text:
    ALBERT L. SILBERSTEIN, PLAINTIFF-APPELLANT, v. C. E. HENDRICKSON, DEFENDANT-APPELLEE.
    Submitted March 22, 1923
    Decided June 5, 1923.
    Negotiable Instruments — '“Holder by Negotiation” and Holder by Assignment — Instructions to Jury.
    On plaintiff’s appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.

      For the appellant, Samuel H. Nelson (Harry Green, of counsel).
    For the appellee, William L. Edwards.

   Per Curiam.

The suit was on six promissory notes conceded to have been made by defendant to the order of “Eepublic Druggists’ Syndicate,” and of which.plaintiff, according to the state of demand, claimed to be the holder in due course. How plaintiff obtained them does not appear; no endorsement was proved or pleaded.

At the trial plaintiff testified simply that he was the “owner and holder” of the notes, which were then offered in evidence, and plaintiff rested. Defendant also rested, and moved a nonsuit, which was denied. Plaintiff then moved a direction of a verdict, which was also denied, and this is the only regular specification of cause for reversal, the two others assigned being the verdict was against the uncontradicted evidence, and that it was against the great weight of evidence. As neither deals with any legal ruling of the trial court, neither is proper for consideration on' this appeal. The court submitted the case to the jury under instructions which are not here challenged, and the jury found for the defendant.

While it is not necessary to decide the point, we think the trial court, on the case now before us, might properly have directed a verdict for the defendant or a nonsuit. The plaintiff did not claim at the trial, and does not claim here, that he was entitled to recover otherwise than as a holder in due course. Consequently, we are not concerned with the question of what his rights might be as a mere assignee of the notes sued on. The distinction between a holder by negotiation and a holder by assignment is pointed out in section 49 of the Negotiable Instruments act. Comp. Stat., p. 3740. By a reading of that section it will be seen- that a mere transferee for value has the right to the endorsement of the transferor; but, for the purpose of determining whether the transferee is a holder in due course, the negotiation of the paper takes effect as of the time when the endorsement is actually made. So, also, by section 30, negotiation of an instrument payable to order is by endorsement completed by delivery.

It follows that plaintiff, to succeed on the theory of the case propounded in his state of demand, and reiterated in his opening and pursued throughout the trial, was obliged to offer some proof that he had obtained the notes by negotiation; and, as there was no proof of this whatever, and no such inference would follow from his bald statement that he was the “holder” of the notes,, there would have been no error in directing a verdict for defendant, and plaintiff certainly was not harmed by the court leaving to the jury the question whether plaintiff was a holder in due course.

The judgment will be affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FRANK M. CARRYL v. JAMES J. GOLDEN.
    Contracts — For Sale of Land — Sale Through Third Party— Unusual Agreements.
    On appeal from the Second District Court of Newark.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-respondent, Smith & Slingerland.

    For the defendant-appellant, Porter, Zink & Lafferty.

   Per Curiam.

This is a suit to recover $500 deposited with defendant by plaintiff, under a contract bristling with luminous possibilities of hope deferred, and fear portending, which recited that defendant had agreed to sell his house and lot to Bessie Wiltenbert for $6,000; and she had contracted with plaintiff to sell it to him for $6,500; and that Wiltenbert was a mere dummy for Pinnas & Pinnas, agents for the sale; that the real fact was that defendant had agreed to sell directly to plaintiff for $6,000 if he would deposit with defendant $500 to indemnify him against any possible claim by Wiltenbert.

After this recital the parties therein agreed — (1) in case of any litigation by Wiltenbert against defendant, if Wiltenbert should be successful, defendant would return the $500, less “costs of suit,” or the sum paid in settlement and less commissions defendant should be compelled to pay Pinnas & Pinnas; (2) that if defendant should bo unsuccessful in the litigation, the $500 should be used to pay any judgment recovered against defendant, the plaintiff to pay one-half the costs; (3) if Wiltenbert made no claim in twelve months the $500 was to be repaid to the plaintiff. More than a year elapsed before this suit was brought, but during that year both Wiltenbert and Pinnas, not forgetting the possibilities, brought suit against defendant, which resulted in each case in a voluntary nonsuit, since which futile endeavor no other suit has been instituted by either. The plaintiff has a judgment in this suit and the defendant appeals. The defendant argues that having brought suits within the year, the claim was made within the year, and that it still exists, notwithstanding the nonsuits, and, therefore, plaintiff cannot recover.

We do not agree with this notion. We think that when Wiltenbert and Pinnas voluntarily submitted to nonsuits, upon their respective claims, such claims were withdrawn and no longer existed, after the expiration of the year, as a defence to the defendant. To hold otherwise would permit the defendant to hold plaintiff’s deposit for at least six years.

It is also argued that “counsel fees” are part of “costs of suit”'under the'contract. Counsel fee was paid by defendant in resisting the' Wiltenbert suit, but such fees, unless allowed by statute, are no part of the costs of suit. Brittan v. Blake, 36 N. J. L. 442

Whatever moral claim the defendant may possess for this reimbursement, of course, cannot be maintained here, since its payment was not provided for in the contract.

The judgment will be affirmed.


text:
    JAMES J. KLORAN, PLAINTIFF, v. LOUIS BROGAN, DEFENDANT.
    Submitted March 22, 1923
    Decided June 5, 1923.
    Negligence — Passenger in Jitney — Measure of Damages.
    On rule to show cause.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff, Lazarus & Brenner.

    For the defendant, George L. Record.

   Per Curiam.

On September 21st, 1922, Louis Brogan, the defendant, was the owner and operator of a jitney bus engaged in the carrying of passengers for hire on the Hudson county boulevard. The plaintiff, James J. Moran, entered the bus, and while riding therein the pneumatic tire on the right rear wheel blew out, causing the floor boards of the bus to fly upwards. Portions of the flying material struck the plaintiff, cutting his face, breaking his jaw, loosening his teeth and breaking one of them. The fracture of the jaw was a compound comminuted fracture. The cut extended from the centre of the chin to the back of the jaw, and when healed left a scar. The plaintiff was taken to the hospital, and after remaining there approximately two weeks, was able to return to his home, and soon thereafter was able to attend moving picture performances, and play pocket billiards in^ pool parlors. This action was tried some three months after the accident.

The plaintiff, who was a railroad brakeman earning $5.85 per day and working seven days a week, had at the time of the trial been unable to resume his work, due to the shock of the accident and the debility consequent thereon. 1 He had weighed at the time of the accident one hundred and forty pounds, and at the date of the trial his weight was one hundred and twenty-five pounds. There was evidence tending to show that he would not be able to resume his work as a brakeman for some months with any degree of comfort, due to the jars incident to this employment.

The amount lost by the plaintiff in wages, and the expenses of the accident, was about $1,400. The jury returned a verdict of $4,000. The trial court allowed a rule to show cause to the defendant reserving all the exceptions taken at the trial. The sole question before us is whether the verdict is excessive. In view of the pain and suffering, which must have accompanied the plaintiff’s injuries; the scar upon his face, and the general weakness and debility due to the accident, we cannot say that the verdict is excessive. A court of review should not set aside a jury’s estimate, unless it is so grossly excessive as to warrant the influence that the verdict is the result of passion, prejudice, partiality or corruption. Graham v. Consolidated Traction Co., 62 N. J. L. 90.

The rule to show cause is discharged.


author: Stickel, J.

text:
    Essex County Quarter Sessions.
    State v. Joseph C. Caprio and Lawrence Ruglio.
    [Decided December 1st, 1921.]
    Election Law — Violation of — Indictment of Persons who had Previously Testified in Summary Proceedings Regarding Matters upon which Indictment was Afterward Found— Statutory Provisions Considered at Length.
    On indictment for conspiracy.

      Mr. J. Henry Harrison, for the State of New Jersey.

      Mr. Wilbur Heisley, for the defence.
   Stickel, J.

The defendants,, the judge and inspector of an election board in the First ward of Newark, were indicted by the grand jury for conspiracy to falsely 'count and falsely return the results of a Eepublican primary election. They filed a plea in bar contending that having been removed as members of the election board by Judge Osborne, in a summary proceeding had before him for alleged election frauds, and having testified in such proceeding, they could not now be indicted for matters as to which they testified before Judge Osborne.

To support this plea they rely on section 621' of an act to regulate elections, Eevision of 1920, which reads as follows:

“No person called to testify in any proceedings under this act shall be liable to a criminal prosecution either under this act or otherwise, for any matters or causes in respect to which he shall be examined, or to which his testimony shall relate, except to a prosecution for bribery committed in such testimony; nor shall any person when called to testify in any trial for a violation of this act, be privileged to refuse to answer any questions which may be asked him, upon the ground that the same will tend to degrade or incriminate him.”

In other words, they contend that they were “called to testify” in this proceeding before Judge Osborne and were examined or gave testimony in relation to the same matters and causes in respect to which they have now been indicted. The plea, therefore, involves the construction of said section 621, and particularly of the words “called to testify.” The state contends that this section should be construed to mean “compelled to testify on behalf of the state,” nr at least that it should be construed to mean “compelled to testify,” and that it cannot be held to apply to a voluntary witness.

It is interesting to note that this section appeared for the first time as part of an act to define the crime of bribery and to provide for the punishment thereof, chapter 208, laws of 1906. page 388, and as there used, it clearly applied only to tin indictment for bribery and the proceedings referred to in the section were proceedings 'under the Bribery act. However, in 1920, when the revisors of the election laws did their work, they seemingly took this section bodily from the act of 1906, and without considering the effect of changing it from the Bribery act to the revision, without considering that in the act of 1906, it applied purely to indictments for bribery, while in the revision it would apply to any proceeding, under the new act, they incorporated it into the revision. ’ Indeed, so faithfully did they incorporate it, and with so apparently little consideration as to its effect and purpose, that they perpetuated the error therein as it existed in the act of 1906 in using the word “bribery” instead of the word “perjury,” in that part of the act which reads “except to a prosecution for bribery committed in such testimony.”

The source from which this section came, of course, has no effect upon .the construction of this act in its new location, but it is interesting to observe the original purpose of the section.

I am inclined to think, despite the action of the legislature of 1921 in amending this section so that it clearly grants immunity only to a person called to testify upon behalf of the state, that the section as it read before it was amended should he construed to mean “compelled to testify for the state.” Any other construction would place it in the power of a defendant to secure immunity for himself against indictment for crime. Eor instance, in this particular case, by simply being called to the stand by their counsel and testifying as to the matters in issue in their defence, these defendants could purchase immunity from criminal prosecution. But, in any event, whether the act applies to persons called to testify for the state or not, it seems to me clear that it can only apply to a person called to testify as an involuntary witness. The entire phraseology of the section breathes compulsion. The witness is to be denied the right to refuse to answer questions which might be asked of him on the ground that the same might tend to degrade or incriminate him, indicating the involuntary character of the witness, but he is to be protected in thus being compelled to testify by being granted immunity as to the matters about which he testified. Clearly, there would be no necessity for such compulsion or such protection if the act was intended to apply to a voluntary witness, to one not compelled to testify. It seems to me therefore that the phrase “called to testify” means compelled to testify, and Avhile it may be argued as to one of the defendants that he was compelled to take the stand, it seems to me that all that Judge Osborne did Avas to indicate that he was ready to hear the defendant. In any event there is no proof that these defendants, or either one of them, were compelled to talk about am/thing.

But whether these words mean compelled to testify for the state or merely compelled to testify, it is entirely clear, from a careful reading of the section and the surrounding sections appljdng to similar matters, that the section does not apply to offenders or to par-lies to a cause or proceeding. It applies at best to witnesses called for the state and not to persons who are on the defensive, not to the accused. Section 616 makes it the duty of every person upon whom a subpoena is served under this act to heed this subpoena and provides the penalty for the failure to observe the command of the subpoena.

Section 618 requires certain magistrates, upon proof of facts constituting probable cause for believing that this election had been violated and that certain people had knowledge' of the violations, to issue process of subpoena for the appearance of such person or persons having such knowledge for examination regarding the alleged violation of the act, but it distinctly exempts from such right to so subpoena the person or persons accused or claimed to be guilty of the violation of the act. Section 619 requires all witnesses sworn on the trial of anjr indictment for violation of this act to answer proper and pertinent questions and grants them immunity from criminal prosecution for testimony so given.

Section 620 also applies to the trial of indictments for violations of this act and compels persons subpoenaed to. give testimony or to produce records and also grants immunity as to any matter with reference to which they so testify or as to which they produce evidence.

Section 622 makes a person of ending against any provision of this act a competent witness against another person so offending and compels his attendance and the giving of testimony upon any trial, hearing, proceeding or lawful investigation or judicial proceeding in the same manner as any other person, but immunity is granted to the offender so testifying against another offender from prosecution for matters as to which he so testifies. It will be observed that this section applies only to an offender who testifies against another offender, and that it is not restricted to the trial of an indictment for violation of this act, but is intended to cover any proceeding or investigation.

We now come to section 621, and if the contention of the defence is true, that it applies to defendants as well as witnesses, of what use is section 622, for, if any person, whether a witness or a defendant by virtue of section -621 is granted immunity from prosecution simply by having testified, it would cover and include an offender called to testify against another offender. We must assume that the legislature meant something in adopting section 622, and yet if section 621 is construed, as contended by the defence, there was absolutely no purpose in adopting section 622. It is a principle of construction that you must construe an. act so as to give life and purpose to all parts of it where possible, and you can do this with sections 621 and 622 only by holding that section 621, like sections 619 and 620, applies only to witnesses, and that it was necessary, because sections 619 and 620 only applied to indictments, whereas it was desirable to grant immunity where witnesses testified in proceedings other than on trial of indictments. Sections 619 and 620 would be broad enough to grant the desired immunity, except that they only applied to indictments; so this section was broadened only to the extent of making it cover and include any proceedings under this act, and section 622 was then adopted to cover the acts of a person not a witness but an accused, but the legislature carefully limited the immunity in that case to the situation where the offender testified against another offender. If section 621 had already granted immunity to an offender who testified for another as contended by the defence or for himself, why the necessity of limiting section 622 to an offender who testified against another — that is, for the state, to convict another offender?

And this construction, to wit, that section 621 only applies to witnesses, is strengthened by the clause which compels a person called to testify to give testimony even though it tends to degrade or incriminate him. The legislature could not compel an accused to testify against himself, but it could compel a witness where it granted immunity to that witness, and, as the denial of the privilege of refusing to answer questions is based upon the immunity granted by the section, it is clear that the entire section, the first part as well as the latter part, applies only to witnesses who have been compelled to give testimony against their will and not at all to a defendant taking the stand voluntarily in his own behalf; not at all to the defendant who had the right to refuse to submit himself to examination by the state. It is clear therefore that there is no merit in the plea filed and I will direct a verdict for the state.

Note. — This ease, involving interesting points, is herewith inserted by request.


author: Pee Curiam.

text:
    CITY OF ELIZABETH, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS AND ELIZABETHTOWN WATER COMPANY, DEFENDANTS.
    Argued February 20, 1923
    Decided June 5, 1923.
    Public Utilities — Rates for Service — Burden of Proof of Reasonableness is on the Prosecutor when Schedule is Made by the Board — Utility Company Entitled to Increased Rates Before Improvement is Made in Service — Rules Relating to Valuation.
    On writ of certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Joseph T. Hague (Frank H. Sommer, of counsel).
    For the board of public utility commissioners, Thomas Brown.

    For the Elizabethtown Water Company, Collins & Corbin (William M. Wherry, Jr., and Clement K. Corbin, of counsel).
   Pee Curiam.

The writ of certiorari in this case brings up for review an order made by the board of public utility commissioners, increasing the rates permitted to be charged by the Elizabeth-town Water Company for water service. The prosecutor is the city of Elizabeth.

The Elizabethtown Water Company was created by a special act of the legislature in 1854, for the purpose of serving with water the city of Elizabeth and adjacent communities. The territory rapidly developed and the company was obliged to secure water from numerous sources other than the Eliza-both river, which was its original source of supply. The character of the service rendered by the company was, prior to this proceeding, a matter which came before the board of public utility commissioners. On June 8th, 1920, the board made an order requiring the installation of meters and other equipment which called for a large investment of additional capital. No increase in rates was allowed the company at this time. This order was set aside on June 7th, 1921, by the Supreme Court as unreasonable, which held that the company could not 'be required “to make bricks without straw.” After this decision the company made application for an increase of rates. The schedule suggested by the company was not adopted. The board made a new schedule. The burden of showing that this schedule is not just and reasonable is upon the prosecutor, in view of the fact that it is not a schedule prescribed by the company.

The first point argued by the prosecutor is that the board took into consideration, in its decision, evidence which was not a part of the record. It appears from the report that the engineers of the board cheeked the inventory and the appraisal was subjected to a careful analysis by a study of the unit prices and a comparison of the prices used with similar figures used by the board in other appraisal work. The prosecutor contends that the work of the engineers of the board and the board’s comparison was not embodied in the record and hence a result was arrived at and decision made outside of the record, which constitutes error. We think the board was within its powers in using the knowledge which it had obtained in other proceedings of unit prices and in using its engineers to check the inventory. It would be almost impossible for any board not to use the knowledge which it has obtained in other proceedings in weighing the evidence in'the case which it has under consideration, and to mould the form of its schedule along the lines of those schedules which had been tested in the courts and approved. The burden is on the prosecutor to show in what respect the order impairs its substantial right. The Public Utility act provides that “no order shall be set aside in whole or in part for any irregularity or informality in the proceedings of said board, unless such irregularity or informality tends to defeat or impair the substantial right or interest of the prosecutor in certiorariWe feel that the prosecutor, in this respect, has not sustained the burden the statute imposes.

The prosecutor next contends that the company is not entitled to an advance in rates until it is rendering proper and adequate service to the public; that by reason of the company’s failure to comply with, the orders of the board for the improvements of its service, it was not in a position to ask for relief. The prosecutor desires to have applied the maxim of equity that one who comes into a court of equity must come in with clean hands. In other words, that no relief is to be offered a utility if that utility is not rendering adequate and proper service, even though the failure to render such service is due to a deficient return upon the actual capital invested and an inability to attract capital to the enterprise by reason of such return, rather than to an arbitrary refusal to improve the service when the company has at its command sufficient funds for that purpose. In the present case, if this doctrine was applicable, because of the company’s failure to obey the order of June 8th, 1920, it could not be applied, in view of the fact that this court held that the company was under no obligation to malee the improvements ordered in view of the financial inability of the company to malee them. If other defects of service be relied on by the prosecutor we are of the opinion that such defects of service arose- from insufficient rates and should not prevent the increase of rates granted by the board. The policy of the law is, and should be, to aid utilities to properly function and to render adequate service to the public by permitting rates to be charged for the service rendered which will yield an adequate return upon, the capital invested, maintain the property, and attract capital. The policy should never be one of destruction. O’Brien v. Public Utility Board, 92 N. J. L. 44. A starved utility is in no better position to render proper service than a starved horse or a motor car without fuel. We think the evidence amply justified the increase in rates granted. •

The prosecutor also attacks the rate base in several particulars, contending that the board, in its valuation, took into consideration matters which should not have been included and also erred in fixing too high allowances for overhead, &c. There was evidence which justified the results arrived at by the board and they will not be disturbed in view of the fact that there is evidence which will support the finding of the board.

We find that the board did not -value the easements as if owned in fee but valued them as easements. We approve the inclusion of the entire valuation of the thirty-six-inch main, assuming for the time being it is larger than is now required. It was constructed according to dimensions approved by a competent engineer. If it was mistakenly constructed too large, which we do not think, a utility should not be punished for a mistake of judgment in such a case any more than a physician should be prevented from charging his fee in a case where he may have made a mistake in his diagnosis. This case is different from that of the Tintern Manor Water Co., 70 N. J. Eq. 71, where the entire plant was constructed to furnish a supply of water grossly in excess of reasonable requirements.

We find nothing unreasonable in the apportionment of the cost of fire service. It was made according to principles established and approved.

The writ is dismissed and the order of the board affirmed.


text:
    JOHN HUTCHINSON, PLAINTIFF, v. JERSEY CENTRAL TRACTION RAILROAD COMPANY, DEFENDANT.
    Submitted March 8, 1923
    Decided June 5, 1923.
    Negligence — Motor Vehicle with Trolley — Testimony of Expert — ■ Retrial.
    On defendant’s rule to show cause.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff, A. L. Simpson and Alexander Simpson.

    For the defendant, Wilson & Smock and Edwards & Smith.

   Per Curiam.

The defendant, Jersey Central Traction Eailroad Company, owns and operates an electric railway over a private right of way, which crosses at grade, Laurel avenue, in the municipality of Keansburg, in the county of Monmouth. This avenue runs approximately north and south. It is a gravel road forty-four feet in width. The railroad runs approximately east and west. A good view of the railway can be obtained by a user of the highway both to the east and west.

On July 24th, 1921, the plaintiff was driving a motorcycle with a side car attached, southwardly on Laurel avenue towards the track of the railway. In the side car was seated his wife and three children. As the rear of his motorcycle was passing over the track of the railroad it was struck by an electric car which was proceeding in an easterly direction. The plaintiff sustained serious injuries, including the amputation of his left leg just' above the knee., The plaintiff instituted this suit for damages alleging that the defendant’s car was negligently operated. The ease was tried at the Hudson Circuit and a verdict rendered in favor of the plaintiff, which was set aside by the Supreme Court in an opinion which analyzed the plaintiff’s testimony, and held that it demonstrated “the absolute recklessness of the plaintiff in attempting to cross the tracks in front of a trolley car traveling as he says it was.”

The case was again tried at the Hudson Circuit. The testimony of the plaintiff and his wife was substantially the same as on the former trial. In addition to this the plaintiff called the motorman, who testified that when about two hundred feet from Laurel avenue he reduced the speed of his car to ten miles an hour, and then as he came nearer Laurel avenue increased the speed to twelve or fourteen miles an hour, and then applied his brakes, reducing the speed of the car, presumably upon seeing the probability of a collision with the motorcycle.

. The trial judge refused to nonsuit, holding that the evidence of the motorman, not given for the plaintiff in the former trial, differentiated the plaintiff’s case at this trial from that made at the former trial. The case was submitted to the jury, which found a verdict for the plaintiff. The trial court allowed a general rule to show cause which brings before us all the questions raised during the trial as well as the result thereof.

Among the injuries of which the plaintiff complained as a result of the accident was a defective hearing, described by the plaintiff as a “ringing in the ears.” On this branch of the case the plaintiff called as an expert witness Dr. John E. Welsh, who had made on the day preceding the trial an examination of the plaintiff for the sole purpose of testifying at the trial. The witness testified that he had made a series of tests to establish whether the plaintiff had normal hearing and whether his auditory nerve was normal, but that he was unable to reach a conclusion on these matters without the aid of subjective symptoms. Over objection this witness was permitted to testify as to the result of his examination, using in the result reached the statements of the plaintiff. To the court’s ruling at the time objection was made and exception was taken.

In the case of Consolidated Traction Co. v. Lambertson, 60 N. J. L. 452, this question was considered by the Court of Errors and Appeals. Mr. Justice Dixon, who spoke for the court, said: “It is well settled that the declarations of a patient as to his sjmrptoms, made to his physician or surgeon for the purpose of treatment, are admissible in evidence. Fay v. Harlan, 128 Mass. 244; State v. Gedicke, 14 Vroom 86. While such declarations partake of the nature of hearsay, they derive some credibility beyond that of hearsay, from the fact that the patient expects his physician or surgeon to be guided by them in administering remedies, and so the patient has an incentive beyond the ordinary obligation to tell the truth:

“But when such declarations are made not for the purpose of treatment, but for the purpose of leading the physician or surgeon to form an opinion to which he may testify as a witness for the declarant, not only is this reason for credibility absent but instead self-interest becomes a motive for distortion, exaggeration and falsehood. Hence, it is the better conclusion that declarations made under such circumstances are not competent evidence on behalf of the declarant. Grand-Rapids Railroad Co. v. Hunlley, 38 Mich. 537; Jones v. Village of Portland, 88 Id. 598; Davidson v. Cornell, 132 N. Y. 228; Delaware, Lackawanna and Western Railroad Co. v. Roalefs, 70 Fed. Rep. 21.

. “Of course, this does not apply to utterances which are the natural expressions of present pain, even though they are brought out by an examination made for the purpose above mentioned. Such utterances are themselves symptoms, and while they may be feigned, are, nevertheless, competent testimony of the honesty and weight of which the jury must judge.”

Twenty-six years have passed since the decision in the above case. During this time this principle has been frequently approved. Some of the more recent cases are: McKormick v. West Bay City, 110 Mich. 265; Greinke v. Chicago City Railway Co., 234 Ill. 564; Shaughnessy v. Holt, 236 Id. 485; Union Pacific Railway Co. v. McMican, 194 Fed. Rep. 393.

In this case the examination made by Dr. Welsh was for the sole purpose, as has been said, of testifying at the trial. It was made on the day preceding the trial. It would be difficult to find a case where the motive for exaggeration of subjective symptoms would be stronger. In our opinion -the testimony of Dr. Welsh, so far as it included statements made to him by the plaintiff as to the latter’s symptoms and opinions based in whole or in part therein, was inadmissible and should not have been allowed to go to the jury. The verdict rendered was large. Its size must have been in part induced by this testimony. Its admission was clearly prejudicial to the defendant. Eor this reason the rule to show cause should be made absolute. We deem it unnecessary to consider the other questions raised and briefed.

The rule is made absolute.


text:
    FRANK J. IADONE, WALTER LAPINSKY AND JOSEPH HAGEN, PROSECUTORS, v. THE STATE OF NEW JERSEY, DEFENDANT.
    Submitted March 8, 1923
    Decided June 5, 1923.
    Indictments — Burning Motor Vehicle Under Act of 1921, ch. 209 — ■ Constitutionality of Act Sustained.
    On writs of certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutors, Weinberger & Weinberger.

    For the defendant, J. Willard DeYoe and Bernard Stafford.

   Per Curiam.

The wilts of certiorari allowed in the above cases have brought to this court two indictments found against the prosecutors at the January term, 1922, of the Court of Oyer and Terminer in and for the county of Passaic. One of the indictments is based upon chapter 209 of the laws of 1921 (p. 687), which is entitled: “An act declaring it a felony to willfully and maliciously burn or cause to 'be burned or to set fire to, or to attempt to set fire to, or to otherwise destroy any motor vehicle.”

The body of the act reads as follows:

“1. If any person shall willfully and maliciously burn or cause to be burned, or set fire to, or attempt to set fire to1 any motor vehicle, with intent thereby to defraud or prejudice any person or body politic or corporate that has underwritten or shall underwrite any policy of insurance thereon, or with intent thereby to destroy the property of another, then, and in every such case, the person so offending shall be guilty of a felony, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars, and to undergo imprisonment not exceeding five years.”

This indictment contains four counts. The first charges that the prosecutors on March 28th, 1922, unlawfully, willfully and maliciously did burn certain goods and chattels, to wit, one Oldsmobile automobile, the property of Prank J. Iadone, which was insured by the said Prank J. Iadone in the Glens Palls Insurance Company, with intent to prejudice the said company, contrary to the form of the statute, &c.

The second count is similar to the first count except it uses the words “did cause to be burned” for the words “did burn” used in the first count.

The third count is in the same form as the first and second counts, except that it uses the words “did aid, counsel, procure and consent to the burning” in place of the words in the first and second counts previously mentioned.

The fourth count is in the same form as the others, using, however, the words “did set fire to and burn” certain goods and chattels, &c:

The second indictment charges the prosecutors with conspiracy to hum and destroy the automobile with intent to defraud the said insurance company.

The prosecutors' contend that chapter 209 of the laws of 1921 is unconstitutional, in that it violates article 3, section 7, subdivision 4, of the constitution of New Jersey, which reads as follows-: “To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object and that shall be expressed in the title.” The insistence is that the body of the act makes it a felony not only to set fire to and destroy an automobile, but to destroy other kinds of property than an automobile, while the title of the act refers to the burning or destruction of a motor vehicle, so that the body of the act is broader than its title. The clause which the prosecutors contend makes the act applicable to property other than motor vehicles is the following clause, “with intent thereby to -destroy the property of another.”

We do not think the construction given to the act by the prosecutors warranted by the language thereof. The body of the act makes it a felony to burn a motor vehicle with intent (1) to defraud one who has insured the same, or, (2) with intent thereby to destroy the property of another. The property of another, referred to, is a motor vehicle, in our opinion, and nothing else. It is quite evident that the act, when draftedj had in it the words “a motor vehicle” between the words “destroy” and “the” in the clause “or with intent thereby to destroy the property of another,” so that it read “or with intent thereby to destroy a motor vehicle, the property of another,” and that in printing the act the words “a motor vehicle” were inadvertently omitted. Without these words there is nothing in the act which suggests that the words “property of another” mean anything else than a motor vehicle, which is the only kind of property referred to in the act. We do not even think it necessary to insert in the statute the words “a motor vehicle” to make the clause referred to apply to motor vehicles, but if it were necessary we think that the other parts of the statute are sufficiently clear to justify such an insertion, under the rule of construction that words may be supplied to effect a meaning clearly shown by the other parts of the statute to carry out an intent therein expressed. Lane v. Schomp, 20 N. J. Eq. 82; Orvil v. Woodcliff, 61 N. J. L. 107. As we hold that the act relates only to motor vehicles, it follows that the title of the act is good, as the title need be only a label and not an index, as has been frequently stated, and that the act is constitutional.

This view malees it unnecessary to consider whether the indictments can be sustained under sections 37 and 126 of the Crimes act, as the state contends. •

The writs of certiorari are dismissed and the indictments remanded to the Passaic Oyer and Terminer for trial.


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    HARRY R. SHAW, PLAINTIFF, v. JOHN EGGIE AND JOSEPH EGGIE, TRADING AS PARKSIDE MOTOR CAR COMPANY, DEFENDANTS.
    Submitted March 22, 1923
    Decided June 5, 1923.
    Salesmen’s! Commissions — Automobiles—Accord and Satisfaction.
    On defendant’s rule to show cause.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff, Patrick H. Harding.

    For the defendants, Sydney T. Smith..

   Per Curiam.

This is defendants’ rule to show cause. The claim is for commissions as auto salesman, claimed to have been earned on three several transactions. The case is submitted on briefs and no brief for plaintiff is before us. On examination of the testimony we find, in addition to facts and circumstances casting serious doubt on the correctness of plaintiff’s claim both as to validity and amount, very satisfactory testimony that all matters between the parties were settled and disposed of by an accord and satisfaction some time after plaintiff ceased to have any relations with the defendant.

The rule will be made absolute.


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    JOHN SHERRER, PLAINTIFF, v. PATRICK J. MACKIN, DEFENDANT.
    Argued February 21, 1923
    Decided June 5, 1923.
    Negligence — Plaintiff’s Rule to Set Aside Judgment in His Favor —Inadequacy of Award — New Trial to Consider Both Liability and Damages.
    On rule to show cause.
    Ref ore Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, William O. Gebhardt & Son.

    Contra, William George.

   Per Curiam.

This is plaintiff’s rule to show cause why a verdict in his own favor for $100 should not be set aside and a new trial granted.

We think that the damages awarded were grossly inadequate in view of the evidence.

Plaintiff was injured in an automobile accident.

The evidence seems to show without substantial dispute that he sustained a severe out on the left side of the head, extending to the bone of the skull and four inches long in which seven stitches were taken. He suffered from shock and was also injured about the legs. He lost fifteen days at his work and was earning $5 a day at the time of the accident. He underwent treatment for two and one-half months and suffered considerable pain, and there was evidence that he had suffered a derangement of the nervous system. He had a substantial medical bill to pay.

The rule granted by the court in this case was to show cause why the verdict should not be set aside and a new trial granted as to damages only. But we think that the situation requires that a new trial unlimited in scope and including both liability and damages should be granted, and it is so ordered.


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    NATHAN H. BERGER, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Submitted March 22, 1923
    Decided June 5, 1923.
    Negligence — Automobile Collision — Motion to Nonsuit — Direction of Verdict — Nature of Evidence Considered.
    On defendant’s appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
    For the appellant, Leonard J. Tynan.

    For the appellee, Nathan H. Berger.

   Per Curiam.

The only question is whether the evidence presented a case for the jury. There was a motion to nonsuit, and one to direct, on the grounds that there was no evidence of negligence and that plaintiff was conclusively shown guilty of contributory negligence.

According to the testimony for plaintiff, he drove his car up Belmont avenue ahead of defendant’s trolley car and came to a standstill preparatory to backing into a parking space, and that while so standing, defendant’s car ran into the rear of plaintiff’s ear, though the tail light was shining.

Of course, the jury should have believed the testimony of other witnesses and have taken a different view of the facts, but in such a general situation as that indicated above, it is difficult to see how any court can properly say there was no question of negligence or contributory negligence for a jury to pass upon.

The judgment is affirmed, with costs.


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    CLAIR E. ANDERSON, PLAINTIFF-APPELLEE, v. WALKER REALTY COMPANY, DEFENDANT-APPELLANT.
    Submitted March 22, 1923
    Decided June 5, 1923.
    Tenants — Rights of — Constructive Eviction on Account of Lack of Heat — Distress—Alleged Error — Plaintiff’s Judgment in Replevin Affirmed.
    On defendant’s appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
    For the appellant, C. Herbert Walker.

   Per Curiam.

Appellee, plaintiff below, was a tenant in an apartment house of the appellant in December, 1922, and deeming himself to have been constructively evicted from his tenancy because of a lack of steam heat during that month, removed on the 22d to other quarters. The landlord distrained in January for January rent due (if at all) in advance, but without impounding the chattels; the tenant brought this suit in replevin, and had a judgment for possession of the goods.

The first specification of error is merely the general one, that the trial judge erred in giving judgment of possession, and needs no discussion. We have difficulty in understanding the argument under this point. It is said that “the trial judge erred in holding that defendant had constructively taken all the goods of the plaintiff:” As the distress warrant is not before us, we cannot say what goods were taken. The brief also says, “the plaintiff had an adequate remedy at law for the wrongful distress if made by defendant.” This is true, and one remedy is by replevin, and it was pursued in this case. 34 Cyc. 1353, especially note 3; 3 Bl. 145; Metropolitan Credit Co. v. Anderson, 118 Atl. Rep. 581.

The second specification relates to the exclusion of testimony by Erisbie about the heat conditions in his apartment over plaintiff’s. The court consistently and properly declined to go into the outside issues of heat conditions in other apartments, and overruled several similar offers by plaintiff. There was no error in excluding this testimony. At best it was discretionary with the trial court.

The third specification, that there was “no testimony that plaintiff’s health was injured by lack of heat,” points to no judicial action.

The fourth, and last, is that “the court erred in finding that there had been a constructive eviction as a matter of law.” Such a finding would seem to be a mixed finding of law and fact; but apart from this, we are in no position to determine whether the court erred in this regard, because appellant has .not print* d the important documentary evidence in the case, viz., the Uase, and the language of that paper may well support full] the finding of the trial judge. Error must be shown, as every intendn eut is in favor of the correctness of the judgmoni below. None being shown, the judgment is affirmed.


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    THE STATE, EX REL. JOSEPH PAFFENDORF, RELATOR, v. THE TOWNSHIP OF LYNDHURST AND LOUIS M. FAVIER, RESPONDENTS.
    Argued February term, 1922
    Decided June 5, 1923.
    Zoning Ordinance — Building Plans Approved but Permit Withheld Because of Resolution Adopted Before Ordinance Became Effective, Which Practically Amounted to Such an Ordinance by Resolution.
    Before Justices Parker, Bergen and Minturn.
    For the relator, MacKay & MacKay.

    For the respondents, Luther Shafer.

   Per Curiam.

This case is before us on the return to an alternative writ of mandamus commanding the respondents to show cause why a peremptory writ should hot go directing the respondents to issue to relator a permit for the erection of • a building. The record is confusing: it consists of a rale to show cause why a writ of mandamus should not issue, alternative writ, with a return by the municipality defendant which admits all the essential facts laid in the writ, avers a proposed zoning ordinance not adopted until months after the relator applied to the building inspector for a building permit, to which he was entitled under defendants ordinance; that in contemplation of the adoption of the zoning ordinance defendant passed a resolution forbidding the inspector to grant the permit, although he had approved the plans and specifications as complying with the building code in force in the defendant municipality, a return by the other defendant, the building inspector, which admitted the facts set out in the writ. The relator filed an answer in the nature of a demurrer, setting out additional facts, and conceiving he was required to prove some of the facts averred in his answer, obtained a rule to take depositions, and under it both parties took proofs. This was an irregular proceeding as the disputed facts should have been determined by- a jury on an issue certified to a trial court, yet as both parties have submitted the case on this record, and substantial justice can be done by treating relator’s pleading as a demurrer, we will deal with the case from that aspect. The record shows that relator applied to the inspector of buildings for a permit to erect a garage, who approved the plans as being according to the building code, and relator would have been entitled to his permit unless the following circumstances justified its refusal, it being the duty of the inspector under the municipal ordinance to grant or refuse it within three days after application. The plans and specifications were approved by the inspector June 16th, 1921, and if the relator was entitled to a permit it should have been issued within three days after.

On February 28th, 1921, the respondents-had before them a proposed zoning ordinance, which if in force would .have justified a refusal, but this proposed ordinance was abandoned and a new one introduced August 15th, 1921, which was not adopted until January 3d, 1922; there was, therefore, no zoning ordinance in force when the application for the permit was applied for. But while the ordinance, subsequently abandoned, was pending, and with its adoption in view, the respondents adopted a resolution prohibiting the inspector from granting any permits except for dwellings. We do not think that the respondents had any lawful right, before a zoning ordinance' was in force to, by resolution, practically put in force a zoning ordinance not existing, for it amounted to a discrimination between buildings, to be established by the zoning ordinance, and, therefore, relator was entitled to his permit under the building code. The effect of the resolution was to apply a rule which it was intended to establish by a future ordinance, and if this could be done there was no need of the zoning ordinance, for the erection of any building could be arbitrarily prevented by resolution. At the time the relator applied he had complied with the building code and as there was no preventive ordinance, his plans having been approved as required by ordinance, he was entitled to his permit.

The peremptory writ should go.


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    ALLEN S. HOSKING, PLAINTIFF-APPPELLEE, v. FREDERICK ISAACSON AND WEST ORANGE HAY AND GRAIN COMPANY, INCORPORATED, A CORPORATION, DEFENDANTS-APPELLANTS.
    Submitted March 22, 1923
    Decided June 5, 1923.
    Negligence — Runaway Horses — Injury to Automobile — Evidence Relating to Negativing of Negligence.
    On defendants’ appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.
    For the appellants, Collins & Corbin.

    For the appelle, William A. Lord.

   Per Curiam.

Plaintiff sued for damage done to his automobile by a runaway horse belonging to defendant West Orange Hay and Grain Co., and under charge of defendant Isaacson, who was its president. The horse was dmwing a wagon, which collided with plaintiff’s car, inflicting the damage in question. Plaintiff offered testimony to prove the circumstances of the accident, the ownership, the eont”ol by defendant Isaacson, and the amount of damage, and rested.. The court denied a motion to nonsuit. On the defendants’ ease it appeared that Isaacson had bought the horse a few hours previously for $75 after a trial which he said took half an hour, but which his assistant Gabriel testified consisted of driving him about a block and back again; that Isaacson could not remember the natme or number of the place where he had bought the horse nor the name of the person or corporation from whom he had bought hiim; that he had a boy drive another horse and the wagon down from West Orange to the place where the purchase took place, and there the new horse was hooked up to the wagon and the other horse went home under saddle. Isaacson and Gabriel then started from this place (in First street, Newark), for West Orange via Central avenue. By this time it was after dark. Instead of going south on First street to Central avenue, they went north and came out into Orange street, and apparently thinking themselves on Central avenue, turned to the right and did not discover the error until Isaacson found himself somewhere on Broad street, Newark, near the public library. At this juncture, one of the hind shoes showed signs of being loose, and Isaacson stopped the horse. Gabriel by his orders got out with a lighted lantern and attempted to examine the hind feet, when the horse, according to Isaacson, started to ■walk, then to run, swung around a corner, threw Isaacson out (there was testimony that he said he had jumped) and sped away, evidently down Bridge street and across the bridge into Harrison avenue, Harrison, where the collision occurred.

The court refused to direct a verdict for the defendants, and gave certain instructions to the jury which are claimed to be erroneous. Error is also assigned on the refusal to non-suit and to direct, and with respect to certain rulings on evidence.

'There was no error in refusing to nonsuit, for as the court said to the jury, obviously on the authority of Kokoll v. Lumber Co., 77 N. J. L. 169; Francois v. Hanff, Id. 364; Dennery v. Great A. & P. Tea Co., 82 Id. 517, “the unexplained presence upon a public highway of a runaway horse harnessed to a wagon, unattended by the owner or other person, raises a prima facie presumption of negligence on the part of the owner.” Obviously the plaintiffs case was within that rule, and a nonsuit would have been erroneous.

It is urged, however, with respect to the refusal to direct, that the evidence for defendant fully rebutted that presumption by exhibiting a situation in which negligence was negatived as a court question. There are cases in which it has been so held. In Unger v. Forty-Second Street Railroad Co., 51 N. 7. 497, the runaway street ear horses were accounted for by the outside interposition of two drunken men, one of whom struck one of the horses, and the other snatched the reins away from the driver. So, in McCormack v. Standard Oil Co., 60 N. J. L. 243, the excavation in the street which on plaintiffs case was inferably chargeable to the defendant, was incontestably shown to have been made by other parties. But in the case at bar no such situation was intimated. Confessedly, Isaacson had bought a $75 horse after a very short trial, not knowing, so far as appears, whether he was used to city sights and noises, and undertook to drive, this strange horse several miles to West Orange, and when the shoe made trouble, had his assistant start an examination in a busy street with a lighted lantern around the horse’s heels. It is suggested that the horse could not see the light, but the case is silent as to whether the bridle had blinders on it. Add to this that Isaacson’s testimony as to the place where, and the persons from whom, he bought the horse was so indefinite as to arouse the suspicion of the judge himself, and the further circumstances that two men starting for West Orange via Central avenue succeeded in getting into Orange street and driving over a mile into the centre of Newrark before discovering where they were, and we have an explanation of the occurrence "which the jury might well discredit in the first'place, and might well conclude "was not explanatory, but rather incriminatory in the second. As was said in the Dennery case, supra (at p. 520), “We do not think it presented such a clear negation of negligence on the part of the driver as to justify the court in directing a verdict for the defendant.”

This result necessarily disposes of the point that the judge erred in charging the rule laid down in the cases cited. The instruction is challenged on the ground that the ex-¡olanation was adequate; but we have just said that it was for the jury to say whether it was or not.

It is again urged for error that the court charged it was not necessary to show that the horse was of a vicious disposition. The general correctness of the proposition is not attacked (see Francois v. Hanff, supra, and the discussion in the Dennery case), but it is said that it was irrelevant and therefore harmful. We fail to see that it was irrelevant. Isaacson and Gabriel had both testified that they had examined the horse and found him gentle and kind, and we do not know but that counsel in summing up to the jury had expatiated on this very point. It may be noted that counsel excepted to this part of the charge on the ground that “it [knowledge of a vicious disposition] must be proved.”

Lastly, the overruling of certain objections to questions asked of Isaacson on cross-examination. Of these questions, all but one were not answered at all, so the rulings went for nothing as error even if they were wrong.

On the point of sending the old horse home and driving the new one, Isaacson was asked:

“Q. Now, I am asking you why you used the new horse on the wagon?
“Mr. Cooper — Objected to as immaterial. It calls for a conclusion. (Objection overruled; exception. The question was not answered.)
“Q: Why didn’t you send the boy home on the new horse and keep the wagon attached to the old horse? A. Because it being a new horse, I wanted to drive myself.”

As to this, it may be said, first, that the question objected to was not answered; secondly, that assuming it was answered, the objection was not such as to bar it, because the question called for facts, i. e., the thought in Isaacson’s mind at the time as influenced by the circumstances; thirdly, that the answer in any case was not harmful, but rather the reverse; the horse being a new one, Isaacson preferred not to trust him to the boy; fourth, that it was perfectly legitimate cross-examination.

We find no error, and the judgment is, therefore, affirmed.


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    THE STATE v. CLARENCE GORDON.
    Decided June 7, 1923.
    Embezzlement — Definition of the Offence — Unincorporated Association not a Partnership.
    On error to the Essex Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the plaintiff in error, Fuerstman & Allbach.

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

The defendant was convicted upon an indictment charging that, being the bailee, agent and servant of the Modern Ideal Business Club, he embezzled certain funds belonging to the club and with- the collection and care of which he had been entrusted. The proof showed that this club was un unincorporated association, of which the defendant was a member, and the purpose of its organization was to accumulate sufficient money to enable it to go into business. Each member paid an initiation fee and weekly dues. The association elected a president, a secretary and a treasurer, each of whom functioned in that capacity. The defendant was elected the treasurer, and received and receipted for the initiation fees and the weekly clues. These facts are undisputed. The proof was convincing that the fees thus received by the defendant wrere wrongfully appropriated by him to his own use, but it is argued before us that such wrongful appropriation was not an embezzlement, within the meaning of the statute, for the reason that this association was a partnership of which he was one of the members; and it is contended that there can be no such thing as an embezzlement by á partner of funds received by him as a member of the firm, even though he ■wrongfully appropriated them, and that consequently the conviction must be set aside.

We do not think that the contention that this association was a mere partnership is justified by the facts. It is an unincorporated association with officers- duly selected and charged with the performance of specified duties. But the character of the association, it seems to us, is immaterial. Section 184 of our Crimes act declares that “any agent entrusted with the collection or care of any moneys who shall fraudulently take or convert the same to his own use, shall be guilty of a misdemeanor.” That the defendant was an agent of the association, entrusted with the collection and care of moneys belonging to the association,, cannot be doubted. They were paid to and received by him, not because he was a member of the association, but because he was its duly-elected officer. Having received these funds as the association’s agent, he came within the condemnation of the statute when he fraudulently converted them to his own use.

We conclude therefore that the conviction cannot be set aside upon this ground.

The only other ground for reversal that has been argued before us is directed to that part of the charge to the jury dealing with the question of the lack of corroboration of the defendant’s testimony while on the witness-stand. We have examined the instruction and find no legal error in it.

The conviction will be affirmed.


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    MICHAEL KELLY, PROSECUTOR, v. THE MAYOR AND BOARD OF ALDERMEN OF THE TOWN OF MORRISTOWN, ANGELO J. A. BENNELL AND FREDERICK ROFF, DEFENDANTS.
    Decided June 6, 1923.
    Ordinances — Municipal—Violation of, to Run Jitney Bus — Suspension of License Without Notice — Conviction Set Aside.
    On certiorari.

    Before Justices Kalisoh, Black and Katzenbach.
    For the prosecutor, James H. Bolitho.

    For the defendants, Nathaniel G. Toms.

   Per Curiam.

The prosecutor was convicted in the Becorder’s Court of the town of Morristown, of having, on July 19th, 1922, violated section 1 of an ordinance of the said town, entitled “An ordinance to license and regulate auto buses, commonly called jitneys,” and was fined $10.

That part of the record which contains the conviction and the judgment reads as follows:

“Having considered the evidence I do find, on this July 21st, 1922, that the said Kelly did on July 19th, 1922, willfully and unlawfully operate said auto bus, commonly called jitney, in violation of section 1 of said filrst-mentioned ordinance as charged, and do find him guilty, and do convict him of violating section 1 of said ordinance, and I do order and adjudge that the said defendant be and is hereby fined ten dollars.”

The complaint on which the defendant was arrested, tried and convicted, reads: “That on July 19th, 1922, said Kelly, being then and there the driver of a certain auto bus commonly called jitney, and being the holder of a license to operate said bus under and by virtue of the terms of an ordinance of the town of Morristown, entitled ‘An ordinance to license and regulate auto buses, commonly called jitneys,’ passed December 23d, 1922, which said license was issued to him on June 27th, 1922, but which said license, and the right to operate said auto bus thereunder, was on July 17th, 1922, by the mayor and board of aldermen of the town of Morristowm, in accordance with said ordinance, duly and legally suspended for the term of one week, that is, from the said July 17th, 1922, to July 24th, 1922, willfully and unlawfully operated said auto bus in. the town of Morristown, in the county of Morris, in violation of section 1 of said ordinance.”

Section 1 of the ordinance alleged to have been violated reads: “No person or corporation shall operate any auto bus, commonly called jitney, within the town of Morristown, until he or it shall have first obtained a license so to do under the ordinance.”

Section 8 of the ordinance, as amended, provides:

“Any person or corporation found guilty of violating any of the terms of this ordinance shall be liable to a fine for each violation, of ten dollars.”

Now the complaint upon which the prosecutor was ajoprehended makes it quite clear that he had obtained a license from the town of Morristown to operate a jitney bus, and that on the 19th day of July, 1922, the date of the alleged commission of a violation of section 1, he was still the holder of the license issued to him as above stated. The theory, upon which the complaint seems to be founded, appears to be that though the prosecutor had obtained a license from the town to operate the jitney bus, as required by section 2 of the town ordinance, nevertheless, since during the week beginning July 17th, 1922, to July 24th, 1922, the license, for some reason or other (the cause or reason not being stated in the complaint), vras suspended, that the operation of the auto bus by the prosecutor on July 19th was a violation of section 1 of the ordinance. This seems to us to be clearly erroneous. There is nothing contained in section 1 that prohibits the operation of an auto bus by one who has obtained a license and whose license is under suspension. Penal laws must be strictly construed, hence, unless there is some section of the ordinance providing a penalty for the operation of an auto bus by a person who has obtained a license to operate the same, but whose license is temporarily under suspension, none can be lawfully inflicted.

Section 7 of the ordinance, in substance, provides that all jitneys licensed thereunder shall ¡be subject to inspection by the mayor and any member of the board of aldermen, and by any police or health officer both as to condition and operation, and if found'to be unsafe or unsanitary or for any'oilier reason deemed sufficient, the license may be without notice suspended by the mayor and board of aldermen, or the committee on licenses thereof; and if such defect is not remedied or such reason complied with within ten days after notice of such suspension the license may, by the mayor and board of aldermen, be revoked.

Without pausing to consider the reasonableness of this section of the ordinance in its entirety, and while it may be within the power of the mayor and board of aldermen to suspend a license where ihe jitney is found to be unsafe or unsanitary, which question does not become necessary to decide here, we think that the declaration “or for any other reason deemed sufficient” by the mayor and board of aider-men a license may be suspended, is clearly too indefinite, if not also too unreasonable.

Furthermore, as a license may be suspended without notice, it seems to us that the complaint in this case is insufficient to charge the' prosecutor with a violation of section 1 of the ordinance, without alleging that he had notice or knowledge that his license was suspended. Although the mayor and board of' aldermen are authorized by the ordinance to suspend the license in given cases, without notice, that fact cannot rationally carry with it that the prosecutor need not have any notice or knowledge of such suspension before he can be successfully prosecuted for a violation of his right under the license to operate. A natural sense of justice forbids such a thought.

The phrase in the complaint that the prosecutor’s license was “duly and legally suspended” is a mere conclusion and opinion expressed on undisclosed facts, and is contrary to sound and valid pleading.

So, also, the phrase that the “prosecutor “did willfully and unlawfully operate” the auto bus, &c., is a conclusion drawn from undisclosed facts.

For the reasons given, the conviction should be set aside, with costs.

We have not examined the other reasons urged on behalf of the prosecutor for setting aside the conviction, since we concluded that the complaint was insufficient and no ordinance on which to sustain the conviction.


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    LEONARD KELLY, PROSECUTOR, v. THE MAYOR AND BOARD OF ALDERMEN OF THE TOWN OF MORRISTOWN, ANGELO J. A. BENNELL AND FREDERICK HOFF, DEFENDANTS.
    Decided June 6, 1923.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, James H. Bolitho.

    For the defendants, Nathaniel C. Toms.

   Per Curiam.

The questions involved in this case are the same as have been passed upon by us in No. 204 of the November term, 1922, in which Michael Kelly was prosecutor and against the same defendants, and for the reasons stated in the opinion filed in that case the conviction herein is set aside, with costs.


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    CHRISTIAN FEIGENSPAN, A CORPORATION, v. WILLIAM C. PHILLIPS.
    Decided June 7, 1923.
    Notes — Secured by Chattel Mortgage — Plaintiff Assumes Possession of Goods Mortgaged — Sells and Sues on Note to Recover Deficiency.
    On plaintiff’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, Meyerson & Ely.

    Contra, James H. Bolitho.

   Per Curiam.

This action was brought to recover the amount alleged to-be due upon a promissory note for $967.15, dated September 7th, 1920, and drawn by the defendant to the order of the plaintiff. The note was payable one day after date, and was. made under the foSowing circumstances: In May, 1916, the defendant and one Marvin W. Anderson formed a partnership for the purpose of carrying on a hotel business in the town of Dover. In order to finance the undertaking, the plaintiff, Feigenspan, loaned these partners $4,017, and received a note from them for that amount, secured by a chattel mortgage upon the fixtures of the hotel. 'Payments were made upon the indebtedness from time to time until the giving of the note in suit. At that time the partnership between Anderson and Phillips was dissolved, the latter took over the business, the original note was surrendered, and the chattel mortgage canceled. The indebtedness had by that time been reduced to $967.15, and Phillips gave to Feigenspan to secure this amount his own note and a new chattel mortgage upon the fixtures. In 1922, nothing having been paid on this new note, in the meantime, the plaintiff demanded payment and the demand not being complied with, took possession of the property covered by this new chattel mortgage, and brought this suit on the note. While the suit was pending the plaintiff caused the property covered by the chattel mortgage-to be sold at public sale, according to law, and credited the amount brought at the sale on the note, and its claim before the jury was that it was entitled to recover the amount of the note, with interest, less the credit just mentioned. The facts recited were not disputed, but the defendant claims that he was not liable, for two reasons; First, because the plaintiff took possession of the property covered by the chattel mortgage under an agreement between the parties by which the plaintiff accepted these chattels in full satisfaction of the debt. The other claim was that the property covered by the mortgage and sold at public sale was, in fact, worth much more than the amount of the note, and that, therefore, there was no liability remaining after the sale had been made. The jury found a verdict in favor of the defendant, and necessarily concluded that the defendant was entitled to succeed on one or the other of these claims. Their conclusiolT is manifestly the result of prejudice and without justification. The claim that the chattels were taken possession of under an agreement that their acceptance should satisfy the debt was practically without support in the proofs, even by the testimony of the defendant hiimself, and the testimony that no such contract had been made was almost conclusive upon this fact.

So, too, the claim that the property covered by the chattel mortgage did not bring its fair value at the public sale thereof is equally without support. These chattels were second hand, many of them old and in a dilapidated condition, as the defendant himself stated on the witness-stand. Moreover, there was no proof at all offered by the defendant to show what the market value of these chattels was at the time of the sale, or that they were worth more than the price brought at the sale.

In this situation, the verdict of the jury, as we have before stated, was entirely without justification, and the rule to show cause must, therefore, be made absolute.


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    IN THE MATTER OF THE APPLICATION FOR A SUMMARY INVESTIGATION OF COMPLAINTS AS TO THE ELECTION OF A BOARD OF DIRECTORS OF THE WOODCLIFF TRUST COMPANY, HELD ON THE 9th DAY OF JANUARY, a. d. 1923.
    Argued March 22, 1923
    Decided June 5, 1923.
    Corporations — Elections—Review by Supreme Court — Quorum— Voting Trust Stock — New Election Ordered.
    On petition.
    Before Justices Parker and Bergen.
    For the petitioners, J. Emil Walscheid.

    For the respondents, Warren, Britt & Stanton.

   Per Curiam.

This is a summary proceeding under section 42 of the Corporation act, begun by petition and rule to show cause, investigation by depositions ordered by Mr. Justice Swayze, depositions taken and now before us.

Petitioners’ fundamentals of argument run thus: The election was void and should be set aside because there was not a quorum of stock voted under the by-laws. That the reason there was not a quorum is that a block of two hundred shares, standing in name of Howard V. Meeks, trustee, was subject to a voting trust limiting the powers of the trustee, and that he exceeded his powers over the protest of petitioners •or one of them who were among the cesluis que trust. That he exceeded his powers because the trust agreement provided that “all questions to be determined to carry out the provisions of this agreement shall be decided by a vote of two-thirds of all the subscribers.” That the question of how he should vote had not been so decided, but his vote was based on instructions of nine subscribers out of fourteen, four voting contra and the fifth being ignored, on a pretext alleged to be frivolous.

Assuming for the present the correctness of this chain of reasoning if the facts be correct, the first question relates to the alleged frivolousness of the pretext.

The authorized stock was one thousand shares. Only eight hundred were placed. The fifteen directors made all agreement to take over the other two hundred at $150 per share, or $30,000, and raise the money on a note, whereon they should be equally liable inter sese, renew it from time to time, each paying his share of interest and revenue stamp; stock to be sold off to parties deemed acceptable, and proceeds used to reduce the note; dividends Hkewise. There was a tontine feature in that if any subscriber should die, his interest in the stock would lapse and his estate would get back what he had put in. The feature of importance here is that in paragraph 9 of the trust agreement, if any subscriber should refuse, neglect or fail to execute the renewal notes from time to time, or should refuse to perform the covenants and agreements made herein * * * such subscriber * * * shall be entitled to return of money paid on principal * * * . but * * * not * * * 'to return of any money paid for interest or revenue stamps * * * or any further interest in the trust or trust fund.

What happened was this: Eeldbage, oue of the. subscribers and president of the company, died in July, 1922, leaving fourteen subscribers remaining on the agreement. Euhle, the vice-president, seems to have wanted the vacant place, but some of the others thought him unsuited and wanted Meeks, who was the trustee of the stock. There was a split, and the natural contest for the control of the two hundred shares. It was discovered that when the first renewal of the note was made on May 16th, 1922, Mr. Walker, one of the original fifteen, had not signed it; apparently because he did not happen to be there at the time and was not reminded of it. There is evidence that Meeks was notified at the time it was offered at the Hudson Trust Company, which was carrying it, and did not take any trouble to call it to Walker’s attention, though Walker did1 pay his share of the discount and taz and did sign with the rest at the next renewal in September. The election was due in January. In November the situation seems to have become a'cute and Meeks apparently, of his own motion, wrote Walker that because of his failing to sign in May he was out of the syndicate, and sent him a check for the interest, &c., he had paid. Walker repudiated the proposition and the fight was on. The Ruhle faction served notice on Meeks the day of the election that they protested his voting of the shares. This was just after a, meeting of the “subscribers,” which Walker attended, though ignored in the notice, at which the nine-four-one vote was taken.

1. We are clear that a “vote of two-thirds of all the subscribers” means an affirmative vote of two-thirds of all existing subscribers. So if there were fourteen, it needed ten votes to determine how the shares were to be voted.

2. We are clear that there were fourteen of the “subscribers.”

It seems pretty plain that the omission of Walker’s signature to the note of May 16th was a mere oversight, perhaps purposely taken advantage of, especially as Adler, who had not signed, was hunted up and asked for his signature. Any business man knows how these things are done; someone takes charge and sees that the others do 'their duty.

The words “refuse, neglect or fail” seem, when taken together, to imply voluntary neglect or failure, and not mere forgetfulness. Moreover, when Walker signed again in September, he was again liable with the others, and we need not inquire what he would have done if the bank had refused to renew. If he was good enough to go on the September note, he was good enough to remain a “subscriber” and not be ousted by the action of Meeks.

So we reach the result that the direction to Meeks as to voting was no direction. It follows, we think, that he wras without authority in the premises. If so, by voting the stock he violated the express terms of his trust, and deprived the minority of a substantial right.

The foregoing conclusions lead to the further result that there was no quorum of stock represented at the meeting, judged either by the by-laws or by the Corporation act; for Meeks could not in justice “represent” his cestuis without their instructions given according to the trust agreement, nor could he vote their stock without such instruction. So that either under the Corporation act, which speaks of “representation;” or the by-laws which make “voting” a majority of the stock the test, the syndicate stock was disqualified, as between the parties.

Respondents object to-the entire proceeding on the ground that they did not have the notice of the application required by the statute. Notice was in' fact given of an application, which was heard by Mr. Justice Swayze. Respondents assert, though we think it is not made to appear in the case, that he declined to hear objections to the application. But whatever he did, or did not do, we do not think it is a subject of review before us, for the statute provides for application to “the Supreme Court,” and the intendment should be that the justice was sitting as the practice branch of the Supreme Court by consent, and his action would not be reviewable by us. Garbett v. Mountford, 70 N. J. L. 577; see Dubelbeiss v. West Hoboken, 81 Id. 102.

As to the point that there should have been a suit in chancery to enjoin the trustee, we do not say that such a bill would not have been proper; but section 42 is very broad in permitting this court to give such relief as right and justice may require. We are not asked to declare a different- result of the election, and probably could not do so. In re Leslie, 58 N. J. L. 609. But as was intimated in that case, we have power to set the election aside and order a new one; Ii. 616; and at such new election the atmosphere should bo somewhat cleared by what has been decided above.

Let the election be set aside and a new election ordered.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. PETER KISIK AND JOHN KORVACK, IMPLEADED, ETC., PLAINTIFFS IN ERROR.
    Submitted March 22, 1923
    Decided June 5, 1923.
    Crimes — Violation of Sections 120 and 186 of Crimes Act — Evidence Sustained Conviction.
    On writ of error.
    Before Gummere, Chief Justice, and Justices Swayze and Trenohard.
    For the plaintiffs in error, Elmer W. Romine.

    For the state, John M. Mills, prosecutor of the pleas.
   Per Curiam.

The defendants below were indicted by the grand jury of Morris county, along with one other, on two counts. The first count charged that they “did then and there attempt to forcibly take from the person of Bertha C. Harmon $3,600 in lawful money of the United States of America, the property of said Bertha C. Harmon, by violence and putting her in fear,” &c. The second count charged that they “did knowingly and designedly by then and there'falsely representing themselves to be persons other than they were, and by falsely representing that they intended to legitimately use and invest a certain sum of money, namely, $3,600, lawful money of the United States of America, then on the person of Bertha C. Harmon, the property of the said Bertha C. Harmon, for the benefit of the said Bertha C. Harmon, did then and there attempt by false pretences to get possession of the said sum of money, with intent to eheát and defraud the said Bertha O. Harmon,” &c. It will be seen that the indictment charged an attempt under section 216- of oui Crimes act to commit, in one count the offence described in section 120, and in the other the offence denounced in section 186.

The verdict of the jury was “guilty in manner and form as they stand charged in the indictment.”

We are not called upon, as the matter is presented, to decide whether or not there was proof justifying a conviction under the first count, since' that question does not seem to be raised in any form which is essential to the validity of this conviction, in view of the fact, which we find, that the conviction was proper under the second count.

The' proof showed that Mrs. Harmon resided in Morris county and that the defendants went to her house witli a third man, and represented that they wanted to buy a farm; that the father of one of them at one time lived in the neighborhood, and that when about to die, he wanted to pay back money that he owed to poor people; that defendants wanted her to take $18,000 and divide it amongst the poor people; that they wanted her to give them some money to put in a box which they had; that they would then take it down to Newark and bring back gold, together with her money; that they induced her to go to the bank and get $3,000 in cash; that she took the $3,000 to the house and the men sat there with the box; that they said they had $18,000 in the box and that she had better put hers in with theirs; that one of the men tried to put her money in the box, hut she “pulled it right out;” that the man tried to• put in in the box; that “he got it right in the box, but she pulled it out again.” The evidence was that then Mrs. Harmon got frightened and started to “yell” and the men hastily departed. There was further evidence from which the jury could and did find that the several representations made by the defendants were false.

The defendants did not testify and submitted no evidence.

The first point is that there was no proof of the allegations in the indictment. We think there was proof of the allegations in the second count.

The second point is that there was no crime or attempt to commit a crime proven. We have already indicated that we think there was.

The third point is that the charge of the court and refusal of the court to charge as requested was harmful to the defendants.

The charge of the judge on the question of overt act was proper. He defined it and charged as to the necessity of evidence thereof, in the language of the defendants’ request. His remark that, if the jury believed the testimony of the state, there was such evidence, was not erroneous.

There was no error in calling attention to the fact that-the defendants did not go upon the stand and testify in their own defence, and that the jury might give that fact consideration. State v. Callahan, 77 N. J. L. 685.

The requ-ests to charge so far as they were proper were either charged in the precise language of the requests, or, in the main charge, in language of iike import.

The judgment below will be affirmed.


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    CHARLES A. DEREMER, PLAINTIFF, v. PATRICK. J. MACKIN, DEFENDANT.
    Argued February 21, 1923
    Decided June 5, 1923.
    Negligence — Motor Vehicle Accident — Inadequacy of Damages Awarded — New Trial Both as to Liability and Damages Ordered.
    On rule to show cause.

      Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the rule, William C. Gebhardt & Son.

      Contra, William George.

   Per Curiam.

This is plaintiff's rule to show cause why a verdict in his own favor for $300 should not be set aside.

We think the damages awarded were grossly inadequate in view of the evidence.

The plaintiff was injured in an automobile accident.

The evidence seems to show without substantial dispute that he was rendered unconscious as a result of the impact; that he suffered a compound fracture of the thigh bone, some injury to his chest, including a possible fracture of one or more ribs; that he remained in hospital for three weeks; was confined to his bed for three months and then began to go about on crutches; that he has now a stiffness of the knee joint which is probably permanent, and a shortened leg. He seems to have formerly had an earning power of $12 a day, of which he was deprived for a considerable time, and there was the possibility or probability of decreased earning power in the future. He had some medical expenses and there was his pain and suffering to be considered.

The rule granted by the court in this case was to show cause why the verdict should not be set aside and a new trial granted as to damages only. But we think that the situation requires that a new trial unlimited in scope and including both liability and damages should be granted, and it is so ordered. . •


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    JOHN KEAVEY, PLAINTIFF, v. CHARLES W. RANDALL, INSPECTOR OF BUILDINGS OF THE TOWN OF WEST HOBOKEN, ET AL., DEFENDANTS.
    Submitted March 21, 1923
    Decided June 5, 1923.
    On rule to show cause why a peremptory or alternative writ of mandamus should not issue.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff, James R. Bowen.

    For the defendants, Abram G. Safyer.

   Per Curiam.

This matter comes before this court on a rule to show cause why a peremptory or alternative writ of mandamus should not be issued to the inspector of buildings of the town-of West Hoboken, commanding him to grant to John Keavy, a permit for the erection of a building on a tract of land owned by Mr. Keavey in the town of West Hoboken. The record shows that Mr. Keavy is the owner of a tract of land at the northwest corner of Palisade avenue and Malone street, in the town of West Hoboken, which has a frontage of seventy-five feet on Palisade avenue and a frontage of one hundred feet on Malone street. On December 20th, 1921, Mr. Keavey made a written application to the inspector of buildings for a permit to erect on said tract of land a one-story brick building, seventy-five feet front and rear, and one hundred feet in depth, to cost $40,000. In the application Mr. Keavey stated that the building was to be occupied as a garage. With the application for a permit complete plans and specifications were filed.

Under the ordinance of the town of West Hoboken, before any person shall erect any building or structure, he shall first apply for and obtain from the inspector of buildings a permit signed by the said inspector. A supplement to this ordinance provides that the inspector of buildings shall, without unnecessary delay, issue permits for the erection of dwelling houses and other buildings in the town of West Hoboken. Notwithstanding the fact that Mr. Keavey’s application for a permit, with complete plans and specifications, was filed on December 20th, 1921, no permit was issued to Mr. Keavey for upwards of four months. The evidence taken under the rule shows that the reason for this delay, as explained by the building inspector, was that the town council would not allow him to promiscuously give permits for the building of garages. His testimony was “the town council would not allow me to promiscuously give permits for garages for the reason on account of going into certain locations that they felt would not be advisable unless they would be first consulted. They requested me to do that.”

He further testified that in all cases he was compelled to go before the town council. On February 22d, 1922, the town council voted to deny a garage permit to Mr. Keavey. Mr. Keavey had made no application to the town council for a garage permit. His application was for a building permit. The defendants seek to justify their refusal to pass upon the application of Mr. Keavey by an ordinance passed on May 5th, 1920, entitled “An ordinance to regulate the request and use of garages or parts of other buildings which are used for the storage of automobiles or other motor-driven vehicles.” The seventh section of this ordinance provides as follows: “No building or part of building shall be used as an automobile garage or shelter if the use of any such building or part of building shall materially increase the fire hazard of adjacent property,- nor shall any such building be hereafter converted to such use unless a permit therefor shall have been first obtained from the town council upon blanks provided therefor.”

If this section be so construed as to require the consent of the town council to the erection of a building, as appears to be the position taken by the defendants, then we think that the ordinance is illegal in that it is discriminatory and does not apply to all persons alike. An ordinance which leaves it within the control of a municipal body to grant some permits and refuse others is invalid. South Orange v. Heller, 92 N. J. Eq. 505; Yick Wo v. Hopkins, 118 U. S. 356; In re Wo Lee, 26 Fed. Rep. 471.

The defendants also rely in part, as the basis for their refusal, upon a zoning ordinance passed on June 14th, 1922. This ordinance was passed after the application for the permit was made. Section 20 of the ordinance, however, expressly provides that the ordinance shall not apply to plans already filed. We see no legal reason why the building permit asked by Mr. Heavy should not be granted. Since these proceedings have been instituted, a new building inspector, William Weir, has been appointed in the place of Charles W. Eandall, who was the inspector of buildings at the time Mr. Keavey’s application was made.

A writ of peremptory mandamus will be awarded to Mr. Keavey against William Weir, as inspector of buildings of the town of West Hoboken, commanding him to issue the building permit applied for.


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    LOUIS CARLS AND ANNA CARLS, PLAINTIFFS-APPELLEES, v. FRANKLIN CONTRACTING COMPANY ET AL., DEFENDANTS-APPELLANTS. ALBERT ALBERGESE ET AL., PLAINTIFFS-APPELLEES, v. FRANKLIN CONTRACTING COMPANY ET AL., DEFENDANTS-APPELLANTS.
    Decided June 5, 1923.
    Negligence — Injury to Property from Blasting — Unusual Amount of Dynamite Used.
    Before Justices Parker, Bergen and Minturn.

      For the appellees, John C. Benson.

    For the appellants, Ralph E. Cooper.

   Per Curiam.

These two cases were tried together and are contained in the same record. The plaintiffs each have a judgment for damages resulting from a blast of dynamite discharged by defendant’s servant. The only ground of appeal is refusal of the court to direct for defendant.

The facts are that defendant drilled two holes in a rock quarry forty-one and forty-three feet deep, respectively, and put in four hundred and fifty pounds of dynamite, and caused it to be discharged, with the result that a vibration or concussion was produced which damaged each of plaintiffs’ dwelling-houses. The defence is that blasting is lawful, and was carefully done. But the difficulty with defendant’s objection is that there'was proof, although denied by defendant, that the servant found that an unusual quantity of dynamite was required, and thought there must be a crevice in the rock, but that he kept on putting powder in the hole and did not know how much he put in, and testified, “then I took a chance on it.” That the blast was unusual is manifested by its effect, for the blasting had been going on for some time without such serious results. The defendant’s witness admitted that there "was a crevice in the rock, but that he did not observe it until after the blast.

We think there was enough evidence on the question of negligence to go to a jury, and the court sitting as-a jury having found there was negligence, we cannot reverse on its weight. The judgments will be affirmed, with costs, in each case.


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    ALBERT J. NORRIS, PLAINTIFF-APPELLEE, v. ALLIANCE INSURANCE COMPANY OF PHILADELPHIA, DEFENDANT-APPELLANT.
    Argued February term, 1923
    Decided June 5, 1923.
    Insurance — Against Theft of Automobile — Unconditional and Sole Ownership Clause — Facts Considered.
    On appeal from the Orange District Court.
    Before Justices Parker, Bergen and Minturn.
    For the appellee, William A. Lord.

    For the appellant, McDermott, Enright & Carpenter.

   Per Curiam.

The plaintiff was the bona fide purchaser of an automobile- and defendant issued to him a policy of insurance ¿gainst theft. The policy contained a condition that it should be void "if the interest of the insured in the subject-matter of this insurance be other than unconditional and sole ownership.” The automobile was stolen from plaintiff, who brought suit on the policy and recovered, from which defendant has appealed on the ground that the trial court refused to direct a verdict for defendant, for the reason that plaintiff’s interest in the automobile was not an unconditional and sole ownership. The admitted facts are that one Beirman held a bill of sale for the automobile, purporting to have been made by Newark Auto Corporation, the signature of the alleged vendor being forged; that Beirman assigned the bill of sale to one Bertie, who transferred it to one Lance by a bill of sale; that Lance assigned to one Gifford, who in turn sold to plaintiff, an admitted bona fide purchaser for value. The motion for a directed verdict for defendant refused was based on the ground that from these facts, and that there was another automobile sold by the manufacturer bearing the same engine number, which manufacturer never duplicated its numbers, an inference could be drawn that plaintiff’s automobile had been stolen from some party unknown, and, therefore, plaintiff was not the unconditional and sole owner of the automobile insured.

The defendant’s difficulty is that there is no proof that the insured machine was stolen from its original owner, but if this be granted, plaintiff’s title was good against everyone but the true owner, and he is unknown and makes no claim of ownership, and plaintiff has never been evicted. He owned it against all the world but a supposed owner from whom we are asked to infer it was stolen. None but he can assert ownership against the plaintiff, which he does not do, and defendant has no right to do it for him. The plaintiff did not, knowingly, make any false representation to defendant as to his ownership; he supposed he was the unconditional and sole owner without any fact known to him to the •contrary, and, so far as this record shows,- was, and is, the only person claiming ownership. So far as defendant is concerned, it is the same as if the automobile had been lost and found by plaintiff, who is the- true owner until evicted by one holding better title. The possession of property is -prima facia proof of title. Nelson v. Bock, 84 N. J. L. 123; City Bank of Bayonne v. O’Mara, 88 Id. 499.

There is no proof in this case from which it can be inferred that plaintiff was not the unconditional owner when the policy was issued, evidenced by his unrebutted prima facie proof of possession, and, therefore, the judgment should be and is affirmed, with costs.


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    JOSEPH P. McGONNELL, RELATOR, v. WILLIAM F. KEARNEY AND THOMAS M. RYAN, RESPONDENTS.
    Argued February 20, 1923
    Decided June 5, 1923.
    On rule to show cause why a writ of mcuti-damm should' not issue.
    Before Justices Parker and Bergen.
    For the relator, Josiah Stryker.

    For the respondents, William A. Calhoun.

   Per Curiam.

This cause was argued with No. 238 (see McGonnell v. Orange, Adv. R. 541), a certiorari of a certain resolution suspending rules of the police department of Orange, the effect of which, as we have just held in that ease, was substantially to oust the relator from his office. The present application is for a writ of mandamus requiring the director of public safety and the captain of police to permit the relator to resume his duties in the same manner in which he was performing them prior to the adoption of the resolution. The facts being undisputed and the law having been declared in the certiorari case, relator seems plainly entitled to the relief prayed.

Let the peremptory writ issue accordingly.