author: Bodiiste, J.

text:
    F. W. WOOLWORTH & COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PROSECUTOR, v. BEN B. ZIMMERMAN, TRUSTEE FOR SUMMIT HOLDING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Argued May term, 1935
    Decided June 26, 1935.
    Before Justices Parker, Case and Bodine.
    For the prosecutor, Thomas G. Walker.

    For the defendant, Alfred Brenner.

   Bodiiste, J.

Prosecutor seeks to review three judgments for rent for the months of July, August and September, 1934, respectively. The actions were based upon an obligation to pay as holdover tenants in certain premises in Union City, New Jersey. The actions were simultaneously brought on September 12th, 1934, a separate suit for each month’s rent. On that date, all the rentals had accrued but no motion to dismiss, because the aggregate of the rentals exceeded the jurisdiction of the court, was made until after the judgments were rendered.

That an action could have been brought as each installment accrued is clear, but the landlord having waited until several installments were due, could not maintain separate actions. 1 Corp. Jur. 1112, § 287. The action for rent is for a breach of contract. The damages to be recovered are the rents due at the time the action is brought. That the obligation, if any, in this case was predicated upon the fact that the tenant had held over beyond the end of the term in no sense altered the legal situation. The contract to pay rent was implied and the damages would be the same as though it were express. Those damages, accrued up to the beginning of the suit, constituted one cause of action.

“No principle of law is more firmly established than that a single or entire cause of action cannot be subdivided into several claims, and separate actions maintained thereon.” Smith v. Red Top Taxicab Corp., 111 N. J. L. 439, 441; 168 Atl. Rep. 796.

We think that an action for breach of an entire contract is quite different from actions because of separate employment as in Faherty v. Branegan, 112 N. J. L. 134; 169 Atl. Rep. 654.

The District Court is a court of limited jurisdiction and parties may not separate a cause of action so as to confer jurisdiction. The return here shows that situation. The court being without jurisdiction to entertain these separate actions for one claim, brought as they were after all the damages had accrued, the judgments were null and void. Jurisdiction cannot be conferred by consent or the right to object be lost by acquiescence. Kaufman v. Smathers, 111 N. J. L. 52; 166 Atl. Rep. 453.

The judgments are set aside, with costs.


source: Caselaw Access Project

author: Pee Cueiaii.

license: Public Domain

text:
    HENRY M. EVANS, PROSECUTOR, v. BOARD OF EDUCATION OF GLOUCESTER CITY, AND STATE BOARD OF EDUCATION OF NEW JERSEY, DEFENDANTS.
    Argued May term, 1935
    Decided June 26, 1935.

      Before Justices Pabkeb, Case and Bodine.
    For the prosecutor, Henry M. Evans, pro se.

    For the defendants, Firmin Michel.

   Pee Cueiaii.

Prosecutor seeks to review the action of the state board of education in holding that a solicitor for a local board of education held an office or position, the term of which was fixed by resolution or law at one year. He claims an indefinite term and tenure under the Veterans’ act of 1929. P. L., ch. 29, p. 57; Cum. Supp. Comp. Stat. 1925-1930, p. 1747, § 191-63.

Local boards of education under section 50 of the School law (Comp. Stat., p. 4741) have power to appoint needed officers and agents and to fix their compensation and term of office. For a number of years, prosecutor was annually appointed solicitor for a term of one year. On December 13th, 1932, he was again appointed without mention of term, except that his appointment was from December 1st, 1932, for an annual salary. Soon thereafter a successor was chosen without charges having been made.

A local board of education is a non-continuous body of necessity organizing each year. Skladzien v. Board of Education of Bayonne, 12 N. J. Mis. R. 602; 173 Atl. Rep. 600, affirmed Court of Errors and Appeals. Prosecutor’s term of office was either fixed by the resolution creating the office at one year, or if not so fixed in the absence of statute, presently in force, or ordinance or rule under legislative sanction, the term was for one year being co-terminous with that of the appointing power. Skladzien v. Board of Education of Bayonne, supra.

It is not material to the determination of this case that the solicitor of a board of education be regarded as an officer. However, we think he was an officer rather than the holder of a position. State, Hoxsey, Pros., v. Paterson, 40 N. J. L. 186. His term of office, as before noted, was either fixed at one year by the resolution creating the office or by law.

The Supreme Court held in Board of Education v. Bidgood, 11 N. J. Mis. R. 735; 168 Atl. Rep. 163, that a chauffeur to a board of education held a position and was protected by the Veterans’ act.' He was appointed without term for a monthly salary. The Court of Errors and Appeals had not decided, when that decision was rendered, that local school board officers and employes hold, in the absence of other circumstances, a term co-terminous with that of the board making the appointment.

The writ will be dismissed.


author: Pee Cubiam.

text:
    ISAAC MELNICK, APPELLANT, v. THE EAGLE GROCERY COMPANY, RESPONDENT.
    Submitted January term, 1935
    Decided June 20, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Sachs d Sachs.

    For the respondent, Martin J. Cummins.

   Pee Cubiam.

In this case no specification of determination in the trial court adequately presents any legal question for reversal. Booth v. Keegan, 108 N. J. L. 538; 159 Atl. Rep. 402; Grossman v. Lincoln Trust Co., 106 N. J. L. 567; 146 Atl. Rep. 376; Abbe v. Erie Railroad Co., 97 N. J. L. 212; 116 Atl. Rep. 778.

The judgment is affirmed, with costs.


author: Per Cubiam.

text:
    BOOKER WHITE, RESPONDENT, v. SPIROS PAPPAYLIOU ET AL., APPELLANTS.
    Submitted January term, 1935
    Decided June 20, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellants, Ward Eremer.

    For the respondent, Marlaclc & Laulman.

   Per Cubiam.

No action of the trial court is pointed out in any of the reasons urged for reversal. What determination, if any, the judge made with reference to the predicated facts are not specified, and there is nothing before us for adjudication.

The judgment is affirmed, with costs.


author: Leyden, 0. P. J.

text:
    Bergen County Court of Common Pleas.
    THE VILLAGE OF RIDGEWOOD, A MUNICIPAL CORPORATION OF THE COUNTY OF BERGEN, AND JAMES S. ANDERSON, DIRECTOR OF PUBLIC SAFETY, COMPLAINANTS-RESPONDENTS, v. ANDREW M. HOWARD, DEFENDANT-APPELLANT.
    Decided June 13, 1935.
    Por the respondents, Thomas L. Zimmerman.

    Por the appellant, Chandless, Weller & Selser (Mr. Julius Kramer).

   Leyden, 0. P. J.

This is an appeal by a member of the police department of the village of Ridgewood from the determination of the director of public safety in which the appellant was found guilty of departmental charges and demoted from the rank of detective to that of patrolman.

The appeal comes here by virtue of the provisions of chapter 29 (Pamph. L. 1935; N. J. Stat. Annual 1935, § *136-1603a), whereby the Home Rule act (Pamph. L. 1917, ch. 152; Cum. Supp. Comp. Stat. 1911-1925, p. 2071, § *136-101) is amended by the insertion of a new section known as 3A of article 16, providing: “If any person shall be removed from office or employment in any such police department, or from the police force of any municipality * * * such person may appeal such removal to the Court of Common Pleas of the county in which such municipality is situated, and such court shall hear such case de novo, and may order such person reinstated in his office or employment if such court should find that such person was not guilty of the charges upon which he was removed, or may make such other order as such court may decide is proper and just under the circumstances.”

At the outset the village moved to dismiss the proceedings upon the ground that this court lacked jurisdiction. The argument is, that the legislature intended discharge or dismissal by the phrase “removal from office or employment” and therefore a reduction in rank of a member of a police department is not such a removal as contemplated by the statute. Since the determination of this question adversely to the appellant would be dispositive of the matter, I shall consider it first.

The sixteenth article of the Home Eule act (Cum. Supp. Comp. Stat. 1911-1925, p. 2153, § *136-1601) relates to municipal police. By the first section thereof, power, by ordinance, is granted to the governing body of every municipality to establish, maintain, regulate and control a police department. By the third section the officers and men employed in municipal police departments shall severally hold their respective offices and continue their respective employment during good behavior, efficiency and residence in the municipality, and no person shall be removed from office or employment in or from the police force of any municipality for political reasons or for any other cause than incapacity, misconduct, non-residence or disobedience of the just rules and regulations.

By virtue of section 5 (Cum. Supp. Comp. Stat. 1911-1925, p. 2161, § *136-1705) no person, whether officer or employe, shall be removed from office or employment therein except after just cause and then only after written charge or charges of the causes of complaint shall have been preferred against such officer or employe signed by the complainant and filed with the municipal officer having charge of the department, and after the charges shall have been publicly examined upon reasonable notice.

The legislative intention was to give tenure to members of municipal police departments. It seems to me clear that the legislature, by the wording of these sections, ordained that the members of a police department, whether patrolmen or holding superior rank, should be considered as holding public office and there should be no removal therefrom except for the causes set forth in the statute.

By chapter 29 (Pamph. L. 1935, supra), the legislature created an intermediate step, a trial de novo in this court, for the benefit of aggrieved members of police departments. Prior to the enactment of this legislation, the remedy of a policeman removed from office or employment was by writ of certiorari. This review of the departmental trial was expensive and if, on questions of fact, there was evidence to support the finding of the statutory tribunal, the Supreme Court would not disturb it and thus substitute its judgment for that of the municipal officials. The legislature passed this act to provide for an intermediate and just disposition of such controversies on both the law and fact before an unprejudiced court not hampered by local influences. Of course, the remedy by writ of certiorari still exists.

If it were necessary for me to rely upon my own construction of the statute I would hold that the demotion of a member of a police department from detective to patrolman, an office inferior in dignity, dissimilar in its work and with decreased compensation, is a removal “from office or employment.”

The question, however, has been judicially determined. It is well settled that a policeman is a public officer. Hoboken v. Gear, 27 N. J. L. 265; Cook v. Ramsey, 86 Id. 263; 90 Atl. Rep. 265; Van Sant v. Atlantic City, 68 N. J. L. 449; 53 Atl. Rep. 701; Moore v. Borough of Bradley Beach, 87 N. J. L. 391; 94 Atl. Rep. 316; Speck v. Borough of Fairview, 7 N. J. Mis. R. 410; 145 Atl. Rep. 618.

In Michaelis v. Jersey City, 49 N. J. L. 154; 6 Atl. Rep. 881, Mr. Justice Beed, for the Supreme Court, construed the terms of an act (Pamph. L. 1885, p. 130; Comp. Stat., p. 2391, § 258) almost identical in phraseology with that now under scrutiny. Michaelis was an engineer of fire company number 1 and was removed by the board of fire commissioners to the position of stoker of engine company number 2. The Supreme Court held that his employment as engineer was protected bjr the terms of the act and since the place of stoker was a different position, inferior in dignity, dissimilar in its work and attended with decreased wages, it was within the meaning of the act, a different employment or office and that an attempt to transfer him without his consent to the position of stoker was a removal “from office or employment.” The act of 1885 and the present act are identical in the use of the phrase “and no person shall bo removed from office or employment.” I take it that the Home Itule act of 1917 (Cum. Supp. Comp. Stat., p. 2071, § *136-101) was compiled from this and similar statutes.

In Douglass v. Mayor, &c., of Jersey City, 53 N. J. L. 118; 20 Atl. Rep. 831, it was held that a resolution passed without notice to Douglass, reducing him from a detective officer in the police department to a roundsman, with decreased pay, was of no validity under the act of 1886, page 48, an act almost identical in phraseology with that relating to fire departments cited in the Michaelis case, supra. See Leary v. Mayor, &c., of the City of Orange, 59 N. J. L. 350; 35 Atl. Rep. 786, where it was sought to reduce a police sergeant to the inferior position of patrolman. See, also, Hansen v. Van Winkle, 76 N. J. L. 443; 69 Atl. Rep. 1011; Gutheil v. Nelson, 86 N. J. L. 1; 91 Atl. Rep. 93.

Counsel for the village cites in support of his contention McManus v. City of Newark, 49 N. J. L. 175; 6 Atl. Rep. 882, but that case is not in point, for there no other or extra compensation was fixed or paid to officers assigned to detective duty. I conclude, therefore, that the demotion of a detective member of a police department from that office to a different position, inferior in dignity, dissimilar in its work and attended with decreased wages, is a removal from office or employment within the meaning of chapter 29, Pamph. L. 1935, supra. This leads me to the merits of the controversy.

The village of Ridgewood, by ordinance adopted February 1st, 1921, established a police department. By amendment adopted February 21st, 1928, the first section of the original ordinance was changed to provide that the police department of the village shall consist of a chief of police, a captain of police, and four lieutenants of police, and such number of police detectives and patrolmen and other employes as shall be deemed necessary by the board of commissioners to properly preserve the peace of the village. On November 28th, 1933, Andrew M. Howard was appointed detective of the police department by a resolution of the board of commissioners. At the time of his appointment he was instructed that he.was to take orders from no one, save the director of public safety, called by courtesy “mayor,” and the chief of police. He had no regular tour of duty although he was required to work the statutory period of eight hours per day. If the business of the department required, he was expected to occupy himself with his duties until they were completed, although it might be necessary for him to work continuously for twelve, fourteen, sixteen or even twenty-four hours. He was to dedicate his entire time to the service of the village, to be called upon at any hour of the day or night should the occasion arise. With this in mind he assumed the duties of the office and worked on an average of from fourteen to sixteen hours per day.

On March 5th, 1935, he reported at police headquarters about nine a. m. as was his custom and together with Officer Janas, who was assigned to assist him, performed the police duties requiring his attention. These duties caused the appellant and Officer Janas to visit the New York state police at Monroe. While returning therefrom Janas expressed the desire for practical experience in the selection and classification of fingerprints. It was agreed between them that upon their return to headquarters Janas would select prints from the files which he thought were material in some pending investigations and Howard would then review the work done and determine its accuracy. They arrived at the police station about three-forty-five p. m. Janas went to the fingerprint room and Howard, at the challenge of the janitor of the building, started playing pool on the department pool table located in the looker room and within twenty-five feet of the station house desk. The game had progressed for about five minutes when in walked the director of public safety, Mr. Anderson. The detective saluted his superior, bade him the time of the afternoon and went on with the game. Anderson departed and on the 12th day of March, 1935, the appellant was served with written charges signed by a lieutenant of police at the command of the director of public safety. He was accused oí (1) neglect of duty “in that he did remain in the locker room at police headquarters for some time and there engaged in a game of pool, thereby neglecting duties which should have received his attention at the time, in violation of rule No. 22 of the rules of discipline;” and (2) absence from duty without leave “in that he did remain in the locker room at police headquarters for some time and there did engage in a game of pool without first obtaining leave so to do, in violation of rule No. 9 of the rules of discipline.” He was tried upon these charges before the mayor, found guilty and demoted to the office of patrolman. It was admitted that the office of patrolman is different than that of detective; that the former is inferior in dignity, dissimilar in its work and commands less compensation.

The village insists that Howard’s indulging in a game of pool on the table provided by the department for that purpose at four o’clock on the afternoon of March 5th, was such neglect of duty and absence from duty as to require his conviction of the charges, and this, in spite of the fact that Howard had labored efficiently and conscientiously for from fourteen to sixteen hours per day since his appointment, without complaint, and had not reported off duty on the day in question until eleven p. M.

I am urged to convict him because on the day he, spent approximately one-half hour playing pool with the janitor there were supposedly thirteen unsolved crimes in the village to which the detective should have been giving his undivided attention although it seems to be generally admitted that nothing further could be done in these investigations and that the department was merely marking time and waiting for a “break” in the cases.

In playing the game of pool under the facts as presented here Detective Howard was neither neglecting his duty nor absent therefrom. He was in the station house within easy call of the desk. He was on duty although no business of the department required his immediate attention.

I am of the opinion that a man who conscientiously and efficiently renders excellent service over a period of years should not be so harshly dealt with under the circumstances. I have no hesitancy in finding Andrew M. Howard not guilty of the charges presented against him and I shall order his restoration to the rank of detective to take effect as of the day of his demotion, with back pay.

This is the first case coming to the court under the new statute and some confusion has arisen as to the procedure to be followed by those seeking the benefit thereof. I think the proper method of procedure is for the appellant to' give written notice of appeal to the municipal official or officials sitting in judgment below and then to invoke the jurisdiction of the Court of Common Pleas by a petition setting forth the necesary facts, and upon said petition to take an order directing the municipal officials to transmit forthwith to the clerk of this court the written charge or charges, the notice of hearing and such other documents as may be material. Provision should be made in the order fixing the time for the hearing of the appeal de novo and granting to the appellant and respondent process of subpoena out of this court.

An order will be signed in conformity with the views herein expressed.


author: The Court.

text:
    Essex County Circuit Court.
    MATTHEW J. READY, v. NATIONAL STATE BANK OF NEWARK, NEW JERSEY, EXECUTOR UNDER THE LAST WILL AND TESTAMENT OF THOMAS S. HENRY, DECEASED.
    Decided June 20, 1935.
    Before Joseph L. Smith, C. C. J., and a jury.
    Eor the plaintiff, Carl Abruzzese and William Abruzzese (Carl Abruzzese).

    For the defendant, Harrison & Roche (John J. Mc-Donough) .

    For the three residuary legatees, William K. Flanagan.

   The Court.

This is an action instituted by the plaintiff, Mr. Matthew J. Beady, against the National State Bank of Newark, as executor under the last will and testament of Thomas S. Henry, deceased. The second count of the complaint is waived.

I now have before me for consideration a motion for the direction of a verdict in favor of the defendant. The complaint alleges that on or about June 28th, 1928, the plaintiff and the late Judge Henry, a gentleman of the old school and a man of advanced years at the time of his death on March 17th, 1934, entered into an agreement to represent one Frederick J. Brokaw in a certain condemnation proceeding instituted by the Essex county park commission to obtain for the said Frederick J. Brokaw as much as the lands and premises sought to be condemned were reasonably worth; that the said Thomas S. Henry was to receive and charge Brokaw ten per cent, of any and all sums of money that might be awarded to the said Brokaw in said proceedings as and for fees and services in connection therewith; that Mr. Eeady was to assist Judge Henry in the preparation of all data and memoranda, facts and law, touching on the trial of the issues raised in said condemnation proceedings and that Judge Henry agreed and promised to pay Eeady one-half of any and all sums received by him from Mr. Brokaw. The complaint alleges that Judge Henry received $6,000 for his services, and the complaint further alleges that Mr. Eeady performed all of the services in accordance with the said agreement,’ whereby the plaintiff claims that he is entitled to receive $3,000, less $100 that Judge Henry had paid, or a balance of $2,900, with interest from January 17th, 1929.

Judge Henry died, as I have indicated, on March 17th, 1934, and the plaintiff presented a claim to the executor of the estate on July 13th, 1934, which was disallowed on July 20th, 1934, and on August 19th, 1934, this action now before us was instituted.

The court has considered the grounds urged in behalf of the motion for the direction of a verdict. The proof briefly in the case indicates that Mrs. Brokaw, the wife of Mr. Frederick J. Brokaw, purchased a dress from the sister-in-law of Mr. Eeady, Miss Bessie Taggart, and that Mrs. Brokaw discussed with Miss Taggart at that time that their farm property in Bloomfield was about to be condemned and taken from them by the Essex county park commission for public improvement. Subsequently, Miss Taggart’s brother-in-law, Mr. Eeady, accompanied by members of his family, called to see Mr. and Mrs. Brokaw, and at that time Mr. Eeady suggested to Mr. Brokaw as a counsel to represent him the late Judge Henry. Mr. Chandler W. Biker, who was formerly the counselor of Mr. Brokaw, was then deceased. After consideration by Mr. Brokaw of the suggestion by Mr. Eeady, Mr. Brokaw subsequently called to see the late Judge Henry and retained him to represent him.

The plaintiffs contention is that he had an agreement with Judge Henry to receive fifty per cent, or one-half of any and all sums received by Judge Henry from Mr. Brokaw.

The testimony indicated that Mr. Heady liad secured this ease and that Judge Henry was to act as counsel for Mr. Brokaw. There is further evidence to indicate that Judge Henry acknowledged that Mr. Ready had referred Mr. Brokaw to him as a client and that the judge had expressed his appreciation and gratitude to Mr. Ready for having recommended him in this particular case, and that there was some mention between Judge Henry and Mr. Ready that Mi1. Ready was to receive from Judge Henry fifty per cent, of his fee.

1 cannot help but strongly reach the conclusion that on the grounds urged for the direction of a verdict that the court should grant such motion.

From the earliest days of both the Roman and English law, and certainly from the days of Richard I, which seems to be the first reign that the courts have any record of as to the beginning of the English jurisprudence, I am constrained to find that there has always been a very jealous and zealous position on the part of the bench and the bar to preserve to the bar that degree of dignity and self-restraint in the manner of the administration of justice and the obligations resting upon its members to so administer the law that the question of the compensation that either in the old days a barrister and advocate, and in our state an attorney and counselor, are entitled to receive should be so bound by the ethics and the high standing in the principles of those that have gone before us that it is inconceivable to me to realize or to appreciate that in these dajrs the law would permit, in the language of the street, “chiseling” on the part of a layman of the fee to be paid to a member of the legal profession. Such an agreement certainly to mv mind, if in fact there is such an agreement proven or the performance of such an agreement by the plaintiff, is clearly against public; policy and against, as I have indicated, those high ideals and principles that have been in the heart and the soul of the law since its inception.

The practice of permitting a layman, if such practice legally would have any sanction, to bring to a member of the bar clients for the purpose of rendering legal services, out of which compensation to the practitioner the layman would be entitled to participate in any degree could not help but result in an humbling of our profession that would never be able to secure to the litigants the full protection of the rights to which they are entitled. It would break down in my humble opinion and destroy the very practice of a profession and it would result, as the facts in this case to my mind indicate, in a broad form of ambulance chasing of the worst character, and necessarily result in the profession becoming not alone a business, but would eventually find the practice of the law run by laymen, controlled by them, and, in fact, if not in law, practiced by them.

I have also considered the several other grounds urged on behalf of the defendant for the direction of a verdict, and I am therefore constrained on all the grounds urged to grant the motion for the direction of a verdict in favor of the defendant, and I will grant an exception.


author: Bodine, J.

text:
    EDWARD H. GLAND, PROSECUTOR-APPELLANT, v. MAYOR AND COUNCIL OF THE BOROUGH OF NORTH ARLINGTON, COUNTY OF BERGEN, DEFENDANTS-APPELLEES.
    Submitted May 17, 1935
    Decided June 26, 1935.
    Before Justices Parker, Case and Bodtne.
    Por the prosecutor-appellant, Harold Krieger.

    Por the defendants-appellees, Leo Bruclc and Joseph Bigel.

   Bodine, J.

The writ brings up for review a resolution authorizing the payment of a bill of H. Y. Reilly & Company, accountants, for extra service and also a resolution over-riding the mayor’s veto.

Reilly & Company had a contract to do auditing in North Arlington for a fixed sum of money. Certain books of entry were not written up by the officer charged with the duty of keeping the same, he claiming that he was unable to do the work in time for the audit. The finance committee ordered Reilly & Company to do this work. The bill in question was for this service.

There can be no doubt of the lack of power of the finance committee, but the municipal decision to pay for a service rendered to it, though unauthorized, seems to amount to a ratification. Cory v. Freeholders of Somerset, 44 N. J. L. 445. Chief Justice Beasley said there: “The rule of law is, that it is only when the corporation has the right to enter into the given contract that it can legalize it after it has been performed under an authority of its unauthorized agents.”

There can be no doubt that the municipality had the right to have its books put in order for an audit. If the officer charged with the duty failed in his work, some steps, such as were taken, were within the municipal power. The officer charged with the duty was not thereby relieved of his work as “in State, Hoxsey, Pros., v. Paterson, 40 N. J. L. 186. It appears that only necessary assistance was furnished to the end that an audit could be made. The extra work did not cover the field of the Reilly & Company contract, since it appears in the record that the writing up of unwritten records is a service quite separate and distinct from an audit. For such service there could be recovery, if authorized. Gillan v. East Newark, 7 N. J. Mis. R. 616; 146 Atl. Rep. 649.

A member of the borough council and also a member of the finance committee, when the work in question was done, became an employe of that company shortly before introducing the resolution calling for the payment of the Reilly & Company bill. It is argued that he was so financially interested in the payment of the bill in question as to render the resolution under review void as against public policy. Harrison v. Elizabeth, 70 N. J. L. 591; 57 Atl. Rep. 132; Cordingley v. Mendham, 12 N. J. Mis. R. 331; 171 Atl. Rep. 158.

It is conceded that before the passage of these resolutions there was no valid contract. Such validity as the transaction possessed depended upon Reilly & Company’s employe’s acts in introducing the resolutions by which the contract was ratified, if at all, and by which they could obtain money for the services rendered long before. A mere employe of a large corporation might not be said to be directly or indirectly interested in a contract made by a corporation employing him. In the present case the councilman when employed by the accountants displayed so much zeal, although for years he had taken no steps looking towards ratification and payment, that it indicates to us that he must have had some direct or indirect interest in the matter sufficient to make the resolutions in question invalid, and to that end they are set aside.


text:
    VULCAN WHEELS, INCORPORATED, PROSECUTOR, v. J. H. THAYER-MARTIN, STATE TAX COMMISSIONER, DEFENDANT.
    Submitted January term, 1935
    Decided July 3, 1935.
    Before Justices Heheb and Pebskie.
    For the prosecutor, Everett B. Smith.

    For the defendant, David T. Wilentz, attorney-general, and John Solan, assistant attorney-general.
   Pee Cubiam.

Prosecutor is a New Jersey corporation. Its amended certificate of incorporation authorized the issue of forty thousand shares of no par value stock of three classes, viz.: one thousand shares of convertible preferred; nine thousand shares of non-convertible preferred, and thirty thousand shares of common stock. The preferences conferred by the two classes of preferred stock related to the payment of the stated dividend, and participation in the corporate assets in the event of liquidation, voluntary or involuntary. Eedemption rights upon stated terms were reserved. On January 22d, 1932, it filed a report with the state tax department, showing that, on the first day of that month, it had twenty-one thousand seven hundred shares of no par value stock issued and outstanding in the following classes, viz.: one thousand shares of convertible preferred; seven hundred shares of non-convertible preferred, and twenty thousand shares of common stock. A franchise tax was levied accordingly.

At a meeting ot the board of directors of the corporation, held on December 29th, 1932, the holders of all the shares of stock, preferred and common, issued and outstanding (the outstanding shares then totaled twenty-one thousand seven hundred) surrendered their holdings, pursuant to an agreement, and received in lieu thereof one hundred shares of the corporation’s common stock. No other action relating to this change in stockholdings was taken by the stockholders prior to January 1st, 1933, and no certificate or statement thereof was filed with the secretary of state on or before that date. On February 2d, 1933, the corporation filed with the state tax department a report showing that, on January 1st, 1933, it had issued and outstanding one hundred shares of common stock of no stated value. The state tax commissioner, disregarding the action taken by the stockholders, levied a franchise tax for the year 1933 on twenty-one thousand seven hundred shares of stock. The state board of tax appeals affirmed this levy; and the corporation sued out a writ of certiorari.

Prosecutor asserts the actual cancellation, on December 29th, 1932, within the intendment of the Corporation Franchise Tax act of 1884 (4 Comp. Stat., p. 5286), as amended by chapter 98 of the laws of 1932 (Pamph. L. 1932, p. 168; N. J. Stat. Annual 1932, p. 363, § 208-519), of all the stock, preferred and common, then issued and outstanding; and that there were on the taxing date only one hundred shares of common stock of no stated or par value issued and outstanding.

But the statutory requirements for a valid cancellation of the issued stock were not met. Paragraph 27 of the General Corporation act (2 Comp. Stat., p. 1612), as amended by chapter 220 of the laws of 1931 (Pamph. L. 1931, p. 542; N. J. Stat. Annual 1931, p. 94, § 47-27), prescribes the mode of procedure for making effective the change contemplated here. It ordains that a change of this character shall be approved by two-thirds in interest of each class of stockholders having voting powers, in meeting assembled called by the board of directors by resolution declaring that “such amendment, change or alteration” is advisable, and “a certificate thereof * * * filed in the office of the secretary of state.” Compliance with this provision is a prerequisite to valid corporate action. Knickerbocker Importation Co. v. Board of Assessors, 74 N. J. L. 583; 65 Atl. Rep. 913. Goldstein Fineberg Co. v. Board of Assessors, 83 N. J. L. 61; 83 Atl. Rep. 773.

The claim that these provisions of the statute do not apply where there is a mere “decrease of the amount of shares issued and outstanding,” and “not in the authorized capital stock,” has been disposed of in the cited cases. The holding was that “stock once issued is and remains outstanding until retired and canceled by the method provided by the statute for the retirement and cancellation of capital stock.” The assessment was therefore proper.

Judgment affirmed, with costs.


author: Per Curiam.

text:
    EDWARD O’NEILL, BY HIS NEXT FRIEND, ET AL., PLAINTIFFS-APPELLANTS, v. FRANK BREIDT, DEFENDANT-RESPONDENT.
    Argued May 9, 1935
    Decided May 9, 1935.
    Before Chief Justice Brogan, and Justices Lloyd and Donges.
    Por the appellants, Benjamin Gordon and Earl A. Merrill.

    Por the respondent, Connolly & Hueston.

   Per Curiam.

The proofs have been examined and from the evidence we can find no proof whatever of negligence on the part of the defendant.

The judgment is affirmed.


author: Pee Cueiam.

text:
    EARLE A. MERRILL, APPELLANT, v. JOHN WINANS, RESPONDENT.
    Submitted January 25, 1935
    Decided July 2, 1935.
    Before Justices Lloyd, Case and Donges.

      For the appellant, Earle A. Merrill, fro se.

    Por the respondent, John Winans, pro se.

   Pee Cueiam.

The action in this case was instituted by Earle A. Merrill, an attorney, as plaintiff against the defendant, Winans, another member of the bar, to recover a certain sum of money alleged to have been illegally withdrawn from the office of the clerk of the Court of Chancery, which sum had been deposited with the clerk as security for the costs of an appeal to the Court of Errors and Appeals.

It is unnecessary to go into the merits of the appeal inasmuch as the specification of cause for reversal, herein called ground of appeal (and which is in the form of a notice of appeal to the effect that the plaintiff appeals from the judgment below “on the ground that said judgment is erroneous as a matter of law”), is insufficient to bring anything before this court. Cases controlling are Golden Realty Co. v. Grant Building and Loan Association, 109 N. J. L. 129; 160 Atl. Rep. 499; Eckert v. Nazzaro, 109 N. J. L. 136; 160 Atl. Rep. 425; Cohn v. Passaic National Bank, 109 N. J. L. 449; 162 Atl. Rep. 555, and more recently Caspert v. Empire Furniture Co., 114 N. J. L. 546; 178 Atl. Rep. 65.

We have read the proceedings, and it may not be amiss to state that if the respondent, as is claimed in the canse, has been guilty of procuring funds from the office of the clerk of the Court of Chancery to which he was not entitled, and with knowledge of this fact brought clearly to his attention by the litigation which has already occurred, still retains these funds unlawfully, it may be a subject-matter for action by the proper branch of this court under its disciplinary powers, to which body the appellant may have recourse.

The judgment is affirmed.


author: Caeerey, C. C. J.

text:
    Bergen County Circuit Court.
    SAMUEL ADAMO, PLAINTIFF, v. COUNTY OF BERGEN, DEFENDANT.
    Decided July 11, 1935.
    For the plaintiff, Ohandless, Weller & Selser.

    For the defendant, Walter 0. Winne.

   Caeerey, C. C. J.

This is one of several suits filed against the county of Bergen for the recovery of money alleged to be due the plaintiffs for services rendered as special investigators appointed by the prosecutor of the pleas. The determination with respect to the claim of Adamo will be dispositive of the several suits mentioned.

A motion was made by the county counsel to strike out the complaint filed by Adamo upon the following grounds:

1. The board of chosen freeholders of the county of Bergen has been improperly joined as a party defendant to the suit.

2. The summons issued herein is contrary to the provisions of article 17, section 1703, Pamph. L. 1918, ch. 185.

3. The Bergen County Circuit Court is without jurisdiction to try the alleged cause of action set forth in the complaint.

4. The facts alleged in said complaint constitute no cause of action against either of the named defendants in that:

(a) Plaintiff fails to allege to have filed sworn bills for services alleged to have been rendered or to have obtained the approval thereof by the proper authorities.

(b) There is no legal duty on the part of the county of Bergen to pay the plaintiff for the services alleged to have been rendered to the prosecutor of the pleas. Most of these objections have been disposed of by force of the following stipulation:

“1. That the plaintiff, Samuel Adamo, was engaged by the prosecutor of the pleas of the county of Bergen, as alleged in said complaint.

“2. That the plaintiff performed the services for the prosecutor of the pleas, as alleged in said complaint.

“3. That the bill of the plaintiff was approved by the prosecutor of the pleas and by the judge of the Court of Quarter Sessions, as provided by the statutes.

“4. The said bills have not been approved by the board of chosen freeholders of the county of Bergen.

“5. The facts stated in this stipulation are limited in their application to the motion to strike.”

The question to bo considered is the effect of chapter 19, Pamph. L. 1933 (N. J. Stat. Annual 1933, p. 109, § 53-95), and its application to the plaintifPs claim. The statute reads as follows: “It shall be the duty of the prosecutor of the pleas for each county to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws; and all necessary expenses incurred thereby, certified to and approved under his hand, by a judge of the Court of Oyer and Terminer or judge of the Court of Quarter Sessions for any county, shall be paid by the board of chosen freeholders thereof (whenever the same shall be approved by such board of chosen freeholders:) provided, however, that the amount or amounts to be expended shall not exceed the amount fixed by the board of chosen freeholders in its regular or emergency appropriation, unless such expenditure is specifically authorized by order of the justice of the Supreme Court presiding in such county.” This act amends section 95 of the “Criminal Procedure act.” Public Laws 1898, p. 901; 2 Comp. Stat., p. 1850, which reads as follows: “It shall be the duty of the prosecutor of the pleas for each county to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws, and all necessary expenses incurred thereby certified to and approved under his hand, by a judge of the Court of Oyer and Terminer or the judge of the Court of Quarter Sessions for any county, shall be paid by the board of chosen freeholders thereof.”

Under this statute of 1898 the judge’s certificate is conclusive; Lindabury v. Freeholders, 47 N. J. L. 417; Irving v. Applegate, 49 Id. 377; 8 Atl. Rep. 505.

It will be observed that under the statute of 1933, under which the plaintiff claims, there has been added: “whenever the same shall be approved by such board of chosen freeholders; provided, however, that the amount or amounts to be expended shall not exceed the amount fixed by the board of chosen freeholders in its regular or emergency appropriation, unless such expenditure is specifically authorized by order of the justice of the Supreme Court presiding in such county.” We are not concerned with the proviso; however, the additional sentence, “whenever the same shall be approved by such board of chosen freeholders,” cannot be disregarded. Taking the construction placed upon section 95 of Pamph. L. 1898 we must conclude that the legislature at the time of the enactment of the 1933 amendment knew of the existing law and by force of the amendment attempted and did limit the right of the prosecutor to expend money in the operation of his office.

To sustain the plaintiff’s claim, the 1933 amendment would have to be disregarded, and the issue determined as of the act of 1898. The court cannot ignore the mandate of the legislature through the language “whenever the same is approved by the board of chosen freeholders,” which relates to “expenses” contemplated both by the act of 1898 and the amendment of 1933. In State, Edmund Bartlett v. The Inhabitants of Trenton, 38 N. J. L. 67, the court said: “In the construing of a statute, every part of it must be viewed in connection with the whole, so as to make all parts harmonize, if practical, and give a sensible effect to each.” The legislature did not intend that amendment of 1933 to be without meaning. See, also, John Farrell v. The State, 54 N. J. L. 421; 24 Atl. Rep. 723, where the court said: “A statute which is amended is thereafter, and as to all acts subsequently done, to be construed as if the amendment had always been there; and the amendment itself so thoroughly becomes a part of the original statute that it must be construed, in view of the original statute, as it stands after the amendments are introduced and the matters superseded by the amendments eliminated.” The statute may place the prosecutor in an embarrassing position, in that, in the proper performance of his duty he may require the aid of investigators beyond the number allowed by the statute and he may expect compensation be paid to those investigators, yet, the amendatory act of 1933 offers no guarantee of the recognition of the expenses incurred. In Stephenson v. Stephenson, 102 N. J. Eq. 50; 139 Atl. Rep. 721, Mr. Justice Kalisch said: “In interpreting and construing a statute, the court must consider, 1. The old law; 2. The mischief, and last, the remedy.” It may be well said that the legislature contemplating the conclusiveness of the certificate of the judge, as laid down in Lindabury v. Freeholders, sought to effectuate a change in the existing law and by this amendment did so. This is clearly a legislative right.

The plaintiff is seeking a judgment against the county of Bergen, I will conclude that the right of Adamo to compensation depends upon the approval by the board of chosen freeholders as a condition precedent to his right to such compensation.

There was no such approval. Under the circumstances the complaint will be stricken.


author: Egan, V. C.

text:
    Alex McDowell, complainant, v. Mechanics' Trust Company of New Jersey, a New Jersey corporation, and William H. Kelly, commissioner of banking and insurance of the State of New Jersey, defendants.
    [Decided July 15th, 1935.]

      Mr. Nicholas J. CafareTli, for the complainant.

      Mr. John Milton, for the defendant Mechanics’ Trust Company.

      Mr. Louis J. Cohen, for the defendant commissioner of banking and insurance.
   Egan, V. C.

The complainant, who holds mortgage participation certificates issued by the defendant company, seeks the appointment of a receiver or trustees for the defendant trust company. He, among other things, alleges that the certificates became past due, and that he has been unable to collect the moneys due him. He alleges that the trust company has defaulted in its obligation to its certificate holders and that it has contravened the express terms of its undertaking to certificate holders; that certificates were issued by it againsr mortgages on unimproved real property contrary to law; that it has been conducting its business on a restricted basis since January 2d, 1934, on orders of the commissioner of banking and insurance based upon chapter 27, as amended by chapter 66 of the laws of 1933 (N. J. Stat. Annual 1933 p. 25 § 17-73); that it has been unable to reopen for unrestricted business because of its financial embarrassment; that it is unable to fulfill the guarantee set forth in the certificates.

Section 24 of “An act concerning trust companies (Kevision of 1899),” (4 Comp. Stat. p. 5663, § 24), as amended by chapter 255 of the laws of 1931, page 641 (N. J. Stat. Annual 1931 p. 525 § 221-24), is as follows:

“Whenever any trust company shall become insolvent or shall suspend its ordinary business for want of funds to carry on the same, and the commissioner of banking and insurance shall have refused, upon the demand of any creditor or stockholder to take possession of the property and business of such trust company pursuant to section twenty-two of this act, the attorney-general, or any creditor or stockholder, may by petition or bill of complaint setting forth the facts and circumstances of the ease, apply to the court of chancery for a writ of injunction and the appointment of a receiver or receivers or trustees, and the court being satisfied by affidavit or otherwise of the sufficiency of said application, and of the truth of the allegations contained in the petition or bill, and upon such notice, if any, as the court by order may direct, may proceed in a summary way to hear the affidavits, proofs and allegations which may be offered on behalf of the parties, and if upon such inquiry it shall appear to the court that the trust company has become insolvent and is not about to resume its business in a short time thereafter with safety to the public and advantage to the stockholders, it may issue an injunction to restrain such trust company and its officers and agents from exercising any of its privileges or franchises and from collecting or receiving any debts, or paying out, selling, assigning or transferring any of its estate, moneys, funds, lands, tenements or effects, except to a receiver appointed by the court, until the court shall otherwise order.
“This act shall take effect immediately and shall be applicable as well to trust companies whose property and business are now in the possession of the commissioner of banking and insurance as to all other cases.”

Counsel for the defendant charges that the complainant failed in its specifications to bring the case within section 24 (supra) of the Trust Company act because (1) it does not allege that the trust company is insolvent; (2) it does not allege that the trust company has suspended its ordinary business for want of funds to carry on the same; (3) it does not allege a demand upon the commissioner to take possession of the property and business of the trust company; (4) it does not allege that after demand made upon the commissioner, he refused to take possession; (5) nor does it allege that after demand made upon the commissioner, he failed to take possession of the property and business of the trust company within a reasonable time after such demand, which failure might possibly be construed to be'a refusal under this section of the statute; and (6) the bill does not pray for an injunction contemplated by the statute.

I think there is merit in the defendant’s contention. It was incumbent upon the complainant to show that these statutory requirements enumerated by the defendant in the last mentioned six points were observed. This he has not shown. The statute directs the procedure; the complainant failed to follow it; his failure is fatal to the success of his cause.

The affidavits of the defendant, in my opinion, meet the allegations in the bill and the affidavits attached thereto. Counsel for the defendant called attention to the fact that the affidavits of the complainant are based largely upon information. Of course, the law is quite clear that affidavits of that character carry no more weight and have no more efficacy than hearsay testimony would have at a hearing, or trial. The source of the information has not been disclosed. Dorrian v. Davis, 105 N. J. Eq. 147; Township of Maplewood v. Margolis, 102 N. J. Eq. 467.

The affidavit of Hunt, the comptroller of the trust company, appears to answer the allegations in the . bills and the affidavits thereto attached; the same also can be said of the affidavit of Earl. The discrepancy in the two published bank reports is also accounted for and explained in the defendant’s affidavits—one was published through mistake which was subsequently corrected by the second publication. Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299.

I shall, therefore, advise an order denying the complainant’s application or motion for a receiver or trustees.


author: Lloyd, J.

text:
    McARDLE REAL ESTATE COMPANY, INCORPORATED, RESPONDENT, v. MARGARET C. McGOWAN, APPELLANT.
    Submitted January 25, 1935
    Decided July 2, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Aloysius McMahon.

    For the respondent, J. Thao. Begen and Mark A. Sullivan.

   The opinion of the court was delivered by

Lloyd, J.

This case has been before this court on various phases upon two other occasions. (See 109 N. J. L. 595; 163 Atl. Rep. 24, and 12 N. J. Mis. R. 500.) From these cases the general nature of the action is clearly defined.

It was to recover rents for an apartment after temporary occupancy, subsequent removal and later disaffirmance by the tenant of the contract, the ground of disaffirmance being that the defendant was insane at the time the contract was made. After the termination of the period of the lease an inquisition in lunacy was had and it was there determined that the defendant was insane at the time of its taking and was also insane for a period antedating the making of the lease. The case was tried before the judge without a jury and a judgment awarded to the plaintiff.

In his findings, the judge concludes that the defendant was to all intents and purposes capable of entering into a contract “since her insanity was not at that time apparent to the plaintiff.” He further found that there was a disaffirmance of the contract but after the defendant had received a benefit therefrom.

The leased premises consisted of a six-room apartment and before executing the lease the defendant insisted upon a complete redecoration of the apartment and scraping of the floors. This was done to her complete satisfaction. This service and expenditure were obviously made upon the faith of the contract that she was entering into, and the judge was right in his conclusion that the parties could not be restored to the status quo.

As to the other finding, there is ample evidence to show that if the defendant was insane in fact .at the time of the making of the agreement her mental incapacity was unknown to the plaintiff.

The rule of law applicable in such cases seems to be that where a contract has been entered into in good faith with an insane person without notice of the infirmity and before an adjudication of the insanity, and has been executed in whole or in part, it will not be set aside unless the parties can be restored to their original position. 32 C. J. 734; 14 R. C. L. 584; Goldberg v. West End Homestead Co., 78 N. J. L. 70; 73 Atl. Rep. 128.

There being evidence to support the findings and those findings justifying the conclusion reached by the trial judge, the judgment will be affirmed, with costs.


author: Pee Curiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ROLAND H. LOOG, SIDNEY L. HENRY AND JAMES J. DIGNEY, PLAINTIFFS IN ERROR.
    Submitted October term, 1934
    Decided July 11, 1935.

      Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the prosecutor, Jonas Turnen, prosecutor of the pleas, Monmouth county (J. Victor Carton, assistant prosecutor, on the brief).
    For the defendants, Lester C. Leonard.

   Pee Curiam.

This writ of error brings up for review the conviction of Boland H. Loog, Sidney L. Henry and James J. Digney, who were tried in the Monmouth County Court of Quarter Sessions upon an indictment for conspiracy to defame one Max Silverstein, a medical doctor in Asbury Park, New Jersey, who, at the time of these occurrences, was a councilman in that municipality. Henry and Digney were also members of the governing body and Loog was the municipal clerk.

The indictment charged these defendants with having conspired to deprive Silverstein of his good name and character and to subject him, without just cause, to public infamy and disgrace and to injure him in the practice of his profession and in his standing as a member of the governing body of Asbury Park, New Jersey, and to connect him with the charge of the unlawful sale of narcotics in this, that they did falsely accuse Leonard Johnson, his chauffeur, before the police magistrate of Asbury Park with the unlawful sale of heroin, which complaint was untrue and made for the unlawful purpose of connecting Dr. Silverstein with the crime of the unlawful sale of narcotics, and in furtherance of said conspiracy caused the Asbury Park Press, a newspaper of the city of Asbury Park, to publish an extra edition of the newspaper, which edition contained statements and innuendos in relation to the sale of said narcotics, which statements and innuendos were against the good name of the said Silver-stein and which unlawful conspiracy was false and made for the purpose of exposing Dr. Silverstein to public infamy, &c.

There was another charge in the indictment that these same defendants caused a citizen of Monmouth county to swear to a false affidavit, implicating Dr. Silverstein with the said Johnson in the sale of narcotics.

At the end of the case, on motion of defense counsel, this charge was struck from the indictment.

There was a fourth defendant in the case, Wayne McMurray, an employe of the Asbury Park Press, and who, on motion of defense counsel, had a verdict of not guilty directed by the court in his favor.

One of the main arguments of the plaintiffs in error for a reversal of their conviction is that the verdict of the jury was contrary to the weight of the evidence. Now the testimony offered for the consideration of the.jury tended to show the following facts, viz., that in February, 1934, the defendants, for the purpose of defaming and otherwise injuring Dr. Silverstein, planned to apprehend Johnson, his chauffeur, allegedly for the sale of narcotics. The defendants met in a cafe and, as a result of the meeting and plan, one Jones was promised money if he would obtain morphine from Johnson. Nothing materialized from this plan. The parties defendant then made use of the services of one Fleming, a special officer, to make the purchase. Max H. Roder, a narcotics agent in the service of the Dnited States government, had been called into the case. He, together with the said Fleming and one Burke, who was acting captain of detectives in Asbury Park, drove to the vicinity of Dr. Silverstein’s house. Fleming went in and purchased from Johnson a bottle containing a white powder, which was turned over to Roder. Several efforts were made to have the powder tested for narcotic reaction and these resulted negatively. A further test was made at a local drug store where it was thought that a slight discoloration indicated the presence of heroin in the powder. From Eoder’s testimony, it would appear that at the time complaint was made against Johnson before the police magistrate in Asbury Park, he (Eoder) believed there was heroin in the powder. Johnson was arrested and held for the action of the grand jury but no bill was found against him.

The testimony of the cafe keeper, if believed, would indicate that he had participated in the preliminary plan which ended with the arrest of Johnson, his excuse being that he had to acquiesce in the plan of the defendants (who, it will bo remembered, were members of the governing body of Asbury Park) because he was anxious to obtain a liquor license for the upper part of his building and that on numerous occasions the defendants, or one of them, in his presence and in the presence of others, clearly indicated that the conspiracy had for its object the defamation and disgrace of Dr. Silverstein which they hoped to accomplish by the arrest and prosecution of his chauffeur on the charge of dealing in narcotics.

Another witness, Mrs. Saunders, testified that two of the defendants, Loog and Digney, planned, in her house, to get a quantity of the drug from Johnson, giving her a marked $10 bill for that purpose. The delivery of the drug was to bo made to ihe defendants, as they planned, after its purchase, through an emissary of Johnson, one Nat Jones. The defendants agreed, in her presence, that neither Jones nor Johnson would get into trouble with the authorities but that the man they were after, in order to drive him out of public life, was Silverstein. This testimony was corroborated by the husband of Mrs. Saunders. The witness, Fleming, testified that Loog said, “well, Dr. Silverstein won’t be so pleased when he reads the headlines in the paper.” The testimony of the detectives, Burke and Sullivan, would indicate that they were honest in their purpose concerning the arrest of Johnson but that becoming suspicious of the affair, they managed to have the federal agent, Eoder, called into the case.

There is a plenitude of testimony concerning meetings of these defendants on the occasions referred to and later at the house of the defendant Henry, which, if the jury believed it, fully justified them in concluding that the sole purpose of the defendants, in the pursuit of Johnson, was to drive Silverstein out of public life, first, by the charging of the chauffeur with dealing in prohibited drugs, second, by the publication of the news article with its details which, coupled with the fact that Silverstein was a physician, would accomplish the downfall of the doctor in the minds of the people of the community.

On the part of the plaintiffs in error, it is said that they were acting in good faith, their object being to stamp out the selling of narcotics. This, however, presented a fact issue for the jury and the jury determined it against the defendants by their verdict of guilty.

From a review of the evidence, we are of the opinion that the verdict was not against the weight of the credible testimony.

The next ground for reversal is that it was error for the court to have denied the motion of the defendants for direction of acquittal at the end of the state’s case and at the close of the entire case.

Plaintiffs in error argue that the proofs in the case do not make out the crime of conspiracy within section 37 of the Crimes act (2 Comp. Stat., p. 1757), upon which the indictment is founded, and that this section (37) is exclusive and that unless the indictment is within the four corners of that section it cannot stand. We cannot adopt this view of the law but are of the opinion that if the acts charged amount to a conspiracy at common law that constitutes an offense against the criminal law of New Jersey, even though the acts charged in the indictment are not comprehended in so many words by the statute.

The argument is made that an indictment charging a conspiracy to injure Dr. Silverstein, by causing a false complaint to be made against his chauffeur cannot stand; and that the charge against Johnson would have no real effect upon Silverstein because it is too remote. In considering these points, we are hampered by the fact that in the record before us we do not find a copy of the complaint made against Johnson. But aside from this, the indictment charges as a further overt act, viz., that the defendants caused the Asbury Park Press to publish an extra edition, after hours, wherein were contained staiements and innuendos in relation to the sale of narcotics, which statements and innuendos connected Dr. Silver-stein in the matter. On the front page of this extra edition was a headline across the entire top of the page, “Silverstein’s driver hold on dope charge,” and below it, “Johnson accused of selling dope in Doctor’s office.” It may well be that this language was not a criminal libel but, under the circumstances, the question is: Did the defendants cause this publication to be made with the evil intention that people reading it would understand it as indicating that Dr. Silverstein was a party to the sale of narcotics? The proofs amply support a conclusion that they did and the jury evidently believed that the defendants did in fact perpetrate or cause to be perpetrated one or both of these overt acts.

At common law a conspiracy may be a plan to commit a crime hut it may also be an evilly designed scheme or confederacy to cause a civil injury. That the statute, section 37 of the Crimes act, does not pre-empt common law conspiracy seems settled. It contains no negative or exclusive words and does not abolish that common law offense nor does the statute mean that the acts enumerated in the statute (section 37) shall alone constitute the offense of conspiracy. State v. Norton, 23 N. J. L. 33. In that case (at p. 44), we find this pertinent paragraph, “A combination is a conspiracy in law whenever the act to be done has a necessary tendency to prejudice the public or oppress individuals by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief. Whart. Cr. L. 487.” There it was held that the acts in question constituted criminal conspiracy at common laiv, “even though the act conspired to be done or tho means by which it was to he accomplished be not in themselves criminal * *

it is most difficult to comprehensively define the offense of conspiracy. Chief Justice Beasley, in the case of State v. Donaldson, 32 N. J. L. 151 (at p. 154), among other things, says, “it may be safely said nevertheless that a combination will be an indictable conspiracy whenever the end proposed or the means to be employed are of an highly criminal character; or where they are such as indicate great malice in the confederacy or where deceit is to be used, the object in view being unlawful; or where the confederacy, having no lawful aim, tends simply to the oppressing of individuals.”

A consideration of the proof in this case discloses these qualities, and we think the indictment was sufficient and that the court properly rejected the motions for a direction of acquittal at the end of the state’s case and at the end of the entire ease.

It is next argued that the court fell into reversible error in the charge given to the jury and it is stated that the jury was, in substance, instructed “that the guilt or innocence of Johnson should determine the guilt or innocence of the defendants as to the alleged act concerning the charge against Johnson.”

Our first observation is that there is no basis whatever for this argument. The court, nowhere in its charge, made the guilt or innocence of Johnson, in the matter of selling narcotics, the determining factor in the guilt or innocence of the defendants. The indictment was for conspiracy to defame Silverstein. One of the overt acts cited was the false prosecution of Johnson; the other was causing the story to be published in the Asbury Park Press and, by insinuation, connecting Dr. Silverstein with it. If the indictment had been for conspiracy to defame Johnson, the presence or absence of reasonable ground for his prosecution, in the matter of selling narcotics, would be very material but the situation here is quite different and, as has been said, the prosecution of Johnson is, in the indictment, merely designated as an overt act in furtherance of the conspiracy to defame Dr. Silverstein.

It is further argued that the “certain things” which the indictment alleged defendants agreed to do were not prohibited by section 37 of the Crimes act. This contention has already been disposed of. The proofs are comprehensive enough to sustain an indictment for common law conspiracy and the thirty-seventh section of the Crimes act is not exclusive as to the crime of conspiracy in this state.

There is no merit to the other points advanced for a reversal, and the conviction is therefore affirmed.


text:
    FRANCIS DOLAN AND CATHERINE DOLAN, RESPONDENTS, v. JULIA E. MILLER, APPELLANT.
    Submitted January 25, 1935
    Decided July 2, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Quinn, Parsons &. Dor emus (Theodore D. Parsons and Theodore J. Labrecque, of counsel).
    For the respondents, Durand, Ivins & Carton (J. Victor Carton, of counsel).
   The opinion of the court was delivered by

Lloyd, J.

The action was brought by the plaintiffs upon an alleged joint employment, the wife to act as laundress and the husband as caretaker for the defendant. The state of the case exhibits nine counts in which various sums are alleged to be due under this employment for the months of May, June and July, 1932. The wife alone was called as to the contract and testified that in March, 1926, she applied for idle position for herself and her husband, that defendant stated that she would try them out, and if at the end of the month they were satisfactory they would be hired by the year. She further testified that they were discharged on June 3d, 1932, being paid the sum of $120. Objection was made to proofs tending to show a hiring for a year as contrary to the statute of frauds. This ruling was made a ground of appeal. Other grounds of appeal are urged but are either not well founded or are not adequately presented for consideration.

Section 5 of the statute of frauds provides that “no action shall be brought upon any agreement that it is not to be performed within one year from the making thereof unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized.”

It is clear that the contract, if one can be extracted from the very slight testimony produced, was entered into in March, 1926. It is equally clear that the entire employment, being dependent upon whether the service was satisfactory, could not be entered upon until after that date, and hence if such a contract is one contemplated by the statute to be per' formed within a year from its making the contract in the present case was invalid.

In the case of McElroy v. Ludlum, 32 N. J. Eq. 828, it was held by the Court of Errors and Appeals that a contract for compensation for services, the employment to be for a year or years and to commence at a day subsequent to the making of the agreement, was within the statute of frauds as not being one to be performed within a year from the making and could not be enforced; that if services had been performed under the agreement they could be recovered for on the basis of a quantum, meruit only. .

In the present case an action as already noted is for services during the months of May and part of June, which had been actually performed. The remainder of the claim is for the balance of the month of June and the month of July in which no services were performed.

There was error in the admission of the proof and there was further error in the submission to the jury of the fact of a hiring by the year.

By this ruling and the instruction to the jury the defendant was injured as appears from the fact that the jury’s award was for not only the amount due for services actually performed in the month of May and part of the month of June, but covering compensation for the portion of the month of June and the whole of the month of July for which no services were rendered.

The judgment is reversed, and a new trial awarded.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    IN THE MATTER OF THE APPLICATION OF JOHN DUJANSKI AND STELLA DUJANSKI, HIS WIFE, TO HAVE INCHOATE LIENS UNDER THE MECHANICS’ LIEN LAW DISCHARGED OF RECORD.
    Decided July 12, 1935.
    For the' petitioner, Stephen P. Piga.

    For the respondent Garfield Mills, Incorporated, Irving Lipman.

   Brown, C. C. J.

The applicant obtained a rule to show cause, addressed to the respondents Samuel Greenberg, Garfield Mills, Incorporated, a corporation, and Stephen M. Ferenezi, why a mechanics’ notice of intention filed in the county clerk’s office of Hudson county should not be canceled and discharged of record. Upon the return of the rule to show cause, Garfield Mills, Incorporated, made objection that this court was without jurisdiction to grant the relief sought. On the argument of the rule it appeared the relief the petitioner sought was an order directing the county clerk to discharge of record the notices of intention on the “lien docket” in his office. According to the petition and affidavits filed the petitioners on the 7th day of March, 1933, were the owners of premises known as 232 Thirteenth street, Jersey City, New Jersey. On that date the owners entered into a building contract with a contractor to alter and remodel a building on the premises. On November 18th, 1933, a supplemental agreement was made between the petitioners and the same contractor, concerning the same alteration, which contract was filed by the petitioners on November 20th, 1933, in the office of the clerk of Hudson connty. On April 1st, 1934, the contractor defaulted a second time and the petitioners engaged another contractor who completed the work. The respondents acting under the contracts of March 7th and November 18th, 1933, performed labor and supplied materials in connection with the alterations mentioned and filed their notice of intention under the Mechanics’ Lien law in the Hudson county clerk’s office, the first notice being filed on November 22d, 1933, and the last on March 29th, 1934. None of the respondents have taken any steps to perfect a lien claim since the date of filing their notice. The applicant applied to a Building and Loan Association for a loan to pay the second contractor. The Building and Loan Association, before loaning the money, demanded that the notices of intention be discharged or canceled of record. The question to be decided is whether this court has jurisdiction to order the county clerk to discharge or cancel the notices of Intention of record. Chapter 212, Pamph. L. 1930, p. 972 (Cum. Supp. Comp. Stat. 1925-1930, p. 949, § 126-1), provides that:

“1. Every building within this state, together with the land whereon it stands, including the lot or curtilage whereon the same is erected, shall hereafter be liable for the payment of any debt contracted or owing to any person for labor performed or materials furnished in or about the erection, construction or completion thereof, or any alteration, repair or addition thereto, which debt shall be a lien on such building, and on the land whereon it stands, including the lot or curtilage whereon the same is erected; provided nevertheless, that no one shall be entitled to a lien under the provisions of this act or any act supplementary hereto or amendatory hereof for any labor performed or materials furnished prior to the filing in the office of the clerk of the county wherein the land and building to be affected by such lien is situate, a mechanic’s notice of intention to perform such labor or furnish such materials, which notice shall be signed by ox on behalf of the one for whose benefit the same is filed and shall contain:

(a) The name of anyone who shall, within ten days prior to the filing of the notice, have been the owner of record of the estate in the lands to which the lien is to attach.

(b) A description of the land sufficient to identify it.

(c) The name of the one for whom the labor is to be performed or to whom the materials are to be furnished.

(d) The full name and address of the one for whose benefit the notice is filed, and the name of the person or persons whose signature shall be binding on the one for whose benefit the notice is filed when affixed to any instrument relating to such right of lien.

Provided, that nothing contained in the foregoing provision shall be construed to apply to anyone performing labor which is to be paid for within two weeks from the date of performance when the amount due for such labor does not exceed the sum of Two Hundred Dollars ($200).

(2) The county clerk of each county in this State shall, prior to the date, when this act goes into effect, provide a book to be entitled “Mechanics’ Notice of Intention,” so arranged that he may record therein the name of the owner, the name of the person by or on whose behalf the notice is filed, the location of the property, the file number of the county clerk’s office endorsed upon each notice filed under the provisions of this act, and the date of filing of such notice, and shall maintain in said record an alphabetical index of all owners in any such notice, and shall keep in his office in convenient form for inspection by the public all -notices so filed, and for so doing he shall be entitled to a fee of twenty-five cents for each notice so filed, recorded and indexed.

(3) No person shall be entitled to a lien under the provisions of this act, or under any act supplemental hereto or amendatory hereof, who shall have delivered materials to be used in the erection, construction, completion of, or any alteration, repair or addition to any building when furnished or delivered under a contract for the conditional sale of goods.”

"31. Such land and building may be discharged from any lien created by this Act (Cum. Supp. Comp. Stat. 1925-1930, p. 962, § 126-31):

I. By payment and receipt therefor, given by such claimant, which, when the same is executed in the presence of and is attested by any officer entitled to take the aeknowl-' edgment of the execution of a deed, or when acknowledged or proved before such officer, shall be filed by such clerk, and the words 'discharged by receipt5 shall be entered by him in said lien docket, opposite the entry of said lien;

II. By paying to said county clerk the amount of said claim (with interest and costs) which amount said clerk shall pay over to said claimant.

III. By the expiration of the time limited for issuing a summons, on such lien claim, without any summons being issued, or without notice thereof endorsed on said claim; and further when it shall be made to appear by affidavit or otherwise to the satisfaction of a justice of the Supreme Court or a judge of the Circuit Court in the county wherein said lien is filed, that more than the time limited for issuing a summons on such lien claim without any summons being issued or without notice thereof being endorsed on said claim, and said lien still remains on record as unsatisfied, the said justice or judge shall have power to forthwith order the clerk of said court to enter a discharge of said lien in said lien docket, opposite the entry of said lien.

IV. By filing an affidavit that a notice from the owner to the claimant requiring such claimant to commence suit to enforce such lien in thirty days from the service of such notice; and the lapse of thirty days after such service without such suit being commenced, or without any entry of the time of issuing such summons being made on such claim.

V. When it shall be made to appear by affidavit or otherwise, to the satisfaction of a justice of the Supreme Court or a judge of the Circuit Court in the county wherein said lien is filed, that said lien has been duly paid and satisfied, and that the claimant under said lien, or his attorney, have died or removed from this State since the filing of said lien, and said lien still remains on record as unsatisfied, the judge of said court shall have power to forthwith order the clerk of said court to enter a discharge of said lien in said lien docket, opposite the entry of lien.

VI. When at the trial of any suit based on a claim under this act judgment of nonsuit as to the owner or judgment final in favor of the owner defendant shall be entered, and no appeal therefrom shall have been taken within the time prescribed by law, the judge before whom said trial is held shall, upon application, execute an order setting forth said judgment of nonsuit or judgment in favor of the said defendant and directing the county clerk to cancel and discharge the lien of record; and the county clerk, upon receipt of said order, shall endorse upon the record of the mechanics’ lien, “discharged by order of the court.”

Chapter 134, Pamph. L. 1932, p. 242 (N. J. Stat. Annual 1932, p. 186, §126-36a(1), provides that:

“1. Whenever a mechanics’ notice of intention has been filed in the county clerk’s office in this State, pursuant to ‘An act to amend an act entitled “An act to secure to mechanics and others payment for their labor and materials in erecting any building and making certain improvements to land” (Eev. of 1898) approved June 14, one thousand eight hundred and ninety-eight, which amendment was approved April 18, one thousand nine hundred and thirty,’ and said claim for which the mechanics’ notice of intention has been filed shall have been paid, satisfied or settled by the parties, or abandoned by the party filing said mechanics’ notice of intention, the person, firm or corporation who filed said mechanics’ notice of intention shall file a certificate duly acknowledged or proved with the county clerk, in whose county the mechanics’ notice of intention has been filed, which certificate chalí contain:

1. The date of filing the mechanics’ notice of intention.

2. The file number endorsed upon the mechanics’ notice of intention.

3. The name of the owner of the land named in said mechanics’ notice of intention.

4. The name of the one for whom the labor was performed or materials were furnished.

Said certificate shall also direct the county clerk to discharge the mechanics’ notice of intention of record.”

The answer to the question presented on the rule depends primarily upon the construction of the foregoing provisions of the Mechanics’ Lien law. It is the policy of our courts to construe the statute in such manner as to give effect to the purpose of the legislation (Shoemaker v. Maloney, 102 N. J. L. 363; 132 Atl. Rep. 606); and so far as it operates to charge the lands of a party with a debt not contracted by him or for his ultimate benefit it should be strictly construed. Associates of the Jersey Co. v. Davison, 29 N. J. L. 415. The remedies provided in the statute should not be extended beyond its obvious design and clear requirements. Ayres v. Revere, 25 N. J. L. 474; Associates of the Jersey Co. v. Davison, 29 N. J. L. 415; Griggs v. Stone, 51 N. J. L. 549; 18 Atl. Rep. 1094.

Section 31, paragraph III of chapter 212, Pamph. L. 1930, (Cum. Supp. Comp. Stat. 1925-1930, p. 962, § 126-31), is the law referred to as empowering the court to grant the relief for which application is made. A reading of that section does not clearly disclose that the legislature intended the remedy therein contained should apply to a case where a notice of intention was involved but does clearly apply to that of a mechanics’ lien. This act directs the discharge to be entered “in said lien docket, opposite the entry of said lien.” What is plainly intended by this law is that a lien claim, not a notice of intention, may be discharged in the manner provided by the statute in the lien docket pertaining to liens and not in the book which the statute provides shall be kept by the county clerk and entitled “Mechanics’ Notice of Intention.” The legislature by the act of 1930 evidently did not intend that the remedies therein providing for a discharge of a lien should apply to a mechanics’ notice of intention because the legislature enacted a method of discharging a notice of intention in section 1, Pamph. L. 1932, p. 242, which directs that the notice of intention, in case of an abandonment, shall be discharged only upon a certificate being filed by the party filing the notice of intention. It directs that such party shall file the certificate. This is a clear mandatory direction. The statute does not direct a Circuit Court judge to order a county clerk to discharge the notice in the event of an abandonment. If the legislature so intended no doubt the act would contain some reference in that direction. If the remedies of the Mechanics’ Lien act are to be confined to the obvious design and clear requirements of the act (Ayres v. Revere, supra); the act should not be so construed as to empower a Circuit Court judge to order a county clerk to discharge a notice of. intention of record. The parties in this case have not furnished proof of the facts relied upon as required by the practice referred to in Peer v. Bloxham, 82 N. J. L. 288; 81 Atl. Rep. 659.

The rule to show cause is discharged.


author:
T m John 0. Wegner,
      Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY BROWN, PETITIONER, v. DOLLAR STEAMSHIP LINES, RESPONDENT.
    Decided July 12, 1935.
    For the petitioner, Louis Staisel.

    For the respondent, William, T. Ard.

   jjs s*: # sfc H* ❖ ❖

I do hereby find and determine thereupon that the petitioner’s decedent, Eugene W. Brown, was due at Pier 9, Jersey City, his place of employment by the respondent at six o’clock a. m., on June 3d, 1934; that while he was on his way to work he entered the Erie Eailroad station smoking room adjacent to lavatory conducted by the Erie Eailroad for the benefit of its patrons and used by the public. That the smoking room is approximately one-quarter mile from the entrance to respondent’s Pier 9 and that under normal conditions it would take about eight minutes to walk from the smoking room to Pier 9. That the decedent was found in the smoking room of the Erie Eailroad station at approximately five-twenty o’clock A. m., suffering from bodily injuries. That decedent did not report for work or reach the place of his employment by respondent on June 3d, 1934.

It is a necessary implication of the contract of employment that the workman shall come to Ms work and shall leave, with reasonable speed, when the work is over. Applying that doctrine which is laid down in Terlecki v. Strauss, 85 N. J. L. 454; 89 Atl. Rep. 1023; affirmed, 86 N. J. L. 708; 92 Atl. Rep. 1087, to the testimony of the ease sub judice I find that the place where decedent was found is not in such close proximity to the premises of the employer as to be in principle on the premises of the employer; that while there is no testimony of decedent’s action or conduct in or about the Erie Eailroad station I find that he deviated from the alleged usual and customary path and that there is on all the facts and circumstances in the testimony a presumption that he so deviated for his own convenience.

I do further find that the interval of time between that necessary to reach the place of employment from the smoking room and the time at which he was to have reported, in relation to the time decedent was found in the smoking room is not “reasonable” under the doctrine of Terlecki v. Strauss, supra, and therefore the injury is not within the contemplation of the employment by respondent, or within the intent of the legislation under which compensation is sought by the petitioner.

There was little, if any, testimony offered as to an accident and applying the precedent and rule of the case of Nardone v. Public Service, 113 N. J. L. 540; 174 Atl. Rep. 745, the facts of which are much stronger than the proofs in the instant ease I find that the petitioner has failed to prove an accident to decedent.

Applying the construction of the statutes as found in the case of Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, to the testimony admissions and stipulations of the parties I find and determine that the petitioner has failed to prove that the decedent met with, and that his death resulted from, an accident arising out of and in the course of his employment by respondent. The words “arising out of” and the words “in the course of” are used conjunctively in the statute and in order to satisfy the statute to obtain its benefits both conditions must concur.

It is * * * ordered that a judgment of no cause of action be entered in favor of the respondent and against the petitioner and the petition of the petitioner be and the same is hereby dismissed.

T m John 0. Wegner,

Referee.


author: Gapjfrey, C. C. J.

text:
    ANNA KRIEG, ALSO KNOWN AS MRS. J. KRIEG, Sr., PLAINTIFF, v. THE PHOENIX INSURANCE COMPANY OF HARTFORD, DEFENDANT.
    Decided July 19, 1935.
    For the plaintiff, Levine S Gaulldn.

    For the defendant, Lum, Tamblyn A Oolyer.

   Gapjfrey, C. C. J.

This ease was submitted on the following stipulation:

"On December 24th, 1928, the Phoenix Insurance Company of Hartford issued a policy of insurance to plaintiff in the sum of $2,000 to cover certain personal property belonging to her. The policy is in the New Jersey standard form. On this policy was an endorsement or schedule captioned ‘'Household Furniture Form/ There is no special form provided by the commissioner of banking and insurance for such schedules or endorsements: they are provided for by subsection II of paragraph 77 of the Insurance laws of New Jersey. 2 Comp. Stat., p. 2862, amended laws 1929, chapter 283.

"The plaintiff also held another policy in the Automobile Insurance Companj’ covering the same property in the sum of $3.000.

"On November 13th, 1930, a fire occurred which caused $4,000 damage to the insured property.

"The insured personal property was contained in a two and one-half-story frame structure, with a basement and attic. This structure contained eleven rooms and two baths and had a one-story extension in the rear.

“The plaintiff had occupied this building for four years prior to the fire as her dwelling. On or about October 1st, 1930, she rented the premises to one Britto as a dwelling. No written lease was made.

“On November 12th, 1930, about midnight, the police of Maywood raided the premises and found a high pressure boiler in the cellar which was connected with a two hundred and fifty-gallon still which was on the first floor. A fire was burning under the boiler. The boiler stood in a pit dug in the cellar floor, which pit was lined with concrete which appeared to be fresh. The boiler was about eight feet long and three and one-half feet in diameter. In the adjoining part of the basement there was a rack extending along the whole width of the basement on which were stacked empty quart bottles of dark glass. Adjoining these bottles was a pile of corks, and this pile of corks together with the stacked bottles extended across the whole length of the rack. The rack was approximately fifteen feet in length and about three feet wide and stood about two and one-half feet from the floor. On the floor were two large wooden barrels approximately three feet long and two and one-half feet high.

“On the second floor, in the front bedroom, was a large metal tank about ten feet long by three feet high and about two and one-half feet wide.

“A hole had been cut in the first floor about eighteen inches square, and a similar hole had been cut in the floor above it. Eighteen-inch columns protruded through these holes supporting the still and terminating in a six-inch vent pipe which went through the roof.

“The plaintiff had no knowledge that the tenant was or had been using the premises for other than dwelling purposes.

“The police dismantled the still and removed it from the premises. This dismantling and removal began about nine A. m. and was completed about four-forty-five p. m. on November 13th, 1930.

“At about nine-thirty p. m. November 13th, 1930, the fire happened.”

This policy was issued on the 8th of April, 1929. On November 13th, 1930, a lire occurred which caused $4,000 damage. The insured personal property was contained in the premises occupied by the plaintiff for four years prior to the ñre as her dwelling. On or about October 1st, 1930, she rented the premises to one Britto as a dwelling. No written lease was made.

From the stipulation it appears that the new tenants were engaged in the illegal manufacture of liquor without the knowledge of the plaintiff. The defendant urges as one of the grounds for judgment in its favor that this constituted a violation of the warranty and thereby vitiated the policy. From the stipulation it appears that the fact of the operation of the still was unknown to the plaintiff, and I hold this did not vitiate the policy on that ground.

Line 20 of the policy, which is in the standard form, provides, “or if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance” the policy shall be void. There is no dispute that the plaintiff, when she rented the premises to Britto on October 1st, transferred her interest and possession in the furniture and violated the provision of the policy, thereby rendering it void.

Without quoting the paragraph in full, reference to section 243 of Richards on the Law of Insurance (4th ed.), lays down the law with respect to the language quoted from the standard policy.

There will be judgment for the defendant.


text:
    ELI R. VAN METER, PETITIONER-PROSECUTOR, v. E. R. MOREHOUSE. INCORPORATED, DEFENDANT-RESPONDENT.
    Argued May 8, 1935
    Decided July 15, 1935.
    Before Justices Parker, Case and Bodine.
    Por the petitioner-prosecutor, Vari alow <& Liberman.

    Por the defendant-respondent, Starr, Summerill & Lloyd.

   Bodine, J.

Petitioner, a farm laborer, while clearing a field by pulling out great weeds and bushes, suffered an injury to his back. He had been assigned to this work by his employer. Congenitally, his back was not strong and the injury caused by prolonged exertion seems to have started up an old arthritic condition. The bureau determined that there had been an accident ’ arising out of and in the course of the employment for which compensation should be paid. The Court of Common Pleas reversed this finding.

There may be a recovery for an injury caused by an accident, although there was a diseased bodily condition prior to the injury, which it may be inferred would have remained more or less dormant until weakened by the accident. Lundy v. Brown & Co., 93 N. J. L. 107; 106 Atl. Rep. 362; affirmed, 93 N. J. L. 469; 108 Atl. Rep. 252; Geizel v. Regina Co., 96 N. J. L. 31; 114 Atl. Rep. 328; affirmed, 97 N. J. L. 331; 116 Atl. Rep. 924; New York Live Poultry Trucking Co. v. Schwartz, 5 N. J. Mis. R. 178; 135 Atl. Rep. 775; affirmed, 104 N. J. L. 180; 139 Atl. Rep. 923; Tutino v. Ford Motor Co., 111 N. J. L. 435; 168 Atl. Rep. 749; Bernstein Furniture Co. v. Kelly, 114 N. J. L. 500; 177 Atl. Rep. 554.

The question in the case before us is: was the employment one of the contributing causes without which the accident which actually happened would not have happened; and if the accident is one of the contributing causes without which the injury which actually followed would not have followed? Newcomb v. Albertson, 85 N. J. L. 435; 89 Atl. Rep. 928; Selak v. Murray Rubber Co., 108 N. J. L. 548; 159 Atl. Rep. 93.

In the present case, the employment in pulling weeds was one of the contributing causes without which the accident which actually happened would not have happened. Obviously, the sprain to the back from the excessive tugging from the protracted work of the morning was one of the contributing causes without which the old arthritic condition would not have occurred. The employe testified that while he was pulling out great weeds and bushes he experienced a pain in his back. This he reported to the superintendent on the work. A sprain of the back, and such it was pronounced by competent medical opinion, is obviously an accident, and as it arose out of and in the course of the employment, the prosecutor was entitled to compensation. This is not a case where the result was accidental but otherwise the means. Lawrence v. Massachusetts Bonding Co., 113 N. J. L. 265; 174 Atl. Rep. 226. Had the employe broken his leg or sprained an ankle while at work, it clearly would have been called an accident. A sprain of the back falls no less in the same category. „While doing his work there was something unforeseen, unexpected or unusual that produced the results. It could have been an extra tough weed requiring an extra exertion which caused the spinal injury. Such result seems clearly accidental.

In Standard Water Systems Co. v. Ort, 110 N. J. L. 586; 166 Atl. Rep. 335, there was no proof whatever of an accident. There was no proof that there was any unusual occurrence during the hours of labor. The employe, on his way home, had a heart attack from which he died the next day. The disturbance was angina pectoris. But there was no proof whatever that the work or the employment had started np the heart condition.

The judgment of the Court of Common Pleas is reversed, and that of the bureau affirmed, with costs.


text:
    ROBERT M. MARKS, PROSECUTOR, v. COUNTY OF MONMOUTH, DEFENDANT. GEORGE B. GOODRICH, PROSECUTOR, v. COUNTY OF MONMOUTH, DEFENDANT.
    Submitted May 17, 1935
    Decided July 22, 1935.
    Before Justices Parker, Case and Bodine.
    For the prosecutors, Ward Kremer.

    For the defendant, William A. Stevens.

   Per Curiam.

By resolution at its first meeting, January 2d, 1934, the board of freeholders of Monmouth county directed that “in the interest of economy” certain “positions of employment” be abolished. They were seven in number: those now pertinent were of two assistant superintendents of weights and measures, one held by prosecutor Marks, the other by prosecutor Goodrich. They sued out the two writs now before us, and urge that as to them the resolution in question be set aside.

Two points are made. The first is that the positions were created by act of legislature, and that there is no statutory authority for abolishing them. The second is that apart from this, the abolition was founded on political reasons.

As to the first point, we consider that the positions were authorized by the legislature, rather than created. Section 11 of the act of 1911 (Pamph. L., p. 417; Cum. Supp. Comp. Stat. 1911-1924, p. 3843, § 234-48), provides that “the respective county * * * superintendents, may, upon resolution of the respective governing bodies of said counties * * * appoint assistant county * * * superintendents.” See Neilley v. Passaic, 13 N. J. Mis. R. 283; 177 Atl. Rep. 855. It will be observed that no number, or limit of number, is set by the statute. In the ISTeilley case we said that the municipality, which was also controlled by the same section, had full power to abolish the positions, or whatever they were, for economy. By the statute they are called into being by municipal or county action. By the same kind of action they may be abolished. Jacoby v. Borough of Carteret, 12 N. J. Mis. R. 199; 170 Atl. Rep. 613; Cahill v. West Hoboken, 90 N. J. L. 398; 101 Atl. Rep. 417; Colgarry v. Board of Street and Water Commissioners, Newark, 85 N. J. L. 583; 89 Atl. Rep. 789; Rath v. Bayonne, 10 N. J. Mis. R. 997; 162 Atl. Rep. 129. We think that the -board had implied power to recall its resolution requesting the appointment of assistant superintendents, and this, in essence is what it did.

As to the point that the action was taken for political reasons, we have examined the evidence, and conclude that the prosecutors have altogether failed to sustain the burden of proof, which the law casts on them.

The writs will be dismissed, with costs.