text:
    RUPERT RIBNIK, PROSECUTOR, v. ANDREW F. McBRIDE, COMMISSIONER OF LABOR OF THE STATE OF NEW JERSEY, DEFENDANT.
    Submitted January 30, 1926
    Decided June 24, 1926.
    Employment Bureaus—Licensing — Constitutionality of Act — Prosecutor Alleges Commissioner of Labor Acted Unconstitutionally in Refusing Him a License to Maintain an Employment Bureau—Reasons for Refusal Were That Prosecutor Had Previously Maintained Such a Bureau Without a License With Full Knowledge of the Law, and That the Commissioner was Unable to Approve the Proposed Schedule of Fees—it was Not Alleged That the Commissioner Had Unreasonably or Arbitrarily Exercised His Power, but That His Exercise of Power was Unconstitutional—Held, That Laws of 1918, Chap. 227, Provides a Constitutional Exercise of the Police Power, That the Power to License May be Vested in a Commissioner Within Certain Limits, and Unless the Statute Provides Fixed Rules the Commissioner Has Reasonable Discretion in Its Exercise.
    On certiorari, &c.
    Before Justices Tkenchabd and Katzenbach.
    For the prosecutor, Lum, Tamblyn & Golyer (Egbert J. Tamblyn and Chester W. Fairlie, of counsel).
    For the defendant, Edward L. Kalzenbach, attorn ey-generaL, and Grover 0. Richmond, second assistant attorney-general.
   Pee Cueiam.

This writ brings up for review the action of the commissioner of labor of the State of New Jersey in refusing to issue a license to the prosecutor to carry on an employment agency in this state.

The prosecutor applied under the provisions of Pamph. L. 1918, p. 822, ch. 277, entitled “An act to regulate the keeping of employment agencies.” The refusal of the commissioner to grant the license applied for is based upon the ground that he could not approve in its entirety, the prosecutor’s proposed schedule of fees to be charged in the conduct of the agency.

The prosecutor states in his brief that "the only question involved on this certiorari is whether the commissioner’s approval of the fees proposed to be charged by prosecutor for the services to be rendered by him to his clients can be made a condition precedent to the prosecutor’s right to engage in that business in this state—that is, whether said act, in so far as it purports to confer upon the commissioner of labor power and authority to fix, determine, limit, restrict or regulate the fees to be charged by the applicant for his services, is constitutional under our state constitution and under the federal constitution.”

We think that the questions thus raised and argued are determined in substance and effect adversely to the contention of the prosecutor by the principles declared by the Court of Errors and Appeals in the case of McBride v. Clark, 2 N. J. Mis. R. 814, in reviewing proceedings under the same act. There it was held that the provisions of the statute requiring license and regulating the business, and empowering the commissioner (under section 10) to refuse to issue license for any good cause shown, did not violate (1) the fifth amendment of the federal constitution, which provides, "nor shall any person * * * be deprived of life, liberty or property without due process of law;” nor (2) the fourteenth amendment of the federal constitution, which provides "nor shall any state deprive any person of liberty, life or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law;” nor (3) section 1, article 1 of the state constitution, which provides that “all men are by nature free and independent, and have certain * * * inalienable rights, amongst which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.” Those are the constitutional provisions which it is contended in the present ease were violated by the statute.

In the Clark case it was pointed out that it is common knowledge that an employment agency is a business dealing with a great body of our population, native and foreign born, which is susceptible to imposition, deception and immoral influences, and that the statute, in so far as the provisions mentioned are concerned, is within the police powers of the state. The court quoted the language of Brazee v. Michigan, 241 U. S. 340, as follows: “Considering our former opinions, it seems clear that, without violating the federal constitution, a state, exercising the police power, may require licenses for employment agencies and prescribe reasonable regulations in respect of them to be enforced according to the legal discretion of a commissioner.” And in the Clark case our Court of Errors and Appeals further said:

“The power to grant a license under the statute has been vested in the commissioner within certain limits. It is obvious that, unless a hard and fast line of conditions is indicated in the legislation itself, the power of deciding upon the fitness of the applicant must be vested in some other authority if the purpose of the act is to be made effective. In the case of Brazee v. Michigan, supra, there were many regulations vested in the discretion of the commissioner of labor, and this authority was expressly sanctioned by the Supreme Court. Under section 10 of our own statute the commissioner of labor may refuse to issue any license 'for any good cause shown’ within the meaning and purpose of the act. Among the conditions of obtaining such license are that the 'applicant shall be required to furnish satisfactory proof of good moral character in the form of affidavits,’ and imposes upon the commissioner the duty of investigating the character of the applicant. Deeming the business as one justifying intervention of the legislature for the safety of the public morals and public health under its police powers, and that the power to determine the fitness and qualifications of those seeking to engage in the business was properly given to the commissioner, the question arises, Was the power legally exercised in the individual case, the commissioner having refused the prosecutor’s application for a license upon the grounds' (1) that the applicant had already violated the statute by carrying on the business without a license, well knowing the legal requirements therefor, and (2) that the schedule of fees proposed by the relator were not approved by the commissioner?”

As already indicated, the statute provides that every applicant shall file with the commissioner “a schedule of fees proposed to be charged for the services rendered to employers seeking employes and persons seeking employment” (section 5), and that the commissioner “may refuse to issue * * * any license for any good cause shown within the meaning of this act.”

We look upon this provision as a regulation of the business, and so, apparently, did the court in the Clark case, and such seems to be the rule supported by other authorities. See the cases collected in 6 R. C. L. 273, where in the text it is said : “The power of the legislature to regulate a business for the protection of the public carries with it the power to control and regulate the right to contract in relation to it. While, therefore, the right to contract may be subject to limitations growing out of the duties which the individual owes to society, the public or the government, the power of the legislature to limit such right must rest on some reasonable basis, and cannot be arbitrarily exercised.”

Here the question argued is solely the constitutionality of the statute conferring the power. It is not contended that the power was unreasonably or arbitrarily exercised by the commissioner. No attack is made upon the finding of the commissioner that the fee schedule proposed to be charged “is excessive and unreasonable, and is more than the fee charged by some thirteen other similar agencies in this state, and is more than the average which is permitted or is charged 'in practice in other similar industrial states in this country.”

Our conclusion is that the present attack upon the statute is’without substance, and, accordingly, the writ is dismissed, with costs.


source: Caselaw Access Project

author: Pee Oukiam.

license: Public Domain

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. SAMUEL WALLACE, PLAINTIFF IN ERROR.
    Decided June 25, 1926.
    Crimes—Perjury—Alleged False Swearing Before Grand Jury— Indictment Charge Supported by Testimony of Only One Witness—No Corroborative Testimony—Judgment Reversed.
    Oil error to tlie Cumberland County Quarter Sessions Court.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiff in error, II. Byron Lore.

    For the defendant in error, Thomas G. Tuso.

   Pee Oukiam.

The plaintiff in error was convicted in the Cumberland County Court of Quarter Sessions Court of the crime of perjury, upon which conviction he was sentenced to imprisonment at hard labor in the state prison for a period not less than one year and not more than two years. The indictment charged that the plaintiff in error, the defendant below, “willfully, corruptly, falsely and knowingly,” in an investigation before a Cumberland county grand jury, “depose and swear, among other things, in substance and to the effect, that is to say, ‘I never purchased any liquor from Luther G art on for beverage purposes, neither have I seen any other person purchase liquor for beverage purposes from said Luther Carton’, * * * whereas, in truth and in fact, the said Luther Garton had sold liquor for beverage purposes to the said Samuel Wallace, for one dollar per pint, and the said Samuel Wallace had purchased liquor for beverage purposes from the said Luther Carton, paying therefor one dollar per pint, as the said Samuel Wallace then and there very well knew.”

Samuel Swift is the only witness produced by the state who testified that he saw the defendant twice at his house, where Garton lived, once in the month of July and once in the month of August, and on each of those occasions he, Swift, saw the defendant get a pint of liquor from Garton and saw the former pay one dollar for the same to Garton. There is not the slightest corroboration of Swift’s testimony that the defendant purchased any liquor of Garton; Swift testified that his wife was present, but she denies that she saw on either occasion any liquor purchased of Garton by the defendant. All the witnesses to whom the witness Swift refers as having been present on the occasion when he says the defendant purchased the liquor of Garton deny all knowledge of any such transactions. Eor the state it is claimed that there is corroboration of the facts that the defendant purchased liquor from Garton, because the defendant testified that he had purchased many pints of liquor from the witness Swift. Swift was not recalled by the state in denial of this statement, thereby leaving its truth unchallenged. In what respect, therefore, the fact that the defendant admitted that he bought many pints of liquor of the witness Swift was corroborative of Swift’s assertion that he was present on two occasions when he saw the defendant purchase liquor of Garton, has not been made plain to me.

It is quite evident that the admission of the defendant that he purchased liquor of Swift could not be helpful in supplying legal force to Swift’s testimony that he saw Gar-ton sell liquor to the defendant. The material issue in the case was, did the defendant testify falsely in the proceedings had before the grand jury when he testified: “I never purchased any liquor from Luther G.arton for beverage purposes, neither have I seen any other person purchase liquor for beverage purposes from Luther Garton.”

As has already been pointed out, the only witness whose testimony challenges the truth of this statement is Samuel Swift.

The admission by the defendant that he purchased liquor of Swift can in no sense be said to be corroborative of. the statement of the former that he was present when liquor was purchased by the defendant of Garton, and, hence, Swift’s testimony stands alone upon which the falsity of the defendant’s statement to the grand jury is founded, and, as a result of lack of corroboration, the defendant was entitled to a direction of an acquittal by the jury. The testimony adduced was clearly insufficient to establish willful and corrupt perjury.

See State v. Lupton, 4 N. J. Adv. R. 1256, in which opinion the character and proof necessary to constitute corroborative evidence of the testimony of a single witness to establish perjury is discussed and decided.

Eor the reasons stated the judgment is reserved.


author: Mintubn, J.

text:
    HAROLD ANDERSON, BY NEXT FRIEND, AND BEATRICE ANDERSON AND HARRY ANDERSON v. GREEN CAB COMPANY.
    Argued January term, 1926
    Decided June 24, 1926.
    Negligence.—Injury to Passenger of Taxicab—Prima Facie Evidence of Negligence of Taxi Driver—Evidence of Ownership by Defendant—Other Reasons for Reversal Too General, Vague and Indefinite.
    Before Justices Parker, Mintubn and Black.
    Eor the appellants, James A. Lightfoot and William J. Garrison.

    Eor the appellees, Samuel Morris.

   The opinion of the court was delivered by

Mintubn, J.

These two actions were tried together in the Atlantic City District Court with á jury, and resulted in verdicts for $200 for the infant, $400 for the mother and $100 for the husband.

Beatrice Anderson and her infant son was injured while riding as passengers in defendant’s taxicab at about six o’clock on the rainy evening of December 24th, 1924. The collision took place with a truck which had been standing at the side of the street, and which had started to make a U turn into the street.

The first point urged for reversal is the refusal to nonsuit on the grounds that there was no proof of negligence, ownership or operation of the cab by defendant. The plaintiff’s evidence was that she engaged a Green cab, and that defendant’s name appeared thereon. There was evidence, also, that defendant’s cab was “speeding,” “going very fast,” and that plaintiff knocked on the window to caution the driver to' reduce his speed, and that the taxicab skidded thirty feet after the collision before coming to a stop. That situation presented a prima facie case of negligence.

The other remaining reasons urged for reversal are so general, vague and indefinite as to come under the condemnation of the rule that, to be noticed and considered by the court upon appeal, the reasons must be direct, compre'hensive .and specific, indicating the exact error or alleged legal defect, so that the appellate court may not be obliged, as in a cross-word puzzle, to search the record for esoteric errors and metaphysical intricacies to sustain the appeal. Valenti v. Blessington, 96 N. J. L. 498; 10 N. J. Dig. (Court of Errors and Appeals), § 268, and cases cited.

Thus, under reasons—(4) that the court permitted immaterial and irrelevant testimony; (5) that the court refused to admit relevant testimony; (6) that the charge mis-stated the law; (7) divers other errors made in the course of the trial; we are asked to scrutinize the record and conjure up from any conceivable concatenation of language and law some legal basis upon which the appeal may be reasonably supported. This, under any proper theory of judicial procedure, we conceive to be the province of the advocate, and not that of the bench.

Jus dicere non jus dare.

The judgment will be affirmed.


author: Per Curiam.

text:
    MORRIS STRAUS, PLAINTIFF-APPELLEE, v. LEWIS ROBBIN, DEFENDANT-APPELLANT.
    Argued January term, 1926
    Decided July 2, 1926.
    Landlord and Tenant—Notice by Tenant—Defendant Leased Premises With Privilege of Renewal Upon Notice—No Notice was Given, but Tenant Remained for Several Years, Then Leaving During a Year—Judgment for Landlord Sustained —General Rule is, Where Lease Gives Option of Removal, Without Requirement of Notice, and Lessee Holds Over, Presumption is That Tenant Elected to Renew, and This Rule Appiies in Case of Notice, Since Notice is for Benefit of Lessor and may be Waived.
    Before Justices Parker, Minturst and Brack.
    Eor the defendant-appellant, Fred Herrigel.

    For the plaintiff-appellee, Charles Hood.

   Per Curiam.

This action was tried in the First District Court of Newark without a jury, and judgment was rendered for the plaintiff for $260.

By a written lease the plaintiff let to the defendant certain premises in the city of Newark for a term of nine months, commencing January 1st, 1920, and ending October 1st, 1920, with a provision that the defendant might have one annual renewal of the lease at the same rent, providing that written notice be given by the tenant to the landlord of his desire before August 1st. No written or other notice was given by the tenant to the landlord, but the tenant remained in possession, and continued to pay rent until November 1st, 1924, when he abandoned the premises. The premises remained unrented, and the landlord brought this action to recover rent for the months of December, 1924, January, February and March, 1925, with the result stated.

The defendant-tenant contends that his mere holding over and paying rent, without giving notice of an option to renew, did not constitute an election to renew the lease.

The general rule is that where a lease gives the lessee an option of renewal at the expiration of the term agreed upon in the lease, without any requirement of notice of his election to renew, and the lessee holds over after the expiration of the term, the presumption exists that the tenant has elected to renew the lease in accordance with the terms of the option.

This general rule applies, although the lease contains a provision that notice shall be given in case the lessee desires to exercise his option, since while the option is for the benefit of the lessee, the notice is for the benefit of the lessor, and may by him be waived. Murtland v. English (Pa.), 6 Anno. Cas. 342; Grant v. Collins (Ky.), Anno. Cas. 1915d 249.

To hold otherwise would be, in effect, to make a new contract for the parties, and would be tantamount to holding-that when a lessor inserts a provision in the lease for his benefit, a reciprocal provision for the benefit of the tenant may be implied, although not expressed, and so the rule has been declared that "even though the requirement of notice is for the protection of the lessee, it may be waived by his act in continuing in possession after the term.” Long v. Stafford, 103 N. Y. 274; 8 N. E. Rep. 522.

In this state this court declared that such a tenancy was in legal effect a tenancy from year to year. Yetter v. King Co., 66 N. J. L. 491.

The result is that the judgment will be affirmed.


author: Gummeke, Chief Justice.

text:
    THE CHANCELLOR DEVELOPMENT CORPORATION, RELATOR, v. WILLLIAM H. SENIOR, INSPECTOR OF BUILDINGS, ETC., ET AL., RESPONDENTS.
    Decided June 26, 1926.
    Zoning—Amendment of 1926 Makes Board of Adjustment a Tribunal of Review, With Power to Determine on Appeal Whether the Particular Location of the Building is a Public Menace—This is a Question of Fact—Having Heard Testimony, Board Has Decided That it is, Its Decision Not Being Based Solely on the Ordinance—Whether This Finding is Justified is a Question of Fact; if There is no Evidence to Sustain it, it Cannot Stand—Case Not One for Mandamus but for Certiorari to Review Action of Board.
    On application for alternative writ of mandamus.

    For the relator, Philip J. Schotland.

    For the respondents, George 8. Harris.

   The opinion of the court was delivered by

Gummeke, Chief Justice.

I think the application should be denied. The legislature, by this amendatory statute of 1926, has created this board of adjustment a tribunal of review, and has vested in it the power to determine on the appeal of the property owner whether this particular building, located in this particular place, is a public menace to the health, welfare or safety of the community. That is a fact which it is to determine, after hearing testimony. It has heard testimony and has determined that it is, according to the reading of the report made by the board, its decision not being based solely upon the ground that it violates the ordinance, but that this building, located in this place, will be a public menace. Now, whether that finding is justified by the proofs before it is a question of fact. If there is no evidence to sustain it, it cannot stand. If it is justified by the proofs before the board, that would be the end of the relator’s alleged right to a permit.

This seems to me not to be a case for an alternative writ for the purpose of reviewing the action of the inspector, but for a certiorari to review the action of the board of adjustment.


text:
    MARTHA KIEFER AND JOHN J. KIEFER, PLAINTIFFS, v. ROBERT FLEMING AND GEORGE J. TEACHEN, DEFENDANTS.
    Decided July 8, 1926.
    Judgment—Default—A Verdict Ought Not be Disturbed Unless Under Circumstances of Present Case it is Made to Appear That the Court was Imposed Upon or Some Fraud Practiced —Alleged Telegram From Defendant to Court Saying He Could Not Attend on Account of Illness of His Mother Never Received—Trial Proceeded to the End—Rule Discharged.
    On defendants’ rule to show cause.
    Before Justices Kaetsch: and Katzenbaoh.
    Eor the rule, Theodore Strong.

      Contra, Lazarus, Brenner & Viclcers.

   Per Curiam.

A careful reading of the deposition discloses that there is no merit in this application. A judgment was entered on the verdict oí a jury more than a year ago against the above-named defendants by default. It is not denied that these defendants knew of the date of the trial of the cause. There must be some certainty to a verdict. A verdict ought not he disturbed unless, under the circumstances of the present case, it is made to appear that the court was imposed or some fraud practiced. Neither of these elements is present here. The claim made is that the defendant George J. Teachen had sent a telegram addressed to the court saying that he was unable to attend because of the serious illness of his mother. It is quite evident that the trial judge did not receive the telegram, for no mention was made by him, and, in fact, the trial proceeded to an end. Moreover, the defendant, although he knew that an action was pending against him, and that the trial was imminent, took no further concern to ascertain what the result was, and, accordingly to the facts as they appear, made no effort to have the verdict set aside, until he was taken upon a capias ad satisfaciendum to satisfy the judgment obtained by him more than a year ago.

We think, under the circumstances, the rule to show cause should be discharged.


author: Pee Ctjbiam.

text:
    PAUL B. SCARF, PLAINTIFF, v. LUDWIG FANTON AND HENRY WOLF, CO-PARTNERS, TRADING AS FANTON & WOLF, DEFENDANTS.
    Decided July 9, 1926.
    Landlord and Tenant—Rent—Counter-claim and Unliquidated Damages—Motion to Strike Out Counter-claim Allowed.
    On motion to strike out counter-claim of Henry Wolf.
    Before Justice Kalisch, at chambers.
    For the motion, Lionel P. Kristeller.

      Contra, William B. Stites.

   Pee Ctjbiam.

The .plaintiff’s action is for rent. The defendant sets up a counter-claim for unliquidated damages. The ease is controlled by Kelly v. Faitoute Iron and Steel Co., 87 N. J. L. 567; Jenkins v. Schneidman, 4 N. J. Adv. R. 1005. The plaintiff’s motion to strike out the counter-claim is allowed.


author: Katzenbach, J.

text:
    THE STATE, EX REL. MARGARET BEDERSKI, RELATOR, v. THE POLICEMEN’S AND FIREMEN’S PENSION BOARD OF THE CITY OF NEWARK, RESPONDENT.
    Submitted January 29, 1926
    Decided May 4, 1926.
    I!., a policeman of the city of Newark, died on May 11th, 1923, from a revolver shot while off duty. His widow applied to the pension board of the city of Newark for a pension. The application was denied. Held, that under chapter 160 of the laws of 1920 (Pamph. L. 1920, p. 324) that the widow was entitled to a pension under the provisions of said act, even though B. may have been engaged in an unlawful enterprise at the time of his death.
    On rule to show cause why a peremptory or alternative writ of mandamus should not issue.
    Before Justices Tbenchabd and Katzenbaoh.
    For the relator, John W. McGeehan, Jr.

    For the respondent, Jerome T. Congleton and Charles M. Myers.

   The opinion of the court was delivered by

Katzenbach, J.

This case is before us upon a rule to show cause why a peremptory or alternative writ of mandamus should not issue to command the policemen’s and firemen’s pension board of the city of Newark to grant to Margaret Bederski, widow of Peter Bederski, for the benefit of herself and children, a pension of $1,000 per year from the date of the death of Peter Bederski, who was a policeman in the employ of the city of Newark. Bederski died on May 11th, 1923. '

The record contains the application of Mrs. Bederski for the pension, the minutes of the policemen’s and firemen’s pension board relative to the application, and the testimony covered by the applicant. The record also contains certain stipulations and admissions made bjr counsel for the respective parties. From, the record, as thus constituted, the following facts appear:

Peter Bederski was 'appointed a member of the police department of the city of Newark on September 16th, 1919. He continued to be a member of the department until his death on May 11th, 1923. His salary .at the time of his death was $2,200 per year. He was not under suspension or under any charges at the time of his death. At no time during his service had any charges been preferred against him. He had not married the petitioner after he had attained the age of fifty years. His widow has not remarried.- He left a widow and three infant children, aged nine years, seven years and one month, respectively. All deductions from his salary provided for by chapter 160 of the laws of 1920, relating to the policemen’s and firemen’s fund, had been made up to the time of his death.

The following are the facts relating to the death of Bederski: On May 10th, 1923, at eight p. m., when he was not in uniform or on duty, he left his home. He did not tell his wife where he was going. He was found upon his door step at four o’clock in the morning of May 11th, 1923, suffering from a revolver shot, from which he died at about ten-thirty a. m., on that day. Bederski, on the morning of May 11th, 1923, was in the company of Adam Dresch, Charles Hetschel, Louis G-iiwmelstob and Dan Magowan. They had met for the purpose of going to a warehouse, known as the Bernstein warehouse, in the city of Newark, where whiskey (understood to have been owned by Bederski) was stored. While in the warehouse a policeman by the name of Louis Thomas entered the premises. Several shots were fired in the warehouse. Two hours after this Bederski was found upon the porch of his home in the condition mentioned. No witness could testify that Bederski had been shot in the warehouse. At a criminal trial arising out of the above occurrence an owner of the warehouse testified that Bederski had no liquor stored in the warehouse. Before his death Bederski told his wife he thought a policeman had shot him. Upon these facts the board refused to allow the pension.

The respondent contends that Bederski’s widow is not entitled to a pension because Bederski met his death while engaged in an unlawful enterprise; but, assuming for the purpose o£ argument that he did meet his death while engaged in an unlawful act, we are unwilling to hold that his widow is for that reason deprived of the right to receive a pension from the fund created for this purpose. The third section of chapter 160 of the laws of 1920, which is the statute upon which Mrs. Bederski bases her application, provides as follows:

“The widow or children or sole dependent parent of any member of the police or fire department, having paid into the fund the full amount of his annual assessment or contributions, who shall have lost his life in the performance of his duty, or who shall die from causes other than injuries received in the performance of duty, shall receive a pension equal to one-half of the salary of such member at the time of his death, not exceeding $1,000.”

It will be observed that a pension is given to the widow * * * of any member of the police department who has paid into the fund the full amount of his annual assessment or contribution, who shall have lost his life in the performance of his duty, or who shall die from causes other than injuries received in the performance of duty. Bederski died from canses other than injuries received in the performance of duty. The language of the statute plainly includes a case like the one under consideration. It may be that the draftsman of the act, if he had foreseen a state of facts like the one herein presented, would have so drafted the act as to make it inoperative in the present case. But the act is not so drawn. Its language is plain. Notwithstanding Bederski may have been engaged in a criminal undertaking when he actually received the wound which caused his death, his widow is entitled to a pension. The cases of Scott v. Jersey City, 68 N. J. L. 687, and Leffingwell v. Kiersted, 74 Id. 407, cited by the respondent, are not in point. They were decided under a statute by which a pension was to be paid, if a fireman should be fatally injured while in the performance of, or attempting to discharge, his duties. The provisions of the act under review are broader.

The respondent further contends that to grant a pension under the facts revealed in the instant case is against public policy. The case of Smith v. Metropolitan Life Insurance Co., decided in October, 1925, in the appellate division of the New York Supreme Court, is cited to sustain this contention. In this case a man took out a. policy of life insurance payable to his wife. He then murdered his wife. He was convicted and executed. His personal representatives demanded the payment of the policy which by the death of his wife had become payable to the insured’s estate. It was held that to pay the proceeds of the policy to the personal rep-, resentatives of the deceased husband’s estate- would be contrary to public policy as the act of the husband in taking the life of his wife had enriched his estate. This decision follows many other decisions of like import. They differ materially from the present ease. Bederski did not enrich his estate, assuming he would not have been killed if he had not visited the storehouse. He was the victim. A wife is not deprived of the proceeds of an insurance policy payable to hen merely because her husband may be killed while engaged in an unlawful enterprise unless the policy so provides. In the case referred to by the respondent it was the act of the insured which made the policy payable to his estate. In the present ease it was not the act of Bederski in going to the warehouse, if he did, which caused his death, but the act of someone else in inflicting the wound from which he died. The visit to the warehouse was not the proximate cause of Bederski’s death. The statute under which Mrs. Bederski applies for a pension evinces a legislative intent to provide for the care and maintenance of members of the police and fire departments in case of disability, and for their widows, children and sole dependent parents in the event of death. To insure such benefits there is paid into the fund a certain percentage of their salaries. It is, in effect, protection by insurance. The act should be construed liberally to effectuate the legislative intent. It would, we think, be wrong to exclude a widow, innocent of any wrong-doing, from a pension which the act by its express provisions awards her where her husband dies from causes other than injuries received in the performance of his duty.

A peremptory writ of mandamus directing the payment of a pension to Mrs. JBederski pursuant to the provisions of the statute is awarded.


author: Caeerey, J.

text:
    Essex County Orphans Court.
    In the matter of the estate of Eliza A. Hampson, deceased.
    [Decided June 30th, 1926.]
    Wills—Construction—Distribution of Estate—Provision Made in Will for Distribution of Part of Estate After Death of Husband and Sister—This Estate to go to Numerous Beneficiaries, Their Issue, or to Their Survivors, as the Case May be—Estate Not Ready for Distribution Until Thirty-three Years After Testator’s Death—Many Beneficiaries Died in Meantime—Opinion Directs Nature of Decree.
    On petition for decree of distribution.

      Messrs. Linddbury & Steelman, for the petitioner.
   Caeerey, J.

This is an application by the Federal Trust Company, as-substituted administrator, for a decree of distribution in the estate of Eliza A. Hampson, who died testate on the 6th of November, 1890. Joseph Hampson, the husband of the testator, was appointed executor of the will and testament, and, up to the time of his death, in October, 1923, he had made a complete distribution of the estate, with the exception of two parcels of real estate hereinafter referred to in paragraphs six and seven of the will. This property could not be disposed of until the death of Lucinda Clarkson and the said Joseph Hampson.

Paragraph six reads as follows:

“Sixth. After the decease of my husband, Joseph Hampson, and my sister, Lucinda Clarkson, I desire my real estate to be sold as soon as convenient, to the best interest of the estate, and divided as follows: George Bowles, of Nottingham, England; Amelia Kilbum, wife of .Tabez Kilburn, of Newark, New Jersey; Ellen Graves, wife of Charles Graves, of Plainfield, New Jersey, to receive one-half of the money divided into three equal parts. If any of the cousins above named should die before my husband and sister, his or her share will descend to their issue, if no issue to their survivors.''

And the seventh paragraph reads as follows:

“Seventh. The balance of the money from the sale of my real estate to be divided into five equal parts, namely—Thomas Warner, of Newark, New Jersey; James Warner, of Newark, New Jersey; Challes Warner, of Newark, New Jersey; Eliza Pettigrove, wife of James Pettigrove, of Newark, New Jersey; Mary Schofield, wife of George Schofield, of Newark, New Jersey. If any of the last-named cousins should die before my hüsband and sister his or her share will descend to their issue, if no issue to their survivors.”

The funds in the hands of the petitioner, amounting to $10,455.02, represent the proceeds from the real estate which was sold after the death of Joseph Hampson and Lucinda Clarkson. Lucinda Clarkson died March 23d, 1911, and Joseph Hampson, as mentioned before, died in October, 1923. George Bowles died on or about January 27th, 1917, without issue, and Amelia Kilburn died on or about March 14th, 1909, leaving three children her surviving, Isaac B. Kilburn, Clara E. Kilburn and Mary J. Jennings. The third beneficiary, mentioned in paragraph six, Ellen Graves, is still living.

The substituted administrator is in doubt as to whom the intererst of George Bowles should pass. Its query is, Should the one-sixth which he held as a remainderman pass to- Ellen Graves, the only surviving legatee under paragraph six, or should it be divided, one-half of Bowles’ interest to pass to her and the other half to pass to the children of Amelia Kilburn, above enumerated? The answer to this question depends upon the meaning of the word “survivors.” Counsel for the petitioner has submitted a brief as amicus curies, and whose careful preparation has aided the court in determining this issue. In 37 Cyc. 628, the word “survivor” is defined as follows:

“A relative term which is dependent on context for meaning, which may be either a word of limitation of an estate [denoting the interest persons are to take], or may denote a class of persons; and, broadly speaking, includes all persons who outlive another, but in common parlance is universally applied only to members of a class oí persons; in its ordinary as well as legal signification, one who outlives another; one or two or more persons who lives after the other or others have deceased; in its natural and obvious meaning, not the person who shall survive a particular event, but when it is applied to a class of persons, and individuals of that clasis named, the. longest liver of those named.”

And on page 629 this language is used:

“The words in their natural import refer to the one who shall survive the other, and not to any particular event. Such words are construed literally if no contrary intention appears, and the burden of proof is upon the party seeking to do violence to the literal meaning.”

See, also, Prendergast v. Walsh, 58 N. J. Eq. 149; Stout v. Cook, 79 N. J. Eq. 573; Cuskaden v. Steelman, 88 N. J. Eq. 554.

.As pointed out by Vice-Chancellor Berry In re Collins, 4 N. J. Adv. R. (at p. 817) :

“* * * the intention of the testator must prevail, and that intention must be gathered from the four corners of the will.' All rules of construction are designed to determine that intention, and may be totally disregarded where their application would do violence to the plain intent of the testator, as disclosed by the language of the will. No rule of construction can be invariably applied to a certain word formula.”

My reading of the sixth paragraph is that .the application of the word “survivors” was intended in its literal sense. It follows, therefore, that Ellen Graves is entitled to George Bowles’ share under this paragraph, or one-third of the entire estate, and Isaac B. Kilburn, Clara E. Kilburn and Mary J. Jennings are entitled to one-eighteenth of the entire estate.

The distribution under the seventh clause is made more difficult by reason of the facts as they will appear. The five legatees under that clause, Thomas Warner, James Warner/ Charles Warner, Eliza Pettigrove and Mary Schofield, all predeceased the husband and sister of the testatrix. Thomas Warner died on or about February 9th, 1904, survived by four children, William H. Warner, Elizabeth Burke, Thomas C. Warner and Sadie H. Warner Brown. The said Sadie-died on or about September 25th, 1923, leaving no issue or-husband her surviving. James Warner died on or about May 28th, 1907, survived by five children, Benjamin D. Warner, Frederick Warner, Alfred W. Warner, Wallace Warr ner and Lucinda Jones, all of whom are still living. Charles Warner died in or about March, 1906, survived by four children, Jennie M. Hague, Ida A. Davies, Mary Stahle and Harriet Warner Kiersted; and the said Mary Stahle has since died intestate on or about August 7th, 1918, leaving no issue or husband surviving her. The said Harriet Warner Kiersted died in or about April, 1911, survived by a husband who died in dune, 1925, and two sons, Eobert Kiersted and Dudley Kiersted, who are still living. Eliza Pettigrove died-on or about November 21st, 1903, survived by a daughter, Maud Petrucelly. She also left her surviving issue of deceased children as follows: Ada Eliza Mueller, the daughter of Britain Pettigrove, son of Eliza Pettigrove, which son died in about 1886, and Edith J. McLauran, also known as Edith J. Wayne, James P. Petersen and Gertrude L. Wright, three children of Ada Peterson, daughter of Eliza Pettigrove, which daughter died about 1895. Maud Petrueeliy and the grandchildren of Eliza Pettigrove, above named, are still living, -and Mary Schofield died on or about February 19th, 1911, leaving her surviving two sons, Arthur Schofield and Charles Schofield, also Florence L. More-land, the daughter of a deceased son, Henry Schofield, who died about September, 3901. The son Arthur Schofield died about February 7th, 1913, unmarried, and the son Charles Schofield died about February 7th, 1912, leaving a widow, Ella M. Schofield, and nine children, viz., Ella W. Dunne, Charles Schofield, Ruth Schofield Sona, William Thomas Schofield, Mary Schofield, Lucy C. Schofield, Edith Schofield, Roy Schofield and Beulah Schofield, all of whom are still living. The said sons of Mary Sehofied died intestate.

Taking for the first proposition under paragraph seven of the will, a consideration of Thomas Warner’s interest. Upon his death in 1904, his one-tenth of the entire estate, as a remainderman, vested in his four children, share and share alike. Sadie H. Warner Brown, his daughter, died in September, 3923, and before the period of distribution. To whom will her interest pass? William H. Warner, JElizabeth Burke and Thomas C. Warner, brothers and sisters, claim as joint tenants. On the other hand, the legal representatives of the estate of Sadie H. Warner Brown, who died testate outside of New Jersey, may claim her interest in the bequest to her father as part of his decedent’s estate. Taking the view that the gift to Sadie H. Warner Brown is a substitutionary one, falling in a class fixed at the date of the death of her parent, the rule laid down in Redmond v. Gummere, 94 N. J. Eq. 219, is applicable, wherein Vice-Chancellor Buchanan used this language:

“This is a gift to a class, the ascertainment of which class is to be made at the death of the parent. The children surviving the deceased parent become immediately vested in the interest, in substitution for the parent. The gift, however, being to them as a class, without words of severance or any other indication of a contrary intent, they take as joint tenants, and, hence, with the right of survivorship.” Crane v. Bolles, 49 N. J. Eq. 373; Harris v. Tichenor, 28 N. J. Eq. 328.

There are no words of severance or an expression of intention in the will that will change the character of the gift from a bequest to a class. It follows, therefore, that the three surviving children will take as joint tenants as follows: William H. Warner, one-thirtieth of the entire estate; Elizabeth Burke, one-thirtieth of the entire estate; Thomas C. Warner, one-thirtieth of the entire estate.

There is no question as to the division of James Warner’s one-tenth interest in the estate. He predeceased the life tenants, leaving five children, all of whom are still living. The division of his interest will be as follows: Benjamin D. Warner, one-fiftieth of the entire estate; Frederick Warner, one-fiftieth; Alfred W. Warner, one-fiftieth; Wallace Warner, one-fiftieth; Lucinda Jones, one-fiftieth.

As mentioned before, Charles Warner died in 1906, survived by four children, two of whom, Harriet Warner Kiersted and Mary Stahle, have since died, Mrs. Kiersted leaving two children, Robert and Dudley Kiersted, and Mrs. Stahle without issue. Following the rule laid down by Vice-Chancellor Backes in Skinner v. Boyd, 130 Atl. Rep. 23, that a devise or bequest to issue and without qualification includes all descendants, and they share equally. See, also, Inglis v. McCook, 68 N. J. Eq. 27, and Dennis v. Dennis, 86 N. J. Eq. 423. In Security Trust Co. v. Lovett, 78 N. J. Eq. 445, this language is used: “The word issue, though in its popular sense is said to be children, is technically, and when not restrained by the context, co-extensive and synonymous with descendants, comprehending objects of every degree. And here the distribution is per capita, and not per stirpes.

Applying the settled law to the matter sub judice, Robert .Kiersted and Dudley Kiersted are entitled to distribution on a per capita basis. Tim one-tenth interest of Charles Warner will be distributed as follows: Jennie M. Hague, one-fortieth of the entire estate; Ada A. Davies, one-fortieth; Eobert Kiersted, one-fortieth; Dudley Kiersted, one-fortieth.

The question as to the distribution of the interest that would have passed to Eliza Pettigrove and Mary Schofield, under the seventh paragraph, had they survived the life tenant, is answered by the same reasoning and authorities referred to in discusisng the interest of Charles Warner. All of the descendants of the last-named remaindermen are entitled to a per capita distribution, as herein indicated, and referring to a prior recital as to the various descendants of Eliza Pettigrove and Mary Schofield, their respective interests of the entire estate will be divided as follows: Issue of Eliza Pettigrove—Maud Petrucelly, one-fiftieth of the entire estate; Ada Eliza Mueller, one-fiftieth; Edith J. Mc-Lauran (also known as Edith J. Wayne, one-fiftieth; James P. Petersen, one-fiftietli, and Gertrude L. Wright, one-fiftieth.

Issue of Mary Schofield—Florence L. Moreland, one one-hundredth of the entire estate; Ella W. Dunne, one one-hundredth; Charles Schofield, one one-hundredth; Euth Schofield Sona, one one-hundredth; William Thomas Schofield, one one-hundredth; Mary Schofield,, one one-hundredth; Lucy C. Schofield, one one-hundredth; Edith Schofield, one one-hundredth; Eoy Schofield, one one-hundredth, and Beulah Schofield, one one-hundredth.

Counsel fee to be fixed at the time of entering decree.'


author:
Charles E. Coebtn,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNA RYBAK, PETITIONER, v. BRUNSWICK LAUNDRY, INCORPORATED, RESPONDENT.
    On determination and dismissal.
    Eor the petitioner, Attorney Cahill.

    Eor the respondent, Richard W. Baker.

   The petitioner testified in her own behalf, and on behalf of the respondent, the bookkeeper of the company, Mrs. Charlotte Bojar, testified.

After hearing the testimony of both parties I find that the petitioner failed to sustain the burden of proving that she sustained an accident arising out of and in the course of her employment on April 1st, 1925, but that the evidence showed that she was not employed by the respondent on that date.

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

Charles E. Coebtn,

Deputy Commissioner.


author: Per Curiajyi-.

text:
    JAMES R. NUGENT, PROSECUTOR, v. JOHN H. SCOTT ET AL., RESPONDENTS. JAMES R. NUGENT, PROSECUTOR, v. STUART LINDSLEY, RESPONDENT.
    Submitted January 29, 1926
    Decided May 4, 1926
    Filed July 14, 1926.
    Taxes and Assessments—Tax Sales—Martin Act—Defendants Acquired Deed From City in 1909—Prosecutor Acquired Title in 1922—Defendants’ Proceedings Invalid Under Court Decision in Jacobus v. Cahill—Held, However, That After Sixteen Years, Writ of Certiorari Cannot Issue to Prosecutor— At Time Deeds Were Made Two Years Were the Limit— Act of 1925 Not Retroactive and Unavailable in This Case.
    On writ of certiorari.

    Before Justices Trenchard and Katzenbach.
    Eor the prosecutor, James R. Nugent, pro se.

    Eor the defendants Stuart Lindsley, Elorence E. Cahill and John Francis Cahill, Herbert Boggs.

   Per Curiajyi-.

Each of the above cases brings up to this court for review a deed made by the comptroller of the city of Newark to Elorence E. Cahill as the result of a sale of land for delinquent taxes, and the proceedings preliminary and subsequent to the sale from which the execution of the deed resulted.

The premises in each of the cases were sold by the compr troiler of the city of Newark at a public sale of lands for unpaid taxes, held May 28th, 1906, under the provisions of the statute commonly known and referred to as the “Martin act” (Pamph. L. 1886, p. 149) and the supplements and amendments thereto. Each tract was purchased at the saie by Florence E. Cahill. The purchaser received a certificate of sale for each of the premises. These certificates were duly acknowledged and delivered by the comptroller. Each bears date May 28th, 1906.’ About November 7th, 1907, the said Florence E. Cahill filed two petitions in the Circuit Court of Essex county pursuant to the statute praying for orders directing the comptroller to execute tax deeds to her for the premises. Upon these petitions proceedings were taken resulting in the making of two orders by the Circuit Court, dated December .19th, 1908, directing the comptroller of the city of Newark to make, execute and deliver to the said Florence E. Cahill, and her heirs and assigns forever, a deed for each of the tracts. On January 28th, 1909, the comptroller executed and delivered the two deeds bearing date on that day. They were both recorded on February 9th, 1909. On January 28th, 1909, the said Florence E. Cahill and her husband executed a deed conveying the two tracts in question with other lands to Stewart Lindsley, one of the respondents.

The prosecutor of'the writs of certiorari claims the premises in the first case under a deed from Christian M. May and husband, dated April 30th, 1925. In the second of the above cases the prosecutor claims an undivided interest in the premises by virtue of a deed made by Hattie Condit Smith and husband, dated June 21st, 1922. Between the date of the deeds made by the comptroller of the city of Newark to the said Florence E. Cahill and the date of the allowance of. the writs of certiorari in the above cases over sixteen years elapsed. The proceedings taken by Florence E. Cahill were under the authority of the case of Jacobus v. Cahill, 87 N. J. L. 562, invalid, because the premises were not described by metes and bounds in the proceedings had to acquire the deeds from the comptroller.

The question, however, involved in this case is whether or not, after a lapse of sixteen years, proceedings taken under tax sales can be questioned. We think not. In our opinion the writs were improvidently granted. Our reasons for this view are that under the Martin act it is expressly stipulated that no writ oí certiorari shall be allowed after the expiration of two years from the date of the execution of a deed made under the act. At the time the deeds of the comptroller of the city of Newark were delivered the statute concerning writs of certiorari provided that no writ of certiorari should be allowed to review any sale of land to enforce any assessment or tax unless such writ was allowed within three years of the date of the sale. By an amendment to this act (Pampk. L. 1915, p. 580) the time within which writs might issue was limited to eighteen months. The prosecutor contends that the 1925 amendment (Pamph. L. 1925, p. 77) of section 14 of the act relative to writs of certiorari permits the present proceedings. This subject has been considered in a ease between the same parties decided on May 4th, 1926, and reported in 4 N. J. Mis. R. 504. In this case it was held that the amendment of 1925 was not retroactive and did not warrant a proceeding of this character. In that case the writ was dismissed as having been improvidently issued. Eor the same reason the writs in the two cases above mentioned will be dismissed as having been improvidently issued, with costs.


text:
    JOHN R. FOUNTAIN v. FIRST NATIONAL BANK OF WRIGHTSTOWN.
    Decided July 26, 1926.
    Banks—'Securities Left for Safe Keeping—Plaintiff Left a Government Bond With Defendant as Security for a Loan— Loan was Paid but Bond Remained for Safe Keeping—Later, Another Loan was Made—Defendant's Cashier, Later Still, Stole the Bond—Plaintiff Claimed That Bond was Left as Security for Second Loan—Defendant Denied This and Called Cashier in Support of Its Claim—Judgment for Plaintiff Sustained on Ground That Jury Had Right to Believe Plaintiff Against Testimony of an Admitted Thief and the Official Record' in the Bank’s Books—Also Sustained on Ground That the Reasonableness of the Care Taken by the Defendant was a Jury Question and Its Verdict was Not Against the Weight of Evidence.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Palmer & Powell.

    Contra, Willis Bainbridge.

   Per Curiam.

This suit was brought to recover the value of a government bond deposited by the plaintiff in the defendant’s bank and stolen therefrom by the bank’s cashier. The trial resulted in a verdict in favor of the plaintiff, and the defendant was thereupon allowed the present rule.

The facts disclosed by the proofs were as follows:

While the plaintiff, who was a captain in the army, was stationed at Camp Diz, in the years 1921 and 1922, he purchased this bond through the bank, paid part of the money down, and left the bond with the bank as security for the payment of a promissory note which he gave for the balance of the purchase money. In cine course he paid oil the note, but left the bond in the hank for safekeeping. Subsequently, he borrowed more money from the bank on another note, and, as he testified at the trial, pledged this bond as collateral for the payment of the latter note. The defendant controverted this statement, claiming that the bond was merely left with it for safekeeping and not as collateral to the second note, and called the cashier who had stolen it to prove the fact. He testified that the transaction with relation to the second note was made between him, as cashier, and the plaintiff; that the bond was not pledged for the payment of the latter note, and that the transaction with relation to the second note was entered by him in the books of the company. In support of this testimony by the cashier the defendant offered its hooks, and they did not disclose that the bond had been pledged as collateral for the payment of this second note.

The verdict of the jury in favor of the plaintiff carries with it, by necessary inference, a finding that the bond had been pledged as collateral to secure the payment of the second note, for the court in its charge instructed them that unless they so found their verdict must be for the defendant hank, and the first ground upon which a new trial is asked is that this finding was against the weight of the evidence. We think not. The jury considered that the testimony of the plaintiff was entitled to belief as against that of an admitted thief, and the fact that the books of the hank failed to disclose that a pledge of the bond had been made they very properly considered of little importance, in view of the fact that the entry was made by the man who afterwards stole the bond.

It is further contended that, even if it be concluded that the bond was pledged to secure this note, the plaintiff was not entitled to recover its value from the hank, for the reason that there was nothing in the evidence to justify a finding by the j ury that the hank was guilty of negligence in failing to use proper precautions to protect the plaintiff against its loss by theft or otherwise. This matter was concededly one to be determined by the jury, and we think their determination that negligence on the part of the defendant bank existed was .justified by the proof. The obligation of the bank as obligee was to exercise reasonable care in the safekeeping of this bond, and reasonable care is that degree of care which a prudent business man would exercise in regard to his own property of a similar kind under similar circumstances. In the present case the testimony shows that the defendant bank insured all of its own securities against loss by theft or fire or otherwise, and this was a factor to be considered by the jury in determining whether the defendant had discharged itself of the obligation to use the degree of care that we have indicated for the protection of the plaintiff’s property. They found that such care had not been used, and we think they were justified in that finding.

The rule to show cause will be discharged.


text:
    BEATRICE HARRIS v. COAST CITIES RAILWAY COMPANY.
    Decided July 26, 1926.
    Negligence—Accident to Passenger of Trolley Car—Passenger Signaled to Leave Car—Plaintiff Claimed Car Came to Stop Then Started, Causing the Injury—Defendant Claimed Car Had Not Stopped, was Slowing Down and Plaintiff was Thrown Through Attempting to Alight While Car was in Motion—Judgment Found to Have Been Against Weight of Evidence.
    On defendant’s rule to show cause.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.

      For the rule, Charles E. Cook.

      Contra, Isaiah Mattack.

   Per Curiam.

The plaintiff', a young woman, under the age of twenty-one, was employed as a helper in the hospital at Spring Lake. She boarded an open car of the defendant company to ride to this destination. Her claim was that just before the car reached the point where she wished to alight she signaled to the conductor, and that he brought the car to a stop; that after the car had stopped she stepped down upon the running-board, and that while she was there the car suddenly started up, throwing her to the ground. The defendant’s case was that the car had not stopped, but was slowing down, when the accident occurred; that the plaintiff was standing on the running-board, and that she either attempted to step off or fell off while the car was still in motion. The jury rendered a verdict in favor of the plaintiff, awarding damages for the injuries which she received in the accident.

Our examination of the testimony sent up with this rule satisfies us that the finding of the jury that the accident occurred in the manner testified to by the plaintiff and her. witnesses (which is a necessary implication to be drawn from this verdict) is against the great weight of the evidence.

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


author: Kocher, Advisory Master

text:
    Essex County Orphans Court.
    In the matter of the probate of a certain paper-writing purporting to be the last will and testament of Emma Merkel, deceased.
    [Decided July 16th, 1926.]
    Wills—Probate—-W¡11 Prepared by a Person Not a Member of the Bar at Request of Husband of One of the Beneficiaries— Testator Afterward Sought to Change or Amend, and Asked an Acquaintance of Beneficiary to Assist Her—This Person, Knowing Testator Desired to Change, Deliberately Misled Her Into Thinking the Memorandum He Prepared Would Accomplish That Purpose—No Undue Influence Found, However, In Connection With the Will of January 21st, it is Admitted to Probate.
   Kocher, Advisory Master

(orally).

Emma Merkel, late of the city of Newark, died oil the 21st of February, 1926. On the 23d day of January, 1926, she .executed a paper-writing purporting to be her last will and testament, which was prepared by one Walter E. Pruden, who is not an attorney, but a friend of the O’Connors of many years’ standing. He was not acquainted with Mrs. Merkel.

Pruden testified that Mr. Patrick O’Connor, the husband of Annie O’Connor, one of the residuary legatees named in the will and not of kin with testator, gave him directions as to the provisions of the proposed will, and that he made a memorandum of the instructions so received, and consulted with his attorney in regard to the preparation of the will. As the result of this the will was prepared, and Mrs. Merkel, accompanied by Mr. Patrick O’Connor, came to his office for the purpose of executing the will.

It appears that Mrs. Merkel was sixty-seven years of age, and that she had been a nurse in a famity in Montclair for some years, caring for an invalid child. She, however, made her headquarters in a house owned by a Mrs. Winans, where she had a room. It may be fairly inferred from the testimony that she had a considerable quantity of personal effects, household furniture and the like, in her room in Mrs. Winans’ house, and that after the execution of the will it occurred to her that she wished to give to Mrs. Winans her personal effects contained in that room.

So far as the relations between Mrs. Merkel and the O’Connors were concerned, it was of long standing. The testimony is that she lived at her room in Winans’ house when she was not on duty as a nurse, and, as I recall the testimony, she took dinner with the O’Connors practically every Sunday night and was very friendly with them. Upon one of these Sunday evenings Mr. William J. Hardy was present. He is a distant relative of the O’Connors, and the testimony is that Mrs. Merkel, either during or after the meal, requested that he do something for her. They retired to the bedroom of an uncle, and Mrs. Merkel then told him that she wished to give to Mrs. Winans her personal effects, household furniture, and so forth, which were contained in her room at the Winans’ house. He thereupon prepared a paper wherein Mrs. Merkel expressed her wish that the person with whom she lived at the time of her death should receive all of her personal property.

The testimony is that Mr. Hardy knew of the execution of the will of the 23d of January, 1926, wherein his aunt (I think that is the relationship between them) largely participated, and he proceeded to carry out the wishes, or rather pretended to carry out the wishes, of Mrs. Merkel. His testimony in regard to the execution of this paper, which is in effect a codicil to the will of January 23d, 1926, is very significant, and I am going to read the testimony from the record.

It appears on page 20 of the record—

“Q. And do you know the legal requirements for the execution of a will? A. Yes, I worked with a notary public.
“Q. What are the legal requirements for the execution of a will? A. There is a long form that has to be drawn up.
“Q. I am speaking about the execution itself now. A. I know that two people have to be present in the room, present at the time the will is signed.
“Q. You knew that? A. Yes, sir.
“Q. Then why didn’t you have two people present in the room at the time? A. I did not want it to be legal.
“Q. You did not want it to be legal? A. I knew it would not be legal. * * *
>:Q. You say you knew two witnesses should be present at the time testatrix signed? A. Yes, sir.
“Q. And you saw to it that two people were not present? A. Yes, sir.
“Q. Then you deliberately perpetrated a fraud? A. No, sir, I would not say that.
“Q. What would you say? A. I realized it did not amount to much.
“Q. But Mrs. Merkel wanted it done. A. I knew she intended the furniture.
“Q. That does not matter, she wanted it done. A. I was not going to be mixed up in it.
“Q. But you were mixed up in it, you were deliberately doing it in such a manner that you knew it would not be legal? A. Yes, sir.
“Q. And you deliberately perpetrated a fraud? A. Yes, sir.
“Q. You did that deliberately? A. Yes, sir.”

Later on, the witness testified that at the time of the execution of this paper-writing that he did not know the requisites of a legal will, in spite of the fact of his statement that he deliberately executed the paper in question in such a manner that he knew it would be invalid. Eurther on he said he did not think it was a will at all, but understood it was a note to the executor of the will. I might add the paper-writing in question was executed at Mrs. Merkel’s request in duplicate, and that the two copies in separate envelopes were produced in the surrogate’s office for probate with the endorsement thereon in the writing of Hardy, “This is Emma Merkel’s will and should not be opened until after death.”

The circumstances attending the execution of this paper-writing were, as testified to by both of the witnesses thereto, that it was prepared by Hardy, signed by Mrs. Merkel and by Hardy, and thereafter signed by John H. O’Connor, a relative of the principal beneficiary, who testified that he was not present at the time either Mrs. Merkel or Hardy signed it; that he was down in the cellar chopping wood; that Hardy came to him and requested him to come upstairs and do something for Mrs. Merkel; that he walked into the room, without a word to anybody, and that, at Mr. Hardy’s request, he signed his name and walked out of the room again, without a word to anybody. This story reeks with fraud and perjury from beginning to end. There is no question whatever as to what Mrs. Merkel’s intentions were. She intended that Mrs. Winans should have her personal effects in her room, while the paper-writing in question bequeaths to her Mrs. Merkel’s personal property.

Hardy testifies that he did not realize, until the day after the execution of the will, that the words "personal property” meant more that Mrs. Merkel’s furniture, &c., but that he made no attempt whatever to make any correction. The testimony of Hardy and of O’Connor indicated their knowledge that if this paper were admitted to probate it would entirely cut off Annie O’Connor is extremely significant. Beyond that I do not care to comment at this time.

The situation is one of such glaring fraud that I am unable to recall a decision in this state disclosing a similar state of facts. Our decisions, however, require that in the execution of a will the statutory provisions must be strictly complied with. While 1 have been unable to recall the ease of a will or codicil deliberately executed in such a manner that it would be invalid as this was, I do, however, recollect a case of the revocation of a will procured by fraud. In Sickle’s Case, 63 N. J. Eq. 233, 238; affirmed, 64 N. J. Eq. 791, the testator, having thrown the will into the fire, a relative snatched it up, and then, upon the request of the testator to deliver it back to him, pretended to throw it into the fire, but did not do so. The will was held unrevoked and entitled to probate, the reason being that the statute expressly provides the method of revocation of a will, exactly as it expressly provides for the execution of a will. In this ease we have the case of an attempt to revoke a will prevented by fraud. In the case at bar we have the case of an attempt to make a codicil frustrated by fraud. The result is that the codicil to the will, not having been executed in accordance with the statute, must be denied probate.

It is abundantly proven that the will of January 23d, 1926, was executed as prescribed by law. There is no contention that I recall to the contrary.

Mrs. Merkel was a woman of megre education. ' She could write her name, but her education apparently went little further than that. She had been employed ever since the death of her husband, some seven or eight years prior to her death, and had accumulated a considerable amount of money, the amount of which is not in evidence. At any rate, she had four or five bank accounts. Apparently, she relied upon one May Lavino for assistance in regard to her financial affairs. It was to her that she gave moneys to be deposited in the various banks, and it was to her that she went for assistance in regard to her financial affairs. May Lavino is-not mentioned in the will.

It is urged that the will is invalid on the ground of undue influence.

Undue influence has been defined to be such influence as dominates the will of the testator, and produces a testamentary disposition which the testator would not .have made if not coerced by such influence. Byrnes v. Gibson, 68 Atl. Rep. 756. It must be such as to destroy the free agency of the testator and amount to moral or physical coercion. It must be proved, moreover, that the act done was the result of coercion. There must be a control exercised over the mind of the testator or an importunity practiced which he could not resist or to which he yielded for the sake of peace. There are many cases in this state sustaining these principles; typical is the case of In re Tunison’s Will, 83 N. J. Eq. 277; affirmed, 93 Atl. Rep. 1087. But it is contended that the circumstances surrounding the execution of this will are suspicious. It has been held, however, that suspicious circumstances, susceptible of an interpretation which favors honesty, are insufficient to establish undue influence. This principle is stated in many cases, of which In re Gleespin, 26 N. J. Eq. 523, is a type.

Recurring now to the facts in this case. Testatrix was, to all intents and purposes, alone in the world, with the exception of her brother, who saw her occasionally. An intimacy had grown up between her and the O’Connors, and the O’Connors apparently treated her with great kindness. She took her meals with them constantly, and, as I adverted to heretofore, she was entertained at dinner, if not regularly, practically every Sunday. There are further stories of parties given by the O’Connors for her benefit, so that it is evident that a friendship grew up between them.

Now, it is well settled that the influence of affection and kind offices, unconnected with fraud or contrivance, though it induces gratitude and testamentary recompense, is not undue. The cases supporting this theory are so voluminous that I will content myself by citing In re Eatley’s Will, 82 N. J. Eq. 591.

While it is true that the execution of the will was brought about by the husband of Mrs. O’Connor, one of the favored beneficiaries therein mentioned, it is settled that the legal presumption is always in favor of a will, and one who contests' its validity on the ground that it was the product of undue influence, must primarily establish that such influence existed as is called undue. In re Craft’s Estate, 85 N. J. Eq. 125.

Whether in any view of the case undue influence was exerted upon the testatrix must be determined upon the facts. It is not a presumption, but a conclusion, and the mere possession of influence and opportunity and motive to exercise it affords no presumption of undue influence. It must appear either directly, or be justified from facts proven, that the influence was exerted and operated to dominate the testatrix and to coerce her to make a disposition of her property which she would not otherwise have made. The cases upon this subject are voluminous, and I will content myself with citing the case of In re Anastasia Davis, 78 N. J. Eq. 617.

But it is contended that the fact that the husband of Mrs. O’Connor gave the directions in regard to the execution of the will, of itself shifts the burden of proof and requires the proponent to prove the lack of undue influence. The general rule is that the party alleging fraud or undue influence must prove it either directly or by establishing such circumstances as will warrant a presumption against the instrument which, in the absence of affirmative evidence showing the paper was the voluntary act of the testatrix, must control as a conclusion of facts. The burden is upon the party claiming the will to have been the result of undue influence, to establish, not only that such influence existed, but that it produced a testamentary disposition which the testatrix would not have made had she not been coerced.

In the very recent case of In re Young's Estate, 90 N. J. Eq. 286, it was held that a testator has the right to the aid of any person she may think proper to select to aid her in preparing her will, and if -she exercises that right, without improper influence, though she selects a person whom she intends to make one of her beneficiaries, that fact, in the absence of evidence showing an abuse of confidence, is no reason why probate should be denied of the will.

Coming now to the facts in the ease under consideration, the testimony is barren of the slightest evidence showing that the O’Connors exercised any influence of any kind or character upon the testatrix, or that confidential relations ■existed between them. If there was a person standing in the confidential relationship to the testatrix it was May Lavipo, who is not mentioned in the will at all. That being so, T am constrained to advise a decree admitting the will of January 23d, 1926, to probate. •


author: Peb Cubiam.

text:
    ANTONY PUMO ET AL. v. THE MAYOR AND COUNCIL OF FORT LEE ET AL.
    Decided July 26, 1926.
    Zoning—Large Apartment-House in Restricted Territory—Six Reasons Submitted, Four of Which Were Unsupported by Evidence—One was the Conflict With Zoning Ordinance, Another was the Pendency of a Chancery Suit to Restrain Building Because of Neighborhood Restrictions—Held, Case Within Adjudicated Cases on Zoning, and That the Chancery Suit Cannot Affect the Duty of Building Department to Give Permit.
    On mandamus.

    Before G-ummebe, Chief Justice, and Justices Kalisch and Campbell.
    For the relators, Leon Abbett.

    For the defendants, Mackay & Mackay.

   Peb Cubiam.

The relators applied to the building inspector of the borough of Fort Lee for a permit to erect a five-story apartment-house upon their plot of land located in what is called the palisades section of the borough, with accommodations for sixty families, at the proximate cost of $190,000.

The permit was refused; the sole ground of refusal, so far as the record shows, being that the zoning ordinance of the borough prohibited the erection of buildings of this size and character in that part of the borough where the relator’s lot was located. An alternative writ was allowed, and the defendants assigned, in their return thereto, the following reasons as justifying the refusal to grant the permit:

1. That the fire department of Fort Lee is not large enough to give proper fire protection to a building of this size and character.

2. That the sewer in the neighborhood is not large enough to take care of the sewage from such a building.

3. That the school facilities are not sufficient to care for any great number of additional families.

4. That the building would bring an undesirable class of residents into the borough.

5. That the building is prohibited by the zoning ordinance of the borough, and

6. That there is a suit pending in the Court of Chancery in which the complainants, who owned property in the neighborhood, are attempting to enjoin the erection of this building by the relators because it violates certain neighborhood restrictions.

No one of these reasons, except the fifth and sixth, is supported by any evidence exhibited in the agreed state of facts; they may, therefore, be dismissed from consideration. As to number 5, it is enough to point out in disposing of it that the earlier decisions, both of the Court of Errors and Appeals and the Supreme Court, have condemned it as a justification for refusing to issue a building permit.

As to number 6, the pendency of the Chancery suit affords no ground for the municipal action. Whether the erection of this building would be a violation of neighborhood restrictions is a matter of no concern to the municipality. The only parties interested in their éxistence or enforcement except the relators, so far as the present case discloses, are the complainants in the Chancery suit, who are seeking to enforce the alleged restrictions. They may do this if they are valid, or may'waive their benefit if they see fit to do so. The granting of a permit by the municipality cannot operate to deprive them of their right to enforce the restrictions, if such right exists; and the erection of the building in violation of the restrictions, even although a municipal permit should be granted, would be at the risk of the owner, and it would be subject to removal by him if the question of the existence of the restrictions should be finally adjudicated against him in the Chancery proceeding.

Eor the reasons indicated we conclude that a peremptory writ should issue, and it will be so ordered.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY v. MICHAEL CORTESE.
    Decided July 26, 1926.
    Crimes—Concealed Weapons—Defendant Relied Upon a Permit Which He Claimed was in Force—Permit was Issued Under Act of 1922 Requiring Recording in County Clerk’s Office to Make it Valid After Ten Days—No Proof of Such Recording Presented—Judgment Affirmed.
    On error to the Essex Special Sessions.
    Before Gummebe, Chiee Justice, and Justices Kalisch and Campbell.
    Eor the plaintiff in error, Harold Simandl.

    Eor the state, John 0. Bigelow, prosecutor of the pleas.
   Pee Cueiam.

The defendant was convicted upon an indictment charging him with carrying a pistol concealed upon his person, in violation of the statute of 1924. The only ground upon which that conviction is sought to be reversed is that the proofs conclusively showed that the defendant had not violated the statute in question, but that, on the contrary, he had at the time of his arrest a valid permit to carry a pistol, which was then in force. He produced in evidence a.t the trial in support of this contention a permit which was undated, but which, as he testified, was issued to him on February 11th, 1924, pursuant to the authority conferred by the statute of 1922, and which was signed by the mayor of the city of Newark, and he asserts that this permit was not only valid at the time it was issued, but that it remained valid during the continuance of the time specified therein (which had not expired at the time of his arrest), notwithstanding the enactment of the statute of 1924.

I may be conceded that, if the permit was valid whet, issued, it was ■ not rendered void by the later statute. Its validity, however, was not made to appear by the. proofs. The act of 1922, under which it purports to have been granted, provides that a permit issued thereunder shall become void at the expiration of ten days after its issuance unless during that period it is recorded in the office of the county clerk. At the foot of the permit, upon which the plaintiff in error relies, and which was offered in evidence by him, appears the following: “To be recorded in the county clerk’s office within ten days after granting; otherwise, it is of no effect.” -This has the name of John G. Scott, county clerk, appended to it. Assuming the signature to this statement to be genuine, the statement itself is a mere notification to the holder of the permit as to what he must do in order to have it continue to be valid at the expiration of ten days after its issuance. It does not purport to certify that the permit was recorded in the office of the county clerk within ten days after its granting, or at any other time. The obligation rested upon the defendant, in the absence of any certificate showing the record of the permit by the county clerk, to prove the fact of such record by other evidence; for the permit became void under the statute at the expiration of ten days after its issuance unless the condition of the statute (i. e., that it be recorded within that period) was complied with by him, and such compliance could not be presumed in the absence of proof upon this point.

The judgment under review will be affirmed.


author: Pee Curiam.

text:
    PAUL HILBIG v. NATIONAL ASBESTOS MANUFACTURING COMPANY.
    Decided July 26, 1926.
    Contract—Salesman—Commission on Sales—Salesman Claimed That He was Entitled to Commissions on all Sales in His Territory, Whether Procured by Him or Not—Account was Stated by a Referee—Defendant Asked for Reversal on Ground That Court Refused to Send Case Back to Referee to Make it Conform to Defendant's Contention That Commissions Were Payable Only on Sales Actually Made by Salesman—Held, That it Would be Error to Permit Proof of a Broader Contract Than That Averred in Complaint, but That the Case Before Court Does Not Show That Referee Allowed Commissions Except on Sales by Salesman—The Account as Stated by the Referee is Not Before the Court in the State of the Case, Accordingly, Judgment Must be Affirmed.
    On appeal from the Hudson Common Pleas.
    Before Gummere, Chief Justice, and Justices KAlisch and Campbell.
    For the appellant, John Milton.

    For the respondent, Thomas J. Brogan.

   Pee Curiam.

The plaintiff entered into the employment of the defendant as a traveling salesman, under a contract by the terms, of which, as set out in his complaint, he was to be paid a salary of $60 per week, and in addition was to receive a commission of two per cent, upon all sales of the defendant’s product effected by him in excess of $200,000 in any one year. The present suit is based upon his claim that during the year 1920 he had obtained orders for sales of the defendant’s merchandise amounting in the aggregate to over $340,000, and that, notwithstanding this fact, the defendant refused to pay him a commission on the excess over $200,000. By consent of the parties, the case, when it was moved for trial, was sent to a referee to state an account between them, and the referee found in favor of the plaintiff’s claim for commissions to' the extent of $2,793. When the report containing this finding was returned to court, counsel for defendant moved to have it sent back to the referee because of the fact that he had allowed, over objection, proof by the plaintiff that, under the contract between the parties, he was to have credit for all sales made in the territory allotted to him, whether he procured them or not, the objection to the testimony being based on the fact that no such agreement was contained in the contract set out in the complaint in the cause. The court refused to send the matter back to- th.e referee, and directed judgment upon the latter’s report. Erom the judgment entered pursuant to- this direction the defendant has taken an appeal, and the refusal of the trial court io refer the case back to the referee is the sole ground upon which it is rested.

Assuming that the procedure attempted to b(3 followed by counsel for the defendant was proper, we do not consider that the refusal to send the ease back to- the referee justifies a reversal. It was, of course, error for the referee to permit proof of a contract broader than that which was averred in the complaint and admitted by tire answer; but that error, so far as the case before us sho-ws, was- not harmful, because it does not appear that the referee allowed commissions on any sales except those o-f which the plaintiff was the procuring cause. Whether the fact is to the contrary can only be ascertained by an examination of the account stated by the referee and annexed to his report, and that account is not contained in the state of the case as sent up- to us for review.

The judgment appealed from will be affirmed.


text:
    RUTH GOLDSTEIN, PLAINTIFF, v. NORTHWESTERN NATIONAL INSURANCE COMPANY, ETC., DEFENDANT.
    Two eases, Nos. 94 and 95, January term, 1926.
    Argued January 22d, 1926
    Decided May 4, 1926
    Filed July 26, 1926.
    Insurance—Fire—Combustible Materials on Property in Violation of Policy Contract-Court Charged That Its and “Keep” Meant Something Habitually Kept in Stock or for Sale— Jury’s Verdict for Plaintiff Held to Have Been Contrary to Weight of Evidence—Defendant’s Contention That Court Erred in Refusing to Charge That Plaintiff’s Failure to Produce Her Husband as a Witness was Because His Testimony Would Not Have Been Favorable to the Plaintiff is Unsound —Refusal to Admit in Evidence Proof of Husband’s Conviction of Violation of Laws Against Keeping Explosives.
    On defendant’s rule to show cause.
    Before Justices Trenciiard, Katzenbacii and Lloyd.
    Eor the defendant, McCarter & English (Conover English, of counsel).
    Eor the plaintiff, Samuel H. Hollander.

   Pee Curiam.

The above cases are two actions at law instituted on two policies of fire insurance identical in form. The same party is the plaintiff in each case. The actions were tried together at the Circuit. The plaintiff obtained a judgment in each case for the sum of $614.40, with interest. Each defendant obtained a rule to show cause. The reasons filed by each of the defendants are identical. The cases were argued together. They will be disposed of together.

The policies were originally issued to Joseph Goldstein. He assigned them to his wife, the plaintiff, prior to the fire. On October 21st, 1923, the property covered by the policies was damaged by fire. Proofs of loss were delivered to the companies. The companies desired to investigate the fire. A non-waiver agreement was executed. This agreement provided that any action taken by the insurance companies in investigating the cause of the fire, or ascertaining the amount of the damage to the property, should not waive or invalidate any of the conditions of the policy. The defendants claim that the policies had been made void because there had been stored upon the premises inflammable materials prohibited by the policies and in excess of the quantities permitted. The policies contained the following clause: “This policy shall be void if camphene, benzine, naphtha or other chemical oils or burning fluids shall be kept or used by the insured on the premises insured.” The permit attached to the policy provided as follows: “Permission is given to keep on hand not exceeding one quart in all per family of gasoline, benzine or naphtha for household use, but the use thereof for cooking, heating or lighting is prohibited without special permission endorsed on this policy.”

Mrs. Goldstein instituted the actions in the Supreme Court of this state, with the venue laid in Essex- county, where she resided at the time the suits were commenced. The fire took place in the city of Springfield, Massachusetts. After the fire, James Loomis, a fire inspector of the Massachusetts state police, made an examination. Mr. Loomis testified at the trial. He said that the fire occurred about three-thirty p. m. He arrived at the scene of the fire about four-thirty p. m. The firemen were still there. He went up the front stairs and saw the place where the fire had evidently started. It was on th'e landing at the top of the stairs. He then went through the dining-room and the kitchen to a rear veranda where he saw a ten-gallon wooden keg which contained gasoline. He took a sample of the contents of the keg. He produced in court a jar which contained the sample taken from the keg. He testified that the keg was, apparently, two-thirds full. The keg had not been burned. On the third floor he found twenty-five gallon tins which had contained alcohol. In one room he found two or three gallon tins. One contained alcohol. In another room he saw two one-gallon glass jugs which contained, liquor. He said it smelled like whiskey, and that he was qualified to judge. Mrs. Gold-stein at first denied she had ever seen these containers. Subsequently, she admitted that some alcohol had been brought into the house for use in bathing the children when they had colds. Mr. Goldstein was a dealer in drugs and flavoring extracts in which alcohol was used. Mrs. Goldstein said that she had put the containers in the children’s play room because there was no other place to put them. She denied that there was any alcohol in the house, and testified that she never saw the barrel which the state inspector found on the back porch. She had no knowledge of any gasoline or whiskey in the house.

The trial court left to the jury the question as to whether the policy had been voided by the presence of alcohol or gasoline upon the premises. The court construed the word “keep” in the policy as something habitually kept in stock or for sale, and said that the policies would not be voided by the mere temporary presence of such articles, but would be voided if they were allowed upon the premises with some degree of permanency. The jury by its verdicts decided this question adversely to the contention of the defendants. We consider that upon this branch of the ease the verdicts are contrary to the weight of the evidence.

The next contention of the defendants is that the court erred in not charging the ninth request of the defendants, which read as follows: “The jury have the right to infer from the fact that the husband of the plaintiff is not produced as a witness by her; that his testimony, if he had been produced, would have been favorable to the plaintiff’s case.” In refusing to charge this request we think the trial judge ruled correctly. The request did not embody the fact that the plaintiff had testified that her husband was traveling and that she had been unable to get in touch with him. The request, therefore, omitted in its statement of facts relevant testimony which the plaintiff was entitled to have embodied in the request.

The next point which the defendants urge is that the trial judge improperly admitted the testimony of an attorney-at-law of Massachusetts, George A. Bacon, who testified that he knew a Mr. McCoyt, who was an agent of the insurance companies; that McCoyt said that he and Mr. Goldstein had agreed to a settlement, and that McCoyt wanted to know if it was all right to settle with Mrs. Goldstein or with his (Bacon’s) office. Mr. Bacon said that this had taken place after the non-waiver agreement had been made and in the presence of Mrs. Goldstein. The defendants contend that, in view of the non-waiver agreement, this testimony was inadmissible. The non-waiver agreement was limited to the investigation of the cause of fire and the amount of damage to the property. As McCoyt’s testimony related to neither of these matters, we think it was admissible.

The trial judge refused to admit in evidence proof of the conviction of Joseph Goldstein for violation of the laws of Massachusetts with respect to the keeping and use of explosives or inflammable fluids. We think this ruling correct. Joseph Goldstein was not a party to the present suit. His conviction could not be introduced in actions in which he was not directly interested.

As we have reached the conclusion that the question as to the keeping of gasoline and alcohol upon the premises was decided by the jury contrary to the great weight of the evidence, the rules to show cause will be made absolute.


text:
    RICHARD STEIGER v. JOHN COSGROVE.
    Decided July 26, 1926.
    Negligence—Motor Vehicle Accident—Release Executed by Plaintiff After Accident—Suit Subsequently Brought on Ground That Release was Procured Through Fraud and Misrepresentation—Court Left Question of Fraud to Jury, Which Found for Plaintiff—Held, Verdict Against Great Preponderance of Evidence.
    On defendant’s rule to show cause.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Mark Townsend, Jr.

      Contra, William A. Kavanagh.

   Pee Cueiam.

The defendant seeks by this rule to have set aside a verdict rendered against him in a suit brought by the plaintiff to recover compensation for injuries received by the latter when crossing Washington street, in Hoboken, where he was run down by an automobile of the defendant.

The defendant set up in his answer, among other matters, a release from liability for this action, executed to him by the plaintiff some two months after the accident occurred. The plaintiff admitted signing the release, but claimed that it was obtained from him through fraud and misrepresentation on the part of the defendant’s agent, and that he was led to believe that it was merely a receipt for temporary financial relief advanced to the plaintiff by the defendant. The court left it to the jury to determine whether the release was or was not obtained through fraud, and on this question it found in favor of the plaintiff.

Our examination of the proofs leads us to the conclusion that this finding was in the face of the great preponderance of the evidence; that, in fact, the release was read over to the plaintiff and explained to him before signing; that he fully understood its purport when he signed it, and that he then intended to be hound by it. • .

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


text:
    JOHN J. STEVENSON v. ATLANTIC CITY REAL ESTATE BOARD.
    Decided July 26, 1926.
    Corporations—Membership—By-laws Provided That an Arbitration Board Should Determine Differences Between Members —in Present Case an Arbitration Board Undertook to Determine a Difference Existing Between a Member and a Nonmember—Held, That Corporation’s Act in Expelling Member Upon the Findings of Arbitration Board was Ultra Vires and Void—Peremptory Writ of Mandamus to Restore Member Allowed.
    On mandamus. On demurrer to alternative writ.
    Before Gummere, Chief Justice, and Justices Kvuism and Campbell.
    Eor the relator, Thompson Hanstein.

    Eor the respondent, Bolte, Sooy & Gill.

   Per Curiam.

The purpose of the present proceeding is to compel the Atlantic City real estate board to reinstate the relator, Stevenson, to membership in that body, he having originally been a member thereof, but having been, as he claims, wrongfully expelled therefrom.

The material facts disclosed by the record before us are as follows: A by-law of the board provides that, when any .differences arise between members thereof, there shall be a hearing thereon before a committee of arbitration selected from the membership of the body, and that the findings of this committee with relation to such differences shall be binding upon the members involved therein. In the present ease there was a controversy between Stevenson and one Roney, another member of the hoard, with relation to the commissions received by Roney from a man named Shenkman on a sale of the latter’s property; Roney’s claim being that he was the procurer of the sale, and as such entitled to ail commissions resulting therefrom, while Stevenson’s claim was that, by virtue of a pre-existing agreement with Shenkman he was entitled to share in the commission, even if Roney had been the procuring cause of such sale. This matter was heard before an arbitration committee and was decided in favor of Roney; that is, the committee held that Roney was entitled to the whole of the commission. It further decided that Stevenson had no claim against Shenkman arising out of the transaction. Notwithstanding this latter finding of the committee, Stevenson brought suit against Shenkman to compel him to pay him the amount of his claim under the agreement between them, and thereupon the defendant board expelled him from membership because of his action in instituting such suit.

We are unable to perceive from a reading of the by-law anything showing that the defendant hoard or its arbitration committee had any jurisdiction over the matter of the validity of the relator’s claim against Shenkman. The latter was not a party to the. arbitration, was not a member of the board, and was not affected by the decision of the arbitration committee. The by-law, as we construe it, limits the power of the arbitration committee to the determination of differences between members of the board; tod, consequently, when the committee undertook to go outside of the power thus conferred, and assumed to settle matters in difference between a member and an outsider, its action to that extent was ultra vires and void.

We conclude, therefore, that the expulsion of the relator from membership in the board for violating a finding of the arbitration committee, in a matter over which it had no jurisdiction, was without legal justification, and that the relator is entitled to a peremptory writ, commanding the respondent to restore him to membership therein.


text:
    STATE OF NEW JERSEY v. JOHN GARNER.
    Decided July 26, 1926.
    Crimes—Incest—Reversal Asked on Account of Nature of Evl- . dence Admitted and Nature of Evidence Refused—Conviction Affirmed.
    On error to the Morris Quarter Sessions.
    Before' Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the plaintiff in error, Oliver K. Day.

    Eor the state, Albert H. Holland, prosecutor of the pleas.
   Per Curiam.

The defendant was convicted upon an indictment charging him with incest with his daughter Lupille, who was fourteen years of age at the time of the alleged commission of the offense. The trial resulted in his conviction, and he has sued out the present writ of error to review the valadity thereof.

The first ground upon which we are asked to reverse the conviction is that the trial court erred in overruling the following question put to a sister of Lucille Gamer and also a daughter of the defendant: “Did you tell the grand jury that you slept with your father on March 29th ?” The witness was called by the state and the question was asked upon cross-examination, she having testified on her direct examination that she had on that night and on other occasions slept in the same bed with her father. It is conceded before us by counsel for the defendant that the subject-matter of the question had nothing to do with the matter in issue, but he contends that it was proper for the purpose of impeaching the credit of the witness. He stated at the trial that this was the purpose in asking the question, but at the same time informed the trial court that he had no intention of calling a member of the grand jury to contradict the witness if she answered the question in the affirmative. In this situation such an answer to the question could not have tended to discredit the witness, for to do this it would have been necessary to have shown that it was untrue.

The next ground of reversal argued challenges the action of the court in permitting the prosecutor of the pleas to ask one Sturgis, a witness produced by the defendant, who had been called to testify to the reputation of the latter, and who had staled that it was good, the following question: “Now, Mr. Sturgis, if he was sleeping with his two daughters, his two girls, would }'ou say his reputation was very good ?” Whether this question was proper on cross-examination is not necessary for us to consider, for it was not answered by the witness either one way or the other; and so, even if the admission of the question be assumed to have been improper, the action of the trial court was thus rendered harmless.

Thirdly, and lastly, it is argued that the court improperly permitted the sanie witness to be asked by the prosecutor the following question: “And these girls never made any complaint direct to you ?” The answer was in the negative, and, if the question was objectionable, it was rendered non-injurious to the defendant by the answer given to it.

We find nothing meritorious in the reasons upon which a reversal is asked, and the judgment under review will be affirmed.