text:
    THEODORE F. SIDWAY, PLAINTIFF-RESPONDENT, v. GREATER ATLANTIC FINANCE AND MORTGAGE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1933
    Decided December 28, 1933.

      Before Brogan, Chirr Justice, and Justices Trenohard and Heher.
    Por the plaintiff-respondent, William, I. Garrison (Samuel Baclcer, of counsel).
    Por the defendant-appellant, Philip Monheit (Gorson <& Gorson, of counsel).
   Per Curiam.

The instant case is an appeal from a judgment recorded by the plaintiff against the defendant in the Common Pleas Court of Atlantic county. The plaintiff was a tenant in an apartment house and sustained injuries on the roof thereof where he had gone to remove some clothes from a clothes line, the boardwalk under foot having given away so that he suffered personal injury.

The defendant appeals on the ground that the trial court should have granted its motion for nonsuit; should have directed a verdict on the ground the plaintiff was guilty of contributory negligence, and, further, that there was no proof of negligence on the part of the defendant.

The first and second grounds urged have no merit because a landlord is answerable in damages to a tenant in an apartment house, who receives injuries on áccount of a defective condition in the premises where the landlord has actual knowledge of that condition or is chargeable with knowledge by a timely notice to his agent, as here, and fails within a reasonable time to remedy such defect. Perry v. Levy, 87 N. J. L. 670; 94 Atl. Rep. 569; Gillvon v. Reilly, 50 N. J. L. 26; 11 Atl. Rep. 481; Siggins v. McGill, 72 N. J. L. 263; 62 Atl. Rep. 411; McCracken v. Meyers, 75 N. J. L. 935; 68 Atl. Rep. 805; Ionin v. E. D. & M. Corp., 107 N. J. L. 145; 151 Atl. Rep. 640.

Under the proofs in this case, the jury was justified in concluding that the wooden boards were defective; that the landlord had notice and that he failed to make repairs within a reasonable time after such notice. These facts, if true, and apparently the jury believed them, were sufficient to convict the defendant of the negligence charged.

The appellant further contends that the plaintiff below was guilty of contributory negligence as a matter of law and relies on Barthelmess v. Bergamo, 103 N. J. L. 397; 135 Atl. Rep. 394, and Vorrath v. Burke, 63 N. J. L. 188; 42 Atl. Rep. 838. These cases are not applicable. It is true that the general rule is that where a tenant has knowledge of the defective condition of the premises and continues thereafter to occupy them, he may be considered as having assumed the risk and be held guilty of contributory negligence. 36 C. J. 223. But our view is that this rule does not apply where the landlord has or is chargeable with knowledge of the defective condition and promises, as here, through his agent, to remedy the situation, for to determine, under these conditions, that a tenant would be guilty of contributory negligence as a matter of law if he used such part of the demised premises, would be to pre-empt him from use of part of the premises or its appurtenances. Bailey v. Fortugno, 8 N. J. Mis. R. 739; 151 Atl. Rep. 484; Bland v. Gross, 110 N. J. L. 26; 163 Atl. Rep. 891. Therefore the question of the lack of negligence on the part of the landlord and contributory negligence on the part of the palintiff below, were questions of fact for the jury and the motion for nonsuit and for directed verdict were properly rejected by the trial court.

The next ground of appeal is that the court erred in permitting witnesses to answer questions as to the condition of the walk on the roof, the objection being that the testimony was too remote. One witness was permitted to testify as to the condition of this part of the premises as continuing from ISTovember, 1928, to February, 1932, the accident in question having happened on May 4th, 1932. Three other witnesses were permitted to testify along the same lines. It is urged that the allowance of this testimony constituted legal error. This testimony would constitute legal error if it appeared that the trial court had received testimony of a condition long prior to the accident without bringing that condition, unabated, down to the time of the plaintiff’s injury, but here the defective condition^ unremedied, was brought down to the time of the accident. There was no gap in the testimony as to the continuance of the condition complained of. There was testimony that justified the conclusion that the walk was rotted at the time of the accident and that it had been in that condition for several years prior to the accident, during all of which time no repairs were made. This testimony, therefore, instead of being error, made out a strong case in favor of the continuous neglect of the defendant.

It is next urged that it was error to have received photographs showing the condition of the premises, two weeks after the happening, and.without producing the photographer as a witness. The appellant is not entitled to be heard on these points since proper objection was not made at the time these pictures were received as exhibits in the case. However, we might observe that under our cases it is not necessary to produce the photographer who actually took the picture. Our rules are satisfied if a witness is produced who testifies, as here, that the photograph is a true representation of the condition in question.

We find no merit in the appeal and the judgment will be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    RUTH ANDRESEN, BY HER NEXT FRIEND, BORGHILD ANDRESEN, AND BORGHILD ANDRESEN, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. MICHAEL ZIMMERMAN, DEFENDANT-APPELLANT. VIOLET DAY, BY HER NEXT FRIEND, ALBERT DAY, AND ALBERT DAY, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. MICHAEL ZIMMERMAN, DEFENDANT-APPELLANT.
    Submitted May term, 1933
    Decided December 29, 1933.
    Before Brogan, Chief Justice, and Justices Trenchaed and Heher.
    For the appellant, Pomerehne, Laible •& Kautz (Henry Pomerehne, of counsel).
    For the respondents, Haines & Chanalis (Patríele J. Maloney, of counsel).
   Per Curiam.

These actions, brought to recover damages resulting, it is said, from appellant’s negligent operation of an automobile, were tried together. The jury awarded damages to each plaintiff, and from the judgments entered thereon, these appeals are taken.

The first ground urged by appellant is that there was error in the denial of appellant’s motions for a nonsuit and a direction of a verdict in his favor, on the ground (a) that there was no evidence of negligence on his part.; and (b) that the contributory negligence of respondents Euth Andresen and Violet Day conclusively appeared.

We find no error in these rulings. The named respondents, who were fourteen and fifteen years of age, respectively, were struck by appellant’s automobile while crossing Eoseville avenue, at the intersection of that highway and Orange street, in the city of Newark. Traffic at this intersection was controlled by a signal light, which alternated from red to amber to green. The signal light apparatus was located in the center of Eoseville avenue, which is about fifty feet wide at this point, on the northerly side of Orange street. These plaintiffs approached the intersection on the southerly sidewalk of Orange street, from the easterly side of Eoseville avenue. When they reached the easterly curb of Eoseville avenue, they found a green signal light for traffic on Orange street, and a red light for traffic on Eoseville avenue. There were several lines of motor vehicles at a standstill on Eoseville avenue, on the southerly side of Orange street. They proceeded across the intersection on the southerly crosswalk. There was testimony that when they were within a few feet of the westerly curb of Eoseville avenue, the light changed from green to amber, for traffic on Orange street, and that immediately thereafter and before they completed the crossing of the intersection, appellant’s car, moving in a northerly direction on Eoseville avenue, struck them and inflicted the injuries for which recovery is sought in these actions. One of the witnesses placed them within six or ten feet of the westerly curb of Eoseville avenue when struck. There was evidence that appellant’s automobile was moving at a speed of thirty or thirty-five miles per hour at the time it struck the plaintiffs, and that it entered the intersection after the light had turned from red to amber for traffic on Eoseville avenue, but before the green light for traffic on that thoroughfare appeared.

There was, therefore, sufficient evidence to warrant a finding that appellant was negligent in the operation of his automobile. In fact, if tire jury found that the evidence referred to was credible, the inference of negligence was inescapable. And it obviously cannot be said that, under the circumstances here existing, the negligence of the named plaintiffs conclusively appeared. There was evidence that furnished a rational basis for the finding that, in crossing the intersection, they exercised due care. The Traffic act enjoins the operators of vehicles to give the right of way to a pedestrian at a crosswalk, where the latter, having started to cross with the proper signal, finds himself still within the intersection when the signal changes. Pamph. L. 1928, p. 721, 728.

The second point made by the appellant is that there was error in the charge as to contributory negligence. It is said that the passage in the charge complained of, “tended to create an inference in the minds of the jury that these plaintiffs being ‘infants’ were excused, because they were infants, from the duty of observation to avoid danger from approaching vehicles.” This criticism is without merit. The court charged that it was for the jury to determine whether the infant plaintiffs “used that degree of care and discretion usually exercised by persons of similar age, judgment, experience and environment and reasonable to expect of the particular child in question under all the circumstances of the case.” The court expressly charged, at the request of appellant, that “contributory negligence is such negligence on the part of plaintiffs as proximately helped to produce the injuries complained of, and if the jury finds from a preponderance of all the evidence in this Case plaintiffs were guilty of any negligence that proximately helped to bring about or produce the injuries complained of, then, and in that case, the plaintiffs cannot recover in this action, and there should be a verdict for the defendant of no cause of action.”

Lastly, it is said that the court erred in modifying one of appellant’s requests to charge, dealing with contributory negligence. As stated, appellant’s criticism of the court’s charge on this subject is without merit, and this ground for reversal has, therefore, nothing to support it.

Judgments affirmed, with costs.


author: Pee Cueiam.

text:
    JOHN DOMINQUEZ, PROSECUTOR, v. JOSEPH MARKOWITZ ET AL., RESPONDENTS.
    Submitted January term, 1933
    Decided December 29, 1933.
    Before Justices Pakkeb, Lloyd and Heheb..
    For the prosecutor, Walter X. Trumbull (Franlc G. Turner, of counsel).
    For the respondents, Breslin <& Breslin.

   Pee Cueiam.

This certiorari brings up a determination and judgment of the workmen’s compensation bureau, awarding compensation to the dependents of Michael Markowitz, who, it is claimed, died as the result of an accident which arose out of and in the course of his employment by prosecutor, and an order of the Bergen County Court of Common Pleas, affirming the judgment.

The first question presented is whether decedent’s death was the result of an accident which arose out of and in the course of his employment. The fatal accident befell decedent while he was riding a motorcycle on a public highway known as Eiver road in East Paterson. He was the borough marshal, but was also employed by prosecutor, who was engaged in the performance of a sewer construction contract, as a watchman at the site of the construction work. His hours of duty as a watchman were from four-thirty p. m. to seven a. m. Prosecutor, at the time, was engaged in the construetion of two sections of the sewer, one at Palser avenue and the Boulevard, and the other at Dey avenue, in Bast Paterson. In the performance of his duties as a watchman, decedent was required to maintain lighted lamps at an open trench in Dey avenue, and to keep three or four pumps in operation in the section under construction at Paiser avenue and the Boulevard. He was, of course, required to pass to and fro between these sections in the performance of his duties, and he used a motorcycle for the purpose. The Biver road, it seems, was a convenient highway in moving from one end of the construction work to the other, and it is inferable from the testimony that this was the highway used by decedent for that purpose. The accident which resulted in decedent’s death occurred at eleven-fifteen p. m., when he was in the employ of prosecutor. He was not then assigned to police duty.

Prosecutor claims that at the time decedent sustained his injuries, he was pursuing a speeding automobile, in the performance of his police duties. There was evidence that shortly before the accident, decedent was in a lunch wagon at a point about two miles from the scene of the collision which resulted in his death, and that after leaving the wagon he drove his motorcycle toward the Biver road. A witness, who said he talked with decedent at the lunch wagon, was permitted to testify, without objection, that decedent said he was “going to go and get this fellow.” We are unable to determine whether the deputy commissioner regarded this testimony as worthy of credence. It may be that he rejected it as unworthy of belief, or that the circumstances were such that it was extremely doubtful that decedent was correctly quoted. The commissioner saw the witnesses and heard their testimony, and concededly this personal contact is advantageous in determining credibility of witnesses.

In any event, the statement made, if accepted, is not conclusive as to what decedent was doing at the time of the accident. He was at a place where he would ordinarily be in the performance of the duties of his employment with prosecutor. He used his motorcycle in moving from one section of prosecutor’s construction work to the other. The collision occurred at a time when he was required to render service to prosecutor. It is not to be presumed that he was doing something wholly unconnected with his employment.

We have examined the evidence, and find therein a basis of rational inference, tantamount to legal proof of the fact, that decedent’s death resulted from an accident which arose out of and in the course of his employment. Manziano v. Public Service Gas Co., 92 N. J. L. 322; 105 Atl. Rep. 484. This is fairly inferable from all the facts and circumstances, and we so find.

Prosecutor maintains also that illegal evidence was admitted. It is said that there was error in permitting the witness, Vreeland, called by respondents, to testify to a conversation with decedent shortly before he departed from the lunch wagon. This witness testified, over objection, that decedent said he was “working as a watchman; taking care of pumps;” and that in the performance of his duty he used the motorcycle “to get back and forth quicker.” This testimony did not relate to what decedent was doing at the time he suffered the accident. The facts which this testimony tended to establish were already in evidence, and conceding that there was error in the ruling complained of, it was harmless.

Judgment affirmed, with costs.


text:
    OTTO W. NELSON, RESPONDENT, v. ANNA LEVY (IMPLEADED, ETC.), APPELLANT.
    Submitted October 13, 1933
    Decided January 11, 1934.
    Before Justices Paekee, Lloyd and Peeskie.
    For the appellant, George F. Losche.

    For the respondent, Richard Stockton.

   Pee Cueiam.

The case arose out of a collision between two automobiles in Rutherford about midnight. The trial was with a jury, who found for the plaintiff. The seven specifications of alleged error are all founded on the refusal of requests to charge. These were seven in number, but the seventh is not included in the grounds of appeal, and the sixth is not mentioned in the brief. We have examined with care the other five, and find that either they were adequately covered in the charge, or if not covered, properly refused. The first was charged as requested, complete except one short sentence which was covered in the charge. The second was not relevant, or of doubtful relevancy on the testimony, but was fully covered. The third postulated certain facts as constituting negligence, though granting those facts the question of negligence was still for the jury. The fourth similarly postulated certain facts as constituting contributory negligence. The court cor- ‘ rectly left that to the jury with appropriate instructions on contributory negligence. The fifth called for an instruction that violation of certain provisions of the Traffic act might be considered as negligence and, if so, plaintiff could not recover. This was properly refused as it omitted the postulate that such violation contributed to the accident.

We find no error, and the judgment is therefore affirmed.


text:
    ALBERT E. ALCHIN, APPELLANT, v. SUPREME MILK AND CREAM COMPANY, APPELLEE.
    Submitted October 13, 1933
    Decided January 11, 1934.
    Before Justices Parker, Lloyd and Perskie.
    For the appellant, Joseph B. Schwartz.

    Por the appellee, Morris Margaretien.

   Per Curiam.

The suit is for alleged unlawful conversion of plaintiff’s goods. Defendant held plaintiff’s chattel mortgage thereon; plaintiff defaulted, defendant seized the goods and sold them under a power of sale contained in the mortgage and bought them in at the sale. The trial court entered judgment for the defendant. That was correct. The only point made for the plaintiff-appellant is that defendant was required by section 21 of the Sales act to reserve the right to bid at the chattel mortgage sale. But in our opinion that section has no application to sales under chattel mortgages. Whatever may be the rule laid down by statute or decisions, or both, in other jurisdictions, it has always been the recognized and customary practice for the chattel mortgagee to bid at his own sale under the mortgage, and the natural assumption is that he will do so. There is nothing in the Chattel Mortgage act regulating the manner of sale, and usually the mortgage itself contains provisions in that regard. The provision in the Sales act relates to auction sales by an owner or under authority of an owner, and not sales in enforcement of a lien.

Apart from statute, we think it is correctly said in 5 R. C. L. 471, that “the most that could be held in case the mortgagee became a purchaser at his own sale, made under a power, would be to cast upon him the burden of showing that the sale was. fairly and openly made, in strict compliance with the power, and that the price paid was not so clearly and grossly disproportioned to the value of the property as to raise a presumption of fraud or bad faith.” Of such a situation there is no suggestion in the case before us, the attack being based, as has been said, upon the sole ground that section 21 of the Sales act was not followed.

The judgment is affirmed, with costs.


author: Smith, C. C. J.

text:
    Essex County Circuit Court.
    STEADFAST BUILDING AND LOAN ASSOCIATION, A CORPORATION, v. VICTOR PLOSKI AND LENA PLOSKI, HIS WIFE. STEADFAST BUILDING AND LOAN ASSOCIATION, A CORPORATION, v. FRANK SNYDER AND ANNIE SNYDER, HIS WIFE. STEADFAST BUILDING AND LOAN ASSOCIATION, A CORPORATION, v. JOHN W. ALLEN AND BESSIE M. ALLEN.
    Decided January 5, 1934.
    Eor the plaintiff, Milton J. Finkelstein.

    (No appearance for the defendants.)
   Smith, C. C. J.

(Orally.) The court was asked to allow an order and rule for judgment in each of the above named three separate ejectment actions, but before so doing the court requested counsel to serve a notice of such application for order and rule on each of the defendants, attaching to the said notice copy of proposed order and rule. This was done. The defendants did not appear.

The situation in each of these three cases is identical. There is an action by the mortgagee against the mortgagor for ejectment, upon default in the mortgage, as set forth in the complaint, for possession of the property. No foreclosure proceeding was instituted prior to the commencement of the action for ejectment.

Under paragraph 1 of an act concerning mortgages (3 Comp. Stat, p. 3408), the right of a mortgagee to bring an action of ejectment for the recovery of lands and estates mortgaged, is recognized, and the defendant, in such an action, namely, the mortgagor, is given the remedy, where an action, of ejectment shall be brought by any mortgagee, to pay to the mortgagee or to pay into court, the principal and the interest duo on the mortgage, and costs, and such payment is to be deemed and taken to be in full satisfaction and discharge of the mortgage.

It appears, therefore, that the right of a mortgagee to bring an ejectment action for the possession of the mortgaged premises upon default of the mortgage, is recognized by our statutes. This view is supported by the decisions.

Mr. Justice Brogan (now Chief Justice), in the case of Del New Co. v. James, 111 N. J. L. 157 (at p. 159); 167 Atl. Rep. 747, says:

“It is also well settled that a mortgagee, after default, may eject a mortgagor or those that hold under him, as in this ease, the defendant tenant.”

Section 48 of an act concerning mortgages (3 Comp. Stat., p. 3421), provides that all proceedings to collect a debt secirred by a bond and mortgage, shall be first to foreclose the mortgage. The late Chief Justice Beaslejg referring to this section in the case of Mershon v. Castree, 57 N. J. L. 484; 31 Atl. Rep. 602, said as follows:

“The statute does not deprive a mortgagee of any right, possessed by him prior to its passage, except the right to sue on his bond before foreclosure. The regulations of the act are thus expressed; viz., That in all cases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said debt shall be, first, to foreclose the mortgage/” &c. Sup. Rev., p. 490; Pamph. L., p. 6.

“But a proceeding to obtain possession of the mortgaged premises is not a ‘proceeding to collect the debt/ its object being to secure and protect the pledge. This is the view expressed in the books of the purpose of the mortgagee’s ejectment.

“The hardship that the statute was intended to alleviate was the seizure and sale of chattels of the mortgagor by virtue of the judgment on the bond, before • resorting to the land. No purpose is observed in it to abridge the right of the mortgagee beyond that measure. The statute must be construed strictly, as it is in derogation of the common law force inherent in a bond and mortgage.”

Mr. Justice Trenchard, in Hinck v. Cohn, 86 N. J. L. 615 (at p. 617); 92 Atl. Rep. 373, citing Sanderson v. Price, 21 N. J. L. 637, says:

“The mortgagee, after default, might have maintained ejectment against the mortgagor, and those holding under him.”

There is, apparently, some inconsistency in the opinions, as it appears to me. In Mershon v. Castree, supra, it is to be observed that Chief Justice Beasley said:

“But a proceeding to obtain possession of the mortgaged premises is not a ‘proceeding to collect the debt/ its object being to secure and protect the pledge.”

Mr. Justice Brogan (now Chief Justice), in Del New Co. v. James, supra, refers to the statement in the case of Leeds v. Gifford, 41 N. J. Eq. 464; 5 Atl. Rep. 795, of Vice-Chancellor Van Fleet, wherein the vice-chancellor said:

“Taking possession is simply a method of payment. It is one of the remedies a mortgagee may resort to to obtain payment of his debt.”

It seems to me, therefore, that a remedy to obtain payment of a debt, is a “proceeding to collect a debt,” and therefore section 48 of the act concerning mortgages should apply. It would seem to me, under the present economic exigencies of our times, that this should be the proper procedure to be followed, that the matter should be brought to the attention of the legislature. However, the authorities in this state at the present time, uphold the right to possession, even as against the mortgagor. See Price v. Armstrong, 14 N. J. Eq. 41; cases cited in 7 N. J. Dig. Mortgages, key ¶ 213; Marshall’s Executors v. Hadley, 50 N. J. Eq. 547; 25 Atl. Rep. 325; Stanton v. Metropolitan, &c., 107 N. J. Eq. 345, 348; 152 Atl. Rep. 653.

Therefore, the court must necessarily grant the orders.


author: Pabkek, J.

text:
    EDWARD J. O’BRIEN, PROSECUTOR, v. REGINALD C. S. PARNELL, DIRECTOR OF THE DEPARTMENT OF REVENUE AND FINANCE OF THE CITY OF NEWARK, AND THE CITY OF NEWARK, DEFENDANTS.
    Submitted December 12, 1933
    Decided December 20, 1933.
    Before Justice Pakkek, sitting alone, pursuant to section 5 of the Certiorari act.
    For the prosecutor, Hannoch & Lasser.

    For the defendants, Spaulding Frazer.

   Pabkek, J.

This is a certiorari to a proceeding before the director of revenue and finance of the city of Newark resting on charges made by said director against the prosecutor, O’Brien, of non-feasance in office as president and member of the board of assessment and revision of taxes of said city. The writ was allowed by me on October 20th, 1933, and in advance of any determination of the charges by the commissioner, on the theory that the jurisdiction of the director to act in the premises was fairly drawn in question. Mowery v. Camden, 49 N. J. L. 106; 6 Atl. Rep. 438; Croasdale v. Atlantic Q. S., 88 N. J. L. 506; 97 Atl. Rep. 285; 89 N. J. L. 711; 99 Atl. Rep. 1070; Public Service Railway Co. v. Camden, 95 N. J. L. 190.

Only two reasons are assigned:

The first goes to the jurisdiction of the commissioner on two grounds:

(a) That the act in Pamph. L. 1921, p. 880, is exclusive in matters of this kind; and

(b) That if any power lies in the municipal authorities, it is in the entire board of commissioners and not with the director of revenue and finance.

The second ground is that the charges made are vague and indefinite and, even if true, are not sufficient in law to warrant the removal of prosecutor from his office.

It may be that this second ground need not be considered though I have given consideration to it. But if there be jurisdiction, it would seem that the question raised by this second reason should be first determined by the commissioner subject to review and perhaps to amendment of the charges; while, on the other hand, if there be no jurisdiction that naturally ends the matter.

Before taking up the question of jurisdiction, it is proper to consider a flank attack by prosecutor on the right of the commissioner, as such, to be represented by counsel of his own choosing. The argument is that by the act of 1920 (Pamph. L., p. 117), establishing a law department in cities of the first class, it is provided “that the corporation counsel shall be chief law officer of the city, and attorney or solicitor of record in all court proceedings wherein the city or any of its officers, boards, bodies or commissions, by reason of any suits growing out of their official position shall be a party.” It is stated in the brief that the city counsel, who does not appear before me in this case, has given as his opinion that the proceeding by the commissioner is not warranted in law, and that the counsel employed by him has no right to act in this litigation in any capacity. But apart from the fact that the act goes no farther than to provide that the city counsel shall be attorney of record in such proceedings, I think that whatever his opinion may be, there is usually another side to the question which the court is entitled to consider and on which it is entitled to the aid of counsel. Mr. Frazer is therefore recognized at least, for present purposes, as an amicus curice. In that situation it is unnecessary to decide the point raised.

The next point property to be considered is that by the act of 1921 (Pamph. L., p. 800), the legislature has provided machinery for the rémoval of assessors, viz., by the action of the Supreme Court, “or one of the judges thereof,” upon complaint, order to show cause, and hearing. On a finding of guilt and consequent removal, or on a resignation in the face of charges filed in the court, the party accused shall be ineligible for five years to hold such office. This unusual act, approved April 9th, 1921, followed hard upon the decision of the Supreme Court in Hewson v. Newark, 95 N. J. L. 28; 111 Atl. Rep. 497, in October, 1920, and affirmance thereof February 28th, 1921. 95 N. J. L. 544; 112 Atl. Rep. 498. The act of April 9th appears to be modeled somewhat upon section 11 of the County Board act (Pamph. L. 1906, p. 210—at p. 216), conferring powers of dismissal on the state board of equalization upon complaint by a county board. Each appears to be a sort of legislative short cut aimed at the removal of an assessor who “shall willfully or intentionally fail, neglect or refuse to comply with the constitution and laws of this state relating to the assessment and collection of taxes.” Section 11 of the act of 1906 was not noticed by the Supreme Court in the Hewson case. It is suggested that the court deemed it unconstitutional as not within the title of the County Board act. Brrt this cannot be assumed; and it is fully as reasonable to assume that the court, presumed to be aware of that act, regarded it merely as a parallel but not exclusive method of dismissing an assessor, and running side by side with the later powers of municipal commissions created by the Walsh act of 1911 and its supplements and amendments. There is nothing in the act of 1921 to indicate that the method therein provided is to be exclusive; and I am unwilling so to hold. If the Supreme Court is to operate as a court of impeachment, the intent of the legislature in that regard should be perfectly plain. I conclude therefore that the Walsh act in this aspect remains in force notwithstanding the act of 1921, and that its provisions are not inconsistent wilh that act.

The next point is that even under the Walsh act the power of removal is vested in the whole board, and not in the appropriate individual commissioner. But this seems to fly in the face of the line of cases led by Foley v. Orange, 91 N. J. L. 554; 103 Atl. Rep. 743, the latest of which seems to be Post v. Anderson, 11 N. J. Mis. R. 1; 163 Atl. Rep. 666, appeal dismissed, but with discussion on the merits, 111 N. J. L. 303; 168 Atl. Rep. 622; Seaman v. Strollo, 105 N. J. L. 570; 146 Atl. Rep. 331, and similar cases are in nowise to the contrary as they relate to the original power to appoint. To the suggestion that “the appointments of an entire board can be defeated in a short time by the action of any (sic) individual commissioner,” it seems sufficient to say that removal is had only on charges and a proper hearing subject to review on certiorari. The incumbent is therefore fully protected against any arbitrary interference with his tenure.

Finally, in the language of reason 2, that “the charges * * * are vague and indefinite and even if true, are not sufficient in law to warrant the removal of prosecutor from his aforesaid office.”

I have examined them, and without going into details, am satisfied that they contain quite enough merit to justify the commissioner in acting, if substantiated by evidence. Generally speaking, the charge is that prosecutor has been and is enjoying the emoluments of a public office requiring the expenditure of a great deal of hard work, without any substantial effort to perform the duties of that office.

I have not stopped to consider whether inertia and nonfeasance are properly to be classed as “willful or intentional failure, neglect or refusal to comply with the constitution and laws of this state relating to,” &c., though much might be said to the contrary.

The writ is dismissed, with costs.


author: Kosenstein, J.

text:
    Second District Court of the City of Paterson.
    ANNIE BROWN, INDIVIDUALLY AND EXECUTRIX OF THE LAST WILL AND TESTAMENT OF MEYER BROWN, DECEASED, PLAINTIFF, v. STEIN-JOELSON BENEVOLENT ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided January 4, 1934.
    Por the plaintiff, Michel, Bernstein & Appel (Jacob L. Bernstein, of counsel).
    Por the defendant, Meyer W. Stein.

   Kosenstein, J.

Plaintiff sues, as the widow of Meyer Brown, for $400 death benefit, which the defendant society paj's to the widow of each deceased member for funeral expenses, and $100 for a burial grave, which defendant failed to supply her testator. Meyer Brown, who died December 26th, 1932, had paid no dues since January of that year.

Defendant resists this action because of the provisions of article 15, section 11 of the by-laws of the society: “Any member in arrears for more than a period of two quarters, shall not be entitled to any benefit excepting a burial grave.”

Plaintiff argues that, because, as is conceded, defendant took no formal action looking toward the suspension or expulsion of Meyer Brown, she is entitled to recover in this action. Formal action by defendant as a prerequisite to depriving him of the death benefit, however, was necessary only (1) if the cause of suspension or expulsion was one as to which a member could present a defense (Berkhout v. Supreme Council, 62 N. J. L. 103; 43 Atl. Rep. 1)—or (2), if the bylaws of the organization provided for such formal action by the society as a prerequisite to suspension or expulsion. Supreme Lodge v. Eskholme, 59 N. J. L. 255; 35 Atl. Rep. 1055. Even if the ground of such suspension or expulsion is one as to which a member could present a defense, and the by-law providing therefor fails to provide the member with an opportunity of defending himself against the charge upon which the expulsion is based, so that ordinarily the proceeding is void, nevertheless, it has been held that expulsion under such circumstances will be sustained where it conclusively appears that the member could not possibly have derived a benefit from a hearing, had he been given one. Berkhoul v. Supreme Council, supra.

Whether or not Meyer Brown lost his death benefit in the defendant society depends upon whether or not the provision of article 15, section 11 of the by-laws is self-executing.

“The laws of some societies in regards to the suspension or expulsion of members are couched in such terms as to render them self-executing, in which case a society need not take affirmative action against a delinquent or offending member, but his membership is lost immediately upon the occurrence of the act or default, which by the rules of the society, constitutes grounds for suspension or expulsion. This is usually the case with regard to the suspension or expulsion for the failure to pay dues and assessments within the prescribed time, and accordingly, under the laws of many societies no affirmative action on the part of the society is necessary in order to terminate the membership of the defaulting member.” 7 Corp. Jur. 1101.

In O'Keefe v. Barry Benevolent, &c., Association, 74 N. J. L. 435; 66 Atl. Rep. 601, the by-laws provided that no member of the association should be allowed sick benefits unless he was clear of all debts on the books of the association. The Supreme Court, per Mr. Justice Trenchard, said: “If, CPKeefe, who was a member, was not clear of all debts on the books of the association at the time the suit for sick benefits was started, said indebtedness would have been a complete defense to that action under article 21 above mentioned.”

Plaintiff contends that her decedent was expelled—and that since no notice was given him and no opportunity to defend himself, such action is invalid to deprive him of his death benefit. This contention is nnsonnd. There was no expulsion. The only question is whether decedent lost his death benefit because of section 11, article 15 of the by-laws, or whether its effect was suspended by virtue of some other provision of the by-laws.

Some difficulty occurs in cases such as the one at bar by reason of the fact that membership in fraternal organizations includes two classes of rights: (1) sick or death benefits, which are property rights and (2) the fraternal, social or other benefits of membership, which are not property rights. Johnson v. Grand Lodge, 81 N. J. L. 511; 79 Atl. Rep. 333. Usually, provision is made for affirmative action on the part of the association, before a member can be deprived of his membership. Failure to take such affirmative action, i. e., failure to give notice and/or conduct a hearing, means that the member still retains such status. On the other hand, the member is usually deprived of his right to benefits, ipso fado, and without requiring any affirmative action by the association. This distinction was illustrated in Ostman v. Supreme Lodge, &c., 85 N. J. L. 86; 88 Atl. Rep. 949 (opinion per Mr. Justice Trenchard) :

“The by-laws of the order prohibit members of the relief fund from engaging in any of the following occupations: Bartenders, saloon keepers, hotel proprietors who personally dispense spirituous or malt liquors, &c.—and further provided that if any member shall engage in any such prohibited occupation, the membership of such person and all rights and benefits thereunder shall thereby be forfeited and the relief fund certificate shall become null and void, and he or she shall be liable to trial therefor as for an offense and upon the conviction thereof, shall be expelled from the order.

“The contract, as thus constituted, it will be seen, deals with two classes of rights, namely, the right to membership in the order and the rights to the benefits of the relief fund. By it, when a member engages in a prohibited occupation, two things result, namely: (1) the relief fund certificate becomes null and void atomatically; and (2) suspension from the order upon conviction of the offense.

“That the provision rendering void the relief fund certificate is self-executing, without trial, conviction and expulsion is made quite plain * * *.”

Each case must be decided upon a construction of the constitution and by-laws of the society involved. Sometimes the language of the by-laws and application of the association, may be such as to. show that procedure for expulsion is a condition precedent not merely to ending the membership status of the party concerned, as in the case last cited, but also to terminating his property rights in the sick and death benefits of the association. Where this occurs, plaintiff is entitled to recover sick or death benefits, unless defendant has taken the affirmative action required. This was the situation in the case of Antrim v. Telegrapher's Benevolent Association, 93 N. J. L. 213; 707 Atl. Rep. 458. Section 608 of the bylaws of the defendant association provided that, upon the death of a member, an assessment of $1 should be levied upon each surviving member, and in case payment should not be made within thirty days thereafter, the delinquent member was to forfeit all claims and membership to the society. Obviously, therefore, the forfeiture did not occur until thirty days after the assessment of $1 was levied. An assessment is not levied until notice of it was given to the member. Otherwise, obviously there would be a danger of a member, absent from the meeting voting the assessment being ignorant’thereof, so that he would naturally not pay. To prevent this, it was concluded that personal notice must be given to him. Consequently, the provision for loss of death benefits was held not self-executing.

Plaintiff also relies upon Eckert v. Star of Elizabeth Council, No. 37, 95 N. J. L. 248; 116 Atl. Rep. 708. In that case also, the express language of the bjr-laws made affirmative action by the association a condition precedent before the member could be deprived of sick or death benefits. This is the reasoning upon which the Court of Errors and Appeals came to its conclusion:

“The point that the benefit was forfeited by default in payment of dues we think is also without substance. The claim is that after thirteen weeks’ default in dues the member is, under the by-laws, automatically suspended and benefits ceased until all arrears, both those which led to the alleged automatic suspension and those occurring afterwards, are paid up and the account is absolutely clear and has so continued for four weeks; and that the deceased member in fact became thirteen weeks in arrears and never squared the account until two days before her death. The facts are correctly recited but do not lead, on our view of the by-laws, to the result claimed. Article 7, section 10, reads: ‘This council shall require a member who has become thirteen weeks or more in arrears for weekly dues, to pay the entire amount due and stand suspended from sick and death benefits for the space of four weeks after the entire amount of arrearages has been paid.’

“Section 1 of article 10 is to the same effect, and section 2 provides for a report of arrearages to the council, notice by mail to the member, and declaration of suspension in open council was required to effect a suspension, and apparently none was taken.”

Here, once again, is a provision that is not self-executing, because, before suspension could occur, affirmative action by the association was required, namely, declaration of suspension in open council.

Plaintiff further relies upon the case of Bushko v. First Uhro, &c., Society, 106 N. J. L. 504; 148 Atl. Rep. 724. In that case, the by-laws of the defendant provided:

“Any member who has not paid his dues for a full three months shall not receive the sick or death benefit provided for in the by-laws and is no longer a member,” but this was modified by the application for membership, which contained the following statement:

“In case of any disaster happens to me, I will not claim any benefit if I be three months in arrears. If I be notified by registered letter sent by the secretary of the society, and if I do not then settle my accounts, I shall be expelled from the society. If I settle my accounts after being notified by the secretary of the society, I shall pay the fine of twenty-five cents for the trouble caused to the society by me.”

Thus it will be seen that a condition precedent to the expulsion of a member was created, whereby an opportunity was given to a member, before being expelled, to settle his accounts. In other words, it was incumbent upon the society to give the member notice by registered mail, that he might avail himself of this opportunity. This was the gist of the charge of the trial court to the jury, and the charge was approved and upheld bjr the Court of Errors and Appeals. Since the loss of death benefits followed a failure to pay dues, and since a further opportunity to pay dues was given the defendant, by requiring notice to him of his indebtedness before expulsion could occur, it was a fair conclusion to say that notice of his indebtedness was a condition precedent not only before he could be deprived of his membership, but also before he could be deprived of his sick or death benefits. Because by one act, payment of dues in arrears, the defaulting member could preserve both his property right and membership status in the society, it was fair to hold that the requisite notice was a condition precedent to the loss of either right. Hence, the provision was not self-executing.

There is no such condition precedent in the case at bar. It is true that another section of the by-laws, to wit, article 5, section 3, reads as follows:

“The financial secretary shall keep a correct account, call the members to every meeting by postal card, two meetings before the end of the quarter to send enclosed letters to each and every member, stating their indebtedness to the society, at the first meeting of the quarter to announce and list members in arrears from the last quarter, to send registered letters by resolution of the society, to members in arrears.”

This provision of the by-laws simply lists the duties of the financial secretary, a ministerial officer. Nowhere does it tie up, as in the case of Bushko v. First Uhro, &c., Society, supra, with the provision respecting loss of death benefits. Nowhere, in the case at bar, is the provision for loss of death benefits for non-payment of dues qualified by the provision implying that the action of this section is to be stayed until after a member has had notice. There is a provision that notice of non-payment shall be given by the secretary, but there is nothing to say that until a notice is given and until further default, shall the effect of the clause terminating the death benefit be held in abeyance.

It is true, as contended by plaintiff, that “forfeiture in instruments of this class, dealing with property rights, are not favored, and constructions of written instruments of that character against such result will be preferred, if the instrument will bear it rather than the adoption of an interpretation giving the opposite effect.” Johnson v. Grand Lodge, supra.

However, unless the by-laws, by a reasonable construction, can be held to preserve the property right of a member, such rights will be held to have lapsed. Otherwise, the court would be making a new contract for the parties. In Antrim v. Telegraphers' Benevolent Association, supra, in Eckert v. Star of Elizabeth Council, No. 37, supra, and in Bushko v. First Uhro, &c., Society, supra, the court could rule against a forfeiture of the death benefits involved, because although the by-laws provided for a lapse of such rights upon non-payment of dues or assessments, nevertheless, such clause had to be read in the light of other provisions in the by-laws expressly providing for some affirmative action by the association before loss of rights by the members. Where, however, there was no such limitation upon the society, as in O'Keefe v. Barry, supra, and in Ostman v. Supreme Lodge, supra, it was held that the provision for loss of sick or death benefits was self-executing, and the member was held to have lost such rights ipso facto by the non-payment of dues.

Plaintiff is entitled only to the sum of $100, the amount paid for a grave, and which, even though her decedent was in arrears as to his dues, defendant should have furnished.


author: Youngelson, J.

text:
    Second District Court of Morris County.
    WASYL TABAKA, PLAINTIFF, v. ROBERTA HAMILTON GERARD, DEFENDANT.
    Decided January 10, 1934.
    For the plaintiff, Lyman M. Smith.

    For the defendant, King & Vogt (Elmer S. King, of counsel).
   Youngelson, J.

This action was brought by the plaintiff to recover damages for the loss of his horse by reason of the horse having been struck by the defendant’s automobile upon a public highway.

It appears that on June 22d, 1933, at about nine o’clock in the evening, the plaintiff was conducting two horses from his barn on one side of the public highway across the highway to a pasture lot owned by him on the opposite side of the said highway and one of the horses stopped along the side of the highway to graze while the plaintiff conducted the other horse into the pasture field. On his return across the highway to get the horse which had stopped to graze, defendant’s car, being driven at a fast rate of speed, struck and injured the horse from which injuries the said horse subsequently died.

It is contended by the plaintiff that he saw the approach .of defendant’s automobile and that he waved and shouted to the defendant to stop or slow down because, as he testified, he “was afraid the horse might cross the road and be struck.”

The defendant testified that she had observed no warning given by the plaintiff and did not see the horse until just immediately before the impact and that the horse jumped right out in front of her automobile.

The road was thirty-three feet wide. The horse was grazing five inches from the right-hand side of the road and on the side in which the defendant’s automobile was approaching.

It is contended by the plaintiff that the fact that the horse was left unattended upon the highway and unfastened, in violation of the statute, article 4, chapter 281 of Pamph. L. 1928, is not per se negligence. Plaintiff argues that although he was negligent, nevertheless, the act of the defendant in violating the speed limit allowed by law and in violating the warning given to her by the plaintiff, should permit recovery by the plaintiff in view of the faulty act of the plaintiff not being in a legal sense the contributory cause of the accident.

The court has no argument with the rule of law that the violation of the Traffic act or any ordinance does not in itself constitute negligence. Citations are numerous to this effect.

It is difficult for the court to understand why, if the horse was over on the extreme edge of the road, as testified by the plaintiff, it was necessary for the plaintiff to wave to the defendant to stop her automobile. Certainly, the impact between the defendant’s automobile and plaintiff’s horse must have been imminent to have warranted such action on the part of the plaintiff. If such were the case, the horse was either more or less in the road and directly in the path of the oncoming car being driven by the defendant, or it had darted out in the path of the automobile. Had the horse been bridled or roped, the plaintiff could have more easily held the horse back and directed its course, thereby preventing the accident.

Article 4 of chapter 281 of Pamph. L. 1928, known as the Traffic act, provides (section 3) that "no horse shall be left unattended in any highway unless securely fastened * * Section 4 of said act provides "no horse shall be unbitted in any highway unless secured by a halter.” Section 10 of the said act provides “no person shall cease to hold the reins in his hands while riding, driving or conducting a horse.”

It is a matter of common knowledge that some horses are frightened by the noises of motor vehicles. A careful perusal of the above sections of the Traffic act convinces the court that the legislature undoubtedly had this thought in mind when enacting these particular sections of the Traffic act, for it carefully provided for the attention or fastening of horses, at all times when they are upon the public highway.

Plaintiff had testified that he was afraid the horse might cross the road. He had, thereby, expressly stated his own fear for the horse’s safety, which fact bears out the court’s conclusion in this regard.

Plaintiff cites State (Menger et al.) v. Lauer, 55 N. J. L. 205; 26 Atl. Rep. 180, for the proposition that if “the faulty act of the plaintiff merely presents a condition under which the injury was received, and was not, in a legal sense, the contributory cause thereof, then the sole question will be whether, under the circumstances, and in the situation in which the injury was received, it was due to the defendant’s negligence.” But the court goes on to state immediately following the above quotation (26 Atl. Rep.—at p. 184) : “But if the plaintiff’s negligence proximately—that is, directly—contributed to the injurjr, it will disentitle him to a recoveiy, unless the defendant’s wrongful act was willful or amounted to an intentional wrong.”

It cannot be stated as a matter of fact that the defendant’s wrongful act in the instant case was either willful or that she knew of the presence of the horse upon the highway or had received plaintiff’s warning so that her act can be construed as an intentional wrong.

There can be no question of the fact that the defendant was traveling at a fast rate of speed, exceeding the speed limit allowed by law. But, as has already been stated, the violation of the statute is not of itself conclusive evidence of negligence. The act of the defendant must be the proximate cause of the accident. That is, there must have been no intervening, culpable or efficient agency to break the chain of causation and there must be no negligence by any other person and no other intervening elements, except natural and casual ones.

The plaintiff’s act in permitting his horse to be unattended and unfastened upon the highway, directly contributed to the animal’s injuries from which it subsequently died. It was, as Mr. Justice Minturn stated in Marshall v. Suburban Dairy Co., 96 N. J. L. 81; 114 Atl. Rep. 750, “the act of the defendant who negligently let loose the cause of the danger and thereby made the damage possible.”

In Dennery v. Great Atlantic and Pacific Tea Co., 82 N. J. L. 517; 81 Atl. Rep. 861, it was held that “it is prima facie evidence of negligence for a person to permit his horse attached to a wagon to go out upon a public street without anyone driving or other person in charge. That a horse under such circumstances, finding itself without anyone’s guidance or control, should soon commence running, is the result of both its nature and of its training. Its nature is to frighten at unusual sounds and sights and to run away from them.” This principle has been cited with approval on many occasions. See Hosking v. Isaacson, 1 N. J. Mis. R. 291; Tietje & Christ v. Catalona, 88 N. J. L. 63; 95 Atl. Rep. 733; Kakoll v. Brohn & Buhl Lumber Co., 77 N. J. L. 169; 71 Atl. Rep. 120; Francois v. Hanff, 77 N. J. L. 364; 71 Atl. Rep. 1128.

In State (Menger et al.) v. Lauer, supra, the plaintiff had set up a surveyor’s instrument in the public road and had left it without anyone in attendance. The defendant was driving slowly along the highway looking at some houses on the, side of the street, for the roofing of which he had contracted, to see whether the slaters were getting them finished. The street was unobstructed except by the plaintiff’s instrument. The defendant did not see the instrument and he had no reason to expect to encounter any obstacle of that or any other character upon the highway. On motion by the defendant’s attorney in the lower court, a nonsuit was granted and on appeal to the Supreme Court, it was held that the nonsuit was proper and that judgment should be affirmed, for the plaintiff was guilty of contributory negligence, such as dis-entitled him to a recovery.

“In this state,” says M. Justice Depue (at p. 184), after considering the doctrine advanced by the plaintiff in the instant case, “the established rule is that if the plaintiff's negligence contributed to the injury, so that, if he had not been negligent, he would have received no injury from the defendant's negligence—the plaintiff’s negligence being proximately a cause of the injury—he is without redress, unless the defendant's act was a willful trespass, or amounted to an intentional wrong; and in such ease the comparative degree of the negligence of the parties will not be considered.”

In the instant case, the act of the plaintiff in permitting his horse to be unattended and unfastened upon a public highway, directly contributed to the accident so as to disentitle him to a recovery.

Judgment will be entered of no cause for action.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MICHAEL CAMMARATA, SAMUEL MARCELLO AND FRANK VIZZINI, PLAINTIFFS IN ERROR.
    Submitted May 2, 1933
    Decided January 9, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heheb.
    For the plaintiffs in error, William A. Moore and Joseph J. Felcone.

    For the state, Erwin E. Marshall, prosecutor of the pleas, and Augustine V. Gribbin.

   Per Curiam.

This writ of error brings up for review the conviction of the defendants below upon an indictment charging that they, “having in their possession a certain offensive weapon, to wit, a sawed-off shotgun, loaded with gunpowder and shot, did then and there by night, willfully and maliciously break and enter the garage of August Marcello, with intent the goods and chattels of the said August Marcello, in the said garage then and there being found, feloniously to steal, take and carry away;” &c.

The assignments of error and specifications of causes for reversal are identical, and will now be considered.

We think there was no error in the rulings of the trial court on the admission of evidence as to the presence of many cans or drums of alcohol in the garage into which the defendants were alleged to have broken with intent to steal, and as to the amount thereof, and as to what was done with it by the police at the time of the arrest of the defendants at the garage.

The objection was that the evidence was immaterial and irrelevant. But the intention to steal being a material and essential element of the offense, any evidence of the contents of the garage that might be the object of theft is certainly relevant to the issue of intent to steal and material to the charge in the indictment.

The defendants argue that inasmuch as this testimony tended to show the commission of another offense, its admission was erroneous. But there is no merit in that contention. The defendants were being tried for a violation of section 2 of chapter 321 of Pamph. L. 1927, and the evidence being admissible on that charge it was immaterial whether or not the evidence tended to prove another crime. State v. Catania, 102 N. J. L. 569; 134 Atl. Rep. 110. With respect to the evidence referred to in the second assignment of error it is sufficient to point out that the question objected to by the defendants was a proper question and the answer thereto was permitted to stand without objection by the defendants, and without any motion to strike it out as irresponsive.

We think there was no error in admitting in evidence the shotgun and shells. The indictment alleged that the defendants did break and enter “having in their possession a certain offensive weapon, to wit, a sawed-off shotgun, loaded with gunpowder and shot.” That allegation was in conformity with section 2 of chapter 321, laws of 1927, page 743, which reads in part as follows:

“2. Any person who shall commit or attempt to commit any assault, robbery, larceny, burglar}1-, or breaking and entering, when armed with, or having in his possession, any revolver, pistol or other firearm, or other instrument of any kind known as a blackjack, slungshot, billy, sandclub, sandbag, bludgeon, metal knuckles, dagger, dirk, dangerous knife, stiletto, bomb or other high explosive,” shall be punished, &c.

The state produced evidence from which the jury might reasonably infer that the shotgun was in the possession of the defendants. It tended to show that when the police officers apprehended the defendants, the defendants were in the act of carrying out alcohol from the garage; that the garage was in darkness, but the shotgun was seen on a drum of alcohol in the garage; that as Officer Sigafoos picked up the gun, the defendant Cammarata said, “look out, that is loaded, let me unload it;” that the gun was then unloaded and found to contain two shells.

Defendants argue that it was a physical impossibility for the three defendants to have possessed the gun. The answer to this is that it was open to the jury to find that the defendants had this weapon in their possession when perpetrating the offense denounced by the statute.

We think there was no error in the court’s refusal to grant defendant’s motion to direct an acquittal at the close of the state’s case, and at the end of the entire case. The recognized rule is that if there is any legal evidence before the jury from which an inference of guilt can be legitimately drawn, the direction of an acquittal would be improper. State v. Bricker, Jr., 99 N. J. L. 521; 123 Atl. Rep. 297. Here there wras such evidence. The jury might well have inferred and no doubt found from the testimony of the officers as to the condition of the lock and the operations of the defendants that there was a breaking; that the breaking and entering took place in the night time about six-twenty-five p. m. ; that it vras dark when the officers surprised the defendants preparing to remove the alcohol from the garage.

We think there was no error in the admission of the testimony of Lieutenant Sigafoos, relating prior inconsistent oral statement of the defense witness, August Marcello. The record discloses that a proper foundation was first laid by directing the attention of the witness to such alleged inconsistent statement and inquiring whether he made it; and, of course, in such case proof of the inconsistent statement was justified for the purpose of affecting his credibility. State v. Pitman, 98 N. J. L. 626; 121 Atl. Rep. 597.

We think there was no error in the charge of the court that the state must prove, beyond a reasonable doubt, certain es,sential elements of the crime charged, among which was-“Fifth: That both the breaking and entering was made with the intent feloniously to steal.”

That was clearly right.

The defendants say that the court failed to add to the above the words: “The goods and chattels of the said August Mar-cello.” But that had been theretofore charged in effect.

Moreover in an indictment such as this it has been held in-effect that it is not essential to allege or prove the ownership-of the goods which were the object of the intent to steal. Thus in State v. Fisher, 40 N. J. L. 169, it was said:

“The statement in the indictment as to the ownership of the building alleged to have been entered, and of the goods which were the object of the intent to steal, is mere description for the purpose of identification. The offense against societjr, at which the statute is aimed, is the willful and malicious breaking and entering into any building with intent to commit any of the crimes specified.”

In 9 C. J. 1051, it is said: “As a rule, an indictment or information for burglary with intent to commit larceny need not describe the particular goods which defendant intended to steal, nor allege their value or ownership; and according to a number of decisions, if ownership of the goods is alleged, it is an immaterial part of the description which need not be proved.” See, also, State v. Washington, 8 N. J. Mis. R. 916; 152 Atl. Rep. 445.

We cannot say that the verdict was against the weight of the evidence. Hone of the defendants took the witness stand to explain or deny the testimony from which the jury could as they did find guilt, and there is nothing to indicate that the verdict was the result of prejudice, passion, partiality or mistake.

The judgment will be affirmed.


author: Lawrence, C. G. J.

text:
    BESS HOLDING CORPORATION, A BODY CORPORATE, AND THE CITY MORTGAGE COMPANY, BODY CORPORATE, PLAINTIFFS, v. IMPORTERS AND EXPORTERS INSURANCE COMPANY OF NEW YORK, A BODY CORPORATE, DEFENDANT.
    Decided December 14, 1933.
    For the plaintiffs, Charlas H. Stewart.

    For the defendant, Arthur T. Vanderbilt.

   Lawrence, C. G. J.

This suit was submitted to the court at the Monmouth Circuit, without a jury, for determination on the law and the facts. On May 31st, 1927, one Walter Tarasovis mortgaged certain premises on the easterly side of Bowyer avenue, in the city of Long Branch, for $4,500. On June 17th, 1927, the defendant company insured the dwelling house thereon against loss by fire in the amount of $5,000, payable to Tarasovis as owner and The City Mortgage Company as mortgagee, as its interest might appear, under a standard New Jersey mortgagee clause, as follows:

“Loss or damage, if any, under this policy, shall be payable to The City Mortgage Company, as such mortgagee (or trustee) as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within-described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same.

“Provided also, that the mortgagee (or trustee) shall notify the company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee), and, unless permitted by this policy, it shall be noted thereon and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise this policy shall be null and void.

“This company reserves the right to cancel this policy at any time as provided by its terms, but in such case this policy shall continue in force for the benefit only of the mortgagee (or trutsee) for ten days after notice to the mortgagee (or trustee) of such cancellation and shall then cease, and this company shall have the right, on like notice, to cancel this agreement.

“Whenever this company shall pajr the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owner, no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may at its option, pay to the mortgageee (or trustee) the whole principal due or to grow due on the mortgage with interest, and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of their claim.”.

On October 20th, 1927, The City Mortgage Company assigned its mortgage to Sarah E. Forman, and the policy of insurance was endorsed payable to her as her interest might appear. On February 11th, 1928, Walter Tarasovis sold the premises to Milicent F. Lawrence, and there was no endorsement of change of ownership on the policy. On May 6th, 1930, Sarah E. Forman reassigned the mortgage to The City Mortgage Company. This assignment was not recorded. On June 17th, 1930, the policy was renewed for three years from that date, recit—Waiter Tarasovis as owner, with standard mortgage clause attached, making loss payable to The City Mortgage Company, as mortgagee, as its interest might appear. On March 12th, 1930, the company had filed its bill in the Court of Chancery to foreclose the mortgage, so that at the time the renewal policy was issued, the proceedings were under way in that court. Final decree was entered in due course, and on July 25th, 1930, a sheriff’s deed conveying the premises to The City Mortgage Company was delivered. The defendant insurance company was not formally notified of this conveyance. On July 30th, 1930, the mortgage company sold the premises to the plaintiff Bess Holding Corporation, and on the same date this corporation executed and delivered its bond and mortgage to secure the payment of $4,500 to the mortgage company. The insurance company had no actual notice of either of those transactions; no endorsement thereof was made on the policy or addition made thereto, nor did the mortgage company notify defendant of the transfer of title from Tarasovis to Lawrence, or of its own conveyance of the property to the holding corporation. On April 9tb, 1931, the dwelling house covered was destroyed by fire. Proofs of loss were filed by the holding corporation as owner and by the mortgage company as mortgagee. Defendant refused to pay because of the circumstances involved, whereupon the present suit was brought.

The original policy issued by the defendant company, likewise the renewal, contained this provision:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall he void * * * if the interest of the insured be other than unconditional and sole ownership, or if * * * with the knowledge of the insured foreclosure proceedings he commenced or notice given of sale of any property covered by this policy, by virtue of any mortgage or trust deed; or if any change other than by death of an insured take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard)

It is sufficient to say that so far as the plaintiff Bess Holding Corporation is concerned it can take no benefit or advantage under the policy involved in the present suit. It is nowhere mentioned in it and not only this policy but that of which it was a renewal became void. The original-when the transfer of title from Tarasovis to Lawrence took place, without the assent or consent of the insuring company endorsed thereon or added thereto, and the renewal for the same reason, supplemented by the fact no such assenting endorsement was made thereon or the consent of the company added thereto as to the conveyance of the property by the mortgage company to the holding corporation. Grunauer v. Westchester Fire Insurance Co., 72 N. J. L. 289; 62 Atl. Rep. 411; Hanson v. National Liberty Fire Insurance Company of America, 100 N. J. L. 215; 126 Atl. Rep. 453, and Levin v. State Insurance Co., 105 N. J. L. 422. This plaintiff must therefore submit to a directed verdict in favor of defendant. At the- trial, it was not seriously argued to the contrary.

While I conclude that the same result must follow as to the plaintiff mortgage company, it is based on the additional reason that it not only breached the contract between it and the insurance company, but that it placed itself in the position of being unable to comply with another of its terms, that is to say, after the fire, it could not subrogate the insurance company to the same mortgage interest which the latter had insured in either the original policy or the renewal.

Both of the policies were void for the reason heretofore indicated, and while the standard mortgagee clause attached to a fire insurance policy is construed as an independent contract between the insuring company and the mortgagee (Reed v. Firemen’s Insurance Company of Newark, 81 N. J. L. 523; 80 Atl. Rep. 462) and the latter is not affected by the dereliction or neglect of the mortgagor, it does not follow that such independent contract can itself be breached by the mortgagee and the benefit-thereof still be retained, upon the theory that the violation of a condition in a policy of insurance, which works a forfeiture, merely suspends the insurance during the violation and that if the violation is discontinued during the life of the policy and is non-existent at the time of the loss, the policy revives, the insurance is restored, and the insurer is liable, although it never consented to a violation of the conditions of the policy, and such violation is such that the insurer could, had it known it at the time, have declared a forfeiture. Germania Fire Insurance Co. v. Turley, 179 S. W. Rep. 1059. It was here so argued in behalf of the plaintiff mortgage company.

The circumstances of the present case do not appear to justify the application of any such theory, however. The plaintiff company foreclosed its mortgage and bought in the property covered at the sheriff’s sale. Had it chosen to retain the title so acquired, no violation of the insurance contract, as to the mortgagee’s interest, would have been involved. Employers’ Fire Insurance Co. v. Ritter, 112 N. J. Eq. 418; 164 Atl. Rep. 426. But it proceeded to convey the premises to a third person—the holding corporation without informing the defendant thereof and obtaining the required endorsement, and to take from the purchaser a new mortgage, likewise without the formal consent of the insuring company. It is true that the mortgage was for the same amount as the old one covered by the mortgagee clause attached to the policy in suit, yet it seems to me that a new status was created by plaintiff’s own act not contemplated or permitted by the insuring contract.

2 Joyce on Insurance (ed. 1917), 2118, § 1036), carries the text: “If a policy is made payable to a designated mortgagee, as his interest may appear, it covers only such interest as he had at the issuing of the policy, and cannot entitle him to indemnity for loss suffered because of further loans made by him and secured by mortgages on the insured property.” Citing Attleborough Savings Bank v. Security Insurance Co., 168 Mass. 147; 46 N. E. Rep. 390, holding that under a policy payable in case of loss to a mortgagee as his interest may appear, and containing provisions that no act of anyone else shall defeat the right of recovery in the mortgagee, and giving the insurer in case of a loss, for which it is not liable

to the mortgagor, the right, at its election, to pay the amount of the mortgage and receive an assignment thereof, when the mortgagor has forfeited his right to the insurance by a transfer of the property, the mortgagee can recover on a loss only the amount due on the mortgage which he held when the-contract was made and must be able to subrogate the insurer to the security as it then existed, if demanded. In Macomber v. The Cambridge Mutual Fire Insurance Co., 8 Cush.(Mass.) 133, it was said: “If therefore the mortgage is paid,, foreclosed or otherwise discharged and extinguished, such separate and collateral promise (as to insuring the interest) to pay the mortgagee would be determined.” In New Jersey,, however, this statement must be qualified as to the foreclosure-of the mortgage and the acquiring of the title by the mortgagee, without disposing of it to a third person, by the rule-indicated in Employers’ Fire Insurance Co. v. Ritter, supra. As to the restrictive nature of an indemnity contract between the insuring company and a mortgagee, see Kase v. The Hartford Fire Insurance Co., 58 N. J. L. 34; 32 Atl. Rep. 1057;. Weinberger v. Agricultural Insurance Co., 80 N. J. L. 202; 76 Atl. Rep. 343, and Kupfersmith v. Delaware Insurance Co., 81 N. J. L. 664; 80 Atl. Rep. 561. If, as was held in the-latter case, an assignment of a mortgage would not carry to the assignee the contract of indemnity made by the insuring company with the mortgagee without the consent of the company to the transfer, then it would seem that such consent would also be required in a case where the mortgagee acquired the-title to the property covered, conveyed it to a third person and takes in return a purchase-money mortgage, in order that such new interest may be legally brought within the protection of an unexpired indemnity contract.

Since the plaintiff mortgage company failed to make known to defendant the transfer of title of the property involved, under the terms of the mortgagee clause attached to the renewal policy, which policy was void as to the plaintiff holding-corporation to which the conveyance was made, and also as to-the execution of the new mortgage, the conclusion is that judgment in favor of defendant and against the plaintiffs of no cause should be entered.


text:
    CITY OF NEWARK, PROSECUTOR, v. ESTHER TIMER AND STATE BOARD OF TAX APPEALS, RESPONDENTS.
    Argued May 3, 1933
    Decided January 17, 1934.
    Before Brooax, Chief Justice, and Justices Treno hard and Hetter.
    Por the prosecutor, Frank A. Boetiner (Louis A. Fast, of counsel).
    Por the respondent property owner, Herbert H. Hannoch and Joseph P. Lippman.

   Per Curiam.

This writ of certiorari brings up for review the action of the state board of tax appeals which affirmed the action of the Essex county tax board in reducing from $42,000 to $28,000 the assessment levied by the city of Newark on the property of Esther Timer, for the year 1932.

The respondent Esther Timer was on October 1st, 1931, the owner of: a parcel of real estate in Newark, and commonly known as No. 667-669 High street. This parcel of land, on that assessing date, was improved by a four-story apartment house twenty-seven years old, containing several apartments. The city assessed this parcel for the taxing year of 1932 at $42,000, dividing the assessment into land $8,000, and improvements $34,000.

The property owner, pursuant to the statute, appealed to dhe Essex county tax board from the assessment on the im provement. No appeal was talcen from the assessment against land.

After a hearing before the county board, that body reduced the assessment on the building from $34,000 to $20,000, leaving the land assessment undisturbed (there being no appeal as to land), thus making a total assessment on land and improvements of $28,000.

The city appealed from that judgment to the state board. Its petition of appeal stated:

“Your petitioner therefore prays that the said reduced assessment of Land, $8,000; Impt., $20,000; Pers. $-; total $28,000; for the year 1932, be increased to the true value or valuation, to wit: Land, $8,000; Impt., $34,000; Pers. --; Total $42,000.”

It will thus be seen that the assessment against the land was at no time questioned by either the property owner or the city, the sole question before the various appeal bodies being the assessment against the improvement.

The onty witness produced before the state board on appeal was a real estate expert offered on behalf of the city. He was asked the following question: "Q. What, in your opinion, was the true value of the premises located at 667-9 High street, Newark, New Jersey?”

This question was objected to by the property owner on the ground that the only issue before the state board was whether the assessment on the improvement (not land) was right, and that, therefore, the value of land and building as a unit was immaterial. This objection was sustained.

No further proof was submitted by the city, and in particular no proof was offered by it as to the value of the improvement. There being no proof submitted by the city, the state board affirmed the action of the county board and dismissed the appeal.

It is that judgment which is brought up for review.

The only question presented will now be considered.

We think that where, as here, the state board has by rule directed the division of the assessment into land and improvements as set forth in section 401 of General Tax act (Pamph. L. 1927, p. 576), and accordingly the land and the improvements thereon were separately assessed, it was not erroneous ior the state board to exclude testimony as to the value of land and, building in one lump figure in a proceeding in which no appeal had been taken by either party with respect to the assessment against the land, and'where the sole question on appeal was the value of the improvement.

In order to properly consider the question involved, it is necessary that pertinent provisions of our state constitution and of the General Tax act of 1918, and amendments thereto in effect at the time, be considered.

Article 4, section 7, paragraph 12 of our state constitution provides:

“The property shall be assessed for taxes under general laws and by uniform rules, according to its true value.”

Paragraph 202 of article 2 of the General Tax act (Pamph. L. 1918, p. 848) provides:

“All property, real and personal, within the jurisdiction of this state, not expressly exempted by this act or excluded from its operation, shall be subject to taxation annually under this act at its true value, and shall be valued by the assessors of the respective taxing districts. * * * All property shall be assessed to the owners thereof with reference to the amount owned on the first day of October in each year * *

Paragraph 401, of article 4, of the General Tax act, as amended (Pamph. L. 1927, p. 576), provides:-

“The assessor shall ascertain the names of the owners of all real property situated in his taxing district, and shall, after examination and inquiry, determine the full and fair value of each parcel of real property situated in the taxing district at such price as, in his judgment, such parcel would sell for at a fair and bona fide sale by private contract on the first day of October next preceding the date on which the assessor shall complete his assessments * * * and said assessor shall make a list in tabular form of the names of the owners, and set down in proper column opposite each name the description and area of each parcel sufficient to ascertain its location and extent and the value of each parcel as determined by the assessor. * * * In listing the names of owners and properties the assessor shall follow such forms and methods as may be prescribed by the state board of taxes and assessment, and said board may by rule direct the assessor in any taxing district to determine the true value of each parcel of real estate assessed by him ivithoul the building and improvements and to note the same on the list, and to determine and note separately the true value of every building and other structure on each parcel, and add and carry out the same as the assessed value of the parcel, and in such case the receipt given for the payment of the lax shall contain such separate valuations. * * *:”

The state board did by rule direct the division of assessments into land and improvements as set forth in the section of the Tax act last quoted, and pursuant to such direction, the city of Newark did determine and note the true value of respondent’s property by assessing the land without improvements at $8,000, and the improvement thereon at $34,000, making a total assessment of $42,000.

It seems to be apparent that one of the objects sought to be attained by the statute and state board rule was to make it more readily appear that there had been a compliance with the constitutional requirement of taxation “by uniform rules according to its true value,” for if, as here, the land is assessed as one item, and the improvement thereon as another item, it would be easy to ascertain if uniformity in assessment had been had. If, as a result of such division of assessment into units, an inequality in assessment appeared, the property owner discriminated against could exercise the remedy afforded him by the General Tax act by applying for an equalization of assessment, under powers vested in the county tax board. And it will be noticed that if the testimony here in question were permitted, the city would thus be permitted to establish the validity of the assessment upon an entirely different basis than that adopted by the assessing authorities, and by so doing would prejudice the property owner.

But it is quite apparent that at least one object of the statute and rule was to clarify and simplify appeals before the county and state boards. If, as in the instant ease, the property owner is satisfied with the assessment against his land, but feels that the assessment against the improvements thereon is too high, he is not compelled to appeal from the assessment against the land, but does appeal from the assessment upon the improvement. In this way the issues before the appellate body are much confined.

In the present instance, as we have pointed out, the sole question before the county and state boards was the propriety of the assessment on the improvements. The city in its petition of appeal did not state that the action of the county board respecting the assessment against land was improper. On the contrary, the city in its appeal simply stated that the action of the county board in reducing the improvement assessment from $34,000 to $20,000 was improper. That, and that alone, was the sole question before the state board.

As was stated by the state board in the opinion of its president, the board’s jurisdiction was limited to the issue presented by the petition of appeal, and the proof was necessarily confined to that issue, and failure to enforce such a rule would lead to a multiplicity of immaterial issues and would impede orderly administration of the board’s duties.

Since, then, the sole question before the state board was the true value of the improvement on the assessing date, it was not erroneous to exclude testimony as to the value of the land and building in one lump sum. And, since there was no proof of any character as to value of improvements submitted to the state board, that board properly dismissed the appeal and affirmed the action of the county board.

The judgment will be affirmed.


text:
    TOWNSHIP OF MAPLEWOOD, ESSEX COUNTY, PROSECUTOR, v. WILLIAM A. SMITH, JUDGE OF ESSEX COUNTY CIRCUIT COURT; ADA FLORENCE TAYLOR ET AL., AND ALEXANDER R. STODDART ET AL., RESPONDENTS. JAMES L. PURCELL ET AL., PROSECUTORS, v. WILLIAM A. SMITH, JUDGE OF ESSEX COUNTY CIRCUIT COURT; THE TOWNSHIP OF MAPLEWOOD, ESSEX COUNTY, RESPONDENTS.
    Submitted January 17, 1933
    Decided July 25, 1933.
    Before Justices Parker, Lloyd and Heher.
    Por the prosecutor Township of Maplewood, Abram H. Cornish.

    Por James L. Purcell and Ada Florence Taylor, Lord & Eord.

    Por Alexander It. Stoddart, Otto A. Stiefel.

   Per Curiam.

Our examination of the proofs and consideration of the reasons urged for reversal in these cases lead, us to the conclusion that the orders filed in the Circuit Court were just and legally correct, and for the reasons set forth in the opinion of Judge Smith in that court the orders are affirmed. Affirmed (Court of Errors and Appeals), 112 N. J. L. 233.


text:
    IN RE SAMUEL M. COLE.
    Decided January 9, 1934.
    Before Justices Parker, Lloyd and Perskie.
   Per Curiam.

The candidate, after clerking in a New York law office, was registered in the office of Alexander Simpson, December 20th, 1929, and certificate of commencement of clerkship was promptly filed. He swears that he has served continuously since that time in Senator Simpson’s office until August 15th, 1933, and thereafter in the office of Joseph Suravsky, a counselor-at-law.

At the time of entering the Simpson office he did not have the required academic qualifications. He claims to have obtained them at some time in April, 1931 (exact date not stated) and submits a certificate by the commissioner of education under date of July 18th, 1931, that “Samuel M. Cole, of Jersey City, New Jersey, has presented satisfactory evidence of having completed in April, 1931 (exact date not stated) a preliminary academic education equivalent to four years in a high school of the first grade in this state.”

The applicant claims the benefit of rule 4 (d) as existing prior to February, 1931 (see rule 11) and this for present purposes may be conceded. But the date in 1931 above stated is indefinite, and therefore does not show that “at least three years” will have expired when the April examination is held. The application is denied.


text:
    EDWIN T. WILLIAMS, PLAINTIFF, v. ESTHER EHRLICH, DEFENDANT; FRED CARLSON, APPELLEE (WHO IMPLEADED WALTER L. GINGRICH, APPELLANT).
    Submitted October 13, 1933
    Decided January 16, 1934.
    Before Justices Pabicer., Lloyd and Peeskie.
    Por the appellant Gingrich, William Krueger.

    Por the appellee Carlson, James Raymond Berry.

   Pee Cueiam.

The case arises out of a collision between the automobile of Williams, driven by the appellant Gingrich, and the automobile of Carlson, the appellee, driven by defendant Esther Ehrlich, Carlson’s daughter. Carlson counter-claimed for damage to his car against Williams as the master of Gingrich, and against Gingrich himself. The agreed state of facts, however, stated that Williams had simply lent his car to1 Gingrich, so Carlson’s counter-claim against Williams presumably failed, and, if so, Williams is out of the case in every aspect. That phase is not before us. There remains the subject of this appeal, viz., the counter-claim of Carlson against Gingrich. The court ruled that Gingrich, and Esther, the driver of Carlson’s car, were both negligent, but awarded Carlson a judgment against Gingrich, obviously on the theory that Esther’s negligence was not imputable to her father Carlson, Gingrich appeals.

The sole question is whether there was error in holding that Carlson was not chargeable with the negligence of Esther. We think there was error. On the facts as testified to without contradiction, it is undeniable that Esther was operating Carlson’s car as his servant and agent. Esther testified “that she was driving her father’s car from her home in Chatham to deliver her mother, the wife of Fred Carlson, the counter-claimant, to the home of her mother’s friends in Westfield. That this car was sometimes used for family pleasure and that she had her father’s permission to drive it.” Her mother, Mrs. Carlson, testified “that she was in the ear at the time of the accident, and that she was being driven by her daughter to visit some friends in Westfield. Fred Carlson was not in the car.” This is all the evidence on the point.

When that evidence is coupled with the presumption always arising in such cases out of ownership of the ear, and in the absence of any testimony by Carlson himself to the contrary, the conclusion is irresistible that as a court (and not a jury) question, the agency of Esther for her father at the time of the accident was definitely established. There seems to be no evidence whatever on which the trial court could find non-agency.

The judgment will therefore be reversed, and the ease remanded to the District Court for a new trial.


text:
    FLORENCE STANFORD, PLAINTIFF-RESPONDENT, v. CHARLES ZEMEL, DEFENDANT-APPELLANT.
    Argued May 3, 1933
    Decided January 20, 1934.

      Before Brogan, Chief Justice, and Justices Trefchard and Heher.
    Eor the appellant, Maurice J. McEeown.

    Eor the respondent, David Boshein (John A. Laird, of counsel).
   Per Curiam.

This is an appeal from a judgment in favor of plaintiff in an action to recover damages sustained, it is said, as a result of the negligence of defendant.

Appellant urges (1) that there was error in the trial judge’s denial of a motion to direct a verdict in his favor, on the ground that respondent had duly released the cause of action pleaded; (2) that there was error in the charge respecting the defense that plaintiff, by release under seal, had released the alleged cause of action, and (3) that there was error in the refusal to charge two requests submitted by appellant.

We are of opinion that there was no error in the denial of the motion for a direction of a verdict. It was respondent’s claim that at the time of the execution of the alleged release, she was in a semi-comatose state, and incapable of executing it. She testified that she was not conscious of having executed the release, by a mark or otherwise. There was evidence to sustain this claim. The release was executed at her home, in the presence of a representative of appellant’s insurer. She was then confined to her bed, and was “tilted to the side slightly, to her right,” so that she could make her mark, although, concededly, she was, under normal conditions, capable of, and accustomed to, signing documents by writing her name. The insurer’s representative testified: “If I recall, her hand was not guided; I believe she made it [her mark] of her own physical effort.” He was unable to form any opinion as to her mentality. She was taken to a hospital the next day, and a physician who examined her there testified that she was “semi-conscious,” and unable to give “the history herself of anything.” He expressed the opinion that on the prior day, she was unable “to appreciate and understand what was going on about her.” Another physician, who examined her at the hospital on the day of her admission, said that she was “practically semi-comatose; moribund extremis.” On the following day she was given a blood transfusion, and in reply to a question as to her general condition while she was under his care, this physician said: “The patient’s condition remained practically the same during the entire time. She was disoriented, irrational, her whole sensorium was very, very hazy.”

The consideration for the release was the sum of $400, of which $200 was retained by an attorney who acted for respondent at the time, although she testified that she had not authorized him to represent her. There was evidence that the balance of the consideration was placed in the care of a nurse, who delivered it to respondent at the time of, or shortly after, her departure from the hospital. She retained this money, although she testified that she did not know its source, or the purpose of the payment, until she returncl home when her father advised her that it was paid in settlement of her claim for damages.

Appellant insists that it became respondent’s duty, when she recovered her mental faculties, to return, or offer to return, the money so paid, and that her failure to do so “constituted a complete ratification [of the contract] so as to make said release a complete bar, as a matter of law, to the maintenance of the present action.” We cannot accede to this proposition. The question has been determined adversely to appellant in this court. The test is whether the document was intelligently signed, but fraudulently procured in relation to extraneous facts, or one to which there has been no lawful assent, and is not, therefore, the alleged maker’s deed. Burik v. Dundee, Woolen Co., 66 N. J. L. 420; 49 Atl. Rep. 442. In the last cited case, Mr. Justice Collins said: “It is urged that because the plaintiff did not tender reimbursement of the $69.80, he should not be heard to attack the release. If he were seeking to disavow for fraud a paper intelligently signed, this would be so, but the legal effect of the verdict is that the release is not his deed, and that * * * not fraudulent procurement * * * should have been the replication to the plea.” Where, instead of attacking the contract for fraud, the party merely attacks a writing which purports to embody the contract, on the ground that it is not his act and deed, as where his signature was appended thereto without knowledge of its contents and under the belief that he was signing another instrument, he neither admits that the contract was made nor seeks to rescind it and need not restore the consideration received. Butler v. Richmond, &c., Railroad Co., 88 Ga. 594, 598; 15 S. E. Rep. 668; 1 C. J. 572.

In the instant case, if respondent’s testimony be believed, she did not consciously sign the release. She did not give lawful assent thereto, and it was not her deed. The testimony presented a jury .question on this phase of the case, and the motion to direct a verdict was therefore properly denied.

Appellant next criticises the passage in the charge in which the jury was instructed that “if there was a fraud practiced on the plaintiff, if she was deceived into making her cross, or if she did not make her cross, even though she may have retained some money that came to her, it was not her act and it is not binding on her.” The ground of objection presented to the trial judge was that there was no evidence that “any fraud was practiced on the plaintiff, either by the defendant, Charles Zemel, or by the insurance company, or by anyone in behalf of the defendant.” At the time of the alleged execution of the release, there were present, at the bedside of respondent, the insurer’s representative and one who claimed to represent respondent. If either of the persons in attendance knew that, because of her mental condition, respondent was incapable .of understanding the transaction, and of executing the release, a fraud was undoubtedly practiced upon her. It was fairly inferable from the testimony presented by the plaintiff, if believed, that one or both of those in attendance knew that she was mentally incapable of giving assent to the release. This attack upon the charge is therefore without merit.

Lastly it is urged that the trial judge erroneously refused to charge the jury (1) that if the plaintiff did not understand what she was doing when she signed the release, but that she, subsequently, upon regaining her mental faculties, realized that she and her attorney had received $400 in settlement of her claim against the defendant, $200 each, she was under a duty to return, within a reasonable time, the money that she received, if she did not wish to be bound by her release, and that if she did not attempt to or offer to return the $200 to the defendant, her conduct constituted a ratification of the release; and (2) that in determining the question whether plaintiff ratified the release, the jury must take into consideration the amount of money received, and if the jury should find, as a fact, that plaintiff, at the time she signed the release, was unaware of its contents, there should be a finding for the defendant, if the plaintiff, upon regaining her mental faculties, did not return the money within a reasonable time, but chose to retain it.

The questions raised by these requests have been determined adversely to appellant, in passing upon the propriety of the trial judge’s denial of the motion to direct a verdict. They were properly refused.

Judgment affirmed, with costs.