text:
    JOHN F. DOOLEY (SOPHIA DOOLEY, ADMINISTRATRIX), PLAINTIFF-APPELLANT, v. GEORGIA CASUALTY COMPANY, DEFENDANT-RESPONDENT.
    Submitted March 22, 1923
    Decided October 29, 1923.
    Insurance — Cancellation for Failure to Fay Premium — Payment of Premium After Loss — Loss, Notice of Necessary.
    On appeal from the Hudson County Common Pleas Court.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the appellant, McDermott, Enright & Carpenter.

    For the respondent, Lazarus & Brenner and Edward L. Katzenbach.

   Per Curiam.

This is an appeal from the Hudson County Court of Common Pleas, where judgment was- directed for the defendant.

Dooley, decedent, had an insurance policy, insuring him against automobile accidents, with the defendant company. On September 26th, 1918,'the company gave notice of cancellation to Dooley because of non-payment of premium, and on September 28th Dooley signed and returned registered receipt of letter of cancellation. On October 7th Dooley’s automobile struck and killed one Sulzman. On October 9th agents of the company in Baltimore received a check, obviously mailed October 8th, from one Driscoll, agent for Dooley, for the amount of the premium. ¡ This check was received without any knowledge upon the part of the company or its agent of the accident, and was deposited October 10th and returned “no funds.” October 18th it was again deposited and collected.

October 21st suit was brought for Sulzman against Dooley. October 23d defendant’s agent in Baltimore received the summons and complaint. October 29tli report of accident was received by the agents of the company in Baltimore. October 31st the agents in Baltimore returned the summons and complaint, stating that they should not defend the action because the policy had been canceled, and also because no notice of the accident had been given as required by the policy.

After recovery of judgment against Dooley, Dooley brought this suit against the company. The trial judge directed a verdict for the defendant, and we think properly.

We think that the policy, by the undisputed proof, was canceled, and that the attempted revival of the policy after the accident of which the company had no notice, was futile.

We also think that the direction of a verdict was justified because of failure to comply with the clause in the insurance policy requiring that upon the occurrence of an accident the assured shall give immediate written notice thereof with the fullest information obtainable at the time to the company or its duly authorized agent.

The proofs seem to disclose pretty conclusively that the first intimation the defendant had of the accident was sixteen days after the accident, and that the only formal written notice was given twenty-two days after the accident, and accompanying it was an explanation that notice had not been given theretofore because of the illness of Mr. Dooley’s agent Driscoll.

Some complaint is made in the brief of the refusal of the trial judge on rebuttal to permit Dooley to prove some sort of notice, prior to the formal notice, given by Driscoll by telephone, or on a “white piece of paper.”

Our examination of the matter satisfies us that the, action of the trial judge was not legally erroneous, first because it was not rebuttal, but alsol for the meritorious reason that there appears to have been no offer of testimony showing immediate written notice with fullest information obtainable.

The judgment will be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CENTRAL RAILROAD OF NEW JERSEY, PLAINTIFF, v. UNITED STATES STEEL PRODUCTS COMPANY, DEFENDANT.
    Argued February 23, 1923
    Decided October 29, 1923.
    Negligence — Navigation, Responsibility of Pilot — Weight of Evidence.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, Treacy & Milton.

    Contra, William A. Barkalow and Charles E. Miller.

   Per Curiam.

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

A steamship owned by the defendant collided with plaintiff’s drawbridge, and this suit was brought to recover damages therefor.

It is sought to set aside the verdict on the ground that it is contrary to the weight of the evidence and contrary to the charge of the court, and that under the evidence the verdict should have been for the defendant.

The vessel at the time of the collision was in charge of a pilot and it seems to be agreed that for the purposes of this case we are to assume that the court properly charged that if the collision was the result of the negligence of the pilot the defendant is not liable.

The contention of the defendant is that the evidence by its great weight showed that the collision was the result of the negligence of the pilot, and hence that the 'judgment should be set aside.

We do not take the view that by the weight of the evidence the collision was the result of the negligence of the pilot. We think that it waá fairly open to the jury to find that the accident was caused by the failure of the ship’s rudder to function properly, either because it was out of order, or because the quartermaster at the wheel failed to comply with the pilot’s orders. The jury evidently so found, and we find no fault with such finding.

It seems very improbable that the pilot, in broad daylight, on a clear day, with no very troublesome wind or tide, should have failed to have given the order, which plainly should have been given, to have pointed his vessel so as to get into the proper position in deep water to make the draw. The pilot himself says that he gave the order to put the wheel hard to starboard when he was alongside of the black buoy. The testimony is very persuasive that the rudder did not move in response to such an order, if it was given This, seems to appear from the testimony of those in a position to observe, and also from what happened immediately before and following the collision.

. We think that it was therefore a very natural thing for the jury to conclude that for some reason this order was not communicated by the usual instrumentalities to the rudder, and that this was due either to failure of the quartermaster to obey the pilot’s order or to the fact that the- steering gear was defective.

In short, we cannot say that this verdict is against the great weight of the evidence, nor that it was against the charge of the court.

The rule, will be discharged.


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    MATTHES LAMOS, PLAINTIFF-RESPONDENT, v. NEW YORK TELEPHONE COMPANY, A CORPORATION, DEFENDANT-APPELLANT. JOHN REIMESCH, PLAINTIFF-RESPONDENT, v. NEW YORK TELEPHONE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted July 5, 1923
    Decided October 29, 1923.
    Negligence — Street Excavations — Proper Protection — Weight of Evidence.
    On rules to show cause why verdicts in favor of the plaintiffs should not be set aside.
    Before Justices Trenchard and Parker.
    For the rules, Smith & Slingerland.

      Contra, Weinberger & Weinberger.

   Per Curiam.

These suits grew out of the same facts and were by agreement tried together. In each case the plaintiff recovered a verdict and the defendant has these rules to show cause why new trials should not be granted.

On March 14th, 1922, at about nine p. M., plaintiff Reimesch drove his Ford automobile along Summer street in Passaic, and into an excavation made by the defendant under a permit from the county engineer. The plaintiff Lamos was sitting beside him in the car and both plaintiffs claim for consequent damages.

It appears that it was a cloudy andi lainy night. The excavation was in Summer street, just beyond a cross street. The excavation itself was about ten feet long, eight feet wide and nine feet deep. It seems to have been guarded on the sidewalk side by boards and from Summer street by dirt piled up on the edges, and the obstruction extended into the street about fourteen feet. The mound around the edges of the excavation was from one and one-half to five feet high.

All the witnesses agree that there were at least four red lights, one at each comer of the excavation. One of plaintiff’s witnesses testified that on the side where the machine went in there were only two lights, one at each end. Most of the other witnesses, however, say that there were more lights, some saying three on that side, one in the middle; and the testimony of defendant’s witnesses seems to show pretty clearly that there were.at least eight lights by the excavation at the time of the accident.

It is argued, therefore, that on the question of negligence of the defendant company, and on the question of contributory negligence of the plaintiff Reimesch, the verdict was against the weight of the evidence.

Our conclusion is that upon the question of the negligence of the defendant the verdict was against the weight' of the evidence.

We think that the weight of the evidence is that the excavation was properly guarded. We think that the great weight of the evidence is that there were at least three lights there on the side that the car went in, one on each corner and one in the center. And it is significant that disinterested witnesses testify that shortly after the accident a smashed red lantern was found in the excavation, strongly indicating that when the car went down into the excavation it took the center light down with it.

We, therefore, feel constrained to grant a new trial in both cases.

With respect to plaintiff Reimesch, the driver of the car, we incline to think that the great weight of the evidence shows him to have been guilty of contributory negligence in any event. He testified that he saw no lights at all until after it was too late to stop. Considering the physical conditions surrounding the excavation it seems to us that this is very persuasive that he was either careless in his observations or was driving recklessly, considering the time, place and weather conditions.

Both rules will be made absolute.


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    BENJAMIN WOLEK, BY JOHN WOLEK, HIS NEXT FRIEND, AND JOHN WOLEK, PLAINTIFFS, v. PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Argued June 5, 1923
    Decided October 29, 1923.
    Master and Servant — Principal and Agent — Common Enterprise.
    On plaintiff’s application for a rule to show cause why a verdict in favor of the defendant should not be set aside.
    Before Justices Trenchard and Parker.
    For the plaintiffs, John W. Palmer.

    For the defendant, Leonard J. Tynan and William H. Speer.

   Per Curiam.

Our examination of the case results in the conclusion that the rule should be granted.

Among other points made are these:

(1) That the court erred in submitting to the jury the question whether the relationship of master and servant, of principal and agent, or mutual responsibility in a common enterprise, existed between the driver (of defendant’s truck) and Benjamin Wolek (the plaintiff).

(2) That the court erred in charging the jury as to what constitutes a common enterprise.

Since this is a mere application for a rule to show cause it is sufficient now to say that we are clearly of the opinion that these questions should be passed upon by the Supreme Court, and to that end the application for the rule to show cause should be granted. It is granted accordingly.


author: Newman, J.

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    Bergen County Circuit Court.
    George M. Mitchell, Sr., plaintiff, v. Hasbrouck Construction Company, a corporation, and United States Fidelity and Guaranty Company, a corporation, defendants.
    [Decided October 29th, 1923.]
    Surety — On Bond of Contractor to Owner for Erection of Building — Relation of Surety to a Subcontractor Who Claims Surety Company is Liable to Him for Principal’s.Default.

      Messrs. DeTurck & West, for the plaintiff.

      Messrs. McDermott, Enright & Carpenter, for the defendant United States Fidelity and Guaranty Company.
   Newman, J.

The complaint in this case alleges that plaintiff and dedefendant Hasbrouck Construction Company entered into a contract for certain work on a house which the construction company was to erect for one George Coogan, and that thereafter the construction company, as principal and defendant. United States Fidelity and Guaranty Company, as surety, entered into a bond to said Coogan and a building and loan association. The bond provided that the principal and surety “are held and firmly bound unto (the building and loan and Coogan) in the sum of $8,850.” And, after reciting that the construction company had entered into a contract with Coogan, the owner of the premises, for the construction of a dwelling thereon, provides further, that

“the condition of this obligation is such that if the principal shall faithfully perform the contract on his part, and satisfy all claims and demands incurred for the same, and shall fully indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense which the owner may incur in making good any such default, and shall pay all persons who have contracts directly with the principal for labor or material, then this obligation shall be null and void,” etc.

The complaint further shows that the construction company has failed to pay plaintiff moneys due him for labor and materials furnished by him to said construction company for the erection of said house.

Plaintiff, therefore, brings suit against the principal and surety on said bond, on the theory that the bond was a contract made for his benefit, and that he may therefore maintain an action thereon by virtue of section 28 of our Practice act.

Defendant United States Fidelity and Guaranty Company disputes his right, and moves to strike out the complaint so far as it relates to it.

Counsel for each party in their brief cite the same three cases, and profess to perceive in those case authority for their respective contentions. In my opinion, the case at bar is controlled by the opinion of our court of errors and appeals in the case of Standard Gas Power Corp. v. New England Casualty Co., 90 N. J. Law 570. In that case the gas company sued the casualty company on a similar bond given by the casualty company to the Passaic Valley sewerage commissioners, on the same theory as that maintained by the plaintiff in this suit. The only difference in the conditions of the bond was that, in that case, the principal was to "pay for all labor performed and furnished and for all materials used,” while in the case at bar the principal is to “pay all persons who have contracts directly with the principal for labor or materials.” In that case the court, as in other cases, pointed out that the statute relied on permitted such suit only by a third party not privy to the contract for whose benefit the contract was made, and did not extend to third parties who indirectly and incidentally would be advantaged by its performance. The court ftirther held that the bond in question was limited to an indemnity of the obligee, and was not made for the benefit of persons who furnished materials. As a reason for arriving at that construction, the court pointed out that the bond provided that the principal and surety were held and bound unto the commissioners, and further provided that the penal sum therein expressed was to be paid to the commissioners, and that the condition of the bond was a mere limitation and restriction upon the language found in the obligation thereof.

In that case the contract between the principal and the obligee was construed in connection with the bond, and as a part thereof. The complaint in the present case does not set forth the terms of the contract between the construction company and Coogan. In the absence of anything which would alter the plain meaning of the bond, I am constrained to find that this bond was made simply for the benefit of the obligees, and to protect them against any damages or liens or suits by reason of the failure of the principal to pay any laborers or materialmen, and that the benefits of its provisions do not extend to the plaintiff.

The motion will therefore be granted, with costs.


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    JOSEPH B. A. JOHNSON, PLAINTIFF, v. LEWIS M. CRANE, DEFENDANT.
    Decided November 7, 1923.
    Negligence — Not Error to Refuse to Admit in Evidence Record of Case in Workmen’s Compensation Bureau.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff, McCarter & English and Gerald M. F. McLaughlin.

    For the defendant, King & Vogt and Harold A. Price.

   Per Curiam.

The suit in this ease was brought to recover damages for personal injuries. The trial resulted in a verdict for the plaintiff for $1,000. The defendant obtained a rule to show cause and now writes down eight reasons for a new trial. The first of which is, the verdict is against the weight of the evidence. This we think is so and the rule to show cause should be made absolute. We may also add that it was not error for the trial court to refuse to admit in evidence the record and proceedings between the. above-named parties in the Workmen’s Compensation Bureau of New Jersey.

The rule to show cause is therefore made absolute.


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    EDWARD DAVIS, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Decided November 7, 1923.
    Negligence — Evidence Relating to Damages — Measure of Damages.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff, Alexander M. MacLeod and Ward & McGinnis.

    For the defendant, Leonard J. Tynan.

   Per Curiam.

The suit in this case was brought to recover damages for personal injuries. The trial resulted in a verdict for the plaintiff for $7,500.

The defendant obtained a rule to show cause and writes down three reasons for a new trial.

The plaintiff was injured on East ,33d street, Paterson, on May 3d, 1921. As a one-man trolley car passed by a standing automobile, the front door flew open, the steps dropped and in consequence the car crashed into the side of the automobile severely injuring the plaintiff, who was standing by the side of the automobile.

The liability of the defendant company is conceded. It is argued, however, the damages axe excessive and it was error to permit the plaintiff to testify as to his income before and after the accident. This was proper under such cases as Bartow v. Erie Railroad Co., 73 N. J. L. 12; Robinowitz v. Hawthorne, 89 Id. 308.

We think the damages assessed by the jury are not excessive under the evidence.

The rule to show cause is discharged, with costs.


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    GERTRUDE WOODS, PLAINTIFF, v. PUBLIC SERVICE GAS COMPANY ET AL., DEFENDANTS.
    Argued June 6, 1923
    Decided November 7, 1923.
    Negligence — Injury Resulting Through Defendant’s Agent Leaving Open a Trap Door Where Plaintiff Was Employed.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff, John W. Palmer.

    For the defendants, Leonard J. Tynan.

   Per Curiam.

The suit in this case was brought to recover damages for personal injuries. The tiial resulted in a verdict for the plaintiff for $4,000. The defendant obtained a rule to show cause and writes down sixteen reasons for a new trial.

The plaintiff was employed as a waitress in a restaurant at No. 18 Main street, East Orange, on November 28th, 1921. She went to the rear of the restaurant to get some cracked ice. After that a trap door was raised by an agent of the defendant company for the purpose of entering the cellar'to read a gas meter. On her return she fell through the opening left by the raising of the trap door to the cellar and sustained severe injuries.

We find no error in the record and no reason for disturbing the verdict. The points involved call for no discussion.

The rule to show cause is discharged, with costs.


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    ALMA GOODNO v. JOHN FABIAN.
    Decided November 7, 1923.
    Negligence — Accident Resulting from Upset of Motorcycle to Avoid Collision — Weight of Evidence — Verdict Contrary to Charge — Allegation That Complaint Did Not Allege Permanent Injury.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, Harold A. Price.

      Contra, Alexander Simpson.

   Per Curiam.

Miss Goodno, a young woman twenty-four years of age, was injured while riding in the side car of a motorcycle, which was driven by one Biers on the Mine Hill road from Lake Hopatcong to Dover. Biers was driving on the right-hand side of the road. As the motorcycle approached a crossroad the defendant’s car, which was traveling in the opposite direction, turned off at the intersection of the two roads for the purpose of taking the cross-road. Biers, in order to avoid a collision, swung his motorcycle sharply to the right, and in doing this upset the car, inflicting the injuries for which Miss Goodno sues. The trial court left it to the jury to determine from the proofs in the case whether the accident occurred by reason of the negligence of the defendant in swinging his car across the front of the motorcycle without first giving warning of his intention to do so. The jury found this to be the fact and awarded Miss Goodno $7,500 as compensation for the injuries which she received.

The first contention made before us is that the finding of the jury on the question of the negligence of the defendant is against the weight of the evidence. Our examination of the proofs leads us to the conclusion that this contention is not well founded.

The next reason for reversal is that the verdict of the jury was contrary to the charge of the court upon the point just referred to. An examination of the charge itself satisfies us that the contention of' counsel is not in accordance with the fact.

Next, it is said that the trial court improperly permitted the jury to award damages for permanent injuries and future pain and suffering. This reason is rested upon the alleged failure of the complaint to indicate that the plaintiff claimed compensation on any such basis. There is nothing in this point. The complaint alleges that the plaintiff was injured in and about her head and face; that her teeth were knocked out, her nose broken, and that she was injured about her shoulder, body and legs. These facts speak for themselves on the matter of the permanency of some of the injuries, and no additional force would have been given to the complaint by an assertion in the complaint itself that they were in fact permanent. It would not be necessary, for instance, where the suit was brought to recover for the loss of an arm, to aver in the complaint that the injury was permanent.

The last point is that the verdict is excessive. Although it is large, we cannot say — in view of the fact that not only has the earning power of the plaintiff been diminished, but that her face has been permanently disfigured, and that she must go through life with that disfigurement apparent — ■ that it is so plainly excessive as to justify judicial interference.

The rule to show cause will be discharged.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LOUIS RUBIN, PLAINTIFF IN ERROR.
    Argued June 5, 1923
    Decided November 7, 1923.
    Crimes — Advertisements, False and Deceptive Irrelevant Testimony — Weight of Evidence Supporting Judgment.
    In error.
    Before Gummere, Chief Justice, and Justices. Minturn and Black.
    Por the plaintiff in error, Harold Simandl.

    For the respondent in error, John O. Bigelow, prosecutor of the pleas, and J. Victor D’Aloia, assistant prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was convicted by the court, sitting without a jury, of a misdemeanor, under the statute. Pamph, L. 1913, p. 649. That statute makes it a misdemeanor to insert in a newspaper a false advertisement which is untrue, deceptive or misleading regarding the selling of merchandise, &c.

The indictment charged the defendant with inserting an advertisement in the “Sunday Call,” a Newark newspaper, on September 17th, 1922, stating that he was selling certain silks, &c., under the name of the Chain Silk Stores, at No. 10 Academy street, Newark, New Jersey. The fabric so advertised is known as “Marvella,” at $3.95 per yard, manufactured solely by the Forstmann & Huffmann Company, of Passaic, New Jersey.. The fabric so advertised was not in fact “Marvella.” There are seven assignments of error and seven reasons for a reversal filed, which are argued under four heads in the brief of the plaintiff in error.

The first two relate to trial errors in admitting irrelevant testimony. There is no error here. These points call for no discussion.' Refusal to direct a verdict in favor of the defendant was not error. We think — the evidence supports the judgment rendered by the court — it is not against the weight of the evidence. This renders it unnecessary to consider or decide, whether the statute (Pamph. L. 1921, p. 951) which gives the plaintiff in error a right to assign error, that the •verdict was against the weight of the evidence is applicable to a case tried by the court without a jury.

The judgment of the Essex Quarter Sessions is affirmed.


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    THE STATE v. DANIEL J. KELLY.
    Decided November 7, 1923.
    Crimes — Disorderly House — Sales of Intoxicating Liquor — Charge to Jury.
    On error to the Essex Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the plaintiff in error, Wilbur A. Mott.

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

The grand jury of Essex county presented an indictment against the defendant, charging him with the crime of keeping a disorderly house. The indictment was in the common law form, the averments being that the defendant caused and procured certain men and women of evil name and fame to habitually meet at a house kept by him in the city of Newark, and there remain drinking, tippling, fighting, committing acts of open lewdness, whoring, &c., &c., and did then and there expose to sale to the frequenters of said premises intoxicating liquor, contrary to law. The trial resulted in the conviction of the defendant and he now challenges file legality of that conviction.

The only ground upon which we are asked to reverse the conviction is directed at the charge to the jury. Both sides having rested, counsel for the defendant submitted to the trial court the following request to charge: “If the jury find that the only unlawful acts committed by the defendant consist wholly in the unlawful sale of intoxicating liquor, the defendant cannot be convicted under this indictment and he is entitled to a verdict of not guilty.” It is settled, so far a.s this court is concerned, that, since the enactment of the statute of March 10th, 1893 (section 74 of our Crimes act), which prohibits the finding of an indictment against a person for the offense of maintaining a common law nuisance or keeping' a disorderly house, where the offense sought to be punished consists wholly in the unlawful sale of intoxicating liquor, a person who is indicted for the common law offense of keeping a disorderly house — i. e., for maintaining a place where men and women collect and indulge in drinking, tippling, fighting, committing acts of open lewdness, &c.— is entitled to an acquittal where'the only proof offered to support the charge against him relates to sales of intoxicating liquor contrary to law. State v. Goff, 74 N. J. L. 247.

Counsel for defendant asserts that this request was not charged. On the other hand, the prosecutor of the pleas asserts with equal vigor that it was charged.

An examination of the record discloses the following situation: The request submitted not having been referred to in the charge to the jury, and the jury having retired, counsel for defendant called .the attention of the court to its failure to charge the request. The court thereupon sent for the jury. The jurors having returned into the jury-box, in compliance with the direction of the court, the presiding judge addressed ■ them as follows: “I am sorry to have found it necessary to bring you back, but the defendant had requested me to charge a certain charge, and I find I have overlooked charging it in my regular charge.” The request of the defendant is as follows : The court then read the request verbatim, and, having done so, added this: “That is the end of the defendant’s request, but I charge you that if, in addition thereto, it is shown that men and women were permitted to frequent the place, and there drink such intoxicating liquor, get drunk there, solicit there, make arrangements for sexual intercourse there, the charge that the place was a disorderly house is made out.”

The argument on the part of counsel for the defendant is that although the court read the request it did not charge it. The suggestion is that the court should have said to the jury, after reading the request, “I so charge you;” or “I so instruct you;” or words to that effect. This seems to us to be hypercritical. If the trial judge did not intend to charge the request no object can he perceived in his requiring the return of the jury. His opening statement to the jury on its return made it plain why he had sent for them, namely, that he had overlooked charging a request which had been submitted by the defendant. This statement, coupled with the reading of the request which he told the jury he had “overlooked charging,” was, by necessary implication, an instruction that the legal principle embodied in the request must be observed by them.

It is further argued that even if it be considered that the request was charged, the addendum to it laid down an erroneous legal principle, the claim being that it nullified the request by permitting the jury to convict, if they found that the frequenters of the place drank intoxicating liquor there; in other words, that the language used, “there drink intoxicating liquor, get drunk there, solicit there, make arrangements for sexual intercourse there,” describe isolated acts, any one of which would support a conviction on the indictment. We are not impressed with the soundness of the contention.. We think that in the absence of a disjunctive such as or, the words used describe a. series of acts, one following the other, which together are the constituents of a common law disorderly house, where such acts habitually occur in a particular place, with the knowledge and consent of the owner of the place.

The judgment under review will be affirmed.-


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    THOMAS McLAUGHLIN, PLAINTIFF-RESPONDENT, v. CHARLES DAMBOLDT, DEFENDANT-APPELLANT.
    Argued June 7, 1923
    Decided November 7, 1923.
    Negligence — Automobile Collision Contributory Negligence.
    On appeal from the Hudson Circuit Court.
    Before Justices Kalisch and Katzenbach.
    For the plaintiff-respondent, Alexander Simpson.

    For the defendant-appellant, Samuel D. Williams (Harlan Besson of counsel).
   Per Curiam.

This is an appeal from a judgment of the Hudson County Circuit Court. The action was instituted by Thomas McLaughlin, a motorcycle policeman, against Charles Damboldt to recover for injuries received by McLaughlin due to a collision between the motorcycle he was riding and the automobile of the defendant. The plaintiff’s injuries were severe, including the loss of his right leg. The verdict was $19,000 and was subsequently reduced by the trial court to $16,500, for which amount judgment was entered. The collision took place in the township of Weehawken, in Hudson county, on the thoroughfare known as the Weehawken branch of the Hudson boulevard, just east of the point where Highwood avenue enters the boulevard. The defendant was driving his car westerly on the right-hand side of the boulevard. The plaintiff, according to' his testimony, was riding in an easterly direction on an avenue known as Highwood Terrace, which entered the boulevard at a point where the boulevard made a curve to the southwest. He intended to turn into Highwood avenue. He saw the Damboldt ear approaching at a rapid rate of speed, as he claimed, and signaled to it to stop by the raising of his right hand. He then made the turn from Highwood Terrace to Highwood avenue, and in doing so was struck by the Damboldt car which had continued to move eastwardly rapidly. The defendant’s account of the accident was that McLaughlin came from Highwood Terrace and along the boulevard at high speed and then tried to pass ahead of a line of cars going in an eastwardly direction on the boulevard in order to pass into Highwood avenue without apparently making an observation. He crashed into the radiator of the defendant’s car. These statements of the two’ versions of the accident are made to show the sharp conflict of the evidence. The appellant insists that the trial court should have granted the motion made to nonsuit on the ground of the plaintiff’s contributory negligence. -We think on this point the evidence presented a debatable question which made it one for the jury to pass upon.

The appellant further contends that he was prejudiced by portions of the court’s charge, to which exceptions were duly taken. We are of the opinion that in this respect the appellant’s contention is well founded. The learned trial judge said: “If you find that the accident was due to the negligence of this defendant, and that such negligence was the proximate cause of the plaintiff’s injury, the.n the plaintiff can recover in this suit, unless you find that the plaintiff was guilty of what the law terms contributory negligence — that is, negligence on his part that contributed to this accident.” He then said: “If you find from the evidence that the proximate cause of the plaintiff’s injury was his own negligence and that the defendant was not negligent, then of course you must find a verdict for the defendant,” and “if you find the defendant was not negligent, but that the plaintiff collided with the defendant’s automobile while it was standing there, and without any negligence on the part of the defendant, then of course the plaintiff cannot recover.”

We think these latter portions of the charge instructed the jury that it could not find the plaintiff guilty of contributory negligence unless the defendant was free from negligence. This is not the law. The defendant may have been negligent, yet if the plaintiff had contributed to his injury in such a way that if he had not been negligent, he would have received no injury from the negligence of the defendant, he cannot recover notwithstanding the defendant’s negligence.

It is said by the respondent that the trial court charged correctly on the subject of contributory negligence in the passage first above quoted. Assuming this to be so it does not cure a misstatement of the law in another part of the charge because it is impossible to tell whether the verdict of the jury might not have been the result of the erroneous portion of the charge. In the present case the jury might have found that the plaintiff was guilty of contributory negligence had it not been for the court’s instruction that in order to do so the defendant must have been free from negligence.

This case is one of great importance to each of the parties. Each is entitled to an unequivocal statement from the trial judge as to the law. This we feel the appellant did not have. The judgment will be reversed and a venire de novo issued.


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    CHARLES H. HAND, PLAINTIFF-APPELLANT, v. LILLIAN F. HOWE, DEFENDANT-RESPONDENT. CHARLES H. HAND, PLAINTIFF-APPELLANT, v. MURRAY RUSHMORE, DEFENDANT-RESPONDENT.
    Submitted June term, 1923
    Decided November 7, 1923.
    Contracts — Disagreement Regarding Terms — Services Rendered^ Greater Than Contracted for — 'Questions of Fact Only’ Involved.
    On appeal from the Plainfield District Court.
    Before Justices Kalisch and Katzenbach.
    For the plaintiff-apellant, Winfield S. Angleman.

    For the defendants-respondents, William A. Coddington (George W. Anderson of counsel).
   Per Curiam.

These cases, tried together below in the Plainfield District Court, are appeals from judgments for the defendant of no cause of action. The appellant was the owner of a dwelling rented by him to Murray Rushmore. The adjoining property was owned by Lillian F. Howe. The plaintiff entered into negotiations with Rushmore for the sale to Rushmore of the property he was occupying. During the negotiations there was a conversation between the plaintiff and Rushmore to the effect that the plaintiff, who was a builder and real estate operator, would erect a garage and construct a roadway for Rushmore and Mrs. Howe for $700. One-half of the garage was to be built upon Mrs. Howe’s property, the other half on Rushmore’s if he became the purchaser of the property. On September 1st, 1921, Rushmore wrote to the plaintiff the following letter:

“September 1st, 1921.
My dear Mr. Hand:
This will confirm my telephone conversation and agreement for purchase of the 120 West Eighth street property. Part of the agreement is to include the construction by you of a suitable double garage and roadway between my property and that of Mr. Howe adjoining me on the east. This garage to be- a double garage half on his land and half on mine and the roadway to also be half on each property. This is to cost $700, half to be paid by Mr. Plowe and half by me. Mr. Howe has agreed to join me in this and I would like your signature to this paper which will constitute the agreement between us.
Very truly,
(Signed) Mderay Rushmore.”

The plaintiff signed his name below that of Mr. Rushmore. The contract for the sale of the property between the plaintiff and Rushmore is dated August 31st, 1921, but the above letter of September 1st, 1921, was admittedly sent before the contract of sale was executed. The plaintiff built the garage and roadway. Each of the defendants paid $350 making the $700 mentioned in the agreement in the form of the letter of September 1st, 1921. The plaintiff sent the defendants, upon completion of the work, bills for materials and labor for $988.87 and presented a bill of $16.40 for cleaning up the premises. Eor the difference between these bills and the $700 paid, the present actions were instituted. The plaintiff claimed he had built a larger garage with a different kind of roof and also a better roadway than had been agreed upon and that these changes were made by him at the request of Mrs. Howe and the plaintiff. This was denied. The only questions presented to us are questions of fact. The District Court found as a fact “that the plaintiff agreed with defendants to build a garage for them for seven hundred dollars ($700), that no changes or additions were"ordered or authorized by either defendant, and that neither of them agreed or were liable to pay plaintiff for making any changes in the garage.”

This court cannot reverse a judgment upon a finding of fact where there is evidence to support the judgment. Lurich v. Breithart, 120 Atl. Rep. 20. There is evidence to support the judgments rendered by the District Court in both cases. Accordingly the judgments are affirmed in both cases.


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    JACOB HALBREN AND HENRY HALBREN, CO-PARTNERS, TRADING AS J. HALBREN & SONS, PLAINTIFFS-APPELLANTS, v. M. SAMUELS & CO., INCORPORATED, A DELAWARE CORPORATION, DEFENDANT-APPELLEE.
    Argued June 6, 1923
    Decided November 7, 1923.
    Conditional Sales — Property Distrained for Rent — Doctrine of Estoppel Considered.
    On appeal from the First District Court of Jersey City.
    Before Justices Kalisch and Katzenbach.
    For the plaintiffs-appellants, Gross & Gross.

    For the defendant-appellant, Jacob L. Newman (Lionel P. Kristeller, of counsel).
   Per Curiam.

This is an appeal by the plaintiffs below from a judgment in their favor for $40, rendered in the First District Court of Jersey City, after a jury trial. The plaintiffs, J. Halbren and Sons, sold to one Flora Hirsch certain store fixtures under a conditional bill of sale which was duly filed in the Hudson county register’s office, as required by the statute. The agreement was dated April 10th, 1922. Two hundred and sixty-five dollars was paid by the vendee. Four hundred and sixty-five dollars of the purchase price remained unpaid. The fixtures were placed in a store, No. 116 Newman avenue, Jersey City, rented by Flora Ilirsch from the defendant below, M. Samuels & Co., Inc., a Delaware corporation, lessee of the premises.

On June 1st, 1922, there was a small fire in the portion of the premises rented by Flora Ilirsch. Flora Ilirsch then disappeared. There was some rent due from her to M. Samuels & Co., Inc. A distress warrant was issued and placed in the hands of a constable who' distrained upon the fixtures sold to Flora Hirsch by the plaintiffs. On September 5th, 1922, these fixtures were sold and bought by the distrainor, M. Samuels & Co., Inc., for $4-0. The plaintiffs then instituted the present action for trover and conversion. The trial court in its charge to the jury invoked in favor of the defendant the doctrine of estoppel and limited the amount which the plaintiffs could recover to the amount which they brought at the sale, $40. The court in its charge said: “Of course, it was the plaintiff’s goods that were sold, and they are entitled to what was received for them in any event, even though he may have assumed the attitude of unfairly eon: cealing his title and luring the defendant into going on with this sale.

The cash-register people came and said the cash register had not been paid for. It was delivered to them. Presumably, if the plaintiff in this case had notified the defendant of its rights in this property, it would have been delivered. There is nothing to show that there was' any intention on the part of the defendant to withhold title from anybody who was entitled to it, or anything more than exercise their legal right to secure from the tenant the rent which was due under a distress. If they stood by purposely, without disclosing their right, for the purpose of luring the defendant into selling this property in ignorance, then they are bound by the sale, because the doctrine of estoppel is a doctrine which is applied not only in equity but in the courts of law, and it would be eminently unfair to apply any other rule^ to circumstances such as these.”

To this portion of the charge an exception was duly taken. The plaintiffs had complied with the statute by the filing of the contract of conditional sale. Their rights were then protected. It was the defendant’s duty to ascertain whether Flora Uirsch had an absolute title to the store fixtures before it caused these fixtures to be distrained upon and sold under the distress proceedings. A mere delay in their removal from the premises by the plaintiff was neither a waiver of their rights to enforce the agreement made by them with Flora Iiirsch, nor an act which estopped them from ascertaining their claim to the fixtures. We can find in the record no evidence that the plaintiffs attended the salé or knew that the defendant had distrained upon the fixtures. To permit the doctrine of estoppel to be invoked would, in such a case, emasculate the Conditional Sales act. We think the trial court erred in its charge to the jury in limiting the amount of recovery to $40 under the doctrine of estoppel, as stated in the charge. The judgment will be reversed and a new trial granted. Costs on this appeal will abide the determination of the case.


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    JOHN WILLIAM GROVER, BY HIS NEXT FRIEND, PLAINTIFF, v. NEW YORK, SUSQUEHANNA, &c., RAILROAD COMPANY, DEFENDANT.
    Submitted June term, 1923
    Decided November 7, 1923.
    Negligence — Automobile Accident at Grade Crossing — Liability of Railroad — Contributory Negligence.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.

      For the plaintiff, Blair Reiley.

    For the defendant, Collins & Corbin and Hobart, Markley & Broadhurst.

   Per Curiam.

This suit was brought to recover damages for personal injuries and damages to an automobile.

' The plaintiff, a young man under age, while riding in an automobile which he was driving on December 1st, 1921, was injured and the automobile damaged by a locomotive at the grade crossing, where the defendant’s tracks cross the highway, known as Columbia street, in Columbia Knowlton township, Warren county. The trial resulted in a verdict for the plaintiff. The defendant obtained a rule to show cause why a new trial should not be granted. The rule must be made absolute and a new trial granted for two' reasons: first, error in the court’s charge to the jury, in which he erred in leaving to' the jury the question whether the crossing was one of extraordinary danger within the rule stated in such cases as Pennsylvania Railroad Co. v. Matthews, 36 N. J. L. 534; Danskin v. Pennsylvania Railroad Co., 76 Id. 660; Kyle v. Lehigh Talley Railroad Co., 81 Id. 186, 192; Ross v. Director General, 94 Id. 295. The rule is that only when the company has created extra danger it is bound to use extra precautions other than those provided for by the statute. Second, according to the clear weight of the evidence, the accident was due to the contributory negligence on the part of the plaintiff, the driver of the automobile.

The defendant’s rule to show cause must J»e made absolute.


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    CATHERINE O’NEILL, ET UX., v. PUBLIC SERVICE RAILWAY COMPANY.
    Decided November 9, 1923.
    Negligence — Injury by Trolley Car to Passenger Through Improper Starting of Car — Verdict Against Weight of Evidence.
    On defendant’s rule to. show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the rule, Leonard J. Tynan.

    Contra, John W. Palmer.

   Per Curiam.

This was an action for personal injuries. Mrs. O’Neill was a passenger on a Central avenue trolley car, coming from East Orange to Newark. When the car reached the intersection of Central avenue and Broad street she started to leave it for the purpose of transferring to another car, which would take her to the station of the Pennsylvania Eailroad Company. According to her story as told on the witness-stand, the car (which was a summer car) having come to a stop, she arose from her seat -and stepped down on the running hoard, and, as she was in the act of alighting, the car suddenly started, by reason whereof she was thrown to the ground and received the injuries for which she sued. Her statement that the car suddenly started is without any support from other witnesses. On the other hand, the defendant called six witnesss, several of them passengers who were entirely disinterested, so far as the case shows, each of whom testified that the car was at a standstill from the time it stopped until Mrs. O’Neill had actually fallen.

The finding of the jury on the question of the alleged negligence of the defendant company in starting the car while Mrs. O’Neill was in the act of alighting is so contrary to the great preponderance of the evidence as to justify the conclusion that its verdict is the result of either prejudice or ignorance. Counsel for the plaintiffs attempts to support it by advancing the theory that, although the car did not start again, yet it gave a lurch, for some unexplained reason, after it had come to a standstill, and that this lurch caused Mrs. O’Neill’s fall. But, even if we should be justified in accepting this theory in the place of a fact, the verdict cannot be supported. The case was tried upon the proposition that,,the car started up while the plaintiff was alighting, and the case went to the jury on that basis, the court saying, “If the plaintiff, by the greater weight of the evidence, has proven that this car started while she was in the act of alighting and threw her to the ground, she is entitled to your verdict. If the greater weight of the evidence does not establish that fact, then your verdict must be for the defendant.”

The finding of the jury, as we have already indicated, was in palpable disregard oE this instruction, and the rule to show cause will be made absolute.


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    DANIEL GYORFY v. LOUIS LEVY.
    Negligence — Collision Between Milk Wagon and Defendant's Automobile — Measure of Damages.
    Decided November 9, 1923.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.

      For the rule,, Freeman Woodbridge.

      Contra. Jacob S. Karkus.

   Per Curiam.

This is an action for personal injuries received by the plaintiff in a collision between a milk wagon, which he was driving, and the defendant’s automobile. The case was tried at the Middlesex Circuit, and the jury rendered a verdict in favor of the plaintiff and assessed his damages at $5,029.50.

Upon the application of the defendant, a rule to show cause was allowed by the trial judge on the question of damages only, the judge refusing to include in the rule the question of liability. The defendant thereupon applied to the Supreme Court to have the rule enlarged so as to include both questions, and this application was refused. The only question before us on the present rule, therefore, is whether the damages are so clearly excessive as to justify judicial interference.

It is not necessary to review in detail the character of the plaintiff’s injuries. It is enough to say that, if the jury believed his testimony and that of the witnesses produced by him, their finding was entirely justified. The question of the credibility of these witnesses being one for the jury and not for us, it necessarily follows that this rule to show cause should be discharged. It will be so ordered.


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    THOMAS MARSELLA v. DANTE RIVETTI.
    Decided November 7, 1923.
    Negligence — Automobile Collision — Error in Judge’s Charge That Compensation for Amount of Loss During Plaintiff’s Illness May Be Awarded, Where No Testimony on this Subject Was Given.
    On appeal from the Hudson Common Pleas.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the appellant, M. Casewell Heine.

    For the respondent, William B. Stiles.

   Per Curiam.

This action was brought by the plaintiff to recover compensation for injuries resulting to him from a collision between his automobile and that of the defendant.

The only ground of appeal which we find’ it necessary to consider is directed at the charge to the jury. The plaintiff had testified that, as a result of the accident, he was confined to his bed for about ten or twelve days and to his house for two weeks, and that during that time he could not do any work, although he had work to do. The trial court, in the charge to the jury, after referring to other matters to be considered by that body in determining what would be fair compensation to the plaintiff, added, “You have a right, of course, to compensate the plaintiff for what he lost by being laid up during the time that he was laid up, if you conclude that he was, according to the testimony that has been adduced before you.” We think there was legal error in this instruction, and that it was harmful to the defendant, for the reason that there was nothing in the testimony bearing upon this phase of the case (all of which has been recited) which afforded a measure for determining compensation, even if it be assumed that the plaintiff suffered financial loss by reason of his absence from business. In the case of Gilmore v. Kane, 72 N. J. L. 167, it was held that a similar instruction, where there was no evidence upon which the jury’s finding might be rested, was harmful error.

Eor the reason indicated, the judgment under review will be reversed.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MICHAEL FUCHINI, PLAINTIFF IN ERROR.
    Submitted June term, 1923
    Decided November 7, 1923.
    Crimes — iSale of Liquor — Specifications of Causes for Reversal Examined — Verdict Affirmed.
    In error.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff in error, Jacob R. Mantel.

    For the defendant in error, Abe J. David, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was indicted and found guilty of the possession and sale of liquor on the first four counts of the indictment, viz., December 2d, 4th, 5th and 7th, 1922, at 50 Railroad avenue, Summit, New Jersey. Thirteen assignments of error and twenty-two specifications of causes for reversal were filed. These are argued under eight heads in the brief of the plaintiff in error.

First. There was no evidence to justify the jury in returning a verdict of guilty. This seems to be based on the idea that the jury could not convict on the testimony of Henry Spring, a detective. Not so, if the jury believed him, which they evidently did, by the verdict returned.

Second. No proof that the liquor sold contained more than one-half of one per centum of alcohol by volume. Not necessary under Pamph. L. 1922, p. 615, ¶ 37, presumed to be for beverage “purposes and to contain,” &c.

Third. The indictment charged no crime. This is not now in the case. No attack was made upon the indictment in the court below.

Fourth. Permitting a certain bottle in evidence. This 'was not error.

Fifth. Refusing to withdraw a juror and declare a mistrial. This was discretionary with the trial judge.

Sixth, seventh and eighth. Criticism of the charge. This falls within the rule stated in State v. Contarino, 92 N. J. L. 381, 385. In that case, it is said, to be settled, that if instructions contain several propositions, some of which are proper, an objection to the whole will not avail. The particular points deemed erroneous must be pointed out. A reversal will not be had, when the exception is not directed specifically to the proposition alleged -to be erroneous.

The judgment of the Union County Quarter Sessions is affirmed.


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    LILLIAN F. SYMES, ADMINISTRATRIX, PLAINTIFF, v. MORRIS COUNTY TRACTION COMPANY, DEFENDANT.
    Decided November 7, 1923.
    Negligence — Motor Truck Collision With Street Obstruction— Rights of Traveling Public.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff, Benjamin M. Weinburg.

    For the defendant, King & Vogt and Robert H. Schenck.

   Per Curiam.

This suit was brought to recover damages under the Death act.

The trial resulted in a verdict for the plaintiff for $15,000. The defendant obtained a rule to show cause and writes down ten .reasons for a new trial.

The plaintiff’s intestate was driving a motor truck along Main street in Roekaway in a westerly direction, about 6:10 a. m. in the morning of August 8th, 1922. He ran into and struck a pole used by the defendant company for the support of its feed wires. Two or three minutes of six, i. e., before the accident, the pole had broken and fallen, so that its top part lay across the feed wires used by the defendant, the bottom or base of the pole resting on the sidewalk. The top part of the truck collided with the pole,' resulting in the death of the plaintiff’s intestate. 1

We have examined the reasons filed for a new trial and find no sufficient ground' for disturbing the verdict of the PUL

The damages are not excessive. Rhodehouse v. Director General, 95 N. J. L. 355. There is no error in the charge. The traveling public have a right to suppose that there is no dangerous impediment or pitfall in any part of the street. Durant v. Palmer, 29 Id. 548; Quimby v. Filter, 62 Id. 769. The verdict is not against the weight of the evidence. The rule to show cause is discharged.


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    STATE OF NEW JERSEY v. ABRAHAM E. HARRIS.
    Decided November 8, 1923.
    Crimes' — Burning Buildings — Refusal of Motion to Quash — Testimony Regarding Value of Property Destroyed — Admitting in Evidence, Insurance Policies — Admission of Inventory — Exclusion froiji Jury of Experiments.
    On error to the Essex Quarter Sessions.
    For the defendant, Robert H. McCarter and Leber & Ruback.

    For the State, John O. Bigelow.

    Before Gummere, Chief Justice, and Justices Minturn and Black.
   Per Curiam.

The defendant was convicted in the Essex Quarter Sessions, upo'n an indictment which in its first count charged him with setting fire to a certain building in Newark, and the goods and merchandise therein contained with intent to- prejudice certain insurance companies. The second count charged him with- aiding and abetting in the burning of the building.

The first contention is raised upon a motion to quash, that the indictment was insufficient, in that it was duplicitous. We do not think that question is properly before us. The refusal of the motion to quash cannot be reviewed on an assignment of error, since it is discretionary with the trial court; nor can it be reviewed under the one hundred and thirty-sixth section, since it precedes the trial itself, and is not a part thereof. It is argued, however, that it is reviewable because of the failure of the trial court to charge the following request: “There should be a verdict for the defendant on the second count for each and all of the reasons given on the motion to quash the indictment.” We do not think this request was proper in form or in substance, since it fails to state the grounds upon which the direction of a verdict should be rested.

The court is under no obligation to go back in a search for proceedings antedating the trial to ascertain what took place at that time; nor is the court assumed to recall accurately matters which occurred in the past, unless presented in reasonably accurate and substantial form as a basis for its recollection. We think, however, the criticism on the indictment in this respect is insubstantial and without merit.

The next point is a criticism upon the court’s action in allowing the prosecutor of the pleas to examine the state’s witness Gilpatrick, for the purpose of showing that his testimony varied from a precedent statement made to the prosecutor. This ruling was competent under State v. D'Adame, 84 N. J. L. 386.

It is also urged that the court committed legal error in refusing to strike out certain testimony concerning the value of the machinery at the plant of the Harris Company, of which the defendant was president. The court properly refused the motion, as it came too late. Under our decided cases the objection should have been to the testimony when it was offered. State v. D'Adame, supra. And a similar response applies to the motion to strike out the testimony of the witness Bosenstock.

It is insisted that the court committed legal error in receiving in evidence twelve fire insurance policies, covering the stock of the Harris Company. The point of this contention is that there was no proof at that time that the defendant was in anywise connected with the Harris Company. This objection loses its relevancy, since defendant himself afterward, on the witness-stand, testified that he was the president of the company. That admission made the policies admissible in evidence (State v. Genz, 59 N. J. L. 495), and the action of the trial court became thereby harmless.

It is insisted that there should have been a direction of a verdict in favor of the defendant, because of lack of proof. We think there was proof sufficient to go to the jury and that defendant’s gmilt or innocence under'the testimony was not a court question.

It is insisted that the court erred in refusing to admit an inventory made by a man named Fisher. The difficulty with its admission was that the inventory was made some little time after the fire, and it was shown that it embraced goods not in the factory at the time of the fire.

The attempt on the part of the defendant to show in court by the witness Johnson the result of an experiment with a lighted candle, and by the witness Albaeh to show the result of an experiment out of court with a spool floating in gasolene, or other fluid, was properly excluded, since there was no proof that the conditions surrounding the experiments were similar to those that existed when the fire in question'was discovered, by the public officials, who testified upon the subject. To warrant the admission of such experimental testimony it must appear that the conditions and circumstances are similar to those shown actually to have existed in the case. Commonwealth v. Piper, 120 Mass. 185; Kinney v. Folkerts, 84 Mich. 618; Leonard v. Southern Pacific R. R. Co., 21 Oreg. 555; Chicago, &c., R. R. v. Champion, 9 Ind. App. 510; Spires v. State, 50 Fla. 121; 10 R. C. L. 1002, and cases cited.

In any event it is within the judicial discretion of a trial court to permit experiments relevant to the issue to be made before a jury during a trial. Permission' to perform such experiments cannot be demanded as a matter of right; nor in the absence of an abuse of discretion is it the subject of review upon error. Langdon Creasy Co. v. Rouse, 139 Ky. 647; S. C., Ann, 1912, B. 292, and notes; 10 R. C. L. 1000, and eases.

The same rule is applicable to experiments made out of the presence of the court. Gambrill v. Schooley, 95 Md. 260; Boston Hose Co. v. Kendall, 178 Mass. 232; 10 R. C. L. 1000, and cases.

Our examination of the remaining objections urged satisfies us that they are insubstantial. Our examination of the defendant’s request to charge, together with the charge of the trial court, satisfies us that the legal substance of the requests was substantially contained in the charge, where they were legally relevant.

The judgment of conviction will therefore be affirmed.


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    LOUISA ALLGEIER, ADMINISTRATRIX, v. ERIE RAILROAD COMPANY.
    Decided November 8, 1923.
    Negligence — Motion for Direction of Verdict for Defendant Granted — Plaintiff Voluntarily Asks for Nonsuit Before Instruction to Jury Begins — Judgment Reversed.
    For the appellant, Weinberger & Weinberger.

    For the defendant, Collins & Corbin.

    Before Gummere, Chief Justice, and Justices Minturn and Black.
   Per Curiam.

The plaintiff’s intestate was a flagman, employed by the defendant company at its Rutherford crossing, and was run down and killed while on duty at the crossing on the evening of January 13th, 1921. The trial resulted in the direction of a verdict for the defendant company, on the ground that there was no negligence on the part of the defendant company; the claim that it was customary for the engineman to blow a whistle when approaching the crossing for the purpose of warning the employes on the crossing not having been supported. We think the proofs justified that conclusion, since the blowing of the whistle was manifestly a mere performance of the statutory duty imposed upon railroad companies.

The other grounds upon which the motion to direct a verdict was rested we think without merit. If it be assumed that the decedent was conclusively shown to have been guilty of contributory negligence, that fact did-not bar him from the right to recover, the Eederal statute providing that it shall only affect the quantum of damages.

The contention that the decedent assumed the risk, even if it be considered that the duty of giving warning to flagmen on ci’ossings had been shown, is without merit. The failure to give the warning was the failure of a fellow-servant to perform the duty entrusted to him, and an employe does not assume the risk of danger arising out of the negligence of a fellow-employe.

Counsel for the railroad company having moved for the direction of a verdict, proceeded to argue the matter, and apparently his argument was replied to by counsel for the plaintiff. At the conclusion of the argument the court said, “I think I will grant the motion;” and after some little further discussion counsel for the plaintiff said, “I do not think that the plaintiff is entitled to have a nonsuit in this case,” to which the court replied, “No, I think if there is an error, it can be cured by the court above.” An exception was entered to this ruling, and the court then instructed the jury to return a verdict in favor of the defendant. We think the statement of defendant’s counsel, that “plaintiff is entitled to have a nonsuit,” was in effect a submission to a voluntary nonsuit. It is settled that plaintiff has a right to suffer a nonsuit on liis own motion at an}’ time before the jury have retired to consider their verdict. Malone v. Erie Railroad Co., 90 N. J. L. 350.

In that case it was held that an offer to submit to a voluntary nonsuit is made in time providing the court has not then begun its instruction to the jury to render a verdict for the defendant.

Eor this reason the judgment should be a reversal.


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    THE STATE, DEFENDANT IN ERROR, v. RALPH LANTERMAN, PLAINTIFF IN ERROR.
    Decided November 8, 1923.
    Crimes — False Pretenses — Gale of Corporate Stock — Refusal to Charge Jury Regarding Defendant’s Good Character.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the state, Theodore E. Dennis.

    For the defendant, King & Vogt and Harold A. Price.

   Per Curiam.

Two indictments were found against defendant at the Sussex Quarter Sessions, charging him with obtaining money under false pretenses. The complaining witnesses iff each case were sisters. The two cases were founded on similar allegations and by consent of the parties, with the approval of the court, were tried together. Defendant was. convicted and a fine of $200 imposed. Defendant at the time of the alleged commission of the crime in 1921 was twenty-two years of age, and had accepted employment with the United Service Exchange, a corporation engaged in the sale of stock of other companies, including that of the Universal Tire Company. He was given a prospectus, a financial statement of the Universal Tire Company, prepared by R. G-. Dun & Company, and sample certificates of stock, letters of introduction and bank references. He received ten per cent, on all stock he sold for cash and seven per cent, on stock sold under a deferred payment plan. He has known the two witnesses intimately for years. They testified that defendant said that the stock of the Universal Tire Company was “guaranteed by the Federal Reserve Bank of Philadelphia;” that they believed this statement was true and were induced thereby to purchase fifteen and twenty-five shares respectively. The parents of the complaining witnesses and Mr. Van Etten, who had married Miss Edna Roy, corroborated the statement that these representations bad been made. Defendant denied the making of such representation and testified that what he did tell them, as he told all prospective purchasers, was that the coupons on the gold bonds, which accompanied the stock, were payable through any bank.

Several months after the sale of the stock, complaining witnesses called on defendant at Newark and demanded their money back. Defendant testified that he told them he would try to resell the stock for them, that the company he worked for had a resale department. He did endeavor to do so but was unsuccessful. This indictment resulted.

We think the issue presented was one of fact for the jury and we would be inclined to affirm the conviction, except for the court’s refusal to charge, the defendant’s fourth request, as follows: “You have a right to consider the evidence of defendant’s'good character, and if froin all the evidence in the case, including that of good character, you have reasonable doubt as to this defendant’s guilt, your verdict should be not guilty.”

The learned trial court failed to charge the request, or to charge the law upon the subject in any other form, but instead stated, “There is evidence of his good character, and, gentlemen, you must give it such weight as you think it is worth.”

The request as persented contained a substantial expression of the legal rule upon the subject of character in its relation to the rule of reasonable doubt, and .the request or its equivalent should have been charged. State v. Lang, 87 N. J. L. 508.

Eor that reason the judgment of conviction is reversed.


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    RICHARD KENNEDY, PLAINTIFF, v. JACOB L. BRAUN, DEFENDANT.
    Decided November 7, 1923.
    Negligence — Automobile Accident Resulting in Injury to Plaintiff While Passenger in Defendant's Car — Reasons for New Trial Considered and Rule Discharged.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff, J. Vincent Barnitt and Wm. V. Rosenkrans.

    For the defendant, Edwards & Smith and Edward F. Smith.

   Per Curiam.

This suit was brought to recover damages for personal injuries. The plaintiff, by invitation of the defendant on the 31st day of March, 1921, the day of the accident, was riding in an automobile truck owned by the defendant, and operated by one Mackey, his servant, on Water street, in Paterson, going in a northerly direction.

As the truck reached Arch street another machine approached. In order to avoid being struck thereby the driver of the defendant turned sharply to the left; then the plaintiff fell off, thereby sustaining the injuries, a broken leg, for which damages are sued for. The trial resulted in a verdict for the plaintiff. The defendant obtained a rule to show cause why a new trial should not be granted. He writes down six reasons, which are argued under three heads in the defendant’s brief: First, a nonsuit should have been granted; not so, the defendant’s negligence and the plaintiff’s contributory negligence were jury questions; second, the eouit should have directed a verdict for the defendant; not so, and for the same reason that a nonsuit was denied; third, the verdict of the jury was contrary to the evidence, our reading of the testimony leads us to the opposite conclusion.

The defendant’s rule to show cause should be discharged.


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    RUSSELL S. WISE, PLAINTIFF, v. THE CITY OF CLIFTON, DEFENDANT.
    Decided November 7, 1923.
    Contracts — Services Rendered by Engineer in Preparation of Plans, &c., for Defendant — The Three Grounds for New Trial Considered and Rule Made Absolute.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff, I. Faerber Goldenhorn.

    For the defendant, William B. Gourley.

   Per Curiam.

The suit in this case was brought to recover compensation by the plaintiff against the defendant for services rendered the defendant. The plaintiff is a civil engineer. The services were rendered under a resolution passed by the defendant, dated April 5th, 1921, which provides the plaintiff, Russell S. Wise, be instructed to prepare final plans and specifications for water pipes in the most populous section of Delawanna and Albin place, to go over the ground with the councilman from the First ward, &c., and to calculate the cost of construction. His services Avere terminated June 21st, 1921. The trial resulted in a verdict for the plaintiff. The defendant obtained a rule to show cause why a new trial should not be granted. The defendant writes dora three reasons — first, the verdict is contrary to the Aveight of the evidence; second, the court admitted illegal evidence; third, the damages awarded are excessive. The rule will have to be made absolute for all three reasons. It Avas error to alloAV the jury to estimate the compensation upon a percentage basis. The issue to be determined was a reasonab'1 compensation for the work done. It was injurious error to permit it to be shown in evidence how much a Mr. Watson had received and how many assistants he had upon another piece of Avork.

The defendant’s rule to shoAV cause must be made absolute.


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    WILLIAM A. MOLYNEAUX, ADMINISTRATOR, &c., PLAINTIFF, v. NEW YORK, SUSQUEHANNA, &c., RAILROAD COMPANY, DEFENDANT.
    Decided November 7, 1923.
    Negligence — Motorcycle Collision at Grade Crossing — Question of Degree of Danger of Crossing — Contributory Negligence.
    On rule to show cause.

      Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff, Lewis Van, Blarcom and Henry T. Kays.

    For the defendant, Collins & Corbin and Hobart, Markley & Broadhurst.

   Per Curiam.

This suit was brought to recover damages under the Death act. The plaintiff’s intestate, -a young man about sixteen-years old, while riding a motorcycle, on May 27th, 1920, was killed by a locomotive at the grade crossing where the defendant’s tracks cross the highway which leads from Stockholm to Beaver Lake, in Hardyston township, Sussex county. The crossing is known as Lewis Crossing.

The trial resulted in a verdict for the plaintiff. The defendant obtained a rule to show cause why a new trial should not be granted. The rule must be made absolute and a new trial granted for two reasons: First, error in the court’s charge to the jury, in which he erred in leaving to the jury the question whether the crossing was one of extraordinary danger within the rule stated in such cases as Pennsylvania Railroad Co. v. Matthews, 36 N. J. L. 534; Danskin v. Pennsylvania Railroad Co., 76 Id. 660; Kyle v. Lehigh Valley Railroad Co., 81 Id. 186, 192; Ross v. Director General, 94 Id. 295. The rule is, that only when the company has created extra danger it is bound to use extra precautions other than those provided for by the statute. Second, according to the clear weight of the evidence the accident was due to the contributory negligence on the part of the plaintiff’s intestate.

The defendant’s rule to show cause must be made absolute.


author: Pee Curiam.

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    THE STATE v. MICHAEL SANDORE.
    Decided November 9, 1923.
    Crimes — Carnal Abuse — Grounds for Reversal Examined • and Conviction Affirmed.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiff in error, William B. Cresson.

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

The grand, jury of Essex county presented against Michael Sandore, the defendant below, three separate indictments, charging assault and battery with intent to carnally abuse three small girls, each of them about ten years of age. The indictments were tried together and resulted in a verdict of guilty upon each of the charges.

The various grounds upon which we are asked to reverse these conivctions are so plainly without merit as hardly to be ivorthy of specific reference. The first is that the court erroneously permitted the prosecutor of the pleas to call upon a Mrs. Cavalier, Avho had been subpoenaed as a witness by the state, to stand up during the cross-examination of the defendant, for the purpose of having the defendant admit or deny that he had seen this woman in the neighborhood of the place where these assaults were said to have been committed and at the time thereof. There is not even a suggestion contained in the brief of counsel for the plaintiff in error of a reason for holding this judicial action illegal.

The next ground of reversal is that the court erred in instructing the jury that “If you believe the testimony of these girls” — that is, the little girls whom the state claimed to haAre been ássaulted — “there is evidence before you sufficient to make out the offense of assault with intent to carnally abuse.” The argument is that this instruction was harmful; that it tended to prejudice the defendant in the minds of the jury. But this is not enough. A charge to the jury invariably contains matters which are prejudicial to the defendant; but, in order to justify a reversal, it must appear that these matters are not only prejudicial, but that the charge is erroneous in law, and there is no suggestion that this excerpt from the instruction to the jury is open to that criticism.

Next, it is said that the following instruction to the jury was erroneous: “Indeed, as I recall the testimony of one or two of the little girls, they testify that he did, in fact, place his sexual organ against their sexual organ, which, if true,. would make out the offense of carnal abuse itself, although he is not on trial for that offense.” The objection is that the instruction contained an intimation that the defendant was guilty of a crime for which he was not on trial. This is true; but the statement contained in this excerpt from the charge was, as we think, very plainly not harmful to the defendant, and it is entirely settled, under our code of procedure, that, in order to justify a reversal in a criminal case, the alleged error, if it exists, must be such as to have worked manifest wrong and injury to the defendant.

Next, it is said that the court stepped outside of its province in the following statement made to the jury: “You have a right, in considering the story of the defendant, to consider the fact of his very great interest in the verdict which you may render, in determining the importance and weight which you will attach to his testimony.” It has been so frequently held that such an instruction is proper that a reference to authorities is unnecessary.

No argument at all is made in support of other reasons specified, and we dismiss them with the statement that they are not worthy of consideration.

The convictions under review will be affirmed.


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    JOHN FREDERIC WHERRY, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Argued June 6, 1923
    Decided November 7, 1923.
    Negligence — Automobile Collision With Trolley Car — Contributory Negligence and the Proper Charge Therein Considered.
    On appeal from the District Court of the Second Judicial District of Essex county.
    Before Justices Kalisch and Katzenbach.
    For the defendant-appellant, Leonard J. Tynan.

    For the plaintiff-appellee, Blair Reiley and Shelton Pitney.

   Per Curiam.

This is an appeal by the Public Service Railway Company from a judgment rendered against it in the District Court of the Second Judicial District of the county of Essex.

The judgment was for damages arising from a collision between the automobile of the plaintiff and a trolley car of the defendant. The plaintiff, in a Ford sedan, was driving his car west on Clinton avenue, in the city of Newark. A stop was made to let traffic cross at Bergen street. The plaintiff’s version of what occurred is that he then started up his car after the traffic had crossed Bergen street and followed another automobile which was ahead of him; that there was a truck parked on the right-hand side of Clinton avenue, and as he came to this truck he slowed up his ear in passing the truck; that when the front ivheels of his automobile came to the front wheels of the standing truck the left front wheel of his car ivas struck by the trolley car and this swung his automobile over towards the truck. His automobile was then lifted up by the trolley car and badly damaged. The defendant claimed that the plaintiff’s automobile hit the trolley ear in endeavoring to turn out of the way of the standing truck.

The first ground of appeal is that the trial court should have granted the defendant’s motion to nonsuit on the ground of the plaintiff’s contributory negligence. The evidence was conflicting. It raised a jury question as to the plaintiff’s contributory negligence. This question was properly submitted to the jury.

The second ground of appeal is that the trial court erred in refusing to charge the following request submitted by the defendant: “If the,plaintiff contributed to the collision, he cannot recover.” This 'request was, in our opinion, properly refused. It did not state the law on the subject of contributory negligence correctly. Mr. Justice Depue, in the case of Express Company v. Nichols, 33 N. J. L. 434 said: “In many cases where the plaintiff’s conduct was to some extent contributory to his injury, he has been allowed to recover. In fact it would be difficult to conceive that the conduct of the party injured might not, in some sense, be said to have contributed to his injuries. To conclude him from maintaining his action his conduct must have been negligent, and his negligence must have contributed to the injury in such a way that if he had not been negligent he would have received no injury from the negligence of the defendant.”

The next ground of appeal argued is that the trial court erred in refusing to charge the following request of the defendant: “The motorman was bound to use reasonable care in the operation of a trolley car and the same duty was imposed on the plaintiff.” This request is ambiguous in its form. It may be construed that the court was asked to charge the jury that the duty of using reasonable care in the operation of a trolley car was imposed on the plaintiff. This made it such a request that the trial court could properly refuse to charge. Moreover, it is in its form abstract. The court charged succinctly the concrete facts of the case. A trial court is not obliged to charge an abstract request when it has charged concretely.

The judgment is affirmed.


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    JOSEPH SALVATORE v. CHRISTIAN FEIGENSPAN, A CORPORATION, ET AL.
    Decided November 7, 1923.
    Negligence — Automobile Collision — Examination of Testimony Shows Verdict Against Weight of Evidence.
    On defendants’ rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, William E. Holmwood.

      Contra, Kelsey & Ludwig.

   Per Curiam.

The plaintiff, a hoy twenty years of age, sued to recover for injuries received by him through the collision of an automobile truck belonging to the defendant Feigenspan and a. motorcycle upon which the plaintiff was riding. The accident occurred in Jersey City in broad daylight. The truck was being driven along Summit avenue, traveling north. The purpose of the driver of the truck was to turn to his left at the intersection of that street with Jewett avenue. As he was doing this the plaintiff, who was traveling along Summit avenue on his motorcycle in a southerly direction, undertook to cross in front of the truck as a result of which the collision occurred. The jury found a verdict in favor of the plaintiff.

Our examination of the testimony sent up with the rule satisfies us that the verdict is very plainly against the clear weight of the evidence 'both on the finding of negligence on the part of the driver of defendant Feigenspan’s truck and the finding of the absence of negligence on the part of the plaintiff.

For this reason the rule to show cause will be made absolute.


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    EMMA S. WRIGHT ET UX., PLAINTIFFS, v. BUILDERS CONSTRUCTION COMPANY, DEFENDANT.
    Argued June 7, 1923
    Decided November 7, 1923.
    Negligence — Automobile Collisions Almost Always Involve Questions of Convincing Negligence — New Trial Denied.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the plaintiffs, Sidney W. Fldredge.

    For the defendant, Congleton, Stallman & Hoover and Charles W. Weeks.

   Per Curiam.

This was an accident case growing out of a collision of two automobiles at cross streets or avenues.

The accident occurred on the 27th of December, 1921, at the intersection of Florence avenue and Elmwood avenue, in the town of Irvington. The plaintiffs were driving in a northerly direction along Florence avenue and the defendant’s runabout, driven by one Joseph -Carragher, was proceeding along -Elmwood avenue in a westerly direction. The trial resulted in a verdict for the defendant. The plaintiff obtained a rule to show cause and writes down fifteen reasons for a new trial.

We find no sufficient reason for disturbing the verdict. Cases of collisions on highwaj’s almost invariably involve questions of concurring negligence on the part of both actors. Fox v. Great Atlantic, &c., Co., 84 N. J. L. 728.

The rule to show cause is discharged.


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    FREDERICK DIEBERT, PROSECUTOR, v. CITY OF SOUTH AMBOY ET AL., DEFENDANTS.
    Decided November 7, 1923.
    Certiorari — Not the Proper Writ to Try Title to Public Office Which Appointee Has Entered — Quo Warranto the Remedy.
    On certiorari.

    Before Justices Trenchard, Parker and Bergen.
    For the prosecutor, Leo Goldberger.

    For the defendants, John A. Coan.

   Per Curiam.

The prosecutor, as “a citizen, freeholder and resident of the city of South Amboy,” by this writ of certiorari undertakes to attack the right of Reuben Forgotston to hold the office of police justice of that city. The points are made that an ordinance purporting to appoint Forgotston to that office was not legally passed and that the council was without' statutory power to make the appointment.

It is plain from the facts appearing in the case that Forgotston was appointed in 1920, qualified and occupied the office until December, 1922, when the council undertook, by the ordinance challenged, to reappoint him, and he is now in possession of the office and was in such possession at the time this writ was allowed. In this situation the present writ should be dismissed, as it is elementary that the only proper procedure to try title to a public office upon which the appointee has entered is by quo warranto. Clayton v. Freeholders, 60 N. J. L. 364; Miller v. Washington, 67 Id. 167; Layer v. Millville, 53 Id. 362 (at p. 365); Wygant v. Improvement Commission, 89 Id. 454, 458.

The writ will be dismissed, with costs.


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    OLIVER H. YORK, PLAINTIFF-APPELLEE, v. CHARLES FRANKS, DEFENDANT-APPELLANT.
    Decided November 7, 1923.
    Contracts — Real Estate Agents and Brokers Concession-Agreement Between Brokers to Share Commissions.
    On appeal from the Orange District Court.
    Before Justices Kalisch and Katzenbach.
    For the plaintiff-appellee, Jay & McTague (William C. McTague, of counsel).
    For the defendant-appellant, James P. Mylod.

   Per Curiam.

This is an appeal from a judgment of the Orange District Court. The plaintiff and defendant were real estate agents. About May 15th, 1922, the defendant, Franks, went to the office of the plaintiff, York, and stated that one Mrs. Florence S. Rittenhouse had placed in his hands for exchange a piece of property owned by her at West Orange, New Jersey. Franks brought Mrs. Rittenhouse to York’s office later and York endeavored to effect an exchange of her property. On June 6th, 1922, the plaintiff and defendant entered into an agreement as follows:

“Newark, N. J., 6/29/22.
I agree that upon any property turned into this office by Charles Franks and sold through this office, through the personal efforts of myself individually, to pay the said Charles Franks fifty per cent..of total commissions received.
However, should a salesman connected with this office be instrumental in closing a deal on property turned in by Mr. Franks that the commission shall be equally divided in three ways.
Signed Oliver H. York,
Chas. Franks.
Accepted.”

On September 9th, 1922, through the efforts of the plaintiff and an employe of the plaintiff’s, by the name of Jones, Mrs. Eittenhouse effected an exchange of her property. The defendant then refused to pay the plaintiff the share of the commissions called for by the above agreement. The plaintiff brought suit, proved the execution of the agreement and that he had effected an exchange of Mrs. Eittenhouse’s property. The court found that the contract was established and that the deal was carried out and put through by Jones and the plaintiff, and accordingly rendered a judgment of $466.66 for the plaintiff against the defendant, being two-thirds of the commission obtained by the defendant from Mrs. Eittenhouse.

The first ground of appeal is that the District Court should have granted the defendant’s motion that the plaintiff be nonsuited. This rests upon the defendant’s contention’ that the agreement to share commissions was made after the defendant had spoken to the plaintiff concerning the property of Mrs. Eittenhouse, and that it was not retroactive so as to include the services to be rendered in exchanging the Eittenhouse property.

We think this contention is without merit. The agreement covered property “turned into this office.” This language covers property which had been turned in (the Eittenhouse property), as well as property which after the date of the agreement might be turned in. There had been no work done by the plaintiff at the time of the making of the agreement in disposing of the property of Mrs.. Eittenhouse. It would seem as if the agreement had been made in contemplation of the services which the plaintiff might render. Furthermore, the suit was one for services rendered and the plaintiff proved and the court found as a fact that the plaintiff had rendered services so the granting of a nonsuit under the evidence would have been improper.

The next ground of appeal is that the District Court erred in giving the plaintiff a judgment for two-thirds of the commissions, as Jones, the salesman, was not a party to the action. Jones was not a party to the agreement. The work done by him was for the plaintiff, his employer. Jones was not given an interest in any commissions under the agreement. He was not mentioned therein. The reference in the agreement to a salesman was only for the purpose of fixing the share of commissions to which the plaintiff would be entitled in case any employe of his was instrumental in closing a deal or property turned into the office by the defendant. There was no error in rendering a judgment for two-thirds of the commissions.

The third ground of appeal argued in the appellant’s brief is that there was no evidence to support a judgment for the plaintiff. The court found as a fact that the contract was established as a fact by the weight of the evidence. The court was justified in taking this evidence. It will not be disturbed. Breitbart v. Lurich, 120 Atl. Rep. 11.

The fourth ground of appeal is that the court awarded a judgment for an amount greater than that demanded by the summons. The demand was originally drawn for $400. The record shows that a motion was made and granted to amend the state of demand in this particular and allowed; Probably through inadvertence the amendment of the summons was not asked for. No objection was made at the trial to the summons. It is now too late to enter such an objection. It has been waived. We also are of the opinion that there was an implied consent for want of objection that the summons should be amended so as to conform to the amended state of demand.

The judgment is affirmed.


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    PILOT BUILDING AND LOAN ASSOCIATION OF NEWARK, NEW JERSEY, PLAINTIFF-APPELLEE, v. PAUL CHIEFF AND MARY CHIEFF, DEFENDANTS-APPELLANTS.
    Decided November 7, 1923.
    Building and Loan — When Loan is Actually Made — When the Premium is Payable — Amount Recoverable by Association Where Applicant Refuses to Take Loan After Funds are Set Aside.
    On appeal from tlie Second District Court of the city of Newark.
    Before Justices Swayze and Katzenbach.
    For the plaintiff-appellee, Selide J. Mindes.

    For the defendants-appellants, Adam J. Rossbach.

   Per Curiam.

This is an appeal from a judgment of the Second District Court of the city of Newark. The appellants, the defendants below, desired a loan upon their bond secured by a mortgage on real estate owned by them. They applied to the plaintiff below, a building and loan association, which granted the loan on September 28th, 1922. The defendants had offered a four per cent, premium for the loan. A check for the amount of the loan, $8,000, was iii due course given to the solicitor of the association and the defendants to whom it was payable endorsed the check to the solicitor who had been instructed to make the searches and take the steps necessary to consummate the transaction. The defendants subsequently concluded they did not desire the loan. On January 3d, 1923, they requested in writing that the loan be canceled and the money returned to the association. The association had set aside the amount on September 29th, 1922, when the loan was granted. No disposition of the money could he made until January 28th, 1923. These were the facts as found by the District Court. The association brought suit to recover the premiums of four per cent, on the loan of $8,000 and interest from September 28th, 1922, to January 28th, 1923, at six per cent, and recovered a judgment of $480 for these two items. The Building and Loan Association law permits the charge of a premium for a loan (Pamph. L. 1918, p. 957), whether made to members or non-members.

The appellants make the following contentions:

First, that the statute only authorizes a building .and loan association to take a premium for a loan actually made; second, that independently of the statute, a building and loan association can only take the premium in case the borrower receives the money and becomes a member of the association and enjoys the privileges incident to this method of borrowing, and third, that the plaintiffs, assuming that they are entitled to recover, can only recover damages resulting from the defendant’s refusal to take the loan and not the specific sum for premium and interest claimed.”

The answer to the first contention is that the loan was actually made. The money whs paid to the defendants and received by the one they made their agent.

The answer to the second contention is that the borrower did receive the money and that a borrower does not have to become a member of the association to obtain a loan. The law permits loans to non-members and the plaintiff association in the constitution and by-laws had provided for loans both to members and non-members.

The answer to the third contention is that the damages to the plaintiff association consequent upon the defendant’s refusal to retain the money and deliver to the association the bond and mortgage agreed upon were the loss of the premium and the loss of the interest upon .the amount of the loan for the four months the association had been without control of the funds. The refusal to take the loan caused damage to the association in a sum equal to the loss of the premium and interest.

The judgment is affirmed.