text:
    Sarah L. Robertson et al., complainants, v. Criterion Construction Company, a corporation, et al., defendants.
    [Decided February 10th, 1928.]

      Messrs. McCarter & English, for the complainants.

      Mr. Merritt Lane, for the defendants.
   Backes, V. C.

The bill is to rescind an executed contract to exchange properties — the complainant corporation’s cottages at Deal for the defendant corporation’s apartment house in East Orange. The trade was made by Sarah L. Robertson, owner of the complainant company, and she charges that she was induced to make it by false representations of the Lunsky brothers, owners of the defendant corporation, as to the value of the apartment house, its rental value and the manner .in which it was to be constructed; it was not then finished. The defendant Bowes, a broker, previously retained by both parties, brought about the deal. Each of the parties put a fancy trading price on his property; there was the usual dealer’s talk; each knew before the exchange was consummated what he was getting, and it is an open question which of the two got the short end. The complainant says she did; that she was an inexperienced, confiding woman, and was duped in relying upon the representations of the two builders and the broker, who schemed to cheat her. The sympathetic ear of equity is always enlisted by the cry of the weak, and it is compassionately, extended to the weaker sex in their dilemmas, but measuring this woman’s business capacity by her conceit as a trader, there was no inequality. She is of the forward type, self-assured and sharp-witted, falling somewhat short of her own estimate, with no little experience in handling real estate, and her grievance must be judged as man to man. Confidence in her plea that she was wronged is, at the outset, shaken by the fact that after she says she knew the’ representations to be false, and after, as she said, she got a “rotten” deal, she traded the apartment house for another, and withdrew from that contract, by consent, because she again had been deceived, as she claims. And faith in her complaint is challenged by the fact that as it was originally presented she charged only fraudulent representations in respect of the value of the apartment house, and the rental value, and later, as if an afterthought, she amended her bill and added the charge of false representations concerning the construction of the apartment house as a completed structure. The bill was filed May 1st, 1925 — the amendment was made the following January at the hearing. In the meantime, on June 23 d, the bill was amended by adding the “(f)” false representation hereafter noted. These late additions of charges, which must have been known to the complainant when she first came to court, if they then grieved her, and her careless handling of the truth on the witness-stand, give the impression that she was not unwilling to resort to any expedient to win a decree.

Passing to the meritorious question. The misrepresentations alleged in the bill as originally drawn are — -(a) that the apartment house was worth $45,0'00 more than the property of complainant; (b) that the, apartment house could be sold for $154,000; (c) that the annual rent obtainable for the aparament houses was $16,800; (d) that each room of the apartment house would rent for $25 a month, and (e) that complainant would be able to pay $4,800 a year to reduce a certain mortgage held by a building and loan association, and, in addition, would realize a profit of over $3,000, and that the apartment would be completed in October, 1924. By amendment of June 23d, 1925, this was added — (f) that similar apartment houses in the city of East Orange in the vicinity of said apartment house were, at the time of the transaction, renting for $25 per month per room. The representations are in a way substantiated by Mrs. Robertson and two of her friends, and in the sense in which they are related by them, they are denied by the Lunskys and the broker Bowes. The Lunskys put their property in at $150,000, subject to mortgages; Mrs. Robertson hers at $90,000, subject to mortgages. Each party knew that his own was not his cash sale price. Mrs. Robertson’s not by $15,000. Neither was deceived that the other’s was not a trade value, and each judged for himself after an inspection of the other’s property. Any one in his ordinary senses would have realized that the Lunskys, if they claimed, that their property was worth $150,000, or $45,000 more than Mrs. Robertson’s, were indulging in shop talk. Surely she could not have thought they were making a gift to her of that excess. And so with the claim that Bowes, her broker, told her that the apartments could be sold for $154,000, which he denies making. Now, as to the prospective rentals. The total amount of rentals at $25 per room per month would have yielded the sum of the alleged representation, and $25 per month per room was a fair estimate at that time of high rentals, and other apartments in the neighborhood were bringing that amount, and the prospects were, and the reasonable expectation at that time was, that the annual yield would be as represented, and Mrs. Robertson, realizing that the representations were not guarantees, satisfied herself by a personal investigation. The rental income was problematical, depending upon the real estate boom then on and the continuance of the demand for apartments, of which there had been a scarcity, and it was so understood. Each took the other’s property, trusting that he would not be disappointed in his own judgment. There was no misrepresentation in this respect of an existing fact or of facts in the future. The principle of law on this subject, in its variety of application, is stated, and supported by authority in Wise v. Fuller, 29 N. J. Eq. 257: “It may be said, generally, an actionable misrepresentation consists in a false statement respecting a fact material to the contract, and which is influential in producing it. Statements of value made by a vendor during the negotiation between the parties, although known to be excessive, do not ordinarily constitute a warranty of a fraud. A mere expression of opinion as to value, although the amount stated is known to be excessive, is not a fraud, unless the person making it knew at the time that in consequence of the relations of trust and confidence existing between himself and the person to whom it was made, he would rely upon it and be controlled by it. A purchaser is not entitled to relief against a vendor for a false affirmation of value, it being deemed his only folly to credit a nude assertion of that nature. Besides, value consists in judgment and' estimation, in which men necessarily differ. But a remedy will be against a vendor for falsely affirming that a greater rent is paid for the estate than is actually received, for that is a fact within his own knowledge. And so a willful misrepresentation by a vendor affirming that the income from his public house has been greater than in truth it was, is an actionable fraud. The fact that a price in excess of its market value is paid for a thing, standing alone, is never evidence of fraud. Mere inadequacy of consideration will never substantiate a charge of fraud. In equity, inadequacy of value is, in general, of itself, no ground for impeaching a contract, but, with other circumstances of suspicion, it may constitute an element of proof in establishing fraud.”

Passing then to the representation alleged by the amendment to the bill to have been false, “that all materials being used in the construction of the apartment house were the best obtainable, that the work had been done, and was being done, in a workmanlike and first class manner and by competent mechanics, and in compliance with every requirement of the building code of the city of East Orange, and with every requirement of the tenement house laws of the State of New Jersey, and the rules and regulations of the state board of tenement house supervision, and that the said apartment house was being constructed in accordance with certain plans and specifications on file in the office of the building inspector of East Orange, and upon which a permit was issued on February 13th, 1924, by the said building inspector for the erection of the said apartment house, and, in particular, that the plastering and lathing work, the electrical work, the plumbing and heating, and the drainage was being done and installed in a workmanlike manner and in accordance with the laws, codes and rules above referred to, and that screens were being placed upon the windows in accordance with said plans and specifications, and that a parapet was being built upon the roof in accordance with the said plans and specifications, and in accordance with the laws, codes and rules above referred to.”

Before the trade was agreed upon the apartment house was up; the interior was being finished. Mrs. Robertson saw and examined it, and before the closing she had the benefit of the judgment of some builder friends, who also examined it, as to the stability of the structure, and she expressed her satisfaction except as to five items; some radiators and lighting fixtures were not in place, a door was not in place on the dumbwaiter shafts, the cellar was filled with debris, and the furnace was not covered with' asbestos. Her claim that she had been deceived because, as she says, the building was to be according to plans and specifications on file with the building department of the town, and that it was to have a parapet, is disingenious. There were plans and specifications filed by a previous owner, which the Lunskys followed generally, but deviated from, using their own taste and judgment as builders, and, as they had planned, they built. There was no deviation from their preconceived plans in finishing the building after they had bargained to trade it to Mrs. Robertson. They had built without parapet; the exterior was completed when Mrs. Robertson first saw the building, and she saw it was not a parapet-type building; if she and her builder friends ever did notice that it was or was not. Mrs. Robertson says she was in a measure persuaded to make the trade by the blueprints shown her. These blueprints, if she ever saw them, showed a parapet type of building, but that they had any influence on her is not perceivable. She took the apartment as it stood, “as is,” and it is quite apparent that the deviation played no part in the transaction, and that the cry of fraud in this respect is insincere and sham. It is in keeping with her loose testimony that the Lunskys had represented that the building would have a parapet, although it was obvious that the exterior was finished and that it was not that style of structure. And so with the heating system. The specifications filed by the former owner called for a vapor system; the Lunskys put in a one-pipe steam system. It had been contracted for before they dealt with Mrs. Robertson, and it was in place according to contract when the deal was closed. Mrs. Robertson saw it. She at that time had no knowledge of the old specifications, and, consequently, could not have been misled. As to the screens: It appears by Mrs. Robertson’s testimony that she adjusted this dispute long before she took title by an allowance to her of $500 out of the commissions due from her to her broker, Bowes. As to the representation that the construction of the apartment was to be in a workmalike manner (and it is not disputed that it is substantially constructed), the fact that some cracks developed in the wall -and in some places the plaster did not reach the floor or the floor shrunk away from the wall, requiring molding, the absence of a support under the main stairway, that a marble post was disintegrating, and other minor things that Mrs. Robertson dwells upon as proof of misrepresentation to warrant rescission, such imperfections occur in every new structure no matter how otherwise perfect the workmanship may be. At the time the bargain was made the work had not 'been fully performed; the promise to finish in a workmanlike manner was contained in the contract, and the remedy for such slight infraction of the contract is by an action at law upon the collateral undertaking. Complaint is made of the inadequacy of the heating and hot-water system. If it be a fact it may be due to faulty operation. It is not proved that the systems are not modern and adequate. There is no proof that there was any attempt to skimp the construction in finishing the apartment house after the bargain was made. The construction was in compliance with the building code and was so authoritatively certified for occupancy by the local authorities. The misrepresentations are not established.

But if it be assumed that the complainant was deceived into making or carrying out the contract of exchange by the representations, and if we assume that they were false, the fraud cannot avail the complainant because of her conduct. After she knew that all the representations she now relies upon for relief were false, she entered into a contract with one Decker to exchange her apartment for his. And, also, it appears that the Lunskys did not have the apartment’house ready for occupancy at the stipulated time, and because of this default they, in December, 1924, guaranteed the rent of fourteen of the apartments at $25 per room per month until May 1st, 1925, and long after the complainant knew, as she says, the representations were false, she insisted upon the pajrment of the guaranty. Furthermore, she knew early in March that the representations were false, if they were false, and she did not file her bill until May 1st. Such conduct is not only an election to affirm the contract, but it is highly persuasive that the complainant was not fraudulently imposed upon. The law is well settled in this state that to rescind a contract for fraud the injured party must act promptly after discovering the fraud, and that if he elects to affirm he cannot have a second election to disaffirm, and that he will be held to affirm unless he acts promptly to dis-affirm. In Dennis v. Jones, 44 N. J. Eq. 513, Chancellor McGill, in speaking for the court of errors and appeals, said: “It is the rule that the defrauded party to a contract has but one election to rescind, that he must exercise that election with reasonable promptitude after discovery of the fraud, and that when he once elects he must abide by his decision. Delay in the rescission of the contract is evidence of the waiver of the fraud, and an election to treat the contract as valid. So, payments of purchase-money, after knowledge of the fraud, are evidence to the same effect. And so, also, is the continued dealing with the property purchased and in reference to the fraudulent transaction, as if the contract were subsisting and binding.” In Faulkner v. Wassmer, 77 N. J. Eq. 537, Mr. Justice Garrison says that the rule of Dennis v. Jones is so clearly stated by Chancellor McGill “that in actual practice the only question likely to arise is whether or not the delay was such as to warrant its application, i. e., whether the vendee’s failure to act extended beyond the period within which one would naturally act who knew that to act effectively he must act promptly. The question in itself is not peculiar to this class of cases; it is present in all cases involving a reasonable time, concerning which, it is admitted, that no hard and fast rule obtains, and also that the difficulty that exists in cases that lie close to the line disappears with the lapse of time that has been permitted to intervene. Thus the question whether a landowner, who is under a duty to make repairs upon notice, is in default on the very day he had notice or the day after, may present difficulties that entirely disappear if he has suffered weeks and months to elapse. The case before us is of this latter character in that an election that could in reason have been made within a few days, or, at most, a few weeks after the right to make it arose, was, without any adequate excuse that was consistent with promptitude of action, delayed for months. It is precisely this conduct that [as we decided in Dennis v. Jones and Clampitt v. Doyle] affords plenary proof of an election to abide by the contract, which is irrevocable.” The principle of these cases was applied in Arnold v. Hagerman, 45 N. J. Eq. 186; Tierney v. Parker, 58 N. J. Eq. 117; Clampitt v. Doyle, 73 N. J. Eq. 678; Reed v. Benzine-Ated Soap Co., 81 N. J. Eq. 182. It is controlling here.

The bill will be dismissed.


source: Caselaw Access Project

author: Backes, V. C.

license: Public Domain

text:
    Trogan Building and Loan Association, complainant, v. Philmar Construction Company et al., defendants.
    [Decided February 10th, 1928.]

      Messrs. Nelson & Offen, for the motion.

      Mr. Joseph Zemel, opposed.
   Backes, V. C.

The complainant is foreclosing a first and a second mortgage. The first mortgage of $5,000 is not disputed. The second mortgage of $2,500 was given November 8th, 1923, and duly recorded. At that time there was of record a prior mortgage of $1,000 held by the defendant Melfi, who, on November 25th, 1923, executed to the complainant an instrument postponing the lien of his mortgage to that of complainant’s second mortgage, and thereupon the complainant advanced the money thereon. These facts are established and not denied on this motion to strike out as sham and frivolous so much of the defendant Melfi’s answer which denies that he postponed the lien of his mortgage to the mortgage of the complainant, and an allegation that the complainant’s mortgage is not the mortgage to which the defendant postponed his mortgage, and so much as sets up that the postponement was executed without consideration, and that the complainant did not rely thereon in making the loans. Melfi admits the execution of the postponement. It describes the mortgages involved with certainty and recites that the complainant refuses to make the loan without the postponement. He does not claim that it was improperly procured, nor does he deny that he knew its contents and understood, but his counsel’s notion seems to be that as the complainant’s mortgage was already executed and of record at the time his client' executed the postponement that the complainant was bound to make the loan, and that, therefore, there was no consideration for the postponement. The fallacy of this is too obvious for serious consideration. The complainant’s mortgage came into validity not by the recording but by the payment of the consideration, and its obligation to advance the money was conditioned upon procuring the postponement of the defendant’s mortgage. MelfL’s. claim that he did not receive the recited one dollar consideration for signing the postponement, and that he did not know of an understanding between the complainant and the mortgagor that the loan was dependent upon the execution of the postponement is sheer trifle.

The postponement of his mortgage was the inducement to the complainant to make the loan and parting with the money, relying on it, constituted the consideration.

The motion will prevail.


author: Buchanan, V. C.

text:
    Carrie E. Lukmire, petitioner, v. John H. Lukmire, defendant.
    [Decided February 10th, 1928.]
   Buchanan, V. C.

The petition is by the wife for divorce, with counter-petition by the husband, both on the ground of desertion.

The petitioner has failed to establish the alleged desertion, and the counter-petitioner admits on the stand that he made no effort to procure his wife’s return. Both the petition and counter-claim will be dismissed. A counsel fee of $50 and costs will be allowed to the petitioner.


text:
    Stephanus Simon, petitioner, v. Rosalia Simon, defendant.
    [Decided February 15th, 1928.]
   Buchanan, V. C.

The petition is by the husband for divorce on the grounds of adultery and desertion. The latter ground was abandoned after petitioner had testified that he had made no effort to have his wife return to him. The defendant was not present at the trial, and no testimony was offered in defense of the suit. The evidence offered on behalf of the petitioner entitles him to a decree for divorce on the ground of adultery. No contest was made for the custody of the children.


author: Per Curiam.

text:
    MANHATTAN UPHOLSTERING COMPANY v. GEORGE EPSTEIN ET AL., PARTNERS, AS EPSTEIN BROTHERS.
    Argued October term, 1927
    Decided January 26, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Simon Englander.

    For the appellee, Kessler & Kessler.

   Per Curiam.

The action was tried without a jury, in the Essex District Court, and judgment was rendered for the plaintiff for $350.

The action was to recover the price of a suite of furniture sold by the plaintiff through its saleman to the defendants. The furniture was delivered to the defendants in October, and the following day the salesman agreed to a return of the goods if the same were not sold by the defendants. Early in January the goods, not having been sold, were placed in defendants’ warehouse at the salesman’s suggestion, and in the following month, upon orders of the salesman, were transferred to the Globe Furniture Company in the latter’s truck.

The salesman testified that he gave defendants credit for the goods, and that he advised the plaintiff to charge it to his (salesman’s) account. The plaintiff’s testimony was that the salesman was not authorized to agree to a return of the goods; that previous returns were arranged by defendants over the telephone, whereupon the plaintiff immediately mailed to defendants credit checks therefor.

The first point is that the court’s decision was not in accordance with the law and the evidence; in that evidence showed that the salesman had apparent authority to make exchanges, refunds and credits. The entire case turned upon the extent of the agent’s authority, and the court sitting as a jury resolved it as a fact question against defendants. Doyle v. Loft, 98 N. J. L. 516.

The next point is that the evidence was conclusive that the goods were sold on memorandum (to be returned if not sold), so that title never passed to defendants. That also was a fact question for the jury, and was involved in the question of the extent of the salesman’s authority.

The final point urged is that the court erred in overruling the question, “and under that authority [certificate to whom it may concern stating that Mr.-was plaintiff’s salesman duly authorized to make collections], did you take returns of furniture from other?” The practice of the salesman in other instances, unless brought home to the plaintiff’s knowledge so that ratification of the practice might be inferred, was irrelevant. The question was not sufficiently comprehensive to suggest such a status, and was, properly, overruled.

The judgment will be affirmed.


text:
    PETER MORO v. SMITH & HOFFMAN AND BOARD OF EDUCATION OF HARDING TOWNSHIP.
    Argued October term, 1927
    Decided January 26, 1928.
    Before Justices Parker, Minturn and Campbell.

      For the rule, Harold A. Price and Elmer Romaine.

    Contra, Albert H. Holland.

   Per Curiam.

The case was tried before the court and a jury in the Morris Circuit. The situation presented by the status of the parties is peculiar in its results.

The board of education of Harding township contracted with Smith & Hoffman for the erection of a school building; Smith & Hoffman, as general contractors, subcontracted the mason work to the plaintiff Moro. Upon completion of the w„ork the board refused to pay Smith & Hoffman the last installment because of alleged defective mason work. Smith & Hoffman in turn refused to pay Moro, who thereupon brought suit against them. Smith & Hoffman then impleaded the board of education. The board filed a counter-claim and defended on the ground that the mason work was not satisfactorily performed according to the specifications. The jury found in favor of Moro, as against Smith & Hoffman, in the sum of $1,595, and in favor of Smith & Hoffman, as against the board, in the sum of $1,529.

The board's evidence was that Moro did not strictly comply with the specifications in that he did not use a sufficient amount of “anti-hydro” (a water-proofing compound to be mixed with the cement stucco placed over the cement blocks), and that in places he neglected to apply it, the result of which was that the building leaked in certain places, and the walls became discolored because of dampness.

Moro’s evidence was thát the leaks were due to the failure of the specifications to provide for caulking the space between the window frame and the stucco, with oakum or cement; that the discoloration of the walls, owing to dampness, was due to placing plaster directly on the cement blocks, the specifications failing to provide for furring between the blocks and plaster, and that he did the work properly, as required by the specifications.

The points argued in the brief in favor of the rule are— (1) that the verdict is excessive and contrary to the evidence; (2) that the jury failed to make allowance for the work improperly done, and (3) that the verdict is contrary to the charge of the court. Moro’s position was unique in that he confessed to Smith & Hoffman that the work was bad and to the board that it was excellent. The jury evidently believed him in his public confession, and they were within their power in that respect. We are unable to perceive error in these features of the case as they presented essentially issues of fact, which were properly submitted to the jury.

The rule will therefore be discharged.


text:
    MIDDLESEX WATER COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF NEW JERSEY, DEFENDANT.
    Argued May 30, 1927
    Decided January 19, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Frank Bergen and Robert H. McCarter.

    For the defendant, Thomas Brown.

   Per Curiam.

This writ brings up for review the order of the board of public utility commissioners dated December 1st, 1926, wherein the board ordered—

“1. That the said Middlesex Water Company be and is hereby authorized to'recoup from rates an amount of $42,-711 representing deficits below a reasonable return during the interval from April 1st, 1924, to December 31st, 1926, including therein audited or paid bills for rate case expenses to December 31st, 1926.

“2. That said deficit of $42,711 may be amortized by a surcharge of two and one-half per cent, to be added to the schedule of rates of the Middlesex Water Company, as modified by this order until such a time as the excess revenue produced by such surcharge shall have equalled said sum of $42,711; that said surcharge shall be effective on all bills for water sold on or after January 1st, 1927, and shall be imnosed and charged until said deficit shall have been amortized and no longer.”

At the outset we remark that the motion made by the defendant to strike out depositions taken by the prosecutor is denied for reasons given in another case between the same parties at this present term.

The controversy in the present case arises out of the following circumstances (briefly stated) :

Up to 1923 the board allowed the company substantially all increase in rates applied for. On December 10th, 1923, the company filed a third application for a substantial increase calculated to produce a return of $181,280 on a claimed value of $2,500,000. The board fixed a value of $1,736,205 as of December 31st, 1923, together with an estimated cost of the extension from Oak Tree to Woodbridge, and it set forth a schedule which in its opinion would produce the return of seven and three-tenths per cent, from rates to be effective April 1st, 1924, subject to a ten per cent, discount until the extension from Oak Tree to Woodbridge was placed in service, the service being admittedly inadequate. The company being dissatisfied with that order obtained an injunction out of the United States District Court against the board in enforcing its schedule of rates. The court held that the value of the company’s property as of the date fixed by the board was not less than $2,500,000. Thereupon the company, on January 1st, 1926, put into effect its schedule of rates as originally filed with the board, and the board took an appeal to the United States Supreme’ Court from the order of the District Court. In that situation the board instituted proceedings upon due notice to fix a reasonable ad interim schedule of rates following the District Court’s decision. It began with the value of $2,500,000 as of January 1st, 1924, and added thereto book additions which produced a value of $2,556,580 for nine months of 1924, on the basis of which, based on a seven and three-tenths return, the board found that the company experienced a deficit in its income of $78,-068 for 1924, and, by like calculations, a deficit for 1925 of $78,648, and in 1926 an excess of $123,105, which left a deficit of $33,611. The board allowed certain legal and rqte case expenses and found a total deficit of $42,711, which it amortized over a period of three years oil a yearly surcharge basis.

The position of the company is stated in its brief, broadly, thus:

“The prosecutor is entitled to recover its losses, caused by the defendant, and costs. This is not and cannot be disputed (citing cases). The only question is this: What is the amount? * * * The company claims that its losses and cost of hearings and litigation amount to $263,300.96, without interest.”

Now, the company has not made it to appear that that is so. On the contrary, we find that the board’s calculation of a total deficit of $42,711 is reasonably supported by the evidence. It finds support in the testimony and computations of the chief engineer and deputy chief engineer of the board. Both were duly qualified by education and experience and knowledge of the affairs of the company. By somewhat different methods of calculation both reach the' same result. Both started with the base value fixed by the federal court, $2,500,000. Considering their testimony in the light of the exhibits to which they referred, it reasonably appears that the additions thereto, less the depreciation set up by the company $21,486.06, showed an increase in value of $69,044 for twelve months of 1924, and by the same method of computation for the years 1925 and 1926 showed a value of $2,632,244 as of December 31st, 1925, and a value as of June 30th, 1926, of $2,663,469. It further appears that these values were taken as the basis of the computations of the different years, and that the deficits are the differences between a seven and three-tenths per cent, return on the value fixed by the federal court with additions to date, and the income actually received, and that showed a deficit for the last nine months of 1924 of $77,334, and for the year 1925 as adjusted, $76,257. The testimony further supports the proposition that the excess for full year of 1926 was $136,567, and that left a deficit of $17,024. It further appeared from such testimony that the rate case expenses were $20,350, and that the company had already paid out of its expense account $11,250, leaving a deficit on legal expenses of $9,100, and the total to be amortized from January 1st, 1927, $26,124. Erom such testimony it appears that the surplus for the first nine months of 1926 would have been $102,336, and this would increase the total amount to be amortized to $60,355. The board, however, computed the deficits to April 1st, 1927, amounting to $33,611, and added thereto unpaid legal expenses amounting to $9,100, making a total amount to be amortized of $42,711, and requiring a surcharge of two and one-half per cent, to be made in the bills which would produce about $14,000 per year and take three years to amortize the full amount of the deficit.

The company complains that the foregoing treatment of the controversy ignores “overheads” and “going-concern value.” We do not think so. The computation starts with the valuation of $2,500,000 fixed by the federal court and the valuation used for computation included overheads and going-concern value, and it should not be charged a second time.

The company also complains that the board did not allow deficits from January 1st to April, 1924. We think there is no merit in that complaint. The board’s schedule of rates did not go into effect until April 1st, 1924, and under Acquackanonk Water Co. v. Board of Public Utility Commissioners, 1 N. J. Mis. R. 575; affirmed, 100 N. J. L. 169, the company is not entitled to such alleged deficits.

The company also argues that “the consumers have had the full value of the service, and they should pay at least the amount that the defendant [board] said the service was worth, with interest, on the unpaid balance from the time when payment should have been made until it shall be made,” and says that “we think the prosecutor [company] is entitled to interest on the unpaid balance of its earnings.”

But in the circumstances of the present case we find no reason to disturb the order of the board because of its failure to thus include interest in its calculation. Indiana Bell Telephone Co. v. Public Service Commissioners, 300 Fed. Rep. 203.

The order under review will be affirmed, with costs.


text:
    JAMES J. MORGAN v. VERNON A. BOWMAN.
    Argued October term, 1927
    Decided January 26, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Merritt Lane.

    Contra, William H. Speer.

   Per Curiam.

This action was tried in the Morris Circuit, before the court and a jury, and resulted in a verdict for the defendant.

The complainant alleged that in March, 1926, the defendant was in the employ of Belhall Company, the owner of certain property in Mountain Lakes, New Jersey; that the plaintiff, with the knowledge and consent of Belhall Company, employed defendant as agent to negotiate the purchase of the said land, at actual cost price, to Belhall Company, without the addition of any commission charges; that upon the consummation of the purchase the defendant was to sever his connection with the Belhall Company, and was to become associated with the plaintiff in the organization and stock ownership of a corporation to be formed to take over the said land; that the defendant was to become general manager of the corporation in charge of the development and sale of the land; the complaint, therefore, continues with an allegation of fraud in the defendant which presents the gravamen of the suit, in that he represented the cost price of the land to the Belhall Company was $890,000, when, in fact, it was $801,000 the difference of $89,000 being paid by the Belhall Company to the defendant as commission.

The court charged that the only question for the jury to determine was whether the relationship of the parties was that of principal and agent, and, if so, whether there had been a full disclosure by the plaintiff of the commission paid to the defendant.

The court also charged the jury to eliminate the question of a partner relationship, to which charge the defendant excepted.

The court did not charge upon the question of fraud other than to say that if the relationship of agency existéd, it was the duty of the agent to make full and frank disclosure of the receipt of the actual commission paid.

The plaintiff made no request to charge upon the question of fraud, but took an exception to the court’s failure to so charge, which exception is reserved from this rule.

The theory upon which the case was tried and submitted presented essentially an issue of fact for the jury to determine, and in the submission of that question and its determination by the jury we perceive no error.

The rule will therefore be discharged.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. FRANK CASUSO, WALTER LEGENZA AND FRANK WUNKOWSKI, PLAINTIFFS IN ERROR.
    Argued October term, 1927
    Decided January 26, 1928.
    Before Justices Parker, Minturn and Campbell.

      For the plaintiffs in error, Edward M. Salley and George E. Cutley.

    For the state, John E. Toolan.

   Per Curiam.

This case is before the court on a strict bill of exceptions, and also under the one hundred and thirty-sixth section of the Criminal Procedure act.

The three defendants were convicted in the Middlesex Quarter Sessions of robbery. The state’s case disclosed that about three o’clock a. m. July 6th, 1926, a number of masked men, one of whom wore a policeman’s uniform, entered the plant of the Castle Ice Cream Company, in Perth Amboy, cut the telephone wire, rounded up the watchman and other employes at the point of guns; bound them with copper wire; blew the safe open and stole its contents, consisting of bonds, checks and cash amounting to $29,000. Two of the ice cream eompai^’s employes identified the defendant Casuso as one of the participants in the robbery, and Casuso does not join in this appeal.

The three defendants occupied a house in Woodbridge during the month of June, which house had been rented by Wunkowski under an assumed name. On July 2d the defendants moved up to a house in South Plainfield, which had been rented by the owner to a man for occupancy by himself and Wunkowski, but which, in fact, was occupied by the three defendants and others. The defendant Wunkowski and another man visited the ice cream company plant about a week previous to the robbery, and ordered ice cream sent to a fictitious address. The three defendants were at the Plainfield house on the evening of July 5th, and also at noon on July 6th, at which time they expressed their disappointment in not getting as much cash as they had expected from the adventure.

In an automobile used by Wunkowski, and stored in a garage hired for him, were found a policeman’s hat and coat. At the time of Wunkowski’s arrest there were found about his person $703 in cash and keys fitting the house in Woodbridge, the house in South Plainfield, and the garage in which his car was found.

The defendant Legenza threw the contents of a bag into the river, stating that they were checks. On July 10th a new Peerless car was sold to Legenza, his brother paying $1,99'5 therefor.

At the Plainfield house the police found bags, one of which contained $429 in small coin; the bags were similar to those furnished by the bank to the ice cream company; the coin had a salty taste, as did also the coin collected by the drivers of the ice cream company. Several coils of wire were also found, the wire being similar to that used in tying the company’s employes. There were also found in the house a revolver, fuse wire, torch tips and nitro-glycerine dynamite sticks. None of the defendants testified, nor did they produce any witnesses in their behalf.

It is contended that the court erred in refusing to direct a verdict at the close of the state’s case, and at the close of the entire case, and that the verdict was contrary to the weight of the evidence. This, manifestly, is without merit or substance.

It is next contended that there was errror in the court’s charge. A certain witness testifies that Wunkowski and Legenza were two of the conspirators who acted with Casuso. “There can be no doubt that a robbery took place, because it is not denied at all,” &c. This, obviously, was a statement of undisputed fact, and we are at a loss to perceive why exception was taken to it.

The conviction will be affirmed.


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    ADELINA GROLLEMUND, ADMINISTRATOR AD PROSEQUENDUM, PLAINTIFF, v. LOUIS ADLER, DEFENDANT.
    Argued October term, 1927
    Decided January 26, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Benjamin Gross and Leo Blumberg.

    Contra, Benjamin Schneider.

   Per Curiam.

The case was tried in the Hudson Circuit, and a verdict was rendered for the plaintiff for $3,000.

The action was instituted to recover damages for the death of the plaintiff’s intestate as the result of being struck by defendant’s automobile. The rule brings up only the question of the inadequacy of the damages.

The decedent was fifty-five years of age and in robust health; he earned $60 a week as a fancy cake baker, and gave his wife $50 a week, which sum included expenditures for his board and clothes; he left surviving him his wife, sixty years old, and four sons, aged, respectively, eighteen, twenty-two, twenty-four and twenty-seven. Two of the sons are married. The actuary gave his expectancy of life as seventeen and six-tenths years.

We think under the testimony and the circumstances arising therefrom that the rule should be made absolute as to damages only.


text:
    MIKE FIRKO, INDIVIDUALLY AND AS NEXT FRIEND, PLAINTIFF, v. BERNARD BROTHERS, DEFENDANT.
    Argued October term, 1927
    Decided January 26, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, William A. Moore.

      Contra, Walter S. Keown.

   Per Curiam.

The case was tried before the court and a jury in the Mercer Circuit, and a verdict for the father for $175 and for the son for $75 resulted. The plaintiff seeks a new trial as to the damages only, and it is argued that the verdict of $75 in favor of the infant son is inadequate.

The plaintiff was one of a number of school children playing in the street at the time of the injury. The court charged that “the uneontroverted evidence is such that if plaintiff were of more mature age, * * * I should feel it my duty to hold that as a matter of law, he, by his own conduct, contributed to his injuries, and, therefore, could not recover. I would so hold if plaintiff were of more mature years.”

The defendant produced no medical witness, but the doctor produced by the plaintiff testified that the injuries to the boy consisted of a fracture of the left fibula, and a compound fracture of the tibia, together with bruises and brush burns.

The boy was admitted to the hospital on March 8th, 1926, and was discharged therefrom April 2d, 1926. His leg was placed in a cast March 16th, 1926, and the cast was removed later at the dispensary; after discharge he reported to the dispensary irregularly for six or eight weeks, but the leg is now cured with a good union.

The plaintiff’s father testified that the boy was in the hospital five weeks; that the cast was removed three weeks after his discharge from the hospital, after .which time crutches were used by him for fourteen weeks. The boy is nine years of age.

We think, under the testimony, that the rule should be made absolute as to the damages allowed to the boy only. As to the father the rule will be discharged.


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    ETTA DOBBIN, RESPONDENT, v. ALEXANDER RATINER, APPELLANT.
    Argued October term, 1927
    Decided January 26, 1928.
    Before Justices Parker, Mintren and Campbell.
    For the appellant, Collins & Corbin.

    For the respondent, Ehrenkranz & Kay.
   Per Curiam.

The case was tried without a jury in the Second District Court of Newark, and judgment was given for the plaintiff for $425. The action was instituted by the plaintiff to recover for damages to her automobile, by reason of a collision with the defendant’s car.

The defendant filed a counter-claim, but the same was withdrawn upon motion of an attorney (not representing the plaintiff) for dismissal of the counter-claim, on the ground that the claim had been paid, and a release given by the defendant to the plaintiff.

The first point argued is that there was error in not granting the defendant a direction, because the plaintiff was guilty of contributory negligence as a matter of law. The essential facts were that the plaintiff looked as she approached the street intersection; that she traveled fifty feet to the point of the collision, while the defendant traveled one hundred and fifty feet. From these facts the defendant argues that the plaintiff was negligent in not stopping her car, since had she looked, or looked effectively, she would have seen defendant’s car approaching. This situation prevented a question of fact for the court sitting as a jury.

The next point argued is that the plaintiff admitted liability in that she paid defendant’s damage, and accepted his release therefor. The release was not in evidenc, and no evidence was offered to bring home to the plaintiff the payment of defendant’s loss, or the acceptance of his release. This also presented a fact question.

The judgment will be affirmed.


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    EASTERN NEW JERSEY POWER COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, RESPONDENTS. BOROUGH OF SPRING LAKE, NEW JERSEY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, RESPONDENTS.
    Decided January 27, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the Eastern New Jersey Power Company, Osborne, Cornish & Scheck.

    For the Borough of Spring Lake, Durand, Ivins & Carton.

    For the Board of Public Utility Commissioners, Thomas Brown.

    For the Jersey Central Power and Light Company, Walter L. McDermott.

   Per Curiam.

Two writs of certiorari were sued out of this court, one by the Eastern New Jersey Power Company and the other by the borough of Spring Lake. These writs were directed against the board of public utility commissioners to certify to this court for review an order made by the board on December 2d, 1926, which order the prosecutors allege was without the scope of the board to lawfully make, and which order attempts to deprive the prosecutors of their property without due process of law.

The cases, involving the same question, were argued together.

The order was made on December 2d, 1926, and became effective December 6th, 1926. A writ of certiorari was applied for and allowed December 18th, 1926. On the 15th of January, 1927, application was made on behalf of both prosecutors to the Chief Justice for leave to take depositions to be used upon the argument before this court. The application was granted. Depositions were taken accordingly.

When the argument came on to be heard counsel of defendants moved to strike out the depositions upon the ground that the testimony taken before the board, and upon which it rendered its decision, was the only proof that could be properly presented to and heard by the court on review.

We have had occasion to deal with this very question in the ease of the Middlesex Water Company against the same defendant, in an opinion filed at the present term, in which we held that the allowance of an order to take testimony after a decision had been rendered by the board of public utility commissioners, could be properly made under the eleventh section of the Certiorari act (1 Comp. Stat., p. 405), but that the scope of such testimony was limited, practically, in its legal effect, to the power of the board to make the order, and that the reviewing court would not weigh the testimony, for if there was any testimony before the board, which reasonably sustained the order made by it, the court would not interfere.

We find the same situation exists here, and will therefore follow the same course, by refusing to strike out the testimony.

This matter, being disposed of, brings us to the merit of the present controversy.

The order had its origin in the following facts: The borough of Spring Lake, located on the Atlantic ocean, is a municipal corporation in the county of Monmouth. Within its borders there were two companies furnishing electric light. One was the Eastern New Jersey Power Company and the other the Jersey Central Power and Light Company. The business of the Eastern New Jersey Power Company was confined principally to the northern part of the borough. The business of the Jersey Central Power and Light Company was confined principally to the southern portion of the borough. The borough owned some of the apparatus, especially along the boardwalk.

Believing it to be in the interest of economy of having a single contract for the electric lighting, the borough, in July, 1926, advertised for bids for furnishing street lights for the borough for live years, from November 2d, 1926, reserving the right to reject any and all bids. The Eastern New Jersey Power Company and the Jersey Central Power and Light Company bid. The latter company’s bid was lower. Both bids, however, were rejected. Again the borough advertised for bids, and it was at this juncture that the Jersey Central Power and Light Company petitioned the board to determine what territory within the borough should be respectively served by the two companies, and that both companies be enjoined from constructing facilities for borough lighting in that part of the borough in which the electric lighting was supplied by the other company.'

One of the principal allegations in the petition was that the borough was inviting bids for supplying electricity for the lighting of the streets of the borough as an entirety, so that the successful bidder would be entitled to light the streets of the borough with electricity to the exclusion of any other public utility corporation. The petition further set forth that as a result of the competitive bidding one electric company should do all the street lighting for the borough, and, as a consequence, the equipment of the unsuccessful bidder would be rendered useless, and there would be a duplication of poles, lines, equipment, all of which would entail an unnecessary and wasteful loss. Furthermore,, that such condition of affairs would practically sanction the invasion of the territory of one company by the other.

At the hearing before the board the borough, through its attorney, waived its right to cross-examine witnesses or produce testimony on its own behalf, practically resting upon the contention that the board had no jurisdiction over the borough in relation to the latter’s control of its public street in respect to lighting.

This situation left the subject-matter of the petition pending before the board to be contested between the two electric light companies. A full hearing on the petition before the board evoked the order now under review, which order is as follows:

“This matter having been heard by the board, and its decision entered, bearing date. October 14th, 1926, determining a boundary line between the portions of the borough of Spring Lake which should be supplied with electric light and power by the Jersey Central Power and Light Company and the Eastern New Jersey Power Company, respectively, the board hereby orders—

“(1.) The Eastern New Jersey Power Company to confine its operations and extensions as to street lighting service to that portion of Spring Lake lying north of the northerly line of Passaic avenue, except that it may continue to maintain its present existing lines of street lighting service that now extend southerly beyond the line already referred to.

“(2.) The Jersey Central Power and Light Company to confine its operations and extensions as to street lighting-service to that portion of Spring Lake lying south of the southerly line of Passaic avenue, except that it may continue to maintain its existing facilities for street lighting purposes, which now extend in the northerly portion of the borough, beyond the southerly line of Passaic avenue.”

The only question properly before us is, whether or not the board was lawfully authorized to make the order under the testimony adduced before it and in aid of the certiorari. If there is any testimony which reasonably sustains the finding of the board, such finding will not be disturbed.

The attack made upon the validity of the order by the borough is, that it is an attempt on part of the board to control the use of the streets of the borough relative to furnishing it with electric lighting. But this seems to us to be an unwarranted assumption. The two contesting companies are public utilities, and, therefore, their method of conducting, managing and operating their business, in which they are, respective^, engaged, is under the control of and within the jurisdiction of the board to regulate.

The service to be rendered by each of the companies is to be adequate service for the best interest of the public. Whether or not this service is adequately performed for the benefit of the public by competing lighting companies is a question preeminently for the board to determine. The board has full power when the circumstances require it to direct the manner in which the service owing to the public from each utility company is to be performed. While the streets of the borough may be incidentally affected by the erection of poles, stringing of wires or otherwise, in furnishing electric lighting, the creation of such a condition does not seem to us to be in conflict with any right of the borough in the control of its highways.

By Pamph. L. 1926, ch. 146, p. 226, § 15, it is, inter alia, provided: “The board shall have general supervision and regulation of, jurisdiction and control over, all public utilities, and also over their property, property rights, equipment, facilities and franchises so far as may be necessary for the purpose of carrying out the provision of this act.” And by Pamph. L. 1926, ch. 150, § 17, subdivision b, the board is invested with the power to require every public utility to furnish safe, adequate and proper service, and to keep and maintain its property and equipment in such condition as to enable it to do so.

Subdivision c provides: “To establish, construct, maintain and operate any reasonable extension of its existing facilities, where, in the judgment of said board, such extension is reasonable, and will furnish sufficient business to justify the construction and maintenance of the same, and when the financial condition of the said public utility reasonabty warrants the orginal expenditure required in making and operating such extensions.”

It seems to us, therefore, that the board, in making the order in question here, was acting fully within the powers conferred upon it by the law-making power of this state.

The Eastern New Jersey Power Company assails the validity of the order on the ground that it deprives the company of its property without due process of law and just compensation. We find no merit in this contention. We can glean no such import from the plain language of the order.

It is the common experience of the business 'world that every commercial undertaking of whatever nature is subject to the hazard of loss. It is manifest that an electric light company which undertakes to furnish a municipality with lighting its streets or public buildings and enters into a contract with such municipality, for either a short or long term of years to that end, necessarily takes into consideration the cost of furnishing adequate equipment for the purpose designed, and that a time will come when the term of the contract will expire and the municipality may not see fit to renew the contract. Here we have an illustration of what might happen and thus a loss entailed on an electric light company through the disuse of poles, wires, &c., for street lighting, in the event of a refusal by the municipality to renew the expired contract.

In the instant case neither of the companies has a right in perpetuity to furnish the electric lighting for the borough. It was conscious of this fact when it embarked in the business. It undoubtedly took into consideration the cost of its equipment and the fact that it may fall into disuse by failure of the borough to renew the contract. It very likely took into consideration all these matters in fixing the rate to be charged for furnishing electricity for lighting the streets of the borough.

But be this as it may, we can discern nothing in the order of the board which attempts to do anything more than to regulate how the two electric light companies shall exercise their franchises, and this the board was legally qualified to do under the statute above referred to.

The order is affirmed, with costs.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN BRUNO, PLAINTIFF IN ERROR.
    Submitted October term, 1927
    Decided January 31, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, George E. Cutley.

    For the defendant in error, John Milton, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was indicted, tried and convicted of receiving a stolen Eord sedan automobile of the value of $500. He was convicted on the charge of larceny. The points argued are that there was no proof that the car was stolen, and that the court erred in refusing to direct a verdict in favor of the defendant at the close of the case.

Edward Knight, a police officer, who arrested the defendant, Bruno, among other things, testified: Q. “And the man that you arrested as Bruno, do you see him in court to-day ?” A. “Yes, this gentleman.” Q. “And what was he doing with the car?” A. “Behind the wheel, just starting it up to get agoing.” Q. “He was in the car?” A. “Yes,” The testimony was sufficient to justify the jury in finding the defendant guilty. Prank Goetz, the owner of the car, testified that on January 13th, 1926, he left the car on Fourth street and the Boulevard, West New York, when it disappeared.

The judgment of the Hudson County Quarter Sessions is affirmed.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. CHARLES FARCHER, PLAINTIFF IN ERROR.
    Submitted October term, 1927
    Decided January 31, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, Harold Simandl.

    For the defendant in error, Joseph L. Smith, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was indicted, tried and convicted for manslaughter. The indictment charged the defendant with having on the 12th day of February, 1927, at the town of Irvington, Essex county, New Jersey, killed Charles Kuhn by running over him with an automobile.

The plaintiff in error files nine assignments of error. One to six, error in the charge. Seven to nine, error in refusing to charge certain requests.

We find no error in the charge. The alleged errors in the refusal to charge are all covered by the charge so far as it was proper for the court to charge.

The plaintiff in error in the brief argues the points raised under three heads. It would serve no useful purpose to go over and review these alleged errors in detail. We find no error in the record.

The judgment of the Essex County Quarter Sessions is affirmed.


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    THE PUBLIC NATIONAL BANK OF NEW YORK ET AL., PLAINTIFFS, v PATRIOTIC INSURANCE COMPANY OF AMERICA ET AL., DEFENDANTS.
    Argued October 5, 1927
    Decided January 31, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Jacob L. Newman and Merritt Lane.

    For the defendants, Leo Levy and Arthur T. Vanderbilt.

   Per Curiam.

This suit was brought to recover loss by fire to stock and machinery used in the manufacture of leather specialties partially destroyed by fire, on March 1st, 1935, on premises located at Nos. 113-135 New Jersey Railroad avenue, Newark, New Jersey, under policies of insurance.

There are six defendants. The several actions by order of the trial judge were consolidated and tried together as one case. The trial of the cases resulted in verdicts for the defendants. The plaintiffs obtained a rule to show cause reserving exceptions and write down one reason for a new trial, viz., the verdict was against the clear weight of the evidence. Not so.

The policies provide: “This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”

Our reading of the voluminous record and the briefs submitted in the cause satisfies us that the terms of the policy as above stated were violated, that the verdict, so far as being against the clear weight of the evidence, was in harmony with the evidence. The verdict is supported fully by the evidence.

The rule to show cause is therefore discharged.


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    GEORGE C. McAVOY, NEXT FRIEND, ET AL., PLAINTIFFS, v. WILLIAM I. SEGAL, DEFENDANT.
    Argued October 5, 1927
    Decided January 31, 1928.
    Before Gummere, Chief Justice, and Justices Black, and Lloyd.
    For the appellant, Cole & Cole.

    For the respondent, William Elmer Brown.

   Per Curiam.

This suit was brought to recover damages for personal injuries to the infant plaintiff Elaine B. McAvoy and incidental damages to the plaintiff, her father, George C. Mc-Avoy. The infant plaintiff Elain B. McAvoy, an infant six years old, was injured on August 6th, 1926. by being struck by the defendant’s automobile truck, when driven in a southerly direction along Washington avenue across Ventnor avenue, at or near where the two streets intersect in the city of Yentnor, New Jersey. The trial of the case resulted in a verdict in favor of the infant plaintiff Elain B. McAvoy for $7,500, and for the plaintiff George McAvoy for $500.

The defendant appeals and files twenty-six grounds of appeal, which are argued under seven heads in the appellant’s brief.

The problem for solution is, are there trial errors disclosed in the record ? The sharp question in the case is as the plaintiff says, the infant plaintiff was crossing Washington avenue from the west side to the east when the truck approached. The defendant’s claim is that the infant plaintiff, without warning, stepped from the sidewalk into the street, in a manner that should not he fairly anticipated by the driver of the automobile truck. There were but three witnesses to the accident, the mother for the plaintiff, the driver of the automobile truck and his helper. The truck came from the girl’s left, the accident happened about three feet from the curb.

Our reading of the record and the consideration of the grounds of appeal lead us to the conclusion that the defendant’s negligence was a jury question and properly submitted by the trial judge to the jury. We find no error in the first four assignments of error in admitting illegal testimony. Nor in number 5 denying a right to cross-examine the mother of the plaintiff as to what she said to the doctor concerning the child’s ailment. Nor in numbers 6 to 19 refusing to charge certain requests. Nor in numbers 20 to 22, which relate to the finding of damages. Nor in numbers 23 to 26, alleged error in the charge.

Number 6. “If the jury believes that the child ran into the truck, there must be a verdict for the defendant.” This was properly refused, as there is no evidence that the child ran into the truck or into the side of the truck. Bailey, the driver of the truck, says: “Just then she bolted out in front of me; I knocked her down.” It is also faulty, because it should have stated, if the jury believe “from all the evidence.”

Number 13. “If the truck reached the point of the aecident before the child left the sidewalk there must be a verdict for the defendant.” This was properly refused, as there was no evidence to justify such a charge.

Number 14. “The driver was not required to assume or anticipate that the child would run from the sidewalk into the moving truck.” If the truck had been going at a proper rate of speed this might be a good request, but there is no evidence that the child ran into the moving truck.

This covers all the points that seem to us to call for dis-' cussion. Finding no error in the record, the judgment of the Atlantic County Circuit Court is affirmed.


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    GLADYS SCHILLING, BY FREDERICK SCHILLING, HER NEXT FRIEND, ET AL., PLAINTIFFS, v. FRANK PERNO AND PETER POLICASTRO, DEFENDANTS.
    Submitted October 14, 1927
    Decided January 5, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Robert H. Doherty.

    Contra, John A. Laird.

   Per Curiam.

This was an action for damages arising from a collision of an automobile of defendants with the plaintiff Gladys Schilling, a child ten years of age. The happening took place on West Newark avenue in Jersey City.

The jury returned a verdict against the plaintiffs, and we are asked to set this aside because it is against the weight of the evidence.

We do not, however, find this to be so, and the rule to show cause is discharged, with costs.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRY HARTMAN, PLAINTIFF IN ERROR.
    Submitted October term, 1927
    Decided January 31, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, Weinberger & Weinberger.

    For the defendant in error, James M. Dunn and J. Vincent Barnitt, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was indicted, tried and convicted for rape upon Anna Prell, on the 14th day of April, 1925, at the city of Passaic.

This indictment is known as number 478. The assignment of error is that the court erred in refusing to direct an acquittal of the defendant at the close of the state’s case, because the prosecutor moved to nolle pros, an indictment number 479 against the defendant for a like offense at a different place, viz., in the city of Paterson, on the 14th day of April, 1925. This was not error.

We find no error in the record. The judgment of the Special Sessions of the Passaic County Court is affirmed.


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    BESSIE KATZMAN ET AL., PLAINTIFFS, v. THOMAS PROVEN ET AL., DEFENDANTS.
    Submitted October term, 1927
    Decided January 31, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Feder & Rinzler and Donald M. Lefferts.

    For the defendants, Kalisch & Kalisch and Carr & Carroll.

   Per Curiam.

This suit was brought to recover damages for personal injuries. The injuries sued for were caused on January 20th, 1926, to the plaintiffs, when riding in an automobile owned by the defendant Ida Kantor, hut operated by her agent, one of the defendants, Philip Englander, upon the Eiver road, at a point near Park avenue, in the town of Nutley. The injuries to plaintiffs were caused by a collision with an automobile owned and operated by the defendant Thomas Proven. A charge of negligence is made in the complaint against all the defendants. The trial resulted in a verdict for the defendants. The plaintiffs obtained a rule to show cause reserving the plaintiffs’ exceptions. Subsequently, the plaintiffs in the brief elected to have this court consider and deal with the exceptions, waiving the reservation.

The plaintiffs write down ten reasons for a new trial. Our reading of the record and a consideration of the reasons for a new trial and the plaintiffs’ exceptions noted at the trial, lead us to the conclusion that the rule to show cause should be discharged.

We find no sufficient reason for disturbing the verdict of the jury.


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    VICTOR ANTONUCCI, PLAINTIFF-APPELLANT, v. SAMUEL EICHENBAUM, TRADING AS PASSAIC PLUMBING SUPPLY COMPANY, AND IRVING MEYERS, DEFENDANTS-APPELLEES.
    Submitted October 14, 1927
    Decided January 5, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Feder & Rinzler.

    For the appellees, William E. Holmwood.

   Per Curiam.

This is an appeal from a judgment against appellant in an action to recover damages for injuries to a jitney bus owned by him. Such damages resulted from a collision between such bus and an automobile of the appellee Passaic Plumbing Supply Company, which was operated by its agent, Irving Meyers, the other appellee.

Appellant and appellee Passaic Plumbing Supply Company sought to recover damages against each other for injury to their respective vehicles.

Appellant’s bus in proceeding along Passaic avenue, Lodi, New Jersey, toward Passaic, was stopped by the owner of a Ford truck, who desired the. loan of a jack so that he might repair a tire on his car.

The Ford truck was standing on its left-hand side of the road, and the jitney bus was drawn up to its right-hand side of the road some feet ahead of the truck, so that the two vehicles stood on the same side of the street but headed in opposite directions.

Appellee’s car was being driven toward Passaic, the same direction in which the jitney bus was headed, and came in collision therewith.

The cause was tried by the District Court judge without a jury. He found both parties guilty of negligence causing the happening, and thereupon rendered judgment against both parties.

The appellant seeks to set aside this judgment against him, because he says the trial court erred in finding that he was guilty of negligence, which caused or proximately contributed to the happening, as there were no facts upon which to base such a conclusion.

Our examination of the proofs satisfies us, however, that there were facts, circumstances and conditions shown to exist upon which such conclusion of the trial court could be based.

The judgment below is therefore affirmed, with costs.


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    AUTOGRAPHIC REGISTER COMPANY, PLAINTIFF-APPELLEE, v. ALFRED LIRIO, TRADING AS LIRIO BASKET AND PAPER COMPANY, DEFENDANT-APPELLANT.
    Submitted October 14, 1927
    Decided January 5, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Charles P. Brewer.

    For the appellee, Edwin F. Miller.

   Per Curiam.

This is an appeal from a judgment in favor of plaintiff below entered upon a verdict directed by the learned trial judge.

The action was brought to recover the selling price of certain cash register machines and equipment.

The complaint was originally in two counts, one declaring upon book account and the other for the price and value of goods sold and delivered.

At the opening of the trial, and upon notice previously given, the complaint was amended by adding a third count declaring upon a trade acceptance.

It is upon this count that appellee seems to have stood at the trial, although the defense went in several directions.

It was upon the theory that recovery was sought upon the trade acceptance that the trial court directed the verdict.

As we find that there was error in such direction, we are not passing upon the other questions raised.

There was testimony that this trade acceptance was fully executed at the time of its delivery and was unconditional in its terms. There was also testimony that at the time of delivery it was in blank except for the signature of appellant, and was delivered to the appellee purely as an accommodation to it, and upon the agreement that it would not become due and payable unless and until the machines in question were made to operate satisfactorily.

There was therefore a question for solution by the jury. If the trade acceptance was, as contended for by the appellee, complete at the time of delivery, or if not complete, but, subsequently, was completed as agreed upon and was unconditional, then appellee was entitled to recover, but, upon the other hand, if it was not complete at delivery, and was filled out in a manner not authorized, and it was conditional as asserted by appellant, and such condition had not been met, then appellee was not entitled to have a recovery thereon.

Eor this reason, therefore, the judgment below is reversed, with costs.


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    LEWIS J. DARE AND WINFIELD S. CLARK, PLAINTIFFS v. ATLANTIC CITY ELECTRIC COMPANY, DEFENDANT.
    Argued October 5, 1927
    Decided January 5, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Thompson & Hanstein.

    Contra, Francis A. Stanger, Jr.

   Per Curiam.

The suit was to recover for the loss from fire alleged to have been caused by the negligence of the servants of defendant in setting, controlling and guarding a fire on its lands.

Dare sued for the loss of his barn and has a verdict for $1,900, and Clark sued for loss of personal property contained in the barn and consumed by the fire and has a verdict of $1,296.50.

The fire was started on defendant’s lands at about eight-thirty of the morning of Eebruary 22d, 1927, the material burned being some old lumber making a heap five feet long by three high and three wide, and was built up against the trunk of an old decayed tree lying upon the ground. This was at a distance of from two hundred and eighty-five to two hundred and ninety-five feet from the barn of plaintiff.

The barn did not burn until twelve-thirty to one o’clock of the morning of Eebruary 23d. The last evidence of fire on defendant’s land was testified to as having been seen at about nine o’clock of the night before, when it is said there was still a small fire there sending up sparks that carried about fifteen feet.

The fire in plaintiff’s barn seems to have been discovered by one Schultz who left his home to go to work about twelve-thirty a. jvi. of February 23d, who, upon approaching the barn, smelled smoke and heard the live stock making a noise and then saw a tongue of flame coming from the top of the barn roof at the east end, and the whole building burst into flames almost immediately thereafter.

These verdicts are sought to be set aside:

1. Because the trial court erred in refusing to nonsuit and direct a verdict upon the ground that there was no evidence of negligence, and

2. Because the verdicts are against the weight of the evidence.

We are passing the question as to whether a nonsuit or direction of verdict should have been granted, although it is difficult, if not impossible, to find any evidence warranting the sending of the cause to the jury, and passing to the complaint that the verdicts are against the weight of the evidence, which we have no difficulty in finding to be so.

The verdicts in question could only be reached by the utmost degree of speculation on the part of the jury.

The rule to show cause is therefore made absolute.


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    HARRISON R. VAN DUYNE, INCORPORATED, RELATOR, v. WILLIAM H. SENIOR, BUILDING INSPECTOR AND TOWN OF MONTCLAIR, RESPONDENTS.
    Argued October 5, 1927
    Decided January 5, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the relator, William H. Osborne.

    For the respondents, Albert C. Wall and George R. Beach.

   Per Curiam.

The relator applied to the building inspector of Montclair for a permit to erect- an apartment house eight stories in height and designed to house thirty-four families. Such building was proposed to be erected on property known as the Mountain House site at the northeast corner of Bloomfield avenue at the junction of Claremont avenue.

The application was refused by the building inspector upon the ground that such a structure was prohibited by a supplement to the building code, approved June 10th, 1924, which provides, inter alia, that “every building in the town of Montclair hereafter erected or altered, to be used as an apartment house * * * designed and maintained to house more than six families, living independent of each other, shall, in no case, be more than three stories in height and shall be of fireproof construction * *

Thereupon relator applied to this court for a writ of mandamus and an alternative writ was allowed, to which a return was made, raising several questions of'fact, and such issues were directed to be and were tried before a jury at Circuit, and a postea showing such findings has been filed.

Now, relator applies for a peremptory writ of mandamus.

One of the issues of fact raised by the return to the alternative writ was that the supplement to the building code was made necessary and its reasonableness was justified by a sewage condition, which the town of Montclair was making every effort to remedy, and which would require some two or three years to accomplish, and that until accomplished the sewage facilities of the municipality were and would be highly inadequate and a menace to the health and safety of its inhabitants.

Upon the trial at Circuit this fact was found and established in favor of respondent town of Montclair.

We must conclude, therefore, that the provisions of the supplement to the building code are reasonable and rest upon a substantial necessity.

This seems to us to be dispositive of the application before us and the peremptory writ of mandamus is refused, and respondents may enter judgment in its favor under the alternative writ.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MARY GARDOWSKI, ALIAS MARIA YERGOFSGY, PLAINTIFF IN ERROR.
    Submitted October term, 1927
    Decided January 31, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, William Reich.

    For the defendant in error, George M. Hillman, prosecutor of the pleas.
   Per Curiam.

There are three indictments in this case and three writs of error. The charge laid against the defendant is that she did on the 22d, 24th and 26th days of January, 1927, in the township of Florence, Burlington county, New Jersey, and within the “jurisdiction of this court, did maliciously and without lawful justification, with intent to cause or procure the miscarriage of one Anna Lawrence, a woman then pregnant with child, use an instrument or instruments, the name or names of which said instrument or intruments is to this grand jury unknown, contrary to the form of the statute in such case made and provided.”

The statute (2 Comp. Stat., p. 1784, § 119) provides that causing a miscarriage is a high misdemeanor. “Any person who maliciously or without lawful justification, with intent to cause or procure the miscarriage of a woman then pregnant with child, shall administer to her, &c., or who shall use any instrument or means whatever, with like intent, shall be guilty,” &c.

The three indictments, by consent, were tried together, resulting in a verdict of guilty.

Five specifications of the causes relied upon for a reversal of the judgment were filed — first and third, error by the trial court in refusing to direct a verdict of acquittal, on the ground that the evidence adduced by the state established that the crime of abortion, if any, was committed in Trenton, Mercer county, New Jersey; "second, error by the trial court in ordering Dr. Frank, a medical witness for the plaintiff in error, to leave the court room; fourth and fifth, error in refusing to charge as requested; sixth, the verdict of the jury was against the weight of the evidence.

The argument is that the miscarriage or crime of abortion, if any, was committed on the 19th of January, 1927, in Trenton, in the county of Mercer, New Jersey, for that purpose, the testimony of Anna Lawrence is cited in the brief, the pertinent parts of which are as follows: "Q. Did you have a miscarriage? A. Yes. Q. When? A. When I went to her house and she opened my womb up the match was in me. Q. When did it come away from you? A. About two o’clock at night. Q. When? A. January 19th. Q. Do you understand what I mean? Did you lose your child? Did it come away from you? A. I cannot understand. Q. Did you get rid of the child? A. Yes, I did. Q. When did that come away from you? A. After she opened my womb. Q. When? A. On the 19th of January. Q. Did anything come away from you? A. Yes, sir. Q. What'came away from you? A. A child. Q. When did that come away? A. Two o’clock at night. Q. Was that before she came down to Roebling? A. I was there on the 19th and on the 20th. I discharged at two o’clock. Q. When did she come to Roebling? A. The 22d, 24th, 26th. She was there twice. Q. Did anything come away from you after she had been down to Roebling these times? A. Yes. Q. What came away then? A. I was discharging for a while, that is all. Q. When next did you see her after that? A. On the 22d of January she was to my house. Q. Your house in Roebling? A. Roebling, New Jersey. Q. And when she came to your house in Roebling, on the 22d of January, what did she do? A. She made a big lump — took a match and then a bunch of gauze, first put cotton on the match and gauze, and tied a string on it and left it about that long [indicating], and told me to put it into me and leave it in me two and half days. Q. She came down to Roebling ? A.. Yes. Q. And put this into you ? A. Yes. Q. You mean into your private parts? A. Yes. Q. What did she do in Roebling? A. The same thing — put in a match with cotton around it and told me to leave it in a day and a half or two days, but I could not leave it in after ten o’clock. Q. What do you mean, the same thing? A. Put á match in, with the cotton, and on the 26th she came and did the same thing, and told me that if I did not be bétter to let her know. They took me to Trenton hospital on the 26th. I came home on the 2d of February.”

Dr. Richard Anderson testified at page 33 of the record: "A. I cannot imagine it being inserted for any cause except some illegal cause. Q. What do you mean by 'illegal cause’? A. I mean to procure an abortion, after a miscarriage there would not be any other occasion for inserting a match stick.”

To the same effect is the testimony of Dr. Geza Prank at pages 91 et seq. of the record, and Dr. Harold E. Longsdorf, pages 58 and 59. “Q. And in your opinion it would probably require forty-eight hours for the miscarriage to be produced? A. Yes.”

Maria Dudor, at page 28 of the record, testified as to what the defendant did on January 22d and again on Mqnday, 24th, at Roebling, to Anna Lawrence, corroborating her testimony.

On this testimony it was open to the jury to find that Anna Lawrence was pregnant on January 22d, on January 24th and January 26th; that on each of these days, and while she was pregnant, the defendant performed an operation upon her with instruments with intent to cause or produce a miscarriage.

The fact that one operation may not be successful does not affect the legal aspect of the case. The jury had a right to find that Anna Lawrence was mistaken when she testified; that the fmtus had been expelled on January 20th, 1927, as has been said, we have no test of the truth of human testimony except its conformity to our knowledge, observation and experience. This disposes of the vital point in the case. The other specifications for causes of reversal call for no extended discussion. Our consideration of them leads us to the conclusion that none of them are of substantial merit.

The judgment of the Burlington County Court of Quarter Sessions is affirmed.


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    ATTILIO ALLARA, PLAINTIFF, v. GEORGE O. STEVENS, DEFENDANT.
    Submitted October term, 1927
    Decided January 31, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Thomas G. Tuso.

    For the defendant, Wight, Wight & Golenbock and Merritt Lane.

   Per Curiam.

This suit was brought to recover damages for personal injuries and damages to a bicycle on which the plaintiff was riding. The injuries sued for were caused on July 12th, 1924, to the plaintiff by being struck by an automobile driven by the defendant on Plainfied avenue and West Second street, Plainfield, New Jersey.

The trial resulted in a verdict for $8,500 in favor of the plaintiff. The defendant obtained a rule to show cause and writes down twenty-one reasons for a new trial.

Our reading of the record and a consideration of the reasons lead us to the conclusion that the rule to show cause should be discharged.


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    LORENZ KRAUSS ET AL., PLAINTIFFS, v. ANTHONY KAMINSKI, DEFENDANT.
    Argued October 4, 1927
    Decided January 31, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Albert S. Woodruff.

    For the defendant, John D. McMullin.

   Per Curiam.

This suit was brought to recover damages for personal injuries to the plaintiffs. The plaintiffs, on April 18th, 1926, were passengers in a bus of the Public Service Transportation Company. The bus in which the plaintiffs were riding was run into at or near the Atlantic City railroad south of Ferry' avenue, in the city of Camden, by an automobile driven by the defendant, Anthony Kaminski, causing the injuries to the plaintiffs.

The trial resulted in a verdict for the plaintiff Lorenz Krauss for $15,000 and for the plaintiff Edward G. Addis for $300 against the defendant. The defendant obtained a rule to show cause reserving for appeal all exceptions allowed to the defendant at the trial. The only reason for a new trial now before this court is, the damages awarded to the plaintiffs are excessive. The verdict awarded the plaintiff Edward Addis of $300 calls for no comment. The verdict awarded the plaintiff Lorenz Krauss of $15,000 seems large, yet we cannot say that it is excessive under the evidence. It serves no useful purpose to review the evidence. The result to be reached is, within reasonable limits, a question for the jury to settle and determine.

Some of the dominant facts in the record are, that the plaintiff Lorenz Krauss was fifty-three years of age, and that he suffers with palsy or paralysis agitans. It is incurable. It will cripple and incapacitate him until death. It affects the tongue and the larnyx. It produces an expressionless face. He earned $27 per week. His money loss is estimated at $1,089.

The rule to show cause is discharged.


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    FRANK SWIENCICKI ET UX., PLAINTIFFS, v. FRANK WIECZERZAK, DEFENDANT.
    Submitted October term, 1927
    Decided January 31, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Weinberger & Weinberger.

    For the defendant, Feder Rinzler.

   Per Curiam.

The declaration in this case consists of two counts. In the first count it is alleged that on the 18th day of October, 1925, the defendant, in the premises at No. 240 Wallington avenue, Wallington, New Jersey, did commit an outrageous assault and battery upon the plaintiff Mary Swiencicki, wife of the plaintiff Frank Swiencicki. In the second count it is alleged that the husband plaintiff Frank Swiencicki lost, and is deprived, and will be deprived, of the comfort, association and assistance of his wife; that he has expended sums of money for medicináis, medical aid, treatment and attention to his wife, and that he has expended divers sums of money in order to hire and engage help to assist in household duties.

The trial resulted in two verdicts, one of no cause of action in favor of Frank Wieczerzak and against Frank Swiencicki and another in the sum of twelve hundred dollars ($1,200) in favor of the plaintiff Mary Swiencicki and against the defendant, Frank Wieczerzak. The defendant obtained a rule to show cause and writes down seven reasons for a new trial. Only one need be noticed, viz., the fourth. These two verdicts are absolutely irreconcilable. For this reason the rule will be made absolute under the case of Lanning v. Trenton, &c., Traction Co., 130 Atl. Rep. 444. That case is directly in point. For this reason the rule to show cause will be made absolute.


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    IN RE ABRAHAM J. ISSERMAN, A MEMBER OF THE BAR OF THE STATE OF NEW JERSEY.
    Decided February 6, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the report, John Milton, prosecutor of the pleas of Hudson county.

      Contra, William H. Speer.

   Per Curiam.

The majority report of the state board of bar examiners, which report is before us for confirmation, recommends a suspension of Abraham J. Isserman from the practice of his profession for two years, and thereafter until he shall present to the court affidavits of good behavior on his part during said time, and that he has strictly complied with the rule of suspension.

Isserman was convicted in the Court of General Quarter Sessions of Hudson county for a violation of the second clause of section 115 of the Crimes act, in that he had carnal intercourse with the prosecutrix mentioned in the indictment, on June 7th, 1925. She was born on August 14th, 1909, and, therefore, on June 7th, 1925, she was still within the age fixed by the statute for the protection of female children against vice.

In disposing of this case, we have taken into consideration the following circumstances. There was proof that before the prosecutrix met Isserman she had led an immoral and dissolute life; she was physically well developed, and bore the appearance of being beyond the age of sixteen years.

According to Isserman’s testimony she represented herself as being twenty-two years of age. Depositions before us of witnesses, whose affidavits were not before the board of bar examiners, are to the effect that they knew and met the prosecutrix in April and May, 1925, and they all state that at that time the physical appearance of the prosecutrix was that of a woman of at least twenty years of age, and that her conduct and speech were those of a woman worldly wise.

The testimony adduced at the trial was not before the board of bar examiners, nor is it before us. It appears that the case was not tried until January 5th, 1927. Isserman was convicted of the offense as charged in the indictment.

The trial judge seems to have taken into consideration that the facts of the case were of such a nature as not to warrant the imposition of a prison sentence, and, accordingly, imposed a fine, which fine Isserman paid.

The report of the board of bar examiners that the charge of the court on the criminal trial, left it, as a jury question, whether the appearance of the girl justified the belief that she was over sixteen years of age, is not quite accurate.

It appears from the charge of the court that the jury came in for instructions, and the trial judge said: “If the girl was under age” he regretted to state “that under the cold hard ruling of the law the defendant is technically guilty.”

There was a letter produced before the board of bar examiners, written by the trial judge, in which he stated that the girl was very worldly.wise and admittedly a prostitute for some time before she met respondent; that she was very mature in appearance, and these facts, coupled with the statement that she told the respondent she was twenty-two years old, prompted him to impose a fine instead of a prison sentence.

The affidavits of five individuals, to which reference has already been made, and which affidavits were read and filed by consent of counsel on the hearing before us, make it clear that the prosecutrix was of such physical appearance as to deceive Isserman as to her age. Isserman has atoned for the offense which he committed against the state.

We are only concerned with the question as to whether or not he should be disciplined because of his conduct which led to his conviction, he being a member of the bar of the state.

It appears that prior to the finding of the indictment against Isserman he bore a good reputation as an upright and moral man. His conduct, so far as his professional career is concerned, has not been assailed. His probity and upright dealing as a lawyer has not been questioned. Since his conviction two years have elapsed, and there has been nothing brought to the attention of the board of bar ■examiners or to the attention of this court that he has not conducted himself during that time in the practice of his profession and his private walk of life, hororably.

Nevertheless, we cannot overlook the fact that he, as a lawyer, violated the statute, if not, in substance, of the high offense, as denounced therein, and by his own admission was guilty of the statutory offense of fornication.

While, it may be true, that the ecclesiastical courts of England considered fornication a venial offense, and though it was not punishable at common law, it is forbidden by the ■statute of this state, and even the mere violation of a statute interdicting the doing of an act has been held to involve moral turpitude, and when done by a member .of the bar, it seems to us that such disregard for the statute calls for disciplinary punishment.

We have, therefore, reached the conclusion that a suspension of Isserman for a term of six months from practicing his profession from and after date of service of a copy of a rule to that effect upon him, will be adequate punishment, in addition to that which he has already undergone. An order will be made to the end, as indicated.


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    THE STATE v. JOSEPH HARLOW.
    Decided February 9, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      For the plaintiff in error, Robert Newton Crane.

    For the state, Francis Bergen, prosecutor of the pleas.
   Per Curiam.

The defendant was convicted of the crime of manslaughter in the killing of one Patrick Connolly. The claim of the state was that Connolly came to his death through a collision between an automobile in which he was riding, and which was being driven by the defendant, and another car, driven by one Tully; and that the collision was the result of the gross negligence of the defendant in the driving of his ear.

The principal ground upon which a reversal is sought is that the court in its charge to the jury erred in defining the character of the negligence which must be proved by the state in order to justify a conviction under the indictment. The instruction was as follows: “Manslaughter may be occasioned by the omission of duty on the part of some person or negligence on his part whereby death ensues. Negligence in this question means the failure to use reasonable care. Now, that is the definition with reference to the indictment to be passed upon by you.” In so instructing the jury the court adopted the rule of liability existing in civil actions. This was clearly erroneous. As was pointed out in State v. Schutte, 87 N. J. L. 15, the real question to be determined was whether or not the death of Connolly was occasioned by some grossly negligent act on the part of the defendant — that is, an act which showed a reckless disregard for the safety of others. Unless the negligent act was of this character, the defendant was not guilty of the crime charged against him. The erroneous instruction was clearly harmful, and requires a reversal of the conviction.

We find nothing of merit in the other grounds for reversal which have been argued before us.

For the reason indicated, the judgment under review will be reversed.


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    THE STATE v. EARL B. EWEN.
    Decided February 9, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff in error, H. Byron Lore.

    For the state, Thomas G. Tuso, prosecutor of the pleas.
   Per Curiam.

The defendant was convicted on an indictment charging him with perjury in giving false testimony at a trial held in the Court of Common Pleas of Cumberland county, in which he was the defendant and one Pincus was the plaintiff. The rights of the parties in that litigation turned upon the existence of a receipt which the defendant claimed had been given to him by Pincus for the moneys which the latter sought to recover. Ewen testified that the receipt had been signed by Pincus, and the latter, after some hesitation, testified that he had not signed it. The specific charge in the indictment was that Ewen had sworn falsely in the civil suit with relation to the signing of the receipt.

On the trial of the11 indictment the prosecutor offered the record of the testimony taken in the civil suit. He then called an expert, who testified that the signature to the receipt was not in the handwriting of Pincus. The state did not see fit to call Pincus himself, but rested after the testimony of the expert had been given. The defendant denied on the witness stand that he had ever signed this receipt himself (as was contended by the state), and that, on the contrary, it had been signed by Pincus.

The case comes up under the one hundred and thirty-sixth section of the Criminal Procedure act, and the principal ground for reversal is that the verdict of guilty is against the weight of the evidence. We think this is plainly the fact. The rule with relation to a trial on a perjury indictment is that a conviction cannot be justified unless there is the direct testimony of one witness as to the commission of the crime and that testimony is supported by corroborating circumstances. The testimony of the expert that the signature to the receipt is not that of Piñcus, and, by necessary inference, that the defendant testified falsely upon this point in the civil suit, is not supported by any corroborating circumstances, nor was it attempted to be so supported, except by the offering in evidence of the record in the civil suit. But that record shows that the verdict of the jury was in favor of the defendant, which was a practical declaration by it that the defendant, and not Pincus, was telling the truth with relation to the signing of the receipt.

Our conclusion is that, for the reason indicated, ‘the conviction should be reversed and the case retried.