text:
    WILLIAM GOTTLIEB AND HENRY STEIN, PLAINTIFFS-APPELLANTS, v. PHILIP N. CONNOLLY, DEFENDANT-RESPONDENT.
    Submitted October 15, 1926
    Decided March 15, 1927.
    Sale of Real Estate — Agents’ Commissions — Agents Produced a Customer Ready to Buy Until it was Ascertained That There was Not as Much Land as the Vendor Had Believed — Contract With Agent Satisfied the Statute of Frauds, but There was no Consideration, and Void Therefor — Judgment For Defendant Affirmed.
    On appeal from a judgment of the District Court for the Fourth Judicial District of Bergen county.

      Before Justices Kalis oh, Katzekjbach and Lloyd.
    For the appellants, Filbert L. Bosenslein.

    For the respondent, Warner W. Westervelt, Jr.

   Per Curiam.

This is an appeal by the plaintiff below (hereinafter called the plaintiffs) from a judgment of the District Court of the' Fourth Judicial District of Bergen county rendered for the defendant upon a counter-claim. The plaintiffs were real estate brokers. The defendant, Philip N. Connolly, was the owner of a property at Woodcliffe Lake, New Jersey, which he was desirous of selling for $7,000. The plaintiffs produced a purchaser by the name of Benjamin Petshaft. Connolly and Petshaft entered into an agreement for the sale and purchase of the property for $7,000. In the agreement the property was described by metes and bounds and the amount of land was recited as being “seven acres more or less.” On the hack of a receipt given by Connolly to Petshaft, Connolly wrote the words: “Commission of $600 on this sale to be paid to Wm. Gootlieb and Henry Stein,” and signed his name thereto.

A survey of the property was afterwards made. The survey showed that instead of there being seven acres there were only four and sixty-five one hundredths acres. Petshaft refused to accept a deed for the property because of this difference in the acreage. The discrepancy was admitted. A settlement was then made between Connolly and Petshaft by which Connolly returned to Petshaft the amount Petshaft had paid. Petshaft released Connolly from his obligations under the agreement of sale. Connolly refused to pay the plaintiffs the balance of the commission of $600, namely, $400. They commenced suit to recover the balance. Connolly filed a counter-claim for the $200 which he had paid. The case was tried by the judge without a jury. In the findings made by him he held that Petshaft, the purchaser produced by the plaintiffs, was unwilling to consummate the purchase on the terms of Connolly, namely, the payment of $7,000 for the property; that the misunderstanding as to the amount of .the land was a mistake in fact and not induced by fraud on the part of Connolly. The trial judge further held that there was no meeting of the minds of Connolly and Petshaft when the agreement of sale was executed; that as a result thereof it made no difference whether the endorsement on the receipt made by Connolly to pay the plaintiffs $600 was within the •provisions of the statute of frauds or not; that plaintiffs had not performed their contract and had not earned their commission because they had not produced a purchaser ready, willing, and able to make the purchase on the terms of Connolly; that as a matter of law the contract for the commissions was without consideration; that the plaintiffs were not entitled to recover the $400, and that Connolly was entitled, because of the failure of the plaintiffs to perform their contract, to a recovery of the $200. The court gave a judgment to Connolly for this amount upon his counter-claim.

The appellants argue that the contract for commissions satisfied the statute of frauds. This is immaterial. The position taken by the trial court on this question is correct. While the contract in form did satisfy the statute of frauds, there was no consideration for it. It was void for this reason. The appellants further argue that they did produce a buyer ready, willing, and able to purchase on the terms of the owner. There is no need of discussing this point because the findings of the trial judge are contrary to this contention. This court will not reverse a District Court upon a finding of fact if there is evidence to support it. Duff v. Prudential Insurance Co., 90 N. J. L. 646. The plaintiffs-appellants further contend that a valid contract was entered into between Petshaft and Connolly. This was not so, for the shortage in acreage which the trial court found material made the contract void through mistake. It would have been impossible for Connelly to have held Petshaft upon this agreement because of this discrepancy in acreage.

We see no error in law made by the trial court. The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. DOMINICK DeBELLIS, PLAINTIFF IN ERROR.
    Decided March 17, 1927.
    Crimes — Robbery—Defendant, With Two Others, Indicted — One was Tried Separately and the Other, at the Trial, Pleaded Guilty and Became a State Witness — Held, No Error in This —Ample Evidence of Guilt Notwithstanding Claim of Accessory Before the Fact.
    On error to the Hudson County Quarter Sessions Court.
    Before Justices Kalis oh, Katzenbaoh and Lloyd.
    Por the plaintiff in error, William A. Kavanagh.

    Por the defendant in error, John Milton, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was indicted, together with John DeBellis and Joseph Rupprecht, alias Joseph Dunn, alias Charles Anders, alias Red Ruppert, for having perpetrated four robberies committed at the same time and place on each of the complaining victims. A severance was granted as to -John DeBellis; and the plaintiff in error, and Joseph Rupprecht were put on trial. After a jury was impaneled, counsel on behalf of Rupprecht stated to the court that Rupprecht desired to withdraw his plea of not guilty and enter a plea of guilty, which request was granted. The trial then proceeded against the plaintiff in error alone. Rupprecht appeared as a witness on behalf of the state. The plaintiff in error was convicted on all four indictments, which, by consent of respective counsel, were tried together. Judgment having been given on the convictions had, the plaintiff in error comes before this court on strict writ of error and under the one hundred and thirty-sixth section of the Criminal Procedure act.

The first ground relied on and argued in the brief of counsel of plaintiff in error for reversal is that the court erred in allowing 'Joseph Rupprecht to plead guilty in the presence and hearing of the jury. This objection is substanceless, and needs no comment, except to say that at the time the offer was made to plead by Rupprecht, counsel of plaintiff in error sat quietly by and made no objection. But even if he had it could not have been of any avail, since the practice of taking pleas of guilty of co-defendants in the presence of the jury is a common one and its legal propriety has never been questioned. The second point argued- and urged for a reversal is that the court erred in refusing to, direct a verdict of acquittal at the conclusion of the state’s case.

A fair reading of the testimony offered by the state makes it manifest that there was ample proof of the participation of the plaintiff in error, in the perpetration of the robberies. The insistence of counsel of plaintiff in error is that, according to the testimony, the plaintiff in error was an accessory before the fact and hence could not be convicted on an indictment which charged him as a principal only. There was not only proof adduced by the state that the plaintiff in error had planned the robbery but that he drove his accomplices in an automobile, which was borrowed by him of his brother, to within fifty or one hundred feet from the place where the robberies were committed, and where he stopped his car and his companions got out, to one of whom he handed a revolver, obviously to aid in perpetrating the robbery. It further appears that after the robberies, the proceeds thereof were divided, of which the plaintiff received his share. The third and last point argued in brief of counsel of plaintiff in error for a reversal is that the verdict is against the weight of the evidence and against the evidence. There is no merit in this contention. The testimony was ample to warrant a jury to convict the plaintiff of the robberies as a principal, as indicated.

Judgment is affirmed.


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    MARY E. PHILLIPS, PLAINTIFF, v. HATTIE ADAMS, DEFENDANT.
    Argued October 6, 1926
    Decided February 14, 1927.
    Negligence — Injury to Tenant Through an Alleged Faulty Sidewalk — Defendant Allowed Judgment by Default — Afterward Conveyed Property to Daughter — Suit to Set Aside Conveyance Begun, and Decree For Complainant Entered — Motion to Open Judgment — Though Delinquent, it Appears That Defendant is Not Mentally Entirely Responsible and There is Some Evidence of a Good Defense.
    On defendant’s rule to show cause why judgment by default should not be opened.
    Before Justices Kalis oh, Katzenbaoh and Lloyd.
    Por the rule, Samuel Morris.

      Contra, Carlton Godfrey and William I. Garrison.

   Per Curiam.

This case is before us on a rule to show cause allowed the defendant why a judgment entered against the defendant by default should not be opened and the defendant be permitted to file an answer. The action was instituted to recover damages for personal injuries. Judgment was entered by default. An assessment of damages was made by a sheriff’s jury. The plaintiff was awarded $10,000. The defendant, a woman fifty years of age, owned a property designated as No. 609 Arctic avenue, Atlantic City. Upon the rear of the premises there was a building containing an apartment. The defendant rented this apartment to the plaintiff. The approach was by way of a walk which the plaintiff was using when, as she claims, she fell and received the injuries for which she brought suit. The fall was on February 2d, 1926. On March 27th, 1926, the suit was begun. A summons and complaint was served personally on the defendant. No defense was interposed. On April 22d, 1926, an interlocutory judgment was entered. On June 7th, 1926, a copy of a writ of inquiry and notice that the same would be executed on June 25th, 1926, was served personally on the defendant. The assessment of damages was duly made. On July 12th, 1926, an order for entry of judgment final was signed. The defendant had in the meantime conveyed the property to a daughter. After entry of judgment a bill was filed by the plaintiff in the Court of Chancery to set aside the conveyance. A subpoena ad respondendum was served personally on the defendant. No answer was filed by the defendant in the Chancery proceeding. On August 20th, 1926, a decree was entered setting the conveyance aside. The defendant knew that a judgment for $10,000 had been entered against her. She wrote to the sheriff about it and enclosed a cheek for one dollar to be applied on the judgment. The present rule was allowed on August 27th, 1926.

Notwithstanding the legality of the plaintiff’s procedure, the apparent gross inattention on the part of the defendant, and even fraud in the transfer of her property, we have reached the conclusion that this judgment should be opened on terms and the defendant permitted to interpose a defense. This view is due to the medical testimony taken under the rule from which it appears that the defendant is undergoing a change of life, and at times is in a mental condition which makes it impossible for the defendant to attend to her affairs as a normal person would. Her ailment is what is called an anxiety neurosis, that is, an anxiety for something. The plaintiff’s mother was deranged during the latter part of her life. While not insane, the plaintiff is to some extent unbalanced mentally as evidenced by the payment of one dollar to the sheriff on a'ccount of a $10,000 judgment.

From the testimony taken under the rule it would also appear that there is some question as to the liability of the defendant. The 'walk upon which the plaintiff claims she fell is alleged to have been a boardwalk, dilapidated and rotten. There is testimony that the plaintiff fell upon a cement walk which was in good condition. The plaintiff was also subject to spells oí dizziness. The judgment as to amount is also large for the injuries received by the plaintiff.

We feel for these reasons that the defendant’s property should not be taken to satisfy the judgment obtained without her having a day in court. The defendant will be permitted to file an answer within ten days from the filing of this opinion upon complying with the following conditions: first, that she consent to the case being placed on the calendar for trial at the May term, 1927, of the Atlantic county courts; second, that she pay to the plaintiff or her attorney of record the taxed costs of the proceedings under the present rule within twenty days from the service upon her of the bill for the taxed costs under this rule which shall include the cost of the plaintiff’s deposition and the printing of the plaintiff’s brief submitted under this rule, and third, that the judgment and -any levy under any execution issued thereon shall remain as security to the plaintiff pending the final determination of the case.


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    LEWIS P. SCOTT, RELATOR, v. LEWIS L. MATHIS, TAX COLLECTOR OF ATLANTIC CITY, RESPONDENT. S. & D. REALTY COMPANY, RELATOR, v. LEWIS L. MATHIS, TAX COLLECTOR, ETC., AND CITY OF ATLANTIC CITY, RESPONDENTS.
    Decided March 17, 1927.
    Taxes and Assessments — Redemption of Land Sold For Taxes— Relators, One the Former Owner, the Other a Mortgagee, Each Ask For a Writ of Mandamus to Compel Certificate of Redemption — Municipality Had Sold to Another, Who Claims He Has Barred Right of Redemption — Held, Mandamus Not the Proper Remedy — Writ Will Not Issue Where Acts and Duties Depending Upon a Decision as to Facts or to Questions of Law are Undetermined.
    On rules for mandamus.

      Before Justices Black and Campbell.
    Eor the relators, Thompson & Hanstein.

    Eor the respondents, William M. Clevenger and Joseph B. Pershie.

   Per Curiam.

These are rules to show cause why writs of mandamus should not issue to compel the respondents to issue a certificate of redemption for taxes to either of the relators. The matters are also before us upon motions to strike out the rules to show cause.

It is not necessary to detail the facts except in a general way. In fact, there could be no such narration, with assurance and certainty, because, although the facts may not be in controversy, nevertheless, the legal effect thereof is in doubt and uncertain.

It is enough to say that the relator, Lewis P. Scott, asserts a right to redeem certain lands from a sale for unpaid taxes because he is or claims to be the holder of a mortgage covering the lands. Against his right to redeem it is contended that his rights as! mortgages have been extinguished by proceedings to bar his right to redemption taken by one Schaeffer under a sale to him of the lands for the unpaid taxes of 1915.

The relator S. & D. Eealty Company insists that it is entitled to the right to redeem because it holds under the said Schaeffer by right of an assignment of the latter’s certificate of tax sale.

The right of Schaeffer, and, consequently, the right of the relator S. & D. Eealty Company, is assailed upon the ground that he lost all right under his certificate of sale.for failure to record the same within the time fixed by the statute and because of a subsequent sale of the same lands to Atlantic City for the unpaid taxes of 1916.

It is most apparent, therefore, that the right to redeem by either relator Scott, as mortgagee, and S. & D. Eealty Company, as owner, is not clear.

Further, Atlantic City, subsequent to its purchase of the lands for the unpaid taxes of 1916, sold and assigned its right to one Pennypacker, who claims to have taken the necessary proceedings by notice to the owner of record of the lands, to bar the right of redemption of such owner. The sufficiency and correctness of this notice are attacked.

The same lands were again sold for the unpaid taxes of 1923 to the said Schaeffer.

Pennypacker paid to the respondent, the collector of taxes, a sum of money determined by him to be sufficient to redeem the lands from the sale for the unpaid taxes of 1923, and the collector issued to Pennypacker, as owner, a certificate of redemption.

Subsequently, both relators tendered sums of money and demanded from the respondent, the collector of taxes, certificates of redemption of the lands, from the sale to Atlantic City, for taxes of 1916 (assigned to Pennypacker), and covering the unpaid taxes, with interest, costs, &c., for the years 1916 to 1922, both inclusive. The collector refused the tenders and demands of both relators upon the ground that he had already issued a certificate to redeem to Penmpacker, as owner.

Mandamus, under these circumstances, is not the proper remedy.

Mandamus will issue to compel performance of ministerial duties so plain in point of law and so clear as to facts that no element of discretion remains but as to acts and duties depending upon a decision as to facts or questions of law, the writ will not go. Further, the writ will not issue to dictate in advance how the discretion shall be exercised or the matters of fact decided, nor will it be allowed to disturb or override determinations already reached. Mooney v. Edwards, 51 N. J. L. 479; Newark v. Lewis, 82 Id. 279.

The rules to show cause are therefore discharged, with costs.


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    HARRY ALLISON GOLDSTEIN, EXECUTOR, ETC., PLAINTIFF-RESPONDENT, v. PHILLIPPO SINISCALCO, DEFENDANT-APPELLANT.
    Submitted January term, 1927
    Decided March 18, 1927.
    Foreign Judgments — Defendant Appeals and Offers Ten Grounds Therefor — These Have Been Examined and Found Without Merit — A Judgment Rendered in a Foreign State, When Sued on Here, Can be Impeached Only on Ground That the Adjudging Court Did Not Have Jurisdiction.
    On appeal.
    Before Justices Parker, Black and Campbell.
    For the appellant, Alberico. O. Ciccarelli.

    Por the respondent, Insley, Vreeland & Decker.

   Per Curiam.

This suit was brought in the Hudson County Court of Common Pleas to recover the amount of a judgment, $805 damages and $46.12 costs, entered in the Superior Court of Pairfield county, at Bridgeport, in the State of Connecticut.

Upon notice and affidavits attached, the answer was stricken out, the damages assessed at $873.18 and judgment final was entered in that court for $873.81. The defendant appeals and filed seven grounds of appeal, after which, three additional grounds of appeal were filed. These various grounds of appeal call for no extended discussion. They are all without legal merit. Our Evidence act (2 Comp. Stat., p. 2225, § 16) provides suits on a foreign judgment, the defendant may show that the defendant therein was not summoned, did not appear, or was not within the jurisdiction of the foreign court. These facts all appear in the record and are not denied. This topic, suits on foreign judgments, was examined by Chief Justice Beasley in the leading case of Jardine v. Reichert, 39 N. J. L. 165, which, leaves nothing to be added, and which ever since it was promulgated has been the accepted law of the state. That case holds, a judgment rendered in another state, when sued on here, can be impeached only on the ground that the adjudging court did not have jurisdiction over the person of the defendant or the subject-matter. If the defendant was present in the foreign state, when the proceedings were begun, and process was served upon him, no irregularity in such service, unless such as deprived it of all citatory effect, can be set up against the judgment ensuing thereon, in a suit on such judgment, in this state. To the same effect are the cases Patterson v. Taylor, 78 Id. 10; Hazel v. Jacobs, Id. 459; Smith v. Swart, 134 Atl. Rep. 755.

Finding no error in the record, the judgment of the Hudson County Court of Common Pleas is affirmed.


text:
    ELIZABETH RYAN, ADMINISTRATRIX, ETC., PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Submitted January term, 1927
    Decided March 18, 1927.
    Negligence — Death Caused by Trolley Car — Case Twice Tried-Verdict For Plaintiff Held Against Weight of Evidence.
    On rule to show cause.
    Before Justices Paekek, Black and Campbell.
    For the plaintiff, Alexander Simpson.

    For the defendant, Joseph Ooult.

   Per Curiam.

This suit was brought to recover damages under the Death act. The trial resulted in a verdict for the plaintiff for

$5,000. The defendant obtained a rule to show cause and writes down nine reasons for a new trial. The cause has been tried twice. The first trial resulted in an nonsuit of the plaintiff, which was affirmed by the Court of. Errors and Appeals. Ryan v. Public Service Railway Co., 3 N. J. Adv. R. 642. In that case no one saw the occurrence. There were no eye-witnesses produced or sworn. The court held, there were no circumstances from which negligence of the defendant company could be inferred. But at the trial of the present case two eye-witnesses to the occurrence were sworn as witnesses, viz.: Louis Neustein, the motorman, and Albert Lieber, a passenger. These witnesses testified that the car at the time of the accident was going “eight to ten miles an hour;” “about six or eight miles an hour.” The car went after the accident “about five feet.” No testimony was substituted by the defendant company. But our reading of the record satisfies us no substantial change was made in the two cases, so far as proof of negligence of the defendant was made. The first reason alleged for setting aside the verdict is, because the verdict is contrary to the weight of the evidence. This we think is so. The rule to show cause will therefore be made absolute.


text:
    JOSEPH FINER, PLAINTIFF, v. GEORGE MILLER, DEFENDANT.
    Decided March 17, 1927.
    Conveyances — Breach of Covenant Against Encumbrances— Some Part of Property Occupied by One Who Claimed He Held Under a Debt of Grantor to Him — Held, an Encumbrance, and Judgment For Plaintiff.
    On rule for new trial.
    Before Justices Parker, Black and Campbell.

      For the rule, Peter Cohn.

    Contra, Meyer Lobsenz.

   Per Curiam.

The action was to recover damages for a breach of covenant against encumbrances in a deed. The jury returned a verdict in favor of the defendant and plaintiff has a rule to show cause why such verdict should not be set aside.

By deed dated April 26th, 1924, defendant conveyed to the plaintiff lands containing a two-family dwelling. At the time of the conveyance a portion of the second floor of the house was occupied by defendant’s son. Prior to such conveyance the defendant has been unsuccessful in an action against his son in the District Court in which he sought to dispossess him for non-payment of rent. These facts were known to the plaintiff. After delivery of the deed plaintiff made demand on defendant’s son for payment of rent which was refused because defendant’s son claimed that he was in possession of the premises under an agreement with his father, who he claimed owed him $750, to occupy the apartment until such indebtedness was extinguished at the rate of $25 per month, or a period of thirty months after that such term had not yet expired.

Plaintiff then brought proceedings in ejectment against defendant’s son, and shortly thereafter, and without such action being tried, compromised with the son by paying him $250 to vacate. The son vacated the premises and the agreed sum of $250 was paid him.

The suit in question was then brought against defendant and the plaintiff demanded as damages the sum of $250 paid to the son and an additional sum for attorney’s fees in the ejectment proceedings.

The first ground urged is that the verdict is against the weight of the evidence.

This we do not find to be so.

Objection is made to the following portions of the charge of the trial court upon the ground that they are erroneous, viz. :

“So, that the first question that you must determine is: Has the defendant satisfied you by a fair preponderance of the evidence that an encumbrance on his property existed on April 26th, 1924, when the deed was executed and delivered * * * so, that is the primary question for your solution. Now, of course, if there was not encumbrance then he certainly could not recover the moneys he paid or any other sum, but if the encumbrance existed, and that is a condition precedent that he must first establish before he can recover any damages * * *. Summing the matter up then of just what you are to determine the first question for your determination is, did this encumbrance exist on the date of the delivery of this deed, April 26th, 1924, * * *. If the encumbrance did not exist then, of course, your verdict is no cause of action,” and

“A phase of this question came up before the District Court according to the evidence in this case whereby in the summer of 1923 the father brought an action against the son to oust him for possession of this floor on the theory that he did not pay his rent and that issue was determined by the District Court, in favor of the son; but that conclusively determined as a matter of law only that at that time the son was entitled to possession and had paid his rent or was not indebted to Mr. Miller for the rent.”

We can discover nothing erroneous in either of these excerpts.

The issue was whether the son was holding and occupying the apartment under the agreement that plaintiff contended for. If he was, the covenant against encumbrances was broken upon the delivery of the deed to plaintiff, otherwise not. The effect of the District Court judgment against the defendant was as the court charged. The proceeding there sought dispossession for the alleged non-payment of two months’ rent, both of which months were long prior to the delivery of the deed by defendant to plaintiff.

The rule to show cause is discharged, with costs.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. NATHAN RUBENSTEIN, PLAINTIFF IN ERROR.
    Submitted January term, 1927 —
    Decided March 18, 1927.
    Crimes — Stealing—Picking Pockets — Charge to Jury Regarding Defendant Taking Stand Questioned by Plaintiff, but Sustained by the Court.
    On error.
    Before Justices Pabkeb, Black and Campbell.
    Por the plaintiff in error, George li. Gutley.

    Por the defendant in error, John Millón, prosecutor of the pleas.
   Per Curiam.

The defendant, a pickpocket, was convicted of an attempt to steal a wallet from the pocket of Adrian Vidol.

Seven assignments of error and six specifications of causes for reversal of the judgment were filed. But the plaintiff in error, in the brief, states that he relies on No. 3 for a reversal. No others are argued in the brief. No. 3 is alleged error in the charge of the trial judge to the jury. The point relied on is: “The law of onr state in regard to defendants f aking the stand is that a party in a case is competent but not compellable to be a witness in bis own behalf, but his failure to do so raises no presumption of his guilt. Where, however, there is direct evidence to connect the accused with the crime, and hv his own testimony he could have established an alibi or denied the allegations, his failure to do so may be considered by the jury as an inference against him.” The pertinent part of this charge is identical with the charge approved by this court in the case of State v. Schilling, 95 N. J. L. 154. The situation where you have a right; “to draw inferences against him.” So, to the same effect is State v. Parker, 61 Id. 314. These cases are cited, on this point, with approval, in the case of State v. Kisik, 99 Id. 387, by the Court of Errors and Appeals. In that case, it was said, the doctrine of the Parker case has come to be the settled law in this state. There the words “a strong inference” are used by Chief Justice Magie.

Einding no error in the record the judgment of the Court of Quarter Sessions of Hudson county is affirmed.


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    JACOB DIETSCH, PLAINTIFF-PROSECUTOR, v. EDWARD J. SMITH ET AL., TRADING, ETC., AS SMITH BROTHERS. DEFENDANTS-RESPONDENTS.
    Decided March 17, 1927.
    District Courts — Judgments — New Trial — Judgment Already Docketed — New Trial May be Had Under Statute if Application be Made Within Thirty Days — This was Not Done.
    On certiorari.

    Before Justices Parker, Black and Campbell.
    Eor the prosecutor, Mendelsohn & Mendelsohn.

    Eor the respondents, Richard Spitz.

   Per Curiam.

On May 5th, 1925, prosecutor recovered a judgment in the Paterson District Court against the respondents, and on June 26th, 1925, execution was issued and on July 10th, 1925, returned unsatisfied. On July 10th, 1925, the judgment was docketed in the Court of Common Pleas of the county of Passaic.'

On July 24th, 1925, the respondents obtained an order requiring the prosecutor to show cause before the District Court on August 4th, 1925, why the judgment obtained May 5th, 1925, should not be opened. On August 7th, 1925, the District Court, by its order, set aside the judgment of May 5th, 1925, and granted new trial. By another order dated October 7th, 1926, the District Court vacated its previous order of August 7th, 1925, setting aside the judgment and ordering a new trial. On October 22d, 1926, the District Court granted respondents an order to show cause why its order of October 7th, 1926, should not be set aside and a new trial granted in accordance with its previous order of August 7th, 1925. On November 8th, 1926, an order was made setting aside the order of October 7th, 1926, and granting a new trial in accordance with the order of August 7th, 1925.

The present writ brings up for review these proceedings.

All of the proceedings directed to the setting aside of the judgment and ordering a new trial are clearly in conflict with the provisions of the District Court act (2 Comp. Stat., p. 1951, § 17), which is as follows:

“In every case tried in any of said courts the judge may, if he sees fit, order a new trial to be had upon such terms as he shall think reasonable, and in the meantime stay proceedings, provided that application for such new trial, except where the said application is based upon newly-discovered ' evidence, shall be made within thirty days.”

There is nothing in the return to the writ showing that the new trial was ordered upon the ground of newly-discovered evidence.

The District Court was clearly without jurisdiction and the orders and proceedings brought up for review are set aside.


text:
    MARIE I. SMITH, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE CITY OF ATLANTIC CITY ET AL., DEFENDANTS.
    Argued February 23, 1927
    Decided March 18, 1927.
    Municipalities — Awards of Contracts — Lowest Bidder — Award was to Lowest — No Reason Found For Setting it Aside at Instance of a Taxpayer.
    On certiorari. On mandamus.

    Before Justices Parker, Black and Campbell.
    Eor the prosecutor, Emerson L. Richards and John C. Reed.

    Eor the defendants, Joseph B. Perslcie.

   Per Curiam.

Case No. 271 is a certiorari to review an award of a contract to Biggs, Distler & Company for $509,000 for a heating system in the convention hall at Atlantic City, New Jersey, at the instance of a taxpayer. Case No. 272 is a rule to show cause why a writ of mandamus should not issue directing the award of the contract to be made to the next highest bidder, John H. Cooney, for $510,812. In these cases it is probably of more importance that a prompt decision be rendered than the form in which the decision may be expressed.

We have examined these cases with the following result:

First. We are unwilling to set aside the award of the contract in this case to Biggs, Distler & Company for $509,000 on the sole ground that the specifications invite “alternative bids.” The cases of Armitage v. Newark, 86 N. J. L. 5; Tice v. Long Branch, 98 Id. 214, are not in point on the facts. Our research has revealed no case in which this point has been directly considered.

Second. We can find no evidence that the specifications have been unfairly manipulated in favor of the contractors to whom the award was made.

Third. The addendum provides: Nos. 3 (2) “Under the Vacuum Heating System necessary apparatus, specialties and valves as manufactured by Dunham Co., Barnes & Jones, or other approved standard makes, shall be considered as equal to Warren & Webster specialties, valves, traps,” &c. Under this clause $3,000 was deducted from Riggs, Distler & Company bid of $512,000, thus reducing the bid to $509,000, making it the lowest bid and next to that of John H. Cooney of $510,812, to which $2,000 was to be added if the Warren & Webster specialties were adopted.

Fourth. The writ of certiorari is a discretionary writ. The suit is not a personal action. In the absence of fraud or manifest manipulation the award in this case should not be set aside at the instance of a taxpayer.

The cases of McCarty v. Boulevard Commissioners, 91 N. J. L. 142; affirmed, 92 Id. 519; Atlantic Gas, &c., Co. v. Atlantic City, 73 Id. 360, should be applied.

Our conclusions are in Case No. 271 the writ of certiorari should be dismissed and the award of the contract to Riggs, Distler & Company confirmed.

In Case No-. 272 the rule to show cause should be discharged. No costs allowed.


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    JAMES Y. BURNETT, RELATOR, v. W. HOMER AXFORD, DIRECTOR, ETC., OF THE CITY OF BAYONNE, AND WALTER L. CLARKSON, BUILDING INSPECTOR, ETC., RESPONDENTS.
    Decided March 17, 1927.
    On rule for mandamus.

    Before Justices Parker, Black and Campbell.
    For the relator, R. Lewis Kennedy.

    ‘Fof the respondents, James Benny.

   Per Curiam.

Application for a permit to erect a one-story brick building as a warehouse on lots 19 and 19%, block 158, city map of Bayonne, was made by relator and refused by the building inspector on the ground that protests had been filed against the issuance thereof pursuant to the provisions of section 1 of the amendment to the building code. After such refusal an appeal was taken to the city commissioners under the terms of the building code upon the ground that there were protests against the issuance of the permit.

All the questions raised here by respondents were raised and disposed of by this court adversely to them in Songer Realty Corp. v. Axford et al., 5 N. J. Mis. R. 220.

Relator is therefore entitled to a peremptory writ of • mandamus.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LEO CONNELLY, PLAINTIFF IN ERROR.
    Decided March 17, 1927.
    Crimes — Robbery—State’s Witness’ Testimony Could be Admitted Only to Neutralize Surprise Testimony: — State, Accordingly, Without Proof — Verdict Against Weight of Evidence.
    On error to the Hudson Quarter Sessions.
    Before Justices Parker, Black and Campbell.
    For the plaintiff in error, George F. Gulley.

    For the defendant in error, John Milton.

   Per Curiam.

The plaintiff in error was convicted in the Hudson Quarter Sessions Court under an indictment charging him with robbery (a hold-up of the proprietor of a drug store).

The judgment of conviction is brought to this court upon a strict writ of error by assignments of error and under section 136 of the Criminal Procedure act under specifications of causes for reversal.

Four assignments and specifications of causes are urged. Of these two present proper grounds for review upon error, as the cause is before us, namely, that the 'verdict is contrary and against the weight of the evidence and error in the following portion of the charge of the court:

“If you are satisfied, gentlemen of the jury, that the state’s witnesses are telling the truth, then the defendant is guilty. Of course, you have to give the alibi some consideration. Alibi is a word meaning “elsewhere.” Now, if the defendant was elsewhere and you believe his witnesses there is nothing for you to do but return a verdict of not guilty. But if you believe the witnesses of the state, if you believe the officers and want to give consideration to his statement and the circumstances under which it was obtained and you are satisfied beyond a reasonable doubt that the state’s witnesses have told the truth, there is nothing for you to do but return a verdict of guilty.”

The state produced only two witnesses, the proprietor of the drug store and his wife, for the purpose of identifying the plaintiff in error as the person who' committed the robbery. They both utterly failed to identify him. The state claiming this to be contrary to the facts as these witnesses had previously stated them to the prosecutor and police officers produced testimony to show identification of the plaintiff in error by the state’s witnesses, or one of them, at police headquarters the day succeeding the alleged robbery. Such testimony was and legally could be admitted only for the purpose of neutralizing, if it did, the adverse, surprise testimony of the proprietor and his wife. It was relevant and competent for no other purpose. State v. D’Adame, 84 N. J. L. 386; State v. Kaselka, 85 Id. 712.

It is entirely apparent therefore that the state was entirely without proof of the commission of the alleged crime by the plaintiff in error and the judgment under review cannot be sustained.

It is not necessary for us to pass specifically upon the portion of the charge complained against. It is enough to say that the errors therein are apparent.

The judgment below is reversed.


author: Carrick, J.

text:
    First District Court of Jersey City.
    DANIEL FOX v. FRUSTANO CARDONE.
    Replevin — Motor Vehicles — Garage Keeper’s Lien — Plaintiff in Replevin, Purchaser of Car at Execution Sale — Garage Keeper Had Let Car Out of Possession, but Constable at Levy Inadvertently Put Car in Lien Holder’s Garage — The Garage Keeper’s Lien is a Creature of Statute, Dependent Upon Possession — He May Repossess the Car at Any Time When He May do so Without Breach of the Peace — There is no Analogy Here to Title of Subsequent Innocent Purchaser For Value Without Notice.
   Carrick, J.

The plaintiff, purchaser at an execution sale, has replevied a Flint touring ear, as formerly the property of one Scala, the execution debtor. When the writ was executed the car was in the possession of the defendant, Cardone, claiming the same under the statutory lien against Scala given a garage keeper. Pamph. L. 1915, p. 556. Prior to the recovery by the plaintiff of the judgment under which he claims title, Cardone had acquired a garage keeper’s lien for work done upon the car, but had let the car go out of his possession in August, 1926. The plaintiff’s execution was levied, and the car taken by the constable, inadvertently, into Cardone’s garage. The constable, knowing nothing of the garage keeper’s claim, until after levy, made sale under his execution. Cardone held the car under his garage keeper’s lien. WFen the defendant refused possession, plaintiff sued out his writ of replevin, and now holds the car. The question is as to the respective rights of the purchaser under the execution sale, and the holder of the garage keeper’s lien.

This lien is the creature of statute. Unlike common law liens upon personal property, it does not depend exclusively upon work done upon the car, hut is extended to a claim for storage and various supplies furnished. Nor is its existence dependent upon possession. The statute expressly preserves the lien, although the lienor may have parted with possession, and enables him to repossess the car at any time, when he may do so without breach of the peace, for the purpose of effectuating his lien by sale. Prior to the amendment of 1925 (Pamph. L. 1925, p. 96), it overrode a prior recorded chattel mortgage or a prior conditional sale. See Cattell v. Rehrer, 94 N. J. Rq. 292, where Vice Chancellor Learning discusses the peculiar nature of this lien and distinguishes it from common law liens. It is true that the Court of Errors and Appeals in the case of Lanterman v. Luby, 96 N. J. L. 255, saves from the operation of this lien the title of a subsequent innocent purchaser for value without notice. Such title, however, seems to bo the only exception to the effectiveness of the garage keeper’s lien prior to the amendment of 1925. See, also, Hare v. Gassner, 4 N. J. Adv. R. 1079.

It is sought here by the plaintiff to sustain his claim as against the garage keeper’s lien by analogy to the title of a subsequent innocent purchaser for value without notice. There is, however, no real analogy. The execution creditor at law takes only the title which his debtor possesses. By the express terms of the statute the car in the possession of Scala continued to be subject to the garage keeper’s lien, and Scala’s creditor, who takes under the execution sale against him, stands in his shoes. I know of no principle or authority by which the purchaser at an execution sale on a judgment at law acquires any rights in the property levied upon superior to those of the judgment debtor at the time when the judgment was obtained.

The result is that the plaintiff cannot prevail in his replevin action. Let judgment be entered for the defendant.


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    WILLIAM R. BROWN ET AL., PROSECUTORS, v. CITY OF ATLANTIC CITY AND M. B. MARKLAND COMPANY, DEFENDANTS.
    Argued March 10, 1927
    Decided March 18, 1927.
    Municipalities — Award of Contracts — Clerical Mistake in Preparing Bid — Amount Correct in One Place but Wrong in Another — No Fraud Alleged — Though Statute Provided That the Statement in the Later Case Governed, the Contract was in Good Faith, and the Application was Made so Long After the Bid was Public That Laches Will Prevent the Issuance of the Writ, Discretionary in Any Case.
    On application for certiorari.

    Before Justices Parker, Black and Campbell.
    For the application, the prosecutors, John C. Reed.

    For the defendant M. B. Markland Company, Clarence L. Cole.

    For the defendant the city of Atlantic City, Joseph B. Perslcie.

   Per Curiam.

This is an application upon notice by a citizen and taxpayer, for a rule to show cause or a writ of certiorari, to review an award of a contract made by the commissioners of Atlantic City to the defendant the M. B. Markland Company on January 20th, 1927, for $4,532,050 for the building of the superstructure of the proposed convention hall in Atlantic City. The bids were received and made public on December 2d, 1926.

They were referred to Messrs. Lockwood, Green & Company, Incorporated, architects and engineers, for analysis, comparison and recommendation.

The basic bid of M. B. Markland Company was $4,694,000. In the proposal submitted by that company for the contract, the figures expressed the lump sum bid to be $4,694,000; but in writing this sum in the bid it was expressed as “four million six hundred and ninety-four thousand dollars.” The word “thousand” was omitted between the words four and dollars. This variance was not discovered until some time after the contract had been awarded and signed; but it was treated by everyone in interest as a bid for $4,694,000. The instructions'to bidders contained this clause: “The lump sum bid must be ‘written and also stated in figures/ and, in case of variance, the written price shall govern.” This is one of the points urged, why the writ of certiorari should be allowed. It is also urged, as another reason, the specifications provided for “alternative bids” and “substitutions” of various named materials; none of these latter, however, were used in computing the award made and only one of the alternative bids used. In the absence of fraud or manifest improper manipulation, it is urged that these grounds are not sufficient at this time to allow the writ of certiorari to go. No fraud is suggested. But let this be as it may. The bids were opened and made public on December 2d, 1926. The contract was awarded on January 20th, 1927. Notice of this application for a rule to show cause was made March 5th, 1927, meanwhile, the successful bidder had obligated itself on the faith of the award to approximately $1,000,000. Laches is urged, and for this reason alone a rule to show cause should not be allowed. In justice and fairness we think this is so. The writ of certiorari is discretionary, it may be refused when it appears that the public interest will suffer or private injustice will be done. Bowne v. Logan, 43 N. J. L. 423; Allen v. Freeholders of Hunterdon, 72 Id. 116. This is a salutary rule and should be rigidly adhered to and not frittered away by unwise applications or by fine distinctions.

A rule to show cause is disallowed and the writ of certiomri refused.


text:
    TILLMAN REINERT, PLAINTIFF, v. ATLANTIC CITY RAILROAD COMPANY, DEFENDANT.
    Argued January 19, 1927
    Decided February 11, 1927.
    Negligence — Unusual Accident at a Railroad Crossing Alleged to Have Been the Result of a Large Piece of Iron Dropped From One of the Defendant’s Trains, Causing Injury to Plaintiff and to His Automobile — The Unusual Circumstances Not Reviewed at Length, but Held, That the Case was a Proper One For the Jury, Properly Presented — Verdict For $20,000, However, Held Excessive and Reduced to $10,000, or New Trial Ordered.
    On rule to show cause.
    Before Justices Black and Campbell.
    Ear the plaintiff, William G. French and Edwin G. Scovel.

    Eor the defendant, French & Richards and Floyd H. Bradley.

   Per Curiam.

The trial of this case resulted in a verdict for the plaintiff for $20,000. The suit was brought to recover damages for personal injuries. The complaint charges negligence of the defendant. The accident happened on the 30th of July, 1923, at Hunt’s Lane crossing, in Camden county, in the operation of defendant’s train. It charges a piece iron was placed or fell upon the tracks of the defendant at that place. It was allowed to fall upon the tracks from a passing train or locomotive and it was permitted to be and remain upon the tracks in violation of the duty owed by the defendant to persons using the crossing. The defendant obtained a rule to show cause and writes down thirteen reasons for a new trial. The trial took several days. The record consists of two printed volumes of nine hundred and thirty pages. The accident was a most unusual occurrence. It occurred in the language of the plaintiff: “When I got across the side — that is, another extra track that’s there — and got near the middle of the track, when I think I was in second gear then, the car made a quick left-hand turn, an awful crash under, then, just I couldn’t imagine what happened, that threw me, my head went through the windshield, and my both legs, the floor boards came up and caught my legs, and the steering column went under my breast here, and when the train, the car, stopped, before the car stopped; it was on Are * * *. This big piece of iron dropped out and dropped down on the track, where it was fast to in the floor boards. After the floor boards burned, this piece of iron dropped down and dropped across the track.”

The piece of iron was in evidence as Exhibit Pi; it was U-shaped, measured thirty-four inches, the shorter sides twenty-three and one-half and twenty-four inches; it is four inches wide, three-eighths of an inch in thickness, with seven three-eighth-ineh ■ holes drilled therein and with some letters stamped thereon, such as “P & R R.” What the mark between the P and R really is is in dispute. The piece of iron, when hit by the automobile, as placed by a witness Landen, was between the westerly rail of the southbound track and the easterly rail of the siding. At the crossing there were three sets of tracks.

The case has other unusual incidents. This is the third trial. The defendant’s proofs show that the plaintiff was in three other accidents and that he was fifty-one years old at the time of the trial.

Our reading of this voluminous record leads us to the following conclusion:

First. There is ample evidence to justify the conclusion that the piece of iron was the cause of the accident, and that it happened as the plaintiff said. In fact, this is not seriously controverted by the defendant.

Second. The defendant denies that the piece of iron was upon the crossing through any of its instrumentality or that the defendant had any connection with it. It says it did not do this, it did not suffer this to be done, it is not guilty as charged. This is the precise question for solution. It would serve no useful purpose to analyze the evidence on this point pro and con. The respective counsel have filed elaborate and exhaustive briefs on this point, which have been exceedingly helpful to the court. Our conclusion is that this was a jury question properly submitted by the trial court to the jury for solution. We are unwilling to disturb the verdict on this ground.

So, the question of the plaintiff’s contributory negligence was one for the jury also to settle.

We find no error in the trial court’s refusal to charge the defendant’s second request, in reference to making inspection of its tracks once in every twenty-four hours as a reasonable inspection. This topic was clearly and adequately covered by the trial judge in the charge to the jury. The only other question that calls for discussion is whether the verdict of $20,000 is excessive.

It seems unusual, if not a significant circumstance, that while the plaintiff claims serious personal injuries, no physician who attended him until about a year and a half after the injury was called at the trial to testify. As stated, he had been in three previous accidents. Dr. Eoscoe L. Moore has known the plaintiff about seven years, has attended him since the first trial, and he is now worse. Other doctors testified : Dr. Swithin Ohander examined the plaintiff four times for the purpose of testifying; Dr. Wm. Wescott examined the plaintiff for the purpose of testifying. So, Dr. Franklin Buzby, an orthopedic surgeon of Cooper Hospital, examined the plaintiff for the defendant company; Dr. Francis S. Ferris, who examined the plaintiff on September 5th, 1923, following the accident, he testified that the plaintiff at that time complained of a cut on the left side of his neck above the scapula, an injury to the chest and shock. There was no discoloration, no external marks of violence and no swelling. Dr. A. Haines Lippencott, the company physician, testified that on April 27th, 1925, “Well, he had varicose veins in both legs, very bad, very pronounced.”

Other witnesses called and testified: Lewis C. Thompson, the defendant’s investigator, that on September 6th, 1923, the plaintiff said: “My injuries don’t amount to anything. I got a little sore spot, but I am pretty well off again; all I want the company to pay me for is my ear.” Eecord, page 693. Carl Woolston saw the plaintiff work around the garage after the accident; “about the same, as far as I could see,” i. e., before the accident. Eecord, page 802.

Frederick Enders, in September, 1925, saw the plaintiff; “he was underneath a car fixing the ear.” Eecord, page 803. Eichard Enders fixes the date as October 18th, 1925: “We seen the man underneath the car.” Eecord, page 827. Dr. Swithin Chander, as stated, examined the plaintiff four times for the purpose of testifying the last time, the Thursday before the trial, i. e., on the 11th of February, 1926; the first time the last of April, 1924.

The trouble with this testimony is that it attempts to prove too much. There was no evidence as to plaintiff’s earnings just before the accident and after the accident, i. e.} from July 30th, 1923, to the date of the trial, February 15th, 1926. No evidence as to any expenditures for medicines and doctors’ bills. The plaintiff testified that he was fifty-one years of age; he was an electrical and steam engineer and had earned between $50 and $125 a week while employed by the Victor Talking Machine Company eleven years ago, i. e., in 1915; that he had been in the garage business four years before the accident and is still so engaged. We think the verdict of $20,000 is not supported by the evidence. It is excessive. If the plaintiff will accept a verdict for $10,000 and remit the excess, the judgment may stand for that sum, otherwise, the rule will be made absolute.


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    LOUIS KESSLER, RELATOR, v. FRANK I. ACKERMAN, SUPERVISOR, BUREAU OF BUILDINGS CITY OF PASSAIC, ET AL., RESPONDENTS.
    Decided March 23, 1927.
    Zoning — Board of Adjustment, on Appeal, Approved Application —Proceedings of Board Have Already Been Set Aside in Certiorari Proceedings — Mandamus Here Will be Denied.
    On rule for mandamus.

    Before Justices Parker, Black and Campbell.
    For the relator, Peder & Rinzler.

    For the respondents, Frederick S. Ranzenhofer.

   Per Curiam.

This is a rule to show cause why a mandamus should not issue commanding the supervisor of buildings of the city of Passaic to issue a building permit to the relator for the construction of a building on property known as 54-56 Prospect street, to he used for the manufacture of garments. The facts are fully set forth in the opinion filed in the matter of certiorari, Louis Kessler, prosecutor, v. Frank I. Ackerman, &c., et al., respondents, case No. 270 of the January, 1927, term of this court.

Relator rests his right to the writ of mandamus entirely and solely upon the fact that after a refusal of the permit by the supervisor of the bureau of buildings he appealed from such decision to the hoard of adjustment and that body, by its judgment, approved of and directed the granting of the permit.

The result of the certiorari proceeding, before referred to, under which we reviewed the proceedings and findings of the adjustment board on such appeal was the setting aside of such proceedings and order or judgment.

The writ of mandamus is therefore denied and the rule to show cause discharged.


text:
    ALEXANDER COHEN, PLAINTIFF-APPELLANT, v. DAVID COHEN, DEFENDANT-RESPONDENT.
    Submittd October 15, 1926
    Decided March 23, 1927.
    Bailment — Messenger Had Taken A Coat From Plaintiff to His Customer With Instructions to Allow Customer to Examine Coat, but to Return With the Money — Customer Refused to Pay the Money or Part With the Coat — Plaintiff Then Directed Defendant to Get a Policeman and Force Return of the Coat — Defendant Did Not Do This — Held, That the Verdict For Defendant was Justified — He Had Done What He Could to Recover Coat Without a Breach of the Peace.
    On appeal from the Atlantic City District Court.
    Before Justices Kalis oh, Katzenbaci-i and Lloyd.
    For the appellant, Samuel Morris.

    For the respondent, Richard Robertson.

   Per Curiam.

This was an action to recover $50, the price of certain repairs made by plaintiff to a coat belonging to a Miss Garra, of Philadelphia. The coat was entrusted by the plaintiff to defendant, a messenger for hire between Atlantic City and Philadelphia, on a commission to deliver the coat and collect the sum of $50, but wlith further instructions to allow Miss Garra to examine it. The additional facts were that Cohen, the defendant, took the coat to- Miss Garra, and she, in examining it, put it on, and after getting it on refused to give it up or pay the $50. The defendant telephoned to the plaintiff in Atlantic City the situation, and the plaintiff told him to get an officer and take the coat from the lady’s back. Instead of doing so the defendant returned to Atlantic City without the coat. In this situation the judge rendered a verdiet in favor of the defendant and was, we think, justified in so doing.

The instructions of the plaintiff to the defendant implied a reasonable opportunity to examine the coat. Obviously, the purpose was that the owner should take the coat into her own physical possession temporarily, at 'least, and inspect it. Eeasonable inspection might well include trying it on. Having gotten it on her person without fault in the defendant, and in compliance with the instructions received by him, it next became a question as to whether he could get the coat back without a breach of the peace. We think the case developed at this point a question of reasonable effort on the part of the defendant to fulfill the remainder of his commission. The direction of the plaintiff that he should get an officer and tear the coat from the owner’s back would certainly not avail, as no officer would have a right to take upon himself the determination of the rights of the parties. If the defendant could only obtain the coat by a breach of the peace (and this the law would not permit), it would be necessary to resort, to some legal proceedings, and the arbitrary action of an officer who might or might not lend himself to such course would not be such legal proceeding.

The argument of the appellant that the defendant was bound to return the money or the coat, and in default must pay the plaintiff’s claim for repairs, is subject to the reasonable and proper exercise of the privilege given by the plaintiff himself. Ordinarily, of course, a carrier who undertakes to serve in such a capacity must perform his contract or pay for his breach, and the cases cited to that effect are undoubtedly sound, but in the present case the duty is subject to the privileges and conditions that the plaintiff himself imposed.

The judgment will be affirmed.


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    MINNIE L. MANN, RESPONDENT, v. JOSEPH JAMES, APPELLANT.
    Submitted October 15, 1926
    Decided March 23, 1927.
    Landlord and Tenant — Rent—Verdict For Defendant — New Trial Granted by Trial Judge — Defendant Challenged the Judge on Ground That He had “Delivered and Formulated His Opinion on the Matter in Question” — Challenge Overruled— Judgment For Plaintiff Affirmed.
    On appeal from the Second District Court of Morris county.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Richard Fitzherbert (Benjamin W. Fllicott, of counsel).
    For the respondent, Charles A. Rathbun.

   Per Curiam.

The action in the court below was to recover rents alleged to be due for rented premises. It was first tried before a judge and jury and resulted in a verdict for the defendant. The judge, deeming the verdict unwarranted by the evidence, set it aside and granted a new trial. A day being set for the retrial, appellant’s counsel filed a challenge to the judge sitting further in the cause on the ground that he had “delivered and formulated his opinion on the matter in question.” This challenge was overruled and the ease set for trial on the afternoon of the day previously announced. The defendant’s attorney excepted to the overruling of the challenge. In the afternoon the case was called and a prima facie case proven by the plaintiff. No defense being interposed, judgment was rendered in favor of the plaintiff.

There is in the case no record of appeal, notice of appeal (except a notation in the record of the court below), or specifications of error; nor does there appear in the state of the case any exception other than the one above noted. Following the state oí the case as certified by the trial court and in the same book under the captions of “Pacts” and “Argument and Law,” there is printed a recital of some of the facts, and counsel’s argument contending that the judge in setting aside the verdict of the jury thereby disqualified himself from sitting in the cause. If the case presented any legal question for review we might well remark that it would indeed be a novel proposition to hold that every time a trial court sets aside a jury’s verdict it thereby becomes disqualified from further participation in the cause. As, however, no legal ground for reversal appears, the judgment will be, and it is accordingly, affirmed.


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    JOHN W. GRANT, PLAINTIFF-RESPONDENT, v. BOARD OF EDUCATION OF THE CITY OF BAYONNE, DEFENDANT-APPELLANT.
    Submitted October 15, 1926
    Decided March 23, 1927.
    Contracts — Labor Performed — Defendant Alleges Unworkmanlike Service and Unreasonable Charges — Judgment for Plaintiff Affirmed.
    On appeal from the First District Court of Jersey City.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Charles Rubensiein.

    For the respondent, Aaron A. Melniker.

   Per Curiam.

The plaintiff below did some grading work in a school playground of the board of education. In an action instituted in the First District Court of Jefsey City, judgment was rendered in his favor for $261.64, and the board of education appeals.

From the state of the case certified the following facts appear: In August, 1925, the plaintiff, a contractor, submitted to the chairman of the committee on buildings and repairs of the board of education an estimate for grading the play7 ground at $7 per day for a laborer, and $19 per day for a truck and laborer; that several other contractors bid on the work, but plaintiff’s bid was the lowest, and he was instructed by the chairman to proceed with the work; that the work was of an emergency character, in that it required the filling up of two cellar excavations immediately adjoining the school building (the board having purchased the adjoining lands and removed the buildings therefrom) before the school term opened. It further appeared that the plaintiff and other contractors had been accustomed to taking jobs for the board through the chairman of the committee, and that the board had always paid for them when under $500 without questioning; also, that it was customary for the chairman of the committee to receive estimates and give the job to the lowest bidder, upon which the bidder on completion of the work would present his bill and be paid.

There was proof of the work being done and the bills for the same presented to the board. They, however, were refused payment and the present action resulted.

Motions for nonsuit and for judgment in favor of the defendant, based on the ground that the work was not properly authorized and that the charges were unreasonable, were made and denied. These ruling of the court are the basis of the present appeal.

The case we think falls squarely within the ruling of the Court of Errors and Appeals in the case of Frank v. Board of Education of Jersey City, 90 N. J. L. 273, and upon the authority of that case the judgment will be affirmed.


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    NORTH HUDSON LOAN COMPANY, A CORPORATION, PLAINTIFF, v. ESTHER ROTH, LOUIS KASSOFF AND PHILIP MOSKOWITZ, DEFENDANTS.
    Submitted October 15, 1926
    Decided March 23, 1927.
    Promissory Notes — Endorsement—Note Made in Connection With Act of 1914 Relating to Making of Small Loans — Endorser Alleges That Statement Required by the Act was Not Made by the Plaintiff Company — Testimony Examined and Held, That There is Not Proof That it was Not Furnished — Judgment For the Plaintiff Affirmed.
    On appeal from the First District Court of Hudson county.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the plaintiff-respondent, Carl Weitz.

    For the defendant-appellant Louis Kassoff, William F. Burke.

    For the defendant Philip Moskowitz, Samuel Harder.

   Per Curiam.

There was a judgment for the plaintiff, the North Hudson .Loan Company, in the District Court of the First Judicial District of Hudson county, and one of the defendants, Louis Kassoff, appeals.

The action was on a promissory note made by Esther Roth and purporting to bear the endorsement of Kassoff, Wolff Levin and Philip Moskowitz. Levin was not sued. Esther Roth was not found, and the case proceeded to trial against Kassoff and Moskowitz.

Kassoff denied Ms endorsement but the jury found to the contrary.

The errors alleged on this appeal are the refusal of the court to direct a verdict in favor of the defendant Kassoff at the conclusion of the proofs, and in its permitting certain cross-examination of one of plaintiff’s witnesses by counsel for the defendant Moskowitz.

The plaintiff in the action is a loan company organized and licensed under chapter 75 of the laws of 1914, entitled “An act to define, regulate and control the business of the making of loans or advancements of money in sums of $300 or less in amount,” &c., the fifth section of which provides that the licensee making a loan shall “furnish to the borrower at the time the loan is made a statement in the English language showing in clear and distinct terms the amount of the loan” and certain other details.

The sixth section declares violation of any provision of the act a misdemeanor and that the loan shall be null and void.

It was contended on the motion for direction, and is contended here, that it appears from the evidence that the statement required by the act was not furnished, and that therefore defendant’s motion should have been granted.

There was, of course, no presumption that the statement was not furnished by the lending company, nor do we think it so clearly appears from the proofs as to require a finding by the court as a matter of law that it was not so furnished. It is true defendant’s counsel by a series of questions (carefully concealing his real purpose) repeatedly asked Burstyn, a witness for the plaintiff, and who negotiated with the maker of the note, what took place at the time the loan was made and received replies which did not include the giving of the statement required by the act, but at no time was the attention of the witness directed to the giving or withholding of a statement. On the contrary, counsel cautiously refrained from asking the direct question, evidently fearing he would get the answer he did not want. We think in consequence the refusal of the motion for direction was justified.

■On the second point it is sufficient to say that Moskowitz was a co-defendant and it was the right of his counsel to cross-examine the plaintiff’s witnesses.

The judgment is affirmed.


text:
    JOHANNA RENNER, PLAINTIFF, v. ANNIE M. RENNER AND JOSEPH M. H. RENNER, DEFENDANTS.
    Submitted October 15, 1926
    Decided March 23, 1927.
    Alienation of Husband’s Affections — Verdict For Husband but Against Husband’s Mother, the Mother-in-Law — Verdict Upon the Testimony of Plaintiff Almost Entirely — Reasons For New Trial Considered and No Reason Found For Making the Rule Absolute.
    On rule to show cause.
    Before Justices Kaltsch, Katzenbach and Lloyd.
    Eor the rule, Carl Weiiz.

      Contra, Donald M. Waesche.

   Per Curiam.

This is the defendant’s rule to show cause why a new trial should not he granted. The action was by Johanna Renner against Annie M. Renner and Joseph M. H. Renner to recover damages for alienation of the affections of plaintiff’s husband, John E. Renner. There was a nonsuit as to Joseph M. H. Renner, and a verdict for the plaintiff in the sum of $15,000 against Annie M. Renner. The parties appear to have been married without the knowledge of Mrs. Annie M. Renner, who is the mother-in-law of the plaintiff, and the marriage met her marked displeasure. The principal evidence concerning the conduct of the defendant toward the plaintiff was given by the plaintiff herself. Against this was the testimony of the defendant and her two sons, together with some corroboration of trades people.

Thirty-five reasons for making absolute the rule are filed in the case and those pressed are presented under seven different heads. The first is that the court erred in admitting in evidence conversation and a written statement of plaintiff’s husband not in the presence of. the defendant. These conversations were competent as evincing the state of mind of the husband toward the plaintiff, and the statement was properly received in rebuttal as affecting the credibility of the husband who had been a witness called by the defendant.

The second point is that the court improperly permitted evidence of the husband’s conduct while they were living together. This was clearly competent. It is by one’s conduct that his mind is discerned.

It is urged in the next two points that the court erred in failing to charge two of the defendants’ requests. We think these were fully and adequately covered in the general charge of the court.

The fifth point is that a nonsuit should have been granted because the evidence was insufficient to . establish that the defendant had any part in alienating the husband’s affection for the plaintiff. Our examination of the record leads us to the conclusion that the court could not thus control the case. The facts proven clearly indicate that the defendant was hostile to the marriage of her son to the plaintiff from the start; that she was jealous of his affection for the new wife and sought to regain his affection to herself alone. From this time on there were scenes in which the defendant evinced a purpose to regain the son’s affections to the exclusion of the wife. This, obviousfy, could well tend to alienate the husband’s love for his wife.

It is next urged that the verdict was against the weight of the evidence. We think we cannot, so hold. While the evidence on behalf of the plaintiff came principally from her own lips, and it was opposed by that of her husband, the defendant and a brother of the husband, the plaintiff’s story bears the impress of truth, and the testimony of the husband was largely neutralized by the written statement above referred to.

Finally, it is contended that the verdict of $15,000 was excessive. Damages in such cases are difficult of appraisement. The loss of affections is the gravamen of the charge and the grief and anguish entailed cannot be measured by any mathematical formula. The plaintiff was when married in 1923 a young girl of seventeen. Her hopes and happiness may well have been centered in him who had solemnly promised to love and cherish her to the end. To have her married life thus shattered is no slight wrong. To the personal bereavement is to be added the material loss and finally punitive damages if the jury see fit to award them. Under all the circumstances we do not feel justified in disturbing the verdict which the jury has seen fit to award.

The rule for new trial is discharged.


text:
    HARRY CRAWFORD AND MARY CRAWFORD, PLAINTIFFS, v. AMERICAN STORES COMPANY, A CORPORATION OF THE STATE OF DELAWARE, DEFENDANT.
    Submitted October 15, 1926
    —Decided March 23, 1927.
    Negligence — Injury to Eye of a Customer While Making Purchases at a Grocery Store — Cans Which Had Been Piled One Upon Another Fell, Causing Injury — Responsibility of Defendant Clear — Award Held Too High — Verdict of $10,000 Reduced to $5,000.
    On rule to show cause.
    Before Justices Kalis oír, Katzenbach and Lloyd.
    Eor the rule, Bleakly, Stockwell & Hurling.

      Contra, Carlton Godfrey and William I. Garrison.

   Per Curiam.

This is the defendant’s rule for a new trial. The reasons urged for making the rule absolute are refusal of a nonsuit, alleged improper instructions to the jury, weight of the evidence preponderating in favor of the defendant, permitting a medical man to testify as an eye expert, in view of his own statement that he was not an eye specialist, and excessive damages. None of these reasons appeal to us as meritorious except the last.

The facts were that the plaintiff entered the grocery store of the defendant at Pleasantville, and while standing in front of the counter was injured by some falling cans of pickles which had been piled on the counter to a height of nearly three feet. According to the plaintiff’s testimony the cans, which were piled in pyramid fashion, tumbled over on her, one or more of them striking her on the head and severely injuring her.

The motion for a nonsuit was based on the contention that there was no evidence to establish the defendant’s negligence. Against this it is contended that the rule of res ipsa loquitur applies, and we incline to- think that it does. It is difficult to see a distinction in principle between a pile of cans falling over from a counter and a brick falling from the scaffold of a building. Sheridan v. Foley, 58 N. J. L. 230. Both being under the control of the defendant, placed there by it, the fact of a fall might justify a finding of neglect in properly securing it. In the instant case it appeared in addition from the defendant’s proofs that the other side of the pile of cans was buttressed by a wooden cake box extending half way to the total height of the pyramid. The fact that such support was placed upon one side suggests that the same precaution should have been taken on the other. There was evidence on behalf of the defendant tending to- show that Mrs. Crawford herself had struck her elbow against the pile knocking it down. This was the testimony, however, of a single witness, and that of the plaintiff was to the contrary. The defendant’s brief inaccurately asserts this as an uncontradicted fact. Such misstatement is misleading and throws upon the court an extra burden of detailed examination of the evidence which should not be required.

As the whole question of negligence turned upon the propriety of thus placing the cans, we think that their fall, assuming them to have been untouched by the plaintiff, was some evidence of negligence which the defendant’s proofs did not successfully rebut, and that even on the weight of evidence the verdict should not be disturbed.

The testimony objected to in the third point argued was competent. While Dr. Garfield was not an eye specialist he was duly licensed to practice medicine and presumably qualified to speak with respect to the entire anatomy of the body. Caster v. Sliker, 33 N. J. L. 95; affirmed, Id. 507.

As respects the damages, the principal complaint of Mrs. Crawford was of indirect injury to the eye. She was confined to her bed for four weeks, lost fifteen pounds, suffered pain and was unable to do her housework as theretofore; suffered from sleeplessness and a nervous condition. There was expert testimony as to her nervous state. Her principal injury was to the eyes. The left eye practically closed, with drooping of the lid. Both eyes were bloodshot and pus ran continually from one eye. While her condition had improved the eyelid was still drooping and the pain continuing at the time of trial. The accident happened on the 13th of June, 1925, and the case was tried on May 26th, 1926, slightly less than a year from the date of the injury. There is no evidence that the injurious results are permanent. We think the verdict of $10,000 in favor of Mrs. Crawford is consequently much too large.

The award to the husband is not excessive. He lost his wile’s services, employed a nurse, had doctors’ bills and other expenses. The verdict of $1,000 in his favor will therefore not bo disturbed.

If the plaintiff Mary Crawford will accept a reduction of the verdict in her favor to $5,000, the rule in her case will be discharged, otherwise it will be made absolute.


author: Steinbach, J.

text:
    Monmouth County Common Pleas Court.
    JOHN KARLSON, PETITIONER-APPELLEE, v. WILLIAM I. ROSENFELD, RESPONDENT-APPELLANT.
    Workmen’s Compensation — Employe Engaged in Putting Canna Bulbs in a Frame — When He Washed at Night He Found a Cut or Scratch on One Finger — Infection Followed and Amputation Became Necessary — When or How the Cut was Received Employe Does Not Know — Held, That There are Not Facts to Justify Decision That the Accident Grew Out of the Employment.
    On petition for compensation; On appeal.
    Por the petitioner-appellee, Ward Kremer.

    Por the respondent-appellant, Emile Neblo.

   Steinbach, J.

This is an appeal from the determination of facts and rule for final judgment entered by direction of the workmen’s compensation bureau (Deputy Commissioner William E. Stubbs). This matter was heard on October 14th, 1926, before the commissioner.

The petitioner, John Karlson, was employed by William I. Rosenfeld, the respondent, and performing his duties as such employe, on March 9th, 1926. During that day the petitioner performed iisual labors, part of which was putting canna roots in a frame. At five o’clock, when the petitioner washed his hands, he found a cut on his finger. Prom the testimony of the only physician whose testimony was given in the case, it appears that the second finger (the finger upon which the cut appeared) was amputated because of infection.

The petitioner says he did not have the cut at noon, and on his examination stated that he was sure it was cut in the afternoon, hut inasmuch as he did not feel the cut before the evening, he did not know the time nor the occupation he was engaged in at the time he received the cut.

On page 5 of the testimony the petitioner says:

“I am sure I got it because I didn’t feel it before the evening. I washed my hands with soap and water.

"Q. You saw it when you washed your hands with soap and water?

"A. Yes.

& # % i-i # sji

“Q. What time was that?

“A. Five o’clock.”

On page 10 of the testimony is:

“Q. You don’t know just what caused the scratch, do you?

“A. I could not tell. I got it from the soil.” He then goes on with testimony which clearly shows that he does not know positively that he got it from the soil.”

On page 9 the testimony is:

“Q. Soon after seven o’clock you started to plant these roots ?

“A. No, sir; about eleven o’clock.

“Q. It took you about three hours to do that?

“A. Yes.

“Q. You finished that work and went about doing other work ?

“A. Doing the evening chores.

“Q. After you finished planting the ea.nna roots you went about your other work?

“A. Yes.”

Then, again, on page 10 of the testimony:

"Q. You went home to- your home?

"A. My home was right there.

'“Q- You left your work and walked over to your house?

"A. Yes.

“Q. And began washing your hands and you noticed this small scratch on your knuckle? '

“A. Yes, sir.”

There seems to be sufficient evidence from which an inference may be rightfully drawn that the injury to the hand and the amputation of the finger was caused by infection through a scratch, of which the petitioner complained. The question that causes some doubt is as to whether the scratch was a result of an accident arising out of and in the course of the petitioner’s employment. To find so, “* * * it was essential that there should have been some fact or circumstance established to support such finding.” Schmoll v. Weisbrod, &c., 97 Atl. Rep. 724.

What was the cause of the accident? I have read the testimony over several times and I must say that I cannot find any fact or circumstance indicating when the scratch was obtained or by what substance or implement the scratch was made. Erom the petitioner’s testimony there may be a fair inference that the scratch was obtained some time between noon, when the petitioner went back to work (during part of which time he was putting canna plants in frames), and when he washed his hands at five o’clock or shortly thereafter at the house on his employer’s premises, where he resided. How it was obtained I am, and petitioner is, at a complete loss to say. If I should assume that the petitioner was, during all the time in which his finger had not been scratched, and up to the time when he washed his hands, about his employer’s business, that he resided upon the premises, and his duties kept him there at all times, nevertheless, I cannot say what accident arose out of his employment, nor that any accident arose out of his employment, causing the scratch. There may have been something pertaining to -actions on the part of petitioner other than actions and operations involved in his employment, or from some extraneous cause, which caused the scratch.

“The character or quality of the accident as conveyed by the words ‘out of’ involves * * * the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment.

“* * * an accident arises fin the course of the employment’ if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.” Bryant, Admx., v. Fissell, 84 N. J. L. 72, 76, 77.

The case of Muzik v. Erie Railroad Co., 89 Atl. Rep. 248, was a case in which death resulted and no one saw the accident, but it was clear in that case that the cause of the death was the fact that the claimant in that case was struck by a railroad train just after he had performed an act of his employment.

There is no evidence in the present case to show me the cause of the scratch.

I do not believe that the assumption from the testimony is justified that the petitioner was engaged in his employer’s business from the time of his return to his work at noon until he washed his hands in his dwelling-house shortly after five o’clock, but even if that were so, and assumed for the sake of argument, 1 do not see any facts from which I could infer that the scratch was received by an accident arising out of the employment. I have been unable to find that the law raises the presumption that an injury received during employment arose by an accident arising out of the employment.

The court finds that the petitioner is not entitled to compensation. Let a rule for judgment accordingly be entered in favor of the respondent.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ADOLPH RAY, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, IMPLEADED AS PUBLIC SERVICE CORPORATION, RESPONDENT.
    Temporary Disability Admitted — Permanent Disability Claimed —Doctors Testified Both Ways — Burden of Proof Against Permanent Disability.
    Oil determination and order for dismissal.
    For the petitioner, Feit & Feit.

    For the respondent, James O. Boyd.

   Hs ^ ^ Hi *

It would appear from the evidence in this case that Adolph Kay, the petitioner, met with an accident arising out of and in the course of his employment with the respondent on November 34th, 1935, at the Kearny bus station, in Kearny, New Jersey, when a trench in which he was digging caved in. He was incapacitated for some time and was paid $357.43 as temporary compensation at the rate of $17 per week. The whole contention in this case on the part of the petitioner is that he is suffering from a permanent disability. Two doctors, Tommasi and Devlin, testified for the petitioner, stating that he had a permanent disability. Dr. Tommasi said that he based his entire diagnosis of the condition of the petitioner on an X-ray made by Dr. Devlin, which Dr. Devlin testified showed a slipping of the sacrum. Drs. Lowrey, Pascal and Washington, testifying for the respondent, said that after a thorough examination of the petitioner they could find no permanent disability, and that in all their experience they had never heard tell of the term “slipping of the sacrum.” Two expert roentgenologists testifying for the respondent stated that their findings were negative. It is entirely a question of fact, and the preponderance of the evidence is in favor of the respondent.

My opinion, based on the evidence, is that the petitioner is not suffering from any disability as the result of his accident and the petition should therefore be dismissed.

^ £ sjs % J}{ sjs

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    MORTON TREDGE, PETITIONER, v. LINDE & GRIFFITH COMPANY, RESPONDENT.
    Admiralty Jurisdiction — Compensation Barred by Statutory Limitations.
    On order dismissing case on motion of respondent.
    For the petitioner, Cyril J. McCauley.

    For the respondent, Richard W. Baker.

   A petition having been filed in the above matter on June 26th, 1926, asking for compensation under the terms of the Compensation law of this state, and an answer having been duly filed, the same came on for a hearing before me in Newark on December 1st, on the motion of the respondent to dismiss the petition on the grounds that the compensation bureau had no jurisdiction, as the case was one coming under the Admiralty law, and, further, on the grounds that even as a compensation case the case is barred by the statute of limitations.

The attornejr for the respondent argned that as the accident happened on board a scow on navigable water it was a case that clearly came under admiralty jurisdiction, and, therefore, that this bureau has no jurisdiction of this case. Further, he argued that as the last payment of compensation was made to the petitioner on January 6th, 1925, the case is barred by the statute of limitations. The attorney for the petitioner did not argue on the admiralty question, but, as to the other question, argued that the payment was made to the petitioner on December 29th, 1925, of $100, and that though this was alleged to have been made by the respondent as a payment towards medical expense, and though the petitioner gave a receipt for the same admitting that it was merely a voluntary contribution towards medical expenses, it actually should be classed as a compensation payment, and, therefore, the case not barred by the statute of limitations.

After going into the matter thoroughly, I find that the $100 paid in December, 1925, was merely a contribution towards medical expense, and that, therefore, the case is barred by the statute of limitations, and that this case should be dismissed without taking up or deciding as to whether or not this is an admiralty claim, over which this court has no jurisdiction.

Accordingly, I order that the case be dismissed, without costs to either party.

Harry J. Goas, Deputy Commissioner.


text:
    LEO STEINER AND HARRY STEINER, RESPONDENTS, v. MORGAN MOTOR CAR COMPANY, INCORPORATED, A CORPORATION, APPELLANT.
    Submitted October 15, 1920
    Decided March 23, 1927.
    Landlord and Tenant — Covenant to Pay Insurance — Amount Fixed at Time Lease was Made and Premium was Paid, Afterward Premium on Renewal was Paid — Property Then Sold, and New Landlord, Demanding More insurance, Paid Premium and Brought This Suit to Recover — District Court Gave Him Judgment — Held, That Covenant Ran With the Land and the Reasonable Amount of Insurance is a Matter of Fact Not Reviewable Here.
    On appeal from the Second District Court of Newark.
    Before Justices Kalisch, Katzenbacii and Lloyd.
    Por the appellant, Wolber £ Gilhooly.

    Por the respondent, Harry Sleiner.

   Per Curiam.

The Morgan Motor Car Company appeals from a judgment rendered against it in the Second District Court of Newark by the judge of that court sitting without a jury, for the amount of an insurance premium provided for in a lease of premises No. 1003 Broad street, Newark, between the Clinton Land and Improvement Company and the appellant, and which had been paid by the respondent.

The lease was dated April 11th, 1923, and ran for five years. It contained this clause: “And the party of the second part [appellant] further agrees that it will pay all water rates, insurance and taxes assessed upon the said property during the term.” Also that the agreement should bind the successors and assigns of the respective parties thereto.

At the time the lease was made the insurance was placed at $10,000, the premium on which was paid by appellant. This was renewed and likeAvise the premium paid. Early in 1926 Steiners, plaintiffs beloAv, bought the property from the Clinton Land and Improvement Company, which company (it is said by the respondent and acquiesced in by the appellant) assigned the lease to the Steiners, who, after investigation, demanded that the insurance be increased by $12,500. This being refused, the insurance was effected and the present action Avas instituted.

Payment Avas resisted on two grounds — ;-first, that the provision in the lease did not enure to the plaintiff, and second, that the amount already on the property was reasonably adequate.

The first ground we think is not well taken. The coarenant ran with the land, and enured to the benefit of the assignee of the reversion. 36 C. J. 169.

We also think the intention of the lease was to bind the parties in the event of its assignment either by the lessor or by the lessee, and that the provisions of the lease should-enure to the benefit of the assignee.

The second point made for reversal does not present a legal question. The obligation to pay the premium for insurance contemplated such insurance as might be found reasonably necessary to protect the property from loss by fire. What that amount might be was a disputed question of fact at the trial upon which there was variant proof, and the finding of the judge is not reviewable.

The judgment is affirmed.


author: Lloyd, J.

text:
    CATHERINE BYRNE AND PETER BYRNE, HER HUSBAND, APPELLANTS, v. WILLIAM H. BUTTERWORTH, RESPONDENT.
    Submitted October 15, 1926
    Decided March 23, 1927.
    Negligence — Injury to Plaintiff While at the intersection of Streets — Defendant Not Having Right of Way, Gave No Warning and Turned in a Way That Could Not Have Been Done if the Traffic Act Had Been Obeyed — Judgment For Nonsuit Reversed.
    On appeal from the Essex Circuit Court.
    Before Justices Kalisch, Katzexbach and Lloyd.
    Eor the appellants, Michael J. Tausey.

    For the respondent, Frank G. Turner.

   The opinion of the court was delivered by

Lloyd, J.

This is an appeal from a judgment of nonsuit entered in the Essex Circuit Court. The action was to recover damages for personal injuries received by Mrs. Byrne in a collision with an automobile driven by the defendant, Butterworth. The case made by the plaintiff was that on September 30th, 1923, about seven o’clock in the evening, she was going east on the north side of South Orange avenue, in East Orange, and that when she reached the center of Clinton street (which intersects from the north but does not cross South Orange avenue), she was struck on the right side and back by defendant’s automobile. She testified that there was no one on Clinton street, that no warning or sign of any .kind was given, and the defedant admitted that he did not see the plaintiff until he saw her on the fender.

We think the plaintiff was entitled to have her case submitted to the jury, and that the nonsuit was error. Having the right of way in crossing Clinton street, it was the duty of the defendant to respect that right, especially so in turning from a straight line on South Orange avenue into Clinton street. That he came from South Orange avenue is evidenced by the fact that the plaintiff was struck on the right side, and from the further fact that she looked but saw no automobile on the street she was crossing. A car proceeding in either direction on the avenue if seen by the, plaintiff would have justified an inference that its course would not change without warning, and certainly not change into another street, the crossing of which might be occupied by one on foot, crossing at its intersection. Even as to vehicles, the driver of an automobile is obliged to give warning of a turn, and if this be true as to those having equal rights only, the rule would seem to be available to one having superior rights. While it does not appear from which direction the defendant was proceeding before making the turn, it does appear that he struck the defendant while she was in the center of Clinton street. This he could not have done if he had obeyed the provisions of the Traffic act, which require that one turning to the right shall keep close to the right-hand side of the highway, and if turning to the left to proceed beyond the center of the intersection before making the contemplated turn. There was also evidence of negligence in the failure of the defendant to observe the plaintiff until she was actually on his fender.

The judgment is reversed and a venire de novo awarded.


author: Backes, V. C.

text:
    Meyer Strell and Helen Strell, his wife, complainants, v. Samuel Zisman, defendant.
    [Decided April 11th, 1927.]
    A screened-off portion of a store, used by the proprietor for sleeping quarters, does not constitute such portion a “room” within the definition of the Tenement-House act.

      Messrs. Howe & Davis, for the complainants.

      Mr. Millón M. Unger, for the defendant.
   Backes, V. C.

This bill is filed by a vendor to compel his vendee to perform his contract to purchase premises in Centre street, Newark. At the time fixed for settlement the defendant refused to comply with the contract because it was covenanted that the buildings on the premises “comply with municipal ordinances and regulations, and the provisions of the New Jersey State Tenement-House act as enforced by the state board of tenement-house supervision, to be shown by the report of the department or board enforcing the same where such ordinances, regulations and said act apply;” and in his answer he alleges that “this representation was untrue,” and that “at the time fixed for the closing of title the said premises violated the said act, in that the building at IBS-190 South Centre street was originally a two-family house and was occupied by three families in violation of the Tenement-House act.”

The answer presents no defense. The occupation by three families of a house originally constructed for two families is not forbidden by the act. However, under this answer it was proved at the hearing that the property consisted of a two-story building. The street floor contained two stores, one used by an upholsterer, the other by a druggist. On the second floor above the upholsterer an apartment was occupied by the complainant, and adjoining, over the drug store, another was in the use of the Poner family. The upholsterer, for his own convenience, had screened off part of the rear of the store for sleeping quarters for himself and his two sons. It was a makeshift affair and was described by witnesses as an improvised room or platform extending from the rear wall into the store, resting on two by four joists and enclosed with beaver boards to the height of six feet above the platform. This “room,” it is claimed, violated 'the Tenement-House act and rendered complainants’ title defective and invalid, and justified the defendant’s rejection of the contract. The contention is untenable. The statute defines a tenement-house, under the control of the board, as follows:

“A tenement-house is any house or building or portion thereof which is rented, leased, let or hired out to be occupied or is occupied as the home or residence of three families or more, living independently of each other and doing their cooking upon the premises.” Comp. Stat. p. 8593.

It was not pointed out wherein the “room” violated the act, but paragraph 28 (Comp. Stat. p. 5325) provides:

“No existing tenement-house shall be altered so as to increase the number of rooms, nor its hallways changed unless such new rooms or hallways shall be made to conform with the requirements of this act for buildings hereafter constructed.”

The building is not shown to have been within the definition, for, it does not appear that the upholsterer or his sons, his family, were “doing their cooking upon the .premises.” It was testified that they 'slept in the store, but not a word about cooking. For all that appears, they may have taken their meals elsewhere. The absence of this proof was not due to mere oversight, for the witness of the defendant did not fail to observe that in the two-family apartments upstairs there was cooking.

But if it be granted that the building was within the statutory definition of a tenement-house, there was no violation of the section secondly above quoted. The sleeping quarters, screened from the gaze of customers in the store, did not rise to the dignity of a room. It was a mere insert in the store, a bunk, a poor man’s substitute for a folding bed, and so frail that it could be taken apart in an hour. It was not a structural change of the building or division of the store into two rooms, and interdicted by section 28, unless the change conformed to other provisions of the act as to windows, light and air.

Now, we may assume further that the upholsterer’s sleeping quarters were such so that the building did not comply with the provisions of the Tenement-House act as enforced by the board, and, withal, the defendant is not to be discharged. The contract was made March 24th, 1926, to be perfected May 1st following. Time was not stipulated to be of the essence of the contract, nor is there anything in the circumstances indicating that the closing day was not a mere formality. The defendant’s objection was not to the title, nor to police supervision over the premises by the tenement-house board, but rested upon a transient offense against the tenement-house code, occasioned by a tenant, for which the complainant was not responsible, and which he promptly remedied — as promptly as the law would permit. The tenant was entitled to three months’ notice to quit. P. L. 1923 p. 144. This was given and he was dispossessed and the store restored in September. The covenant that the building comply with the Tenement-House act was of no greater effect that the usual one with respect to encumbrances. If such covenants can be and are satisfied at the time of the decree there is no breach. The complainant was diligent in removing the objection and the delay was not unreasonable. Under such circumstances performance is timely if conveyance can be made at the time of the decree. Gerba v. Mitruske, 84 N. J. Eq. 141.

Decree for complainant.