text:
    THE STATE v. MAY J. BENNETT.
    Decided February 28, 1927.
    Crimes — False Pretenses — Indictment Charged That Defendant Obtained Money Upon Representation That She was Negotiating For the Purchase of a Business in Which the Person She Obtained the Money From was to Have an Interest— Proofs Supported Indictment — Evidence Not Improperly Admitted — Conviction Affirmed.
    On error to the Hudson Quarter Sessions.
    Before Gum mere, Chief Justice, and Justices Trenchard and Minturn.
    Eor the plaintiff in error, Alexander Simpson.

    Eor the state, J ohn Milton, prosecutor of the pleas.
   Per Curiam.

This case was submitted on briefs at the last May term of the court, hut, through the oversight of the sergeant-at-arms, neither the state of the case nor the briefs were sent to the members of the court until just before the opening of the present January term.

The defendant was convicted upon an indictment which charged that she did willfully and unlawfully, falsely and fraudulently pretend to one Minnie Wharton that she, the said May J. Bennett, was about to purchase a certain restaurant and business known as the Village Kitchen, situate at No. 179 Varick street, in the city of New York; that she was then and there negotiating with the owners of said restaurant and business to purchase the same, and did represent to the said Minnie Wharton that, upon the payment of certain moneys by her to the said May J. Bennett, she (the latter) would take the said Minnie Wharton as a partner in said restaurant and business after she had purchased it; that the defendant then and there well knew that she was not about to purchase the said restaurant and business; that she was not negotiating with the owners thereof for such purchase; that she did not intend to take the said Minnie Wharton in as a partner in the said business, and that, by color and means of the false pretenses and representations, she fraudulently obtained from the said Minnie Wharton the sum of $1,500, with intent to cheat and defraud her thereof.

The first ground upon which a reversal of the conviction is urged is that the proofs submitted on behalf of the state instead of supporting the charge laid in the indictment, demonstrate that the plaintiff in error and Minnie Wharton were engaged in a purely business transaction, honestly entered into by each of them, and which the plaintiff in error honestly sought to have carried out for their joint benefit; and that, consequently, the trial court should have granted the motion made on behalf of the defendant to direct a verdict in her favor because of the entire failure of proof supporting the charge laid against her. We are not able to concur in the view of the proofs suggested by counsel. Our examination of them satisfies us that Mrs. Wharton was led to believe that she was entering into a business transaction with the plaintiff in error by reason of the representations made to her by the latter, whereas, in fact, no such transaction was intended by the plaintiff in error, but was suggested merely for the purpose of fraudulently inducing Mrs. Wharton to part with her money. We conclude, therefore, that the motion to direct a verdict in favor of the defendant was properly denied.

It is next urged as a ground for reversal that the court improperly admitted evidence showing that the plaintiff in error had stated to Mrs. Wharton that she had deposited the sum of $800 as a part payment of the purchase price of the restaurant and business specified in the indictment, and would lose it unless she got $1,000 more in order to make good on her contract of purchase, when, in fact, she, under the proofs submitted by the state, she not only had not made any such deposit on account of such purchase price, but had never had any negotiations for the purchase of that restaurant and business, either with the owners thereof ór with anyone representing the latter. The contention of counsel is that the testimony should have been excluded because the falsity of the statement exhibited therein is not set forth in the indictment. It seems to us that this contention rests upon a failure to distinguish between the allegations of an indictment and the proofs offered in support thereof. The allegations of the present indictment is that the plaintiff in error falsely and fraudulently pretended that she was about to purchase the restaurant and business specifically set forth therein, and was in negotiation with the owners thereof for such purchase. The false statements made by the plaintiff in error to Mrs. Wharton with relation to the details of the alleged negotiations, and made for the purpose of inducing her to part with her money, were offered as proof of the truth of that allegation, and were properly admitted for that purpose.

The only other ground upon which a reversal of this conviction is sought is that the court erroneously (as it is contended) charged the jury that it could consider the evidence just discussed. What we have already said with relation to the competency of this testimony is dispositive of this contention.

For the reasons stated, the conviction under review will be affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ALBERT CRANE AND ANTHONY SICORANSA, RESPONDENTS, v. PIETRO DE LUCA, APPELLANT.
    Submitted October 6, 1926
    Decided February 28, 1927.
    Sale of Real Estate — Return of Deposit — Sale Not Consummated —Evidence to Show That Contract was Abrogated and That Defendant to Return Deposit If a Sale of the Property was Made Within Two Months — Such a Sale was Made — Judgment For Plaintiff Affirmed.
    On appeal from the East Orange District Court.

      Before Justices Kallsctei, Katzexbach and Lloyd.
    For the appellant, Wolber J Gilhooly.

    For the respondents, Milton B. Goldberg.

   Per Curiam.

This is an appeal from a judgment in favor of the plaintiffs rendered in the District Court of East Orange by the judge sitting without a jury. The action was to recover the sum of $100 paid as a deposit upon the making of a written contract between the parties whereby the plaintiffs agreed to purchase and the defendant agreed to convey premises 155 and 157 North Fifteenth street, in the city of East Orange, settlement to be made May 1st, 1926. The contract was not carried out, but in the agreed state of facts appears the following: “During the mouth of March the plaintiffs visited the defendant and stated that they did not wish to continue the contract because they were unable to obtain the mortgage necessary to finance the same. During the conversation with the defendant the contracts of both parties were torn up, the defendant agreeing to return the deposit to the plaintiffs if he sold the property within two months.” It further appears that the defendant did sell the property within the two months following the date of this conversation.

At the close of the plaintiff’s ease the defendant moved for a nonsuit and assigned as grounds therefor that the plaintiffs had failed to establish a cause of action; that they had not shown any consideration for the oral promise to return the deposit; that the plaintiffs had failed to show that the property was sold within two months.

The motion for nonsuit was denied and an exception prayed and allowed. A similar motion was made at the end of the entire case for a judgment in favor of the defendant, which was also denied.

The only real question in the case is whether the state of the case shows sufficient consideration for the defendant’s promise to return -the deposit. It seems to us that an adequate consideration is clearly exhibited as a result of the conversation above quoted. There is the expression of a desire on the part of the plaintiffs to rescind the contract and an implied request to the defendant to acquiesce therein; and, as we think, a like implied acquiescence of the defendant in this request evinced by the voluntary tearing up of the contracts held by the parties and the defendant agreeing to return the deposit money. In this the plaintiffs relinquished their right to purchase and the defendant was relieved of the obligation to convey, and as a part of the entire transaction the defendant agreed to return the deposit if he could sell the property within two months, which he did. In our view the state of the case presented an adequate cause of action which justified the judgment rendered in the court below.

It is therefore affirmed.


author: Minturn, J.

text:
    WILLIAM RANNENBERG, PROSECUTOR, v. THE CITY OF UNION CITY, DEFENDANT.
    Decided February 28, 1927.
    Municipalities — City of Union City Has Been Governed Under Act of 1908 — Question Whether, and to What Extent, That Act Still Operates in View of the Home Rule Act — Certiorari Issued but Not to Operate as a Stay.
    On rule to show cause.
    For the rule, William C. Asper.

    Contra, J. Emil Walscheid.

   The opinion of the court was delivered by

Minturn, J.

The question presented by the record, substantially moulds itself into the inquiry whether the act of 1908, chapter 179, under the provisions of which Union City has been, governed, still operates in its entirety as the basic law of the city, or whether its provisions have, in effect, been so modified, qualified or repealed by the provisions of the Home Rule act (Pamph. L. 1911, p. 352) as to enable the city council to pass the ordinance in question, relating to the powers and duties of the present commissioner of finance.

The testimony taken under the rule to show cause, super-added to the extensive and able arguments and briefs of the respective counsel, have clarified the situation, to the extent of making it manifest that there is a debatable question of legal construction involved, which in justice to the public, as well as to the future orderly management of the city’s affairs, should be presented to the Supreme Court for determination. The writ of certiorari applied for will therefore go. But, since the allowance of the writ carries with it a supersedeas, or stay of the orderly governmental procedure involved in the review, by which the salaries of the public employes would be withheld until the determination of the case, and since the question of the petitioner’s title to office or the title of any subordinates to office is not involved in this procedure, an order may be entered providing that the granting of the writ shall not operate as a stay.


text:
    MARY M. SMITH v. ELIZABETH M. GAVIN ET AL., ADMINISTRATORS, ETC.
    Decided March 3, 1927.
    Contracts — Employment — Services Rendered Defendants’ Decedent For a Period of Years Before Her Death as Housekeeper, Nurse, &c. — Verdict For Plaintiff — Whether Plaintiff was Working as Member of Decedent’s Family For Mere Love and Affection or For a Reasonable Compensation Under the Proofs was a Question of Fact For the Jury — Verdict Not Contrary to Weight of Evidence — Facts Considered and Held That the Statute of Limitations Had Not Run Against Any Part of Claim — No Error in Refusal to Admit a Draft of an Alleged Will as Evidence.

      On defendants’ rule to show cause.
    Before G-ummere, Chibe Justice, and Justices Trenchard and Minturh.
    For the rule, Aaron Marcler.

      Contra, Durand, Ivins & Carton.

   Per Curiam.

This action was brought by the plaintiff to recover for services rendered by her as housekeeper, nurse, &c., to the defendants’ decedent, Mrs.- Julia Halsted. The services which were the subject of the suit extended over a period beginning on May 1st, 1916, terminating at the time of Mrs. Halsted’s death, on August 14th, 1924. The jury found in favor of the plaintiff and awarded her damages by way of Compensation for these services in the amount of $9,722.80.

The first ground upon which we are asked to make the rule absolute is based upon the refusal of the trial court to grant a nonsuit or direct a verdict in favor of the defendants. These motions were based upon the theory that the plaintiff, during the period of the rendition of the services, was a member of the household of Mrs. Halsted, and that, this being so, there was no implication of a promise by Mrs. Halsted to pay the plaintiff for the services rendered to, and accepted by her, and n-o express promise to make such payment was alleged by the plaintiff. We think these motions were each of them properly refused. Whether the plaintiff was working as a member of the decedent’s family for mere love and affection, or for a reasonable compensation to be paid to her for h-er work, was, under the proofs, a question of fact, to be determined by the jury.

Next, it is argued that the verdict is contrary to the weight of the evidence and is manifestly the result of passion and prejudice on the part of the jury. It is also suggested that it is contrary to the charge of the court. Our examination of the proofs sent up with the rule satisfies us that they support the verdict, and we find nothing in that verdict which is not justified by the charge of the court to the jury.

Next, it is argued that the statute of limitations was a bar to the recovery for any services rendered by the plaintiff prior to April 27th, 1919; that is, six years and six months before the institution of the suit. A payment by a debtor, in part satisfaction of an admitted claim, made less than six years prior to bringing suit upon such claim, takes the case out of the statute of limitations. The proofs in the case made it a question of fact, to be determined by the jury, whether such a payment had not been made during the running of the statute. It is admitted that in March, 1924, the decedent paid the plaintiff $2,000 on an indebtedness theretofore existing for services rendered. Whether it was a payment in full, or on account of a larger sum then due and owing, was a matter in dispute between the parties. When it was made the plaintiff signed the following written receipt: “Asbury Park, N. J., March 24, 1924. Mrs. Julia M. Halsted, to Mary M. Smith, Dr. For services rendered to date, $2,000. Received payment, Mary M. Smith.” On its face, this would show an accord and satisfaction; but Mrs. Smith was called as a witness to explain its signing, and testified that she did. not read it, not being able to do so because she did not have her glasses with her; that she did not know what was in the receipt, and that the payment was not intended to be anything more than a payment on account. It is contended on, behalf of the defendants that her testimony was inadmissible, under section 5 of our Evidence act. We think not. The defendants offered in evidence the receipt, which was a transaction between the decedent and the plaintiff, and the plaintiff was competent to testify with relation to the matters referred to in it. It is further arg-ued that the testimony was incompetent, for the reason that the contents of a written instrument cannot be altered or modified by parol evidence. But this doctrine does not apply to a receipt for the payment of money. Joslin v. Giese, 59 N. J. L. 130, and cases cited.

Lastly, it is asserted that the court erred in refusing to allow the defendants to put in evidence what was stated to be a draft of the last will and testament of Mrs. Halsted, but which, apparently, had the signature torn off. We think this paper was properly excluded. There was no proof offered to show that it was in the handwriting of Mrs. Halsted or was written by anyone by her authority, nor was there any suggestion in the testimony that it had ever been executed by her as her will. In this situation, we consider that the paper was without evidential force as to the matters contained in it.

Eor the reasons indicated, we conclude that the rule to show cause should be discharged.


text:
    JOHN DINKEL v. COUNTY OF HUDSON.
    Decided March 3, 1927.
    Municipalities — Wages and Salaries — Quarryman Employed by County was Laid Off — Action For Payment of Wages Will Not Lie Where the Superior Officer was Acting Officially, Until His Right to Act Has Been Adversely Determined by Proper Procedure.
    On appeal from the Hudson County Court of Common Pleas.
    Before Gummere, Chief Justice, and Justices Teen-chard and Minturn.
    Eor the appellant, Warren Dixon.

    Eor the respondent, Robert H. Doherty.

   Per Curiam.

This is an appeal by the plaintiff from a judgment of non-suit entered in the Hudson County Court of Common Pleas. The plaintiff was employed by the county as a quarryman, at a salary of $100 a month, and was assigned to work in the quarry of the county located at Snake Hill, his work being the blasting out of rock in the quarry, to be subsequently used by the prisoners confined in the county penitentiary. The averment of his complaint is that about the 2d of December, 1912, the defendant, without any reason or without any complaint or charge being laid against him, suspended or discharged him from his employment until about the fifth of that month, when he was again put to work at the same place; that he continued at his work until the 10th of December, 1912, when he was again suspended or discharged, without any complaint or charge lodged against him, and was prevented from performing his duties as quarryman until about the 16th of Eebruary, 1914. His suit is brought to recover the wages, or salary, which he would have received if he had continued at work as quarryman during the periods of his suspension. The theory upon which it is rested is that he was protected from suspension or discharge by the provisions of our Civil Service act, unless and until a complaint was lodged against him and a hearing had upon such complaint.

Our consideration of the case leads us to the conclusion that the nonsuit was properly directed. Assuming, for the purpose of the decision, that a municipality cannot suspend or discharge a person holding a position or having an employment under the municipal government without first taking the steps provided in our Civil Service act, even though the action of the municipal body is taken for the purpose of avoiding the unnecessary expenditure of municipal funds, that act alone will not entitle the discharged employe to bring an action to recover his unpaid salary or wages. As was pointed out by this court in the case of VanSant v. Atlantic City, 68 N. J. L. 449, the official or body “charged with the duty of discharging an employe or person holding a position is acting judicially when so doing. His action is subject to review, and may be reversed. Hntil reversed, it stands. Whether there was or was not a proper proceeding for dismissal oannot be inquired into collaterally. It must be reversed by a direct proceeding to set aside the illegal removal before suit for salary can be maintained, or by a mandamus to compel the municipality to restore his position or employment.” This principle was reiterated by this court in the case-of Keegle v. Hudson County, 99 Id. 26; affirmed on opinion below, 130 Atl. Rep. 919, the opinion rendered in that case stating that “public policy forbids the settlement of contested issues, as to the legality of municipal action in the matter of offices or positions, in a suit for salary, where the right to salary is dependent upon the legality of a discharge. * * * The rule seems to- be well settled in this state that, in the absence of any judicial ascertainment of the illegality of the discharge, or any agreement that it was illegal, no suit for salary for any period when the plaintiff did not actually perform the service will lie until the illegality is admitted or ascertained by a proper proceeding.” The decisions referred to are dispositive of the question now under consideration.

The judgment under review will be affirmed.


text:
    JOHN L. PETTIT v. NEW JERSEY PAINT WORKS, HARRY LOUDERBOUGH, INCORPORATED.
    Decided March 3, 1927.
    Contracts — Employment—Employe and the President of Employer Corporation Had Proposed an Increase, and a Fixed Term of Years — The Corporate Employer, Through Its Board of Directors, Accepted the Proposition so far as it Related to the Increase, but Rejected the Fixed Tenure — They Then Terminated the Employment Before the Fixed Term of Years Would Have Expired — Plaintiff’s Claim That He was Not Bound by the Resolution as he Had Not Seen it Cannot be Sustained — He was Dealing With a Corporation Which Acted Through Its Board of Directors — By Accepting the Salary Increase He Accepted the Corporation’s Modification of His Proposition.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.

      For the rule, Charles L. Currick and Robert II. McCarter.

      Contra, Harrison & Roche.

   Per Curiam.

The plaintiff brought suit to recover damages for an alleged unlawful discharge from his employment by the defendant corporation. The proofs submitted by Mm showed that originally he was employed by the defendant corporation at a salary of $3,600 per year; that from time to time thereafter his compensation was increased; that in the year 1920 an agreement was entered into between himself and the defendant company’s president to the effect that his employment should be for a term of ten years, at an annual salary of 84,500, that being the compensation which he was receiving at the time of the alleged agreement; that in 1921, considering that he should have a larger salary than that provided for in the ten-j'ear agreement, the plaintiff had a conference with the president of the company with relation to an increase, and that it was then agreed between them, subject to the approval of the board of directors of the defendant company, that the plaintiff, in addition to Ms then present salary, should receive a bonus to be calculated on a basis of twenty per cent, of the annual profits made by the company after deducting therefrom a sum sufficient to pay a dividend of eight per cent, on the capital stock; that the matter was then submitted to the board of directors of the company for its approval or disapproval; that the board, after a consideration of the matter, passed a resolution affirming the action of the president, so far as the twenty per cent, proposition was concerned, but providing that the terms of the plaintiff’s employment might be terminated at the end of any year by the action of the board whenever it should seem to that body that such action would be in the best interests of the stockholders; that the resolution was adopted in July, 1921, and that the last of Ma3', in the year 1923, he was discharged by a subsequent resolution of the board of directors. It further appeared in the proofs that he accepted the action of the board of directors, so‘far as the increase in his compensation by the payment of said twenty per cent, of profits was concerned. The theory upon which his suit is rested is that, although he accepted the action of the board, so far as such increase in his compensation was concerned, he' was not bound by the provision that reserved to the board the power to discharge him from the service of the company when it should appear that such discharge would be for the best interests of the stockholders, because he had no knowledge that such reservation was contained in the resolution. He knew that the board had passed a resolution dealing with the matter of the proposed increase of his salary, but he says he saw no reason why he should take the trouble to read it and find out its scope; that he did not do so, and that his failure in this regard nullified the action of the board, so far as its power to discharge him was attempted to be reserved. In other words, his claim is that the action of the board, so far as it was beneficial to him, became a contract between the company and himself, but that, so far as it was derogatory to- his interests, it had no effect. This seems to have been the view of the trial court, as expressed in the charge to the jury, and on this basis the jury rendered a verdict in favor of the plaintiff, assessing his damages at $8,500, this amount being fixed as compensation for the loss of the contract during that portion of the ten years which was still to run.

• We think the view of the trial court as to the effect of the resolution is unsound. The plaintiff knew that, in accepting the bonus, or extra compensation, provided for in the directors’ resolution of July, 1921, he was dealing with a corporation which was acting through its directors by resolution. He was entitled either to accept or reject the contract offered by the resolution. He could not accept it in part and reject it in part, except with the consent of the board of directors. He cannot relieve himself from the obligation to ascertain what the offered contract was by saying that he did not see fit to read the resolution. He accepted the increase provided by the resolution, and by doing so he ratified the contract as tendered by the board. Counsel for the defendant requested the court to charge to this effect, and the request was refused. This, we consider, was legal error.

The rule to show cause will be made absolute.


text:
    NELSON BUILDING COMPANY, PROSECUTOR, v. GEORGE G. GREENE, BUILDING INSPECTOR, ETC., ET AL., DEFENDANTS.
    Submitted January term, 1927
    Decided March 7, 1927.
    Municipalities — Building Permits — Revocation — Several Days After Permit Had Been Issued and Prosecutor Had Demolished Large Building, Building Inspector Revoked Permit Upon Ground That it Had Been issued Under a Misapprehension — That He Thought There was to be a Four-Story Instead of a Five-Story Building — Order Revoking Permit Set Aside — Quaere, May a Building Permit be Revoked by Inspector Without Notice and Without Hearing?
    On certiorari.

    Before Justices Pabkeb, Black and Campbell.
    Eor the prosecutor, William E. Burlce and John Milton.

    For the defendants, William O. Asper.

   Per Curiam.

The certiorari in this case brings under review the revocation and cancellation of a building permit issued by the inspector of buildings, on March 25th, 1926, for the erection of a flve-story brick apartment building on premises known as No. 790 Boulevard East, in the township of Weehawken. After the issuing of the permit, on March 25th, 1926, the prosecutor demolished a large building on the plot of land in question, worth, according to the testimony in the record, $10,000, after which, on May 13th, 1926, forty-eight days .after issuing the permit, the building inspector served a notice of revocation of such permit, in which the reason given for such action on his part was “a misapprehension of the facts presented for my inspection.” The record shows that the misapprehension claimed consisted of the fact that he, the inspector, thought the plans submitted to the building inspector called for a four-story building providing for sixteen families, instead of a five-story building providing for thirty families. How he could have been deceived, if he had taken the most cursory view of the plans, is beyond our understanding. He does not say that the prosecutor made any false statement, but he, the inspector, thought a four-story and not a five-story building was called for.

The prosecutor having proceeded in good faith to demolish the building cannot now be made to suffer loss on any such excuse. Then, besides, it is argued with considerable force that the inspector had no power to revoke the permit issued by him arbitrarily and without notice and a hearing. Let this he as it may. We think the order revoking the permit, dated May 13th, 1926, should be set aside, with costs.


text:
    FRANK S. WALSH ET AL., PROSECUTORS, v. THE TOWNSHIP OF TEANECK ET AL., DEFENDANTS.
    Submitted January term, 1927
    Decided March 7, 1927.
    Municipalities — Ordinance Providing For the Laying Out of Street —Writ of Certiorari Should be Denied on Ground of Laches.
    On rule. On certiorari.

    Before Justices Pakker, Black and Campbell.
    Eor the prosecutors, Whiting & Moore.

      For the defendants, Benjamin R. Bujfeil and Wright, Vander Burgh d? McCarthy.

   Per Curiam.

A rule to show cause was issued in this case, why a writ of certiorari should not be allowed. It resembles in many respects and is somewhat similar to the rule allowed in the case of Jordan, No. 255, the present January term of the Supreme Court. In this case, a review is sought of an ordinance dated April 27th, 1926, providing for the laying out and opening of a public street from Cedar Lane northerly to Market street, in the township of Teaneck, to be known as Queen Ann road, and an award by the board of assessment commissioners, dated July 12th, 1926, of $33 for parcel No. I, being a strip of land 3.02 x 50.2 feet.

The brief of the prosecutors is on the general lines, as that in case No. 255, referred to above, with one additional reason assigned for the allowance of the writ. While the facts are not the same, as in case No. 255, the improvement is part of that general scheme. We find no merit in the reasons urged for the allowance of the writ.

As stated in case No. 255, under Pamph. L. 1925, p. 233, art. 20, § 23, the prosecutor had a right to appeal to the Circuit Court of the county, if dissatisfied with the award.

Under a line of cases, of which Durrell v. Woodbury, 74. N. J. L. 206, is illustrative, the writ should be denied, on the ground of laches, if its purpose is to test the validity of the ordinance.

The ordinance was passed April 27th, 1926, the award was made July 12th, 1926 (Eecord, page 72), all of which the prosecutors had knowledge. The rule was allowed September 11th, 1926.

As stated in case No. 255, certiorari is not a proper mode of trying the title to lands. Jersey City v. Howeth, 30 N. J. L. 521.

The rule to show cause is discharged and a writ of certiorari refused.


text:
    PUBLIC SERVICE RAILWAY COMPANY, PROSECUTOR, v. HACKENSACK IMPROVEMENT COMMISSION ET AL.. DEFENDANTS.
    Submitted January term, 1927.
    On application for a re-hearing.
    Before Justices Black and Campbell.
    Eor the prosecutor, Wendell J. Wright.

   Per Curiam.

The application for a re-hearing in this case is denied.


text:
    TILLMAN REINERT, PLAINTIFF, v. ATLANTIC CITY RAILROAD COMPANY, DEFENDANT.
    Submitted January term, 1927.
    On application for a re-hearing.
    Before Justices Black and Campbell.
    Eor the defendant, Floyd H. Bradley.

   Per Curiam.

The application for a re-hearing in this ease is denied.


text:
    WEST END INVESTMENT COMPANY, PROSECUTOR, v. REINHART O. OSTERMAN, BUILDING INSPECTOR, ETC., ET AL., DEFENDANTS.
    Submitted January term, 1927 —
    Decided March 7, 1927.
    Zoning — Stores in Restricted Territory — Case Within Rule in Nutley Case.
    On rule to show cause. On mandamus.

    Before Justices Parker, Black and Campbell.
    Por the prosecutor, Corn & Silverman.

    Por the defendant, Samuel D. Williams.

   Per Curiam.

This is the usual rule allowed in a zoning case, why a writ of mandamus should not issue directed to the inspector of buildings in the township of Maplewood, directing him to issue a building permit to the relator to build on the premises located on the northerly side of Parker avenue, in that township, two buildings, each two stories in height; each of brick construction for the first story and stucco and hollow tile for the second story; each building to be used for three stores and two apartments on the second floor. The only reason advanced for a refusal to issue a permit is the ordinance of March 15th, 1921, which divides the township into two districts, one of which is a residential district, the premises involved being in that district in which the erection of buildings to he used as stores is prohibited. This is not a legal excuse under the many eases decided by onr courts, such as Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 389. A peremptory writ of mandamus is directed to issue in this case. The relator is entited to costs.


text:
    SIDNEY S. JORDAN, INDIVIDUALLY, ETC., PROSECUTORS, v. THE TOWNSHIP OF TEANECK ET AL., DEFENDANTS.
    Submitted January term, 1927
    Decided March 7, 1927.
    Municipalities — Review of Ordinance Laying Out Street — No Merit in Reasons Alleged For Allowance of Writ of Certiorari —Statute of 1925 Provides For Taking of Lands or Any Interest Therein of Any Owner Thereof and Also, or an Appeal to the Circuit Court — Certiorari Not Proper Mode of Trying Title to Lands.
    On rule. On certiorari.

    Before Justices Paekee, Black and Campbell.
    Eor the prosecutors, Whiting & Moore.

    Eor the defendants, Benjamin B. Buffett and Wright, Vander Burgh & McCarthy.

   Per Curiam.

A rule to show cause was issued why a writ of certiorari should not be allowed to review an ordinance of the township of Teaneck, in the county of Bergen, dated May 11th, 1926, •providing for the opening of a fifty (50) foot public street running from West Englewood avenue northerly to State street, to be known as “Station street,” and, also, to review the proceedings of the board of assessment commissioners, dated August 17th, 1926, awarding $100 as the value of the prosecutors’ reversionary interest in a strip of land to be used for the public street, twenty-five (25) feet wide by two hundred and ninety-six (296) feet in length.

There is no legal merit in either of the two reasons urged for the allowance of the writ of certiorari. They call for no extended discussion.

The land in question had by deed, dated April 30th, 1883, been conveyed to the West Shore and Buffalo Bailway Company for the use of a railroad station, and if not used for the “purposes of a railroad station, that then and in that event the lands granted shall revert to the party of the first part, his heirs and assigns.” The testimony in the record further shows the land had been used by the public for more than thirty-five years and the railroad company had dedicated the street to the public.

The statute (Pamph. L. 1925, p. 233, art. 20, § 23) provides for the “taking of lands or real estate, or any right or interest therein of any owner thereof.” The same statute, same section, provides for an appeal to the Circuit Court of the county, where such municipality is situate, by any owner or owners of such land, who is dissatisfied with the award. Certiorari is not the proper mode of trying the title to lands. Jersey City v. Howeth, 30 N. J. L. 521.

A writ of certiorari is refused and the rule to show cause discharged.


text:
    CHRISTINA RINSCHLER, PROSECUTOR, v. MAYOR, ETC., OF THE BOROUGH OF ALPINE, DEFENDANTS.
    Submitted January term, 1927
    Decided March 7, 1927.
    Municipalities — Ordinances—Ordinance to Cancel Ail Assessments Made Under an Ordinance Providing For a Particular “Local” Improvement to a Street — Ordinance Clearly Illegal Because it Attempts to Vary the Provisions of the Ordinance Authorizing the Improvement — Also in Violation of Spirit of Home Rule Act Relating to the Approval by the Chief Executive of Disbursement of Moneys.
    On certiorari.

    Before Justices Pabkeb, Black and Campbell.
    Eor the prosecutor, Wright. Vander Burgh é McCarthy.

    For the defendants, Frederick W. Mattocks.

   Per Curiam.

The certiorari was allowed in this case to review a resolution of the borough council of the borough of Alpine, dated May 7th, 1926. The record is silent as to the approval of the resolution by the mayor. Let that be as it may, the resolution is clearly illegal and must be set aside. The resolution seeks to cancel all assessments made for the improvement of Miles street and to return moneys paid for such improve-' ment by the property owners assessed along said street, levied under an ordinance No. 26, approved August 4th, 1922. As stated, this resolution is clearly illegal, because it attempts to vary the provisions of that ordinance, providing for the improvement of Miles street, as a local improvement. It is also in violation of the spirit, if not within the precise terms, of the statute. Pamph. L. 1917, art. 14, p. 357, § 5. ''No money shall be paid by any officer of any municipality to any person, firm or corporation until such payment shall have been approved by the mayor or other chief executive of the municipality.” The resolution of May 7th, 1926, brought under review by the certiorari, is set aside, with costs.


text:
    RAHWAY VALLEY RAILROAD COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, JOSEPH LOMBARDY AND NEWARK HEIGHTS SUPPLY COMPANY, DEFENDANTS.
    Submitted January 28, 1927
    Decided March 10, 1927.
    Public Utilities — Railroad Siding Extension — Question Whether the Applicant had an Easement Over the Land Upon Which the Siding it Sought to Extend is Located — The Facts Considered and Held That the Existence of Such an Easement was Necessary, That the Case Had Not Been Properly Presented to the Commissioners, and That a Rehearing Should be Had.
    On certiorari.

      Before Justices Pabkek, Black and Campbell.
    Eor the prosecutor, McKirgan & Gilson.

    For the board, John W. Queen.

    For the defendant Lombardy, Congleion, Stallman & Hoover.

   Per Curiam.

The writ brings under review an order of the board made August 23d, 1926, requiring the railroad company to extend an existing siding, now on property of the Newark Heights Supply Company, formerly of Lombardy, to adjoining property now occupied by Lombardy.

The minor point is made that such a siding is not practically workable on account of the grades required. The board, after careful examination, found otherwise, and we cannot say there was no evidence reasonably to support its finding

The other point made is fundamental. It will be observed at once that an extension of the siding used by the Newark Heights Supply Company to adjoining land, and its use by the occupant of the latter land, involves an easement over the former Lombardy tract, now land of the supply company, in favor of the present Lombardy tract; and unless the existence of that right of easement is made to appear, the board was plainly without jurisdiction to make an order which would involve the taking of the supply company property for the benefit of an adjoining owner.

It is claimed in support of the order that such right of easement did exist, and in this way; that Lombardy originally owned the supply company tract, and made a siding agreement with the railway company providing, inter alia, that that company “may use such side track in connection with any extension of the same which the party of the first part (the company) may desire to construct for the purpose of reaching business or industries other than that of the party of the second part” (Lombardy) with an added clause of right of user, &c.

If this were clear on the facts, it might well be that notwithstanding the clause is apparently for the benefit of the railroad company, which by taking out this writ indicates its unwillingness to operate under it, yet under the Utility act it would be compellable to exercise its right to accommodate an industry beyond the existing siding. We do not pass on this point because we think it is not properly before us, the evidence as now presented failing to show the existence of an agreement binding either the railroad company or the lands of the supply company.

What appears is an unsealed writing dated September 20th, 1923, between “the Bahway Valley Company, lessee, a corporation of New Jersey, of the first part, and Lombardy Company, Incorporated, party of the second part.” This is signed for Bahway Valley Company by “B. A. Clark, President and General Manager,” and attested by “B. A. Clark, Secretary.” Then follows the signature “Lombardy Company, Incorporated,” no individual being named as executing officer, with an “attest: Louise Palmgren, witness.”

Assuming for the present that this document was properly executed for the Bahway Valley Company, lessee, the connection of that company with the present prosecutor does not appear. This, however, may be passed for the present. More important questions are. Is “Lombardy Company, Incorporated,” a corporation ? If so, is the document in question so executed as to be binding on it? And especially, did “Lombardy Company, Incorporated,” own the supply company tract at the time ? If not, can the paper be regarded as binding on the actual owner, and on what theory ?

Joseph Lombardy testified before the board in his own behalf that the Lombardy Company “was the individual company” and that he “operated under the name of the Lombardy company” as well as under other names.

Certain depositions were taken after allocatur of this writ in aid of our consideration of the case. It is objected that this is improper practice and that we should consider no evidence except that taken before the board. The disposition we make of the case as now before us renders it unnecessary to decide this point, but it may not improperly be noted that one of depositions indicates that at the date of the agreement, title of record was in Joseph Lombardy, and that no title of Lombardy Company, Incorporated, appears of record.

We consider that a primary essential to jurisdiction of the board to make the order under review was adequate, not to say indubitable proof of the existence of a valid easement over the supply company land, not merely in favor of the railroad, but available under the Utility act in favor of the owner of the secondary tract; the more so, as it is quite obvious on the depositions, that Joseph Lombardy is undertaking to assert such a right over the supply company tract in the face of his own personal warranty to his grantee of that tract that the premises were free of all encumbrances whatsoever, a point not made in the brief, but which we deem worthy of notice.

We consider that the case was not adequately presented to the board, and should be reheard with full consideration of all its phases, and that among these the force and effect of the document of September 20th, 1923, as binding the parties and conferring jurisdiction on the board should receive careful examination. Rehearing is accordingly ordered pursuant to section 38 of the Utility act (Pamph L. 1911, p. 374), and any doubt as to the availability of the depositions may be cleared up by taking the same evidence anew before the board.

No costs will be allowed.


text:
    MARLYN REALTY COMPANY, RELATOR, v. TOWN OF WEST ORANGE ET AL., DEFENDANTS.
    Submitted January 28, 1927
    Decided March 10, 1927.
    Zoning — Mandamus Refused on Ground That There is a Board of Adjustment to Which the Relator Has Not Yet Appealed.
    On rule to show cause for a mandamus.

    Before Justices Parker, Black and Campbell.
    Eor the relator, Rowe & Davis.

    For the defendants, Alfred J. Grosso.

   Per Curiam.

This is a zoning ordinance case. Eelator asks a mandamus for a permit to build in disregard of the limitations imposed by the ordinance.

It appears that the town of West Orange has a board of adjustment, as contemplated by Pamph. L. 1926, p. 526, and that relator did not appeal to that board.

Following the decision in Chancellor Development Corp. v. Senior, 134 Atl. Rep. 337; 4 N. J. Mis. R. 633, mandamus at this stage will be refused and the rule to show cause will be discharged, with costs.

Other similar cases are Letz & Katz v. Ackerman, 5 N. J. Mis. R. 169; Burg v. Ackerman, Id. 96; Bilt-Wel Co. v. Crange, Id. 180; Paramount Realty Co. v. Schmitt, Id. 177.


text:
    VINCENT COFONE, ADMINISTRATOR AD PROSEQUENDUM OF MICHAEL STUPELLI, PLAINTIFF, v. CHARLES D. GNASSI AND ANGELO GNASSI, DEFENDANTS.
    Decided March 12, 1927.
    Negligence — Death of Pedestrian, Caused by Defendants’ Automobile — Evidence of Negligence of Defendant Sufficient to go to Jury — No Sufficient Evidence That Plaintiff’s Intestate was Negligent — Damages Not Excessive.
    On defendant’s rule to show cause.
    Before Justices Katjsch, Katzenbach and Lloyd.
    Eor the rule, McCarter & English (Augustus C. Binder, Jr., of counsel).

      Contra, Wilbur A. Heisley.

   Per Curiam.

This cause was tried at the Essex Circuit and resulted in a verdict for the plaintiff, “who sued as administrator ad prosequendum and against the defendants for the sum of $5,000. The action was brought under the Death act, for the benefit of the widow of Michael Stupelli, an Italian day laborer, who, on May 3d, 1925, at about one o’clock in the morning, while crossing Bloomfield avenue, at or near the intersection of Abington avenue and North Eighth street, and had reached the center of Bloomfield avenue, about in the middle of the two tracks, was struck by an automobile driven by Angelo Gnassi, one of the defendants, son of Charles D. Gnassi, the owner of the automobile, the other defendant in the cause. In was conceded on behalf of the defendants that Angelo Gnassi was driving at the time for his father. As a result of the injuries sustained, Stupelli died, and hence the action was brought as above stated. The defendant obtained a rule to show cause why the verdict should not be set aside and a new trial granted, and in the brief of counsel of defendants there are three reasons presented and argued to that end — (1) That the plaintiff failed to prove negligence. (2) The plaintiff’s intestate was guilty of negligence which caused the collision in whole or in part. (3) The damages are excessive.

As to the first reason, we think it is clearly without merit. There was testimony tending to establish that the plaintiff’s decedent, while apparently crossing a public thoroughfare and had in fact reached the center thereof, was struck by an automobile which was being propelled at a speed of thirty-five or forty miles an hour, and was hurled or dragged by the automobile to the curb where he was found lying immediately after the accident. Prom this latter circumstance alone the jury was warranted to infer that the deceased was hurled from the center of the street by the violence and force of the impact as a result of excessive speed, or that the deceased was dragged to the curb by the fast-moving automobile before the driver could obtain control and stop it.

The second reason advanced for a new trial is equally, as the first, without substance. The plaintiff’s decedent was rightfully in the public street. He was not bound to anticipate that an automobile would be driven at such a rate of speed that the driver would lose control over its movements. The operator of the automobile admits that he saw the deceased in the middle of the tracks when the automobile was distant twenty feet from the place where the deceased was walking or standing, and says that he was driving the car at a speed of twenty miles an hour, and succeeded in stopping if within three feet after he struck the deceased. But, that in no manner establishes that the plaintiff’s decedent was guilty of contributory negligence.

Contributory negligence is a defense and the burden of establishing it is on the defendant. We were unable to find any fact or circumstance in the reading of the testimony tending to establish negligence on part of the deceased contributing to his injury except that of the driver of the automobile to the effect that the decedent was intoxicated and staggered in front of the automobile. But, even if the deceased was intoxicated, that by itself would not charge him with contributory negligence nor confer any right upon the driver of an automobile or any other vehicle to run him down. If the driver of a vehicle observes a drunken man in the street he is in duty bound to exercise the same degree of reasonable care that he would in the case of a child or helpless person. Whether or not the plaintiff’s decedent walked in front of the automobile was a jury question, and the jury in determining that question had a right to consider the credibility of the testimony of the driver and in that regard take into consideration the influence which might exert itself on •his mind to shield himself from consequence which might ensue to his detriment by having caused the death of the plaintiff’s decedent through excessive speeding of the car which he was operating.

Nor do we think the damages are excessive. The deceased was forty-four years of age at the time of his death. He was a laborer, but had steady employment. His widow was fifty-eight years of age at the time of her husband’s decease. He earned an average $48 a week. He gave his earnings to liis wile. Both were in good health. We think the verdict was a moderate one.

Buie discharged, with costs.


author: Katzenbach, J.

text:
    RAYMOND L. SIRIS, PLAINTIFF, v. HENRY D. BIALY AND WILLIAM F. KELZ, DEFENDANTS.
    Decided February 24, 1927.
    False Imprisonment — Assault and Battery — Slander—Defendants Held to Bail on Said Charges — Affidavit Discloses No Special Cause For Holding Defendants to Bail — Order to Hold to Bail Set Aside.
    On action at law. On motion to set aside an order made for bail.

      For the motion, Starr, Summerill & Lloyd.

    Contra, James Mercer Davis.

   The opinion of the court was delivered by

Katzenbach, J.

Each of the defendants above named was held to bail in the sum of $2,000 to answer unto the plaintiff in an action at law. The order was made by a Supreme Court commissioner. In the order it is stated that it was sufficiently proved that the defendants with force and arms did seize the plaintiff and imprison him for a long space of time, to wit, for the period of two hours, without any legal process whatsoever, and that the said defendants at that time did with force and arms beat, wound and ill-treat the plaintiff and did commit an assault upon him; that the plaintiff, a law-abiding citizen of good repute in the community, was willfully slandered by the defendant Henry L. Bialy, in the presence of a large number of persons, by Bialy calling the plaintiff “a dirty Jew Bolshevic,” thereby meaning that the plaintiff was unclean and was not a law-abiding citizen, but a person opposed to good government and the proper administration of the law.

The affidavit upon which the order was based discloses no special cause for holding the defendants to bail. The order-mentions no special cause. The defendants have moved to set aside this order. The grounds argued at the time this motion was heard are somewhat broader than those stated in the notice. It is perhaps only necessary to consider two of the grounds advanced to set aside the order. They are — (1) that .the affidavit does not set forth any facts which warranted the making of the order, and (2) that no special cause or causes for holding the defendants to bail were included in the affidavit, and the order sets none forth.

In disposing at this time of a similar application in another case (Jacobs v. Costanza), I have called attention to the fact that under the fifty-sixth section of the Practice act (Revision of 1903), an order to hold to bail cannot be made unless the proof establishes a special cause for holding the defendant to bail. In support of this ruling the cases of Hufty v. Wilson, 78 N. J. L. 241; Vitalano v. Roffo, 3 N. J. Mis. R. 1130, and Hand v. Nolan, 1 Id. 428, were cited. Under these authorities the order in the present ease is defective. The affidavit establishes no special cause. The affidavit also fails to present the facts necessary to establish an outrageous battery or mayhem. This is fatal to the validity of the order.

The order to hold to bail is set aside. The bail is discharged. The action may proceed as if commenced by summons. Upon the presentation to me of an order embodying the findings and rulings made in this opinion, I will sign it.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MAX REIDLER, PLAINTIFF IN ERROR.
    Decided March 12, 1927.
    Crimes — Conspiracy—This Case is One of the Results of the Investigation Into the Prosecutor’s Office in Morris County— There are Eighty-five Assignments of Error and Seventy-nine Specifications of Causes For Reversal — Many are Founded Upon Alleged Errors Which are of Precisely the Same Character as Were Those Presented and Decided in State v. Bolitho, 5 N. J. Adv. R. 251 — Other Comments are Made Here at Length.
    On error to the Morris County Court of Oyer and Terminer.
    Before Justices Kaltscii, Katzenbach and Lloyd.
    Eor the plaintiff in error, Elmer W. Romine.

    For the defendant in error, Wildred H. Jayne.

   Per Curiam.

The plaintiff in error was tried and convicted in' the Morris County Court of Oyer and Terminer on an indictment for conspiracy, and judgment having been pronounced on such conviction, a writ of error was sued out of this court by the plaintiff in error, to remove to it the record and proceedings for review. The case is before us not only on strict writ of error, but also under the one hundred and thirty-sixth section of the Criminal Procedure act. There are eighty-five assignments of errors and seventy-one specifications of causes for reversal. Many of the assignments and specifications are founded upon alleged errors which are precisely of the same character, involving the same legal questions as were presented to, and decided by, the Supreme Court in State v. Bolitho, not yet officially reported in the state reports, but is reported in 5 N. J. Adv. R. 251.

The indictment on which the plaintiff in error was convicted sets forth in the first count that he, together with Bolitho, who was at the time prosecutor of the pleas of Morris county, and Joseph Canty, wickedly, falsely, knowingly, corruptly and unlawfully, did combine, unite, confederate, conspire and bind themselves by agreement to pervert and obstruct justice and the due administration of the laws of the State of New Jersey, to wit, the “Prohibition Enforcement act,” by suppressing, concealing, stifiling and dismissing a complaint against Canty, and to forebear and refrain from prosecuting him, &c. The indictment then sets forth overt acts committed in pursuance of the alleged unlawful agree7 ment.

The second count alleges the conspiracy to be to pervert and obstruct justice and the due administration of the law of the State of New Jersey, to wit, the “Prohibition Enforcement act,” by unlawfully selling, 'bartering, transporting, importing, delivering, furnishing, manufacturing and possessing intoxicating liquor, &c., and to protect the said Canty from prosecution by reason of any violation of the said “Prohibition Enforcement act,” &c.

The third count is similar in all respects to the second.

There was a challenge in writing to Mr. Justice Parker, sitting in the cause, on the ground of interest and bias. The state filed a demurrer to the challenge. This challenge was based upon the same ground as was presented and ruled upon by the judge in State v. Bolitho, supra, in which case the Supreme Court sustained the legal propriety of the judicial action of the trial judge, in overruling the challenge, and as the facts, and the legal question springing from such facts, are the same here as those passed upon by the Supreme Court, in the quoted case, the matter is no longer open for debate in this court.

There was a motion to quash the indictment on various grounds, namely, that the indictment was found and presented by an illegally constituted grand jury, in that the members thereof were not selected and summoned under the law providing the manner in which grand jurors shall be selected and summoned, that the grand jury which found and presented the indictment against the plaintiff in error was, under the law, an unauthorized body because the members thereof were selected and summoned by elisors appointed by the trial judge for that purpose, and for which appointment of elisors and selecting and summoning of grand jurors there was no authority in law; that Mr. Jayne was without proper authority to appear before the grand jury for the purpose of presenting the evidence and for the prosecution of the indictment: that the clerk of the grand jury was illegally appointed and, hence, unlawfully in the grand jury room at the finding of the indictment; that one of the elisors was disqualified because he was a counselor-at-law; that only twenty-two members were sworn as grand jurors, &c. The trial judge denied the motion. These objections made to the present indictment are the same as. were made to the indictment in the case of State v. Bolitho, supra, and received the consideration of the Supreme Court, which tribunal held the objections were without legal force and sustained the judicial action of the trial court in denying the motion to quash the indictment on the grounds presented. This decision is controlling here.

So, also, it was determined by the Supreme Court, in the Bolitho case, that it was not a ground on which error could be assigned where the trial judge refuses a writ of certiorari to review an indictment for insufficiency. The motion to quash being addressed to the discretion of the court, is not appeal-able. In the ease sub judice there was also a motion to quash the indictment on the ground that the counts charging conspiracy were duplicitous; that the overt acts set out were not acts which were sufficient to support a valid indictment. The refusal of the motion to quash on these latter grounds is not reviewable under the one hundred and thirty-sixth section of the Criminal Procedure act and is not reviewable on error since the motion to quash, as has been already stated, is addressed to the discretion of the court, and since there was no motion to direct a verdict on the ground of the alleged defects in the indictment and no motion made in arrest of judgment for the same reason, either of which motions, if denied, would have made a basis for an assignment of error on the record, the matter is not properly before us for review.

There was a motion for a severance which was consented to by counsel of defendant. The defendant was then put upon trial alone.

Now, as to the plea of second jeopardy. The record discloses that after the plaintiff in error was put on trial and considerable testimony had been taken, that Canty, one of the defendants, but who was not put on trial, and who became a witness for the state, lunched with one of the jurors while the case was in progress, and Canty paid for the juror’s lunch; that this matter was called to the attention of the court, and after the hearing, and the facts being proven, counsel of defendant made this statement to the court: “If your Honor please, with all respect to the court and to the time and expense that has been consumed, it seems to me, the defendant, in the emergency, should have the benefit of a mistrial in view of what has occurred. I am sorry.” The trial judge discharged the jury from further consideration of the case. The case was adjourned to the following day, and before a new jury was empaneled, counsel on behalf of the plaintiff in error filed a plea of second jeopardy, and waived the filing of a traverse, in writing, by the state in reply to the plea, and consented that it be considered that the plea was traversed by the state, and that the issue, as to whether or not the defendant’s plea was efficacious, in law, should be tried and determined by the court on the facts, as they appear of record, relating to the mistrial and discharge of the jury. The trial judge overruled the plea, and we think properly so. According to the record, a mistrial was sought and asked for by defendant’s counsel, obviously, stirred by the thought that the testimony, which Canty, a co-defendant, might give as a witness for the state, and who had lunched with one of the jurors of the panel, trying the defendant, and for whose lunch Canty paid, would seriously jeopardize the liberty of the defendant, so far as that juror was concerned. The course taken by counsel of defendant In that respect is not open to fair criticism, hut he having requested and invoked the granting of a mistrial for the benefit of the defendant, his conduct, by itself, constituted a waiver of the jeopardy, which the law presumes to exist when a person is put upon trial before a court of competent jurisdiction upon an indictment which is valid in law and a jury has been impaneled and sworn to try him. The fact that the trial judge did not use the language of counsel that the defendant should have the benefit of a mistrial and declare a mistrial, but in his own language said: “I am sorry, ladies and gentlemen, we have wasted a day now on account of this unfortunate mistake of one of your number. I suppose it may be partly the fault of the court not to have cautioned you not to have anything to do with any of the parties or witnesses of this case while the trial was on. The jury is discharged and the case will be called for trial tomorrow morning,” is of no serious import.

The declaration of a mistrial leads to the discharge of the jury. The declaration made by the court led to the same end. We are unable to perceive that because the jury was discharged by the trial judge without the declaration that it was a mistrial how that could be of any importance or affect the legal status of the defendant since the declaration of a mistrial comprehends the discharge of the jury.

Under point five, of the brief of counsel of plaintiff in error, it is argued that the verdict was contrary to and against the weight of the evidence.

There was considerable testimony in the case tending to establish that the defendants had entered into a conspiracy to defeat the ends of justice, to prevent and obstruct justice and the due administration of the law. The testimony in relation to the overt acts which were committed by one or other of the defendants, to carry into operation the baneful organized purpose, can leave no doubt in a fair and impartial mind, that the unlawful acts committed by Canty or the defendants were not only encouraged by Bolitho, but that the duties of his official position, as prosecutor of the pleas, were to be and were prostrated to carry out the illegal schemes. It is only where a verdict shocks the sense of justice that a court will lend its aid to set aside such verdict. The verdict seems to us to be a fair and just one under the evidence, and, therefore, will not be disturbed.

Point six of the brief concerns itself with the refusal of the trial judge to direct a verdict of acquittal of the defendants after the close of the entire case.

What has been said respecting our reasons why a new trial should not be granted sufficiently explains that in our judgment there was ample proof which warranted a jury to find a verdict of guilty, and hence the direction of a verdict for defendant was properly denied.

Next, point seven of the brief under the caption: “Illegal evidence was admitted,” is a presentation by counsel of plaintiff in error, of the assignments of errors and specifications of causes for reversal, in this fashion: “Assignments of error numbers 20, 21, 22, 23, 24, 25, 33, 35, 40, 41, 42, 43, 44, 45, 46, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62 and'63 relate to the admission and rejection of evidence by the trial court which is assigned as error and also specified in the specification of causes as cause for reversal of the conviction of plaintiff in error.” “Assignments numbers 20, 21, 22, 23, 24, 25, 44 and 45 relate to the admission of evidence regarding the payment to plaintiff in error of money by the county, of Morris for his services as county detective;” and then reference is made to other assignments of errors by numbers. Nowhere in the brief is the testimony set out which it is claimed was illegally admitted or illegally rejected. Such a manner of presenting a case is highly reprehensible. But, further, nowhere in the brief does counsel of plaintiff in error point out in what respect the court erred in the reception or rejection of testimony upon which the assignments of errors and specifications of causes for reversal are alleged to be based. The only argument advanced in support of these groups of numbers by counsel of plaintiff in error is: “the admission of such evidence bearing on upon the guilt or innocence of plaintiff in error with reference to the accusations in the indictment.” Of course, if this be so, then the plaintiff suffered no harm. The brief continues: “The admission of such evidence” (bearing in mind that the testimony is not set out) “was for the purpose of creating a prejudice in the minds of the jurors.” This in no way points out in what respect the court’s ruling was erroneous as to the admissibility or rejection of testimony offered. The testimony might have well been competent, though prejudicial to the defendant.

We have, however, examined the assignments and specifications of causes for reversal and the testimony on which they are based and find no merit in the contention of counsel.

It is next, under point eight of the brief of counsel of plaintiff in error, alleged, in general terms, that there was error in the court’s charge, which errors are exhibited by numbers 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 and 85. The particular alleged errors in the court’s charge are not pointed out. The main contention of counsel of plaintiff in error is that the comments made by the court on the evidence in the cause invaded the province of the jury and was harmful to the defendant. The court several times instructed the jury that the facts of the case were solely in its province to decide. The trial judge expressly instructed the jury as follows: “Do not take anything that I may say about the evidence as being in any way binding on you. You are the judges of this evidence, and my comments on it are mere comments, and I may be entirely wrong, both as to what evidence was given and as to the deductions to be drawn therefrom; so do not consider that you are controlled in any way.”

This statement amply informed the jury that it was to rely on its own recollection of the testimony in the cause and upon its own judgment as to the effect of such testimony.

Judgment is affirmed.


text:
    JOHN J. McNULTY, PLAINTIFF-APPELLANT, v. DENNIS O’CONNELL, DEFENDANT-RESPONDENT.
    Submitted May 14, 1926
    Decided March 15, 1927.
    Conveyances — Leases—Meaning of Words “More or Less” — Appellant Leased Land Where These Words Were Used — He Built Thereon a Temporary Structure and Found He Had Encroached Upon Land of an Adjoining Owner — Held, That No Abatement For Lease can be Enforced.
    -On appeal from the First District Court of the city of Newark.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Abraham Alboum.

    For the respondent, Howe & Davis.

   Per Curiam.

This is an appeal by the plaintiff below from a judgment of nonsuit rendered by the First District Court of the city of Newark. The suit was instituted to recover the taxed costs of a suit in the Court of Chancery and damages growing out of the expenditure of money for the removal of a part of a building, which the plaintiff thought had been located on the land of the defendant below, but, in fact, had been built in part upon the land of others, namely, Grazulla Vacca and Felice Vacca. The following are the facts: On March 23d, 1923, Dennis O’Connell leased to Eli Markns and John J. McNulty a parcel of land which was part of a property known as 169 Eagle Rock avenue. In the lease the dimentions of the parcel leased were given as eight feet four inches, more or less, by one hundred feet, more or less. Later, Markus assigned his rights in the Lease to McNulty. McNulty built a refreshments stand upon the property. The stand had a frontage of eight feet. It extended back about thirty odd feet. It subsequently developed that the parcel of ground leased only had a frontage of seven feet two and one-half inches. The lot was wider as it approached the rear line, but for twenty feet from the front the stand encroached upon the land of the Vaccas’. The Vaccas instituted proceedings in the Court of Chancery for the removal of that portion of the stand built upon their land and were successful in obtaining a decree. McNulty removed the encroachment and then began the present action against O’Connell, claiming that O’Connell was responsible for the loss which he had been subjected to in removing the encroachment upon the Vacca property. The trial court gave a judgment of nonsuit as has been stated.

The agreed state of the case was settled by the attorneys o£ the parties. It recites the facts above stated. It further states that the defendant moved for a nonsuit on the ground that the wording of the lease (referring to the words “more or less”) established the rights of the parties and prevented recovery by the plaintiff. The court reserved decision and srrbsequently granted the defendant’s motion for a nonsuit. The contention of the appellant is that this ease falls within that class of eases where property has been conveyed by a description, more or less, and, subsequently, it has been found that there was a very considerable deficiency in the amount of land sold, and an allowance for the deficiency of land has been made. Couse v. Boyles, 4 N. J. Eq. 212, which was a suit for the foreclosure of a purchase-money mortgage. The land described was one hundred and thirty-five acres, more or less. A survey showed a difference of between twenty-two and thirty-four acres. In the case the court said:

“When, land is sold as containing so many acres ‘more or less/ if the quantity on an actual survey and estimation, either over-running or falling short of the contents named be small, no compensation should be recovered by either party. The words more or less must be intended to meet such a result. But if the variance be considerable, the party sustaining the loss should be allowed for it. And this rule should prevail where it arises from mistake only, without fraud or deception.”

In the case of Weart v. Rose, 16 N. J. Eq. 290, a deficiency of six and twelve one hundredths -acres, where the land was described as one hundred and fifteen acres, was held not to entitle the purchaser to an abatement in the price. These cases were between mortgagor and mortgagee. The present case is between lessor and lessee. We think the cases referred to are not a precedent for holding in the present case that the lessor should bear the loss sustained by the lessee. The defendant had guarded the description of the property by the words “more or less.” It seems to us that it was the duty of the plaintiff under such circumstances to have proceeded cautiously and perhaps have had a survey made before proceeding to build. The plaintiff was apprised by the words “more or less” that the dimensions were not accurate. He acted as if the dimensions were accurate. This we think he had no right to do. He should be responsible for his mistake in assuming that the description was accurate.

The trial court, in finding as it did that the plaintiff was not entitled to recover, must have found, if it considered the argument advanced by the plaintiff, as we presume it did, that there was no substantial deficiency in the amount of ground leased. This was a finding of fact which will not be disturbed in this court if there be evidence to support it. Duff v. Prudential Insurance Co., 90 N. J. L. 646. There was evidence to support it. The judgment below is affirmed, with costs.


author: Smith, J.

text:
    Essex County Circuit Court.
    JACOB KLEIN, ADMINISTRATOR, ETC., v. IRVING C. OFFEN.
    Decided March 5, 1927.
    Negligence — Death of Pedestrian at a Crosswalk, Caused by an Automobile Driven by Defendant — Verdict For Defendant— On Plaintiff’s Appeal, Court Reviewed Evidence and Held That the Verdict was Against the Clear Weight of the Evidence — Defendant Had Passed Another Car on the Other Car’s Right — This Car was Standing to Let Pedestrians Pass.
    On plaintiffs rule to show cause why new trial should not be granted.
    Eor the plaintiff, William L. Oreenbaum.

    For the defendant, Samuel D. Williams.

   The opinion of the court was delivered by

Smith, J.

This is a rule to show cause why the verdict rendered for the defendant in a death case should not be set aside and a new trial granted, on the ground that the verdict is contrary to the weight of the evidence.

The deceased was crossing Clinton avenue, in the city of Newark, after dark, between five and six o’clock, on December 1st, 1925. It was raining and she was unaccompanied. The proof adduced by the plaintiff, roughly speaking, was to this effect: That the deceased was crossing at a crosswalk from the south to the north; that a trolley car coming from her right and going in a westerly direction slowed down to allow the deceased to pass; that next to the trolley car, and proceeding in the same direction, was a car driven by a witness by the name of Mintz, who stopped and allowed the deceased to proceed in front of him; that the defendant passed to the right of the witness Mintz, going at a faster rate of speed, when Mintz slowed down and stopped; that the defendant proceeded and passed Mintz a distance of from twenty-five to thirty feet and struck the deceased with the front left side of his car, causing her death.

The defendant produced no witnesses to corroborate him as to the occurrence of the accident, and his testimony was to the effect that he had stopped with the traffic some distance before the scene of the accident; that he was traveling to the right of the Mintz car; that he did not look to the left when passing it, but looked to the front; that he felt a thump on the front of the left fender, but did not see the deceased before the impact, and was going slowly.

On behalf of the plaintiff it was claimed that deceased was crossing on a crosswalk from the end of Parkhurst street, which street does not continue north of Clinton avenue. The defendant does not fix the point of the accident, but says he did not get as far as Parkhurst street.

The presumption is that the deceased was in the exercise of due care. Danskin v. Pennsylvania Railroad Co., 76 Atl. Rep. 975. If she was not at the crosswalk, the rights of the deceased and of the defendant to use the highway were equal. The greater weight of the evidence was to the effect that deceased was crossing at a street intersection at or about the crosswalk. The defendant admitted hitting the deceased with the front of his. car. He passed the Mintz car on its right, and it is not necessary, it seems to me, to'decide whether or not under the circumstances it was a violation of the Traffic act, as reasonable care would certainly require that when passing a vehicle that was traveling on his left, the defendant should have made observation, which he admits that he did not do.

There is no evidence with which to charge the deceased with contributory negligence. The clear weight of the evidence is that the cause of death was the negligence of the defendant in failing to make observation to his left when passing the Mintz car, and that in the absence of negligence on deceased’s part, it was the proximate cause of the death.

The rule to show cause will be made absolute as being contrary to the clear weight of the evidence.


author: Backes, V. C.

text:
    Township of Maplewood, petitioner, v. Max Margolis, defendant.
    [Decided March 15th. 1927.]
    There is no equity in a bill to restrain the violation o£ a zoning ordinance which the law courts have held to be unlawful.
    On order to show cause for restraint pendente lite and motion to dismiss the bill.

      Mr. Samuel D. Williams, for the petitioner.

      Messrs. Howe & Davis, for the defendant.
   Backes, V. C.

The township' of Maplewood has a zoning ordinance. The defendant is desirous of building an apartment-house on his lot within a zone in which the erection of such structures is forbidden, and the authorities of the township having denied him permission he applied to the supreme court and it issued its mandamus that a permit be granted, it is assumed, on the authority of State v. Nutley, 09 N. J. Law 389, and Jersey Land Co. v. Scott, 100 N. J. Law 45. The bill, after stating the foregoing facts, pleads that “the supreme court of New Jersey in granting such writ of mandamus exercised its discretion only and could not and would not consider the equitable side of the matter, and your petitioner is without adequate remedy at law.” The prayer is to restrain a violation of the ordinance. Just what the equitable side of the matter is is not disclosed by the bill, nor was it pointed out on the argument, and a lone search of the chancellor’s conscience has not revealed any ground for equitable interference. If the ordinance were authorized by law, and the law provided no adequate remedy and protection, equity undoubtedly would lend aid, but, as the case stands, the township has no legal right; it has no lawful ordinance in respect of the matter upon which it rests its prayer for relief.

Counsel said on the argument that the bill was intended to carry the zoning question to the court of errors and appeals on the equity side, presumably, because favorable results have not been reached on the law side, but just how he expects to make this appeal for redress was not divulged, at least, not to our understanding, and, consequently, if his point has been missed, he must share with us the responsibility for the meagre account of our reason for denying relief in this branch of our judicial system.

The order to show cause will be discharged and the bill will be dismissed.


text:
    UNITED DINING CAR COMPANY, RELATOR, v. VICTOR KING, MAYOR, ETC., ET AL., RESPONDENTS.
    Submitted January 28, 1927
    Decided March 10, 1927.
    Municipalities — Restaurant Permits — Lunch Wagon — Whether Relator Had a Permanent Building in Doubt, and Held That Court Should Not Act by Way of Mandamus in a Doubtful Case.
    On rule to show cause in mandamus.

    Before Justices Parker, Black and Campbell.
    Eor the relator, Joseph II. Carr.

    For the respondents, Howard Tj. Miller.

   Per Curiam.

The facts relevant to> this case are fully stated in our opinion in United Dining Car Co. v. Camden, at the present term. Relator having applied for a permit to conduct a restaurant in the lunch wagon described in the other case, at the locality stated, and such permit being refused, applies for a mandamus to compel the issuance thereof.

In view of our decision in the cited case, it seems plain that we should not order a permit at this time. Apart from other reasons, a sufficient one seems to be that as matters stand, the relator has no lawful building in which to conduct the business sought to be licensed; at the best, its lawfulness is most doubtful, and it would seem from so much of the city ordinance as is laid before us that the building department may compel its removal or demolition. Without definitely deciding this point, it isi enough to say that the status of prosecutor in this aspect being seriously in question, the court should not act by way of mandamus in a doubtful case — an elementary rule — nor where it would create disorder or confusion. McCormick v. New Brunswick, 89 N. J. L. 117; English v. Asbury Park, 115 Atl. Rep. 64.

The rale to show cause will be discharged, with costs.


text:
    GEORGE LINZMAYER, PROSECUTOR, v. JOHN BAIRD, RESPONDENT.
    Submitted January 28, 1927
    Decided March 10, 1927.
    Appeals — Previous Judgment Alleged in Same Case — Held, That This Would Have Been Adequate Defense, But Return to Writ Does Not Show it, and That is Primarily Controlling.
    On certiorari.

    Before Justices Parkee, Black and Campbell.
    Eor the prosecutor, John P. Lloyd.

    For the respondent, Fred M. Burlew.

   Per Curiam.

The writ brings up a judgment recovered by Baird against Linzmayer in a justice’s court. The substantial ground urged for reversal is that the same plaintiff had previously recovered judgment against the same defendant for the same cause of action before another justice. That, of course, would have been an adequate defense if the former judgment had been set up and proved in the second action, but there is nothing to show that this was done. The return to this writ does not show it, and that is primarily controlling. Gory v. Jackson, 76 N. J. L. 387. In the moving affidavit for the writ, it is alleged that prosecutor moved to dismiss on the ground of the alleged prior judgment, but the moving affidavit lost its force when the writ was allowed, on the principle of Peer v. Bloxham, 82 Id. 288; and if this were not so> yet, neither in the affidavit nor in the depositions taken in the present cause without any rule of court and in attempted contradiction of the return, quite irregularly, as we think (South Brunswick v. Cranbury, 52 Id. 298), does it anywhere appear that any attempt was made to prove the former judgment; which, as an elementary proposition, was essential.

We find no legal cause to interfere with this judgment, which is therefore affirmed, with costs.


text:
    PAUL HANDLER, PLAINTIFF-RESPONDENT, v. NEWMAN & LOWY BEEF COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Argued October 5, 1926
    Decided February 14, 1927.
    Landlord and Tenant — Lease of Property Not Yet Finished— One Side Claims it was Ready For Occupancy on the Day Fixed, the Other, That it was Not — Each Submitted Evidence to Sustain Their Respective Claims — Court Ruled That the Landlord had Substantially Complied — Held, Error — There was Evidence Which Made it a Question of Fact for the Jury.
    On appeal from a judgment of the Second District Court of the city of Newark.
    Before Justices Kalisgti, Katzenbagii and Lloyd.
    For the appellant, Israel B. Greene.

    For the respondent, Henry P. Handler.

   Per Curiam.

This is a defendant’s appeal from a judgment of the Second District Court of the city of Newark. The action was instituted to recover rent alleged to be due on a lease. The lease was made July 3d, 1925, by the Chancellor Development Company to Newman & Lowy Beef Company, Incorporated. The premises leased were a. store on Union avenue, in Yelleville, New Jersey, in a building not erected at the time the lease was made. The lease was for a term of two years, with the privilege of renewal for three additional years. The rental was fixed at $1,200' per year, payable in equal monthly payments. The lease was to commence December 1st, 1925. One hundred dollars was paid by the lessee as rent for the first month. There was an oral agreement that no rent was to be collected for the months of January and February, 1926. When December 1st, 1925, arrived the building was not completed according to the testimony of the defendant. It had no electric fixtures installed. There is evidence that a few days before painters and other workmen were at work in the store. On December 3d, 1925, the lessee took the position that it was entitled to rescind the lease because the premises were not ready for occupancy. The present action was to recover the rent for the month of March, 1926. The plaintiff was the assignee of the reversion and acquired the rights of the Chancellor Development Company. The plaintiff claimed the store was ready for occupancy and submitted evidence to this effect. The defendant claimed that it was not ready for occupancy and submitted its evidence to-this effect. The defendant also filed a counter-claim for the recovery of the $100 which it had paid for December, 1925. The case was tried before a jury.

At the conclusion of the testimony the court ruled that there was a substantial performance by the landlord although the store was not ready for occupancy on December 3d, 1925, and directed the jury to return a verdict for the plaintiff for $100 for the month of March, 1926, rent, and directed that a verdict for the plaintiff be rendered on the counter-claim.

We think this was error as the trial judge should have left it to the jury to determine as a question of fact whether the premises were ready for occupancy on December 1st, 1925. A verdict should not be directed where there is a fair conflict of testimony on a fundamental issue. Carton v. Trenton and Mercer County Traction Corp., 90 N. J. L. 311. Where a lease is made for premises under construction there is an implied obligation that the premises will be ready for occupancy on the day fixed for the commencement of the lease. If the premises are not ready for occupancy, the tenant has a right to rescind. Gibbons v. Hoefield, 299 Ill. 455; Kopelman v. Gritman (App. Div.), 136 N. Y. Supp. 296.

The judgment is reversed and the case remitted to the District Court for a new trial. Costs will abide the event of the suit.


text:
    BARBARA DAMCHUK, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Submitted October 15, 1920
    Decided February 14, 1927.
    Negligence — Collision Between Motor Car and Trolley Car — Verdict For Passenger in Motor Car, Not For Driver — Question of Evidence Regarding Sobriety of Driver and of Passenger of Motor Car — Evidence Bearing Upon This Ground Excluded —Held, Error — The Defendant was Entitled to Cumulative Evidence on This Branch of the Case.
    On appeal from a judgment of the District Court of the Second -Judicial District of Essex county.
    Before Justices Kaliscii, Katzenbach and Lloyd.
    For the appellant, Joseph CouU.

    For the respondent, Anthony A. Calandra.

   Per Curiam.

This is an appeal by the Public Service Railway Company, the defendant below, from a judgment entered against it in the District Court of the Second Judicial District of Essex county. Two suits were instituted against the Public Service Railway Company to recover damages arising from a collision between an automobile and a trolley car which occurred on Market street, in the city of Newark. The owner of the automobile, Stanley Sternick, instituted one. The plaintiff, Barbara Damchuk, a passenger in Sterniek’s automobile, instituted the other. She obtained the judgment now appealed from. The court, in the Sternick case, decided that Sternick and the Public Service Railway Company were both negligent and gave judgment for the public service company. In the present case the sole ground of appeal is that the court excluded testimony bearing on the condition, as to whether drunk or sober, of Sternick and Barbara Damchuk. This evidence was admissible. Searles v. Public Service Railway Co., 126 Atl. Rep. 465; Castner v. Sliker, 33 N. J. L. 95. The error in the rejection of the testimony by the trial court appears to be admitted by the respondent, but the respondent claims that a witness by the name of Herman Crawsawski testified on this subject. He said, “Why, yes. I smelt liquor from the three occupants of that automobile.” It is claimed that this cured the error. In our opinion this did not cure the error. This witness did not testify as to the drunkenness or sobriety of Sternick and the respondent, but as to whether he smelled liquor upon them. They may have smelled of liquor and not have been drunk. Moreover, the defendant was entitled to cumulative evidence on this branch of the case.

This error makes necessary a reversal of the judgment obtained by the plaintiff below and the remission of the case for retrial.


text:
    FUEL SERVICE COMPANY, A CORPORATION, PLAINTIFF-APPELLANT, v. ARMSTRONG COAL COMPANY, DEFENDANT-RESPONDENT.
    Submitted October 13, 1926
    Decided February 14, 1927.
    Contracts — Sale of Coal — Delay in Delivery — Verdict For Defendant, Vendee — Question of Fact Regarding Verbal Contract, Whether Made Over Phone or at an Earlier Time — If Made Over Phone There was no Stipulation Regarding Delivery— Held, Supreme Court Cannot Review Finding of Fact of a District Court When Supported by Evidence.
    On appeal from a judgment of the District Court of the city of Passaic.
    Before Justices Kalisoh, Katzenbach and Lloyd.
    Eor the appellant, Benjamin E. Gordon.

    Eor the respondent, Edward F. Merrey.

   Per Curiam.

This is an appeal by the plaintiff below (hereinafter called the plaintiff) from a judgment of the District Court of the city of Passaic rendered in favor of the defendant (hereinafter called the defendant). The action was brought to recover the price of a carload of coal alleged to have been sold and delivered by the plaintiff to the defendant. The facts gathered from the testimony which is included in the record are as follows: On February 8th, 1926, Martin Baruden, treasurer and general manager of the Armstrong Coal Company (the defendant), was in the New York office of the Fuel Service Company (the plaintiff). Baruden wanted coal. The anthracite strike was in progress and his company was in great need of fuel. Baruden asked Melvin J. Nichols, a salesman of the Fuel Service Company, if he could procure for Baruden’s company coal. He wanted nut size. Nichols testified that he told Baruden that he would see what could be done, and that on the next day he telephoned Baruden that he could obtain the coal. It was to be a car of nut Pocahontas, which was a bituminous coal, but was considered a good substitute for anthracite. The price was $8.25 per ton. Baruden said he would take the coal, according to the testimony of Nichols. An acknowledgment of the order and the terms of the sale was sent to the Armstrong Coal Company, and it was returned signed “Armstrong Coal Co.” On February 12th, 1926, the anthracite coal strike was suddenly settled. The price of substitutes immediately went down. The documents offered in evidence show that the coal was shipped to the defendant on February 11th, 1926. There was a delay in transit as the coal did not reach the yards of the defendant in Paterson, New Jersey, until March 5th, 1926. On March 1st, Baruden notified the Fuel Service Company that ho would not take the coal. Baruden says, in his testimony, he canceled the order. When the car arrived on March 5th the defendant refused to receive delivery of the car from the railroad company. This suit was then instituted.

At the trial the plaintiff proved the conversation which lead up to the alleged sale, and produced the written contract signed by the defendant. The defense was that the contract was not made over the telephone, but at the office of the plaintiff on February 8th, 1926, and that as a part of the contract the plaintiff agreed to make delivery of the coal at Paterson within eight or ten days. The defendant repudiated the alleged acknowledgment of the order. The District Court reserved its decision. The judge later rendered a decision in favor of the defendant. No written opinion was filed. There is merely an entry on the docket that the court gave judgment for the defendant. The signature on the acknowledgment of the order which embodied the terms of the sale was denied by Baruden. From his testimony it can be inferred that the stenographer signed the acknowledgment and mailed it to the plaintiff. She did not testify. There were other officers that might have signed it. They did not testify.

In this state of the testimony there was a disputed question of fact. Was the contract made in New York on February 8th, 1926, and did it include the guaranty of delivery within eight or ten days at Paterson, as Baruden testified, or was it made over the telephone, as Mr. Nichols, of the plaintiff company, testified, and confirmed by the written acknowledgment of the defendant received later by the plaintiff, which contained no mention of the time within which delivery was to be made as testified to at the trial by Baruden? To arrive at the decision rendered by the District Court, the testimony of Baruden 'had to be accepted and that of the plaintiff’s witnesses rejected. Unfortunately, this court cannot review findings of fact made by the District Court when supported by evidence. Duff v. Prudential Insurance Co., 90 N. J. L. 646; Breithart v. Lurich, 98 Id. 556.

The judgment is accordingly affirmed.


text:
    MARGARET W. DEYMANN, RELATOR, v. MAYOR AND ALDERMEN OF JERSEY CITY AND JOHN SAUL, BUILDING INSPECTOR OF JERSEY CITY, RESPONDENTS.
    Submitted October 15, 1926
    Decided February 14, 1927.
    Municipalities — Building Permits — Case Before Court in 4 N. J. Mis. R. 571 — Proofs Not Then Clear, and That Decision was to Give Relator Opportunity to Show Filing of Plans, Etc.— This the Relator Has Not Done — Same Point and Agreement as Presented in Former Case — There Were Two Sets of Plans — It was Duty of Relator to See That Proper Set of Plans Were Delivered to Department — Writ Denied.
    On return to alternative writ of mandamus.

    Before Justices Kalisch, Katzlnbach and Lloyd.
    Por the relator, Pierre F. Cook.

    For the respondents, Thomas J. Brogan and Frank J. Reardon.

   Per Curiam.

This is a mandamus case. It is the same case which was before this court at the January term, 1926. In an opinion reported in 4 N. J. Mis. R. 571, an alternative writ of mandamus was at that time allowed because of the confusion of the testimony as to the presentation of plans by the relator to the building department of Jersey City. The proof was not clear. It was the purpose of that decision to give the relator a chance to show the filing of the plans, &c., of the proposed building with the building department. The case is again presented without the relator having availed herself of the privilege afforded her hv the former opinion to take further testimony on this subject. The record in this ease is the same as in the former case, except that the alternative writ and the return thereto have been inserted. We note that there is no demurrer to the return, so the case is not ripe for decision by this court. Moreover, the method taken is merely to get this court to reverse its former decision.

The first point argued by the relator is that the plans and specifications were regularly presented for approval and filed. This is the same point and argument as presented in the former application. This court then held that the testimony was too confusing an uncertain on this point to warrant the issue of a peremptory writ of mandamus. We now entertain the same view.

The relator’s second point is that no objection was ma^de to the method of filing the plans and specifications by the building inspector. As was pointed out in the former opinion, the confusion with reference to the plans and specifications evidently arose, because there were two sets, one handed to the department and the other not. It was the duty of the relator to see that the proper set was presented to the department. The argument of the relator, if adopted, would make it the duty of the building inspector to advise the relator that she had not filed the correct set of plans and specifications. The building inspector was under no such duty. If he knew of the relator’s mistake, which it does not appear that he did, the city would not be estopped to maintain the position it now takes. The objection made by the respondent is not to the method of filing, but to the absence of any filing of plans and specifications as required.

The third point argued by the relator is that there is no evidence of any allegation made in the return that the building code required any formalities in filing plans and specifications. It is not a question of formalities. The respondent contends that no plans and specifications were filed.

The relator’s right was held not to be clear in the former opinion.. The relator has chosen to ignore the privilege granted through the allowance of an alternative writ and to come before this court without attempting to clear up the confusion existing in the case.

A peremptory writ is denied, with costs to the respondent.


text:
    IRVING BABES AND FAY BABES, PLAINTIFFS, v. CARL SCHAUB, DEFENDANT.
    Submitted October 15, 1926
    Decided February 14, 1927.
    Negligence — Collision Between Automobiles — Injury to Car and to Wife of Plaintiff — Defendant Offered no Testimony— Verdict Alleged Excessive — Case Examined and Verdict Sustained.
    On rale to show cause.
    Before Justices Kalisch, Katüenbach and Lloyd.
    Eor the rale, Kalisch & Kalisch.

      Contra, John A. Matthews.

   Per Curiam.

This case is before this court upon a defendant’s rule to show cause. The action was instituted to recover damages to an automobile belonging to Irving Babes, one of the plaintiffs, occasioned by a collision with a car of the defendant, and damages for injuries received by Mrs. Babes, the other plaintiff, who was at the time of the accident driving the car. The case was tried at the Union Circuit. The defendant offered no testimony. Mr. Babes was awarded $500' for the damage to his automobile. Mrs. Babes recovered a judgment of $2,000. The reasons filed by the defendant are four as to each plaintiff. They are all argued together for the defendant in one brief. The argument is that the verdicts are excessive. With reference to Mrs. Babes, the testimony shows that she received injuries in the 'form of bruises to her abdomen. This resulted in nervousness. When Mrs. Babes had a recurrence of the pains in her stomach, her case was diagnosed by her physician as traumatic neurasthenia. Electrical treatments were necessary. The accident occurred on October 27th, 1924. The trial was held on June 23d, 1926. Mrs. Babes was still suffering at the time of the trial from nervous spells.

Under these circumstances we do not think the verdict excessive. Mrs. Babes was able, it is true, to occasionally look after her husband’s store during the period between the accident and the trial, but'this fact does not render unbelievable the testimony of her physician as to her condition. While the verdict is ample, we think it should stand.

The testimony with reference to the damage to the car was that it was wrecked. One door was smashed up. Five glass were broken. The framework on the roof was splintered. The roof cover was tom off. The chassis frame was bent. The fenders were bent. The body pillars were splintered. The car was not repaired by the plaintiff. No estimate of the cost of repairs was given. The car cost originally $1,610. It was a 1924 model. It had been run about one thousand miles when the accident occurred. There was no testimony as to the value of the car before or after the accident. While we think the testimony meagre and unsatisfactory, yet, we cannot say that it is insufficient to support a verdict of $500.

The rule to show cause is discharged.