author: Pee Cuejam.

text:
    EDWIN SIMONE, PLAINTIFF-RESPONDENT, v. HAMILTON B. FROBISHER, DEFENDANT-APPELLANT.
    Submitted May 16, 1930
    Decided December 15, 1930.
    Before Gummeke, Chief Justice, and Justices Tkenchakd and Lloyd.
    Eor the appellant, Winne & Banta.

    Eor the respondent, Joseph H. Gaudielle and James A. Major.

   Pee Cuejam.

This was an action by Edwin Simone against Dr. Hamilton Frobisher for the alienation of the affections of plaintiff’s wife and also for criminal conversation with her. There was a verdict for the plaintiff in the Bergen Circuit Court and the defendant appeals.

There are five grounds of appeal argued for reversal.

The first is that certain letters proved to have been written by the defendant and addressed to plaintiff’s wife were received in evidence improperly. Objection to them was that while the handwriting of the defendant was proved, there was no proof that they were received by the wife or as to their custody from their date to the time of trial. A postmarked envelope seems to have accompanied the letters and the fact that this was dated twelve months after the date alleged in the complaint when the cause of action arose was also urged as an objection to their admission. The letters were in endearing terms, addressed to plaintiff’s wife, deposited in the mail, and presumably received by her. In addition there was testimony that they had been handed by her to her counsel and by him turned over to the plaintiff’s attorney. Their intermediate custody and date were of no importance.

The question asked of plaintiff on cross-examination, whether Mr. Shirvanian also represented his wife, was immaterial to the issue being tried and was properly overruled.

This question also put to plaintiff on cross-examination, “What is the best explanation you can give us, Mr. Simone, as to why jrou did not request your wife to return to you in the summer of 1926?” was overruled, but subsequently asked in modified form and answered.

Next it is said that the register of the Hotel Adirondack at Long Lake, New York, showing that defendant registered as “Hamilton J. Bain and wife, Hackensack, New Jersey,” was improperly admitted. It is urged that the plaintiff’s wife was not shown to be the woman involved. We think the evidence was sufficient to justify its admission. The defendant himself admitted taking the plaintiff’s wife through the Adirondacks, and a Mrs. Martin testified that Mrs. Simone spoke in defendant’s presence of their having spent five delightful days at Long Lake.

Under the proofs it is quite clear that a nonsuit, refusal of which is a reason filed under the rule on the count charging criminal conversation, was properly denied.

The questions addressed to a witness named Julia Campbell, and the offer of a rent record of an apartment in which Mrs. Simone was living were properly overruled, the first because irrelevant and the second because incompetent.

Einally it is urged that an examination of the defendant, had before the trial in pursuance of an order of the Circuit Court judge, was improperly received in evidence. When the offer was made it was objected to as not being properly certified or signed by the defendant. It purports to have been certified as truly transcribed by the Supreme Court commissioner before whom the depositions were taken. The stenographer who took the depositions is shown to have been sworn. Section 144 of the Practice act provides that any party may be examined as a witness at the instance of the adverse party after issue joined before trial. Section 107 provides for the order of examination of a witness and directs that the testimony shall be reduced to writing and signed by the deponent “or the testimony may be taken by a stenographer who shall be sworn to take the same truly and the official shall certify that the same has been correctly taken and transcribed, in which case the signature shall not be necessary.” Section 52 of the Evidence act of 1900, page 377, directs that any disposition or examination taken under the act “shall not be excluded for any irregularity in taking or returning the same, if the court in which the same is started shall be satisfied that the testimony of the witness has been fairly and truly taken and returned.”

The depositions here taken seem to have been properly certified, and even if otherwise could not be excluded because of irregularity or informality in taking or returning the same.

The judgment is affirmed.


source: Caselaw Access Project

author: Pbe Curiam.

license: Public Domain

text:
    MARY McATEER AND JAMES McATEER, RESPONDENTS, v. SHEFFIELD FARMS COMPANY, INCORPORATED, A CORPORATION, APPELLANT.
    Submitted May 16, 1930
    Decided December 15, 1930.
    Before Gummeee, Chief Justice, and Justices Trbnchabd and Lloyd.
    Por the appellant, Autenrieth, Gannon & Woriendylce.

    Por the respondents, Andrew J. Markey.

   Pbe Curiam.

This action was against the Sheffield Parms Company, a dairy concern, to recover damages for illness of Mrs. McAteer, due, it is claimed, to the sale by defendant of milk unfit for use.

There was a verdict in her favor for $2,500 and in favor of her husband for $500. The defendant appeals and argues two questions, one that the court erred in denying a motion for nonsuit, and the other that it erred in its charge to the jury-

The motion for nonsuit was urged in the court below upon the ground that Mrs. McAteer was guilty of contributory negligence in drinking of the tea into which the milk had been placed. This is based on the fact that she drank half a cup of the milk, as she said, to find out what was the matter with it, her husband and son having complained that something was wrong with the tea that they had drunk and into which some of the milk had been poured. She said she drank the milk to ascertain if the trouble was with the milk.

Whether under these circumstances the plaintiff was guilty of contributory negligence was, we think, a question for the jury. It was hardly to be inferred from the complaints of the father and son that either the milk or the tea had .injurious substances in them. Both were prepared, as articles of food and the tasting habit of housewives and cooks is too prevalent to justify a conclusion that as matter of law the drinking of a portion of a cup of milk thus supplied was a want of care which would preclude a recovery.

The charge complained of is that the judge told the jury that defendant’s duty was to furnish its customers with pure and wholesome milk. This could by no possibility have misled the jury as to the defendant’s liability. In immediate context with this portion of the charge the jury was told that the plaintiff could only recover by showing that the defendant was negligent in the supply of its milk and that this negligence was the proximate cause of her illness. In different forms the same instruction was repeated in other portions of the charge. We think the instruction was therefore not error.

The judgment is affirmed.


author: Per Curiah.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ANNE M. EDWARDS, PLAINTIFF IN ERROR.
    Submitted May 16, 1930
    Decided December 15, 1930.

      Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the plaintiff in error, Walter 8. Xeown.

    Eor the defendant in error, Clifford A. Baldiuin, prosecutor, and Boceo Bátese, assistant prosecutor.
   Per Curiah.

Plaintiff in error was convicted of an abortion and sentenced to imprisonment in the New Jersey state reformatory for women. Under the writ of error taken by her the judgment is asked to be reversed on a number of identical assignments of error and causes for reversal, to which is added a cause for reversal that the verdict was against the weight of the evidence.

The first reason is that the court erred in permitting a witness for the state to testify that the plaintiff in error lived in a certain dwelling house in the city of Camden, having received the information from hearsay sources. It only needs to be said that the source was the defendant herself, and the fact was otherwise abundantly proved.

It was next urged that the learned trial judge erroneously charged the jury as follows:

“It does not have to appear that the defendant actually had knowledge that she was in that condition. The crime could not be committed unless it was done by force, by a person being overcome, by being assaulted or something like that.”

This is not an accurate quotation from the charge, but two extracts taken from different portions of the charge, involving different propositions of law and might well bo disregarded in this review. The first statement, however, is in strict accord with the decision of this court in Powe v. State, 48 N. J. L. 34, belief that such condition exists being sufficient. The statement that the crime could not be committed unless done by force, by a person being overcome, by-being assaulted or something like that, in view of what immediately follows would indicate that the report is inaccurate, but even if accurately transcribed, the plaintiff in error could certainly not be harmed as it imposed a greater burden on the state than the law requires. Abortion is a crime whether committed with or without the consent of the subject.

It is next urged that the court illegally charged the jury that—

“One witness who tells the truth may have the burden with him against half a dozen who do not tell the truth. It is not necessarily always the largest number of witnesses who carry the burden of proof.”

But we have not been apprised of any reason suggesting illegality and the instruction seems to us to be free from error.

Nor did the court commit error in presenting to the jury this question:

“Has the burden of proof been carried by the state that this woman was in a pregnant condition; that an instrument was used upon her, and as a result of that instrument being used upon her, she suffered a miscarriage?”

That was precisely the question the jury was called upon to solve.

It is next said that the jury falsely and erroneously failed to convict the defendant but instead convicted the complaining witness, and that the court illegally sentenced the defendant although the jury failed to convict the defendant. The judgment record as returned to this court reveals nothing in sustantiation of this assignment, but there is printed in the state of the case a stenographic report of what apparently took place when defendant was sentenced. Her counsel suggested that the verdict had been rendered by the jury as the result of a mistake and the court caused the panel of jurors to be brought into court and they were asked if they had any misunderstanding about who the defendant was and the answer was “no.” There was certainly nothing in this to suggest that the verdict had been rendered under any misapprehension.

Finally it is said that the verdict was against the weight of the evidence. Onr examination of the record leads us to the conclusion that this assignment is without merit. While the case rested largely on the testimony of Mrs. Sheak upon whom the abortion was committed, it was corroborated by other proofs in the ease, and a verdict based thereon does not imply improper motives in the jury.

Finding no error in the record, the judgment is affirmed.


author: Per Curiam.

text:
    JOHN MEILER, APPELLANT, v. THE FAGEOL COMPANY, A CORPORATION, RESPONDENT.
    Submitted May 16, 1930
    Decided December 15, 1930.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    For the appellant, Meyer L. Salem.

    For the respondent, Ralph W. Wescott.

   Per Curiam.

The appeal in this case is from a judgment entered on a stipulation of facts, and the single question is whether in the writ of replevin issued by respondent, ruling the appellant Meiler to file a complaint as required by the Garagekeepers’ Lien act, the Eageol Company thereby debarred itself from asserting its superior legal title to two auto buses.

The stipulation was that the Lyndhurst-New York Coach Company purchased from Eageol Company the two auto buses on a duly recorded conditional sales agreement, and during the period of its possession had certain repairs made by Meiler. The Lyndhurst Company, being in default on ■its sales agreement, the vendor issued the writ of replevin against the buses in Meiler’s possession, and incorporated in the writ the following direction to the sheriff: “That you summon the said John Meiler to commence action and to file a complaint with the clerk of Camden county within thirty days after the issuance of this writ showing the amount claimed by him.” No other writ seems to have been issued and Meiler filed his complaint and gave bond as provided by chapter 350 of the laws of 1936.

It is conteirded that in this situation the Eageol Company had waived its right to the superior ownership accorded by the act of 1935, and that the only question, therefore, was one of the amount of the garageman’s lien. The learned trial judge held otherwise and we think rightly.

Chapter 33 of the laws of 1935, accords to garagekeepers a lien upon a motor vehicle for storage, repair and supplies furnished, but provides that “such lien shall npt be superior to nor affect any lien, title or any interest of any person or corporation held by virtue of a prior conditional sale or a prior chattel mortgage properly recorded.” It is not disputed that the Eageol Company is within the terms of the proviso.

Chapter 350, of the laws of 1936, makes provision for the seizure of the motor vehicle for non-payment of claims by the garagekeeper, and also provides that the owner may demand from the garagekeeper a statement showing the true amount claimed to be due, and if he considers the claim excessive he may offer an amount such as he concedes to be due and demand possession. Upon refusal he may deposit the amount of the claim with $10 to cover costs and issue a writ of replevin for the vehicle and recover possession; or he may pursue the same remedy by giving bond. The statute then requires that the garagekeeper shall file his demand or complaint within thirty days, and that the court shall hear the case and give judgment according to the facts. It then provides “if no action is brought by said garage owner or keeper within thirty days as aforesaid or judgment shall go for the defendant [owner], the court may order the return of the money or the discharge of the bond, and may also fix and determine the amount of damages suffered by said owner of the said motor vehicle for the seizure and detention of said vehicle and render a judgment for said amount against the said garage owner or keeper.”

Without further reciting the provisions of the act of 1926 in detail, it is sufficient to say that none of them expressly or by implication debar the owner of his right to have determined the validity of the lien as against his superior title. Such a construction would completely nullify the protective effects of the proviso in chapter 33 of the laws of 1925, supra, which of course will not be lightly assumed. The fair construction of the act of of 1926 is, as we think, that the owner may, by his writ of replevin, have determined the validity of the lien as well as the amount of the garageman’s claim. Indeed the language of chapter 250 in the paragraph quoted seems to contemplate a summary method of determining all the rights of the parties without circumlocution and in a single proceeding.

The judgment is affirmed.


text:
    TALBOT PIPER, PLAINTIFF, v. ERIE RAILROAD COMPANY, JOHN COTTER AND CHARLES STEVENSON, DEFENDANTS. WILLIAM W. VANDERHOOF, ADMINISTRATOR AD PROSEQUENDUM OP EDWARD W. VANDERHOOF, DECEASED, PLAINTIFF, v. ERIE RAILROAD COMPANY, JOHN COTTER AND CHARLES STEVENSON, DEFENDANTS.
    Argued May 16, 1930
    Decided December 15, 1930.
    Before Gummere, Chief Justice, and Justices Trenciiard and Lloyd.
    Eor the rule, Hobart & Minaré.

      Gontra, Ward & McGinnis.

   Per Curiam.

These cases were tried together and were to recover for personal injuries and property damage in the Piper case and for a death in the Vanderhoof case. The injuries and death were due to a grade crossing collision between defendant’s train and an automobile. Defendant Brie Railroad Company has rules for new trial.

The reasons urged for new trial are improper instructions to the jury, that the verdicts were against the weight of the evidence, contributory negligence and that the damages are excessive. Also that the court was without jurisdiction because oí the fraudulent joinder of residents of the state for the purpose of defeating federal jurisdiction, and that, regardless of the original status of the parties, when the cases were tried the resident defendants being eliminated in the Yanderhoof case, in that situation the trial judge should thereupon have stopped the proceeding in that case to permit the filing of a petition for removal to the United States courts.

The instruction complained of is the portion of the charge in which this language was used: “Now the law says if there is a signal there it must be in operation and the plaintiff says that it was not in operation; that it was out of order at that time.” This presumably was rested on section 1 of the act of 1909, page 37, which enacts that persons approaching a public crossing “shall be entitled to assume that such safety gate or other warning appliances are in good and proper order and will be duly and properly operated,” &c. This statute has been construed in a number of eases in the Court of Errors and Appeals (Passarello v. West Jersey and Seashore Railroad Co., 98 N. J. L. 790; Rendino v. Director-General, 99 Id. 213), and from them it is to be extracted that the railroad Compaq is required to operate such safety devices and that a failure to so operate was evidence of negligence. It is therefore quite clear that the criticism of the instructions is not justified.

On the weight of the evidence we think the jury’s verdict should not be disturbed. There was no such preponderance against the plaintiffs’ case as would justify an inference that the jury was actuated by improper motives.

With respect to the charge of fraud by the inclusion of Cotter and Stevenson as defendants and the action of the court on the motions respecting the charge of fraud and to suspend the further proceeding in the Yanderhoof case in order that the defendant might make application to a justice of the Supreme Court for its removal to the United States courts, we think there was no error. The resident defendants in the case were the conductor and engineer of the train involved in the accident and could without fraud be properly made defendants. At the end of the plaintiffs5 cases a compulsory nonsuit was granted in both cases as to the conductor. On behalf of the engineer the motion was rested on the ground that the letters of administration were issued to the plaintiff Yanderhoof only as to the railroad company. This motion was held until the close of the case when, the court, being of opinion that the letters could not be amended, directed a nonsuit as to Cotter, the engineer, in the Yanderhoof case, and the motion to suspend the proceeding was then made and denied. Counsel for both sides then summed up the case to the jury and the learned judge charged them at length.

Whatever may have been the rights of the defendant, the railroad company, to have a transfer of the cause to the United States court at this stage of the proceeding, the court had jurisdiction of the person and of the subject-matter. This being true, by further participation in the trial of the 'cause, the defendant waived such rights as it might have had to a transfer of the cause. Venghis v. Commonwealth, 101 N. J. L. 151.

The verdict of $2,000 in the Piper case we think was fairly substantiated, but the verdict of $30,000 in the Yanderhoof case is grossly excessive. The action in that case was to recover the damages sustained by the next of kin for the death of Edward W. Yanderhoof. Th'e deceased at the time of his death was twenty years old, unmarried, and earning thirty-three dollars per week. Of this he was allowed eight dollars per week and the remainder was turned over to his parents. According to this relationship the utmost that the parents could be expected to have derived from his continued existence is represented by a principal sum at the time of the trial far less than the award of the jury. If the plaintiff will submit to a reduction of the verdict to $10,000, the rule in that case will be discharged; otherwise the rule will be made absolute.

The rule in the Piper case is discharged.


text:
    LOUIS BUSCHING AND DOROTHY BUSCHING, PLAINTIFFS, v. TUNIS VANDENBERG AND MATHEW THYSSEN, DEFENDANTS.
    Decided December 22, 1930.
    Before Justice Patckbe at Chambers.
    On motion of Aaron L. Simon.
    Eor the plaintiff, Julius A. Kepsel.

    Eor the defendant Thyssen, Aaron L. Simon.

   Memorandum for information of counsel.

The defendant Thyssen having failed to file an answer within the time limited by law, judgment interlocutory by default was entered against him and the plaintiff therefore was in a position to have the damages which are unliquidated assessed by a jury as on a writ of inquiry as to said defendant.

Application was made to me for a rule to show cause why the judgment should not be opened on the ground of surprise and merits. It may be assumed that sufficient merits have been shown; the matter of surprise is on a very different footing. The claim as advanced by the moving affidavits was that the defendant, who was the owner of one of the automobiles concerned in the collision out of which this accident arose, was insured in a certain insurance company at the time of the accident and that he promptly forwarded the summons and complaint to that company for attention; that the company retained them until after the time to answer had expired and then returned them to the defendant with a letter stating that, so far as their records show, the defendant was not insured with that company. Counsel wras advised by me that if any rule was to be made, it would only be upon proper proof that such a policy was in existence and in force. There has been some delay due to correspondence, and now at this writing it develops that the defendant never did have a policy issued in his own name but, as stated in a letter from his ■counsel, he purchased the automobile in Florida and was informed by the seller that a policy of insurance was in effect and that the seller would have the insurable interest transferred and send on the policy to the defendant. There was absolutely nothing to indicate that any such action was ever taken and the best proof of this is that the defendant is unable to produce any policy.

The result is that, conceding that merits are shown, there is no surprise and the application for a rule to show cause is therefore denied.


text:
    EDWIN R. WAKEFIELD, PROSECUTOR, v. THE MAYOR AND COMMON COUNCIL OF THE BOROUGH OF CALDWELL, RESPONDENT.
    Argued December 12, 1930
    Decided December 29, 1930.
    Before Justices Parker, Campbell and Bodine.
    For the prosecutor, Bennett & Hanschlca.

    For the respondent, Merritt Lane.

   Per Curiam.

The application as framed was to bring np for review an ordinance of the borough providing for the purchase of certain land for public purposes at an ascertained price, and also a resolution in connection therewith to borrow from one or more of the local banks certain funds to be used in carrying out the purchase. It appears that the transaction with the banks has been completed; that the money has been loaned, and that the banks hold the obligations of the borough.

At the argument it was conceded, in effect, if not in terms, that the ordinance itself was unassailable, or at least it was not assailed; the brunt of the attack was on the resolution and counsel intimated that the intent was not so much to invalidate the particular transaction with the banks and deprive them of the right of recovering back the money loaned as to be a warning for the future to the parties directly or indirectly concerned. The ground of the attack is that at common law, and also by reason of one or more statutes of this state, and because of the fact that certain members of the borough council, or borough officials, were interested as stockholders, officers or directors in the local banks, it was an illegal act for the borough to borrow money even for an entirely legitimate purpose from a bank, or banks, in which borough officials were interested in any way. We are not aware that such a transaction falls under the ban of the common law, and so far as the statute is concerned, section 32 of the Crimes act, which appears to be the statute relied upon by prosecutor, does not, as we read it, relate to or cover any pure borrowing transaction, but rather the making of contracts for building or the furnishing of labor or supplies to the municipality. The practice of municipalities borrowing money from their local banking institutions is convenient, general and practically universal, and it would create hardship if the municipal body was to be driven to outside financial institutions merely because the owners or managers of such institutions, or both, happened to be connected at the same time with the municipal government.

The application for a writ of certiorari is denied.


author: Pee Cueiam.

text:
    HAROLD J. MEE, PROSECUTOR, v. TOWN OF MONTCLAIR, A MUNICIPAL CORPORATION IN THE COUNTY OF ESSEX, RESPONDENT.
    Argued December 12, 1930
    Decided December 29, 1930.
    Before Justices Paeeee, Campbell and Bodine.
    Eor the prosecutor, Thomas Brunetto.

    Eor the respondent, George S. Harris.

   Pee Cueiam.

The application looks towards the setting aside of the temporary suspension of the prosecutor as a member of the fire department of Montclair, from August 9th until October 28th, 1930. This suspension resulted from the fact that the prosecutor had been arrested on a complaint charging him with drunken driving, and this fact becoming known to his superior officer, he was suspended temporarily pending the outcome of the complaint and pending the preferring of formal charges against him in case of conviction. According to the affidavits for the defendant, a considerable portion of this delay was due to the request of the prosecutor himself or his counsel. On the application for this rule said counsel conceded that the formal suspension ordered at the time charges were preferred in writing was entirely valid or to be considered so until the final disposition of the charges, but claimed that the informal suspension before the preferring of charges was altogether illegal and ultra vires and should he set aside at this time although there had been no final disposition of the charges before the commissioner of public safety.

The deferring of formal charges against the prosecutor by the fire chief was really for the benefit of prosecutor and to await the decision by the magistrate of the complaint of drunken driving under the Motor Yehicle act. At the same time it was manifestly inadvisable that the prosecutor should continue to do duty while the latter. prosecution was still ¡lending. We are unable to see that any injustice was done to him, or that any law was transgressed by this temporary suspension to await the outcome of the two prosecutions. Apparently the object of the prosecutor on this application is to put himself into a position to sue for his salary accrued during the period of informal suspension and without reference to the ultimate result of the proceedings.

In the exercise of our discretion, we think that no writ should go at this time and that the matter should in any event wait until the charges before the commissioner have been tried and concluded. It was stated that the prosecution under the Motor Yehicle act had been terminated by the decision of the Court of Common Pleas on a review of the conviction in the recorder’s court. Assuming, but not conceding, the legal correctness of this proposition, the judgment of the Common Pleas does not seem to be conclusive of the prosecution before the commissioner which is still pending and undetermined.

The application for a certiorari will be denied, but without prejudice to any further action prosecutor may be advised he should take after the disposition of the charges against him before the departmental authorities.


text:
    HARRY HODES, PLAINTIFF-APPELLANT, v. FRANK MOONEY ET AL., DEFENDANTS-RESPONDENTS.
    Decided December 30, 1930.
    Before Justices Case, Daly and Donges..
    Eor the appellant, Hodes £ Hodes, Herbert A. Kuvin and Harry Green.

    Eor the respondents, Berlin £ Berlin.

   Per Curiam.

Since the filing of the opinion in this case it has been represented to the court that the defendant Mooney has parted with the property so that a judgment for possession will be ineffectual. Therefore, instead of entering judgment for the plaintiff in this court, the judgment is reversed and the case remanded for a new trial.


author: Pee Cubiam.

text:
    SAVERINO NAPOLITANO, BY ANGELO NAPOLITANO, HIS NEXT FRIEND, AND ANGELO NAPOLITANO, PLAINTIFFS, v. HORACE H. MOORE, DEFENDANT.
    Argued May 7, 1930
    Decided January 2, 1931.
    Before Gummfbe, Chief Justice, and Justices Tbehohabd and Lloyd.
    Eor the rule, Borg, Duncan & Bailey.

      Contra, Geran, Matlock £ Lautman (Solomon Lauiman, of counsel).
   Pee Cubiam.

This is defendant’s rule to show cause why verdicts in favor of the plaintiffs should not be set aside.

The action was brought by Saverio Napolitano, by his next friend, and by Angelo Napolitano for damages resulting from an automobile accident in which both plaintiffs were injured, and as a result of which the plaintiff Angelo Napolitano suffered various property losses. The jury awarded a verdict of $300 for the infant plaintiff, Saverio, and $10,511 for plaintiff Angelo.

We think the evidence reasonably tended to show, and the jury was justified in finding if they saw fit, that plaintiff Angelo was driving his Ford car, a delivery truck, in a southerly direction along Third avenue in Spring Lake, his son,, Saverio, sitting beside him; that the defendant, Horace H. Moore, was operating Ms Studebaker car in a westerly-direction along St. Clair avenue at a Mgh rate of speed, and attempted to cross Third avenue without looking out for traffic; that his car crashed into the Ford, spinning it completely around so that it was fronting the direction from which it had come, overturning it, and finally defendant’s car brought up on the sidewalk about fifty feet past the point of impact; that defendant’s car came to a stop on the south side of St. Clair avenue with its rear wheels on the sidewalk and its front wheels on the lawn; that the defendant got out of his car and left the scene of the accident and was found in his office by the police officer.

Considering the physical situation as described by this and other testimony, the testimony as to speed and management of both cars and their respective rights at the intersection arising from the position of the respective cars, we consider that it cannot be said that the verdict was against the preponderance or weight of the evidence with respect to the negligence of the defendant, or the alleged contributory negligence of the plaintiffs.

The verdict of $300 in favor of Saverio Napolitano is not excessive. The verdict in favor of Angelo Napolitano for $10,511 is so plainly excessive, in view of the evidence, that it cannot stand. We consider that the proofs do not justify a verdict of more than $6,000. If the plaintiff Angelo will remit the amount of his verdict in excess of that figure, the rule to show cause will be discharged; otherwise it will be made absolute as to him.


text:
    BLUMA C. RAPPOPORT AND DAVID RAPPOPORT, PLAINTIFFS, v. ATLANTIC CITY AND SEASHORE RAILWAY COMPANY, A CORPORATION, DEFENDANT.
    Argued May 7, 1930
    Decided January 2, 1931.
    Before Gummeee, Ohtee Justice, and Justices Teenciiare and Lloyd.
    Eor the rule, Bourgeois Coulomb.

      Contra, Philip Wendlcos.

   Per Curiam.

This is defendant’s rule to show cause why a verdict in favor of the plaintiff wife for $4,000 and a verdict in favor of her husband for $1,000 should not he set aside. The verdicts were rendered at the Camden Circuit.

Plaintiff Bluma C. Rappoport was alighting from defendant’s trolley car at a street intersection in Atlantic City. The suit was brought upon the theory that, whilst she was alighting, the defendant’s agents operating the car suddenly started it without giving her due warning, and as a result of which she was thrown to the ground and received the injuries on account of which this suit was brought.

The verdict is challenged because it is said to be against the weight of the evidence on the question of liability. We think it is against the great weight of the evidence.

The case was submitted to the jury because of testimony now to be mentioned. Beatrice Eversley, a sixteen-year-old girl employed by Mrs. Eappoport, and accompanying her at, the time, testified that when the ear stopped at the intersection, they asked the conductor if they might get out from the rear door of the car and were told they could do so; that when the door was opened she got out carrying a velocipede belonging to Mrs. Eappoport’s baby; that she placed the velocipede on the ground and then turnd around; that Mrs. Eappoport followd her with the child in her arms, and that as she was stepping down the trolley ear gave a jerk and threw her down on her knees.

Mrs. Eappoport testified that as she was in the act of stepping down “she received a sudden jar,” and fell.

Mrs. Caroline Jones, a friend of Mrs. Eappoport, testified that she happened to be passing in an automobile and that “the car gave a sudden jar and threw her.” This is the extent of the testimony for the plaintiffs.

We do not think that any of this testimony can be said, to be disinterested testimony.

Moreover, it appears plainly that such testimony is completely discredited and overborne by the testimony upon the-part of the defendant that there was no jerk or jar or movement of the car, most of which testimony is entirely disinterested. There was testimony of an engineer and of mechanics to the effect that the mechanics of the car 'were-such that, so long as this rear door in question was open, it was physically and mechanically impossible to start the-car. This latter testimony was uncontradicted and unimpeached.

The rule .to show cause will be made absolute.


author: Pee Curiam.

text:
    JAMES A. COMAN, PLAINTIFF, v. PUBLIC SERVICE COORDINATED TRANSPORT, DEFENDANT.
    Submitted May 17, 1930
    Decided January 2, 1931.
    Before Gummeee, Chief Justice, and Justices Tren•chard and Lloyd.
    Eor the rule, Francis A. Gordon.

    Contra, Henry H. Fryling (William F. Vosseller, of counsel).
   Pee Curiam.

This is plaintiff’s rule to show cause why his own verdict for $400 should not be set aside.

It is argued that the damages awarded were grossly inadequate.

We think they were.

Plaintiff was a police officer of Eahway. He was riding in a Ford roadster owned by the city and operated by another police officer. At the intersection of Central avenue and Irving street the roadster was struck by a bus owned by the defendant and operated by its servant and the plaintiff was injured. He was carried to the hospital suffering from concussion of the brain and was unconscious. He was treated in the hospital for two and a half days. The testimony reasonably tends to show that he was severely inj’ured, both physically and mentally, and that the after effects were and are of ■a persistent nature, impairing his ability to work and requiring much medical attention up to the time of the trial, almost two years after the accident. His expenditures for medical attention alone amounted to more than $400. He suffered and still suffers more or less pain, and is still under the care of his family physician. He was fifty years old and prior to the accident had good health.

In such state of the proofs it is plain that the verdict of $400 is grossly inadequate.

We have examined with care the evidence respecting liability of the defendant and consider that it amply justifies the finding of the jury with respect thereto.

The verdict will be set aside and a new trial granted, but the new trial will be limited to the question of damages.


author: Pee Cttbiaji.

text:
    CATHERINE MARTIN, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Submitted May 17, 1930
    Decided January 2, 1931.
    Before Gummeke, Chiee Justice, and Justices Teenchakd and Lloyd.
    Eor the rule, Henry H. Fryling (Harold F. Borgeval, of counsel).

      Contra, Frances Hart (Meyer Lobsenz, of counsel).
   Pee Cttbiaji.

The plaintiff brought suit to recover damages for personal injuries alleged to have been sustained by her as the result of an accident which occurred at the corner of Goodwin and Melrose avenues, in Eidgewood, on June 21st, 1929, about eleven-thirty p. m.

The plaintiff contended at the trial that she was injured while getting off a bus of the defendant company at a sidewalk at the street intersection, and her testimony was to the effect that as she was stepping off the bus on to the curbstone, the bus started and threw her down, injuring her.

No doubt she was injured, but we think that the great weight of the evidence is that she was not injured in the manner she claims. Her testimony was uncorroborated. Several witnesses, most of them disinterested, testified to the effect that the bus did not move and that she had alighted from the bus and was making her way over the sidewalk when she fell and hurt her hip. Not only did the witnesses so testify, but a number of witnesses, including the policeman, who were present, and who interviewed her soon after-wards, testified that she then said that it was not the fault of the bus, that the bus did not move, but that the injury was the result of turning her ankle or making a mis-step.

The rule to show cause will be made absolute.


text:
    THE STATE OF NEW JERSEY, RESPONDENT, v. CHARLES P. ACTON, PROSECUTOR.
    Submitted October 17, 1930
    Decided January 7, 1931.

      Before Justices Pakkee, Campbell and Bodine.
    For the prosecutor, F. Newlin Acton.

    For the state, William A. W. Grier, prosecutor of the pleas.
   Pee Cueiam.

The indictment charges embezzlement. A former indictment based on the same general facts was quashed by this court on the ground that “there was nothing to indicate whether the United States Fidelity and Guaranty Company, named as the owner of the money alleged to have been embezzled, was a corporation, a social organization, or other entity.” State v. Acton, 8 N. J. Mis. R. 198; 149 Atl. Rep. 339. Thereupon the present indictment was found. It charges that the defendant, on the 30th day of July, in the year of our Lord 1928, at the city aforesaid, in the county of Salem aforesaid, and within the jurisdiction of this court, and on various other days between the said date and the 12th day of December, 1928, as an officer of trust and profit, to wit, president and manager of Charles P. Acton, Incorporated, a corporation under the laws of the State of New Jersejr, which corporation was entrusted with the collection of moneys due for premiums on insurance policies, which monejrs were due to and the property of the United States Fidelity and Guaranty Company, a body corporate, under the terms of the contract of employment, and demand having been made for the said moneys, which moneys and funds were entrusted and committed to the care of Charles P. Acton, Incorporated, did feloniously embezzle and convert to his own use and to the use of other persons or corporations with intent to defraud said United States Fidelity and Guaranty Company, a body corporate, and did unlawfully and fraudulently dispose of the said funds, to wit, the sum of $4,535.12, lawful money of the United States of America.”

To this second indictment a writ of certiorari was allowed, and it is now before us.

The first point made in attack on the indictment is that it does not appear, expressly or by implication, that the “United States Fidelity and Guaranty Company, a body corporate,” is entitled to own property or money the subject of an embezzlement, or that it is within any class of persons or corporations mentioned in section 167 of the Crimes act. Comp. Stab., p. 1795. The indictment describes the company as “a body corporate,” adopting the precise language of the statute in this particular as in others. As to pleading that the “body corporate” is legally entitled to own property subject to embezzlement, we deem that altogether unnecessary. That power is expressly conferred by section 1 of our Corporation act on all domestic corporations and by section 95 on all foreign corporations, at least to the extent of their authorized business, and that is quite sufficient for present purposes.

The next point is that the indictment fails to “set forth the fiduciary relation of the accused to the person [corporation] whose property is claimed to have been embezzled.” The statute reads: “Any person who, holding an office of trust and profit under * * * any public or private corporation existing under the laws [of this state] who shall embezzle any of the money * * * committed to his keeping, with intent to defraud * * * any * * * body corporate or person, or shall fraudulently dispose of the same, shall be guilty of a high misdeamor.” An examination of the indictment as set out above will show that defendant was an officer of a New Jersey corporation collecting money for the Fidelity company; that the money was committed to his keeping in his capacity as officer, and that he embezzled it in fraud of its rightful owner. Here again the language of the statute is followed, and in our estimation, a violation of it adequately charged.

The last point made is that the indictment is ambiguous and indefinite. We are unable to see that it is either in any respect that cannot be fully met by a bill of particulars.

It is well to add that the court is always loth to quash an indictment except on the plainest ground. State v. Johnson, 82 N. J. L. 330; State v. Ruffu, 8 N. J. Mis. R. 392; 150 Atl. Rep. 249. It was promptly quashed before, to permit a new indictment before the statute of limitations should have run. 149 Atl. Rep. 340. At this writing the statute has run, and that is a most important reason to hold the indictment and leave defendant to his demurrer, on motion in arrest of judgment. State v. Tilton, 104 N. J. L. 268.

The motion to quash will be denied and the indictment remitted to the Salem Quarter Sessions, there to be proceeded with according to law.


author: Pee Cusíase.

text:
    THE STATE OF NEW JERSEY, RESPONDENT, v. JOHN BORG AND CHARLES ROSENBERG, PROSECUTORS.
    Argued October 7, 1930
    Decided January 7, 1931.
    Before Justices Campbell and Bobine.
    Eor the state, Edward 0. West.

    Eor John Borg, Carey & Lane and Mackay & Maclcay.

    Eor Charles Eosenberg, Samuel Denson.

   Pee Cusíase.

A motion was made to quash the following indictment presented into the Bergen Oyer and Terminer March 18th, 1930:

“Bergen county, to wit: The grand inquest of the State of New Jersey in and for the county of Bergen, upon their respective oaths, present, that John Borg and Charles Eosenberg, late of the city of Hackensack, in the said county of Bergen, on or about the eighth day of February, in the year of our Lord one thousand nine hundred and thirty, at the city aforesaid, in the county aforesaid, and within the jurisdiction of this court, did wickedly, maliciously, fraudulently, corruptly, falsely, knowingly, willfully, and unlawfully combine, unite, confederate, conspire and bind themselves by agreement to deprive, cheat and defraud the State of New Jersey of the sum of two hundred thousand [$200,000] dollars, lawful money of the United States of America, to which sum of money the State of New Jersey was then and there lawfully entitled, and in pursuance of such wicked and unlawful conspiracy the said Charles Rosenberg did refuse and cause the refusal to pay a valid and lawful draft or check of the treasurer of the State of New Jersey in said amount of two hundred thousand [$200,000] dollars lawful money of the United States of America.

“Contrary to the form of the statute in such case made and provided, against the peace of the state, the government and dignity of the same.
Edwaexi O. West,
Prosecutor!’

The motion is based upon two grounds: First, that the indictment is insufficient upon its face; and secondly, that it was the result of bias, prejudice, passion and malice.

The indictment is obviously insufficient upon its face. John Borg, one of the defendants, was the editor and publisher of the Bergen Evening Record; while Charles Rosenberg was a director and chairman of the board of the Little Ferry National Bank.

The state seeks to justify the indictment as one at common law and not under section 37 of the Crimes act. 2 Comp. Stat., p. 1757. A conspiracy between the editor of a newspaper and a banker to defraud the state of a large sum of money should not be lightly made nor vaguely couched. In State v. Young, 37 N. J. L. 184, and Madden v. State, 57 Id. 324, indictments against public officials for conspiracy at common law were sustained as sufficient, and upon these two-cases the state relies. Had the draftsman of the present indictment exercised the same care as was taken in those cases, the principles of law there enunciated would have been pertinent.

In State v. Young, supra, the principal averments were as-follows: That certain persons named therein were commissioners to * * * estimate * * * damages to be sustained by * * * owners of lands and real estate which the mayor and common council had then and there determined to take * * * for the opening of South Fourteenth street, in the city of Newark; and that said Young was chairman of said commissioners * * *; that one * * * was the owner and possessor of a certain lot, a description of the same being set forth * * *. The charge of conspiracy was in these terms: "And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said * * * chairman of the said commission, and the said * * * being then and there an alderman * * * did wickedly, falsely, fraudulently and unlawfully conspire, combine, confederate and agree together, to cheat and defraud the said city.” The overt acts are then set forth with particularity so that the part played by the conspirators was apparent.

In Madden v. State, supra, the substance of the averments were as follows: That the defendants being street and water commissioners of Jersey City did conspire to cheat and defraud Jersey City of its moneys by certain means particularly specified.

The present indictment contains mere general allegations. It nowhere states that Charles Eosenberg was under a duty because of an office, or otherwise, to pay the draft of the State of New Jersey. Nor does it particularize concerning the draft, nor does it contain any description thereof so that the same can be identified. Obviously, citizens in general are under no duty to pay the drafts of the state, and if Eosenberg was under a duty to pay a particular draft the facts and circumstances should be pleaded so that he and his alleged co-conspirator can know the nature of the offense ■charged.

“The indictment should contain such a specification of .acts and descriptive circumstances as will on its face fix and determine the identity of the offense, with such particularity as to enable accused to know exactly what he has to meet, to give him a fair and reasonable opportunity to prepare his defense, and avail himself of a conviction of acquittal as a bar to further prosecution arising out of the same facts.” SI Oorp. Jur. 661.

“A person indicted for a serious offense is presumably innocent, and the sufficiency of an indictment must be tested upon the presumption that he is innocent and has no knowledge of the facts charged against him.” 31 Corp. Jur. 663.

In State v. Allgor, 78 N. J. L. 314, the court said: “Want of certainty in the statement of the offense is, therefore, the vice of this indictment, and at common law the rule is fundamental that an indictment must be certain in its allegations, so that it can be seen upon inspection, not merely what nature of crime, but what particular crime is intended to be charged. 2 Hale P. C. 193; Rex v. Suddis, 1 East 314; State v. Middlesex Traction Co., 38 Vr. 14; United States v. Cruikshank, 92 U. S. 542; State v. Morris and Essex Railroad Co., 7 Vr. 555.”

In Wood v. State, 47 N. J. L. 461, members of the board of chosen freeholders of Camden county were indicted for a conspiracy to defraud the county by directing the payment of $160 to a man named Morgan. Mr. Justice Reed said: “The charge is that they unlawfully conspired to get into the hands of one Morgan a sum of money. It does not say that Morgan was not entitled to a sum of money. Nor does it charge that the defendants knew that he was not entitled to it. The charge that they wickedly devising to unlawfully obtain this money, &c., is meaningless, when the details of the conspiracy are set forth, by which it does not appear that, the person who was to receive the fund was disentitled to it, or that the defendant supposed that he was without right to-be so paid.”

From the deposition taken on the rule, it appears that at the time the indictment was found there was no deposit of state funds in the Little Ferry National Bank. An account had been opened in that bank in the early summer of 1929. After the commencement of an investigation of the municipal affairs of Lodi township, the state treasurer sent forward a draft for the full amount of the deposit. Mr. Rosenberg, under the impression that the deposit was for a stated time, caused the draft to be returned with such notation. On February 13th, 1930, or less than a week thereafter, a new draft was sent forward, which was honored by the bank. This occurred a month before the indictment in question was voted.

No definite transaction is pleaded so that we cannot say what the grand jurors had in mind, but from that which transpired it is apparent that there was not sufficient evidence before that body.

On June 12th, 1930, twelve members of the grand jury, who voted in favor of the indictment, requested the prosecutor of the pleas to quash the same, stating: “We are satisfied that there never was and is not now any legal basis to support this indictment. We feel that in justice to the parties concerned, and in justice to the people of Bergen county, and in justice to the grand jury, which we believe was misled into reporting an indictment, that the application for the quashing of this indictment should be granted.”

There were two witnesses before the grand jury: One an officer of the City National Bank and Trust Company of Hackensack. He gave no testimony in anywise implicating Mr. Borg with the transaction. Further, he seems to have known nothing except about the ultimate honoring of the draft which closed the account. The testimony of this witness supports the statements of the majority of the jury that there was no legal basis for the indictment. The other witness gave no testimony as to the evidence he presented to the grand jury, although he had the opportunity so to do. State v. Borg, 150 Atl. Rep. 189.

“The constitution provides that no person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury; but it neither provides the mode of presentment nor the evidence upon which it shall rest. Nor can it with propriety be said to be a right of the defendant to be informed of the evidence upon which the grand jury acted, or to avail himself of its legal incompetency.” State v. Dayton, 23 N. J. L. 57.

In State v. McCarthy, 76 N. J. L. 295, Mr. Justice Swayze said: “By our constitution no person can be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury. This must mean a legally constituted grand jury having the qualities which grand juries were required to have at the time the constitution was adopted, so far as those qualities are essential to secure the end of the protection of individual liberty. * * * It can hardly be denied that if the grand jury is to serve its purpose of standing between the state and the citizen, it is essential that it should be impartially selected and not chosen for the purpose of securing indictments. If the latter was to be permitted, the constitutional guarantee might as well be effaced. * * * A grand jury summoned and impaneled otherwise than impartially may be a grand jury within the meaning of the constitutional provision as to the person who is the subject of the sheriff’s hostility. * * * It is no answer to say that the defendant cannot be injured as he has the opportunity to acquit himself before a traverse jury. If he is innocent, he is injured by having a tribunal, which the law has provided as a shield for his protection, used as a sword to smite him. * * * It is trite to say that the worse excesses of revolutionary periods have been due to a disregard of legal safeguards in order to secure more speedily what a dominant party for the moment deemed to be justice * * *.

“It is enough for our present purpose to say that we think no public necessity requires that we should refuse in this case to exercise our discretion. There is still time for a properly chosen grand jury to act hereafter, and it is to the interest of public justice that the matter should be considered at a time when the passions of the moment shall have subsided, and that the defendants should not seem to be the victims of political animosity.”

The Bergen county grand jury was composed of twenty-one Republicans and two Democrats. The democratic jury commissioner was Martin J. Toolen, since removed by the governor.

The prosecutor of the pleas before the indictment was found, and at the time his deposition was taken, expressed great hostility to Charles Rosenberg. At the time the indictment was voted, the prosecutor and his assistants were in the grand jury room. The subsequent statement of the grand jurors suggests, at least, that coercive methods were employed. The insufficient allegations of the indictment itself, the partisan character of that body, coupled with the presence of a hostile prosecutor, tends to weaken public confidence, especially when a majority sought afterward to undo the same.

The background of the situation brings the case more strikingly within the rule of the McCarthy case. The Supreme Court, at the intervention of taxpayers, had commenced an investigation of the affairs of the township of Lodi. Many active Republican officeholders in Bergen county were opposed to the investigation. The defendant John Borg, through his newspaper, was active in giving publicity to that which transpired. The newspaper accounts contained many reflections upon the integrity of those who had been lately concerned in township affairs.

It seems evident that the financing of the sewer construction in Lodi township had not been well provided for. The bonds of the municipality necessary for the work were beyond the legal limit. The Little Eerry National Bank had done some temporary financing but had reached its limit. A state deposit, which was afterwards withdrawn, was procured and the bank invested in the township bonds. The community was a growing one and the hope existed that the state deposit might remain till the bonds, by the growth of ratables, became legal and marketable.

Many Bergen county officeholders were close friends and were opposed to those sponsoring and aiding the investigation of the Lodi affairs. More than one important officeholder, and at least one of the grand jurors, had urged, with little tact, those responsible for the investigation to cease their activity. The question of party expediency was uppermost in the minds of men charged with an impartial administration of law. Animosity was rampant in certain coteries towards Borg and Rosenberg. Rosenberg had been very frank. Borg was aiding the investigation. He and his entire staff was called before the grand jury, and at least one man boasted that he would, for one day, stop the publication of the newspaper. Rosenberg was distasteful to the prosecutor, because he believed that he had hurt his friends by what he had said and done.

It is perhaps enough, without going more into the details presented and without considering the depositions which the state moved to suppress and which we think were proper, to say that the insufficiency of the indictment and the partisan activities of those concerned in procuring the same, leads us to believe that “no public necessity requires that we should refuse in this case to exercise our discretion.” There is still time for a properly constituted grand jury to consider legal evidence bearing upon the situation, and for an indictment to be drawn with sufficient particularity so that the crime will be apparent upon inspection. It is further possible that a grand jury less closely associated with partisan politics may more fully and impartially weigh and consider the matters presented.

The motion to quash will be granted.


text:
    ABRAHAM ZWILLMAN, PROSECUTOR, v. THE STATE OF NEW JERSEY, HONORABLE WILLIAM S. GUMMERE, CHIEF JUSTICE OF THE SUPREME COURT, AND WILLIAM C. ECKER, WARDEN OF THE ESSEX COUNTY PENITENTIARY, RESPONDENTS.
    Argued January 7, 1931
    Decided January 8, 1931.
    Before Justices Parker, Campbell and Bodine.

      For the prosecutor, Minium & Weinberger.

    Contra, Joseph Jj. Smith.

   Pee Cubiam.

The present application seeks to review the dismissal by the Chief Justice of a writ of habeas corpus. The defendant was indicted on October 2d, 1928, charged with the crimes of atrocious assault and battery and assault with intent to kill. Eleven different trial days were set, and on February 11th, 1929, the defendant signed an application of waiver of trial. The application was granted and the trial proceeded before the Court of Special Sessions of Essex county. The defendant was convicted as charged. On March 12th, 1929, the defendant applied for a rule to show cause for a new trial. The court reserved decision, and on December 5th, 1930, discharged the rule. On December 12th, 1930, the defendant made a motion in arrest of judgment, which was denied by the court, and sentence was imposed. The sentence of the court was that the defendant be imprisoned in the Essex county penitentiary for a term of six months at hard labor and that he pay a fine of $1,000, and stand committed until the fine be paid.

After this sentence was imposed, the defendant applied to the Chief Justice for a writ of habeas corpus. Section 2 of the Habeas Corpus act provides: “That the following persons shall not be entitled to prosecute such writ: * * * II. Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction.”

Counsel for defendant contends, however, that the sentence by the Essex County Court of Quarter Sessions was invalid and that hence the writ should have gone, and that this court must issue the writ of certiorari in order that the action of the Chief Justice may be reviewed.

The law in this state relating to the suspension of sentence by the trial judge is most exhaustively reviewed by Vice-Chancellor Garrison in State v. Osborne, 79 N. J. Eq. 430. He there said (at p. 445) : “As a general principle, I should say that either the successful or the defeated party in any litigated proceeding, civil or criminal, could move for judgment at any time when and after the matter was ripe for judgment.

“But if the defendant acquiesces, or does not object, it is difficult to see how he can be said to be injured. It is necessary to remember that the defendant has been convicted; that the court has the power to inflict the full measure of punishment; that if a defendant, thus in peril of suffering the full penalty of the law, is not visited with it, many things may happen favorable to him; while nothing worse than his present plight can possibly happen. If a defendant thus circumstanced sees fit not to object, or to acquiesce, I do not see who else is concerned that can complain, nor how he can legitimately complain.

“I feel quite sure that, under the criminal law, as administered in this state, where every right of the defendant is zealously guarded, and the state is held to have power to inflict punishment only when every step has been taken in exact accordance with legal procedure, there is no danger that a defendant will have any right violated, or be in any way oppressed, if the custom so long in vogue is continued.

“I am inclined to say—although, of course, not to find, because it is not in issue—that the power thus to indefinitely suspend sentencing, which exists in the court, is not exercisable in the face of an objection by the defendant; that when exercised, in default of objection, and with either implied or actual acquiescence, it is a lawful exercise of power residing in the court, and cannot result in the release of a prisoner subsequently sentenced, and who applies for a writ of habeas corpus for that purpose.” And concluded on page 447: “If there was error of any sort committed by the court in imposing this sentence—if there was abuse of discretion amounting to legal error—that is correctible by writ of error, and is clearly not reviewable under a writ of habeas corpus

The legislature by chapter 231 (Pamph. L. 1928, p. 407) amended section 55 of the Criminal Procedure act as follows: “After conviction and sentence tlie court before which such conviction was had upon the application of the defendant for a new trial shall have power at any time within the period of six months from the date of the entry of such conviction, to open and vacate the same and grant a new trial and discharge the defendant from custody upon bail, pending such new trial, and may also at any time within the period of thirty days from the date judgment is entered, but not thereafter, upon application of the defendant, or on its own motion, open and vacate the judgment entered on any conviction and resentence the defendant as right and justice may seem to require and discharge the defendant from custody upon bail, pending such resentence; provided, no writ of error is pending to review such judgment.” And by chapter 232 (Pamph,. L. 1928), provided as follows: “Where there has been a trial and a verdict of a jury or determination of a court sitting without a jury, it shall be the duty of the court to impose sentence within thirty days after the rendition of such verdict or determination.”

It is argued that the effect of these legislative enactments is to require the court to impose sentence within thirty days after the rendition of a verdict, and that although the defendant in this case was seeking to have his conviction set aside the court must impose the sentence within the time fixed by law, although it was considering the matters urged on the defendant’s rule, and thereby lost its power to impose sentence. Thus, the defendant by trick could defeat the state of its remedy.

It is inconceivable to suppose that the legislature intended any such result. As Vice-Chancellor Garrison pointed out in State v. Osborne, supra, the power to suspend sentence where the defendant does not object, resides in the courts of this state. It certainly resides in these courts where defendant, by his own motions, has delayed the imposition of sentence. Otherwise, the legislative enactment, which was obviously intended to be merely directory, would result in fugitives from justice and those who sought a new trial by rule to show cause on motions in arrest of judgment securing a release from the penalties of the law and would, by the mere passage of days, secure immunity from punishment.

We see nothing in sections 53, 54 or 56 of the Habeas Corpus act (2 Comp. Stat., p. 2651) that makes it mandatory upon us to issue a writ of certiorari in a case such as this. Certainly the practice was not so understood by Vice-Chancellor Garrison in State v. Osborne, and no reason has been suggested to us to the contrary.

The writ will be denied.


text:
    VALEMONT REALTY CORPORATION, A CORPORATION OF NEW JERSEY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMISSIONERS OF THE STATE OF NEW JERSEY, DEFENDANT.
    Argued October 7, 1930
    Decided January 8, 1931.
    Before Justices Campbell and Bodine.
    Eor the prosecutor, Osborne, Cornish & Scheclc.

    Eor Rockland Electric Company, Carey & Lane.

   Pee Curiam.

The prosecutor seeks to review an order of the board of public utility commissioners purporting to be made pursuant to Pamph. L. 1925, p. 550, granting to the Rockland Electric Company a certificate of approval for the condemnation of a right of way across lands of the Valemont Realty Company, in Bergen county. The act, so far as pertinent, provides as follows: “Any corporation now or hereafter organized and existing under and by virtue of any law of this state for the purpose of supplying electricity for light, heat or power, and defined as a public utility * * * in case it cannot acquire any land or interest therein which may be reasonably necessary for the distribution of electricity to the public * * * by reason of disagreement as to the price * * * may take or acquire such land or interest therein as may be reasonably necessary for a right of way under the Eminent Domain act of 1900.”

“None of the rights and powers conferred by this act shall be used or enforced by any such corporation until and unless such corporation shall have applied to the board of public utility commissioners of this state upon the petition of such corporation and the board of public utility commissioners after due notice * * * shall have found that the property desired is reasonably necessary for the service, accommodation, convenience or safety of the public, and that the taking of such property is not incompatible with the public interest and would not unduly injure the owners of private property.”

The Eockland Electric Company filed its petition May 31st, 1928. It had previously offered the Yalemont Eealty Company $4,400 for a proposed right of way to be used for a transmission line—the right of way to be one hundred feet wide and two thousand two hundred feet long. The land company making some objection to the location of. the route, an amendment to meet its convenience was suggested before the hearing commenced. On October 31st, 1929, before the Yalemont Company began its defense, a formal amendment was made abandoning the original route and seeking the right to condemn an alternative route. During the hearing an offer of $3,000 was made for this route. It later transpired that objection was made to the board taking action on the amended route because no offer of purchase had been made before the petition was filed. The board decided to consider the matter on the original petition, and found that the lands were reasonably necessary for the service, accommodation, convenience or safety of the public, and that the taking of such property was not incompatible with the public interest and would not unduly injure the owners of private property.

The proceedings before the board consumed many days. The original petition contained allegations of every jurisdictional fact. The amendment was made to suit the convenience of the prosecutor. Of course, no offer to purchase the route could be made in advance of filing the petition since the amended route was a mere compromise suggested to meet the convenience of the land company, and not suggested till'after the petition was filed. No reason is given why the board, when their jurisdiction was questioned because of the amendment, could not consider the matter on the original petition.

Certainly, the board with the parties before it could consider the evidence bearing upon the petition filed and make the proper adjudication. The issue before the board was the matter of a right of way across the Yalemont Realty Company’s land. A written petition was before the board. A bona fide offer appears to have been made for a route. The testimony adduced showed the public necessity and the lack of undue private injury. The Realty Company cannot complain because a less favorable route was allowed because it, at the close of the hearing, raised a technical objection to the jurisdiction of the board to consider a route suggested to meet its own convenience. The adjudication was responsive to the issues tendered by the petition filed and in accordance with the proofs adduced during long and tedious hearings.

It is apparent from our examination of the record that there was always and is now a disagreement as to the price to be paid for the land in question. It is also apparent that the Rockland Electric Company endeavored, but was unable to agree with the owner as to a fair price for the property.

“We cannot substitute our judgment for that of the board where there is evidence which supports the order under review.” Commonwealth Water Co. v. Board, 1 N. J. Mis. R. 355, 356.

The statute provides that in case the land cannot be acquired from the owner “by reason of disagreement as to the price,”' the board shall have jurisdiction. Prosecutor contends that there was no offer of a price which included consequential damages. This contention, even though sound, does not affect the jurisdiction of the board. The board found that there was a bona fide offer, and that the refusal to accept constituted a disagreement as to price. In this, we think there was no error. A condemnation commission will no doubt consider all the elements necessary to the award of just compensation. The board is solely concerned with a disagreement as to price.

The evidence supports the Endings of the board that the property is reasonably necessary for the service and is not incompatible with the public interest, and that its taking does not unduly injure the owners thereof. It is, however, suggested that the amended route would occasion less injury to the Valemont Company. We hardly agree that such circumstance amounts to an undue injury to the company. But at all events, the change of routes was made necessary by the Realty Company’s objection to a consideration of the amended route. Every opportunity was offered to open the case for the purpose of introducing further evidence. The length of the record indicates that there was little more that could be said on the subject, and that all the relevant evidence was adduced. The Realty Company may not complain of its own action.

Lastly, it is argued that the statute does not by the words “for the distribution of electricity to the public” embrace transmission lines and that hence the Rockland Electric Company does not come within its terms, and the board was without jurisdiction. Transmission lines are of no purpose save to distribute electricity to the public. The public are the ultimate consumers of the current carried by transmission lines, and the construction contended for by the prosecutor is far too narrow. The legislature certainly never intended to so divide the distribution of electricity into different classes of wires.

We find no merit in the other points suggested.

The order under review is sustained.


text:
    JOSEPH FEDORKO, RELATOR, v. CITY OF BAYONNE ET AL., RESPONDENTS.
    Submitted October 17, 1930
    Decided January 15, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the respondents, Thomas A. McCarthy.

   Per Curiam.

We find no state of the case in this matter, although'the rule was returnable on October 7th and the case was marked on briefs, which have been submitted.

There are no facts, nor is there any evidence of facts, before us. The moving affidavit has lost all evidential force (Peer v. Bloxham, 82 N. J. L. 288) and there is nothing before us by way of stipulation, or deposition, or any documentary evidence, to support the rule. Consequently it will be discharged, with costs.

It may be pertinent to add that the brief submitted for the prosecutor is not signed by a counselor-at-law, and hence should not be considered even if the state of the ease were before us. Leaver v. Kilmer, 54 Atl. Rep. 817; Duysters v. Crawford, 69 N. J. L. 229; Hazard v. Phoenix Co., 78 N. J. Eq. 568; Moore v. Bradley Beach, 87 N. J. L. 391, 395.


author: Per Cttriam.

text:
    WALTON SHERMAN AND FRANK M. BAXTER, PROSECUTORS, v. CITY OF LONG BRANCH, RESPONDENT.
    Decided January 14, 1931
    Before Justices Parties, Campbell and Bodine.
    For the prosecutors, James D. Carpenter, Jr.

    For the respondent, William L. Edwards.

   Per Cttriam.

These two writs bring up for review two ordinances of the city of Long Branch. The first (case 254) is known as the highway construction ordinance, and the second (case 255) as the bond issue ordinance. The title of the first is, “An ordinance providing for the laying out, widening, straightening, improving and constructing a new highway or avenue from the Monmouth Beach line southerly to the intersection of West End avenue with West End Plaza and to acquire as much land or real estate or interest therein as may be necessary for the making of such improvement, either by purchase or condemnation in the manner prescribed by law; and providing for the grading, curbing and paving of said highway or avenue so laid out and constructed and for the levying of assessments on the property especially benefited thereby,” and besides providing for the things expressed in its title, appropriates the sum of $2,000,000 to meet the cost of the improvement. The title of the second is, “An ordinance authorizing the issue of two million dollars highway bonds of the city of Long Branch, N. J.” They are what are known as companion ordinances.

At the outset we will dispose of two contentions of the respondent looking to a dismissal of the writs.

The first is that the prosecutors have no special personal or property interest that will be affected nor will they suffer any special injury beyond that which will be in common with the general public.

It is conceded that prosecutors are taxpayers of the city and it would seem to be certain that some part of the cost of the proposed improvement will fall upon the city at large and eventually be paid from funds raised by general taxation. In fact the bonding ordinance provides that one-half of the proceeds from the issue is to be devoted to that purpose.

Respondents rely upon and cite Tallon v. Hoboken, 60 N. J. L. 212; Ford v. Bayonne, 87 Id. 298, and Union Towel Supply Co. v. Jersey City, 99 Id. 54, but we conclude that the applicable rule is to be found in Danforth v. Paterson, 34 Id. 163; City Publishing Co. v. Jersey City, 54 Id. 437, and Jordan v. Dumont, 105 Id. 197, which disposes of the contention adversely to the respondents.

The second point urged in this direction is that the prosecutors are in laches because the highway construction ordinance was introduced December 17th, 1929; finally passed December 31st, 1929, and thereafter published on January 3d, 1930, as required bjr the Walsh act (Pamph. L. 1911, p. 462), as superseded by section 24, article 37 of the Home Rule act. This provides that an ordinance of this character shall become operative ten days after publication after final passage unless within that period protests by taxpayers representing ten per centum of the assessed valuation shall have been filed, in which event such ordinance shall remain inoperative until a proposition for the ratification thereof shall have been adopted by a majority of the qualified voters voting at an election called for that purpose.

The respondent insists that inasmuch as no action was taken in this manner the prosecutors are precluded from having the present writs of review. We find this to be not so. The situation is not analogous to that in Holmes v. Morris, 16 N. J. L. 526; Traphagen v. West Hoboken, 39 Id. 236, or Hendey v. Ackerman, 103 Id. 305. The statutory provision relied upon simply presents a method of determining, by a vote of the qualified electors, whether they approve or disapprove of the public policy and judgment of the governing body as expressed by such municipal act, and does not reach to a review of such an ordinance and the attending proceedings with an object to set them aside because of lade of authority in or legal errors committed by the municipal body.

Certiorari is the proper means to bring about and accomplish such a review.

Turning to the reasons argued by the prosecutors, they are:

First-—1The act (Pamph. L. 1929, ch. 171) under which respondent assumes to act, is unconstitutional:

(a) Because it violates article 4, section 7, paragraph 11 of the state constitution which provides: “The legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say, laying out, opening, altering and widening roads or highways” “regulating the internal affairs of towns and counties * * *.”

(b) Because it contravenes article 4, section 7, paragraph 4 of the state constitution which provides “* * * Every law shall embrace but one object and that shall be expressed in the title * * *.” Long Branch adopted and became incorporated under “An act relating to, regulating and providing for the government of cities” (Pamph. L. 1903, ch. 168), and, on March 12th, 1912, adopted the provisions of the Walsh act. Pamph. L. 1911, ch. 221. The statute of 1929, supra, which it attacked, is entitled: “A supplement to an act entitled ‘An act relating to regulating and providing for the government of cities/ approved April 8th, 1903.” It is a supplement, therefore, to the act under which Long Branch is incorporated. It was approved April 23d, 1929, took effect immediately and is as follows :

“Any city now or hereafter governed by the provisions of the act to which this act is a supplement, in addition to the powers by the said act conferred, shall have the power to manage, regulate and control its finances and property, real and personal; to borrow money, and negotiate temporary loans in anticipation of taxes and other revenues, and to authorize, provide and pay for public improvements, including the acquiring, laying out, widening, straightening, improving, constructing, reconstructing and maintaining streets and highways, and to issue bonds, notes and other evidences of debt in payment thereof, which said bonds, notes and other evidences of debt may be refunded or repaid, in whole or in part, from benefit assessments, levied on property in such city, benefited thereby, which said bonds, notes or other evidences of debt, so issued, for the purposes of this act, shall not he included as part of the debt statement, or computed in the net debt of the municipality, or in anywise subject to the provisions of an act entitled ‘An act to authorize and regulate the issuance of bonds and other obligations and the incurring of indebtedness by county, city, borough, village, town, township or any municipality governed by an improvement commission/ approved March 22d, 1916, and the acts amendatory thereof and supplemental thereto.” Under the first contention of unconstitutionality it is urged that up to the present time, Long Branch is the only municipality that has adopted and is operating under the City act of 1903, supra, and that the supplement of 1929, among other things, exempts bonds issued for road and highway purposes from the debt limit provided for and fixed by the Pierson act (Pamph. L. 1916, p. 538, § 12, 3, amended by Pamph. L. 1929, ch. 174.), thereby singling out, separating and setting apart Long Branch as the only municipality not affected and controlled by the Pierson act, which by its terms, otherwise, applies to every class of municipality in the state.

There appears to be no effort on the part of the respondent to conceal or refute the fact that the very purpose of the supplement is to relieve any city operating under the City act of 1903 from the requirements and restrictions of the Pier-son act, and, in fact, such an effort would have been abortive for such is the only conclusion that can be reached from its plain language.

It is true, as prosecutors’ counsel argues, that the Pierson act applies, in the broadest generality, to all municipalities. But if that act, by its terms, had excluded from its operation any cities or municipalities, belonging to a recognized class, or had it provided that indebtedness of municipalities, or those of any one or more class, issued to meet the expense of improvements such as provided for in the legislation now under attack, would that act thereby fall as prohibited by our constitution? Undoubtedly not. Nor do we think that the act in question has any such infirmity, because it does no more, it seems to us, than take cities incorporated under the City act of 1903 out of the operation and control of the Pierson act. It may well be that it is not desirable legislation and may be the initial movement to remove, one after another, municipalities of the several recognized classes from the requirements and control of the Pierson act, so that, eventually, it will completely lose its value and effectiveness. But, it would seem, with this the courts are not concerned, but it is rather a matter requiring the exercise of legislative discretion and judgment.

In Harrington Township Road Commission v. Harrington Township, 55 N. J. L. 327, it was held: “A law framed in general terms is not specialized by the fact that it exempts another general law from its operation.”

In Booth v. McGuinness, 78 N. J. L. 346, it is said: “In the exercise of the judicial function of declaring an act of the legislature unconstitutional, the ultimate question is not whether the court regards the constitution as permitting the act, but whether the constitution permits the court to disregard the act; the test being not the court’s judgment as to the constitutionality of the act but its conclusion as to what judgment was permissible to the legislative branch of the government in which the constitution has reposed the duty of making 'such judgment as an incident of the law-making power; hence, if there be a permissible doubt as to the existence of the constitutional limitation invoked against the validity of an act, the courts will not declare the act to be contrary to the constitution.”

The contention that the act is unconstitutional because it embraces more than one object and its title is not sufficient is based Upon this, that while it is a supplement to the City act of 1903 and by its first object quite appropriately enlarged the powers of cities of that class in the management, regulation and control of their finances and properties, and with respect to the financing of street and highway improvements, nevertheless it has a second object, which is the exempting of such obligations from the provisions, requirements and limitation of the Pierson act, thereby making this legislation constitutionally defective for the reasons stated.

In Boniewsky v. Polish Home, 103 N. J. L. 323 (at p. 332), it was held that the construction to be placed upon the constitutional provision here invoked is, “that the leading subject of a statute should be fairly expressed in its title,” citing State Board v. Phillipsburg, 83 N. J. Eq. 402; affirmed, 85 Id. 161; and further, as held in Gottuso v. Baker, 80 N. J. L. 520: “Under our constitutional provision the title of an act is in the nature of a label by which the object of the act is displayed; it is not a table of contents or an index to everything that the statute contains.” This was approved in the Court of Errors and Appeals in Board v. Tait, 81 N. J. Eq. 161.

Measured by these standards, we conclude that the statute in question is not unconstitutional for either of the reasons advanced and urged.

Second. Tlie prosecutors next urge that the ordinances are repugnant to section 13 {Pamph. L. 1903), as amended by Pamph. L. 1901, ch. 103, being the City act before referred to, under which Long Branch was incorporated.

The highway improvement ordinance cannot be, in anywise, affected by this contention. The ordinance does not point to, or by its terms, rest upon any particular statute as the authority for and basis of its enactment, and, therefore, as held in Livermore v. Millville, 85 N. J. L. 655 (at p. 651). “If there was and is any legislation permitting such a bond issue for the purpose indicated, the city is entitled to rely upon it without specilic reference thereto in the ordinance.” It is apparent that such highway ordinance is authorized by the Home Rule act (Pamph. L. 1911, ch. 152), which supersedes the Walsh act. Pamph. L. 1911, p. 462; Public Service v. General Omnibus, 93 N. J. L. 344; Wethling v. Orange, 94 Id. 36, and Lombardo v. Lodi, 1 N. J. Mis. R. 12. But again it is urged that adoption of this ordinance under the Home Rule act cannot be justified because notices of intention to adopt the ordinance were not mailed to persons whose property would be subject to assessment for the improvement as required by Pamph. L. 1929, ch. 281, p. 614, § 1, If 6. Such ordinance having been in ail other respects regularly and properly adopted under the terms of such statute, we are unable to see how these prosecutors can complain or successfully raise this question inasmuch as their lands are concededly so far beyond the line of the proposed improvement as to be outside of the assessment zone. The statute itself provides that “failure to mail the notice herein provided for shall not invalidate any ordinance, proceeding or assessment,” and this was construed by this court in Root v. Jersey City, 5 N. J. Mis. R. 913, adversely to prosecutors’ contention. But, if that were not so, Pamph. L. 1930, ch. 121, approved April 15th, 1930, validates any improvement ordinance adopted by a city for the improving and constructing of highways “notwithstanding any omission or defect in said ordinances or notice thereof; provided said ordinances were adopted and notice thereof given by publication in newspapers as required by law." Such legislation, it seems to us, rests entirely in legislative discretion and cures any defect respecting the mailing of notices of intention to adopt.

The irresistible conclusion is that this legislation excuses and cures any defect in the highway improvement ordinance, and that it does so even if the 1929 supplement to the City act of 1903 is unconstitutional, and even if the fact should be that it was not adopted in strict conformity with the Home Rule act amendment of 1929.

We conclude, therefore, that the highway improvement ordinance is a valid municipal act, first, because the supplement of 1929 to the City act of 1903 is constitutional, and second, that it is so under the Home Rule act amendment of 1929, section 1, paragraph b, notwithstanding failure to give notice of intention to adopt it.

Turning now to the bonding ordinance, it is urged that it cannot be justified or find support under the City act of 1903 because section 73 thereof fixes the term at not exceeding thirty years; the rate of interest at not more than four and one-half per cent, per annum, and before issuance of such bonds the question of so doing shall be submitted to the legal voters, and the total shall not exceed fifteen per cent, of the value of property for taxing purposes in such city. It seems to be conceded that the financing of the improvement in question as provided for in this ordinance is not in accord with the provisions and limitations of such statute. Obviously it is not and it must rest for authority to support it upon the Pierson act. Pamph. L. 1916, p. 525. In that respect) prosecutors urge, the ordinance cannot find legal support for the reason that the financing contemplated will cause the debt limit to be exceeded and because no supplemental debt statement was filed prior to the passage of the ordinance.

Respondent says that the financing proposed by this ordinance will not produce an excess of indebtedness limited by the statute and that prosecutors have not shown that it will, and that the burden is theirs to so show and further urge that it has not been shown that a supplemental debt statement was not filed prior to the passage of the ordinance.

The return made to the writ does not include such supplemental debt statement, and in that situation we think we are obliged to assume that none was filed. We also conclude that the burden of establishing whether or not the debt limit will be exceeded does not rest upon the prosecutors but would appear to be a precedent requirement resting upon the municipality under paragraph 2 of section 12, which expressly requires: “Prior to the passage of any ordinance or resolution authorizing notes or bonds under this act the chief financial officer shall make and file a supplemental debt statement * * An exception is therein contained when the notes or bonds are exclusively for certain purposes. The purposes referred to do not include the purposes covered by the ordinance in question.

We think this provision of the Pierson act presents a positive requirement, and does not leave obedience thereto discretionary or in anywise excusable. Its undoubted purpose is to present substantial evidence of the financial condition of the municipality for the use and benefit of taxpayers, purchasers of its securities and all other interested parties; information, otherwise difficult, if not impossible for such parties to obtain. To repeat, it seems to us that this requirement is mandatory and that it does not lie in the hands of the chief financial officer of the municipality to say that a proposed financing will not cause an exceeding of the debt limit. On the contrary, there is a plain, unbending requirement that he shall cause such a statement to be filed annually, and a supplemental statement to be filed “prior to the passage of any ordinance * * * authorizing * * * bonds under this act * *

Technical as this ground may appear to be we conclude it is substantial and non-compliance cannot be excused.

But respondent urges that notwithstanding such ordinance may not have been adopted in strict compliance with the Pierson act, supra, it is nevertheless valid because it is adopted under Pamplb. L. 1930, ch. 128, which provides that when any municipality has been authorized by any act to issue notes or bonds for any public work or improvement and such act is-silent as to the method or mode of procedure to be adopted, it shall conform in all respects to the provisions of the Pier-son act. This is well enough and is undoubtedly the license and authority for the respondent to resort to that act. It also urges Pamph. L. 1930, ch. 126, as validating such ordinance. That statute provides that all proceedings adopted by cities of this state before the passage of the act for the issuance of bonds for the purpose of financing a highway “are hereby validated, ratified and confirmed, notwithstanding that ordinances authorizing such bonds shall not have been in compliance with the provisions *• * *” of the Pierson act, “and the issuance of such bonds pursuant to said act and this act and by virtue of said ordinances is hereby authorized, validated and approved; provided, that an ordinance authorizing such bonds has been adopted and published by such city in accordance with the provisions * * *” of the Home Rule act, supra.

We are at an absolute loss to understand how this act can possibly validate the ordinance in question. The Home Rule act {Pamph. L. 1917, ch. 152) contains no provisions respecting the issuing of bonds. The nearest approach to any such authority is section 1, subdivision a of article 14, which authorizes the adoption of ordinance “to manage, regulate and control the finances and property, real and personal of the municipality.”

This ordinance we conclude cannot be justified under the City act of 1903 (Pamph. L. 1903, ch. 168), nor the Walsh act (Pamph. L. 1911, p. 462) as to which it may be said that it contains no bonding provisions, nor the Home Rule act. Pamph. L. 1917, ch. 152. It can only find authority in the Pierson act (Pamph. L. 1916, p. 525), and as has been shown was not adopted in conformity to the provisions of that act.

This ordinance (bond issue case 255) must therefore be set aside and the highway construction ordinance (ease 254) affirmed and approved, and the writ bringing it up for review dismissed.


author: Lloyd, J.

text:
    Max Snider, complainant-respondent, v. Freehold Theatre Company, Walter Reade and Trenton Theatre Building Company, defendants-appellants.
    [Submitted October term, 1929.
    Decided May 20th, 1930.]

      Messrs. Turnen & Turnen (Mr. Jonas Turnen, of counsel), and Mr. Samuel Kaufman, for the appellants.

      Mr. John L. Ridley, for the respondent.
   The opinion of the court was delivered by

Lloyd, J.

The bill in this case was filed by the owner of a threatre building in Freehold for the cancellation of a lease entered into between complainant and Clarence A. Cohen (the lease •subsequently assigned to the Freehold Theatre Company) and for a decree compelling the surrender of the premises. As incidental thereto the bill prayed the cancellation of a mortgage held by the theatre company, adjudication of the damage to the building by waste, failure to repair, removal ■or any other cause; that the defendant be restrained from removing any of the contents of the building; that the ■court adjudicate what provisions of the lease have been violated, the amount of damage suffered by the complainant, and finally (inconsistently as it would seem) to compel the defendants to operate the theatre.

Accompanying the bill were affidavits of the complainant, and one Satterthwait, averring the truth of the matters set up in the complaint. An order against the defendants was thereupon granted requiring them to show cause why they should not be enjoined according to the prayer of the bill and why the lease and assignment should not be canceled, the tenants removed therefrom and compelled to pay the rents and to recompense the complainant for any damages suffered by him.

To the affidavits there was filed the answering affidavit of Walter Eeade denying the truth of the averments in the bill and affidavits filed by the complainant. On the return of' the order to show cause a further order was made requiring the defendants to forthwith vacate the building and surrender the same to the complainant, the possession thereby given to the complainant to continue until the further order of the court. The defendants appeal from so much of the-order as compels them to vacate the theatre and awards-the immediate possession to complainant.

Our examination of the bill and the affidavits convinces us that this order was wholly without legal or equitable justification and contrary to repeated adjudications of this-court, as exemplified in the cases of Camden Horse Railway Co. v. Citizens Coach Co., 29 N. J. Eq. 299, and McMillen v. Kuehnle, 78 N. J. Eq. 251. In the former it is said that-“the general rule, subject to but few exceptions, is that if the facts constituting the .claim of the complainant for the immediate interposition of the court are controverted, under oath by the defendant, the court will not interfere at the initial stage of the cause.” As a rule of practice, therefore, it Was-forbidden by the legal principle enunciated in these cases-that the equities of the bill, if there were any, should be-determined and a complete change of the status of the parties, effected at such stage of the proceeding.

Fundamentally, however, we think the case presented no grounds for the intervention of a court of equity and that that court was wholly without jurisdiction in the cause. It was the ordinary case of a landlord complaining of a breach of contract on the part of his tenant and of a trespass in the carrying away of some of the personal equipment of the leased premises. In the third edition of Adams’ Eq. 17 b it is said: “The jurisdiction for rescission and cancellation (of contracts) arise where a transaction is vitiated by illegality or fraud, or by reason of its having been carried on in ignorance or mistake of facts material to its operation,” and in a foot-note it is added by Henry Wharton, the American editor, that “a contract can never be rescinded except in case of fraud or palpable mistake.” The lease in the present case is admittedly valid. No fraud or illegality is alleged in its making. The breaches of the contract are alone the subject of complaint. For these the lease itself as well as statutory and common law provided complete redress.

While waste is asserted to have been committed, its continuance, or that the defendants intend to commit waste in the future, is not averred or proved, and in such situation remedy must be sought in the courts of law (Ware v. Ware, 6 N. J. Eq. 117; Lippincott v. Barton, 42 N. J. Eq. 272), although where a court of equity otherwise acquires jurisdiction, damages for the injuries caused by trespass or waste may be awarded as incidental to the main case. Tate v. Field, 56 N. J. Eq. 38.

The order is reversed with the direction that the bill be dismissed.

For affirmance—None.

For reversal—The Chiee-Justice, Trekchard, Parked, Black, Campbell, Lloyd, Case, Bodihe, Yak Buskibk, McGlekhok, Kays, Heteield, Deak, Wells, JJ. 14.