author: Cox*lon, J. C. 0.

text:
    SUN COPPER AND WIRE COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF, v. WHITE LAMPS, INC., A NEW JERSEY CORPORATION, AND WALNUT INVESTMENT CO., A NEW JERSEY CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 15, 1951.

      Mr. Charles H. Boemer, for the defendant Walnut Investment Co.

      Mr. William K. Flanagan, for the defendant White Lamps, Inc.

      Messrs. Kristeller <& Zuclcer (Mr. Saul J. Zuclcer appearing), for the plaintiff.
   Cox*lon, J. C. 0.

(assigned). The defendant, Walnut Investment Co., moves for summary judgment on the ground that the material facts involved are not in dispute and that it is not legally responsible for the damages claimed by the plaintiff.

The defendant Walnut Investment Co. was the owner of a multi-floor factory building located at No. 132 Beckwith Avenue, Paterson, New Jersey. The plaintiff was the tenant of the basement under a written lease with the owner, and the defendant White Lamps, Inc., was the tenant of the first floor under a written lease with the owner’s predecessor in title. Both leases are before the court. The premises were equipped with a sprinkler system. The defendant, White Lamps, Inc., in the process of its business, maintained an electric oven designed to generate a temperature of approximately 1300 degrees Fahrenheit. On the evening of January 10, 1950, the oven was in operation and was unattended. The heat generated, by it caused a sprinkler head, located directly above the oven, to fuse and discharge water. The water seeped through the first floor occupied by the defendant White Lamps, Inc., and into the basement occupied by the plaintiff causing substantial damage.

The defendant. Walnut Investment Co., cross-claims against the defendant White Lamps, Inc., on the ground that the loss sustained hv the plaintiff was due to the negligence of White Lamps, Inc.

The basis of the present motion is, in effect, that under the undisputed facts file landlord, by the terms of its leases with the two tenants, was under no obligation to the plaintiff and is therefore entitled to a summary judgment. The plaintiff, on the other hand, contends that the lessor did have an obligation to the plaintiff to maintain and supervise the operation of the sprinkler system and that a jury question is presented on the question as to whether or not that obligation was complied with.

Defendant contends that its exemption from liability arises from one clause in each of its leases with the two tenants involved. In paragraph 20 of its lease with White Lamps, Inc., it is provided in effect that the tenant was to maintain the sprinkler system in good working condition and the dedefendant’s position is that it was thus absolved from any obligation in that respect. The answer to that argument is two-fold. If the landlord otherwise was under an obligation to the plaintiff it could not evade that obligation by any agreement with another tenant. Too, the very clause in question contains the following provision:

“Tenant shall pay the Landlord as additional rental on the first day of each month during the term of this lease Tenant’s portion of the contract price for sprinkler supervisory service.”

The clear import of that provision is that the landlord was to furnish supervisory services for which it was to be reimbursed. The clause in question, therefore, does not operate to free the defendant, Walnut Investment Co., from any obligation that might otherwise exist.

The landlord further contends that it is absolved from liability by virtue of the 13th paragraph of its lease with the plaintiff which provides that the landlord shall not be liable for damage by water resulting from the negligence of the tenant, “or by reason of the breakage, leakage or obstruction of the water, or soil pipes, or other leakage in or about said building.” The court cannot concur in the contention that the above quoted clause provides indemnity for all damage resulting from the improper use or operation of the sprinkling system if the landlord had any supervisory or other obligation with reference to it. That it had some such obligation may be inferred not only from the leases but from the relationship of the parties. The sprinkler system was one of the structural appurtenances of the building installed by the landlord. The plaintiff had no connection with its maintenance or operation. On the other hand the landlord in one of the leases that is before the court assumed the obligation of providing supervisory service for which it received contribution from at least one of the tenants.

Whether the burden of furnishing such supervisory service was breached by allowing the tenant’s highly heated oven to operate in close proximity to the sprinkler valve or whether the landlord otherwise used due care to perform its supervisory obligation to the plaintiff are, among others, questions of fact that should properly be determined by a jury. The motion for summary judgment is denied without costs. An appropriate order consented to as to form should be presented.


source: Caselaw Access Project

author: JIoruyitz, J. C. C.

license: Public Domain

text:
    CLARENCE W. THOMPSON AND RUTH M. THOMPSON, HIS WIFE, PLAINTIFFS, v. BOARD OF EDUCATION, CITY OF MILLVILLE, DEFENDANT.
    Cumberland County Court Law Division
    Decided February 2, 1951.

      Mr. Nathaniel Rogovoy, attorney for the plaintiffs.

      Messrs. Greenblatt & Greenblatt, attorneys for the defendant.
   JIoruyitz, J. C. C.

This is a motion for judgment on pleadings, pursuant to the Rule 3:1S — 3.

The complaint is in two counts by husband and wife. In the first count, the female plaintiff seeks a recovery for personal injuries, alleging that on the afternoon of September 8, 1950, after school hours she went to the high school building in Millville, New Jersey, for the purpose of attending a majorette or baton twirling contest in which her student daughter was a participant. It is on this score that her status as an invitee is claimed. That as she was walking through the main entrance hall she sustained a fall on a floor that was improperly waxed or oiled, for which a recovery against the defendant is sought.

In the second count, the husband sues per quod.

The negligence charge is twofold. First, the customary blanket allegation of failure to use due care, and second, the specific complaint that the defendant “* * * allowed the floor in the main entrance and hall to be improperly oiled or waxed thereby causing great and unsafe quantities of oil or wax to remain on said floor so as to make unsafe the use of the plaintiff, Ruth M. Thompson, of the premises she was required to use in pursuance of her said invitation.”

The complaint further alleges that the defendant sponsors a high school football team which engages in games with other schools, and for the viewing of which an admission fee was charged to spectators. That in connection with such athletic contests, a band is also sponsored which numbers among its personnel majorettes selected from the student body, and that both, i. e., the band and the majorettes, participate before the games, during the halves and after the game, all to add color to the festivities.

Thus, it is sought to make baton twirling an integral part of a scholastic football game and place one who views preliminary contests for the selection of majorettes in the same category as one who attends a football game via an admission fee. Let this unique theory be accepted for the purpose of arriving at a conclusion of the legal principles involved.

The query that presents itself to this court for solution is this: .

“Is an athletic contest, or any activity related thereto, conducted on school premises for monetary gain by a Board of Education, a proprietary or governmental function?”

To arrive at a determination of this inquiry, there seem to be two underlying tests:

(1) Is monetary gain sought ?

(2) Is it a function that can he performed by an individual ?

As to the first query, it is the opinion of this court that the only monetary gain sought is the self-perpetuation of the activity engaged in by the student body, namely, football; therefore, it could not fall into the class of a profit-making enterprise. McQuillan, Municipal Corporations, vol. 18, § 53.29.

As to the second query, it is obvious that interscholastic athletic activities do not fall into the same category as a water works or a municipal electric plant. As a general proposition "a municipality is ordinarily not liable for negligence or other wrongful acts of school officials or for injuries arising in connection with its ownership of school buildings.” McQuillan, Municipal Corporations, vol. 18, § 59.93, 47 Am. Jur., § 58. Tlie statute, B. 8. 18 :5 — 30, provides as follows:

“No school district shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding.”

In the case of Falcone v. Board of Education of Newark, 17 N. J. Misc. 75 (Cty. CL 1939), the court held that a board of education is within the provisions of the foregoing statute "exempting school district from liability for injury to the person since, such board bolds title to district’s property and is the entity to sue and be sued.”

The only way in which liability could be predicated could be either an act of wrongdoing as distinguished from mere negligence which is in the case here, or where the function is proprietary rather than governmental in its nature. Such is the declaration of the case law in the State of New Jersey. Olesiewicz v. Camden, 100 N. J. L. 316, 126 A. 317 (E. & A. 1924). See also 60 A. L. R. 192.

Plaintiff seeks to rely upon the case of Leeds v. Atlantic City, 181 A. 892 (1935), which is a Circuit Court case, in which a recovery was allowed where the plaintiff was injured at a football game held at the Convention Hall in Atlantic City. This case is clearly distinguished from the case at bar by the judicial declaration of the court in the later case of Kane v. Board of Education of Montclair, 20 N. J. Misc. 7, 23 A. 2d 277 (Sup. Ct. 1941), on the ground that the Convention Hall in Atlantic City in which the plaintiff was injured was maintained under P. L. 1929, p. 396, R. S. 40 :62-34 which provides “it being the intention of this act that such municipality shall be able to operate such stations and halls in the businesslike maimer similar to the methods that would be employed if the station or hall was operated by a private and not a municipal corporation.”

In the instant case, the attempt to make an athletic contest, or any activity related thereto, a proprietary function fails. The school building where the alleged accident took place was erected for the purpose of providing instruction for the children of the City of Millville. This is a definite governmental function, and the inclusion of the idea that football games are operated as a profit-making enterprise does not establish a transition from a governmental to a proprietary function.

The organization of, school athletic teams at public schools generally has been considered to be an integral part of physical education, and, therefore, it is the general rule that school districts or school boards are immune from liability or injury to players or spectators sustained in connection with the practicing of school games or contests between them, even though admission is charged to such contests, and even though the holding of such games or contests is merely authorized and permissive and not mandatory. See 160 A. L. R., p. 191.

The motion for judgment on the pleadings in favor of the defendant is granted, and an appropriate order may be presented.


author: Hogues, J. C. C.

text:
    IN THE MATTER OF THE APPLICATION OF JAMES E. COOLEY FOR ISSUANCE OF WRIT OF HABEAS CORPUS.
    Mercer County Court Law Division
    Decided February 21, 1951.

      Mr. Donald II. Bryant, Jr., attorney for the petitioner, in forma pauperis.

      Mr. Theodore I). Parsons, Attorney General of the State of New Jersey (Mr, Eugene T. Urbaniak, Deputy Attorney General, appearing), attorney for the State.
   Hogues, J. C. C.

On the basis of a petition alleging his unlawful imprisonment by the Principal Keeper of the New Jersey State Prison, the writ of habeas corpus was issued to James E. Cooley under the authority of B. S. 2:82-1 et seq. By the return to the writ, the State predicates its detention of petitioner on a commitment of the former Camden County Court of Quarter Sessions, evidencing that on December 2, 1911, that court imposed on petitioner a sentence of not less than 4 nor more than 15 years. Petitioner entered upon service of such sentence and since no parole has intervened, is presently being held to serve the maximum thereof. Ex parte Fitzpatrick, 9 N. J. Super. 511 (Cty. Ct. 1950).

The basic contention of this petitioner is that he was convicted of the crime of atrocious assault and battery, which has a statutory maximum punishment of seven years (B. 8. 3:110-1). and that there was illegally imposed upon him a sentence having a maximum in excess thereof. Examination of the indictment, copy of which is made a part of the petition. indicates that in addition to the crime of atrocious assault and battery, petitioner was charged therein with previous convictions of high misdemeanors, and it would thus appear that sentence was passed upon him as a multiple offender within the purview of R. S. 2:103-9, as amended L. 1940, c. 219; L. 1950, c. 315. This section is a portion of tire statute referred to as the Habitual Criminal Act, which has been held by our courts to be constitutional. In re Caruso, 131 N. J. L. 505 (Sup. Ct. 1944) ; In re Caruso, 135 N. J. L. 522 (Sup. Ct., en banc, 1947); State v. Janiec, 9 N. J. Super. 29 (App. Dir. 1950).

Although such was the form of the indictment, petitioner contends that there was no proof at trial of the previous convictions of high misdemeanors, and that such being the ease, the court was not empowered to impose sentence upon him under the Habitual Criminal Act, supra. Of course, it is incumbent on the State, for that act to be applied, to offer such proofs. The general rule is well settled that proof of every act necessary to make the law apply is essential; that the court may not take judicial notice of the record of prior convictions; that the burden of proving the prior convictions, and the identity of the defendant as being the same person previously convicted, rests with the State and must be established beyond a reasonable doubt. State v. Lutz, 135 N. J. L. 603 (Sup. Ct. 1947); Singer v. United States, 278 Fed. 415 (3rd C. C. A. 1921); State v. Janiec, supra.

Despite petitioner’s contention that there was no proof at trial of previous convictions, he was convicted by a jury on this indictment, as appears from a copy of the minutes of the Camden County Court of Quarter Sessions, vol. 8, p. 465, filed by petitioner in this cause. And although the indictment itself is miscaptioned “Sur. Indictment — Atrocious Assault and Battery,” such has no effect on the essential substance of the indictment, which fulfilled the basic requirement of a charge of prior convictions within the principle of the Habitual Criminal Act, supra. Hence, it is clear that the petitioner, although asserting that his claim for relief brings into question the jurisdictional capacity of the court which imposed sentence upon him, really levels his attack at the validity of his conviction, on which such sentence was based. There was certainly, in view of the statutes quoted, the requisite jurisdictional power in the former Court of Quarter Sessions to convict him of the offense charged in the indictment and, based upon that conviction, there was clear jurisdictional authority to impose the sentence here questioned.

The State moves now to dismiss the petition for the writ of habeas corpus, on the ground that such writ may not be utilized for the purpose of appeal or writ of error; relying on the cases of In re Caruso, supra. I think this point is well taken, for it is apparent that for this court to inquire now into the sufficiency of proof at trial to justify the conviction on which this sentence was based, would be foreign to the traditional function of the writ of habeas corpus. If there was the deficiency of proof claimed by petitioner, such conviction would have fallen on appeal. State v. Lutz, supra; State v. Jardee, supra. The fact that the time for appeal has long since expired is not significant. Ex parte Hill, 2 N. J. Super. 598 (Law Div. 1950); In re Tremper, 126 N. J. Eq. 276 (Ch. 1939). Since the point really raised, i. e., the adequacy of proof at trial to sustain the conviction, was properly reviewabie on appeal and involved neither the primary jurisdiction of the court in the premises, nor any invasion of constitutional rights which might he destructive of that jurisdiction (Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938), no right to relief on habeas corpus is apparent. In re Caruso, 135 N. J. L. 522, supra. Any such deficiency of proof amounted to a “trial error,” in that it affected only the validity of the conviction as distinguished from the jurisdictional capacity of the court, and such a “trial error” may not be reviewed on habeas corpus. That writ may not he used in lieu of a writ of error. In re Rose, 122 N. J. L. 507 (Sup. Ct. 1939). Our statute, R. S. 2:82-13, withholds from persons committed or detained by virtue of a final judgment or decree of a competent tribunal of civil or criminal jurisdiction, the right to prosecute a writ of habeas corpus, and granting that a court has power and jurisdiction to render a particular judgment in the matter, that judgment, when the power to pronounce it is erroneously exercised, should be corrected by appeal (In re Hall, 94 N. J. Eq. 108 (Ch. 1922) ; In re Scridlow, 124 N. J. L. 342 (Sup. Ct. 1940)), or by application under Rule 2:7-13. State v. Weeks, 5 N. J. Super. 505 (Cty. Ct. 1949); 6 N. J. Super. 395 (App. Div. 1950).

Accordingly, the motion to dismiss the petition for the writ is granted; the application for the writ of habeas corpus is denied and petitioner is remanded to custody.


author: Per Curiam.

text:
    ASTOR TSIBIKAS, PLAINTIFF-RESPONDENT, v. MAXIMILIAN MORROF, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Reargued January 15, 1951 —
    Decided February 13, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Harry Kay argued the cause for the appellant.

      Mr. Emil W. A. Schumann argued the cause for the respondent {Mr. Firovanti O. Miniutii, on the brief).
   The opinion of the court was delivered

Per Curiam.

The defendant Maximilian Morrof, an attorney-at-law of the State of New Jersey, appeals from a judgment entered in the Hudson County Court in favor of his former client, the plaintiff Astor Tsibikas. An earlier phase oí the proceeding is reported in Tsibikas v. Morrof, 5 N. J. Super. 306 (App. Div. 1949).

In 1945 the plaintiff discussed with his friend and attorney, Mr. Paladeau, the prospects of having his mother-in-law and brother-in-law emigrate from Greece to the United States. Mr. Paladeau recommended that he consult the defendant who specialized in immigration matters. The defendant advised that arrangements could readily be made for the early entry of the mother-in-law but he did not know what could be done for the brother-in-law. Thereupon the defendant was retained to arrange for the mother-in-law’s entry, received a fee of $250 and performed services.

In December, 1946, the brother-in-law, referred to as El, reached Norfolk, Virginia, as a stowaway, accompanied by Michael, another stowaway. Thereupon the plaintiff conferred with the defendant who told him that while he could not guarantee anything he thought he might be of help and his fee would be $1,500. The plaintiff paid this fee, apparently believing that it represented the full charge for handling El’s matter although the defendant testified that it was to cover services before the appropriate administrative officials, including the Board of Immigration Appeals. The defendant then went to Norfolk and arranged for El’s release on bail and his later surrender at Ellis Island pending administrative determination. In January, 1947, the plaintiff learned that Michael was about to be returned to Greece and, after conferring with the defendant, paid him a fee of $1,500 to handle Michael’s case and thereafter Michael was removed from the S. S. Marine Carp which was then about to sail.

The plaintiff testified that early in February, 1941, the defendant called him and told him "everything was lost about Mike and El.” the only way was to send them to Cuba, and the cost would be $1,000 for obtaining their visas. He further testified that on the following day the defendant told him that the $1,000 would be for temporary visas which would only assure their stay in Cuba for three months, but by paying $3,000 permanent visas could be obtained. Thereafter there was a conference at Mr. Paladeau’s office which was attended by the plaintiff, the defendant and Mr. Paladean. ■ The plaintiff testified, in effect, that after considerable discussion he agreed to pay $3,000 in escrow upon the understanding that the defendant would provide permanent visas before El and Michael left for Cuba, while in Cuba they would be provided with jobs for their support and would be “no burden” to the plaintiff, and they would be back in the United States within nine months. The $3,000 was paid to the defendant in cash and, although his testimony was confusing, he seems to have substantially acknowledged that the money was to be held by him in escrow pending his obtainment of permanent visas.

On February 10, 1947, the defendant was notified that the order of exclusion in El’s case had been affirmed by the Board of Immigration Appeals and El and Michael were actually on the S. S. Saturnia which was sailing that afternoon. However, as the result of the defendant’s efforts, the men were removed from the ship and awaited transportation to Cuba. On February 27, 1947, they left for Cuba by plane and at that time the defendant advised the plaintiff that although he obtained temporary visas he had been unable to obtain permanent visas. The plaintiff testified that the defendant told him he had nothing to worry about and the permanent visas would arrive in about nine days. In March, 1947, the plaintiff was called to the defendant’s office, was told that El and Michael were in trouble in Cuba, it was necessary that the defendant go to Cuba, and his fee would be $2,500. The plaintiff testified that he refused to pay the defendant any additional sum or authorize him to use any part of the escrow fund of $3,000; the defendant testified to the contrary. The defendant used the fund, went to Cuba and upon his return, according to plaintiff’s testimony, advised the plaintiff that he had “straightened everything out.” El and Michael testified that they had never been in trouble while in Cuba, had never received any permanent visas and, as a result, had not been permitted to work there, thus necessitating expenditures by the plaintiff for their support. El left Cuba on December 27, 1947, and was permitted to enter the United States as the fiance of a veteran of World War II; on the basis of his subsequent marriage he has obtained permanent residence status in the United States. Michael re-entered the United States as a seaman but never obtained legal status and is free on bail awaiting deportation.

In June, 194.7, the plaintiff demanded return of the $3,000 fund. After the demand was rejected the plaintiff consulted his present attorneys and in due course they filed complaint against the defendant in the Hudson County Court. The first and second counts of the complaint sought recovery of the $3,000 plus interest, the first count alleging that the defendant had failed to perform his agreement with the plaintiff and the second count alleging that the defendant had obtained the $3,000 by fraudulent representations. The third count of the complaint sought, as consequential damages, recovery of the sum actually paid by the plaintiff for the support of El and Michael while in Cuba. The defendant filed an answer denying the plaintiff’s claim and a counterclaim seeking recovery of additional fees for legal services rendered to the plaintiff. A lengthy trial was held and extensive testimony by the parties and their witnesses was taken. At the close of the ease the defendant’s motion for judgment was denied and the court permitted the plaintiff to amend his pleading to conform to the evidence.

In its charge the court set forth the two separate grounds, namely, breach of contract and fraud, upon which the plaintiff sought to recover the sum of $3,000 plus $1,950 expended to support El and Michael in Cuba. On the first ground the court submitted to the jury determination of the factual issues as to the terms of the agreement between the parties, whether it was breached, and whether the consequential damages of $1,950 were such as might reasonably be supposed to have been within the contemplation of the parties when the agreement was made. On the second ground, the court submitted the factual issues to the jury after expressing its understanding of the plaintiff’s claim that the defendant made fraudulent representations to him and in reliance thereon he made the $3,000 payment. Similarly, the court submitted to the jury the factual issues relating to the defendant’s counterclaim for additional fees for services. In order to aid the jury in rendering its verdict, the court prepared a slip of paper bearing places for checkmarks to indicate the jury’s separate findings for or against the plaintiff or the defendant on each of the claims in the complaint and the counterclaim. The jury’s verdict was in the plaintiff’s favor on the breach of contract count and similarly in the plaintiff’s favor on the fraud count and it assessed damages which included, less minor credits, the sum paid in escrow by the plaintiff plus the sum expended for support of El and Michael in Cuba, with interest. Poll of the jury confirmed its verdict for plaintiff and thereafter judgment was duly entered. The defendant filed notice of appéal and supersedeas bond and the individual allegations of error set forth under the nine points in his brief (Rule 1:3-2(e)), as we understand them, will be considered.

I.

Under his first and second points the defendant attacks various evidential rulings of the trial court. He complains that evidence of the original discussions between the plaintiff and the defendant with respect to the mother-in-law’s entry was improperly admitted; in the light of the issues being tried, wa consider that the trial court acted within its discretion and committed no harmful error in permitting the testimony. Cf. Batura v. McBride, 77 N. J. L. 779 (E. & A. 1909). He further complains that certain questions on direct examination were permitted though' leading (Williams v. Guerreri, 136 N. J. L. 60, 61 (Sup. Ct. 1947)), other questions on cross-examination were excluded on grounds of improper form, remoteness, or immateriality (Bosze v. Metropolitan Life Insurance Co., 1 N. J. 5, 10 (1948); Testa v. Metropolitan Life Insurance Co., 136 N. J. L. 9, 12 (Sup. Ct. 1947)), and a witness was permitted to testify on redirect examination as to his war record. On such evidential rulings the trial court must be given wide latitude to insure that proofs are presented in fair and orderly fashion and within reasonable bounds and there is’no ground for reversal unless it appears that the defendant’s substantial rights were prejudiced thereby. Rule 1:2-20; Petrosino v. Public Service Coordinated Transport, 1 N. J. Super. 19, 25 (App. Div. 1948). In the instant matter we are satisfied from our examination of the entire record that there has been no such prejudice.

II.

Under his third point the defendant contends that the proofs were at variance with the original complaint and the lower court erred on refusing to dismiss the complaint and in permitting its amendment after the proofs had been completed. The original complaint alleged that the defendant had agreed to obtain permanent visas within nine days, whereas the plaintiff testified the defendant undertook to obtain the visas before El and Michael left for Cuba-and when he failed to do so he assured plaintiff they would arrive in about nine days. Similarly, the allegation in the original complaint that the $3,000 was to be considered earned and payable upon the issuance of the visas, the obtainment of employment in Cuba for El and Michael, and the commencement of work on their return to the United States which the defendant represented would be effected within nine months, was somewhat departed from by the plaintiffs testimony hereinbefore outlined. These variances in no wise altered the basic issues and we find no error in the trial court’s action denying the motion to dismiss and permitting amendment of the complaint. Cf. Evans v. Rosenberg, 1 N. J. 590, 596 (1949); Rule 3:15. The trial continued long after the testimony for plaintiff was complete and the defendant had ample opportunity to meet the changes. In the light of the primary controversy presented, they do not appear significant and we find no prejudice to the substantial rights of the defendant.

III.

Under his fourth point the defendant asserts that “there was no issue of fact for submission to the jury” and presumably contends that he was entitled to a direction of judgment. This contention may be considered along with his assertions under points VI and IX that the jury was improperly permitted “to determine the legal sufficiency of the evidence” and its verdict was against the weight of the evidence. The testimony favorable to the plaintiff, together with the reasonable inferences therefrom, was ample to warrant the jury in finding the following facts: The plaintiff delivered to the defendant the sum of $3,000 upon the defendant’s undertaking to obtain permanent visas for El and Michael before they left for Cuba, provide them with jobs for their support while in Cuba, and secure their lawful return to the United States within nine months. Although the time arrived when El and Michael were leaving by plane for Cuba the permanent visas had not been obtained but the defendant then assured the plaintiff that they 'would arrive in about nine days. They did not arrive and because of their absence El and Michael were not permitted to work while, in Cuba. The defendant never fulfilled his undertaking to provide them with jobs and they were supported by the plaintiff who expended $1,950 in this regard. They never received permanent visas while they were in Cuba, were not returned to the United States within nine months, and their later return was not the result of efforts on the defendant’s part. The plaintiff’s demand for return of the $3,000 was refused and action was thereafter instituted for its recovery plus the $1,950 as consequential damages.

Upon the foregoing facts the plaintiff was entitled to recover the $3,000 on the basis of his asserted claim for breach of contract without regard to the additional allegation of fraud. And under the evidence the jury was properly permitted to find, as it did, that the expenditure for support was proximately attributable to the defendant’s default in his undertaking and was recoverable as consequential damages which might reasonably be supposed to have been within the contemplation of the parties when their agreement was made. Wolcott, Johnson & Co. v. Mount, 36 N. J. L. 262, 271 (Sup. Ct. 1873); affirmed, 38 N. J. L. 496 (E. & A. 1875). Unlike the situation in Anderson v. Modica, 4 N. J. 383, 395 (1950), the jury, under appropriate instruction from the trial court, made an independent finding in plaintiff’s favor on his claim for breach of contract and consequential damages thereunder and the resulting judgment may properly be upheld without regard to alleged legal insufficiency of the proof required to support the claim grounded in fraud.

IV.

Under his fifth point the defendant contends that the trial court erred in declining to permit his business records in evidence. These consisted of note books bearing daily entries which he testified were made contemporaneously with the occurrences and in the regular course of his professional work. They might well have been admitted under the provisions of the Uniform Business Becords as Evidence Act. R. S. 3:98-36; 9 U. L. A., p. 264 (1942). Cf. Waters v. King County Trust Co., 144 F. 2d 680 (2d Cir. 1944); cert. denied, 323 U. S. 769, 89 L. Ed. 615 (1944); rehearing denied, 333 U. S. 817, 89 L. Ed. 649 (1944); 56 Harv. L. Rev. 458 (1942). However, their contents bore largely on the extent of his legal services and he was permitted to testify at great length as to entries which he considered material. Under these circumstances and in light of the jury’s finding as to the agreement between the parties and the defendant’s breach thereof, we consider that he was not prejudiced by the failure to admit the books in evidence.

V.

Under point VII the defendant asserts that the trial court’s failure "to sufficiently clarify the facts and issues to the jury is prejudicial error.” Presumably this is an attack upon the trial court’s charge, although we find no pertinent requests or objections or the required reference in the brief to their omission. Rule 1:3 — 3(c). The defendant’s objection at the close of the charge related primarily to his contention that the trial court should have instructed the jury that if the verdict was for the plaintiff it should be either on the count relating to breach of contract or on the count relating to fraud, but not on both. Under point VIII of his brief this contention is again advanced with particular reliance upon the pretrial order which set forth that the parties had agreed to limit the trial to the issues of whether the plaintiff was entitled to recover upon his $3,000 claim for the reasons set forth in the first count “or” the second count plus the consequential damages sought under the third count. We have determined that there was no harmful error in this connection in view of the jury’s independent finding, pursuant to the trial court’s charge, that plaintiff was entitled to recover upon his claim for breach of contract plus consequential damages and our conclusion that the single judgment entered below may properly be sustained on this finding without regard to the allegation of fraud. In connection with the fraud claim we may note that the plaintiff seems to have departed somewhat from his position at the trial; apparently his present contention, as expressed at reargument on the appeal, is that when the defendant received his original $1,500 fee he made promises without intending to perform them and that these constituted fraudulent representations as to his state of mind (Roberts v. James, 83 N. J. L. 492, 497 [E. & A. 1912)), which induced the plaintiff’s subsequent $3,000 payment. Assuming for present purposes that this contention, if supported by the testimony and the jury’s finding, would sustain the award of damages, we nevertheless incline towards the belief that it is not sufficiently supported by the totality of the evidence in the record before us.

The judgment, in so far as it awards recovery in plaintiff’s favor in the sum of $5,374.31 on the claim for breach of contract and consequential damages thereunder and denies recovery on defendant’s counterclaim, is affirmed.


author: Rogers, J. A. D.

text:
    LAWRENCE A. LEONARD AND POTOMAC INSURANCE COMPANY, PLAINTIFFS-RESPONDENTS, v. AUTO PARKS, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 15, 1951 —
    Decided March 2, 1951.

      Before Judges Ereund, Proctor and Rogers.

      Mr. Robert W. Qriscuolo argued the cause for the plaintiffs-respondents (Mr. Charles T. Bunting, attorney).

      Mr. William 8. Zink argued the cause for the defendant-appellant (Messrs. Bleakly, Stockwell & Zink, attorneys).
   The opinion of the court was delivered by

Rogers, J. A. D.

The appeal is from a judgment for plaintiff entered in the Camden County District Court for the damage caused to his automobile while it was parked with defendant for charge on its parking lot in the City of Philadelphia.

The action is founded upon a bailment for hire entered into in Pennsylvania and concededly the law of that state governs as to the merits and rights involved. Ferguson v. Central R. R. Co., 71 N. J. L. 647 (E. & A. 1905); Dennison v. Dennison, 98 N. J. Eq. 230 (Ch. 1925); affirmed, 99 N. J. Eq. 883 (E. & A. 1926).

Plaintiffs uncontradieted testimony clearly establishes his bailment of the automobile with defendant, his demand for its return and defendant’s failure to deliver the car. Defendant offered no evidence upon the merits and submitted proof only of the applicable Pennsylvania law on bailments. That such proof standing alone was sufficient to support plaintiff's judgment does not appear to he disputed — in fact, it is so held in Schell v. Miller North Broad Storage Co., Inc., 142 Pa. Super. 293 (1940), which defendant relies upon for the applicable law on bailments. As to the efficacy of such evidence in cases of bailment for hire the court in the Schell case, in explaining its rulings in previous decisions, held:

“As we said in Guise v. New York Life Ins. Co., 127 Pa. Super. 127, 137, 191 A. 626, 630: ‘A defendant’s duty of coming forward with evidence at certain stages of a trial is sometimes loosely referred to as “burden of proof.” ’ In a number of the early eases upon which we rely ‘burden of proof’ was used loosely and we but followed those expressions. It would have been more accurate to have said that when the bailor shows a bailment, demand, and failure, to deliver, the bailee has the duty of going forward with evidence accounting for the loss and if the bailee fails so to do, he is responsible for the loss, it being assumed that the bailee has failed to exercise the ordinary care required by the contract.”

Nevertheless, as the sole ground of this appeal defendant contends the judgment is erroneous because plaintiff failed to prove defendant’s negligence in caring for the car. It is urged that under the Schell case bailor’s pleading and proofs sufficiently aver and establish the manner and cause of the loss, and that accordingly the bailor has the added burden of proving negligence before the bailee is under any duty to go forward with an explanation of the, loss.

Plaintiff argues that this is a rule of procedure only, involving the duty or burden of going forward with evidence, and that it is controlled by the law of the forum. Ferguson v. Central R. R. Co., supra; Dennison v. Dennison, supra. We do not decide this question, but conceding it arguendo it would appear that under the rule in this State the judgment for plaintiff was proper because there was proof of damage to the automobile while, in defendant’s custody as bailee for hire, but no evidence to show that defendant exercised due care or that the loss did not occur through its negligence. Though the burden of proof of the cause of action did not shift from plaintiff, defendant was put to its defense upon proof of a prima facie case. Bachman Chocolate Mfg. Co. v. Lehigh Warehouse and Transportation Co., 1 N. J. 239 (1949): We now turn to the merits of defendant’s point.

In the Schell case the suit was by a bailor against a bailee for hire for loss of goods stored in a warehouse and destroyed by fire. The declaration averred, inter alia, the loss by fire, charged failure to maintain a fireproof building, lack of reasonable care in keeping the goods and detailed other derelictions. The bailor’s proof fully established the cause and manner of the damage to the goods. The nature of the bailment, the cause of the loss, and the scope of the pleading and proofs as to the cause of the loss, defeated any presumption of the bailee’s negligence and relieved the bailee from going forward with an explanation of the loss which the bailor had already so adequately established. The bailor was then required to prove bailee’s negligence in order to prevail, because none appeared nor could be inferred from the full explanation of the cause of the loss.

That case is quite different and clearly distinguishable from the one before us. The complaint here did not plead the cause nor the manner of the loss. The averment that defendant owed a duty to use reasonable care in safeguarding the automobile and that it breached that duty amounts to no more than pleading an element of the bailment. Plaintiff’s testimony that the failure to deliver the car and the damage to it was caused by theft was a mere deduction from the fact that the car was not at the parking yard when he requested it, and that the yard attendant indicated he didn’t know what had happened to it and surmised it had been stolen. That under these circumstances plaintiff reported the car stolen and that later it was found damaged a considerable distance from the parking yard does not establish within the rule in the Schell case the actual manner or cause of the loss sufficiently to obviate an explanation of the loss by defendant. This testimony is quite inconclusive as to the cause of the loss, is speculative as to theft, and is pure hearsay as to either factor. We find in the Schell case a sound exposition of the substantial character and quality of the explanation of loss required of the bailee when the bailor’s testimony has caused him to go forward with liis proof. Certainly, plaintiff’s testimony on the cause of the loss in the case before us covered no such scope as under the Schell ease is required of a bailee. Although in the Schell case the loss was caused by fire and not by theft, the rule was stated therein that a bailee has not adequately explained his failure to deliver goods by merely stating they were stolen. It also held that a bailee must excuse or justify a failure to deliver goods in his exclusive possession and that in the instance of theft of an automobile the bailor must have more detailed information if he would trace the car and endeavor to find out whether the bailee exercised due care under the circumstances. It reasoned that unless the bailor received a full disclosure of the theft from the bailee he was helpless and it concluded that the bailor was not to be left to the mercy of the bailee. Such reasoning clearly indicates that the rule urged by defendant is not invoked by the pleading and proof in the case before us. We deem-the point has no merit.

Under the Pennsylvania law cited, it is obvious that plaintiff established a case which required defendant to go forward with evidence accounting for the damage to the automobile, and that having failed to do so the defendant is responsible therefor because the assumption is that it did not exercise the ordinary care required. Judgment for plaintiff was proper.

Affirmed.


author: Freund, S. J. A. D.

text:
    BARD CONSTRUCTION CO., INC., PLAINTIFF-RESPONDENT, v. WANDNER COMPANY, INC., AND JACOB HIRSCH, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1951 —
    Decided February 28, 1951.

      Before Judges Ereund, Proctor and Kogers.

      Mr. Robert T¡. Dietz argued the cause for the defendants-appellants.

      Mr. Alexander Levchuk argued the cause for the plaintiff-respondent (Mr. Jerry Sokol, attorney).
   The opinion of the court was delivered by

Freund, S. J. A. D.

This is a mechanic’s lien suit. The defendants appeal from a judgment entered on a jury verdict in favor of the plaintiff and against the defendant, Wandner Company, Inc., the owner of the lands and premises described in the complaint, and adjudging that it is prior to the lien of the mortgage of the co-defendant, Jacob Hirsch.

The action was brought to recover an unpaid balance under a contract dated October 26, 1949, made between the defendant, Wandner Company, Inc., as owner, and the plaintiff, Bard Construction Co., Inc., as contractor for the construction of a poultry building. The contract price was $18,000, payable in installments at various stages of the construction. The agreement provided that the "job shall result in a fully completed poultry building.” Wandner Company, Inc., failed to pay the second payment when it became due, and, on November 30, 1949, the plaintiff filed in the clerk’s office a mechanic’s notice of intention. B. 8. 2:60 — 112 et seq. On January 5, 1950, when the contract provided for the completion of the building, the plaintiff had received on account the sum of $11,000, leaving an unpaid balance of $7,000. On January 11, 1950, the plaintiff received from the defendant, Jacob Hirsch, the president of the defendant, Wandner Company, Inc., his personal check postdated January 25, 1950, for $7,000. This was returned by Hirsch’s bank dishonored for insufficient funds, and thereupon the plaintiff filed his lien claim. In addition to the $7,000, the plaintiff also claimed the sum of $1,011.50 for fill dirt, which the contract provided should be supplied by the owner, but which the plaintiff supplied at an agreed price. The parties stipulated that the fill dirt was delivered.

Wandner Company, Inc., acquired title to the premises on October 25, 1949, and at the same time executed a purchase money mortgage to Jacob Hirsch for $16,000. Both the deed and the mortgage were recorded on October 27, 1949. The building contract was entered into on October 26, 1949. It is not disputed that the mortgage to Jacob Hirsch was security for the principal sum mentioned therein.

The defendants argue that the court erred in denying their motion .to dismiss the complaint because of non-compliance with the provisions of the Mechanic’s Lien Law. The pretrial order raised do such issue. If the defendants had intended to rely upon the plaintiff’s alleged failure to comply with the provisions of the Mechanic’s Lien Law, B. S. 2 :60-105 el seq., the issue should have been raised by their answer or, failing that, in the pretrial order. Buie 3:16. Jenkins v. Devine Foods, Inc., 3 N. J. 450 (1950). Moreover, since the plaintiff conceded on the argument that the equity in the property is more than sufficient to protect even a general judgment, the matter may be disposed of without a determination on compliance with the provisions of B. 8. 2 :60-126, 127 and 128.

The defendants next argue failure to complete performance of the contract by the plaintiff, asserting that the building was not “a fully completed poultry building.” Tire testimony discloses that on January 5, 1950, the date fixed in the contract for completion, the plaintiff told the owner that the contract had been performed and demanded payment of the balance due. The defendant Ilirsch questioned the completion, and within a few hours brought to the building Leo Libovo, a neighboring chicken farmer. Mr. Libove testified for the plaintiff that he “told Mr. Ilirsch that in my opinion the coop was finished,” except for a few finishing touches which Mr. Bard was then making. Gilbert Green, a building contractor, testified that the building was completed and that the plaintiff had fully complied with the contract and specifications. Irving Plunjian, a contractor, also testified that in his estimation there was some unfinished carpentry work that would cost at most $300 to finish. The defendant’s solo witness Avas Mr. Ilirsch, who testified that the poultry building had not been completed in accordance with the contract. Such conflicting testimony was properly submitted to the jury, which found for the plaintiff, and we find no error in their verdict.

The defendants further argue that the trial court erred in its charge to the jury with respect to the rules of substantial performance of building contracts and of the priority between mortgages and mechanic’s liens. Further, that it erred in refusing to charge several requests. The record as presented to us discloses only that the court was requested to clarify its charge. Buie 3 :51 provides that if a party objects to any portion of the court’s charge or any omission therefrom, the objection and the grounds on which it is made must be distinctly stated before the jury retires. We do not find that any such objection was made. Nevertheless, we are satisfied that the court adequately and substantially charged the matters requested, so.that no error was committed. Stephens v. Public Service Coordinated Transport, 5 N. J. Super. 129 (App. Div. 1949); Fario v. Johnson, 5 N. J. Super. 310 (App. Div. 1949); Wohlfarth v. Spencer Kellogg & Sons, Inc., 8 N. J. Super. 61 (App. Div. 1950).

The plaintiff’s judgment is affirmed against the defendant, Wandner Company, Inc., with costs, and is modified to the extent that- it.is subsequent in lien to the mortgage of the defendant, Jacob Hirsch.


author: McGeehae, S. J. A. D.

text:
    EDWARD N. WHITE AND ROBERT SEMINARA, TRADING UNDER THE NAME AND STYLE OF HOLIDAY CASUALS, PLAINTIFFS-RESPONDENTS, v. ABRAHAM GOLDBERG, TRADING AS A. GOLDBERG & SONS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1951 —
    Decided February 28, 1951.

      Before Judges MoGeehan, Jatee and W*. J. Bbeeeae, Jb.

      Mr. Archibald Kreiger argued the cause for defendant-appellant (Mr. George Dimond, attorney).

      Mr. Sydney I. Turtz argued the cause for plaintiffs-respondents (Messrs. Cohen & Turtz, attorneys).
   The opinion of the court was delivered by

McGeehae, S. J. A. D.

The plaintiffs sued the defendant for the value of certain goods allegedly owned by the plaintiffs and converted by the defendant. At the close of the case, the trial judge granted the plaintiffs’ motion for judgment on the issue of liability and submitted to the jury only the issue of the amount of damages. The defendant appeals from the judgment in favor of the plaintiffs for $4,720.98 entered in the County Court, Law Division.

The’ defendant argues that the court erred in granting the motion for judgment on the issue of liability under three points: (1) the evidence was in conflict as to the identity of the goods, (2) the existence of the facts claimed by plaintiffs to support ownership in them was not admitted by the defendant, and (3) the failure of Carlin Textile Mills, Inc., the bailor, “to reveal its bankruptcy on April 5, 1949, and the omission to list plaintiffs or defendant as debtor or creditor in its bankruptcy schedules cast a cloud of doubt and fraud over the trustworthiness of the entire case and raised disputed fact questions of title and ownership of plaintiffs in the goods.”

The plaintiffs are manufacturers of play shoes and slippers and customarily purchase for tlieir needs about six months in advance. In 1948 they entered into an agreement with Carlin Textile Mills, Inc. (hereinafter referred to as Carlin), under which the plaintiffs were to furnish Carlin with certain rayon yarn for weaving into satin cloth and Carlin was to do the weaving. Carlin liad an office in New York City and a weaving mill in New Bedford, Massachusetts. Pursuant to the agreement, the plaintiffs purchased 17 cases of 150-denier Italian rayon yarn from Harvart Plush Co., Inc., to be shipped to Carlin at its weaving plant in New Bedford. By invoice dated September 8, 1948, Harvart billed the plaintiffs for the yarn and the plaintiffs paid by check dated September 22, 1948. Carlin received this yarn in September, 1948. During the same month, Carlin made an agreement with the defendant under which Carlin was to furnish rayon yarn for weaving into satin cloth and the defendant was to do the weaving. Thereafter, the defendant received a truck shipment from Carlin of 17 cases of 150-denier Italian rayon yarn for weaving into satin cloth. This shipment was accompanied by a memorandum bill of lading dated October 7, 1948, showing that the trucker received the goods from Adar Company, 39 Vest 32nd Street, New York, N. Y., consigned to Jackson Winding Co., 8 Morris Street, Paterson, N. J., nominee of the defendant, and Jackson’s bookkeeper had marked thereon “a/c Carlin for Goldberg.” Adar Company was not identified. On April 1, 1949, the defendant had completed the weaving of this yarn into 6,842 yards of satin cloth.

In the latter part of March. 1949, the plaintiffs demanded their satin cloth from Carlin and in the early part of April, 1949, they were told, for the first time, by Carlin that Carlin had sent the plaintiffs’ yarn to the defendant for weaving and that defendant had the plaintiffs’ satin cloth. In April, 1949, the defendant shipped 3,698 yards of this satin cloth to the plaintiffs, the shipment having been made, according to Carlin’s testimony, on its representation to the defendant that the plaintiffs were the owners of the cloth, but, according to defendant’s testimony, merely on Carlin’s instructions, without knowledge at the time of plaintiffs’ claim of ownership. Plaintiffs, claiming ownership and right to possession, made demand on defendant for the balance of this satin cloth, offering to pay all charges of defendant in connection therewith; the defendant, raising no question of plaintiffs’ ownership and right to possession, refused to'deliver the balance of this satin cloth unless the plaintiffs would also pay to the defendant the amount of defendant’s charges against Carlin for weaving some 18,000 yards of taffeta cloth owned by Carlin; the plaintiffs refused to pay the charges for weaving the taffeta cloth; and, on October 4, 1949, the defendant sold the balance of the satin cloth. Neither Carlin nor anyone else except the plaintiffs claimed ownership or right to possession of this satin cloth.

Here the defendant was a bailee, Carlin the bailor, and the plaintiffs a third party who, claiming to be owner and entitled to immediate possession, demanded the goods from the bailee. A bailee may make a qualified refusal to deliver the goods to a third person under circumstances which would lead a reasonable man to believe that such third person is not entitled to the possession of the goods. Restatement, Torts, § 240, comment c; Wykoff v. Stevenson, 46 N. J. L. 326 (Sup. Ct. 1884); Prosser on Torts, § 15 (1941). However, the privilege of the bailee to make a qualified refusal to surrender the goods on demand to the person* entitled to its immediate possession must be exercised for the purpose for which the privilege is given. Restatement, Torts, § 241, comment a. A qualified refusal by the bailee to surrender the goods to the demandant, based upon reasons which do not justify it, makes the bailee liable although the circumstances are such as to afford proper grounds for some other qualification. Restatement, Torts, § 241, comment l. The bailee’s privilege to make a qualified refusal for the purpose of affording him a. reasonable opportunity to inquire into the right of the demandant exists only if (a) the bailee in good faith makes the refusal to surrender the goods for such purpose, and (b) such purpose in making the refusal is communicated to the demandant, unless the circumstances of the case justify the failure to do so. Restatement, Torts, § 241.

This defendant-bailee never based his refusal to deliver the goods to the plaintiffs-demandants on the ground that he questioned the plaintiffs’ right of ownership or right to immediate possession and, of course, no such purpose in making his refusal was communicated to plaintiffs. The defendant refused to deliver unless the plaintiffs-demandants would pay the defendant-bailee’s claim against Carlin for weaving the taffeta cloth owned by Carlin, and refusal to deliver on this ground was wholly unjustified.

The plaintiffs’ ownership and right to possession was established by uncontradicted testimony and writings in evidence, and there was neither evidence of ownership or right of possession in anyone else nor a claim thereof. Cf. G. H. Waterman & Co. v. Dwares, 27 A. 2d 327 (Sup. Ct. R. I. 1942). Benjamin Goidfarb, who acted throughout for Carlin, testified without contradiction that after Carlin received the plaintiffs’ yam, it found that it was not feasible to weave the yam on its own machines and arranged to have the defendant weave the yarn; that it sent the plaintiffs’ yam to tiie defendant by truck; and that Carlin never sent any other like yam to the defendant. The defendant received by truck from Carlin yarn of the same type and weight as the plaintiffs’ yarn. After the plaintiffs’ demand for the goods, a letter dated August 31, 1949, confirming the demand, was received by the defendant, in which it was stated: “The goods consists of 6,842 yards of satin which, I understand, pursuant to a telephone conversation I had with Mr. Goldberg of your company, is earmarked and set aside in your place of business as belonging to Holiday Casuals.” The defendant never answered this letter hut proceeded to sell the goods.

There is no merit in defendant’s second point. Hot only did plaintiffs prove their ownership and right to possession by uncontradicted evidence, both oral and written, but there was neither claim nor evidence to support any claim o£ ownership or right to possession in anyone else.

There was testimony by Goldfarb that Carlin filed a petition in bankruptcy on April 5, 1949; that all Carlin’s records were turned over to the receiver in bankruptcy; and that neither the plaintiffs nor the defendant was listed as a debtor or creditor. We fail to see how this can be of any aid to the defendant, since neither the receiver nor anyone for him made any claim of ownership or right to possession.

The judgment is affirmed.


author: McGeei-ian, S. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CLAYTON L. HUNTER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1951 —
    Decided March 1, 1951.

      Before Judges McGeehatst, Jaynte and Wm. J. Brennan, Je.

      Mr. J ohn A. Laird argued the cause for defendant-appellant (Mr. John F. Ryan attorney; Mr. Bernard L. Davis, on the brief).

      Mr. IJ. Russell Morss, Jr., Assistant Prosecutor of the Pleas, argued the cause for plaintiff-respondent (Mr. Edward Cohn, Prosecutor of the Pleas for Union County, attorney).
   The opinion of the court was delivered by

McGeei-ian, S. J. A. D.

The defendant appeals from a judgment entered in the Union County Court on October 20, 1950, convicting.him of operating a motor vehicle while under the influence of intoxicating liquor in violation of R. S. 39:4 — 50. The County Court judgment was entered after a trial de novo on defendant’s appeal from a judgment of conviction entered in the Municipal Court of Plainfield on May 8, 1950.

On September 27, 1948, the defendant was first convicted on this charge after hearing before the Municipal Magistrate of Plainfield. When his application for a new trial on the ground of newly discovered evidence was denied by the municipal magistrate, he appealed to the Appellate Division. The Appellate Division remanded the cause for a new trial in the municipal court. State v. Hunter, 4 N. J. Super. 531 (App. Div. 1949).

The new trial was had before an acting magistrate of the municipal court and on May 8, 1950, a judgment of conviction was entered. At the outset of this trial, the defendant challenged the jurisdiction of the acting magistrate to sit in the case, and when this challenge was overruled he took no part in the trial. When the defendant appealed to this court from this judgment of conviction, the plaintiff moved to dismiss the appeal. With' the consent of the parties, the Appellate Division entered an order transferring the appeal to the Union County Court. Following the transfer, there was a trial de novo on the merits in the Union County Court in which the defendant participated, cross-examining the witnesses for the State, introducing witnesses for the defense, and taking' the witness stand himself in an endeavor to meet the case made by the State.

At the close of the trial de novo, the defendant argued that he should be acquitted because (1) the acting magistrate, who heard the cause in the Municipal Court of Plainfield and convicted the defendant, had no jurisdiction to hear and determine the matter, and (2) a conviction on the evidence adduced in the County Court would be against the weight of the evideuce. Ou this appeal the defendant advances the same grounds for reversal.

The County Court, in convicting the defendant, disregarded all evidence of any test made in connection with the Llarger Breath Test or Drunkometer Test, and found the defendant guilty on other testimony given by the officer who arrested the defendant and by the doctor who examined him. Our examination of the record satisfies us that the County Court’s finding ivas not against the weight of the evidence and is amply supported by the testimony relied upon. Cf. State v. Myers, 136 N. J. L. 288 (Sup. Ct. 1947).

The acting magistrate heard and determined the matter in the municipal court under a designation made by the magistrate pursuant to Rule 8 :13 — 2. It is admitted that the designation met all formal requirements. Rule 8 :13-2 authorizes any magistrate to make such a designation whenever he “shall be unable to sit as such magistrate.” The defendant’s argument is that the magistrate of the Municipal Court of Plain-field was present and able to act and therefore ho lacked power to designate anyone else to sit for him as acting magistrate. Other than the fact that the magistrate was present in the building, there is nothing in the record to indicate whether the magistrate was able or unable to sit as such magistrate. In any event, there can be no question of the jurisdiction of the municipal court over the subject matter.

When a case is tried de novo on appeal in the County Court, the judgment of the County Court nullifies the judgment of the municipal court. Ride 2:11; Newbury v. Lawrence., 4 N. J. Misc. 267 (Sup. Ct. 1926); affirmed, 103 N. J. L. 199 (E. & A. 1926); State v. Court of Common Pleas of Essex Co., 2 N. J. Misc. 1143 (Sup. Ct. 1924). The judgment under review on this appeal is the judgment of the County Court on the trial de novo and the defendant is entitled to a review of that judgment only. Kluczek v. State, 115 N. J. L. 105 (Sup. Ct. 1935). Since the defendant participa! od in the trial on the merits before the County Court, he waived all defects, if any, in the conviction before the municipal court, other than lack of jurisdiction of the subject matter. State v. Rosenblum, 102 N. J. L. 125 (E. & A. 1925); Kluczek v. State, above; Newbury v. Lawrence, above.

The judgment is affirmed.


author: Bigelow, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FELIX FOX, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 6, 1951 —
    Decided March 5, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Maurice J. McKeown argued the cause for the respondent (Mr. Bichard J. Gongleton, Essex County Prosecutor; Mr. C. William Caruso, Legal Assistant Prosecutor).

      Mr. Gerald T. Foley argued the cause for the appellant.
   The opinion of the court was delivered by

Bigelow, J. A. D.

The appellant was convicted by a jury of receiving paint brushes that had been stolen from the M. B. Paint Specialties Company, contrary to the provisions of B. 8. 2:164Al.

One of the reasons urged for reversal is the denial of appellant’s motion for acquittal at the conclusion of the State’s case. Such a motion now takes the place of a motion to direct a verdict for the defendant. Rule 2 :7-7. Before the reorganization of our courts two years ago, a motion to direct a verdict was addressed to the discretion of the trial court. But if, at the conclusion of the State’s case, the evidence was insufficient to make a case for the jury, the denial of a motion for a direction made at that time was considered to work manifest wrong or injury to the accused and to he ground for reversal. This was so, even though later in the case evidence was received sufficient to establish the appellant’s guilt. Herein the rule was contrary to that followed in civil cases. State v. Primer, 127 N. J. L. 97 (Sup. Ct. 1941). It was thought that if the eh il rule were applied in criminal prosecutions, it would come perilously near compelling the accused to convict himself, since he must either forego making a defense on the merits or else risk having isolated bits of his testimony used against him to cure, the deficiencies in the State’s case. State v. Bacheller, 89 N. J. L. 433 (Sup. Ct. 1916). The substitution of a motion for judgment of acquittal in the place of a motion for a directed verdict, pursuant to Rule 2 :7-7, seems to be a change of name rather than of substance. The denial of the motion still raises a question on appeal that must be decided without regard to the evidence presented later in the trial. W turn to a consideration of the evidence.

The State proved that the IL B. Paint Specialties Company was engaged in the manufacture of paint brushes, called Ace brushes from an identification mark stamped on them. On February 12. 1919, or eariy the next morning, someone broke into their factory and stole 34y2 dozen brushes of sundry sizes.

Fox, the appellant, was in the business of selling paint and paint brasiles. One day around the middle of February, a painter named Eausch told him, “A man approached me last night. He said he had some brushes for sale.” The man was another painter, La Eosa. Forthwith by telephone an appointment was made and Eausch and Fox drove to La Eosa’s place of residence in East Orange. There La Eosa got info tiie car and directed them to an address on Norwood Street, Newark, where there was a garage which La Eosa rented. He went to the garage and in a few minutes returned, carrying a box containing.40 or 50 Ace paint brushes. La Rosa offered them for sale at $7 or $8 apiece for one size, and $6 or $7 for a smaller brush. After bargaining and figuring for five or ten minutes, a deal was made. Fox paid around $300 or $350 in cash for the brushes and La Rosa departed. But first Fox gave Rausch $5 and La Rosa gave him two brushes. La Rosa testified that he had bought the brushes not very long before he sold to Fox. But evidently he did not buy from the M. B. Paint Specialties Company, for he said, “I didn’t know where they came from,” and that he was told “they were surplus brushes.”

In March, La Rosa sold appellant more Ace brushes — about the same number or a few less than he had sold him in February. This time, appellant paid him for the brushes $381 by check. “By that time,” La Rosa testified, “I knew that there was something phoney about the brushes and I didn’t want any checks.” But he added, “I couldn’t tell him that because then I guessed the sale would be lost.”

Such, in substance, was the evidence presented by the State. The recognized test employed upon a motion to direct an acquittal is whether or not there is any legal evidence before the jury from which an inference of guilt can be legitimately drawn.. State v. Bricher, 99 N. J. L. 521 (E. & A. 1924); State v. Cammarata, 12 N. J. Misc. 115 (Sup. Ct. 1934); affirmed, 114 N. J. L. 274 (E. & A. 1935). The statute, B. S.. 2 :164-1, shifts the burden of going forward if a defendant is shown to possess stolen goods within one year after the theft. But there was no direct proof that the brushes-purchased by Fox were some of the brushes stolen on February 12, or at any other certain time. Indeed, there was no-direct proof that the brushes which Fox bought had been .stolen at all, or, assuming that they had been stolen, that he was aware of the fact. So we come to the question, Were the circumstances which the State proved, such that a jury'could properly infer that the brushes had been stolen?

In order to justify a convictioxx, the circumstances on which the State relies must be consistent with the defendant’s guilt and also, and more important for present purposes, they must be inconsistent with any rational theory of innocence. State v. Donohue, 2 N. J. 381, 390 (1919). The cited case dealt with the question whether the verdict was against the weight of the evidence, and not with the precise problem now before us, namely, whether the trial court should have directed a verdict. But when that is the problem and when the State relies upon circumstantial evidence, the inquiry is still whether the evidence excludes every reasonable hypothesis-except that of guilt. State v. Boyd, 137 N. J. L. 23 (Sup. Ct. 1948); affirmed, Ibid. 615 (E. & A. 1918). If the circumstances are fairly consistent with innocence, the inference of guilt cannot legitimately be drawn and judgment of acquittal should be granted.

It is obvious that the proofs in the ease before us fit the hypothesis that the brushes were stolen, in which event the defendant would be guilty of the crime charged. But it seems to us also clear that the circumstances which were-proved are consistent with another hypothesis, namely, — that Ace brushes were sold to the Government during the war, and upon demobilization were declared surplus; that some of' them eventually came into the possession of La Bosa and are the brushes sold to Eox. If such an hypothesis is reasonably and fairly tenable — and we find that it is — the motion for acquittal should have been granted.

We have omitted any mention of one item of evidence because we are satisfied it is without probative value against Eox. La Bosa was asked by the prosecutor: “You have entered a non vult, plea, have you not, to the indictment here charging the receiving by yourself of brushes from the M. B. Specialties Company?” He answered, “That’s right.” The “indictment here” does not mean the indictment on which Eox was being tried, for La Bosa is not mentioned in that indictment. Perhaps the word “here” in the question means that the plea was entered in the same court in which the trial was proceeding, or that the prosecutor held the indictment ini his hand while he asked the question.

The State argues that the testimony just quoted proves that the brushes sold by La Rosa to Eox had been stolen from the Specialties Company and so excludes the hypothesis of appellant’s innocence. This argument cannot be upheld merely by reference to general principles. If La Rosa’s plea of non vult be considered as an admission of the facts stated in the indictment, it is not an admission by Eox and therefore not evidential against Eox unless it falls within some recognized exception to the general rule. Wigmore, Evidence, § 1069. The exception that first comes to mind is that under which a statement of one conspirator or co-actor, made in furtherance of the conspiracy or common enterprise, is evidence against another conspirator or co-actor. State v. Seidman, 107 N. J. L. 204 (Sup. Ct. 1930); affirmed, State v. Fischman, 108 N. J. L. 550 (E. & A. 1931); State v. Guida, 118 N. J. L. 289 (Sup. Ct. 1937); affirmed, 119 N. J. L. 464 (E. & A. 1938). But La Rosa’s plea was not made in furtherance of any common plan to which he and Eox were parties, and so could not be evidence against Eox under that exception. State v. Herbert, 92 N. J. L. 341, 359 (Sup. Ct. 1918). Or it may be said that the confession of a principal is admissible on the trial of the accessory. Wigmore, Evidence, § 1079. State v. Fiore, 85 N. J. L. 311 (E. & A. 1913). But under our law, a receiver of stolen goods is guilty of a distinct, substantive offense, not an accessory to the theft; certainly not to a prior receiving or possessing of the same goods. State v. Calvin, 22 N. J. L. 207 (Sup. Ct. 1849); State v. Krupin, 100 N. J. L. 7 (Sup. Ct. 1924); affirmed, 101 N. J. L. 228 (E. & A. 1924). The thief and the receiver are not accomplices. State v. Rachman, 68 N. J. L. 120 (Sup. Ct. 1902).

But in State v. Rom, 77 N. J. L. 248 (Sup. Ct. 1909), on the trial of the receiver, the thief was permitted to testify that he had pleaded guilty. Objection was made “on the ground that the fact that the goods were stolen could not be proved in that way.” On the appeal, the objection was not urged, but Chief Justice Gummere remarked that the ground of objection was clearly untenable. He cited no authorities and gave no reasons in support of his dictum. Similarly, 53 O. J. 530 states it is generally held that the admissions of the thief are admissible to prove the theft, but the cases cited are not persuasive. On the other hand, Rex v. Turner, 1 Moody 347; 168 Eng. Rep. 1298 (Grown cases reserved 1832), holds that the confession of the thief is not admissible against the receiver. In State v. Gargano, 121 A. 657 (Conn. 1923), which contains a careful study of the problem, after pointing out that a plea of guilty is, in effect, merely a confession or statement by the pleader that he committed the crime charged, the court holds that it does not tend to establish the fact as against even a fellow conspirator. See also Kirby v. U. S., 174 U. S. 47, 19 S. Ct. 574 (1899); Peo. v. Kief, 27 N. E. 556 (N. Y. 1891); Wharton’s Criminal Evidence, ch. 10, and especially §§ 722 and 724. Tims far, we have, been considering the question as if a plea of non vult were the same as a plea of guilty. After sentence has been pronounced upon the plea of non vult, the defendant stands convicted of the crime just as much as if he had pleaded guilty or a jury had returned a verdict of guilty. Kravis v. Hoch, 136 N. J. L. 161 (E. & A. 1947). But in a civil suit for the same wrong, the plea does not bind the defendant, and it is not evidential against him. State v. Henson, 66 N. J. L. 601, 608 (E. & A. 1901). The case before us is, of course, a criminal prosecution, not against La Rosa, but against Fox. We are constrained to hold that his admission that he had pleaded non vult was not evidence as against Fox that the brushes had been stolen.

It was not incumbent upon Fox to object to the question about La Rosa’s plea, for the evidence was admissible for an entirely different purpose than that which we have been considering. The State — like any other party — by presenting a witness impliedly represents to the court that he is worthy of some credit. Carluccio v. Winter, 108 N. J. Eq. 174 (E. & A. 1931). It is therefore proper, when the State must rely on the evidence of a criminal, for the prosecutor, at the beginning of the examination, to bring out the fact that the witness has been convicted of crime, since the fact may aid the jury in weighing his testimony.

The motion for an acquittal should have been allowed.

There is a further reason why the judgment must be reversed. The State argued that the circumstances of the transaction with La Rosa were so peculiar that Fox should have known “that there was something wrong about those brushes.” Among the circumstances stressed was that La Rosa “is a painter. He is not in the business of buying and selling brushes.” And so Fox should have been put on his guard by the very considerable number of brushes that La Rosa offered to sell him. To meet this line of argument, Fox, when he took the stand, was asked by his counsel, “Wou]d you say it is unusual for another painter to have in his possession 40, 50 or 60 brushes?” The prosecutor objected, but before the court could rule, Fox answered, “Ho, I have sold one contractor as much as $1,250 worth in one order.” The court thereupon struck the answer. In our opinion, the answer was competent and material on the issue of appellant’s knowledge that the brushes had been stolen — -if that were the fact.

Judgment reversed.


author: Jayne, J. A. D.

text:
    ANTHONY MASI, PLAINTIFF-APPELLANT, v. WILLIAM R. MESTICE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1951 —
    Decided February 20, 1951.

      Before Judges McGeehan, Jayne and Wk. J. Brennan, Jr.

      Mr. Leslie S. Kohn argued the cause for the appellant (Mr. Frank G. Masini, attorney).

      Mr. William B. Mestice argued pro se.

   The opinion of the court was delivered by

Jayne, J. A. D.

To trace in detail the many evolutions of this case from the Essex County Court of Common Pleas in which a final judgment was entered on November 20, 1947, in favor of the plaintiff, to the Appellate Division, where the judgment was affirmed (4 N. J. Super. 452), to the Supreme Court, 3 N. J. 380, and to the threshold of the Supreme Court of the United States, and return, would be informational but of little relevancy to the subject matter of the present appeal.

Now comes before us for review an order of the Essex County Court annulling a sale of the defendant’s real estate on October 25, 1949, by the sheriff of Essex County made under the authority of a writ of execution which was issued on November 26, 1947, in pursuance of the final judgment.

In approaching the consideration of the present appeal, there are three recognizable postulates of major legal significance. They are that the process of execution issued out of a court of law, the property sold was real estate, and the summary proceeding in the County Court in which the order setting aside the sale was made, was conducted after the delivery of the deed by the sheriff.

There is abundant authority to sustain the general rule that courts of law possess the power of control over their own processes and doubtless the power to annul and set aside a sale of personal property made under the process of execution where the process has been so used as to accomplish fraud, injustice, or oppression. Voorhis v. Terhune, 50 N. J. L. 147 (E. & A. 1887). The reason fox the general rule is that a law court possesses a summary jurisdiction of an equitable nature for the purpose of preventing its own judgments and processes from being the means of working injustice, but this jurisdiction, certainly in case of the sale of real estate, expires when the process has been finally executed by the delivery of a deed to the purchaser.

In Marr v. Marr, 73 N. J. Eq. 643 (E. & A. 1908), Chancellor Pitney speaking for our former Court of Errors and Appeals explained (on p. 654) : “An important and perhaps controlling circumstance is that in the outcome the property sold for only half its value. We cannot agree with the learned vice-chancellor tiiat it is a sufficient answer to this to say that the law court from which an execution issues can set the sale aside for inadequacy of price. He cites Palladino v. Hilpert, 72 N. J. Eq. (2 Buch.) 270. In that case application was made to the court of chancery to restrain the sheriff from delivering the deed. In that juncture the application might have been made to the court out of which the execution had issued. After the delivery of the deed it is, of course, too late to do this. Where the law court sets aside a sale made under its process, it does so in the exercise of its equitable, not of its common, law powers. See Miller v. Barber, 73 N. J. L. (44 Vr.) 38, and cases cited. But these equitable powers are only incidental to the control which the court has over its own process of execution, and do not survive after the wait is fully executed. After the deed has been delivered to the purchaser, any application to set it aside for inadequacy of price must necessarily be made to the court of chancery, which court, in the exercise of its independent equitable powers, may either set aside the deed or treat the grantee as a trustee for others to the extent that he has reaped an undue profit from the traarsaction at their expense.”

In Ludlam v. Penna. Realty Co., 83 N. J. Eq. 130 (Ch. 1914), Vice-Chancellor Learning remarked: “This jurisdiction of the law court exists until the process has been finally •executed. * * * The amended bill, like the original bill, fails to disclose whether the sheriff’s deed lias been delivered.” See, also, the decision of the- same learned vice-chancellor in Margate Co. v. Hand, 86 N. J. Eq. 314 (Ch. 1916).

This limitation of the power of the court of law received more recent confirmation in the decision of Sapinsky v. Stout, 101 N. J. Eq. 813 (E. & A. 1927), in which it was stated (on p. 815) : “Appellant was without any relief that could be accorded by the Circuit Court, because the deed from the sheriff, in execution of his writ, had been delivered before appellant discovered the situation, if the allegations of the bill are true.”

The inadequacy of the remedy at law after the process had been finally executed was recognized in Century Transit Co. v. Public Service, &c., Inc., 117 N. J. Eq. 520, 524 (Ch. 1935).

In Karel v. Davis, 122 N. J. Eq. 526 (E. & A. 1937), Justice Heher was cautious to say, “And courts of law likewise possess inherent equitable powers to so control their executory process as to prevent injustice.”

The observance of this qualification of the jurisdiction at law is not confined to New Jersey. For example, the following quotation is taken from Some Owners’ Loan Corp. v. Edwards, 329 Pa. 529, 198 A. 133 (Sup. Ct. Penna. 1938) : “After delivery of the deed a petition to set aside a sheriff’s sale cannot be considered. Media Title & Trust Co. v. Kelly, 185 Pa. 131, 39 A. 833, 64 Am. St. Rep. 618; Tonge v. Radford, 103 Pa. Super. 131, 156 A. 814. As stated in Knox v. Noggle, supra, ‘A weakening of the rule * * * would seriously impair the stability of titles acquired through sheriff’s sales.’ The petition in this case was presented in proper time.”

Another, from Beckman v. Altoona Trust Co., 3 A. 2d 836 (Sup. Ct. Penna. 1938) : “The proceeding was started after the acknowledgment of the sheriff’s deed in open court, and delivery to appellee. The proper procedure to set aside a sheriff’s sale for inadequacy of price or irregularity is by petition and rule to show cause before acknowledgment of the deed. Knox v. Noggle, 328 Pa. 302, 304, 305, 196 A. 18. After the acknowledgment of the deed it is too late to raise these questions. If title is claimed by another, ejectment is the proper remedy to determine that question. Where there is fraud and collusion affecting the purchaser, equity can redress the wrong, but there is no such averment in this bill. See Evans v. Maury, 112 Pa. 300, 313, 314, 3 A. 850; Media Title & Trust Co. v. Kelly, 185 Pa. 131, 134, 39 A. 832, 64 Am. St. Rep. 618.”

Still another, from Petition of Westmoreland County Com’rs., 155 Pa. Super. 138, 38 A. 2d 709 (Superior Gt. Penna. 1944) : “The Supreme Court in Evans v. Maury, 112 Pa. 300, 3 A. 850, held that the lower court had no power in a summary proceeding, as upon a rule to show cause to set aside a sheriff’s sale, to compel a purchaser to surrender possession of the land and to deliver his deed therefor; that the purchaser’s title was good until it was proved to be procured by fraud upon the defendant in the execution, and this must be done either in an action of ejectment or bill in equity.”

“While there are decisions authorizing a motion to set aside the sale after the execution of a sheriff’s deed, it is generally held that equity has exclusive jurisdiction of a bill to set aside a sale, where the sale has been followed by a deed from the sheriff, since a court of law is incompetent to decree the cancellation of such deed and ihus remove the cloud it casts on the title, unless there was no judgment or execution, or the court had no jurisdiction to render the judgment. It has been held that a suit in equity does not lie unless a sheriff’s deed has been executed.” 23 G. J. 686, § 680.

“But after delivery of the deed, the law power of the court, in that respect, ceases, and equity only can set the sale or deed aside, on proper showing and proceedings for that purpose set on foot.” Rarer on Judicial Sales 365, § 965.

The basic reason for the exclusion of summary proceedings in such exigencies after the consummation of the execution sale of real estate is obvious and continues to retain its vitality in our present rules of civil practice and procedure. Buie 3:77-5 provides: “In all cases where a sheriff or coroner is authorized or ordered to sell real estate, he may deliver a good and sufficient conveyance in pursuance of the sale, unless a motion for the hearing of an objection to the sale is served upon him within 10 days of the sale or at any time thereafter before the delivery of the conveyance." (Italics ours.)

The numerous decisions such as Federal Title, &c., Guaranty Co. v. Lowenstein, 113 N. J. Eq. 200 (Ch. 1933), involving objections to the confirmation of Chancery foreclosure sales are not germane to the subject of immediate discussion.

The foregoing leads to the consideration of the equitable jurisdiction of the County Court under the present Constitution and existing legislation. Article VI, Sec. IE, paragraphs 4z and 5.

Initially we observe that there was no element of fraud on the part of the plaintiff that could have entitled the judgment debtor to equitable relief at law in the County Court. The following excerpt from the opinion of the judge is informative in that respect: “True it is that the plaintiff’s motives have been above reproach in putting off the day when the law by its process would exact such satisfaction from the defendant as his- property would yield. It is my conviction that the plaintiff was in constant hope that the defendant would some time abandon his truculent attitude, pay the judgment, and avoid the expense and hazard of forced sale. But he was mistaken in his appraisal of the defendant’s character and attitude. The defendant merely used the time bustling and bumbling in and out of courts, his mind intent only on defeating the law, not on expediting it. At least two of the adjournments were granted at the defendant’s request through the agency of others and, as appears likely, on misrepresentations.”

The consolidation of the former criminal, civil, and probate jurisdiction in the County Court is well known. The augmentation of its civil jurisdiction to receive and determine equitable defenses and in consequence to grant both legal and equitable relief in controversies properly within its jurisdiction is now recognized in the abstract. Cf. Miske v. Habay, 1 N. J. 368 (1949). It suffices to state that in our opinion in issuing a rule to show cause confined to why the sheriff’s deed of conveyance theretofore delivered should not be set aside, the County Court sought to entertain a purely equitable cause of action beyond the range of its jurisdiction.

Our conclusion that the County Court was without jurisdiction to make the order here under review renders it unnecessary to determine the legal sufficiency of the grounds upon which the order was granted. However, since one of those grounds materially implicates the stability of titles to real estate derived from sales conducted by sheriffs in pursuance of the pertinent statutory authority, wo are constrained to divulge that we do not concur in the construction placed by the county judge upon E. S. 2 :26-134 and 135. It was the interpretation of the county judge that sec. 135 had no bearing on the construction of sec. 134. But see, Pat. Laws 370.

Order reversed.