author: Peii Cubiam.

text:
    J. CLARK CONOVER, PLAINTIFF, v. BURNS & SCHAFFER AMUSEMENT COMPANY, INCORPORATED, ET AL., RED BANK AMUSEMENT COMPANY, AND MORRIS JACKS AND WALTER READE, DEFENDANTS.
    Decided February 20, 1930.
    Before Gummeke, Cíiiee Justice, and Justices Kalisch and Campbell.
    Eor the rule, James D. Carton.

      Contra, Theodore D. Parsons.

   Peii Cubiam.

The plaintiff obtained a verdict in an action of replevin, in the Monmouth Circuit, against the defendants for the possession of a pipe organ and damages, in the sum of $4,550.

The facts are: On September 4th, 1920, a lease was entered into between J. Clark Conover, the plaintiff, and Burns & Schaffer Amusement Company, one of the defendants, which among other provisions contains the following: “It

is further covenanted and agreed between the parties hereto that any alterations that the party of the second part desires to make to the demised premises shall be made at its own expense, after having first obtained the written approval and consent of the party of the first part, and all such alterations, additions, and changes, which shall include the erection of any stages, electric wiring or lighting systems, are to immediately merge and become a permanent part of the realty, and all interest of the said party of the second part therein shall become immediately vested in the party of the first part.”

It is by virtue of this covenant that the plaintiff brought its action of replevin to recover a certain Robert Morgan pipe organ, which was formerly in the theatre building owned by the plaintiff, and which he had leased to the defendant, the Burns & Schaffer Amusement Company. On November 19th, 1920, the Burns & Schaffer Amusement Company purchased the pipe organ in question from the American Photoplay Company, and gave to that company a chattel mortgage upon the organ, to secure to the company the payments on the purchase price of the organ, as such payments became due according to the terms of the mortgage.

The chattel mortgage contained the usual provision, and provided that upon the failure of the mortgagor to pay the installments as they fell due, the mortgagee should have the right to enter and remove the organ upon the premises.

This circumstance in itself convincingly indicates that it never was the intention of the mortgagor that the organ should become a part of, or be merged in the building. The organ was installed in the building with the consent of the landlord.

It is quite clear that the pipe organ was a trade fixture, and therefore, under the settled law, in relation to trade fixtures, as between landlord and tenant, the organ was removable, even though it was attached to the realty. Crane v. Brigham, 11 N. J. Eq. 29.

We also think that the provision in the lease, namely that all such alterations, additions, changes which shall include the erection of any stages, electric wiring or lighting system are to immediately merge and become a permanent part of the realty, &c., does not include in any sense, the installation of a pipe organ connected with the theatrical business which was then being conducted on the premises.

By the very language used in the lease, “that all such alterations, additions and changes,” we have the specific declaration of the contracting parties that “alterations, additions or changes,” which consist of the erection of any stages, electric wiring or lighting system shall, only in such instances, as enumerated, to wit, the erection of any “stages, electric wiring or lighting system,” immediately merge and become a part of the realty. This was and is not the case here.

The rule to show cause is made absolute.


source: Caselaw Access Project

author: Peb Cubiam.

license: Public Domain

text:
    COSMO A. GIOVINAZZI, PLAINTIFF-APPELLANT, v. DOMENICK SERRA, DEFENDANT-RESPONDENT.
    Decided February 26, 1930.

      Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Eor the plaintiff-appellant, Charles P. Brewer.

    For the defendant-respondent, Solve Tuso (Thomas G. Tuso, of counsel).
   Peb Cubiam.

The plaintiff brought his action in the Cumberland Comity Court of Common Pleas against the defendant to recover a balance due on a sale of a tractor for farming purposes, made to the defendant-respondent by the plaintiff-appellant, and for which tractor the former agreed to pay to the latter the sum of $200. The defendant paid $60 on account.

To the plaintiff’s action in the court below, the defendant filed an answer denying each and every allegation in the complaint; and set up as a defense, in substance, that the plaintiff knowingly made certain false representations to the defendant concerning the value of the tractor, in that he represented to the latter that the tractor was less than one year old, and that the tractor was a new machine and in Al condition; that the defendant, relying upon the representations made by the plaintiff, purchased the tractor for the sum of $200; that the tractor was not in good working order, and was not in Al condition, and was not a new machine, and was older than represented.

The defendant-respondent filed, with his answer a counterclaim to recover back the $60 paid the plaintiff-appellant on account of the purchase price of the tractor.

The jury found a verdict for the defendant on the plaintiff’s claim to recover the balance claimed to be due of $140, on the sale of the tractor, and a verdict for the defendant against the plaintiff for $60 on defendant’s counter-claim.

There was a rule to show cause obtained by the plaintiff in the court below why the verdicts should not be set aside, but the rule was subsequently abandoned and the plaintiff-appellant took an appeal from the judgment which is before us for review.

There are four grounds of appeal relied on by plaintiff-appellant for reversal of the judgment, which grounds are as follows:

1. The court erred in charging the jury that if they found for the defendant, their verdict “could not be for no cause for action but must be for the $60 demanded by defendant on his counter-claim.”

2. The court erred in directing a verdict on defendant’s counter-claim.

3. There is no evidence to support the verdict of the jury.

4. The court permitted the following illegal evidence to stand over the objection of the plaintiff: Direct examination of the defendant, Domenick Serra, by Solve Tusco, Esq. "Q. What year model was the machine? (Exception noted for plaintiff.) A. 1925.”

The first two grounds of appeal may be considered together, since they are inter-related respecting the subject invoked for discussion.

The exception taken, and upon which the first two grounds of appeal are claimed to be predicated reads as follows: “At any rate, if you find the machine was defective, then you find no cause of action for the plaintiff, and bring in a verdict for the defendant in the sum of $60. That was the amount he paid.”

In what respect this portion of the trial judge’s charge, in connection with other portions of the charge was incorrect, the plaintiff-appellant has not succeeded in making plain to us. When the charge is read in its entirety it at once becomes obvious that the trial judge stated the correct legal rule to the jury, for immediately preceding the criticized portion of the judge’s charge, he instructed the jury as follows': “You have heard the testimony of these witnesses on both sides and just what they claim. It is for you to say whether the machine was in A1 condition as guaranteed which both sides agree was the statement. If it was,, and the defect was in operation of it, the trouble was in operating it, then find for the plaintiff in the sum of $164.43. If, on the other hand, you find that when they got it home and tried to use it, the machine was defective, it was not as warranted, then you will find a verdict of no cause for action. There is some dispute ■as to whether there was a warranty on the model. I believe Mr. Eicci claims there was a statement that it was a certain model, while Mr. Giovinazzi denies that, his statement being that he said it was about a year old.” Then follows the language of the charge to which exception was taken.

The third ground relied on, that there is no evidence to support the verdict of the jury, is unsubstantial. There was ■testimony which plainly supports the verdict of the jury, and the mere fact that the testimony was controverted, is not a factor to be considered in the review of a case on appeal.

The fourth ground of appeal related to the admission of illegal testimony against the objection of counsel of the plaintiff below. An examination of the printed record discloses that the witness testified that he did find out what year model the machine was. After some colloquy between the trial judge .and appellant’s counsel, as to what the witness testified to in that respect, the trial judge said: “He just answered ‘yes’ he did. I will permit that to stand over your objection.” The ■question was then repeated, and was objected to by counsel of appellant and allowed by the court, over such objection, and the witness answered “1925.” Counsel of appellant made no effort to ascertain how, and in what manner the witness obtained that knowledge though given the opportunity to do so, and we cannot be called upon to conjecture, after the witness testified that he had knowledge, that such knowledge was founded upon hearsay testimony.

The judgment is affirmed, with costs.


author: Pee Cukiam.

text:
    COLONIAL DISCOUNT COMPANY, INCORPORATED, RESPONDENT, v. RUDOLPH BURES, APPELLANT.
    Decided February 26, 1930.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellant, Levitan & Levitan (Abraham Levitan, of counsel).
    Eor the respondent, Green Green (David Green, of counsel).
   Pee Cukiam.

This is an appeal by Rudolph Bures, from a summary judgment entered in the Bergen County Circuit Court, in favor of the plaintiff-respondent, and against the defendants below, Rudolph Bures and Harry Heyman.

■ The plaintiff-respondent brought its action in the Bergen County Circuit Court to recover from the defendants below, the sum of $1,070.32, with interest from October 28th, 1926, being the balance due on a promissory note made by the said defendants below, on September 1st, 1926, for the sum of $1,273.35 to the order of W. A. G. Motors Corporation, payable at the office of the Colonial Discount Company, Brooklyn, in eleven equal monthly installments of $106.11 each, and one installment of $106.13, said installments being payable one month apart.

It appears the note was given simultaneously with the purchase of an automobile, by the defendants below, from the W. A. G. Motors Corporation, and represents the balance due on the purchase price.

An answer was filed by the defendant-appellant, Bures, in the action, in which answer he sets up as his first separate defense that the plaintiff is not a holder in due course of the note mentioned and sued upon in the complainant’s complaint.

In the second separate defense, defendant-appellant sets forth that the note sued upon and mentioned in the plaintiff’s complaint, was obtained by fraud and duress. And in the third separate defense he alleges there is no consideration for the note sued upon and mentioned in the complaint.

Notice was given by counsel of plaintiff to defendant’s counsel to strike out the answer upon the ground that it was frivolous and sham, and for the entry of a summary judgment, and the matter came on for a hearing before the Circuit Court judge who ordered that the answer be stricken out, whereupon (whether by leave of court or not, it does not appear), the defendant-appellant filed an amended answer. In this answer, after stating, he denies each and every allegation contained in the complaint, he sets up as his first separate defense that he was fraudulently induced to sign the note sued upon .and mentioned in the complaint by the false representations of the other defendant (Ileyman), and other people. After setting forth matters which were manifestly hearsay, he says that at the time of the sale he was shown a batch of papers and was asked to sign them, and that he was never informed that it was a note he was signing.

It is to be observed that in the first answer filed by the defendant-appellant to the action, he sets up that the plaintiff was not a holder in due course of the note mentioned in the complainant’s complaint; and that the note sued upon was obtained by fraud and duress, and there was no consideration moving to the defendant from the plaintiff for the note sued upon.

The defenses set up in the amended answer are apparently inconsistent with the former one stricken out by the court, in respect to their verity.

Notice was given to strike out the amended answer, and for a summary judgment, upon the ground that the answer was sham and frivolous and filed only for the purpose of' delay, and this matter coming on to be heard before the-Bergen County Circuit Court, on the plaintiff-respondent’s-motion, supported by affidavits, and opposed by counter-affidavits offered by the defendant-appellant, which latter’s affidavits set up, in general terms, in which he claimed that he was fraudulently induced to sign the note by the false representations of the co-defendant, Heyman, and other people, who never stated to him that it was a note he was signing but merely several papers all bunched together.

The court decided that the answer was frivolous and filed for the purpose of delay and struck it out, and ordered judgment final in favor of the plaintiff-respondent, against the-defendant-appellant.

It is quite clear that the matters set forth by the defendant-appellant, as his defense, in his counter-affidavits, even though those matters be true in fact, they constituted no bar to the plaintiff-respondent’s right to a recovery on the note in question since there was an utter absence of the affirmation of any fact in the defendant-appellant’s affidavits that tended to show that the plaintiff-respondent was not a holder of the note sued upon in due course, for a valuable consideration and in good faith and without knowledge of any infirmity in the note.

In view of the fact, that it appeared from the plaintiff-respondent’s affidavits that it received the note before the-maturity thereof, for a valuable consideration and in good faith, and without knowledge of any infirmity in the note, the only proper course therefore for the court to have pursued which it did was to strike out the answer as frivolous- and filed for the purpose of delay, and order final judgment, for the plaintiff-respondent.

Judgment is affirmed, with costs.


author: Peb Cueiam.

text:
    GEORGE MARCINKO, Jr., BY NEXT FRIEND, GEORGE MARCINKO, Sr., PLAINTIFFS, v. CONRAD SAUER, DEFENDANT.
    Decided February 26, 1930.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Henry E. Golenboclc.

    Contra, Freeman Woodbridge.

   Peb Cueiam.

The plaintiffs, father and son, the father as next friend of his minor son, and also in his individual right, brought an action against the defendants to recover compensation by the minor plaintiff for injuries sustained by him as a consequence of being run into and injured by the defendant’s automobile, through the latter’s negligence, and also to recover damages sustained by him, the father, in the loss of his son’s services and for expenses necessarily incurred to effect his son’s cure.

The case came on for trial in the Middlesex Circuit and resulted in a verdict for the minor plaintiff in the sum of $300 and in a verdict for the father in the sum of $100, against the defendant.

There is no contention on part of counsel of the defendant, that under the testimony adduced, a jury could not properly find for the plaintiffs.

The plaintiffs obtained a rule to show cause why the verdict should not be set aside as being inadequate.

According to the testimony, the minor plaintiff, while crossing from the east side of Brunswick avenue to the west side, was run into by the defendant’s automobile. He was picked up by a police officer in an unconscious condition. He was taken to the hospital where he was bandaged up and remained a day or two. There was testimony that he was suffering from a concussion of the brain. He received many lacerations on his body of a painful character. He was unable to return to his employment for two months. At the time he was injured he was- earning $12 a week.

He was fifteen years of age at the time of the accident, and eighteen years of age at the time of the trial, and there was testimony that he was still suffering from the effects of his injuries.

In view of this testimony a verdict of $300 was ridiculously small and inadequate and therefore should be set aside.

As to the father, it appeared there was an actual expenditure by him of $103. Moreover, the father was entitled to recover for the loss of services of his son, and for any future medical expense that he would be put to by reason of the impaired physical condition of his son. During the eight weeks that the son was unable to go to work, there was a loss of services amounting to $96.

The verdict of the father of $100 is clearly against the weight of the testimony, and wholly inadequate, and should be set aside, and a new trial is ordered on the question of damages .only, as to both plaintiffs.

Eule is made absolute.


author: Buchanan, V. C.

text:
    Charles J. Montague, complainant, v. Warren C. Pine et al., defendants.
    [Decided February 13th, 1930.]
   Buchanan, V. C.

Complainant’s bill was filed April 19th, 1929, to foreclose bond and mortgage of $2,000, made December 1st, 1926, by one Niper to complainant, comprising premises conveyed May 31st, 1927, by Niper to defendant Pino and his wife, who assumed payment of the mortgage. Subpoena ad respondendum was served personally on the defendant Pine (and his wife) on April 22d, 1929. Time to answer expired May 22d; no answer was filed; decree pro confesso was entered June 17th. Master’s hearing was held, and report filed December 5th. In the meantime defendant Pine died, on July 24th, and his widow became the owner of the premises by survivor-ship. In the course of settlement of her husband’s estate she discovered two canceled checks, one for $500, dated May 28th, 1927, and the other for $1,300, dated June 24th, 1927, both drawn by her husband to complainant, and endorsed by the latter.

She has filed affidavit setting up these facts, and alleging that the checks were paid in satisfaction of the mortgage in question, and asks to have the decree pro confesso opened, and to be permitted to defend.

Affidavits were filed on both sides, including depositions and cross-examination of affiants before a master, under order. Substantially everything is before the court that could be presented at a final hearing if the decree pro confesso were opened.

Briefly-—Niper testifies that the two checks were payments made by Pine, on account of the mortgage in question. On the other hand, complainant testifies that the checks were not payments on account of the mortgage, but were payments on a separate transaction; and there is corroborative testimony by others.

Payment is of course an affirmative defense—the burden of proof is on defendant. By the evidence (considered as on a final hearing) this burden is not met by defendant. On the contrary, the evidence is practically convincing of the truth of complainant’s testimony. In this behalf there may be mentioned the fact that the bill to foreclose was filed April 19th, 1929, some two years after the checks were given, and that Pine, though personally served with process, filed no answer—and made no attempt to file any such answer— made no denial of any kind of his liability on that mortgage, either within the time limited to answer, or at any time before his death three months later.

Not only that, but in November, 1928, complainant had demanded of Pine payment of the interest on this mortgage, and threatened foreclosure; by letter of December 1st, 1928, Pine made no assertion that the mortgage had been paid, but promised prompt payment of the interest. In March, 1929, complainant notified Pine that he was going to foreclose the mortgage. March 11th, 1929, Pine wrote to complainant’s solicitor, making no claim that the mortgage had been paid, but, in effect, promising to pay it, and asking for time; and subsequently wrote repeated requests for delay—eleven in all—down to two days before his death.

The inference is inescapable, that he had no defense to the foreclosure—hence, that the mortgage had not been paid. The same conclusion must necessarily be reached at a final hearing, if decree were opened. The application to open the decree will therefore be denied.


author: Pee Cueiam.

text:
    ANNIE BENNETT AND PHILIP C. BENNETT, HER HUSBAND, PLAINTIFFS, v. MARIA CECILIA DERIVAUX HINRICHSEN, JOHN A. DERIVAUX, MARIA KATHRYN DERIVAUX, ALOYSIUS J. DERIVAUX AND CHARLES HUBERT DERIVAUX, DEFENDANTS.
    Decided February 26, 1930.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Wother & Gilhooly.

    Contra, Fred G. Stickle, Jr.

   Pee Cueiam.

There was a verdict in this case at the Essex Circuit in the sum of $10,000 in favor of the plaintiff Annie Bennett, and in favor of her husband, Philip C. Bennett, for $1,200.

The case is brought here on a rule to show canse “reserving exceptions to the refusal of the trial judge at the trial to order a nonsuit at the close of the plaintiffs’ case and to direct a verdict for the defendants at the close of the whole case, when moved so to do by counsel of defendants on the ground of contributory negligence on part of the above-named plaintiff Annie Bennett.”

In plaintiffs’ brief under caption, “statement of facts,” there is a statement as follows: “The summary contained in appellants’ brief is substantially correct.”

There is some confusion in the printed record by entitling the brief of defendants as “brief of defendants-appellants,” and the same error appears in the brief, on behalf of the plaintiffs, the brief being entitled “brief of plaintiffs-respondents,” whereas the case is not before us on appeal, but on rule to show cause.

A summary of the facts in the case is necessary in order to ascertain whether the verdict was against the greater weight of the evidence, which is one of the reasons presented on the question why a new trial should not be granted. The other reasons presented are, newly discovered evidence and errors in the admission and rejection of testimony by the trial judge in the course of the trial.

Erom the statement of facts as given by counsel of the defendants in his brief, it appears that Annie Bennett brought her action to recover damages against the defendants, as owners of premises known as No. 8 Quitman street, Newark, New Jersey, for injuries sustained by her; which injuries she alleged was the result of a fall on the stairs from the fourth floor to the third floor, on July 13th, 1925. Mrs. Bennett claimed that she was a tenant' in the above premises at the time of the accident, and she claims that the defendants were negligent in failing to have the stairway in a fit and safe condition for use.

The answer of the defendants admits ownership of the premises, but denies any negligence on the part of the defendants, and they allege that the premises were in a reasonably safe condition while used by the plaintiff. The answer also sets up that at the time of the alleged fall of the plaintiff Annie Bennett, that neither she nor her husband was a tenant in the premises. The defendants’ statement of facts, among other things, sets forth the following: “The premises in question was a four-story apartment and the Bennetts lived on the top floor. The staircase proper was uncovered and consisted of the bare wood, stained and varnished. There was linoleum on the fourth floor landing. There was a small piece of carpet covering the riser from next to the last step in ascending to the fourth' floor landing, and this small piece of carpet was tacked under the linoleum. The carpet was about seven or eight inches in height and about two and one-half feet in width. The balance of the staircase was in the bare wood. It was contended by the plaintiff that there was a tear in this carpet along the edge of the top landing where the linoleum on the top landing overlapped it and under which it was tacked and that as a result of this tear she caught her heel in the opening and was thrown down the stairs to the floor below. Above the top landing and directly over the step in question was a skylight. The plaintiff claimed that there was a dark covering over part of the skylight. This was strenuously denied. In descending from the fourth floor landing to the floor below there were two steps at right angles to the outside wall of the building and then there was one large step forming a curve in the staircase and the remaining steps ran straight to the floor below.”

So, on this phase of the case, the question before us for our determination is whether or not the verdicts rendered are so clearly against the weight of the evidence that we can say they were the product of partiality, mistake, passion or prejudice—and that we cannot say after a careful review of the testimony bearing on that branch of the case. The testimony at most is conflicting, and is of such a nature that it was pre-eminently within the province of the jury to decide which version of the circumstances and conditions under which the accident happened, was supported by the greater amount of credible and probative testimony.

We next take up a consideration of the alleged newly discovered evidence. There is nothing before us in the testimony, taken under the rule, which indicates that by the exercise of due dilligence the testimony now sought to be introduced could not have been discovered. Moreover, we have examined the alleged newly discovered evidence and find nothing therein but what was readily ascertainable by the exercise of due diligence before the trial.

The next point argued in the brief of counsel of defendant is, that the trial judge erred in admitting improper evidence. It is contended under reason three, that the trial judge erred in permitting Walter Rinck, a blind boy, to testify to a certain statement made by Mrs. Bennett in the presence of one Hinrichsen. The record discloses, that after the witness had answered the question propounded to him, without the interposition of any objection by counsel of defendants, counsel of defendants then offered an objection, and the court said, “the answer may remain.” There was no motion made to strike out the answer. Even if we overlook that fact, we think the testimony, even if objectionable, was harmless.

The next question, which counsel of defendants claims to have been improperly allowed to be put by the trial judge was a certain question directed to Dr. Keppler, on his direct examination: Q. “What did you find her condition to be at that time? A. I found her condition to be one of extreme” * * * the witness was interrupted by an objection made by counsel of defendant, and a colloquy ensued between court and counsel, and finally resulted in the admission of the testimony. Dr. Keppler was permitted to testify as to Mrs. Bennett’s condition in May, 1928. He made an examination of her then and gave her a course of treatment, and it is difficult to see upon what theory the doctor’s testimony was not admissible.

Another objection made and argued, in brief of counsel of defendants, is, that the trial judge, against the objection of counsel of defendants, permitted Dr. Donahue to answer the hpothetical question put to him by counsel of plaintiffs.

An examination of the hypothetical question put, makes it quite manifest that it was a proper one, and there was no substance in the objection made to its admission by counsel of defendants.

We have examined the other points made by counsel of defendants, as to the legal propriety of the trial judge to permit counsel of plaintiff to put certain questions to the medical witnesses, and find no merit in any of the objections made.

The rule is discharged, with costs.


author: Pee Curiam.

text:
    JOSE NAPLES, INCORPORATED, PLAINTIFF, v. GREAT NOTCH DEVELOPMENT COMPANY, DEFENDANT.
    Decided February 26, 1930.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Hobart & Minará.

      Contra, Albert Schwartz (Addison P. Rosenlcrans, of counsel).
   Pee Curiam.

There was a verdict in the Passaic Circuit in favor of the plaintiff against the defendant for $6,629.45. The action was brought to recover the amount certified by the engineer, to be due plaintiff from the defendant for work done by the former, pursuant to an original and supplemental contract between the parties, concerning the construction of a sewer system on defendant’s property, at Great Notch, New Jersey.

A reading of the testimony clearly indicates that the controversy between the parties, and the theory on which the cause was presented to court, by counsel, was confined to the question whether the sewer was built substantially water-tight, and not whether there had been a strict and complete compliance with the terms of the contract.

It appears from the evidence that on the 29th day of December, 1927, the engineer, for the defendant company, and in charge of the work for the said company, gave a certificate to the plaintiff, from which it appears that there was due to the plaintiff $6,724.11. The verdict was for the sum of $6,354.11 with interest of $275.34, making a total of $6,629.45. This deduction apparently was due to the fact that it appeared there had been an omission on part of the plaintiff to construct two manholes at $85 each and also of its failure to comply with that part of the contract which required it to replace the macadam, the cost of which was estimated at $200.

The first reason, presented in the brief of counsel of defendant for a new trial, is, that on the issue of substantial performance the verdict was against the clear weight of the evidence. A fair reading of the testimony leads us to the conclusion that the finding of the jury, that there was a substantial performance of the contract, was warranted by the evidence.

The main ground upon which counsel of defendant bases his contention that there was no substantial performance of the contract, is, that the sewer was not so constructed as to be literally water-tight.

According to the testimony of expert engineers, it appears that the term "water-tight sewer” did not demand a strictly water-tight sewer; it did not demand that the sewer be absolutely free from water, and that even if three inches of water collected in the pipes that circumstance would not be considered that it was a sewer not water-tight, but that some water might be anticipated in a water-tight sewer.

In a colloquy between court and defendant’s counsel concerning the term "water-tight” the latter said: "I might concede for the purpose of argument that the contract does not mean an absolutely water-tight job; but on the other hand, I presume also that there are certain practices and certain standards set by the engineering profession as to what shall constitute a water-tight job, within the meaning of that term. Now, it does not appear that this witness is familiar with that engineering standard, or that there is one, if there is one.” The court: “My notion is that you may be right. But the issue in this case is not whether there is a small quantity ol water in these pipes, an inch or hall an inch, but whether there is not a considerable amount of water.” To this counsel of defendant excepted.

The trial judge submitted the question to the jury and we think properly so, whether there was an excessive amount of water remaining in the sewer beyond that which good engineering practice would require, and as has already been said, there was testimony from which the jury might have properly found that the sewer was water-tight in the sense as adopted by practical and expert enginers, and, hence, determined the case against the defendant’s contention.

We do not think there was any error in the admission by the trial judge of testimony tending to show that water in the sewer would not interfere with its proper working facilities, for that character of testimony appears to be germane as to whether or not the presence of a small quantity of water rendered the sewer non-water-tight to the extent that it interfered wiih its proper working facilities. We do not think there was any error committed by the trial judge, in accepting the meaning of the term “water-tight” as applied to sewers, in the engineering profession, of the character in controversy..

It is further urged on behalf of defendant, that the plaintiff failed to prove a condition precedent to its right to recover, namely, the issuance of a valid certificate by the engineer. We think this statement is founded upon captious criticism.

While it is true, that the certificate does not show on its face in words at length, that the work was done to the satisfaction of the engineer, which circumstance is alleged to be a requirement of the contract, the fact that the engineer gave the certificate to the complainant, expresses a satisfaction by him of the work done, by actual deed. The engineer was the defendant’s engineer, and his act was the act of his employer. His satisfaction of the work done was the satisfaction of the company, his employer.

It is further said that the certificate of the engineer was incorrect, and, therefore, cannot be made the basis, of a recovery by the plaintiff, because it was never approved by the defendant. There is a clause in the contract, “that the engineer shall determine the intention and requirements of the plans and specifications, the quality of the material to be used, the manner of performing the work contemplated, and the character of and the amount of work to be paid for, and that the engineer’s decision shall be final and conclusive.”

Another clause in the contract provides: “Payments will be made on certificate of the engineer on completion of the work, to the satisfaction of the company and engineer, for the total cost of the work done, less five per cent, hereinafter provided for.”

The testimony discloses that the defendant’s engineer testified that he issued the certificate in good faith. An examination of the defendant’s answer and of the testimony adduced in the cause fails to disclose any charge in the answer, or in the evidence, that the engineer in giving the certificate to the plaintiff had acted fraudulently or in bad faith.

Lastly, it is argued that the verdict is excessive. We find no merit in this contention.

The rule to show cause is discharged, with costs.


author: Raimo, J.

text:
    Fourth Dist. Municipal Court of New York City.
    GUSTAVE GRIMSHAW AND JEREMIAH DUNNING, PLAINTIFFS, v. CESARE GNUDI, DEFENDANT.
    For the plaintiffs, Harry Wylan.

    For the defendant, William J. Ahearn.

   Raimo, J.

This is an action instituted by the plaintiffs against the defendant for the recovery of money damages by reason of an automobile accident which occurred in the State of Yew Jersey while the defendant’s car was being driven by a third person who had rented same from the defendant, the defendant, at the time, being in business in the State of Yew Jersey, renting cars to the public under which is known as the E-Drive system, which is somewhat similar to the system in our state known as the Drive-Yourself.

As the accident upon which this action is brought occurred in the State of Yew Jersey, the court shall be bound by the law of that state and more particularly chapter 28 of the laws of 1928 of the State of Yew Jersey, in evidence herein.

The facts are as follows: On April 17th, 1928, the plaintiff Gustave Grimshaw, while driving his Cadillac automobile in which the other plaintiff, Jeremiah Dunning, was a passenger on the highway about two miles from Princeton, proceeding towards New York City, stopped same near a bridge. Immediately in front of the plaintiff’s automobile there had also been halted a wagon and a team of horses, so as to allow another automobile which was then approaching towards the plaintiff to pass over the bridge, which bridge was only wide enough for one vehicle to pass at -a time. While so standing, the defendant’s automobile, coming from the rearj ran into and damaged the automobile of the plaintiff, and then continued in towards the other side of the road, running into a stop sign which was imbedded in a concrete base in the roadway and knocking it over into the river. Both plaintiffs claim personal injuries. This testimony was not disputed or contradicted by the defendant. The defendant testified that he had rented the automobile to the driver for a stipulated sum and had no further control thereof, and seeks to absolve himself from liability.

The plaintiffs contend that the defendant is liable by both the common and statutory law of New Jersey, but I hold that the plaintiffs cannot recover under the common law, there being no question that the car was rented to a person who was regularly licensed to drive same by the State of New Jersey, and I shall, therefore, disregard the plaintiffs’ first contention:

Section 2 (a) of chapter 28 of the laws of New Jersey, 1928, was in force when the accident occurred. It provides, so far as is material here, that every owner of U-drive cars, renting them to lessees, must insure himself against liability imposed by the law against such owner for injury or death suffered by any person through the negligent maintenance, use or operation of such motor vehicle in that state, and that the insurance policy shall provide for the payment of any judgment rendered against such motor vehicle owner. By the same section, the policy is, as to the injured party, made incontestable.

The plaintiffs urge that the said statute imposes, by itself, a liability against the owner. The defendant contends that the words “liability imposed by law upon such owner” exonerate him because neither the common nor the statutory law of New Jersey (including this statute), has ever imposed on him any liability.

Let us revert to some well-defined principles on the interpretation of statutes adopted in almost every state, including New Jersey. Interpretation must be guided by the intent of the legislature (O’Neil v. Johnson, 99 N. J. L. 317), which controls even though the letter is plainly contrary thereto. Jehnsen v. Woolworth, 92 Id. 529; United States v. Baltimore Post Co., 2 Fed. Rep. (2d) 761; affirmed, 268 U. S. 388. New York has uniformly followed this doctrine that the intent of the legislature must prevail even over the letter of the statute. A construction resulting in absurdity, or futility, must be shunned. Harris v. Bell, 250 Fed. Rep. 209; affirmed, 254 U. S. 103. Evils which the statute intended to remedy must be considered. Soden v. Trenton, &c., 101 N. J. L. 393. When words are not explicit, the legislative intendment should be sought from the occasion and necessity of the law, the mischief felt and the remedy in view. In re Merrill, 88 N. J. Eq. 261.

This is a remedial statute. I ascertain that it was passed in 1926 as chapter 249, in 1927 as chapter 325, repealed later by chapter 26 of the laws of 1928, in 1928 as chapter 28, and in 1930 as chapter 330. The New Jersey legislature has been discussing it four years and debated on it five times. Of course, I am taking notice of the 1928 law only. But, did that legislature, knowing that the owner was not liable (I must presume such knowledge), compel him to insure for no useful purpose? Did it really intend that? Have those gentlemen been wasting considerable time and breath just to provide for a farcical insurance policy, based on no liability of the assured ? Indemnity avails only where there is liability. There can be no indemnity where there is no liability. Under the defendant’s construction of the statute we should then conclude that the legislature of the State of New Jersey has seen fit to pass these acts for its yearly merriment. I am not in accord with such conclusion.

I believe that the act was intended to remedy an evil. U-drivers are, as often as not, financially irresponsible. The act compels the owner of the U-drive cars to insure and to pay any final judgment rendered against such motor vehicle owner; and these last words clearly indicate that the owner is intended to be the party defendant. Eead from the statute the plaintiffs’ redress against this defendant and you strike them helpless. The operator may or may not be financially good; but he is not insured. Levy against him is uncertain, while it is certain against the owner, because he is insured. Exonerate the defendant, and you make his compulsory insurance an idle gesture and brand the legislature of the State of New Jersey as visionary Don Quixotes that have, not once but five times, futilely tilted against a ridiculous windmill. That would, indeed, be a reductio ad absurdum.

The only reasonable construction of the statute is that in order to protect the public at large, it intends to create a statutory liability against the owner of U-drive ears injuring third parties, while operated by lessees. Counsel have not taken the pains to furnish me with the history of the act, or with the legislative journals pertaining thereto; but we must all agree that its evident intent was to protect just such persons as these plaintiffs, against such negligent operation as the lessee’s in this case, by such insurance policy as was taken here. I am aware that courts cannot make laws, but can only expound them. However, the purpose and scope of this act is so manifest that its undeniable intent must prevail over its letter. Even the rule of strict construction against statutes in derogation of the common law does not prevail against the avowed intent of the legislature. State v. One Ford Automobile, 151 Ark. 29; 235 S. W. Rep. 378.

Judgment is therefore directed in favor of the plaintiff Gustave Grimshaw and against the defendant in the amount of $250; and I further direct judgment in favor of the plaintiff Jeremiah Dunning and against the defendant, in the amount of $100, with costs.


text:
    GEORGIANA YARRINGTON, BY CHARLES YARRINGTON, HER NEXT FRIEND, AND CHARLES YARRINGTON, INDIVIDUALLY, PLAINTIFFS, v. WILLARD O. PITTENGER, DEFENDANT.
    Decided February 26, 1930.
    Before Gummere, Chief Justice, and Justices Kaliscii and Campbell.
    Por the rale, McDermott, Enright & Carpenter (James D. Carpenter, Jr., of counsel).

      Contra, Theodore D. Parsons (Frank J. McCarthy, of counsel).
   Pee Curiam.

This case was tried in the Monmouth Circuit. There was a verdict of $4,500 in favor of the minor plaintiff, and a verdict for the minor’s father, for $1,000.

This is a second trial of the cause. At the former trial the minor plaintiff received $5,000, and the father $1,200.

The gravamen of plaintiffs’ action was malpractice on part of the defendant, a dentist, who in extracting some teeth of the minor plaintiff, negligently permitted a root of a tooth which he was extracting to enter into the lung of the plaintiff, where it embedded itself, so that an operation had to be performed, subsequently, to extract it.

In extracting teeth, such as the defendant was called upon to perform in the instant case, the proof tends to show that the ordinary and general practice is for a dentist to provide throat sponges, so as to prevent the teeth or any part thereof to he swallowed into the lnng or stomach. It was the failure to have taken this ordinary precaution to use throat sponges while extracting the minor plaintiff’s teeth that caused the mischief and the injury.

It appears from the testimony in the cause that the minor plaintiff was put under the influence of an anaesthetic; that it took the dentist about twenty minutes to perform the work; that the dentist failed to use any throat sponges so as to prevent the entry into the throat of any part of the teeth being extracted.

There was also testimony coming from experts that if throat sponges are used, and properly adjusted, that it is very unlikely for a tooth of any part thereof to go down into the lung or stomach.

There is also testimony in the case of circumstances from which the jury had a right to infer that the dentist knew he had drawn out a root of the tooth, since he testified himself that he looked for it on the floor but could not find it; that he glanced at the rest of the fragments on the tray but did not trouble himself to find out whether or not the root had been extracted.

It further appeared in the case, that the plaintiff began to cough, and the defendant passed the matter over lightly.

The defendant, as dentist, held himself out to the general public that he possessed the ordinary skill required of a general practicing dentist, in the extraction of teeth.

As has already been said, and as it appears from the testimony in the cause, the general practice in the extraction of teeth is to use throat sponges for the very purpose of- preventing a patient, under the influence of an ansesthetic, from swallowing or permitting a tooth or the root of a tooth to pass into the lung or stomach.

On the question whether the defendant did use throat sponges there is some conflict in the evidence. The defendant insists that he did use throat sponges, and on the other hand, on part of the plaintiff, it is claimed that no throat sponge or any other precaution was used to prevent a tooth or root thereof, while being extracted to pass into the lung or stomach.

The fact that the defendant himself testified that he missed a root of a tooth and that he looked around on the floor for it, and glanced at the tray containing the fragments and did not find it, seems to us, were circumstances from which a jury could reasonably infer that no throat sponge or other precaution was used by the defendant to prevent foreign matter to enter into the plaintiff’s lung or stomach, while the teeth were being extracted.

It is next said that the verdict is excessive. There is some testimony that the injury resulting in the operation impaired the minor plaintiff’s health to some extent, but from a careful consideration of the testimony relating to the pain and suffering she endured, and the consequences ensuing from her injury, we think that the verdict is excessive, and have reached the conclusion that if the female plaintiff is willing to accept the sum of $3,000, in lieu of the $4,500 awarded to her by the jury, the rule to show cause will be discharged, but if she is not willing to do so, the rule to show cause will be made absolute, as to her. The verdict obtained by the father for $1,000 will not be disturbed, and the rule to show cause as to him will be discharged, with costs.


author: Per Curiam.

text:
    SARAH HANN SKELDING AND GEORGE SKELDING, PLAINTIFFS, v. EMMA POPPENGA, ARCHIE POPPENGA AND HARRY HOAGLAND, DEFENDANTS.
    Decided February 26, 1930.

      Before Gummere, Chibe Justice, and Justices Kalisci-i and Campbell.
    Eor the rule, John A. Matthews.

    Contra, Max Finegold.

   Per Curiam.

The plaintiffs, Sarah Hann Skelding and her husband, George Skelding, brought their action in this court against the defendants, Emma Poppenga, Archie Poppenga and Harry Hoagland, to recover compensation for injuries sustained by the plaintiffs through the alleged carelessness of the defendants. The case was tried at the Monmouth Circuit, and resulted in a verdict for $3,000 in favor of the wife, and in a verdict for $500 in favor of the husband, against the defendants.

The two defendants, Emma Poppenga and Archie Poppenga, obtained a rule to show cause why the verdicts should not be set aside. The other defendant, Harry Hoagland, is not included in the rule to show cause.

The salient facts of the case are that Mrs. Skelding, the wife of George Skelding, on December 2d, 1927, at about five o’clock in the afternoon, in a drizzling rain, was riding, by invitation, in an automobile owned by the defendant Emma Poppenga, and operated by her son, Archie Poppenga. Upon their return from Trenton, where-they had been, and'while the car was being operated on the road from Robbinsville to Hightstown, near Windsor, Mercer county, the car collided with an automobile being operated by the defendant Harry Hoagland in an opposite direction along the highway. The headlights of the ears were lit so they could have been readily seen by the drivers of the respective cars at some distance away if they had been on the alert. The road was straight, and was wet and-slippery, and both cars appear to have been speeding between thirty to thirty-five miles an hour.

The two reasons given for setting aside the verdicts are—• (1) that they are against the weight of the evidence; (2) that they are contrary to the charge of the court.

Prom a careful reading of the testimony, we have reached the conclusion that a jury was warranted in finding, under the circumstances disclosed by the testimony, as to the wet and slippery condition of the road, the speed with which both automobiles were being driven, and the fact that the drivers of the cars could have seen each other at a distance of more than two hundred feet away from the place at which their machines collided, that each of the drivers, if he had been alert, and had used ordinary care, could have avoided the accident. The case is a typical one of joint negligence on part of the operators of both automobiles.

There is no substance in the contention that the verdicts were against the weight of the evidence and against the charge of the court.

The rule is discharged, with costs.


text:
    HARRY MARCUS v. PUBLIC SERVICE CO-ORDINATED TRANSPORT.
    Submitted October term, 1929
    Decided March 3, 1930.
    Before Gummeee, Chiee Justice, and Justices Kalisoh and Campbell.
    Eor the rule, Henry II. Fryling and William F. Vosseller.

      Contra, David T. Wileniz.

   Pee Cukiam.

On April 8th, 1928, at nine p. m., plaintiff’s car, driven by one John Eertig, and in which the plaintiff was a passenger, was being driven southerly on Ogden street, in Newark. As it approached Eector street, a one-way street for westerly traffic only, a bus of the defendant was proceeding northerly on Ogden street. The contention is that the bus made a sharp left-hand turn into Eector street, making such turn before reaching the intersection of the two streets and immediately in front of, and across the path of the oncoming car in which plaintiff was riding. A collision occurred resulting in the demolishing of the plaintiff’s automobile and personal injuries to the plaintiff, and he has a verdict of $5,000 covering both of these items of damage.

This verdict we are asked to set aside for several reasons:

1. Because it is against the weight of the evidence. This we do not find to be so.

2. Because of alleged errors in the charge of the court.. We find that the errors complained of do not exist.

3. The verdict is excessive.

Our consideration of the proofs upon this point leads us to the conclusion that this is so and that an award beyond $3,500 is not warranted.

If, therefore, plaintiff shall, within thirty days from the-entry of an order in accordance with these findings, enter his consent to the reduction of said verdict to. the. sum of' $3,500, the rule to show cause will be discharged, otherwise-it will be made absolute as to damages only and a venire denovo issue for that purpose.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOSEPH WYCKOFF, PLAINTIFF IN ERROR.
    Submitted October term, 1929
    Decided March 3, 1930.
    Before Gummeeb, Chief Justice, and Justices Kalisch and Campbell.
    Eor the plaintiff in error, George E. Gulley.

    Eor the defendant in error, J. Vinceni Barnill.

   Pee Cueiam.

The plaintiff in error was indicted for resisting an officer and for assault and battery. Upon a trial thereunder he was acquitted of the charge of assault and battery and convicted of the charge of resisting an officer.

There appear to be four grounds for reversal urged—

1. That count one of the indictment, for resisting an officer, under which the conviction was had, charges no crime, inasmuch as section 6 of the Crimes act (Comp. Stat., p. 1745) refers only to civil processes.

With this contention we do not agree. A construction of this statute, however, is not called for because in the present case the officer was not possessed of any warrant or other writ or process but was attempting to make an arrest of the plaintiff in error upon view. Resisting an officer when lawfully in the discharge of his duties, as here, was a crime at common law, and our attention has not been directed to, nor ■do we find, that this has been changed, or modified, by statute, and the indictment here was in language sufficient and proper to charge a crime either at common law or under the statute.

2. Refusal to charge a request of plaintiff in error.

This request is not set up as either an assignment of error or a specification of causes and therefore is not properly before us.

It may be added that diligent search fails to reveal such request in the record sent up.

3. Error in the charge of the court.

This is not made the subject of an assignment or specification of causes and therefore is not before us.

4. The verdict is contrary to the weight of the evidence.

This we find to be not so.

The judgment below is affirmed.


author: Pee Cuelam.

text:
    JEAN GORMAN, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. MORTON MAINZER AND ARTHUR H. AREE, DEFENDANTS.
    Submitted October term, 1929
    Decided March 3, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Edwin F. Smith and Raymond Dawson.

      Contra, Alexander <& Cohn.

   Pee Cuelam.

Claude Gorman, the father of the infant child, Jean, was driving a Ford coupe, northerly on Maple avenue, in Glen Eock, Bergen county, at about eight o’clock of the evening of December 30th, 1928. The car had but one seat and was occupied by Claude Gorman, sitting on the left side, his wife sitting next to him on his right and his mother-in-law sitting next and at the extreme right. On the wife’s lap was a young child, of a few months of age and on the lap of the mother-in-law was sitting the plaintiff, Jean, who was at the time of the happening about four years of age.

The defendant Mainzer was the owner of a Ford roadster, which was being operated by the defendant Aree, and occupied by him and his wife and child. This car was being driven southerly on Maple avenue and was followed by a Cleveland car operated by one Yolenski.

The Ford coupe of Gorman and the Ford roadster driven by Aree came into collision and immediately thereafter Gorman’s ear and that of Yolenski collided. The Gorman car was forced around in the highway and upset. The right arm of the child Jean was pinned under the car and so badly injured that it was necessary to amputate it at a point between the elbow and the shoulder.

The impact of the collision forced the roadster, driven by Aree, over to its left-hand side of the roadway, up and over the curb and into a tree, where and when it came to a stop.

The Yolenski car, which was following that of Aree, was either forced or driven upon and over the curb and sidewalk, upon its right-hand side of the road, and upon a lawn and into a tree, when and where it came to a stop.

The infant plaintiff, Jean Gorman, has a verdict of $35,000, which the defendants seek to set aside, urging two reasons:

1. That it is against the weight of the evidence.

2. That it is excessive.

The proofs present two distinct versions of the happening.

Gorman and his wife and mother-in-law say that the car in which they were riding was being driven on the right side of the road at a speed of from eighteen to twenty miles per hour; that the roadster, in charge of the defendant Aree was being driven without lighted head lights, at a high rate of speed, in the center of the road and was being closely followed by the car of Yolenski, which was trying to pass the roadster on its right; that the roadster did not become observable until it was within fifteen feet of the Gorman car which it almost immediately struck, causing the happening. The front bumper and left front wheel of the roadster were broken and this is urged as being corroborative of the plaintiffs’ narration of the happening. As to this, Aree, the driver of the roadster, says that the wheel of his car broke when it hit and was forced over the curb, after the collision, and that the bumper was broken when it came in contact with a tree, also after the collision.

The defendants’ narration of the happening is that the Eord' roadster, operated by Aree, was being driven on its right-hand side of the center of the highway at from twenty-five to thirty to thirty-five miles per hour; that it had been followed by the Yolenski car for about a mile; that just as the roadster reached the Gorman car the latter swerved suddenly to its left, striking the roadster upon its left side near where the driver, Aree, was sitting. This is the testimony of Aree, the driver of the roadster, and is substantially that of his wife, and Yolenski, the driver of the car, designated as the Cleveland car, which was immediately in the rear and following the roadster.

The borough recorder and a police officer of Glen Rock say that when Gorman was questioned at the police station immediately after the accident, he said that as he was driving along he thought he saw ■ something on the pavement of the roadway immediately in front of his car, and in turning and swerving his car quickly to the left to avoid this object his car. came in contact with the roadster, thus causing and producing the happening.

It is to be noted that Claude Gorman, the driver of the ear, and the father of the infant Jean, was also a party plaintiff in the action seeking to recover damages resulting to him by and through the injuries to his daughter, and that while the jury found in favor of the latter, it found against the father.

This would, at least, strongly indicate that the jury found that both Axee, the driver of the Ford roadster, and Gorman,» the driver of the car in which the infant Jean was a passenger, were chargeable with negligence which was the proximate cause of the happening.

The plaintiff Jean Gorman being a passenger in the car, and particularly because of the fact that she was an infant of only about four years of age, could not have attributed or imputed to her, the negligence, if any, of her father.

With this before us and the condition of the proofs being as we have stated them, we cannot say that the finding of the jury was so against the weight of the evidence as to indicate that it was the product of passion, prejudice and mistake warranting its being set aside.

While the result of the injuries to the infant was the loss of a large portion of her right arm, with the possibility of a further operation thereto and the loss of such member, which we fully realize will be a serious handicap to her throughout her entire life, still we cannot escape the conclusion that so far as such infirmities are capable of being measured and compensated for in a monetary way this verdict of $35,000 is excessive.

We think an award of $25,000 woud be ample compensation and if plaintiff shall within thirty days from the entering of an order hereunder file her consent to a reduction of her verdict to $25,000 the rule to show cause will be discharged, otherwise it will be made absolute, and a venire de novo will issue.


author: Mackay, S. C. C.

text:
    SAMUEL EDELMAN, PLAINTIFF, v. JAMES M. DUNN, DEFENDANT.
   Mackay, S. C. C.

Samuel Edelman, plaintiff, seeks to ' recover damages from James M. Dunn, defendant, charging false imprisonment because Dunn, as first assistant prosecutor of Passaic county, agreed on January 9th, 1930, at ten-fifteen a. m., in open court, to fix bail in the sum of $7,500 for Edelman’s appearance for trial. Edelman was arrested on a charge of arson, and bail fixed November, 1929, at $15,000, which was given. An indictment was found by the grand jury, hence Edelman was notified to appear and give new bail and have a day fixed for trial. The complaint charges further, that Dunn willfully and maliciously refused to accept the bail, falsely and fraudulently pretending that he had to investigate the same before he would accept it, and caused said Edelman to be imprisoned until the alleged investigation was completed. That Edelman then applied to Judge Delaney, of the Quarter Sessions, to compel and direct the acceptance of the bail, and the judge forthwith directed Dunn to attend to the acceptance of bail. Further, that Dunn knew before investigating that the bail was sufficient because he had accepted the same bondsman and the same real estate security when Edelman was first arrested, and prior to his indictment and arraignment on January 9th, 1930.

The theory of the plaintiff’s complaint is that defendant had power to fix and accept bail. This does not appear to be so.

Under the Criminal Procedure act the judge of the Quarter Sessions fixes the bail in an arson case. 2 Comp. Stat., p. 1828, § 24. The sheriff or county clerk may admit to bail upon the order in writing of the judge (see section 20), and I am of the opinion that these last named officials are the proper persons to examine or investigate the bail. There appears to be no warrant in law for the judge to delegate the power to investigate bail (which plaintiff alleges in his affidavit the judge did) nor any authority for the assistant prosecutor to take upon himself the performance of this task. Plaintiff’s affidavit is to the effect that there is a long •established rule of the prosecutor’s office to investigate bail. He attaches a blank form, signed in blank by the judge. This blank form clearly sets forth: “The clerk of this court •or the sheriff of the county of Passaic is hereby authorized to take bail in the above-stated case.”

Why then should assistant prosecutors walk around with blank forms signed by the judge, and take bail when they .see fit, having no authority in the premises so to do. It can and may open the door for favoritism. It is reprehensible in the extreme. If the present law is not satisfactory, then let the legislature act, but until they have done so, let us have the criminal procedure followed legally. Nothing is more sacred than liberty. Every person charged with crime is presumed innocent until proven guilty. I have digressed from my opinion on this motion because defendant’s affidavit presents an unusual and improper method of dealing with the subject of bail and I feel it my duty to call it to the attention of counsel.

The complaint appears to me to be frivolous. On its face it set forth no cause of action, although true. National Surety Co. v. Mulligan, 146 Atl. Rep. 372.

Furthermore, our courts having held regarding a judicial officer and gMasf-judicial • officer, that “for a mere error in judgment in the execution of his office no action can be maintained. It is a principle which lies at the very foundation of a free, vigorous and independent administration of justice.” Little v. Moore, 4 N. J. L. 84.

In Taylor v. Doremus, 16 N. J. L. 473, Chief Justice Hornblower said, inter alia: “An action will not lie against a judge for an error in judgment, however prejudicial to the rights of the party such error may be, is a proposition so plain, so consonant to reason, and so essential to the very courts of justice, that it needs neither authority nor argument to support it.” Taylor v. Doremus, supra. See Grove v. Van Duyn, 44 N. J. L. 654.

While I have heretofore stated that the assistant prosecutor had no power to accept or fix bail and that it was improper to have blank applications, nevertheless, there was another duty which the assistant prosecutor had to perform. He was acting in a judicial or quasi-judicial capacity. I believe he was a gwasi-judicial officer. Although there may have been an error in judgment on his part he had an official duty to perform, connected with plaintiff’s arraignment. See Hann v. Lloyd, 50 N. J. L. 1; Griffith v. Slinkerd (Ind.), 44 N. E. Rep. 1001.

It follows that the complaint in this case should be struck out. I will so recommend.


author: Macea y, S. C. C.

text:
    GERTRUDE LEVINE, DOING BUSINESS AS SILK CITY TRUCKING AND RIGGING COMPANY, PLAINTIFF, v. AETNA CASUALTY AND SURETY COMPANY, A CORPORATION, DEFENDANT.
   Macea y, S. C. C.

Plaintiff seeks to recover from the defendant the amount due from the contractor for services rendered for trucking tools, equipment and machinery from Totowa, Passaic county, New Jersey, to Grand Concourse, New York; also for trucking- nineteen barrels of brick and trucking steel doors from railroad station, amounting in all to $490. The contractor was employed to construct a building at Totowa, New Jersey, for the department of institutions and agencies of the State of New Jersey. The defendant gave a bond which provided, inter alia: “Perform the things * * * to be done and performed according to the terms of said contract, and shall pay all lawful claims of subcontractors, materialmen and laborers, for labor performed and materials furnished in the carrying forward, performing or completing of said contract, we agreeing and assenting that this undertaking shall be for the benefit of any materialman or laborer having a just claim, &c.”

In the case of Skillman v. United States Fidelity and Guaranty Co., 130 Atl. Rep. 564, the court held for reversal by a vote of eight to seven that, “as plaintiff was not named as an obligee in the bond sued on, and as it was not by express terms nor impliedly made for his benefit, the defendant being only surety on the instrument, is not liable for the debt due from contractor to the plaintiff, and therefore the judgment in the latter’s favor must be reversed.” Skillman v. United States Fidelity and Guaranty Co., supra.

The instant case differs from the foregoing in that the proviso was inserted in this bond: “We agreeing and assenting that this undertaking shall be for the benefit of any materialman or laborer having a just claim.”

The plaintiffs in this case moved to strike out the answer. There were two motions, the first to strike out the answer as sham and a second motion was made to strike out the second defense on the ground that the same is frivolous. The answer itself denies the allegations of the complaint. The defense to both counts is to the effect that the claim of the plaintiff is not a lawful claim.

As to the second and third items amounting to $5 and $10, respectively, there is no question in my mind regarding the same, but I have had some difficulty regarding the claim for $475, which is for trucking the contractor’s equipment from Totowa to New York. The theory of the defendant’s defense seems to be that the equipment of the contractor was on the job, that the purpose for which it was intended had been accomplished and that the mere removal of it from Totowa, to a place outside of the state was not material furnished or labor performed in and about the completion of the contract in question.

The defendant further contends that section 10 of the bond provides that “all material of any kind or character belonging to the party of the first part [meaning the contractor] which shall remain upon the premises of the Training School for Feeble Minded Females at Totowa, New Jersey, after the expiration of sixty days from the delivery of the certificate by the party of the second part [State of New Jersey] to the party of the first part [contractor] for the amount of money due to said party of the first part upon the completion of' the work to be done under this contract, shall become absolutely the property of the State of New Jersey, subject to be used and disposed of by the said party of the second part [State of New Jersey] as the party of the second part [State of New Jersey] may deem proper.”

Personally, I have no difficulty regarding this clause because it apparently only relates to materials whereas the plaintiff’s claim to the extent of $475 is for the removal of equipment.

To say that the plaintiff should not recover in this case because the labor performed consisted in removing equipment from the job to New York which had been used in the performance of the contract work, but which was not being used at the time because it was being removed, when in fact it had to be removed sometime or other, is placing a rather narrow construction upon the provision in the bond relative to the meaning of “labor performed” and the meaning of the words “a just' claim.” Especially does this seem to me to be so when it appears that the United States Supreme Court has held that “trucks hired and used to deliver materials are entitled to recover from the bondsman, although the trucks so hired were not actually used in the building, but were used in delivering material to and returning from the premises.” Illinois Surety Co. v. Davis, 244 U. S. 376, 383.

As to the charge that the claim as itemized by the plaintiff is indefinite, I cannot agree. I am inclined to believe a layman could tell by reading the correspondence and by reading the itemized bill just what was done.

In the case of Shannon v. Continental, Sc., Co., 8 N. J. Adv. R. 52, Mr. Justice Case, in speaking of the effect of the statute in question said (at p. 56) : “The protection is accomplished by causing the contractor to bring in a third party as surety to stand sponsor for him. The defendant came in and assumed that liability, not necessarily or as a matter of legal sequence but voluntarily and, as we may assume from the fact that such is the defendant’s business, for a consideration.” Shannon v. Continental, &c., Co., 8 Id. 52, 56.

The foregoing reasoning seems to me to cover any claim connected with the contract work for which an action would lie against the contractor. There is no dispute that plaintiff could legally hold the contractor for his claim in the instant case, ergo, he can hold the defendant surety company. This case also disposes of the question of interest as follows: “Held, also chargeable with interest on the amount of the claim from and after the beginning of the statutory date for bringing suit.” Ibid.

I will recommend that the answer and special pleas be struck out and also recommend that judgment be entered in favor of the palintiff for the sum of $490, with interest from the beginning of the statutory date for bringing suit.


author: Mackay, J.

text:
    Passaic County Circuit Court.
    FRED W. NESKE ET AL., PLAINTIFFS, v. HERBERT BURNS ET AL., DEFENDANTS.
   Mackay, J.

This is an action in tort for damages for personal injuries and personal property damage.

Defendant served interrogatories asking plaintiffs the extent of the injuries; the hospital and time he was confined there and at home; the business plaintiff was engaged in and the wages lost; the value of the auto prior to and after the accident.

Defendants must concede that all of the foregoing will have to be proven at the trial of - the action if plaintiffs are to succeed in obtaining verdicts in their favor at the trial.,

Interrogatories are written questions propounded by one party and served upon the adverse party, who must serve written answers thereto under oath within ten days. Comp. Stat., p. 4097, § 140.

Interrogatories in the courts of law are creatures of statutory law framed on the analogy of bills of discovery in the courts of equity. 18 C. J. 1057.

The purpose of interrogatories is to supply a party with information which is within the peculiar knowledge of his adversary and which is essential to the preparation of his case for trial. The rule permitting interrogatories, having as its object the prevention of surprise at the trial, will be liberally construed. Assets, Ac., Assn. v. Exposito, 94 N. J. Eq. 708.

Further, the'purpose of interrogatories is to gain from one’s opponent information necessary to build up the case of the party presenting them. Watkins v. Cope, 86 Atl. Rep. 545.

Do defendants desire the answers for building up their case? I think not. Defendants can only succeed by the answers to these questions in limiting plaintiff’s proofs, and mitigating the damages.

Interrogatories cannot be made to perform the office of a bill of particulars. Watkins v. Cope, supra.

Interrogatories should be directed to some matter material to the issue. They should be of such a character that, coupled with responsive answers, they will constitute relevant and competent evidence for the party propounding them. Watkins v. Cope, supra.

When certain information which is within the peculiar knowledge of the adversary is necessary to help a party in sustaining the burden of proof, the party may request such information through the service of interrogatories. The state of the pleadings determines the relevancy or irrelevancy of the questions asked. Until the pleadings have resulted in the creation of an issue, interrogatories are improper for the reason that the party having the burden of proof has not yet been determined. A few examples will clarify the situation.

“In an action for an injury caused by the negligent operation of defendant’s trolley car by his employes, the plaintiff may ask for the names of the employes operating the defendant’s trolley car on which the plaintiff was injured; what cars the defendant owns and the numbers of such cars.” Dodd v. Public Service Corp., 29 N. J. L. J. 22.

The burden of sustaining negligence by an employe of the defendant is cast by the pleadings upon the plaintiff. The information desired is within the peculiar knowledge of defendant. The plaintiff is entitled to have the information for the purpose of preparing his case. Ibid.

In this connection it should be noted that the relevancy of certain facts to a party’s cause of action makes their discovery through interrogatories proper even though the answer would incidentally disclose the other party’s evidence. Pom. Eq. Jur. (1st ed.), § 201.

In an action for negligent injury, defendant pleaded contributory negligence. The burden was on defendant to prove it, unless plaintiff’s case showed contributory negligence on its face. The defendant could ask plaintiff for information within plaintiff’s peculiar knowledge to show contributory negligence. Cohen v. North Jersey Street Railway Co., 29 N. J. L. J. 299.

An example that will show when they are improper is “a complaint based on defendant’s refusal to entertain plaintiff at his inn as a person unfit to be admitted as a guest. Defendant met the complaint by a denial. Then he served upon the plaintiff a number of interrogatories seeking information as to plaintiff’s status, past history and business in coming into that particular town. The purpose of the questions was to secure evidence justifying plaintiff’s expulsion. But in actions for slander, justification is a defense only when pleaded specially. The defendant did not plead justification. Justification was not an affirmative issue under the pleadings to be established by the defendant.” The interrogatories were therefore improper. Watkins v. Cope, supra; Harris on Pleading and Practice in New Jersey 418, 421.

In the present case issue is joined, the burden is on the plaintiff, therefore plaintiff could propound interrogatories within the peculiar knowledge of defendant, and defendants could propound interrogatories to plaintiffs if they charge contributory negligence, for the purpose of assisting them in proving this defense. The evidence which defendant seeks is not for the purpose of sustaining the burden. It is simply for the purpose of confining the production of evidence within the limits of such answers as plaintiff might give in answer to the interrogatories propounded.

I shall recommend that the motion to strike out be granted.


author: Ingebsoll, Y. C.

text:
    Robert E. Weaver, complainant, v. Harry Krechmer et al., defendants.
    [Decided March 14th, 1930.]

      Mr. William Charlton, for the complainant.

      Messrs. Thompson & Hanstein, for the defendant Atlantic Guaranty and Title Insurance Company.

      Mr. Ulysses G. Styron, for the defendants Harry II. Krechmer, Meyer Kreehmer, Max Kreehmer, Ellis Kreehmer, Eva Kreehmer, Hessie Kreehmer, Abe Kreehmer, Katie Krechmer, Mary Pearlman and Eobert C. Pearlman.
   Ingebsoll, Y. C.

The complainant alleges that on the 3d day of April, 1928, he recovered a judgment against the defendant Harry H. Kreehmer, for the sum of $791.45 and costs in the amount of $59.82; that he has been unable to levy upon any property of the defendant and that the execution issued upon said judgment was returned unsatisfied.

That on September 14th, 1926, Harry H. Kreehmer, together with his brothers and sisters, conveyed to their mother, Katie Krechmer, for the express consideration of one dollar and other good and valuable consideration, the premises described in the complainant’s bill; that Harry H. Krechmer’s interest therein was an undivided one-seventh part thereof, subject to the mother’s dower interest. There was no consideration for this conveyance except that all the children, at the death of the father, conveyed their interest in the property left by the father to the mother.

It has been held ever since 1798 that a voluntary conveyance from a father to his children, without any other consideration than natural affection, made at the time he is indebted, is fraudulent, as against creditors. Den v. De Hart, 6 N. J. Law 450. The same rule applies where a son conveys to a parent.

The only other question is, therefore, did the defendant Krechmer, at the time of the conveyance, owe Weaver the debt upon which the judgment was founded? It is manifest, that he did. On January 23d, 1926, by written agreement, he agreed to convey to the complainant certain lands and premises on the first of September, 1926, and in the event he should be unable to perform the covenants of said agreement, he should repay the sum which the complainant had paid him, which was $750.

A decree must be advised in favor of the complainant, decreeing that the said conveyance, in so far as Harry H. Krechmer is concerned, shall be set aside.


text:
    SARAH SUSSMAN AND MAURICE SUSSMAN, HER HUSBAND, PLAINTIFFS, v. ANTHONY GRINWIS, DEFENDANT.
    Decided February 26, 1930.
    Before Gummere, Chibe Justice, and Justices Kalisch and Campbell.
    Eor the rule, Aaron L. Simon.

      Contra, Turner & Shatter.

   Per Curiam.

The plaintiffs, husband and wife, brought their action jointly in this court to recover compensation for damages sustained by them as the result of an injury received by the female plaintiff, who was run into by an automobile on June 25th, 1927, operated by the defendant along Main avenue, a public highway in the city of Passaic. The husband sued to recover for loss of consortium and moneys necessarily expended by him to accomplish the cure of his wife, and the wife’s claim was for compensation for pain and suffering and loss of wages.

The case was tried at the Passaic Circuit and resulted in a verdict for the defendant.

We cannot say from a fair reading of the testimony that it is clear to us that the finding of the jury in favor of the defendant was the result of mistake, partiality, prejudice or passion, and, therefore, we have reached the conclusion that the rule should be discharged, with costs.


text:
    GEORGE STOLL AND JOHN S. STOLL v. ANDREW SCHANTZ AND FRED T. SCHANTZ.
    Submitted October term, 1929
    Decided March 3, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Samuel D. Williams.

    Contra, King & Vogt.

   Pee Cueiam.

This is an action for damages for personal injuries, &c., resulting from a collision between the automobile in which one of the plaintiffs, John S. Stoll, was riding and the car of the defendants. The verdict is $3,500, and the only attack upon it is that it is excessive.

We conclude that it is, and that it should be reduced to $2,500 or otherwise this rule should be made absolute. If within thirty days from the date of the entry of an order in accordance with these findings, the plaintiff John S. Stoll shall enter his consent to the reduction of said verdict to $2,500 the rule to show cause will be discharged, otherwise it will be made absolute as to damages only and a venire de novo issue for that purpose.


text:
    WILLIAM CRAIG, PLAINTIFF, v. JAMES E. PERRY, DEFENDANT.
    Submitted October term, 1929
    Decided March 3, 1930.
    Before Gummere, Ciiiee Justice, and Justices Kalisch and Campbell.
    Por the rule, Joseph J. Weinberger.

      Contra, Feder & Binzler.

   Per Curiam.

Plaintiff was crossing on foot, Lexington avenue at Clifton avenue, in Clifton, crossing from east to west. He asserts that he was crossing at and upon the crosswalk. Defendant was driving his car south on Lexington avenue. Plaintiff was struck by the bumper of defendant’s car and injured. He has a verdict of $2,000, which we are asked to set aside because, it is urged, it is against the weight of the evidence.

Plaintiff says that when he started to cross the highway the traffic signal light at that point showed a green light for east and west traffic and that he proceeded to cross from the east side of Lexington avenue to, and into, the westerly side within the lane for south-bound traffic when and where he was struck by defendant’s car, and that he did not at any time see the car.

Defendant insists that as he approached the intersection of the two avenues, the traffic light, before referred to, showed green for north and south traffic on Lexington avenue; that as he approached the intersection, he shifted into a lower gear, reduced his speed and proceeded across the intersection; that although he had the bright headlights on his car lighted, which permitted a vision three hundred feet ahead, he at no time saw plaintiff until his car struck him, although he, in driving, was looking straight ahead.

It is admitted that during the afternoon of the happening plaintiff had had three drinks of whiskey. There was, however, no proof that he was intoxicated.

The happening complained of took place at seven o’clock in the evening and during a drizzling rain.

The only witnesses to the happening were' the plaintiff and defendant. From the proofs a fair jury question was presented and we are unable to see how their finding, under the circumstances, can be said to be so clearly against the weight of the evidence as to warrant a setting aside of the verdict. .

The rule- to show cause will be discharged.


text:
    LUCY M. KEIMIG AND ALFRED J. KEIMIG, PLAINTIFFS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION, DEFENDANT.
    Submitted October term, 1929
    Decided March 3, 1930.
    Before Gummeke, Chief Justice, and Justices Kalisoh and Campbell.
    For the rule, Henry H. Fryling and William F. Vosseller.

    Contra, Francis A. Gordon.

   Per Curiam.

The plaint ills, husband and wife, were passengers in a bus of the defendant on May 23d, 1927, when it collided with a pole at the corner of Monmouth road and Magie street, in Elizabeth.

Both plaintiffs were injured. The husband has a verdict for $500 and the wife for $5,000. These we are asked to set aside because, it is urged, they are excessive. By our examination of the proofs we are satisfied that this contention has not been made out.

The rule will therefore be discharged.


text:
    ELIAS DIEM, PLAINTIFF-APPELLEE, v. NEW JERSEY LANDSCAPING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT. NATHAN MARECH, PLAINTIFF-APPELLEE, v. NEW JERSEY LANDSCAPING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT. HYMAN KIPNIS, BY HIS NEXT FRIEND, LOUIS KIPNIS, PLAINTIFF-APPELLEE, v. NEW JERSEY LANDSCAPING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January 31, 1930
    Decided March 6, 1930.

      Before Justices Parker, Black and Bodine.
    Eor the defendant-appellant, Harley, Cox & Walburg.

    Eor the plaintiffs-appellees, Braelow & Tepper.

   Per Curiam.

Defendant’s automobile truck in charge of a chauffeur and laborer on May 2d, 1929, ran up over the sidewalk on Prince street, Newark, and into Diem’s candy store. It also struck the automobile of Nathan Marech, and injured Hyman Kipnis, a minor, who was standing on the sidewalk between his father’s barber shop and Diem’s candy store.

The plaintiffs brought separate suits in the District Court, and the attorneys entered into an agreement that the cases should be tried together. The defendant’s attorney demanded a jury trial and paid one set of fees into court. The trial judge took the view that although the defendant was entitled to a trial by jury in one case that the parties had not agreed that there be a trial of the three cases before a single jury, and that hence the cases must proceed before him without a jury or the defendant might elect to move the trial of a single issue before a jury and the other two issues must be tried before the court.

We are constrained to believe that the District Court judge improperly construed the agreement of the parties. We think that the stipulation provided for the trial of the three issues before a single jury, and that the defendant was deprived of a constitutional right.

This view leads to a reversal and makes it unnecessary to consider the evidence as to the defendant’s liability for the acts of its laborer, who with the acquiescence of its chauffeur was driving its truck. It quite clearly appears from that evidence that both men were in a state of intoxication, but we cannot now determine what facts adduced at a new trial may rebut the presumption arising from the operation on a public highway of an automobile in the possession of defendant’s servants employed for that purpose. Tischler v. Steinholtz, 99 N. J. L. 149.

The judgments below will be reversed.


author: Peb Ctjbiam.

text:
    EDWARD R. DEIBERT, PLAINTIFF-APPELLEE, v. DEVELOPMENT BUILDING AND LOAN ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January 31, 1930
    Decided March 6, 1930.
    Before Justices Pabkeb, Black and Bodine.
    Eor the defendant-appellant, Aaron Heine.

    For the plaintiff-appellee, Edward R. Deibert, pro se.

   Peb Ctjbiam.

It appears from the agreed state of the case that a man named Sullivan owned shares of stock in the defendant building and loan association. He gave notice on July 23d, 1928, that he desired to obtain the withdrawal value of his shares. Leave so to do was granted and a check was made out to his order, which remained in the possession of the attorney for the association until November 17th, 1928. The by-laws state that after notice of withdrawal shares are non-assignable.

On September 27th, 1928, Sullivan assigned to the plaintiff, Deibert, his right to the money clue from any shares which he might have in the defendant company. Notice of this assignment was presently given to the association, but subsequent thereto the sheriff of Camden county levied upon the cheek and the proceeds thereof were paid to one of Sullivan’s judgment creditors on endorsement of the sheriff.

The District Court gave judgment to Sullivan’s assignee. In this we think there was no error. The assignment was of money due, and was perfected by notice long before there was.a levy by the sheriff.

It is urged here that the suit was prematurely brought under Pamph. L. 1925, ch. 65. Our examination of the record does not indicate that this point was raised below. The judgment of the District Court was predicated on the bare legal proposition that the assignment of the money due was perfected before levy, and that hence the assignee was protected. In this there was no error.'


text:
    HARRY MONCHER, PLAINTIFF, v. WILLIMINE FUCHES, DEFENDANT.
    Submitted January 31, 1930
    Decided March 6, 1930.
    Before Justices Parker, Black and Bodinb.
    Eor the plaintiff, Charles S. Gray.

    Eor the defendant, Arthur F. Mead.

   Per Curiam.

Plaintiff brought suit in the Eirst District Court of Essex county for personal injuries. Judgment was given for $175. The appeal is on the ground that the undisputed testimony shows damages in excess thereof. The evidence was to the effect that the plaintiff was a plasterer by trade and had lost more than $400 in wages and had expended for medicine and doctor’s care about $44.

The problem for the District Court was one of fact, and from that finding there is no appeal. “Only the determination or direction of the District Court in point of law or upon the admission or rejection of evidence is open in the Supreme Court.” Oppicci v. Erie, 93 N. J. L. 394.

The judgment below is affirmed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOSEPH DEVON, PLAINTIFF IN ERROR.
    Decided March 7, 1930.
    Before Gummeee, Ci-iiee Justice, and Justices Kalisch and Campbell.
    For the plaintiff in error, Walter S. Keown.

    For the state, Clifford A. Baldwin, prosecutor of the pleas (Samuel P. Orlando, on the brief).
   Pee Cueiam.

The defendant, Joseph Devon, was convicted upon an indictment charging him with manslaughter in the felonious killing of one Joseph Cimini, alias Joseph Gannon.

Several grounds are urged for the reversal of this conviction. Seven of them relate to rulings upon evidence. Four of the rulings specified overruled questions asked by counsel for the defendant of one William Felt, a witness called hy him.

Another ground of reversal was directed at the exclusion of a question asked of one Michael D’Andrea, another of defendant’s witnesses. Our examination of the testimony submitted by the state and the defendant leads us to the conclusion that these questions were properly overruled.

Two other grounds of reversal are directed at the ruling of the court in refusing to exclude certain questions put by the state to the witness D’Andrea. Our consideration of the testimony leads us to the conclusion that these questions were properly admitted.

Eleven other grounds of reversal are directed either at the refusal of the court to charge certain requests submitted on behalf of the defendant, or to the court’s instruction to the jury. As to the requests, our examination of them in connection with the charge as delivered leads us to the conclusion that the- court in its charge to the jury complied with the requests so far as they were proper. As to the charge itself we find no error.

It is next argued that the verdict is against the weight of the evidence. Our examination of the proofs leads us to the conclusion that the finding of the jury was fully justified by the testimony submitted.

Lastly it is contended that the conviction should be set aside because “the clerk of the court erroneously and illegally received the verdict of the jury in the absence of the judge without instructions from the judge and contrary to law, and discharged the jury.” This contention is plainly without merit. There is nothing in the record to justify the statement of fact upon which it is based. The recital contained therein is that the jury, after having been charged by the court, retired; that, after an absence, they returned into court and stated that they had agreed upon their verdict, that they found the defendant guilty as he stood charged, and recommended to the court that mercy be extended to him.

The conviction under review will be affirmed.


text:
    MARGARET GAVEN, PLAINTIFF, v. MORRIS M. COHN ET AL., DEFENDANTS.
    Decided March 7, 1930.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    Eor the motion, I. Faerber Goldenhorn.

      Contra, Edward A. Marhley.

   Pee Cueiam.

It is somewhat difficult to understand the purpose of this motion. The notice upon which it is based was that counsel would apply to the court to settle the terms and make certain the terms of an opinion heretofore rendered in the cause, and to remit the cause to the Circuit Court with instructions as to the issues to be tried therein. A reading of the opinion referred to shows that there were no terms left unsettled therein. If counsel for the plaintiff has failed to understand the meaning of the opinion, we do not feel responsible for that lack of understanding. As to the request that the Circuit Court be instructed as to the issues to be tried, it is sufficient to say that the rule remitting the case to the Circuit Court leaves all the issues upon which the alleged liability of the defendant Cohn is claimed to exist to be retried by the Circuit Court.

The motion will be denied, with costs to the defendant.


text:
    DAVID H. DICKEY, PLAINTIFF, v. JOSEPH P. CLEARY, DEFENDANT.
    Decided March 7, 1930.
    Before Gummere, Chiee Justice, and Justices Kalisch and Campbell.
    For the rule, George A. Bourgeois and Burtis 8. Horner.

    No argument was submitted on behalf of the plaintiff.
   Per Curiam.

The defendant in this suit is a practicing physician, and about May 10th, 1926, was called upon professionally to treat the plaintiff, who was a principal of a school in Long Branch. This he did, and some days after he was called in. the plaintiff became delirious, and the defendant thereupon suggested his removal to the State Hospital for the Insane, where he was detained for some thirteen months before being released as cured by the persons in charge of the asylum. He then brought the present suit against the defendant and made four distinct claims against the latter, for which he sought compensation. The first was that the defendant in speaking of the condition of the plaintiff at the time of his removal to the state asylum, and the cause thereof, falsely and maliciously made certain statements which greatly injured his good name, character and reputation. His second claim was that the defendant was careless and negligent in his treatment and diagnosis of the plaintiff’s condition by reason whereof the plaintiff became permanently crippled. The third count charged malpractice, and the fourth count charged false imprisonment of the plaintiff by the defendant because of the fact that it was at the latter’s suggestion that the plaintiff was taken to the insane asylum and detained there for a year. The trial resulted in a verdict against the defendant on each count, the jury awarding the plaintiff $5,000 on the first count, $3,000 on the second count, $2,000 on the third count and $2,000 on the fourth count.

Our examination of the testimony submitted to the jury leads us to the conclusion that the verdict is not only contrary to the great weight of the evidence, but that it plainly indicates partiality in favor af the plaintiff or prejudice against the defendant. The fact that the plaintiff has not seen fit to employ counsel to represent him on the hearing of this rule would seem to indicate that he holds the same view.

The verdict will be set aside in tolo and a new trial ordered.


text:
    JAMES LEWIS JOHNSON, PROSECUTOR, v. THE BOARD OF EMBALMERS AND FUNERAL DIRECTORS OF THE STATE OF NEW JERSEY, RESPONDENTS.
    Submitted October 11, 1929
    Decided March 13, 1930.
    Before Justices Tkenchard, Lloyd and Case.

      Eor the prosecutor, Robert Queen.

    For the respondents, William A. Stevens, attorney-general, and Robert Peacock, assistant attorney-general.
   Per Curiam.

The following matters of fact are gleaned from the state of the case which has been laid before us:

On January 15th, 1929, the license of the prosecutor as a funeral director and embalmer, issued pursuant to chapter 156 of Pamph. L. 1927, was revoked by the respondent board after a complaint and hearing.

On January 18th, 1929, the prosecutor was allowed a rule to show cause why a writ of certiorari should not issue to review such action, returnable January 25th, 1929, before a justice of this court.

On motion of the prosecutor the hearing thereof was continued to February 15th, 1929. No depositions were ever taken and nothing further was done until July 3d, 1929, when, on motion of the attorney-general, the rule to show cause was dismissed by such justice for failure to prosecute.

However, on August 21st, 1929, on motion of the prosecutor, such justice granted prosecutor leave to apply to this court at this term for a vacation of such dismissal, nothing seems to have been done in pursuance of such leave granted. The state of the case laid before us does not disclose or even suggest that there was any impropriety in such action of dismissal, but on the contrary the plain implication is that such action was right, and it is therefore clear that we would not be justified in disturbing the dismissal of the rule -to show cause.

The result is that the application- for a vacation of the order of dismissal is denied and the application for the writ of certiorari is denied, with costs.