text:
    JACOB GROPPER, PLAINTIFF-RESPONDENT, v. WILLIAM HOOVER, DEFENDANT-APPELLANT.
    Decided June 17, 1927.
    Replevin — Motor Vehicle — Plaintiff Had Purchased From Same Vendor From Whom Defendant Had Formerly Negotiated a Purchase, but Had Rescinded Contract and Demanded Return of Money Paid on Ground of Misrepresentation on Part of Vendor — Defendant Claimed to Hold Vehicle as Bailee, Subject to Return of Money Paid Thereon — No Error Found in Giving Judgment on Ground That Only a Judgment For Value and Damages Can be Entered Where Defendant Re-bonds Property Replevied — No Error in Execution of Bill of Sale to Plaintiff — Defendant’s Equitable Rights in Vehicle Cannot Maintain Against the Rights of a Purchaser in Good Faith For Value Without Notice.
    On appeal from the First District Court of the city of Newark.
    Before Justices Kaliscti, Katzeabach and Lloyd.
    For the appellant, Green £ Green (Harry Green, of counsel).
    For the respondent, Saul c(; Joseph E. Cohn (Michael Silver, of counsel).
   Per Curiam.

The following is an agreed state of the case brought before us for review on appeal from the First District Court of the city of Newark: “On June 4th, 1926, plaintiff commenced an action of replevin herein to recover possession of a Cleveland automobile from the defendant.”

On behalf of plaintiff, testimony was adduced that the plaintiff obtained title to the automobile by purchase for value from Bush-Goerke Motor Company, a corporation, on June 2d, 1926; that on the same date said plaintiff served a written demand upon the defendant for possession of said automobile, said defendant having possession of the antomot at the time of the sale to plaintiff and at the time whery demand was made, and that defendant refused to deliver . automobile to plaintiff.

Plaintiff offered in evidence a bill of sale for. said motor vehicle, said bill of sale bearing an assignment from said Bush-Goerke Motor Company to plaintiff, with two witnesses and an acknowledgment.

Defendant objected to the offer of the bill of sale in evidence, and also the assignments thereof, on the ground that said bill of sale was not in compliance with an act entitled “An act relating to and regulating the sale and purchase of motor vehicles, requiring presence of manufacturer’s number on same, requiring issuance of bill of sale and assignment ot same and providing penalties therefor,” chapter 168, laws of 1919, page 357, as amended, in that the bill of sale purported to have been acknowledged by the Bush-Goerke Motor Company, but the certificate of acknowledgment bore the personal acknowledgment of Walter Goerke, the president of said company; the first assignment to the bill of sale was dated and sworn' to on April 1st, 1925, but the certificate of acknowledgment bore date of June 2d, 1926.

The judge reserved his decision on receiving the bill of sale and assignments in evidence, and later received the same in evidence.

On behalf of defendant, testimony was adduced that the defendant purchased the automobile from Bush-Goerke Motor Company on or about April 15th, 1925, and paid $750 and gave a three months’ note for balance of $450; that on June 30th, 1925, defendant commenced suit against the said Bush-Goerke Motor Company, in the Essex- County Circuit Court, on two counts, namely-—

In the first count plaintiff alleged that automobile was represented as a 1924-year model, when it was a 1923 model, and that by reason of said misrepresentation the defendant herein rescinded the purchase and demanded the return of his $750, and surrender of the notes for $450; and in the second count the defendant herein alleged the purchase of the automobile as aforesaid; that said Bush-Goerke Motor Company agreed to deliver .to plaintiff documents of title to said motor vehicle in conformity with the laws of this state; that said Busli-Goerke Motor Company refused to deliver to plaintiff such title documents or any bill of sale for such motor vehicle; that as a result, the consideration for the purchase of said motor vehicle wholly failed and that this defendant therefore rescinded the purchase and offered to return the motor vehicle to the Bush-Goerke Motor Company upon repayment of the purchase price, but the Bush-Goerke Motor Company refused to repay the same and/or accept the return of said motor vehicle.

The defendant herein was nonsuited on the first count, but the court directed a verdict in bis favor on the second count, holding that title had not passed from Bush-Goerke Motor Company to defendant herein under said bill of sale and assignment.

Said Bush-Goerke Motor Company had also commenced an action to recover for the $450 note against the defendant herein which was tried with the above case, and the court also directed a verdict in favor of this defendant in said action.

On June 2d, 1925, this defendant issued an execution against the Bush-Goerke Motor Company, in the action in which recovered a judgment for $750 and costs, and on June 3d, 1925, the sheriff levied upon the automobile, which was still the possession of this defendant.

The judge reserved his decision, and on June 29th, 1926, entered a judgment in favor of the plaintiff for possession of the automobile.

The grounds of appeal relied on for a reversal are:

“1. The District Court erred in giving judgment for possession in favor of the plaintiff and against the defendant, defendant having retained possession of the goods and given bond to the constable.

“2. The District Court erred in receiving in evidence bill of sale and assignments for automobile in question.

“3. The District Court erred in giving judgment in favor of the plaintiff and against the defendant in that judgment should have been given in favor of the defendant and against the plaintiff.”

In support of the first ground, it is argued that judgment for possession of the automobile. replevied is-erroneous because only a judgment for value and damages can be entered where a defendant rebonds property replevied. This is clearly an erroneous conception of the law governing the subject in hand.

Section 138 of the District Court act (2 Comp. Stat., p. 1896) provides that “in all actions in replevin, except where the taking was as a distress for rent, if the property replevied shall have been delivered by the constable or sergeant-att-arms to the party against whom the issue of property shall be found, the party succeeding on such issue of property * * * may, instead of pursuing his remedy for the damages * * * apply to the court in which the action is- pending for an order that the said goods be restored to him; and thereupon it shall be lawful-for the court in its discretion to make an order that the said goods and chattels be delivered to the party in whom the property therein has been.found.”

This section is like in substance to section 26 of the Replevin act. 3 Comp. Stat., p. 4375. The legal effect of this section was settled in Johnson v. Mason, 64 N. J. L. 258, in which case Mr. Justice Van Syckel, speaking for the Court of Errors and Appeals (at p. 260), points .out that the only judgment that can be rendered under section 10 of the Replevin act is for the -value of the goods and damages as found by the jury, but that this remedy is cumulative, since it appears from section 26 of the Replevin act that the-plaintiff may apply to the trial court for an order upon the defendant to restore the goods to him.

In the instant case, it appears that the trial judge, by virtue of section 138 of the District Court act, supra, made an order for the delivery by defendant of the replevied goods and chattels to the plaintiff. This was proper judicial action.

Next, it is argued that the bill of sale and assignment received in evidence were not in conformity with an act entitled “An act relating to, and regulating, the sale and purchase of motor vehicles, requiring presence of manufacturer’s number on same, requiring issuance of bill of sale and assignment for same, and providing penalties therefor.” Pamph. L. 1919, p. 357.

The alleged defect in the bill of sale and assignment, as appears from the agreed state of the case, is that the bill of sale purported to have been acknowledged by the BushGoerke Company, whereas the certificate of acknowledgment bore the personal acknowledgment of Walter Goerke, president of said company.

The first assignment to the bill of sale was sworn to April 1st, 1925, but the certificate of acknowledgment bore the date of June 2d, 1926. It is conceded that the first assignment of the bill of sale to the motor company was defective in that it had not been acknowledged by Cohn. This omission, however, was supplied on June 2d, 1926, when the acknowledgment was taken and a certificate thereof attached.

We think there is no legal obstacle in the way of curing a defective acknowledgment, where it can bo done without prejudice to the rights of third parties, for such an act rather bespeaks good faith. It is further urged that the assignment from Bush-Goerke Motor Company to Hoover is defective and cannot pass title and that the striking out of the defective assignment, without anything on the same to indicate that the alteration was made with the assent of the then holder vitiates the entire instrument. Assuming this to be true dogma, under the circumstances present in this case, the statement of the proposition reveals its puerility. The Motor company assigned to Hoover, and by reason of defective assignment no title was passed to him. Furthermore, it appears that Hoover had rescinded the contract. As a consequence, the title still remained in the Motor company. Prgo, by consent of the holder of the title, the defective assignment was stricken out. It was the Motor company which assigned the bill of sale to the plaintiff Gropper.

Lastly, it is argued that the appellant was the bailee of said automobile subject to secure repayment of $750 paid by him.

The defendant had rescinded the contract through which the automobile came into his possession. Any equitable rights he may have to the automobile cannot be successfully maintained against the right of a purchaser, in good faith for value and without notice of any equity of the defendant in the property claimed.

The trial judge found as a fact that the plaintiff was a purchaser in good faith for value and without notice of any equitable right existing in the defendant to the property.

Judgment is affirmed, with, costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CASSIUS C. ARCHER AND MARTHA A. ARCHER, PLAINTIFFS, v. FRANCES E. MORRIS, DEFENDANT. WILLIAM A. McGINTY, PLAINTIFF, v. FRANCES E. MORRIS, DEFENDANT.
    Decided June 17, 1927.
    Ejectment — Plaintiffs, in Two Suits, Claim Defendant Encroached Upon Property Belonging to Each of Them, in the Erection of a Garage — Held, That Verdict For Plaintiffs was Not Against Weight of Evidence; That There was no Basis For Claiming a Way of Necessity; That a Proper Foundation Had Been Laid For Surveyors’ Testimony Establishing the Street Line in Front of Defendant’s Lot; That There was no Invasion of the Province of the Jury in Charging Upon the Accuracy of Maps, and That the Court Did Not Charge That it was Incumbent Upon the Defense to Show the Jury That the Plaintiffs’ Surveyors Were Mistaken — Rule Discharged.
    On defendants rule to show cause.
    Before Justices Kalisch, ELatzenbach and Lloyd.

      Eor the rules, Gercin <£• Mattack (Isaiah Mattack, ol counsel).

      Contra, Harry B. Cooper.

   Per Curiam.

These two cases being actions in ejectments were tried together at the Monmouth Circuit Court, and each resulted in a verdict for the plaintiffs. Both of these verdicts are now before us on rules to show cause allowed to the defendant. The subject-matter of the dispute was a tract of land which the plaintiffs claimed they owned and upon which the defendant, Morris, who owned an adjoining property in the rear, had erected a portion of a garage.

There was testimony to the effect that the garage erected by the defendant stands partly on the lands of each of the plaintiffs.

The five reasons presented in the brief of counsel of defendant for setting aside each of the verdicts and granting a new trial are these:

“1. The verdicts are against the weight of the evidence.

“2. The court excluded proof of a way of necessity.

“3. The trial court erred in permitting the surveyor, Emlen, to establish the westerly line of Railroad avenue in front of the defendant’s lot, without having laid a proper foundation to support the accuracy of his measurements at that point.

“4. In charging the jury upon the accuracy of the surveyor’s testimony and maps, the court invaded the province of the jury.

“5. The court erred in charging the jury that it was incumbent upon the defense to show the jury that the plaintiffs were mistaken.”

First, as to the contention that the verdicts are against the weight of the evidence. A careful reading of the testimony does not support this contention. The premises are located in Neptune city. On behalf of the plaintiff, one James II. Emlen testified that he had been a surveyor for twenty years and was acquainted with the property. He produced a map showing a survey made on December 24th, 1923, of the Archer and McOinty properties. A revision of this survey was made by him in July and August, 1924, with the result, showing that the defendant’s garage encroaches on the Archer property to a depth of ten feet, three and three-fourths inches from the real lien of the defendant’s property and for a width of six feet six inches. The encroachment, shown by the survey on the McGinty property, is to a depth of ten feet two inches from the rear line of the defendant’s property and of a width of six feet five inches. • Another surveyor, George E. Randolph, testified on behalf of the plaintiffs to the same effect.

The effect of the testimony adduced on behalf of the defendant was to raise a disputed question of fact, and we cannot say in view of the testimony of the two surveyors which testimony fully supports the claim of the plaintiffs that the jury reached a wrong result.

Next, as to defendant’s contention that the court improperly excluded proof of a way of necessity. The offer of proof was as follows: “I offer to prove * * * by witnesses that Railroad avenue has been.open and used for. the last fifty years; there is no other way out of these premises for the defendant than Railroad avenue, and that Railroad avenue, in 1923, was accepted by and graveled by the borough of Neptune city.”

The very statement of the proposition refutes the existence of a way by necessity. The defendant had an outlet to Railroad avenue. The defendant’s offer was properly ruled out.

The third reason relied on for a new trial is equally without merit. The surveyor, Emlen, had properly qualified as such, and the accuracy of his testimony, like any other question of fact, was a matter for the determination of the jury when it came to consider all the testimony in the cause.

The fourth reason for a new trial is rested upon the assertion that the trial judge invaded the province of the jury in charging upon the accuracy of the surveyor’s testimony and maps. What the trial judge said was by way of mere comrnent on the evidence. He was within his province so long as he left the facts commented upon to be decided by the jury. From a reading of the charge it does not appear that the trial judge overstepped the limit of fair comment upon the evidence.

The fifth and last reason, argued for a new trial, “that the court erred in charging the jury that it was incumbent upon the defense to show the jury that the plaintiff’s surveyors were mistaken,” is without support from a fair reading of the charge. The trial judge nowhere in the charge said that it was incumbent upon the defense to show the jury that the plaintiff’s surveyors were mistaken. No such sense can be gathered from the language used in his instruction to the jury-

The rule to show cause in each case is discharged, with costs.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. THEODORE AFFRONTI, PLAINTIFF IN ERROR.
    Decided June 17, 1927.
    Crimes — Selling Liquor For Beverage Purposes — Record in Case Fatally Defective — Printed Case Contains Neither Certificate of Trial Judge, Assignments of Error nor Specification of Causes For Reversal.
    On error to the Ocean County Court of Quarter Sessions.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the plaintiff in error, Ward Kremer.

    For the defendant in error, W. Durward McCloslcey, assistant prosecutor of the pleas.
   Per Curiam.

A writ of error was sued out of this court to the Ocean County Quarter Sessions Court to bring before us for review the record of conviction of the plaintiff in error in said court on an indictment charging him with having illegally sold liquor for beverage purposes, and of having possession of liquor for beverage purposes, contrary to law.

The plaintiff in error brings before us a record fatally defective. There are no assignments of errors nor specifications of causes for reversal. If it was intended to have the case reviewed on strict writ of error, on bills of exceptions, or simply on defects in the record, the printed cause should have disclosed assignments of errors specifying the particular errors relied on for a reversal of the judgment. If it was intended to have .the conviction reviewed under the one hundred and thirty-sixth section of the Criminal Procedure act, then it is essential that it should appear by a certificate of the trial judge that the proceedings transmitted by him comprise the entire record of the proceedings had upon the trial. Furthermore, there must also be a specification of cause for reversal, which should point out with particularity the error relied on for a reversal. The printed case before us contains neither a certificate of the trial judge as above stated, nor any assignment of errors, nor any specification of causes for reversal. '

The writ is dismissed and judgment is affirmed.


text:
    RICHARD G. EDWARDS, PLAINTIFF-RESPONDENT, v. JAMES H. PARSELLS, DEFENDANT-APPELLANT.
    Decided June 17, 1927.
    Appeals — Exceptions Taken to Charge of Court Only Grounds Alleged For Reversal — None of the Grounds Mentioned are Properly Reviewable — Judgment Affirmed.

      On appeal from the Atlantic County Circuit Court.
    Before Justices Kalisoh, Katzexbach and Lloyd.
    For the appellant, William Ghmilon.

    For the respondent, Lee V. Washington.

   Per Curiam.

The plaintiff below recovered a judgment against the defendant below in the Atlantic County Circuit Court for the sum of $1,084.56, together with costs, taxed at $66.85.

From this judgment the defendant has taken an appeal to this court.

Counsel of appellant in the brief says: “Defendant-appellant will confine his grounds of reversal to the exceptions taken to the charge of the court.” Turning to what are denominated exceptions taken to the charge of the court, as disclosed in the printed record, we find the following: “I ask an exception to the court’s charge on the ground that the court’s charge does not place the burden of proof upon the plaintiff to prove the agreement as testified to and according to the testimony.

“Second. The court has interpreted the facts according to his version and not according to the testimony itself.

“Third. Upon the ground that the court has taken from the jury the right to consider all the testimony and has limited it to an interpretation of the word fif,’ which term was invented by the court.”

It is apparent that these alleged exceptions do not point out with any greater degree of definiteness the alleged error or errors in the court’s charge than is pointed out by a general exception to the charge, and this latter course has been held to be improper. It is to be observed that these so-called exceptions are rather in the nature of general criticisms of the court's charge. They are in substance merely conclusions of counsel deduced from undisclosed facts. An exception, in order to be valid, must be specific enough to inform the trial judge what particular statement or statements made by him in the charge is or are erroneous in fact or in law.

The exceptions referred to are made the subject of the second ground of appeal which has four subdivisions, three of which repeat the exceptions taken as above set forth, and the fourth subdivision is not founded upon any alleged exception, and is as follows: “The court submitted the case to- the jury upon a single theory, taking away from the jury the right to consider all the testimony.”

None of .these grounds of appeal under the firmly settled law of this state .is properly reviewable. They do- not point out the portions of the charge to which objection was made. Kargman v. Carlo, 85 N. J. L. 632; Miller v. Delaware River Transportation Co., 85 Id. 700. Furthermore, we have examined the charge of the trial judge and find it to be free of criticism made upon it by counsel of appellant, Judgment is affirmed, with costs.


text:
    IN THE MATTER OF THOMAS E. HAMILTON TO HAVE THE ELECTION OF THE GERMANIA BUILDING AND LOAN ASSOCIATION INVESTIGATED.
    Decided June 22, 1927.
    Corporations — Election of Officers — By-laws Provided That at Elections of Secretary, Nominations Should be Made at a Previous Meeting — At Such a Meeting One Nomination was Made — At the Election, Petitioner Received More Votes Than the Regularly Nominated Person Who, Nevertheless, was Declared Duly Elected — Held, That This Action was Legal, That the By-law was a Proper One in-the Interest of the Members, .Who Became Tacitly Bound Thereby.
    On rule to .show cause.
    Before Justices Kalisch, Katzenbach and Lloyd.

      Eor the rule, William I. Garrison.

      Contra, Bolte, Sooy & Tripician.

   Per Curiam.

It appears that Thomas E. Hamilton, the petitioner was voted for by sticker ballot for secretary of the Germania Building and Loan Association, and practically received all the votes cast. His opponent, Carl Alber, was duly nominated for secretary in accordance with section 3 of article 1 of the laws of the association, which section reads : “Nominations for the various offices shall be made in the monthly meeting immediately preceding the annual meeting. The board of directors shall fill all vacancies which may occur until the next annual meeting.”

The association held its annual meeting in accordance with its constitution and by-laws on August 19th, 1926, for the purpose of electing directors, and officers.

Carl Alber, at a regular monthly meeting held in the immediately preceding month of July, received the regular nomination for secretary. At. the annual meeting, held in August, at which the election of officers took place, Hamilton, the petitioner, ran for secretary though he was not duly nominated for that or any other office in the immediately preceding month of July, as is required by section 3 of the by-laws. The result of the election was that the petitioner, Hamilton, received one hundred and thirteen votes for secretary and Carl Alber received thirty-three votes. Alber was declared elected, the votes for Hamilton, the petitioner, not being counted for him for the reason that he was not duly nominated for the office of secretary, as prescribed by section 3, supra, of the by-laws.

The argument advanced, on behalf of the petitioner, in support of the validity of his election is that “it is beyond the power of the corporation to fix any arbitrary rule which will deprive voters of casting a ballot for their choice. Furthermore, a rule of that kind would deprive the association from making any other nomination in the event it should be discovered at the last moment that the person or persons nominated were incompetent.”

We think the position taken on behalf of the petitioner is untenable. It seems to us that provision of. section 3 was clearly within the exercise of the corporate power of the association, namely, to regulate the time when its officers shall he nominated and the time when they are to be voted for. It is obvious that the requirement that nominations be made at a regular monthly meeting preceding the annual meeting is in the interest of the shareholders, so as to give them an opportunity to investigate the character and competency of the nominee and to bring about an orderly management of the business of the association. It does not deprive the share.holders of the right to vote for a candidate for office duly nominated according to the laws of the association. Each shareholder of the association tacitly consents to abide by its constitution and by-laws, and, hence, it cannot be said that he is shorn of his right to vote for whom he pleases without his consent, where it appears that the person voted for was not duly nominated according to the laws of the association.

The rule to show cause is discharged, with costs.


text:
    BERTHA KLEIN, PLAINTIFF-RESPONDENT, v. JOSEPH HANDLER, DEFENDANT-APPELLANT.
    Decided June 22, 1927.
    Landlord and Tenant — Suit For Rent Where it is Alleged Tenant Removed Without Giving the Necessary Three Months’ Notice — Defendant Offered Copy of Letter Giving Such Notice, but it was Not Admitted Because No Notice to Produce Original Had Been Given — Held, That Judgment For Plaintiff be Sustained.
    On appeal from the Eirst District Court of the city of Newark.

      Before Justices Kalisch, Katkexbach and Lloyd.
    Eor the appellant, Meislerman & Katchen (Samuel G. 21 eist email, of counsel).
    Eor the respondent, Sidney A. Bierman (Max II. llerbsiman, of counsel).
   Per Curiam.

This appeal is before us on a state of the case agreed upon between the attorneys of the respective parties, which state of the case is as follows: “The action was to recover the sum of $180, being three months’ rent of certain premises vacated by the defendant without three months’ notice in writing to the plaintiff, who was alleged to be the landlord of the defendant of the aforementioned premises.”

The plaintiff was sworn and testified that she was the owner of the premises and that her husband, Joseph Klein, was her general agent in charge of the same. The defendant, Joseph Handler, ivas then called by the court and the defendant testified that on June 27th, 1925, he personally mailed to Joseph Klein a notice that he would vacate the premises on October 1st, 1925. Counsel for defendant produced a copy of the aforementioned notice, which the defendant identified. Counsel for defendant then offered this in evidence, but this was objected to by counsel for plaintiff, because he had not been served with notice to produce the original. The objection was sustained. The defendant further testified that he had had several talks with Mr. Joseph Klein, thereafter, concerning the notice; that Mr. Klein asked the defendant to stay over another month, that is, until November 1st, 19.25. Defendant testified that he did this and that he stayed over until November 1st, 1925, at which time he moved. Mr. Joseph Klein was then called and he testified that he did not receive any notice and he testified further that the premises remained vacant for three months, though he used diligence in attempting to rent the same. Upon this testimony the court gave judgment for the" plaintiff for the sum of $180 and costs.

Exception to the court’s ruling was prayed and granted.

The first point made in appellant’s brief is, that the plaintiff failed to establish an obligation on part of the defendant to have given a three months’ notice.

This appears to us to be frivolous. We must be guided in the determination of this appeal by the state of the case agreed upon between counsel. The state of the case assumes that there was such an obligation resting upon the defendant to give a three months’ notice to the plaintiff of his intention to vacate the premises occupied by him.

Next, it is argued that the evidence produced at the trial clearly • established a surrender by operation of law, and the finding of the court in favor of the plaintiff was contrary to t'he law and facts of the ease.

We are unable to discern anything, in the facts set out in the’ state of the case, which tends to establish that there was a surrender in law- or in fact- of the premises by the defendant to -the 'plaintiff. - - • .

Next,- it is argued that the copy of a notice of surrender mentioned in the state of the case should have been admitted in-evidence, because the plaintiff denied receipt of the notice of surrender and because a duplicate of the original 'notice is the best evidence of the nature and contents of the original- notice. This contention is without substance.' No notice was given to plaintiff to produce'the alleged original' notice which was necessary in order to entitle the defendant to introduce the alleged -copy, -and’the mere fact that the defendant produced a copy of a notice which he said he had served on the plaintiff did not thereby make such copy evidential of the'fact of the service of such notice on the plaintiff. Moreover, the service of a notice was denied and raised a factual question for the trial-judge to decide.

For these reasons the judgment below must be affirmed.

Judgment is affirmed, with costs.


text:
    ANDREW KELLY, PLAINTIFF, v. HANS JOHNSON, DEFENDANT.
    Decided June 17, 1927.
    Negligence — Motor Vehicle Accident — No Error in Refusing Nonsuit, There Being Evidence to Justify a Jury in Finding For Plaintiff — Question of Contributory Negligence One of Dispute, For Jury — Verdict Not Unduly Excessive.
    On defendant’s rule to show cause.
    Before Justices Kalisch, Katzenbacii and Lloyd.
    For the rale, Freeman Woodbridge.

      Contra. Thomas Brown.

   Per Curiam.

This case was tried at the Middlesex Circuit Court and resulted in a verdict of $3,000 in favor of the plaintiff and against the defendant.

The defendant obtained a rule to show cause why a new trial should not be granted.

Under this rule, in his behalf, it is argued — first, that the trial judge erred in refusing to grant a nonsuit, because there was no proof of any negligence on part of the defendant in the operation of his automobile which ran into the plaintiff, and that any injuries which the plaintiff sustained were the result of his sole negligence. Secondly, that the verdict was contrary to law and the weight of the evidence. Thirdly, that the verdict was excessive.

After a careful reading of the testimony, we are satisfied that there was testimony which would have warranted a jury in finding that the injuries to the plaintiff were the proximate result of the defendant’s negligent operation of his automobile, and this being so, the trial judge could not properly take the case from consideration of the jury, and therefore the nonsuit was properly refused. Nor would the trial judge have been warranted to nonsuit the plaintiff on the ground of contributory negligence. The burden of establishing that the plaintiff’s negligence proximately contributing to his injury was upon the defendant. Under the testimony in the present case it was a disputed question of fact, pre-eminently, for a jury to decide. Nor can we say that the verdict is so contrary to the weight of the evidence as to shock the sense of justice.

The point that the verdict is excessive is abandoned in defendant’s brief.

The rule to show cause is discharged, with costs.


text:
    MORRIS REALTY COMPANY, INCORPORATED, PLAINTIFF-APPELLEE, v. DEMYTRO POPIEL AND ROSEK POPIEL, DEFENDANTS-APPELLANTS.
    Decided June 22, 1927.
    Sale of Real Estate — Agent's Commissions — Agent Produced Customer but Vendor Refused to Convey — Held, That Agreement Provided For Compensation Upon Procurement of Purchaser, Not Upon Consummation of Sale, the Time of Payment Being Provided For In the Agreement.
    On appeal from the Second District Court of the'city of Newark.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellants, John V. Laddey.

    For the appellee, David Silver (J. Glenn Anderson, of counsel).
   Per Curiam.

This appeal comes before us on a state of the case settled by the court below, as follows: “The action was to recover commission claimed to be due plaintiff, as real estate brokers, from defendants, owners of premises, for services as such brokers under an agreement marked in evidence as ‘P-I.’ After the execution of ‘P-I.' Edward Jayson, a ready, able and willing purchaser, was produced by the plaintiff corporation, but defendants refused to convey. No written agreement other than ‘P-F was ever entered into by parties hereto. At completion of case, defendants’ counsel moved, first, for a nonsuit, and then for a direction of a verdict, on the contention that plaintiff’s right to recovery was contingent upon the passing of title, and that the instrument ‘P-F contemplated the execution of a further contract before it became binding. I found that plaintiff’s right to recover was complete, upon the production of Jayson as a purchaser, and that the term ‘due on date set for passing of title’ was an expression, not of contingency, but of time payment was due, the instrument setting a day thirty days from January 14th, 1926, as date of passing of title. Defendants admitted that prospective purchaser produced by plaintiff was one ready, able and willing to purchase under the terms expressed in ‘P-I.'

“1 denied defendants’ motion for a nonsuit and for a direction of a verdict, and rendered judgment for plaintiff in the sum of $327.50.

“Exception to the court’s ruling was prayed and granted.”

Prom a reading of the state of the case the appeal seems to us to be without merit.

Judgment is affirmed, with costs.


text:
    JOHN R. MARVIN AND GRACE FIELD MARVIN, PROSECUTORS, v. BOARD OF ADJUSTMENT OF THE TOWN OF WESTFIELD, NEW JERSEY, RESPONDENTS.
    Decided June 18, 1927.
    Zonings — Two-family House — Case Within Hendy v. Ackerman, 5 N. J. Adv. R. 600.
    On .certiorari.

    Before Justice Kalisch (by consent).
    Eor the prosecutors, Earl A. Merrill..

    Eor the respondents, Paul Q. Oliver.

   Memorandum.

The proceedings of the board of adjustment of the town of Westfield, denying the petition of appeal uf the prosecutors from the refusal of the building inspector of the town of Westfield to grant a permit for the erection of a two-family residence by the prosecutors are hereby set aside, with costs. The facts of this case fall within the ruling of the Supreme Court in Hendy v. Ackerman, 5 N. J. Adv. R. 600, where, under a like state of facts, the action of the board was set aside. The cited case is controlling.


text:
    RICHARD H. FITZHUGH, PLAINTIFF-APPELLEE, v. JOSEPH PETRUZZO, DEFENDANT-APPELLANT.
    Decided June 22, 1927.
    Negligence — Motor Vehicle Collision — The Question of Contributory Negligence a Factual One — Testimony Sufficient' Upon Which Trial Judge Could Hold Expert Witness Duly Qualified to Testify — Other Contentions of Defendant Considered and Judgment For Plaintiff Affirmed.
    On appeal from the District Court of the city of Bayonne.
    Before Justices Katasch, TCatzenbach and Lloyd.
    For the appellant, William B. Stiies.

    For the, appellee, 'Feinberg & Feinberg.

   Per Curiam.

There was a judgment in the Bayonne District Court in favor of the plaintiff below against the defendant below for the sum of $244.90, with costs. Plaintiffs action against the defendant was to recover for the damage done to the former’s automobile, as the result of a collision with the defendant’s automobile, alleged to have been carelessly operated on the public highway. The defendant by way of recoupment claimed damages of the plaintiff, for the damage done to the former’s automobile, as a result of that collision, claiming that the collision was brought about through the sole negligence of the plaintiff. The case was tried before the court without a jury. At the close of the plaintiff’s ease defendant moved for a nonsuit on the sole ground that the plaintiff was guilty of contributory negligence. The motion was denied and an exception was taken.

From the testimony adduced bn behalf of the plaintiff, relating to the circumstances in which the collision occurred, it appears that a factual question was presented for the jury to determine, whether or not the plaintiff’s conduct in the operation of his automobile at the time of the collision proximately contributed to the defendant’s negligent conduct. The motion for a nonsuit was therefore properly denied.

Next, it is argued that the - testimony of the mechanic, Andrew Squire, was uncertain and inconsistent, and that he was not qualified to give expert testimony as to the market value of the automobile.

There is no merit in this contention. Since there was testimony from which the trial judge could properly find that the witness was qualified to testify as an expert as to the market value of the damaged automobile, the determination of the trial judge in that respect is not open to be questioned here.

Next, it is argued that the trial judge erred in not permitting defendant’s counsel to cross-examine Rose Conti, who had been called by the plaintiff’s counsel to rebut the defendant’s testimony, which was to the effect that he was not talking prior to and at the time of the accident with his head turned toward some girls sitting in the back of his automobile.

The witness, Rose Conti, was called by plaintiff’s counsel in rebuttal, and it appears from the printed record that the trial judge permitted the defendant’s counsel to cross-examine the witness as to those matters which were elicited from her on the direct examination. The trial judge expressly stated to defendant’s counsel that if he wanted to make the witness his own he could proceed with the examination. We perceive no error in this judicial action.

The last and only other ground relied on by counsel of appellant for a reversal of the judgment seems to be an attack upon the credibility of the witnesses who testified on behalf of the plaintiff. Of course, the credibility of the witnesses was a subject-matter wholly within the province of the trial judge to pass upon and is not reviewable. So long as it appears that there was testimony in support of the finding of the trial judge, and we think there was, this court cannot properly disturb such finding.

Judgment is affirmed, with costs.


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    WILLIAM H. STALLINGS, APPELLANT, v. EYPPER AND BECKMANN, INCORPORATED, APPELLEE.
    Decided June 7, 1927.
    Sale of Real Estate — Recovery of .Deposit — Receipt Given For Amount of Deposit — Held, Error to Assume That Receipt in Question Constituted a Contract, the Language Being to the Contrary — Judgment For Defendant Reversed.
    On appeal from the District Court.
    Before Justices Parker and Campbell.
    For the appellant, Hudspeth & Demurest.

    For the appellee, Clarence Mabie.

   Per Curiam.

This is an appeal from a judgment entered upon a verdict directed in favor of the defendant in the District Court of the Second Judicial District of Bergen county.

The action was brought to recover $300 paid under a receipt for the purchase of real estate. Such receipt acknowledged the payment by appellant of “the sum of $300 to apply on the purchase price of thirty-nine acres on the CresskillAlpine road, Alpine, New Jersey.

“This deposit is accepted subject to the signing of a satisfactory contract by the parties on the basis of a price or consideration of $58,500.”

A contract was submitted by the seller but was not satisfactory to the purchaser.

The deposit acknowledged by the before referred to receipt was made October 15th, 1926, and no contract satisfactory to appellant having been presented and executed he brought his action to recover the deposit on December 15th, 1926.

The trial court directed the verdict in favor of the defendant upon the ground that the receipt in question constituted and was a contract for the sale and purchase of the lands therein referred-to. ■ ■

The language of the receipt, however, is to the contrary, and the situation is like unto- that in Tansey v. Suckoneck, 3 N. J. Adv. R. 1520, and cases therein, cited.

. .Where the.'undertaking .is., as here, to be tq the satisfaetiqn of the parties or “a satisfactory contract” such-determination, in the absence of fraud, is exclusively in the party having such right of determination. Gwynne v. Hitchner and Yerkes, 66 N. J. L. 97; Love v. Fetters, 98 Id. 784.

Tihe trial court was in error and the judgment appealed from is set aside and reversed.


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    LILLIAN HORN, PLAINTIFF, v. ALEXANDER SZUMSKI AND EAGLE PROVISION COMPANY, DEFENDANTS.
    Decided June 10, 1927.
    Negligence — Motor Vehicle Injury to Pedestrian — Defense Put in No Testimony — Testimony For Plaintiff Made Case Clearly One For Jury in Which Plaintiff was Not Per Se Negligent— Held, Verdict Not Unwarranted by Evidence, and That Award was Not Excessive.
    On defendants' rule to show cause.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor the rule, Wayne Dicmont (William V. Rosenlcrans, of counsel).

      Contra, Edward A. MarMey.

   Per Curiam.

There was a verdict for the plaintiff against the defendants for the sum of $4,000, at the Passaic Circuit.

Two reasons are assigned for setting aside the verdict— (1) that the verdict was unwarranted by the evidence; (2) that the verdict was excessive.

There was no testimony adduced on behalf of the defendants.

An examination of the testimony adduced on behalf of the plaintiff leads us to the conclusion that there was ample proof: that as she stepped from the sidewalk into the gutter she was struck by the defendants company’s automobile, which was being, driven along the wrong side of the street, and as a result she was knocked down and seriously injured.

She was not bound to anticipate that a vehicle would come from the direction in which the defendants’ automobile approached. The failure on her part to observe the automobile which was being propelled on the wrong side of the street was not per se negligent conduct contributing to her injury. It was clearly a jury question whether she exercised, under all the circumstances, reasonable care for her own safety when she stepped from the sidewalk to the gutter.

Nor do we think the verdict is excessive. She was sixty-eight years of age at the time of her injury and was in good health and active. She was in the business of selling coal on a commission basis. It is uncontroverted that she earned from $10 bo $15 a week. She was injured on the 27th of June, 1924, and the trial of the cause took place on May 7th, 1920, nearly two years after the accident. Her injuries incapacitated her from getting about and following her trade. She was still unable, as a result of her injuries, at the time of the trial, to follow her avocation. There was proof that she still suffered from headaches, fainting and dizzy spells attributable to the injuries which she sustained.

Taking into consideration her loss of earning capacity from the time of her injury to the date of the trial, her doctor bills, medicines, her pain and suffering, and that she had not in the space of two years recovered her health and strength, and that -there was a prospective loss of earnings and of bodily suffering, we cannot say that the verdict of the jury was the result of partiality, mistake, passion or prejudice so as to warrant us to set the verdict aside.

Rule is discharged, with costs.


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    PETER HIJEK v. PETER FALEZENE.
    Decided June 7, 1927.
    Alienation of Wife’s Affections — Case Tried in Absence of Defendant Under Circumstances to Justify Venire de Novo.
    On defendant’s rule to show cause.
    Before Justices Parker and Campbell.
    Eor the rule, Kinlceqd & Klausner.

      Contra, Anthony B. Finelli.

   Memorandum.

The action was for damages for alienation of the affections and criminal conversation with plaintiff’s wife by the defendant. The cause was tried at the Essex Circuit Court in the absence of counsel for the defendant, under circumstances which we deem sufficient to warrant a setting aside of the judgment. That this should be the disposition of the matter is made more conclusive by an examination of the evidence upon which the verdict was founded.

The judgment and verdict are therefore set aside and a venire de novo awarded; costs to await the result of a retrial of the issue.


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    LIMPERT BROTHERS, INCORPORATED, v. MANUFACTURERS’ LIABILITY INSURANCE COMPANY.
    Decided June 7, 1927.
    Judgments — Opening of Judgments Taken by Default is Discretionary — Motion Denied.
    On application to open judgment.
    Before Justices Parker and Campbell.
    For the plaintiff, Thomas G. Tuso.

    For the defendant, Paul Koch.

   Memorandum.

This is an application to open a judgment by default, and permit the filing of an answer and a trial of the issues raised.

The granting of such an application is discretionary and as neither the reasons assigned for such default nor the issues raised by the proposed answer are such as to move us to exercise such discretion the motion is denied.


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    SCOTT v. DENZIGER.
    Decided June 7, 1927.
    Rules to Show Cause — Dismissal for Lack of Diligence.
    On motion to dismiss defendant’s rule to show cause.
    Before Justices Parker and Campbell.

      Eor the motion, Feder & Binder.

      Contra, Minnie Simon.

   Memorandum.

The motion is to dismiss a rule to show cause held by defendant why a verdict against him should not he set aside. Such dismissal is asked upon the ground of lack of prosecution. There is an absolute lack of diligence. Nothing has been done under the rule since its allowance.

The motion is therefore granted and the rule dismissed, with costs.


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    MANUFACTURERS’ FINANCE COMPANY v. G. J. MILLER ET AL.
    Decided June 7, 1927.
    Negotiable Instruments — Accommodation Note Made by Defendant, Which Defendant Knew Would be Eodorsed Over to Plaintiff — Held, an Equitable Defense Cannot Exist For Defendant Against an Endorsee Holding in Due Course.
    On rule to show cause why judgment by default should not be opened.
    Before Justices Parker and Campbell.
    Eor the rule, Robert Queen.

      Contra, Minton <& Rogers.

   Memorandum.

Defendant Miller has a rule to show cause why a judgment, by default, against him should not be opened. The other defendants, joint makers of a promissory note, do not contest the judgment. The default charged is lack of attention of an attorney retained by defendant Miller. We need not consider this point because an examination of the depositions taken under the rule satisfies us that the proposed defenses are not legal or meritorious.

Miller signed, for the accommodation of the other defendants, a note for the purchase price of an automobile, which note he knew was to be endorsed over to the plaintiff. His claim of an equitable defense might possibly have some value if the payee were the plaintiff, but has none at all in a suit by an endorsee holding in due course.

The rule is discharged, with costs.


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    EMMA GROTHENHEN v. FRANCIS D. DUFFIELD.
    Decided June 7, 1927.
    Bond and Warrant — Recovery on Bond Secured by Mortgage Which Had Been Foreclosed — Such Proceedings Under Statute Which Has Not Been Complied With Here.
    On rule, &c.
    Before Justices Pabkek and Campbell.
    Eor the rule, Avis & Avis.

    Contra, John C. Edmunds.

   Memokandum.

The judgment in this case was entered upon a bond and warrant of attorney. The bond was secured by a mortgage which had been foreclosed and the mortgaged lands sold under such proceedings before the action was taken leading up to the judgment now under attack.

Under such circumstances the proceedings are controlled by, 3 Comp. Stat., p. 3423, § 51, and it is apparent that such statute was not followed or complied with.

The rule to show cause must therefore be made absolute and the judgment set aside, with costs.


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    (1) THE CITY OF MILLVILLE ET AL., PROSECUTORS, v. THE BOARD OF EDUCATION OF MILLVILLE AND GEORGE W. SHANER ET AL., DEFENDANTS. (2) THE CITY OF MILLVILLE ET AL., PROSECUTORS, v. THE BOARD OF EDUCATION, ETC., AND J. HOWARD HUTCHINSON, ET AL., DEFENDANTS. (3) THE CITY OF MILLVILLE ET AL., PROSECUTORS, v. THE BOARD OF EDUCATION AND JOHN SHEARMAN AND JACKSON ELECTRIC COMPANY, DEFENDANTS. (4) THE CITY OF MILLVILLE ET AL., PROSECUTORS, v. THE BOARD OF EDUCATION AND JACKSON ELECTRIC COMPANY, DEFENDANTS.
    Argued June 23. 1927
    Decided June 24, 1927.
    Municipalities — Certiorari—Writ Asked For One Year and Five Months After Resolutions Sought to be Brought up Were Passed — In the Intervening Time Prosecutors Had Pursued, Unsuccessfully, Other Remedies and Defendants Had Brought Suits, Obtained Judgments and in One Instance an Execution — Writs Denied.
    On applications for writs of certiorari.

    Before Justices Tkenohakd, Black and Lloyd.

      Por the prosecutors, Louis II. Miller.

    For the board of education, Walter II. Bacon.

    Eor the defendant Shaner, Bleakley, Stockwell & Burling.

    For the defendant Hutchinson, Bleakley, Slockwell & Bur-ling.

    For the defendant Shearman, James J. McGoogan.

    Eor the defendant Jackson Electric Company, James J. McGoogan.

   Per Curiam.

The resolutions of the hoard which the prosecutors seek to bring up were passed one year and five mouths ago. It was not until about one mouth ago that applications for writs of certiorari was made to a justice of this court and denied. The applications are now made to the court. We feel constrained to think that the applications cannot now he granted without the likelihood of doing a grave injustice to the defendants as well as to public interests. Eor during this long delay in applying for the writs, the prosecutors have sought and pursued another remedy unsuccessfully, and meanwhile the defendants have brought suits in various jurisdictions and in some cases have judgments, and in one case execution. These intervening circumstances and constant resulting changes in the situation of the parties during this long delay, constitute, in our judgment persuasive reasons of the most substantial character, why we should deny the applications for these writs which rest in the discretion of the court. The writs are denied, but without costs.


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    ERNESTINE RUH, PLAINTIFF, v. GEORGE HYLE AMD PERCY JOHNSON, DEFENDANTS.
    Decided June 27, 1927.
    Negligence — Motor Vehicle Ran Down a Pedestrian — Owner of Car Denied Employment of Driver — Evidence Sufficient to Justify Employment — No Evidence of Contributory Negligence — Defendant, Driver, Clearly Operating Car in an Unlawful Manner — Verdict For Defendant Set Aside.
    On plaintiff’s rule to show cause.
    Before Justices Kalis ch, Katzenbach and Lloyd.
    Por the rule, McCloshey & Ewing (Paul W. Ewing, of counsel).

      Contra, Ryman Herr.

   Per Curiam.

The plaintiff brought her action against the defendant to recover compensation for injuries sustained by her as the result of being run into and knocked down while walking along the public highway by an automobile owned by the defendant, George Hyle, which automobile was being operated at the time by Percy Johnson, who was then in the employ of the defendant Hyle.

The cause was tried at the Somerset Circuit and resulted in a verdict for the defendants. The plaintiff was allowed a rule to show cause why the verdict rendered should not be set aside.

The principal reason relied on by plaintiff for a new trial is that the verdict is against the weight of the evidence. A careful examination and consideration of the testimony in the causes leads us to the conclusion that the verdict is clearly against the weight of the evidence.

The defense was based upon two grounds — First, that Johnson at the time he was driving the automobile and the plaintiff was run into and knocked down was not in the defendant’s employ. Second, that the plaintiff was guilty of contributory negligence.

We think there was plenary proof that Johnson had a general authority from the defendant Hyle to use the automobile, at will. He lived in the defendant Hyle’s household for sixteen years. He used the automobile by the authority of Hyle on errands for himself and the family, and on the evening in question was using the automobile to take him to Millstone to obtain a pair of overalls needed by him, for the work for which he was employed to do by the defendant Hyle and to obtain a porous plaster for Hyle’s wife; that he had a license to drive the car and that he got the money from the defendant Hyle to pay for such license.

Now, as to the defense that the plaintiff was guilty of contributory negligence, we are unable to find anything in the evidence from which a permissible inference can be drawn that the plaintiff had, in the slightest, contributed to her injury by the failure to exercise reasonable care for her own safety while walking along upon the public highway.

Moreover, it appears from Johnson’s testimony that he was indicted by the grand jury of Somerset county for atrocious assault and battery upon the plaintiff, in that he inflicted injuries upon her by running into and wounding her with the automobile he was operating on a public highway. To this indictment Johnson pleaded guilty. That Johnson was guilty of gross negligence was established by his plea of guilty to the indictment for atrocious assault and battery upon the plaintiff. Besides there was uncontroverted testimony of witnesses, who having observed the manner in which Johnson was operating the automobile immediately before he reached the place where the plaintiff was overtaken and hit, say, that he was driving the automobile in zigzag fashion along the road and at a high rate of speed. It is manifest from the reading of the testimony adduced in the cause that the verdict rendered was against the clear weight of the evidence and therefore the rule to show cause is made absolute.


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    APPLETON & ELDREDGE, INCORPORATED, A NEW YORK CORPORATION, PLAINTIFF-RESPONDENT, v. CHARLES McCARTHY AND GASSNER & ACKERLY MOTORS, INCORPORATED, DEFENDANTS-APPELLANTS.
    Submitted January 26, 1927
    Decided June 27, 1927.
    Negotiable Instruments — Endorsements—Waivers of Notices, &c. — Note Contained Waiver of Notice of Protest — Held, That Under Negotiable Instruments Act, Where Waiver is Embodied in Note Itself, it Binds All Parties Including Endorsers.
    On appeal from a judgment of the District Court of the First Judicial District of the county of Essex.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Philip Goodell.

    For the respondent, Samuel Heller and Jade H. Rinzler.

   Per Curiam.

This is an appeal from a judgment rendered by the District Court for the First Judicial District of the county of Essex in favor of the plaintiff. The appeal is taken by one of the two defendants below, Gassner & Ackerly Motors, Incorporated (hereinafter called the appellant). The action was upon a promissory note given in the purchase of an automobile. The appellant was the vendor. Charles McCarthy, the other defendant, was the purchaser. The note read as follows :

“August 10, 1935.

“For value received and without defalcation, the undersigned promises to pay to- the order of the undersigned, at Appleton & Eldredge, Inc., Agent, 67 Wall St., New York ' [location], the sum of $335 Two Hundred and Twenty-five 00/100 Dollars in installments as set forth in the schedule below, with interest at 6 °/o per annum from dates of maturity only. In event of default in the payment of any of said installments the full amount then remaining unpaid, with interest thereon at the above rate from date of such default, shall be at the election of the holder and without notice or demand immediately become due and payable. The undersigned hereby waives presentment, protest, notice of protest and all benefits of valuation and exemption laws of any state. This note is negotiable and is evidence of the obligation of the undersigned under a contract of conditional sale bearing even date herewith between the undersigned as buyer and Gassner and Aokerly Motors, Inc.

Dealer's name

“Buyer CiíArams McCarthy, l. s.

“By

“Owner, officer or firm member.

“It was endorsed as follows:

“Charles McCarthy,

“Gassner & Ackerly Motors, Inc.

“By W. T. Ackerly, Pres

The agreement of conditional sale was assigned to the appellant. The note was delivered to the appellant who transferred it to the Economy Finance Company. It afterwards came into the hands of the plaintiff.

The first payment was due on September 10th, 1925. It was not paid. McCarthy subsequently left the automobile on the premises of the appellant, stating that he could not pay the installments. In January, 1926, payment of the entire note was demanded of the appellant by the plaintiff. The appellant stated that it would not pay the note becanse A. had not been protested, and no formal presentment, protest or notice of protest was made until February 10th, 1926. There was then mailed and received on February 12th, 1926, by the appellant a notice of protest which does not appear to have been made a part of the record.

The position taken by the court below, although no written opinion was filed, was that the provision in the note reading: “The undersigned hereby waives presentment, protest, notice of protest and all benefits of valuation and exemption laws of any state,” applied to the appellant as well as to McCarthy. It was further contended that the appellant signed the note as maker, while the appellant appears to have signed the note, yet, the space which was filled in by the appellant’s signature merely finishes the sentence reading: “This note is negotiable and is evidence of the obligation of the undersigned under a contract of conditional sale bearing even date herewith between the undersigned as buyer and Gassner & Ackerly Motors, Inc.” We are not, therefore, inclined to hold that the appellant is a co-maker with McCarthy of the note.

We are, however, of the opinion that the case was properly decided in the District Court. Section 110 of the Negotiable Instruments act (3 Comp. Stat., p. 3747) provides that: “Where the waiver is embodied in the instrument itself, it is binding upon all parties; but where it is written above the signature of an endorser it binds him only.” The waiver in the note sued on was embodied in the instrument itself. It therefore follows that the appellant was liable as an endorser on the note. Craw. Neg. Ins. L. 100; Owensboro Savings Bank v. Haynes, 143 Ky. 534.

This view makes it unnecessary to consider the other points argued by the appellant. The judgment below is affirmed, with costs.


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    THOMAS HAMMILL, PLAINTIFF-RESPONDENT, v. COMMERCIAL CASUALTY INSURANCE COMPANY, DEFENDANT-APPELLANT. ARCHIE HAMMILL, PLAINTIFF-RESPONDENT, v. COMMERCIAL CASUALTY INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Submitted January 28, 1927
    Decided June 27, 1927.
    Insurance — Surety Bonds — Bond was Issued to Secure Payment For Labor and Material Furnished on Public Work by Contractors — Plaintiffs Were Engaged in Furnishing Trucks and Delivering Materials — Held, That Such Service Constitutes a Lienable Claim — Held, Further Payment Under Terms of the Bonding Policy Does Not Constitute a Preference to Which the Bonding Company May Object.
    On appeals from judgments of the East Orange District Court.
    Before Justices Kalisch, Katzenbaoh and Lloyd.
    For the appellant, Samuel D. Williams.

    For the respondents, Green & Green.

   Per Curiam.

The above cases are two appeals from judgments rendered by the East Orange District Court in favor of the plaintiffs. The two cases are presented in one record. The defendant below, Commercial Casualty Insurance Company, is in each case .the appellant. The suits were instituted against the appellant to recover upon a bond upon which the appellant was a surety. On October 27th, 1925, the county of Essex entered into an agreement with a corporation, known as the National Company, by which the said company agreed to prov'ide and supply the materials, labor, tools and appliances for the construction of roads, parking space, and entrances to the Essex County Hospital, located at Belleville, in the county of Essex. The amount of the contract, as estimated for surety purposes only, was $11,098. In accordance with chapter 75 of the laws of 1918, the National Company gave a bond in the sum of $11,098, conditioned to 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. The work was accepted by the board of freeholders of the count}' of Essex on December 10th, 1925. On February 18th, 1926, and within eighty days after the acceptance of the work, the plaintiffs, Thomas Hammill and Archie Hammill, served the appellant with proofs of claims and statements of indebtedness of the National Company to them. The claims-were for the furnishing of trucks and driving the same for the National Company in the carting of cracked stone and sand from a quarry to the site of the improvement. The rate of pay of the plaintiffs was by the day. The National Company owed to one plaintiff, Thomas Hammill, for this service, $412, as he claimed. Archie Hammill, the other plaintiff, claimed that the National Company owed him the sum of $91.

On April 5th, 1926, the insurance company denied its liability and refused to pay the plaintiffs the sums they claimed.- Thereupon they instituted the present suits. The East Orange District Court gave judgment to Thomas Ham-mill for $464.06 and to Archie Hammill for $106.90. These judgments included interest upon the accounts.

The first contention of the appellants is that the furnishing of trucks and the driving of trucks was not labor performed within the meaning of chapter 75 of the laws of 1918. Pamph. L. 1918, p. 203. The purpose of chapter 75 of the laws of 1918, as evidenced by the act, was to secure the payment by the contractor and by all subcontractors “for all labor performed or materials furnished in the construction, erection, alteration or repair of such building, works or improvements.” The act was intended to protect those having lienable claims. In the case of Davis v. Mial, 85 N. J. L. 167, the Court of Errors and Appeals held that a mechanics’ lien claim suit might be maintained for the transportation and deliver}' of materials as for labor performed for the erection and construction of a building. One who carts stone and sand for use in improving a road is as much entitled to a lien as would be a hodcarrier who carries bricks to the top floor of a building for the purpose of being laid by another. We see no merit in this contention of the appellant.

The second ground of appeal advanced by the appellant is that to allow the plaintiffs to have judgments under the bond would be to allow them a preference; that the bond should be strictly construed, and the preference refused. This point also seems to us to be without merit in view of the clearly expressed purpose of the act which was passed for the protection of persons who labored or furnished material for the construction of public works. All that the judgment creditors are getting in this case is the benefit of the protection which the enactment of the statute gave them. The labor was actually necessary in the prosecution of the work and went into the work to be performed under the contract referred to. The appellant received the premium for the execution of the bond. It should bear the burdens of the contract it entered into.

The judgments of the District Court are affirmed, with costs.


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    JOSEPHINE DePEOLE, BY HER NEXT FRIEND, ALBERT DePEOPLE, AND ALBERT DePEOLE, INDIVIDUALLY, PLAINTIFFS, v. PASSAIC CITY STEAM LAUNDRY, A CORPORATION, AND SOL GOLDBERG, DEFENDANTS.
    Argued October 6, 1926
    Decided June 27, 1927.
    Negligence — Injury to Pedestrian by Motor Vehicle — Trial Judge Charged That There was No Evidence Which Would Justify an Award For Any Results the Plaintiff Might Suffer in the Future — Held, That the Trial Judge Erred in Limiting the Damages as he Did — Held, Further, That the Award was Inadequate Without Any Regard to Future Conditions — Verdicts Look Like Compromise Verdicts — New Trial Awarded.
    On plaintiffs’ rule to show cause.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the rule, Weinberger & 'Weinberger.

      Contra,, Wayne Dumont and William V. Rosenlcrans.

   Per Curiam.

This case is before this court on a rule to show cause allowed on application of the plaintiffs. The plaintiffs were Josephine DePeole, an infant of eleven years of age, and Albert DePeole, her father. The defendants were the Passaic City Steam Laundry, a corporation, and Sol Goldberg. The action arose out of an automobile accident. The infant plaintiff on April 13th, 1925, took a bus to go to the borough of Lodi. She alighted from the bus in Lodi when it stopped on Main street facing in the direction of West Passaic. She then walked in front of the bus which had stopped behind another bus. She began to cross the street. She maintained that she looked to the right and left and the road was clear. When she reached the first street railway track she was struck by an automobile of the Passaic City Steam Laundry driven by Goldberg. The contention was that the automobile was being driven rapidly and that no signal of its approach was given. The infant plaintiff was taken to a hospital. She remained there from April 13th to May 3d, 1925. She continued under the care of a physician until December 4th, 1925. She suffered a fractured skull, a fracture of the twelfth rib on the right side, a cut above the left eye which caused a protrusion of the eye, a cut upon the chin, and a bleeding from the right ear. The sight of the eye was saved. The wounds over the eye and upon the chin required stitches. The injuries were painful. There was also proof that the infant plaintiff was permanently disfigured, in that one eye is smaller than the other, and in that there is a difference in the appearance of one side of the face from the other; that she still complains of headaches; that her eyes water; that she has lost weight, is nervous, and screams in her sleep. None of these conditions were present before the accident.

The physician’s bill was $150. The infant plaintiff obtained from the jury a verdict of $400. The father obtained a verdict of $286.90. It is contended, first, that these verdicts are inadequate, and secondly, that the court erred in telling the jury that there was no evidence which would justify them in awarding damages for any results the plaintiff might suffer in the future.

The evidence as to any continuing results of the injuries is alleged to have been nullified by the testimony of the doctor, because he did not testify to the nervousness or the conditions of the infant plaintiff which were described by other witnesses. As to the disfigurements due to the sears it is claimed that there is no allegation in the complaint claiming damages therefor. We have reached the conclusion that the trial judge was in error in limiting the damages as he did. The conditions which were observed by the mother and father of the child would naturally be more within their observation than that of the doctor. They saw the child frequently; the doctor seldom. As to the complaint it is true that it does not specifically claim damages for permanent disfigurements, but it does state that "she will be unable to enjoy the pleasures which she had heretofore enjoyed prior to said injuries.” While the allegation is by no means broad, it seems to us there is sufficient in it to apprise the defendant that damages for future conditions would be claimed. When evidence was offered as to such conditions it was incumbent on the defendant to object to it as not within the pleadings. If no objection wore made then the evidence was part of the case and fairly within the future damages that might be suffered as charged.

On the question of damages we feel that they are inadequate without any regard to any future conditions. The evidence showed reasonably severe injuries and lacerations causing much discomfort and pain. The inadequacy of the damages taken in connection with the portion of the charge referred to requires that the case be sent back for a new trial.

The plaintiffs ask that these verdicts stand as fixing the liability of the defendant and the new trial be limited to the question of damages. Upon reading the testimony we have reached the conclusion that the jury had some doubt as to whether the infant plaintiff had not been guilty of contributory negligence and perhaps some doubt as to the negligence of the defendants. The verdicts look like compromise verdicts. We think there should be a retrial not only upon the subject of damages but upon the question of liability.

The rule to show cause is made absolute.


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    FRANK STAS ET AL., PLAINTIFFS-RESPONDENTS, v. NATIONAL SLOVAK SOCIETY, ETC., ET AL., DEFENDANTS-APPELLANTS.
    Argued January 18, 1927
    Decided June 27, 1927.
    Fraternal Societies — Death Benefits — Plaintiffs’ Decedent Had Had Paid Him on Account of a Death of a Former Wife $300, and Society Claimed This Amount Deductable From the $500 Due His Beneficiaries Upon His Death — Contract Examined, and Held, That as the By-laws Stood at the Time Payment was Made, the Payment was in Addition to the Benefit Accruing at the Time of the Death of the Member.
    On appeal from a judgment of the Perth Amboy District Court.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Por the appellants, William J. Gain.

    Por the respondents, Stephen F. Somogyi.

   Per Curiam.

This is an appeal from a judgment of the Perth Amboy District Court. The suit was instituted by three children of Joseph Stas, deceased, to recover from the defendants a death benefit. The National Slovak Society (one of the defendants) is a fraternal organization. It is the parent body. The parent body chartered subordinate bodies or branches. The other defendant is St. Mark’s Assembly, No. 91, of the National Slovak Society. This is a branch of the parent body located in Perth Amboy. Joseph Stas was a member in good standing of the parent body and said branch when he died on February 11th, 1919. The constitution and by-laws of the defendants provided for the payment of $500 when a member died. This sum was not paid and the beneficiaries instituted suit. Lt developed at the trial that $125 had been paid to the widow of Joseph Stas. A judgment of $375 and interest was rendered in favor of the three children of Joseph Stas, the plaintiffs.

The contention made at the trial in behalf of the defendants is that in the year 1895 there had been paid to Joseph Stas at the time of the death of his first wife the sum of $300, and that this amount was deductible from the death benefit of $500. The by-laws in existence in the year 1895 provided as follows:

“In the event of the death of the wife of a fellow-member, such widowed member shall receive from the National Slovak Society $300, which benefit shall be paid to such members only who are six months in the society.”

In the year 1901 there was a change made in the by-laws. To the time of the change in 1901 a death benefit of $600 was paid to the beneficiary of a member on his death, and a benefit of $300 was paid to a member on the death of his wife. The change of 1901 provided for a payment to a member of $250 on the death of his wife, and expressly provided that the same was a payment on account of his death benefit of $750, and that on the member’s death his beneficiary should receive the balance of $500.

Joseph Stas had issued to him January 1st, 1910, a certificate to the effect that a death benefit not to exceed the sum of $500 was to be paid his beneficiary out of the mortuary fund. This certificate contained the following provision: “That if said member, during his lifetime, received any loan or advancement from the National Slavonic Society on account of his death benefit, in accordance with the constitution ,and by-laws in force and effect at any time prior to and before December 31st, 1909, then the amount or amounts so loaned or advanced shall be first deducted from the full amount of the death benefit herein mentioned.”

Under this provision the defendants-appellants insist that the $300 paid to Joseph Stas in 1895, when he lost his first wife, was a loan or advancement on account of his death benefit.

We think this contention is without merit. The death benefit referred to in the certificate of 1910 is the death benefit of the member under that certificate. There was no evidence that any loan or advancement had been made to Joseph Stas on account of the death benefit to be paid in accordance with the terms of the 1910 certificate. In 1895 there was a separate benefit given to a member if he lost his wife. This provision had no relation to the situation either expressed in the certificate of January 1st, 1910, or in the by-laws of 1901. The certificate is the contract. This cannot be changed so as to reduce the amount of the death benefit. O’Neill v. Supreme Council, 70 N. J. L. 410.

The judgment is affirmed, with costs. ..


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    DANIEL J. DONOHUE, PLAINTIFF-RESPONDENT, v. NASH SALES CORPORATION, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted January 28, 1927
    Decided June 27, 1927.
    Corporations — Officers—Power to Make Contracts — President of Company Had Asked Physician to Treat the Secretary of the Company Who was Suffering From Diabetes — Held, That the Employment of the Physician was Without the Scope of the Powers and the Duties of the President — The Illness Did Not Arise Out of nor in the Course of Secretary’s Employment.
    On appeal from a judgment of the Second District Court of Jersey City.
    For the appellant, William Ruck, Jr.

    For the respondent, Gannon & Gannon and Edward, J. O’Mara.

    Before Justices Kalisoh, Katzenbaoh and Lloyd.
   Per Curiam.

This is an appeal by the defendant below (hereinafter called the defendant) from a judgment of the Second District Court of Jersey City. The testimony discloses the following facts. The plaintiff was a physician. The defendant had in its employ, as its secretary, one Leo P. Mann. Mr. Mann was suffering from diabetes. The plaintiff, a physician, testified that he treated Mr. Mann and sent his bill for treatment to the defendant company due to a call at his office by Mr. Clifford, president of the defendant company, who told the plaintiff that Mr. Mann was ill and asked the plaintiff to treat him. The plaintiff had treated employes of the defendant company who had been injured and his services were paid for by the companies insuring the defendant. There was another case where an employe was treated by the plaintiff at the request of Mr. Clifford for a trouble that did not arise out of the employment of the employe by the defendant. The defendant had repudiated the bill and it was paid by the patient. The plaintiff offered the testimony of Edward F. Dooley, a former employe of the defendant, who stated that he heard the president, Mr. Clifford, communicate with the plaintiff with reference to Mr. Mann’s case.

A motion was made to nonsuit on the ground that Mr. Clifford was not acting within the scope of his duties at the time he employed the plaintiff to attend to Mr. Mann. This motion was denied. An exception was taken.

The defendant offered its charter and also a letter (by agreement) of Mr. Clifford to the effect that he did not authorize the plaintiff to take care of Mr. Mann. It was admitted that there w;as no resolution passed by the board of directors giving Mr. Clifford authority to make the agreement sued on. A motion to direct a verdict for the defendant was made upon the same grounds as the motion to nonsuit and this was denied.

The question which the defendant raises upon this appeal is whether or not the president had authority to make the agreement on which the plaintiff relies to recover his bill for medical attendance to Mr. Mann. The proof that is required to make a corporation responsible for contracts entered into by an officer or employe of the corporation has been considered in a number of cases in this state. In Aerial League of America v. Aircraft Fireproofing Corporation, 97 N. J. L. 530, the Court of Errors and Appeals said:

“It was incumbent upon the plaintiff to show that the contract upon which the suit was brought was the contract of the defendant. To bind the defendant the contract must be proven to be the act of the defendant either by corporate action, the act of an authorized agent, or by adoption and ratification. * * * It often results that one occupying a high official position in a corporation is without power to bind the corporation by contract.”

The case of Mausert v. Feigenspan, 68 N. J. Eq. 671, is cited as an instance. In that case the complainant claimed that the president of the defendant corporation had modified an agreement. The Court of Errors and Appeals held that the president had no such power.

In the present case it seems to us that the agreement relied upon by the plaintiff was one that was without the scope of the powers and duties of the defendant’s president. Mr. Clifford may have become personally liable by reason of what passed between the plaintiff and himself concerning the treatment of Mr. Mann. This action, however, is an attempt to make the corporation liable upon the alleged statement of Mr. Clifford. Mr. Mann’s illness did not arise out of and in the course of his employment. It was a matter for which the corporation was in no sense responsible.

The plaintiff did not discharge the burden cast upon him by showing authority in Mr. Clifford to make the contract sued on.

The judgment is accordingly reversed.


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    STATE, EX REL. JOHN G. TRUSDELL, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, RESPONDENT.
    Submitted October 15, 1926
    Decided June 27, 1927.
    Zoning — Garages in Medium Volume Residence District — Relator Has Sustained the Burden of Showing the Unreasonableness of the Ordinance — Peremptory Writ of Mandamus Allowed.
    On return to an alternative writ of mandamus.

    Before Justices Kaliscii, Katzebbach and Lloyd.
    Eor the relator, Charles Jones.

    Eor the respondent, Walter O. Ellis.

   Per Curiam.

This is a zoning case. The relator applied for and was allowed an alternative writ of mandamus. A return to the alternative writ has been filed. No demurrer has been filed to the return. No point is made by the respondent, of the failure to file a demurrer. The case is before us on facts stipulated.

The relator owns a plot of land in East Orange located on the westerly side of North Munn avenue, between Park avenue and William street. The plot has a frontage of two hundred -and fifty and fourteen-hundredths feet on North Munn avenue and a depth of one hundred and twenty-five feet. East Orange has a zoning ordinance. The relator’s property is located in what is termed a “medium volume residence district.” The relator desires to build two public garages on his lot with stores located in the front of the buildings. The buildings will be on each side of a fifty-feet-wide entrance to the garages. The front line of the garages will be fifteen feet back of the front line of the stores which are to be erected on the ordinary building line of the street. The relator’s property is zoned against the erection of garages. On this ground a building permit was refused.

In Portnoff v. Bigelow, 4 N. J. Mis. R. 539, it was said that the burden was upon the relator to show the unreasonablenses of the ordinance. This the relator in the present case undertakes to do. North Munn avenue is a thoroughfare fifty- feet wide. It is smoothly paved. The street is one upon which there is little traffic. The traffic seeks Parkway, which runs parallel with North Munn avenue. There is no traffic congestion on North Munn avenue. Apartment-houses have Qbeen erected on Arlington avenue, which is parallel to North Munn avenue on the west. There are also apartment-houses on Park avenue. Approximately a dozen apartment-houses are located in the immediate locality. Each accommodates from fifty to sixty families. The nearest public garage is two and one-half blocks from the relator’s property. The relator contends that there is a necessity for public garages in this locality. Photographs admitted in evidence showing the environments of the relator’s lot are persuasive of the relator’s contentions. North of the relator’s lot there is a vacant lot. In the rear of his lot are brick apartment-houses. On’ the south is a vacant lot. Opposite there is an armory where horses are kept. The photograph of the armory shows the horses walking around in an inclosure in front of the armory. Adjoining the armory lot twenty-five individual garages have been erected.

We see no reason affecting the public health, safety or general welfare which should prevent the use of the relator’s land for the purpose it is best adapted. In the case of State v. Garner, 4 N. J. Mis. R. 234 (not officially reported), the garage question is considered. We are of the opinion that the reasoning in State v. Garner, supra, although the facts are different, controls the instant case.

A peremptory writ of mandamus is awarded.


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    STATE, EX REL. MAX ALTSCHULER AND LOUIS COHEN, RELATORS, v. JOHN SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted October 15, 1926
    Decided June 27, 1927.
    Zoning — Apartment-Houses in Restricted Territory — Ordinance Unreasonable — Nothing in an Apartment-House Against Public Health, Safety or General Welfare.
    On demurrer to return to an alternative writ of mandamus.

    Eor the relators, Edward B. McGlynn.

    For the respondents, Walter C. Ellis.

    Before Justices Kalisch, Katzenbach and Lloyd.
   Per Curiam.

This is a zoning case. The case is before us on a demurrer to a return to an alternative writ of mandamus. The relator’s property is in East Orange, which enacted a zoning ordinance in the usual form. The relators’ land is on the southerly side of Chestnut street between South Arlington avenue and South Burnett street, in a section zoned as a “small volume resident district.” The relators desire to erect an apartment-house upon the lot. A building permit was refused because the land was zoned against the erection of apartment-houses. No other question is involved.

This court has frequently held that there is nothing in the erection upon a lot of an apartment-house which justified the prevention of such erection by the exercise of the police power in the interest of public health, safety, or general welfare. In the zoning ordinance of East Orange the erection of apartment-houses in other localities is permitted. Where an ordinance provides for the erection of apartment-houses in some sections of the city and excludes their erection in other sections this is an unwarranted discrimination under the decisions in this state.

A peremptory writ of mandamus is awarded.


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    JOSEPH E. CHAMBERS, BY HIS NEXT FRIEND, JOSEPH CHAMBERS, AND JOSEPH CHAMBERS INDIVIDUALLY, PLAINTIFFS, v. SAMUEL KRAMER AND JOSEPH KRAMER, DEFENDANTS.
    Decided June 27, 1927.
    Negligence — Contributory Negligence — Evidence Examined and Held Not Sufficient to Justify Setting Aside the Verdict of the Jury.
    On defendants’ rule to show cause.
    Before Justices Tkenchakd, Katzenbach and Lloyd.
    Por the rule, Kalisch & Kalisch.

      Contra, Collins & Corbin and Edward A. Marlcley.

   Per Curiam.

The above case was submitted on briefs at the October term, 1925. It was decided on January 15th, 1926. At that time the application for a rule to show cause made in behalf of the defendants why the verdicts rendered in favor of the plaintiff should not be set aside was denied. The basis for the decision was the failure of the defendants to apply for the rule within the time limited by rule 123 of the Supreme Court. Subsequent to the filing of this decision the defendants presented a certificate of Judge Stein, Common Pleas judge of Union county, before whom the case was tried, to the effect that the application had been made within the time fixed by said rule. Upon the certificate of Judge Stein being presented to this court the case was again considered upon the briefs submitted.

We have examined the testimony and have reached the conclusion that the questions of the contributory negligence of the plaintiff and of the negligence of the defendants were clearly questions under the evidence for the determination of the jury,- and that the evidence offered in behalf of the defendants is not sufficient to outweigh the evidence of the plaintiff. A jury has a better opportunity to judge the credibility of the witnesses than a court. It does not follow that a court should accept necessarily the testimony of the greater number of witnesses.

We do not find in the present case evidence which justifies us in setting aside the verdicts rendered. It is not shown that such verdicts are so clearly against the weight of the evidence as to give rise to the inference that the verdicts were the result of mistake, passion, or prejudice. Boesch v. Kick, 97 N. J. L. 92; Queen v. Jennings, 93 Id. 353.

We have treated this case as if a rule had been granted.

The application of the defendants for a rule is denied, with costs.


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    JACOB COHEN, PLAINTIFF-RESPONDENT, v. PEOPLES NATIONAL FIRE INSURANCE COMPANY ET AL., DEFENDANTS-APPELLANTS.
    Argued January 18, 1927
    Decided June 27, 1927.
    Insurance — Fire—District Courts — Appeals—Defendant Insurance Companies Paid Into Court the Amount of the Respective Judgments, but Filed No Appeal Bonds According to Statute — Held, That This was Necessary to Insure Jurisdiction — Further, the Merits of the Case Were Discussed and an Affirmance on the Merits Indicated.
    On appeal from judgments of the District Court of the city of Trenton.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor the appellants, Joseph T. Lieblich.

    Eor the respondent, Grossman & Kwalich and Michael H. Feldman.

   Per Curiam.

This is an appeal upon one record of four judgments obtained by Jacob Cohen against the following insurance companies: (1) Peoples National Eire Insurance. Company, (2) Globe and Rutgprs Eire Insurance Company, (3) Concordia Eire Insurance Company, and (4) Milwaukee Mechanics’ Insurance Company. The four suits were tried together in the Trenton District Court. The evidence in each suit was the same.

The respondent claims that four records should be presented in this court. We do not favor this contention. We see no reason why the same testimony should be printed four times. The actions were consolidated for trial by order of the Trenton District Court. An order was made by this court that the appeals be heard upon one record. We see no impropriety in such an order. Appeals should not be made more expensive to the appellants than is reasonable necessary.

The respondent raises in his next point a jurisdictional question. The defendants below paid the amount of the respective judgments to the clerk of the Trenton District Court. They filed no appeal bond or bonds to cover the costs of the appeals. We think it was necessary for the appellants to do this to maintain their standing in this court. Section 213 of the District Court act (1911-1924 Supplement to Compiled Statutes of New Jersey, at page 983) provides that if either party in any action in any District Court shall be dissatisfied in point of law or upon the admission or rejection of evidence, such party may appeal from the same to the Supreme Court, if such party shall, within twenty days after such determination, give notice of such appeal to the other party and enter into a bond to the other party with sufficient surety, to be approved by the District Court judge, for the costs of the appeal and for double the amount of the judgment rendered, conditioned, &c.; nevertheless, such security, so far as regards the amount of the judgment, shall not be required in any ease where the judge shall permit the party appealing to pay the amount of such judgment into the hands of the clerk, and the same shall have been paid accordingly. This language can in no way, we think, be construed so' as to dispense with a bond for the payment of costs on the appeal. While the bond may be conditioned for double the amount of the judgment and the costs of the appeal, and the former may be eliminated by the payment of the amount of the judgment into the District Court, yet, the statute does not, if the amount of the judgment be deposited, eliminate the requirement of the bond. It was admitted on the argument that no bond was filed in this case. This leaves this court without jurisdiction to entertain the appeals. In Seiler v. Simpson76 N. J. L. 450, it was held that until an appeal from a District Court has been perfected by due notice of appeal and the filing and approval of an appeal bond, the Supreme Court does not acquire jurisdiction of the proceedings. It follows that the appeals should be dismissed.

This makes it unnecessary to consider the merits of the appeals. If we did we would be in favor of the affirmance of the judgments below. The plaintiff, Jacob Cohen, was insured in five insurance companies. The four above mentioned and a fifth, known as the New Zealand Insurance Company, Limited. Cohen conducted a men’s furnishing store in Elizabeth, New Jersey. On November 12th, 1922, a fire occurred in the store. Cohen employed one Marcus’ Robbins to adjust the loss. The insurance companies designated one Philip Euerstein to act for them. The two adjusters fixed the loss at $11,150. They then apportioned this sum between the five companies. The portion to be paid by the New Zealand company was fixed at $1,338. The New Zealand company then denied its liability. Drafts from the other four insurance companies had been forwarded to the plaintiff. It was agreed by these insurance companies through Euerstein that Cohen should use the drafts, and if the New Zealand company escaped liability the proportion of the New Zealand company would be prorated among the four companies which admitted liability and paid to Cohen. This arrangement was carried out. The New Zealand company ultimately won its case. 100 N. J. L. 110. Cohen thereupon asked the four insurance companies to pay to him the amount apportioned to the New Zealand company. They refused to pay. The four suits in the Trenton District Court were then instituted.

The insurance companies set up that Euerstein had no authority to make the agreement. This was contradicted and became in the case a disputed question of fact. The District Court held that Euerstein had authority to make the agreement. The insurance companies also contended that the District Court actions were res adjudicaba. A defense of res adjudicaba must show an identity of the causes of action. There was no identity of the causes of action because the claims of Cohen originally were against the insurance companies on their respective policies. In the present case the suits of Cohen against the insurance companies were based upon the agreement of settlement. There was therefore no identity of the subject-matter. The defense of res adjudicaba was unavailing.

The order of the court is that the appeals be dismissed.


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    PELLEGRINO VITALANO, PLAINTIFF, v. MIKE RUFFO, DEFENDANT.
    Submitted May 15, 1920
    Decided June 27, 1927.
    Alienation of Wife’s Affections — Judgment Originally Entered For an Agreed Amount — Other Conditions Entered Into Making the Agreement — Defendant Now Asks That Judgment be Affirmed as Plaintiff Has Made it Impossible to Carry Out Some of the Other Provisions — Held, Not Sufficient Reason to Open Judgment.
    On rule to show cause why judgment should not be vacated.
    Before Justices Kalis oh, Katzenrach and Lloyd.
    For the, rule, Harry Silvers/,ein.

      Con/ra, Emil J. Hoos.

   Per Curiam.

This case is before this court upon a rule to show cause why a judgment entered in an action in the Supreme Court should not be vacated. Under this rule testimony was taken. The testimony shows that an action was instituted by Yitalano, the plaintiff, against Ruño, the defendant, to recover damages for the alienation by Ruffo of the affections of Mrs. Yitalano. The ease was referred to the Court of Common Pleas for trial. At the first trial the jury disagreed. When the case came up for retrial a judgment was entered in open court against the defendant for $500, without costs, which was the amount agreed upon as damages for the wounded honor of the plaintiff and the loss of his wife’s affection. It was further stipulated in open court at the time of entering judgment that as to a counter-claim filed by the defendant a, verdict of no cause of action was to be rendered by the jury. The plaintiff further agreed at the time and in open court not to attempt to enforce the judgment of $500 until the rights of the plaintiff and defendant upon a certain promissory note given by the plaintiff to the defendant had been determined in an action to be brought by the defendant against the plaintiff. The note on its face did not show that the sum therein promised to be paid was due. It was further stipulated for the purposes of the proposed suit that it should be agreed that the note was due. Execution was not to issue on the plaintiff’s judgment until the final determination of the- defendant’s action upon the promissory note.

The defendant 'evidently desires that the judgment for $500 entered formally in open court be opened because the plaintiff’s attorney has refused to either acknowledge service of process in the suit on the promissory note or to advise the defendant’s attorney as to the present addresses of Vitalano and his wife. .In other words., the defendant asks to have the judgment entered set aside because of his inability to serve process in the proposed suit on the promissory note. There is nothing in the stipulation made in open court which required Yitalano and his wife to accept by attorney or otherwise service of process in the suit proposed to be entered upon the promissory note.

We see in the record no sufficient reason to- open the judgment.