text:
    BELLE A. CARR, PLAINTIFF, v. NOCKEM RISKIN ET AL., DEFENDANTS.
    Decided August 20, 1930.
    .Before Gummeke, Chibe Justice, and Justice Campbell.
    For the rule, Jacob W. and Edgar A. De Toe.

      Contra, Ward & McGinnis.

   Pee Cueiam.

The s plaintiff brought suit to recover compensation for injuries received by her resulting from a fall in front of a building which, as she claimed, was owned by the defendants. The basis of her action is that the pavement along which she was walking when she fell was in a very dilapidated condition, making it dangerous to foot passengers, particularly in the evening, that being the time of day when she stumbled and fell. The exact location of the defective pavement, according to the testimony of the plaintiff, was where a driveway crossed the sidewalk and proceeded to the rear of the defendants’ property. The fact that the flagstones on this driveway were in a dilapidated condition and to some extent dangerous to persons walking along the street was shown by a preponderance of the evidence, and most of the testimony was devoted to this phase of the case. The trial resulted in a verdict in her favor, and a rule to show cause was allowed to the. defendants. After the allowance of the rule the defendants learned that two men, who had been sitting in an automobile which had been parked on the street about opposite to where the plaintiff fell, told a friend of the defendants that they had seen the accident and that it did not occur on this driveway but in front of premises adjacent to those owned by the defendants. This friend of the defendants told the latter what these two men had said,, and the defendants thereupon applied for leave to take testimony upon this point to be used on the hearing of the present, rule. This leave being granted, these two witnesses were examined, and their testimony corresponded with the statement which they had made to the defendants’ friend, which has already been recited. The only witness who corroborated 'the plaintiff as to the place where her fall occurred was a. boy some ten or twelve years old. No one else apparently saw the accident except this boy and these two men. If the testimony of these newly-discovered witnesses is to be accepted, as true, then the defendants are absolved from all liability. Their testimony is not cumulative, for the defendants at the-trial did not attempt to dispute the location of the accident. It is newly-discovered evidence within the meaning of that-phrase, for these two witnesses, as the testimony shows, were strangers to the defendants and the latter had no knowledge of their presence at the time of the accident, or any fact, which put them on notice of such presence. In other words, the failure of the defendants to discover this testimony prior to the trial was not the result of any lack of due diligence on the part of either of them. In this situation it seems to-us that justice requires that a new trial should be granted upon this ground; and this being so, we have-not considered it necessary to decide any of the other reasons which the defendants contend would justify setting aside the verdict.

The rule to show cause will be made absolute.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ROSA E. GERSTLEY, RESPONDENT, v. DAVID H. BEST AND HARRY BEST, APPELLANTS.
    Decided August 20, 1930.
    Before Gummebe, Chibe Justice, and Justice Campbell.
    Eor the appellant, Babcock & Champion.

    Eor the respondent, Cassman & Gottlieb.

   Per Curiam.

This is an appeal from a judgment entered by confession against the defendants on a bond and warrant of attorney; the payment of the bond being secured by a mortgage.

The first ground upon which we are asked to reverse the judgment is based upon the assertion that the plaintiff failed to file in the office of the county clerk an intention to enter judgment until after the judgment itself was entered; and the contention is that such entry was in violation of section 51 of the statute concerning proceedings on bond and mortgages given for the same indebtedness (Comp. Slat., p. 3423), which declares that where a mortgage is given for the same debt, no judgment .shall be entered upon the bond by confession unless, prior to the entry of the judgment, there be filed in the clerk’s office a written notice of the proposed entry. This ground of reversal would be well taken if it was true that the judgment was entered before the notice was filed. An examination of the record, however, shows that such was not the fact. The notice provided by the statute was filed on the 24th of June, 1929; the judgment was entered on the following day, that is, on June 25th. This being the situation, the contention of the defendants upon this point falls.

The next ground upon which we are asked to reverse the judgment is that the notice of intention was not that provided by the statute because it merely stated that it was intended to commence an action on the bond on which judgment was entered, whereas the proceeding for the entry of the judgment was taken and judgment was entered by confession. It may be conceded-that the notice was not skillfully drawn. We think, however, that it was sufficient in view of the fact that it contained the following recital in its beginning: “Notice of the proposed entry of judgment by confession on bond and warrant where mortgage has been foreclosed and a deficiency has arisen.” This is a correct recital of the situation as disclosed by the record; namely, that the bond had been secured by a mortgage; that the mortgage has been foreclosed; that a deficiency had arisen at the forecl&sure sale; and that the holder of the bond and mortgage proposed to enter a judgment by confession on the bond. The notice, by containing the information required by the statute, accomplished the purpose intended by the legislature in its enactment. This being so, we consider the ground of reversal last discussed must fail.

It is next contended that the record of the judgment does not show that it was entered within six months of the sale of the premises under the foreclosure. There is nothing, however, in the statute which requires the judgment to contain such a recital, and this being so, we conclude that this contention also is without merit.

The only other ground upon which the judgment is attacked is that the affidavit upon which it was entered was not sworn to before an officer authorized by the statute to take affidavits for the entry of judgment by confession on bond and warrant of attorney. This contention, we think, is based upon a misapprehension of the law. The affidavit was made by the plaintiff in the city of Philadelphia, in the State of Pennsylvania, before one Martha Quinn, a foreign commissioner of deeds for New Jeresy appointed to perform the duties of such commissioner in the State of Pennsylvania. The fifth section of the act, entitled “An act relative to oaths and affidavits” (Comp. Slat., p. 3774), provides that any oath, affirmation or affidavit required or authorized to be taken in any suit or legal proceeding in this state, when taken out of the state, may be taken before any notary public of the state, territory, nation or country in which the same shall be taken, or before any officer who may be authorized by the laws or this state to take the acknowledgment of deeds in such state, territory, nation or country, and a re: cital that he is such notary or officer in the jurat or certificate of such oath, affirmation or affidavit, and his official designation annexed to his signature and attested under his official seal, shall be sufficient proof that the person before whom the same is taken is such notary or officer. At the foot of the affidavit in the present ease appears the following: “Sworn and subscribed before me this 17th day of June, 1929. Martha II. Quinn, a foreign commissioner of deeds for New Jersey in Pennsylvania.” The commissioner’s seal is attached to this certificate. In view of the provision of the statute just referred to, we conclude that the affidavit was sworn to before an officer authorized by the statute to take affidavits for the entry of judgments by confession on bond and warrant of attorney, and was properly attested.

These are the only questions argued that have sufficient merit to entitle them to discussion. The judgment under review will be affirmed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE PALMER, PLAINTIFF IN ERROR.
    Decided August 20, 1930.
    Before Gummere, Chibe Justice, and Justice Campbell.
    Eor the plaintiff in error, Joseph H. Gaudielle.

    Eor the state, Archibald 0. Hart, prosecutor of the pleas, and John J. Breslin, Jr.

   Per Curiam.

The defendant in this case was convicted upon, an indictment charging him with the possession of a certain automobile which -had been stolen, and which he knew had been stolen, when he took possession of it. The principal ground urged for a reversal is that the trial court erred in refusing to make a finding of not guilty on the motion of defendant’s counsel. This motion was based upon the contention that the state had failed to prove that the stolen automobile was received by the defendant in Bergen county, and that it was necessary to prove that fact in order to give the court jurisdiction; that the venue must be laid in the county in which the crime was committed, and proof of that fact must be submitted in order to show jurisdiction on the part of the trial court. The indictment is based upon a supplement to the Crimes act passed in 1928. Pamph. L., p. 356. The pertinent provision of the statute is that any person who shall receive or buy any goods or chattels that have been stolen from another person, or taken by robbery, whether such stealing or robbery shall be committed in the State of New Jersey or in some other jurisdiction, shall be guilty of a high misdemeanor; and if such person is shown to have or have had possession of such goods and chattels, within one year from the date of such stealing, such possession shall be deemed sufficient evidence to authorize conviction unless he shall show to the satisfaction of the jury that the property was honestly acquired. In view of this statutory provision it seems plain that if the defendant is found in the possession of a stolen chattel in a certain county, the venue should be laid in that county; that is, in the county where such possession is shown to have been had. In the present case the proofs showed that the automobile had been stolen from one Duguid in Brooklyn, New York, that on the day following it was recovered in Teaneck, Bergen county, and that the car was then in the possession of the defendant Palmer and two other men who were with him.

Eor the reason stated we conclude that this contention is without merit.

The only other ground of reversal is that the verdict was contrary to the weight of the evidence.

There is nothing of merit in this contention. As has already been pointed out, the evidence on the part of the state fully justified the conclusion that these three men were in possession of the stolen car at the time of its recovery, and the defendant offered no evidence whatever to contradict the state’s ease, or to show that the automobile was honestly acquired either by himself or his companions.

The conviction under review will be affirmed.


author: Pee Cueiam.

text:
    DRILL CONSTRUCTION COMPANY, RESPONDENT, v. LOUIS ROSENTHAL, APPELLANT.
    Decided August 20, 1930.
    Before Gummeee, Ciiiee Justice,-and Justice Campbell.
    For the appellant, Richard J. Fite Maurice.

    For the respondent, Philip J. Schotland.

   Pee Cueiam.

The plaintiff brought suit to recover from the defendant moneys due to it, for labor and materials furnished by it at the Colonial Theatre, in Orange, which was owned by the Bieber Amusement Company, of which the defendant was president. The trial resulted in a verdict in favor of the plaintiff, and the defendant has appealed from the judgment thereon.

It appeared in the proofs submitted by the plaintiff that on the 3d of September, 1929, the Drill Construction Company sent to the defendant Rosenthal the following letter: "Mr. Louis Rosenthal, 4 Main street, Orange, N. J. Dear Sir: We propose to do the following work at the Colonial Theatre, Orange, N. J.: [then follows an itemized statement of the various repairs and construction work proposed to be done]. 'We will clo this work at cost plus ten per cent, for overhead .and ten per cent, for profit, with the understanding that the final cost will not exceed $4,405. Yery truly yours, Drill Construction Company, per Max Drill.” This letter was endorsed by Louis Rosenthal as follows: “0. Eh, Louis Rosenthal.” It is conceded that the plaintiff did all the work and furnished .all the materials specified in this letter, and that when it demanded payment from Rosenthal, such payment was refused by him.

The first ground urged as a reason for reversal is that the trial court erred in holding that the paper above recited was .a contract. We consider that there was no error in so holding. The paper is an offer specifying in detail everything proposed by the plaintiff to be done, and the price for doing it, and an unrestricted acceptance of that offer by the defendant. There is no suggestion in the case that a further writing was contemplated by the parties, and no such' writing was necessary in order to indicate with exactness their respective obligations.

The only other ground urged for a reversal is that the court erred in refusing to allow evidence to show that the contract was not a contract of Rosenthal himself but of the corporation of which he was president. We think the court ■committed no error in refusing to admit such evidence. The fact that Rosenthal, the person to whom the offer was made and who personally accepted it, was not the owner of the promises but was, the president of the corporate owner, is immaterial. As was stated in the case of Sadler v. Young, 78 N. J. L. 594, an agent who contracts in such form as to make himself personally responsible cannot afterward relieve himself from that responsibility. The evidence attempted to be introduced was offered for the purpose of showing that Rosenthal acted as the agent of the Bieber Amusement Company and not as a principal in making the contract. In the Sadler case it was held that where the body of the contract provides that the defendant (who in that case also was president of the corporation) shall pay the plaintiff’s commission, and it is signed by him personally and not as agent or representative of the corporation, he is personally obligated to perform the contract. The purpose of the testimony sought to be introduced was to vary the terms of a contract between the parties to it by showing that it was not the obligation of one of the parties who signed it. As was held in the ease of Naumberg v. Young, 44 Id. 331, where parties have put their contract in writing, the written contract shall be the only evidence of the contract as finally concluded, and oral testimony will not be admitted to contradict it.

Eor the reasons indicated the judgment under review will be affirmed.


text:
    ISADORE BLANK, PLAINTIFF, v. LOIZEAUX BUILDERS SUPPLY COMPANY ET AL., DEFENDANTS.
    Decided August 20, 1930.
    Before Gummere, Ci-iiee Justice, and Justice Campbell.
    For the rule, Jeremiah A. Kiernan.

    Contra, Thomas Brown.

   Per Curiam.

This suit was brought to recover compensation for injuries received by the plaintiff in a collision between a milk wagon of which he was in charge and a truck belonging to the defendant company and driven by its employe. The trial resulted in a verdict in favor of the defendants, and the contention before us is that this verdict was contrary to the weight of the evidence. Out consideration of the testimony relating to the conditions under which the collision occurred leads us to the conclusion that the jury was entirely justified in its finding.

The rule to show cause will be discharged.


author: Pee Cubiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. DIOMEDES MANTIS, PLAINTIFF IN ERROR.
    Decided August 20, 1930.
    Before Gummebe, Chief Justice, and Justice Campbell.
    Por the plaintiff in error, Prichard Doherty.

    Por the state, Joseph L. Smith, prosecutor of the pleas.
   Pee Cubiam.

The defendant was convicted upon two indictments tried in the Essex Quarter Sessions. The first contained a count charging him and four others with assault and battery on one Jacobowitz and robbing him of his property. The other indictment charged the same defendants with assault and battery and robbery upon the person of one William Webber. The indictments were tried together by consent of the parties. The proofs on the part of the state showed that on the 25th day of March, 1929, a robbery of the safe in the Grant lunch room at Newark and of the people at that time present on the premises was committed by four men. The proprietor of the lunch room was Jacobowitz. One of the four men, as-the state attempted to prove, was the defendant Mantis. The evidence submitted by the state was convincing as to the commission of the robbery, the holding up of the employes with guns by the robbers, and also the holding up of customers, in the restaurant, one of whom was Webber, the tying up-of all the parties who were first searched and what money they had taken from them, and also the stealing of the money from the cabinet in the lunch room where it was kept by the-proprietor.

The first ground upon which we are asked to reverse the-conviction is that there was no proof submitted by the state-justifying the conclusion that Mantis had anything to do with the robbery and that therefore it was error to refuse a request, submitted on his behalf to direct a verdict in his favor. Our examination of the evidence leads us to the conclusion that, this contention is without substance. The evidence submitted showed that Mantis was one of a party of four that came into-the restaurant together. That some of the members of this-party held up the occupants of the restaurant while others committed the robbery is not denied. Whether or not all of' these.four men who came in together participated in the robbery was, under the proofs submitted, a question for the jury. This being so, the refusal to direct a verdict of acquittal in. favor of Mantis was fully justified.

The next contention is that the instruction of the court defining reasonable doubt in charging the jury was misleading- and injurious. Our examination of the charge satisfies us-that it was a correct statement of the law bearing upon this; subject.

Next it is contended that it was error on the part of the-court to refuse to define the crimes of robbery, assault and battery, and entering with intent to rob; and also in refusing-to define a principal in the second degree, aiding and abetting. The answer to this contention is that there was no such refusal but merely a failure to define these several crimes- and the characteristics of a principal in the second degree, aiding and abetting. Such failure, however, does-not constitute legal error. It is only where instructions -are requested and not complied with that error exists.

It is further argued that there was injurious error in the court’s refusal to charge certain requests submitted, stating the rule as to the burden upon the state to prove guilt, and also the rule of reasonable doubt in relation to a defense of alibi, that defense being submitted by the plaintiff in error. It appears from an examination of the state of the case that, these requests were not submitted until after the jury had been charged and had retired. The court was under no legal obligation to recall the jury for the purpose of charging these-requests. In other words, requests not submitted before the charge is begun, or immediately after it has been concluded, may properly be disregarded by the court.

Other grounds of reversal are argued in the brief of counsel for the plaintiff in error, but they are so palpably without merit as not to be worthy of discussion by this court.

The conviction under review will be affirmed.


text:
    SAMUEL KARETNICK ET AL., PLAINTIFFS, v. ABRAHAM I. SKRILOFF, DEFENDANT.
    Decided August 20, 1930.
    Before Gummere, Ciiiee Justice, and Justice Campbell.

      Eor the rule, Kraemer, Siegler & Siegler.

    Contra, Fleming & Handford.

   Pee Cueiam.

The plaintiffs are wholesale furniture dealers. The defendant is a retail dealer. The present suit was instituted on a book account for goods sold and delivered by the former to the latter. The total amount, of the plaintiffs’ claim was $740. The furniture, the price of which is the subject-matter of the suit, was sold at different times during the j^ear 1927. The defendant contended in his answer that he paid for part of the items contained in the account and that he had rescinded the contract of purchase with'relation to the other items and refused to retain the goods because of their defective condition and of the fact that they did not comply with the specifications which were a part of the contract of purchase. As to the defense of payment, the proof was that the defendant sent to the plaintiff two checks totaling $308.50. These checks contained endorsements that they were in full payment of the moneys then owed the plaintiffs by the defendant. The plaintiffs refused to accept them because of these endorsements, claiming that the recital on each was not true in fact, but failed to. return them to the defendant. The trial resulted in a verdict in favor of the defendant.

The facts above recited were all that were shown to support the contention of payment in part. It was admitted that the checks had never been paid. The plaintiffs were not bound to accept them as payment. In this situation we consider that the plaintiffs were entitled to a verdict for at least the amount of money which the defendant claimed to have paid, it being admitted that this sum at least was due to the plaintiffs at the time the checks were given. This being so, the verdict now under review cannot be sustained even if there was a rescission of the contract so far as it related to the rest of the furniture which is the subject-matter of the litigation.

The rule to show cause will be made absolute.


text:
    CARRIE SCHOONOVER, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. MARCUS W. DE CAMP, DEFENDANT.
    Decided August 20, 1930.
    Before Gummbre, Chiee Justice, and Justice Campbell.
    Eor the rule, Bernard L. Stafford.

      Contra, Evans, Smith & Evans.

   Per Curiam.

This suit was brought under the Death act to recover the pecuniary loss sustained by the widow and next of kin of Ira Schoonover, his death resulting from a collision with the automobile of the defendant as Schoonover was crossing the street in the borough of Caldwell. The plaintiff’s decedent was a conductor in the employ of the Erie railroad at the time of the happening of the accident, and was in charge of a train running from. Caldwell to Jersey City. The accident occurred on a Sunday morning in January about half past ten o’clock. The decedent, desiring to obtain a Sunday newspaper, caused the train to be stopped opposite to a news store for the purpose of purchasing the newspaper. The stop was not a regular station. Plaintiff’s decedent left the train, crossed over Bloomfield avenue, which adjoined and ran parallel to the right of way of the railroad, went into the store, purchased a newspaper, and in attempting to cross Bloomfield avenue on his return to the train was struck by the defendant’s automobile. The proofs showed that there had been a heavy storm on the preceding day; that the sidewalk on Bloomfield avenue had been cleared of the snow, which had been thrown into the gutter, causing an embankment of a foot or two in-height; and that the sidewalk itself, the embankment and the roadway of Bloomfield avenue were covered with ice. The trial resulted in a verdict in favor of the plaintiff, the jury finding that the accident resulted from the negligence of the defendant in the driving of his automobile, and that it was not contributed to by any negligence on the part of the decedent.

The finding of the jury on the question of the contributory negligence of the decedent is so clearly against the weight of the evidence, in our opinion, that it should be set aside and a new trial ordered. The principal witness called by the plaintiff was one Tichenor, who was a passenger on the train and was the only person who observed decedent’s movenants continually from the time the latter left the newspaper store until he was struck by the defendant’s automobile. Upon his cross-examination he described the accident as follows: "Q. Now, when Mr. Schoonover came out of the newspaper store, did you notice what he had in his hand? A. He had a newspaper. Q. You knew he was going for a paper, didn’t you? A. Yes; I saw him with a newspaper. Q. Did he run as he came out of the newspaper store? A. No, he didn’t run; he couldn’t run. Q. He slid? A. Yes. Q. He slid along the sidewalk? A. Yes. Q. Did he slide over the curb? A. He did. Q. He slipped over the curb into Mr. De Camp’s car, didn’t he? A. Just what he did, yes. Q. It was a continual slide ? A. Yes, it was. Q. Right from the point of the newspaper store right into Mr. De Camp’s car was a continual slide, wasn’t it? A. That is just exactly what it was. . Q. He did not stop once, Mr. Tichenor, from the time he left the newspaper store, the door, rather, until there was the collision, did he? A. No. Q. Didn’t stop? A. He attempted to stop as he saw Mr. De Camp’s car. Q. Yes, that was the time he threw his hands up? A. Yes, that is right. Q. That was the first time he looked, wasn’t it? A. Yes, it was. Q. And the time he looked for the first time Mr. De Camp’s ear was five feet away? A. Approximately. Q. That is, when he threw his hands up you say he still slipped, slipped down under the car; isn’t that true? A. Yes, he was about two feet off of the curb.” This testimony was not controverted by other evidence offered either on behalf of the plaintiff or by testimony submitted by the defendant. It demonstrates, as we think, that the accident was the result partially at least of the contributory negligence of decedent.

The rule to show cause will be made absolute.


author: Pee Cukiam.

text:
    RUTH FREUND, RESPONDENT, v. ADOLPH AND JENNIE FREUND, APPELLANTS.
    Decided August 20, 1930.
    Before Gusdiebe, Chief Justice, and Justice Campbell.
    For the appellants, Seine & Laird.

    For the respondent, Potter & Berry.

   Pee Cukiam.

This action was brought by Buth Freund, the wife of Samuel Freund, the son of the two defendants, who were husband and wife. The purpose of the action is to recover compensation for the alienation of the affection of her husband by the defendants. The trial resulted in a verdict in her favor, the jury awarding her $15,000, and defendants appeal from the judgment entered thereon.

The first ground upon which a reversal is sought is based upon the refusal of the trial court to grant the defendants’ motion for the direction of a verdict. The complaint averred, and the proofs showed, that the alienation of the husband’s affections took place in March, 1919; and that as a result of the acts of the defendants the husband left his wife in April of that year and returned to the home of his parents, with whom he has ever since resided. The suit was instituted in June, 1925, and the motions which were denied was based upon the contention that the action was barred because by the statute of limitations it was required to. be brought within six years after the right of action had become complete. The contention on behalf of the plaintiff was that the right of action is a continuing one and that consequently the statute is not a bar. This contention, however, is in the face of our decision in Crane v. Ketcham, 83 N. J. L. 327. This fact is immaterial so far as the present case is concerned, and for this reason section 8 of the statute of limitations (3 Comp. Stat., p. 3166) provides that if any person or persons against whom there is or shall be any such cause of action as that now under consideration, shall not be a resident or residents in this state when such cause of action accrued, then the time during which such person or persons shall not reside in this state shall not be computed as part of the said limited period within which ■such action or actions are required to be brought as aforesaid. In the present case the undisputed proofs showed that at the time of the tortious acts complained of the defendants were residents of Brooklyn, in the State of New York, where they lived until the year 1921, and then removed to New-Jersey. The statute did not begin to run, therefore, in their favor until 1921, and the present action was instituted a little more than four years thereafter. In view of this statutory provision the court properly refused the motion to direct a verdict for defendants.

The next ground of reversal is that the court erroneously permitted the plaintiff to introduce in evidence over objection certain letters written by herself to her husband and by him to her, the contention being that these letters were not admissible in the absence of evidence showing knowledge of their contents on the part of the defendants and a concurrence in the statements therein. We consider that these letters were properly admitted. Although they are not competent substantive evidence of the defendants’ tortious acts, such letters passing between the spouses after the alleged alienation, are admissible to show the character of the relations between them after the wrongful act of the parents in endeavoring to keep them apart. 30 C. J. 1143.

The only other grounds of reversal are directed at alleged errors in the charge to the jury, and in refusing to charge certain requests submitted on the part of the defendants. We find nothing of merit in these contentions. In other w'ords, the charge itself was a correct exposition of the law, and the requests submitted were properly refused.

The judgment under review will be affirmed.


author: Peb Cubiam.

text:
    VINCENT DUNN, PLAINTIFF, v. GEORGE CUTLEY, DEFENDANT.
    Decided August 20, 1930.

      Before Gummeke, Chief Justice, and Justice Campbell.
    For the rule, McDermott, Enright & Carpenter.

      Contra, Breslin & Breslin.

   Peb Cubiam.

This suit is brought upon a promissory note, signed by the defendant, dated on the 6th of April, 1925, and made payable to his own order at the expiration of two months from its date at the National Bank of North Hudson, in the city of Hoboken. It is conceded that he was an accommodation maker. The note was endorsed by A. R. L’Hommedieu and two others and was given by Cutley to L’Hommedieu for the latter’s accommodation in order to enable him to straighten out financial difficulties in which he found himself with the First National Bank of Stroudsburg. The defendant Cutley is a member of the bar of this state and had been employed to wind up an estate in which L’Hommedieu was interested as a legatee and devisee; ■ and two days after signing the note he wrote the following letter to the president of the Stroudsburg bank: “April 8th, 1925. Mr. William L’Hommedieu, First National Bank, Stroudsburg, Pa. Dear Sir: In an endeavor to get the matter of the L’Hommedieu estate settled it has become necessary for me to personally try to help Mr. Arthur L’Hommedieu financially. I will tell you just what I have done. In addition he tells me that he has obligations with your bank which, due to peculiar reasons, you must eliminate from your institution. I am enclosing note for $5,000 made by me, Mr. L’Hommedieu and his two daughters. In addition to that, these three parties are willing to assign as further protection all their right, title and interest in and to the L’Hommedieu estate. However, this does not seem to be necessary because I am positively sure that the whole matter will be settled within thirty days, but I have made the note for two months because sometimes in legal proceedings things do not eventuate on the day you anticipate. There is no reason why this proceeding in New Jersey will not be closed within the month. Yours sincerely, George E. Cutley.”

Something like two weeks after this letter was mailed Cutley received a letter from the cashier of the Stroudsburg bank stating that the note had been discounted. The fact was that it had not been discounted for its face value but was canceled by the bank to the extent of $3,000 and the remaining amount then credited to the account of Arthur L’Hommedieu to the extent of $2,000. There is nothing in the proofs to indicate that Arthur L’Hommedieu ever drew out a single penny from the money so credited to his account. The testimony given by the defendant on the witness-stand showed that about a month after the making of the note he called up the bank on the telephone and informed the president that the time had arrived for the settlement of the estate in which Arthur L’Hommedieu was interested and for the distribution of the funds thereof; and that he had reserved $5,000 of the money belonging to Arthur as one of the distributees of the estate for the purpose of covering the note; and that the president then told him that he need not hold this money because the note was not any good to the bank. He thereupon paid LTIommedieu the $5,000 which he had reserved. Subsequently the bank called upon Cutley to pay the note, and upon his refusal to do so, assigned it to Vincent Dunn, the present plaintiff, who thereupon brought suit against Cutley for the moneys claimed to be due from him as the maker thereof. The case in due course went to trial and a verdict was rendered in favor of the defendant. The present rule was allowed to test the validity of that verdict.

In its charge to the jury, the court instructed the members thereof that if they believed the testimony of Cutley that he was induced to pay over this reserve fund of $5,000 to Arthur L’Hommedieu by reason of the statement made by the president of the bank, the bank was estopped thereafter from enforcing against Cutley his obligation under the note, and the question involved in the present rule is whether the court was right in leaving this matter to the jury as the determining factor in the case. In 10 R. C. L. 697 it is stated that the final element of an equitable estoppel is that the person claiming it must have been misled into such action that he will suffer injury if the estoppel is not declared. That is, the person setting up the estoppel must have been induced to alter his position in such a way that he will be injured if the other person is not held to the representation or attitude upon which the estoppel is predicated. An equitable estoppel protects the party setting it up from a loss which, but for the estoppel, he could not escape. We consider that this is a sound legal principle and that it is applicable to the present case. The jury resolved this crucial fact in favor of the defendant and their finding was justified by the evidence. The present plaintiff, as the proofs show, accepted the assignment of the note from the Stroudsburg bank long after the note fell due, and merely for the purpose of representing the bank in this suit. In this situation the estoppel applies not only to the bank but to the plaintiff as its assignee.

The rule to show cause will be discharged.


author: Pee Curiam.

text:
    F. S. ROYSTER GUANO COMPANY, APPELLANT, v. MARY E. SHERMAN, RESPONDENT.
    Decided August 20, 1930.

      Before Gummere, Ciiiee Justice, and Justice Campbell.
    Eor the appellant, Applegate, Stevens, Foster, Leonard & Beussille.

    Eor the respondent, StoTces, McDermott & Hartshorns.

   Pee Curiam.

This suit was brought by the plaintiff to recover the amount due on a certain promissory note signed by the defendant Mary Sherman and her co-defendant Arthur Sherman. The latter interposed no defense and a judgment by default was entered against him. The other defendant, Mary E. Sherman, who, it was claimed, was mentally incompetent to bind herself as the maker of the promissory note, answered by her guardian, who was appointed by the court to represent her. The defense set up in the answer was that she was mentally incompetent to bind herself when she signed the note. The instrument was given to the plaintiff to secure the payment of certain fertilizing material sold by it to the defendant Arthur Sherman, who is engaged in the feed and grain business, including the selling to individual customers of fertilizing material. The answering defendant Mary is his aunt and was an accommodation maker for his benefit. The trial resulted in a verdict in favor of Mary E. Sherman, the finding of the jury being based upon its conclusion that she was mentally incompetent when the note was given to bind herself as the maker of it for the benefit of a third party. The 'plaintiff has appealed from the judgment entered upon this verdict, and two grounds are urged for the reversal thereof.

The first ground of reversal is that the court erred in denying plaintiff’s motion for the direction of a verdict in its favor; and the argument in support of this contention is that the motion should have been granted because there was nothing appearing in the testimony showing that the plaintiff had knowledge of the defendant’s alleged insanity or of any facts that its taking of the note sued upon amounted to bad faith upon, its part. This ground of reversal varies from the reason stated to the trial court as the basis upon which the plaintiff based its motion for the direction of a verdict. In support of the motion counsel for the plaintiff stated, as a ground for granting it, that “this suit is brought upon a promissory note of which, under the evidence, Arthur P. Sherman is maker and Mary E. Sherman is an accommodating party. The note was received by the Royster Guano Company and the query arises as to whether or not that company is a holder in due course. If it be a holder in due course, the insanity is not a real defense and the plaintiff would take it free from the single defense alleged." The question presented to us for our determination is whether the ground upon which the motion to direct a verdict was based is legally meritorious. In our opinion it was not. The payee of a promissory note is presumed to be a holder in due course; but that presumption is not conclusive; and where the proofs show that the holder knew at the time it recéived the note that the maker was mentally incompetent to bind herself by exceuting it, or where it had knowledge of facts which would put it upon inquiry which inquiry, if prosecuted, would have resulted in the discovery of such incompetence, that constitutes a valid defense and overthrows the presumption that the plaintiff is a holder in due course. It will be observed that the ground upon which the motion was based fails to make any reference to the right of the plaintiff to recover if before it accepted the note it knew that the defendant was insane when she signed it, or had knowledge of facts which put it upon inquiry as to her mental condition;' counsel apparently assuming that such knowledge would be no bar to the plaintiff’s right to recover. The evidence submitted by the defense raised a question as to whether or not the plaintiff at the' time it accepted the note had knowledge that this defendant was insane, and the solution of that question was for the jury, not for the court. Eor the reason indicated we conclude that the refusal to direct a verdict upon the ground stated to 'the trial court was proper.

The only other ground upon which we are asked to reverse the judgment under review is that the trial court erred in instructing the jury to determine whether the plaintiff acted under the circumstances as a reasonably prudent person should, whereas, as counsel contend, the question properly to be submitted to the jury was whether or not the plaintiff acted in bad faith in the taking of the note. The only basis for this ground of reversal is that stated in the exception to the portion of the charge which, after declaring that the court had instructed the jury that it was incumbent upon the holder to investigate the capacity of one or all of the prior parties, then stated: “It is our insistence that this duty is not, by the Uniform Negotiable Instruments act, placed upon the holder.” It is enough to say, in disposing of this ground of reversal, that the charge of the court was not so broad as is indicated in the statement of counsel, but on the contrarjr that it limited the obligation of the holder to the making of an investigation when it had notice of alleged facts which, if true, barred the signer of the note from executing a legal obligation, provided that such notice was brought to the attention of the holder before it accepted the instrument. This instruction we consider sound for the reason already indicated.

The judgment under review will be affirmed.


text:
    ROSE SCHAUBLIN, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. FINKLE’S EXPRESS, INCORPORATED, ET AL., DEFENDANTS.
    Decided August 20, 1930.

      Before Gummere, Chief Justice, and Justice Campbell.
    Eor the rule, Kellogg & Chance.

    Contra, Roemer & Cole.

   Per Curiam.

The present suit was brought under the Death act to recover the pecuniary loss sustained by the widow and next of kin of Edward Schaublin, whose death, as plaintiff claimed, was the direct result of the carelessness of an employe of the defendant company in the driving of a truck belonging to it. The trial resulted in a verdict in favor of the plaintiff, the jury awarding her $20,854.08. We are asked to set aside this verdict upon two grounds—first, because it is against the weight of the evidence; second, because it is excessive. Our examination of the proofs satisfies us that the jury was justified in its finding that decedent’s death was due solely to the carelessness of defendant’s employe in the driving of the latter’s truck; and that, although the award is large, it is not so clearly excessive as to justify us in setting aside the verdict.

The rule to show cause will be discharged.


author: Backus, V. C.

text:
    Solomon Bernstein, complainant, v. New Jersey Bankers Securities Company, a corporation, defendant.
    [Decided September 2d, 1930.]

      Messrs. Leber & Rubaclc' for the complainant.

      Mr. Isadore Qlauberman, for the defendant.
   Backus, V. C.

An appeal has been taken from a partial allowance to the receivers and their counsel of $10,000 each. The appeal would seem insincere when it is considered that the receivers handled an estate of $2,000,000, in precarious circumstances, calling-for the utmost diligence, constant attention and exceptional business experience and judgment to conserve the assets to a minimum of loss. The court is fully informed of their labors, their cares and anxieties in the discharge of their trust; it having been at all times in intimate touch with them and advised in the problems they had to meet and resolve; and there were not a few. Their administration was not merely of gathering up the fragments of. a defunct concern for distribution. There were instances in which, through their salesmanship and protective measures, they earned far more for the company than the. fees they ask. It is as impossible in retrospect, to measure their savings to the estate as it is the losses the estate might have suffered had they been less “on their toes;” less ardent. Of course, they but discharged their duty. However, 'a duty well done is to be appraised not in hours or days of labor, that is an element, but as well as the value of the services in promoting the- assets to the best advantage.

The appeal questions the court’s power to make allowances for want of jurisdiction to appoint equity receivers. The question of jurisdiction to entertain the bill and appoint receivers was not raised at the original hearing. Indeed, at that time things were in such chaos that all concerned looked to the court for relief. The board of directors had disintegrated, following a bitter strife among the members over the attempt of the majority to hand over what was then nearly $4,000,000 of cashable assets (Hobart Trust had not then collapsed) to Weinberger’s friend Spielberg for his worthless stock in his Equitable Einance Company. Had the deal not been blocked by injunction in the first Bernstein suit all would have been wiped out and Weinberger, in all likelihood, would by now have been relieved of liability on his $2,300,000 note to the company given to account for his earlier misapplication of its funds, for there can be little doubt that he had arranged for that with Spielberg. All but two or three of the directors had quit and the affairs were in the hands of the president, who was in Europe, and he had left the funds in charge of his lady secretary. The Hobart Trust, in which the com-' pany owned thirty thousand of the forty thousand shares, had been closed the day before the bill was filed; a bank in Few York in which it held control was on the point of being taken over by the federal government and another in this state was in danger of the same fate. It is from an order appointing equity receivers, in this emergency, to salvage the wreckage and to avoid greater eatastrophy that an appeal has been taken. The court entertains no question of its power nor of its duty in the circumstances.

The receivers turned most of the securities into liquid assets; and the rest is being prudently liquidated to obtain the best price. The court directed measures for part distribution of the liquid assets and upon the return of an order to show cause there was objection, and also protest against the fees asked by the receivers and their counsel of $25,000 each, of which they had given notice. Leaders formed groups of solicited stockholders, each having for their object the control of the company, or, rather, the money. The cash had peculiar attraction; times were depressed and each group in its own way saw promising opportunities for manipulation and money making. One of the group (with the aid of the Weinberger controlled controlling block of stock, present at the election to make up a quorum, but not voting as promised the court of errors and appeals) claimed to have elected a board of directors and claiming to represent the company petitioned for the return of the assets and the discharge of the receivers. A minority of the stockholders and some of the groups wanted distribution and many of the stockholders were indifferent; not responsive. After further and prolonged hearing, on notice to the stockholders, a final decree was entered enjoining the company from exercising its franchise and statutory receivers were appointed. The equity receivers were appointed. There may be merit in an appeal from the final decree, but none is taken. Counsel states that he intends standing or falling by his appeal from the interlocutory decree appointing equity receivers and that an appeal is not intended from the final decree if he fails. This assurance against the delay of a second appeal from the final decree may readily be avoided by dismissing present counsel. Already inspired appeals have been taken by a stockholder from the decree and order now before the court of errors and appeals.

The court feels in duty bound to respect the appeal from the intermediate order, though none has been taken from the superseding decree, and to await the judgment of the court of errors and appeals before making distribution. The receivers having performed their more onerous and valuable services, and pending the appeal have but to prudently invest the cash at the highest yield and liquidate the few remaining securities, the court proceeded to fix their compensation, but after a hearing, which was interrupted by the end of the day’s work, and a direction to'take further testimony before a master, which was recalled, concluded that the appropriate and more practical course was to make a partial allowance and to defer fixing compensation until final distribution, after the appellate court shall have approved or disapproved its conduct of the cause. Temporary allowances to receivers and counsel, in circumstances like the present, is common practice in this court.


author: Per Curiam:

text:
    VIOLET MAY HUMMERS ET AL., RESPONDENTS, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, APPELLANT.
    Decided August 20, 1930.
    Before Gummere, Chief Justice, and Justice Campbell.
    For the appellant Public Service Electric and Gas Company, Henry H. Fryling.

    For the respondents, George F. Losche.

   Per Curiam:

This is an appeal by the Public Service Corporation from a judgment entered against it and in favor of the plaintiffs. The suit was brought to recover compensation for personal injuries received by Violet May Hummers, an infant, who while riding on a scooter bicycle was struck and severely injured by an automobile truck owned by the corporation and driven by its employe, the defendant Ankelein, and also for the expenses and losses incurred by her father as the result of the injuries to his child. The case of the plaintiffs was based upon the contention that the accident occurred through the negligent driving of Ankelein, and that the Public Service Corporation, as his master, was responsible for his negligence. The jury returned a verdict in favor of the infant plaintiff for $10,000, and in favor of her father for $3,000, against the defendant Public Service Electric and Gas Company, and in favor of the defendant Ankelein, .finding no cause of action as against him. The court charged the jury as the law of the case that the Public Service Corporation was made a defendant because it was the owner of the truck, and that the contention of the plaintiffs was that by reason of the relationship of master and servant the Public Service Corporation should respond in damages for the wrongful acts of the driver. The court then proceeded as follows: “If you determine from all the evidence that this man Ankelein was engaged at the time of the accident as a servant of the Public Service Corporation, and that he was engaged in the scope of his duty, then if you find that he was guilty of negligence and such negligence was the proximate cause of the injury, of course his master is responsible for his acts. It is your duty to decide from all the evidence in the case whether or not the defendant Ankelein was engaged in the work of his master, the Public Service Corporation, in such a way as to render the Public Service Corporation liable for his negligent act.”

The verdict returned by the jury against the Public Service Corporation is clearly contrary to the law of the case as stated by the court in its charge to the jury; that is, that the company was only responsible in case Ankelein while engaged in its service negligently caused the accident which is the basis of the present suit. A verdict in favor of the driver was, by necessary implication, a declaration by the jury that he was not guilty of any negligence which was the producing cause of the accident. The verdict of the jury imposing liability upon the corporation, although there was no negligence on the part of the driver, being illegal, the judgment entered on that verdict is also illegal. Musto v. Mitchell, 105 N. J. L. 575.

The principal ground of appeal being that the verdict of the jury and the judgment entered thereon were contrary to law, and that contention being well founded for the reason stated, the judgment under review will be reversed.


text:
    VICTOR BARBERO, PLAINTIFF, v. STEPHEN PELLEGRINO, DEFENDANT.
    Decided August 20, 1930.
    Before Gummere, Chief Justice, and Justice Campbell.
    For the rule, John F. Evans.

      Contra, Harley, Cox & Walburg.

   Per Curiam.

This suit was brought to recover compensation for personal injuries. The plaintiff was employed as a carpenter by Letz and Katz, who are the owners of and were engaged in erecting an apartment house in Paterson. The defendant was employed by the owners of the building to do the mason work thereon. While the plaintiff was standing in front of this building preparatory to going to work in the early morning of June 4th, 1927, he was struck by a brick which fell from a platform or a window ledge of the building. His claim was that the fall of the brick was the result of negligence on the part of an employe of the defendant, and that the latter was responsible. The court charged the jury that the fall of the brick spoke negligence on the part of the person who was responsible for its fall. The trial resulted in a verdict in favor of the plaintiff. The defendant applied for and was allowed a rule to show cause why this verdict should not be set aside, all exceptions at the trial by the defendant being reserved.

The only ground for making the rule absolute which has-been argued before us is that the trial judge erroneously-instructed the jury that there was a presumption from the mere happening of the accident that it was the result of negligence on the part of the defendant’s employe that caused the brick to fall. The instruction of the court to the jiiry upon this matter was excepted to at the close of the charge-by counsel for the defendant. That exception being reserved,, the proper court in which to test the validity of this instruction is a court of review on appeal from the judgment entered in the case. Eor this reason we conclude that the rule-to show cause should be discharged.


text:
    GRACE MILLER ET AL., PLAINTIFFS, v. JOHN LIVA ET AL., PARTNERS, DEFENDANTS.
    Decided August 20, 1930.
    Before Gummere, Chief Justice, and Justice Campbell..
    Eor the plaintiffs, Kalisch & Kalisch.

    Eor the defendants, William E. Kolmwood.

   Pee Cubiam.

The plaintiffs Grace Miller and her husband brought suit to recover compensation for injuries received by Mrs. Miller in a collision between an automobile in which she was riding and a car belonging to the defendants; and for medical expenses, &c., incurred by the husband as the result thereof. At the close of the trial the jury rendered verdicts in favor .of the plaintiffs, awarding the wife $115 and the husband $200. Upon the rendition of these _verdicts both the plaintiffs and the defendants applied for and were allowed rules to show cause. The contention on the part of the plaintiffs in the argument of this rule is that the awards made by the jury were grossly inadequate. The contention on the part of the defendants in support of their rule is that the verdicts imposing liability upon them because of the negligence of the driver of their car were contrary to the great weight of the evidence.

As all of the parties to this litigation concur in the conclusion that the verdicts are the result of prejudice on the part of the jury and are not based upon a preponderance of the evidence, we conclude that the proper course is to make both rules absolute and to direct a new trial on all the issues. It will be so ordered.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    GEORGE T. O’DONNELL, PLAINTIFF, v. JOSEPH MULLEN AND MAY MULLEN, DEFENDANTS.
    For the plaintiff, Raskin <& Hornsiein.

    For the petitioners John Donaghy and Charles Lyons, Samuel Hirshberg.

   Brown, C. C. J.

The ""defendant Joseph Mullen was arrested on a capias ad respondendum in the above-entitled suit on October 17th, 1925. Thereupon the petitioners John Donaghy and Charles Lyons furnished bail for Joseph Mullen as principal. The bail furnished was in the form provided by statute. 3 Comp. Stat. 1910, p. 4073. The suit resulted in a judgment being entered against the defendant and in favor of the plaintiff on March 31st, 1926. On September 15th, 1926, the judgment was docketed in the New Jersey Supreme Court. The defendant Joseph Mullen died on April loth, 1927, a period of one year and fifteen days after the entry of the judgment. Nothing further was done with the judgment thus obtained until the 26th day of April, 1927, after the death of the defendant Joseph Mullen, when an execution was issued out of the Supreme Court and returned “wholly unsatisfied.” Depositions were taken on the rule to show cause and they disclosed that no capias ad satisfaciendum was ever issued and no proceedings were ever taken against the sureties to compel them to satisfy the judgment obtained against the defendant. The sureties have applied to this court to be relieved of the bail furnished by them on the ground that the principal has died before their liability on the bail became fixed and that the death of the principal before the forfeiture is a defense to a suit on the bail.

The question to be determined is whether under the circumstances this court can enter a rule exonerating the sureties from their bail. The rules of procedure governing applications to release from bail is controlled by the rules of the old court of Kings Bench. Armstrong v. Davis, 1 N. J. L. 110; Parker v. Ogden, 2 Id. 13.6; Morgan v. Bowman, 103 Id. 544.

While the question has not been raised by either of the parties on the argument of the rule as to the procedure followed in applying for the relief sought, it is well to understand that at common law the courts would not hesitate to relieve from bail in a summary manner and direct an exoneretur to be entered in cases addressed to the discretion of the court as well as in cases of strict right.

Where the bailors are entitled to be discharged debito jus Hi ce they may not only apply for an exonere tur by way of summary proceeding but they may plead the matter as a bar to the suit in their defense. The fundamental question left for decision is whether the liability on the bail in this case was fixed before the death of the principal.

It is well settled at common law that the death of the principal at any stage of the suit before the return of the capias ad satisfaciendum against the principal, entitles the bail to an exoneration; by the return of the capias ad satisfaciendum against the principal bail becomes fixed in law, and his death after that time is held not to give the right to an exoneration 6 O. J. 918.

The ease of Armstrong v. Davis, 1 N. J. L. 110, is in accord with this line of reasoning. To the same effect is the case of Davidson v. Taylor, 25 U. S. 604, in which Chief Justice Marshall wrote the opinion. In referring to the time that bail became fixed the Chief Justice said:

“To many purposes, the bail is considered as fixed by the return of the capias ad satisfaciendum. But the courts allowed the bail to surrender the principal, within a limited period after the return of the scire facias against them, as matter of favor, and not as a matter pleadable in bar. In certain cases, even a formal surrender has not been required, where the principal was still living, and capable of being surrendered, and an exoneretur would be entered, and the principal discharged, immediately upon the surrender. But the rule has never been applied to cases where the principal dies before the return of the scire facias. In such a case, the bail is considered as fixed by the return of the capias ad satisfaciendum.”

Section 79 of the Practice act (3 Comp. Stat. 1910, p. 4075, §79) provides: “After a capias ad satisfaciendum shall have been returned non est inventus, the plaintiff may proceed against the bail upon their recognizance.”

It appears settled then that a bail becomes fixed in law by the return “not found” upon a capias ad satisfaciendum issued against the principal. It is conceded in this case that no capias ad satisfaciendum was issued before the death of the principal. The sureties are therefore entitled to an exoneretur being entered ip their favor and this will be done.


author: Kipp, J.

text:
    Second Judicial District, County of Bergen.
    HARRY J. DALY, PLAINTIFF, v. MARGARET SCHENK AND WALTER W. WHITE, DEFENDANTS.
   Kipp, J.

The plaintiff, Harry J. Daly, is the owner of premises known as No. 949 Edgewood avenue, Pelham Manor, Westchester county, New York, the uncontroverted value of which premises is $37,000, constituted as follows: $12,000 for the plot and $25,000 for the dwelling house thereon. The defendant Margaret Schenk is the lessee by assignment, and the defendant Walter W. White guarantor of the lease for consideration. The lease, originally made between a former owner and a former lessee and properly assigned to the present parties in interest, provides for the payment of a monthly rental of $225 for the above designated premises, for a term of three years beginning October 1st, 1928.

On March 17th, 1930, a fire of undetermined origin occurred on the premises, through no fault of the defendants. The defendant Margaret Schenk, the occupant, vacated and quit the premises immediately thereafter, with prompt notice of the occurrence of the fire being given to the agent of the plaintiff, contending that the premises had become untenantable, a fact which the plaintiff does not controvert. In this case the damage to the house by fire was of such a character as to render the house wholly untenantable from March 17th, 1930, until May 1st, 1930. The fire burned a large hole in the floor between the dining room and living room, necessitating, among other things, the replacing of a girder in the cellar and the replacing of thirty beams, and the replastering of the living room and dining room to a large extent. There was also the usual damage by smoke to many of the rooms upstairs, as well as on the first floor. The cost of the replacements and repairs was $2,079.16, and took at least a month to complete. Immediately after the fire, Mrs. Margaret Schenk, one of the defendants, removed all of her furniture and belongings from the premises and has never returned. It was admitted that Mrs. Schenk has surrendered the premises.

Counsel have agreed that the rights and liabilities of the parties are dependent upon the fifth clause of the lease, which reads as follows:

“Fifth. That if the said premises or any part thereof shall, during said term or previous thereto, be slightly damaged bjr fire, the premises shall be promptly repaired by the landlord and an abatement will be made for the rent corresponding with, the time during which and the extent to which said premises may have been untenantable, but if the building or buildings should be so damaged that the landlord shall decide to rebuild, the term of this lease shall cease and the aggregate rent be paid up .to the time of the fire.”

A perusal of this clause makes it quite evident that the contingency which occurred in this case is not specifically covered thereby. The first contingency provides for a slight damage. The plain meaning of words used in their ordinary sense cannot be arbitrarily ignored, and it would therefore appear that, in view of the testimony as to the extent of the damage, that the ravages of the fire in the instant ease can hardly be termed “slight damage.”

The second contingency provides for a situation wherein the building shall be totally, or substantially, destroyed, in which event the lease is to terminate. Such is not the case here.

The fifth clause covers two extremes without pointing out the middle ground. In the instant case, the damage was more than slight, but did not amount to such a destruction as to require “rebuilding,” as that term is ordinarily used and understood. A proper description of the condition consequent upon the fire would be to say that the premises were rendered untenantable and unfit for occupancy.

In such a circumstance, it is conceded by counsel that the ■statutes of New York control. Laws of 1909, chapter 52, •section 227 of the Eeal Property law of New York provides as follows:

“Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express ■agreement to the contrary has leen made in writing, the lessee ■or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased and occupied; and he is not liable to pay to the lessor or owner rent for the time subsequent to the surrender.”

It cannot be said that the provisions of the fifth clause of the lease amount to a waiver of the statute, since the clause in question does not, in terms, cover the instant situation. In the case of New York Real Estate and Building Co. v. Motley, 143 N. Y. 156; 38 N. E. Rep. 103, Mr. Justice Pinch states:

“The question was whether the emergency contemplated by the act of 1860 (chapter 345), which is an injury by fire making the premises untenantable, was covered and provided for by the terms of the lease between the parties, and for that reason taken out of the scope and operation of the statute. The lease does provide expressly for two contingencies. One of them is such a destruction of the building as requires it to be rebuilt, in which event all rent ceases, and the lease terminates. The other is an injury by fire which admits of a partial occupancy, in which event the accruing rent is to be measured by the proportion of available occupancy. But what occurred was something different from either described contingency. The fire did not compel a rebuilding on the one hand, nor did it leave a partial occupancy which would carry some part of the rent with it, but the premises demised became wholly untenantable.”

He continues: “If so onerous a burden had been in terms proposed, it is quite probable that the lease would have been refused.” Assuming that the act of 1860 (chapter 345) is substantially the same as section 227, chapter 52, of the-laws of 1909, the reasoning in that case applies with equal force here. The same question is presented. The defendant was entitled, under the statute, to quit and surrender the-premises, and thus avoid further liability to pay rent.

The defendant White guaranteed the payment of the rent. It is agreed that his liability is contingent upon that of defendant Schenk.

Judgment will be entered for the defendant and against, (he plaintiff upon the main case, and judgment for the defendant in the sum of $101.50, upon the first count of the-counter-claim, and in the sum of $225 upon the second count, of the counter-claim.


author: OinPHANT, S. C. C.

text:
    THE FIRST-MECHANICS NATIONAL BANK OF TRENTON, A NATIONAL BANKING CORPORATION, PLAINTIFF, v. EMMA C. NIEDT, MARGUERITE NIEDT RIEMANN, MADOLYN NIEDT, FRANK A. HAZEN AND EDWARD C. NIEDT, DEFENDANTS.
    Decided September 3, 1930.
   OinPHANT, S. C. C.

This matter comes before the court, sitting as a Supreme Court commissioner, on a motion to strike out the answer of the defendant Hazen on the ground that the same is frivolous. The only question raised by the pleadings is whether or not notice of dishonor was duly given the defendant, an endorser, by the plaintiff, the holder of the note sued on.

Plaintiff claims due notice of dishonor was given the defendant by the deposit of a notice of protest in the mails and supports this contention by affidavits. The defendant denies the receipt of any notice.

The denial of the receipt of the notice through the postal authorities clearly raises a question of fact which must be decided by a jury and not by the court on a motion to strike. South Side Trust Co. v. Lamb, 57 Pa. Sup. Ct. 645; Continental Bank v. Great Lakes, &c., Corp., 220 N. W. Rep. 668; Union Bank of Brooklyn v. Deshel, 123 N. Y. Supp. 585. The mailing of the notice raises a presumption of its receipt. Liberty Title, &c., Co. v. Sweeten, 8 N. J. Adv. R. 295.

Even though the court be well satisfied with the justice of plaintiff’s demand, it must allow the jury to pass upon the facts raised. In every case where the issue depends upon the determination of facts, the existence of which is not admitted, the jury, and not the court, must determine them. Schmidt v. Marconi, 86 N. J. L. 183.

The motion to strike the answer will be denied.


text:
    JOSEPH DI BIASO AND JOSEPH GRASSO, PLAINTIFFS-RESPONDENTS, v. FRANK KRICH, AND IN THE ALTERNATIVE MAX KRICH, DEFENDANTS-APPELLANTS.
    Submitted October term, 1929
    Decided September 3, 1930
    Before justices Trenci-iard, Lloyd and Case.
    Por the appellants, Martin J. Greenblatt.

    Por the respondents, McDonald & J oseph.

   Per Curiam.

The appeal in this case might well be dismissed on the' ground that all of the essential parties are not in court. The action was against Prank Krich, and in the alternative-Max Krich. The appeal is by Prank Krich with notice to the plaintiffs only. Max Krich is not made a party in the appeal. That he might be seriously affected if the case be reversed. is quite apparent. As it now stands no judgment appears against him, but if a retrial were awarded he would again be subjected to the hazard of a verdict and judgment. Grouse v. Perth Amboy, 85 N. J. L. 476.

We think the record is defective in another aspect. The only point argued is that the court improperly moulded the verdict, but we iind no ground of appeal presenting such a question. The fourth ground (denominated reason in the record) is that the court “on its own motion and without any legal authority, directed the clerk of the court to enter judgment, in favor of the plaintiffs and against the defendant Prank Krieh.” There is in this no complaint that the court failed to enter a like judgment against Max Krich, and the verdict of the jury, being in favor of the plaintiffs, it was quite proper that judgment to this effect at least should be so rendered.

Meritoriously, however, the appeal is without substance. The action being in the alternative and not based upon a joint liability, contemplated no right one as against the other. The entry of judgment against both defendants would avail the appellant nothing and a failure to enter judgment against Max subjects him to no legal injury.

The judgment is affirmed, with costs.


text:
    ABE FRIEDMAN, PROSECUTOR, v. GEORGE W. MAINES, RECORDER OF THE BOROUGH OF FAIRLAWN, AND THE MAYOR AND COMMON COUNCIL OF THE BOROUGH OF FAIRLAWN, NEW JERSEY, RESPONDENTS.
    Submitted May 16, 1930
    Decided September 8, 1930.

      Before Justices Pareer, Campbell and Bodiee.
    For the prosecutor, Mendelsohn <& Mendelsohn. .
    Eor the respondents, Maclcay & Maclcay. ,

   Per Curiam.

The prosecutor was convicted of a violation of an ordinance of the borough of Eairlawn concerning junk and junk yards, and was fined $150 and costs.

Of the many grounds urged for reversal, the following need only be considered.

Section 3 of the ordinance in question provides: “Application for such license shall be made to the mayor and common council of the borough of Eairlawn in writing, and such application shall be signed by at least seventy per cent, of the property owners owning property within a radius of three hundred feet of such junk yard.” This section places the power to grant licenses with the property owners in the vicinity. This power cannot be so delegated by the municipality. Levy v. Mravlag, 115 Atl. Rep. 350.

Section 5 of the ordinance provides for imprisonment not exceeding ninety days or a fine of $150, or both.

Pamph. L. 1917, ch. 152, art. 10, § 7, provides that the governing body of every municipality may prescribe a penalty for violation of any ordinance, either by imprisonment in the county jail not exceeding ninety days, or a fine not exceeding $200, or both.

It will be seen that the ordinance should only have fixed the maximum of fine as provided by the statute, leaving to the magistrate the exercise of the discretion imposed by the statute. Instead, the council of the city exercised this discretion in the ordinance without reference to the offender or the circumstances of the violation, and deprived the magistrate of any consideration of whether his discretion should be exercised in dealing with the offender to inflict a lesser fine. Massinger v. Millville, 63 N. J. L. 123, 126.

The conviction will be set aside.


author: Pee Ctieiam.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. JOHN BORG AND CHARLES ROSENBERG, DEFENDANTS.
    Submitted May 16, 1930
    Decided September 8, 1930.
    Before Justices Campbell and Bodine.
    For the state, Edward O. West and Andrew 0. Wittreich.

    For the defendant John Borg, Garey & Lane and MacTcay & MacTcay.

    For the defendant Charles Eosenberg, Samuel Denson.

   Pee Ctieiam.

An examination of the record in this case leads us to the conclusion that the memorandum filed by Mr. Justice Parker is a concise and accurate statement of the law of this state.

The motion to require a member of the grand jury to answer the questions asked will be denied.


text:
    ALBERT J. LUEBBERS, PLAINTIFF-APPELLANT, v. CHARLES J. SCHAAL, DEFENDANT-APPELLEE.
    Submitted May term, 1930
    Decided September 11, 1930.
    Before Justices Tbenohabd and Lloyd.
    Eor the appellant, Frederic W. Schlosstein.

    Eor the appellee, Walter D. Van Riper.

   Per Curiam.

On petition for that purpose, a rehearing of this matter was allowed by the court, and on such rehearing the matter was submitted to the court on briefs.

In its original memorandum dealing with this appeal, the court inadvertently said that the trial judge gave judgment for the plaintiff. The court intended to say that the judgment was for the defendant.

The court also said that “there is no specification of causes for reversal,” and for that reason the court concluded that the judgment should be affirmed.

It is quite true that there was no specification of causes for reversal laid before the court. But, as pointed out in the memorandum granting the rehearing, “while it appears that the state of the case agreed upon by the attorneys of the respective parties, and printed as the state of the case, did not contain the specifications of determinations of the District Court, yet such determinations were printed and were submitted under a separate cover and were filed with the clerk of the court within due time, but through inadvertence were not before the court when the case came up for consideration.”

In such state of affairs we think we should look at such specifications, in connection with the state of the case.

Looking at them we find that the state of the case discloses that plaintiff sued to recover $500 for breach of a contract entered into between plaintiff and defendant wherein “Charles J. Schaal, Administrator of Estate,” acknowledged the receipt from plaintiff of a deposit for the purchase price of property on Mt. Pleasant avenue, West Orange, of the estate of Mr. and Mrs. C. A. Schaal.

The meritorious question presented is whether or not the defendant, who was sued personally, is liable for the damages sustained by reason of the breach of the contract.

The trial judge held that the defendant was not liable, saying that the plaintiff dealt with the administrator at his peril and that the administrator cannot be held liable in an action for damages.

We think that was wrong. The rule seems to be as found in 24 G. J. 739, as follows:

“A contract of an executor or administrator, although made in the interest and for the benefit of the estate, if made upon a new and independent consideration moving between his promisee and himself, is his personal contract, which does not bind the estate, and he must be sued on such contract in his individual and not in his representative capacity. The fact that he is described in the contract as executor or as administrator, does not affect the rule.”

In support of this rule cases are cited in many j urisdictions including New Jersey, from which the ease of Sibbib v. Lloyd, 11 N. J. L. 163, is cited. Since the application of that rule discloses that the case was decided upon an erroneous principle, a new trial must be awarded.

Accordingly, the judgment of the District Court is reversed, and a new trial awarded. Costs to abide the event.


author: Per Ctjriam.

text:
    JENNIE ALTSCHUL, PROSECUTOR, v. MAYOR AND ALDERMEN OF JERSEY CITY ET AL., DEFENDANTS.
    Submitted May 16, 1930
    Decided September 11, 1930.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutor, David A. Newton.

      For the defendant Jersey City, Thomas J. Brogan.

    For United New Jersey Eailroad and Canal Company, and Colgate Palmolive Peet Company, Albert G. Wall.

   Per Ctjriam.

We are unable to discern that the situation indicated by the depositions taken under this rule differs in any essential particular from that presented to and passed upon by Mr. Justice Swayze in 1915, in the unreported case of Kennedy v. Jersey City. The ordinance now attacked is a mere addendum to the ordinance of 1914, considered in that case, and was prompted by the fact that the corporation (or perhaps partnership) of Colgate & Company had become, evidently by merger with competitive interests, the corporation of Colgate-Palmolive-Peet Company, and it was desired that the privilege enjoyed by Colgate & Company, under the ordinance of 1914, which was "to run for a term of twenty years, should be available to the new corporation for the remainder of the term, i. e.} until 1934.

We find it unnecessary to consider the attack made on Mr. Justice Swayze’s unreported opinion in matters of detail. The original ordinance and its amendment both undertake to permit a spur track leading southward from the railroad terminal at Jersey City, across Exchange Place, through Hudson street (in which it was also used as a street car track) and so into the Colgate plant, such spur to enable freight cars and coal cars to pass between the Colgate plant and the railroad without breaking bulk. At first they were drawn by horses, and later an “electric mule” was substituted. Most of the transfer occurs at night. The rail is of different cross section from the railroad rail, and the top is flush with the street surface and creates no obstruction to street traffic. The district is devoted to factories, warehouses, wharves and shipyards. The practical importance of such a facility is obvious. The prosecutrix herself applies in right of ownership of a factory property abutting on the street in which this track is laid.

The situation seems to indicate neither a railroad nor a street railway, but something differing from either. Hence such decisions as Seaman v. Perth Amboy, 98 N. J. L. 174, are of little help, except that in that case Mr. Justice Bergen held in this court as a question of fact that prosecutor had an interest to support the writ. 97 Id. 76, 78, 79. In the present case we see no such interest, in view of such cases as Montgomery v. Trenton, 36 Id. 79, 85, and Tallon v. Hoboken, 60 Id. 212, 218, in which latter case the relief was limited to the erection of a trolley pole on lands in the street of which the prosecutor owned the fee, and the stringing of wires on such pole, but denied as to the rails in the roadway.

We conclude that no satistaefory case has been made for the favorable exercise of our discretion by allowing a writ, and the rule to show cause is therefore discharged, with costs.


author: Johít J. Stahl, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALBERT LEMBO, PETITIONER, v. VICTORY PIECE DYEING COMPANY, RESPONDENT.
    Eor the petitioner, Nathan Rabinowitz.

    For the respondent, Richard TV. Baker.

   ij: H*

2. That the petitioner was employed by. the respondent as a dry-room helper, on or about November 16th, 1927, and that he continued in such employment up to December 16th, 1927; that his duties consisted of working in a dry-room, opening up bundles of piece silk to place in a dry-box.

3. That petitioner at the time of' the injury was a minor of the age of fifteen years, and received for his services wages amounting to $14 per week.

4. That on the 16th day of December, 1927, the petitioner sustained personal injuries as a result of an accident; that said accident arose out of and in the course of petitioner’s employment, which employment was contrary to the provisions of the laws of 1924, chapter 159, page 360, which provides that if a minor is employed under the age of sixteen years without an age or schooling certificate or age and working certificate, a compensation benefit shall be payable to the employe, which shall be double the amount payable under schedules provided in paragraphs eleven and twelve of the Workmen’s Compensation act. The testimony further developed that the character of employment of the petitioner was contrary to the provisions of the statute relating to factories and workshops, which provides that no minor under the age of sixteen years of age shall be employed, permitted or suffered to work in any capacity in, about or in connection with any position in which dangerous or poisonous acids are used. The petitioner testified that he was employed at first in a dry-room, which work consisted of opening up bundles of piece silk to place in a dry-box, and that his foreman was Mr. Frank Perotti, under whose supervision and direction the petitioner was required to work. On December 16th, 1927, the petitioner testified he was told to go into the chemical- room or laboratory for the purpose of assisting another worker in using a pump for the purpose of transferring certain chemicals from one drum to another drum, and that while so doing some chemical spurted into the petitioner’s left eye; that when Mr. Eocco Nazzaro, the chemist in charge of the laboratory, came into the room a few moments later, petitioner informed Mr. Nazzaro of what had happened and petitioner further informed his foreman, Mr. Frank Perotti, about the accident, and petitioner was instructed by the chemist, Mr. Nazzaro, to wash his eye with cold water. The petitioner was under the impression that the liquid got into his eye through a leak in the pump and there is a discrep. ancy in the petitioner’s testimony as to the manner in which the chemical substance got into his eye. The petitioner stated that it came from the pump when the handle suddenly flew back and then said that he did not know where it came from, but the fact remains that some chemical substance actually got into his eye while he was working in the laboratory. I am particularly impressed with this fact in view of the testimony of Mr. Nazzaro, who was a witness called on behalf of the respondent, who testified that the accident was reported to him within fifteen minutes after it happened and that he instructed petitioner to put some cold water on his eye. The fact of the occurrence of the accident was also verified by the foreman, Mr. Frank Perotti. The petitioner testified that upon his return home he obtained some eye relief from a drug store and that he felt a constant burning sensation. That he did not disclose the fact of his accident to his father because he was working contrary to his father’s wishes inasmuch as his father wanted him to continue going to school. He was obliged t'o use dark glasses and then the condition became so acute that he was obliged to quit work on January 6th, 1938. The petitioner thereupon was ordered by the respondent to be examined by Dr. Hennion, an eye specialist, who testified to the effect that the petitioner gave him a history of having sustained an accident and the petitioner then went to Dr. Eugene Sturehio, to whom he gave a history of his case and who gave him injections and treatments to his eye. The petitioner testified that his eyes were in perfect condition prior to the accident and this was corroborated by members of his family. The testimony of Dr. Eugene Sturehio, eye specialist, connected with the Essex County General Hospital, showed that he examined petitioner in January, 1938, and that he found an abrasion of the cornea and an acute iritis condition; that he treated petitioner for three weeks with vaccine and that he operated on him at his home and that he opened the corneal tissue and emptied the anterior chambers; that in the opinion of Dr. Sturehio the condition from which the petitioner was suffering was due to traumatism and was due to the accident, and that the last time he treated him was approximately the 15th of May, 1938, when the limit of treatment was reached; that he saw him again on February 19th, 1939, and that petitioner was still suffering and that in his opinion the petitioner has suffered a permanent loss of vision to the extent of ninety per cent, of the left eye. Under cross-examination Dr. Sturehio stated that after eliminating all natural causes to the condition he came to the conclusion that the condition from which the petitioner was suffering was due to trauma as given to him from the history of the case. From the foregoing testimony adduced before me, I am convinced that the said accident arose out of and in the course of petitioner’s employment.

5. That respondent had actual knowledge of the occurrence'of said injuries.

6. That as a result petitioner received Kerititis and an acute iritis of the left eye, and that the said injuries caused the petitioner a temporary disability beginning January 7th, 1928, up to and including May loth, 1928, and that he has a disability permanent in quality and partial in character which is as follows: Ninety per cent, permanent loss of the left eye.

7. That the petitioner incurred expenses for medical services amounting to the sum of $240.

8. I find, therefore, that the petitioner is entitled to compensation for a period of two hundred and fourteen weeks, representing double the compensation allowed by the Compensation act for permanent and temporary compensation, because of the illegal employment and in accordance with the laws of 1924, chapter 159, page 360, at the rate of $9.33 per week.

9. The legal adviser of the petitioner is entitled to compensation in addition to his costs allowed by law in the sum of $300, to be paid in the following manner: $150 payable by the petitioner and $150 payable by the, respondent.

10. Costs will be allowed the petitioner. $$$$$$$

Johít J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELI LEADER, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, RESPONDENT.
    For the petitioner, Nathan A. Whitfield.

    Eor the respondent, Henry J. Sorenson.

   The allegations as set up in the petition allege that as the result of an accident, the petitioner is suffering from a sprained back. It further alleges that the petitioner was employed as an iron worker, and while so engaged it became necessary for him to lift an iron-beam, and while so doing, he strained his back. Aside from the question as to whether or not the petitioner has proved an accident, it seems to me that the petitioner has not proved by a preponderance of the evidence that he is suffering from any permanent disability. The only evidence produced by him is a memorandum written by Dr. Schuck, which states that the petitioner is suffering from a sacro-iliae strain. The respondent produced Dr. Arlitz, who testified that the petitioner was suffering from no permanent disability which was causing any loss of function. The petitioner was also examined by Dr. Pascal, who likewise testified that, in his opinion, the petitioner was suffering from no disability and that there was not any loss of function involved. Under the testimony as produced in the case, a factual question was presented which I am compelled to decide in favor of the respondent and against the petitioner for the reason that the petitioner has not sustained the burden of proof.

^ ❖ Hi

Chables E. Cobbest, Deputy Commissioner.


author: Ohaeles E. Coebin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANILLEO PALUMBO, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, ERRONEOUSLY IMPLEADED AS “PUBLIC SERVICE GAS AND ELECT.,” RESPONDENT.
   The above-captioned cause of action came on for trial on the 9th day of April, 1929, at Elizabeth, New Jersey. It appears that the petitioner, while helping to move a concrete mixer injured the fourth and fifth toes of his left foot. At the time of hearing, the petitioner appeared without either counsel or doctor. At the hearing it further appeared that the respondent had paid to the petitioner compensation in the amount of $17 per week for a period of eight and two-sevenths weeks, as temporary compensation, dated from March 7th, 1928, to May 3d, 1928. It also appeared that the petitioner has been paid for ten per cent, loss of the great toe, fourth and fifth toes, which is equivalent to $17 per week for a period of five weeks. Inasmuch as the petitioner appeared without a doctor, I, sitting as deputy commissioner, appointed Dr. Chapman for the purpose of examining the left foot of the petitioner. His examination revealed that the compensation paid by the respondent to the petitioner amply compensated the petitioner for whatever injuries he may have suffered as 'a result of. the alleged accident. It appearing that these payments as compensation were paid long before the petition was filed, and it further appearing that there was no legal basis for the filing of the said petition, it is * * * ordered that the said petition be discontinued of record.

Ohaeles E. Coebin, Deputy Commissioner.


text:
    MADELINE PLUMSTEAD, PETITIONER, v. TOWNSHIP OF ROXBURY, IN THE COUNTY OF MORRIS, RESPONDENT-PROSECUTOR.
    Submitted May 10, 1930
    Decided September 11, 1930.
    Before Justices Pabkeb, Campbell and Bodine.
    Eor the prosecutor, Charles W. Weeks.

    Eor the petitioner, McCarter & English.

   Pee Cubiam.

This is a certiorari to award of compensation in a death case. Decedent was a policeman, and while riding his motorcycle homeward from Morristown at night collided with a truck and was fatally injured. The workmen’s compensation bureau made an award, which, on appeal to the Court of Common Pleas, was affirmed.

The first point made for the prosecutor is that there was no evidence to support a finding that the accident arose out of and in course of employment. Our examination of the evidence satisfies us to the contrary.

The second point is that by the terms of Pamph. L. 1913, p. 230, no compensation should be awarded, as the earnings of deceased exceeded the maximum figure mentioned in the statute and put him out of the class to be compensated. Counsel admits that Jersey City v. Borst, 90 N. J. L. 454; 101 Atl. Rep. 1033, is to the contrary, but saj^s it was wrongly decided. However, it seems to have stood for thirteen years as the law, and the rule of stare decisis requires our adherence to it as settling the law for present purposes. Hornsby v. Perth Amboy, 99 N. J. L. 277; Public Service Railway Co. v. Matteucci, 143 Atl. Rep. 221; 6 N. J. Adv. R. 1545.

The judgment and award under review are affirmed, with costs.


text:
    JOHN BODNARIK, ADMINISTRATOR AD PROSEQUENDUM, ET AL., PETITIONERS, v. EMPIRE FLOOR AND WALL TILE COMPANY, PROSECUTOR.
    Submitted May 16, 1930
    Decided September 11, 1930.
    Before Justices Parker, Campbell and Bodxne.
    Eor the prosecutors, Kellogg <& Chance.

   Per Curiam.

This is a certiorari to an award in a workmen’s compensation case. The workman was killed, and the question is as to the award in favor of his widow as a “dependent.” She was not living with him at the time, but had lived apart from him for some years in Czecho-Slovakia. Prom her testimony, taken de bene esse, it appears that his average weekly contribution toward her support was about two hundred Kronen.

The dispute was whether she was a partial dependent, or wholly dependent, because of the language of paragraph 12 of the Compensation act (Pamph. L. 1923, p. 101—at p. 106), which says: “(g) The term ‘dependents’ shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or death, namely, ‘wife,’ children * * * provided however, that dependency shall be conclusively presumed as to the decedent’s widow and natural children under sixteen years of age who were actually a part of the decedent’s household at the time of his death * * * further provided, that the foregoing schedule applies only to persons wholly dependent, and that in the case of persons only partially dependent, except in the case of the widow and children, who were actually a part of the decedent’s household at the time of his death, the compensation shall be such proportion,” &e.

No brief for the petitioners-respondents has come to our hands, and that for the prosecutors makes but one point, which is, that by force of the statutory language above quoted, the widow should have received an award as a partial dependent only, and not as a total dependent, which was the award actually made. If the question were an open one, it would naturally receive full and careful consideration; but we deem it settled for present purposes by the recent decision of this court in Schmid v. Stanton Forging Co., 104 N. J. L. 471, which appears to be in point.

The judgment under review will therefore be affirmed, with costs.