text:
    WILLIAM H. JAMOUNEAU COMPANY, A CORPORATION, PLAINTIFF-APPELLANT, v. AMELIA WETHERILL, DEFENDANT-APPELLEE.
    Decided May 7, 1924.
    Contracts — Purchase of Personal Property — Washing Machine Left on Trial — Sale Alleged and Denied — Machine Set in Street — Action for Trover and Conversion — Also Bailor and Bailee Relationship Considered — Judgment for Defendant Sustained.
    On appeal from the First District Court of Newark.
    Before Justices Kalisch and Kaizenbactt.
    For the appellant, William E. Ilampson.

    For the appellee, Philip J. Schotland.

   Per Curiam.

This is an appeal from a judgment rendered in the First District Court of Newark in favor of the defendant and against the plaintiff. The case was tried before the court, sitting without a jury.

The state of the case, as settled by the court, shows that on September 25th, 1920, the plaintiff corporation delivered a washing machine to defendant on trial, with the understanding that, if defendant did not want to- purchase it, plaintiff would call and take it back. The defendant tried the washing machine and notified plaintiff that she did not want it, and for the plaintiff to take the machine away. The plaintiff insisted that the defendant had bought the machine. Thereupon the defendant notified the plaintiff on October 15th, 1920, that she refused to take the machine, and that unless the plaintiff took the machine away she would, after the expiration of three days, put the machine out on the sidewalk at its risk. The plaintiff received this letter and acknowledged it, but did not go within the three days for the machine. The defendant then placed it on the sidewalk and notified the plaintiff of her act. For several days the plaintiff did not come for the machine, but when it did gO' for it found it in a damaged condition, and left it where it was. It then brought an action against the defendant for the price of the machine, alleging a sale, but upon the trial of the cause the court decided that there was no sale, and judgment was entered for defendant.

When the defendant placed the machine on the sidewalk it was not damaged. The reason given by the plaintiff why it refused to take the machine, in the language of its witness, was as follows: “We refused to take the machine because we insisted it was a sale; until I saw the machine in a damaged condition, I would have taken the machine back, if it had not been damaged.” “I did not think Mrs. Wetherill meant wliat she said in her letters.”

The record of the former action between the parties was offered and received in evidence.

The trial judge found that the plaintiff had deliberately refused to take the machine from the defendant’s premises, and neglected to avail itself of the notice that the machine would be placed on the sidewalk, and held that any damage to the machine or its loss was the result of the plaintiff’s failure to protect its property, and thereupon gave judgment for defendant.

From this judgment the plaintiff has taken this appeal. The plaintiffs action was for trover and conversion, and the trial court found under the evidence, and, we think, very properly so, that there was no conversion oE the washing machine by the defendant. But it is now insisted, on behalf of the appellant, that the relation which existed between the plaintiff and defendant was that of bailor and bailee, and that it was the failure of the bailee to take reasonable care of the washing machine, which entailed the damage and loss to the plaintiff. But it is quite apparent from the pleadings, and the claim made by the plaintiff at the trial, that no such case as is now suggested by appellant’s counsel, was tried before the court. The record and'state of the case show that the issue presented to the court, which was one of fact, was whether or not the defendant was guilty of converting the washing machine to her own use, and then court found that she was not, and therefore the plaintiff was not entitled to recover anj' damages.

' Judgment is affirmed, with costs.


source: Caselaw Access Project

author: Cutler, J.

license: Public Domain

text:
    MORRIS BRODMAN, RELATOR, v. CHARLES RADE, DEFENDANT.
    Officers — Tenure—Act of 1922 Relating to Soldiers, &c. — What Constitutes an Office as Distinguished From Position — Secretary of Board of Health Considered and Held an Office Subject to the Act of 1922.
    On information in the nature of a quo warranto.

   Cutler, J.

It app earing from the written stipulation in this case, that the plaintiff, Morris Brodman, had been a soldier in the recent war. in which the United States was engaged, having entered into the service of the United States government on April 3d, 1918, as a private, first class, in the machine -gun. company, 310th infantry, which was part of the 78th .division, from which he was honorably discharged on April 2d, 1919.

On May 20th of the same year he was appointed secretary of the board of health of the city of Bayonne, and served as such from the date of his appointment to June ,12th, 1923, when a resolution was passed by the board of health of that city for the purpose of removing the said Morris Brodman from sirch office, appointing Charles Bade in his place and stead. . . . •

The term of secretary of the board of health of the city of Bayonne is not fixed by law and has not previously, been fixed by law.

No charges of improper behavior were made against Morris Brodman, but his removal was caused without charges being preferred and without a hearing.

The first section of an act of the legislature of this state, approved March 13th, 1922, entitled “An act to amend an act entitled lAn act to amend an act entitled “An act regarding soldiers, sailors and marines honorably discharged from the United States service, approved March 27th, 1907, approved April 11th, 1910,””’ laws of 1922, page 395, provides, among other things, as follows: “No person now holding a position or office under the government of this state, or the government of any county, city, town, township or other municipality of this state, or under any hoard of education of this state, or who may hereafter be appointed to any such position, whose term of office is not now fixed by law, and receiving a salary from such state, county, city, town, township or other municipality, or such board of education, who is a soldier, sailor or marine, who has served in any war of the United States and has been honorably discharged from the United States service prior to or during such employment in, or occupany of, such position or office, shall be re-, moved from such position or office except for good cause shown on a fair and impartial hearing, but such soldier, sailor or marine who has served in any war of the United States, and who has been honorably discharged from the United States service, shall hold his position or office during good behavior, and shall not be removed for political reasons.”

Brodman claims that defendant, acting on the resolution of the board of health and his appointment by such board, usurped, intruded into and unlawfully held, used and exercised the said office of secretary of the hoard of health of the city of Bayonne, to the exclusion of the said Morris Brodman, and brings this information in the nature of a quo warranto against the said Charles Rade to show by what warrant he claims to hold such office, &c.

The defendant replies that the position of secretary of the board of health of the city of Bayonne is not a.n office within tire scope and meaning of an act entitled “An act relating to information in the nature of a quo warranto (Revision of 1903),” (Comp. Stat., p. 4210), and therefore this action will not lie to determine the defendant’s title to said position.

The defendant also contends that the position of secretary to the board of health of the city of Bayonne is not a position or an office tinder the scope and meaning of the act of 1922, heretofore referred to. It is undoubtedly true that if Brodman does not hold an office, distinguished from a position, he cannot proceed by quo ivarranto, but must resort to some other remedy.

In the case of Fredericks v. Board of Health, 82 N. J. L. 200, it was held by the Supreme Court that “an office is a place in a governmental system created or recognized by the law of this state which, either directly or by delegated authority, assigns to the incumbent thereof continuous performance of certain permanent public duties.'”

“A position is analogous to an office, in that the duties that pertain to it are permanent and certain, but it differs from an office, in that its duties may be non-governmental and not assigned to it by any public law of the state.

“An employment differs from both an office and a position, in that its duties, which are non-governmental, are neither certain nor permanent.”

The thirty-first section of “An act to establish in this state boards of health and a bureau of vital statistics, and to define their respective powers and duties.” Comp. Stat.,, p. 2669, provides, among other things, that “such local boards of health shall have power and authority to appoint such subordinate officers and agents to carry into effect the powers hereby conferred as they may deem necessary * * ■*.”

Section 1 of “An act for the protection of the public health,” as amended in 1911 (1st Supp. Comp. Stat., p. 776), provides, among other things, that every physician, when called to attend professionally a person suffering with certain designated • diseases, “if such sickness be within the limits of the jurisdiction of any local board of health, other than the local board of health of any township, then such physician shall report such sickness to the secretary of the local board of health,” * * * if the board has such secretan': if the board has no such secretary, then to the clerk of the board * * *, the local board of health may designate some other officer, other than the clerk, secretary or assessor, to receive such report.

The following section of this act, as amended, provides, among other things, that it is the duty of such officer to enter the report in the office of the local board of health and transmit the facts therein stated to- the secretary of the hoard of health of this state.

The local boards of health are required by chapter 90, laws of 1916, page 177, on or before the first day of February of each year, to prepare an annual report for the preceding calendar year, of the condition of the public health, and forward a copy of such report to the state director of health. The person doing this work to- receive for such clerical sendees.

Among the regular duties this secretary had to perform were the following: Making reports to- the state board of health of diseases as required by chapter 380 of the laws of 1911; compiling the annual report of the board of health; submitting the annual report of the activities of the board of health to- the state board of health as required by the laws of the state department of health; issuing the following licenses and permits — ice licenses, scavenger permits-, milk licenses, permits to collect fats, dog licenses, permits to- transport animals through the city’s streets, permits to conduct rummage sales; taking custody of all receipts of the- hoard of health; receiving complaints made to the hoard of health, ordering investigations thereon, and keeping an accurate record thereof; keeping an accurate account of the proceedings of the board; certifying to the accuracy of claims presented to the foard — the performance of all of which said duties were subject to the direction and supervision of the health officer of the city of Bayonne.

By virtue of-the provisions of chapter 166 of the laws of 1917, page 494, the local boards of health have power to pass ordinances and make rules and regulations regarding the public health within their several jurisdictions, as more particularly set forth in the provisions of that act.

In other words, boards of health are governmental agencies by which the Police law of the state is locally exerted. Fredericks v. Board of Health, 82 N. J. L. 200.

In the face of the admitted facts-.as to the regular duties of the secretary of this board, I have reached the conclusion that he held an office, and that information in the nature of a quo warranto is a proper method to determine the rights of the plaintiff to hold that office.

The only other disputed question is, Does this act of 1922, heretofore mentioned, apply to the office of secretary of the board of health of the city of Bayonne?

It is admitted in the written stipulations that “the board of health of the city of Bayonne is a municipal corporation, and the term of office of the secretary thereof is not now fixed by law and has not previously been fixed bjr law.”

The plaintiff was an honorably discharged soldier, having served in the late war under the United States government. No charges of improper behavior were made against him, -but such removal was caused without charges being preferred and without a hearing.

As the act of 1922 applies to this case, the defendant has usurped, intruded into and unlawfully holds and exercises the office of secretary of the board of health of the city of Bayonne, • to the exclusion of the said ' plaintiff, and the said plaintiff is rightfully entitled to hold, use aud exercise the said office of secretary of the board of health of the city of Bayonne.

I will prepare and file a postea and findings to carry out this memorandum.


author: Pee Cubiazh.

text:
    IN THE MATTER OF THE APPLICATION OF J. WILLARD DE YOE.
    Argued May 6, 1024
    Decided May 12, 1924.
    Practice of Law — Admission as Counselor — Application for Relaxation of Three-Year Rule on Account of Change in Term of Court, Denied.
    Before Justice» Teen chard, Minturn and Lloyd.
    For the applicant, J. Willard De Yoe.

   Pee Cubiazh.

Mr. De Yoe’s application (made in behalf of an attorney whom he represents) is for a relaxation of our rule requiring that an attorney shall not he admitted to take his examination until he has practiced as an attorney for three years — in other words, for permission to take such examination before such period of practice has expired in his case.

The application is made and urged because of the recent change in our terms of court and the change of the times of holding such examinations which follow.

We feel constrained to deny such application. As indicated, our rule (6a.) provides that “no person * * * shall he recommended for license to practice as a counselor-at-law in this state unless he shall first submit himself to examination, and give satisfactory evidence of his knowledge of the principles and doctrines, of the law, and his abilities as a pleader; nor shall any be admitted to such examination until he shall have practiced in this court as an attorney for the space of three years at least; * * We consider that the reason urged furnishes no ground for the relaxation of the rule in question. The application is denied accordingly.


author: Per Curiam.

text:
    IN THE MATTER OF THE PETITION OF EMILY COX BELL FOR A DECLARATION OF HER RIGHTS UNDER A DEED.
    Argued May 7, 1924
    Decided May 12, 1924.
    Title to Real Estafa — Clouds—Procedure to Remove — Action Under ’Uniform Declaratory' Judgments Act of 1924 IVlust Show Person Having Claim Affected by Title.
    Before Justices Trenchard, Mixteen-and Lloyd.
    'For the petitioner, Earle A'. 'M erf ill.

   Per Curiam.

Emily Cox Bell, the petitioner, by a petition signed by her attorney (but not by the petitioner), avers that there is a cloud upon her title to certain lands therein described by-reason of the form of a deed in her chain" of title executed by Mary Ann Taylor and George Taylor, and asks this court to grant her relief by declaring what are- her rights as the successors in interest of James Ií. Taylor,’ the grantee named in that deed, and we are asked to do this by virtue of the authority said to be contained in chapter 140 of the laws of 1924, known as the Uniform Déclaratory Judgments act.

It appears that the petitioner claims to he the owner of the lands in fee, and we are also told that the validity of the deed, 'by virtue of which the fee is claimed, is questioned, hv reason of what appears, or, pexhaps, more properly what does not appear, in the deed.

Now, ivithout expressing any opinion as to the validity of the act, or as to the sufficiency of the petition- otherwise, we aré satisfied that jurisdiction to determine the 'questions presented by the petition has not been conferred upon the court. Section 11 of the act provides:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would he affected by the declaration * *

Manifestly, there must he some person or persons who have or claim an interest which» would he -affected. Such is the reasonable inference to he drawn from the statements of the petition. Moreover, if such, were not the case, there would seem to he no purpose in asking for the declaration of the petitioner's rights.

Xow, no person whatsoever is made a. party to the petition or proceedings. So far as appears no notice has been given to any person, nor has-any person been otherwise brought into the proceedings by process or in anywise whatsoever.

We. therefore, feel constrained to refrain from making any declaration as to- the petitioner’s rights in question, and, accordingly, deny the prayer of the petition.


author: Pee Otriam.

text:
    TRADE UNION NEWS PUBLISHING COMPANY, PLAINTIFF-APPELLANT, v. WILLIAM C. DAVIS, HOME BAKERIES COMPANY, DEFENDANT-APPELLEE.
    Decided May 14, 1924.
    Corporations — Foreign—Doing Business' Within the State — Question of Fact for Trial Court — Contract Made in Camden and » Not Subject to Ratification in Philadelphia by Corporation Not Authorized to do Business in New Jersey, will Permit Action Thereon by Such Corporation.
    On appeal from the Camden City District Court.
    Before Justices Kalis cb and Katzefbactl
    For the appellant, Joseph 11. Carr.

    For the appellee, Joseph Beck Ujier.

   Pee Otriam.

The plaintiff-appellant appeals from a judgment rendered against it and in favor of the defendant, in the Camden City District Court, in an action brought by the plaintiff on a contract, for the insertion of the defendant’s business advertisement in the plaintiff’s weekly publication, and which contract was signed by defendant in the city of Camden, and reads as follows:

“No. 487. Camden, Oct. 2. 1919.

The Trades Union News Publishing Company.

You are hereby authorized to insert my advertisement in The Trades Union News for a period of 52 consecutive weeks, to occupy one inch, D. C. column, two inches in all, for which I agree to pay $2.00 per week, payable (weekly, monthly, quarterly) on proof of publication. No agreements will be recognized unless stated on face of this contract. If copy is not furnished on application our business card may be used. In monthly installments.

Signed, Wm. C. Davis Home Bakeries Co.

W. C. D. P.”

The state of the case, agreed upon between the counsel of the respective litigants, discloses that the defendant signed the contract at Camden, New Jersey, at which place it was delivered to the plaintiff. That the plaintiff published a weekly newspaper devoted to subjects of interest in trades union circles, at Philadelphia, Pennsylvania. That the plaintiff obtained thirty ór more other contracts in New Jersey. That the general manager of the plaintiff testified that in all cases the form Exhibit 1, was accepted or rejected by him at the plaintiff’s office in Philadelphia in this particular case. It was admitted by plaintiff’s witnesses that, as a matter of fact, no acceptance thereof was sent to defendant. There was proof that at the time that Exhibit 1 was signed at defendant’s office in Camden, nothing was said one way or another about acceptance in Philadelphia or elsewhere. There was no proof that the person taking contract from defendant did not have authority to make it. Nor was there proof of any authority in the solicitor to accept or reject the contracts. The contract itself provided that, “no agreement will be recognized unless on the face of the contract,” and that “this contract is not subject to cancellation.” That the advertisement of the defendant appeared in the newspaper published in Philadelphia, as did advertisements of numerous other persons who signed contracts in New Jersey under same circumstances, and that no acceptance was sent to any of them. That there was an unpaid balance due to the plaintiff of $52, which was not disputed except by the defense of “foreign corporation,” stated in the defendant’s answer. It was not disputed that the plaintiff is a Pennsylvania corporation not licensed under our Corporation act, and that the trial court determined and found as a fact that — • (1) the plaintiff was not licensed to transact business in New Jersey; (2) that it was transacting its ordinary business in New Jersey in doing acts above stated; (3) that the contract in the present case was completed in New Jersey and not subject to acceptance in Pennsylvania, and, accordingly, gave judgment for the defendant.

The appellant’s first contention is that there was no evidence in the case to support the finding of the trial court that the plaintiff ws transacting its ordinary business in this state. "We think there was evidence in support of such finding. There was testimony to the effect that there were thirty or more contracts of a like character as the one under consideration entered into in this state, and we think from that fact alone the trial judge was warranted in finding that the appellant was transacting its ordinary business in New Jersey. In Von Seyfried v. Vollers, 75 N. J. L. 405, this; court, speaking through Mr. Justice Swayze (at p. 406), held: “Whether the sales in a particular case are made under such circumstances as to require the inference that the foreign corporation is engaged in the general prosecution of its ordinary business is a question of fact to- be decided by the trial court, and its finding is not open to review where there is any evidence to sustain it.”

Eor-the appellant it is further contended that there was no evidence to- support the finding that the contract in question was completed in New Jersey and not subject to acceptance in Pennsylvania. . ' '

The state .of the case agreed upon by the counsel of the respective parties expressly admits that the contracts were made in this state, and that nothing was said one way or another about -acceptance in Philadelphia or elsewhere.

The contract in express terms'provided: “No agreement will bé recognized unless on--the face of the contract,” and that’“this'contract* is not*subject to cancellation.” It is time that Mr. Semple, ’ manager of the plaintiff company, testified that in all cases the form of Exhibit 1 was accepted or rejected at plaintiff’s office in Philadelphia, and that he accepted the contract in the-present case there, but that as a matter of fact no '.acceptance thereof -was sent to defendant. And this was ‘the same course pursued in the other thirty or more cases. There’is nothing contained in the contract, Exhibit 1, to the effect that it must be accepted at the appellant’s office before it becomes operative.' It seems to rrs that the testimony and circumstances raised a factual question whether or not the contract was completed in New Jersey and was not subject to acceptance in Pennsylvania, which question was for the trial judge to determine and his finding, there being support therefor',' in the testimony, is not reviewable. '•

■The judgment of the District Court is affirmed, with costs.


text:
    J. T. MORRIS GOODLOE v. PHYSIATRIC INSTITUTE.
    Decided May 15, 1924.
    Pleadings — Counter-claims—Motion to Strike Out — Plaintiff was Official in Defendant Company — Counter-claim' for Money Paid Plaintiff Firm Alleged to Have Been Unearned — Application Denied Without Costs. .
    On motion to strike out counter-claim.
    Before Justice Parker, at chambers.
    For the plaintiff, Oliver K. Bay.

    For the defendant, Harold A. Price.

   Per Curiam.

Plaintiff sued for compensation and expenses as secretary and treasurer and business manager of defendant corporation, allowing certain credits, and claiming a. balance of $2,616.84, with interest. The answer makes certain demands not bore material, and adds a twofold counter-claim. The first part of it is against plaintiff alone, and charges that while acting as an official of defendant he made in that authority certain payments of its fund, $1,000 to himself and $3,784.13 to a linn of accountants of which he was a member, also that defendant paid for him certain small incidental items. To this branch of the counter-claim no objection is made. The second branch of the counter-claim brings in evidently under section 13 of the Practice act of 1912 and rules 05-08 of this court the firm of accountants just mentioned, consisting of plaintiff and several others. Tt sets up, in substance, that defendant engaged this firm to set up a system of bookkeeping and that the firm deputed plaintiff to attend to the details-; that plaintiff was also made secretary-treasurer of defendant; that the firm sent in bills aggregating $2,784.13 which no officer of defendant ever saw, except plaintiff; that this firm did not do the work contracted for and ivas not entitled to that money; but though charged with notice of this through plaintiff as a partner, they received through plaintiff the $2,784.13 and $2,000 besides, this last being for work done by plaintiff as an officer and employe of defendant and for which work he was otherwise paid; that none of this money was earned by the firm, and none would have been paid if other officers of defendant had known about it. Defendant demands of the firm the $4,784.13.

This part of the counter-claim the plaintiff seeks to eliminate* as importing into the record issues which do not properly belong there, including the question whether the partnership qua, partnership performed its contract.

Section 12 of the Practice act of 1912 provides that, in the discretion of the court, * * * if the counter-claim cannot be conveniently disposed of in the pending action, the court may strike out. And this I am asked to do-.

The case of Reveruzzi v. Caruso, 86 N. J. L. 556, is relied on, but that was a set-off by'one of several defendants, and, I think, is not in point. In Kelly v. Faitonte Iron and Steel Co., 87 Id. 567, the court, in its discretion, struck out of a suit, for the price and value of goods sold, a counter-claim of malicious prosecution in beginning a replevin for these goods. This was supported (p. 571) as a proper exercise of discretion, in that the claim could not be conveniently tried at the same time as the plaintiff’s claim for goods sold. This, I think, is the practical test. Applying it to the case at bar, the record makes it fairly plain that practically all the connection of this firm of accountants with the defendant was through the plaintiff, who as their representative took charge of and managed the accounts, and to some extent the financial affairs of defendant; what plaintiff knew the partners were hound to know; what he did in their interest they were chargeable with. As the case stands before me on this motion, I am unable to say that the counter-claim “cannot be conveniently disposed of” in this action. It may well be that when the suit comes to a trial, the court may find the evidence creates a confusion of issues, and in that event the very section relied on empowers 'the court to order separate trials. But, on the face of things at this time-, the case seems to be one for the application of the enormously enlarged scope of joinder of action, which it is the manifested purpose of the 1912 act to promote.

Taking this view of the case, the motion to strike out the second counter-claim must be denied, leaving the limitation of trial issues fully within the discretion of the trial judge. But as this motion is a proper one to make at this time, no costs would be allowed.


text:
    GEORGE T. HARRISON v. WILLIAM G. SLOAN.
    Decided May 15, 1924.
    Pleadings — Motion to Strike Out Complaint, &c. — Action in New York in Which Judgment was Rendered Against Defendant Who Had Not Been Served With Process.
    On motion to strike out complaint; and cross-motion to strike out parts of answer.
    Before Justice Parker, at Bergen Circuit.
    For the plaintiff, John Lynn.

    For the defendant, Oliphanb & Mitchell.

   Per Curiam.

Briefs have been received from both sides in this matter, but on taking up the papers I find no‘ copy of the complaint or answer, and notice of only one motion. But I think it is possible to indicate my views sufficiently to' make a practical disposition of the case.

The.suit "is ón. a judgment entered in New York State against the defendant, Sloan, and one Grange, as co-partners. I think it apppars in the complaint in this cause that‘process in the New York suit was not served on Sloan but only on Grange, and that under a New York statute similar to that in our Obligations act, the case proceeded to judgment against both. Plaintiff relies on tliat judgment as entitling .him here to summary judgment against Sloan, who- answers in effect that he was never subjected to the jurisdiction of the New York court,:and hence the New York--judgment- is of no- effect as against him. He also says he was ‘not a partner of Grange at the -time that judgment was entered or that suit begun.

The last is immaterial for present purposes. It raises several questions under the law of partnership which cannot he disposed of on such a motion as this, where all the facts do not appear on the record. But the question of jurisdiction is fundamental. I shall not take time in discussing cases, for in my view the rule is clear that the New York judgment, whatever effect it may have on partnership. property in that state (and under the New York, decisions cited it seems not binding on Sloan's individual- property there), is of no value here as establishing a liability of Sloan as judgment débtor or' otherwise. Blessing v. McLinden, in this state, and Peernoyer v. Neff, in the'federal Supreme Court, 'serve conclusive on this po-int.

Hence, the answer so- far as it pleads non-service, &c., in New York, is good, and the complaint, if that condition appear on its face, is bad.

So, I think, defendant entitled to a judgment on this record, reserving to plaintiff, if necessary, the right of prosecuting the original claim here de novo, i. e., the claim that was put in judgment in New York divested of 'the judgment itself. ' '

No doubt' counsel can agree in the form- of the rule -to be entered; if not, I can hear them further in the matter, though -I trust it will not be necessary.

Defendant is entitled to costs.


text:
    THE STATE v. HERBERT JAMES.
    Decided May 17, 1924.
    Motor Vehicles — Conviction for Excessive Speed — Proceeding at Hearing' — Allegation That Facts Were Not Before Court— Conviction Opened to Prerent Defense.
    Eor the motion, M. Maíz and David Cohn.

      O 07i ira, J. IJ mil Waived aid.

    Before Justice Minttrx, on summary review.
   Per Curiam.

The defendant was convicted by the recorder of North Bergen township of “operating his motor vehicle upon the Hudson county boulevard at a greater rate of speed than is prescribed by law, in the township of North Bergen.” He contests the legality of the conviction upon various grounds,, which seem to him to be violative of the provisions of section 16 of the Motor Vehicle act. He appeared at the hearing without process and voluntarily submitted himself to the jurisdiction of the recorder, and made a statement at the hearing. He cannot now contend that he was not legally summoned to attend. Thornhill v. Stephany, 66 N. J. L. 171.

He contests the legality of the record in certain formal particulars, which he contends are not a compliance with the act. It is to be observed, however, that at the hearing his answer to the charge was a simple denial “stating that his car was in the garage all night.” He, therefore, did not contest the correctness in fact or in law of the complaint, but submitted himself to the jurisdiction upon the mere .question of identity. Against this alibi was presented the oath of the officer with the number of the car as well as the fact that such car was the defendant’s property. The defendant now insists he was not driving or using the car at the time. This situation involves an inquiry into whether he was heard upon that question. To relieve the situation of all doubt upon that subject, I shall open the conviction for the purpose of giving the defendant an opportunity to present his defense. The record will be remitted to the recorder for that purpose.


author: Newman, J.

text:
    Passaic County Circuit Court.
    Samuel Wiminetz, landlord, v. Armenian Club, sometimes known as Ensuring Club, defendant.
    Landlord and Tenant — Notice to Vacate Under Act of 1923— Preamble Refers to Dwellings — Act Refers Generally to Lettings — Act Held to Govern.

      Messrs. Feeler & Rinzler, for the landlord.

      Mr. Peter Hofstra, for the defendant.
   Newman, J.

This case was removed from Paterson district court to this court for trial, by Mr. Justice Minturn, pursuant to the statute.

The attorneys for the respective parties have agreed to the essential facts in open court. Those facts are, that the defendant is a fro-m month to- month tenant of the landlord with no definite agreed term, occupying premises not used as a dwelling, and that only one month’s notice to vacate was given by the landlord to the tenant. The landlord contends that this is sufficient, while the tenant asserts that by virtue of chapter 72 of the laws of 1923 (P. L. 1923 p. 144) three months’ notice is necessary to terminate the tenancy. This is the only question for solution in this court.

The title of that act is “An act regulating lettings in certain eses, &c.” The lengthy preamble to the act refers to the demand existing for dwellings in the state and the impossibility of procuring dwelling accommodations, and refers to the impotency of certain other acts, The enacting part of the act requires three months’ notice “in any and all tenancies from month to month,” &e., and then provides that the act shall not apply to farm letting, hotels, disorderly tenants, &c. It is upon these facts that counsel .for the respective parties base their aforesaid .contentions as to the interpretation of this statute.

Counsel for the landlord, .among other things, contend that the interpretation of the statute is governed by the preamble and the-rfaets that it isrá remedial statute,-from which they argue that it applies only' to lettings for dwellings, and that therefore the ’ law that one month’s notice is sufficient still applies to & tenancy such-ás this. -I do not agree with their "contention. ‘ In hiy'Opinion th.e enacting part óf the statute governs. As was said by*- our court of errors and appeals in Brown v. Erie Railroad Co., 87 N. J. L. 487:

“It seems to be established that, in cases of doubt as to the proper construction of the..body of-a.statute,.resort must.be had to the preamble or recitals for the purpose of ascertaining the legislative intent. But where the enacting .part of the statute is .ambiguous, its meaning will not be controlled or affected by anything in the preamble or recitals.” -

As was said by our supreme court in Den. v. Urison, 2 N. J. L. *224:

• “It appears to me to- be a settled principle of law that the preamble cannot-control the enacting part of the statute in. cases where the enacting part.is .expressed in clear, unambiguous terms.”

There is nothing ambiguous in the enacting part of this statute. It refers to “any and all .'tenancies from month to* month or -for a less period, where no definite term is agreed upon.” This woul-d- include all tenancies governed by those terms, except farms, hotels,' &c-., -later excluded by the enacting part of 'the' statute. . ' '

Chancellor Walker, speaking -for .the court of errors and appeals in Brown v. Erie Railroad Co., supra, further says “the enacting -clause of a statute may be extended by the preamble, but-cannot be restrained' by it,” citing numerous cases.

In the case of Quackenbush v. State, 57 N. J. L. 18, 21, our supreme court says: “Ft is well settled that where the intention of the legislature is clearly expressed in the-purview or body of the act, the preamble shall not restrain it, although it be of much narrower import. Sedgw. Stat. & Const. L. 43. The preamble cannot restrict the enacting elaueos except where their language is ambiguous or uncertain.” ■ ■ •-

'.Fire preamble, therefore, cannot operate to restrict or restrain the enacting clause of the statute. To construe the statute as applying- only to dwellings would he in conflict with both of these well-settled principles of law.

Nor is this construction of the statute inconsistent with the object to he obtained as alleged by the preamble, and'also permits the alleged mischief to he remedied.

Judgment will therefore be entered in favor of the defendant tenant, with costs to be taxed.


author: Pee Cukiam.

text:
    THE SISTERS OF THE ORDER OF SAINT DOMINIC OF SEA ISLE CITY, PROSECUTOR, v. CITY OF SEA ISLE CITY ET AL., DEFENDANTS.
    Argued May 6, 1924
    Decided May 22, 1924.
    Taxes or Assessments — Exemptions—Religious or Charitable Purposes.
    On certiorari.

    .Before Justices Kalisch, Black and Campbell.
    For the prosecutor, Charles K. Landis, Jr.

    For the defendants, James M. E. Hildreth.

   Pee Cukiam.

The certiorari in this case brings under review an assessment of lands, buildings and furniture for the year 1923 of property located in Sea Isle City, Cape May county. It is claimed the property is exempt from taxation. The property is used by the sisters to recuperate during the summer vacation, each sister paying $7 per week while there. The assessment was confirmed by the Cape May county board of taxataion and the state board of taxes and assessment. It is quite unnecessary to recite the facts. We think the property does not fall within the provisions of the statute permitting exemptions from taxation.

The assessment is therefore confirmed, and the writ of certiorari dismissed.


text:
    JOHN VEGA v. LEO S. SULLIVAN ET AL. JACOB MYSLEWITCH v. LEO S. SULLIVAN ET AL. JOHN TESARNO v. LEO S. SULLIVAN ET AL.
    Decided May 17, 1924.
    Children — Welfare Act of 1915 Sustained — Title Sufficient — Trial by Jury Not Absolute Right, and is Guaranteed Only in Cases When It Existed at Common Law-.
    On certiorari, removing convictions of prosecutors and their affirmance by the Court of Common Pleas.
    Before Justice Mixtukx, by consent.
    For the prosecutors, Armstrong <fi Mullen and Benin cG Pesin.

    Por the respondents, Thomas J. Brogan.

   Per Curiam.

Prosecutors were tried and convicted before the First Criminal Court of Jersey City for violating section 2 of an act entitled “An act concerning the welfare of children,” approved April 8th, 19.15, by employing or permitting certain children to be employed in the factories of the prosecutors.

The statute under which the convictions were obtained is attacked.

1. Because it denies trial by jury.

Trial by jury under our constitution is not an absolute right of a defendant in all cases. The rule is settled beyond cavil that it is guaranteed only in those cases where it exists at common law. The reasoning underlying this settled rule of law, as well as the cases in this state supporting it, are cited in the cases involving the constitutionality of the Prohibition act, and need not be specifically enumerated here. State v. Rodgers, 91 N. J. L. 212; Katz v. Eldridge, 96 Id. 382; 97 Id. 124.

Nor can it be conceived, as contended by defendants, that the title of the act fails to express its object. This manifestly canont be so, as the title of the act concerns the “welfare of children,” and this generic title is sufficiently comprehensive to appfy to one whose conduct in life militates against the welfare of children within the legislative view of public expediency as detailed in the enacting provisions of the law. Enactments providing for the regulation-of banks, cities, counties, &c., are, subject to- this general criticism of 'generality,- and still have been uniformly upheld. Richardson v. State Board, 121 Atl. Rep. 457; McMahon v. Riker, 92 N. J. L. 5; State v. Twining, 73 Id. 683.

There was in this instance “no unnecessary severe corporal punishment” inflicted upon the child employed by the prosecutor which can be said to bring the case within the classification of any recognized common law offense, as in the Bichardson case, but simply the statutory offense created by the legislative act to meet a modern social economic situation which the legislature in its contemplation of the public welfare and policy of the day has transmuted into a statutory offense, to be punished in a summary mode by aii existing statutory tribunal. That this power of legislative creation is within the' repeated recognized legislative prerogative is attested by our cases dealing with the subject, wherein the differentiation betwen those offenses indicable at common law, and those in the category of legislative creations, is distinctively marked and emphasized. State v. Rodgers, supra; Ex parte Newkowsky, 94 N. J. L. 314; Katz v. Eldridge, 97 Id. 123.

Nor is there any merit in the contention that the defendant was subjected to double jeopardy in violation of his,constitutional rights. He was simply tried upon two distinct complaints involving the same offense.

Now, is there merit in the argument that the defendant was not legally apprised of the charge against him, since the complaint, following the verbiage of the statute, informed him that he was charged with “employing, or permitting the employment,” of children under the statutory age., The use of the work “felonious” cannot add anything to the statutory offense so as to enlarge its distinctive characteristics as a statutory violation. The term is, in reality, a common law judicial adjective, emphasizing the illegality of the offense charged, and cannot bo held to create a common law crime out of a conceded statutory offense. Its use, therefore,, in this situation is mere surplusage. Burneville v. Stevens, 142 Ala. 609.

It is argued that no search warrant was issued against the defendant to warrant the complaint.

'Phis provision of the statute is not mandatory in its nature, hut is intended to serve as an auxiliary remedy in aid of the prosecution of offenders against the act, and its use manifestly is entirely discretionary with the prosecuting officers in the performance of their duties. The defendant, obviously, is in no position to insist upon its use as a prerequisite to his conviction.

Having sought the benefit of an appeal to the Court of Common Pleas from the conviction before the magistrate, the defendant now insists that the appellate tribunal was without jurisdiction to hear his appeal. He is estopped at this time from complaining in that respect upon the legal theory expressed in the common-place language that a man cannot befoul his own nest. Nemo vide tur f ran dere eos qni sciuut et con sen Hunt.

The record of conviction warranted the judgment. The court heard the witnesses and afforded the defendants a fair trial, and since no- constitutional right was invaded the judgment seems to he supported by the testimony. The act was intended to apply, not only .to parents, but to those- in loco parentis,, thus presenting a scheme of protection to- the child against tire evils incident to child life, which the elevated policy and civilizing tendency of the age demands as a bulwark to our intelligent national growth and humane development. Such an act must be liberally construed in the general public interest. The result is that the conviction in these cases, and in like cases brought before me for summary review upop these grounds, will be affirmed.


text:
    MAX LOMASCHINSKY, PLAINTIFF-APPELLEE, v. LOUIS APRIL, DEFENDANT-APPELLANT.
    Decided May 20, 1924.
    Contracts — Storage of Goods — Goods Left by Defendant, Being Property of a Dispossessed Tenant of His — Contract for Storage Made by Defendant, Plaintiff Having Knowledge of Ownership.
    On appeal from the Second Judicial District Court of the County of Essex.
    Before Justices Kalirch and Katzenbach.
    For the appellant, Harry Levin.

    For the appellee, Fast & Fast.

   Per Curiam.

The plaintiff brought his action against the defendant on book account for storage of furniture from March 2d, 1920, to September 2d, 1921, a period of eighteen months, at $5 per month, upon which there had been paid $10, leaving a balance due of $80. The case was tried before the court, sitting with a jury. No stenographer appears to have been appointed to take notes of the testimony and proceedings. The jury brought in a verdict for the plaintiff for $82.50, upon which verdict a judgment was ordered by the trial judge, from which judgment the defendant has appealed to this court. Counsel of the respective parties being unable to agree on a state of the case, the case was settled by the trial judge, and from which it appe’ars that at .the trial the pleadings were amended, by consent of counsel from the action on book account to an action on an express agreement on the part of the defendant to pay $5 per month for storage in the plaintiff’s storage warehouse of certain goods deposited with the plaintiff therein; that the plaintiff testified that the defendant brought the goods to his storage warehouse on March 2d, 1920, in a moving van, and.that the defendant asked plaintiff if he had a room in which the goods could be stored, and, if so, what the charge would be, and that the plaintiff told him that he had a room and that the charge was $5 per month, and that $10 was to be paid in advance; and thereupon the goods were then left by defendant with plaintiff for storage at $5 per month, and paid the plaintiff $10 on account on March 16th, 1920, and that the goods were in storage from March 2d, 1920, to September 2d, 1921; that the plaintiff was aware at the time the goods were de-' liverod for storage that they were owned by one Winarsky, who had been a tenant of the plaintiff and whom the defendant had dispossessed. That the defense was that the defendant told the plaintiff that the goods belonged to the tenant, and that therefore he was not liable for the bill, and that if there was any liability the tenant was solely answerable therefor. This defense ignored the fact that the plaintiff’s action was founded wholly upon an express agreement between the plaintiff and defendant, by which the latter agreed to pay the plaintiff the storage fees agreed upon, and, therefore, manifestly without any merit.

The first alleged trial error relied on by appellant for a reversal of the judgment is based upon the refusal of the court to permit the plaintiff, upon cross-examination, to answer the following question: “Why have you not sold the goods for non-payment of storage charges?” The question was objected to as immaterial. We think the objection was properly sustained. The plaintiff was under no legal obligation to sell the goods. He was entitled to rely upon his contract, that the defendant would pay the storage fees, as agreed upon.

The second ground urged for a reversal is equally without merit. The question put to the plaintiff, on cross-examination, rvas, “Is it not your custom to sell goods stored Avhen storage is not paid ?” • This question Avas objected to by plaintiff's attorney and the objection aauis sustained. It is apparent that the question Avas irrelevant, in vieAV of the fact that the action AAras based upon an express contract, and, therefore, the plaintiff's custom had no hearing on the matter in issue.

It is next argued that the trial judge erroneously refused to permit the plaintiff to be asked, by defendant's attorney, the folloAving question: “NotAvithstanding D-l for identification, you did not sell the goods?” D-l Avas a letter AA’ritten by defendant’s attorney to' the plaintiff's attorney after the present action Avas instituted. A perusal of the contents of the letter makes it manifest that it had no bearing on the question in controversy, and, moreover, it was later introduced in eAddence.

The fourth ground urged for a reversal is that the trial judge erroneously refused to permit the plaintiff to answer the folloAAdng question: “What is you custom as to charging for storage for goods brought by a landlord but belonging to a tenant?” The question Avas properly excluded. As already stated by us, in considering the second ground of appeal, the plaintiff’s custom AAras not involved in the issue, since his action Avas brought on an express contract, which was explicit and unambiguous in its terms.

The first and sixth points in the specification of grounds of appeals are not presented in the appellant's brief, nor were they argued, and hence aaúII be considered to have been abandoned.

The seventh point is based upon an exception taken by appellant to that part'of the charge Avhere the trial judge instructed the jury: “If the landlord brings articles belonging to a tenant to a storage warehouse, unless the tenant actually agrees to pay for storage warehouse charges, the tenant could not be presumed to owe for such charges, if there is no evidence showing an assumption of the charges by defendant.”

This was an accurate statement of the law. The instruction, under the circumstances of the case, was neither improper nor misleading.

The eighth ground of appeal is based on an exception taken by appellant to this portion of the charge: “That the landlord could have put the goods in the yard and that lie would not have been liable for any damage done, provided the landlord has used ordinary care in seeing that the goods were properly placed in the yard.”

The appellant does not contend that this instruction was erroneous in law, but insists that it had no application to the facts of the case, and, therefore, was calculated to mislead the jury.

According to the state of the case, there was testimony introduced on behalf of the defendant that the tenant had been dispossessed by the landlord for non-payment of rent, and had removed the goods to plaintiff’s storage warehouse. It is therefore manifest that what the trial judge said was illustrative of what course was open for the landlord to have pursued, and was proper comment. The landlord was under no duty to have taken and deposited his tenant’s goods in the plaintiffs warehouse, but since lie did so^ and expressly agreed to pay for their storage', he was bound by his contract.

The ninth point is also based upon an exception taken by appellant to that part of the charge where the trial judge said: “That the defendant retained a mental interest in the goods, because he went to the storage warehouse where the goods were stored, three months prior to trial, to see if the goods wore there.” There was testimony in the case that the defendant did go to the plaintiff’s warehouse to see if the goods were there. The contention of the appellant is that the use of words “mental interest,” whatever may haw been its import, implied, at least, that the defendant retained an ' interest in the goods, and tended to confuse the minds of the .jury.

The state of the case shows that the defendant introduced testimony that the defendant, several months after the goods were stored in plaintiff’s warehouse, went there to- see if the goods were there. Of cortrse, this Avas some evidence that the 'defendant took an interest in the stored goods and manifested his mental attitude concerning them. We are unable ■to detect anything in what the court said on the subject that ■.tended to mislead the jury.

The tenth ground of appeal, stated in the specification of errors, is not presented in the brief, and was not argued.

The eleventh ground of appeal is based rrpon an exception taken by appellant to this portion of the court’s charge: ’“That no inference is to be drawn from the fact that the attorney of the plaintiff in the case being.tried, was the same party who was attorney for the tenant, Winarsky, in some other suit betAveen Winarsky and April.”

This evidently had reference to Avhat one of the counsel had said in his summation of the case. This Avas not improper comment by the court. Westcott v. Baker, 85 Atl. Rep. 315; 83 N. J. L. 460 (at p. 462).

The tAvelfth ground of appeal is based upon an exception taken by appellant to this instruction': “That the jury could take into consideration the fact that when counsel for defendant Avas asked by the court Avhy a distress Avas not issued by the defendant in this suit against the goods of April, instead of dispossessing the said April in a suit betAveen Winarsky and April, defendant’s attorney replied that the defendant Winarsky, in said other suit, Avorrld have claimed an exemption to $200 alloAved by laAV, and that it Avould haA’e left nothing to sell under the distress, while the defendant, April, in this present suit, in his cross-examination had stated that the value of the goods Avas betAveen $400 and $500.” This appears to have been another comment by the court upon what transpired during the trial of the case, and, according to the ruling of Westcott v. Baker, supra, is no ground for reversal.

Tlie thirteenth and last ground which is urged for reversal is directed against a portion of the charge of the trial judge, but the record does not show that any exception was taken thereto.

Eor the reasons stated the judgment of the District Court is affirmed, with costs.


text:
    ABRAHAM KERZNER, PLAINTIFF-RESPONDENT, v. JACOB CHAMIS, DEFENDANT-APPELLANT.
    Argued May 20, 1924
    Decided May 22, 1924.
    Costs — Where Nonsuit has been Awarded After New Trial Granted — Application Denied.
    On appeal from the Hudson County Circuit Court. On application for an order to tax costs.
    Before Justices Trenchard, Minturn and Campbell.
    Eor the applicant, Atwood C. Wolf.

      Contra, Thomas H. Brown.

   Per Curiam.

The defendant-appellant, after a new trial had been awarded on appeal to this court from the Hudson Circuit, finally secured a judgment of nonsuit, and now applies for an order to tax the costs of the appeal in his favor. The application will be denied on the authority of Waters v. VanWinkle, 3 N. J. L. 804.


author: Per CuRiAar.

text:
    GEORGE W. CHRISTMAN, JR., BY NEXT FRIEND, PLAINTIFF, v. MICHAEL CAPETTA, DEFENDANT.
    Submitted February term, 1924
    Decided May 26, 1924.
    Negligence — Motor Vehicle Accident — Injury to Infant — Damages Excessive.
    On rule, &c.
    Before Guam ebb, Chief Justice, and Justices Minturn and Black.
    For the plaintiff, John W. Palmer.

    For the defendant, Schneider & Schneider.

   Per CuRiAar.

The suit in this case was brought to recover damages for personal injuries to an infant. The infant was struck hv an automobile on September 23d, 1922, while crossing Bruce street, in Newark. The trial resulted in a verdict for the-plaintiff for $2,500. The defendant obtained a rule and argues one reason, only, viz., the verdict is excessive. We think this is so. Our reading of the testimony leads ns to the conclusion that the verdict should be reduced to $1,500. If the plaintiff will remit the excess within ten days, the judgment may stand for that amount, otherwise the rule will he made absolute.


text:
    THOMAS HENNY, INCORPORATED, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Argued February 20, 1924
    Decided May 26, 1924.
    INegilgence — Motor—Trolley Collision — Conflict of Testimony— Error In Charge to which no Exception was Taken.
    On rule, &c. ”
    Before Gummere; Ci-iief Justice, and Justices Minturn .•and Black.
    For the plaintiff, William F. Burlce.

    For the defendant, Leonard J. Tynan.

   Per Curiam.

This suit was brought to recover damages to a motor truck caused by a collision with the defendant’s trolley ear on June 7th, 1923. The trial resulted in a verdict for the plaintiff for $1,000. The defendant obtained a rule to show cause and writes -down two reasons for a new trial: First, the verdict is contrary to the weight of the evidence. Not so. 'There was a conflict in the testimony. We cannot disturb the verdict of the jury on that ground. Second, error in the charge. There was no exception entered or noted to the charge at the trial. While it is true a verdict may be set Aside on a rule to show cause, although no exception to the charge was taken at the trial (Clark v. Public Service R. R. Co., 83 N. J. L. 319), the power thus to set aside a verdict should be used cautiously by the reviewing court and only in an unusual case, where the alleged error is not called to the attention of the trial judge by a proper exception. In this Case, however, we think the criticism aimed at the charge ■of the court is hj^percritical. The rule to show cause is discharged.


author: Buchanan, Y. O.

text:
    Ira A. Lewis, petitioner, v. Irene Jones Lewis, defendant.
    [Decided June 5th, 1924.]
    Divorce — Adultery—Denial—Decree for Petitioner.
    On final hearing.

      Mr. Vhüip M. Chamberlin, for the petitioner.

      Mr. Pranlc I. Casey, for the defendant.
   Buchanan, Y. O.

Petition by the husband for divorce on the ground of adultery. Answers in denial by wife and co-respondent.

The sole issue is as to the fact of the alleged act of adultery. As more particularly explained orally at the close of the hearing, I have no doubt as to the truth of the testimony on behalf of petitioner in this regard, and, the jurisdictional requisites being also established, I will advise decree accordingly.

Costs, including counsel fees of one hundred dollars-($100), will he a,warded to petitioner against the co-respondent, and (petitioner having consented thereto in open court) costs, including counsel fee of fifty dollars ($50), will he decreed to defendant as against the petitioner.


text:
    James A. O’Connell, complainant, v. Louise A. S. Allen et al., defendants.
    [Decided June 5th, 1924.]
    .Mortgages — Foreclosure—Lack of Consideration Alleged — Claim Not Sustained.
    On final hearing.

      Mr. Russell E. Waison, for the complainant.

      Mr. Richard F. Poller, for the defendants.
   Buchanan, Y. O.

The bill is for foreclosure of a mortgage securing bond of '$60,000, both made by one Goodlme to one Hayden, February 15th, 1919, payable in three years. It appears that an .agreement was made by Mrs. Allen and Hayden whereby the latter bought from Mrs. Allen lands in New York and she bought from him lands in New Jersey; that Hayden conveyed his lands to Goodhue for the purpose of having Good-hue execute the bond and mortgage, which was done, and then the conveyance was made to Mrs. Allen, subject to the lien of this mortgage; that all this was done to- the knowledge and pursuant to the agreement of all parties. The New York property was also conveyed from Allen to Hayden, and the settlement of cash difference was made on the basis of the outstanding mortgage. Interest was paid on this mortgage by Mrs. Allen to Hayden or his assigns, covering the period up to August 20th, 1921. Mrs. Allen conveyed the lands to defendant Potter, subject to the mortgage, in December, 1922.. Potter was the owner at the filing of the bill.

Pie contends that the bond and mortgage wore without consideration, since Goodhue did not owe Hayden any $60.000, or other sum, and asks that the mortgage -be canceled.

Clearly, he is estopped from any such claim. Complainant and defendant stand in the shoes of Hayden and Mrs. Allen, respectively. To assent to any such proposition in favor of Mrs. Allen would be to perpetrate a fraud on Hayden — to permit her to steal $60,000. What Mrs. Allen obtained (and this was in pursuance of their understanding and agreement) was a conveyance of the equity of redemption in the premises, an interest in the lands with the right to acquire absolute iitle by paying off the $60,000 mortgage, which mortgage was a purchase-money mortgage, a part of the consideration for the conveyance, though made by a dummy instead of by Mrs. Alien herself. The counter-claim will be dismissed.

Complainant’s formal proofs omitted proof of the death of one of the holders of the bond and mortgage and appointment and qualification of his executors by whom a subsequent assignment was made. Leave was given to produce this record, proof, and thereupon decree for complainant will be advised, with costs, including search fees of $101.46 and counsel fee of $1,000 (which latter was not objected to, and seems proper in view of the work done and the fact that in an uncontested case the allowance might he $1,400 under the rule).


author: Leamiístg, V. C.

text:
    Mabel C. Bates, complainant, v. William W. Bates, defendant.
    [Decided June 6th, 1924.]
    Maintenance — Husband and Wife — Unless Divorced, Husband Must Maintain Wife no Matter What the Relations Between Them.
    On bill for maintenance. On final hearing.

      Mr. Dean S. Benwick, for the complainant.

      Mr. Samuel M. Atkinson, for the defendant.
   Leamiístg, V. C.

(orally).

I still entertain the Anew that I suggested at the beginning of this hearing, that this ease-might very well have been determined on the pleadings, but lest there should bé a misapprehension on my part, I allowed counsel to* make a full and complete record in the case on both sides.

I am unable to see how there can be any denial by the court of the complainant’s demand for support without overruling the court of errors and appeals, and that I never knowingly attempt. The court of errors and appeals has said, and said very emphatically, that the common law obligation of support resting upon a husband is a dual obligation, he owes it to his wife and he owes it to society, and that obligation, the court says, persists and continues — to use the exact language of the court — “unless and until” the husband shall divorce her. In the overruled case;, in which that comment was made bjr the court of errors and appeals, the woman had been admittedly living in open adultery with another man; the husband had not seen fit to procure a divorce from her, which he could ha.ve procured, and yet the court of errors and appeals determined that, unless and until he should procure a divorce from her, lie must provide for her support, If a huslmnd doesn’t wish to provide for the support of his wife,, it would seem that he must procure his divorce and thus terminate his common law obligation of support. Two early decisions in this state had been referred to in the overruled case, which held that a husband was not obliged to support bis wife if she refused to live with him and share his home. As to those eases the court of errors and appeals intimated a disapproval by characterizing the rulings as obiter dictum.

Xow, that is the extent to which the court of errors and appeals lias gone, as 1 interpret their views, and if their views are as I interpret them, Mr. Bates is liable for the support of liis wife unless and until lie can get a divorce from her by reason of misconduct oil her part, such as refusal to Jive with him, constituting a desertion, or other misconduct, which under our statute may justify a divorce. So, 1 can’t see how it is possible .to deny to Mrs. Bates maintenance under the view of the law which the highest authority in this state defines as controlling in cases of this kind.

If, however, it may be necessary to go a step further, and to assume that the failure of a wife to accept a proffer upon the part of the husband to share his home might deny her the right to his support. I should entertain the view that in this case the testimony does not show any such effort upon the part of Mr. Bates to supply a home and support for his wife in that home, accompanied by assurances of proper treatment on his part, as the law requires under tile circumstances of this case as they clearly exist. If necessary, I should make a finding of fact, to the effect that if any proffer of: that nature was made it has not boon adequate under the circumstances shown by the evidence.

So, in either event, under the law, as I see it, it is simply for me to now determine what amount would be an appropriate amount for Mr. Bates to pay to his wife for her support per week. There must be taken into account the limited amount of his earning capacity, and there must likewise he taken into account the circumstance that there does not appear to be any absolute or pressing need on her part, because she appears to be able by her own labor to support herself. Under the circumstances as they appear, and my conclusion of the law, I will impose upon Mr. Bates an obligation to the extent of $8 a week for the support of his wife, and that obligation will continue, subject to- modification or termination, until he can find some ground to relieve himself by a divorce from his wife based upon her misconduct, if such ground can be found, which, to my mind, is more than doubtful. It leaves the situation an unfortunate one from the husband’s standpoint, but that is one of the incidents of married life. I will advise a decree to that -effect.


author: Buchanan, Y. C.

text:
    Garrett W. Irons, complainant, v. Anna B. Cranmer and Irven R. Cranmer, defendants.
    [Decided June 3d, 1924.]
    Partnership — Dissolution—Accounting—Interest on Capital Furnished — Was This Investment or Loan.
    On final hearing.

      Mr. James 8. Turf, for the complainant.

      Mr. Linton SaUeríhwaiie, for the defendants.
   Buchanan, Y. C.

The bill is for partnership dissolution and accounting. The partnership, the right to decree of dissolution, and to-an accounting, are all conceded on tlie hearing, and it further appears that the parties are agreed as to the various sums and figures entering into- the statement of an itemized accounting, excepting only in so far as such accounting is affected by a determination of two questions as to- the terms and provisions of the partnership agreement.

The agreement reads as follows :

“An agreement between Anna B. Cranmer, Garrett W. Irons and I. R. Cranmer, made this 28th day oí April, 1020.
“We, the undersigned, do hereby agree to the following arrangement :
“That we are jointly to engage in the house building business, and that Garrett W. Irons and I. R. Cranmer are to each work as builders together and receive the same rate of wages, viz., $8 each per day for each day’s work, and that they are to hire wliat other help is needed, from time to time, in- their judgment, and that the rate of pay, etc., for such help to be mutually agreed upon by the undersigned.
“That this concern will be financed by Anna B. Cranmer and I. R. Cranmer. The buildings which are to be erected, when completed, are to be offered for sale at a price to be determined upon by the below-mentioned persons.
“That the difference between the cost price of said buildings and the selling price are to -be equally divided between the be-low-mentioned parties after all expenses incidental thereto have been fully paid.
“That it, is mutually agreed upon that all three persons concerned will consult with each other in 'regards to the purchase of all material for said buildings.
“It is further understood between all concerned, that in consideration of the fact that an equal distribution -of the profits are to be made between the after-mentioned parties that Garrett W. Irons is to act as architect and chief mechanic, whose duties shall consist of planning and figuring on all proposed buildings to be erected by this concern and the purchase of all material to be used on these buildings, in addition to his regular carpenter Work on said buildings.
“That it is further agreed upon that no purchase of any kind to be made unless mutually agreed upon by all concerned.
“It is understood that any infringement or violations made by either party concerned shall be sufficient, cause for immediate dissolution, and that each and every statement made above shall be null and void and tlie agreement fully canceled.
“Witness : Daxiet, G. Iroxs.
“Anna B. Obaxmer,
'“Garrett W. Tboxs,
“I. R. Crammer.
“Signed by”

The first question is as to. whether the two. defendants, who furnished all the capital for the partnership, are entitled to interest- on the capital so furnished.

The Uniform Partnership act- (P. L. 1919 p. 481), section 18, provides in subsection (d) that, “a partner shall receive interest on the capital contributed by him only from the date when repayment should be made,” and in subsection (c) that “a partner who. * * * makes any pajunent or advance beyond the amount of capital which he agreed to contribute, shall be paid interest from the date of the payment or advance.” These rules are, however, expressly subject to any agreement between the parties.

The only provision in the; contract expressly relating to this question is, “That this concern will he financed by Anna R. Cranmer and I. R. Cranmer” (the two defendants). Does this mean, that they were merely to loan the firm the requisite sums needed for the business, or that they were to contribute capital to that extent?

My conclusion is that the latter is the true intent and meaning of the agreement. It appears that at the time of the negotiations resulting in the agreement, and to the knowledge of all the parties, complainant had experience as a builder but had no capital, and that the defendants had some capital which they desired to invest in some way to reap benefit therefrom. The natural inference would be, therefore, that complainant was to. contribute to. the firm the. benefits of his knowledge and experience as a builder, and the defendants the necessary cash. This is borne out by the fact that by the fifth paragraph of the partnership provisions, complainant is reqmired to “act as architect and chief mechanic,” “do the planning and figuring” “and the purchase of ail material.” This was to be “in consideration of the fact that an equal distribution of the profits” was to he made among all three. It seems evident, therefore, that this extra work, involving his skill and experience as a builder (not as a mere carpenter workman), was to be balanced against the value of defendants’ money, and be paid for by the share of profits instead of at $8 per day, which he was to receive for mere carpenter work — as was also I. R. Crannier.

Corroboration of this conclusion is found from the testimony of complainant and two or three of his witnesses that the agreement as originally executed had a clause added at the bottom, which specified that interest on the moneys furnished by defendants was to be calculated as a paid of the costs of the buildings; that he objected to this, and thereupon this clause and the signatures were cut' off and the document then re-executed. Defendants admit that there was an extra clause originally on the document, but that it specified a considerable number of other things as well as interest, which were to be calculated in the costs. This complainant and his witnesses deny. Defendants also deny that the contract was ever executed twice, but say that only the extra clause was cut off. In view of the fact that the agreement shows that meticulous care was taken to have the signature signed exactly as set out at the common cement of the instrument, it is highly probable that it was signed originally below by the words “signed by,” and examination of several marks on the paper itself indicates, with practical certainty, that such was the fact. The result is that the entire testimony of complainant and his witnesses on this phase of the case is entitled to credence as against that of defendants.

This, however, does not completely solve the question, for it does not determine the amount of the partnership capital, and whether or not any excess contributions were made by defendants. The contract itself does not fix' any specific amount as the capital. From the terms of that agreement, and the acts of the parties thereunder, it would seem clear that the agreement of the parties was that defendants should furnish the necessary capital to take care of such building operations as should be agreed upon by all three to he undertaken by the partnership.

There1 is thus no evidence of any excess contributions.

My recollection is that as to one or more of the houses, mortgages were placed on them after completion and before sale. This would seem to have been done by consent of all, and in such case the interest paid on such mortgages would be a partnership expense, to- be deducted before distribution of profits.

It remains therefore to- determine only “the date when repayment should be made.” It appears that when the first house was sold an accounting was had and distribution of the profits made. This would seem to fix the rule for the entire business, namely, that repayment, as well as distribution of profits, should be made as to each house built, at the time such house was sold. Inasmuch, however, as it appears that defendants received the moneys on the sales of these houses, no interest would accrue to them in this regard.

The remaining issue arises out of the fact that one of tire houses, the selling price for which had been agreed upon by the parties (under the second paragraph of the contract provisions) as $5,500, was sold by defendants for only $4,500. (Defendants were able to make this sale without complainant participating, because of the fact that they had taken title to the real estate in defendants’ own names alone.)

It appears that defendants did offer the house for sale at the agreed price and were unable to> or did not, find a purchaser at that figure. They contend, therefore, that they did not violate the contract. With this contention I am unable to agree. The fair meaning of the clause is that sales should be made only at prices agreed on by all. Sale by defendants at a price below the agreed price was a breach. As to the damage suffered thereby the evidence is, and necessarily must me, uncertain. One of complainant’s own witnesses— the best qualified of them — testified the sale at $4,500 was low; that the house was worth $5,500, and, indeed, should have brought $5,750 if sold on installments (as it was). On the other hand, the evidence shows that defendants made considerable effort to sell at the higher price. Considering all the evidence, I am inclined to' think that the value of the property should be fixed at $5,000 for the purposes of the accounting, charging defendants therefore in favor of the firm with the sum of $500 for their breach of the agreement.

There was a dispute as to the selling price of another house, but complainant, at the hearing, admitted that it had brought all that could have been obtained for it.

Rents received prior to sale should be credited to the firm.

Complainant is entitled to decree for the accounting upon die principles above set forth.


author: Euchanan, Y. C.

text:
    Abraham Shumsky, petitioner, v. Lillian Gordon Shumsky, defendant.
    [Decided June 7th, 1924.]
    Divorce — Annulment—Alleged Prior Marriage — Proofs Insufficient.
    On final hearing.

      Mr. .James T. Kirk, for the petitioner.

      Mr. Frederick Siman, for the defendant.
   Euchanan, Y. C.

The petition is for annulment of marriage on the ground of existing prior marriage of the wife. Defendant answered, admitting the existing prior marriage, and setting up equitable defenses, but did not appear at the hearing, and her solicitor stated that she had informed him that she did not desire further to contest the case. He was thereupon designated by the court to make active defense.

There was no proof of the fact that the prior husband was living at the time of the ceremony sought to be set aside. There was the admission in the wife’s answer, and the husband testified that his wife had told him so; the latter was mere hearsay, and the former is, of eo-urse, insufficient as regards the state’s interest.

The petition'will be dismissed, with costs, including counsel fee of fifty dollars ($50) to- defendant’s solicitor.


author: Buchanan, V. C.

text:
    Victoria Wansavage, complainant, v. Peter Wansavage, defendant.
    [Decided June 5th, 1924.]
    Divorce — Maintenance—Cruelty Alleged — Husband’s Counterclaim for Accounting.
    On final hearing.

      Messrs. Biamler,. Biamler t& Koesller, for the complainant.

      Mr. Frederick Bimcin, for the defendant.
   Buchanan, V. C.

The bill is for maintenance. Complainant left her husband, and, admittedly, he has not since supported her. The issue as to- her leaving being justified by his cruelty was somewhat close, but the preponderance is in favor of the wife-, especially in view of the husband’s attitude on the stand, and his reckless denials of practically ever}’ bit of testimony on behalf of the complainant.

The husband counter-claims for accounting from his wife for his money's placed in her hands for safekeeping and household uses, and for repayment to him of one-half the net balance. To this he is entitled.

On the maintenance claim an allowance of twelve dollars and fifty cents ($12.50) per week will be decreed to the wife. . The matter of costs and counsel fees will be left until the completion of the accounting. If the accounting cannot be made by the parties themselves it will be referred to a master.


author: Ecchahah, Y. C.

text:
    Ida Goll, complainant, v. Joseph Steingrob and Esther Steingrob, defendants.
    [Decided June 9th, 1924.]
    Restraint of Trade — Sale of Business and Good-Will With Agreement Not to Locate Within Five City Blocks Within Five Years.
    On final hearing.

      Messrs. Josephson & Josephson, for the complainant.

      jfr. Horry Ij. Heher, for the defendants.
   Ecchahah, Y. C.

Oat October 30th, 1923, complainant purchased from defendant Joseph Steingrob a certain retail milk and grocery store and business theretofore carried on by Steingrob (with the assistance of his wife) at 96 Union street, and in consederation thereof Steingrob and his wife covenanted that they would not “engage, either directly or indirectly, as principal for themselves or as agent for others, in the same business * * * for the period ot five years from that elate, within the area of five city blocks in any direction” from said 96 Union street.

The proofs refute Mrs. Steingrob's claim that she was tricked into signing this covenant, or did so- by mistake. Admittedly, she is now carrying on a retail milk and grocery store at 607% South Warren street, and the proofs satisfy me that the husband has been assisting her therein.

I am inclined to- think that under several recent adjudications in this court I am precluded from enjoining defendants from carrying on such business “within an area of five city block in any direction,” but in view of the admission by defendant that the present place of business is within what he understood.as the prescribed area, an injunction will issue against their further continuance of such business at that place.


author: Foster, V. C.

text:
    Falda M. Ruffridge, petitioner, v. Cornelia Bird Ruffridge et al., defendants.
    [Submitted May 3d, 1924.
    Decided May 24th, 1924.]
    Divorce — Adultery—Counter-claim Extreme Cruelty — Evidence Examined, Petition Dismissed.
    On petition, &e.
    Messrs. Harrison & Boche, for the petitioner.

      Messrs. Luon, Tamblyn & Golyer and Mrs. George B-. Beach, for the defendants.

      Messrs. Gongleton, Stallman & Hoover, for the intervening defendant, Robert H. Spahn.
   Foster, V. C.

Petitioner seeks a divorce on the ground of adultery. Defendant’s answer denies all the charges of the petition, and by her cross-petition she asks a divorce on the ground of extreme cruelty, and petitioner in his answer to the eross-petitional denies all of the charges made against him.

The jurisdictional facts of the marriage of the parties on February 18tli, 1922, and of their residence in Montclair, in this state, hare been duly proven.

On February 23d, 1923, the parties separated, Mrs. Ruff-ridge moving to the home of her parents, in Montclair, where she has since resided.

Petitioner is about thirty-two years old and his^wife is about ten years younger.

Some dajrs before the1 separation the parties had quarreled because petitioner found that defendant had broken her promise to give up the irse of lip-sticks and cosmetics, and she had told him that she would do as she pleased, and that his ideas were mid-Victorian. According to petitioner’s proof the parties had lived happily up to the separation; they liad an attractive home and he made her a suitable financial allowance for her own and for household expenses. After the above-mentioned quarrel they made up, and, apparently, overo living amicably, when, without the slightest, notice, she left him, leaving a note in the apartment which reads: “My dear Falda — I have thought very seriously of our life together, and T have found I connot go on any longer because of your extreme cruelty to me. I am leaving' you and shall take: stops to obtain a divorce.” (Signed), “Connie.”

The defendant first met the co-respondent Spalm (who is a married man living apart from bis wife and children), in October, 1922, in connection with the purchase of a piano. Spalm is a piano salesman in the employ of the Griffith Piano Company in Newark. In January, 1923, Spalm again met defendant and her father in connection with the piano purchase and on subsequent occasions, and in March, 1923, after the parties had separated, Mr. Bird, defendant’s father, invited Spalm to call at his home while he (Bird) was absent in Europe, “to help in a way to look after the women of his family,” so- that Spahn’s relations with defendant and her father’s family gradually changed from a business to' a social one. During the period mentioned in the -petition, Mr. Bird’s family consisted of himself and wife, a son at college, two young children, the defendant Miss Zourabouf, who- acted as a companion or governess, three maids and a chauffeur.

Spahn appears to have actively accepted Mr. Bird’s invitation, and he made frequent calls at the home on an average of more than twice a week from April 15th, until the departure of the family in June for their summer home in Connecticut.

In his bill of particulars petitioner states that the acts of adultery charged in his petition were committed by defendants on April 39th, May 7th, May 9th and May 33d, all in the year 1933, and on other dates between April 15th, 1933, and July 15th, 1923; defendants manifested affection for each other.

Taking petitioner’s proof relating to these dates in their chronological order, and he relates the details of each occurrence after reference to a memorandum book, the record is: That on April 15th, about eleven p. m., petitioner saw a Studebaker car in the driveway at Bird’s house. He looked under a curtain of the living-room, which was raised about six inches, and saw his wife sitting on a davenport, with her legs exposed above her knees; Spahn was sitting by her with Iris arm around her and his left hand on her knee, and his face down and against her neck. Petitioner is without any corroboration of the facts he testifies to as having occurred on this date.

This incident and conduct is denied by both defendants, and Spahn alsoi shows that he never drove a Studebaker car, and Mrs. Bird testified her daughter was never alone with Spahn.

The next date to which petitioner’s proof relates is fixed hv him and his witness, Dr. Crane, as April 19th or 31st. Petitioner states that by again looking under the curtain, about eleven p. m., he again saw his wife on the davenport with her legs exposed above the knees; that Spahn put his hand on her left leg; that he identified her by her legs, which are peculiar, from a large ankle bone, and that the contour of her leg is curved there.

I)r. Crane corroborates petitioner, by stating he also-looked under the curtain, saw the woman’s legs exposed, did not see the face of the man or woman, although he watched for about twenty minutes. He is pretty sure the woman was Mrs. Buffridge, as he states he- has seen her in bathing suits and around the house, and can therefore recognize a good part of her. This incident and conduct is also denied by bo-tli defendants and by Mrs. Bird, and it also appears that Mrs. Bird was at home that night, and that Spahn had taken Miss Zourabouf to see a moving picture, and that on their return home they passed within a few feet of petitioner and recognized him and knew he was watching the house. Petitioner states it was Mrs. Bird, and not Miss Zourabouf whom he saw being escorted to her bo-mo by a strange man.

The next, and the most important date in petitioner’s case, is April 29th. Petitioner states that o-n this night, about ten o-r ten-thirty, accompanied by Dr. Crane, he found a curtain in the solarium of the Bird ho-use- raised about an inch or an inch and a half, and through this aperture he saw his wife lying on the- davenport in the living-room, a distance of fifteen o-r twenty feet from the window where he and Crane stood; her dress was pulled, up just below her hips: lie recognized her by her legs; Spahn was seated by and leaning over her; he could see her legs bending up. flexing at the knee, straightening out, twisting from right to-left, and could see the man’s back moving. He and Crane, watched this for about ten minutes, then she arose-, pulled down her dresses and adjusted her sash, and in a few minutes she again laid down with her head to the other end of the da.venpo-ri ; the man then came in sight and laid down beside her and partially on her: he and Crane watched this for five or six minutes and discussed what he should do: lie then left and telephoned his counsel, who advised him to get another witness; he did so> and returned in a short time with Mr. Broom; he then resumed his observation, and states he again saw the defendants engaged in the same conduct, and, finally, they sat up and kissed each other. He and Crane and Broom waited until the man left, about eleven or eleven-thirty p. M., and followed him and recognized him as Spahn.

JDr. Crane and his wife were quite intimate friends of Mr. and Mrs. Buffridge prior to their separation.

Dr. Crane testifies that at petitioner’s request he helped him watch the defendant’s and Bird’s home on April 19th and on subsequent dates. He states that he saw a man and woman on the couch in the living-room on the night of April 29th. After petitioner left to consult counsel, Crane continued to watch at the window; he saw the woman sit up and take down one of her bloomer legs, then she lay back on the couch with Spahn ontop of her; she nearly fell to the floor, and they lay partly on the couch and paiily on the floor for five or ten minutes; he could see her bare leg nearly to her hips. They had intercourse while he was looking at them. They laid down three times, and it was the third time, while petitioner was absent, that the act of adultery was committed. He adds that the light in the living-room where defendants were lying had been extinguished, and he was able to see what he did by. the illumination furnished from a light in the hall adjoining the living-room. Mr. Broom, whom petitioner summoned as a Avitness that night, and his wife, had also been intimate friends of Mr. and Mrs. Euffridge until the separation. Mr. Broom states he reached the Bird home about eleven p. m. ; he looked through a slight opening in the curtains on one of the Avindows in the solarium and saAV as much of the couch in the living-room as the doors would permit; he saw a man lying on the couch,, with a Avoman’s bare arm moving back and forth on his back, and could not see anything of the Avoman except her arm. When they moved around or sat up he could not distinguish who they were; he thinks their bodies were coArered, otherwise he could have seen very distinctly. The living-room was not distinctly lighted. “It was lighted in such a fashion I could distinguish figures, hut I couldn’t toll who they ivere.” He further testified that he did not see any act of adultery committed by the defendants on this nor on any other occasion, and that he had never seen Spahu. Mr. Broom states that he and petitioner were looking together. “Crane, I don’t think he looked — I don’t know.”

The defendants not only deny each and every feature of petitioner’s ease relating to this particular date, hut by a clear preponderance of the evidence they show that on the night in question they, in company with Mrs. Bird and Miss Zonrabouf, attended a meeting on the league of nations at the Montclair Theatre, which lasted from about eight to about eleven o’clock. They are corroborated in this by at least one disinterested witness, Mr. Wood, who called at the home that night and was informed by a maid that the family ivere at church. The witnesses for defendants testify that this was a very lengthy meeting, which ended about eleven p. ix.; that after the meeting Spahn purchased ice cream and they took it home, and that the party ate it in the dining-room about the hour petitioner and Dr. Crane states the act of adultery ivas committed. The manager of the ice cream store testified that the meeting that night did not last as late as eleven p. jvi.

Petitioner’s next charge relates to May 7th, when he states that in looking under a curtain in the living-room he saw his wife lying on a davenport with a man lying down beside and partly on her, covering her legs; that he could only see her shoes and the man’s legs on top of hers; that her dress was pulled up above her knees and he •recognized her by her legs. Dr. Crane, who was watching with petitioner on this occasion, states Mrs. Ruffridge was lying down with her legs exposed and that Spahn was walking about. This is also completely denied by the defendants.

On May 9th petitioner states lie looked under a curtain in the solarium and saw Mrs. Bird reading in front of the fireplace and heard her say, “Connie, is it all right for me to come in?” That thereupon, the defendants came from the living-room into the solarium and Mrs. Bird went out; that defendants put out the light, ate some candy and went back into the living-room, carefully drawing the portieres so that nothing could be seen. Dr. Crane a,t first corroborated petitioner and testified that Mrs. Bird said, “Can I come in, Cornelia;” later he admitted that he did not hear her say this.

This whole incident is denied by the defendants and by Mrs. Bird.

On May 23d, petitioner states that about ten-fifty p. ir. he and Crane saw Mrs. Ruffridge lying on a couch in the solarium, with her hair down, and Spahn was sitting by her. Dr. Crane states Spahn was sitting or lying over her.

These occurrences are denied by the defendants and their witnesses; and it appears that on this night Miss Zouraboff had returned from the hospital and that defendants and Miss Britton sat upstairs in her room until about ten-thirty; that when Spahn came down to go home he was accompanied by Mrs. Ruffridge ; that she discovered her husband looking in one of the windows and telephoned for the police.

It also -appears that Mrs. Ruffridge some time in April discovered that she was being followed by her husband and witnesses and that the Bird home was being watched by them, and she or Mrs. Bird complained to tire police of this surveillance.

These are substantially the proofs relied on to -establish the allegations of the petition. And from their recital it is apparent that petitioner and his principal witnesses, Crane and Broom, did not on the same occurrences on any of the dates mentioned. And as stated, petitioner is without any corroboration respecting what he states happened on April 15 th.

Notwithstanding petitioner’s memorandum relates to April 19th, he corrects this and states that the date should be April 21st, and he and Dr. Crane state that on this date, although they did not see the faces of the man and woman, that the defendants were engaged in improper conduct, . He and Crane identify them on this night as the defendant by the contour and general appearance of her legs. Petitioner and Crane and Broom contradict each other about the occurrences on April 29th, the only occasion on which direct proof is offered to show the adultery. Petitioner states that he and Crane together watched defendants in the act of adultery for about ten mintes: that when they changed their position on the davenport he and Crane again watched them for five or six minutes, and he then left to1 consult counsel and to get Broom as a witness. Crane contradicts petitioner, and states that the defendants laid on the davenport three different times, and that it was the last time, while petitioner was absent, that they committed adulter}'.

Broom contradicts. both petitioner and Crane, and, although he knew Mrs. Buffridge very well, he states that when he and Buffridge looked together they could see only part of a couch and a woman’s arms moving back and forth on a man’s back; that they apparently were covered; that the light was so indistinct he could not distinguish who they were;, that no act of adultery was committed while he and petitioner were watching, and that lie does not know, but does not think, Crane looked.

Petitioner describes in detail how the act of adultery was committed when he and Crane first saw the parties on the couch and before he left to get Broom.

Crane states the act of adultery was not committed as petitioner states, but was committed the third time the parties laid upon the couch, and while petitioner was absent and before he returned with Broom; Broom states the. parties were still upon the couch when he and petitioner together began their observations, that no act of adultery was committed, and that if it had been the light was so indistinct and the position of the couch made it impossible to recognize the, parties engaged in it.

With these contradictory statements in mind, and the uncertain and unsatisfactory identification of the defendants, as the participants in these alleged adulterous relations, coupled with the extreme improbability that the acts charged were or could be committed openly in the living-room of a home occupied at the time by eight ór more people, and at times when the defendants knew they were being watched by petitioner and his witnesses, and giving consideration to the petitioner’s insinuation, which, I do' not believe, that Mrs. Bird and Miss Zourobouff connived at or encouraged the illicit relations between the defendants, I am unable to find in the record any satisfactory and convincing proof of defendants’ guilt, and I will advise that the petition be dismissed.

With respect to the allegations of cruelty set forth in the. cross-petition, there is not the slightest proof, aside from the testimony of Mrs. Ruffridge, to support them; she is without any corroboration on any or all of her .charges, except as to the fact that she had a discoloration on her leg, and that her dress and some other articles were torn. Mr. Ruffridge made a complete and satisfactory denial of all her charges, and I will also advise that the cross-petition be dismissed.


text:
    In re John Snead.
    [Decided June 9th, 1924.]
    Custody of Children — Fourteen-Year-Old Son Who Left Home to Live With Older Brother on Account of Lack of Educational Facilities at Home.
    On writ of habeas corpus.

      Mr. Andrew Duch, for the petitioner.

      Mr. J. Bernard Johnson, for the respondent.
   Buchanan, Y. C.

Edward T. Snead, father of John Snead, a boy fourteen years of age, seeks the custody of his son, who ran away to the home of Harrison Snead, an elder brother, aged twenty-six. .Resistance is made on the ground that the father keeps the boy from school, and overworks and underfeeds him. The testimony in this regard was not deniel by the father, and it is obvious that the boy has had but the most meagre school attendance, though he does not show much evidence of under-nourishment.

I think the boy’s welfare would best be served by awarding his custody to the respondent, who is sending him to school and Sunday school, and willing to undertake the responsibility of bis bringing up. I am, however, inclined to think he will be better off, after the close of the school, on the farm than here in the city, and the order may provide for possession to be given to the father during the school summer vacation, provided bond of one thousand dollars ($1,000) be given conditioned for the return of the. boy in September, and further conditioned to protect the boy from overwork and under-nourishment during the summer.