, and when he reached the intersection he was “rolling about eighteen miles as he stopped to look up and down the street;” that he did not see Shapiro’s car and did not see lights and when he saw nobody “I just simply stepped on the gas;” that after traveling four feet after looking, the accident happened, his front bumper hitting the running board of the other car. He testified that his lights were burning brightly; that he did not stop when he got to the intersection and did not blow his horn because he did not think it was necessary.

The other defendant, Shapiro, testified that he looked to his right as he approached the intersection, and saw no car coining; that he slowed down to fifteen miles an hour; that he heard no horn and does not remember whether or not he blew his horn. He says that he did not see anything at all; that he never saw anything until the collision occurred. He says also that the De Kezel car had lights on, and they were bright lights and his own lights were bright.

The trial judge instructed the jury that if they found Mrs. Grossberg to have been guilty of contributory negligence, they should acquit defendants. He told them in effect that they might find such contributory negligence if they found that Mrs. Grossberg acquiesced in Shapiro’s driving without lights. We have not stopped to consider the legal accuracy, of that instruction. But we doubt if there was any .evidence which justified it as a matter of fact. Certainly it may be said the great weight of the evidence is that Shapiro’s lights were lighted. Upon the whole case we are clear that the verdict was against the great weight of the evidence. Normally, in an accident such as the evidence shows this to be, one or the other or both of the defendants would certainly be deemed to be negligent, and by the great weight of the evidence there was no contributory negligence upon the part of Mrs. Grossberg.

The rule to show cause will be made absolute. Costs to abide the event of the suit.


text:
    FANNIE SADOFSKY, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF HERMAN SADOFSKY, DECEASED, AND FANNIE SADOFSKY, INDIVIDUALLY, PLAINTIFFS, v. WILLIAM FRAIN, DEFENDANT.
    Submitted May 18, 1929
    Decided November 15, 1929.
    Before Justices Trenchard, Lloyd and Case.
    For the rule, Thomas H. Hagerty (Charles H. Rooney, of counsel).
    Contra, David T. Wilentz.

   Per Curiam.

This action is brought by Fannie Sadofsky as administratrix ad prosequendum of the estate of Herman Sadofsky, deceased, and Fannie Sadofsky, individually, to recover damages for the death of Herman Sadofsky and for personal injuries to hereslf caused by the defendant’s automobile striking the automobile in which plaintiff and Herman Sadofsky were passengers on the Lincoln highway near the Stelton road in Raritan township, Middlesex county, between midnight and twelve-thirty a. m. on July 10th, 1927.

The defendant denies all knowledge of the accident and alleges that at the time of the accident he was in Jersey City, the implication being that his automobile was stolen.

The case was tried before Judge Daly and a jury in the Middlesex Circuit. At the trial the claim of Eannie Sadofsky individually was abandoned and the postea discloses a verdict in favor of Eannie as administratrix ad prosequendum for $20,000.

The defendant obtained this rule to show cause why a new trial should not be granted and the reasons argued are because, first, the court erroneously refused to direct a verdict in favor of the defendant, and secondly, the verdict of the jury is against the weight of the evidence.

We think that the court was not in error in refusing to direct a verdict in favor of the defendant.

Fannie Sadofsky testified that on July 10th, 1927, she and her husband were coming from Newark to their home in New Brunswick in an Oakland sedan; that shortly after passing the Stelton road on the Lincoln highway, a tire became fiat, and her husband, Herman Sadofsky, took off the flat tire to fix it; that their car was parked on the dirt shoulder on the right side of the road, under a light; that the front and rear lights on their car were lighted; that they were struck from the rear in a crash which killed her husband and knocked the ear quite a distance; that the car which struck them was a big car.

This testimony is corroborated by that of Henry Miller who testified that he was driving his automobile on the Lincoln highway towards New Brunswick shortly after midnight on July 10th, 1927; that shortly after leaving the Stelton road a car passed him going sixty to sixty-five miles an hour; that this car almost struck Miller’s automobile in passing and the driver lost control of it, swerving to the right and hitting the Sadofsky car, knocking it off the road; that Miller stopped and saw that Mr. Sadofsky had been killed and then helped the other people out of the car; that he did not get the license number of the other automobile except that he saw the letter “H” on the license plate; that it was a big dark sedan occupied by a young man and a young woman; that he found a front headlight at the scene of the accident which he gave to a policeman.

The testimony of Louis Mersky for the plaintiff, who was a passenger in the automobile of Henry Miller on the night in question, is practically the same as Miller’s testimony.

. Police Officer Guyette of Raritan township testified that he arrived at the accident shortly after the body of Mr. Sadofsky had been removed in a bus and found the Sadofsky car turned upside down in a field about twenty-five feet from the road; that Miller handed him a broken headlight of an automobile and he in turn delivered it to Trooper Cassidy.

Benjamin Taylor, the garage man, who towed in the Sadofsky car, found it in a field twenty-five feet off the road; he tested the front and rear lights of the car and found that they lighted.

This, substantially, is the evidence as to the negligence of the driver of the automobile which struck the Sadofsky car and killed Mr. Sadofsky.

The questions remaining then, first: Was the automobile which hit the automobile of the deceased at the time of the accident owned by the defendant Erain; and, secondly, if such automobile was owned by Erain, was it being driven by him or his agent at the time of the accident?

It seems undisputed that the Sadofsky car was struck by a large dark sedán in which there was a man and a woman, the license plate of which began with the letter “H;” that a broken headlight was found at the scene of the accident.

Howard Dooley testified that he saw a dark green car going from the direction of the accident towards New Brunswick between twelve-thirty and one A. m., July 10th, 1927; that the car looked like either a Cadillac or a Lincoln and that there was a fellow and girl in the car and that they were sitting in a reclining position; that the bumper or something was hitting the road, causing sparks; that he saw the same ear the next day, or two days after, in Taylor’s garage on the Lincoln highway.

John Hoffman, a police officer in Highland Park, testified that he saw a big dark closed car pass him about one a. m., July 10th, 1927. A man and a woman were in the car and the right front, right fender and bumper on the ear were damaged.

Tred Shedig, a police officer in Highland Park, testified that he observed the car on the same night and that it made a noise like a fender rubbing a tire and that the light on the right hand side was broken.

Harry Solowey testified that he was reading in the sun room of his home in Highland Park shortly after one a. m., July 10th, 1927; that he heard a noise on the street, looked out and saw a big car stop and two people get out; that the man carried a satchel; that he found that this car was blocking his driveway; that he notified the police who removed the car, which was a Lincoln sedan damaged in the front; that the license number was H 20940.

Louis Weinzeick testified that he was sitting outside of his home in Highland Park about one a. mv July 10th, 1927; that he saw a large car stop near Mr. Solowey’s; that about four minutes later a man and a woman passed his house, coming from the direction of the car; that the man carried a satchel.

Robert Eddy, a police officer of Highland Park, was called to Solowey’s home July 10th, 1927, and found a Lincoln sedan, license number 11 20940, with the right front headlight missing and the bumper and radiator bent; that he had the car removed to Taylor’s garage.

Officer Grandjean of the Raritan township police identified the headlight found at the scene of the accident and stated that it had been turned over to him by Trooper Cassidy, and the headlight was admitted in evidence.

Albert Davis, chief of the Raritan township police, testified that he went to Taylor’s garage and found that this headlight fitted the Lincoln sedan H 20940 and that it belonged to this car; that the defendant Train claimed the Lincoln car as his own.

William W. Dougal testified that he towed the car to Jersey City for the defendant, Train.

A certified copy of registration license No. H 20940 issued to William Erain fox a Lincoln sedan was admitted in evidence.

Surely the jury was justified in inferring from these circumstances that this sedan was physically involved in the accident which caused Sadofsky’s death. The circumstances disclosed by this testimony make such an inference practically inevitable and this does not seem to be in serious dispute.

Now, the registration card showed Erain to be the owner of the vehicle. He claimed it to be his at the garage. He had it towed to his home in Jersey City. He does not deny that he owned it; and proof of ownership, without more, of an automobile driven upon a public highway raises a presumption of fact that the automobile was in the possession of the owner, if not personally, then through his servant, the driver. Mahan v. Walker, 97 N. J. L. 304; Tischler v. Steinholz, 99 Id. 149.

However, to rebut this presumption, defendant sets up an alibi. He states that he was not at the scene of the accident but was in Jersey City.

It is chiefly with respect to the presence of the defendant that he claims that the verdict was contrary to the weight of the evidence. We think it was not.

He testified in effect that in the early evening on the night of the accident he was in Jersey City riding about with his girl friend, in his Buiek roadster, until about ten-thirty 3?. m., and then put his roadster in his garage, where he also kept his Lincoln car, and walked back to the.girl’s house; that he remained there until about midnight when he went to a restaurant and then home and to bed, where he stayed until he was awakened at eight-thirty the next morning by his landlady who brought in Mr. Hoffman, a police detective who took him to the station house where he was informed that his Lincoln car had been found near New Brunswick after having been involved in a fatal accident; that he stayed at the police station until twelve noon, when he left for his girl friend’s house and had dinner; that later in the day he met Lieutenant Rockhill who questioned him and told him to be in New Brunswick the next day; that the next day he came to New Brunswick with Mr. Gallagher and Mr. Rooney, his attorney, and went to Taylor’s garage and identified the Lincoln car as his own, but denied all knowledge of the accident or of being at the scene thereof.

There was testimony of several witnesses produced by the defendant which corroborated in a way and to a certain extent defendant’s testimony, but the impression left upon our minds by a careful examination of it is that for one reason or another it does not satisfactorily, and certainly does not conclusively, corroborate the defendant’s story that he was not at the scene of the accident. Their testimony was much impaired, as to essential particulars, on cross-examination, as was also the testimony of the defendant himself.

Moreover, to controvert defendant’s story, plaintiff produced Michael Horvath, a witness, who testified that about fifteen minutes of one a. m., July 10th, 1927, he left New Brunswick for his home in Highland Park; that in Highland Park a man and a woman stopped him and he picked them up; that they asked if he was going to Newark and received a reply in the negative; that the woman asked him to drive to the nearest railroad station whereupon he drove them back to the New Brunswick station. The witness identified the defendant, Frain, as the man he had picked up that morning. He further testified that the point where he picked them up was well lighted; that the woman had a big black hat on and a brown coat but that he did not get a good look at her and could not identify her, but that he did get a good look at the man; that when they got to the station, the defendant walked up to the station to inquire about a train, came back, took his grip and went up in the station; that Frain wanted to get to the station in a hurry; that the man he picked up and carried a little square valise and had on a dark blue single-breasted suit with a straw hat; that he had a broken nose; that it was a nice clear night.

Horvath’s testimony was corroborated by Michael Herzog who testified that he saw Horvath, on the early morning of July 10th, 1927, stopped on the hill in Highland Park; that he then saw a couple walk towards the direction of Horvath’s car and about fifty to seventy-five feet away from it; that one of them carried a grip.

. We have exaxmined and carefully considered, not only the testimony to which we have referred, but all the other testimony, some of which throws additional light upon the problem in hand.

Our conclusion is that the jury was not only justified in finding, as it did, that the defendant owned and drove the car which inflicted the injury in question, but that the verdict was not against the weight of the evidence.

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


text:
    JOHN N. HARTUNG ET AL., PROSECUTORS, v. JOHN J. McGOVERN, CLERK OF HUDSON COUNTY ET AL., RESPONDENTS.
    Argued November 14, 1929
    Decided November 21, 1929.
    Before Justices Trenci-iabd, Lloyd and Case.
    Eor the prosecutors, William E. Declcer.

    Eor the respondents, J. Emil Walscheid.

   Per Curiam.

The applicants seek to review the order of the Supreme Court justice in allowing compensation to the members of the county board of elections for making a recount of the ballots ordered by such justice. In support of such application it is contended that there is no legal authority for such allowance of compensation. To us it is quite plain that there is such authority, and it is to be found in paragraph 422 of the election laws as compiled by the secretary of state edition 1929. Our examination of that statute, and considering its history, satisfies us that the statutory language is too plain to render the question suggested open to fair debate. The result of course is that the writ is denied, with costs on the motion.


author: Pee Curiam.

text:
    ATLANTIC CITY RAILROAD COMPANY, PLAINTIFF-APPELLANT, v. MICHAEL PACKMAN AND SAMUEL PACKMAN, TRADING AS PACKMAN BROTHERS, DEFENDANTS-APPELLEES.
    Decided November 22, 1929.
    Before Justices Trenchabd, Kalisoh and Lloyd.
    Por the appellant, Thompson & Hanstein.

    For the appellees, Endicott & Endicott.

   Pee Curiam.

For the purpose of clarity, the memorandum filed by the court on November 4th, 1929, is supplemented as follows:

We have pointed out that there must be a reversal of the judgment under review, with costs. In view of the law and of the undisputed evidence it is quite apparent that a judgment for the plaintiff below for some amount must be rendered. But because of the presence of the counter-claim (as to the precise extent of which we express no opinion) the amount which plaintiff! is entitled to recover is in dispute. In order that the amount of the palintiff’s recovery may be determined in the trial court, we award a venire de novo.


author: Pee Cubiam.

text:
    SOLOMON FULD ET AL., PLAINTIFFS, v. ELIZABETH B. ADAMS ET AL., EXECUTORS, ETC., DEFENDANTS.
    Argued October 2, 1929
    Decided November 26, 1929.
    Before Justices Pabkeb, Black and Bodine.
    Eor the plaintiffs, George A. Bourgeois.

    Eor the defendants, Thompson & Hanstein.

   Pee Cubiam.

This is a suit by vendees named in a contract for sale of land to recover back the $2,300 cash payment. There was a verdict for defendants followed by a rule to show cause why there should not be a new trial; and that rule we conclude should be made absolute. Objection is made to the legal sufficiency of the filed reasons, but the third, that the verdict is against the weight of evidence, is valid, and we think it is well assigned. As we read the case it is fairly clear that at the date set for delivery of the deed, the vendors could not possibly make a good title, one reason being that there was an outstanding undivided one-third interest, and that partition proceedings in Chancery were actually pending and were not terminated until two or three years later. Prior to the date fixed for settlement, plaintiffs, or one of them, inquired of the attorney representing the defendants whether the latter would be ready to convey as agreed, and received from him the following letter:

“Robert Bright
C ounselor-at-Law
N. W. Cor. 1st and New Jersey Aves.
North Wildwood, N. J.
Sept. 30/25
Mr. Edward Whitehill,
Dear Sir:
In reply to your inquiry as to whether we are ready for settlement on premises Atlantic avenue between Spencer and Spicer avenue, Wildwood, New Jersey, would say that I do not believe the sale will go through for the reason that the property is in litigation in the Court of Chancery. Mr. Charles H. Shetzline, one-third owner therein, filed a bill sometime in June for the partition thereof; Mrs. Adams, one of the executors, listed it for sale with Senator Ackley, but naturally the court proceedings have priority over the sale; I have advised Senator Ackley the facts therein.
I do not see anything but what the return of the money to you would be the best method out for you and your associates. Mrs. Adams did not have the sanction of her co-executor in listing the property.
Mr. Shetzline, the one-third owner, is not bound by the listing or sale, not having signed up nor agreed thereto. I am yours truly,
Robert Bright,
E.”

In view of this letter, plaintiffs did not go to the trouble of traveling to North Wildwood to make a formal tender. The court instructed the jury in effect that the case would turn on the question whether Bright had actual or apparent authority to write the letter; if he had neither, plaintiffs could not recover. What took place afterwards appears to cut no special figure in the case.

Bright testified that he “represented” the defendants, but that he had no (special) authority to write that particular letter. We are clear, however, that it was entirely reasonable for plaintiffs to assume that his general employment as counsel for defendants covered an ordinary business transaction of this kind; and that a verdict obviously predicated on the contrary view is against the weight of evidence.

Let the rule be made absolute.


author: Bodinb, J.

text:
    THE STATE OF NEW JERSEY, OFFICER SCHNEIDER, PROSECUTOR, v. PERCY PECK, DEFENDANT.
    Decided November 29, 1929.
    Por the defendant, Ezra JKarkus.

   Bodinb, J.

On November 18th, 1929, an order was entered to review the conviction of Percy Peek, the defendant, before the Honorable Edward J. Currie, justice of the peace, of the offense of driving an automobile while under the influence of intoxicating liquor. The matter was brought before the court on Tuesday November 26th, 1929, at the court house in Freehold, at eleven-thirty A. m. An examination of the complaint, the warrant, and the record of the conviction satisfy the court that the same are in form. The complaint, the warrant and the proceedings before the justice of the peace were of a sufficiently formal character and sufficiently accurate in nature to inform the defendant of the nature of the charge against him. A full opportunity was afforded him to offer such evidence as he might have to prove facts different from those testified to by the witnesses' called on behalf of the state.

He availed himself of none of the opportunities afforded, but contended that the proceedings were not in form. This contention seems not to be true in fact.

The order of November 18th, 1929, will therefore be vacated, and the judgment of Edward J. Currie, justice of the peace, is affirmed and the sentence sustained.


author: Kirkpatrick, J.

text:
    Middlesex County Orphans Court.
    IN THE MATTER OF THE ESTATE OF PETER FISHER, DECEASED.
    Eor the trustees and accountants, Warren B. Schenck.

    Eor the exceptant, Cantillo & Scuarzo (Carl Abruzzese, of ■counsel).
    Eor Louella E. Dunlap, Clifford I. Voorhees.

    Eor the National Bank of New Jersey, trustee, William E. Florance.

   Kirkpatrick, J.

Peter Eisher died June 30th, 1906, "testate. His will and codicils probated July 11th, 1906, in Middlesex county surrogate’s office, and recorded in Book V of Wills, pages 414, &e., among other things provides as follows:

“Second. I give, devise and bequeath to my executors hereinafter named all my real estate and also all my personal estate [excepting such parts thereof as are hereinafter specifically devised and bequeath] including such shares of stock in 'The Sayre and Eisher Company’ as I may own, or be entitled to, at the time of my decease; to have and to hold all and singular the said real and personal estate [with the exception aforesaid] to my said executors and trustees, and to the survivors and survivor of them, in trust nevertheless, and for and upon the following trusts, viz.:

''That my said executors and trustees and the survivors and survivor of them, shall hold such real and personal estate as aforesaid and also such shares of stock in 'The Sayre and Eisher Company’ as I may own, or may be entiled to at the time of my decease and such additional shares of stock as may thereafter be issued by the said company, and vote on the said shares of stock, for directors and officers of the said company, and otherwise, as according to the best judgment of my said executors and trustees the welfare of my estate may require; and also to receive such dividends as may, from time to time, be declared on the said stock and other income from my said estate, and pay such dividends, and all other income from my said real and personal estate, after first deducting taxes and other yearly charges and expenses upon my said real and personal estate, to the persons, at the times, for the periods, and in the manner hereinafter particularly specified and directed, and to convey, transfer and dispose of the said real and personal estate in such manner as is hereafter directed.”

“Fourteenth. I hereby authorize and empower my executors, the survivors and survivor of them, to sell the whole or any part of my real and personal estate; not herein specifically devised or bequeathed, including my said stock, at either public or private sale, at any time after my decease, and to execute and give good and sufficient deeds and transfers therefor to the purchaser or purchasers thereof. The proceeds derived by my executors and trustees from the sale by’them of any of my real or personal estate, or the accumulation therefrom, not herein otherwise disposed of, shall be invested and reinvested from time to time by my executors and trustees, the survivors and survivor of them, on good, reliable first-lien security, subject to the trusts hereinabove declared, and the interest and income thereof and therefrom, as well as the principal moneys thereof, shall be paid and disposed of by my executors and trustees the survivors and survivor of them, to the persons, at the times, upon the events, and in the manner hereinabove directed.”

Other paragaphs of the will provide for distribution among his widow and children and are not pertinent to the present litigation, except the provisions for the benefit of Eichard B. Eisher, the present exceptant, which briefly provide for the payment o f the income of his share to him for his lifetime with remainder over to certain other persons. This paragraph is typical of the provisions generally for his children.

He left a substantial estate including among other things, eight hundred shares of the capital stock of the Sayre and Fisher Company, thirty-two shares of the capital stock of the Savreville Electric Light and Power Company and four hundred and forty shares of the capital stock of the Sayre and Fisher Land Company. Of the above shares of stock one-eighth passed from the executors to E. A. Fisher under the terms of the will, and the other seven-eighths passed to the trustees named in said will to be administered by them in accord with the directions contained in said will.

Between 1906 and 1913 the trustees received an additional three hundred and fifty shares of stock designated in their account filed in 1913 as “new stock.” This apparently represented a stock dividend of fifty per cent, on the seven hundred shares of stock held by said trustees. This additional three hundred and fifty shares of stock of the Sayre and Fisher Company was treated by the trustees as an addition to corpus and so shown in each of the various accountings filed from time to time by them.

There has been from time to time distributions of the stock (corpus) as life tenants have died and remaindermen became entitled to final nossession of their respective shares.

Recently all the stockholders of Sayre and Eisher Company and the other two companies above mentioned joined in a sale of all the stock of said companies to one Clark. The-price realized by said sale was many times the inventoried value placed on said stock by the executors and trustees at. the beginning of the trust estate and during the course' thereof.

The trustees have filed an intermediate accounting treating the amount realized by them from the sale of the stock so held by them as corpus, and retaining it as.such. -One of the' life beneficiaries, Richard B. Eisher, excepts to the account and claims to be entitled under testator’s will to so much of' the sale price as represents the enhancement of value due to-accumulated and undistributed earnings on the stock held for his benefit. He has also presented a petition praying to have prior accounts reopened and restated to the end that the “new stock” received prior to 1913 by way of stock dividend may be apportioned between the life tenants and remaindermen.

“Where shares of stock in corporations are held by trustees extraordinary dividends, either in cash or otherwise, declared and paid thereon, should generally be apportioned between life beneficiary and remainderman.” Lang v. Lang, 56 N. J. Eq. 603; Day v. Faulks, 79 Id. 66, and other cases.

Under this principle of law the exceptant would appear to be entitled to have the extraordinary dividend apportioned between him and the remainderman, but counsel for the trustees argues that a proper construction of the will shows an intention on the part of the testator that all extraordinary dividends of stock should be held by the trustees as corpus.

In support of this argument he points out the language of those parts of the will particularly quoted above.

“The Orphans Court has been given statutory jurisdiction to construe wills for the purpose of decreeing distribution according to its direction and provisions.” Pamph. L. 1898, p. 781, as amended Pamph. L. 1915, p. 343, cited in In re Morrissee’s Estate, 91 N. J. Eq. 478.

The constitutionality of this statute has been frequently mooted but, as far as I know, never decided. I therefore accept it as conferring on the Orphans Court authority to construe the will of Mr. Fisher in so far as distribution of the estate left by him is therein provided for.

It seems to me a proper reading of those parts of the will of Mr. Fisher pertinent to the problem before us leaves no doubt as to his intentions. The first duty of a court in construing a will is to ascertain, if possible, from the will the testator’s intent and to follow that intent in construing the document. The very evident intent of testator was to place all of his estate in the hands of trustees (excepting, of course, such property as was given outright to certain beneficiaries), giving to certain of his children only the income from their shares during life. It is conceded such was his intent and such the effect of his will as to all the property of which he died seized or entitled to. The court feels the will goes further and also places in trust in the hands of the trustees such additional property by way of accumulations or enhancement of value, as might come to the trustees upon the original property and that any stock dividend or sum received in excess of inventory value upon the sale of any shares of stock or other property should be added to corpus.

Since I have arrived at this construction of Mr. Fisher’s will it becomes unnecessary to consider the very interesting questions of the respective rights of life beneficiaries and remaindermen in extraordinary dividends upon or enhanced value of shares of stock, arsing by reason of earnings accumulated during the trust period.

The exceptions filed also contained an objection that the trustees charged themselves only with the net amount received from the sale of the shares of stock held by them and failed to disclose the amount of expenses, commissions and legal fees paid in connection with the sale.

Yery little argument was made on this objection and it appears to be without substantial merit. The proof shows that the purchase price of all the stock was paid under the agreement to two individuals acting as agents for all the stockholders. These agents paid the expenses and then paid each stockholder, including the trustees of Peter Fisher, the net amount to which each was entitled. Thus the amount with which the trustees charge themselves is the amount actually received by them, and the account is proper as to charge and discharge. If exceptant feels he is aggrieved by the terms of the original contract or by the amounts paid thereunder for expenses he may file exception in proper form or amend the present exception upon proper application therefor.


author: Ackerson, J.

text:
    Hudson County Circuit Court.
    JOHN BRADY, PLAINTIFF, v. WILLIAM HAUENSTEIN, DEFENDANT.
    Opposed, John T. Fitzgerald.

   Ackerson, J.

This matter comes before me upon a motion of the plaintiff to strike out and vacate a demand for a bill of particulars served upon him by the defendant, upon several grounds which on the argument of the motion fell under two general heads, first, that this being a tort action, the defendant could not demand particulars without first obtaining an order of the court, and secondly that the questions are improper as» being peculiarly within the knowledge of the defendant and as attempting to pry into the plaintiff’s ease, &c.

As to the first ground, it is sufficient to say that whatever may have been the ancient practice of the common law in tort cases, that in New Jersey, by analogy to section 102 of the Practice act of 1903 as preserved in effect by rule 18 appended to the Practice act of 1912, dealing with contract * actions, our courts have recognized the practice of demanding a bill of particulars in tort actions without first obtaining an order of the court.

In the leading case of Watkins v. Cope, 84 N. J. L. 143 (at p. 148), which was in tort, it was said that:

“The right to get the desired particulars of the adversary’s case being already, enforceable by a demand for them and, if necessary, by an order of court, it is plain that the use of interrogatories to draw them out is improper.”

In Hopper v. Gillette 6 N. J. Mis. R. 63, which was a tort action, the practice was recognized. The case of Dixon v. Swenson, 101 N. J. L. 22 (at p. 24), holds that “our act, on the subject of a bill of particulars, is not a new law, but a confirmation of the common law, manifested by universal practice.” It is indicated that no distinction was made at com'mon law between tort and contract actions so far as the demand for a bill of particulars is concerned. In any event, a demand for a bill of particulars is now recognized in New Jersey by long established practice as a proper way of obtaining the particulars of a case, even though an order in the first instance may also be resorted to. The demand for a bill of particulars in the case sub judice will not, therefore, be stricken out.

.Turning now to the particulars demanded, we must keep in mind that a “bill of particulars has the two-fold effect of informing the defendant, with relation to the details of the plaintiff’s case, with a view of preparation of a proper pleading in reply to the complaint, and also limiting the plaintiff’s proof on the trial as well as appraising the defendant what is .proposed to be set up, to the end that the defendant may prepare a proper defense.” Hopper v. Gillet, supra.

With this scope in mind it is apparent that all of the questions propounded, by the defendant are proper and should be answered. An inquiry as to the names of physicians and nurses is proper under the last cited case, and if this is so, it would appear that their addresses would be the proper subject of inquiry also for the purpose of identification, so that defendant -would know exactly the doctors and nurses referred to, and thus also limit the plaintiff to the particular persons intended where the doctor or nurse possessed a. name common to many in the profession. Eor example there may be many Doctor Smiths, hence the address of the one intended may become material for the purpose of exact identification.

Since the particulars asked for should be furnished, the plaintiff’s motion will be denied.


author: Ingersoll, Y. C.

text:
    Ventnor City National Bank, complainant, v. Troy Corporation et al., defendants.
    [Decided December 9th, 1929.]

      Mr. John Westcott, for the complainant.

      Mr. 8. Paul Ridgway and Mr. Emerson Richards, for the defendant Warren L. Ridgway.
   Ingersoll, Y. C.

The complainant’s decree in foreclosure directed the sheriff to sell the lands described in the mortgage, to raise the amount of the decree. Prior to the foreclosure a portion of the mortgaged property was sold and conveyed to the Troy Corporation, a party defendant.

The hearing is upon an order to show cause “why said premises described in complainant’s mortgage, should not be sold in parcels and not as a whole, and why the premises now owned by the petitioner and the premises now owned by the Troy Corporation should not be sold separately.”

The complainant resists the application upon two grounds. First, that the petitioner is not entitled to the relief prayed for because it is a creature of the mortgage. This is insufficient to deny the relief. Others are stockholders in the company.

Second, that the complainant is unable to determine the value of the respective portions of the mortgaged premises, and that the land is of greater value if sold as one tract, and affidavits are presented that for the proper development of the land it should be sold as an entirety and that by selling it in two tracts it would materially destroy the value of the land.

This case is not within the rule laid down by Chancellor Williamson in Parkhurst v. Cory, 11 N. J. Eq. 233, in which it was held: “There are cases where the court, by virtue of the statute, may make a decree to sell the whole mortgaged premises, even where the whole sum secured by the mortgage is not due—as when it shall appear to the court that a part of the premises cannot be sold to satisfy the amount due without material injury to the remaining part of the mortgaged premises—the execution then commands the sheriff to sell the whole of the premises * * *.”.

The law applicable here was laid down by Chancellor Vroom at the October term, 1831, to be:

“Where a man gives a mortgage upon his property, and after having done so sells a part of it to a third person for a valuable consideration, justice demands that the residue of the mortgaged premises, in the hands of the mortgagor, should satisfy the mortgage debt; and the purchaser acquires a right even against the mortgagee, so far as to compel him to have recourse to such residue for the satisfaction of his debt, if it shall be sufficient for that purpose. If the mortgagor sell a second parcel, the second purchaser immediately acquires rights as against the mortgagor, and also as against the mortgagee, and rights also accrue immediately between the first and second purchasers, as to their liability to the mortgagee; all of which the court will notice and protect. If the property remaining unsold in the hands of'the mortgagor is sufficient to pay the debt, both purchasers will be protected. If insufficient, the last purchaser is always first liable. This is the settled rule of this court, and is founded on plain principles of justice.” Shannon v. Marselis, 1 N. J. Eq. 413 (at p. 421).

Vice-Chancellor Learning in Ingersoll v. Somers Land Co., 82 N. J. Eq. 476, states the same rule and cites Shannon v. Marselis, supra, and Wikoff v. Davis, 4 N. J. Eq. (3 Gr.) 224; Weatherby v. Slack, 16 N. J. Eq. (1 C. E. Gr.) 491; Mount v. Potts, 23 N. J. Eq. (8 C. E. Gr.) 188; Warwick v. Ely, 29 N. J. Eq. (2 Stew.) 82; Hiles v. Cault, 80 N. J. Eq. (3 Stew.) 40; Powles v. Griffith, 37 N. J. Eq. (10 Stew.) 384; Gray v. Hattersley, 50 N. J. Eq. (5 Dick.) 206, 211; Daly v. Ely, 51 N. J. Eq. (6 Dick.) 105; Davis v. Piggott, 56 N. J. Eq. (11 Dick.) 634; Jackson v. Dondict, 57 N. J. Eq. (12 Dick.) 522.

I will advise an order that the said premises be sold separately and in the inverse order of alienation.


text:
    MAYWOOD LAND COMPANY, PROSECUTOR, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF MAYWOOD, AND H. V. JUDKINS, JOSEPH M. HART AND WILLIAM J. SINNIGER, COMMISSIONERS OF ASSESSMENT FOR SAID BOROUGH, RESPONDENTS.
    Submitted May term, 1929
    Decided November 14, 1929.
    Before Justices Tbenchabd, Lloyd and Case.
    Por the prosecutor, L. Edward H err man.

    Por the respondents, Walter G. Winne.

   Pee Cubiam.

This case comes up on writ of certiorari to review an improvement ordinance and an assessment of damages for the cost of the improvement made thereunder.

There are three points made by the prosecutor—first, that the work done was a repair job, and not an improvement; second, that the cost of repairing an existing pavement is not an improvement assessable upon property owners to the extent of the benefit resulting from that repair but is raised by general taxation; third, 'that the action of the mayor and council in failing to hold a hearing on the report of the commissioners of assessment was arbitrary and illegal.

The work in question consisted of a reconstruction of the pavement of Central avenue in the borough of Maywood. It was a work that was urgently pressed upon the municipality by certain land owners, amongst which was the present prosecutor. The prosecutor, as owner of a large number of lineal feet, is on record, under date of September 22d, 1925, as writing a letter vigorously urging the improvement. The governing body of the municipality adopted an ordinance which plainly designated the work as an improvement to be entered into jointly by the county of Bergen and the borough of Maywood. Advance notice of the ordinance, which included within its specific terms that the proportion of the borough cost was to be assessed upon the lands and real estate benefited thereby, was given to the prosecutor. The proceedings relating to this work began with a preliminary resolution passed by the borough council, the date of which does not appear but which was prior to May 9th, 1925. Throughout May, June and July the minutes of the borough council show various activities, including the introduction on July 21st, 1925, of the ordinance and the adoption of! the ordinance August 4th, 1925. The work was undertaken in due course and was completed in December, 1925. Not until after the work was completed and it was therefore beyond the power of the governing body to change the character of the improvement or the ordinance method of paying for the same, did the prosecutor make any objection to the proposed method of paying the cost by assessment on the owners benefited. The commissioners of assessment made a report that was not accepted by the borough council and which, by order of the borough council, was referred back to the assessment commission. Thereafter a revised report was received from the assessment commission and, after a hearing, was adopted and confirmed September 7th, 1926. Writ of certiorari issued October 4th, 1926, but, for reasons that do not appear, was not moved for argument until May term, 1929. Counsel for respondents, amongst other contentions, protests that the intervening of six terms of court constitutes laches and should, other reasons failing, defeat the prosecutor in the present prosecution of the writ.

Whether the job in question was a repair job and therefore under the law to be paid for from the general funds of the borough, or an improvement and therefore susceptible of payment by assessment on benefited owners, is a question of fact which the Supreme Court should not be called upon to determine on depositions taken under a writ of certiorwri. The prosecutor, under the Home Rule act (Pamph. L. 1925, ch. 71, p. 237, § 5), was given a remedy by appeal to the Circuit Court. If the prosecutor considered that the assessment laid upon it was unfair, it should have resorted to that remedy before resorting to a writ of certiorari. Graham v. Ocean City, 98 N. J. L. 426; MacEvoy v. Bergenfield, 6 N. J. Mis. R. 211. We are unwilling, on the facts presented, to reverse the classification of the work as determined by the borough ordinance. The prosecutor, having urged the improvement and induced the borough authorities to make the improvement, one of the conditions being that the cost thereof, so far as the borough was concerned, should be imposed on the adjoining owners, remained silent in its protestation until the work was done and the time had arrived for the assessment to be paid. We think that in that contingency, beliéving the assessment to be unfair, the prosecutor should have pursued its statutory appeal.

We do not think there was arbitrary or illegal action on the part of the council in failing to hold a hearing on the report of the commissioners of assessment as first rendered. The report was returned to the commissioners for further attention and, when again rendered, was given a hearing, which appears in all respects to have been legal. In disposing of the matter we should say also that in any event the certiorari should be dismissed because of the gross laches of the prosecutor who, having full knowledge of the facts and knowing that the work was going on, allowed the borough to expend a considerable sum which the prosecutor knew the borough, as provided for in the ordinance, expected to assess against property specially benefited. It waited until it was assured that all benefits to its property would be derived from the improvement and now seeks to escape its proportion of the cost of the work. That it cannot do. Burstiner v. East Orange, 4 N. J. Mis. R. 280; affirmed, 103 N. J. L. 174. In addition to the laches thus manifested is the long delay, unexplained, in prosecuting the writ before this court.

The assessment under certiorari is affirmed.


text:
    HENRY R. ISENBERG COMPANY, PLAINTIFF, v. JOHN H. KENT, DEFENDANT.
    Argued October 1, 1929
    Decided November 26, 1929.
    Before Justices Parker, Black and Bodine.
    For the plaintiff, Milton M. linger.

    For the defendant, Alexander F. Reid, Jr.

   Per Curiam.

As we read the case, the defendant wishes the verdict rendered generally in his favor molded so as to award him an alleged excess of his counter-claim over the amount claimed under a building contract; or failing this, asks that the verdict be set aside and a new trial awarded, as was done in Peters v. Fogarty, 55 N. J. L. 386. Our conclusion is that defendant has not shown himself entitled to either remedy.

The suit was by a subcontractor against the principal contractor on a building for an alleged unpaid balance of the subcontract price, amounting to $1,309. The defendant set up incomplete and defective performance, and counterclaimed for damages of $2,258.23 plus an item of interest which dropped out of the case. The court charged that plaintiff claimed the $1,309, and that defendant alleged that “the plaintiff instead of being entitled to $1,309 there is a balance due the defendant of $2,258.23.” The record of the verdict in the minutes is that the jury “by their foreman say they find in favor of the defendant, and so they say all.” The postea reads: “The cause having been heard and submitted to the jury, they returned their verdict as follows: Eor the defendant, John EL Kent.”

There is no suggestion that the jury did not return the verdict in the precise language in which it is recorded. In fact, the depositions show not only that the foreman so announced it, but that he did so with the full concurrence of every member of the jury. What the defendant undertakes to show, however, is that when they returned the verdict in this language, they did so with the idea that it meant a verdict for the defendant for the excess of the counter-claim over the original claim of the plaintiff. But as we understand the law, the depositions of jurors (and no other depositions were taken) cannot be received for any such purpose. In Peters v. Fogarty, supra, Mr. Justice Dixon, citing Jackson v. Williamson, 2 T. R. 281, says: “Nor will their affidavits be received for the purpose of showing that they understood or intended their verdict to mean.” It is noteworthy that in Peters v. Eogarty the foreman had a temporary attack of heterophemy when reporting the verdict, and said “defendant” when he should have said “plaintiff.” In the case at bar, as we have seen, the jury said precisely what they intended to say. This is not a case in which the verdict is on its face incomplete or inconsistent; and so in examining it we must also apply the well settled rule that affidavits of jurors will not be received for the purpose of destroying the verdict in which they have joined, or of proving the ground of the verdict. Lindauer v. Teeter, 41 N. J. L. 255, 259; Queen v. Jennings, 93 Id. (at p. 358).

The verdict does not appear to be repugnant; it is consistent with a finding by the jury that neither party is entitled to recover against the other, or that the counter-claim fairly balanced the principal claim. It is not attacked by the reasons as against the weight of evidence, or as contrary to the charge, nor is it argued that the charge itself was erroneous. All four reasons go to the one point discussed above. In view of the rules we have noted, we think that the verdict cannot properly be disturbed on that ground, and the rule to show cause will therefore be discharged.


author: Pakiceb, J.

text:
    JOSEPH PAYNE, PROSECUTOR, v. WILLIAM GARDNER, POLICE JUSTICE OF THE TOWN OF DOVER, DEFENDANT.
    Submitted November 29, 1929
    Decided December 2, 1929.
    Before Justice Pabkek.
    For the prosecutor, Andrew Foulds, Jr.

   Pakiceb, J.

On June 22d, 1929, the prosecutor was arrested by a police officer of the town of Dover and brought before the defendant, a police justice, on a charge of driving an automobile while under the influence of intoxicating liquor. A complaint was made out and signed and sworn to by the officer before the justice a short time after the arrest. The conviction, under the seal of the justice, as well as the record of his docket, shows that the prosecutor was arraigned, the complaint was read to Mm, and that he pleaded guilty of the charge of driving an automobile while under the influence of liquor; whereupon the justice imposed a fine of $200, which was paid, and revoked the prosecutor’s license for two years.

This conviction is now attacked on certiorari on several grounds, which will be stated and disposed of in the order in which they are made in the prosecutor’s brief.

The first ground is that no Avarrant was issued and that in the absence of a warrant, the police justice was without jurisdiction. In support of this, counsel cites Brewster v. Wilson, 3 N. J. Mis. R. 526, Avhich seems so to hold; VanWyck v. De Lorenzo, Ibid. 529, which does not seem to decide the point; and State v. Baker, Ibid. 532, which also holds that unless there be a warrant, the justice acquires no jurisdiction. The same ruling was made by Judge Stein in the Union County Common Pleas in the case of State v. Wilcox, 2 Id. 320. However, counsel seems to overlook the fact that the case of State v. Baker went to the Court of Errors and Appeals and the decision is reported in 102 N. J. L. 349, where it was distinctly held that where the defendant himself submitted to the jurisdiction of the court he thereby waived the point that no warrant had been issued, the conviction would stand notwithstanding its absence. The first point, therefore, seems to be without substance.

The second point is that the complaint is defective in that it charges the offense in the disjunctive. An examination of the complaint shows that it charges that the prosecutor “did violate the provisions of subdivision 3 of section 14 of an act of the legislature of the State of New Jersey entitled,” &c. (stating the title of the act), and more particularly of that part of said subdivision 3 which reads as follows: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any narcotic or habit-producing drugs * * *” in the following respect, to wit, that the said Joseph Payne did, on the 22d day of June, 1929, at, &c., being on a public highway, operate a motor vehicle while under the influence of intoxicating liquor or any narcotic or habit-producing drug [here follows an irrelevant clause about being examined by a physician], all of which is contrary to and in violation of said subdivision 3,” &c.

The rule condemning disjunctive charges is well settled with respect to criminal indictments, but I am not willing to apply it to a summary proceeding of this character. In fact, the form of conviction provided by the act of 1923, chapter 137, merely states that the party was convicted of violating a certain clause or a certain section of the act, and I am inclined to think that a complaint in this general language would be sufficient. However, it appears in the record that there was no question of the charge or the conviction. The record of the proceedings shows that the charge was driving while under the influence of intoxicating liquor, and that this was stated in the complaint. The same fact appears in the copy of the docket before me. In State v. McCarty, 99 N. J. L. 65, the complaint used the word “and” instead of “or,” but no decision on this point was made. I am not prepared to set aside the conviction on this ground.

Point 3 is in four subdivisions. The general proposition is that the conviction is not in the statutory form. Subdivision (a) is that the conviction as copied in the docket states that “on this 22d day of 1929, officer Russell Vanderhoof came before me,” &c. The offense is laid on the 22d day of June in the very next line. This is the record of the conviction in the docket. However, the conviction itself names the 22d day of June and I think any omission in this respect is cured by the repetition of this date throughout the proceedings.

The second subdivision is that “it does not state the date of the trial or conviction.” This seems to be covered by what has just been said.

Subdivision (c) is that the conviction does not quote the title of the statute as required by the prescribed form. It states a violation of subdivision 3 of section 14 of “the State Motor Vehicle act of the State of New Jersey.” This seems to be amply sufficient to identify the offense.

Subdivision (d) is that the conviction does not recite the names of the witnesses. This is true and for a very good reason, viz., that no witnesses were called and the defendant pleaded guilty.

My conclusion is that the writ should be dismissed.


author: Lawrence, J.

text:
    BOROUGH OF EATONTOWN (FORMERLY TOWNSHIP OF EATONTOWN), A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. THE AETNA CASUALTY AND SURETY COMPANY, A BODY CORPORATE, AND EDWARD P. HENDRICKSON, DEFENDANTS.
    For the plaintiff, Arthur T. Vanderbilt (David Stoffer, of counsel).
    For the defendant, McDermott, Enright & Carpenter and William Hartshorne.

   Lawrence, J.

This is a motion to confirm the report of a referee, “to enter a postea and a rule for judgment thereon” and also to fix the amount of compensation to be allowed the referee, it being alleged in the notice of the motion that no demand for a trial by jury had been filed. On the argument of the motion, it was urged in behalf of the defendant Hendrickson that the motion should not prevail for the reason that there had been a reservation of a trial by jury at the time of the entry of the order of reference and a proper demand for such trial. The argument ultimately turned on the question of practice in filing referee’s reports in such cases and what is required of. a defendant adversely affected thereby in demanding a trial by jury thereafter.

As indicated in the title, this is a suit instituted in the Supreme Court, with venue laid in Monmouth county. It involves alleged shortages in the accounts of the defendant Hendrickson while collector of taxes of the plaintiff municipality during the years 1921 to 1926, inclusive, for which a recovery is sought. The other defendant, his official surety for some part of the period, is not now concerned in the suit, because of some adjustment of its liability made directly with the plaintiff. The case being at issue was regularly noticed for trial at the December term, 1927, and again at the April term, 1928, of the Monmouth Circuit. When reached for trial, the undersigned as trial judge conceiving that complicated matters of account were involved, of his own motion, made an order referring it to Mr. Halsted H. Wainright, a competent person, to state and report an account between the parties and the amount due, if anything, from the defendant Hendrickson to the plaintiff. It is conceded that he caused his dissent to the reference to be entered in the minutes of the Circuit Court and a reservation of his right to a trial by jury. On August 5th, 1929, the referee mailed his report to the clerk of the Supreme Court who filed it, and on August 24th, 1929, the defendant Hendrickson filed his exceptions thereto, without, however, accompanying it with a written demand for a trial by jury or making such demand during the term of the Supreme Court within which the report had been filed. Such a demand was made on the argument of the present motion, put in written form and is returned herewith. It is argued, however, that the demand comes too late under the statute, and that plaintiff’s motion for judgment on the report should be granted. But the important question is whether the present motion is not premature and the practice to be followed in such a case misconceived ?

It is to be remembered that the suit is at issue in the Supreme Court and was sent down to the Circuit for trial. Pursuant to section 156 of the Practice act (Comp. Stat., p. 4102), the trial judge made the reference in question. His jurisdiction in confirming the referee’s report and ordering judgment entered thereon is subject, however, to the provisions of section 155 (supra, p. 4101), and where a reservation of trial by jury has been entered in the Circuit minutes, it is limited to framing the postea, to which the referee’s report should be attached, and directing that it be filed with the clerk of the Supreme Court. Notice of the filing of the postea with the report should then be given to the party adversely affected thereby, and, within the time indicated, exceptions should be filed and a demand for a trial by jury should be made during the term. The case would then be sent down for trial on the report and exceptions at the next term of the Circuit in which the venue is laid. In the present case no effective filing of the referee’s report in the office of the clerk of the Supreme Court appears to have been made, for the reason that no postea accompanied it. That this was irregular is indicated in Halsey v. Paulison, 36 N. J. L. 406 (cited in Harrington Sons Co. v. United States Express Co., 87 N. J. L. 154), where it was held that the report of the referee is not to be treated as filed, in the contemplation of the statute, until a postea is also filed, and that a confirmation can be moved for at bar, subject to a demand for a trial by .jury of the court in lane at the same term in which the postea with the report is filed, or such motion can be made before the Circuit justice (or as now the trial judge) if no demand for a trial by jury has been made. This reference, of course, involves the jurisdiction of the Circuit judge in Supreme Court issues, under the present practice. An examination of the sections of the then existing Practice act upon which the case of Halsey v. Paulison, supra, was based as found in Nixon’s Digest, pages 743, 754, discloses that they are substantially the same as 155 and 156 of our present Practice act, which are subject to the same interpretation. Since it appears, therefore, that there was a dissent to the reference and a reservation of trial by jury entered in the Circuit Court, the trial judge thereof is without jurisdiction on the present motion to do more than settle the form of the postea to which the referee’s report will he attached and direct that the same be filed with the clerk of the Supreme Court. The provisions of section 155 of the Practice act would then apply with reference to notice of the filing of the postea and report, the filing of exceptions, and demand for a trial by jury on a motion to confirm to the court in banc.

The present motion will accordingly be denied, with the exception that a form of postea may be submitted, and when settled and signed will be directed filed with the referee’s report in the office of the clerk of the Supreme Court, in which court the usual motions will doubtless be made in pursuance of the statutory provisions. The allowance to the referee as compensation for his services will be determined and fixed by separate order.


author: Smith, J.

text:
    Essex County Circuit Court.
    NATHAN HARRIS, PLAINTIFF, v. FIORENTINO BERGAMO, OWNER, LESSEE AND BUILDERS; LIONEL P. KRISTELLER, TRUSTEE IN BANKRUPTCY OF FIORENTINO BERGAMO, BANKRUPT; CARRIE LISSNER, OWNER AND LESSOR; LENA E. SLAIGHT, OWNER AND LESSOR; HENRIETTA EISNER, OWNER AND LESSOR; MORTIMER J. EISNER, OWNER AND LESSOR; AND HANA ELBAUM, OWNER AND MORTGAGEE OF LEASEHOLD INTERESTS, DEFENDANTS.
    For the plaintiff, William Harris (hy Herbert L. Elins).

    For the defendant Carrie Lissner, Bilder & Bilder (by Samuel Kaufman).

    For the defendant Lena E. Slaight, Bum, Tamblyn & Col-yer (by George W. Grimm, Jr.).

    For the defendants Henrietta Eisner and Mortimer J. Eisner, Spaulding Frazer.

   Smith, J.

This is, a mechanics’ lien suit brought by an architect to recover his charge for the preparation of plans for a building, as I understand it, erected by the tenant; and his employment was by the tenant.

The ease was referred to a referee, whose report was filed April 11th, 1929. Notice of the filing of the report was given to the plaintiff March 14th, 1929.

Although a dissent and reservation of jury trial had been duly entered, all counsel have appeared before the court and submitted the case to the court on the exceptions, waiving the right of trial by jury, and have argued the question involved in the exceptions to the referee’s report.

It is conceded that there was no consent in writing on the part of the owners of the land sufficient to satisfy the statute, and the only question before the court is whether the plaintiff has a right of lien against the building as separate from the land by virtue of section 7 of the Mechanics’ Lien law, which provides:

“If any building be erected by a tenant or other person than the owner of the land, then only the building and the estate of such tenant or other person so erecting such building, shall be subject to the lien created by this act and the other provisions thereof, unless such building be erected by the consent of the owner of such lands in writing, which writing may be acknowledged or proved and recorded, as deeds are, and when so acknowledged or proved and recorded, the record thereof and copies of same duly certified shall be evidence in like manner.”

The defendant owners owned separate tracts of land upon which was erected the one building, although there were separate leases. The tenant, Bergamo, erected this building, but prior to the filing of the mechanics’ lien claims he was adjudicated a bankrupt and a trustee in bankruptcy elected who abandoned Bergamo’s lease. The estate of the tenant, therefore, was terminated before the filing of the lien claims.

It is admitted that there is due the plaintiff from Bergamo the sum of $4,767.42. It has also been agreed by counsel for the various parties that if the court sets aside the referee’s findings and holds that the building is liable to a lien, that a judgment is to be entered in favor of the plaintiff against the various defendants, otherwise the report is to be confirmed and judgment is to be entered in favor of the plaintiff against the bankrupt and his trustee, and that a judgment is to be entered in favor of the other defendant owners and against the plaintiff.

Where the building is erected by the tenant or other person, the statute is clear that only the building and the estate of such tenant or other person erecting such building shall be subject to the lien. The plaintiff’s claim is that the lien may run against the building as distinguished from the land, even though the estate of the tenant is terminated. I cannot agree with this construction.

As I understand it, the building has become part of the freehold, and to permit a lien upon the building after the termination of the tenancy would be, in effect, to permit a lien against the estate of the owner as distinguished from the estate of the tenant. This, I think, is not intended by the statute. It might be that in some cases where the building could be removed at the end of the tenancy, that a person who had a claim for furnishing work or materials for that building might assert his rights against the building, but when the building has become part of the freehold and the tenancy has been terminated, that right of lien is lost.

I will therefore direct the entry of judgment in favor of the defendant owners and against the plaintiff, and the plaintiff may have a general judgment against Eiorentino Bergamo and Lionel P. Kristeller, his trustee in bankruptcy, in the sum of $4,767.42 with interest from March 13th, 1929.


author: Bacices, V. C.

text:
    David Jatman, petitioner, v. Annie Jatman, defendant.
    [Decided December 16th, 1929.]

      Mr. Ralph Lum, for the petitioner.

      Messrs. FlemÁng & Handford, for the defendant.
   Bacices, V. C.

The petition is for divorce for desertion. The marriage was the husband’s third, the wife’s first. His first wife died, his second divorced him, and he is weary of this one. He was well advanced in years, with a family of three grown children—she was thirty-nine. He had advertised for a wife, and they met and married in June, 1924. It was not a love match. She thought he was rich; he thought he wanted a wife. Both were disappointed. For reasons sufficient unto herself the wife deserted five times; the last in August, 1926. Shortly after the fourth, in October, 1925, the two conspired to be divorced in New York. He was “detected” in a hotel bedroom with a woman, and in her petition she swore that the “adultery” was without her “consent, connivance, privity or procurement.” He paid the lawyer. He also paid her something and promised more when divorced, and she left, with their infant, for her former home in Canada. The suit was later abandoned and she came back two or three months before she finally quit.

The defense pleads unclean hands. The doctrine is not invocable. This suit is for a cause in which the misconduct did not share. The uncleanness must relate to the cause in litigation. Here, the intervening locus penitentia, the resumed marriage relation, is preclusive. “The inequity which deprives a suitor of a right to justice in a court of equity is not general iniquitous conduct unconnected with the act of the defendant which the complaining party states as his ground or cause of action; but it must be evil practice or wrong conduct in the particular matter or transaction in respect to which judicial protection or .redress is sought. Neubeck v. Neubeck, 94 N. J. Eq. 167. While the crime in New York does not bar the action, it reflects the moral obliquity of the two and their general incredibility.

Denying the desertion, the defendant answers that “she separated,, from the petitioner on the 35th day of August, 1936, at petitioner’s suggestion and with petitioner’s consent after he had been guilty of extreme cruelty against her and conduct amounting to matrimonial offense.” If, by this, it was intended to plead an affirmative defense of extreme cruelty, it is insufficient for failure to charge the offense and for want of particularity of the acts of cruelty.

The volume of trifles and ill-treatment told by the defendant is unsupported by her witnesses, and is met by evidence quite as credible as hers, and more. Bitter retrospection, she calls it, “change in my character,” has magnified her woes, and she related them without restraint of conscience. The petitioner’s base character neutralizes his testimony to a degree, with the parity against him. The spiritual aspect of the oath meant nothing to either; it was court mechanics. The perjury and subornation of perjury in New York bears witness. The issue must, therefore, be solved largely upon facts undisputed or extrinsically established as they tend to support one side or the other.

That the defendant deserted the matrimonial domicile on August 25th, 1926, and has been away for more than two years, is proved. The four prior desertions were willful and obstinate, unless her charge of extreme cruelty justified her going.

Two months after the marriage she left, to be gone from April 1st to the 14th. She again quit on May 1st, and returned December 1st. She left February 14th, 1925, and stayed away until the following June. She quit in October, 1925, to be gone until the following May, 1926. She deserted the last time in August of that year. All the desertions were against her husband’s protest, and each time she returned at his solicitation. Once, she says, he persuaded her to postpone her departure. She says his protests were pretended and his solicitations unreal, in order to lay the foundation for a charge of desertion, and throughout her long narrative constantly harped on his insistence for a “get,” a divorce, until, if true, it would appear to have been an obsession with him and a plague to her. He even tormented her in circumstances that would seem to repel the truth of her story; when their relations apparently were congenial; when he was seeking her to return, and immediately after he had succeeded; and at the hospital, just after the baby was born. If true, that at times he urged a divorce, it may have its explanation in a conditional desire to be free from a chronic deserter, i. e., if she would not live with him he wanted his release; and this may have found expression in their effort to bring about the New York divorce. The defendant’s testimony bears out that to have been the husband’s attitude when he was coaxing her to come back after one of her desertions. And so does the deposition of Eabbi Levene, of Canada, whose intercession was sought by him, after the fourth desertion, to persuade his wife to divorce him or upon failure to try for a reconciliation. The fact that upon each of the five desertions he objected to her going and as many times sought her return would indicate that his general tendency was not to be rid of her, but to have her. The New York incident gives some color to her story of his urging for a divorce, but no one is called to support it, except her mother, a “pinch” witness, who says that on one of the occasions when her son-in-law was seeking his wife’s return, he expressed a wish for a divorce. If the desire was as notorious as the defendant would have 'it appear, the Coopermans, peace makers in their domestic troubles and reconciliations, now unfriendly to the petitioner, must have some knowledge, and they were not called; and so, the petitioner’s brother, a mutual confidant of the two. The defendant’s testimony of her husband’s previous attitude was introduced to influence belief in her charge, that the last desertion, the one in issue, was by his consent and at his instance. It is no more trustworthy than her version of the last separation, and that does not commend itself. She had put an end to their conjugal relations a month before and had planned to leave and had shipped some of her things two weeks before. She admits her husband objected to her going but claims it was his usual gesture. She left a note: “Do not send any one after me to come back to live with you or do not try to persuade me to be with you any more. I shall never live with you again.” She says she wrote it at her husband’s dictation, and, in confirmation, points to the misspelling of persuade, which she claims to have inspirationally misspelled as he had mispronounced it, to have proof of his connivance in this anticipated suit. The note was written, she says, in Rabbi Levene’s house, and that the Rabbi gave her a check for $300, which her husband had posted to be delivered upon her signing. Rabbi Levene, called by her, did not support her. She wrote another letter to her husband the same day, postmarked Newark, in which she says: “I will not live with you any longer. I have lost all affection for you. You must not write me or make any attempt to see me as I am all through with you.” Of this she disclaims any recollection and offers no explanation. The last note carries not only the same sentiment as the first, but also a refutation that the former was dictated, and as well suggests that much of her testimony is fancy and fabrication. She also contributes this; when her husband got her to return in May, 1926, he gave her a half interest in a house in Elizabeth, as part inducement. It was disposed of in July, and out of it she says she was to have $500 as the parting price, and that her husband, through one Krochmalnik, jewed her down to $300. Krochmalnik, called by her, denied any knowledge or connection with the matter. Whether this is the same $300 Rabbi Levene denied holding is not clear; nor is it above suspicion that the defendant has woven around her legitimate share of the sale of the house her story of being paid for deserting.

It is not doubted that the last desertion, like the previous four, was willful, nor that it was obstinate, against the will of the petitioner. What more could the petitioner do to detain her against her will to go or called upon to do to have her return? Eor some unaccountable reason she sent him a Jewish New Year greeting in September. He wrote asking that she return. She refused. He wrote again, with the same reply. He visited her in a hospital, Hamilton, Canada, in 1927; brought her flowers, candy and jewelry— she says, and cajoled her not to return because it would interrupt the continuity of her desertion. His later letters to her and hers to him stand in refutation. All her letters disclose her determination not to return because of his alleged ill-treatment. The futility of any further effort the petitioner might have pursued is obvious. When it appears that effort would be unavailing none need be made. Hall v. Hall, 65 N. J. Eq. 709; Rogers v. Rogers, 81 N. J. Eq. 479. Statutory desertion is established, unless the separation was justified on the ground of extreme cruelty.

It would be profitless to narrate the defendant’s tale of ill-treatment; a summary will do. Underlying the defendant’s discontent was the social and cultural misfit of the two— she was educated and of the finer texture. The manifest cause was dissatisfaction with her home surroundings and pecuniary disappointment; the latter, paramount. He was near and exacting in his allowance, which she resented, in the belief that he was wealthy and penurious. He allowed her $20 a week, he says $25, for the table of five, and kept tabs on her expenditures; that irked her. She had no personal allowance and he bought her little, and that depressed her. His income was meagre; he dealt in oil cloths in a small way; his stock was kept in a room in the flat. Pour j^ears before the marriage he received a $25,000 legacy from his father’s estate, which gave her the notion that he was well to do. He probably could have been more liberal, but he gave her more than she would admit. She had from him $200, at least, after she came back in May, 1926. She complains of his lack of social attention and of excessive sexual demands; of her drudgery in the household; of fault finding and cursing and hitting her, and of general ill-will of various forms of expression. The hitting, in bed, was not malicious, she says. Her witnesses, and there were many, all as one, failed to support her evidence, and one observed that she always addressed her husband as "dear.” While it is the rule with ill-treated wives to keep secret their domestic affairs, the defendant had made a confidant of the petitioner’s brother Abraham and of the Coopermans of their incompatability, and disagreements in money affairs, yet she never made mention to the brother of physical or mental illtreatment or called the Coopermans. The petitioner’s children, who, she- says, had an affection for her, denied her story of mistreatment, of hitting, cursing or harsh language. They say that they helped with the drudgery of the household; that the home was comfortable and well managed; that their father was considerate of his wife, and that the relations between him and her, and with them, were, on the whole, agreeable. Allowing for filial prejudice, their testimony is not without weight. An interlude in the harmony was, as she admits, slapping him in the face two or three times in August, 1926, and it is in evidence that she assaulted him with a knife and that she was not sparing in her curses. The defendant has not made out her case by clear and satisfactory proof. Drayton v. Drayton, 54 N. J. Eq. 298. Further, it is wholly without corroborative support. "When a defendant in a divorce case pleads a counter matrimonial offense against the petitioner in bar of the suit, the offense so pleaded is not made out unless supported by corroborative evidence the same as though it were the basis of an application for divorce.” Rogers v. Rogers, supra. The present case closely resembles that one in many of the essential features.

The petitioner is entitled to a divorce.


text:
    BURLINGTON ISLAND AMUSEMENT CO., PLAINTIFF, v. BURLINGTON ISLAND PARK CO., DEFENDANT.
    Submitted October term, 1929
    Decided December 2, 1929.
    Before Justices Parker, Black and Bodine.
    For the plaintiff, Henry M. Hartman.

    For the defendant, Norman W. Harlcer.

   Per Curiam.

This suit was brought to recover damages for a breach of a lease of a tract of land at Burlington Island, Burlington county, New Jersey. A rule to show cause was allowed, why the venue should not be changed from Mercer county to Burlington county. The principal office in the charter of the plaintiff is alleged to be in Trenton, Mercer county. The venue is laid in Mercer county. Under the rules laid down in such cases as Keeley v. Borough of Belmar, 97 N. J. L. 98, there is no sufficient reason shown for changing the venue. Under such cases as Clement v. Stanger, 75 N. J. L. 287, the action is transitory and not local. ’ It is brought solely to recover damages for the breach of the lease. The rule to show cause is discharged, with costs.


text:
    COMMERCIAL CREDIT TRUST, A CORPORATION, PLAINTIFF APPELLANT, v. ALBERT BARBIER, TRADING, ETC., DEFENDANT-RESPONDENT.
    Submitted October term, 1929
    Decided December 2, 1929.
    Before Justices Parker, Black and Bodine.
    For the plaintiff-appellant, Green & Green.

    For the defendant-respondent, Samuel C. Meyerson.

   Per Curiam.

This is an appeal from a judgment entered in the First Judicial District Court of Morris County in favor of the defendant. The case was tried by the court without a jury, under an agreed stipulation of facts. The plaintiff demands: first, a Buick roadster and in case it cannot be returned, the plaintiff then demands $300 for its value and $100 as special damages for attorney’s fee, &c.

It would serve no useful purpose to review the facts, as set out in the agreed stipulation of facts. It is sufficient to say that on the merits, the judgment must be reversed, as there is nothing in the case to show by whose order or consent, or at whose request the defendant Albert Barbier did the repairs or work on the car, then too, under the Conditional Sales act, if the conditional vendor gets the contract on file within ten days he is ahead of the garage keeper. See Thayer, &c., Co. v. First National Bank, 98 N. J. L. 29; affirmed, Ibid,. 907. The judgment of the First Judicial District Court of Morris County is therefore reversed.


author: Pee Cueiam.

text:
    A. MICHAEL LePORE, PLAINTIFF, v. HENRY DeMEESTER, DEFENDANT.
    Submitted October 11, 1929
    Decided December 13, 1929.
    Before Justices Paekee, Black and B odine.
    For the rule, Filbert L. Bosenstein.

      ContraJohn W. Oclcford.

   Pee Cueiam.

The plaintiff brought suit to recover for professional services. The trial resulted in a judgment of $1,500. The ground upon which we are asked to make this rule absolute is that the defendant has a just and legal defense to the action, and that through error and misunderstanding he was deprived of the opportunity to defend.

It appears from the proofs that the counsel to whom the defense was entrusted was misinformed as to the position of the case upon the calendar by an inadvertent mistake of his managing clerk.

We are of the opinion that the judgment should be opened in so far as it is necessary to permit a new trial. The plaintiff may hold his judgment as security to abide the outcome of the new trial. In all other respects the rule will be made absolute.


text:
    FRED BURROWS, ROSE WEINER, IRVING WEINER, HER HUSBAND, AND PAULINE WEINER, PLAINTIFFS, v. IDA JUFFE, DEFENDANT.
    Submitted October 11, 1929
    Decided December 13, 1929.
    Before Justices Pabkee, Black and Bodine.
    Eor the plaintiffs, Carey & Lane.

    For the defendant, Hobart & Minará.

   Pee Cueiam.

An automobile accident occurred on July 25th, 1926, on the road to Monticello, New York. The plaintiff Ered Burrows was the owner of one of the cars and defendant, Ida Juffe, was the owner of the other. Ered Burrows turned over the matter of bringing suit to a New York lawyer named Cohen. Irving Simon, a New Jersey attorney, was intrusted with the matter by Cohen. An action was commenced in the Supreme Court. The defendant filed a counter-claim. The plaintiffs’ case was not moved for two years, although noticed for trial for several terms. The defendant finally noticed the case for trial on her counter-claim at the May term, 1928, of the Union Circuit. The case was carried over to the October term. On November 26th, 1928, counsel for defendant notified the plaintiffs’ attorney that the case would be called on November 27th. It was reached for trial on December 5th, 1928, and judgment was entered on the verdict of a jury.

The proofs do not show surprise. They show that the plaintiff did nothing about his case beyond consulting Cohen, •and turning the matter over to him. There is no deposition from Cohen, Simon or the plaintiffs other than Burrows. Mere failure to pay attention to a law suit is no basis for claiming surprise.

The rule will be discharged.


text:
    WICKHAM HAVENS, INCORPORATED, PLAINTIFF-APPELLANT, v. MARTIN HAAS ET AL., DEFENDANTS-RESPONDENTS.
    Decided December 13, 1929.
    Before Justices Teenchaed, Lloyd and Case.
    Eor the appellant, Howe •& Davis.

    Eor the respondents, Michael T. & Hugh G. Barrett.

   Pee Cubiam.

The plaintiff-appellant applies for costs on reversal because of an error in the trial court.

It seems plain that costs should not be awarded, since the reversal leaves the parties where they stood before, and since there must be a new trial, which, for purposes of clarity, is now awarded.

The application for costs is denied. Costs will abide the event of the suit.


text:
    JOHN SMITH, PLAINTIFF, v. CYRIL BAER, DEFENDANT.
    Submitted October 11, 1929
    Decided December 13, 1929.
    Before Justices Pakkee, Black and Bodine.
    Por the rule, Heine & Laird.

      Contra, Feder & Binzler.
   Pee Curiam.

The plaintiff brought suit to recover compensation for injuries received in an automobile accident, and recovered a judgment of $3,500.

The suit was tried before the late Judge Newman. After his death, application was made to a Circuit judge for an order setting aside the verdict and granting a new trial. The course pursued seems to have been irregular, but the Circuit judge vacated the order and granted a rule for a new trial, which is now before us.

The defendant shows a defense upon the merits and that the case was tried in the absence of counsel actually engaged in other courts. We think the Circuit judge had power, though more than six days had expired from the entry of the verdict, to grant the rule to show cause before us. Since it appears that there was a defense on the merits and that counsel were unavoidably engaged in other courts, we will make the rule absolute, save in this, that the judgment already recovered shall stand as security to abide the outcome of the new trial.


text:
    OTTAVIO De BELLIS ET AL., PLAINTIFFS-RESPONDENTS, v. FRANK BACE ET UX., DEFENDANTS-APPELLANTS.
    Submitted October term, 1929
    Decided December 13, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff s-respondents, Isador Haber.

    Eor the defendants-appellants, Platojf, Saperstein & Platoff.

   Per Curiam.

This suit was brought in the First Judicial District Court of Hudson county to recover the sum of $400, commissions by duly licensed reah estate brokers, for procuring buyers for property No. 29 Twenty-second street, West New York, New Jersey, under a written contract dated October 11th, 1928, in whieh'it is provided for the payment “of $400 as commissions, upon the day set for the closing of title,” &c. The case was tried by the court without a jury resulting in a judgment for the plaintiffs, $200 to De Beilis and $200 to Pisani and Conrad, as provided for in the written contract. At the close of plaintiffs’ testimony,' the defendants moved for a nonsuit, which was denied by the court, and then the defendants moved for the direction of a verdict, which was also denied by the court, exceptions were taken to these rulings, which are the grounds of appeal. No evidence being offered by the defendants. There is no legal merit on the appeal in this case. The plaintiffs, as we read the state of the case agreed upon, sent up in the printed book shows, that the plaintiffs had earned the commissions for which the court gave judgment.

The judgment of the First Judicial District Court of Hudson county is therefore affirmed, with costs.


text:
    JEANETTE HEMMINDINGER, PLAINTIFF-RESPONDENT, v. LOUIS GITTER ET AL., DEFENDANTS-APPELLANTS.
    Submitted October term, 1929
    Decided December 13, 1929.
    Before Justices Paekek, Black and Bodine.
    For the plaintiff-respondent, Harry Kaplan and Michael G. Alenick.

    For the defend ants-appellants, Aaron Levinstone and Arthur B. Lewis.

   Pee Cueiam.

This suit was commenced in the Second District Court of the city of Newark to recover $500 damages caused by alterations to premises No. 29y2 Springñeld avenue, Newark, New Jersey. The suit is by a plaintiff, the landlord, against the defendants as tenants, under a written lease dated May 28th, 1925, which provides that the defendants “will not relet or underlet the whole or any part of said premises, nor assign this lease,” &c. * * * “and further agree to keep the premises in as good repair as the same shall be at the commencement of the term, wear and tear arising from a reasonable use of the same and damages by the elements excepted.” The defendants sublet the premises in violation of the terms of the lease to one Chris Karafel, a subtenant, who did the damages by alterations to the premises sued for. The action is styled in tort. -The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $350, less $100 deposited as security on the lease set up in the counter-claim. We think this judgment should be affirmed, but not on the ground that Chris Karafel, the subtenant, was the agent of the defendants and acted within the apparent scope of his authority, because, there is authority for the position that if the sublease contains the same restrictions as the original lease and this is violated by the subtenant, the first lessee is not liable on the covenant. But the first lessee is liable in contract, the injury grows out of the unlawful act by the first lessee in subletting the premises in violation of the terms of the lease, i. e., for a breach of the agreement not to sublet. 36 Corp. Jur. 93, § 726. See 16 R. C. L. 879, § 384; Ibid. 882, § 387. Under section 68 of the District Court act (2 Comp. Stat., p. 1977) the practice of the Circuit Courts is to apply to the District Courts. Under this section the action can be changed to one in contract. Then, the judgment of the Second District Court of Newark will be affirmed, and it is therefore affirmed, with costs.