text:
    IN RE EUGENE H. MEYER.
    Argued October 7, 1924
    Decided January —, 1925.
    Practice of Law — Disbarment—Reinstatement—Petition to Review Evidence Taken at Disbarment Cannot be Granted— Newly-discovered Evidence, Subsequent Exemplary Conduct, Etc., May be Consideréd in Manner Laid Down in Previous Cases.
    In proceedings on disbarment.
    Before Justices Trenchaed, Min turn and Lloyd.
    Eor the petitioner, Louis B. Lesser.

   Pee Curiam.

Eugene H. Meyer was admitted as an attorney in the State of New Jersey in February, 1909, and as a counselor in June, 1912. By an order of the Supreme Court, sitting-in one of its branches, on December 14th, 1917, he was “put out of the roll, disbarred and forbidden henceforth to practice as a counselor, solicitor and attorney-at-law in all the courts of this state.” Mr. Meyer, on August 27th, 1924, presented his petition to the court, reciting the above facts, and further alleging that the conduct of the petitioner has been exemplary from the time of said disbarment, and that he has patriotically served the government in the late war; that it is difficult for him to find employment, and that he has maintained at all times, and still maintains his innocence of any intentional wrong-doing in the matter for which he was disbarred; that he is desirons of having this court review its findings and alter its judgment, and concludes said petition with the prayer that "this court will give to the petitioner a rehearing, and will designate a time and place when it will hear arguments and receive any further evidence which it may deem worthy of consideration in support of petitioner’s prayer.”

On this petition being presented to Mr. Justice Kalisch, lie, on August 27th, 1924, ordered that the petitioner majr, through his attorney, appear at the October, 1924, term of this coiut, on its opening day or on such other day as may be fixed by said court, and there present more fully the matters contained in his petition, and present and argue the issues of fact and law raised in his petition and all matters pertinent and relevant thereto.

The matter came on for hearing before the third branch of the Supreme Court, at the October, 1924, term. At that time the record of the proceedings taken in the Supreme Court, and upon which the disbarment was based, were presented.

It will be perceived that the application to this court is one to review the evidence upon which the court, in 1917, acted, and to reconsider the judgment imposed. This we cannot do. The court cannot undertake, upon the same record, to again and again examine and pass upon facts once definitely and finally disposed of in the court. If the case is to be heard upon newly-discovered evidence, tending to show the innocence of the petitioner of the charges made against him in the disbarment proceedings, or if, admitting the wrong-doing there established, he desires to make application for reinstatement based upon subsequent exemplary conduct and reformation, the method indicated is laid down with care and precision in the opinion of the-Supreme Court in the case of In re Harris, 88 N. J. L. 18, and the course pursued in that case. It has been followed at the present term in the case of In re Paul Wendell.

The petition will be denied, but without prejudice to the right of the petitioner to take the course indicated in this opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MORRIS COLTON, PLAINTIFF-RESPONDENT, v. SAMUEL GROSS, DEFENDANT-APPELLANT.
    Submitted November 6, 1924
    Decided February 9, 1925.
    Con tracts — Astsumpsii;—Moneys in Defendant’s Hands for a Specific Purpose — Failure to so Use Them and Failure to Return Them Amounts to Tortious Conversion, Which Plaintiff Can Waive and Sue in Assumpsit.
    On appeal from the Circuit Court.
    Before Justices, Tren chard, Minturn and Lloyd.
    Eor the appellant, Silberman ¿6 Grosman.

    Eor the respondent, Benjamin M. Weinberg.

   Per Curiam.

This is an appeal bj’ the defendant below from a judgment in favor of the plaintiff below in the Essex Circuit Court. The action was to recover a sum of money in the hands of the defendant due the plaintiff from commissions on the sale of overcoats. The complaint is in three counts:

1. Eor money had and received to the use of the plaintiff.

Eor sum due on an agreed balance.

3. Eor various sums of money received by defendant for the sole use and benefit of plaintiff.

The answer is a general denial, to which in the progress of the trial was added, by permission of the court, an amendment permitting the defendant to set up a partnership between the parties and, counter-claim a loss sustained therein.

While the grounds of appeal axe four in number, they resolve themselves into the single proposition that there was a variance between the complaint filed and the proofs, and that the evidence produced did not sustain the pleadings.

Early in the tria,] a paper-writing was offered in evidence by the plaintiff, reading as follows:

“Newaiik, N. J., 12/12/1919.

This is to certify that, as per instructions from S. Gross, Morris Colton is credited with an investment of $1,653.08, as part payment on twenty shares of capital stock of new corporation about to be formed under the laws, of New Jersey, to he known as the. United Salvage and General Merchandise Co.

¥i. Kelley, Jii.”

This paper was proven to> have been authorized by the defendant, and the defendant acknowledged that there was due the plaintiff at that time the sum named therein. The defenses that developed in the case were the alleged variance between the allega,la and the probata, and the amended defense of a right to set-off a, loss in the alleged partnership.

The proofs clearly established that the defendant, never organized the corporation; never invested the money in the stock of any corporation, but refused, on the plaintiff’s repeated demand, to return the money thus, left in his hands.

At the conclusion of plaintiff’s case defendant’s, counsel moved for a nonsuit in these words,:

“1 move for a nonsuit on, the ground that the plaintiff, under the proof in this case, and under the pleadings, filed in the case, has not made out any ease at all.”

While the ground of this motion was most general and of doubtful sufficiency to present the legal question here sought to be raised, assuming its legal sufficiency we find no merit in the appellant’s contention. The defendant had received from the plaintiff the sum named to invest in stock of a corporation. This he failed to do in a reasonable time. In this situation the plaintiff was entitled, after demand for and refusal of a return of the money, to sue in assumpsit for moneys held in his use. The moneys were in the hands of the defendant for a specific purpose. When he failed to SO' use them, and upon demand refused their return to the plaintiff, it became the equivalent of a tortious conversion to- his own use. The plaintiff could waive the wrong and sue in assumpsit. Hanrahan v. National Building and Loan Asso., 67 N. J. L. 526. In the early case of Mott v. Pettit, 1 Id. 344, the plaintiff was permitted to recover in an action of indebilatus assumpsit for money had and received on proof that the defendant, the clerk of court, had converted to his own use moneys left with him b}r the plaintiff. In the present case it was plainly the duty of the defendant to invest the plaintiff’s moneys in the corporation to be formed; failing in this, to return them to the plaintiff on demand. Having done neither, we think he became liable to an action in assumpsit.

The judgment is affirmed.


author: CLuii’BELL, J.

text:
    HARRY E. BALM, PROSECUTOR, v. THE CITY OF CAPE MAY ET AL., RESPONDENTS.
    Decided February 5, 1925.
    Commission Government — elections—Constitutionality of Act Sustained as Not in Conflict With Classification Provisions —Election Found to Have Been Held Within Statutory Time — Previous Memorandum Filed.
    On certiorari.

    For the prosecutor, Louis II. Miller.

    For the respondents, Louis T. Stevens.

   The opinion of the court was delivered by

CLuii’BELL, J.

In the memorandum heretofore hied by me in this matter I treated of but one ground of attack upon the proceedings and referred to it as “the single reason * * * nrged by the prosecutor.” That reason referred to the right of withdrawal of certain petitioners, of tlieir names from the petitions after filing with the city clerJc. Such statement in my memorandum was ill-advised. The reason treated of by me was argued orally, but other reasons were urged and argued in prosecutor’s brief. Such further reasons were as. follows:

1. The election was called for a. date within four weeks after actual filing of the petition. The petitions, were placed in the hands of the city clerk on December 2d, 1924. He did not actually mark them filed until December 4th, and then his endorsement of filing was as of December 2d.

He gave the. notice of election on December 8th, 1924, fixing the date of such election as Tuesday, December 30th, 1924. The act in question provides, “the said clerk shall forthwith call an election to he held on the fourth Tuesday following the time of filing the petition,” &c.

Prosecutor contends that election could not have been held until January 7th, 1925. This is, no doubt, an error, and he intends to fix as such date Tuesday, January 0th, 1925. Such fourth Tuesday, however, would be December 30th, 1924, whether calculated from December 2d, 4th or 8th.

2. That the act in question is unconstitutional because.—

(a) It includes in its operation all municipalities in the

state of whatsoever population, nature or location, except municipalities that may have adopted the Walsh act, but have not operated under such act for a period of four years, and such attempted classification is. wholly arbitrary and is special legislation, and in contravention of subsection 11, section 7 of article 4 of the state constitution.

(l>) Because the act provides that various other statutes shall be deemed a. part of the act in contravention of subsection 4, section 7, article 4 of the state constitution.

My consideration of these reasons lead me to the conclusion that the act in question is not in violation of the constitution in the directions urged.

3. The petitions are void for deception and fraud.

1 found this reason wholly unestablished.

For these reasons, as well as that set forth in my original memorandum, the writ of certiorari was dismissed.


text:
    EDISON FIXTURE COMPANY, INCORPORATED PLAINTIFF-APPELLANT, v. JOHN COPOULOS, TRADING AS TWENTIETH CENTURY MODEL BAKERY, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    Contracta — Sale of Goods — Contract In Writing — Alleged Variation Between Salesman’s Promises and Written Contract— Alleged Oral Representations of Salesman to Induce Execution of Contract — 'No Counter-claim, Notice of Recoupment Nor Proof of Amount of Damages — Plaintiff Not Bound by Salesman’s Representatives — Judgment for Defendant Reversed.
    On appeal from the District Court of the city of Camden.
    Before Justices Trenchard, Minturn and Lloyd.
    For the appellant, Herman B. J. Wechstein.

    For the appellee, Waller 8. Keown.

   Per Curiam.

The plaintiff below sold and delivered to the defendant six electric fixtures at the price of $15.50 each, to be paid for in installments, pursuant to' a written contract as follows:

“The price of these electric lamps are $15.50 each.

These lamps are not on trial. They are sold.

No connection with the N. Y. Edison Co, or Brooklyn Edison Co,

Brooklyn office, 186 Joralemon street.

Edison Fixture Co., Inc.

332 Broadway. Telephone Franklin 2614. New York.

$.15.50 — 70c. as first payment on each and every fixture and 70c. every two week? until the sum of $15.50 is fully paid.

I, the undersigned (horeirafter called the subscribed), promise and agree to pay to the Edison Fixture Co., Inc. (hereinafter called the Company), the sum of $93.00 for six electric fixtures at $15.50 on each and every fixture to lie delivered for me less chain drops at my premises No..... the sum of $4.20 as first payment and the balance $4.20- every two weeks until the sum of $93.00 is fully paid.

In consideration of the above the Company agrees to sell these fixtures upon the signing of this agreement, upon conditions set forth herein.

In the event of the subscriber’s failure to pay any of the installments herein mentioned, it is agreed and understood between the parties herein mentioned, that the Company shall have the right to demand the entire amount above agreed upon, less any sum already paid.

The Edison Fixture Co., Inc., shall not be responsible for any injury or damage, through breakage or otherwise, of said appliance,

The Company guarantees the fixtures to be free from imperfection in material at time of delivery, and agrees to exchange bulbs and globes during the life of this contract, provided burned out bulbs and globes are returned and payments made regularly.

Date May 18, 1923. First name in full.

Name — Twentieth Century Model.

Bakery. Subscriber.

Johxt CoiTpounos,

Address 25 Market St., Ferry Walk, near.......

City or Borough, Camden, State, N. J,

Business, Bakery.

Collected on account, $4.20.

All verbal and written agreements not mentioned in this contract axe void.

Contract No-. 30790.

Salesman — L. K. S.”

Upon defendant's default in the payment of certain installments, this suit was brought to recover the balance of the purchase price.

The defendant filed no* notice of recoupment, or counterclaim, or other pleading whatsoever. Upon the proofs submitted at the trial the judge rendered judgment for the defendant.

We are unable to perceive airy theory upon which the judgment can be sustained.

No denial was made of the plaintiff's proofs of the execution of the contract, the delivery of the fixtures- and the default in payment.

There was no proof that there was any fraud in the execution of the contract, or that the defendant was deceived by the plaintiff as to- its contents or terms.

The defendant, however, sought to interpose as a complete defense to the action certain alleged misrepresentations made by the plaintiff's salesman at the time of the execution of the contract, which will mow be considered.

The first alleged oral misrepresentation was ’to the effect that the fixtures installed would cost less to operate than those theretofore used by the defendant. To this we deem it to be sufficient answer to point out that an examination of the writing itself shows that, by the express terms thereof, the plaintiff company was not bound by thát representation if made.

Thé defendant next sought to set up as a. complete defense to the action that the salesman, at the time the contract was executed, made an oral representation that the company (as stated in respondent's brief) “was going to install a service office in the city of Camden, and that it would take care of all repairs, adjustments and everything of that nature, without any cost or expense to the defendant, and that it failed to do so. To that there are two answers — first, by the terms of the contract the plaintiff company was not bound by such a representation, if made; secondly, the provision of the contract is that the company “agrees to exchange bulbs and globes during the life of the contract, provided, burned,-out bulbs and globes are relumed and payments made regularlyand there is no proof that any burned-out bulbs or globes «'ere returned. On the contrary, the proof is to> the effect that they were not returned, and that the defendant continued to use the fixtures without making the payments required by the contract. Moreover, if there had been proof of a partial failure of consideration bjr reason of the non-exchange of bulbs and globes, that would not have justified the judgment for the defendant, because, as we have pointed out, there was no counter-claim or notice of recoupment of damages filed by the defendant, and no proof of the amount of damages.

ft may well be that the contract made was an unwise one for the defendant to make. But with that this court cannot concern itself. Our duty is to give effect to' legal rights of parties arising under contracts that they have seen fit to enter into1.

Me are unable to find any evidence justifying the judgment for the defendant, and it will he reversed, and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED PLAINTIFF-APPELLANT, v. HENRY H. GROSSMAN, TRADING, ETC., DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Teenchard, Minturn and Lloyd.
    For the appellant, Herman B. J. Wecksiein.

    For the appellee, Lewis Liberman.

   Per Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo awarded.


author: Pee Curiam.

text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. P. W. ROUNDS AND JOHN SERMON, TRADING AS SERMON & ROUNDS, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Tren chard, Minturn and Lloyd.
    For the appellant, Herman B. J. Wecksiein.

    For the appellee, John II. Biviizer.

   Pee Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. FREDERICK SEGER, TRADING, ETC., DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Trenchard, Minturn and Lloyd.
    For the appellant, Herman B. J. Weclcslein.

    For the appellee, Thomas P. Curley.

   Per Curiam.

This case- was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment wall be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANNT, v. C. MUSCIANA, TRADING, ETC., DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Tren chard, Hinturn and Lloyd.
    Por the appellant, Herman B. J. Wechstein.

    For the appellee, Thomas P. Curley.

   Per Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term..

The judgment will be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. HARRY HORWITZ, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Tren chard, Minturn and Lloyd.
    For the appellant, Herman B. J. IF eckstein.

    For the appellee, Frank, IF. Davis.

   Pee Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire d& novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. A. M. HOWARD, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Trenchard, Minturu and Lloyd.
    For the appellant, Herman B. J. Wecksiein.

    For the appellee. Thomas P. Gurley.

   Pee Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. H. PORTNOY, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camclen.
    Before Justices Tren chard, Minturn and Lloyd.
    Eor the appellant, Herman B. J. Weclcstein.

    For the appellee, Thomas P. Gurley.

   Per Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo awarded.


author: Per Coeiau.

text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. MAX MOLOTOSKY, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Trenchard, Minturn and Lloyd.
    For the appellant, Herman B. J. Weclcstein.

    For tlie appellee, Thomas P. Gurley.

   Per Coeiau.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo awarded.


author: Pee Cceiam.

text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. HARRY LEVINSTEIN, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Trun chard, Mixture and Lloyd.
    For the appellant, Herman B. J. Wechstein.

    For the appellee, Thomas P. Curley.

   Pee Cceiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will he reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. FRANK GOFFREDO, DEFENDANT-APPELLEE.
    Argued October 8, 3924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camelen.
    Before Justices Tren chard, Hinturn and Lloyd.
    For the appellant, Herman B. J.' Wechsiein.

    For the appellee, Thomas P. Ciorley.

   Pee Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo awarded.


author: Pee Cueeui.

text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. B. YENDLER, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Teen chard, M'inturn and Lloyd.
    For the appellant, Herman B. J.. Wechsiein.

    For the appellee, Maurice L. Praissman.

   Pee Cueeui.

Our examination of tile record discloses no error justifying a reversal. This case was argued with Edison Fixtures Co., Inc., v. Copulos, No. 475, of the present term, but differs from that in a material matter.

Here there was evidence tending to show that the defendant could not read English, and was imposed upon by the plaintiff as to the true terms and contents of the written contract and in respect to material and pertinent matters.

This testimony furnishes support for the judgment for the defendant, which will be affirmed, with costs.


author: Pee Cuetam.

text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. DOCTOR B. J. SCHWARTZ, TRADING, ETC., DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Tejsncjhaed, Musttuen and Lloyd.
    For the appellant, Herman B. J. Weckstein.

    For the appellee. Thomas P. Gurley.

   Pee Cuetam.

Our examination of the record in this case discloses no error justifying a reversal.

We think there was evidence in this case wherefrom payment of the claim in question might lawfully be inferred by the trial judge, as, apparently, it was inferred, and, therefore, the judgment is affirmed, with costs.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. SAMUEL ARONOW, DEFENDANT-APPELLEE.

      Argued October 8, 1924

    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before1 Justices Teenchabd, Mintukn and Lloyd.
    For the appellant, Herman B. J. Wecicstein.

    For the appellee, Thomas P. Gurley.

   Pee Curiam.

This case was- argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. RENATO DI MAGLIO, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5 1925.
    On appeal from the District Court of the city of Camden.
    Biefore Justices Teenchaed, Minturn and Lloyd.
    For the appellant, Herman B. J. Wecicstein.

    For the appellee, Frank W. Davis.

   Pee Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire ie novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. WALTER J. FARRELL, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Teen chard, Min turn and Lloyd.
    For the appellant, Herman B. J. Wechslein.

    For the appellee, Thrums P. Curley.

   Pee Curiam.

This ease was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. LOUIS TOLCHIN AND SHAENKIN, TRADING, ETC., DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Teenchard, Minturn and Lloyd.
    For the appellant, Herman B. J. Weclcstein.

    For the appellee, Thomas P. Gurley.

   Per Curiam.

This case was argued with, and is controlled by, out' decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the'present term.

The judgment will be reversed and a venire de novo awarded.


author: Pee Cubiam.

text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. A. M. SKLAROFF, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Trenciiard, Minturn and Lloyd.
    For the appellant, Herman B. J. Weclcstein.

    For the appellee, Thomas P. Gurley.

   Pee Cubiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED PLAINTIFF-APPELLANT, v. FRANK SHAPIRO, TRADING, ETC., DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Tren chard, Minturn and Lloyd.
    For the appellant, Herman B. J. Wechstein.

    For the appellee, Thomas P. Curley.

   Pee Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. R. WAPNER, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Trenchard, Minturn and Lloyd.
    For the appellant, Herman B. J. Weclcsiein.

    For the appellee, Lewis Liberman.

   Per Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The. judgment will be reversed and a' venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. JOHN AULETT, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Oamden.
    Before Justices Teen chard, Minturn and Lloyd.
    For the appellant, Herman B. J. Weclcsiein. awarded.
    For the appellee, Francis G. Homan.

   Per Curiam.

This case was argued with, and is controlled by, our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment will be reversed and a venire de novo


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. BEN. F. CUTLER TRADING, ETC., DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Teen chard, Minturn and Lloyd.
    For the appellant, Herman B. J. WecTcstein.

    For the appellee, Maurice L. Praissman.

   Per Curiam.

The trial judge apparently rendered judgment for the defendant upon the ground that he was not a party to the contract upon which suit was brought, and the record discloses that to have been the situation.

The judgment below will be affirmed, with costs.


author: Per Curiam:.

text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. PASQUALE FARACEHIO, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Tren chard, Minturn and Lloyd.
    For the appellant, Herman B. J. Weclcstein.

    For the appellee, Bdivard West.

   Per Curiam:.

We think the evidence shows conclusively that the defendant knew he was signing a contract of sale, and that he chose not to read it. The case is controlled by our decision in Edison Fixture Co., Inc., v. Copoulos, No: 475, of the present term.

The judgment for the defendant will be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED PLAINTIFF-APPELLANT, v. JOSEPH DUGGAN, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Teen chard, Minturx and Lloyd.
    For the appellant, Herman B. J. Weclcstein.

    For the appellee, Thomas P. Gurley.

   Per Curiam.

We t-liink the evidence shows conclusively that the defendant knew he was signing a contract of sale/and that he chose not to read it. The case is controlled by our decision in Edison Fixture Co. Inc., v. Copoulos, No. 475, of the present term.

The judgment for the defendant will be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED PLAINTIFF-APPELLANT, v. RICHARD CLARK DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Trench ard, Minturn and Lloyd.
    For the appellant, Herman B. J. Weeks!,ein.

      For the appellee, Thomas P. Gurley.

   Per Curiam.

We think the evidence shows conclusively that the defendant knew he was signing a contract of sale, and that' he chose not to read it. The case is controlled by our decision in Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term.

The judgment for the defendant will be reversed and a venire de novo awarded.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. GEORGE GOLDBERG, TRADING, ETC., DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from tlie District Court of the city of Camden
    Before Justices Teen chard, Mikturn and Lloyd.
    Por the appellant, Herman B. J. Weclcstein.

    For the appellee, Frank 17. Davis.

   Per Curiam.

Our examination of the record discloses no error justifying reversal. This case was argued with Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term, but it differs from that in a material matter. Here, the evidence permitted of the inference by the trial judge, sitting without a jury, that the-plaintiff deceived the defendant as to the fact that he was signing a contract, by the false representation that he was signing, as a matter of form, a paper having no obligatory force.

This testimony furnishes a basis for the jndment in favor of the defendant, which will be affirmed, with costs.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. M. A. GLEASON, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5 1925.
    On appeal from the District Court of the city of Camden.

      Before Justices Trenchakd. Mint urn and Lloyd.
    Por the appellant, Herman B. J. Wecksiein.

    For the appellee, Thoiims P. Gurley.

   Per Curiam.

Onr examination of the record discloses no error justifying reversal. This case was argued with Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term, but it differs from that in a material matter. Here, the evidence permitted of the inference by the trial judge, sitting without a jury, that the plaintiff deceived the defendant as to the fact that he was signing a contract, by the falso representation that he was signing, as a matter of form, a paper having no obligatory force.

This testimony furnishes a basis for the judment in favor of the defendant, which will be affirmed, with costs.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. A. KLEIN, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Tren chard, Minturn and Lloyd.
    For the appellant, Herman B. J. Weckstein.

    For tlie appellee, Thomas P. Gurley.

   Per Curiam.

1 Our examination of the record discloses no error justifying a reversal. This case was argued with Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term, but differs from that in a material matter. •

Here there was evidence tending to show that the defendant could not read English, and was imposed upon by the plaintiff as to the true terms and contents of the written contract, and in respect to material and pertinent matters.

This testimony furnishes support for the judgment for the defendant, which will be affirmed, with costs.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. A. HASSAN, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Trenchard, Minturn and Lloyd.
    For the appellant, Herman B. J. Weckstein.

    For the appellee, Maurice L. Praissman.

   Per Curiam.

Our examination of the record discloses no error justifying a reversal. This case was argued with Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term, but differs from that in a material matter.

Here there was evidence tending to show that the defendant could not read English, and was imposed upon b3r the plaintiff as to the true terms and contents of the written contract, and in respect to material and pertinent matters.

This testimony furnishes support for the judgment for the defendant, which will be affirmed, with costs.


text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. M. A. RUCCOLO, DEFENDANT-APPELLEE.
    Argued October 8, 1024
    Decided February 5, 1925.
    On appeal from the District Court of the city of Camden.
    Before Justices Trench abb, Mintcjrn and Lloyd.
    Eor the appellant, Herman B. J. Weclcstein.

    Eor the appellee, Thomas P. Gurley.

   Per Curiam.

The evidence is not set forth in the state of the case.

The judgment for the defendant will be presumed to have been justified by the proofs, and will be affirmed, with costs.


author: Peb Cueiam.

text:
    EDISON FIXTURE COMPANY, INCORPORATED PLAINTIFF-APPELLANT, v. MORRIS GREENBERG, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal from the District Court of- the city of Camden.
    Before Justices Trenchard. Minturn and Lloyd.
    For the appellant, Herman B. J. Wechstein.

    Eor the appellee, Thomo-s P. Gurley.

   Peb Cueiam.

The evidence is not set forth in the state of the case.

The judgment for the defendant will be presumed to have beén justified by the proofs, and will be affirmed, with costs.


author: Pee 'Cueiam.

text:
    EDISON FIXTURE COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. LOUIS POLOGRUTO, DEFENDANT-APPELLEE.
    Argued October 8, 1924
    Decided February 5, 1925.
    On appeal front the District Court of the eitj1- of Camden.
    Before Justices Tbenchard, Mintuen and Lloyd.
    For the appellant, Herman B. J. Weckstein.

    Por the appellee, Thomas P. Gurley.

   Pee 'Cueiam.

Our examination of the record discloses no. error justifying a reversal. This case was argued with Edison Fixture Co., Inc., v. Copoulos, No. 475, of the present term, but differs from that in a material matter.

Here there was evidence tending to show that the defendant could not read English, and was imposed upon bjr the plaintiff as to. the true terms and contents of the written contract and in respect to material and pertinent matters.

• This testimony furnishes support for the judgment for the defendant, which will be affirmed, with costs.


author: Pee Cubiaai.

text:
    JOSEPH FRIEDBERG, ABRAM FRIEDBERG, LOUIS FRIEDBERG AND ALEXANDER FRIEDBERG, PARTNERS, TRADING AS THE NEW BRUNSWICK CORNICE WORKS, PLAINTIFFS-RESPONDENTS, v. SYLVESTER SCUTELLARO, DEFENDANT-APPELLANT.
    Submitted November 6, 1924
    Decided February 10, 1925.
    Contracts — Building—Alleged Mechanics’ Lien — Record Fails to Disclose Suit was Upon Such CUaim, That Such Claim was Offered in Evidence, or That if Existing, the Proper Endorsement was Placed Thereon.
    On appeal from the Circuit Court.
    Before Justices Trestchakd, Mtntfen and Lt.oyd.
    For the appellant, Reilly, Quinn & Parsons.

    For the respondents, Edmund A. Hayes.

   Pee Cubiaai.

This is an appeal from a judgment entered in the Monmouth County Circuit Court in a case heard by Judge Lawrence, sitting as a Circuit Court judge. In the state of the case I find notice given by counsel for the appellant that the defendant appeals on the ground “that the court had no jurisdiction of the cause of reason of the failure to endorse upon the lien claim the date of issuing summons, and that the plaintiffs were barred from proceeding on such claim.” No grounds of appeal appear to have been filed. An examination of the record does^ not disclose that the suit was upon a mechanics’ lien claim. By the complaint it appears to he a suit upon a building contract entered into between the plaintiffs below and the defendant below for the construction of certain parts of a two-story brick building owned by the defendant. The nearest approach to an intimation that the claim might be connected with a mechanics’ lien is the affirmation in the fifth paragraph of the complaint that the lien is a debt upon the building and land by virtue of the Mechanics' Lien law. The mechanics' lien itself was not offered in evidence, and the point set out in the notice of appeal was not raised in the court below. On the contrary, the parties proceeded to trial without objection^ and, finally, in the course of a. colloquy between the court and defendant's counsel, counsel admitted that the sum of $407.50 was due. So far as appears from the record, this case was the ordinary one of an action at law, and the judgment entered in the cause so characterizes it. A general verdict and judgment appears to have been given against the defendant. Under these conditions no error appears in the trial of tl^e cause. Even if, in fact, the case was based upon a mechanics' lien • whether the lien contains the endorsement required by the statute, the state of the case does not tell it. It is therefore unnecessary to determine what would be the effect of the failure to endorse the mechanics' lien with the time of issuing the summons. As the record stands there is nothing to show- — (1) that the suit is upon mechanics' lien; (2) that any mechanics' lien was offered in evidence or ever existed, or (3) if it did exist, that the proper endorsement was-not placed thereon.

The judgment is affirmed.


text:
    THE STATE, EX REL. JOSEPH JARDOT, RELATOR, v. THE CITY OF RAHWAY ET AL., RESPONDENTS. THE STATE, EX REL. GEORGE McINTYRE, JR., RELATOR, v. THE CITY OF RAHWAY ET AL., RESPONDENTS.
    Argued November 18, 1924
    Decided February 10, 1925.
    Public Officers — Dismissal—Constitutionality oif Act of 1919 Providing for Compensation for Officials Illegally Dismissed, Sustained.
    Ou mandamus. On rehearing.
    Before Justices Kalisch, Katzehbacti and Lloyd.
    Por the relators, Tlyer & Armstrong.

    Eor the respondents, Edward A. Uwrkley and Charles E. Corbin.

   Per Curiam.

The above two cases, in which a rehearing was ordered, were decided July 31st, 1924, and reported in 2 N. J. Adv. R. 142. On petition of respondents, a rehearing was ordered and had. Since the filing of the opinion, and upon the argument, our attention was, for the first time, directed hv counsel of relators, to. chapter 149 of the laws of 1919, page 323, which, inter alia, declared the following: “Whenever any municipal officer or employe has been or shall be illegally dismissed from such office or employment, and the said dismissal has been or shall be set aside as illegal by a court of competent jurisdiction, such officer or emploj’e shall be entitled to recover the salary of such office or employment for the period covered by such illegal dismissal.”

We are still of the same opinion as originally announced in the cause. If there was any doubt abont the soundness of the view therein taken, that doubt is dissipated by the statute of 1919, above referred to.

It is now contended, on behalf of the respondents, that the statute of 1919 is unconstitutional, in that it compels a city to give its money to an individual without return or benefit therefor to the city, and in direct conflict with paragraph 19 of article 1 of the constitution of the State of New Jersey, which, among other things, provides: “No county, city, borough, town, township or village shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation.”

This contention is so obviously without any merit that no comment is necessary.

As a result, we have reached the conclusion, as originally declared, that tire motion of the relator’s counsel to strike out the return 'to each of the alternative writs must prevail, and that a peremptory writ of mandamus issue.


author: Pint Ctjeiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. CHARLES JULIUS, PLAINTIFF IN ERROR.
    Submitted October 27, 1924
    Decided February 6, 1925.
    Crimes — Private Indecency — Assault and Battery — Error to Admit Evidence That Defendant Had Had Improper Relations With Another Girl — Allegation of Error in Charge Reflating to Reasonable Doubt Not Sustained.
    On writ of error directed to the Hudson County Court of Quarter Sessions.
    Before Gummbre, Chief Justice, and Justices Parker and Katzenbach.

      For tlie plaintiff in error, Anthony P. LaPorta,.

    For the defendant in error, John Milton (Aloysius McMahon, of counsel).
   Pint Ctjeiam.

This case is brought to this court by a writ of error directed to the Hudson County Court of Quarter Sessions. The writ brings up the conviction of Charles Julius upon two indictments, one for private indecency, the other for assault and battery. The Indictments were founded upon complaints made by Grace Hunt and Dorothy Hunt, girls tear and twelve years of age, respectively. The evidence submitted showed that the defendant conducted an establishment for packing candy in West New York, where the complaining witnesses were employed in sealing the hags of candy. The acts of indecency were alleged to have been committed upon the premises. During the progress of the trial the state called as a witness Eva Arthur, a girl who testified that she was fourteen years of age; that she had worked for the defendant in his candy shop, and that the defendant had on one occasion locked the shop and then attempted to commit improper acts with her. At the time these questions were asked of Eva Arthur by the state’s attorney, objection was made to the testimony on behalf of the defendant. The objection was overruled. The testimony was admitted. An exception to the court’s ruling was duly taken. The admission of this testimony was error. Upon the trial of a person for one crime evidence that the defendant has been guilty of other crimes is irrelevant, and, consequently, inadmissible. This is the general rule. State v. Bloom, 89 N. J. L. 418; State v. Fisher, 96 Id. 5. While to this general rule there are exceptions which are set forth in the case of State v. Raymond, 53 Id. 260, the present case does not come within any of these exceptions. The acts of the defendant with Eva Arthur were not part of the res gestee. Between them and the crime charged there was no logical relation except as they might evidence the criminal propensity of the defendant. A criminal propensity is not evidence of guilt. Slate v. Bloom, supra. The court in its charge to the j ury commented upon the testimony of Eva Arthur. This comment made the testimony especially harmful to the defendant.

The further contention is made that the trial court erred in the definition of reasonable doubt which it gave1 to the jury. A reading of this portion of the court’s charge seems to me to bring the definition of reasonable doubt within the cases of State v. Donnelly, 26 N. J. L. 601, and State v. Linker, 94 Id. 412.

Because of the admission of the testimony of Eva Arthur the judgment of convection is reversed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LOUIS ROMMEL, PLAINTIFF IN ERROR.
    Submitted October 27, 1924
    Decided February 6, 1925.
    Crimes — Making False Corporation Statement — Insolvency as Defined in Corporation Act Not Insolvency in Ordinary Sense —Not Error to Charge “That ‘Assets’ is Property, Generally Regarded as Applicable to the Payment of Debts”, — No Justification for Charge That the Court Erred in Assuming That Sufficient Proof Had Been Made of Guilt — Reliance in Some Degree was Had Upon Defendant’s Statements.
    On writ of error directed to the Essex County Court of Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    Por the plaintiff in error, Harrison P. Lindabury.

    For the defendant in error, John O. Bigelow.

   Per Curiam.

This case is before us on a writ of error directed to the Essex County Court of Quarter Sessions. The plaintiff in error, Lords Rommel, was indicted by the grand jury of Essex county at the April term, 1924, of the Essex Oyer and Terminer. Rommel was the president of a corporation organized under the laws of Delaware, known as the Puritan Guaranty Corporation. ‘This corporation financed conditional sales contracts. The indictment was framed under a supplement to the Crimes act, approved March 28th, 1912. Pcimph. L„ p. 435. The indictment contained three counts.

The first count alleged that Rommel made or caused to be made a false statement of the financial condition of the Puritan Guarant}r Corporation; that this statement showed that the total assets of the corporation were $565,551.25, and the surplus undivided profits and reserves, $59,385.25; that the company was insolvent and the statement false, and that the statement was published and circulated with intent to deceive and defraud the stockholders and creditors of the corporation.

The second count was quashed, so this need not be considered.

The third count of the indictment charged Rommel with circulating this false statement in order to procure, upon the faith thereof and for the benefit of himself and of said corporation, the payment of $2,000 by Yernon Palk to said corporation. This count made the same allegations respecting the statement as were contained in the first count of the indictment. At the trial, the case was submitted to the jury on both the first and third counts of the indictment. Idle jury rendered a verdict of guilty.

The case is before us on a strict bill of exceptions. There are fourteen assignments of error. These have been divided by counsel for the plaintiff in error into groups or divisions. The first group are assignments from one to seven, and deal with the refusal of the court to charge certain requests made by the defendant. The second group are assignments from eight to eleven, inclusive, and deal with exceptions taken to the court’s charge. The third groups are assignments twelve and thirteen, which deal with the refusal of the court to direct a verdict for the defendant. The fourth division is assignment fourteen, which-relates to the refusal of the court to strike out certain testimony on motion made on behalf of the defendant. Assignment 15 deals with the rulings of the court on evidence.

The first point argued is with reference to the refusal of the court to charge a request of the defendant relating to insolvency. The request submitted embodied the definition of insolvency contained in various opinions in this state, dealing with the meaning of insolvency under the provisions of the Corporation act upon an application for the appointment of a receiver. The purpose of submitting such a request to charge was that if this definition were to be applied to the case of the Puritan Guaranty Corporation, that corporation would not have been insolvent owing to certain long-term bonds outstanding. The trial judge did not charge these requests. 'He also does not appear to have defined insolvency. In his charge he took up the assets as reported in the statements and explained in the testimony, and then said: “Was this statement knowingly false? * * * You may ask yourselves * * * whether * * * these items * * * if bad in airy respect, to what extent and in what respect they would reduce this item of $59,385.25 of surplus. * * * You may ask yourselves whether * * * when he made this statement there were facts within his knowledge of such character as would satisfy a man of ordinary intelligence and caution that the statement was false, and * * * if so, then you would have the right to draw the conclusion, the inference, that the defendant knew that this statement was false.” The state argues that it was unnecessary to charge the definition of insolvency. If it appeared that the estimated liabilities of the company exceeded the estimated assets, it was insolvent. The state then endeavors to- demonstrate that the liabilities did exceed the assets and that most of the assets were imaginary and inflated. The indictment charged, in the first place, in effect, that the assets of the corporation, were not as reported, and, in the second place, that the company was insolvent. If either of these charges were supported, the state contends that the crime was made out if knowledge were shown that the one responsible for the statement intended to procure money by it. If this position of the state is correct, then the defendant was not harmed, in any case, by the failure to charge the request submitted. The statute under which Rommel was indicted deals with the making and circulation of a false statement, in writing, respecting the financial condition of any person, firm or corporation in which the person making the statement is interested. It does not mention the question of the insolvency of the corporation. The allegations of insolvency were therefore unnecessary in the indictment. We think that it was unnecessary, under this aspect of the case, to charge the requests made in behalf of the defendant on the subject of insolvency. Moreover, in our opinion, the requests should not have been charged as the insolvency necessary to obtain the appointment of a receiver arises under the special provisions of the Corporation act upon this subject. Our decisions relating to this character of insolvency are based upon the statute, and do not treat the term insolvency in its ordinary sense. We think that insolvency in the ordinary sense was what was charged in the indictment.

The second point argued by the plaintiff in error is that the court erred in refusing to charge the defendant’s sixteenth request. The purpose of this request was to have the statement in writing alleged to have been circulated confined to Exhibit 8-4. 8-4 differed from Exhibits 8-2 and S-3. in that under the word “mortgages” there appeared the word “unpledged.” There was also an explanatory statement printed on 8-4. We think the request properly refused because it was a question for the jury as to whether or not 8-2 and 8-3, offered in evidence, were not statements circulated in the same manner as 8-4. If 8-2 and 8-3 were circulated, and there was evidence of their circulation, it would have been improper to confine the question of circulation of the false statement entirely to the circulation of Exhibit 8-i.

The third point argued, deals with a portion of the charge of the trial judge which the plaintiff in error claims was erroneous. The point made is that the jury might have been deceived by the broadness of the language used by the trial judge which might be construed to include something not contained in the indictment. We think it is unnecessary to consider this point at length, for the reason that in the supplement to the state of the case it appears that after the jury retired the court recalled the jury and expressly confined them in the decision of the case to what was charged in the indictment.

The fourth point argued deals with another excerpt from the court’s charge. In this part of the charge the trial court directed the attention of the jury to the fact that the statement set up assets of $565,551.25, which, the indictment says, is false, &c. In making these comments the trial judge defined assets as being "property generally regarded as applicable to the payment of debts.” It is contended that this was error. We see no' error in this statement.

The fifth point argued by the plaintiff in error is the eleventh assignment of error, which deals with that portion of the court’s charge in which the court commented upon the contention of the prosecutor with reference to the purpose of the defendant in disseminating the statements. It is contended that this comment was so worded that the jury might infer that it was a sufficient proof of the charge made. We can see nothing in this contention. The eleventh-assignment of error upon which it is based seems to us too broad to raise the contention made.

The sixth point argued is that the trial judge erred in refusing to direct a. verdict for the defendant on the first count. We think the facts fully justified the submission of the evidence produced under the first count to the jury.

The eighth point argued is the refusal of the trial .judge to direct a verdict for the defendant on the third count. In support of this contention the plaintiff in error argues that the Vernon Palk referred to therein testified that he did not rely to any extent on Rommel’s statements as he preferred to trust an associate of Rommel by the name of Plackmore. Notwithstanding the testimony of Palk, we think that he did rely in some measure on the statement in question. This is sufficient. The state argues that if there had been a verdict on the third count, the verdict rendered by the jury was a general one and would hold as to the first count. The state is supported in this contention by the case of State v. Huggins, 84 N. J. L. 254.

The eighth point argued in behalf of the plaintiff in error deals with the motion made by the defendant to strike out certain testimony of a witness by the name of Mahan. Mahan was a bookkeeper in the employ of the Merlon Corporation, w'hich was allied with the Puritan Guaranty Corporation. Mahan was directed by Rommel to gather from the books of the Merlon Corporation certain data for the statement circulated. Mahan testified as to the value of a certain merchandise inventory of the Merlon Corporation. He had not made this inventory. A motion was then made to strike out this testimony. This motion was denied. We think that it was properly denied. In the first place, the motion was made after the testimony had been admitted, and was therefore too late. In the second place, if it could be classed as hearsay testimony, it was hearsay testimony furnished by the defendant himself. In this aspect of the case it was competent.

The ninth point relates to the admission in evidence of the examination of Rommel before Mr. Richard Stockton, a receiver appointed by the Court of Chancery for the Puritan Guaranty Corporation. The reading of this testimony was not objected to in its entirety. After it was read objections were made to certain portions of it. It is now contended that by refusing to strike out the portions objected to that Rommel vras forced to give testimony which incriminated himself. This argument is not appealing to us because the time to object to the testimony was when it was taken by the receiver. We further think that the objections made in the present case came too late.

After a review of the entire ease we have reached the conclusion that the judgment of conviction should be affirmed. The judgment of conviction is accordingly affirmed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v CLARA BAILEY, PLAINTIFF IN ERROR.
    Submitted October 27, 1924
    Decided February 6, 1925.
    Crimes — Disorderly House — Allegation That Defendant was Not Shown to Have Been Connected With House Not Sustained —Defendant Neglected to Take Stand — Charge Regarding Reasonable Doubt Not in Form Approved in State v. Donnelly, but Does Not Come Within Rule of State v. Rosenberg — A “Reasonable Doiubt” Being One With a Reason, but Not Necessarily One Which the Doubter May Express in Words.
    On writ of error to the Atlantic County Court of Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    Por the defendant in error, Louis A. Bepeito.

    Por the plaintiff in error, Walter Comer (Ulysses G. Styron, of counsel)..
   Per Curiam.

This case is before ns on a writ of error directed to the Atlantic County Court of Quarter Sessions. The writ brings up the conviction of Clara Bailey, indicted at the January-term, 1924, of the Atlantic County .Court of Oyer and Terminer, for keeping a disorderly house. The case is before this court upon a strict bill of exceptions and upon specifications of causes for reversal. The entire record has been certified, to the court. The evidence for the state was furnished by two detectives. The defendant was a negrees. The disorderly house was alleged to have been located at 18 Surf place, in the city of Atlantic City. The detectives received information as. to the character of the house, and that the pass-word for entrance was “Mike the cabby sent us.” On December 17th tlie detectives rang the bell of this house. The defendant opened the door. They gave the pass-word and were admitted. They went into a parlor. There were three white girls there. Afterwards, a fourth girl entered the room. One of the detectives spoke to the fourth girl. They left the room together and were absent for some time. They returned to- the parlor. The detective handed $4 to the girl. She handed the defendant one dollar. The same detectives went to-the same house on the following evening, December 18th, 1923. One of the detectives went upstairs with a girl. He gave her $4. When she came down stairs she gave the defendant one dollar.

No evidence was offered by the defendant. A motion to direct an acquittal was made and denied and an exception taken. The ease was submitted to the jury, which returned a verdict of guilty.

Under the assignments of error and specifications of causes for reversal, the plaintiff in error first contends that there was no- proof of any conduct which constituted the premises a disorderly house or connected the defendant therewith. We cannot see the force of this argument. The defendant was connected with the house. She opened the doo-r, and, upon receiving the pass-word, admitted the state’s witnesses. She was present with the other inmates of the house. She received a portion of the money paid by the detectives to the girls who accompanied them upstairs. This evidence was sufficient, in our opinion, to entitle the state to- have the case submitted to the jury.

The next point urged for the reversal of the judgment of conviction deals with what the plaintiff in error contends was a misinstruction to the jury on the question of reasonable doubt. It is argued that this occurred when the trial judge spoke of the conduct of the defendant in not testifying. 'The court said on this subject: “Where the defendant, as in this case, sits mute after hearing the testimony pro* duced on the part of the state charging her with a crime, and fails to take the witness-stand in her own behalf and deny the evidence produced on the part of the state charging her with a crime, and where no. one else in her behalf takes the stand and denies the evidence produced by the state charging her with crime, her failure to take the witness-stand under such a situation may be considered by you in determining whether or not she had taken the witness-stand, would she have denied the crime charged against her in the indictment and supported by- the testimony produced on the pait of the state. Her failure to take the witness-stand under such circumstances, as a matter of law, may he« considered by you in determining whether or not she would have denied the charge had she taken the stand, and secondly, you may consider her failure1 to take tire stand and deny the crime charged against her in determining whether or not the state has satisfied you beyond a reasonable doubt of her guilt.”

It is contended that .the- definition of reasonable doubt given by the trial judge was incorrect, and must be considered with the portion of the charge above quoted. This definition was.: “The state., of course, is required to satisfy you beyond a reasonable doubt of her guilt — that is, the state must satisfy you to a point where you have an abiding conviction as to a moral certainty that she is guilty. If the state has so satisfied you, then, of course, it becomes your duty to find her guilty. If, on the other hand, after considering all the testimony produced on the part of the state, you have a reasonable doubt — that is, a doubt, existing for a reason, as to whether or not she is guilty, then the law requires you to' resolve that reasonable doubt in favor of the defendant and find her not guilty.” We can see no error in the portion of the charge quoted which states that the jury could take into consideration in determining whether or not the state had satisfied them beyond a reasonable doubt of the guilt of the defendant, the failure of the defendant to take the stand in her own behalfl All that the court meant was that this action or non-action of the defendant in not taking the stand was a circumstance which could be taken into account by the jury with other circumstances in determining the guilt or innocence of the defendant. This was true. The court did not say that the failure of the defendant to testify was evidence of guilt.

The definition of reasonable doubt given by the trial judge departs somewhat from the form approved in State v. Donnelly, 26 N. J. L. 601, and State v. Linker, 94 Id. 412, and is challenged by the plaintiff in error. The contention made appears to be that by the two parts of the charge quoted the jury were permitted to consider lack of evidence as an element to be taken into account in. determining the guilt of the defendant. This was permitting the jury to take into consideration, to the prejudice of the defendant, an element which they should not have been permitted to consider.

This attack appears to have been suggested by the case of State v. Rosenberg, 118 Atl. Rep. 207, where the following charge on the subject of reasonable doubt was held erroneous: “A doubt respecting bis [the defendant's] guilt arising from the evidence, or from the lack of evidence, for which you as reasonable men can give a good and sufficient reason.” This court said with respect to' this language: “This statement was inaccurate and harmful. It is observable that the learned judge makes the existence o£ a reasonble doubt depend upon the condition, that where a juror’s mental state, after hearing the evidence, is such that he can give a good and sufficient reason for the doubt he entertains. This view is antagonistic to the settled law of this state.”

This criticism raises the further question whether in the use in the present case of the language, “If, on the other hand, after considering all the testimony produced on the part of the state, you have a reasonable doubt, that is a doubt existing for a reason, as to whether or not she is guilty, then the law requires yon to resolve that reasonable doubt in favor of the defendant and find her not guilty.” The charge is subject to the same criticism as made in the case of State v. Rosenberg, supra. We do not think that the trial judge said in the portion of the charge complained of that the jury could consider “lack of evidence,” so we will make no further comment on this phase of the contention made in behalf of the accused.

In the Rosenberg case the error, as pointed out, was in stating that only a doubt for which the jury as reasonable men could give a good and sufficient reason was a reasonable doubt. A juror may have a reasonable doubt without being able to give a good and sufficient reason fox the doubt. In the charge under consideration we do not think that the words “a doubt existing for a reason” implied the same thought or idea as the words used in the charge in the Rosenberg case. A reasonable doubt is a doubt existing for a reason. One may have a reasonable doubt which he is unable to express in words, but it is, nevertheless, a reasonable doubt. There is a reason which exists for any reasonable doubt, although the doubter may be incapable of expressing the reason for its existence. We, therefore, think that the present case is distinguishable from the Rosenberg case, and that the defendant below was not harmed by what the trial judge said on the question of reasonable doubt.

The last point argued for the plaintiff in error deals with a statement made by the trial judge when counsel took an exception to the portion of the charge commenting on the failure of the" defendant below to testify. The trial court said: “The law does not hold that.” What the court said was correct. Counsel, in taking the exception, stated the law inaccurately. It is urged that what the court said might have misled the jury to tire prejudice of the defendant.

It is difficult to see how a conviction can be set aside because of a misstatement of the law by defendant’s counsel, to which the court said nothing more tiran that the law did not hold as counsel said it did. The method which should be taken to secure either the charging of the correct principles Of law governing á case or a good exception is by the preparation and submission of requests to charge.

The judgment of conviction is affirmed.


author: Peb Cluiam.

text:
    SAMUEL SABSEVITZ, PLAINTIFF-RESPONDENT, v. GREENVILLE AUTO SALES COMPANY, DEFENDANT-APPELLANT.
    Argued October term, 1924
    Decided February 13, 1925.
    Replevin — Automobile Held for Payment for Repairs — Tender of Amount Claimed to be Due by Plaintiff — Alllegation of Additional Charges Disputed — Garage Keepers’ Act, as Amended, Permitted Owners to Obtain Possession Upon Giving Bond in Double Amount Claimed.
    Before Justices Tbbnchabd, Mintpex and Lloyd.
    Eor the defendant-appellant, Edward J. Eorton.

      For the plaintiff-respondent, Eugene B. Hayne.

   Peb Cluiam.

This was an action of replevin, brought in the Second District Court of Jersey City, to recover possession of plaintiff’s automobile. The automobile had been purchased from the defendant, and plaintiff’s evidence was that the radiator being defective the defendant promised to replace it, but neglected to do so until the radiator froze, because of the defects.

It is admitted that the plaintiff tendered to the defendant $31.75, conceded to be due for repairs other than repairs to the radiator, but the defendant demanded $87.60, the difference being the cost of replacing the radiator. The jury found for the plaintiff.

It is contended that the court erred in refusing a nonsuit, because it was admitted that at least $31.75 was due the defendant. If the creditor fraudulently claimed more than was due he lost his lien, but not if his claim was made in good faith. Even if the excessive claim was in good faith, it was still in the power of the debtor to discharge the lien by a payment or tender of the sum actually due, since the creditor could not keep' the lien alive by refusing to accept the amount due. Kiss v. Ambrose, 97 N. J. L. 442.

The object of the 1922 amendment to the Garage Keepers’ act (Pamply. L. 1922, ch. 231) was to permit owners of automobiles to obtain possesion of the same upon pajunent into court of the amount demanded (plus a sum as security for costs); or, at the option of the owner, upon providing a bond in double the amount claimed, instead of furnishing a bond in double the value of the automobile, as theretofore. The fact that the penalty of the bond by the 1922 amendment is more than double the amount claimed under the statutory requirement cannot be said to be prejudicial to the defendant.

The judgment will therefore be affirmed.


author: Per Otjriam.

text:
    LOUIS WATERMAN ET AL. v. MAX TAUB.
    Argued October term, 1924
    Decided February 13, 1925.
    Contracts — To Recover Damages for Breach of Agreement to Take Title to Property — Alleged Unmarketability of Title— Burden of Unmarketability on Purchaser was Not Sustained ■ — .Wail Encroachment of Half Inch, and Sidewalk Encroachment, in the Absence of a Violation of Municipal Ordinance, Insufficient.
    Before Justices Tren chard, Minturn and Lloyd.
    Eor the plaintiff, Morris Umanslcy (Julius Lichtenstein, of counsel).
    Eor the defendant, J. Raymond Tiffany.

   Per Otjriam.

Plaintiff and defendant entered into a mutual contract for the sale and exchange of certain real estate. Plaintiff tendered performance on his part, defendant being the vendee. Plaintiff brought this, suit in the Eirst District Court of Jersey City to recover $500 damages alleged to have been sustained by plaintiff for search fees and broker's commissions., and the trial judge, sitting without a. jury, gave judgment for the plaintiff for $477.46.

The defendant insisted that the plaintiff did not have a marketable title, and that snch title as he had was not in accordance with the terms of the contract, which was, that the locus in quo was to- be conveyed subject to two mortgages, and also subject to a sewer easement, and the easement of existing party walls.

The burden of proof of the non-marketability of the title admittedly was upon the purchaser. The trial judge, in his conclusion, held that the title was marketable, and that it was subject to no encumbrances other than those specifically recognized in the contract.. The alleged encroachment was a wall deviating one-half inch from a direct course, and a special encroachment on the sidewalk of from one to nine inches. The trial judge, however, seemed to consider this immaterial, and that conclusion, we think, may be sustained. The reference in the- contract to the party wall we consider is sufficient to eliminate- the wall encroachment of half an inch, and the encroachment on the- sidewalk, in the absence off a showing that it was. contrary to a municipal ordinance, we think is insufficient to- render the title- unmarketable. Such seems to be the effect of our decision in Scheinmann v. Bloch, 117 Atl. Rep. 389; affirmed, 119 Id. 936. In any event, proof of the facts was unsatisfactory, so that the co-urt might be justified in finding them not sustained by the proof.

The judgment will therefore be affirmed.


text:
    JOSEPH J. GARIBALDI v. MAX TAUB.
    Argued October term, 1924
    Decided February 13, 1925.
    Sale oif Real Estate — 'Broker’s Commissions — Alleged Exchange Rather Than Sale — 'Consideration Involved Both Money and Mortgages — Contract of Siale Placed Money Value for “Purposes of the Contract” — This is Sufficient Evidence of Value.
    Before Justices Trenohaed, Minturx and Lloyd.
    For the plaintiff, Morris Umanslcy (Julius Lichtenstein, of counsel).
    For the defendant, J. Raymond Tiffany.

   Per Curiam.

This action was brought in the District Court of Hoboken to recover broker’s commissions for negotiating the sale of certain realty. The judgment was for plaintiff for $452.34. The contract was as follows:

“In consideration of j’our listing and undertaking to sell the premises described on the other side for the sum of $12,000, or any other sum which I may accept, I hereby authorize you to sell the same, and agree to pay you three and one-half per cent, of the purchase price as commission upon procuring a purchaser. I also agree to give you the sole and exclusive right to sell the within premises for a term of three months, and further agree that your exclusive right to sell shall not terminate at the expiration of the said term unless I notify you to that effect.
Max Taub.”

The first point urged for reversal is that the contract negotiated was one of exchange and not of sale, and that the plaintiff had no written authority to effect an exchange of the property.

The transaction as consummated involved both money and mortgages, and was therefore a sale, and not the technical common law exchange contemplated by the statute. Haber v. Goldberg, 92 N. J. L. 367.

It is next urged that the defendant’s liability for commissions is less than the amount awarded by the trial court. The defendant argues that there is no evidence of the price or value of the realty upon which to calculate commissions. The broker’s contract was to sell for $12,000, or any other sum acceptable to defendant. The contract of sale places the value of the property, “for the purpose of the contract,” at $12,000. There was in this mutual admission sufficient evidence upon which to base the finding of the trial court that the property was valued at $12,000.

The judgment will therefore be affirmed.


author: Lloyd, J.

text:
    BESSIE M. TOMPKINS ET AL., PLAINTIFFS, v. THE BURLINGTON ISLAND AMUSEMENT COMPANY ET AL., DEFENDANTS.
    Decided February 13, 1925.
    Costs — Taxation—Action in the Alternative Against Several Defendants — Judgments Against Two Defendants, Nomsuits Against the Others — Defendants’ Costs Taxed in a Single Bill- — Separate Answers Filed — -Several Defendants Entitled to Separate Bills, Taxed in Accordance with- Verdict.
   The opinion of the- court was delivered by

Lloyd, J.

The plaintiffs, Bessie- M. Tompkins and her husband, Harry Tompkins, brought suit in the Supremo Court to- recover damages sustained by Mrs. Tompkins, alleged to have- been caused by the- negligence of the defendants “or one of them,.” The accident in which the injuries arose occurred on an island in the- Delaware river, which was used, as an amusement place, and alleged to have- been maintained b}T the defendants “or one of them.” The complaint being thus in the alternative, was replied to- 'by the defendants in separate answers. The case proceeded to trial in the Burlington Circuit and resulted in a verdict against Robert Marple and the Burlington Island Park Company. Nonsuits were granted as to- the other defendants-. When the costs were taxed by the clerk of the Supreme Co-urt they were taxed in a single bill of costs, The mattér is before me on a motion for a retaxation, the defendants, as to- whom a nonsuit was granted, claiming to> be entitled to have their costs taxed in separate bills.

Section 1 of the “act concerning fees and costs and the taxation thereof in the courts of law in this state” (Pamph. L. 1911, p. 756) provides—

“1. The prevailing party in -any action, motion or proceeding in the courts of law in this state shall be entitled to costs except where otherwise provided by law, and unless the court or judge before whom such action, motion or proceeding shall be taken shall order otherwise.”

Section 5 provides that taxation or retaxation of costs may be reviewed by the co-urt upon a motion for new taxation, and that upon such motion the court may order a new taxation before the proper officer.

Substantially, this is the application presented to> me, and presents the question of the prop-riet3''.of the taxation as made by the clerk. It will be observed that the action is in the alternative as set forth in the complaint filed, in that it is alleged that all of the defendants, or one of them, had committed the wrongs complained of. Whether this be in strictness alternative pleading as contemplated by the Practice act of 1912, it is certainly not a complaint against the defendants in the conjunctive.' They are not made defendants to a common cause of action. On the contrary, separate and individual answers are invited by the form of the pleading to” which they are called on to respond. Availing themselves of this right, the defendants filed separate answers. It is true these answers are in identical form, but they are separate and distinct, and for each answer the particular defendant alone is responsible. In this situation it seems to me the defendants have been brought separately into court, having answered separately, and being absolved from liability by the judgment finally entered in the cause, were entitled to have their costs individually and separately taxed. The only thing that any of them apparently have in common is that they are brought into court on the same process. This does not give the plaintiffs a right to deprive them of the costs which they would have recovered had they been sued in separate actions. In theory of law, no matter what may have been the fact of the particular case, each defendant waá subject to the necessity of employing counsel, of filing his papers and incurring the expenses of the litigation. It would seem that the costs accruing under these circumstances are those which would have accrued had the parties been the sole defendants in different actions,

The costs will he retaxed by the clerk in accordance with the views herein expressed.


author: Pee Cueiam.

text:
    IN RE APPLICATION OF WILLIAM H. VON TISH.
    Submitted January term, 1925
    Decided February 13, 1925.
    On application for modification or reversal of ruling In re examination of attorney's license.
    Before Justices Tkknciiakd, Mixteen and Lloyd.
    For the application, William E. Von Tisli (care Smith & Slingerland).
   Pee Cueiam.

Our examination of the annexed papers (correspondence with judges and letter of the clerk) satisfies us that the clerk is right in the ruling contained in his letter, and we decline to make any order.


text:
    STATE v. JOHN BRESKO.
    Decided February 19, 1925.
    Crimes — Rape—Writs of Error — Exceptions—Case for Common Law Review! — Exceptions Not Authenticated — Settled That in Criminal Cases, Except Those Under Criminal Procedure Act, Section 136, Court Will Not Consider Unauthenticated Exceptions.
    On error to the Middlesex Quarter Sessions.
    Before Gummebe, Chiee Justice, and Justices Paekee and Katzenjbach.
    For the plaintiff in error, Richardson & Lyons.

    Por the state, Joseph E. Siriclcer, prosecutor of the pleas.
   Pee Cueiam.

The defendant was convicted upon an indictment charging him with rape upon the body of one L. C. The record sent up with the writ of error discloses that the case comes before us in the shape of a common law review, and not a certified case in conformity with the one hundred and thirty-sixth section of the Criminal Procedure act. The assignments of error are^ each of them, directed at alleged erroneous rulings of the court with relation to evidence offered at the trial and other matters occurring during the course thereof, and with relation to the charge to the jury.

It is enough to say, in disposing of the case before us, that, although the rulings of the court referred to in the assignments were apparently made the subject of exceptions, none of these exceptions have been authenticated by the signature and seal of the trial judge, and this applies also to those assignments relating to the charge to the jury. It is entirely settled that, in criminal cases, other than those which come up for review under section 136 of the Criminal Procedure act, the court of review will not consider exceptions unless they have been authenticated. State v. Savage, 79 N. J. L. 583; State v. Ramage, 91 Id. 435.

The conviction under review will be affirmed.


author: Per Curiam.

text:
    STATE v. JACOB BUYER.
    Decided February 19, 1925.
    Crimes — Breaking and Entering, &c. — Alleged Verdict Against Weight of Evidence — Case on Strict Bill of Exceptions, Not Under 136th Section of Criminal Procedure Act — Only Where Entire Record is Taken Up May This be Assigned for Error —¡Where Verdict Cannot be Supported as to One or More of the Crimes Charged, It Will be Upheld as to Single Good Count.
    On error to Passaic Quarter Sessions.
    Before Gummeef, Chief Justice, and Justices Parkek and Katzenvbach.
    For the plaintinff in error, John O. Benson.

    For the state, J. Willard De Yoe.

   Per Curiam.

The grand jury of Passaic county presented an indictment against Buyer, the plaintiff in error, and others', containing five counts, two of them charging breaking and entering with intent to steal, one charging entering with the same intent, a fourth charging grand larceny, and a fifth charging a reception of stolen goods and chattels, with knowledge that the same had been unlawfully stolen, taken and carried a,way. Buyer was put on trial upon this indictment, the other parties named therein, apparently, never having been apprehended. At the close of the trial the jury returned a verdict against him of guilty “in manner and form as by the indictment is charged against him.”

The first ground upon which we are asked to set aside the conviction entered upon this verdict is that the finding of the jury was against the weight of the evidence. But this case comes before us on strict bill of exceptions, and not under the provisions of section 136 of the Criminal Procedure act; and it is only in those cases where the -plaintiff in error has elected to t.ake up the entire record with his writ of error, as provided in section 136, above referred to, that he may assign as error that the verdict was against the weight of the evidence. See statute, Pamph. L. 1921, p. 951.

The next contention is that the verdict cannot be supported because of its genérality, the argument being that the proofs submitted conclusively showed that the property which had been stolen was feloniously taken by persons other than the defendant, and that, consequently, there could have been no valid conviction upon the first four counts. But it is entirely settled that where there are several counts in an indictment, each charging a distinct crime, a general verdict of guilty means a separate conviction of each separate offense, and, consequently, even if the verdict cannot be supported as to one or more of the crimes charged, it will be upheld as to the offense described in a single good count. State v. Huggins, 84 N. J. L. 254.

The last ground upon which we are asked to reverse the conviction is that the sentence pronounced was faulty because it did not comply with the provisions of the Crimes act with relation to indeterminate sentences, the statute declaring that every such sentence shall specify the exact nature of the crime of which the defendant is convicted. But this matter is not assigned for error, and, therefore, is not before us for consideration.

The conviction under review will be affirmed.


text:
    HALLIE BOYD v. WILLIAM HUSTED. MARY ETTA BOYD v. WILLIAM HUSTED.
    Decided February 19, 1925.
    Negligence — Motor Vehicle Collision — Evidence Examined and Verdict Not Found Against Its Weight — Verdict Not Excessive — Selecting Jury — Court Refused to Defendant Leave to Ask the Twelve Jurors, Before Being Sworn, Two Omnibus Questions, Sustained — Right Conferred by Statute is the Questioning of Single Juror — Questions Asked, Held, Not to Have Been Justified by Statute — -Granting a Continuance, Matter Within Sound Discretion of Court, Not Abused in This Instance.
    On defendant’s rule to slioiv cause.
    Before Gummere, Chief Justice, and Justices Parker and Xatzenbach.
    For the rule, William E. Ifohnwood.

      Cottlm, George B. Marshall.

   Per Curiam.

Each of these suits, was brought to recover compensation for personal injuries received by the respective plaintiffs. In the first suit compensation was also' sought for damage done to an automobile owned by TTallie Boyd. The injuries and damage alleged were received in a collision between an automobile belonging to Halide Boyd, in which both of the plaintiffs were riding, and a car belonging to the defendant. Hosted. The collision occurred at the intersection of üvo roads in Gloucester county. The two cases were tried together, and the .trial resulted in 'verdicts in favor of the plaintiffs. Hpon application of the defendant, each of: the rules how before us was allowed. The first ground upon which we are asked to set these verdicts aside is that they are, each of them, against the weight of the evidence; being necessarily based upon a finding of the jury that the collision occurred’ solely by reason of the carelessness of the driver of the defendant’s ear. Our examination of the'proofs returned with the rules satisfies us that the jury was justified in so finding, and that the verdicts should not be interfered with for this reason.

The next ground'for making these rules absolute is that each of the verdicts, as the defendant contends, is excessive. We do not think the contention is justified by the fact. The a,war'd-to Hallie-Boyd was $1,250, and that to Mary E. Boyd was $2,500.' The jury was justified in finding that Hallie Boyd was quite seriously hurt; that she suffered, not. only from braises which were -the direct result of the collision, but also from shock, which so affected her nervous condition that she has not yet recovered therefrom. She was confined to her bed for a week after the accident, and was compelled to spend about $185 in having her car repaired. As to Mary E. Boyd, the jury was justified in finding that she received a severe cut upon the head, leaving an ugly scar as the result thereof, and ■ that the head injury has caused persistent headaches, from which she still suffers. Se was confined to her bed for four weeks 'and was compelled, to spend $158 for medical attendance and nursing.

The next contention is that the trial judge improperly refused to permit the defendant to' ask the twelve jurors, after they had been drawn and taken their places in the jurabox, but before airy of them had been sworn, whether any of them had been sitting on any case that had been tried during the term with Miss Hallie Boyd, who was a member of the general panel, and also1 whether any of them was acquainted with Mr. Marshall, the attorney of the plaintiffs, or had had business dealings with his office. It is argued that the right to question jurors in the manner indicated is conferred upon a party to a litigation by section 23 of “An act concerning jurors,” passed in. 1911. Comp. Stat. Supp., p. 841. But, in our opinion, the section appealed to has not the scope attributed to it. It provides that “either party, or his attorney. may question any juror, alter his name is drawn from the box and before such juror is sworn, for the purpose of eliciting information upon which he may determine whether or not to interpose a, peremptory challenge. Within the discretion and under the control of the court, such questions shall be permitted for the purpose of disclosing whether or not the juror is impartial as between the parties to the suit and without interest therein or in result thereof.”' The right conferred by the statute is the questioning of a single juror, and this must be done separately, if the right is desired to be exercised with reference to more than one, for-the purpose of eliciting from the member of the panel who is questioned the matters referred to in the statute. It does not authorize an omnibus examination of all of the twelve men whose names have been previously drawn from the general panel. 3?or this reason, the ruling of the trial court was entirely proper. We may add that neither of the questions which were the subject of the ruling was justified by the statute. Only those questions are permitted which tend to disclose whether or not a juror is impartial as between the parties to the suit and Without interest in the suit or in its result. The fact, if it existed, that one or more of the twelve men whose names were drawn had been sitting on any case in which Miss Hallie Boyd acted as a juror, had no tendency to show a lack of impartiality of such juror as between the parties to the suit. And this is equally true as to the fact that some of the members. of the jury were acquainted with counsel for the plain-, tiffs or had had business dealings with his office.

The only other ground upon which we are asked to set these verdicts aside is that this court erroneously refused to grant a continuance of the causes until a later time, because of the fact that Miss Hallie Boyd was a member of the then present panel. The granting or refusing of such an application is a matter within the discretion of the trial court, and we cannot say that this discretion was abused by the refusal to grant the continuance. On the contrary, in our opinion, the action of the trial judge in this respect was entirely proper.

The rules to show cause will be discharged.


author: Pee Ctjbtam.

text:
    STATE v. BERNARD KATZ.
    Decided February 19, 1925.
    Crimes — Receiving Stolen Goods — Claim Thiat Defendant Did Not Know, and Afterward Made Restitution, Not Sustained —Judge’s Charge Sustained.
    On error to the Essex Quarter Sessions.
    Before Gummeke, Chiee Justice, and Justices Pakkeii and Katzenba ci-t.
    Eor the plaintiff in error, Milton 21. TJng’er.

    For the state, John O. Bigelów, prosecutor of the pleas.
   Pee Ctjbtam.

The defendant was convicted upon an indictment which charged him with receiving six tubs of butter, belonging to the G-reat Atlantic and Pacific Tea Company, knowing them to have been stolen.

The first assignment of error attacks a ruling of the trial court in admitting evidence over the defendant’s objection. The matter came up in this way. The defendant, in attempting to exonerate himself from the charge laid against him, testified that none of the six tubs of butter referred to in the indictment (and which were found in his possession) had marked thereon the name of the Great Atlantic and Pacific Tea Company. The state, upon rebuttal, produced and offered, in.evidence one of these tubs, which contained the name of the tea. company .stenciled thereon. The other five tubs being then in the court room, and in the custody of the state, counsel for the defendant objected to. the. admission in evidence of the .marked tub unless the state also offered the other five tubs. This the state refused.to do, and the trial court thereupon admitted the marked tub in evidence. The defendant now contends that in doing this the court committed harmful error. We are unable to perceive any ground of support for this contention, even with the help of the brief of counsel. As has been pointed out, the defendant had declared upon the witness-stand that not a single one of the six tubs of butter was marked with the name of the tea company. The materiality of the fact is apparent, and his denial of its existence was absolute. The marked tub which was received in evidence was a direct contradiction of his statement, and the state was entitled to have that tub submitted to the jury for the purpose of affecting his credibility, without regard to whether or not the other five tubs were similarly marked.

The next ground upon which we are asked to reverse this conviction is that the court erred in charging the jury as to the evidential effect of the failure of the defendant to produce a check which he claimed to have given in payment of the tubs of butter, under the belief that they had honestly come into the possession of the vendor, and the court’s comment upon the fact that the stub which was produced as the complement of this check showed that the check itself had been given in payment of fruit purchased by the defendant. It is argued before us that, by the trial judge’s statement with relation to these matters, he “assumed the existence of certain facts instead of leaving their existence or non-existence to be determined by the jury.” But an examination of the charge shows that this contention is without basis. The court expressly instructed the jury that they were the exclusive judges of the facts and must disregard any statements by the court as to what was present or not present in the evidence, unless such statements coincided with their own recollection. It is entirely settled by our decisions that so long as the right and duty of the jury to decide for themselves all disputed questions of fact is pointed out in the charge, it is entirely proper for the trial judge to give jurors the benefit of his greater experience by telling them how the testimony strikes his mind, both as to its force and as to the inferences the court would draw from it. State v. Hummer, 73 N. J. L. 714; State v. Kaskevich, 98 Id. 23.

The only other assignment of error is directed at the refusal of the trial court to charge the following request: “In order to convict the defendant, it must b'e proved that he received the goods knowing that they were stolen, and this knowledge must be proved as of the time they were received. It is not sufficient to prove that the defendant had suspicions, because, although suspicious circumstances may be a part of the circumstances from which knowledge may be inferred, the jury must be satisfied that these circumstances were of such a character as to lead to the conclusion that the defendant knew the goods were stolen.” It is enough to say, in disposing of this assignment, that so much of the request as was material and accurately stated, the law, with relation to the subject-matter dealt with therein was, in fact, charged by the trial judge. The request, as a’ whole, was, we think, legally inaccurate, for although the circumstances from which knowledge might- be inferred, standing alone, might not lead to the conclusion of guilt, yet, when taken in connection with other facts proven in the cause, they might demonstrate guilt beyond a reasonable doubt.

The conviction under review will be affirmed.