author: Pee Oueiam.

text:
    EVA A. WHITE, ADMINISTRATRIX, ETC., OF GEORGE N. WHITE, DECEASED, PLAINTIFF, v. RICHARD BUIST, DEFENDANT.
    Submitted October term, 1929
    Decided May 6, 1930.
    Before G-ummebe, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, LeRoy Vander Burgh.

    Contra, Edward A. Marlcley.

   Pee Oueiam.

Plaintiff as general administratrix has a verdict for $5,000 for pain and suffering, &c., of her intestate and as administratrix ad prosequendum a verdict for $20,000 for damages for his death both rights of recovery arising through and out of the alleged negligence of the defendant in the operation of his motor vehicle at Grand and Broad avenue, in Ridge-field, Bergen county, New Jersey.

We are asked to set these verdicts aside because they are . against the weight of the evidence, upon the question .of contributory negligence of plaintiff’s decedent, and because they are excessive.

Our examination of the proofs satisfies us that neither ground warrants us in setting aside the verdicts and the rule to show cause is therefore discharged, with costs.


source: Caselaw Access Project

author: Pee Cubiam.

license: Public Domain

text:
    HENRY B. BRIGGS, Jr., PROSECUTOR, v. DAVID S. STANTON ET AL., DEFENDANTS.
    Argued May 6, 1930
    Decided May 8, 1930.
    Before Justices Pabiceh, Campbell and Bodine.
    For the prosecutor, Walter 8. Keown.

    For the defendants, Willis T. Porch.

   Pee Cubiam.

On December 23d, 1929, at the last meeting for the year of the borough council of the borough of Pitman, in the county of Gloucester, some action was taken, the effect of which was the appointment or attempted appointment of Mary S. Chalfant as a member of said council to serve till January 1st, 1931, to fill an alleged vacancy caused by the alleged fact that prosecutor had ceased to be a resident of the borough. Pamph. L. 1920, p. 248. A writ of certiorari to review this action was allowed at the last term of this court, in January, 1930; and as there was then considerable doubt whether certiorari or quo warranto was the appropriate remedy, and counsel agreed that the main desideratum was a borough council that could function, it was formally stipulated and the stipulation made a part of the record, that “the hearing and determination in this matter shall be treated and shall be accepted as and if the proceedings were instituted and heard on quo wa/rranto, if this court shall determine that a writ of quo warranto should have been the proper procedure and not a writ of certiorari;

"And that the hearing and determination in this matter shallc.be binding on all litigants, especially with respect to the finding of this court, as to the residence of the prosecutor.”

It is, therefore, plain that our finding on the question of residence will determine the right to the office of councilman previously held by Mr. Briggs.

His residence in Pitman at the time of his election and until August of 1929, was unquestioned. He had come there to live, with his wife and daughter in 1919; he owned his home there and still owned it on December 23d, 1929. He was a warden of the Episcopal church, treasurer of the local Republican club, voted in Pitman, and had served more than one term in the council. All this being conceded, and his prior residence being conclusively shown, it is presumed to continue until shown to have changed, and the burden of showing that is normally on the party asserting it, in this case his adversaries in the council. As residence is largely a question of intention, and Briggs persistently denied any intention of changing residence from Pitman, to support a finding that he had done this it should be inferable from facts proved that his actions indicating an intent to change his residence effectively negatived his professions to the contrary.

We have examined all the evidence with care, and conclude that no change of residence in the legal sense of the term can be inferred from it. Suspicion of such change, perhaps not unreasonable, grew out of the fact that Briggs left an employment in Philadelphia to accept one that suited him better in New York. Commuting between Pitman and New York was, of course, impracticable; so he had to be nearer his business during the week. As a temporary expedient he took a room in New York, leaving his wife and daughter at the Pitman home, returning home for week-ends and also spending at home (i. e., at Pitman) the nights of the second and fourth Monday of the month on which the council meetings were held. Clearly, there was no change of residence in this.

Quite naturally this arrangement did not suit his wife, and he cast about for some arrangement that would involve less separation. We gather from the testimony that he was considering the possibility of a permanent change but had not decided upon it, and quite conceivably was not yet altogether sure of holding the New York employment. Be this last as it may, when he heard that a cousin living in Westfield was going away for the winter, leaving her home which was fully furnished, unoccupied, and ascertained that this cousin would be willing to have him and his family occupy it during her absence of several months, he and his wife concluded to try Westfield temporarily and see how they liked it. So they went to sojourn in that house, taking their daughter and their clothing, linen and silver, as any family would occupy a furnished house at a summer place. They went there December 14th, apparently did not like it as well as they expected, and returned to Pitman January 11th. The Pitman house had not even been closed, but Mayor Stanton, who had not been re-elected and whose term was closing with the current year, and those in sympathy with him, being misinformed as to some facts and misinterpreting others, undertook to supersede an elected member of the council whose term had a year to run after that of the mayor had expired, and to substitute an appointed member of their own choosing. This action, we find, was wholly without warrant of law; and, therefore, this court should take such action as will nullify the illegal designation of Mrs. Chalfant and uphold the right of Mr. Briggs to the office.

As there was no resolution of the council on December 23d declaring a vacancy, the only action on which this court can lay its hand seems to be the announcement by the mayor that he appointed Mrs. Chalfant, and the confirmatory vote of council by a narrow margin.

It may be that the foregoing expression of our views will suffice to clear the atmosphere. If not, let the record be moulded into a quo warranto procediug under section 4 of the statute with judgment of ouster in favor of Briggs and against Mrs. Chalfant, and an order under section 11, and subject to the requirements of that section, for the restoration of Briggs to the possession of his office.


author: Pee Curiam.

text:
    LOUISE A. GALAIDA, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. RARITAN MERCANTILE COMPANY, DEFENDANT.
    Submitted October term, 1929
    Decided May 6, 1930.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    , Eor the rule, Thomas Brown.

    Contra, David T. Wilentz.

   Pee Curiam.

The infant plaintiff, Louise A. Galaida, by next friend, has a verdict for $20,000 for pain and suffering and personal injuries, inflicted by the negligent operation of a motor vehicle of the defendant, and her father, the plaintiff, Joseph Galaida, has a verdict for $2,000 for the cost of effecting a cure of his daughter’s ailments, &c., so inflicted.

These we are asked to set aside as being excessive, against the weight of the evidence and contrary to law, in that the child was a trespasser upon the highway; that it'was error to refuse to nonsuit; that the plaintiff, father, was not entitled to a verdict because he was guilty of negligence in the care of the child; that the court erred in refusing to charge certain requests of the defendant; and that the court erred in certain instructions to the jury.

Our examination of the case leads us to the conclusion that none of these reasons present sufficient grounds for the setting aside of the verdicts, and the rule to show cause is therefore discharged, with costs.


author: Pee Cukiam.

text:
    PASQUALE CAPUTO, ADMINISTRATOR AD PROSEQUENDUM OF JOHN CAPUTO, DECEASED, PLAINTIFFS, v. ASCIONE MOTOR SALES AND SERVICE, INCORPORATED, ET AL., DEFENDANTS.
    Submitted October term, 1929
    Decided May 6, 1930.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, J. Faerber Qdldenhorn.

      Contra, Joseph W. Marmi.

   Pee Cukiam.

Plaintiff’s decedent was killed by a collision with a car driven by the defendant, George W. Barcy, The car was owned by the defendant Ascione Motor Sales and Service, Incorporated.

Suit was brought against both of these parties and also the Public Service Co-ordinated Transport.

Plaintiff has a verdict of $5,000 against the defendants Barcy and Ascione Motor Sales and Service, Incorporated. The jury found in favor of the other defendant, Public Service Co-ordinated Transport and against the plaintiff.

The defendant Ascione Motor Sales and Service, Incorporated, has the present rule and urges that the verdict should be set aside for the following reasons:

1. Error in refusing to direct a verdict in its favor.

2. The charge was contrary to law.

3. There was no evidence of negligence.

The proofs show quite convincingly that the defendant Barcy was negligent and that such negligence was the producing cause of the happening resulting in injuries causing the death of plaintiff’s intestate.

An examination of the proofs further satisfies us that the verdict against the defendant Ascione Motor Sales and Service, Incorporated, is unwarranted thereby and decidedly against the weight thereof.

The rule will therefore be made absolute.


author: Per Curiam.

text:
    PETER PETERSON, PLAINTIFF, v. REBECCA KRINICK ET AL., DEFENDANTS.
    Submitted January term, 1930
    Decided May 6, 1930.
    Before Gummere, Chief Justice, and Justice Campbell.
    Eor the rule, Turner & Stalter.'

    Contra, DeVoe Tomlinson.

   Per Curiam.

Plaintiff was injured through a collision between a truck owned by defendants and a car driven by himself, and sued for damages for personal injuries, medical bills and damage to his car. He has a verdict for $7,500. Application was made to the trial judge for a rule why a new trial should not be granted, and was denied. Application was then made to this court for such rule and it was allowed. The sole question raised under the specific terms of the rule is that the verdict is excessive.

Our examination of the proofs leads us to the conclusion that the verdict is not excessive and the rule will therefore be discharged, with costs.


text:
    ABE FRIEDMAN, TRUSTEE, ETC., RELATOR, v. BOROUGH OF WALDWICK, RESPONDENT.
    Argued January 21, 1930
    Decided May 6, 1930.
    Before Gummere, Chief Justice, and Justice Campbell.
    Eor the relator, Insley, Vreeland & Decker.

    Eor the respondent, no appearance.
   Per Curiam.

This matter is before us upon a demurrer to a return to an alternative writ of mandamus.

The relator recovered a judgment of $15,301.58 against the respondent on November 27th, 1928, which not being paid and satisfied, relator applied for and obtained an alternative writ of mandamus on November 23d, 1929, directed to the respondent. The return thereto sets up two reasons why such writ should be dismissed and a peremptory writ should not issue.

The first is that because between April 1st, 1924, and July 12th, 1924, three claims aggregating $486.44 were filed with respondent, as being amounts due from relator to said claimants. But this is no answer. In the first place, as pointed out by the relator, if these claims were not paid within sisty days from the date of their filing with respondent, the claimants were required to bring action thereon, or join in an action then instituted and in progress by some other claimant, in order to present their right of lien. The return is silent as to any such action having been taken. It must be as-assumed, therefore, that none was taken and that the claimants have lost and forefeited their right of lien and payment thereof by the respondent from any moneys it had in hand due or to come due to the relator.

In the second place relator’s judgment cannot be successfully attacked in this manner under the present proceeding. Palmer, &c., v. Freeholders of Essex County, 77 N. J. L. 143.

The second reason urged in the return for a dismissal of the writ is that the respondent has adopted proper resolutions authorizing the issuance of obligations to secure the moneys to pay the relator the amount due him upon his judgment.

This, however, is no answer to the command of the writ which is immediately to levy and assess, by taxation, funds sufficient to fully pay and satisfy relator’s judgment.

The relator is entitled to judgment in his favor upon his demurrer with costs and an order for a peremptory writ of mandamus.


text:
    ELEANOR SCHINK, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. CHARLES KESSLER ET AL., DEFENDANTS.
    Argued January 21, 1930
    Decided May 6, 1930.
    Before Gummeke, Ciiiee Justice, and Justice Campbell.
    Eor the rule, Harry Meyers.

    Contra, F. Hobart Higgins and Alexander M. MacLeod.

   Per Curiam.

The sole ground for setting aside this verdict of $500 in favor of the infant plaintiff, is that it is inadequate. Erom the proofs we are convinced that this is so. Defendant, amongst other grounds, insists that the verdict should not be disturbed because there is-great doubt, from the proofs, of any negligence making the defendants liable. This does not appear to us to be so and the argument fails in strength because it does not appear that the defendants have put forward any such contention by rule for new trial or otherwise.

The rule is made absolute, with costs, and a venire de novo is awarded as to the question of damages of the infant, Eleanor S chink, only.


text:
    MAX HEINSMANN, ADMINISTRATRIX AD PROSEQUENDUM OF JOHN HEINSMANN, DECEASED, PLAINTIFF, v. HARRY (OR HENRY) KUMPF, DEFENDANT.
    Submitted October term, 1929
    Decided May 6, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Robert Peacock.

    Contra, C. Richard Allen.

   Per Curiam.

Plaintiff has a verdict of $15,000 for damages for the death of her intestate resulting as is said from injuries to him caused by the negligent operation of defendant’s motor car.

This verdict we are asked to set aside because it is against the weight of evidence upon the question of negligence of the defendant and the contributory negligence of decedent; because a certificate of death of decedent was erroneously admitted; because in several particulars the court erroneously instructed the jury and because the verdict is excessive.

Our examination brings us to the conclusion that the verdict is so decidedly against the weight of evidence upon the question of negligence of the defendant as to compel the setting aside of the verdict. The rule to show cause is therefore made absolute.


text:
    CONVEYOR AND EQUIPMENT COMPANY, INCORPORATED, A CORPORATION, PLAINTIFF, v. ALEX SHAPIRO, DEFENDANT.
    Submitted January 31, 1930
    Decided May 8, 1930.
    Before Justices Parker, Black and Bodtke.
    Eot the plaintiff, Feder d Rinzler.

    Eor the defendant, Reuben H. Reiffin.

   Per Curiam.

This case was tried before Judge Newman and a jury, and by the defendant’s own admission plaintiff was entitled to recover at least $36.34. The jury rendered a verdict against the plaintiff of no cause of action. The Court of Errors and Appeals affirmed the judgment below. Conveyor and Equipment Co. v. Shapiro, 7 N. J. Adv. R. 1095.

The judgment of the Court of Errors and Appeals is conclusive. New trials have heretofore not been granted after a final disposition of the cause in the court of last resort.

The rule is discharged.


author: Per Curiam:.

text:
    STATE OF NEW JERSEY AND THE CITY OF UNION CITY, PROSECUTORS, v. HUDSON COUNTY COURT OF COMMON PLEAS, JOHN J. McGOVERN, CLERK; RECORDER’S COURT OF UNION CITY, ALFRED E. MODARELLI, RECORDER, AND JOSEPH G. KOPSKY, RESPONDENTS.
    Submitted October term, 1929
    Decided May 10, 1930.
    Before Justices Teen-chard, Lloyd and Case.
    Eor the prosecutor, Andrew E. Wittreich.

    For the respondents, Morris Barison.

   Per Curiam:.

Joseph 6. Kopsky was convicted in the recorder’s court of Union City of the violation of a city ordinance concerning the storage and sale of fireworks, and appealed to the Common Pleas Court of Pludson county.

On the day following the appeal the Common Pleas judge made an order setting down the hearing of the appeal for July 16th, 1929, and requiring the recorder to “produce then and there the complaint, record of conviction and commitmenfc and the corporation attorney of the city of Union City within five days,” and further ordered that a copy of the order be served on the recorder before whom the conviction was had and the corporation attorney of the city.

On the 16th the trial records were not produced and counsel for the city asked an adjournment on the ground that insufficient time for the return had been granted in the order. This application was refused and the conviction was then reversed. The writ before us is to review this action.

We think the judgment must be set aside. It is sought to be sustained on the theory that the return is required to be made “forthwith” by section 1 of the act of 1908, page 442, which prescribes that on application to the justice of the Supreme Court or Common Pleas judge any summary conviction may be reviewed, and that he shall order the record of conviction brought before him forthwith and if the proceedings are found to be illegal, to set aside the conviction and free the prisoner.

The prosecutor was not seeking a review as contemplated by. that act, calling for a judgment as to the sufficiency of the proceedings to warrant the conviction, but appealing under chapter 320 of the laws of 1927. On such appeal certain definite steps seem to be required, among others that the recorder shall within twenty days certify the proceedings before him. Pamph. L. 1927, ch. 320, § 16. Before this time has expired the reviewing court has neither the record nor the right to the record, upon which it is required to pass. Its action, therefore, is premature; it is not yet empowered to act, and any judgment at such stage of the proceedings would be error.

Even if regarded as a review under the act of 1908, the Common Pleas judge could not act without the record being before him. Nor could the default of the recorder in making his return be vested on the appellant. It was the duty of the judge to enforce by some appropriate proceeding compliance by the recorder with the law, and only then pronounce on the record as it might appear when produced.

The judgment is reversed, with costs.


text:
    FRANK FRANKO, RESPONDENT, v. OHIO CHEMICAL COMPANY, PROSECUTOR.
    Submitted October term, 1929
    Decided May 10, 1930.
    Before Justices Tren chard, Lloyd and Case.
    Eor the prosecutor, Collins & Corbin.

    Eor the respondent, Samuel Greenstone.

   Per Curiam.

This is a workmen’s compensation case and the question presented for decision is whether the one-year limitation as provided in Pamph. L. 1924, ch. 187, § 6, is available to the employer. The petitioner, employed by the Ohio Chemical Company, was operating one of its retorts, and while so working on January 7th, 1926, received an injury to the eye by a blast of the gasses from the retort. The claim was not presented for.judicial determination for a period of fourteen months after the occurrence, and if this were the whole situation-the petitioner would be debarred from recovery by virtue of paragraph 23 of the Workmen’s Compensation act of 1911, page 144 (as amended in 1919, at page 211), which provides that all claims for compensation shall be barred unless a petition is filed within one year after the date on which the accident occurred. In 1924, however, the legislature passed an amendment to the act requiring employers to make report of accidents to the department of labor. Section 6 of the act provides that “any employer * * * failing to make report as required by this act, shall in such instance be deprived of the defense provided in paragraph 23 (h) of the Workmen’s Compensation act, approved April 4th, 1911, as chapter 95 as amended by chapter 93, laws 1919. In any such case it shall be incumbent upon the employe or dependent to show that the employer had knowledge of the accident and resulting permanent injury or disability extending beyond the waiting period.”

In the present case no such report was made. It is contended, however, by the prosecutor that the burden imposed by this section of the act on the employe “to show that the employer had knowledge of the accident and resulting permanent injury or disability extending beyond the waiting period” was not met. The commissioner found that it was, and this finding was affirmed by the Court of Common Pleas of Hudson county, and with this conclusion we agree.

The facts fairly inferable from the proofs were that the petitioner had been employed for approximately four years as an operator of a machine known as a retort. On the date of the accident, one of the machines overheating, it became necessary to open a safety valve in order to avoid an explosion. On opening the valve some of the gas contained in the machine blew out, striking him in the face and upper part of the body. He went at once to a sink nearby and washed his face, head and eyes with cold water. After doing this he resumed his work and continued to the end of the day. He worked for the next two days, being Eriday and Saturday. On Saturday night he went to a physician and received treatment for his eyes, and on the following Monday his wife telephoned to the respondent’s factory to advise that he had been hurt and was under the doctor’s care. He remained at home a week and then returned to his work. On returning he reported to Losche, the assistant superintendent of his employer, the injuries, and requested that safety elbows be put over the valves as he did not want anybody else to lose their eyes; that he had received the explosion of gas in the face and did not know how his own eyes were going to be; showed him the drops that had been prescribed as treatment for his injuries. Losche, the assistant superintendent, testified to receiving information from the petitioner as to his injury, but stated that the first information of any claim was in March, 1927. °

The waiting period referred to in the section quoted is defined in the amendment of 1925, page 405, as follows:

“No compensation other than medical aid shall accrue and be payable until the employe has been disabled seven days, whether the days of disability immediately follow the accident, or whether they be consecutive or not. These days shall be termed the waiting period. The day that the employe is unable to continue at work by reason of his accident, whether it be the day of the accident or later, shall count as one whole day of the waiting period.”

We think it fairly inferable from the evidence that the plaintiff’s injuries were of such character as to come within the period defined as the waiting period, and that the employer was fairly apprised that the injuries were of such a character as to be then existing but such also as might continue. The information conveyed by the petitioner to his employer established the fact of notice of the injuries, and the fact that treatment was being given therefor within the knowledge of the employer, together with the information conveyed by the wife that the petitioner was unable to come to work, all combined to make a case which required the employer, if intending to avail itself of the statutory limitation within which a petition could be filed, to report the accident as required by the act of 1924, supra.

The judgment of the Court of Common Pleas will be affirmed, with costs.


text:
    MARATHON BUS LINE, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY, PUBLIC SERVICE CO-ORDINATED TRANSPORT, PUBLIC SERVICE TRANSPORTATION COMPANY AND PUBLIC SERVICE RAILWAY COMPANY, RESPONDENTS.
    Submitted October term, 1929
    Decided May 10, 1930.
    Before Justices Tbenciiabd, Lloyd and Case.
    Eor the prosecutor, John E. Toolan.

    Eor the respondents, William H. Speer.

   Pee Curiam.

The application in this case is for a writ of certiorari to review an order of the public utility commissioners respecting the operation of bus lines of the Public Service Co-ordinated Transport. The order permits the operation of ten jitney buses between Tanners corner in South River and Water street in Perth Amboy. It authorizes a change in the route in South River of buses operated between South Amboy and New Brunswick and finally it permits the abandonment of trolleys on the Sayreville route and the substitution of buses between South Eiver and South Amboy.

There seems to be no opposition to the abandonment of the Sayreville' line, but the prosecutor, the Marathon Bus Company, operating bases between Perth Amboy and South Am-boy and between Perth Amboy and Keyport, contends that the board was not justified in the remaining portion of the order which permits the placing of ten buses on the line between South Eiver and Perth Amboy, paralleling the Marathon line where it operates between South Amboy and Perth Amboy. Included in the order, however, is the provision that the respondent shall not accept passengers in Perth Am-boy for discharge in South Amboy north of the intersection of Eelton street and Washington road and vice versa; that it shall not operate in the borough of Sayreville.

It is contended by the prosecutor that the order was illegal for two reasons: (1) that the municipal consents preceding the application to the board of public utility commissioners, were conditional that operation should begin within specified periods from the time of granting the consents, and that the board was without jurisdiction; (2) that there was no evidence before the board to support, reasonably, the conclusion that the franchise applied for by the Public Service Coordinated Transport was necessary and proper for the public convenience.

We think neither of these grounds well founded. It is. true that the municipal consent of the city of Perth Amboy was granted with the proviso that operation should begin three months from date, and the consent of the city of South Amboy to begin four months from date. Upon these consents, being given application was promptly made to the utility commission, and after some delays the order appealed from was made, the time for operation within the periods named, however, having then expired.

We think at least two difficulties present themselves as a barrier to the present application on the first ground: (1) that the prosecutor is not a party in interest who can complain of the breach of this condition, if such it be; and (2) that the consents cannot be thus collaterally attacked. We also think that it is doubtful that the proviso of the consent of these cities contemplated operation in advance of an approval by the board of utility commissioners, and certainly not without such consent. It was, therefore, reasonable to conclude that delays occasioned by the application to the board were not contemplated as being included in the times specified.

In addition this being an attack on the order of the board for want of jurisdiction and not on the municipal consents, it is sufficient to say that when the applications were first presented to the utility commission the time limit had under no construction expired. This gave the commission jurisdiction.

As to the contention that there was no evidence before the board to reasonably support the order, we think this is not established. A very considerable volume of testimony was adduced before the board. A careful checking up of travel was made and the needs of the communities affected, together with the interest of the prosecutor, were fully developed and carefully considered. The slight impairment of the business of the prosecutor by the limited paralleling of its lines, restricted as to local travel as it is by the order, does not militate against this view. Our examination of the record satisfies us that the order of the commissioners was fully sustained by the proofs and that the prosecutor has presented no grounds upon which it should be disturbed.

The rule will be discharged, with costs.


author: Per Cubiam.

text:
    NUTLEY FINANCE COMPANY, PROSECUTOR, v. CATERINA DE FEDERICIS, RESPONDENT.
    Submitted October term, 1929
    Decided May 10, 1930.
    Before Justices Tbenchard, Lloyd and Case.
    Eor the prosecutor, William DeLorenzo.

    Eor the respondent, B. Louis Glaricson.

   Per Cubiam.

Under the writ issued in this case it is sought to set aside an order of the Eirst Judicial Court of Bergen county opening a judgment regularly taken before it. The state of the case agreed upon shows that a summons was issued against the defendant on January 24th, 1929, returnable February T'th, 1929. On the return day the defendant failed to appear. An entry of “no appearance” was made by the clerk, whereupon the plaintiff’s attorney filed an affidavit of proofs as provided by the District Court act and judgment was entered against the defendant for the sum of $300 and costs.

On July 9th, 1929, a rule to show cause why the judgment thus taken should not be reopened and a new trial granted was allowed by the District Court judge. On the return day of the rule an affidavit of the defendant was presented in ■which she stated that she did not know at the time of service of the summons and state of demand that she was being sued on the plaintiff’s note, and that, being unable to read and write English, she threw the papers away. She further-stated that there was a meritorious defense to the action. The judge took the matter under advisement and on August 19th, 1929, granted the order for new trial.

The seventeenth section of the District Court act (Comp. 8 tat., p. 1959) declares: “In every case tried in any of said courts the judge may if he sees fit order a new trial to be had upon such terms as he shall think reasonable * * * provided that such application for such new trial, except where said application is based upon newly-discovered evidence, shall be made within thirty days after judgment.”

The application in the present case was not made until nearly six months after the entry of judgment. It is contended by the relator that there was no trial within the meaning of the statute, but this is contrary to the authorities. Rosner v. Cohn, 81 N. J. L. 343; Levine v. Schwartz, 86 Id. 476. In both of these cases it was held that a judgment taken in the absence of the defendant constituted a trial within the contemplation of the statute, and that on application for a new trial presented more than thirty days after the entry of judgment, a new trial could not be granted. In the present case there was neither fraud in the taking of the judgment nor newly discovered evidence. Lutter v. Neubauer, 100 Id. 20, and Geithner v. Paechiana, 8 N. J. Mis. R. 384, do not apply.

The ease is almost identical in its factual aspects with that of New Jersey Cash Register Corp. v. Linehan, 6 N. J. Mis. R. 740. In that case a clerk in the office of the defendant’s counsel neglected to attend the case; in this case it was the combined ignorance and neglect of the defendant which caused her default in responding to the summons.

The order is reversed, with costs, and the judgment originally entered reinstated.


text:
    WILLIAM GEITHNER AND CLARA GEITHNER ET AL., PROSECUTORS, v. VINCENZO PAECHIANA AND THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF HUDSON COUNTY, RESPONDENTS.
    Submitted October term, 1929
    Decided May 10, 1930.
    Before Justices Trenchard, Lloyd and Case.
    Eor the prosecutors, Sholhin & Cohen {Peter Cohen, of counsel).
    For the respondents, Rae, King & O’Brien.

   Per Curiam.

On the writ of certiorari in this case we are asked to set aside an order of the judge of the Second District Court of Hudson county opening a judgment which had been obtained in that court by the plaintiffs against the defendant. The ground upon which we- are asked to set it aside is that the rule to open the judgment was not allowed until the 2d of May, 1929, the judgment having been obtained February 14th preceding. The seventeenth section of the District Court act (Comp. 8tat., p. 1959) provides that “in every case tried in any of said courts the judge may, if he sees fit, order a new trial to be had, upon such terms as he shall think reasonable, and in the meantime stay proceedings, provided that application for such new trial, except where the said application is based upon newly-discovered evidence, shall be made within thirty days after judgment.”

In the case of Lutter v. Neubauer, 100 N. J. L. 20; affirmed, 101 Id. 222, the legal effect of this act was dealt with by the Supreme Court and it was there said that “the District Court is a court of general jurisdiction, though the amount of its jurisdiction is limited, and section 68 of the District Court act declares that the ‘practice of the Circuit Court in so far as applicable, shall apply to District Courts, excepting, however, in cases where there may be some express provisions of law providing otherwise, and no doubt our courts of general jurisdiction have power to open judgment after the expiration of the term in cases, among others, of fraud upon the court (citing authorities) and the rule is that statutes limiting the time within which application to set aside judgments and for new trials must be made did not cover such cases unless expressly made applicable thereto, which is not so as to section 17 of the District Court act.’ ”

From the proofs taken on the rule to open the judgment it appeared that the case had been noticed for trial and as a result of communications between the attorneys for the parties it was agreed that nothing further was to be done then in the case but that the trial was to be postponed to a date to be agreed upon, and that in violation of this agreement the plaintiff’s attorney proceeded without further notice, and in the absence of the defendant and his counsel, to take judgment and issue execution. To thus proceed in the face of the agreement was a fraud both upon opposing counsel and upon the court and justified the action of the judge in opening the judgment and setting aside the verdict.

The order opening the judgment will be affirmed, with costs.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, EX REL. NATALI BORSHESKY, RELATOR, v. BOARD OF WORKS OF THE CITY OF ELIZABETH, RESPONDENT.
    Argued October term, 1929
    Decided May 10, 1930.
    Before Justices Tbenchaed, Lloyd and Case.
    Eor the relator, Thomas Brunetto.

    For the respondent, John J. Griffin.

   Pee Cueiam.

This is an application for a writ of mandamus to compel the hoard of works of the city of Elizabeth to institute an action, or actions, for the recovery of penalties, under a zoning ordinance of the city, from the owners of premises 127 to 135 Franklin street in that city. The applicant is the owner of premises 137 Franklin street, on which is erected a dwelling house occupied by two families.

On February 1st, 1924, Louis Diamond, the then owner of the premises here involved, applied to the building inspector of the city for a permit to erect a steel warehouse. This was refused and on appeal to the board of adjustment the application was again denied. In November of the same year Diamond again applied to the inspector, was refused, applied again to the board of adjustment and was again refused.

In April, 1926, the Court of Errors and Appeals having decided the case of State v. Risley, 99 N. J. L. 389, and other cases, declaring the limited power of municipal authorities to restrict the use of land by property owners, under the constitution as then existing, another application was made for a permit to erect an addition to the building already on the premises and it was granted. Construction of the building was then begun, and the applicant, on completion of the building, in August, 1926, filed a bill in Chancery to restrain the operation of the business about to be carried on by the owner. This bill was dismissed.

After waiting three years the present application was filed for the purposes first above mentioned.

It is quite clear that the application should be denied on the ground of laches, but there are other and fundamental reasons for its denial. Having presented her grievances to the Court of Chancery and been there denied the relief sought, she cannot continue to urge the same grievances in protracted litigation. Also at the time the permit was granted the ordinance was ineffective to prevent the construction and use of the building for which the permit was asked because transcending the power then possessed by the city, and the validating effect of chapter 274 of the laws of 1928, passed in pursuance of the amendment to the constitution adopted in 1927, known as the zoning amendment, was not intended to give life and effect to the ordinance so as to impair rights then existing or permits then granted. Such was the decision of the Court of Errors and Appeals in the ease of Frank J. Durkin Lumber Co. v. Fitzsimmons, 7 N. J. Adv. R. 1127.

In that case conviction of violation of an ordinance such as here presented was set aside by the court of last resort, and even if the applicant were not barred by laches, it is obvious that to grant the writ would but be to compel the city to institute litigation which could accomplish no successful result.

Eor the reasons above given the application for a writ of mandamus is denied, with costs.


author: Pek Cukiam.

text:
    NICHOLAS G. HAMPTON, PROSECUTOR, v. NEW JERSEY REAL ESTATE COMMISSION ET AL., RESPONDENTS.
    Argued May 6, 1930
    Decided May 16, 1930.
    Before Justices Pakkek, Campbell and Bodine.
    Eor the prosecutor, Harry R. Coulomb.

    Eor the respondents, William A. Stevens, attorney-general.
   Pek Cukiam.

This writ brings up a conviction, or similar finding, by the state real estate commission, pursuant to section 13 of chapter 141 of the laws of 1921, entitled “An act to define, regulate and license real estate brokers and salesmen, to create a real estate commission and to provide penalties for the violation of the provisions hereof” (Pamph. L., p. 370), which was amended as to title and body by Pamph. L. 1925, ch. 243, p. 672,

The return before us shows that there was a formal trial of the prosecutor before the board, at which a quantity of documentary evidence was produced which has been printed as part of the return. The return also shows that a number ■of witnesses were sworn and testified, hut fails to show the purport or the substance of that testimony. It is now urged for the prosecutor that the writ should be dismissed for insufficiency of the return because of this last failure.

Our decisions on this point are persuasive that the return should set out the substance of the evidence; and a number will be found collected in the New Jersey Digest under the title of “Criminal Law/5 section 63, column 3078. A typical case is Preusser v. Cass, 54 N. J. L. 532.

On the other hand, however, it is common practice to direct the summary tribunal to certify as to certain matters occurring on the trial before them which do not appear upon the record. Smick v. Opdycke, 12 N. J. L. 98; South Brunswick v. Cranbury, 52 Id. 298; Smart v. North Hudson County Railroad Co., 66 Id. 156. The practice is recognized in Supreme Court Eule 164.

An examination of the printed book indicates quite clearly that the oral testimony taken before the commission must have been of considerable importance to that body in reaching its determination that the prosecutor was guilty of a violation of section 13 of the act in some manner; and it is therefore eminently proper that this court should be advised of the testimony on which in large measure it acted.

The case will therefore be continued and the attorney-general may enter a rule calling upon the commission to amend its return by adding thereto the substance of the testimony given by the various witnesses, viz., Mary Pancoast, Charles H. Pancoast, Clarence H. Polhemus, Leo Lewis and Nicholas G-. Hampton.

Let a rule be entered accordingly in conformity to rule 164 of this court.


author: ' Pee Cueiam.

text:
    NEW JERSEY AND HUDSON RIVER RAILWAY AND FERRY COMPANY ET AL., PROSECUTORS, v. THE HACKENSACK IMPROVEMENT COMMISSION, DEFENDANT.
    Argued May 6, 1930
    Decided May 16, 1930.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutors, Frank Bergen and William H. Speer.

    Eor the defendant, Walter G. Winne.

   ' Pee Cueiam.

The prosecutors seek to set aside three assessments for benefits by reason of the grading, paving and curbing of Susquehanna and Second streets, Hackensack, and the construction therein of drains, sewers and sidewalks. The lands against which the assessments were levied were owned by the New Jersey and Hudson River Railway and Eerry Company and were leased to the Public Service Co-ordinated Transport. The sufficiency of the ordinance and the regularity of the proceedings for assessment are not questioned. It is urged against the assessments, however, that the lands in question were devoted to public use, being the right of way for a street railway, and hence an assessment can be levied only to the extent of actual benefits conferred. New York Bay Railroad Co. v. Newark, 82 N. J. L. 591.

The assessments were based upon a supposed increase in value without regard to the use to which the lands were dedicated and are upon the same basis as other assessments made for the same improvements against other adjacent lands, and were made without regard to the fact that the lands in question were part of the right of way for a street railway. The land in question is a strip fifty feet wide for the most part and twenty-five feet wide for a small part. Years ago it was part of the right of way of the trolley line running between Hackensack and Newark. In 1928, municipal authorities entered into a contract for a temporary suspension of the street railway operation and the substitution of auto buses therefor. The tracks, poles and overhead wires have been removed. The agreement states that the suspension thereunder shall not operate as an abandonment or surrender of existing franchises. The operation of the street railway has ceased. At the same time its franchise still exists and the service could be restored.

It is apparent that although the lands in question might be used as a right of way for a street railway that there is an entire suspension of such use.

Mr. Justice Parker said, in Lehigh Valley Railroad v. Jersey City, 81 N. J. L. 290, 299: “But the railroad owns, besides the right of way, over sixty city lots, some adjoining the right of way strip, some disconnected from it. It does not appear whether these lands are used in whole or part for railroad purposes. If not so used, they are assessable like any other lands; if so used, and if benefited for such purposes by the sewer, they are assessable, not to the extent of enhancement of market value, but to the extent of benefit for railroad purposes.”

“As a general rule property owned by a railroad but not used for railroad purposes is subject to special assessment for local improvements in the same manner and to the same extent as property owned by an individual.” 44 Corp. Jur. 535; Lehigh Valley Railroad Co. v. Jersey City, 81 N. J. L. 290; Morris, &c., Railroad Co. v. Jersey City, 64 Id. 148; affirmed, 65 Id. 683.

“So it has been held that land of a railroad company not necessary to the exercise of its franchise, nor within projected plans contemplating its use for such purposes, is properly assessed for local improvements, although in the exigencies of its legitimate business the company may at some future time need the property for railroad purposes.” 44 Corp. Jur. 535; Morris v. Jersey City, 64 N. J. L. 148; affirmed, 65 Id. 683.

It is to be noted that there is no operation over the right of way in question or any part thereof. There is an entire suspension of public use. The lands in question might in the future be used for railway purposes, but they might also be sold or devoted to some other use. Hence, the assessment was proper.

Further, the assessment in question was affirmed December 2d, 1929, and the present writ was not granted until February 8th, 1930. Probably under Pamph. L. 1907, p. 109, and Pamph. L. 1921, p. 515, the application came too late. United Owners Realty Co. v. Lodi, 99 N. J. L. 529.

The writ will be dismissed.


author: Pee Ctjbiam.

text:
    STATE OF NEW JERSEY, RESPONDENT, v. ANTHONY M. RUFFU, Jr., PROSECUTOR.
    Argued May 7, 1930
    Decided May 19, 1930.

      Before Justices Paekee, Campbell and Bodike.
    Por the respondent, Louis A. Bepetto.

    Por the prosecutor, Babcock & Champion and Merritt Lane.

   Pee Ctjbiam.

Anthony M. Buffu, Jr., mayor of Atlantic City, was indicted in fourteen separate indictments charged with violations of section 32 of the Crimes act, as amended Pamph. L. 1907, p. 292. The act is as follows and the italics ours:

“32. Any member of any board of chosen freeholders, or any township committee, or any board of education in any school district, or any board of aldermen or common council in any city, or any board of commissioners of any county, township, city, town or borough in this state, who shall be directly or indirectly concerned in any agreement or contract for the construction of any bridge or building of any kind whatsoever, or any improvement whatever to be constructed or made for the public use or at the public expense, or shall be a party to any contract or agreement, either as principal or surety, between the county, township, city, town, borough, or school district, as the case may be, and any other party, or who shall be directly or indirectly interested in furnishing any goods, chattels, supplies or property of any kind what-' soever to or for the county, township, city, town, borough or school district, the contract or agreement for which is made or the expense or consideration of which is paid by the board, council or committee of which such member is a part, shall be guilty of a misdemeanor.”

The indictments fall into three groups. In the first are ten indictments containing three counts, each charging that Euffu, while a member of the city commission and mayor of Atlantic City, did unlawfully, knowingly, wickedly, maliciously and corruptly, with evil intent for his own use and gain, furnish properly to and for the benefit of Atlantic City in the form of a certain policy of fire insurance described at length, and that he shared in the brokerage commission paid therefor. In the second count, the policy is referred to as a supply furnished to the city. In the third count he is charged with being a party to agreements and contracts providing for the writing of certain specific insurance policies for the city. The indictments contain many allegations descriptive of the offenses intended to be charged and many words and phrases calculated to bring the offenses alleged within the provisions of the Crimes act and hence to the defendant.

The second and third groups charge like offenses. The principal point of variation is the language in which the mayor’s interest in procuring the insurance policies called property and supplies is alleged.

It is argued that the statute must be strictíy construed and that a policy of insurance is a chose in action and neither property, a supply or a contract. Mr. Justice Bergen, speaking for this court in State v. Johnson, 82 N. J. L. 330, 332, said: “It does not appear to us that it is so manifest that no judgment can be rendered on this indictment that it ought to be quashed, and we prefer to follow the rule laid down in Proctor v. State, 55 Id. 472, that the discretion to quash an indictment on motion will not be exercised unless upon the clearest and plainest ground, but the defendant will be left to a demurrer, motion in arrest or judgment or writ of error.”

The other authorities in this state in support of the same proposition were exhaustively collected by Mr. Justice Parker in State v. Riggs, 92 N. J. L. 575.

Afterwards the late Mr. Justice Kalisch said, in State v. Bolitho, 103 N. J. L. 246 (at p. 253); affirmed, 104 Id. 446, the following: “An application to a Supreme Court justice for a writ of certiorari to remove an indictment into the Supreme Court for the purpose of moving before that tribunal to quash is addressed to the discretion of the justice. If he refuses to exercise his discretion to allow the writ the application may be made to the Supreme Court in lane. But the refusal of either furnishes no proper basis for an assignment of error, under proceedings by strict writ of error nor for a specification of cause for reversal in proceedings under the one hundred and thirty-sixth section of the Criminal Procedure act. It will not be out of place to state here that for more than fifty years it was the fixed practice to disallow an application for a wait of certiorari to remove an indictment into the Supreme Court for the purpose of moving there to quash it, unless the prosecutor of the pleas consented to its removal, or unless it appeared upon the face of the indictment that it was clearly defective in substance and a motion to quash had been made in the court of the first instance, which motion was denied.”

The language of section 32 of the Crimes act is very broad and was doubtless intended to be all inclusive. The distinction between prohibiting the furnishing of materials and supplies of any kind whatsoever and the furnishing of an insurance policy is not too obvious. A policy of insurance is usually regarded as a document containing the terms of contract between an insurance company and the insured. Of course, every lawyer is aware of the fact that in the strict legal sense the policy gives rise to certain rights in action but as a physical document it has also an existence under the law. It may very well be that it falls within the legislative classification of property and supplies which a city commissioner may not be directly or indirectly interested in furnishing to the city of which he is an officer. We do not feel that the indictment is so clearly and so plainly defective that this court can grant the motion.

We are mindful that it was said in Hammonton v. Elvins, 101 N. J. L. 38, that “the purpose of competitive bidding was to prevent dishonesty, chicanery and fraud. It was never intended that such a course of procedure would throttle the exercise of an honest judgment within prescribed limits.” However, the purpose in prohibiting a municipal officer from dealing with his municipality was not only to prevent dishonesty, chicanery and fraud, but also to prevent a person holding an office of trust from dealing with the city whose affairs were entrusted to his care and guidance.

The grand jury finding the indictments under consideration was sworn into office on January 14th, 1930. Nearly two months thereafter a challenge was interposed against four members of the grand jury on the ground of bias and prejudice. The challenge was overruled as not being within time. After the indictments were found on March 31st, 1930, three other members of the grand jury were challenged on the ground that they were public officers. These challenges were likewise overruled for the same reason. It appears that before the indictments were found, the newspapers of the locality contained various accounts of the mayor’s activities in obtaining insurance upon city property in companies for which he acted as broker or in which he was interested either as an officer, stockholder or director. On March 11th, 1930,. one of the justices of this court charged the grand jury with respect to the matter, but prior to his charge the first set of challenges was interposed.

Chancellor Magie said in State v. Hoffman, 71 N. J. L. 285: “The rule of the common law, which requires grand juries to be eprobi et legales homini’ (2 Hale P. C. 154), was early supplanted in this state by legislative provisions fixing the qualifications of grand jurors. By the provisions of section 2 of the £act relative to juries and verdicts,’ passed November 19th, 1797 [P.at. L., p. 259], every grand juror was required to be a citizen of the state, a resident of the county, above twenty-one and under sixty-five years of age, and having freehold in lands. Lack of the required qualifications was expressly declared to be good cause of challenge.

“The requirements of a freehold qualification was eliminated with respect to both grand and petit jurors by the ‘Act to abolish the freehold qualifications/ approved February 28th, 1851. Pamph. L., p. 93.

“The act of 1846 was repealed by section 76 of the general repealer of the revision, approved March 27th, 1874. Rev. Stat., p. 142. The provisions of section 2 and section 7 of that act were consolidated in section 6 of the ‘Act concerning juries/ approved March 27th, 1874 [Rev. Stat., p. 371], the language of which is as follows:

“ ‘6. Every person summoned as a grand juror in any court of this state, and every petit juror returned for the trial of any action or suit of a civil or criminal nature, shall be a citizen of this state and resident within the county from which he shall be taken, and above the age of twenty-one and under the age of sixty-five years; and if any person who is not so qualified shall be summoned as a grand juror or as a juror on the trial of any such action in any of the courts of this state, it shall be good cause of challenge to such juror, who shall be discharged upon such challenge being verified according to law, or on his own oath or affirmation in support thereof; provided, that no exception to any such juror on account of his citizenship, or age, or any other legal disability shall be allowed after he is sworn or affirmed.’

“The objection presented by the motion to quash and grounded on the lack of qualification of one of the grand jurors, because he was beyond the age of sixty-five years, which would have been good by way of challenge, came too late after the juror was sworn, and it was properly overruled by the trial court.”

The grounds of challenge presented in the case at bar, however, are said not to relate to any statutory disability, and it is therefore urged that they need not be interposed before the oath is administered. The challenges here were based upon the common law grounds of prejudice, malice- and the like, and would seem to fall under the saving phrase of the statute, “or any other legal disability.” Mr. Chief Justice Beasley said, in Gibbs and Stanton v. State, 45 N. J. L. 381: “The law affords the right to a person who is charged, or who is likely to be charged, before a grand inquest with the commission of a criminal offense, to put in challenges to individual jurors or to the array."

Mr. Justice Garrison, in State v. Lang, 75 N. J. L. 502, purposely fails to express any opinion as to what are the rights and remedies of a person who had no opportunity to challenge a grand juror upon the common law grounds of prejudice, malice and the like.

Mr. Justice Ford said in State v. Rickey, 10 N. J. L. 97: “In the case of Colonel Burr, the challenges to grand jurymen were all taken before they were sworn. The case of the State v. Rockafellow, 1 Halst. 343, was not a Challenge to the favour; it was a matter of principle challenge for want of a leading qualification required by statute; and though I subscribe to the doctrine of the court there delivered, and do not see how the court would have done otherwise, upon the facts admitted by the demurrer, it may lead to very inconvenient results, if carried a single inch beyond the precise circumstances of that very case.

“The matter is a challenge to the polls for favour, which the law always requires to be made before the juror is sworn, and here it is not made till after he has been sworn and acted. If taken at the proper time, it will only remove the juror, and allow of another in his place; but, if allowed in this shape, it will invalidate the proceedings of all the other good and unexceptionable men on the jury."

Mr. Chief Justice Beasley in Gibbs and Stanton v. State, supra, said: “This decision [State v. Rickey] seems to me in point in the present inquiry, for, although, in the one reported the exception set forth to the jurors was ground of challenge to the favour, and in the present instance the facts alleged constitute a principle challenge, it appears to be out of the question to differ the two cases by reason of such a lineament; both species of challenge are required, by the course of the law, to be interposed at the same time. They are triable by the same summary method, and are attended by the same result, for if they are sustained they equally disqualify the jurors at whom they are respectively aimed.”

We, therefore, think that the action of the justice of the Supreme Court in overruling the challenges was proper. They certainly came too late. The grand jury had been in session for nearly two months when the first set of challenges was interposed. “An objection by way of challenge must be made before the finding of the indictment, and according to a number of authorities before the grand jurors have been impaneled and sworn.” 28 C. J. 792.

As to the challenges of March 31st, 1930, it need only be noted that the same were interposed long after the indictments were found.

The first four challenges are couched in an excess of verbiage, but the substance of the matter so far as pertinent is as follows: Grand juror Sindoni was a judgment debtor of Buffu. Grand juror Adams was engaged in the real estate and insurance business and interested in the same company with a man named Hickman who had been a witness in an investigation concerning Buffu. Further, one of Adams’ companies had a suit pending in the District Court against a company in which Buffu was largely interested. Grand juror Markland appeared as a witness in the investigation concerning Buffu and had expressed the opinion that Buffu should resign as mayor. Grand juror Cowan was employed in the department of streets of Atlantic city and had expressed his opinion of Euffu’s guilt.

The grounds of challenge are also urged as a ground for granting a motion to quash the indictment. Mr. Justice Swayzo, in State v. McCarthy, 76 N. J. L. 300, said: “The motion to quash is ordinarily addressed to the discretion of the court, and it is upon this ground that the court sustained that procedure instead of the procedure by plea in abatement, which is more favored in other jurisdictions. Whether the court in the exercise of that discretion could refuse to grant the defendant’s motion in view of the decisions of the United States Supreme Court, is a question we do not feel called upon to decide.”

The court in that case thereupon quashed the indictment upon the ground that the sheriff had failed to impanel an impartial grand jury according to his oath saying: “If the grand jury is to serve its purpose of standing between the state and the citizen that it should be impartially selected and not chosen for the purpose of securing indictments.” In the case before us at the time the grand jury was impaneled and sworn there was no thought upon the part of any one that the offense charged had been committed. The matter was brought to light by subsequent newspaper investigation.

There is no basis for the motion to quash on the ground that the grand jury was improperly impaneled, nor is there merit in the allegation of bias and prejudice lodged against grand jurors Sindoni, Adams, Markland and Cowan.

Mr. Justice Kalisch said in State v. Bolitho, 103 N. J. L. 246 (at p. 251); affirmed, 104 Id. 446: “In State v. Spencer, 21 N. J. L. 196, Chief Justice Hornblowpr (at p. 198) stated a sound legal rule to be applied when he said: ‘A declaration of opinion to disqualify a juror, therefore, must be such an one as implies malice or ill-will against the prisoner, thereby showing that the person challenged does not stand indifferent between the state and him. This is the uniform language of the books and cases which are of authority under our constitution, as well as of the English courts up to the present time.5 This legal rule had become firmly imbedded in the law of this state. The salutariness of the rule is luminously dealt with by Chief Justice Green in State v. Fox, 25 Id. 566 (commencing at page 586).”

Mr. Justice Dixon said, in State v. Turner, 72 N. J. L. 405: “The first reason urged in support of the motion is that the foreman of the grand jury which presented the indictment was a stockholder in the trust company (alleged to be defrauded), and another member of the jury was a stockholder and director of the same company, and that this prosecution of the defendant was authorized by a resolution of the board of directors of that company.

“In Gibbs v. State, supra, Mr. Chief Justice Beasley, in delivering the opinion of the court respecting a plea in abatement which alleged ill-will and malice against the defendant on the part of certain of the grand jurors, and malicious misconduct in ihe sheriff in selecting the jury, said that upon such facts, presented in a motion to quash, the court would, in the exercise of its discretion, quash the indictment. But it is noticeable that he was there speaking of a cause of principle challenge, propter affectum, which does not appear in the present case. Here it is not alleged that either of the jurors took any part or was actuated by any motive in the prosecution of the defendant other than such as their public duty dictated.

“Their interest in the corporation which the defendant is charged with having attempted to defraud is the sole basis of the argument. The opinion of this court, delivered in State v. Richey, supra, furnishes a complete answer to this contention, it being there decided that such interest did not at all affect the qualification of the juror.”

Mr. Justice Swayze said in State v. Pullis, 90 N. J. L. 377: “The case differs from State v. McCarthy, 76 Id. 295, where the proof showed partiality on the part of the sheriff in selecting the grand jury, as was possible under the law as it then stood. The present charge is in the nature of a challenge to the favour of a single grand juror, and goes no further. No malice or ill-will is averred, and the present defendant was not even the rival of the foreman of the grand jury for the office he sought. The case is within the rule of State v. Turner, 72 Id. 404; State v. Richey, 10 Id. 83, 97.”

It occurs to us that the allegations of bias and prejudice are insufficient, but at all events there is nothing to indicate that any of the jurors were actuated by any private motives or took any part in procuring the indictments other than that required by their oath.

Of the other grand jurors challenged, one was a justice of the peace, one a member of the board of freeholders and another a tax collector and assessor of a neighboring township. The practice of placing the names of public officials in a jury list is, of course, not wise. It tends to interfere with the orderly course of public business. “In the absence of statutory enactment to the contrary, the fact that a juror is a public officer does not disqualify him from serving as a grand juror.” 28 C. J. 769.

The ease of Crawford v. United States, 212 U. S. 183, is to the contrary. A petit juror was an employe in the postal service of the United States. The accused was a government officer. The disqualification was sustained on the ground that the juror was a servant of the United States and interested in the outcome of the litigation. The court said: “His position was that of an employe who received a salary from the United States, and his employment was valuable to him, not so much for the salary as for the prospect such emploj'-ment held out for an increase in his business from the people who might at first come to his store for the purchase of stamps, &c. It need not be assumed that any cessation of that employment would actually follow a verdict against the government. It is enough that it might possibly be the case, and the juror ought not to be permitted to occupy a position of that nature to the possible injury of a defendant on trial, even though he should swear he would not be influenced by his relations to one of the parties to the suit in giving a verdict. It was error to overrule the defendant’s challenge to the juror.”

This reasoning is inapplicable to the facts suggested in the record before us. The grand jurors challenged long after the indictments were found were elective officers, unlike the post-office employe. Impeachment was the remedy for the removal of the justice of the peace, and the member of the board of freeholders and the taz collector would certainly not lose-their positions by reason of anything they might do as grand jurors. There is in the record presented nothing to justify this court in quashing the indictments.

The application will be denied.


author: Ingersoll, V, C.

text:
    The Atlantic Safe Deposit and Trust Company, a corporation of the State of New Jersey, executor of the estate of Charles C. Butler, deceased, complainant, v. Ferdinand Thommessen, widower et al., defendants.
    [Filed May 29th, 1930.]

      Messrs. Thompson & Hanstein, for the complainant.

      Mr. John G. Reed, for the defendants.
   Ingersoll, V, C.

The complainant obtained a final decree in this court for the sum of $17,223.25, together with costs amounting to $310.83. By virtue of the final decree, the sale was made by the sheriff of the county of Atlantic to the complainant for the sum of $100, it being the highest bidder therefor.

A report of the sale of said premises was made thereafter and objection to the confirmation Died by the defendant Ferdinand Thommessen for two reasons: first, that the defendant was ill in bed and unable to attend the sale at the time and place to which it had been adjourned, and second, that the price obtained at said sale was insufficient. The complainant gives notice and moves to dismiss the objections and have an order confirming the sale.

An affidavit is filed by the complainant to the effect that upon the day fixed for the sale, one Rocco E. Delesantro, Esquire, appeared and asked for an adjournment of the same, stating that the defendant had in view a scheme for refinancing whereby he might protect his property against the complainant’s decree. The complainant’s counsel, although not consenting to the adjournment, made no active opposition thereto, and the sale was adjourned for one week. At that time, the property was offered for sale'and the complainant bid the sum of $100 and the same was struck off to him.

I do not take it that the illness of the defendant would be, of itself, sufficient to set aside this sale. He was represented by a solicitor of this court and obtained an adjournment, and the same" solicitor, representing John C. Reed, Esquire, solicitor and of counsel for the defendant, appeared before me in opposition to this motion.

During the progress of this cause, the complainant filed a petition praying for the appointment of a receiver, in which it was alleged that the mortgage of the complainant, upon which the decree was made, was subsequent in lien to a first mortgage in the principal sum of $25,000 with interest from April 9th, 1929; a second mortgage in the sum of $15,000 on which interest was past due, and taxes in arrears for the year 1929 amounting to $2,186.52, together with interest thereOn.

Upon the application for a receiver, the complainant presented affidavits showing that a fair market value of the said premises was $40,000 and at a forced sale would not bring more than $35,000. The defendants presented proof that for the year 1930 the said property was appraised for the purpose-of assessing taxes at $92,000, and also that it would bring at a forced sale from $60,000 to $65,000; and further, that the-defendant owned and possessed real estate and other goods and chattels to the value of $100,000 over and above all of' his just debts.

Upon this hearing, an affidavit is presented by the defendant that the property is worth not less than $63,000 and “will bring at a forced sale under tba hammer at least: $63,000.”

As expressed by Vice-Chancellor Backes in Dunlop v. Chenoweth, 90 N. J. Eq. 85: “The sale was conducted fairly, and in all respects according to law. The price was the highest and best that the property would, at the time of the sale, bring in cash, and as this was the only thing to be decided on objections a confirmation was .advised. In Oakley v. Shaw, 69 Atl. Rep. 462, Chancellor Walker (then vice-chancellor) held That the only office of a written objection to the confirmation of a sale in foreclosure under the act of March 12th, 1880, and rule 205 (now 218). of this court, is to urge the overthrow of a sale upon the sole grounds that the property did not bring the highest and best price that could be obtained for it in cash, and that an attack upon the sale on any other ground must be made the basis of independent action, either by bill or petition.’ This practice rule was accepted with approval by Vice-Chancellor Garrison in Cropper v. Brown, 76 N. J. Eq. 406, and by Vice-Chancellor Howell in Koegel v. Koegel, 83 N. J. Eq. 179.”

It is not necessary to determine whether under the practice the court may refuse to confirm a sale where the bid is so grossly inadequate as to shock the conscience. I have no doubt that it would, in a proper case, but that situation is not before me. The sale was not of a $63,000 property for $100. The sale was madeMo protect the purchaser’s lien of approximately $17,500, subject to the prior encumbrances thereon of approximately $44,000, making a total of over $61,000, and the difference between that sum and the estimated value of the property as proven by the defendant himself is not sufficient to appeal to the conscience on the ground of gross inadequacy of price. In connection therewith, L must be noted that there is no attempt or suggestion on th< part of the defendant that a greater bid would or could b( obtained if confirmation was refused and a new sale had.

I will advise an order dismissing the objections to the confirmation of the sale.


text:
    JOHN W. CONWAY, PETITIONER, v. STATE OF NEW JERSEY, RESPONDENT.
    Argued May 7, 1930
    Decided May 19, 1930.
    Before Justices Paekee, Campbell and Bodine.
    Eor the petitioner, Bourgeois & Coulomb.

    Por the respondent, Louis A. Repetto and Herbert C. Bartlett.

   Pee Cukiam.

The Atlantic County Oyer and Terminer on March 11th, 1930, found five separate indictments against John W. Conway charging him as building inspector of Atlantic City with extorsively demanding and receiving under color of his office money not due him or the city.

Mr. Justice Reed said, in Kirby v. State, 57 N. J. L. 321: “The indictment is drawn in the usual form, and charges that the defendants were officers and by color of their office-extorted.” He also said: “Extortion technically is an official misdemeanor, while in its larger sense it signified the taking of money by any officer by color of his office where none or a part only is due.”

In the present case, one indictment charges the demand and receipt of $213, not due for any service, from Philip G. Hannum, who was then building two stores and held a building permit therefor. It charges that Conway, who was the superintendent of buildings of Atlantic City, usually called “building inspector,” was under a duty to inspect plans and issue permits for the erection of buildings; that although Hannum. had a permit Conway unlawfully and knowingly, wickedly and maliciously, with evil intent, by and through the color of his office, demanded of Hannum for himself the sum of $213, when the same was not due either to Conway or to the city, and that Hannum, through fear of Conway and the power of his office, paid the same.

Another indictment charges a like offense, except that on October 25th, 1929, $500 was collected from a man named Brazier T. Booye. Another relates to a transaction involving the obtaining of the further sum of $50 from Booye. Another relates to a transaction with Hannum, who was also building a garage. Five hundred dollars was demanded and Hannum and a man named Clifford, who was interested, agreed to pay this. Fifty dollars was paid by Hannum. The last charges the demand and receipt of $46 in another transaction with Booye.

For the purpose of this motion the indictments seem sufficiently clear and precise. Halsey v. State, 4 N. J. L. 324, 369; 25 C. J. 239.

The indictments allege the existence and occupancy' of a public office. It is urged that the ordinance creating the office is not pleaded. We see nothing in this point. The purpose of a pleading is to allege a fact. At the trial evidence is introduced. The pleader is not obliged to set forth his evidence. The extent of authority of the building inspector is a matter of proof. The indictment charges his authority and that under color of his office he extorsively demanded and received, illegally, sums of money for his own advantage. He is not charged with a breach of official duty. He is charged with the extorsive use of an official position. The discretion to quash an indictment on motion will not be exercised save upon the clearest and plainest grounds. State v. Ruffu, 8 N. J. Mis. R. 392.

The writ will be denied.


text:
    ROY G. SIMMONS, RELATOR, v. POLICEMEN’S PENSION COMMISSION OF THE BOROUGH OF DEAL, RESPONDENT.
    Argued- May 6, 1930
    Decided May 19, 1930.
    Before Justices Parker, Campbell and Bodine.
    Eor the relator, Theodore J. Labrecque.

    Por the respondent, Lester G. Leonard (William A. Stevens, attorney-general, on the brief).
   Per Curiam.

The relator claims to be entitled to retire on a pension as a member of the police force of the borough of Deal by reason of permanent disability due to an accident occurring in the performance of his duty. The' statute applicable is the act of 1920 (Pamph. L., p. 324) known as the Police Pension act, section 2 of which provides as follows: “Any member of such police or fire department who shall have received permanent disability in the performance of his duty shall, upon certificate of the surgeon or physician of the police or fire department, or other physician designated for that purpose by the pension commission, be retired upon' a pension equal to one-half of his salary at the time of his retirement; where, however, a person being a member or employe of the police or fire department shall desire to retire by reason of injury or disease, said person shall make application in writing to the pension commission for such retirement, whereupon the pension commission shall call to their assistance the aid of the surgeon or physician representing either the police or fire department, and the person making the application may likewise call to his aid a regularly licensed and practicing physician or surgeon. The president of the board of pension commissioners is authorized to administer oaths to said physicians or other person called with respect to the matter before the commission shall determine, by resolution, whether said person is entitled to the benefits of this act. In case the two physicians called as hereinbefore provided fail to agree upon the physical condition of the applicant, then the pension commission may call a third disinterested, licensed and practicing physician and surgeon, and the determination of a majority of said three physicians, who being first duly sworn in the case, shall be reduced to writing and signed by them, and the pension commission shall consider the same in arriving at their decision.”

The rule to show cause in this case is entirely too broad and properly criticised on that account by the defendant. In effect it orders that the defendant show cause why they should not be commanded to pay a pension to relator pursuant to the act. On this argument the relator merely asks that a writ be awarded directing the pension commission of the borough “to call to its assistance the aid of the police surgeon and act in determining whether the relator is entitled to a pension by virtue of the Policemen's Pension act. Pamph. L. 1920, p. 324.” This is the proper form of such rule as this court should make if it holds with the prosecutor, for it will appear on a reading of the statute quoted above that the decision of the question whether the relator is entitled to a pension is committed to the pension commission, and all that the court should direct to be done is that the commission should proceed to consider the question in the manner provided by the statute, which so far it seems to have refused to do.

The making absolute of the present rule is resisted on three grounds. .The first ground is that the relator was not a member of the force when he applied for a pension; the second ground, that the relator waived any rights he may have had by applying for reinstatement to active duty as the evidence showed he did. The third ground is that there is doubt about his rights in the matter and therefore the respondent invokes the ordinary rule that mandamus will not be awarded except in a case of clear legal right. Our general conclusion in the matter is that with respect to the third objection, the rule is of course correct, but the facts do not support it; as to the second, we do not think that there was such a waiver as to deprive the relator of any rights to a pension which he has or had; and as to the first, that it is not true in fact and law.

The argument of the first objection that relator was not a member of the force when he applied for a pension rests fundamentally upon the proposition that he had never been appointed as a regular member of the force but was merely a special policeman, and that he had ceased to be such at the time of his application. As this is the principal point in the case, a short statement of the facts is required.

The distinction between a regular and a special policeman, so far as any exists, is to be gathered from the language of the police ordinance of the borough which has not been printed in full but from which we take the following extracts.

Section 1 provides for the establishment of a police department “to consist of the following officers to be elected by the board of commissioners, to wit:

“A chief of police, a detective sergeant and as many regular and special policemen as are required to preserve the peace and good order of the borough at any time of the year within the discretion of the board of commissioners. The number of regular and special police officers may be increased or reduced as hereinbefore mentioned as the exigencies may arise from time to time.”

The above is section 1 of the ordinance. The next section printed, section o, provides for the keeping of a book of record of the name and residence of the policemen and a specification of their duties. The next section to be printed is section 50, which provides “that the board of commissioners may from time to time appoint such special policemen for private purposes, without compensation, as it shall deem necessary for the public good, but such special policemen shall observe the rules and regulations of the police department of the borough, and the powers conferred upon them may, at any time, be revoked by the mayor with due notice to the board of commissioners.”

Section 51 provides that “no special policemen shall be appointed for a longer period than one year, and the commission of all such officers shall state the time for which they are empowered to act.”

The next printed is section 54, referring to salaries, which provides a scale of salary for regular police officers at so much per annum, and another salary for special police officers at so much per annum. The amount is immaterial as the salaries were raised after the passage of this ordinance in 1927.

At this point it may be well to state our understanding of the meaning of this ordinance with respect to the status of special policemen. We think it is plain that the special police mentioned in section 1 are part of the every-day force, and those mentioned in section 54 relating to salaries, are in an entirely different class from the special policemen mentioned in sections 50 and 51; which latter are obviously of the general type of railroad police and those whose compensation is paid by private employers, but for whom a police status is desirable. This is evident from the clause italicized in section 50 by us, and from the fact that private policemen are to serve without salary, whereas the relator was employed at a salary; from the fact that private special policemen are to be commissioned, whereas relator was not commissioned, and to serve for not longer than one year, wheras the tenure of the relator’s employment is indefinite.

The relator was appointed on December 17th, 1925, by resolution of the board of commissioners as a “special police officer of the borough of Deal to serve when and where directed 'at a yearly salary 'of two thousand dollars, payable semi-monthly, at the pleasure of the board of commissioners.”

No question seems to have been raised about his having qualified in due form of law. When he applied for appointment on the force, he asked to be put on motorcycle work, but this was not immediately done. At first he was employed at desk work. Then in May, 1926, he was assigned to motorcycle duty and while in the performance of that duty, on May 23d, 1926, he was badly injured, his skull being fractured, his ear drum ruptured and other injuries sustained. He was sent to the hospital. In June the police surgeon discharged him from the hospital as cured, although it seems to be admitted that he was not cured by any means, because latér this same police surgeon sent the relator to a specialist for treatment and admitted on the stand that he was wrong in having discharged him as cured. During the summer relator had been on half pay. On August 28th, based on a certificate of the police surgeon that he was fit to return to duty, he attempted to do so on September 1st and worked until the 14th of the month but found he could not do the work. At this time he was asked to resign from the force and refused to do so, whereupon he was placed on an indefinite leave of absence. At the request of the chief of police he turned in his uniform and equipment. It seems obvious, however, that up to this point at least the relator was recognized by the borough authorities as a member of the force. On May 26th, 1927, relator wrote to the mayor, asking to be returned to duty, but nothing came of it. This letter appears to have been placed before the board and the matter was laid over until November 30th, when relator appeared personally and was told that there was no opening for him. On Opril 25th, 1928, he asked to be put on the pension list.

We are clear that relator never ceased to be a property accredited member of the police force even though a special policman under section 1; and this makes it unnecessary to determine whether he would not still be entitled to apply for a pension because of the disabling injury while actually on service, even though he had legally ceased to be a member of the force before applying for such pension.

While section 2 of the Pension act is not happily phrased, we think it clear that the section is properly to be divided into two parts. The first part intended to provide for cases in which a member of the department has received permanent disability in the performance of his duty, and the matter of his retirement is taken up by the pension commission of its own motion. In such case the commission directs the police surgeon to examine the man and, in case of a report that he is permanently disabled, the commission is then empowered to retire him upon a pension. The second part of the section preceded by the word “however/5 provides the machinery for retirement upon the application of the disabled member of the department. The procedure is that in such case such injured member desiring to retire makes application in writing to the commission, whereupon it is made the duty of that commission to call upon the police surgeon to make the examination and certify. Anticipating that such certificate may be adverse to the applicant, the statute further provides that the applicant himself may call in a regularly licensed physician and surgeon and if the two disagree, then the pension commission is to call in a third disinterested surgeon, and a majority vote of the three, after they have been duly sworn, shall be reduced to writing and signed and laid before the commission, which body then is to proceed to take the testimony of the physicians, or any other person, and to decide, after consideration of that testimony and of the written finding of the three physicians, whether the applicant is entitled to the benefits of the act.

The above seems to be a clear cut alternative scheme of procedure and it is plain that the relator made his application under the second portion of the section. As it seems to be conceded that he sustained a severe injury in the performance of his duty, and as we have just held that he had never ceased to have a status as a member of the police force up to the time of his application for retirement upon a pension in 1928, it seems entirely clear that the machinery provided by the second portion of section 2 of the Pension Commission act should be set in motion with a view to ascertaining whether the injury was of so severe a character as to entitle him to retirement under that statute. Some point is made in the brief of the word “retire” as indicating that that procedure is inapplicable but what we have said disposes of that point- also.

The last status established for him seems to have been that of an indefinite leave of absence, and that certainly is not retirement.

A peremptory writ will accordingly be awarded calling upon the pension commission to institute and pursue the procedure outlined in the second part of section 2 of the statute, and to reach in due course a determination as to whether the relator is entitled to retire on a pension pursuant to that section.


author: Baokbs, Y. C.

text:
    John C. Steeber et al., complainants, v. David T. Resh et al., defendants.
    [Decided June 11th, 1930.]

      Messrs. Biker Biker, fox the defendant Resh.

      Messrs. Breaker •& Breaker, for the defendant Wendorf.
   Baokbs, Y. C.

William Resh borrowed $13,500 of Wendorf on mortgage covering his one-half interest in property on Clinton street, Newark. Resh owned a $5,000 mortgage which he assigned as further security. The value of this mortgage was questioned, and to insure its payment Resh’s father, David, joined in the $13,500 mortgage and included therein his property on Hillside avenue, Newark, upon the agreement that if and when the $5,000 mortgage was paid his property should be discharged. The mortgage has been paid. William’s interest in the Clinton street property was sold in foreclosure, under a prior mortgage, and the surplus yielded Wendorf $5,000 plus, so that there is now due to him approximately $3,500 and interest. David conveyed the Hillside avenue property to William’s wife. The complainant’s bill is to foreclose a prior mortgage on the Hillside avenue property and David and William’s wife counter-claimed against Wendorf to discharge the lien of his mortgage.

William negotiated the loan with one Shapiro, Wendorf s son-in-law, then a lawyer, now disbarred and in prison. Wendorf, upon the representation of Shapiro that he had a call for a loan on good security, entrusted the money to him to make the loan and get the security. He knew neither the borrower nor the security, nor concerned himself with either, but relied upon Shapiro and left the investment entirely to him. Shapiro arranged the terms of -the loan, and that the lien of mortgage on David’s property should be collateral to the $5,000 mortgage, but intentionally omitted the defeasance in that respect from the $13,500 mortgage and falsely represented that it was incorporated. Assured and believing, the elder Resh executed the mortgage without reading it. That the mortgage was obtained by fraudulent imposition is established beyond question. That it cannot be enforced is settled law. Dunston Litho. Co. v. Borgo, 84 N. J. Law 623. Shapiro was Wendorf’s alter ego. His fraud must be imputed to Wendorf. Reitman v. Fiorillo, 76 N. J. Law 816. The counter-claim that the mortgage be discharged as to the property involved is sustained.


text:
    THE MORRIS PLAN CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LUDWIG SCHWARTZ, DEFENDANT-APPELLANT.
    Argued May 6, 1930
    Decided May 19, 1930.
    Before Justices Black and Case.
    For the plaintiff-respondent, Charles Blume.

    For the defendant-appellant, Louis K. Press.

   Pee Cukiam.

This suit was brought to recover the sum of $130 alleged to be due on a promissory note for $500. The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $130. The defendant appeals and files two grounds of appeal or specifications of determinations with respect to which he is dissatisfied in point of law, viz., the promissory note sued on is void, being in violation of the statute. Pamph. L. 1914, p. 75, §§ 5, 6. This we think is so under that statute, the judgment of the District Court of East Orange will be reversed. A copy of the promissory note sued on is attached to and made a part of the agreed state of the case. It violates both the spirit and letter of the statute. The case of Consolidated Plan of New Jersey v. Shanholtz, 147 Atl. Rep. 401, is somewhat like the present ease. The reasons stated for holding the note void in that case are applicable to the facts of the present case. The judgment of the East Orange District Court is therefore reversed, with costs.


text:
    THOMAS E. COLLETON, TRADING, ETC., PLAINTIFF-RESPONDENT, v. NILAS I. MALMSTROM, DEFENDANT-APPELLANT.
    Argued May 6,1930
    Decided May 19, 1930.
    Before Justices Black and Case.
    For the plaintiff-respondent, Alexander Feller and Julius Stein.

    For the defendant-appellant, John F. Ryan.

   Per Curiam.

A judgment was obtained by the plaintiff for the sum of $420. The suit was to recover commissions for negotiating a lease for a lunch wagon to be located on premises at No. 510-2 Ogden street, Newark, New Jersey. The controversy grows out of the wording of the agreement providing for the payment of commissions. The agreement provides for the payment of commissions, the state of the case shows the words in the original agreement “as soon as” were stricken out and the words “if and when” were substituted before signing. In the agreement, after the promise to pay, as stated above, this clause was added: “The undersigned hereby agrees to pay the said commission of four hundred and twenty dollars if and when the note of five hundred dollars given as part security on the lease, which note is due within thirty days of date of lease, is paid by said tenant.” The note was never paid, although the defendant sued on the note and recovered judgment, the execution was returned unsatisfied. We think these words “if and when” added after the promise were intended by the parties to have some meaning, that meaning added to the promcise to pay the commission was of conditional limitation. The words “if and when” are ordinarily words of condition or of conditional limitation. 4 Words and Phrases, p. 3383. The judgment of the District Court of the First Judicial District of Essex County is therefore reversed, with costs.


author: Elannagan, J.

text:
    Essex County Court of Common Pleas.

      JOHN ALMASSI, DEFENDANT-APPELLANT, v. CITY OF NEWARK, APPELLEE.
    Eor the defendant-appellant, Abraham, I. Isserman.

    Eor the appellee, Frank L. Boettner and John P. Manning.

   Elannagan, J.

This is an appeal by the defendant from a judgment and conviction of the Third Criminal Court of the city of Newark convicting him of distributing circulars on a public highway in the city without having a license to do so, in violation of section 538 of a city ordinance.

The circulars distributed without a license advertised a “Mass Demonstration” of the “Communist Party of the United States of America.” The circulars purport to convey information and advocate governmental theories of a certain character eulogizing “The Soviet Union” as “the only country where the conditions of the workers are constantly improving.” They urged “Recognition of the Soviet Union,” “Eight for a Workers and Farmers Government in the United States.”

The question here is not whether defendant could legally distribute circular notices of this particular character, or whether he might or might not have mailed or otherwise distributed them or whether he should or should not have been granted a license to distribute them had he applied for one. The single question presented is whether or not a person can use the city streets for distribution of circular notices without a license to do so.

The ordinance prohibits unlicensed “distributing or circulating posters, circulars, handbills, samples, printed or engraved notices or other advertisements of any kind” in the streets.

Had the city a right to enact such an ordinance?

Has the city such right of supervision over its streets as to provide for the licensing of persons desiring to use them for the distribution of circular notices of meetings?

There is no constitutional right to use the streets, squares or public places of the city for the purpose of bill distributing, without a license.

The constitutional guaranty of liberty of speech and of the press does not authorize the members or officials of an organization or party to use the public streets of a city for the holding of a public meeting without the consent of the city authorities. Harwood v. Trembley, 97 N. J. L. 173, 175, 177.

A Boston city ordinance providing that no person shall, in or upon any of the public grounds make any public address except in accordance with a permit from the mayor, is not in conflict with the constitution of the United States or with the fourteenth amendment thereof. Commonwealth v. Davis, 162 Mass. 510, 511, 512; Davis v. Massachusetts, 167 U. S. 43, 47.

So of a Mt. Vernon ordinance requiring the permit of the mayor. People, ex rel Doyle v. Alwell, 232 N. Y. 96, 100, 103; dismissed, 261 U. S. 590.

So of a Duquesne City ordinance requiring the permit of the mayor. Duquesne City v. Fincke, 269 Pa. 112, 116, 117.

There is no distinction, from a constitutional standpoint, between a requirement of a license to use the streets for public discussions or to use them to distribute circulars purporting to disseminate knowledge or views on public questions and advertising meetings for mass demonstrations.

The holding of street meetings tends to obstruct the streets while the distributing of circulars tends to clutter them up and occupies them for a purpose other than that for which they were primarily intended and dedicated, to wit, travel and locomotion. Circulars may be in such quantity and of such size and character as to render the streets so unsightly as to be almost universally objectionable, entailing substantial expense to the city in clearing them away. It is obvious the city must exercise some control of the subject and an ordinance requiring a license is a reasonable police regulation.

The cases cited by appellant are not in point.

In Coughlin v. Sullivan, 100 N. J. L. 42, the question involved was whether the distribution of pamphlets in stores and the giving of one pamphlet to a pedestrian on the street violated an ordinance prohibiting the distribution of pamphlets in the public streets. It was held that these acts did not violate that ordinance. No question of license was involved, the ordinance having no reference to licensing or requiring licenses.

In Pamoplas v. Marinos, 98 N. J. L. 665, it was held that a church is not within a municipal ordinance having reference to public places.

The conviction of the defendant, Almassi, is affirmed.