text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. TONY MARTONE, DEFENDANT-RESPONDENT.
    Submitted May term, 1925
    Decided October 6, 1925.
    Contracts — Alleged Subscribing Witness Proven Out of State— Defendant Called, Testified to Signing Contract Which Was Then Offered in Evidence, and Defendant’s Objection Thereto Sustained — Subscribing Witness Being Out of State, Other Proof Competent — Nonsuit Reversed.
    On appeal.
    Before Justices Parker, MrxTURx and Brack.
    For the appellant, Herman R. J. Weckstein.

    For the respondent, Thomas J. Kennedy. ■

   Per Curiam.

This suit was brought to recover the balance due for two electric lamps furnished the defendant by the plaintiff of $25.40. The trial resulted in a nonsuit of the plaintiff, and this is the error complained of. The testimony shows that the lampe were furnished under a writen contract dated April 23d, 1923, at the bottom of which was written "salesman D. Dobrin.” The plaintiff proved that Mr. Dobrin was in Los Angeles, California, by a witness Max Forman. The defendant was then called. "Q. Did you sign this paper? A. Yes. sir. Mr. Grecnbaum, I offer it in evidence. Mr. Kennedy — I object to that. The court’s objection sustained.” This was reversible error. If D. Dobrin was a subscribing witness, which we do not think he was, it was shown he was out of the state, then other proof of the paper’s execution is competent. New Jersey Zinc, &c., Co. v. Lehigh Zinc, &c., Co., 59 N. J. L. 189: Worman v. Seyberl, 78 id. 176. Then a nonsuit was entered. As stated, this was reversible error.

The judgment of the District Court is reversed and a venire de novo awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    LEO F. CROWLEY, PLAINTIFF-RESPONDENT, v. E. HOMAN COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May term, 1925
    Decided October 6th, 1925.
    Contracts — Sale of Used Automobile — Alleged That- Agreement Was For a,1922 Model, and That a 1921 Model Was Delivered1 — Neither. Bill of Sale Nor Written Agreement Referred to a 1922 Model — Reversible Error to Admit Oral Testimony to Vary Terms of Bill of Sale or to Supply Terms With Respect to Which Writing is Silent — Error to Permit Witnesses to Testify From Blue Book of National Used Car Market Report Where the Only Justification is That It is the One1 Generally Used in the Automobile Trade.
    On appeal.
    Before Justices Parker, Miktcrn and Black.
    Por the appellant, O'Brien £ Twrlalsky.

    Por the respondent, Edward Salley.

   Per Curiam.

This suit was brought to recover $400. The plaintiff in the state of demand charges that on January 7th, 1922, the defendant agreed to sell the plaintiff a Stndebaker Special Six coupe automobile, 1922 model, but, instead, he delivered at the agreed price a 1921 model of said automobile; that plaintiff did not discover the misrepresentation until he attempted to exchange the automobile for another automobile in December, 1924. The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $400, and $22.80 costs. The appellant files eight specifications of the determination with respect to which it is dissatisfied in point of law. Nos. 1, 2, 3 and 4, error in entering judgment for the plaintiff,- failing to enter judgment for the defendant, refusing to nonsuit or direct a verdict in .favor of the defendant. These points require no discussion. No. 5, error in admitting testimony tending to alter or vary the terms of th" written contract, a bill of sale of the automobile. Exhibit fí J. This bill of sale Is a complete instrument, signed and acknowledged before a notary public, dated January 7th, 1921. So, the written agreement. Exhibit P 2. No. 6, error in permitting a witness, Abe Balbot, to testify from a book known as the Blue Book of the National Used Car Market Report, published by the Chicago Automobile Trade Association. No. 7, error in permitting the witness, Abe Talbot, to testify that the difference in \alue between a 1921 and 1922 Studebaker Special Six coupe was the sum of $575. No. 8, error in awarding the amount of damages based on the evidence of the plaintiff's witness, Abe Balbot.

The judgment will have to he reversad for trial errors. It was reversible error to admit oral testimony to vary or alter the, terms of the bill of sale (Exhibit Pi), and the written agreement (Exhibit P 2), under the well-recognized cases of Naumberg v. Young, 44 N. J. L. 331 oral testimony will not be permitted to supply terms with respect to which the. writing is silent. Castelbaum v. Wolfson, 92 Id. 165. There is nothing in the bill of sale (Exhibit P 1) or the written agreement (Exhibit P 2) about a 1922 model. So, it was error to permit a witness to testify from a book known as the Blue Book of the National Used Car Market Report, published by the Chicago Automobile Trade Association. The only justification for the use of this book in the state of facts sent up with the record is, “that the said book from which he wa« reading was one generally used in the automobile trade.” This is not sufficient to admit it in evidence or to- permit it to be read from under the case of E. Clement Horst Co. v. Breidt City Brewery, 94 Id. 230.

The judgment of the Second District Court of Jersey City is reversed and a revire de novo awarded.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. TONY LESSON, PLAINTIFF IN ERROR.
    Submitted May term, 1925
    Decided October 6, 1925.
    Crimes — Receiving Stolen Goods — No Merit in Any of the Nine Assignments — Charge of Court Regarding Knowledge of Facts Relating to Theft — Not Reversible Error For Court to Express Opinion On Evidence, It Does Not Take the Facts From the Jury — Duty to Convict if Circumstances Indicated to Reasonable Men That Goods Were Stolen.
    On writ of error.
    Before Justices Parker, Mjntur.y and Black.
    For the plaintiff in error, Wight, Wight £ Golenboclc.

    For the defendant in error, Joseph E. Strieker, prosecutor of the pleas, and John E. Toolan, assistant prosecutor of the pleas.
   Per Curiam.

The defendant was convicted of receiving stolen goods to the value of $S9, in the Middlesex County Quarter Sessions.

The plaintiff in error files nine assignments of error and nine specifications of causes for reversal, which are argued under five heads in the brief filed on behalf of the plaintiff in error. There is no legal merit in any of them.

First, the court erred in refusing to direct a verdict of acquittal, at the close of the case for the state; second, the court erred in submitting the case to the jury; fourth, the verdict was against the weight of the evidence. Not so. Questions of fact for the jury were involved under all these points. Third, variance between the indictment and the proof. Not so. Fifth, error in the charge of the trial judge; the criticism is aimed at that portion of the charge in which the trial judge said: “Yon can find knowledge from the facts which would have put a reasonable man on his guard. There can be no doubt that these goods were stolen, and it seems to me that there can be no doubt that this defendant should have known at the time that he purchased the goods that the goods were stolen.” This is not reversible error; when read in connection with the entire charge it is nothing more than an expression of the court’s opinion on the evidence. It does not take or attempt to take the facts from the jury. The court further said: “If you find that the goods were stolen, that he purchased them under such circumstances as would have indicated, or should have indicated, to him or any other reasonable man that the goods were stolen, then it is your duty to convict.”

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


text:
    ISIDOR LIEBERMAN, PLAINTIFF-RESPONDENT, v. NEW JERSEY CARPET AND RUG CLEANING COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted May 15, 1925
    Decided October 6, 1925.
    Bailment — Destruction of Rug While Being Cleaned — Defendant-Alleged That Injury Was Not Due to Defendant’s Negligence, but to An Act of Plaintiff — This Does Not Constitute Rebuttal of Evidence of Negligence of Defendant — Judgment For Plaintiff Affirmed.
    On appeal from the Second District Court.
    Before Justices Parker, Mia then and Black.
    For the appellant, Perkins & Drewen.

    For the respondent, Morris Lieberman.

   Per Curiam.

The plaintiff entrusted several rugs to the defendant to clean. One of them, on being unpacked several months later, had a number of holes or tears in it, and the plaintiff claimed that this was due to negligent handling by the defendant, and that the rug was thereby rendered worthless. The defendant claimed that the condition of the rug was not due to its' fault, but that the holes were such as could have been caused by the acid from a radio battery. On the trial, the defendant was allowed to demonstrate the effect of such acid with another' rug. It appeared that the plaintiff had had a radio in the room where the rug had been used, but beyond this the case shows little or nothing. The cleaner who worked on the rug was not' produced as a witness.

In this state'of the evidence it is claimed that the trial judge, sitting without a jury, ought to have found, on the facts, for the defendant, because any. presumption of negligence arising from the condition of the rug had been conclusively rebutted. We are unable to agree with this view, and think that on the questions of the evidence the case was one of fact for the determination of the trial judge, sitting without a jury, and that as there was evidence before him tending to show negligence by the defendant, his finding in that regard cannot be disturbed here.

The judgment will be affirmed, with costs.


text:
    EDWARD H. JONES, TRADING AS JONES, THE LAND MAN, PLAINTIFF-APPELLEE, v. HARRY HOLLANDER, DEFENDANT-APPELLANT.
    Submitted May 15, 1925
    Decided October 6, 1925.
    Sale of Real Estate — Agent’s Commissions — Exclusive Limited Contract — During Term of Limit Owner Exchanged Property'at a Stipulated Valuation — Agent Can Recover On An Exclusive Agreement If He Has Performed His Part as Agent, Though He Did Not Make the Actual Sale — Claim That He Can Only Recover on Quantum Not Sustained— Transaction in This Case Was “Sale," the Property Having Been Put in at a Stipulated Price.
    On defendant's appeal from District Court of Jersey City.
    Before Justices Parker, Mlstfrn' and Black.
    Eor the appellant, Dembe & Dembe,.

    For the appellee, Benny & Gruden.

   Per Curiam.

This was a suit by a real estate broker for commissions. The authority was in writing, and signed by the defendant. The material part of it reads as follows:

“I hereby appoint Jones, ‘The Land Man,’ my agent to sell my property as below described, and I agree' to pay him an amount' equal to three and one-half per cent, commission on the selling price I receive on the sale of said property. And I further agree to give him the exclusive right to sell said property for the term of ninety days. It being understood and agreed that the above-named agent shall be paid the full amount of said commission if said property is sold during the term o£ this agreement.”

Following this were the particulars respecting the property and other terms, &c. It appears that the plaintiff advertised the property, brought purchasers to look at it and made the usual efforts of a broker to secure a purchaser, but had not succeeded in bringing owner and purchaser together up to the time when the owner made a trade which included this property with a party not produced by the plaintiff. This trade was made during the term of exclusive agency provided in the written authority as above. The state of the case, as settled by the trial judge, says that the defendant exchanged the property, and that two of the three houses, including number 175, which are the premises in question, were conveyed under this contract at a price fixed upon of $31,500 for the two. The trial court held the plaintiff entitled to recover its commission, and the defendant appeals.

The defendant moved to nonsuit, and for a judgment on several grounds, which will be now considered.

First. That as the plaintiff did not make a sale, he is not entitled to recover any commission. But, as already pointed out, the agency was exclusive, and the rule, as we understand it, is that if, during the period of exclusive agency, the owner himself or any other agent makes a. sale of the property, the exclusive broker is entitled to his commission, even though he had not made the sale. Dresser v. Gilbert, 81 N. J. L. 358.

The second point made is that, in any event, the plaintiff was limited to the actual loss sustained. But the difficulty about this point is that it does not go either to a nonsuit or to a judgment for the defendant, but merely to the quantum of recovery. The case of Garibaldi v. Rubenstein, 1 N. J. Adr. R. 1342, is relied on, but we think is distinguishable, in that in the present case there is‘an express agreement to pay commission if there is a sale. See Stevenson v. Oppenheim, 91 N. J. L. 479, and eases cited.

The third point is that there was no consideration for the contract in question. We think there is nothing in this point. The consideration is the agreement of the broker to try to obtain a purchaser and his actual efforts in that regard, including the expense of advertising. See Burt v. Brownstone Realty Co., 95 N. J. L. 457 (at p. 461).

The, next point is that the disposition of the property made by the owner was not a sale but an exchange, relying on Haber v. Goldberg, 92 N. J. L. 367. That case, however, seems to be an authority for the proposition that the transaction in this case was a sale. The contract of so-called exchange does not seem to have been put in evidence. At all events, it is not in the printed case; but we have the facts that there was a trade, and that number 175 and the property next door were put in at a stipulated valuation as against some other properties, no doubt at a similar (valuation. Under the reasoning in Haber v. Goldberg, the transaction under these circumstances was a sale.

The judgment is affirmed.


author: Ko cheer, Advisory Master.

text:
    Essex County Orphans Court.

      In the matter of the estate of Raffaele Jula, deceased.
    [Decided October 2d, 1925.]
    Accounting — Administrators—Administrator Appointed in 1900— Account Presented in 1902, Which Was Never Allowed — Administrator Cited to Account in 1925 — Account Filed, Showing Balance Due Next of Kin- — Accountant Told Different Stories Regarding the Use He Had Made of the Money— Held, He Must Pay Simple Interest on Amount in His Hands, Also That No Commission Will be Allowed, Commissions Being Allowed Only For Faithful Discharge, of Duty.

      On exceptions to account.

      Mr. J. Victor D’Aloia (by Mr. Carl Abbruzzese), for the exceptant.

      Mr. Maxwéll M. Attach, for the accountant.
   Ko cheer, Advisory Master.

Raffaele Jula, late of the city of Newark, died in the month of November, 1900, and Antonio- Fabiano was duly appointed administrator of his estate, which amounted to the sum of $1,077.50. On April 2d, 1902, the said administrator filed, in the office of the surrogate of this , county, an accounting showing a balance of $908.42 for distribution among the next of kin of the said intestate. 'This account, however, was merely filed, and was never allowed by the orphans court. It therefore is not an account at all in the true sense of that term, but merely a statement showing the then condition of the estate.

The administrator took no further proceedings in the matter until he was compelled, by order of this court, made on January' 30th, 1925, to settle his account as such administrator. The account, however, ivas not actually filed until the 18th clay of March, 1925. To this account exceptions were tiled by Antonio Jula, one of the children and next of kin of the intestate, most of which object to items in the account wherein the administrator prays allowance for money which he claimed was paid by him to the widow and next of kin. Most of these exceptions were abandoned at the hearing.

Exceptant, however, pointed out that the two items of $37.50 each, one claimed to have been paid on December 14th and the other December 23d, 1900, were duplications, and an inspection of the vouchers filed shows that there are duplicate vouchers for a single payment. The administrator will therefore be surcharged with the sum of $37.50.

Another exception urged was the payment on, May 8th, 1902, to Antonio Jula, on account of Raifaele Jula, of the amount of $116.40. It was shown that this payment was to intestate’s father, who was not one of the next of kin, and, therefore, was not entitled to participate in his estate. This exception will therefore be allowed.

It will be recalled that the administrator was appointed during the year 1900, and it was not until April 2d, 1902, that he filed his first account. Since that time he has made, as appears from his account, small payments to the next of kin of intestate during the years of 1900 to 1903, but that he made no payments since that time.

On the part of the exceptant, it is urged that inasmuch as this fund in the hands of the administrator was not invested, and the administrator, having failed to either invest the fund or to pay it to the next of kin, is chargeable with interest thereon. Asked what he did with the money, the administrator first said that he had it in his safe. Being then charged with having no safe, he said it was in his son’s safe. When attention was called to the fact that at the time this money came into his hands his son was but a few years old, and, consequently, could have had no safe, he then said he kept it in a box in his room, later stating that he kept it in his trunk.

Counsel for accountant attempted to palliate this story by the fact that accountant was an Italian not sufficiently versed in onr customs to be chargeable with the duty to invest the funds. However that may be, the accountant Himself testified that from 1910 to 1914 he had a bank account of his own., and it goes without saying that if he had sufficient knowledge to have a bank account of his own, he is chargeable with sufficient knowledge to have placed these funds in the bank. As a matter of fact, there was absolutely no excuse why this fund should not have been distributed at the expiration of one year from the appointment of the administrator. He was thoroughly familiar with the next of kin of the deceased, knew who was entitled to the fund, and the impression which the situation makes on the mind is that he made these several small payments from time to time for the purpose of keeping the parties entitled to the money quiet, and, they being in Italy, were more or less defenseless, and it was not until one of the sons of the intestate came to this country and personally intervened in the matter that the administrator made any attempt whatever to perform his duties as such administrator, and, even then, when ordered by this court, on January 30th last, to file his account within ten days, he did not obey the order of the court until the 18th day of March thereafter.

The accountant, in response to a question, admitted that he used a portion of this fund in the purchase of certain real estate which he purchased for his own use. In response to questions by his own counsel, he said that this statement made by him was not true, and that he had never touched the fund, but that it had been lying in the form of cash in his 'trunk.

This story taxes the credulity of any normal-minded man to ask one to believe that this accountant had several hundreds of dollars belonging to this estate in his trunk from 1902 to 1925, a period of twenty-three years, is a story too preposterous to admit of serious consideration.

It is well settled that the balance of assets remaining in the hands of an administrator after payment of debts should be paid to those interested, or put out at interest for their benefit. If the funds are used by the administrator, he is required not only to pay interest, but to account for all the profits that he has made. If no profits have been made and the money has been suffered to lie idle, he will be charged with simple interest for his negligence, and he will not be exempted from the payment of interest simply on the ground that the legatees were at a distance and might call for their money when it was not in hand. King v. Berry, 3 N. J. Eq. 261; Frey v. Frey, 17 N. J. Eq. 71.

It is contended on the part of exceptant that accountant followed this course of conduct by advice of counsel, and lie nanied an attorney of this state who has been dead for some years. While it seems incredible that any attorney should give such advice to accountant, still, such a defense is not applicable to him unless he acted in good faith, and inasmuch as I am fully satisfied that the defendant used a portion if not all of this money for his own personal use, it cannot be said that he acted in good faith. But be that as it may, the fact of retaining this money all these years without attempting to pay it to those to whom he knew it was due is certainly not good faith on his part. In his account, now under consideration, the accountant shows a balance in his hands of $475.22. The last payment made by accountant on account of the estate was on December 16th, 1903. He will therefore be held chargeable with simple interest on the sum of $475.22 from December 16th, 1903, at the rate of six per cent, per annum to the date of payment.

Accountant prays allowance under date of March 22d, 1902, for the sum of $73.08 as his commissions as administrator of the estate. It is well settled that an executor, administrator, guardian or trustee, is not entitled to commissions until they are settled and allowed by the orphans court, and that that cannot be deducted by him until they are so fixed and allowed. Lathrop v. Smalley, 23 N. J. Eq. 192; Wyckoff v. O’Neil, 72 N. J. Eq. 880. Tf accountant takes commissions before they are allowed by the court, he occupies the position of a borrower of the amount so taken, and is chargeable with interest thereon to the time of his accounting. Wyckoff v. O’Neill, supra. It is also well settled that commissions are a compensation for the faithful discharge of duties, and that when an administrator violates that duty, he will not be entitled to commissions. Dufford v. Smith, 16 N. J. Eg. 216, 222; In re Walsh’s Estate, 80 N. J. Eq. 565, 575, and cases cited.

The accountant has certainty not performed his plain and simple duty by paying the balance in his hands to the persons entitled to it, or, as an alternative, of investing the money. He has therefore forfeited his right to»' commissions, and the same will be disallowed, and, inasmuch as he has already paid himself commissions, he will be surcharged with interest upon the amount which he took from the estate at the rate of six per cent, per annum. ,


text:
    ELIZABETH CORUM AND JOHN CORUM, PLAINTIFFS, v. NORMAN L. DAVIS AND ROBERT BOA, DEFENDANTS.
    Submitted May 15, 1925
    Decided October 6, 1925.
    Negligence — Motor Vehicle Collision — Judgment For Plaintiffs, Wife and Husband — Judgment Not Excessive For Either— X-ray Pictures Were Properly Connected — Husband May Recover For Loss of His Own Time in Caring For His Wife —Wife May Recover Full Loss of Earnings — Jury Justified in Inferring That Accident Was Due to Negligence of Defendant.
    On defendants’ rule to show cause.
    Before Justices Parióse, Minturn and Black.
    Por the plaintiffs, John P. Lloyd.

    For the defendants, Frank G. Turner.

   Per Curiam.

This is a suit by a married woman, her husband adding his claim per quod, for damages sustained by personal injuries due to an automobile collision. The facts, as developed on the trial, and which the jury might have found to be substantially, are that Mrs. Corum was a passenger in a Ford sedan, driven by one Jackson, at night. As this car was proceeding on its proper side of the road, it became necessary to pass a large auto bus coming in the other direction, and as these two vehicles neared each other, and were about to pass, the defendant Boa, driving his own car, shot out from behind the auto bus and collided with the Ford sedan.

Neither defendant appeared at the trial, although the plaintiff had subpoenaed both of them as witnesses, and there was no evidence submitted for the defendants except that of a medical expert, with respect to Mrs. Corum’s injuries. The plaintiff endeavored, unsuccessfully, to prove some connection of the defendant Davis with the affair, but the court granted a nonsuit so far as he was concerned, and let the jury take the case as against Boa. There was a verdict in favor of Mrs. Corum against Boa for $1,500, and in favor of her husband for $400.

We take up the points as made. One, that the verdicts were excessive. Mrs. Corum had a fractured patella, an injury which is never permanently healed because the fractured portions of the patella never form a bony union. At the trial she said that she still walked stiffly and had had a great deal of pain. It also appears that she was- accustomed to work out as a caterer, doing business on her own account, and that she had lost earnings in that line. We consider that the verdict of $1,500 in her favor, was entirely reasonable.

As to the verdict of $400 awarded in favor of the husband, it was shown that lie had had some expense for medical service, and that he had had to stay at home from work nursing his wife. The amount is small, and, indeed, hardly worthy of consideration on a claim of excessive damages.

The second point is that the court erred in refusing a mistrial because the question of insurance had been brought into the case. .All that appeared in this case was that at the opening day of the' term, when the general panel was in attendance, but no case was on, some motion for adjournment of the cause was made by the defendants’ attorney, and on the hearing of that motion, in the presence of the general panel, the plaintiffs’ attorney made some statements to the court about negotiations with the agent of the insurance company. A mere statement of these facts is sufficient to show the futility of this point.

The third point is that the X-ray pictures should not have been admitted because not properly connected. They were properly connected.

The next point is that the court erred in admitting the following question: “Doctor, what does this picture show ?” The objection now made is that the doctor was not qualified to translate the pictures. No such objection was made at the trial.

The fifth point relates to the admission, of this question: “What kind of blow would cause a fracture of the patella?” Again it is urged that the witness was not qualified, and again we reply that this objection was not made at the trial. We might well add that if it had been made to appear that the witness had been examined in chief as an expert this was cross-examination.

The sixth point is that it was erroneous to instruct the jury that the husband could recover for a loss of his own wages while he was attending his wife. The testimony showed that site needed care and nursing, and that, instead of hiring a nurse, he had stayed away from his work and attended her himself. It appeared that he earned, ordinarily, from $3 to $3.75 a day, and that he stayed away from work for two weeks. The total amount claimed on this item would, therefore, be something like $40. It is common knowledge that a trained nurse at the present time costs, about $40 a week, and it is very doubtful whether even a practical nurse could be had for less than $20 a week. The argument made is that if the husband earned $1,000 a week, he could recover that amount under this charge, bnt the simple answer is that if he had earned $1,000 a week, such an instruction wonld probably never have been given to the jury. In testing'the propriety of an instruction, the court necessarily must consider the instruction with reference to the particular case before it. State, v. Egan, 84 N. J. L. 701, 706.

The seventh point challenged is the charge that the wife was entitled to recover full loss of her earnings. This was clearly correct because, as stated above, she worked out as a caterer on her own account.

The eighth and last point is that there was error in charging ihat the jury was justified in inferring that the accident was due to the negligence of the defendant. If the jnry found the facts as we have stated them at the outset, it is ¡difficult to1 see what other inference could have been drawn than that the accident was due to the negligence of the defendant.

The rule to show cause will be discharged.


text:
    STATE OF NEW JERSEY v. PHILIP GOLDBERG AND MORRIS DRUIN.
    Decided October 7, 1925.
    Crimes — Conspiracy to Burn Building of One Defendant — Objections to Court Ruling on Evidence Disregarded. — Court’s Requirement That Counsel Sum Up in Ten Minutes Not Error, the Requirement Not Having Been Enforced — Evidence Admitted Tentatively, on Condition That Conspiracy is Afterward Proved, is Not Error if Jury Finds Conspiracy— Overt Act in Execution of Alleged Conspiracy Proven. — Refusal of Request to Charge That Questions of Reasonable Doubt of Truth of Any Testimony Must Be Resolved in Favor of Defendant, Sustained as Without Legal Foundation.
    On writ of <uror to the Passaic Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbaoh.
    For the plaintiffs in error, Weinberger & Weinberger.

    For the state, J. Willard De Yoe, prosecutor of the pleas.
   Per Curiam.

The defendants were convicted on an indictment charging ¡them with a conspiracy to set fire to a building belonging to Druin, for the purpose of defrauding certain insurance .companies. The trial of the indictment resulted, in the conviction of each of the defendants, and the present writ of error is sued out to review the validity of that conviction.

The first ground of reversal is directed at the refusal of the court to permit a witness named Kantor, called by the defendant Druin, to answer the following question: ' “Do you know what his [Druin’s] reputation was in the city of Passaic for being a man of honesty and propriety?” This question, we think, was properly excluded. The territory covered was too broad. It should have been limited to the neighborhood in which the defendant resided. But even if the exclusion of the question was improper the ruling was harmless, for the reason that immediately after the witness was asked if he knew the reputation of Drum in the neighborhood in which he resided for being a good law-abiding citizen, to which tile witness replied, “I never -heard anything against him.” Immediately after this answer was given the witness was asked, “Do you know what it is, good or bad?” To which the witness answered, “If you don’t hear things ¡about a person’s reputation I suppose it is good.”

The next ground of reversal is that the court erroneously ¡refused to permit a witness named Whitehead to answer the following question: “How have the people you have known acted toward him [that is Drain] in the community?” This question was directed at a matter which was entirely immaterial, and we think was properly excluded.

The third ground of reversal is that the court committed harmful error in requiring counsel to sum up in ten minutes, in their respective cases, against the protest of counsel for defendants. Although the state of the case shows that at the close of the testimony the court so directed, it does not appear that this order was complied with by counsel, much less that it was enforced by the court. On the contrary, it is stated by the prosecutor of the pleas, in his argument before us, that counsel for each of the defendants consumed half an hour in their summing up; and this statement is not denied by counsel for defendants. In this situation of the case we cannot say that, even if the trial court was guilty of an abuse of discretion in the original limiting of the time to be consumed by counsel in their respective arguments, the defendants suffered injury thereby.

The fourth ground of reversal is that the court improperly refused to permit an insurance adjuster called by the state to be asked, on his cross-examination, whether or not he had had considerable experience in adjusting fire losses. The question was asked, as counsel stated, for the purpose of affecting the credibility of the witness, he having been called by the state to testify as to the value of the insured property. An answer to the question put, whether in the affirmative or negative, would have had no bearing on the question of the witness’' credibility, and the exclusion of the question- was therefore proper.

The fifth ground of reversal is directed at the exclusion of a similar question put on cross-examination to another one of the state’s witnesses. What we have already said disposes of this point.

The sixth ground of reversal urged is that the court erred in permitting the introduction into evidence by the state of two cans found upon the premises, one of which contained prude kerosene and the other alcohol. The objection to the admission of these articles as evidence was that they were incompetent unless the conspiracy averred in the indictment was proved. The court admitted them tentatively, that is, upon condition that the state afterwards prove the existence of the conspiracy. This the state did, according to the finding of the jury, and this being so the testimony was competent so far as the objection to it was concerned.

The seventh ground of reversal was directed at a ruling of the trial court permitting the witness Edelstein to testify that a witness called by the defendant, named Greenberg, who was the attorney for the defendant Drain, has asked him to go easy with the latter. Edelstein, at that time, was a special agent of the department of justice. The testimony was offered for the purpose of impeaching the credit of Green-berg, who had previously denied making any such request of Edelstein. It was competent for this purpose.

The eighth ground of reversal is based upon the alleged error of the court in refusing 'to direct an acquittal on the ground that no overt act in the execution of the alleged conspiracy had been proven. The refusal was proper, for there was an abundance of evidence upon that point.

The ninth and last ground of reversal is directed at the refusal of the trial court to charge the following request submitted by the defendants’ counsel: “If there is in the ¡mind of the jury a reasonable doubt as to the t-ruth of any testimony on the part of the state, such doubt must be resolved in favor of the' defendant by the rejection of such testimony. If there is a reasonable doubt as -to the truth or untruth of any testimony on the part of the defendant, such doubt must be resolved in favor of the defendant by treating such testimony in his favor, as though unquestionably true and correct.” This request was properly refused, as it had no legal foundation to support it.

The matters which we have discussed embrace all of the reasons for reversal or assignments of error which have been argued on the part of the defendants.

Our conclusion is that the judgment under review should be affirmed.


text:
    ANNA LOZIER, PLAINTIFF, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, A CORPORATION, AND EDWIN L. SMITH, DEFENDANTS.
    Argued January 7, 1925
    Decided October, 1925.
    Negligence — Plaintiff Injured While Boarding Train — Ail Evidence Tended to Show Train Was Already Moving, That She Had Been Warned Not to Attempt to Go Aboard — Judgment Evidently Against Weight of Evidence.
    On defendants’ rule to show cause.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbacii.
    Por the plaintiff, Weinberger & Weinberger.

    Por the defendants, Frederic B. Scott.

   Per Curiam.

Plaintiff was an.intending passenger on a train of the defendant company, and attempted to board a train for New York at the Passaic avenue station of the defendant company. In so doing, she fell between the cars and one of her legs was crushed, necessitating amputation above the knee. She sued for damages, alleging negligence of the defendant company, and the jury awarded her a 'vterdict, which is now before us for review on this rule.

Por the defendant it is claimed that the verdict was against 'the weight of evidence, and, after a careful examination of the testimony in this ease, we conclude without hesitation that this claim is correct. As we read the case, the great weight of the evidence shows, without any reasonable question, that this plaintiff was late for the train; that it was in the station as she reached the platform, and had already Started when she attempted to board it. The testimony of more than one witness tends to show that she was warned from two or three quarters not to make the attempt; that she missed the front platform of the last passenger car, and attempted to board at the rear platform, and was caught and thrown at that time. Whether this be the precise situation or not is immaterial, because we are satisfied from all the evidence that the train was moving when the plaintiff attempted to board it, and, of course, under those circumstances, she should not be entitled to recover.

The rule to show cause will be made absolute.


author: Pee Curiam.

text:
    CATHERINE CONNORS v. HUDSON CITY GRAVITY COASTER COMPANY ET AL.
    Decided October 7, 1925.
    Negligence — Injury' to Passenger of An Amusement Device— Alleged Defect in Implement Provided to Prevent Accident— Evidence to Support Allegation, Making It Jury Question Notwithstanding Contrary Evidence.
    On appeal from the Hudson County Circuit Court.
    Before Gum mere, Chief Justice, and Justices Paekek and Katzenbach.
    Eor the appellants, Edwards & Smith.

    For the respondent, A lex. Simpson.

   Pee Curiam.

This suit was brought to recover damages for injuries sustained by the plaintiff while she was riding in a roller coaster operated by the defendants. Her claim was that the strap which fastened her into the roller coaster either became loose or broke (she did not know which) while she was riding on her third trip in the car, and that by reason of the defective condition of the strap, or its adjustment, she was thrown forward and then backward, receiving serious injuries. The jury rendered a verdict in her favor, and the defendants appeal from the judgment entered thereon.

The only grounds upon which we are asked to reverse the judgment under review is that the trial court erred in refusing to direct a nonsuit, and also in refusing to direct a verdict in favor of the defendants. Our examination of the proofs sent up with the appeal leads us to the conclusion that each of these motions was properly refused. There was evidence on the part of the plaintiff that the accident was produced by the conditions asserted by the plaintiff. This being so, the fact that there was other evidence preponderating in favor of the opposite conclusion does not render the question of liability one to be determined by the court.

We conclude, therefore, that the judgment under review should be affirmed.


author: Pee. Cuelam.

text:
    MELVIN GRAY SMITH, APPELLEE, v. JOHN OVERTON PAINE, APPELLANT.
    Submitted September 25, 1925
    Decided October 1, 1925.
    Evidence — Pleadings—Appeals From District Court — Specifications of Determinations Not Exhibited and No Error Assigned — Case Might Be Dismissed or Judgment Affirmed— Merits Considered, However, and No Error in Admission of Evidence Found.
    On appeal from* the District Court.
    Before Justices Parker, Mintürn and Black.

      Eor the appellant, Edward A. Walsh.

    Eor the appellee, Leon E. Cone.

   Pee. Cuelam.

The case exhibits no “specification of the determinations or directions of the District Court, with respect to which appellant is dissatisfied in point of law” as required by rule 145, formerly rule 90. As there is no error assigned, the judgment might be affirmed (Champlin v. Barthold, 82 N. J. L. 13) or the appeal dismissed. Sentliffer v. Jacobs, 84 Id. 128: Galvin v. Ostrander Co., Id. 530.

But inasmuch as this appeal has been greatly delayed by some oversight in perfecting its presentation, we have deemed it advisable to look at the merits as set forth in appellant’s brief. The first point stated (but not argued) is that the testimony of plaintiff as to his price per day for a team of horses and a man was inadmissible. We fail to see why it was. Next, that the testimony of Saxe was hearsay. This objection was not made at the trial, and, moreover, his testimony wus opinion evidence, and not hearsay. It bore on the fair value per day of a team and a man. The third point is that the preponderance of evidence showed defendant had settled in full with plaintiff, and the fourth, that the finding is against the weight of evidence. It is elementary in these District Court appeals that the judge’s findings of fact will not be disturbed if there is any evidence to support them, and in this case there was ample evidence.

The judgment will be affirmed.


author: Pee Curiam'.

text:
    JAMES McCUE, PLAINTIFF-APPELLANT, v. JOHN A. PAULISON ET AL., DEFENDANTS-RESPONDENTS.
    Submitted May term, 1925
    Decided October 6, 1925.
    Sale of Real Estate — Commissions—No Exceptions'to Charge of Court to Support an Assignment of Error — Verdict Contrary to Evidence, &c., Proper Reasons to Consider on Rule to Show Cause Not on Appeal.
    On appeal.
    Before Justices Parker, Minturn and Black.
    Eor the plaintiff-appellant, Henry T. Kays.

    For the defendants-respondents, Theodore E. Dennis.

   Pee Curiam'.

This suit was brought to recover the sum of $2,500 for commissions as a real estate broker for selling, as alleged in the complaint, farm lands, located in the township of Hardys-* ton, Sussex county, New Jersey. The trial resulted in a verdict for the defendants.

The appellant files four grounds of appeal — third, because the charge of the court was contrary to law under the evidence submitted. There are no exceptions to the charge to support this assignment of error. The other three assignments of error, such as the verdict was contrary to the evidence and the weight of the evidence, are proper reasons to consider on a rule to show cause. They cannot be considered on an appeal. The other two grounds involve questions of fact, which were properly submitted to the jury for determination. Questions of fact only are involved in this case. The case was properly submitted to the jury by the trial court.

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


text:
    CATHERINE SMITH, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1925
    Decided October 6, 1925.
    Negligence — Injury to Occupant of a Bus in Collision With Trolley Car — Defendant’s Appeal — Not Error For Court to Cal! Jury Back and Correct an Error Made in Charge — No Error Found in Charge — Exclusion of Irrelevant Testimony is At Discretion of Court, and Harmless and Immaterial Error in Charge Affords No Ground For Reversal.
    On appeal.
    Before Justices Parker, Mixture and Black.
    Por the appellant, Leonard J. Tynan.

    Pot the respondent, Henry P. Bedford.

   Per Curiam.

This suit was brought to recover compensation for personal injuries. The plaintiff was the occupant of a bus that was in a collision with a trolley car on March 12th, 1923. The injuries complained of were the result of the collision. The trial resulted in a verdict for the plaintiff for $3,000. The defendant files ten grounds of appeal. These are argued under six heads in the defendant’s brief. Nos. 1, 2, 3, refusal by the trial court to admit in evidence a statement, in writing, signed by each of three witnesses called by the plaintiff, Norma Roberts or Norma Dolan, Dorothy Knell and Marguerite Westervelt. These statements were marked Ex-Abil D 1, D 2 and 71-9 for identification. At page 155 of che record this appears: “Mr. Coult, I want to ask leave to read to the jury so much as serves to contradict her story.” The Court — “Yes, you may do that.” The record shows that the defendant had no restrictions placed by the trial court about inquiring concerning these statements by the witness. We find no error here. No. 4, error in the charge. This was corrected by the trial court by calling the •jury back and saying: “Gentlemen of the jury, I made a slip. The request that I charged you on behalf of the plain-. tiff was a legal error.” Then, the court proceeds to point out the correct rule of law applicable to the facts. No. 5 is an exception to what the court said in correcting the error in the charge:. This was not error. No. 6, error in the charge. We find no error' here.. No. 7 is abandoned in the brief of the appellant. No.. 8, error in the charge. We find no error here. Nos. 9 and 10, refusal to charge the fourth and fifth requests of the defendant. These were covered by the trial judge in his charge so far as they were pertinent to the facts. The Court of Errors and Appeals, in the case of Enstice v. Courtright, 61 N. J. L. 656, said, the exclusion of testimony because irrelevant is at discretion, and that harmless and immaterial error in a charge affords no ground of reversal.

Finding no error in the record, the judgment of the Essex County Circuit Court is affirmed.


author: Per Curlaii.

text:
    JOHN J. SMITH, PLAINTIFF-RESPONDENT, v. NATIONAL UNION FIRE INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1925
    Decided October 6, 1925.
    Insurance — Theft—Automobile—Judgment Reversed" For Trial Errors — Policy Not in Evidence, Nor Was Copy as a Legal Substitute — Copy of Estimate of Repairs Not Evidential— Complaint Against'R., Charging Theft, Not Evidence — Other Offerings Not Evidence.
    On appeal.
    Before Justices Parker, Minturn and Black.

      Por the appellant, Eichmann & Seiden.

    For the respondent, A. Harry Moore.

   Per Curlaii.

This suit was brought to recover compensation for physical damage to a Ford touring automobile under a policy which covered the owner against tire, theft and transportation.

I’lie car ivas stolen September 21st, 1'924, from the plaintiffs garage. The case was tried by the court without a jury, resulting in a judgment of $299.05 for the plaintiff.

'The defendant files seventeen specifications of determinations with which it is dissatisfied in point of law. These points are argued under seien heads in the appellant’s brief. r>’he judgment will have to be reversed for trial errors. Exhibit V 2 is “assured’s memorándum of automobile insurance;” it recites “that it is subject to the terms and conditions of an open policy issued to and in possession .of Edison & Company, Inc.” This made it necessary for the plaintiff to produce the original, or give evidence excusing its non-production. and then offer a copy of the policy in evidence. I'liis was not done. It is reversible error. So, Exhibit P 3, a copy of an estimate of repairs made by the Lanning Automobile Company. This was not evidential. So, Exhibit P 4. a complaint made by Patrolman Richard Lonergan against one Richard IlarrR in the First Criminal Court of Jersey City, the complaint charging that the said Richard Harris stole a Ford touring automobile, which was the property of John Smith. So, Exhibit P 3, an envelope or jacket used for. continuing papers. This was merely a memorandum to be used in the prosecutor’s office for working up the case. So, Exhibit P 6. a certified copy of the proceedings in the Court of Special Sessions of Hudson county against one Richard Harris. The rule for assessing damages is stated with clearness in the case of Centre Garage v. Colombia Ins. Co., 96 N. J. L. 456.

For the errors appearing in the record, the judgment is reversed and a venire de novo awarded.


text:
    ARTHUR ROONEY, APPELLEE, v. BERTHA GREINER AND CLARA MAIER, APPELLANTS.
    Submitted May, 15, 1925
    Decided October 1, 1925.
    Sale of Real Estate — Commissions—No Written Authority Specifying Rate, and Reliance is on Amendments of 1918 — Notice Containing Price and Commission Duly Served — Writing Complied With Statute — Broker Did Produce Purchaser Ready, Willing and Able to Buy at Seller’s Terms, Though Terms Were More Favorable Than Those Mentioned in Notice — Judgment For Plaintiff Affirmed.
    On appeal from the District Court.
    Before Justices Parker, Minturn and Black.
    For the appellants, Charles H. Blohm.

    For the appellee, John N. Platoff.

   Per Curiam.

This is a suit by a broker for commissions on sale of real estate: There was no written authority specifying rate of commission, as required by the original section 10 of the statute of frauds, and the reliance was on the amendments of 1918, page 1030. The questions to be determined were whether the plaintiff was actually employed and promised a commission, whether he secured .the purchaser to whom defendants made the sale and whether, within the five days provided by the act, he served on defendants the notice specified in the act in due form. The court below found for the plaintiff, and in that finding we concur.

Four points are made for appellants, and we take them up in order.

1. That there was no evidence to show, that plaintiff was employed by defendants prior to the alleged service of the writing admitted in evidence.

The testimony indicates that defendant Mrs. Greiner procured plaintiff to appraise the property, and he asked her to give him a chance if she wanted to sell it, to which she assented : that later she sent for him, and he explained the various brokerage methods and asked her for a written authority: that she put him off, saying she wished to talk it over with her son. Plaintiff made out a writing and asked her to sign it, hut she refused at that time. That on the next evening he saw the son, who said the writing was satisfactory, but that his mother would not sign it because she wished to use other brokers as well as plaintiff. That plaintiff said he would go ahead all the same. That the defendants asked him what the commission was, and he said three and one-half per cent., as stated in the writing, and they agreed to pay that; that this was at the time he listed the property, and that he served the notice relied on the next hay. and read it to Mrs. Greiner, who said that it correctly expressed the price and the commission. If the judge, sitting without jury, believed this testimony, ho would necessarily find in favor of plaintiff as to the employment.

2. That the writing does not comply with the statute.

The act requires it to state “the terms of the oral agreemenl and the amount of commission to be paid thereunder.”

Idle paper identifies the property and states the price and the rate of commission. We find nothing in the case to show that any specific terms of sale other than this were mentioned between the parties. Defendants offered no testimony, but rested on the plaintiff’s case. We think the paper answered the requirements of the statute.

3. That plaintiff did not produce a purchaser ready, willing and able to buy at the seller’s terms, and

4. There is no evidence that plaintiff actually effected the sale.

The evidence is that plaintiff produced and introduced a prospective purchaser named Duryea, who liked the house but would not take it at the asking price of $12,000, but entered into negotiations with the defendants and ultimately became the purchaser at $10,500. This seems to bring the case directly -within the manifest intent of the statute of 1918, that the broker who serves notice as therein contemplated shall be entitled to commission when he shall “actually effect the sale” before termination'of his employment by the owner, and even in case of such -ternlination of the sale to the client introduced by the' broker, and with whom negotiations are pending is subsequently consummated between such owner and such customer. The memorandum of the trial judge, while not expressly so stating, carries the clear implication that the plaintiff effected the sale.

The judgment will be affirmed.


author: "Per Curiam.

text:
    FRANK TENNEY, PLAINTIFF-RESPONDENT, v. WILLIAM P. VERDON, DEFENDANT-APPELLANT.
    Submitted May 15, 1925
    Decided October 6, 1925.
    Negligence — Motor Vehicle Collision — Plaintiff, a Friend of Defendant's Son, Invited on Car by Son to Assist in Making Some Repairs, While so Engaged Girl Companions Joined the Company and a Ride Followed — Defense That the Boys Were Not Operating Car in Any Way As Owner’s Agent, Accordingly, Not Sufficient, and Judgment For Plaintiff Is Affirmed.
    On appeal from the Hudson County Circuit Court.
    Before Justices Parker, Minturn and Black.
    Por the appellant,_ Robert Carey and John Drewen.

    Eor the respondent, William B. Biitue.

   "Per Curiam.

Plaintiff was a passenger in an automobile owned by the defendant at the time when he was injured because this automobile came into collision with another similar vehicle. The only question raised on this appeal is -whether the court erred in refusing to direct a verdict for defendant on the theory that the plaintiff had not produced evidence which could go to the jury to show that the defendant’s son, wlio was driving the car at the time, was acting as the defendant’s servant and within the scope of his employment.

The evidence shows that at the time of the accident defendant’s son was driving the car, and that besides the plaintiff there were two young women aboard; that this was in the evening. These facts taken alone would justify the argument that although the car belonged to the defendant, the soil was not operating it in any way as his agent, but was engaged in a pleasure ride on his own account, and (hat plaintiff was a participant in that excursion. But there are other facts testified to in the case which throw a very different light upon the situation. II appeared that the defendant luid no hired chauffeur, and that the son did all the family driving and appeared to be charged with the responsibility of keeping the car in good running order and attending to minor repairs. The evidence also tended to show that on this particular evening the commutator of the ear was not functioning properly, and that, as the plaintiff was a friend of the defendant’s son and was by occupation a stationary and marine engineer, and something of a mechanician, the sou appealed to him to correct this trouble with the commutator. According to the evidence, the son went to see the plaintiff about this matter, and the two young men started to diagnose the difficulty with a view of correcting it. The son ran the car while the plaintiff checked up on the commutator, and presently defendant’s son said that while they were working on the car they might as well go and get a Miss J., with whom he had an appointment. The plaintiff did some work on the commutator and then they went down to Miss J.’s house and took Miss J. and her sister aboard, and drove up the Hudson county boulevard to the end of it. Plaintiff filed the commutator points again, ran a little further, stopped and did some more filing, and then they started home, and it was while plaintiff was being taken home that the accident occurred. If the jury believed these facts, it was quite plain that one material reason for the plaintiff being on the defendant’s car at that time was for the purpose of fixing the commutator. The mere fact that two young women were taken aboard for a ride while this operation was going on cannot nullify the effect of those facts if found. It was therefore clearly open to the jury to say that the plaintiff was invited on the car by defendant’s servant about the defendant’s business, and was legitimately engaged thereon when he was injured, or, at least, that he was returning from his task at the time.

The judgment is therefore affirmed.


text:
    ALEXANDER BALOG ET AL. v. F. M. MITCHELL MOTOR COMPANY.
    Decided October 7 1925.
    Negligence — Motor Vehicle Injury to Infant Playing in Street— Driver Saw Child So Engaged and Unattended — Child Suddenly Ran in Front of Car — Jury Question Whether Under Circumstances Due Care Was Used.
    On defendant’s rule to show cause.
    Before Gummere, Chibe Justice, and Justices Kalisch and Campbell.
    Por the rule, Frederick IP. Nixon and Augustus C. Studer, Jr.

      Contra, David T. Wilentz.

   Per Curiam.

This suit was brought by Alexander Balog and his father to recover damages for injuries received by the child for being run over by the defendant’s automobile,' and compensation to the father arising out of the loss resulting from such injuries. The trial resulted in verdicts for the plaintiffs, the jury awarding the child $15,000 as compensation for his injuries.

The first ground urged for making the rule absolute is that the jury were not justified in their finding that the accident was the result of the negligence of the driver of the defendant’s car. According to the story told by the latter, lie saw this little child, about two years of age, playing in the gutter as he approached this spot where the accident happened; that he was driving along the street, about the middle thereof, when the child undertook to run across in front of his car; that he was not able to stop it in time to prevent the accident. No one was looking after the child at the time of the occurrence.

It seems to us that, on the basis of the driver’s own story, the jury were justified in finding that the accident was the result of his carelessness. Having observed the child playing in the gutter, with no one in charge of it, he could not foretell what ihe child would or would not do, and it” was certainly a question for the jury to say whether or not it was his business, in the exercise of reasonable care, to have his car under such control that he could stop it almost immediately if the child should suddenly undertake to run across in front of the car as it was proceedings along the street.

It is further argued, as a reason for making the rule absolute, that the verdict was excessive. The proofs show that the left leg of the child was so severely injured that an amputation between the knee and the ankle was necessary, in the case of Feury v. Reid Ice Cream Co., 2 N. J. Mix. R. 1008. the jury awarded $25,000 to a child about four and a half years old, whose injuries were similar to those existing in the case of the present infant plaintiff, and whose leg had been amputated, as a result of those injuries. This court considered the award in that case excessive and reduced it to $15,000, considering the latter sum to be fair compensation for the injuries io the child. We are content to follow the view of this court in the cited case, and conclude that the verdict should not be set aside for the reason now being considered.

Other grounds of reversal are directed to the charge of the jury. Our consideration of the charge, as a whole, leads us to the conclusion there was no harmful error in any of the portions thereof, which are made the ground of attack on behalf of the defendant.

Lastly, it is contended that the court erred in denying a motion made by 'the attorney of the defendant for a mistrial on the ground that the plaintiffs’ attorney, in summing up to the jury, stated the amount for which suit had been brought. This contention is, in the face of our decision in Rhodehouse v. Director General, 95 N. J. L. 355, where it was held that it is neither error nor ground for a new trial for plaintiffs’ counsel to state to the jury the amount of damages sought to be recovered.

The rule to show cause will be discharged'.


author: PEE CUEJAAI.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR v. ANTHONY ROSE, PLAINTIFF IN ERROR.
    Submitted May 15, 1925
    Decided October 6, 1925.
    Crimes — Perjury—On a Trial of Defendant For Robbery, State Relied Upon Sworn Confession Which Defendant Went on Stand and Denied — Thirteen Assignments and Specifications Here Considered, and Judgment Affirmed.
    On error to the Mercer Quarter Sessions.
    Before Justices Parker, Minturn and Black.
    For the defendant in error, William E. Geraghty, prosecutor of the pleas.
    For the plaintiff in error, J. Irving Davidson and William S. Reich.

   PEE CUEJAAI.

The defendant was convicted of perjury, and brings this writ of error both on strict hill of exceptions and also relying on section 136 of the Crimina] Procedure act. It is not claimed, however, that the verdict was against the weight of evidence; so we have not considered that matter.

'Pile general facts, as they came out of the trial, were substantially as follows: The defendant ivas indicted for robbery with three or four others, who were convicted, but he was acquitted. Later, he was indicted for perjury, and tried on that charge. On the robbery trial the state relied on a ivped confession signed by him at the end of each page and at the end of the whole statement and sworn to by him. lie went on the stand and swore, according to the indictment, that he never made the statements In the confession; that he could not read English; that the statement was not read to him, and that he did not know its contents. There was no doubt about his having signed it, and, as to his testimony on the trial, there were several witnesses to that who did not agree in all respects, but seemed to agree on the general purport of his having denied making the confession.

The assignments and specifications for reversal arc identical. and we take them up in the order in which they are stated.

(1) Refusal to direct acquittal when the state first rested; and (3) a similar refusal after reopening and putting in this clerk’s record of the trial of what is designated “indictment number 105;” also (2) permitting the state’s ease to be reopened; and (4) refusing to direct an acquittal on the whole case.

We have some difficulty in making out the precise point urged in the brief, but, as we understand this point, it is that the state had not proved that the defendant had made statements under oath in a judicial proceeding, to wit, the indictment for robbery. The indictment itself does not appear to have been offered, nor the formal record of the conviction. But one of the witnesses for the state was allowed without objection to testify that the defendant was tried on an indictment for robbery. This appears in half a dozen places in the printed testimonw. While it would, no doubt, have been better to have proved the indictment, we do not think, in view of the apparently conceded fact, that this judgment should be reversed, because the indictment itself, or the formal record of the case,- was not introduced in evidence.

Assignment and specification number five challenge the admission of the alleged written confession, because there was no proof of its relevancy to a trial of the indictment.

Number six attacks the court’s action in allowing it to be read to the jury.

Number seveu undertakes to impeach it, because it appears that the statement was revised and edited before the defendant signed it.

Number eighth attacks its admission, because the defendant had denied that he knew what an affidavit was.

Numbers five and six are answered by what has already been said.

As to number seven, the evidence shows that the paper was read to him and that he compared it before signing.

As to number eight, it is quite immaterial whether he swore to it or not. The perjury charge was not in swearing to a false confession, but in testifying on the trial that he had never signed it or made that statement. In any event, there was sufficient evidénce that he did swear to it after the nature of an oath had been explained to him to justify its admission in evidence.

Specification number nine seems not to be argued.

Specification ten is that the court failed to direct an acquittal of its own motion. This hardly merits discussion.'

Number eleven charges error in letting the jury take the case for .some reasons already discussed, and because the “record” in the robbery case had not been produced. If by “record” is meant the strict record, this has already been discussed. If, however, counsel refer now to the stenographic transcript of his testimony in the robbery trial, there are two answers. The first is that it does not appear there was any stenographer present. The second is that, even if there was a stenographer, the stenographic transcript is not primary evidence, nor, indeed, any evidence at all.

The twelfth point is that the judge failed to tell the jury that the alleged perjury must have been material to the issue tried. It does not appear that the judge was asked to do this, nor was the omission pointed out to him in any way. That it was material was diseernable, even to the most ignorant and careless juryman.

Number twelve and one-half, that the court’s suggestion to the jury that some o£ them may have taken an examination for driver’s license, had the effect of letting them utilize their personal experience in that regard in aid of deciding whether the defendant was truthful in saying that, he had another man help him answer the questionnaire required in such cases. The ground of attack upon this is that it was, in effect, instructing the jury that they were at liberty to base their determination as to the truth or falsity of the defendant’s testimony upon their own personal experience or knowledge rather than the sworn testimony and evidence in the canse.

We are unable, however, to see that there was any harmful error committed by this comment of the trial judge. He left the matter fully and fairly to the jury to say whether they believed the defendant’s statement that someone went with him to answer these questions. In fact, his allusion to members of the jury having taken the examination was a mere aside. The court, after reciting the substance of the. defendant’s testimony, said :

“Now, ladies and gentlemen, it is for you to say. Perhaps some of you have taken the examination before the motor vehicle department. It is for you to say whether or not you believe that statement. If you do believe that statement that someone prepared the answers to those questions, of course the testimony has no efficacy as tending to show that the defendant can read the English language.”

As we have said, we fail to see that any harmful error was committed by this interjected suggestion.

The last, ground, number thirteen, is a mere general statement of error, and requires no- discussion.

We conclude .that the judgment should be affirmed.


text:
    FRANCES C. LANNING ET UX. v. TRENTON AND MERCER COUNTY TRACTION CORPORATION.
    Decided October 7, 1925.
    Negligence — Injury to Passenger of Street Railroad Company— Jury Found For Passenger But Against Husband’s Claims . For Medical Services — Held, That if One Was Entitled to Recover the Other Was.
    On defendant’s rule to show cause'.
    Before Gummeré,' Chíee Justice, and Justices Parker and Katzenbach.
    For the rule, Katzenbach £ Hunt.

      Contra, Wilbur A. Heisley.

   Per Curiam.

This suit was brought by the plaintiff to recover compensation for injuries received by Mrs. Banning while a passenger' in a car of the defendant company, for the expenses incurred pv her husband in the treatment of her injuries, and also compensation for the loss of her services and society ,as a .wife. The jury found that the injuries which Mrs. Lanning ,has sustained- were the direct result of the negligence of the defendant’s motorman in the operation of the e^r, and awarded her $2,500 as compensation. - At the same time they returned a verdict of no cap.se of action as to the claim of the husband, although the rendition of the medical services was not disputed, nor was the propriety of the charges made for such services challenged. These two verdicts are absolutely irreconcilable and demonstrate the unfitness of the jury to determine the respective rights and obligations of tin1 .parties to this litigation; for, if the traction company was responsible for the injuries received by the wife, it follows as matter of course that the husband was entitled to recover from the company such moneys as he had expended in the treatment of the injuries received by his wife, and also a reasonable compensation for the loss of her services and society.

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


text:
    HARRY ALLEN v. HYMAN BENDER. ISAAC WINKLER v. HYMAN BENDER. SAM ERNEST v. HYMAN BENDER.
    Decided October 7, 1925.
    Negligence- — Motor Vehicle Collision — Three Plaintiffs Recover Against Same Defendant in Each Case — Plaintiffs’ Appeal in Each Case Because of Inadequacy of Award — Appeal Sustained.
    On plaintiffs’ rules to show' cause.
    Before Gum mere, Chief Justice, and Justices Kaliscii and Campbell.
    For the rules, Henry GolenbQck.

      Contra, Camuel D. Williams.

   Per Curiam.

The plaintiffs were riding in the defendant’s car at his invitation on the road from Woodbridge to Perth Amboy. The car came into collision with an automobile being driven by Mrs. Horning, and each of the plaintiffs was injured as the result of the collision. They borught their respective .suits against Bender and Mrs. Horning. The jury found .that Bender was solely responsible for the collision; that the plaintiffs were each of them entitled to recover from him, and .assessed the damages in each case at $100. Each of the plaintiffs thereupon applied for and obtained a rule to show pause why these several verdicts should not be set aside, because of the inadequacy thereof.

Our examination of the proofs sent up- with-the rule satisfies us of the soundness of the plaintiffs’ contention, and the several rules to show cause will be made absolute for this reason. We are not presently interested in the question of liability^ as that is not raised on these rules.-


author: Per Gtirtam.

text:
    DAVID TATTERSDILL, PLAINTIFF-PROSECUTOR, v. WILBUR ROWAND, DEFENDANT-RESPONDENT.
    Submitted February 5, 1925
    Decided October 7, 1925.
    Conditional Sales — Piano—Defendant Refused to Continue Payments — Plaintiff Elected to Bring Suit — Defendant Counterclaimed and Alleging Fraud — Judgment For Defendant on Counter-claim — Judgment Not Found Against Weight of Evidence.
    On plaintiff’s rule to show cause.
    Before G-ummere, Chief Justice, and Justices Parker ' and Katzenbact-i.

      Eor the plaintiff-prosecutor, Clifford A. Baldwin.

    For the defendant-respondent, William J. Kraft.

   Per Gtirtam.

The plaintiff sold the defendant a piano> on the installment plan. Defendant refused to continue the installments, and so the plaintiff elected to demand the entire balance of the purehaso-money under a clause in the contract, and brought suit. Defendant set up fraud in the making of the contract, and counter-claimed, for the money already paid on account. The whole matter wat ventilated at the trial, and the jury found against the plaintiff and in favor of the defendant on the counter-claim.

The reasons assigned are — first, that the verdict is against the evidence; second, that the verdict is against the weight of evidence; third, that the verdict is contrary to the law of the case as expressed in the charge of the court. The real argument in the ease, however, is that the verdict is against the weight of evidence. We have read the testimony with care, and are unable to say that the jury disregarded the weight of evidence in this ease. "On the contrary, there was a great deal of evidence and of much weight tending to show that the defendant’s claim was substantially correct. There seems to be no question of technical tender involved in the litigation; defendant refused to pay for the piano, and it is quite plain that he notified the plaintiff in some form that he did not propose to keep it, and that it was subject to ref urn.

We see no reason for disturbing the verdict of the jury, and the rule will accordingly be discharged.


author: Pee Cueiam.

text:
    ANNA HINKELMAN v. IRA PASTEELNICK.
    Decided October 7, 1925.
    Negligence — Motor Vehicle Accidenti — 'Not Error to Allow An Attending Physician to Refresh His Memory by Examination of An X-ray Photograph Which He Could Not Swear Was Taken of the Injury He Treated.
    On appeal from the Essex Common Pleas.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    Por the appellant, John W. McGeeJian, Jr.

    Por the respondent, Francis A. Gordon.

   Pee Cueiam.

This was an action brought by the plaintiff to recover compensation for injuries received by her in being run down by a truck of the defendant while she was crossing Twenty-first street, in the town of Irvington. The trial resulted in a verdict in her favor, and from the judgment entered thereon the defendant has appealed.

The only ground upon which a reversal is sought is an alleged error on the part of- the trial court in permitting Dr. Bien, who was the plaintiff’s physician, and attended her in the hospital, to look at an X-ray plate which he was unable to say was a photograph of the plaintiff’s leg after her injury, •and to testify that an inspection of this plate refreshed his recollection as to the condition of the bones in Mrs. Hinkelman’s foot. The testimony was objected to on the ground that it was improper to permit the doctor to refresh his recollection by the use of a photograph that he could not swear was taken of the plaintiff’s foot or leg.

We think that the objection was without merit. Anything which will refresh the recollection of a witness may be looked at by him for that purpose, although, in itself, it is not evidential.

We conclude, therefore, that the judgment under review should be affirmed.


text:
    THOMAS HOPKINS, PLAINTIFF, v. SAMUEL LAVINE AND MINNIE LAVINE, DEFENDANTS.
    Submitted February 5, 1925
    Decided October 7, 1925.
    Negligence — Motor Vehicle Injury — Plaintiff Appeals Because of Inadequacy of Award — Award Was Substantial, Though Not ' Large, and Court Cannot Properly Interfere.
    On plaintiff's rule to show cause.
    Before Gumjjebe, Chief Justice, and Justices Pabkeb and Katzenbach.
    Eor the plaintiff, Harry Heher.

    For the defendants, Samuel D. Williams.

   Pee Curiam.

This is a plaintiff’s rule to show cause based on the claim that the damages allowed were inadequate. The plaintiff was riding in a motor truck, apparently sitting on the knees of another man, and the defendants’ automobile ran into the truck. Plaintiff sustained no broken bones, but his shoulder was strained, and he claimed to have been put permanently out of business as a hod carrier. The jury awarded him a verdict of $500, which he claims is inadequate, and that the jury plainly disregarded the evidence with respect to the serious character of his injuries. We have read the evidence with care, and do not feel that the verdict of the jury should be disturbed. The verdict was a substantial one, although not large, and it should be unnecessary to say that the court is never able to get so reliable an estimate of the party himself and the injuries sustained as a jury can do by seeing and hearing him on the witness-stand. A reading'of the evidence does not satisfy us that the jury disregarded the weight of evidence in finding the verdict, and the rule will, accordingly, be discharged.


text:
    JAMES M. HEATHERTON v. FRED E. GRIFFITH.
    Decided October 7, 1925.
    Negotiable Instruments — Suit on Promissory Note — Judgment For Defendant For Want of Consideration — Held, Not To Be Against Clear Weight of Evidence.
    On plaintiff’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisoh and Campbell.
    Eor the rule, Edward F. Merrey.

    Contra, Wood McKee and Spaulding Frazer.

   Per Curiam.

This was an action on a promissory note given by the defendant to the plaintiff for $8,120. The defense was that it was given without consideration and merely for the accommodation of the plaintiff. The- trial resulted in a verdict in favor of the defendant, and the only contention made by counsel for the defendant on the argument of this rule is that the verdict was against the clear weight of the evidence. Our examination of the proofs in the cause leads to the conelusion that, although if we had been required to pass upon them in the first instance, we probably would have reached a different conclusion from that arrived at by the jury, we cannot say that the verdict is so clearly against the weight of the evidence as to justify us in setting it aside.

The rule to show cause will be discharged.


text:
    JOSEPH B. McCRANN v. FISCHER BAKING COMPANY.
    Decided October 7, 1925.
    Negligence — Motor Vehicle Collision — Verdict Not Against Weight of Evidence, Nor Was There Error In Charge, But Verdict Clearly Excessive.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, William E. Ilolmwood.

    Contra, Stamler, Steamier & Koestler.

   Per Curiam.

The plaintiff brought this suit to recover compensation for injuries received by him in a collision between an automobile in which he was riding and a truck of the defendant company. The trial resulted in a verdict in favor of the plaintiff; the award of the jury being $10,00.0.

The first contention made before us is that the finding of the jury on the question of the liability of the defendant was against the weight of the evidence. Our examination of the proofs sent up with the rule leads to the conclusion that the jury was justified in its finding upon this point.

Next, it is contended that the trial court erred in several respects in its charge to the jury. We have examined those portions of the charge which were made the subject of exception and find no eror in them.

Lastly, it is argued that the verdict is grossly excessive. This contention is so clearly justified by the proofs in the case that we conclude the verdict should be set aside for this reason and the case sent back for a new trial on the question of damages only. It will be so ordered.


author: Pep, Curiam.

text:
    STATE OF NEW JERSEY v. DOMINICK ANGELO.
    Decided October 7, 1925.
    Crimes — Concealed Weapons — Act Constitutional — Right to Carry Arms Not Restricted, It Is Simply Regulated Under Police Power in Interest of Public Welfare.
    On error to the Essex Quarter Sessions.
    Before Gummebe, Chief Justice, and Justices Kaeisch and Campbell.
    Pox the plaintiff in error, Arthur B. Seymour.

    Por the state, John O. Bigelow, prosecutor of the pleas.
   Pep, Curiam.

The defendant was indicted for the crime of unlawfully carrying a revolver concealed about his person, and pleaded guilty to the charge. When sentence was about to be-pronounced his counsel moved an arrest of judgment on the ground that the statute which malíes the act criminal was a violation of the constitutional rights of the individual to bear arms. The motion was refused, sentence was pronounced and the present writ was thereupon sued out.

The right of a citizen to bear arms is not unrestricted. The state government, in the exercise of its police power, may provide such conditions precedent to the right to carry concealed weapons as the safety and welfare of the people of the state in its judgment require. The statute upon which the indictment was based is a valid exercise of the police power.

The refusal of the motion to arrest judgment, being the only ground upon which the validity of the sentence is attacked, we conclude that there should be an affirmance.


text:
    LAWRENCE KAHN ET AL. v. LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, LIMITED.
    Decided October 7, 1925.
    Contracts — Insurance—Fraud of Plaintiff Relied Upon by Defendant — Defendant Agreed to Settle For Sum Much Below Claim — Significance of Offer Overlooked by Jury.
    On defendant’s rule to show cause.
    Before Gummere., Chief Justice, and Justices Kalisch and' Campbell.
    .For the rule, Huston Dixon.

      Contra, A. Dudley Watson.

   Per Curiam.

This was_ an action on an insurance policy given by the defendant company to the plaintiffs covering merchandise and fixtures belonging to them, and located in a store in the city of Trenton. The trial resulted in a verdict in favor of the plaintiffs, the jury assessing their damages at $1,409.

The defense relied upon was that there was fraud perpetrated by the plaintiffs upon the defendant in furnishing to the latter false vouchers for the goods claimed to have been injured. The proof was clear that many of these vouchers had been altered in their dates, and upon this fact being called to the attention of the plaintiffs and their agent, by counsel for the defendant, the former went into another room for consultation, and upon their return agreed to settle plaintiffs’ claim for less than one-quarter of the amount originally claimed as' the loss sustained. The significance of this offer seems to have been overlooked by the jury, and this fact leads us to the conclusion that this case should be retried. It is immaterial -whether, if these alterations were made for the purpose of defrauding the defendants, they were the work of the plaintiffs or of their agent, for the plaintiffs cannot take advantage of the fraudulent act of the agent without assuming responsibility therefor. Mick v. Royal Exchange Corp., 87 N. J. L. 607.


text:
    STATE OF NEW JERSEY v. WILLIAM WHITE.
    Decided October 7, 1925.
    Crimes — Criminal Abuse of Woman-child — Sentence Changed and Term Increased Before Service Had Begun — Sustained— Sentence For Longer Term Than Fifteen Years Not Contrary to Statute.
    On error to the Passaic Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiff in error, Stein & Stein.

    For the state, Jacob Willard DeToe, prosecutor of the pleas.
   Per Curiam.

The defendant in this case, a man twenty-five years of age, was indicted for criminal abuse of a girl under- the age of twelve years. He pleaded nonvuli to the indictment. The court, there; upon, sentenced him to be confined in the state prison at hard labor for a maximum term of seven years and a minimum term of four years. On the same day the court, of its own motion, vacated this sentence, and ordered the defendant to be confined in the state’s prison at hard labor for the maximum term of thirty years and the minimum term of twenty years.

The first ground upon which we are asked to reverse this conviction is that the sentence finally pronounced is in excess of the term permitted by the statute, counsel for the defendant asserting that the maximum penalty for the crime charged in the indictment is fixed by the statute at fifteen years. An examination of the statute itself shows that this contention is without basis of fact. Section llo of our Crimes act (Comp. 8tat., p. 1783) provides that any person who, being of the age of sixteen or over, shall unlawfully and carnally abuse a woman-child under the age of twelve years, with or without her consent, shall be guilty of a high misdemeanor and punished by a fine not exceeding $5,000 or imprisonment at hard labor not exceeding thirty years, or both. In the present case the averment of the indictment was that the child, who had been carnally abused by the defendant, was under the age of twelve years, and the defendant by his plea admitted this fact.

The only other ground of reversal urged before us is that the trial court was without power to change the sentence after it had once been pronounced. We consider this contention unsound. After sentence has been prououneed5 and the defendant has begun the service of that sentence, the court is powerless thereafter to change it by increasing the term of imprisonment; but the court may alter the sentence in its discretion and on its own motion at any time during the term and before the defendant has begun serving the sentence originally pronounced. This is the common law rule and is embodied in section 55 of our Criminal Procedure act. Comp. Stat., pi. 838.

The conviction under review will be affirmed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE OLIVER, PLAINTIFF IN ERROR.
    Submitted March 13, 1925
    Decided October 7, 1925.
    Crimes — Assault and Battery — Assignments of Error Alleging Illegal Testimony, &c., Found Not to Constitute Error.
    On writ of error to the Morris Quarter Sessions.
    Before Gummere, Chief Justice/and Justices Parker and Katzenbach.
    For the plaintiff in error, David F. Barkman.

    For the defendant in-error, James H. Bolitho, prosecutor of the pleas.
   Per Curiam.

The defendant was convicted of assault and battery and attempted rape. There is no certificate of the.entire record of the trial under section 136 of the Criminal Procedure act, and, consequently, the case is before us on strict writ of error, and the plaintiff in error is confined to his bill of exceptions.

The first assignment of error alleges, generally, the admission of illegal testimony. This is futile under the well-settled rule. State v. Lee, 126 Atl. Rep. 471; State v. Comstock, 95 N. J. L. 321.

The second assignment challenges the refusal ,of the court to “dismiss the indictment and discharge the defendant at the close of the state’s case;” and the fifth is that the verdict of the jury was illegal and improper and not founded on any evidence supporting a legal conviction. The erroneous verdict of a jury does not constitute legal error, and, as to the refusal of the court to dismiss the indictment and discharge the defendant, such a motion was tantamount to a motion to direct an acquittal at the close of the state’s evidence, and this, under well-settled rules, is discretionary, and not a ground of appeal on a strict writ of error. Burnett v. State, 62 N. J. L. 510; Stale v. Jaggers, 71 Id. 281, 283; State v. Lieberman, 80 Id. 506; State v. Metzger, 82 Id. 749. We may add that no exception was sealed to the refusal, and, therefore, it cannot be availed of in error. .

The third assignment of error is that there was no proof of the commission of or attempt to commit any crime as charged in the indictment; and the fourth, that the allegations of the indictment were not proven, and, therefore, there could be no conviction. Neither of these assignments point to any judicial action.

The sixth assignment of error alleges general error in the judgment and sentence, but points to nothing specific, and is obnoxious to the criticism made above with respect to the first assignment.

No judicial error having been pointed out, the judgment will be affirmed.


author: Per. Curiam.

text:
    OTTO GLASEMANN, PLAINTIFF, v. ERIE RAILROAD COMPANY, DEFENDANT.
    Submitted March 13, 1925
    Decided October 7, 1925.
    Negligence — Injury to Motor Vehicle On Account of Alleged Defective Condition of Railroad Crossing by Which Motor Vehicle Became Unable to Complete Its Passing Over the Tracks and Was Run Down by Train — Jury Properly Directed — Verdict Not Against Weight of Evidence
    On defendant’s rule to show cause.
    Before Gummerk, Chiee Justice, and Justices Parker and Katzenbaci-i.
    For the plaintiff, Charles Jones.

    For the defendant, Parker, Emery & Van Riper.

   Per. Curiam.

The plaintiff’s automobile was badly wrecked and, as he claimed, destroyed, at a country road crossing of. a branch of the defendant’s railroad. The railroad was single track, and the road was a narrow country road. The crossing had been in bad.order, and within two or three weeks before the accident had been repaired by the defendant’s track gang, who had not planked the crossing completely, but had installed four planks, one outside and one inside of the two rails, leaving the center filled with ordinary filling material. The plaintiff knew the road, but was not very familiar with it. He undertook to cross the tracks after dark, and, according to his claim, both the front and rear wheels of his automobile sank into a deep depression from which he was unable to extricate it. As he said in his testimony: TA11 of a sudden I heard a bump on the front wheels. After that I felt it going down and up again and down again, and that was the finish. Q. What do you mean, that was the finish? A. The motor sprung off. I was sitting with the hind wheels before the first track and the front wheels over the second rail of the track.” Plaintiff was, apparently, unable to start his motor or to get the car out of the ruts, and had to stand helplessly by and see a train of the defendant come along and run into it. The crossing bell began to ring, and the plaintiff sent a boy up the road to try and signal the engineer, but without success.

The first point argued is that the court ought to have directed a verdict for the defendant. This seems to be predicated on the alleged failure of the plaintiff to prove that the defective condition of the crossing had existed long enough for the defendant to discover and rectify it. But as it appeared that the defendant had, some little time previously, discovered and undertaken to rectify a defective condition of the crossing, the case seems to be within the rule which laj’s upon it the duty of taking care of the settlement of the dirt filling until the restoration is permanent. Reinauer v. Hackensack Water Co., 92 N. J. L. 8. Moreover, in the case of railroad companies it is sufficient, prima facie, for a plaintiff to prove the defective condition of the crossing, inasmuch as the duty to maintain it in repair is a statutory one. Sonn v. Erie Railroad, 66 Id. 431; Samkiwicz v. Atlantic City Railroad, 82 Id. 480; Closter Farms v. New York Central Railroad, 88 Id. 557; 89 Id. 709; Moreland, v. Director General, 96 Id. 228. We conclude that there was no eror in refusing to direct a verdict for the defendant.

But, secondly, the defendant argues that on this phase of the case the -verdict was against the weight of evidence. It is true that several witnesses for the defendant testified that the crossing was in good order, and there were even photographs produced and put in evidence. But there was considerable evidence for the plaintiff that the car was so firmly wedged in place that it resisted the efforts o'f several people to push it off after the engine had refused to start, and it was, consequently, open to the jury to find that the crossing was not as it should be. We are not prepared to say that they found against the great weight of evidence in this regard

The third and last point relates to the action of the trial judge in modifying his charge as to' the duty of the defendant in the premises. He first charged that, in order to entitle the plaintiff to recover, the, jury must be satisfied not only that the crossing was defective, but that it had existed in that condition long enough to have been discovered and rectified in the exercise of proper care. Later on, however, he withdrew that instruction and charged that: “It has been held in this state that it is sufficient for the plaintiff in an action to recover damage for injuries caused by a defect in the railroad crossing to prove the defect in the crossing, because that is a question of fact to be determined by the jury. It has been held that exculpation Was for the .defendant. With that change I wish to resubmit the case to you. I will give both counsel an exception to this.”

It is claimed that this is erroneous; but in its general features it is clearly supported by the case of Sonn v. The Erie Railroad Company, supra. It must be conceded that in applying the language of that case the trial judge in the present case omitted the words “prima facie/1 and it is argued that harmful error was committed in that regard. We think, however, that the instruction as applied to the manifest facts of the case was not injurious error, and for the reason -that this was not a case of a crossing merely allowed to fall into disrepair by neglect, but the case of an insufficient and improper repair of a defective crossing. Moreover, instructing the jury that exculpation was for the defendant, it was manifest that the jury could not reasonably have interpreted the instruction as meaning more than that negligence might be found in the absence of exculpation.

The rule to show cause will therefore be discharged.


text:
    JOHN H. B. DALRYMPLE, TRADING AS RARITAN TRUCKING COMPANY, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION, DEFENDANT.
    Submitted March 13, 1925
    Decided October 8, 1925.
    Negligence — Motor Vehicle Collision With Trolley Car — Circumstances Unusual — Street Undergoing Repairs and Traffic Going Both Ways, Using One Side — Motor Vehicle Could Not Clear Car Track in Time — Verdict Not Against Weight of Evidence.
    On defendant’s rule to show canse.
    Before Gummere, Chief Justice, and Justices Parker and Ivaizenbach.
    For the plaintiff, Wight, Wight & Qolenbock.

    For the defendant, Leonard J. Tynan.

   Per Curiam.

This action grew out of a head-on collision between a motor truck belonging to the plaintiff and a trolley car of the defendant, on a highway in Middlesex county known as the Bonhamtown road. The circumstances of the accident were a little unusual. The road in question, which for present purposes may he described as running east and west, had been in bad order. A single trolley track of the defendant ran clown the center of the road, and on both sides of this the surface had worn away considerably, leaving the rails of the track somewhat above the surface. The south side of the road was under repair and closed to traffic; the north side, thorrgh in bad order, was in use. The plaintiff’s truck, being the first of a convoy of three or four trucks, was going eastward and the trolley car was coming west. Because of the repair work on the south side, all the ordinary traffic on the road was running along the north side. According to the testimony of the driver of the leading truck, which was the damaged one, he was straddling the northerly rail of the trolley track, the right-hand wheels of the truck being between the trolley rails, and while the truck was going down grade this driver saw a car coming in the opposite direction and endeavored to turn to the left and get the wheels of his truck out of the track, but the front wheel was held by the projecting rail, so that while he was still engaged in trying to clear the track for the trelley car, the latter came along and struck his truck head-on. This view of the case is corroborated to some extent by the fact that both the trolley car and truck were injured on the right front. The car platform floor was shattered and the motorman, according to his testimony, was dropped through the floor and his legs were dangling on the ground; also, the air line was broken and, consequently, the motorman was unable to apply the brakes or shut off the power, and the car proceeded for a short distance and then began to roll backwards down the hill, but was stopped by the blocking of a wheel.

The only reason assigned is that the verdict is against the weight of evidence. We have read the testimony with care and feel obliged to say that we are unable to conclude that the jury disregarded th great weight of the evidence. It may well be conceded that there was some considerable exaggeration on both sides. But the jury were entitled to accept the general description of the situation as given by the plaintiff’s witnesses, and if they did so, it would seem that they could properly say that the motorman, seeing this driver struggling to get his truck out of the road, ought to have reduced the speed of his car and stopped, if necessary, before the collision took place, especially as the car was going up grade.

The rule' to show cause will be discharged.


text:
    FRANK GIBBS ET UX. v. ELWOOD BARTON. J. FRANK McDAVITT ET UX. v. ELWOOD BARTON.
    Decided October 7, 1925.
    Negligence — Motor Vehicle Collision — Verdict Not Found Excessive — Withdrawal of a Juror is Not a Right of Party Claiming Injury, But is a Matter Within Discretion of Court, Not To Be Interfered With Unless Abused.
    On defendant’s rule to show cause.
    Before Gummbre, Chibe Justice, and Justices Parker and Katzenbacii.
    Por the rule, Kali sell & Kalisch.

      Contra, William A. Dolan, Frederic B. Scott, and John F. Morrissey.

   Per Curiam.

These suit were instituted by the respective plaintiffs to recover compensation for injuries severally received by them in an automobile collision between a car of the defendant and a car of the plaintiff McDavitt, in which he and his wife, and Gibbs and his wife, were riding. The jury found that the responsibility for the accident was due solely to the negligence of the defendant, and awarded the plaintiff Prank Gibbs, $10,000; his wife, $5,000; J. Prank McDavitt, $3,000, and his wife. $2.000.

The principal ground upon which we are asked to set aside these verdicts is that they are each of them excessive. If the injuries of the respective plaintiffs were as severe as the proofs offered by them showed, the verdicts cannot properly be condemned excessive. The jury evidently believed the testimony offered by the plaintiffs as to the character and seriousness of the injuries received by each of them, and we cannot say they were not justified in so doing. We conclude, therefore, that the several verdicts ought not to be set aside upon this ground.

The next contention is that the trial court erred in refusing to direct the withdrawal of a juror and declaring a mistrial, upon the request of the defendant’s counsel, after it had been brought out in the testimony, over the objection of defendant’s counsel, that the latter carried insurance. We think-this refusal on the part of the trial court does not justify an award of a new trial. The withdrawal of a juror and the declaring of a mistrial are not rights existing in the party who claims' to have been injured b3r the admission of incompetent testimony, but are matters resting in the discretion of the trial court. And the action of that court ought not to be interfered with by us unless it is apparent that such discretion was abused. That, we think, cannot be said in the present ease.

The only other ground urged for setting aside these verdicts is that the trial court improperly admitted testimony relating to statements made by the defendant on the question of liability. This testimony, of course, was competent.

The rule to show cause will be discharged.