author: B-TJCHANAil, Y. C.

text:
    Anna C. Whitlock, executrix, &c., complainant, v. Ministers, Elders and Deacons of the Reformed Church of Blawenburg et al., defendants.
    [Decided June 9th, 1924.]
    Wills — Construction—Identification of Bond Bequeathed — As to Bequest to Church With Limitations — How Far the Limitations Bind.
    On final hearing.

      Messrs. Griggs & Herr, for the complainant.

      Mr. Fred A. Pope, for the defendants-le-gatees.

      Mr. Fdwa-rd P. J ohnson, for the defendants-next of kin.
   B-TJCHANAil, Y. C.

The bill is by the executor of Mary Prances Hagamen, deceased, for construction of the will, and instructions. The issues relates to- two gifts under the will.

As to- the bequest to- Ellen J. Hagamen of “the bond of $1,000 of the Electric Light and Power Company,” I think this operates to pass the $1,000 bond of. the Sierra and San Francisco- Power Company — that the latter is the bond mentioned in the will. It is the only bond she had, and she had it at the date of the will in 1920, and for ten years prior thereto-. It appears that in' 1910 she received it in exchange for a like bond of Oklahoma Gas and Electric Company (“Electric Light Company”). The bank’s statement of the exchange contains no- charge against her for the- sale of that bond. It is. probable;, therefore-, that the power company was a consolidation which took up the- earlier bonds and made a new issue. This would account for -the apparent identification of tire two in the- mind of the testatrix.

As to the gift for the benefit of the Blawenburg church and the boards of foreign and domestic missions, I think this must be deemed' a trust fund of $10,000 in the hands of the executrix, to- be used by her for the purchase of a proper farm for that or a lesser sum, and if for a lesser sum, then the balance to be expended for the acquisition of securities of the usual trust fund type. The selection of the farm, and the investments, and the time- of purchase, is left to- the sound discretion of the executrix. She has not yet purchased, but it appears she has made endeavors, and she has been handicapped by the very unusual provisions of this will, and the desire to- comply with them in all respects. No reason appears to justify any attempt to interfere with her performance of the duties imposed by the will.

The farm which is to be purchased is to be for the benefit of the church and the mission boards, and, hence, is to be one which, in her judgment, would be productive of income for those beneficiaries. The provisions as to supervision of the farm by Francis R. Hagamen, as to letting the farm on shares instead of renting it, and as to the tenant attending the Blawenburg church, all these are, I think, merely directions, not conditions. Since Francis E. Hagamen refuses to supervise it, and it appears impossible to" let a farm on shares in that neighborhood, neither the executrix nor the church need feel hound by these provisions, nor hampered by them in accomplishing the purchase of the farm, and renting it to a tenant, even if no tenant can be found who will attend the church.

The title to the farm, and the additional securities, if any, will vest in the church, in trust, however, to pay one-eighth of the annual net income from the farm to each of the mission boards and the balance for the church purposes mentioned In the will, and on the further trust to sell the farm, if and when it shall depreciate fifty per cent, in value, and pay over the proceeds equally to the two mission boards. The title to the securities, if any, will lie in trust to use the income for improvements to the farm. No provision is made as to the disposition of the corpus of such securities fund upon ilie event of the sale of the farm. It would, I take it, therefore pass to the next of kin hv resulting trust.

I think the costs of all parties should be paid from the estate, and I will allow the counsel fees as asked, to wit, $300 to complainant, $150 to defendant-legatees, and $300 to defendants-next of kin.


source: Caselaw Access Project

author: Buchanan, Yice-Orpinary.

license: Public Domain

text:
    In re estate of Ormisda Brugnoli, deceased.
    [Decided June 5th, 1924.]
    Administration — Question of Marriage of Administratrix to Deceased, Also Whether She Had- a Husband Living at the Time — Validity of Marriage Sustained — Doubt of Validity of Appeal.
    On appeal from the Middlesex orphans court. On final hearing.

      Mr. Harvey Saiierbhwaile, for the appellants.

      Mr. Edward Sachar, for the respondent.
   Buchanan, Yice-Orpinary.

The surrogate of Middlesex county granted letters of administration upon the estate of the abovernamed decedent to Elvira Brugnoli (the- respondent) as his widow. Erorn this order of the surrogate the present appellants, as the next of kin of decedent, appealed to the- orphans court,' and, upon affirmance by that court, brought the present appeal.

The issue was as to whether Elvira Brugnoli was the widow of decedent, and this involved two' questions — -(1) was she ever married to Brugnoli, and (2), if so-, was her prior husband living at the time of such marriage.

The burden is, of course, upon the appellants, and after a cn.reful consideration of the record before the orphans court, and the additional evidence submitted in this court, I find myself unable to say that error has been proven, although, unquestionably, the evidence gives rise to grave do-ubts and suspicions. The ceremonial marriage was testified to bv another witness, Orscna Lucia, (as well as the widow), and her credibility has not been impeached, and cannot, therefoi’e, be disregarded. And notwithstanding the prior marriage, the presumption, under the circumstances, is in favor of tlie validity of the second marriage1. Tyll v. Keller, 1 N. J. Adv. R. 317.

It may also- be said that there is at least grave doubt as to- the validity of the appeal to. the orphans, court, which mis not taken until some two months or more after the surrogate’s order appealed from. The time for such appeal is limited by the statute to twenty days, and I do not see that the stipulation of the parties, that the appeal should be deemed to have been taken within time, could legally avail to validate it.

I think the costs should he paid, out of the estate. There was good ground for the appeal, and the difficulty is obviously the result of decedent’s-own conduct.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. NICHOLAS YANETTI, PLAINTIFF IN ERROR.
    Submitted February term, 1924
    Decided May 26, 1924.
    Crimes — Carnal Abuse — Fixing Date of Offense.
    In error.
    Before Gummere, Chief Justice, and Justices Mistturn and Black.
    Eor the plaintiff in error, Ward é McGinnis.

    Eor the defendant in error, J. Willard Be Toe, prosecutor of the pleas.
   Per Curiam.

The defendant in this case was indicted and convicted for having on the 1st day of June, 1922, committed upon Anna Sigismondi, a woman child under the age of 16 years, a carnal abuse. The indictment charged the offense as having been committed on the 1st'day of June, 1922. The complaining witness fixed the time, by saying that.it was in' the month of June, because it was "summertime.” This is the reason urged why the conviction should be set aside, citing State v. Sing Lee, 110 Atl. Rep. 113. We think the point is answered and the case controlled by what we said in the case of State v. Calabrese, 2 N. J. Adv. R. 588.

The judgment of conviction is affirmed.


text:
    ZYGMUND TOPOLEWSKI, PLAINTIFF-APPELLEE, v, EUPHINA DISZYNSKI, DEFENDANT-APPELLANT.
    Submitted February term, 1924
    Decided May term, 1924.
    Alienation of Wife's Affections — Conversation in Polish Heard by Witness who Could Testify in English — Not Necessary to have Interpreter Sworn.
    On appeal from tlie Hudson Circuit.
    Before Gum mere, Chief Justice, and Justices Mintitrn and Black.
    For tlie appellant, Alexander Simpson.

    For the appellee, Butler £ Builer.

   Per Curiam.

This was a suit brought by the plaintiff against his mother-in-law, to recover compensation for the alienation of the affections of his wife, and the deprivation of her society and fellowship. The trial resulted in a verdict in favor of the plaintiff, the damages awarded being $500.

It is first argued that the judgment entered on the verdict should be reversed, because the trial judge erroneously refused to nonsuit and. direct a verdict. The argument in support of this contention is based upon an erroneous view of the testimony.

It is contended that there was no evidence to show that anything done by the defendant resulted in alienating the affections of the plaintiff’s wife; and that if her affections were alienated, it was due to the plaintiff’s own conduct towards his wife, or the wife’s dislike of the plaintiff, for which defendant was not responsible. This manifestly is opposed to the testimony of the plaintiff himself, and at least three witnesses substantiating his claim. The motions to nonsuit and to direct a verdict were therefore properly denied.

It is argued finally, that improper evidence was admitted for the plaintiff over the objection of the defendant. Wanda Topolewsld, the plaintiff’s sister, was called to testify with relation to a conversation in Polish between her mother and the defendant, at which she was present. She .testified that she was familiar with the Polish language, and was permitted to state in English what the conversation was. Objection was made to her doing this, on the ground that the only proper way was to have an interpreter sworn, to have the. witness testify in Polish, and then have the interpreter translate. We know of no rule of procedure requiring the adoption of such a course, and at most the matter was entirely in the discretion of the court. 22 C. J. 301, and cases. 10 R. C. L. 930, and cases.

The judgment will be afikmed.


author: Pee Ceeiam.

text:
    MAX MARGOLIES (FIVE CASES), PLAINTIFFS, v. HARRY GOLDBERG, DEFENDANT.
    Submitted February term, 1924
    Decided May 26, 1924.
    False Arrest — Alleged Verdict Against Weight of Evidence and Excessive Damages — Rule to Show Cause Dismissed.
    On rule.
    Before Gummeue, Chtee Justice, and Justices Minturx and Black.
    Eor -the plaintiffs, Wight, Wight & Golenboch and Merritt Lcme.

    Eor the defendant, Thomas Brown.

   Pee Ceeiam.

These five cases were brought by the plaintiffs to recover damages alleging false arrest at the instigation of: the defendant, Harry Goldberg. By consent the cases were tried together, resulting in a verdict of: $500 for each plaintiff. The defendant obtained a rule to show' cause and writes down six reasons for a new trial, which are argued under two heads in the brief — first, the verdicts are against the weight of the evidence; second, the damages awarded to each of the plaintiffs are excessive and contrary to the evidence. Not so. Our reading of the testimony leads us to the result that there is no legal merit in either reason argued. The testimony is quite voluminous. It would serve no useful purpose to review' in detail. The rule to show cause in each ease is discharged.


author: Pee Curiam.

text:
    EDWARD S. BIRTWHISTLE, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Argued February 20, 1924
    Decided May 26, 1924.
    Negligence — Motor Vehicle Injuries! — Error in Second Trial in Permitting Printed Book of First Trial to be Used.
    On appeal.
    Before Gummere, Chief Justice, and Justices Mintubn and Black.
    For the plaintiff, Thomas A. Kenny.

    For the defendant, Leonard J. Tynan.

   Pee Curiam.

This suit is brought to recover damages for injuries to an automobile. The trial resulted in a verdict for the plaintiff for $2,000. This was the second-trial of the case. The verdict will have to be set aside on the ground of a trial error. The plaintiff was permitted to use- the printed book of the prior trial for the purpose of proving the case. He ivas permitted to ask the witness, over the objection of the defendant’s counsel, whether snch a witness at the prior trial had been asked certain questions and-had given a certain answer. This was repeated many times against the caution of the trial court. The grounds of appeal from one to thirteen allege such questions and answers were improper and injurious error. We think they were, and fall outside of the principle applied in the case of State v. Kwiatkowski, 83 N. J. L. 653. The principle underlying the admission of such questions and answers is surprise, and, unless that is apparent, the right to use that method of asking questions, with their answers, does not exist. The book might just as well have been read to the witness in this ease, and the witness asked if chat was his testimony. As the case must be retried, it is pertinent to add, we find no- other error in the record. The judgment of the Essex Circuit Court is reversed.


text:
    DONALD MATTHEWS, PLAINTIFF, v. BELMAR LAUNDRY COMPANY, DEFENDANT.
    Submitted February term, 1924
    Decided May 26, 1924.
    Negligence — Improper Use of Steam Roller — Seven Reasons for New Trial Held Unsound.
    On rule.
    Before Gummeke, Chief Justice, and Justices Miyturn and Black.
    For the plaintiff, Alston Beehman.

    For the defendant, Andrew cG Timen.

   Per Curiam.

This suit ivas brought to recover damages for the negligent use by the defendant of a portable steam boiler. On December 22d, 1922, the plaintiff hired and took his boiler, which was mounted on wheels, to the defendant. It was taken from Marcloan, New Jersey, to Belmar, New Jersey. The trial resulted in a verdict for the plaintiff for $800. The defendant obtained a rule to show cause and writes down seven reasons for a new trial, all of which are without legal merit and do not call for any extended discussion. The admission of testimony challenged was proper. The fact that the boiler was operated without a license is not a defense or an excuse for negligence. Muller v. West Jersey and Seashore Railroad Co., 122 Atl. Rep. 693; Shaw v. Thielbahr, 82 N. J. L. 23.

The rule to show cause is discharged.


author: Pee Cueiam.

text:
    ETTA LEONHAUSER, PLAINTIFF, v. ANNA W. HALL, DEFENDANT.
    Submitted February term, 1924
    Decided May 26, 1924.
    Ejectment — Motion to Open Judgment — Legal Defense Not Shown.
    On rule.
    Before Gummeee, Chief Justice, and Justices Mintuen and Black.
    For the plaintiff, George W. V. Moy.

    For the defendant, Harvey Rolhberg.

   Pee Cueiam.

This is a rule to show caiise, dated October 7th, 1921, why a judgment in ejectment in favor of the plaintiff, entered on December 8tli, 1921, should not be opened and the defendant permitted to file an answer. Under the rule testimony was taken. From that testimony our conclusion is that the defendant has failed to show a legal defense to the' action. The rule, therefore, is discharged, and the judgment entered December 8th, 1921, is allowed to stand.


text:
    ANTONIO MALEWSKY, PLAINTIFF, v. SAMUEL SIMBOL, DEFENDANT.
    Argued February 19, 1924
    Decided May 26, 1924.
    Negligence — Motor Vehicle Injuries — Meritorious Question- One of Fact — Judgment Excessive and Reduced, or Rule will be Made Absolute.
    On rule, &c.
    Before G-ummeee, Chibe Justice, and Justices Mtxtuex and Black.
    For the plaintiff, Marie Townsend, Jr.

    For the defendant, Frank G. Turnar.

   Pee Cueiam.

The trial in this case resulted in a verdict for the plaintiff for $2,500. The defendant obtained a rule to show cause. The suit was to recover damages for personal injuries, by being 'struck by an automobile, in the early morning of September 17th, 1923, while the plaintiff was walking on the public highway toward Jersey City, a short distance after leaving the Hackensack river bridge. The meritorious question involved is one of fact, which was properly submitted 'to the jury for determination. There is no merit in the other reasons, except one, viz.: The damages awarded are excessive. Our reading of the testimony leads us to the conclusion that the verdict is excessive and should be reduced to $1,500. If the plaintiff will remit the excess within ten clays the judgment may stand for $1,500, otherwise the rule to show cause will be made absolute.


text:
    BENJAMIN WOLEK, BY NEXT FRIEND ET AL., PLAINTIFFS, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Argued February 19, 1924
    Decided May 26, 1924.
    Negligence — Motor Vehicle, Trolley Car Collision1 — Alleged Judgment Against Weight of Evidence — Alleged Error in Charge, Where no Exceptions Were Taken — Charge Related to Relationship Between Plaintiff, Truck Driver, and Their Common Employer.
    Oil rule.
    Before Gnu mere, Chief Justice, and Justices Mintukn and Black.
    For the plaintiffs, John 17. Palmer.

    For the defendant, Leonard J. Tynan.

   Per Curiam.

Wolek, a boy eighteen years old, was in the employ of one Simon as a helper on a truck used in Simon’s business, his work being to assist in helping to load and unload the truck. AWiile riding on this truck oil the 16th of March, 1921, there was a collision between it and a trolley car of the defendant company, at the intersection- of Third and Orange streets, in the city of Newark. The track attempted to pass across the car tracks in front of the trolley car, and the tail end of the track was struck, upsetting it, throwing the boy to the ground and injuring him. The trial resulted in a. verdict in favor of the defendant. We are asked to set aside the verdict — first, because it was against the weight of the evidence, and second, because of error in the charge.

We think, after reading the evidence, the jury was justified in finding that the collision was not the result of any carelessness on the part of the motonnan.

As to the alleged errors in the charge. No exception was taken to the instructions. It is argued, however, that that is not necessary in order to justify the making of the rule absolute. This is true as an abstract proposition. Butler v. Hoboken Printing, &c., Co., 73 N. J. L. 45; Clark v. Public Service Railroad Co., 83 Id. 319. The principal error is said to consist in the submission by the court to the jury of the question as to whether the relationship of master and servant, or principal and agent, or mutual responsibility in a common enterprise, existed between the driver of the track and Wolek. We think this is true. There was no such relationship, the only relation between the two> being that they _ were employes of a common master. But the court was induced to deal with this subject by reason of a request to charge submitted by the plaintiff, which was as follows, so far as this point is' concerned: “If you find from the evidence that the plaintiff was not exercising any control at all over this automobile truck, and was simply occupying a place on the seat, I then charge you that any negligence on the part of the driver of the automobile truck is not to be attributed to the plaintiff.” The effect of this request was to leave it to the jury to determine whether or not tíre plaintiff was exercising any control over the automobile truck, and, of course, he could not do- that unless one of the relationships suggested by the court existed between the driver and himself. We think, in legal effect, the instruction which has been commented on was practically that which was requested by the plaintiff. As to the remainder of the request — that is, the liability of the defendant company for negligence on the part of the motonnan, it was practically charged. In addition to this, it was faulty, in that the defendant company was not liable if it “failed to use every means in its power to avoid the happening of the accident;” the measure of its duty was as charged by the court “to operate its car with such care as reasonably careful and prudent men would do.”

The only other ground of reversal is that which has just been mentioned — that is, the refusal to charge this request.

The rule should be discharged on the merits. It ought to be an unusual case where a court will set aside a verdict for an error io the charge, if it exists, which is not called to the attention of the trial judge by a proper exception.

The rule +o show- cause is discharged.


text:
    ABRAHAM PINKUS ET AL., PLAINTIFFS, v. FRITZ SIEGEL ET UX., DEFENDANTS.
    Submilted February term, 1924
    Decided May 26, 1924.
    Malicious Taking — Defense That Goods Taken Were Not Fixtures but Chattels.
    On rule, &c.
    Before Gviimeuk, Chief Justice, and Justices Mtntcrx and Black.
    For the plaintiffs, Stamler, Stamler & Koexller.

    For the defendant, Abe J. David.

   Per Curiam.

This suit was brought to recover damages for a malicious taking and carrying away certain goods from premises Nos. 4(30' and 462 Elizabeth avenue, Elizabeth, New Jersey. The defendants had sold to the plaintiffs the. premises for $24,000 under a written contract dated October 26th, 1922, which contained this clause over which the dispute arose, viz.: “Eront and back bar fixtures” and all other fixtures in buildings to remain except piano "and pictures on the wall.” The trial resulted in a verdict for the plaintiffs for' $2,500. The defense was the property in question was not fixtures, but chattels, and not within the terms of the contract, and which were-not agreed to be sold. If this is not so, then it so argued, the value of the goods taken away by the defendant Siegel was not $2,500. We think the case was fairly tried and the jury was justified in finding the verdict that was reached. The rule to show cause is discharged.


author: .Per Curiam.

text:
    ALFRED VAN SADERS v. DOMONIC CURCIO.
    Decided May 28, 1924.
    Negligence — Motor Vehicle Collision — Allegation That Verdict Against Weight of Evidence and Contrary to Charge of Court, Not Sustained.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Mixture and Black.
    Eor the rule, Abe D. Levenson.

      Contra, DeTurcle & West.

   .Per Curiam.

The plaintiff sued to recover damages sustained by his automobile through a collision between that vehicle and the defendant's jitney bus on Bergenline avenue, in the town of West Xow York. The trial resulted in a verdict in favor of the plaintiff.

Tiie only grounds upon which we are asked to make this rule absolute are — first, that the verdict is against the weight of the evidence on the question of liability, and second, that it is contrary to the charge of the court. Our examination of the proofs sent up with the rule satisfies us that neither of these contentions has merit. Wc think that the testimony fully justified the jury in concluding that the collision occurred through the. carelessness of the defendant, and there is nothing in the case which justifies the assertion that the verdict was contrary to the charge of the court.

The rule to show cause will he discharged.


text:
    MARY P. SHOTWELL v. PUBLIC SERVICE GAS COMPANY.
    Decided May 28, 1924.
    Negligence — Runaway Accident — Defendant’s Employes Carelessness in Causing Unusual Noise — Alleged Error in Charge to Which no Exception was Taken.
    On defendant’s rule to show cause.
    Before Gnu mere, Chief Justice, and Justices Mixturx and Black.
    For the rule, Leonard J. Tynan.

    Contra, Georye IF. V. May.

   Per Curiam.

This was an action for personal injuries. The plaintiff had driven her husband from their home, which was about a mile and a half out of Dunellen, to the railroad station at that place, in order to enable him to take a train to New York. The vehicle of transportation was a buggy, and this was drawn by a little black horse, which the jury was justified in finding was over twenty years old and was gentle. As she was driving through Madison avenue> in Dunellen, on her return from the railroad station, she passed a point where the defendant company was laj'ing gas pipes, and just as she was about passing this point the emploj^es of the defendant company were carrying a pipe across the road to the trench in which the pipes were being laid. Her claim is that just at that time these employes carelessly dropped the pipe they were carcying upon another pipe, which was in the trench, thereby making a tremendous noise, which frightened the horse and caused it to run awaj>, b.y reason of which she was thrown out of the buggy and severely injured. The jury found a verdict in her favor, awarding her $3,500.

The first contention is that there should have been a non-suit directed, because of the fact that there was no direct proof that the noise was caused by the negligent act of the defendant’s employes. It is true that the plaintiff admitted that she did not observe the actual fall of the pipe, but she testified that she saw the employes carrjdng this pipe across the road, and that just about as they got to the trench there was a terrible crash almost right alongside of her, and that the crash sounded like the striking of two iron pipes.against one another. We think this testimony justified the court in leaving it to the jury to- determine whether or not the striking of these gas pipes together with the producing cause of the accident, and, if so^ whether or not the handling of the pipe by the employes of the defendant in the way indicated was evidence of negligence on their part. .

The next contention is that the court erroneously charged the jury that, if they found this was an extraordinary noise, naturally calculated to frighten a, horse of ordinary gentleness, they could find the defendant guilty of negligence. The criticism is that it was not pointed out In this instruction that the noise must have been caused by the defendant’s employes, and that, unless it was so cansed, there could be no negligence attributed to the defendant. But an examination of the charge as a whole shows that this criticism upon the excerpt from the charge is without merit, for the court expressly instructed the jury that the primary question for them to settle was whether the defendant, through its servants, made the noise which the plaintiff said it did, and that, if they did not, then that was the end of the case, and the verdict should ho no cause of action.

The only other ground upon which wo are asked to make the rule absolute is that the court erred in telling the jnry that the sole question for them to settle was whether the defendant, through its agents and servants, made the noise which the plaintiff said it did. No objection was made to this instruction, and we see no reason why we should consider its propriety. Where an error is made in a charge to the jury, the trial judge is entitled to have his attention called to it by a properly taken objection, in order that he may correct it, if he is satisfied of the error. It is only under unusual conditions that this court, on a rule to show cause, will set aside the verdict for an erroneous ruling or instruction by the trial judge which is not called to his attention at the time the error is committed by him.

We may add, for the satisfaction of counsel, that, taking the instruction complained of in connection with other parts of' the court’s charge to the jury, we do not consider it to have been erroneous.

The rule to show cause will be discharged.


text:
    PHILIP RICHMOND ET AL. v. CHARLES AUSTIN BATES.
    Decided May 28, 1924.
    Negligence — Motor Vehicle Collision — Verdict Alleged Against Weight of Evidence — Alleged Erroneous Charge Regarding Reasonable Care — Defendant’s Counsel Question to the Jury Before Being Sworn Held Improper.
    On plaintiffs’ rule to show cause.
    Before Guíimere, Chief Justice, and Justices Mintuiin and Black.
    For the rule, Weinberger £ Weinberger.

      Contra, William B. Earley.

   Per Curiam.

This suit grows out of a collision between an automobile belonging to the plaintiff Philip Richmond, and being driven by his son Milton, with an automobile belonging to the defendant, which was being driven by the latter’s chauffeur. The plaintiffs in the present case, beside Richmond, were passengers in his car at the time of the occurrence of the collision. The car in which the plaintiffs were riding was traveling south on Washington avenue, in the town of Nutley. The defendant’s car was being driven in the opposite direction. Upon reaching a cross street, known as Xutley avenue, the defendant’s chauffeur turned to his left for the purpose of going into that avenue, and while in the act of doing so the collision occurred. The result of the consideration of the testimony by the jury led them to render verdicts in favor of the defendant as against all of the plaintiffs, manifestly upon the ground that the accident occurred solely by reason of the carelessness of the driver of the plaintiffs’ car.

The first contention on tlie part of the plaintiffs is that these verdicts were contrary to the weight of the evidence. We think this contention is without merit, for, if the testimony submitted on the part of the defendants was accepted by the jury as a true descrijrtion of the accident (and it had a right to so accept it), we think it plain that the collision was the result solely of the carelessness of young Bichmond in the driving of his car. The verdicts will not be set aside on this ground.

The next ground urged by tlie plaintiffs for making the rule absolute is that the court erroneously charged the jury, in instructing it that “in rendering your verdict you will render three separate and distinct verdicts, either no cause of action, or, if in favor of tlie plaintiffs, for three separate and distinct amounts, under the rules of law as I shall hereafter state them to yon.” No exception ivas taken to this instruction, and the plaintiffs, therefore, are not entitled, as a matter of right, to have it considered by ns. We may add that we think the instruction was proper, when taken in connection with the other portions of the charge relating to this phase of the case.

Next, it is said that the court erred in instructing the jury that negligence on the part of the driver of the defendant’s ear meant failure to exercise reasonable and ordinary care. It is not asserted that this instruction was erroneous, but it is said to have been insufficient to properly present the issues to the jury. If this he true — that is, if tlie elaboration was needed — it was the duty of counsel for the plaintiffs to request a further instruction upon that point embodying what he considered ought to have been further stated. This lie did not see fit to do, and, in that situation of the case, he can take nothing by this ground for making the rule to show cause absolute.

The last point argued is that this rule should he made absolute, because of a statement made by counsel for the defendant at tlie time the jury was being drawn. The statement was in the form of a question put to the jury by conn•sel for the defendant before they were sworn, viz.: Do you, .gentlemen, any of you, own any of the securities of the State Einance Corporation, operated by Mr. Weinberger” (counsel for plaintiffs), or did you ever do any business with Mr. Weinberger in negligent cases on a fifty per cent, basis?” It appears from an examination of the ease that inunediately upon the asking of this question Mr. Weinberger protested, saying, “I submit to the court that that is an improper question, and Mr. McLeod- ought to know better.” To which the court replied, “Yes, it is entirely improper.” Then Mr. McLeod said, “I withdraw the question.” Thereupon, Mr. Weinberger retorted as follows: “I think counsel ought to be instructed that it was a very improper remark. I think ■counsel ought to be told that he gets up to make a remark like that only for the purpose of prejudicing the jury.” To which the court answered, “Yes, it is very improper.” With this last remark the incident was closed. It was, of course, true that the question was grossly improper, as the court said, but counsel for the plaintiffs allowed the matter to drop without any further action on his part. If he had considered that his clients would necessarily be prejudiced, in the trial of the case by reason of what had been said, his proper course would have been to have moved to withdraw •a juror or to discharge the jury. However, he did not see fit to do this, but preferred to proceed with the trial and take the chances of a result favorable to his clients. Having taken this course, he cannot now be heard to complain of the validity of the verdict upon the ground last argued.

The rule to show cause will be discharged.


text:
    PATRICK DUGAN v. NEW YORK AND LONG BRANCH RAILROAD COMPANY.
    Argued February term, 1924
    Decided May term, 1924.
    Negligence — Employe of Railroad Engaged in Road Repair Work —Question of Interstate or Intrastate Commerce — Not Error for Judge to Charge Regarding the Nature of the Employment — Not a Jury Question.
    On rule to show causo from Monmouth Circuit.
    Before Gumuiere, Chief Justice, and Justices Miktubn and Black.
    For the rule, John S. Applegate & Son.

      Contra, Reilly, Quinn d Parsons.

   Pee Curiam.

The plaintiff, an employe of the defendant company, was injured while assisting in unloading rails from a gondola car at the Oliffwood station. These rails were to be used in repairing the tracks of the company. While one of the rails was being lifted out by a derrick, it struck the side of the car and swerved over against the plaintiff, knocking him down and injuring him, this result being brought about by the fact that the hooks which were attached to the rail spread by reason of the impact with the car, thus allowing the rail to fall.

The action was brought under the federal statute, and the contention is that there should have been a nonsuit or the direction of a verdict, since there was no proof that the plaintiff and defendant were engaged in interstate commerce at the time and place where the accident occurred. We think the fact was otherwise, since it was stipulated and agreed at the trial “that the New York and Long Branch Eailroacl Company is a common carrier, selling tickets for carriage of passengers from Long Branch to New York.”

Manifestly, therefore, the defendant was engaged in interstate commerce. The work of the plaintiff was a preliminary to the repair of the defendant's tracks, and the unloading of the rails was for that use. In its concrete facts the case is not unlike that of Pederson v. Delaware, Lackawanna and Western Bailroad Co., where the plaintiff, who was carrying a sack of bolts and rivets from a tool ear to1 a bridge which was under repair, was run down and injured. It was there held that in doing his work the plaintiff was engaged in interstate commerce and intrastate commerce conjointly, the railroad bridge being used for the transporafcion of both kinds of commerce, and that while he was carrying the nuts and holts from the ear to the bridge which was being repaired, the plaintiff was engaged in a necessary preliminary to the actual repair of the bridge itself, and was thus engaged in interstate commerce at the time of the happening of the accident.

It is urged that the court erred in charging the jury that the plaintiff was engaged in interstate commerce at the time of the accident, instead of leaving that question as one of fact to be determined by the jury. We think, however, there .was no error in that respect, since the facts connected with the happening of the accident and the work in which the plaintiff was engaged at the time were not in dispute.

The next point is that there should have been a nonsuit, because there was no proof of negligence on the part of the defendant. Under the well-settled rule the. question thus presented was clearly one for the determination of the jury, particularly so in this instance, as under the federal act the alleged, negligence of a fellow-servant presents no legal defense.

The rule will be discharged.


author: Per Ceriaai.

text:
    CAROLINE OFFHOUSE v. GEORGE B. FRITZ.
    Decided May 28, 1924.
    Negligence — Injury in Alighting From Jitney — Question of Condition of the Step on the Vehicle.
    On appeal from tlie Passaic Common Pleas.
    Before Giaimere, Chjee Justice, and Justices Mikturn and Blacic.
    For the appellant, Alexander 21. 2IcLeod. •

    For the respondent, John F. Evans.

   Per Ceriaai.

This action was brought by Mrs. Offliouse to recoven1 damages for injuries sustained by her through a fall while alighting from a jitney bus of tlie defendant after it had stopped at the corner of Main street and Delaware avenue, in the city of Paterson. The case made by her was that the step of the bus was defective; that there was a hole, or groove, in it. in which her heel eanglit as she was disembarking, and that this caused her to fall to the ground, the injuries complained of resulting from that fall. The trial resulted in a verdict in her favor, and from the judgment entered thereon the defendant has appealed.

The first ground of appeal is that the trial court committed harmful error in admitting certain questions and answers over objection, the questions being put by plaintiff’s counsel to the plaintiff while she was on the witness-stand. The purpose of these questions, apparently, was to prove an admission made to her hy the driver of the jitney bus that the step, or platform, of the bus was in the condition claimed by her, and it may be conceded that, if any such admission had been proved by Iter testimony, it would have been harmfui error, under our cases. But, although the purpose of the questions was legally objectionable, the answers thereto were 'harmless, for the plaintiff entirely failed to show any such admission made to her by the driver. In answer to the question, “What did he say ?” she replied, “Pie just laughed, just ■■smiled, that is all.” Certainly, it cannot be said that his smile was an admission by him of the defective condition of the step. It might just as readily have been caused by what he considered the absurdity of the plaintiffs claim. We conclude that the appellant can take nothing bj’ this contention.

The only other ground upon which we are asked to reverse this judgment is that the trial court committed error in failing to instruct the jury that, in order for negligence to create liability on the part of the defendant, such negligence must have been the proximate cause of the injury.' It is enough to say, in disposing of tins contention, that no request for such an instruction was 'submitted, and it is entirely settled that the failure of a trial judge to refer in his charge to the jury to a legal proposition involved in the case, constitutes no ground for a reversal of a judgment, unless he is asked to instruct the jury with relation to such proposition and refuses such request.

The judgment under review will be affirmed.


author: Per Curtam.

text:
    ANTONIO BUFFO, PLAINTIFF, v. RAYMOND CHMIELEWSKI ET AL., DEFENDANTS.
    Argued February term, 1924
    Decided May 28, 1924.
    'Negligence — Motor Vehicle Skidding — Jury’s Award Inadequate —New Trial.
    On rule to show cause from the Bergen Circuit.
    Before G-tjmmere, Chief Justice, and Justices Minturn and Black.

      Por the rule, Weinberger & Weinberger.

      Contra,, Hart & Vcmclerwart.

   Per Curtam.

The liability of the defendant was not in 'issue, and the only ground upon which we are urged to make the rule absolute is the inadequacy of the verdict, which was in favor-of the plaintiff, for the sum of $1,137.05.

The injuries sustained by the plaintiff seem to have been-of a severe character, lie was knocked down by tile car of the defendant while he was walking on the sidewalk, the car-skidding from the roadway. The bone of plaintiff’s nose was broken, as was one of his cheek bones; he suffered a-fracture of the ribs, and was injured as well on the other side of his body; one of his teeth was knocked out; another tooth was broken off, and others were loosened; his legs were severely bruised, and he was incapacitated for work for about four months. His loss of wages amounted, approximately, to $350. His medical expenses were $118. His-total loss and expenses was therefore $468, leaving the-amount of the compensation for these conceded injuries only $669, which, under the circumstances, seem to us eutirely inadequate.

Me think the weight of the evidence, which was in nowise-contradicted, warranted a substantial allowance to the plaintiff, as compensation for his injuries, pain and suffering.

This verdict cannot be reconciled with the nncontradicted' testimony, except upon the theory that the jury must have-misconceived its import.

The rule will be made absolute.


text:
    RICHARD BASOME, ADMINISTRATOR AD PROSEQUENDUM, v. ARTHUR J. CONNOLLY, Jr.
    Decided May 28, 1924.
    INegligence — Motor Vehicle, Reckless Driving — Death Act Requires the Existence of Surviving Next of Kin Who Will Sustain Pecuniary Loss — Nominal Damages Not Justified— Rule Absolute.
    On plaintiff’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Mintuun and Black.
    For the rule, Ale Levenson.

      Contra, Robert Carey.

   Per Curiam.

This action was brought by the plaintiff, as administrator ad proseguendum of the estate of one Mrs. Paboozian, for the benefit of the next of kin of the decedent, for the pecuniary loss sustained by them through the death of Mrs. Paboozian, resulting, as was alleged, from the negligent act •of the defendant in recklessly driving his automobile along the Hudson county boulevard, in North Bergen, on the night of Juné 6th, 1923. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him six cents. We. think this award cannot he justified. In the first place, there was evidence that the deceased had, during the latter part of her lifetime, contributed on certain occasions to the support of her invalid daughter, who resided in Armenia, and there was evidence which would have justified the jury in finding that the daughter had a reasonable expectation of the contributions in the future.

It is also- to be remembered that our Death act, upon which the right of the plaintiff’s recovery rests, only per-mils such recovery when it is made to appear at the trial — • first, that the deceased left next of kin her surviving, and second, that a pecuniar}- loss was sustained by such next of kin by reason of the death of the decedent. Unless both of these factors are proved, there can be no recovery on the part of the plaintiff. It follows, therefore, that the jury was not justified in returning a verdict for nominal damages.

Hie rule to show cause will lie made absolute.


text:
    LENA LEVINSON, PLAINTIFF, v. LOUIS FRANK, DEFENDANT.
    Submitted March 20, 1924
    Decided May 29, 1924.
    Change of Venue — Residence of Plaintiff Questioned — Burden of Proof on Defendant — Lack of Residence Not Established.
    On rule to change venue.
    Before Justices Kalirch. Katzkxjucii and Lloyd.
    For the rule, Maja Leon Berry.

      ('opIra, Levitan & Ijevilan.

   Per Curiam.

This is an application for change of venue from Hudson coupty to Ocean county. The. action was begun in the Supreme1 Court. On July 24th, 1923, the plaintiff made affidavit of her cause of action. • On October 8th, 1923, an order to bold to bail and the summons were issued. . On November 7fit the affidavit for tliis application was made, and on November 13th the rule to show cause now being beard was granted. The ground of the application is that the plaintiff wa« not a bona fi,cle resident of Hudson county at the time the summons was issued; that she was, in point of fact, a resident of Coney Island. Depositions were taken on both sides, and from them it appears that the plaintiff had resided for a long time in New York; that in February, 1923, she made a short visit to Lakewood, returning again to New York. In June, 1923, she went to 313 Mountain road, West Hoboken, the residence of Mr. and Mrs. Mandell. She took her clothing with her and remained there until early in July, when she went to' Coney Island, remaining there until the end of October, 1923, at which time she returned to the Mandell home. The defendant put in evidence some statements made by the plaintiff during the summer or fall of 1923 that she was living in Coney Island. In this situation the defendant asks the court to hold that the residence in Hudson county is not b07ia fide, and the venue should be changed to Ocean county, the residence of the defendant.

In the case of Dabaghian v. Kaffafian, 71 N. J. L. 115, it was held by the Supreme Court that “the plaintiff’s residence will be presumed to be where he alleges it to be unless the contrary appear.” The burden, therefore, was upon the defendant in this case to establish that the residence of the defendant was not as averred in her complaint. This, we think, he has failed to do. It appears from the depositions taken that the plaintiff had known the Mandells for a number of years; that she had visited them and stayed over night in their home; that in June, 1923, she asked them to receive_ her as an occupant of their household. This was done. She took, at least, some of her personal belongings with her, and remained until some time in July, about a month. She went to Coney Island intending, as she says to return to West Hoboken after the season. Soane of her belongings reanained in the West Hoboken house. The stateaarents añade to a. Mrs. Swartz that she was living in Coney Island, it would seean, caaraiot be givear too serious consideration. They were expresses indicating a present place of abode. There is nothing to show that she was intearding to live permanently at a seashore resort.

The proofs show a clearly-defined purpose on the part of the plaintiff to abandon her home in New York and to take up a residence permanently in West Hoboken, and that this intention was carried out. They do not show that this purpose and change of residence were in any way modified by the temporary stay in Coney Island.

It may he a hardship to the defendant to be called upon to respond in a suit for damages outside of his home county and in another jurisdiction, but it would be equally a hardship to compel the plaintiff to go from hex home to his residence. It is sufficient to say that the statute gives the plaintiff the option. She was chosen to lay the venue in Hudson county, and, her residence there not being successfully attacked, she is entitled to retain the venue where it is laid.

The rule will he discharged.


text:
    JULIUS GOLDBERG v. NEW YORK TELEPHONE COMPANY.
    Submitted March 20, 1924
    Decided May 29, 1924.
    Negligence — Excavation in Street — Degree of Care Necessary to Properly Protect Travelers.
    Oil appeal from the New Brunswick District Court.
    Before Justices Kalis ch, Katzuntjactt and Lloyd.
    For the appellant, Smith & Sling erlancl.

    For the respondent, Raymond E. Taylor.

   Per Curiam.

This action was brought in the District Court of the city of New Brunswick to recover damages for injuries to plaintiff’s automobile truck, occasioned by its falling into an ex cavation in the street made by the defendants. The accident occurred at night, on August 17th, 1923. After hearing the evidence the court rendered its verdict for the plaintiffs. It was proven at the trial that the defendant had excavated a trench in George street at the corner of Albany street, in the city of New Brunswick. On George street there is a double-track railway laid. The street runs east and west, according to the proofs in the case, and intersects Albany street at right angles. The excavation extended from the westerly track on George street to a point near the curb, where there was a pile of sand. Over the trench the defendant had placed heavy planking, and on the planking some dirt or sand had accumulated. Some of the testimony indicated that to persons using the highway the crossing was intended for vehicles to cross over the ditch. There were lanterns on each side of the roadway. There was also" testimony that there was a light placed in the tracks leaving nine feet of the planking open. The plaintiff's truck was proceeding-west on George street and was in the act of turning to the right 'into Albany street. It had successfully passed the trench with the exception of the right rear wheel. This wheel broke through the planking and dropped into the ditch. There was some testimony that this portion of the truck was damaged and that this damage was observable immediately after the collision. Later, in using the truck, it was discovered that the wheel was so badly damaged as to be unfit for its purpose and had to he replaced by another. This, with some minor damages to the rear portion of the chassis, were the basis of the recovery.

It is first alleged that the court erred in holding that it was necessary for the defendant to exercise a high degree of care in safeguarding the excavation. Also, that it erred in holding that the defendant did not exercise the proper degree of care necessary to properly safeguard the excavation.

The trial court, in its conclusion, states: “That there was some care exercised by the defendant cannot be denied, but I do irot think that there was that high degree of care which is required in the guarding of an excavation in the public street and the warning of travelers with respect to it.”

We think it doubtful if the language of the court is to he construed as holding that it was necessary for the defendant to exercise the technical high degree of care as illustrated in the case of carriers of passengers. Rather, the word “high” was used in a relative sense. Different conditions require the exercise of different degrees of care and caution. It was with reference to these that the judge was speaking when ho said that he failed to find that the defendant exercised the high degree of care required. Assuming, however, that a more specific meaning was intended, we think it was not error. Reasonable care is the standard exacted of all persons whore the duty to- exercise care for the safety of others arises. That care may ho of lesser or greater degree according to the circumstances and conditions to which it applies, and a high degree of care denotes no more than the degree of care commensurate with the risk of danger, where the danger is great. Insurance Co. v. Railroad Co., 92 N. J. L. 467. That an opening in a much-traveled highway is a highly dangerous condition will not he denied, and that care to protect the public use is accordingly great would seem to he obvious. That this care was of a high, degree finds support in the cases of Schroeder v. Public Service Railway Co., 118 Atl. Rep. 337. and Fox v. Wharton, 64 N. J. L. 453.

The second ground of complaint is that the trial court erred in holding that the chauffeur of the plaintiff was free from contributory negligence. The case was heard without a jury and the court was the judge of the facts. Its finding that the plaintiff’s chauffeur was without negligence is justified by ihe proofs. The appearance of the planking, the absence of harriers or lights sufficiently near to1 be'a protection, presented a situation where the driver might well have assumed that the passage was left open for public travel. We find no on or here.

The third and last point is that, the accident was not the proximate cause of the damage to the automobile. There was evidence tending to show immediate damage, and that this was taken care of by the mechanic who was called upon at the time. Later defects developed in ihe Avheel, which the judge, sitting as a jury, was justified in finding Avere due to the accident that had happened. In this situation it was not error to find that the truck was damaged, and that as a direct result of the accident.

The judgment of the District Court Avill be affirmed.


text:
    MEYER MILGRAUM, PLAINTIFF-APPELLEE, v. JOSEPH TRUPPI, DEFENDANT-APPELLANT.
    Submitted March 20, 1924
    Decided May 29, 1924.
    Contracts — Fire Loss Adjustment Agreement — Fraud Alleged In Its Procurement Not Sustained.
    On appeal from the First District Court of Jersey City.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, G. Earl Bruglor.

    For the respondent, Collins cG Corbin.

   Per Curiam.

Appealing from a judgment in the First District Court of Jersey City, the appellant complains of the direction of a, verdict’ in favor of the plaintiff in a suit to recoArer a stipulated sum in accordance with the written agreement of the parties for procuring the adjustment of a fire loss. The defendant had signed a paper agreeing to pay plaintiff for his services ten per cent, of the amount of loss as adjusted. His defense was that the agreement had been procured through the fraud of the' plaintiff, and Avas therefore void. The strong presumption in favor of written agreements has been often declared by the courts, but never more forcefully than in onr case of Fivey v. Pennsylvania Railroad Co., 67 N. J. L. 627. It was there stated that “where a party attaches his signature to a contract, otherwise valid, a conclusive presumption is created except as against fraud, that the signer read, understood and assented to its terms,” and that “fraud, if alleged, must he clearly and distinctly proved.”

Tested by this standard the proof in this case fell short of establishing that the agreement was procured by fraud. The whole of the proofs go only to show that the plaintiff talked of having come from the fire department and asked him questions pertaining to the building, the fire and the damage, and stated he would have to have defendant’s name; that plaintiff wrote the name on a piece of paper and asked defendant to sign it; that the defendant then stated that he could not read English, hut could* carry on a conversation in it “pretty good” if the party talked slowly in plain words, and that he fully believed all that plaintiff had told him; that the plaintiff did not mad the paper to him and that the defendant did not know its contents, other than that he believed it to be some sort of a paper which liad to be turned into the fire department. The defendant then proceeded to detail a conversation with the chief of the fire department, which, of course, is not evidential against the plaintiff.

It will thus be seen that there was no misrepresentation' of the contents of the paper; no proof that any of the statements made by the plaintiff were false, simply the conclusión in the mind of the defendant that he was signing a paper of different import. When added to this, it appears, without contradiction, that the plaintiff had told the defendant'that he was a fire adjuster and desired to represent the defendant for the purpose of advising and assisting in the adjustment of the loss, the case at its conclusion stood hare of any defense to the action, and the judge was right-in directing a verdict for the plaintiff.

The judgment will be affirmed.


author: Pee Cüeiam.

text:
    BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, APPELLEE, v. ISADOR BRAUNSTEIN, APPELLANT.
    Submitted March 20, 1924
    Decided May 29, 1924.
    Statutes — Title of Pharmacy Act — Is it Broad Enough to Make a Single Sale of Tincture of Iodine by a Grocer a Violation —Judgment Against Defendant Affirmed.
    Oil appeal from the District Court.
    Before Justices Kalisch, Katzenbacti and Lloyd.
    For the appellant, Spaulding Frazer.

    For the respondent, Grover G. Rickman.

   Pee Cüeiam.

Counsel for the appellant in. this case has tersely stated in his brief that there is but one question to be submitted to the'court: Is the title of the act entitled “An act to regulate the practice of pharmacy in this state,” broad enough to include as a violation of the provisions of the body- of the act a single sale of tincture of iodine by a grocer who is not a registered pharmacist? Judgment was rendered by tlie First District Court of Newark against the defendant and in favor of the board of pharmacy for $100, being the penalty provided by section 2 of the act in question. To this ruling an exception was taken, and it is here for review in this court.

The precise point raised by the defendant is that the title of the act; being one to regulate the practice of pharmacy in this state, is not sufficiently broad to cover an individual sale by one who is not a registered pharmacist or registered assistant operating under the immediate supervision of a registered pharmacist. In examining this question it is necessary to consider the legislative purpose in the legislation referred to. That purpose was manifestly to protect the public from tlie dangers attendant upon the sale of poisons and powerful drugs to the public without tlie protection afforded by the skill and qualification necessary to safeguard the public use. In the effort to protect the public an act entitled “An act to regulate the practice of pharmacy” is conceived by the legislature to lie the appropriate means to effect such result. Idle act and its title will therefore be construed most strongly in favor of carrying out the legislative will. While it is true that a single act committed or performed may not be a practice or course of conduct, it is, nevertheless, the doing of a thing which we think is clearly within the meaning and purpose of the legislative scheme. Thus considered, the word “practice” will, necessarily, bo construed as meaning; and covering the doing of an act which, if left unpunished, would defeat the object of the legislature. It has been held repeatedly in this state that, in dealing with questions like the one under review, the court will look to the legislative purpose, and will respect that purpose if by any reasonable construction the title can be held to embrace the specific thing condemned in tlie act itself. Such ail instance is the case of Smith v. Willetts, 81 N. J. L. 370, where the leasing of oyster beds Was sustained under a title of an act regulating and controlling the taking, planting and propagating of oysters.

The question is, after all, whether the public is fairly apprised by the title of an act that the thing done may be reasonably supposed to he within the body of the law. Certainly anyone reading the title of “An act to regulate the practice of pharmacy,” meaning the sale of drugs, would instinctively reflect that he should examine it before attempting to make a sale or sales of drugs, individual or collective. The title Is notice to the world that the sale of drugs is under regulation, and in the law itself are found the terms and conditions under which such sales may be made, and the terms and conditions under which forbidden. As stated by Mr. Justice Garrison in Moore v. Burdell. 62 N. J. L. 163, “the title of an act is a label, not an index,” and in Shultise v. O’Neill, 85 Id. 15, Chief Justice Gum-mere, speaking for this court on the same general subject, says: “The general object of the act being made plain by the title, the legislature may include in the body of it provisions of a multiform character, designed to carry into execution the legislative purpose, which are not inconsistent with, or foreign to, the general object of the act.”

We think the court below properly decided against the defendant on his contention and the judgment is affirmed.


text:
    ANTHONY DeBELLO, BY HIS NEXT FRIEND, JACK DeBELLO, PLAINTIFF-RESPONDENT, v. REEP & BLACKFORD, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted March 20, 1924
    Decided May 29, 1924.
    Negligence — Motor Vehicle Injury — Defendant’s Car Driven by Employe on Errand of Employer Goes Out of Direct Way to do an Errand for Himself — Held to be in Employer's Service at Time of Accident.
    On appeal from the Second District Court of the city of Newark.
    Before Justices Kalis ch, Katzenbach and Lloyd.
    For the appellant, Charles Jones.

    For the respondent, Kessler £ Kessler.

   Pee Curiam.

The plaintiff was injured in an accident on August 27th, 1923, on Maple avenue, in Montclair. Suit ivas brought against the defendant for the damages sustained and re-suited in a judgment in liis favor in the Second District Court of Newark. On this appeal by the defendant a single question is raised, viz., whether .the defendant's car, which was involved in the accident and which was being driven by its chauffeur, ivas at the time in the service of the employer.

The employe who ivas driving the car had received instructions from the defendant to go to New York for some spare auto parts, and that on the way lie was to stop for the wife of Mr. Deep, take her to Newark, get some parts and then take her to the tube to go to New York. He proceeded on his’errand. His direct course, apparently From his own testimony, was in a westerly direction to Greenwood avenue. Instead, he drove eastwardly down Glenridge avenue to Maple avenue to pick up a hoy friend who had asked hint to take him to Newark. Having reached Maple avenue, and while proceeding in a southerly direction on tha t street, the accident occurred upon which this suit is based. It further appears that he was intending to pick up his friend because he knew his employer would not object.

In this situation the court, sitting without a jury, found against the defendant on this point, and the judgment above recited was the result.

In the case of Mechan v. Walker, 117 Atl. Rep. 609, it was declared hv the Court of Errors and Appeals that “proof of defendant’s ownership of an automobile being driven on a public highway raises a presumption of fact that such automobile is in the possession of the defendant through his servant, the driver, and necessarily includes the presumption of fact t.hat the servant in so driving the car is acting within the scope of his employment.” The presumption thus existing raises a prima, facie case which, in the absence of rehutting testimony, would justify a finding for the plaintiff. To meet the presumption thus raised the proofs disclose that, while still on the errand assigned to him by his employer, the chauffeur was intending to pick up a friend. It is true that he was deviating from the course that he would otherwise have taken, but it is also true that he was still, at least in part,, on the errand assigned him. The course he was taking was a detour, but it was not an abandonment of the general course of his travel. Under these circumstances we think the evidence is not sufficient!}' clear to show that the presumption of law which attached to the ownership of the car was so completely rebutted as to make the question one of law rather than one of fact.

Finding no error in the ruling of the court, the judgment is affirmed.


text:
    WALTER READE, PLAINTIFF-APPELLEE, v. ROBERT BODINE, DEFENDANT-APPELLANT.
    Submitted March 20, 1924
    Decided May 29, 1924.
    Lease of Real Estate — Judgment for Rent Due — Alleged Partial Eviction — Alleged Res Adjudicata.
    On appeal from the First District Court of Monmouth county.
    Before Justices Kalisra, Katzbubaci-i and Lloyd.
    For the appellant, William, L. Edwards.

    For the respondent, Stein, Stein & Ilannoch.

   Per Curiam.

This is an appeal by the defendant from a judgment of the First District Court of Monmouth county, wherein the plaintiff was awarded the amount of a rent claim for leased property. There ivas ample proof of the rent due and of its amount. The appeal pertains to the defenses — first, that the defendant had suffered a partial eviction of the leased premises at the hands of the plaintiff, and second, that a judgment of Hie, Second District Court of Monmouth county in an action to dispossess the tenant by the lessor made tlie, claim for rent res adjudicaia.

An examination of the record in this case fails to reveal anything even remotely raising these questions; no motion for nonsuit or verdict, no request for finding and no exception to any ruling on the propositions involved. Numerous trial rulings were made under objection and exception, but none of them are complained of on this appeal. Passing this difficulty, we think neither of the defenses possess legal merit. The lease was of the “house 136 Union avenue, Long Branch,” and nothing more. The, former occupancy of the house by the defendant had been accompanied by the use of a lot which had undoubtedly .been a curtilage to the dwelling. In this situation proofs were taken of the intention of the parties as to the inclusion of the lot in the leased premises, and both plaintiff and defendant were premitted to produce evidence on this point. The question therefore became one of fact for the decision of the court. Tt will lie presumed that the court below found against the defendant, and, as the eviction claimed, consisted in the taking of a portion of the lot, it was not an infringement on the rights of the tenant. But the court might also find that the taking of a portion of the lot in question did not amount to an eviction within the legal signification of that term. In order that one may enjoy the use of leased property free, of rent by reason of a partial eviction, the deprivation of such part must be of a character and in degree sufficient to prevent the beneficial enjoyment by the tenant of the entire property. Eor anything less than this he is remitted to his claim for the damages sustained. Metropole Construction Co. v. Hartigan, 83 N. J. L. 409. A partial eviction-is a .species of forfeiture in law, and as such is not favored. Birckhead v. Cummins, 33 Id. 56. It is against conscience that one should possess and enjoy a leased dwelling-house without payment therefor, and such a result will not be declared except under clear mandate of law. Whether the taking of a portion of the lot became an eviction, was, we think, a mixed question of law and fact for the trial court, and, having found for the plaintiff thereon, its finding is conclusive here.

The second ground of 'appeal can be disposed of in few words. The record of the suit in the Second District Court is not printed in the state of the case, and. it is difficult to gather its full import from the fragmentary proofs presented. Assuming, however, that it was an action to dispossess' the defendant for non-payment of rent, it could have no greater effect than the Landlord and Tenant act gives it. As was said by the court, construing the act in Coe v. Haines, 44 N. J. L. 134, “the finding that rent was due was final as to the proceeding [to dispossess], but the statute deprives the judgment of the conclusiveness which a judgment has in other cases.” As above remarked, the record of the former judgment does not appear in the record of this case. There was evidence that the former judgment as it originally stood was one for the defendant without stating the grounds thereof, and that long afterward the ground of the judgment was entered as that of an eviction. Even though the effect of a judgment involving the same questions might be conclusive on-the rights of the parties thus litigated, the trial judge would have been clearly within his right in refusing to give force to the judgment of the Second District Court as involving the question here presented.

We think the court below committed no error, and the judgment must be affirmed.


text:
    GEORGE HAMMEL, PLAINTIFF-APPELLANT, v. JESSE VAN SICKEL, DEFENDANT-APPELLEE.
    Submitted March 20, 1924
    Decided May 29, 1924.
    Contracts — Building—Alleged Unworkmanlike Service — Defense That Work Was According to Plans and Specifications.
    On appeal from the Monmouth County Common Pleas.
    Before Justices Katasch, Katzenbacr anti Lloyd. .
    For the appellant, Freeman Woodbridge.

    For the respondent, Stolces. & McDermoil.

   Per Curiam.

The plaintiff appeals from a judgment of the Monmouth Common Pleas entered on a verdict of the jury in favor of the defendant. The plaintiff’s cause of action as set out in the complaint is that the defendant agreed to construct for the plaintiff in a workmanlike manner and of first-class materials a garage; that the defendant constructed the building in so unskillful and unworkmanlike a maimer and of such inferior material that the foundation settled, the walls cracked and the roof and walls became leaky, and the building’ collapsed, damaging his automobile, which was in the garage. It will thus he seen that there are two elements of complaint — first, that the building was constructed in an unskillful and unworkmanlike maimer, and second, of inferior materials, and that these resulted in the injury to his automobile. The trial court submitted the case on the branch of the complaint alleging unskillful and unworkmanlike execution of the contract. The appeal largely rests upon the court’s failure to submit the question of materials. It appears from the evidence that TTammel, the plaintiff, had procured a friend by the name of Bailey to draw up a sketch for a garage. This done, the' plaintiff asked the defendant what price he would charge to build a garage; that he gave the price of $600, and that Bailey gave the defendant the sketch. The defense was that the collapse of the building was caused by defects in the plan rather than by defects in workmanship. On cross-examination plaintiff was asked by counsel for the defendant:

“Q. Yow, Mr. Van Sickel built the garage, Mr. Iiammel. in the first instance, the same as the sketch made by Mr. Bailey ?

"A. Yes, sir.

"Q. And he followed out in every way, so far as von could see, exactly as that sketch called for?

“A. Yes, sir.”

This was the whole of the testimony on the behalf of the plaintiff as to the contract and the materials.

Witnesses were called by the plaintiff to testify that the materials used were not adequate for the purpose and that proper workmanship was not given, but there was no proof that the materials were not in exact accordance with the sketch, nor that the execution, so far as the plan was concerned, was not-in accordance with the sketch. The trial judge was therefore right in limiting the issue to the question of workmanship, and the complaint of the plaintiff that he did not submit all the issues to the jury is not well founded. The remaining criticisms are directed to the charge and rulings of the court respecting certain requests.

The first point is that the court improperly refused to charge'the plaintiff’s request as follows: “It was the defendant’s duty to construct the garage in a good and workmanlike manner, and if he neglected or failed to do so, and bv reason of such failure the garage collapsed and the car was damaged, your verdict must be for the plaintiff1, as long as the plaintiff or his agents did not do anything which contributed to the happening.”

If ihe defendant owed the duty of care this statement of the law was entirely accurate, and the plaintiff was entitled to have it charged, but the court had already substantially affirmed idle request in its general charge. The rigid; to have the law stated, in the language of counsel, has been so often denied in our courts that citation of authority is unnecessary. The court said: “Mow, gentlemen, if I understand the claim of the plaintiff correctly, it is not so much the nature of the location of the garage, or the fact that the bank against which it had been placed gave way, as the fact that in using the concrete block, whether it be in the material or the composition of the block or in the placing of it, it was so negligently done as to be insecure, and that in fact the rear wall itself fell as the result of poor workmanship rather than as the result of the pressure of the soil in the rear.” And then, “Now, there it is claimed that the negligence of the defendant occurred, and that it was the duty of this defendant, when he undertook this work, to do it in a good and workmanlike manner. And when you speak of a good and workmanlike manner yon simply mean proper execution. In other words, here you will have to determine whether or not this defendant did a good and workmanlike job, that is to say, executed his work properly, and, if he did not. whether it was so negligently done as to bring about the damages complained of in this case.” And still further, “So that, gentlemen, you are to determine whether he negligently did this work, or failed to do it in a good and workmanlike manner, with the result that the rear wall buckled.”

The second point raised is that it was error for the court to charge that, if concrete blocks were not the proper material to use, it was not obligatory on the defendant to- decline to build the garage. Y\re think the charge was right. Prom what had already been said it appears that the plaintiff had submitted a sketch. When the defendant constructed the building of the materials and in the manner called for by it, his duty to the plaintiff was at an end. It was not his duty to pass upon the sufficiency or fitness of the building for the uses to which the plaintiff intended to build it. This was the plaintiff’s responsibility when he provided the sketch. As was said in the ease of Drummond v. Hughes, 91 N. J. L. 563, “plaintiff Avas entitled to the house he bargained for and not a better one.”

It is next complained that the judge improperly referred to another case by way of illustration and extracting therefrom the proper rule of law. This AAras undoubtedly the case above cited. It is difficult to see that any injury resulted thereby.

.The fourth point refers to the element of damages to the car. The jury haA'ing found for the defendant on the question of negligence, this point becomes unimportant.

The fifth point is withdrawn.

The sixth point is that it was error for the court to refuse to charge as folloAVs: “If the defendant knew the unsual rainfall in that locality, it was his duty to build the garage with this in mind, unless he was actually under the instructions and supervision of the plaintiff or his agent.” We think it AA>-as rightfully refused. The vice of the request is that the defendant was obliged to build a garage with the unusual rainfall in the locality in mind if he kneAv it, whereas his contract may haAi-e involved no such element.

The seA^enth point is that the judge refused to charge that there Avas no evidence in the case that anyone is interested in the result of the case except the plaintiff and defendant. As there was no evidence in the case of such 'third-party interest, this refusal AAras not error. It may be stated, however, that an examination of the record fails to disclose airy such request as contained in points six and seven being presented to the trial judge for his ruling.

It is true the notice of appeal purported to giAre the language of such requests, but this is no part of the record of the trial. HoAA^ever, we have considered the AAdiole case, both that which is properly before us and that which may not be, and find no error therein.

The judgment will be affirmed.


text:
    FRED VITUCCI, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Argued February 19, 1924
    Decided May 29, 1924.
    Negligence — Trolley Car Collision With Motor Bus — Judge’s Charge Contained Harmful Error, in That it Placed Greater Burden on Defendant Than it was Called Upon to Bear.
    On appeal from the Second District Court of the city of Newark.
    Before Justices Kalis cii, Katzentjacji and Lloyd.
    For the appellant, Leonard J. Tynan.

    For the respondent, Pearce R. Franldin.

   Pee Cueiam.

The defendant appeals from a judgment rendered in the Second District Court of Newark upon a single ground. The case grew out of an accident wherein a car of the defendant ran into the rear of plaintiff’s bus which, while stopped to discharge passengers, was extending into the line of approach of the car. In submitting the case to the jury the trial judge said: “It is the duty of the defendant company to maintain its equipment in such a manner that its operation will be safe to the public at large and to the passengers that they carry.” An exception was noted for the defendant and is assigned on this appeal as error. Taken in connection with the facts of the case, this instruction leads us to the conclusion that it was harmful error. The importance of the instruction will he apparent when we consider that the contention of the defendant was that the brakes were properly applied, but that there was automobile grease on the rails which caused the car to slide into the plaintiff’s bus. The charge was, under the circumstances, equivalent to an instruction that it was the duty of the defendant to maintain its equipment in such condition that the accident could not happen through its operation. It may well he that no equipment yet devised will'suffice to prevent the sliding of iron wheels on a greasy rail, or that a railway laid in our streets can always be kept free from oil and grease. The burden placed on the company was, therefore, greater than it was called upon to bear. It was undoubtedly obliged to rise reasonable care both in the condition of its equipment, including the rolling stock and trackage, and in the operation of its cars, but when this obligation was met it was absolved from liability for the consequences that might ensue despite such care on its part. In an otherwise faultless charge we have looked in vain for something which would, relieve from the ill effects that might well result from the misdirection complained of. It is true the jury was told that the company was liable only for negligence, hut having been told the obligation as to its equipment, the mere happening of the accident will logically entail a finding of negligence either in the care of its rails or car, so- that we reach the ultimate duty as at first 'declared. Eor the error complained of the judgment must he reversed and a venire de novo awarded.


author: Pur CTkiah.

text:
    SAMUEL LEVINE. PLAINTIFF-APPELLEE. v. PUBLIC SERVICE ELECTRIC COMPANY, DEFENDANT-APPELLANT.
    Submitted March 20, 1924

    Decided May 29, 1924.

    Negligence; — Broken Manhole Cover, Property of Defendant:— Doctrine of Res Ipsa Loquitur Applicable.
    On appeal from the District Court of the city of Bayonne.
    Before Justices Kaltrch, ELatzenb.a cir and Lloyd.
    Eor the appellant, Leonard J. Tynan.

    For the respondent, Jacob'Feinberg.

   Pur CTkiah.

"While driving his ear after dark in the early evening of March 10th, 1923, the plaintiff’s Ford automobile suddenly fell into an excavation which turned out to he a manhole belonging to the defendant company. The proofs were that tlio manhole cover was broken in half, whether by the passing of the Ford ear over it, or from other conditions of traffic or otherwise, did not appear. The whole of the testimony on behalf of the plaintiff was that after the accident happened the plaintiff got out; of his car and saw a big manhole without- any cover on; that the cover was lying along side broken. The defendant moved for a nonsuit, which was refused, and at the conclusion of the case asked for a direction of a verdict in its favor. This was also refused and an exception noted. The refusal of the court to grant these motions is the subject now in review. It is contended that there was no evidence of negligence sufficient to go- to the jury.

It is true that there is no direct proof of negligence in the case. The question, therefore, arises as to- whether the doer trine of res ipsa loquitur applies. It has ever been regarded that he who maintains by lawful right an opening in the public highway is under duty to use the care wdiich the circumstances require to- safeguard those using the surface of the street, and reasonable care under such circumstances has been held to be of a high character. Schroeder v. Public Service, 118 Atl. Rep. 337; Fox v. Wharton, 64 N. J. L. 453: Insurance Co. v. Railroad Co., 92 Id. 467. The application of the doctrine was elaborately discussed by the Court of Errors and Appeals in the case of Bahr v. Lombard, 53 Id. 238, and in it Mr. Justice Garrison uses this language: “If something unusual happens with respect to the defendant’s property, or something over which he has control. which injures the plaintiff, and the natural inference on the evidence is that the unusual occurrence is owing to the defendant’s act, the occurrence, being unusual, is said to speak for itself that such act was negligent.”

As illustrating its application, a brick falling from a roof on a passerbj7 (Sheridan v. Foley, 58 N. J. L. 230), a charged electric wire lying in the street (Newark Electric Light Co. v. Ruddy, 63 Id. 357), an electric are lamp falling in the street (Excelsior Electric Co. v. Sweet, 57 Id. 225), have all been illustrations of the application of the rule. In this case nothing falls from above, hut something breaks from beneath. The thing that breaks is the property of the defendant, is in its control, and for its construction and placing the defendant is responsible. It is obligated to use the reasonable care required to see that the construction is of sufficient strength to meet the requirements of lawful users of the highway. ' The plaintiff was necessarily ignorant of the making, of the material and the placing of this manhole cover. On the contrary; all of these factors were presumably within the knowledge of the defendant. It seems to us that the facts established were sufficient, at least, to impose upon the defendant the duty of an explanation. Tailing in this dutjq it was permissible for the jury to infer that the condition of the manhole was due to some negligent act of commission or omission on the part of the defendant. The only defense produced to meet this prima facie case was the testimony of a lampman who testified that he casually observed the manhole on a previous occasion. Whether this was sufficient to meet the prima facie case established by the plaintiff (if the jury so regarded the plaintiff’s case), was, we think, a verdict for the jury.

The verdict being found for the plaintiff, undeí a correct charge of the judge, the judgment must be affirmed.


text:
    MARY S. COE, INDIVIDUALLY AND AS EXECUTRIX OF WILLIAM P. COE, DECEASED, v. ROBERT TREAT HOTEL COMPANY.
    Decided May 28, 1924.
    Negligence — Hotel Liability to Keep Property in Safe Condition for Guests — Room Rented to Lecture Committee at Time of Accident — Evidence Showed Property was Not in Unsafe Condition at Time of Renting.
    On defendant’s rule to show cause.
    Before Gumaiere, Chief Justice, and Justices Mlyturn and Black.
    For the rule, William, E. Ilolmwood and Alfred F. Skinner.

      Contra, John W. Palmer.

   Per Curiam.

' The plaintiffs, Mary S. Coe and her husband (who was living at the time of the institution of this suit), brought this action against the hotel company to recover compensation for personal injuries received by Mrs. Coe through a fall in the hotel ballroom, where she went for the purpose of attending a lecture given by Miss Anne Morgan, the ballroom having been rented from the hotel company by the lecture committee in charge of the affair. The trial resulted in a. verdict of $10,000 in favor of the wife and $5,000 in favor of the husband. The husband died after the allowance of the present rule.

The right of recovery of the plaintiff was rested upon the alleged fact that the fall of Mrs. Coe resulted from her catching a foot in a hole in the carpet covering the ballroom floor, the hole being eighteen to twenty inches long and five to six inches wide. Assuming that the fall was so caused, the liability of the defendant company depends'upon the determination of the question whether, in the exercise of reasonable care, it should have become aware of the existence of this hole before the happening of the accident; for, if the management of the hotel company knew, or ought to have known, of its existence prior to the happening of the accident, then, of course, the duty rested upon it to protect parties attending the lecture from danger resulting therefrom; but, on the other hand, if the management was not chargeable with such notice, it is not legally liable for the injuries received by Mrs. Coe.

After a careful examination of the testimony in the ease, we are satisfied that the defendant corporation was not chargeable with knowledge of the existence of this hole prior to the happening of the accident. The uncontradicted proof shewed that three of the employes of the defendant company were detailed to make, and did make, a careful inspection of this carpet just before the turning over-of the ballroom to the lecture committee, and that this hole was not there at that time. Having shown this, no obligation rested upon the defendant company to account for its presence at the time of the accident.

We conclude, therefore, that the finding of the jury, imposing responsibility upon the defendant, was contrary to the fair weight of the evidence.

The solution of the question, whether the verdict in favor of the wife and of the husband weye excessive, becomes unimportant in view of the conclusion we have reached upon the primary factor of this case. We may say, however, that our reading of the testimony satisfies us that the contention of the defendant upon this point also is fully justified by the proofs.

Eor the reasons first stated, the rule to show cause will be made absolute.


text:
    LOUISE ROELTGEN ET UX. v. PUBLIC SERVICE RAILWAY COMPANY.
    Argued February term, 1924
    Decided May term, 1924.
    Negligence — Trolley Car Collision With Motor Vehicle — Witness, Though Not an Expert, May Testify According to His Judgment Regarding Rate of Speed.
    On rule to show cause in Bergen Circuit.
    Before GuiniEiny Chief Justice, and Justices Mint urn and Black.
    For the rule, Leonard J. Tynan.

    Contra, Weinberger £ Weinberger.

   Per Curiam.

On the 1st day of April. 1922, the plaintiff Louise Boeltgen was. operating a touring car which was owned by her husband, on a public highway in Bergen county, known as Bochelle avenue, in the township of Midland, about seven a. M. The plaintiff Louise Boeltgen had spent the night at her mother’s home, and was on her way back to her husband’s place of business, which was about a mile away from the point where she had started; the plaintiff had been operating an automobile for two years prior to April, .1922, and was a licensed driver. At the time the plaintiff was proceeding south on Bochelle avenue, and was approaching a trolley track laid on defendant’s private right of way and which crosses Bochelle avenue easterly and westerly. As the plaintiff proceeded to cross the tracks she looked to her left and right and slowed down, she says, to a rate of speed of about five or six miles an hour, and saw nothing approaching her, her view being obstructed at this point by a large bouse situated on the roadway. As the plaintiff’s first two wheels had gone on the first track, a public service car came down at a great rate of speed, and, to avoid being struck by the trolley car, Louise Roeltgen turned her car to the right, intending to go in the same direction in which the trolley was going, when the trolley ear struck the automobile and carried it a distance of seventy-five to one hundred feet.

It is contended that, upon this state of facts, the verdict for the plaintiff ivas against the weight of the evidence, since in certain important particulars the plaintiffs were contradicted by defendant’s witnesses. But such a situation manifestly presented a jury question. The trial court, however, overruled two questions put to the witness DeBlasio> in which his opinion as to the speed of the automobile and the car was asked. The objection to1 the questions was based on the theory that the witness was not an expert, and, apparently, the court so view the inquiry. The questions were competent, since the rule of evidence is well settled that a witness may use his ordinary faculties for observation, and is entitled to testify as to the rate of speed a vehicle was pro-ceding, or whether, in his best judgment, the vehicle was proceeding at a rapid or at a slow rate of speed. In this respect there was error. State v. Morris, 121 Atl. Rep. 290.

Our examination of the other grounds of objection leads us to conclude that they were non-prejudicial.

Por the reasons given the rule will be made absolute.


author: Per, Curiam.

text:
    MORRIS DAVID KAHN, RELATOR, v. HESSLER LAUNDRY COMPANY ET AL., RESPONDENTS.
    Submitted March 21, 1924
    Decided May 31, 1924.
    Corporations — Examination of Books — Not Satisfied That Applicant for Writ is a Stockholder or That Application Has Been Made in Good Faith.
    On application for mandamus.

    Before Justices Trenchmkp, Parker and Campbell.
    For the relator, John F. Evans.

    For the respondents, Edward F. Merrey.

   Per, Curiam.

The relator asks for a mandmus to compel the respondents “to permit the relator, with the aid of an expert accountant, to examine all the corporation hooks, including the books of account, books of the minutes of the proceedings of the directors and stockholders of the company, and all papers and documents in the possession of the company, relating to and concerning the business and financial affairs of the company.”

The allowance of the writ is resisted on the ground — first, that the relator is not a stockholder, and second, that he seeks to examine the books for an improper purpose.

It will serve no useful purpose to recite the evidence. Tt is sufficient to say that we are not satisfied that the relator is a stockholder, the evidence upon that topic being in serious conflict. Moreover, wo are not satisfied from the evidence that the application is made in good faith and for a proper purpose. In such posture of the proofs we are not justified m granting a writ of mandamus. Bruning v. Hoboken Printing and Publishing Co., 67 N. J. L. 119.

'Fhe writ will be denied, but without costs.


text:
    ELIZABETH SMITH, PROSECUTOR, v. MRS CARL NAGEL AND CHARLES F. ADAM, JUSTICE OF THE PEACE IN AND FOR THE COUNTY OF PASSAIC, RESPONDENTS.
    Submitted March 21, 1924
    Decided May 31, 1924.
    Justice of Peace — Conviction—Several Offenses Charged, None of Which Show Statute or Ordinance Violated.
    On certiorari, Sc.

    Before Justices Teen chard, Parker, and Campbell.
    For the prosecutor, J. Chester Massinger.

   Per Curiam.

This writ brings up a conviction of the prosecutor by a justice of the peace “of the offense as charged in the complaint.”

Turning to the complaint we see that several distinct matters are therein charged. As to most of them, it is.clear that they constitute no violation of any statute or ordinance, and, as to those which conceivably do-, there is nothing to show what statute or ordinance has been violated.

It is therefore certain that the conviction cannot stand. It will be set aside, but without costs.


author: Minturn, J.

text:
    OVERSEER OF THE POOR OF THE CITY OF BAYONNE v. WILLIAM GALLAGHER, DEFENDANT.
    Decided June 5, 1924.
    Public Charges — Evidence Showed That in Instant Case Child Likely to so Become — Tried Five Times — Certiorari Denied.
    On application for writ of certiorari.

    Eor the city of Bayonne, William George.

    For the defendant, Robert Carey and Jesse Fewberg.

   The opinion of the court was delivered by

Minturn, J.

The writ of certiorari in this case will bo denied after an inspection of the record in the case and an analysis of the' court’s charge to> the jury.

The court finds ample proof in the evidence that the child is likely in become a charge upon the city of Bayonne by reason of the inability of the mother to support the child. This likelihood of public support is all that the statute seems to require. Montclair v. Eason, 92 N. J. L. 199.

If there is sufficient evidence in the case to warrant the. conviction, the court will not review the evidence for the purpose of determining its preponderance. Madison Township v. Monroe Township, 42 N. J. L. 493.

The charge of the court must be taken as a whole, and cannot be considered by isolated sentences. Considering the charge from that point of view, it is eminently fair to the defendant. The case is one of a civil nature, and the jury was directed to find according to the preponderance of the evidence. Lecooney v. Overseer of the Poor, 43 N. J. L. 406.

The fact that this case has been heard and tried five times before a jury, three of the trials resulting in a conviction, and this, the fifth trial, also resulting in a conviction, preseats sufficient evidence to- the court in a ease of this nature to deny a writ of certiorari to remove a record which presents no legal questions of sufficient importance to warrant further delay in the case.

The application for a writ is denied.


author: Pee Cukiam.

text:
    CHARLES R. WESTBROOKE v. JOSEPH MINSAVICH.
    Argued February term, 1924
    Decided June 4, 1924.
    Promissory Notes — Action on — Forgery Alleged — Judgment for Defendant Against Clear Weight of Evidence.
    On rule to show cause in Warren Circuit.
    Before Gummeke, Chiee Justice, and Justices Mirtukn and Black.
    Eo-r the rule, Joseph M. Roseberry & Son.

      Contra, William A. Strylcer.

   Pee Cukiam.

The suit was brought to recover upon two- promissory notes, one dated September 26th, 1919, for $3,200, payable to the order of the plaintiff, and, apparently, signed by the defendant, with his mark, in the presence of one Huntzberger, cashier of the bank where the note was made payable, and witnessed by that officer. The other, for -$500, was dated December 1, 1920, payable to the order of the plaintiff, payable in three months at the same bank, and signed and witnessed as the first note.

The defendant, Minsavitch, having contracted to buy a tract of land from one Dahlke, as administrator, for $6,-533.50, needed $3,200 to enable him to make the full payment, applied to the plaintiff to endorse his note for that amount, iu order that he might obtain the loan from the bank: the plaintiff endorsed the note and it was taken to the bank; Minsavich was then given credit for the amount on the books of the hank, and the hank then honored his check for the total amount of the purchase price of the land. The check was signed as the note, by the defendant’s mark, witnessed by Muntzberger. The defendant insisted that .he never signed the note, and knew nothing about it; that his signature had been forged, and that it was not endorsed by the plaintiff at his request. The bank having demanded payment from the defendant, and defendant refusing to pay, suit was brought against the plaintiff, whereupon he paid the principal and interest due thereon. There is nothing in the evidence to suggest that the plaintiff ever received a dollar from the bank, or from anyone else on this note. As to the other note, the plaintiff’s case showed that holding a note of the defendant for $530 he called on the latter to make a payment on account of it; that the defendant paid him $30 on account, and gave him a new note for $500, that being the second note in suit. The defendant denies that he signed this note; claims it was a forgery, and says that he paid the old note iu full iu cash at the time the second note was delivered to the plaintiff.

The trial resulted in a verdict in favor of the defendant on each of the notes. It seems to us that the verdict is contrary to the clear weight of the evidence, not only in view of the facts testified to off behalf of the plaintiff, but also in view of the circumstances surrounding the transaction.

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


text:
    C. VERDON FIRTH, PLAINTIFF-APPELLANT, v. FLEETWOOD MOTOR CAR COMPANY, DEFENDANT-RESPONDENT.
    Argued February term, 1924
    Decided May term, 1924.
    Contracts — Breach Alleged — Another Contract Afterward Substituted — 'Unless Second Contract is Fulfilled Plaintiff May Recover on First Contract.
    On appeal from the Burlington Circuit.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For plaint.iJf-appellant, Francis J. Smith.

    For defendant:respondent, Robert Peacock.

   Per Curiam.

The plaintiff sued to recover on a contract for the sale and purchase of a Hudson sedan motor car, warranted to be of the 1920 model. It turned out to have been a car made in the 3rear 1918 or earlier, and having ascertained that fact the plaintiff tendered it back to the vendor, and demanded the purehase-mone3r paid therefor. In this situation it was ultimately agreed that the defendant should substitute a seven-passenger Hudson car with a badger top for the car in question, and the plaintiff to pay the difference in the price, and also agreed that the carrying out of this arrangement should exonerate the defendant from any liability for non-performance of his original contract. At the close of the plaintiff’s case the trial judge directed a nonsuit, upon the ground that there had been a novation by the substitution of a new contract in place of the old one. We think this ruling was erroneous, and that there was no novation.

It was clearly established that the abandonment of the original contract was conditioned upon the performance by the defendant of the substituted contract, and, therefore, obviously, until such performance the original contract remained in force. The defendant failed to> perform the substituted contract, and the right of the plaintiff to recover for breach of the original contract, therefore remained intact. Cooke v. McAdoo, 85 N. J. L. 692; 20 R. C. L. 369, and cases' cited.

The judgment appealed from will'he reversed and a venire de novo issue.