text:
    PAUL SCHNYDER AND HUGO JACKISCH, PROSECUTORS, v. JOHN J. McGOVERN, CLERK OF THE COUNTY OF HUDSON, RESPONDENT. DANIEL HERMANN, PROSECUTOR, v. CHARLES F. STOEBLING, CLERK OF THE HUDSON COUNTY BOARD OF ELECTIONS, RESPONDENT.
    Argued February 19, 1924
    Decided March 25, 1924.
    Elections — Special Elections — Formalities in Calling and Holding — Meaning of “Adjoining Municipalities” Stated — Act of 1923, c. 117, Sustained.
    On certiorari, &c.
    Before Justices Trenchard, Parker and Campbell.
    Por the prosecutors; Warren Dixon.

    Eor the respondents, John J. Fallon.

   Per Curiam.

Two writs of certiorari were allowed by Mr. Justice Minturn on February 16th, 1924, and made returnable February 19th, 1924, and. they bring before us for review the proceedings, up to the date of the allowance of the writs, had and taken under an act entitled “An act to enable- adjoining municipalities, other than cities, lying in the same county, to consolidate and form a city” (Pamph. L. 1923, ch. 117), for the calling and holding of an election under such act.

The municipalities involved are situated in the county of Hudson and are, with their respective populations, as shown by the last federal census, as follows:

North Bergen, 23,334; West Hoboken, 40,068; town of Union, 20,651; West New York, 29,926; Seeaucus, 5,423: Guttenherg, 6,728; Weehawken, 14,485.

Three reasons are assigned and argued why the proceedings brought up for review should be set aside—

First — Because the justice of the Supreme Court was without jurisdiction to make the order of December 26th, 1923, for the special election to be held March 4th, 1924, because the municipalities were not, and are not, adjoining municipalities as required by chapter 117, Pamph. L. 1923.

The contention of the prosecutors is that under the language of the statute in question and the use and emplotyment of the word “adjoining” therein, each and every of the municipalities must actually in some part of its and their territory bound upon some part of the territory of each and every other municipality in the group seeking consolidation.

We are unable to so conclude.

The adjective “adjoining” is used in sections 1 and 2 of the statute, while in section 5, referring to the order to be made, after the election, the adjective “contiguous” is employed as follows: “Shall make an order directing such of said municipalities as are contiguous and as have voted for consolidation and incorporation as a city to proceed to incorporate * * *.”

And again in section 5: “And provided further, that where two or more contiguous municipalities voting for consolidation and incorporation as a city are separated from' other contiguous' municipalities voting the same way, by one or more municipalities voting against consolidation and incorporation as a city, only the municipalities that are contiguous and which, according to the last preceding census, have together the greater population shall proceed to incorporate under the provisions of this act.”

The definitions of the words “adjoining” and “contiguous” to be found in the 'recognized and standard dictionaries present a broad latitude from which to make a choice. We conclude that the legislature used the word “adjoining” in the sense that some part of the territory of each municipality must bound upon some part of the territory of another municipality in the- group.

Second — Because chapter 117 (Pamph. L. 1923) is unconstitutional, violating paragraph 4, section 8 of article 4 of the state constitution, in that the object of the act is not expressed in its title.

The language of that portion of the constitution referred to in this attack is:

“To avoid improper influences which may result from intermixing in one and the same act such things, as have no proper relation to each other, eveLy law shall embrace but one object and that shall be expressed in the title.”

This court, in State v. Wildwood, 83 N. J. L. 188, held the act (Pamph. L. 1908, p. 295), which is identical in title and context with the act here under attack, constitutional. In that case six specific reasons were urged against its constitutionality, and amongst such reasons one was, as here, that its object was not expressed in its title.

Prosecutors contend, however, that the precise reason urged here was not urged in the Wildwood case, and that is that the title of the act relates to adjoining municipalities, and that means, as before suggested, that some part of the territory of each and every municipality in- the selected group must actually bound upon some part of the territory of each and every other municipality in the group, and that if a contrary construction be placed upon the statute, such as the petitioners, the Supreme Court justice and this court have hereby put upon it, then the title is not expressive of the object of fhe legislation and falls within the aforesaid constitutional prohibition.

With this contention we are unable to agree and find the title to the act to be in complete compliance with the constitutional mandate, giving to the statute that meaning and construction which we already have indicated.

This is a question that has been passed upon so frequently by our courts that no useful purpose would be served inciting all the authorities nor any considerable part thereof.

It is enough to say that the pith of them all may be obtained from the following two:

Moore v. Burdett, 62 N. J. L. 163-“In the interpretation of this constitutional provision the object of the law must not be confused with its product. Every law is an exhibition of the legislative activity directed to a particular end. This purposive direction implies the kind of activity put forth and the choice of the field for its display, but not the particulars of the purpose or the means selected for its accomplishment. The former is the object of the law, the latter is its product. The ‘object’ of every law, by force of the constitution, must he single and be expressed in the title of the law; the ‘product’ may be as diverse as the object requires and finds its expression in the terms of the enactment only. In fine, the. title of an act is a label, not an index.”

Sawter v. Shoenthal, 83 N. J. L. 499 — “Under the requirement of the constitution that the object of an act must he expressed in its title, the true rule is that the object expressed must give notice of the effect of the legislation to one conversant with the existing state of the law. The validity of the title is not to be determined by nice distinctions of 'etymology or definition of ivorck, but by the facts of the case and the history of the legislation.”

This brings us to the third and last attack upon the proceedings under review, and that is:

“The election cannot lawfully be held on March 4th, because the legal prerequisites to its holding have been omitted.” One contention of the prosecutors is that section 3 of the Consolidation act under review provides that “the election •shall he conducted as nearly as may be in like manner as general elections are conducted.” .

This’ language is used in direct connection with a direction as to the opening and closing the polls; the election officers who are to conduct the election, &c.

Section 2 of the act providing for the calling and ordering the election speaks of it as a “special election.”

It is contended that proper notice of the election was not given, and this being a mandatory requirement any failure therein is fatal. Against this respondents urge that the giving of notice is merely directory and any failure therein, except arising from established' fraud and design, which has not been shown or intimated in this case, would not be fatal or permitted to be used to thwart and set aside the expressed will of the voters. The cases relied upon by respondents, however, do not go to elections of this character. General elections and such others where the time is fixed by general statutes come within the purview of such principles; but not so such elections as the one in question.

We are of the opinion, however, so far as the record before us shows, that there was proper compliance with the statute in the giving of notice of the election and for the revision of the registry lists of voters.

To determine this we must have recourse to the Election act of 1920. Pamph. L. 1920, ch. 349. Section 11, article 25, respecting notice of special elections such as the one under consideration, where the statute does not fix the manner of giving notice, provides that the notice to tlie public of such election “shall be given in the same manner as herein provided for giving notice of the general election so far as may he.”

Section 5, article 10 provides: “The county board of elections shall, at least three weeks preceding the primary for the general election, cause a notice to be published in not more than two newspapers of the county as said county board of elections shall select, setting forth that the district boards of registry and election of each election district in such county will meet for the purpose of making a registration of voters on the days and between the hours hereinafter designated for that purpose; * * * and making known the time and place and purpose of holding the general election thereafter * * * provided that such part of the original notice as published which pertains to a day of registration or primary election which has occurred shall be eliminated from such notice in succeeding insertions.”

Section 7, article 10 provides for the publication of such notice at least once and not more than twice in each week, and that if there be a newspaper printed and published in a municipality such newspaper shall be one of the papers in which such notice shall be published.

The notice from the county clerk to the municipal clerks, or vice versa, was not necessary because the Consolidation act provides for such 'notice by its own terms, in that when the order for the election is signed by the justice of the Supreme Court it shall be forthwith filed with the clerk of- the county and a copy served on the county board of elections and the clerks of the municipalities mentioned in the order within five days from the date of the order.

No complaint, is- made that this was not done. Beturning then to a consideration of the notice of election and- directing our attention 'to -the registration, therefore we find from the Election act as follows:

Section 12,. article 25 provides that registers for special elections shall be made up as'in the act prescribed, with such modifications, -if any, as to time of meeting of the district hoards of registry and election,as the county hoard of elections may deem necessan-y.

Section 13, article 25 provides that the county clerk shall deliver to the municipal clerks the registers of voters thirty (30) days prior to the election.

Section 14 provides for the delivery of such registers by the municipal clerks-to the district boards of election in time to be used at such election. •

Sections 15, 16, 17 and 18 provide that in municipalities exceeding fifteen thousand inhabitants the first registration da}r shall be the Tuesday four weeks preceding the election, and the second and last registration day on Tuesday, two weeks preceding the election, and that on said days the district boards shall sit from one p. m. to nine p. M., and require that on the day succeding the first registry day a copy of the' revised register shall be posted, and on the day succeeding the second sitting a copy shall be filed with- the- county board of elections and the other copy retained for use at the election.

Sections 19 and 20 provide that the district boards of registry and election shall meet to revise the registry of voters in municipalities of fifteen thousand or less on the Tuesday next preceding the election,- from one P. M. to nine p. M., and shall file one copy of the registry so revised with the county board of elections and retain the other for use at the election.

Section 21 provides that the county board of elections shall sit on Thursday and Friday next preceding the election, “for the purpose of adding to the register the names of any legal voters entitled to vote at such election and erasing 'therefrom the name of any voter not so entitled to vote * * *.”

Now, we find that the seven municipalities concerned in the special election, North Bergen, West Hoboken, town of Union and W7est New York, each had populations exceeding fifteen thousand and were, therefore, entitled to two sittings of the district boards of registry and election to revise the register of voters; and Secaucus, Guttenberg and Weehawken each had populations less than fifteen thousand and were entitled to one meeting of the district boards for revision of the registry of voters.

The return to the writ made by the clerk of the county board of elections shows that that board fixed Monday, February 11th, and Tuesday, February 19th, 1924, as the days for revision of the registers of voters by the district boards in municipalities having a population exceeding fifteen thousand. ' This was respectively Monday, three weeks prior to the election, and Tuesday, two weeks prior to the election, the first date being one week later than the time generally fixed by the statute, but such fixing or designation of days is authorized by section 12, article 25 of the Election act above referred to.

The county board fixed Tuesday, February 26th, 1924, as the date for revising the registry lists by the district boards in municipalities of fifteen thousand or under. This was in accordance with the requirements of the Election act, being the Tuesday preceding the date of the election.

The county board, in compliance with the act, also fixed Thursday and Friday, February 28th and 29th, as the dates it' would sit to add to or strike from said register's.

The county board further designated the “Pludson Dispatch,” “North Hudson News” and “Socaucus News” as the newspapers in which the notice of election and meetings of district boards, the polling places and 'days of sitting to revise the registers should be published, and directed their clerk to so advertise and publish such notices.

The presumption is that such notice was given. Nothing appears in the record or return to the contrary.

The affidavit of the prosecutor, Daniel Hermann, made on February 9th, 1924, says “the first and only public notice of meeting of the district boards of registry and election was published on. pages 17 and 18 of the “Hudson Dispatch” * * * in its issue of Friday, 8th, 19Zk- * * *•”

The action of-the county board just referred to took place on February 5th, 1924, and therefore it is entirely probable that the first publication took place on Friday, February 8th, 1924. With reference to the statement that it was “the first and only public notice” it must be kept in mind that these reviewing proceedings were taken while the preparation of the election was in progress; that the affidavit in question was made February 9th and the writ of certiorari allowed February 16th, 1924.

Now, such notice was published three weeks and three days before the election to be held March 4th, 1924; two days before the first day fixed to revise the registers, in municipalities having a population exceeding fifteen thousand, and one week and three days prior to the second day fixed to revise registers, and was two weeks and three' days before the date fixed to revise the registers in municipalities having a population of fifteen thousand or less. .

We think and find that this was a substantial and sufficient compliance with the terms of the Election act in giving, notice of the election in question “in the same manner as herein provided for giving notice of the general election so far as may be.”

The only other thing complained of is, as is said, the county clerk did not deliver thirty days before the election to the municipal clerks the registers of voters filed with him.

The return is silent as to this and the only thing we have before us is the affidavit of the prosecutor, Hermann, used upon the application for the writ and technically insufficient as a basis for present action (Baldwin v. Flagg, 43 N. J. L. 499), before referred to and in which he deposes as follows:

“The county clerk did not deliver to the municipal clerk of the town of Guttenberg the registry of voters, as required by section 13 of said article 25 of said chapter 349 of the laws of 1920. I believe that said county clerk has not delivered to any municipal clerks of the said municipalities above mentioned the said registry lists, as above provided for.”

Assuming that such are the facts, it does not appear that because thereof any district board was or would be prevented from properly performing its duty in revising the register nor that any legal voter had been or would be harmed or prejudiced thereby. Such requirement of the Election act is merely directory and failure of any public officer to comply therewith, aside from fraud or design to prejudice the rights of the electors (and none is urged), and particularly the rights of those entitled to vote, have not been shown to have been interfered with, does not warrant this court in setting aside the proceedings preparatory to an election of this character.

The order and proceedings under review are affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THE TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, PROSECUTOR, v. THE STATE BOARD OF TAXES AND ASSESSMENT AND THE LUCKENBACH TERMINALS, INCORPORATED, DEFENDANTS.
    Submitted December 3, 1923
    Decided March 25, 1924.
    Taxation — Power of State Board to Review Assessments, to Correct Errors and to Enter Judgment — Act of 1905, c. 67, sec. 5, Not Inconsistent With L. 1918, c. 236.
    On writs of certiorari, &c.

    Before Justices Then chard, 'Parker and Campbell.
    For the prosecutor, J. Emil Walscheid.

    For Luekenbach Terminals, Inc., Qaeda & Qaeda.

   Per Curiam.

These two writs of certiorari (argued together) were allowed, the one to review a judgment by the state board of taxes and assessment, reducing an assessment for the year 1921 for the purposes of taxation by the township of North Bergen against property of the Luekenbach Terminals, Inc.; the other to review a judgment of the same board, reducing an assessment for the jrear 1922 for like purposes by the same township against property of the same corporation.

The returns show that both judgments were entered while there was pending in both cases a petition of appeal, from the judgment of the county board of taxation, averring that the assessment was in excess of true value and praying that it be reduced to a stated value averred to be true value. The returns further show that both judgments now under review were rendered by the state board in exact accordance with stipulations in writing, entered info by the assessor of the township of North Bergen, the Hudson county board of taxation and the Luekenbach Terminals, Inc., stipulating that such assessment he reduced to a stated amount agreed to be the tiue value of the property.

The prosecutor’s argument in favor of setting aside such judgments is all based upon this reason, that “the state board bad no power to make the judgments.”

We have considered the various arguments addressed to us under this bead and conclude 'that the board had power to render such judgments and that they should not be disturbed.

Section 5 of chapter 67 of Pamph. L. 1905 (p. 126) provides that when complaint shall be made to the board the board shall have the power to review and correct the action of the local assessors or other taxing officers and of all hoards on tax review, by reducing or increasing such assessment, and the corrected tax shall bear interest from the time fixed by the law under which such tax was originally levied until paid; “provided, however, said hoard shall have power at any time, on application of the property owner or owners, with the consent of the mayor or assessor of the municipality affected, to correct assessor’s errors, mistakes or omissions in the assessment of any persons or corporations.”

That section'by its express terms confers upon the board, upon such consent, power to correct the assessor’s errors or mistakes, and we think that it comprehends the correction of errors in respect to value with the consent of the assessor of the township. In the instant case not only was the consent of the assessor given, but there was also given the consent of the county tax board, the latter apparently in pursuance of the rule and practice of the board in such cases.

The prosecutor argues that the state board had no power to render such judgment without “hearing evidence” upon the question of the reduced valuation. The answer is that the statute authorizes judgment upon consent.

The prosecutor further argues that section 5 of chapter 67 of the laws of 1905 has been repealed by chapter 236 of the laws of 1918, which by its terms repeals inconsistent provisions. The answer is that section 5 is not an inconsistent provision.

It is further argued that there was no notice to the township and therefore the board was without power. The answer to this 'is twofold; first, it does not satisfactorily appear that there was no notice, and secondly, the statute does not require notice in a case • such as this, which proceeds upon the consent of the assessor.

The judgments brought up will he affirmed, with costs.


text:
    THE STATE, ROBERT J. PARKER ET AL., RELATORS, v. EDWARD A. BRENNAN, BUILDING INSPECTOR OF THE CITY OF ELIZABETH ET AL., RESPONDENTS.
    Argued February 19, 1924
    Decided March 25, 1924.
    Ordinances — Zoning—Mandamus to Issue Building Permit Awarded.
    On rule, &e., for mandamus.

    Before Justices Trenchard, Parker and Campbell.
    Eor the relators, Jeremiah A. Kiernan.

    For the respondents, Joseph T. Hague.

   Per Curiam.

This is a rule to show cause why an alternative or .peremptory writ of mandamus should not issue directed to the respondents, requiring the issuance to relators of a building permit, which has been properly applied for by relators and refused by respondents.

The work for which the permit was applied for was the enclosing, as a sun porch, of a portion of the present open porch of the residence building of relators.

The permit was refused upon the ground that the structure contemplated to be erected would, when erected, be in violation of the zoning ordinance of the city of Elizabeth.

We think the matter in question is controlled by tile opinion of this court in Ignaciunas v. Risley, 1 N. J. Adv. R. 1023, and the relators should have an alternative writ of mandamus and such writ is accordingly awarded and may issue.


author: Pek Curiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN MOHR, PLAINTIFF IN ERROR.
    Argued November term, 1923
    Decided March 28, 1924.
    Crimes — Receiving Stolen Goods — Contended That Prosecution Attempted to Prove Conspiracy, Not Receiving — Proper Charge in Receiving Stolen Goods Cases — Admission of Improper Evidence Charged — Judgment Sustained.
    On error to the Cumberland sessions.
    Before Gram eke, Chief Justice, and Justices Minturn and Black.
    Por the defendant in error, Roseoe O. Ward.

    For the plaintiff in error, .7. Roy Oliver, Herbert O. Bartlett and John IF. Westcott.

   Pek Curiam.

The defendant was indicted and convicted in the Cumberland Quarter Sessions for receiving a Ford car belonging to one Damon, knowing at the time that if was stolen property. It is urged as error that the court refused to charge the following request of the defendant: “The evidence as produced by the state attempts to prove a conspiracy to which the defendant was a party and not the receiving of stolen goods.” Assuming such to be the fact the defendant under the proof had entered into a corrupt agreement with the men who did the stealing to' take the stolen goods from them. Yet that did not relieve him from liability under the indictment, since the proof was merely tended to demonstrate the truth of the charge that at the time he received the stolen automobile from the thieves he knew it to be stolen.

It is also contended as error that the court refused to charge that the testimony of an accomplice must be received with great caution and the testimony of a fellow-conspirator not corroborated is entitled to little credit. We think that request was properly refused. The credit to be given to a fellow-conspirator or an accomplice is a matter to be determined by the jury, and the court properly charged that in considering the testimony of the so-called accomplices, or fellow-conspirators, the jury should keep in mind their relation to the situation, viz., that they stole the automobile which the defendant was charged with having received, and weigh it carefully because of that relationship, and that the jury should also consider the extent to which their testimony had been corroborated by the other witnesses upon the subject. State v. Rachman 68 N. J. L. 120.

It is also urged that the court erroneously refused to charge the following request: “In proving a charge of receiving stolen goods the proof must be that the defendant had knowledge, not that he was suspicious.” The court in beginning his charge stated in.effect, saying, “The state must prove, first, that the automobile was stolen, and, second, that Mohr received the car knowing it to have been stolen.” In any event the request was too liberal to the defendants. State v. Dadame, 84 N. J. L. 386.

The next point is that the court erred in charging the jury as 'follows: “The receiving of the Loveland car is alone put in’issue by this indictment; but counsel, without objection on either side, have injected into this issue that involving tlie stealing and receiving of other cars,” &e. This was a statement of fact, the truth of which was not denied.

It is further contended that the court erroneously admitted in evidence testimony involving the stealing and receiving of other cars, and that this constitutes a ground for reversal under the 136th section of the Criminal Procedure act, notwithstanding that no objection was taken thereto. It is settled that a judgment may be reversed for the erroneous admission or rejection of evidence, where the ruling is not excepted to, applies only where judicial action has been taken upon the question presented and has been excluded or omitted over the objection thus taken. Where the court takes no action upon the question there is neither a judicial rejection or reception of evidence. State v. Wardy, 77 N. J. L. 348; on appeal, 78 Id. 687; State v. Sweet, 81 Id. 250; State v. Lockman, 83 Id. 168.

The last ground of reversal must be considered abandoned, since it was not argued or in any wise elucidated.

The judgment of conviction must therefore be affirmed.


author: Pee Curiam.

text:
    CLARK FRED JACOBUS, PLAINTIFF, v. ASKIN AND MARINE CO., DEFENDANT.
    Argued February 20, 1924
    Decided March 27, 1924.
    False Arrest — Damages Assessed, Alleged Excessive-Evidence Examined, Verdict Sustained.
    On rule to show cause, &c.
    Before Justices Trenciiard, Parker and Campbell.
    For the plaintiff, Benjamin Weinberg.

    For the defendant, Harry Silverstein.

   Pee Curiam.

This is a rule to show cause why a verdict for $1,000, rendered in favor of the plaintiff and against the defendant in an action for false arrest, should not be set aside as excessive.

We think the evidence is such that, by applying the proper legal test, we would not be warranted in disturbing the verdict.

The rule is, therefore, discharged, with costs.


text:
    L. H. & B. REALTY COMPANY, RELATOR, v. GEORGE BOSTWICK, BUILDING INSPECTOR ET AL., RESPONDENTS.
    Argued February 19, 1924
    Decided March 27, 1924.
    Ordinances — Building Permits — Compliance With Municipal Regulations Necessary Prerequisite.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Trenci-iard, Parker and Campbell.
    Por the relator, Isaiah Matlaclc.

    Eor the respondents, Ward Kremer.

   Pee Curiam.

Relator seeks a mandamus requiring the proper official of Bradley Beach to issue to it a building permit. Such a writ might well issue if relator had complied with the municipal regulations in such manner as to be entitled to such permit, but it has not done so. Those regulations require, among other things, as conditions precedent, the filing with the inspector of buildings, besides a copy of the building plans,; of a written statement of tile location and intended use of the proposed building, and also the specifications for such proposed building. No specifications have been filed and no statement of location and intended use.

It is argued that the filing of these papers was waived by parol. We think it would be a dangerous doctrine to say that intending builders may invoke the mandatory action of this court on any such theory of waiver. The requirements, both of the statement and the specifications, are substantial requirements and unless and until they are complied with the right to a permit does not arise. The case of English v. Asbury Park, 115 Atl. Rep. 64, is applicable.

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


author: Pee Cttbiam.

text:
    WILLIAM HARTMAN, RELATOR, v. CITY OF PERTH AMBOY. THE CITY OF PERTH AMBOY, PROSECUTOR, v. DISTRICT COURT OF PERTH AMBOY, WILLIAM HARTMAN ET AL., RESPONDENTS.
    Argued February term, 1924
    Decided March 27, 1924.
    Salaried — Municipal Officers — Plaintiff’s Judgment in District Court by Default, and Though no Defenses Have Been Specified, the Case Not Having Been Proved, Cannot Stand.
    On rule to show cause for a mandamus. On certiorari.

    Before Justices Treno hard, Parker and Campbell.
    For the city of Perth Amboy, Samuel E. Sereds, interven or, and Jacob S. Karleus.

    Foi1 the relator Hartman, Leo S. Lowenkopf.

   Pee Cttbiam.

Relator in the mandamus proceeding seeks to enforce payment of a judgment of the District Court against the. city for alleged back salary, claimed to have been due him as a police officer. Per contra, the certiorari brings up this judgment for review. The two cases were argued together. Naturally, the court takes up. the certiorari first, for if the judgment be invalid it is plain that no mandamus should issue to enforce it,

Our examination of the judgment record leads us to the conclusion that the judgment should be set aside. It appears that after appearance for the city (although summons was not legally served) and the filing of a specification of defenses the suit was dismissed. There seems to have been a motion to reinstate the case, and though the docket does not so state, we surmise such reinstatement took place, as there was an adjournment to December 28th, and on that date, no one apjoearing for defendant (although a second specification of defenses was then filed), judgment for plaintiff was ordered entered.

But this judgment had nothing to rest on, so far as appears. Tn a District Couit the plaintiff must prove his case, even on a default and even though no defenses are specified. See Tricoli v. Tramonde, 95 N. J. L. 363. The only evidence offered was a certified copy of certain minutes of the city council. These indicate that about April 5th, 1920, certain charges preferred against relator were referred to the appropriate committee and that on June 21st following, “in view of his acquittal by the court having jurisdiction over such matters,” the charges were withdrawn and the resignation of relator was then tendered and accepted. How these records show that relator was entitled to unpaid salary we are at a loss to imagine.

The judgment brought up is reversed and set aside, with costs. The rule to show cause in the mandamus action is discharged, with costs.


text:
    FEIST & FEIST, INCORPORATED, v. CHARLES H. INGERSOLL.
    Decided March 27, 1924.
    Agency — Sale of Real Estate — Agent’s Contract was to Procure Sale, Not Merely to Procure Customer — Sale Not Consummated — Plaintiff’s Judgment Reversed.
    On appeal from the Essex Circuit Court.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the appellant, Algernon T. Sweeney.

    For the respondent, Cohn & Cohn.

   Per Curiam.

This action was brought to recover commissions alleged to he due to the plaintiff as a broker for procuring a purchaser for a certain lot of land belonging to the defendant and located in the village of Sonth Orange. The averments of the complaint are that on the -4th day of Jnne, 1922, the defendant entered into a written contract with the plaintiff, wherein and whereby he authorized it to sell this piece of property to the Harrison Improvement Company for the sum of $15,000, and agreed to pay to the plaintiff a sum equal to five per cent, of that amount, to wit, $750, as a commission for its services in procuring that company as a purchaser; that on the same day above mentioned the Harrison Improvement Company signed articles of agreement whereby they contracted to purchase the said lot at the agreed price of $15,000, and that thereupon the plaintiff became entitled to be paid by the defendant its commission of $750, and that, although payment has frequently been demanded of the defendant, he has consistently refused to comply with these demands. The defendant in his answer admitted the employment of the plaintiff as broker, and that the Harrison Improvement Company signed articles of agreement for the purchase of the property, but averred that that agreement was conditioned upon the right of the purchaser to erect upon the lot a four-story brick apartment house, and contained a provision that it should be cancelled in the event that such a structure was prohibited by the regulations or ordinances of the village of South Orange. The answer further set up that, subsequent to the making of this agreement it was ascertained by the parties to it that the erection of such a building was prohibited by the zoning ordinances of the village of South Orange, and that thereupon the agreement was cancelled.

Upon the filing of this answer application was made to the court by the plaintiff to strike it out upon the ground that it constituted no defense to the plaintiff’s action and was sham and frivolous. Argument being had upon this application the trial court, after a consideration of the matter, ordered that the defense be struck .out and that final judgment be entered for the plaintiff for the full amount of its commissions. From the judgment entered on this rule the defendant has appealed.

The only contention upon which the motion to strike out the answer was rested was that, by the true construction of the written contract between the plaintiff and the defendant the-latter’s obligation to pay the commission was complete, notwithstanding the existence of the facts set up in the answer. That agreement is in the following words: “June 4th, 1921. The undersigned has hereby authorized Feist & Feist, Incorporated, to sell the vacant plot of ground situated on the corner of Irvington avenue and Prospiect street, South Orange, N. J., to Harrison Improvement Company, under articles of agreement bearing even date herewith for the sum of fifteen thousand dollars ($15,000), and for said services agrees to pay Feist & Feist, Incorporated, a sum equal to five per cent. (5%) commission upon the. amount for which the property is sold.” The trial judge manifestly considered that the effect of this agreement was to impose upon the defendant the burden of paying the commission, even though the sale to the Harrison Improvement Company was not consummated. To us his conclusion seems unsound. The employment of the plaintiff was lo sell a lot of ground to the Harrison Improvement Company for a fixed amount. The sale was to be under articles of agreement between the vendor and the vendee. Those articles provided, so the answer states in effect, that the sale should not be consummated unless and until it was ascertained that an apartment house could be erected upon the lot by the vendee and that, if it should be ascertained that no such building could be there erected, the agreement should be at an end, and - the obligations of both parties thereunder should he terminated. By the very words of the agreement between the plaintiff and the defendant the former’s commission was to be paid upon the amount “for which the property is sold” — that is, the payment of the commission was dependent upon the actual sale of the property — and, as no sale was made, the condition upon which the agreement for sale was based having failed, the commission had not been earned.

Eor the reason indicated, we think the judgment under review should be reversed.


text:
    LESTER BARWICK, BY NEXT FRIEND, v. FRED BLAUVELT.
    Decided March 28, 1924.
    Negligence — Motor Vehicle Accident — Injury to Boy Nine Years Old Riding Bicycle — Measure of Care to be Exercised by Such a Boy to Avoid Contributory Negligence..
    On rule to show cause. Passaic Circuit.
    Before Gummeee, Chief Justice, and Justices Minturn and Black.
    Por the rule, Aaron L. Simon.

      Gonira, John A. Matthews.

   Pee Curiam.

The plaintiff, Lester Barwick, was nine years of age at the time of the accident, April 13th, 1921. He and three other boys were riding bieye les on Eiver road in the city and county of Passaic, going from the direction of Paterson towards Newark, when, as plaintiff alleges, the automobile of .defendant came along at a fast rate of speed, without warning, and struck the plaintiff’s bicycle in the rear throwing him to the ground, with the result that he sustained a fracture of the leg. The plaintiff’s testimony was corroborated. The defendant testified that he was going from fifteen to eighteen miles and hour, and passed down the road on the right-hand side, and the boys came up on the opposite side; two of them passed and the third one crossed the defendant.

On the question of contributory negligence the court charged as follows:

“On the question of contributory negligence I will state to you: This boy of nine years of. age, according to the testimony at the time of the aceidént, and, of course, he would be chargeable with exercising such reasonable or ordinary care as should be exercised by a boy of his age and mentality. You have seen the boy on the stand, and, of course, you are the judges of what degree of care that boy should have exercised at the time. If' the boy did not exercise reasonable or ordinary care, consistent with his age and mentality at that time, and his failure to do so in any way contributed to the injury, then that bars the suit, and the verdict must be for the defendant.”

The verdict was for the defendant, and we are asked to vacate it upon two- grounds — (1) that it is against the weight of the evidence, and (2) that the charge of the court was erroneous. We observe nothing of substance in the first contention, since the testimony was contradictory, thus creating an issue of fact for the jury to determine. The quality and character of the testimony was for the jury to determine in view of the attitude and demeanor of the witnesses. The number of witnesses who testify to a given fact is not the determinative test as to weight of testimony, although it is not certain that even the quantum of the'evideuce was against the defendant. Bowell v. Public Service Railroad Co., 77 N. J. L. 231.

Nor can we say that the charge of the- learned trial judge was in any respect erroneous, and least of all in the respect adverted to- in counsel’s brief. The generic rule deducible from all the cases is that an infant of this age is sui generis, and must be so treated in any legal application of the rule of negligence and contributory negligence. This the court manifestly did in alluding to him and his presence upon the Stand, and the degree of care which the law imposed upon him under the circumstances.

We think the rule should be discharged.


text:
    AARON SCHREIBER v. THE FIDELITY AND CASUALTY COMPANY OF NEW YORK.
    Submitted November term, 1923
    Decided March 28, 1924.
    Insurance — Accident—Total and ' Partial Disability Clauses— Court Moulded Verdict at Plaintiff’s Request by Increasing Award to Conform to Court’s Instructions. Rule Allowed.
    On rule to show cause. Essex Circuit.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the rule, Edwards & Smith.

      Contra, Philip J. Schoiland.

   Per Curiam.

This action was brought to recover indemnity under a policy of insurance against disability arising out of accident or sickness. The indemnity provided both for total disability and partial disability, the obligation of the insurer being different in the two cases under the provisions of the policy.

The allegation of the plaintiff was that he became sick as the result of a fall, and that his sickness produced a total disability within the meaning of the provisions of the policy, and that he was entitled to recover the indemnity therein provided. The defense interposed was that the disability was but partial. The trial resulted in a verdict for the plaintiff for $2,062.77. The verdict was rendered on the 10th of May, .1923, and on July 28th the plaintiff applied to the trial judge to mold the verdict so as to increase the amount thereof by $1,300, the theory of the application being that the jury intended to allow the plaintiff on the basis of a total disability during the period elapsing between the time of his accident and the rendition of the verdict, and that by reason of inadvertence they calculated that the right of action commenced in 1921 instead of 3920. The court took this view, and altered the verdict to the extent of $1,300. The question now presented is whether this action of the trial court was legally eoxxcct. It may be that the action of the jury was the result of inadvertence, as claimed by the plaintiff, or it may be that they may have considered that total disability existed during a part of the period covered by the suit, and was then followed by partial disability. Upon this we are left to conjecture. It may be argued that the jury were not justified in doing this, under the charge of the court, but the disregard of a charge is ground for sot-ting the verdict aside, and is not a legal basis for the changing of the verdict to an amount consistent with the rule of damages laid down in the charge. ' While there is authority for the court to so mold a verdict by reducing it where the error is apparent, to what the correct verdict should be upon the basis of the jury’s reasoning, there, is no authority for adopting the other course, and molding it to accord with what it should have been if the court’s direction were pursued.

It has been declared by the Court of Errors and Appeals that “in molding a verdict to correspond with the real finding of the jury, the court is not at liberty to add an item which the jury did not agree to find, and this in spite of the fact that, in omitting to find such item, the jury disregarded the proper instruction of the court.” And it is therein further declared, “no one will seriously contend that it is within the power of the court to add to the amount of the verdict of a jury an item which they should have agreed to include but did not. The remedy is the granting of a rule for a new trial.” Kilgus v. Wayne Co., 85 N. J. L. 351.

These views have been reiterated in Union Garage Co. v. Wilner, 120 Atl. Rep. 4, and during this term by the same court in Cresci v. Gaudy, reported in 2 N. J. Adv. R. 486.

The rule will be made absolute.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. NICK BRUNO AND FRANK BRUNO, PLAINTIFFS IN ERROR.
    Submitted November term, 1923
    Decided March 27, 1924.
    Crimes — Larceny-—Twenty-six Reasons for Reversal Considered and Judgment Affirmed.
    In error.
    Before Gummbre, Chief Justice, and Justices Mintubn and Black.
    For the plaintiffs in error, Albert 8. Woodruff.

    For the defendant in error, Joseph J. Summerill, Jr., prosecutor o-f the pleas.
   Pee Curiam.

The defendants in this case were indicted, tried and convicted for the larceny of shirts and shirt materials. The goods were in the Westville Shirt Factory. The stealing is alleged to have taken place on March 3d, 1923, the goods stolen -being the property of one L. Laveson. There are twenty-six reasons for a reversal filed by the plaintiffs in error.

The points argued in the brief of the plaintiffs in error are these — first, because the court refused to quash or nolle pros the indictments which had obviously been altered as to a material part; failed and refused to permit defendants an inspection of the minutes of the grand jury. There is no legal merit in this point. The indictment on its face is presumed to be legal. There is no practice or law in New Jersey that would permit an inspection of the minutes of the grand jury by the trial judge on such a motion.

Two and ten. — Permitting Samuel Laveson to use a copy of an original record of an $8,000 order in giving his testimony. This copy was made by one of the bookkeepers in the office in his presence. This is without legal merit, if not competent. It was harmless.

Number ten refers to the charge of the court, in reference to the identification of the goods by Laveson. The point seems to be that the defendants could not be convicted on the testimony of Laveson, even if the jury was satisfied that he had identified the goods. This is without legal merit, Besides, there is no exception to this portion of the court’s charge.

Three. — Because the court permitted a witness, Arthur L. Drvfoos, to identify manufactured shirt as part of the goods alleged to have been stolen and later recovered. This also is without any legal merit.

Four. — Because the court refused to strike out the testimony of a witness, Max Barrer, relating to an identification of goods recovered. This also is without any legal merit.

Five. — Because the court refused to quash the indictment against the defendants, and refused to direct a verdict of acquittal in favor of the defendants at the close of the state’s case. This was not error.

Six. — Refusing to permit the witness Max Barrer to answer this question: "Q. Now, what did he say to you in the presence of Frank Bruno ?”

Seven. — Refusing to permit the defendant Frank Bruno to answer the following question: “Q. Now, in Mr. Barrer’s presence and in the presence of this other person, what was said that you heard?” This refers to a conversation with a third person. It was clearly immaterial and therefore not error. The prosecutor in his brief argues that it was subsequently brought into the case by Barrer’s testimony at page 223 et seq., and by Bruno’s testimony at page 259 of the record. If so, the defendant had the benefit of the rejected testimony for what it was worth.

Eight. — Because the court permitted the witness Max Barrer to be recalled and examined for the third time by the prosecutor. This was not error. It was within the discretion of the trial court.

Nine. — Because the trial court at the conclusion of the case, refused to direct a verdict in favor of the defendants. The defendants then requested the court to charge the jury directing an acquittal. These requests were numbered eleven and twelve. The refusal of the court to charge them forms the basis of reasons number twenty and twenty-one. This was not error.

Ten is disposed of with number two.

Eleven is comment upon the testimony by the trial court. This was proper. It was not error. State v. Randall, 95 N. J. L. 452. The trial court charged the jury: “You are to decide upon the facts yourself; you are the judges of the facts in the case.”

Twelve and thirteen. — Refusal to charge request numbers three and four in reference to reasonable doubt. The court did charge: “You are instructed by the court that these defendants are presumed by the law to be innocent until they are proven guilty. The burden of proof is upon the state throughout the trial of the case; it does not shift, and, as I say, the burden of proof is upon the state to prove beyond a reasonable doubt the guilt of these defendants. So long as there is a reasonable doubt in your minds as to the guilt of these defendants, as soon as there is doubt, that doubt must be resolved in favor of the defendants.”

The court is not bound to instruct the jury in the identical language of a request or to adopt the form or words or the collocation of phrases in which the request to charge is framed. Gardner v. State, 55 N. J. L. 25.

Fourteen and fifteen. — Refusal to charge requests numbers five and six. These requests also refer to reasonable doubt. They are disposed of by what was said under reasons numbers twelve and thirteen. Gardner v. State, 55 N. J. L. 31.

Sixteen and seventeen.' — Refusal to charge requests numbers seven and eight. These requests also.refer to reasonable doubt: They also are disposed of by what was said under reasons numbered twelve, thirteen, fourteen and fifteen.

Eighteen and twenty-four. — These reasons relate to the refusal of the trial court to charge request number nine, stating the rule as to character testimony. Citing the case of Baker v. State, 53 N. J. L. 45, and to the alleged incorrect charge of the court on this point, which forms the basis of the reason number twenty-four, to which an exception was noted. The court did charge: “Now, I charge you that testimony is legal testimony and is deserving of consideration by you the same as any other testimony that is produced here * * * and you are to consider the testimony along with the other testimony in weighing and determining the question of guilt of these defendants.” This was sufficient under the testimony in the ease. State v. Randall, 95 Id. 452.

Nineteen. — Refusal to charge request number ten, which refers to the testimony of witnesses called by the prosecutor, that the jury is entitled to credit or discredit such testimony according to the interest of such witness. The court was not bound to charge this request. It was not error. The court did charge after a clear summary of the facts: “You are to sift the testimony, consider it carefully, both on the part of the state and on the part of the defendants, and arrive at a conclusion as to who you will believe, the witnesses produced on the part of the state or the testimony of the witnesses produced on the part of the defendants.” 16 Corp. Jur. 963, § 2354 (1). This was sufficient.

Twenty and twenty-one are considered under number nine.

Twenty-two. — Refusal to charge request number thirteen, that the proofs do not conform to the indictments, and twenty-three, refusal to charge request number fifteen, that the defendants were guilty only of larceny as bailee. There was no proof in the case that would justify the court in charging these requests. It was not error.

Twenty-five. — Because judgment and sentence were given against the accused.

Twenty-six. — Because, upon the whole record, the defendants at the trial suffered manifest wrong and injury, which should be remedied. The case is before us on a writ of error and joinder in error. These reasons require no discussion. They are without legal merit.

The case was carefully tried, occupied three days. The charge of the trial court analyzed the testimony with clearness to the jury, stated with accuracy the legal principles to be applied by the jury in reaching a verdict.' Our examination of the record leads us to the conclusion that the defendants had a fair trial; they were legally convicted. It-is not out of place to say, in this case that, in addition to the existence of error in law, it must be shown that such error was or might have been prejudicial to the defense on the merits. Lamble v. State, 96 N. J. L. 235. There is no reversible error in the record. The judgments in each case should be affirmed. The judgments of the Gloucester County Court of Quarter Sessions are affirmed.


author: Pee Cukiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. NICHOLAS YARNETTI, PLAINTIFF IN ERROR.
    Submitted November term, 1923
    Decided March 27, 1924.
    Writs of Errors — Record, Including Exceptions, so Incomplete ' That There is Nothing Upon Which Error May be Determined.
    In error.
    Before Gummeee, Chiee Justice, and Justices Mintuen and Black.
    Por the plaintiff in error, Ward & McGinnis.

    Por the defendant in error, J. Willard De Toe, prosecutor of the pleas.'
   Pee Cukiam.

The paper book given to- us for examination of the record of this case contained a writ of error tested May 26th, 1923: the judgment record attested hy the county clerk of Passaic countjq dated June 2d, 1923; a paper entitled a bill of exceptions, filed June 12th, 1923, not signed; a paper entitled an assignment of error, filed August 8th, 1923, signed by Ward & McGinnis, attorneys of plaintiff in error. There is no testimony, * no bill of exceptions signed or sealed by the trial judge, no rulings of the trial judge shown, no exceptions or challenge of any ruling made by the trial judge. There is nothing in this book from which we can determine that there is any error in the judgment; hence, the judgment of the Passaic County Court is affirmed.


text:
    ELIZABETH GEIGER v. HUDSON AND MANHATTAN RAILWAY COMPANY ET AL.
    Argued November term, 1923
    Decided March 28, 1924.
    Negligence — Railroad Passenger’s Injury — Liability Admitted— Excessive Award Alleged — Evidence Examined and Judgment Sustained.
    On rule to show cause. Essex Circuit.
    Before Gummere, Chibe Justice, and Justices Minturn and Black.
    Eor the rule, Wall, Haight, Carey & Hartpence.

      Contra, Lum, Tamblyn .& Colyer.

   Per Curiam.

Plaintiff was injured on August 30th, 1922, by a rear-end collision, while a pass-enger on defendant’s railroad, traveling between Yewark and Yew York. Liability was admitted, and the controversy therefore was limited to> the question of

damages, which the jury assessed at $9,000, which it is claimed is excessive. The plaintiff was thrown from her feet and she 'Struck the car partition. Prior to the accident the plaintiff enjoyed normal health, and lived in her own home with a widowed mother. The result of the accident has been to reduce her weight from one hundred and nineteen to ninety-three pounds. She was thirty-six years of age and accustomed to work in a store in Newark, where she performed manual labor of an arduous kind, fox which she received $25 per week. At home she did the manual labor incident to housekeeping usually performed by a man. After the accident she had infected tonsils, bad teeth, defective muscles affecting the spine and shoulders, a hardening and thickening of the muscle tissues of the right hand, shoulder and chest, and general pains about the lower spine. Her condition was highly nervous, with evidences of trauma and arthritis resulting from shock. She expanded various sums of money to doctors in her effort to be cured, as wrell as expenditures for X-rays, and was obliged to compensate others to do her housework. Here cure is problematical, and while criticism of her medical experts may be indulged, the answer is that the jury credited them, The fact that the verdict is large does not render it legally excessive, so as to bring it within the legal rule, which justifies a reduction thereof upon the theory that passion or prejudice induced it. Bowes v. Public Service, 94 N. J. L. 378.

Tire rule will be discharged.


text:
    THE AMERICAN PHOTO PLAYER COMPANY, PLAINTIFF, v. PETER SPASSINO, DEFENDANT.
    Submitted November term, 1923
    Decided March 27, 1924.
    Sale of Goods — Installment Payments — Counter-Claim for Damages for Failure to Perform — Verdict for Defendant — Judge’s Charge Not in Harmony With “Sale of Goods Act.”
    Oil rale, &e.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    Eor the plaintiff, Frank Koch,.

    For the defendant, Dante RiveUi.

   Per Curiam.

The complaint in this suit shows that the plaintiff by an agreement dated February 25th, 1920, sold to the defendant a musical instrument, known as a Robert-Morton, Stjde 75, complete, &c., for the sum of $7,620, and took back a mortgage upon the same, paj’able in installments. This suit was brought to recover the balance of the installments unpaid amounting to $1,687.64, with interest from April 13th, 1922. The defendant sets up by way of defense that, by the terms of the said agreement, the plaintiff agreed to repair the instrument for a period of one year from installation such repairs as were necessary, which it did not do. The plaintiff has not installed and set up said musical instrument and has not rendered such repair service as was necessary. Filing counter-claim of $5,000 damages. The trial resulted in a verdict for,the defendant for $4,022.07 The plaintiff obtained a rule to show causé why a new trial should not be granted, and writes down eight reasons for a new trial. The trial judge charged the jury thus: “If this instrument installed was not installed in a reasonably fit condition for the purpose for which it was to be used and for which it was sold. If that has been made out then the defendant is entitled to a judgment for the sum of $4,022.07. If that has not been made out then the plaintiff is entitled to your verdict for $1,687.64.” This was injurious error, because it was not in harmony and in accordance with the provisions of the “Sale of Goods act.” 4 Comp. Stat., p. 4663, §§ 66, 69; Hirsch v. Verschur, 93 N. J. L. 277; Wurlitzer Manufacturing Co. v. United, &c., Co., 87 Id. 656. The suit was commenced April 20th, 1922. The defendant had the use of the musical instrument for a period of two years.

The rule to show cause must, therefore, be made absolute.


text:
    DANIEL H. ATKINS, PLAINTIFF-RESPONDENT, v. WALTER WELLMAN, DEFENDANT-APPELLANT.
    Submitted November term, 1923
    Decided March 27, 1924.
    Malicious Prosecution — Supreme Court Cannot Hear and Determine Validity of Exceptions Reserved to a Verdict, After They Have Been Determined by Tria1 Court on RHe to Show Cause.
    On appeal.'
    Before Gummeee, Chief Justice, and Justices Mintuen and Black.
    Eor the appellant, John O. Totten, Ir.

    Eor the respondent, DeTurh & West.

   Per Curiam.

This suit was brought to recover damages for malicious prosecution. The trial resulted in a verdict for the plaintiff for $2,500. Thereupon a rule to show cause why the verdict should not be set aside was granted by the trial judge, reserving excejitions. The defendant wrote down nine reasons for a new trial, and upon the defendant’s counter-claim two reasons. When discharging the rule, the record shows, at page 260, that Judge Newman, the trial judge, in a memorandum filed by him, considered all these reasons, and .reduced the verdict to $1,500. On the appeal the defendant filed eighteen grounds of appeal, which are argued in the brief under two heads, point one and point two-. These were considered with the reasons and acted upon by Judge Newman on the rirle to show cause. This disposes of the case on appeal under the case of Faragasso v. Introcasso, 121 Atl. Rep. 773, which holds the Supreme Court cannot hear and determine the validity of exceptions reserved to a verdict, after they have been considered and determined by the trial court on the rule to show cause why the verdict should not be set aside. So, too, Goeckel v. Erie H. R. Co., No. 18, November Term Supreme Court, 1923.

The judgment is therefore affirmed, with costs.


text:
    RAYMOND H. KUGLER, PLAINTIFF, v. GEORGE W. ARBUCKLE, DEFENDANT.
    Argued November 9, 1923
    Decided March 31, 1924.
    Seduction — Alienation of Wife’s Affections and Carnally Knowing Her — Verdict Held Not Contrary to Weight of Evidence — Charge of Plaintiff’s Own Infidelity Not Proved, But if it Had Been it Would Not Have Been Bar to Action, Affecting Only the Award — Award Held Not Excessive.
    On rule to show cause.
    Before Justices Kalisch and Katzenbach,
    Eor the rule, Lóvás PL. Miller.

      Contra,, Charles P. Brewer and John W. Wescott.

   Per Curiam.

The plaintiff recovered a verdict against the defendant, in the Cumberland County Circuit, for the sum of $20,000, in an action brought by the.former against the latter for seducing and carnally knowing the plaintiff’s wife and alienating her affections from him. The complaint contained two counts and the jury rendered a general verdict.

The first reason presented and argued by counsel of defendant for setting aside the verdict and granting a new trial is that the verdict was contrary to the weight of the evidence.

There is no merit in this contention. The plaintiff, a carpentei% married his present wife on April 29th, 1921. He had known her since her girlhood, having been schoolmates. At the time of their marriage each was about twenty years of age. The testimony tended to establish that the defendant, through the medium of the plaintiff’s wife’s sister, became acquainted with the defendant, who it appears, according to the testimony, exerted persuasion and influence upon the plaintiff’s wife sufficient to persuade the latter to induce her husband to live with her in the defendant’s house, designated in the testimony as the Arbuckle place, consisting of a dwelling-house and about ten acres of land. The arrangement appears to have been that the plaintiff was to take care of the live stock on the farm and to furnish food for the table and his wife was to take care of the inside of the house, for which consideration the plaintiff and his wife were to enjoy the possession of the place free of rent. The defendant was to live in the house and to pay to Mrs. Kugler $5 a week for taking care of his personal laundry. The testimony tended further to establish that ail intimacy sprang up between Mrs. Kugler aucl the defendant which was at first carried on in a clandestine manner. The defendant had frequent occasions to go to Philadelphia and brought home expensive boxes of candy and presented them to Mrs. Kugler. There was testimony to the effect that the defendant and plaintiff’s wife would often sit up together late at night talking to each other on various matters, and she would decline to retire at her husband’s request. As a result of these intimacies the plaintiff’s wife’s attitude toward him changed. This was undisputed. The husband implored his wife to leave the Arbuckle place and join him in going back to housekeeping. This she refused to do. The plaintiff thereupon left and his wife remained ostensibly in the employment of the defendant. . The plaintiff subsequently brought a suit for divorce against his wife on the ground of adultery with the defendant. She filed an answer, and then made overtures to her husband for reconciliation. These overtures proving successful she returned to her husband. The suit for divorce was discontinued. After living with her husband for two weeks she left him and filed a petition for divorce against him, charging infidelity to his marriage vow with three different co-respondents.

There was testimony that the defendant lived separate and apart from his wife; that for more than two years the plaintiff’s wife lived in the same house with the defendant, she and defendant both claiming that she was employed by the latter to look after his correspondence. It was admitted by the defendant and the plaintiff’s wife that they were the occupants of the house at night during that long period of time, but that there was on every occasion some third person or persons there who remained all night. There was also testimony to the effect that on one occasion the defendant was seen with his arm around the plaintiff’s wife’s waist while her hand rested upon the defendant’s shoulder. There was also testimony to the effect that after the plaintiff’s wife left him she went to Philadelphia; that her mother and members of her family tried to find the plaintiff’s wife, but all their efforts in that direction were in vain, and that her whereabouts was only disclosed when the defendant took one of her brothers to Philadelphia to see her. There was other testimony in the case from which a jury was warranted in finding that there was more than the relation of master and servant or a bond of platonic friendship existing between the plaintiff’s wife and the defendant.

We think the verdict of the jury was in accordance with the weight of the evidence.

The next reason urged for a new trial, and which we have carefully considered, is that the jury should have found a verdict for the defendant, since it appeared from the evidence that the plaintiff had been guilty of infidelity. The testimony utterly failed to establish' this charge. But even if the charge had been proven, it would not constitute a bar to the plaintiff’s action, though it might have had a bearing on the amount of damages to be awarded.

The third reason relied on for a new trial is that the damages awarded by the jury are excessive, the result of passion and prejudice.

The verdict, though large, is not excessive.

The defendant not only enticed the plaintiff’s young wife away from her husband, but debauched her. According to the testimony, the defendant went deliberately and systematically to work to accomplish the min of the plaintiff’s happy home. He succeeded in his wicked design. The plaintiff was not only entitled to compensation for his wounded feelings, loss of his wife’s society and happy home, but also to punitive damages, the amount thereof resting largely within the sound discretion and good sense of the jury, of course, guided by the facts and circumstances established by the evidence in the cause, and we cannot say that the jury in awarding $20,000 abused that discretion either through passion or prejudice.

The next reason urged for a new trial relate to the admission and rejection of testimony by the court, which action of the court defendant’s counsel contends was harmful to the defendant. The first point made by defendant’s counsel under this general head is that the court allowed the husband and wife to testify, whereas under the count for criminal conversation in the complaint neither was competent to testify except as to the fact of marriage. Eut no objection was made to its admission on that ground. There was also a count for alienation of the wife’s affections in the complaint in which issue both husband and wife were competent to testify to other facts than that of the fact of marriage. If defendant’s counsel desired to aval] himself of a proper application of the testimony given in the canse he should have requested the court to limit the application of such testimony solely to the court for alienation. This was not done, and therefore the defendant has no legal basis for complaint.

It is next argued that the court committed prejudicial error in permitting the plaintiff to testify to information he received from a girl as to whether or not his wife had been with her in Philadelphia. Defendant’s counsel moved to strike out the testimony, to which the court replied that the testimony would stand subject to a motion if it is not connected np. No subsequent motion was made by the defendant’s counsel to strike out the testimony, and presumably he acquiesced tha.t the testimony was connected up by other testimony in the cause.

A further reason urged for a new trial is that the trial judge erroneously -permitted in evidence a conversation had between the plaintiff and his wife not in the presence of the defendant. The record discloses that the conversation objected to related to the plaintiff’s wife’s acts. Whether the testimony was admissible or not, it is clear from a plain reading of it that it was harmless in its tendency..

The objection made against the admissibility of testimony given by certain witness relating to conversations had with the defendant in their presence and as to what he said is without merit, for the testimony was competent as admissions made by him. Por these conversations tended to.show that the plaintiff’s wife was living in the defendant’s house •and what his relations were with her.

Lastly, it is insisted that the court erred in charging the jury that any infidelity on the part of the plaintiff was no defense to the action, but that it was a very important ele- . ment on the question of damages, in diminution of damages. We think the court charged the legal rule accurately.

Rule to show cause is discharged, with costs.


text:
    COOPER LUMBER COMPANY, A NEW JERSEY CORPORATION, RELATOR, v. JOHN DAMMERS. BUILDING INSPECTOR OF THE BOROUGH OF RUTHERFORD, RESPONDENT.
    Submitted June 18, 1923
    Decided March 22, 1924.
    Ordinances — Zoning—Location of Lumber Yard in Territory Included in Residence Zone — Evidence Showed That Particular Locality Had no Appeal for Residences — Mandamus Ordered.
    On rule to show cause why an alternative or peremptory writ of mandamus should not issue.
    Before Justices Kaijsch and ICatzenbach.
    Eor the relator, Stanton T. Lawrence.

    For the respondent, John M. Bell.

   Pee Curiam.

This case is before us on a rule to show cause why an alternative or peremptory writ of mandamus should not issue to John Dammers, building inspector of the borough of Rutherford, directing him to issue to tile relator, the Cooper Lumber Company, a permit permitting it to erect certain structures upon its property in the borough of Rutherford, described in these proceedings. The facts are uncontroverted.

The relator is a New Jersey corporation which has been engaged for many years past in the purchase and sale of lumber for building purposes. In August, 1922, it acquired a tract of land on the easterly bank of the Passaic river, in Rutherford, having a frontage on the river of one hundred and seventy-five feet, and a frontage of two hundred feet on the westerly side of Riverside avenue, a street substantially parallel with the Passaic river, and distant therefrom approximately two hundred and fifty feet. This tract has been used by the relator because of its water facilities for receiving from boats, rough lumber in large quantities. This lumber is stored upon the property in sheds and in the open until wanted for retail distribution. This property, prior to the relator’s acquisition thereof, had been used for thirty years as a yard for storing coal and building materials, and for wharfage purposes. Immediately adjoining this property on the south is another dock used for handling coal. To the south of this last-mentioned dock 'is another tract of land upon which there are buildings owned and operated by a company engaged in manufacturing. Across the road from this manufacturing concern is a cement block plant. To the north of the relator’s tract there is a vacant piece of land located between the westerly side of Riverside avenue and the Passaic river, having a frontage on the river of one hundred feet. On February 2d, 1923, this tract of land was purchased by the relator with the intention of building a dock and sheds thereon. There is only a single dwelling in the neighborhood, located on the easterly side of Riverside avenue, opposite the cement block plant. The relator purchased the land in question to the north of its original acquisition to extend its plant to meet the increased demands of Rutherford and the other growing communities in the neighborhood for lumber. On April 4th, 1922, the borough of Rutherford adopted an ordinance entitled: “An ordinance to regulate and restrict the location hereafter of trades and industries and the subsequent location of buildings designed for a specified use in any designated area and to regulate and limit the height and bulk of buildings hereafter erected and to regulate and determine the area of yards, courts and other open spaces and for said purposes to divide the borough of Rutherford into districts.”

This ordinance was enacted in pursuance of the provisions of chapter 240 of the laws of 1920, as amended by chapter 162 of the laws of 1922. The ordinance so zoned the borough of Rutherford that the property of the relator originally acqnired and the lot which it subsequently acquired were placed in “residence No. 2 districts.” Within' this district the ordinance provides that no building or premises shall be used for other than one or more of the uses permitted in residence No. 1 districts, with few exceptions, which are immaterial, because the exceptions do not permit the use of the relator’s property for the purposes which it desires to use it. The effect of this provision is to place within a residential district the properties above mentioned which are all used for industrial or business purposes.

The relator,-on March 15th, 1923, addressed to the mayor and council of the borough of Rutherford, an application requesting such a change in the zones as would take its property out of the residential section and make of it an industrial property. An ordinance with this purpose in view was drafted but was rejected. On May 22, 1923, the relator made an application to the building inspector of the borough of Rutherford for a permit to construct a lumber shed upon the property which it had recently acquired. The application complied with all the provisions relating to an application of this character. On May 23d, 1923, the building inspector notified the relator that its application had been rejected by the building committee on account of its being in residence district No. 2.

The questions involved in this case are not essentially different from those which have been considered in several eases in this court since municipalities began to enact under the powers conveyed by the statutes above referred to “zoning ordinances.” Chapter 162 of the laws of 1922, in giving to the governing bodies of municipalities power by ordinance to regulate and 'restrict the location of industries and residences, and the subsequent location of buildings designed for a specific use in any designated area, and the division of municipalities into districts best suited to carry out the purposes of the act, provided that “such regulations shall be designed to promote the public health, safety and general welfare. The governing body shall give reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the consideration of property values, and the direction óf building development in accord with a well-considered plan.”

We are of the opinion that the governing body of Eutherford, in placing the property of the relator in a residence district, did hot give'that reasonable consideration to the character of the district called for by the act. Eor many years the property of the relator first acquired and the properties in the vicinity thereof have been used for industrial purposes. There is but one dwelling-house in the vicinity. The fact that the property which the relator desires to use as an extension to its lumber yard was for many j^ears plotted for building lots, and no lot was sold and used for residential purposes, is perhaps the best evidence of the unavailability of the land for residential purposes. The zoning ordinance seeks to change that which has been an industrial or business section into a residential section. This, we think, is unwarranted. The relator’s property has a value for industrial purposes because of its proximity to the river and’ other properties similarly used. It has little value for residential purposes. To deprive the relator of a use for his property for which it is best fitted is to deprive.him of a part of the value of his property. The use to which he desires to put it is not one which is in any sense detrimental to the public health, safety, or general welfare. Under the views of this court expressed in the recent case of Ignacuinas v. Risley, 1 N. J. Adv. R. 1023, we are of the opinion that the relator’s right of private property guaranteed to him by the federal and state constitutions is invaded.

The purpose of the placing of this property in a residential section is, as we infer from the testimony and briefs, for the purpose of beautifying in time this portion of the bank of the Passaic river. ' In other words,'the purpose of prohibiting this particular piece of-property from-being used for the purpose for which it is best'fitted is aesthetic. As was stated by Mr. Justice Swayze, in the case of Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285, “aesthetic considerations are a matter of luxury and indulgence rather than necessity, and it is necessity alone which justifies the exercise of police power to take property without compensation.”

The respondent contends that the relator has no standing in this court because it acquired the property which it seeks to use as an extension of its present yard after the passage of the ordinance of April 4th, 1922. This matter was considered in the ease of Ignacuinas v. Risley, supra, and the court in that case said “the fact that the relator purchased the property after the passage of the ordinance makes no difference as the relator stood in the position of his grantor and obtained by the conveyance all the rights with respect to the property which the grantor possessed.”

In this class of cases mandamus is the proper proceeding. Ignacuinas v. Risley, supra; Blakeslee v. Jersey City, 112 Atl. Rep. 593; English v. Asbury Park, 115 Id. 64; Keavy v. Randall, 1 N. J. Adv. R. 312.

In view of the many recent cases in this court upon the subject of zoning ordinances wo feel that it is unnecessary to consider further the questions involved in this case: A peremptory writ of mandamus will be awarded directing John Dammers, the inspector of buildings of Rutherford, to issue to the relator a building permit. If the respondent desires to have the pleadings moulded so- as to permit this decision tó be reviewed by the Court of Plrrors and Appeals, the court will, upon application, permit the same to be done.


text:
    THEODORE ACHENBERG, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Decided April 7, 1924.
    Evidence — As Reversal Dealt Only With Evidence Relating to the Damage, New Trial Should be Only as to Damages.
    Before Justices Kalisch and Eatzenbach.
    Por the defendant-appellant, Leonard J. Tynan.

    Por the plaintiff-appellee, Thomas L. Hanson.

   Per Curiam.

In this case a per curiam was* filed Pebruary 19th, 1924, in which the judgment of the District Court of the city of Perth Ambojr was reversed and a venire de novo awarded.

In this case we are of the opinion that as the reversal only dealt with the question of the improper admission, as we believe, of evidence relating to the damages of the plaintiff, that the new trial should be only as to damages. This practice is warranted by rule 147 .of the rules of the Supreme Court, which makes applicáble_ to appeals in which a venire de novo is directed, rules 131 and 132. Eule 131 provides that “in case a new trial is granted it shall only be a new trial of the question or questions with respect to which the verdict or decision is found to be wrong, if separable."

The former opinion will be modified ^o as to limit the new trial solely-to the question of damages of the plaintiff.


text:
    JOHN B. KIERAN, PLAINTIFF-RESPONDENT, v. GERALD EATON AND ANNIE EATON, DEFENDANTS-APPELLANTS.
    Decided April 7, 1924.
    Appeals — Judgment Reversed and New Trial Ordered — Subsequent Motion to Enter Final Judgment for Appellants Denied.
    Before Justices Kalis oh and Katzenbach.
    For the motion, Joseph M. Degnan.

      Contra, Hilton M. Unger.

   Per Curiam.

On March 3d, 1924, the judgment entered' in the First District Court of the city of Newark, in the above case, was reversed and a venire de novo awarded. The appellants, the defendants below, moved for an order remitting the record in the above-stated case and entering the judgment finally in favor of the appellants. We have re-examined the case and are of the opinion that this motion should be denied.


author: Kocher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of James Mullen, deceased.
    Administrators — Accounting—Exceptions for Alleged Failure of Accountant to Charge Herself With Rental Value of. Certain Property and for Allowance Prayed for Services to Intestate’s Wife as Housekeeper and Nurse.
    On exceptions to account.

      Mr. William A. Lord, proctor for accountant.

      Mr. li. Edward Wolf, proctor for (he exceptants Roger and Helen Erben.
    • Mr. Andrew B. Fitzsimmons, proctor for the exceptant James Mullen.
   Kocher, Advisory Master.

James Mullen, late of the city of Orange, departed this life on the 30th day of September, 1918, intestate, and A.nnie A. Crotty, one of his daughters, was duly appointed administratrix of his estate and filed her account as such administratrix in this court. Exceptions to her account were taken by James Mullen, Jr., one of the children of the said James Mullen, deceased, and also by Erank J. Erben, guardian of Roger Erben and Helen Erben, minors, the children of a deceased daughter of the said decedent.

The first exception objects that the said administratrix has not charged herself with the fair rental value of certain lands and premises whereof the said James Mullen died seized. By their second exception, exceptants object to an item of $4,05-4, prayed allowance in said account for services rendered by the said Annie A. Orotty in doing housework and for nursing and caring for her mother,'the wife of the said James Mullen, deceased, and also that said decedent had never received the sum of $600 for the use of said accountant as prayed allowance for in said account.

In regard to the first exception, it is well settled that an administrator has no- power whatever over the real estate of his intestate and is not accountable for rents in this court. If he collects rents or occnpies premises of the decedent, the only forum in which he can he called to account is the court of chancery. In re Struble’s Estate, 87 N. J. Eq. 311. This disposes of the first exception.

In order to dispose of the second exception, it is necessary to go into the history of the Mullen household from the date of Mrs. C’rotty’s marriage, on June 26th, 1907. Before her marriage, Mrs. Crotty, then Muilen, was living with her parents, and it appears that, after her marriage, her husband returned to Yonkers, where he was then employed, Mrs. Crotty remaining with her parents. Martin Crotty, the husband, testified that, upon his return to visit his wife, he met intestate, who remarked that he was sorry to1 lose his daughter, but he understood that her mother said that Annie (the daughter) was going to1 stay there, and that it was not so bad as long as she was going to stay and live there; that he nnclerstoocl that Mrs. Medien, his wife, had said to Annie that as long as she was going to- stay there and take care of her, the place was to be left to her, Annie, for such care, and that he wanted to know if he (the witness) was agreeable, and'that, in reply, he said that he was working out of town and would like to go to housekeeping. Mr. Crotty further testified that the following arrangement was entered into: lie and his wife were to have the use of the kitchen in which to prepare their meals, and four rooms in the house, for the monthly rental of $10, the Crottys to use the dining-room, while Mr. and Mrs. Mullen ate in the kitchen. The house was a one-family house.

At the time this arrangement was entered into, Mrs. Mullen was suffering from rheumatism, and needed some help and assistance; just how much, it is impossible to determine from the conflicting testimony. It is, however, perfectly safe to say that, at this period of time, she was able to move about the house on crutches and perform most, if not all, of hei work. Her ailment was apparently progressive, and she gradually required more and more assistance, but she was apparently able to get about and assist herself to a certain degree. In February, 1914-, she suffered from a fall, which further incapacitated her, and after this she was unable to leave the second floor of the house; and while the testimony is in hopeless conflict, it would appear inat she was still able to assist herself to a certain degree, until finally she became absolutely helpless and unable to leave her chair or assist herself in any manner. Just when this condition of affairs occurred it is impossible to determine, as the testimony is inextricably confused, various witnesses testifying that she was in this condition from one to three years ox more prior to her death.

Accountant claims compensation for services in caring for her mother from July 26th, 1901, to September 30th, 1918, eleven years, three months and four days, at the rate of $30 per month, ox in the total amount of $4,054:, on the theory that such services were rendered by her in reliance upon the alleged agreement made by her father with Mr. Grotty at the time of her marriage, and hereinbefore referred to, to the effect that “when we got through with the place the place was to be Annie’s.”

Mr. Grotty and another witness testified to statements made by Mr. Mullen at various times confirming his intention to leave the property to Mrs. Crotty after his death, in compensation for her services.

It is settled that a parol agreement of this character, be: cause of the situation and relation of the parties to it, and the consequent opportunity for the perpetration of fraud, is regarded with suspicion, and, when its enforcement is sought, is subjected to close scrutin}»'. It must not only be material, but also definite and certain, both in its terms and as to its subject-matter, and it must also be clearly proved. Vreeland v. Vreeland, 53 N. J. Eq. 387. See, also, Van Horn v. Demarest, 76 N. J. Eq. 386 (at p. 389). And, in the ease last cited, it was held that a declaration of testamentary intentions and purposes, even when the beneficiary of those intentions and purposes acts upon such declarations to his injury, does not necessarily constitute a contract; the lure of a legacy is often held out to attract attention and service, and personal attention and services are often assiduously rendered in the hope of a legacy. Applying the test laid down in these cases as to the character of testimony sufficient to establish a contract to the case under consideration, it would seem that it lias not been met. The only testimony concerning the alleged contract, or even, as to the statements of Mr. .Mullen so strongly relied upon, that “Annie would have the property after my death,” come from three witnesses. Mrs. Grotty, whose testimony is incompetent, and, therefore, must be disregarded (Smith v. Burnet, 34 N. J. Eq. 219; affirmed, 35 N. J. Eq. 314; In re Atkinson’s Estate, 86 N. J. Eq. 173) ; Mr. Grotty, her husband, whose interest is obvious, and Helen Erhen, a niece of the Crottys, who resides with them, who, at the time of testifying, was eighteen years of age, and whose testimony related to a conversation which she heard while she was twelve years of age. After Mr. Mullen’s death a bill in chancery was filed by Mrs. Mullen, his widow, to partition the property among his heirs-at-law, although, upon what theory, it does not appear; and, upon her death, Mrs. Grotty was substituted as complainant. We have here the picture of a person claiming to have a contract with her father whereby he was to leave property to her at his death, going into the court oE chancery and filing her bill, in which she recites that her father died intestate as to the property in question, and that each of her brothers and sisters have, an undivided interest therein, a position absolutely inconsistent with her claim under the contract. I am forced, therefore, to the conclusion that no contractual relations existed between Mrs. Grotty and her father whereby she was to be compensated for caring for her mother.

Ordinarily, where services are rendered voluntarily and accepted, the law will imply a promise upon the part of the recipient to pay for them, but where the services are rendered by members of a family, living as one household, there will be no such implication from their mere rendition and acceptance. In order to recover for such services, the claimant mast show either that an express contract for remuneration existed, or that the circumstances under which the services were rendered were such as to show a reasonable and proper expectation that there would'be compensation. Disbrow v. Durand, 54 N. J. Law 343. Proof both of the services and of the famity relations leaves the case in equipoise, from which the claimant must remove it or fail. Disbrow v. Durand, supra.

There is not sufficient in the testimony to warrant the conclusion that there was an expectation on the part of Mrs. Grotty to be compensated for her services, and also an intention on the part of Mr. Mullen, her father, to pay for those sendees, although there appeared to be an understanding by at least some of the members of the family that Mrs. Crottv was to be compensated for her sendees, which were admittedly rendered. In the case of DeCamp v. Wilson, 31 N. J. Eq. 656, however, it was held that where a daughter rendered to an old and helpless mpther services which, if not rendered by her, must have been obtained from a stranger for compensation, a presumption will arise that she was to be paid for such services. Mrs. Crotty unquestionably rendered to Mrs. Mullen indispensable services for a certain period of time. As has already been said, the evidence is in hopeless conflict as to both the time and the extent of these sen ices, but there can be no doubt that, for the last two years of her mother’s life, Mrs. Crotty’s services were indispensable, and I think that, upon the whole, the sum of $1,500 will compensate her for her services.

There is another transaction objected to, and, while an exception was not taken as to it, still the case was heal’d and argued as though there had been, and the matter should therefore be considered. At one time there was living with the Mullens a sister of Mrs. Mullen, referred to in the testimony as “Aunt Tilda,” who was boarding with the Mullens.” It appears she had some means. There is testimony that she at one time made a present to Mrs. Croity of $1,000, as well as other gifts of lesser amounts. There was a mortgage on Mullen house of $2,500, and “Aunt Tilda,” from an apparent desire to remove the burden of this mortgage from the property owned by her sister’s husband, obtained from Philadelphia a check for $2,500, payable to the order of James Mullen, with which cheek he paid off the mortgage in question. On the part of the accountant, it is contended that the real reason why this mortgage was paid was because “Aunt Tilda” wanted to do something for Mrs. Crotty, and that inasmuch as she (Mrs. Crotty) was to have the property upon the death of Mr. Mullen, by paying off this mortgage she was really making a present of the money to Mrs. Crotty, and that the estate should therefore be charged with the said sum of $2,500 as money received by Mr. Mullen for the use of Mrs. Crotty. I do not think this contention is sustained by the testimony. The surrounding circumstances of the entire transaction show a gift from “Aunt Tilda” to her sister’s husband, by which the sister would benefit, rather than to Mrs. Crotty.

There is still another exception to be considered. Mrs. Crotty claims allowance in her account for “the sum of $600 as money paid to said James Mullen, deceased, in 1910, for the use of the said Annie Crotty with which to buy for her two lots, but which he converted to his own use.” The transaction to which this refers is clearly pictured by the testimony of James Mullen, Jr.. He says that upon a certain occasion he was standing in the kitchen of his father’s home,, and his Aunt Tilda was in the dining-room looking out of the window at the lots adjoining the Mullen home, and that she asked Mr. Mullen why it was that he did not plant the garden any more. Mr. Mullen said that he could not use the lots any more because the property had been sold. The aunt then said: James, it would be a terrible thing if anybody built on that lot and shut off your sunlight.” She instructed Mullen to ascertain how much it would cost to buy the lots, and told him that she would give him the money, no matter how much it was. The result of this conversation was that a check was procured, again from Philadelphia, to the order of James Mullen, who purchased the lots in his own name. The claim of accountant in regard co this transaction is similar to that concerning the paying off of the $2,500 mortgage, or, in other words, that the payment was made by “Aunt Tilda” for her benefit, because she was to have the entire property upon her father’s death. All the testimony in regard to this transaction is in extreme confusion, the only clear-cut testimony being that given by James Mullen, Jr., whose testimony is perfectly straightforward and may be relied upon; and Mrs. Crotty’s claim is completely disposed of by that portion of his testimony in which lie says that “Aunt Tilda” said to Mr. Mullen, in his presence, that “I gave you that money so you could easily get those lots and enjoy -it as long as you live, and, after you are gone, I don’t care what your family does with it.” This exception will be sustained.

A decree will be advised in accordance with the foregoing.


text:
    IN THE MATTER OF THE PROPOSED CONSOLIDATION OF THE TOWNS OF WEST HOBOKEN, UNION, GUTTENBERG, WEST NEW YORK AND SECAUCUS, AND THE TOWNSHIPS OF WEEHAWKEN AND NORTH BERGEN.
    Decided April 11, 1924.
    Municipalities — Consolidation—Under Act of 1923, p. 343 — Provisions of Act Discussed and Proceedings in the Consolidation of West Hoboken and Town of Union Sustained.
    On application for a writ of certiorari.

    Before Justices Tbenchard, Parker and Campbell.
    For the applicants, Robert II. McCarter, Abram C. Safyer and Adolph J. II. Peters.

    For the respondents, J. Emil Walscheid.

   Per Curiam.

Seven municipalities in the county if Hudson, known as the towns of West Hoboken, Union, West Mew York, Secaucus and Guttenberg, and the townships of Morth Bergen and Weehawken, upon petitions, and pursuant to an order under an act entitled “An act to enable adjoining municipalities, other than cities, lying in the same county, to consolidate and form a city (Pamph, L. 1923, p. 243), voted on March 4th, 1924, upon the question of consolidation.

Only two of said municipalities — the towns of West Hobo-ken and Union, being adjoining and contiguous — voted in favor of consolidation; the remaining uve voting against the proposition.

The contention of the applicants for the writ of certiorari are:

1. The act (Pamph. L. 1923, p. 243) as well as the petitions, the order of the justice of the Supreme Court for holding the election, and the ballots used, contemplate and provide for an election and an expression of the will of the voters upon the question of the consolidation of all sevén petitioning municipalities and no number less than all.

The clear language of the statute is utterly opposed to such a contention. The petitions and the order for the election are in exact accord with the terms and requirements of the statute, and the ballots used are in the exact language and form fixed by the statute. Any variance with- the statute in the petitions, order or ballots would not have been warranted.

2. That if the foregoing contentions are unsound, then, under section 5 of the act in question, the two towns voting in favor of consolidation cannot become consolidated into a city, because that section provides that only municipalities that are contiguous and have together the greatest population shall proceed to incorporate, and that the towns of West Hoboken and Union, out of the petitioning group of seven, have not the greatest population.

But this contention cannot, in any manner, be justified by the language of such section, which, so far as pertinent, is as follows:

“The justice of the Supreme Court v * * shall make an order directing such of the municipalities as are contiguous, and as have voted for consolidation and incorporation as a city, to proceed to incorporate as a city under the provisions of this act; * * * provided, however, that where two or more contiguous municipalities voting for consolidation and incorporation as a city are separated from oilier contiguous municipalities voting the same 'way, by one or more municipalities voting against consolidation and incorporation as a city, only the municipalities that are contiguous, and which, according to the last preceding census, have together the greatest population, shall proceed to incorporate under the provisions of this act.”

Clearly the situation in the case before us is not that referred to and provided for in the proviso contained in section 5 of the act.

As the reasons advanced do not prevent reasonably debatable questions, the application is denied.

This makes unnecessary any decision upon the questions as to whether certiorari is the proper procedure and as to whether the municipalities of West Hoboken and the town of Union,' as corporate entities and in their corporate capacities, are proper parties as applicants for or prosecutors under a writ of certiorari.