text:
    J. GEORGE COLE, PROSECUTOR, v. ERWIN E. MARSHALL, JUDGE OF THE COURT OF COMMON PLEAS OF MERCER COUNTY, DEFENDANT.
    Argued January term, 1928
    Decided July 2, 1928.
    For the prosecutor, Joseph H. Edgar.

    For the defendant, Harry Heher.

   Per Curiam.

This certiorari reviews the action of the judge of the Mercer Common Pleas in dismissing the prosecutor, without charges or hearing, from the position as assistant probation officer.

The prosecutor was appointed under the Civil Service act for a probationary period of three months, at the end of which time he was notified that he would not receive the permanent appointment, and that his services were no longer required.

It is stipulated that the prosecutor “during such probationary period of service * * * demonstrated that he did not possess the qualifications and ability or business capacity to discharge the duties of said position.”

The prosecutor was an honorably discharged “World War” veteran, and the only point involved is whether the Soldiers' Tenure of Office act changes or supersedes the requirements of the Civil Service act. We have concluded that the only appointment which the relator received was a probationary one for three months. As that expired by its own limitations, he was not removed from office. All that he can now complain of is that he was not at the end of the probationary period of appointment absolutely appointed, and that the claim, in our judgment, is insubstantial.

The writ will therefore be dismissed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ANNA V. NAGENGAST, PROSECUTOR, v. BOARD OF EDUCATION OF THE CITY OF BAYONNE, DEFENDANT.
    Argued January term, 1928
    Decided July 2, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Brenner & Kresch.

    For the defendant, Benny & Cruden.

   Per Curiam.

Eor the reason stated in the opinion filed in number 295, this term, involving substantially the same question, the writ in this ease will be dismissed.


text:
    FRANK J. LISCHKE, APPELLEE, v. ALFRED MICHAELS, APPELLANT.
    Argued January term, 1928
    Decided July 2, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, John W. Ockford.

    For the appellee, Philip W. Grece.

   Per Curiam.

This action wa.s tried in the First District Court of Jersey City, without a jury, and judgment was rendered for the plaintiff for $281.

The action was for property damage sustained in an automobile collision at two-thirty A. M. on the 18th day of June, 1922, due to the alleged negligence of the defendant in driving his car into the plaintiff’s car, while the latter car was parked on Central avenue near Charles street, in Jersey City.

The defendant’s contention is that there was no evidence to sustain the' verdict. This we find not to be so. The court and a jury could find from the evidence that the plaintiff’s car was properly parked and lighted; that the defendant drove his car at fifteen miles an hour within the city limits on a rainy, foggy night, and that the defendant admitted that he had been drinking on that occasion. The facts and circumstances thus elicited presented a jury question, and the judgment rendered thereon we observe no valid legal reason to disturb.

The judgment will be affirmed.


text:
    LUTHER S. CADUGAN, PROSECUTOR, v. BOARD OF EDUCATION OF THE CITY OF BAYONNE, DEFENDANT.
    Argued January term, 1928
    Decided July 2, 1928.
    Before Justices Pabkee, Mintubn aud Campbell.
    For the prosecutor, Brenner & Kresch.

    For the defendant, Benny & Cruden.

   Per Curiam.

The prosecutor was appointed by the defendant foreman of laborers for the term of two years from May 24th, 1923. On February 19th, 1925, the board passed a resolution reciting that inasmuch as the number of laborers had been reduced, there remained no necessity for the employment of a foreman, and the position was therefore abolished.

The prosecutor attacks the good faith of this action, and states in his deposition that there were more laborers employed at the time of his dismissal than at any previous time during his employment; that another was appointed to his position at an increased salary; that threats and promises were made in order to induce his wife to resign from membership in the board.

The prosecutor contends that the School law gives the board power to employ all necessary officers and employes, but is silent as to the term of employment. As the board is required to reorganize annually, employes manifestly could only be hired for one year, in the absence of specific legislation otherwise.

The respondent claims that the threats and inducements made to force the resignation of the prosecutor’s wife as a member of the board, if any, were made by strangers to the board, and, therefore, could not bind the board or be chargeable to it.

The respondent also contends that the prosecutor is guilty of laches in that the resolution of dismissal was passed.February 19th, 1925, and the writ was allowed May 7th, 1926. An appeal was taken to the commisioner of education, November 4th, 1925, and a decision was rendered December 18th, 1925. The commissioner held that he had no jurisdiction, as the School law gave to the prosecutor no tenure of office, and that the proper remedy was an action for breach of contract. The action thus suggested was then instituted, and notice to dismiss was given by the respondent on the ground that no action would lie until the resolution was set aside. This writ was then applied for and allowed.

The respondent assigns other defenses to the proceeding, but it is unnecessary to discuss them here further than to observe that while the power of the board to discharge, upon the ground asserted, may be questioned, that contention is not presented by any reason assigned in the record, and is therefore not before us. Rahway v. Board of Health, 80 N. J. L. 166; Suburban Land Co. v. Valisburgh, 68 Id. 311.

The writ will therefore be dismissed.


text:
    PERCY LIPMAN, PROSECUTOR, v. BOARD OF EDUCATION OF THE CITY OF BAYONNE, DEFENDANT.
    Argued January term, 1928
    Decided July 2, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Brenner & Kresch.

    For the defendant, Benny & Cruden.

   Per Curiam.

Eor the reason stated in the opinion filed in number 295, this term, involving substantially the same question, the writ in this case will be dismissed.


text:
    HACKENSACK WATER COMPANY, A CORPORATION, APPELLEE, v. PUBLIC SERVICE GAS AND ELECTRIC COMPANY, A CORPORATION, ET AL., APPELLANT.
    Argued January term, 1928
    Decided July 2, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellants, William, H. Speer and Leland Taliaferro.

    For the appellee, Edwards & Smith.

   Per Curiam.

The case was tried in the First District Court of Jersey City without a jury, and judgment went for the plaintiff for $407.92.

The Public Service Gas and Electric Company was establishing under municipal license, a manhole in connection with the underground wire conduits in West New York. The defendants were engaged to perform the necessary rock excavating which was done by blasting with dynamite. As a result of such blasting, a water pipe, belonging to the plaintiff company, was broken, and this action was brought to recover the cost of replacement.

The grounds of appeal are error in refusing to nonsuit and in refusing a direction on the ground of no evidence of negligence.

The maxim res ipsa loquitur is, perhaps, applicable, but the defendant claims that _ the plaintiff may take no advantage of the maxim because the complaint alleged specific negligence — (1) in the failure to use proper care and reasonable measures to prevent the rock and debris from scattering upon the firing dynamite; (2) defendant’s failure to use proper equipment, and (3) defendant’s employment of incompetent employes.

The pipe in question rested upon a ledge of rock; the blast that caused the damage was set off about three feet from the rock and at a level two feet below the water pipe. There was evidence that the blast could have been regulated to break a less volume of rock, while the blast in its velocity actually took the rock from the bottom up.

It is also contended that the plaintiff consented to the'act which caused the injury, as the plaintiff, in response to notice from defendant, sent a representative to the job and he approved the precautions taken. It could have been found as a fact, however, that the sole duty of the plaintiff’s representative was merely to turn the water off, and otherwise protect the plaintiff’s property in case of injury from the blasting.

The facts and circumstances, with the reasonable inferences derivable therefrom, are sufficient to support the judgment which will be affirmed.


text:
    CORNELIUS LAFFLER, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF JACOB LAFFLER, DECEASED, PLAINTIFF-APPELLANT, v. SAM LAFER AND ARAKEL AMIRKONIAN, DEFENDANTS-RESPONDENTS.
    Submitted January term, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Aaron Heller and Joseph J. Weinberger.

    Contra, Edwards & Smith and Irving L. Werksman.

   Per Curiam.

This is plaintiff’s rule for a new trial. Jacob Laffler was killed through being struck by an automobile driven by Lafer and owned by Amirkonian. There was evidence of negligence of Lafer in driving the car and of Amirkonian in the inadequate equipment of the car as to lights and brakes. The finding of the jury in favor of the defendants, however, we think was justified on the ground that the negligence of Laffler was a contributing cause to his own death.

The evidence was that when struck he was walking towards defendant’s car in the centre of Myrtle avenue between Harrison and Sherman streets, in Passaic, at eleven-thirty p. m., on December 26th, 1925, and that it was very dark. Eor one to walk longitudinally in the middle of a highway (the portion usually occupied by vehicular traffic) on a dark night in a populous city is, we think, an act of imprudence from which a jury could properly infer legal negligence.

The rule for a new trial is therefore discharged.


text:
    GEORGIANA YARRINGTON, BY CHARLES YARRINGTON, HER NEXT FRIEND, AND CHARLES YARRINGTON, INDIVIDUALLY, PLAINTIFFS, v. DR. WILLARD O. PITTENGER, DEFENDANT.
    Argued January 17, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, McDermott, Enright & Carpenter.

    Contra, McCarthy & McTague.

   Per Curiam.

There was a verdict in this case of $5,000 for the plaintiff Georgiana Yarrington and a verdict of $1,200 for her father, Charles Yarrington. The defendant has a rule for a new trial, and on this rule we are urged to set aside the verdicts on two grounds — (1) that they are contrary to the weight of the evidence,'and (2) that the amounts are excessive. We think the first contention is well founded.

The action was for malpractice against the defendant, Pittenger, a dentist, on alleged negligence in permitting a portion of a tooth which he had extracted from the mouth of Georgiana Yarrington to pass down into her throat and lodge in her lung

The single element of want of care alleged against the defendant is the failure to use proper skill in performing his work, and as evidence in support of this charge the plaintiff’s mother was called as a witness and testified that no packings (a method of preventing such happening) were used by the defendant in preparation for and during the time that he was extracting the tooth. Against this testimony the defendant himself testified to the use of packings, and in this he was supported by a nurse in attendance at the time and a physician who administered the anesthetic. These witnesses also testified that the plaintiff’s mother was not in the room, nor did she have opportunity to observe what she claims she saw. That the packings used by the defendant were proper ones for the purpose was testified to by the defendant and by five other dentists,, while but a single witness testified to the contrary. Notwithstanding this state of the proofs, the jury found in favor of the plaintiffs.

The verdicts are so clearly against the weight of the evidence in the case that they cannot be sustained, and the rule will be made absolute.


text:
    DAVID T. WILENTZ, PLAINTIFF, v. JOSEPH LONKY AND NATHAN ROSENSCHEIN, TRADING AS LONKY & ROSENSCHEIN, AND JENS L. MATHIASEN, DEFENDANTS.
    Submitted January term, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, James F. Patten and John A. Coan.

    Contra, Thomas Brown and William A. Spencer.

   Per Curiam.

This is plaintiff’s rule for a new trial based on inadequacy of the verdict. The damages awarded in the case are wholly inadequate as gauged by the undisputed evidence. The verdict was for $770 only, while the defendant’s proofs conceded a loss of rentals and a cost of repairs to the injured building in excess of the amount awarded.

Conceding the measure of damages to be the diminution of the value of the property caused by the wrongful act of the defendants as contended by them, there is no rational explanation of the jury’s finding in the amount stated.

In the event a new trial is granted we are urged by the plaintiff to limit the issue to the matter of damages. This we cannot do. A finding by the jury implying entire disregard of the evidence in one of its phases and a misapprehension of its legal duty is not entitled to stand in any of its parts.

The rule will be made absolute on the whole case.


text:
    MARY J. MENNONNA, ADMINISTRATRIX OF THE ESTATE OF PASQUALE PRESTO, DECEASED, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY, DEFENDANT.
    Argued January 17, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Theodore Strong.

      Contra, Salvatore Muti.

   Per Curiam.

This is defendant’s rule for a new trial, and the reasons urged for making the rule absolute are that the verdict is against the weight of the evidence and that the damages are excessive.

We have carefully examined the proofs on both points, and reach the conclusion that neither contention is well founded.

The rule is therefore discharged.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE VILLANO, PLAINTIFF IN ERROR.
    Submitted January term, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, J. Victor D’Aloia.

    For the defendant in error, Joseph L. Smith.

   Per Curiam.

Plaintiff in error was convicted of manslaughter in the Essex Court of Oyer and Terminer, and appeals from the judgment entered thereon assigning two grounds for reversal.

The first of these is that the court erred in receiving in evidence the testimony of one John Smith, a character witness offered by the state, and the second that the verdict of the jury was against the weight of the evidence.

As to the first point the matter is presented in this wise: The defendant called a witness, Rufalo, as a character witness. He was asked if he knew the reputation of the defendant for telling the truth and being a law-abiding citizen. He answered “Yes.” He was then asked whether it was good or bad, to which question there was no answer. The witness was then cross-examined, and in the course of this cross-examination the witness said that everybody he talked to knew it was always in the defendant’s favor. Finally, the court asked, “Did you ever hear anybody say anything about his truth or law-abiding qualities?” to which the witness answered “No.” That this examination was adopted by defendant’s counsel is evidenced by the fact that the court having at the conclusion of the testimony said it would allow the question previously asked by defendant’s counsel, the question itself was not pressed, counsel evidently being satisfied with the answers already given.

When the witness Smith was called he was asked the question, “Do you know his [defendant’s] reputation for recklessness in driving an automobile?”

The Court — “Or the reverse.”

A. “Yes.”

To this there was objection and the objection overruled. Then the question was modified by the prosecutor:

Q. “Is his reputation in that respect good or bad?”

A. “It is bad that way.”’

It is contended, in the first place, that the defendant had not by its proofs brought the defendant’s reputation in issue and that the state was not entitled to rebut it; and also that the testimony was incompetent in that it is only the general reputation that can be proven.

We think both grounds of appeal are without merit. Defendant was on trial for manslaughter in having killed a child through reckless driving of an automobile. The only pertinent character evidence would obviously be his reputation for reckless driving, and this we think was an issue attempted to be set up by the defendant in calling the witness Eufalo, and with whose testimony he was doubtless contented when elicited by the prosecutor and the court. This testimony, according to its obvious import, tended to leave in the minds of the jury a conviction that the defendant was not only truthful, but that he was a law-abiding citizen, as this was the question asked by defendant’s counsel and to which the witness undoubtedly referred when he said, “Everybody I talk to knew it was always in his favor.” When, therefore, the state in rebuttal introduced the witness Smith, and elicited from him his reputation for reckless driving, it was substantially an inquiry directly in line with the testimony adduced in the defendant’s favor, but tending to contradict it.

The Traffic act makes reckless driving unlawful, and it necessarily follows that, being unlawful, one who violates it is not a law-abiding citizen, and the state, under the circumstances, was entitled to show the defendant’s reputation in this regard.

We, therefore, conclude that the testimony adduced by the defendant opened the door to the proof offered by the state in rebuttal, and that the inquiries addressed to this witness were not unduly narrowed and restricted. In this view we are sustained by the authorities. In Whit. Ev. (2d ed.) 278: “The elementary law is that the inquiry into character is always adapted to the charge,” and (at p. 277): “The prosecution’s rebutting repute may he of the specific trait even though defendant’s evidence was of general character.” To this same effect are Frank v. State, (Ga.), 80 S. E. Rep. 1016, and Commonwealth v. Maddocks (Mass.), 93 N. E. Rep. 253. In both cases the defendant had set up a general reputation for good character, and the prosecution in rebuttal was permitted to prove the had reputation in the particular phase of conduct involved in the charge. Any other view, we think, would be injurious to the defendant himself. Unless character inquiry is restricted to the class of conduct involved in the criminal charge, grave injustice would result through the introduction of a damaged reputation in respects alien thereto. It is unnecessary to cite illustrations to demonstrate this truth.

As to the second point raised on the appeal, our examination of the proofs satisfies us that the verdict was not against the weight of the evidence, and that the judgment should not, therefore, he disturbed.

Judgment affirmed.


text:
    WALLACE GRAHAM, PLAINTIFF-RESPONDENT, v. GEORGE ADAMS ET AL., DEFENDANTS-APPELLANTS.
    Submitted January term, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, William R. Rogers and Edward F. Merrey.

      Contra, Meyer Lobsenz.

   Per Curiam.

A verdict was rendered in favor of the plaintiff in this case for $300 as punitive damages and the defendants were allowed a rule for a new trial.

Among the reasons urged for making the rule absolute are that the verdict is contrary to the weight of the evidence; contrary to the charge of the court; that punitive damages, were awarded, but no damages compensatory for the injuries inflicted on the plaintiff’s person.

All of these reasons, we think, are well founded, and the rule will be made absolute.


text:
    DAVID LESNIK, PLAINTIFF-RESPONDENT, v. EDWARD G. YERG AND JENNIE E. YERG, DEFENDANTS-APPELLANTS.
    Argued January 18, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellants, William L. Greenbaum.

    For the respondent, Philip J. Schotland.

   Per Curiam.

This is an appeal by the defendants from a judgment in the Circuit Court, entered on an order in that court striking out the defendant’s answer as sham and legally insufficient, and entering judgment in favor of the plaintiff for $3,200, being the amount of the plaintiff’s claim.

The action was to recover a commission for negotiating a sale of real estate in Miami, Elorida, upon an agreement in writing appended to an agreement of sale, the pertinent provision of which reads as follows:

“We agree to pay to the above-signed broker [plaintiff being the broker signing the bill of sale for the vendors] as commission the sum of thirty-two hundred dollars [$3,200], or one-half of the deposit in case same is forfeited by purchaser provided the same shall not exceed the full amount of the commission.”

This writing was signed by the defendants, vendors, and delivered to the plaintiff.

On filing of pleas and defenses by the defendants a motion was made to strike them out as sham and insufficient in law and to enter judgment for the plaintiff. Affidavits for and against the motion were filed, and upon consideration of these the motion was granted as above stated.

Our examination of the. pleadings and the affidavits of the respective parties leads us to the conclusion that the order and the judgment appealed from were proper. The defense attempted to be interposed was that while $11,000 was paid by the vendor on account of the principal contract, the purchaser defaulted in its further performance; that no commission was due to the plaintiff because he was not the broker who made the sale; that he had acted for both parties, and that he had agreed to turn over to the purchaser on the passing of title the $3,200 specified as commission.

If these facts constituted a valid defense to the plaintiff’s claim, they, nevertheless, presented an attempt to vary the terms of the written agreement in contravention of the rule which forbids the alteration of writings by parol testimony. Naumberg v. Young, 44 N. J. L. 331.

The judgment is affirmed.


text:
    JOHN B. SMITH, ADMINISTRATOR AD PROSEQUENDUM OF CLARA W. SMITH, DECEASED, PLAINTIFF, v. READING COMPANY, DEFENDANT. JOHN B. SMITH, PLAINTIFF, v. READING COMPANY, DEFENDANT.
    Submitted January term, 1928
    Decided July 7, 1928.

      Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rules, Edward L. Katzenbach.

      Contra, Harry Heher.

   Per Curiam.

These actions grew out of. a grade crossing collision between an automobile driven by the plaintiff, John B. Smith, and a locomotive of the defendant, at Hillcrest avenue, in Trenton, in which the plaintiff’s wife was killed, he himself was injured and his automobile damaged. Verdicts were rendered in favor of the plaintiff as administrator for $10,-000 and in his own favor as an individual for $500.

Defendant has rules for new trials in both cases, and in these the reasons urged for making the rules absolute are that the verdicts are against the weight of the evidence as to the negligence of the defendant, and as to the plaintiff as an individual that he was guilty of contributory negligence. The plaintiff as an individual also has a rule for new trial in which it is urged that the verdict in his favor is inadequate.

Our examination of the proofs brought up with the record of the case convinces us that both verdicts are against the weight of the evidence as to the negligence of the defendant, and that the verdict in favor of the plaintiff as an individual is against the weight of the evidence on his own contributory negligence.

The defendant’s rules will therefore be made absolute; the rule taken by the plaintiff will be discharged.


text:
    HARRY M. C. FRY, PLAINTIFF, v. AMERICAN RAILWAY EXPRESS COMPANY, A DELAWARE CORPORATION, DEFENDANT.
    Submitted January term, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, George M. Hillman.

    Contra, Kelsey & Kille.

   Per Curiam.

The plaintiff in this case was the consignee of four horses delivered to the Adams Express Company at Carney, Ne-. braska, for shipment to Mount Holly, in this state. When received in Mount Holly the horses were found to have suffered injuries, and for these injuries the present action was instituted, and resulted in a verdict for the plaintiff for $821.76.

The defendant has a rule for a new trial and presents as reasons for making the rule absolute that the verdict is against the weight of the evidence and that the damages are excessive.

We think the second reason is well founded. The contract of shipment between the consignor and the express company stipulates that “as a condition precedent to recovery * * * for loss or injury or damage to or delay in delivery of this shipment, such loss, injury, damage or delay shall be proved by the shipper to have been caused by negligence of the carrier.” The shipment was an interstate one and the contract was one approved by the interstate commerce commission in conformity with an act of congress known as the Carmack amendment. As such it was binding on the parties. Lewis v. Pennsylvania Railroad Co., 70 N. J. L. 132; affirmed, 71 Id. 339. It was therefore incumbent on the plaintiff to prove that the injuries received were due to the negligence of the defendant. An examination of the evidence discloses that as to three of the animals there was no such proof. The bruises and scratches testified to were as likely to have been the result of the movements, restless or otherwise, of the horses in the course of shipment as to causes over which the defendant had control, and for which it would be responsible.

Of the four horses, however, one was delivered with a broken leg, and the proof established that this leg was broken in the effort of the company to unload it. Instead of pursuing the usual method of passing live stock directly from the car to a platform of an unloading station, the crate in which the horse was enclosed was placed on a truck from which the crate and horse fell to the ground resulting in the breaking of the horse’s leg. This was evidence from which we think the jury could infer that the damage to that particular horse arose from the negligence of the defendant.

The value of each horse in the contract of shipment was stipulated at $200, and for this amount recovery could properly be had for the horse with the broken leg.

It seems to be conceded in respondent’s brief that certain expenses incidental to the board and lodging of the three horses constituted an item for which recovery could be had, and these expenses are enumerated as aggregating $96. The theory on which this concession is made is that for a time the horses were kept by the plaintiff for and on behalf of the express company and at its cost, respondent on this rule conceding that the verdict beyond the sum of $296 is the only excess.’

The rule for new trial will be discharged if the plaintiff will remit the amount of the verdict in excess of $296, otherwise the rule will be made absolute.


text:
    HARRY SOLOF, RESPONDENT, v. ARCADY FARMS MILLING COMPANY, APPELLANT.
    Submitted January term, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellant, Walter H. Bacon, Jr.

    For the respondent, Frank Kotok.

   Per Curiam.

A judgment was rendered for the plaintiff in this case in the Common Pleas Court of Cumberland county and defendant appeals, assigning three grounds for reversal.

The action was to recover damages for breach of a contract to deliver one hundred tons of cracked corn. The contract called for delivery during the months of January, February and March of 1924, and during these months forty-seven tons were delivered. There was evidence, however, that the contract was extended without definite date. On July 1st, 1924, .the plaintiff ordered the remaining fifty-three tons shipped, and this the defendant refused to do, claiming that the contract was at an end, and this was the issue tried.

One of the grounds of appeal is that the court erred in refusing to grant defendant’s motion for direction of a verdict in its favor. Under the evidence this could not have been done. By defendant’s letter of June 35th, 1934, the plaintiff was expressly directed to take up with a Mr. Hunsieker, its manager in Philadelphia, “the matter of cleaning up the contract either by complete instructions or cancellation,” and the proofs were otherwise quite conclusive that Hunsicker was clothed with complete authority concerning contracts of the character and in the district here involved, and when the plaintiff testified that the contract was extended by Hunsicker this raised an issue of fact which could not be withheld from the jury.

The remaining grounds that a letter written in October of-1934 was irrelevant in that it was not proved that it referred to the contract in question, and that Hunsicker’s conversation with the plaintiff was incompetent, are not well founded. The letter referred to plaintiff’s corn contract and the plaintiff testified that the present was the only contract involved; besides, the letter itself bears internal evidence of the truth of this statement. What we have said concerning Hunsieker’s authority disposes of the last ground.

The judgment is affirmed.


text:
    LOUIS COOPER, RELATOR, v. STATE HIGHWAY COMMISSION, RESPONDENT.
    Argued January 17, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      For the relator, Charles Handler (Spaulding Frazer, of counsel).
    For the respondent, Edward L. Katzenbach and Mark A. Sullivan.

   Per Curiam.

This case corues before us on a return to an alternative writ of mandamus, plea thereto and certain stipulations of counsel. Erom these it appears that the state highway commission has taken over a portion of London street, in the city of Newark, as a part of route number 1 of the state highways, and that it proposes as part of the construction of a portion of this route to raise the body of the street so that its centre will be thirteen feet above the present level; that the embankment will slope to the old level at a point seven feet from the private property line, which property is owned by the relator, Louis Cooper.

No action having been taken to condemn the rights of the relator, application was made to this court, through the above mandamus proceedings, to compel the highway commission to petition the court for the appointment of commissioners to assess the damages sustained by the relator.

Erom the undisputed facts it is, we think, apparent that the steps being taken by the highway commission to utilize London street for the purpose of a state highway constitute a change of grade only, and that this being true the writ of mandamus prayed for must be denied. It is settled in this state that a change of grade alone, in the absence of statutory authority directing otherwise, imposes no additional servitude on the land within the confines of a highway or liability to the abutting owner for damages (Clark v. Elizabeth, 61 N. J. L. 590), and no legislative authority has been presented to us imposing liability in the present case.

On the facts developed in the pleadings and stipulation of counsel (and without passing on the legal right of a property owner to seek redress through mandamus proceedings in a case like the present) relator has shown no proper property rights to have been invaded, and the peremptory writ of mandamus must, therefore, be denied.


text:
    ISAAC L. RESNICK, PLAINTIFF, v. FRANK BLUM, DEFENDANT.
    Submitted January term, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, William E. Holmwood.

    Contra, Joseph A. Corio.

   Per Curiam.

On a rule for new trial allowed to the defendant in this case these reasons are urged for making the rule absolute— (1) that the verdict is contrary to the weight of the evidence; (2) that the verdict is excessive; (3) that there was error in the admission and rejection of evidence, and (4) that the pleadings in the ease were permitted to be delivered to the ;wry-

Our examination of the evidence and the rulings at the trial satisfy us that all of these reasons are without merit except the second. The verdict of $5,200 we think is excessive. If the plaintiff will accept the sum of $3,500 in satisfaction of the award the rule will be discharged, otherwise the rule will be made absolute.


text:
    JOHN MILLER, PLAINTIFF, v. ANDERSON LUMBER COMPANY, A CORPORATION, AND NICHOLAS J. CALASCIBETTA, DEFENDANTS.
    Submitted January term, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Frank G. Turner.

      Contra, Feder & Rinzler.

   Per Curiam.

This is defendant’s rule for new trial. The single reason urged for making the rule absolute is that the damages are excessive. There was a verdict for $2,500 in favor of the plaintiff for personal injuries received in a collision between defendant’s automobile and the wagon in which plaintiff was riding. Our reading of the proofs convinces us that the damages are not so clearly excessive that the verdict should he disturbed.

The rule for new trial is therefore discharged.


text:
    CHARLES THOMPSON, PLAINTIFF, v. LINDE & GRIFFITH COMPANY, DEFENDANT.
    Argued January 18, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Kellogg & Chance.

    Contra, Charles A. Rooney.

   Per Curiam.

The defendant has a rule for new trial and presents, as reasons for making the rule absolute, that the verdict is against the weight of the evidence on liability, and that it is excessive in amount.

We think the jury’s finding that the defendant was responsible for plaintiff’s injuries was justified by the proofs, but that the damages awarded ($45,000) are excessive. If the plaintiff will consent to a reduction of the verdict to $25,-000, the rule will be discharged, otherwise it will be made absolute.


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    FRANK TORREGROSSA, BY HIS NEXT FRIEND, JOHN TORREGROSSA, AND JOHN TORREGROSSA, INDIVIDUALLY, ET AL., PLAINTIFFS, v. NATHAN STILLMAN, DEFENDANTS.
    Submitted January term, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, William B. Stites.

      Contra, Feder & Rinzler.

   Per Curiam.

Frank Torregrossa was injured in a collision between an automobile in which he was riding and an automobile driven bjr the defendant, and for the damages sustained suit was instituted by the plaintiffs, Frank Torregrossa and his father, John Torregrossa. A verdict was rendered in favor of Frank, the son, for $7,500, and a verdict in favor of John, the father, for $1,000.

On the defendant’s rule to show cause why a new trial should not be granted we are urged to set the verdicts aside on the ground that a nonsuit should have been entered; that the verdicts are contrary to the weight of the evidence; that the verdicts are excessive and for alleged trial errors.

An examination of the proofs sent up with the record of the case convinces us that all of these reasons are without merit and that the verdicts should not be disturbed.

The rule for new trial will, therefore, be discharged.


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    WARREN K. BRADLEY, PLAINTIFF-RESPONDENT, v. EPHRAIM G. SHREVE, DEFENDANT-APPELLANT.
    Submitted January term, 1928
    Decided July 7, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Thompson & Hanstein.

      Contra, William I. Garrison and Oscar LeWine.

   Per Curiam.

This is defendant’s rule for new trial. The reasons urged for making it absolute are that the trial judge should have granted a nonsuit or directed a verdict for the defendant; that the verdict was against the weight of the evidence; that the court erred in permitting certain questions to be asked of a witness for the defendant and in reading to the jury a portion of the Traffic act.

The case grew out of an accident on the White Horse pike, near Ateo. Plaintiff, driving north toward Philadelphia, ran into the rear end of defendant’s truck which had run out of gas and was parked on the side of the road on which it had been proceeding. The crux of the ease turned on whether there was a light on the truck giving warning of its presence, and on this point there was substantial evidence to support the plaintiff’s contention. It seems to ns quite clear, therefore, that the case could not be controlled by nonsuit or direction, and we are not prepared to say that the jury’s finding was against the weight of the evidence.

The questions asked on cross-examination of the driver of the truck as to what measures' he took to warn the traveling public of the presence of the truck on the road were not objectionable, and we find no merit in the final reason urged that the judge erred in reading to the jury that portion of the statute regarding lights on standing vehicles.

The rule for new trial is discharged.


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    MODERN SECURITY COMPANY OF PHILADELPHIA, PLAINTIFF, v. JAMES E. FLEMING AND AMANDA E. FLEMING, DEFENDANTS.
    Argued May term, 1928
    Decided July 10, 1928.
    Before Justices Minturn, Black and Campbell.
    For the plaintiff, Isadore H. Hermann (D. Trueman Stackhouse, of counsel).
    For the defendants, S. Paul Ridgway.

   Per Curiam.

The defendants submitted an application, accompanied with a bond and warrant of attorney to confess judgment, under date of May 26th, 1927, to the Modern Home Rebuilders of Philadelphia for the installation, by the latter, of a heating system in the defendants’ home at a cost of $2,489. The contract provided for payments as follows:

“Upon the commencement of the work first payment Aug. 15, 1927 $ Nothing. Balance due in advance at once, but for convenience of applicant in equal monthly installments of $53.70 or more due and payable on the 15th of each month thereafter.”

The contract also bore the notation, “No payment to be made by August 15th, 1927, unless job is complete.”

The defendants’ offer was accepted by the Modern Home Re-builders on June 3d, and on the same day the bond and warrant of attorney was assigned to the Modern Security Company, which entered a judgment thereon for the full amount on June 25th, 1927.

The work of installing the heating system was not completed until sometime in July.

Installment payments under the contract were made and were accepted, and it is admitted that there were no defaults in such payments, but it is urged that since nothing was due under the contract at the commencement of the work and inasmuch as the contract provided that “the balance due in advance at once,” the debt was therefore a present existing one. In view of the more specific provisions of the contract as to installment payments and the practical construction thereof by the parties thereto, it is clearly otherwise.

The Bond and Warrant act (Oomp. Stat., p. 221, § 11), provides that before judgment shall be entered an affidavit must be filed setting forth that “the debt or demand is justly and honestly due and owing.” The affidavit filed herein on June 25th stated that “the sum of $2,489 is justly due plaintiff.”

It appearing that this was not the fact, the judgment was entered without any substantial basis to support it, under the statute. Warwick v. Petty, 44 N. J. L. 542 (at p. 547), which contains the following:

“If the affidavit on which a confessed judgment was signed be not, in any respect, in substantial compliance with the requirements of the statute, the judgment is, ipso facto, fraudulent, and wholly inoperative against creditors.”

To the same effect the rule has been stated:

“It is against the policy of the law to permit a man when entering into an obligation to bargain away his rights to be heard in court, should a question ever arise between him and his adversar}* in relation to it. A man who has signed a paper of that kind [authorization to enter judgment], if it is valid, is completely at the mercy of the holder. * * * It, in effect, gives defendant no day in court. It would open the door to fraud and oppression and make the courts involuntary parties thereto.” 31 Anno. Cas. 646.

Judgments such as this by bond and warrant of attorney, without - institution of suit, derive all their efficacy from positive or statutory law; and if such statutes are in derogation of the common law, a strict compliance therewith is necessary to support a judgment entered under them.

Eor these reasons the judgment under review will be vacated, and the rule to show cause will be made absolute.


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    BENJAMIN CLARK, PROSECUTOR, v. THE COMMISSIONERS OF FIRE DISTRICT NO. 5, IN THE TOWNSHIP OF WOODRIDGE, A CORPORATION; WILLIAM ALLGAIER AND THOMAS THOMPSON, Sr., RESPONDENTS.
    Argued January term, 1928
    Decided July 10, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Thomas Brown.

      For the respondent fire district, Henry St. C. Lavin.

    For the respondent William Allgaier, David T. Wilentz.

   Per Curiam.

The Commissioners of Eire District Number 5, in the township of Woodridge, county of Middlesex, by resolution adopted at a meeting on April 11th, 1912, organized pursuant to the provisions of 2 Comp. Stat., p. 2424. The prosecutor is a property owner and taxpayer of the township. The commissioners, by resolution duly passed, appropriated $2,000 for purchasing lots on Avenel street between the Pennsylvania railroad and St. George avenue, for the purpose of building a new firehouse thereon. The matter was submitted by referendum to the legal voters of the district at an election on Eebruary 20th, 1926, under a resolution passed for that purpose. The election resulted in favor of authorizing the commissioners to issue bonds in the sum of $2,000 to purchase the land, which they subsequently leased to respondent Thompson. Thereafter the commissioners caused an election to be held on the 18th of September, 1926, whereat a resolution was submitted to the legal voters of the fire district, providing that the fire commissioners be authorized to contract for the erection of a firehouse on the property recently purchased at a cost not to exceed $20,000, the building to be financed by the issuance of bonds to be paid off at the rate of $1,000 a year. The result of the election was that the voters refused to authorize the issuance of the bonds, and the proposal was lost.

An attempt was made to call another election for the same purpose for the issuance of $12,000 or $16,000 of bonds, but this meeting, under legal advice, was not held. On the 18th of May, 1927, a special meeting of the commissioners was called for the purpose of discussion of the building of a firehouse. It was moved and carried that the board take action and erect a firehouse on the present property at a cost not to exceed $16,000. It was also moved and carried that an architect, Mr. Tiffany, be interviewed for the purpose, and that the board have an open competition on bids for the erection of the firehouse, the board reserving the right to reject any and all bids.

At the next meeting of the commissioners, the proposition now before the court eventuating in a resolution, was carried. The proposal was as follows: “That the property purchased by the commissioners under the referendum be leased to the respondent Thompson for a period of ninety-nine years at an annual rent of one dollar, upon the condition that the said Thompson will erect a building thereon suitable for use as a firehouse, and will likewise enter into a lease with the fire commissioners for a long term of j^ears at an annual rent not to exceed $6,000, and upon further condition that Thompson will include in the lease an option to purchase the building and cancel the lease upon payment by the fire commissioners of the cost of the building, together with the necessary expenses connected with the building.” Thompson was also to have the privilege of using and renting part of the premises for his own private purposes. Pursuant to this resolution the commissioners entered into a lease with Thompson and after the execution of the lease Thompson engaged the respondent Allgaier to erect a building on the land. Both of said parties obtained a building permit from the building inspector of the town of Woodridge authorizing them to erect a building for garage and lodge rooms. The erection of the building commenced on the 28th of July, 1927, and thereafter the prosecutor in this case obtained a writ of certiorari which presents these facts to the court.

' Several reasons are advanced presenting the alleged illegality of these proceedings. The effect of all of them, however, is the general allegation that the entire proceedings were ultra vires, beyond the power and authority of the commissioners to undertake, and an open abuse of their power.

It would seem unnecessary under the facts and circumstances- as outlined here to enter into a discussion for the purpose of showing the legal invalidity of this scheme. It must suffice for the purposes of this case to say that we find no power vested in the fire commissioners of the fire district to undertake any such proceeding as they have here proposed, as the same is clearly without any warrant in law and against public policy. McGovern v. The Board of Public Works, 57 N. J. L. 580; Hoboken v. Phinny, 29 Id. 65.

It is attempted to justify the position of Allgaier and Thompson in the matter by alleging laches upon the part of the prosecutor, but neither of these parties is in a position to complain upon that theory. The resolution itself being void and ultra vires, neither Thompson nor Allgaier can derive any right therefrom to assert against the legal prosecutor. They are both chargeable with knowledge of the invalidity and illegality of the resolution. Demarest v. New Barbadoes, 40 N. J. L. 604.

We think, under the circumstances, that the prosecutor in this case acted with reasonable dispatch in the effort to test the legality of this procedure, and neither Thompson nor Allgaier is in a position to complain, so far as the prosecutor and the other taxpayers are concerned, in their effort to set aside the resolution. The result is that the resolution in question will be set aside, with costs.


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    R. McAllister, A CORPORATION, RELATOR, v. GEORGE W. JOHNSON, BUILDING INSPECTOR, AND THE CITY OF CAMDEN, NEW JERSEY, RESPONDENT.
    Argued May term, 1928
    Decided July 10, 1928.
    Before Justices Minturn, Black and Campbell.
    For the relator, Clifford A. Baldwin.

    For the respondents, Harold W. Bennett and Carl Kisselman.

   Per Curiam.

Our examination of the record in this case, together with briefs of counsel, leads us to the conclusion that the application for the writ of mandamus, requiring the respondents to issue a permit for the erection of four concrete silos in the city of Camden, should be denied.

Such is the order.


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    JOHN FRANCISCHINI, RESPONDENT, v. DAVID A. McMULLEN, APPELLANT.
    Argued January term, 1928
    Decided July 10, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the respondent, William, E. George.

    For the appellant, Raymond E. Taylor.

   Per Curiam.

Suit resulted from an automobile collision, and was tried in the Bergen County District Court without a jury.

The court allowed damages for the cost of repairs to the damaged automobile, amounting to $389.56, and for the loss of earnings to the owner of $90, and judgment was entered for the total of these amounts $479.56. The defendant paid on account of the judgment $389.56, representing the cost of repairs.

The question presented to the court for consideration is as to whether the admission of testimony as to the loss of earnings suffered by the plaintiff, by reason of his inability to use the damaged car, is legally correct, involving the sum of $90 for loss of earnings. By way of a basis of damage the state of demand alleges: “The loss of use of said automobile which was used as a private car for hire and taxi.”

Plaintiff testified that he never hired, or attempted to hire, another vehicle to replace the damaged automobile while the same was being repaired. He offered testimony that he earned $10 to $12 a day by using his car for taxicab purposes. The court found that nine days were reasonably necessary to make the repairs, and taking the daily earnings at $10 allowed the plaintiff $90 for the loss of use of his car. There is absent from the testimony any proof that the plaintiff made any effort to procure another car, or offered any excuse for not doing so, or that he was so injured that he could not have used the ear if he had hired it, or that such a ear was unavailable, or that he could not have secured other employment during the period of the repairs.

Under the circumstances we think it was error for the court to allow evidence of earnings as a measure of damage for the loss of use of a car. The rule seems to be established that in the absence of proof that a similar machine could not be hired in the market, evidence of profits derived from the injured vehicle is inadmissible upon the question of the measure of compensation.' Blash. Encycl. Auto. L. 2011, and cases cited.

The judgment is reversed.


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    EDITH MONACO, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. ABRAHAM KIRSCHNER ET AL., DEFENDANTS.
    Decided July 10, 1928.
    Before Justices Mixture, Black and Campbell.
    For the plaintiff, Palmer & Cooper.

    For the defendants, McDermott, Enright & Carpenter.

   Per Curiam.

The motion in the above-entitled cause to vacate the service of the summons upon the defendant, after due consideration by the court, is denied.


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    NEW JERSEY WATER SERVICE COMPANY AND NEW YORK TRUST COMPANY, PROSECUTORS, v. BOROUGH OF BUTLER, RESPONDENT.
    Argued May term, 1928
    Decided July 10, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutors, Treacy & Treacy.

    For the respondent, King, Vogt & J. W. De Yoe.

   Per Curiam.

This is an application for a writ of certiorari to review an order made by a justice of this court, appointing three commissioners to determine the compensation to be paid for certain property of the prosecutors, which is sought to be taken in condemnation proceedings by the respondent.

The court, haying considered the matter, and the arguments of counsel thereon, it is ordered that a writ of certiorari be allowed to review the order appointing the commissioners.


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    FRANK MACALUSO AND ANTHONY MACALUSO, PARTNERS, TRADING AS THE PATERSON-PALISADES SIGHTSEEING COMPANY, PROSECUTORS, v. THE BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANTS.
    Argued May term, 1928
    Decided July 10, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutors, Weinberger & Weinberger.

      Contra, William H. Speer.

   Per Curiam.

After consideration of the facts in this case as presented by the petition, and the argument of counsel, we cannot say that the action of the board of public utility commissioners was either unreasonable or an abuse of power, but was entirely discretionary on their part in the absence of a clear abuse of power.

The application for a writ of certiorari will therefore be denied.


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    NEW JERSEY CASH CREDIT CORPORATION, A CORPORATION, PROSECUTOR, v. MICHAEL JAMES LINEHAN, ARTHUR EDERSTRONE AND JOHN A. RABY, DEFENDANTS.
    Argued May term, 1928
    Decided July 10, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Russell Fleming.

    For the defendants, John J. Breslin, Jr.

   Per Curiam.

The question presented is whether a judge of the District Court has authority and power to open a judgment entered by default against the makers of a promissory note, and grant a new trial, where the application is not made within thirty days after entry of judgment and is not based upon newly-discovered evidence.

Summons was issued September 21st, 1927, and on the return day, September 30th, the defendants not appearing, the ease was marked “no appearance.” On October 18th an affidavit of proof was filed and judgment entered for $111.92. On December 12th an order was granted for a salary execution.

On January 12th, 1928, an affidavit was presented to vacate the judgment, and to grant a new trial, on the ground that a clerk in the office of the defendants’ cou'nsel was negligent in attending to the case, and that counsel believes that the defendants have a valid and just defense to the case on the merits.

On February 3d, 1928, affidavits were filed by two defendants claiming that their signatures to the note were forgeries.

On the same day the court vacated the judgment and granted an order for a new trial. It is now insisted that the order was illegal in that under section 17 of the District Court act (Comp. Stat., p. 1959) the court, in granting a new trial, is limited to thirty days after the entry of the judgment. In this instance the order granting a new trial was not entered until more than ninety days after the entry of judgment. Section 17 of the District Court act, to which reference has been made, is as follows:

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

This act has been construed by this court in at least two cases, Levine v. Schwartz, 86 N. J. L. 476, and Flaherty v. Pack, 73 Id. 103.

Under the circumstances as above outlined, the court was without authority to make an order vacating the judgment and granting a new trial, and such order will therefore be vacated and set aside.


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    WHITE WAY CORPORATION v. CHARLES L. HEINLE ET UX.
    Decided July 16, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Endicott & Endicott.

      Contra, Mark R. Sooy.

   Per Curiam.

The defendants, owners of a tract of land in the city of Wildwood, entered into a written contract with one Samuel Badder and others for the sale of the land for $112,000. By the terms of the agreement, the defendants were to convey a title free and clear of all encumbrances, with certain exceptions, which are not material to the present issue. Badder and his associates paid certain moneys on account of the purchase price, and then assigned the agreement to the present plaintiff, together with all right and interest in the moneys already paid by them on account of the purchase price in case of default by the defendants. The assignee also paid certain moneys on account of the purchase price, the total payments' aggregating $16,200. When the time for the performance of the contract arrived the plaintiff refused to take a deed, on the ground that the title was defective, and demanded back the moneys paid on account of the purchase price. The defendants having refused to comply with this demand, the present suit was brought, and the trial resulted in a verdict being directed for the plaintiff for the full amount of the moneys which had been paid.. It conclusively appeared that the front of the building upon this property encroached upon the public street; that is, that the eaves overhung the highway, and that the porch also constituted an encroachment. It was this fact, among others, that led the plaintiff to refuse to accept a conveyance. We think it was justified in doing so. It was entitled at law to have delivered to it a deed in strict conformity with the provisions of the agreement, or else to have its money back. It was not required to take property where the building encroached upon the public street to the extent which has been indicated, and thus subject itself to the liability of a law suit by the municipality, whose right to compel the removal of the obstructions could not be affected by lapse of time.

Our conclusion is that the trial court was justified in directing a verdict for the plaintiff, and that the rule to show cause should be discharged.


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    STANDARD LUMBER COMPANY, A CORPORATION, CLAIMANT-APPELLANT, v. MODERN HOME BUILDING CONSTRUCTION COMPANY, BUILDER, AND KLINE BUILDING AND CONSTRUCTION COMPANY, OWNER, AND CITY MORTGAGE GUARANTY COMPANY, MORTGAGEE, AND PUBLIC SERVICE DEVELOPMENT CORPORATION, MORTGAGEE, DEFENDANTS-RESPONDENTS.
    Submitted January term, 1928
    Decided July 18, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      Fox the appellant, Mark H. Stein.

    For the respondents, Feder & Rinzler.

   Per Curiam.

The Standard Lumber Company appeals from judgment of non pros, entered in the Essex Circuit Court in an action on a mechanics’ lien and directing the cancellation of the lien on which the action was based.

The ground of the judgment was a failure to prosecute the lien claim diligently within one year from the date of issuance of the summons, or such further time as the court might direct, as required by the Mechanics’ Lien act. Comp. Stat., p. 3305, § 18.

The summons was issued July 21st, 1926. Pleadings were filed in due course, and the case was noticed for trial at the December term, 1926; not being tried it was again noticed for trial at the April term, 1927; not being then tried it was again noticed for trial at the September term, 1927, and appeared on the trial list of causes. At this term it was marked “ready” and appeared in the day call of September 27th, but when called for trial on that day, plaintiff’s counsel not responding, the case was marked “off.” The year having passed, the motion to non pros, and discharge the lien was made after due notice on December 3d, 1926, and the motion granted on December 10th, 1926.

The year from issuance of the summons being elapsed, the law presumed a failure to exercise the diligence exacted by the statute (Buchanon & Smock v. Dougherty, 88 N. J. L. 358; Gluck v. Ruiz-Urrutia, 101 Id. 558), and the burden was on the plaintiff to establish the contrary.

The only excuse offered by the plaintiff was that its counsel thought the case would not be reached at the September term, and that the clerk of the court entertained and expressed a like opinion. In this situation counsel took the chance of being wrong in his belief that the case would not be called, instead of presenting the facts to the judge and procuring further time as permitted by law if the circumstances should justify. This was not, we think, the diligence contemplated by the statute.

The judgments will therefore be affirmed.


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    GEORGE MURPHY v. STRYKER TRANSPORTATION AND CONTRACTING COMPANY.
    Decided July 16, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Thompson & Hanstein.

    Contra, Robert Peacock.

   Per Curiam.

This was an action of replevin to recover possession of a White truck, which the plaintiff had purchased from the Broadway Garage, Incorporated. He gave a chattel mortgage to the vendor to secure twelve notes, which were given in payment of the ear, the total amount thereof being $4,020. The chattel mortgage was assigned to the defendant corporation, and it took possession of the truck on the 23d of December, 1925, claiming that it was entitled to do so for the failure to pay three of these twelve notes when they fell due, the right to take possession for non-payment having been given by one of the provisions of the chattel mortgage. It was conceded that nine of the twelve notes had been paid, the claim of the plaintiff upon which he based his right to maintain the present suit being that he had paid all of these notes. The suit was instituted on the 20th of January, 1926, and at the same time plaintiff gave the sheriff the statutory replevin bond. Pursuant to the command of this writ, the sheriff replevied the car, but left it in the defendant company’s garage, there having been no demand made upon him by the plaintiff for its delivery. The trial resulted in a verdict in favor of the plaintiff, the jury assessing his damages at $2,279.76.

The first contention advanced in support of the present rule is that the finding of the jurjr, by necessary implication, that the plaintiff had paid the three notes which were the subject of the controversy was against the weight of the evidence. Our examination of the proofs leads us to the conclusion that this contention is not well founded.

The only other ground upon which we are asked to set aside the verdict is that the damages are excessive. We think this contention is justified. The Stryker company took possession of the truck on the 23d of December, 1925, and the writ of replevin was served on the 26th of the following January; that is, thirty-four days after the truck had been taken from the plaintiff by the Stryker company. The plaintiff’s testimony was that the truck was used by him for hauling gravel, and that he was earning in this work from $20 to $23 a day. Assuming that he was earning the larger amount, his loss on this account during the period mentioned, with interest thereon, was, according to his own evidence, not more than $1,000. It is true that the sheriff made no delivery of the possession of the truck to him until the 23d day of February, nearly a month after the service of the writ of replevin. But this was the plaintiff’s own fault. He could have called upon the sheriff immediately upon the giving of the bond to deliver the possession of the truck to him, if he had seen fit to do so. He cannot increase his damages by his failure to pursue that course.

If plaintiff will consent to a reduction of the verdict to $1,000, he may enter judgment for that amount. In the event of his refusal to do so, the rule to show cause will be made absolute.


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    IN RE APPLICATION OF PASSAIC VALLEY WATER COMMISSION ON CONDEMNATION.
    Argued June 8, 1928
    Decided July 18, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutors, Lindabury, Depue & Faulks (Frederic J. Faulks, Josiah Stryker and John Milton, of counsel).
    Opposed, William B. Gourley, William I. Lewis, Arthur S. Corbin and George L. Record.

   Per Curiam.

On May 12th, 1928, an order appointing three commissioners to fix the compensation to be paid by the Passaic Valley Water Commission, for the property of the Passaic Consolidated Water Company was made by a justice of the Supreme Court and duly filed with the clerk of Passaic county at Paterson, New Jersey.

Thereafter, upon notice an application for a certiorari to review the legality of such order was made to this court. Both parties by their respective attorneys at the time and place designated for such hearing made extensive and elaborate arguments for and against the granting of a writ of certiorari. Thereafter, both parties by their respective attorneys agreed in writing, duly filed with the court, that if a writ of certiorari was allowed by the court, in order to facilitate a speedy review by the Court of Errors and Appeals, a final determination and judgment might be entered upon the papers then before the court, which were used upon the application for the writ. The writ having been allowed, a proper return having been made thereto and the reasons of the prosecutor for the allowance of the writ having been promptly filed, being the reasons stated in the prosecutor’s original brief. The petition of the Passaic Yalley Water Commission having been duly amended by an order of a justice of the Supreme Court, under date of June 27th, and filed in the clerk’s office of the county of Passaic at Paterson, New Jersey. The order of amendment provides, for the amendment of the petition in reference to the descriptions of the property omitted and in several other particulars. It also provides: (13) The purpose of this application is to acquire all the property of said Passaic Consolidated Water Company except moneys, securities, bills and accounts receivable, and except its franchise as a corporation, to the end that the petitioner, on behalf of the said cities of Paterson, Passaic and Clifton, may own said property free and clear from all encumbrances thereon and supply said cities with water.

The points made and argued by the prosecutor are: First, the description of the property proposed to be taken is inaccurate, these inaccuracies are set out at some length in the affidavit of Walter W. Corrigan. They have been substantially cured by the amendment made and filed on June 27th, 1928. Second, the description of the property proposed to be taken is not sufficiently definite to enable either the company or the commissioners in condemnation to identify the same; this refers specifically to the accounts receivable. This also has been substantially cured by the amendments.

The act (Pamph. L. 1923, p. 507, § 3) provides: “In all applications, orders, reports and proceedings a general description of the property to be condemned shall be sufficient.”

We think there can be no embarrassment, either to the prosecutor, the commissioners or the Passaic Yalley Water Commission under the descriptions as amended. The cited cases of Vail v. Morris, &c., Railroad Co., 21 N. J. L. 189; New York, &c., Co. v. Broome, 50 Id,. 432, do not militate against this view. They are clearly and substantially distinguished by the facts.

Third, the legislation under which the proceedings were instituted, when applied to the property and franchises of the company proposed to be taken, does not and cannot provide for just compensation; in other words, the act, so it is argued, is inadequate, and therefore it is not valid, as applied to its property. This, of course, if so, is serious and might be fatal, but it will doubtless be a surprise to many to learn that an act of the legislature copied largely from the railroad charters used and applied extensively in the state for nearly one hundred years, and in its present form drawn by such an accurate, learned and experienced lawyer as the late Charles L. Corbin, is not a workable act in all condemnation cases. The General Condemnation act (Pamph. L. 1900, p. 79).

The company will receive no compensation for the enhanced value of its property proposed to be taken resulting from the improvements, additions and extensions, it must make, while discharging its public duty, during the pendency of the proceedings; nor damages for such extensions or additions not taken, but rendered worthless.

This is predicated upon the sixth section of the act, which provides that the value is to be ascertained “as of the date of the filing of the petition and order therein,” viz., May 12th, 1928. If, in the application of the statute, it may seemingly work an injustice, we cannot refuse to apply or enforce a constitutional statute for that reason; because, as was said by Chief Justice Beasley, in the ease of Douglass v. Board of Chosen Freeholders, 38 N. J. L. 216, where that which is directed to be done is within the sphere of legislation, and the terms used clearly express the intent, all reasoning derived from the supposed inconvenience, or even absurdity of the result, is out of pla'ce.

But to meet this situation, the Passaic Yalley Water Commission, at the argument and in its brief, made this proposition, the commission is willing and has the power under the' act (Pamph. L. 1923, p. 504) to contract, that in the event that the commission takes over the property covered by the petition at the end of the condemnation proceedings, the commission will pay, in addition to the condemnation award, the actual cost of the property contributed by the company, after the date of the appointment of the condemnation commissioners, or to condemn the same. This the Passaic Valley Water Commission has the power to do under the act (Pamph. L. 1923, p. 504, § 3), "may enter into a contract to purchase such water works for compensation to be agreed upon or fixed by condemnation proceedings, as hereinafter provided.”

But even without this offer, we see no practical or legal difficulty in applying the statute, so as to produce a result of just compensation in the award, for the property taken and the damages done by such taking. This loss is a damage to the company’s property not taken, caused directly by the taking of the rest of the company’s property. This loss is clearly recoverable as damages, in the condemnation proceedings, in the award. This process does not involve the taking of private property without compensation. The property actually taken and the damages to the remaining property is adequately covered by the award of the commissioners.

If the after-acquired property is rendered valueless in the judgment of the commissioners, by the severance of such property from the main property covered by the petition, this may be included as damages under the statute. Pamph. L. 1900, p. 81, § 5. The General Condemnation act (Pamph. L. 1900, p. 81, § 5) provides, "commissioners to examine and appraise the said land or property and to assess the damages.” Section 6, "the commissioners, &c., shall proceed to review and examine the land or other property, and make a just and equitable appraisement of the value of the same, and an assessment of the amount to be paid by the petitioner for such land or other property and damages aforesaid.” Section 7. Upon filing of the report, &c. The petitioner is hereby empowered to enter upon and take possession of said land or other property for the purposes for which the same was authorized to be taken. Manning v. New Jersey Shore Line Railroad Co., 80 N. J. L. 349; Bergen Neck Railway Co. v. Point Breeze Ferry Co., 57 Id. 163; In re Essex Park Commission, 80 N. J. Eq. 1; affirmed, 81 Id. 163.

In addition thereto, the situation feared by the prosecutor has not arisen, does not now exist and may never exist.

Fourth, the attempt to take the company’s property free and clear of liens is not authorized by Pamph. L. 1923, p. 504, and if consummated, may result in taking the company’s property without just compensation. We find no legal difficulty here, while it is true, the act (Pamph. L. 1923, p. 504) does not contain a specific authority, in express words, to condemn free and clear of the mortgage liens amounting in the aggregate to $7,936,000.

The argument is, as the act (Pamph. L. 1923, p. 504) provides, for an additional situation, under which the property may be taken, viz., subject to the lien of any mortgage or mortgages thereon; therefore, it excludes all other situations and the condemning party cannot acquire the property free and clear of the mortgage liens. This is a non sequitur.

The act (Pamph. L. 1923, p. 504) expressly provides “for the appointment of commissioners to condemn the water works in pursuance of and in the manner prescribed by an act entitled ‘An act to regulate the ascertainment and payment of compensation for property condemned or taken for public use [Revision of 1900].’” Pamph. L. 1900, p. 79.

An examination of that act reveals a clear purpose, to have the commissioners and the jury on an appeal, to make a just and equitable appraisement of the value of the property and the damages only. They have no concern with or function to perform with any liens, judgments or mortgages.. To ascertain the value of the property and the damages to be awarded, is their sole function. Then section 8 provides for the additional machinery to be invoked, when the property taken is encumbered by any mortgage, judgment or other lien, or in case, for any other reason, the petitioner cannot safely pay the amount awarded to any person, in all such eases, on petition to the Chancellor, the amount awarded may be paid into the Court of Chancery and there shall be distributed according to law. The powers of the Court of Chancery and the machinery therein provided for are not limited or cireumscribed by the amount or extent of the liens. These two acts must be read together, and when so read there is ample power and authority to take the property free and clear of the mortgage liens.

This has been the accepted practice in New Jersey for many years. In re Essex Park Commission, 80 N. J. Eq. 1; affirmed, 81 Id. 163; City of Newark v. Eisner, 100 Id. 101; City of Newark v. Cook, 99 Id. 527; Board of Freeholders of Hudson County v. Sinisi, 100 Id. 552.

These are all the points argued by the prosecutor in its brief.

The order of May 12th, 1928, appointing condemnation commissioners is affirmed, and the writ of certiorari is dismissed.


author: Donges, J.

text:
    Camden County Circuit Court.
    LEVI B. DIETRICH, ADMINISTRATOR OF THE ESTATE OF MARY A. DIETRICH, DECEASED, PLAINTIFF, v. NATIONAL CAMP, PATRIOTIC ORDER OF AMERICA, A CORPORATION, DEFENDANT.
    Decided April 21, 1928.
    For the plaintiff, Joseph C. Haines.

    For the defendant, Waddington & Mathews (Frank A. Mathews, Jr.).

   Donges, J.

This case was tried some months ago with a jury and a motion to nonsuit was held to afford counsel opportunity for investigation and more exhaustive argument than was possible at the time of trial. Briefs and oral argument have been submitted, so that the matter is now ready for disposition by me.

The facts are that Mary A. Dietrich was a member of Camp No. 98, Patriotic Order of America, a subordinate organization of the defendant. She died on June 10th, 1917. She was enrolled in the “Euneral Benefit Eund” of the defendant. This fund was maintained to pay funeral benefits upon the death of members of subordinate camps who were in good standing in the subordinate camp and who were enrolled in the funeral fund, for which certain sums were payable monthly to the defendant. As stated, the decedent, Mary A. Dietrich, died on June 10th, 1917, and there is testimony from which it can be found that she was in good standing at the time of her death. On July 21st, 1917, a check was issued by the defendant, after proof of death in accordance with its laws, in payment of the amount of the benefit payable upon the death of said member, which check was sent to the treasurer of the deceased member’s camp. The check was never turned over to plaintiff. Summons in this case issued June 29th, 1923, more than six years after the death of said member, but less than six years after the time of issuing said check dn payment of the funeral benefit.

Defendant raises three grounds for nonsuit. Eirst, that it does not appear that plaintiff has a right to bring the suit; second, plaintiff has shown no breach of the contract on the part of the defendant, and third, that the action is barred by the statute of limitations.

1. I am of the opinion that this suit may be maintained by the plaintiff. If the contract is one between the national camp and the subordinate camp, it is clearly for the benefit of the member and for those to whom the benefit is payable after the death of a member. Pamph. L. 1903, p. 541; Comp. Stat., p. 4059.

2. The second ground involves a question of whether payment to the treasurer of the local camp is payment of the amount due to the “widow, executors, administrators, assignees or legatees of the deceased.” Section 1, article 6 of the laws of the funeral benefit fund (Exhibit P 2) provides that “upon the death of a member enrolled in this fund, the secretary of the camp to which the deceased belonged shall forward to the National secretary proofs of said death, on the forms prescribed by the National executive committee. Said forms will be furnished on application.

“Upon receipt of which, the National secretary shall draw an order upon the National treasurer for the amount of the benefit in favor of the treasurer of the deceased member’s camp, who shall pay it to the widow, executors, administrators, assignees or legatees of the deceased, and this money shall not be subject to the debts of the deceased, except by assignment.”

The defendant alleges that its duty was performed when the check was sent to the treasurer of the deceased member’s camp. I am of the opinion, however, that the defendant designated the treasurer of the subordinate camp as its agent for the transmission of the check, and that payment to such treasurer is not payment to the beneficiary. It appears that the member had no control over the designated officer, nor does it appear that the subordinate camp had any control over the check except that if the subordinate camp advancéd any money on account of the claim for necessary expenses, it might be reimbursed upon receipt of the benefit check. In this situation, I think the treasurer of the local camp was the agent of the defendant, and its duty did not cease when it sent the check to such treasurer, whose duty by the law is to pay it to the person entitled to it.

It is also asserted that the plaintiff is not entitled to recover because section 3 of article 6 provides: "In case any claim is rejected by the executive committee, and the camp claiming the same desires to appeal, it shall be settled by arbitration,” and so on. This section does not apply, because it does not appear that the claim has been rejected and the camp of which the decedent was a member has made any appeal. The contrary appears, namely, that the claim was allowed and a check drawn to pay it, and upon failure of such payment, the suit was brought. This section therefore appears to me to be not operative in this case.

3. Defendant pleaded the statute of limitations, and asserts that the statute operates from the date of death. I think that section 10 of the statute (Comp. Stat., p. 3167) governs this case. This section provides that where there is an acknowledgment or promise in writing signed by the party chargeable thereby within six years, the operation of the statute is suspended. The laws governing this fund, promulgated by the defendant, provide that the National secretary shall draw an order upon the National treasurer and shall forward it as aboye stated. The drawing of the check seems to me to operate as an acknowledgment by the defendant. It is the method prescribed by the laws and must be taken to be in pursuance of due authority. I conclude, therefore, that if the cause of action arose at the death of Mrs. Dietrich, the suit is brought within six years from the time when the statute began to run, namely, within six years from the time when there was a written acknowledgment by the defendant of its liability.

I conclude, therefore, that the motion for nonsuit should be denied.


text:
    Camden County Circuit Court.
    HERBERT J. KOEHLER, RECEIVER OF J. R. TUCKER, INCORPORATED, PLAINTIFF, v. WILLIAM RICHMAN, DEFENDANT.
    Decided April 27, 1928.
    For the plaintiff, Louis B. LeDuc.

    For the defendant, Waddington & Mathews (Edward G. Waddington).

   Donges, J.

This suit is brought to recover the balance of commissions alleged to be due to J. R. Tucker, Incorporated, from the defendant. This case is submitted to me for determination without a jury, upon stipulated facts.

The following agreement was entered into:

“October 20th, 1925.
J. E. Tucker, Inc.,
313 Market St.,
Camden, N. J.
Dear Sir:
In consideration of your effecting sale of premises known as 428, 430, 432, 434 Broadway, Camden, N. J., for one hundred and forty-two thousand [$142,000] dollars, to do which you were authorized, we hereby agree to pay you five per cent, commission on one hundred thousand [$100,000] dollars, commission amounting to five thousand [$5,000] dollars and three per cent, commission on forty-two thousand [$42,000] dollars, commission amounting to twelve hundred and sixty [$1,260] dollars, total commission amounting to sixty-two hundred and sixty [$6,260] dollars.
One thousand [$1,000] dollars of the above-mentioned commission is handed you herewith; and we agree to pay you one thousand [$1,000] dollars on November 24th, 1925, and one thousand dollars [$1,000] on December 24th, 1925; balance of commission amounting to thirty-two hundred and sixty [$3,260] dollars to be paid at time of final settlement, March 20th, 1926.
Yours very truly,
[Signed] Wm. Eichmak.”

By the terms of the agreement of sale which was dated October 20th, 1925, $5,000 was paid on the execution of the agreement, $5,000 was payable November 24th, 1925, and another $5,000 was payable December 24th, 1925. Settlement was to take place March 1st, 1926, when a first mortgage of $100,000 and a second mortgage of $10,000 were to be executed and delivered, the balance of the purchase price of $17,000 was to be paid in cash. The agreement of sale was between William Eichman and Flora S., his wife, of the first part, and “J. E. Tucker, Inc., agent for Samuel Spring, of the city and county of Camden and State of New Jersey,” of the second part.

The defendant paid to Tucker $1,000 on account of commissions on October 20th, 1925, and on November 24th, when the second installment of $5,000 was paid by check of J. E. Tucker, Incorporated, the sum of $1,000, being the second installment on commissions, was paid. The installment of $5,000 coming due on the 24th of December, 1925, was not paid. An extension was requested by J. E. Tucker, Incorporated, and granted to a date in January, on which date Eichman threatened to forfeit the deposit money, whereupon Tucker recorded the contract and requested a further extension to the first day of March, 1926, and a still further extension to April 15th, 1926, both of which were granted. On or about April 15th, 1926, Tucker, Incorporated, advised defendant that the contract would not be performed on the part of the hujier, and the settlement never took place, due to the default of the purchaser. On June 8th, 1926, plaintiff, Koehler, was appointed, by order of the United States District Court for the District of New Jersey, receiver of J. E. Tucker, Incorporated, and has qualified and is now acting as such receiver.

The authority of J. E. Tucker, Incorporated, to act for Spring appears by the following correspondence between said J. E. Tucker, Incorporated, and Spring:

“October 12th, 1925.
Eeceived of Samuel Spring the sum of ten thousand [$10,000] dollars to be used in the purchase of real estate at the discretion of the undersigned, fifteen thousand [$15,000] dollars in addition to be placed in the hands of the undersigned on or before three weeks from this date.
[Signed] J. E. Tucker, Inc.
Accepted: J. E. Tucker, Pres.
[Signed] Samuel Spring.”

“October 13, 1925.

J. R. Tucker, Inc., and Mr. J. R. Tucker, President,

Federal Street,

Camden, N. J.

Dear Mr. Tucker:

In reference to our conversation yesterday and the $10,000 which I left on deposit with you at that time, I understand that the arrangement we entered into included the following understanding:

(1) That title to all property acquired by you with my money would be taken in the name of J. R. Tucker, personally as trustee, or in my own name as I should elect.

(2) That you in no way have any authority to commit me to any obligation in excess of $25,000 agreed upon.

(3) That the money which I deposit with jrou shall, as usual, be deposited in a special trustee or agency account by you.

(4) That you will keep me advised of each and every deal that you make and let me have for my records copies of all papers or contracts entered into.

The above is the usual precaution which I think a company of your size would take to protect its customers. I am happy to follow your discretion in the purchase or sale of such properties in Camden or immediately adjacent thereto which you may deem advisable. I am hopeful that you will give me some action plus some pleasant surprises.

I have checked over my financial commitments here and I see no reason whatsoever why I shall not be able to send you the additional $15,000 before the end of this month.

Kindly let me known when you are next coming to New York so we can go to lunch together. If I can be of any service to you in your plans hereabouts, I shall be happy to co-operate Avith you because it is always my theory of doing business that things must be mutual and one must give as well as take.

After the way Mr. David Stern spoke to me about you I haven’t any hesitation to trust you as I have. The amount of money involved means a good deal of money to me because I am not a wealthy man, but having confidence in Camden by reason of my observation' there and of you by reason of what Mr. Stern said, I look forward to my arrangement in Camden with confidence.

Yours very truly,

[Signed] Samuel Spring

S. Spring,

SS-m Secretary-Treasurer.

“October 16th, 1925.

Mr. Samuel Spring, Secretary-Treasurer,

First National Pictures, Inc.,

383 Madison Ave.,

New York City.

Dear Mr. Spring:

I am in receipt of your letter of October 13th, outlining the basis on which I am to handle the money you are placing with me to invest. The terms as outlined in your letter are according to our verbal agreement, so that your letter will serve as a contract between us.

I have already made a purchase in your account and will give you your copy of the agreement when I see 3rou in New York the coming week.

Very truly yours,

JRT:KT [Signed] J. R. Tucker, Inc.”

“November 5, 1925.

Mr. J. R. Tucker,

313 Market St.,

Camden, N. J.

Dear Mr. Tucker:

In reference to the property which you bought for me, I want to thank you for your assurances to me that I need not worry about the additional payments on settlement dates; that if for any reason the property is not sold by that time you will finance me so that we can take up these payments and I will not lose by down payments.

I shall not be in a position to arrange these finances. And, therefore, your assurances have relieved my mind.

I am right now in the midst of some very busy things for First National since we have let our sales manager go and I am supervising sales which is a pretty hig job. Therefore, I am going to forget about this property and leave it all up to you since I have no worries about payments on settlement dates.

Thanking you for your assistance and the kind way you have carried out my wishes that you should not obligate me for more than $25,000, I remain,

Faithfully yours,

[Signed] S. Speirg

SS-m S. Spbirg/’

"January 15, 1926.

Mr. J. R. Tucker,

c/o Tucker and Co.,

Market Street,

Camden, New Jersey.

Dear Mr. Tucker:

I have been checking over the documents which were signed in connection with the property in Camden and I notice that in regard to the piece on Broadway, you have signed 'J. R. Tucker & Co., Inc., agent for Samuel Spring/

I wish to make it clear that according to our agreement you had no authority to obligate me to any further payments, and that the only obligation on this contract of purchase is that of J. R. Tucker, and that I am not bound thereby.

It is true that I have consented to your putting my money on a basis where it may be necessary for further payments to be made to protect it, but this was upon your assurances that you would take care of it. At no time did I bind myself to make further payments. I suggest that you make this clear to the seller of the property.

I have written to you on this matter since I thought it to be of interest to both of us that there be no misunderstanding.

With kind regards, I am,

Yours very truly,

[Signed] S. Spking.”

It is stipulated that the defendant at no time had knowledge of the letters or of the relations existing between J. R. Tucker, Incorporated, and Spring, except as was disclosed to him by the agreement of sale.

The question to be determined is whether, upon this statement of facts, the plaintiff is entitled to recover the balance of commissions in accordance with the agreement between the Tucker corporation and the defendant. It is admitted that the defendant, Richman, knew nothing of the extent of the authority of the broker. Tucker did not disclose that its agency was a limited one, although it must have been known by Tucker that the payments called for upon the Richman contract alone exceeded the amount which Spring was prepared to pay for all purchases on his account. The further conclusion is irresistible that Tucker had made other contracts for Spring’s account, because on October 16th, 1925, four days earlier than the contract with Richman was made, Tucker wrote to Spring and said: “I have already made a purchase in your account and will give you your copy of the agreement when I see you in New York the coming week.” Further, in his letter of January 15th, 1926, Spring uses this language: “I have been checking over the documents which were sent in connection with the property in Camden, and I notice that in regard to the piece on Broadway, you have sigued ‘J. R. Tucker & Co., Inc., agent for Samuel Spring.’ I.wish to make it clear that according to our agreement, you had no authority to obligate me to any further payments, and that the only obligation on this contract of purchase is that of J. R. Tucker, and that I am not bound thereby,” &c. This repudiation was not denied by Tucker, and it must therefore be assumed that Tucker, in making the contract with Richman, knowingly acted beyond the scope of its authority.

A reading of the correspondence leads to the conclusion that Tucker, Incorporated, obligated itself on other contracts for Spring’s account, but knowing that if these contracts were not sold before the time when further payments and final settlements were required, that neither Spring nor Tucker, out of Spring’s funds, would be able to make such settlements.

It further appears that Tucker knew, because Spring advised him in his letter of October 13th, 1925, and in his letter of November 5th, 1925, that he was not able to make the payments required by the various contracts which Tucker had entered into him, and that Tucker would be required to finance them. Despite this knowledge, Tucker advanced the installment of November 24th, and thereafter procured an extension of the time of payment of the next installment due upon the contract. At no time did Tucker advise the defendant of the true situation. Eichman was not informed that Spring did not intend to perform the contract with him. When the installment of December 24th was due, Tucker requested an extension, thus indicating intention of the purchaser to perform, although it then knew that the purchaser would not be able to perform, if he still held the contract when the settlement date arrived.

As it has been said in Carpenter v. Overland Tire Co., 102 N. J. L. 196: “The essential requisite of an agent in the law is loyalty to his principal, and it is, of course, fundamental that an agent cannot recover from the principal in a case where he has been a party to the sacrifice of that principal’s interests without the latter’s knowledge and by fraud or intentional concealment.”

The recent case of Smith v. Kreps, 6 N. J. Adv. R. 399, held that a failure of an agent to disclose to his principal, the owner, facts which would alter the belief of the owner when he signed the contract that such contract would be performed by the other party, when in fact the agent had such knowledge, operated as a fraud upon the owner and precluded the agent from recovering commissions.”

In the instant case, the conclusion is inevitable that Tucker not only exceeded its authority, but knew when it signed the contract that it was exceeding its authority and that it was gambling on the sale of this contract, and perhaps other contracts made on Spring’s account, and knew further that unless it was able to sell .one or more of these contracts, that Spring would not be in position to perform. This was not the character of conduct which the defendant was entitled to receive from the broker. He was entitled to loyalty, and fair dealing, and full information, if the purchaser had imposed any limitation upon the reputed agent in making contracts for him.

I find as a fact, therefore, that J. R. Tucker, Incorporated, concealed the true situation, and that no settlement having taken place, it is not entitled to recover.

It seems so clear that there can be no recovery of commissions in this case, that I have not felt called upon to determine whether or not, under the circumstances, the contract was, in effect, that of Tucker and not Spring.

Judgment will be entered for the defendant.