author: Sooy, J.

text:
    CHARLES GRAY AND ELLA GRAY, PLAINTIFFS, v. MARGARET ELMO, DEFENDANT.
    Decided October 27, 1931.
    For the rule, Gole & Cole.

    Contra, James Mercer Davis.

   Sooy, J.

A careful reading of the evidence discloses that the plaintiff, Mr. Gray, while driving his motorcycle toward Atlantic City and nearing Kentucky avenue, was suddenly confronted with the necessity for quick action in order to prevent a collision with another automobile which suddenly came into plaintiff’s line or path of travel; that Mr. Gray, in that situation, applied his brakes, turned (first) to the left and in a very brief space of time collided with defendant’s automobile.

Taking the evidence as a whole and viewing Mr. Gray’s control and management of bis motorcycle, under the circumstances with which he was confronted, I think that the jury’s finding in his favor on the charge of contributory negligence may not be disturbed. There is a conflict of testimony as to his rate of speed and as to what lane of traffic he was traveling in but the evidence as to what caused him to swerve from his course is undisputed (another car). Whether this “other car” was defendant’s automobile is another question. Certainly the evidence would not justify the court in holding plaintiff guilty of contributory negligence as a matter of law.

The question as to whether or not the defendant was guilty of the alleged negligence and whether her negligence was the proximate cause of the collision is the one with which the court must deal on this rule.

The alleged negligence was—

“The negligence of which the plaintiffs complain and of which the defendant is guilty consists in the fact that the said automobile of the defendant was operated recklessly and carelessly and without regard for other persons on the road; that she did not give any warning of the stopping of her automobile in the middle of the roadway of Abseeon Boulevard; that she did not accord plaintiffs the right of way to which they were entitled,” &c.

If the collision happened as related by defendant’s witnesses the verdict may not stand because it is quite evident that the “other or green car” was the offender and that defendant’s car being at a standstill, and having so been for a period of from two to five minutes, did nothing that in any way caused the collision which admittedly ensued.

If the collision happened as plaintiff says it did the jury was justified in finding that defendant’s auto caused the collision in failing to yield to plaintiff the right of way to which he was entitled under the circumstances as related by plaintiff. In other words, the allegation of negligence would support the verdict if the jury was justified, under the evidence, in finding that plaintiffs’ evidence supported the burden of proof.

I have carefully reviewed the evidence and have before me a mental picture of the blackboard drawing used at the trial and will not lengthen this opinion by recitals thereof.

A significant thing presents itself to me, as it probably did to the jury. Mr. Marino says that the skid marks left by the motorcycle were about sixty-five feet. Mr. McLees says about thirty feet. All of the witnesses for plaintiffs and the defense say that the motorcycle either swerved or skidded. All say that the first swerve was to the left and yet neither of these two witnesses (Marino and McLees) nor anyone else described the course of. the skid marks. Plaintiffs were in no position or condition, after the accident, to make any observations as to these marks. The defendant produced McLees and Marino. If the collision happened when defendant’s car was standing on the gravel, near the cement, the motorcycle, after its first swerve to the left, must have skidded in the opposite direction over to defendant’s car and these skid marks would have been evidence of the course of the motorcycle during the skid.

The skid mark, as testified to, if sixty-five feet, might tend to corroborate the testimony as to excessive speed of the motorcycle; if only thirty feet, otherwise. This situation arising out of the evidence and lack of evidence was for the jury. The probabilities were for the jury.

All of defendant’s witnesses have placed defendant’s automobile off the hard surface. All of them place plaintiff’s position on the road in a different lane of traffic than that which he says he was using and yet all of the witnesses say that plaintiff had to swerve to the left to avoid the “other or green car.” If plaintiff did so swerve, as all agree he did, he must have gone either over or near the center line of the highway'-, and to get back into contact with the Lincoln car he had to skid in the opposite direction from his swerve. Is this probable? It was for the jury to say.

All of the witnesses seem to agree that the motorcycle, after the collision, was in the second lane of traffic—a circumstance of little value, maybe—and yet one that played some part in determining the probability of the collision having taken place as plaintiff says or as defendant says it happened, especially, in view of the evidence of the damage done to the Lincoln—a little paint and a little scratch on its bumper.

Another circumstance with which the jury had to deal was the variance in the testimony of defendant’s witnesses as to what part the “green car” played in the accident, i. what it did and what its position was in the road just prior to the collision and what happened to it afterward.

Mrs. Elmo does not know what happened to it. Mrs. Kelley and Mr. Hermiston do not know. Marino says it passed his ear. Another witness, that it parked at the armory. All these witnesses differ widely as to the position of this automobile on the road, i. e., whether it was on the gravel or the cement, &c.

Mr. Hermiston puts the green car and possibly other cars in such position on the road that, he says, prevented Marino from seeing what was coming. He says that he did not see the motorcycle coming, page 146, and yet, on page 144, he says “the motorcycle came down there and swerved, skidded and struck the bumper,” &c.

Mr. Kelley says that he “cautioned the chauffeur.” Saw the motorcycle seventy-five yards away, coming forty-five or fifty miles per hour. He says that nothing obstructed his vision or that of his driver.

Mr. Marino described the action of the green car and when he testified that it passed him just before the accident, he created a situation that confronted the jury as to just how this could be and the accident happen as defendant contends it happened.

If the number of witnesses controlled, the rule should be made absolute, but that is not the test and I must say that a reading of the evidence, a fair consideration of the probabilities and the inferences which may be drawn from the testimony, taken as a whole, create in my mind a factual question that I might, as a juror, have considerable trouble in deciding—but—considering the verdict of the jury on the evidence presented and taking into consideration the fair inferences and probabilities arising from the evidence, I am unable to say that the verdict manifests any prejudice, passion or mistake.

I remember, clearly, that Mrs. Young made a mark on the blackboard and that the mark she made placed defendant’s car off the cement—but, a reading of her testimony makes the mark so made of little value and I frankly confess that had I been a juror her marking, in view of her testimony, would have had no weight.

It is argued that the jury was mistaken as to their award of damages to the wife. Counsel for plaintiff admits the verdict in her favor is too high and consented in open court to a reduction thereof. I think it too high and will reduce it but the mere fact that it was high may not be urged in support of the argument that the finding of negligence on the part of the defendant was contrary to the weight of evidence.

The rule will be discharged as to the plaintiff, Charles Gray, and be made absolute, on the question of damages only, unless the plaintiff, Mrs. Gray, will consent to accept $350 as her award for the injuries sustained by her.


source: Caselaw Access Project

author: Pee Ctjeiam.

license: Public Domain

text:
    SIG SCHOENAGLE, PROSECUTOR, v. HONORABLE SAMUEL M. SHAY, JUDGE CAMDEN COUNTY COURT OF COMMON PLEAS, ET AL., DEFENDANTS.
    Submitted October 26, 1931
    Decided October 28, 1931.
    Before Justices Tkenchakd, Daly and Donges.

      Eor the prosecutor, Walter S. Keown (George D. Rothermel, of counsel).
    Eor the defendants, Sidney Kaplan (Grover G. Richman, of counsel).
   Pee Ctjeiam.

This writ of certiorari brings up for review an order made September 22d, 1931, by the judge of the Camden County Court of Common Pleas, wherein the name of Sig Schoenagle was directed to be stricken from the register of voters in the fourth ward, first precinct, in the city and county of Camden.

The order under review was made after a hearing authorized by paragraphs 431, 432, section 1 of chapter 278, laws of 1930.

We have examined with care the evidence taken at the hearing, and, in view of -the necessity of a speedy decision, proceed at once to announce it.

We are unanimous in the conclusion that the order cannot be sustained.

As we see it there was no evidence—certainly no legal evidence'—'that Mr. Sehoenagle did not reside at his registered address, or that he was not entitled to vote from that address.

On the contrary, Mr. Sehoenagle testified—and his evidence was uncontradicted—that he had resided and voted in Camden since 1894; that continuously since 1914 he had resided at, and had voted from, his registered address where he lived in an apartment; that within that period he had served as a grand juror on the Camden county grand jury; that he never had any intention of residing elsewhere; that he had never voted elsewhere and had never attempted to vote elsewhere.

Undoubtedly this uncontradicted evidence established his right to vote from his registered address, and it follows that the order under review is without any rational basis in the evidence to support it.

The order brought up will be set aside and vacated, but without costs.


author: Smith, C. C. J.

text:
    EDWARD T. BARRETT, ADMINISTRATOR AD PROSEQUENDUM OF MARY M. BARRETT, DECEASED, PLAINTIFF, v. WILLIAM F. McDONALD, DEFENDANT.
    Decided October 31, 1931.
    For the plaintiff, Michael T. •& Hugh C. Barrett.

    For the defendant, Lindabury & Steelman.

   Smith, C. C. J.

This suit is brought to enforce a claim under the Death act. The plaintiff administrator ad prosequendumEdward T. Barrett, died subsequent to the institution of this suit, and the surrogate, on application of the next of kin, has appointed Anna M. Barrett as administratrix ad prosequendum in the place of deceased administrator. Application is now made to amend by substituting the name of the new administratrix and for some other minor changes which are not opposed.

The application, however, is opposed on the ground that the cause of action abates by the death of the administrator ad prosequéndum and is not revived by section 3 of the Abatement act, because that section provides only for reviver if the action might be originally prosecuted or maintained by the executor or administrator of the deceased plaintiff, and of course, the executor or administrator of Edward T. Barrett could not have originally maintained this suit.

In order to dispose of this question it is necessary to determine whether or not the cause of action abates by the plaintiff’s death. The cause of action is that of the next of kin, and therefore I see no reason why the amendment cannot be made. Our Court of Errors and Appeals in the case of Cooper v. Shore Electric Co., 63 N. J. L. 558, recognizes that an action does not abate by the death of the administrator. It may be that that ruling was not necessary for the decisión of the case, but it seems clear that where the cause of action does not abate, there may be a substitution for a deceased nominal plaintiff.

The plaintiff’s application will be granted.


author: Pee Citkiam:.

text:
    SAMUEL R. STEWARD ET AL., PROSECUTORS, v. CITY OF TRENTON ET AL., DEFENDANTS.
    Submitted May 15, 1931
    Decided November 4, 1931.
    Before Justices Teenchabd, Daly and Donges.
    Eor the prosecutors, Joseph H. Carr and Sydney T. Smith.

    Eor the defendants, Charles E. Bird and Romulus P. Rimo.

   Pee Citkiam:.

This case is similar to No. 205 of this term, Mulleady et al. v. City of Trenton et al., and what was said in that case applies to this case.

Our conclusion is that a writ of certiorari should be awarded to prosecutors. The rule to show cause is made absolute and a writ of certiorari to review the action of the zoning board of adjustment of the city of Trenton in denying the application of prosecutors for a building permit to enclose with glass and frame enclosure a porch on property owned by them at 947 Carteret avenue, in said city of Trenton, is awarded.


author: Per Curiam.

text:
    LUCIA NASCENDO AND JOHN NASCENDO ET AL., PLAINTIFFS, v. ALBERT VITOLO AND JOSEPH MESSINA, DEFENDANTS.
    Submitted May 15, 1931
    Decided November 4, 1931.
    Before Justices Trenciiakd, Daly and Donges.
    For the plaintiffs, Kalisch & Kalisch.

    For the defendant Albert Yitolo, John A. Matthews.

    For the defendant Joseph Messina, Jlolmwood & Or eight on.

   Per Curiam.

This is plaintiffs’ rule to show cause. The female plaintiffs, Lucia Nascendo and Antoinetta Pepe, were injured whilst passengers in an automobile admittedly owned and operated by the defendant Albert Vitolo. At the intersection of Center and Mulberry streets, in Newark, a collision occurred between Vitolo’s automobile and a truck of the defendant Joseph Messina, operated by one De Fusco.

Plaintiffs allege that both defendants were guilty of negligence, the defendant Yitolo by driving around to the left of a trolley car, and the truck driver in traveling at a high rate of speed and without due regard to the traffic on the highway. The trial resulted in a verdict for both defendants and plaintiffs have this rule to show cause why a new trial should not be granted.

Our study of the testimony persuades us that the collision was the result of negligence of one or both defendants. Inasmuch as the jury evidently disregarded the testimony in exculpating both defendants, we are of opinion that a new trial should be granted.

The rule to show cause is made absolute and a new trial granted.


author: Pee Oueiam.

text:
    HARRY F. MULLEADY ET AL., PROSECUTORS, v. CITY OF TRENTON ET AL., DEFENDANTS.
    Submitted May 15, 1931
    Decided November 4, 1931.
    Before Justices Teenchabi>, Daly and Donges.
    Eor the prosecutors, Joseph H. Carr and Sydney T. Smith.

    Eor the defendants, Charles E. Bird and Romulus P. Rimo.

   Pee Oueiam.

This is a rule to show cause why a writ of certiorari should not issue to review the action of the zoning board of adjustment of Trenton in refusing to grant to the prosecutors a building permit to enclose with glass and frame enclosure a porch on property owned by them at 245 Burt avenue, in said city.

The prosecutors did not desire to extend the outside line of said porch, but merely to erect the enclosure within the lines of the porch.

The permit was refused on the ground that it was in violation of section 12 of the zoning ordinance of Trenton. The pertinent part of said section is as follows:

“12. No building shall be erected and no building shall be reconstructed or altered so as to project in any wise beyond the' average setback line observed by buildings on the same side of the street within the block, at the time of the passage of this ordinance. * * *”

It is the contention of the city that the building of the porch enclosure beyond the front wall of the house proper constitutes a violation of section 12.

1. The first contention of the prosecutors is that their proposed alteration does not come within the prohibition of the above language. This is based upon the proposition that the setback line is the front line of the porch while the city contends that it is the front line of the building itself. Apparently there is no definition in the zoning ordinance and the prosecutors point to the definition of building line contained in Trenton’s building code. It seems to us that this can be properly taken into consideration. That definition is—•

“A line formed by the outer face of the closing wall of a building or portion thereof and surface of the ground. Where porches, balconies, windows, gutters, eaves, gutters, cornices, stairways, areas, &e., project beyond the outer face of the enclosing walls of the building, the building line shall be the outer face of such projection.”

Kef ere nee to the map of the two hundred block of Burt avenue indicates that the front line of the porch of prosecutors is within the average front porch line.

It seems to us that there is merit in the point of the prosecutors that the ordinance does not clearly indicate that such an alteration as this is meant to be prohibited. At least a debatable question is presented.

2. That the regulation attempted to be imposed under section 12 is not proper under chapter 274 of the laws of 1928. This is as follows:

“Such regulation shall be made in accordance with a comprehensive plan and designed for one or more of the following purposes: To lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health, morals or the general welfare; to provide adequate light and air; to avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for the particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.”

It seems perfectly clear that the attempt to prevent the enclosing of this porch is entirely without the purview of this statute.

3. That the application of the ordinance in this case is unreasonable. In Koplin v. South Orange, 6 N. J. Mis. R. 489, it was said that an ordinance must be within the above purposes and must not be otherwise unreasonable. It seems to us that it is unreasonable here. There are other enclosed porches in the neighborhood. It is not pointed out how the enclosure will adversely affect the surrounding properties. No objection was made by any adjoining property owners.

4. That prosecutors have been denied their constitutional rights. This raises no question not discussed above.

We conclude that the prosecutors are entitled to have a writ in the above case. Such writ is accordingly awarded.

What has been said above indicates our opinion that there is probably merit in the contention of the prosecutors and that the respondents may properly give further consideration to the matter.


author: Per Ctjriam.

text:
    CHARLES CAPONE, PROSECUTOR, v. THE UNION COUNTY PARK COMMISSION ET AL., DEFENDANTS.
    Submitted May 15, 1931
    Decided November 4, 1931.
    Before Justices Then guard, Daly and Donges.
    For the prosecutor, Henry 8. Waldman.

    For the defendants, David Armstrong.

   Per Ctjriam.

This case is before us on a writ of certiorari allowed to-review the dismissal of the prosecutor from the police force of the Union county park commission. Charges were preferred and, after a trial, the prosecutor was dismissed, having been found guilty on two of three counts.

The sole point argued is that the prosecutor did not have the fair trial guaranteed by the Municipalities act because-certain persons were allowed in the room while the commissioners were deliberating the case. Prosecutor relies upon the case of Eosecrans v. Westfield, a ease decided by Mr. Justice Bergen sitting alone, and not reported. In that case, after the council had deliberated and reached a conclusion that Eosecrans was guilty, the town attorney was called in to advise concerning the drafting of a resolution dismissing the accused. When he arrived in the room one councilman demurred at the penalty of dismissal and further discussion-occurred. For two hours the case was discussed and the town attorney joined in the discussion in that he advised the council with respect to legal matters but did not talk about the facts. Mr. Justice Bergen said that Rosecrans had not had a fair trial.

In the instant case, after the presentation of the testimony, everybody retired from the room except the secretary to the commission and the attorney. The secretary testified in the depositions taken under the writ that neither he nor the attorney took part in the discussion of the commissioners. They were not asked any questions, nor did they say anything. Later the chief of police was called into the meeting. It appears from the depositions that he was asked whether prosecutor would' resign if asked to do so. This had nothing to do with the merits of the case against Capone. In Ayres v. Newark, 49 N. J. L. 170, and other cases, it has been held that a fair trial in the sense of this act does not mean a trial conducted with regard to all .the formalities of a trial upon an indictment. It means a trial which insures the doing of substantial justice in the interest of the public. Prosecutor was not injured in the slightest by having the attorney and secretary in the meeting when they did not take part in the discussion, or by having the chief of police asked a question which had nothing to do with the charges against prosecutor or forming the conclusion of the commissioners.

The writ of certiorari is dismissed, with costs.


author: Mackay, C. C. J.

text:
    TRIO DYE WORKS, INCORPORATED, A CORPORATION, PLAINTIFF, v. SENTON SILK CORPORATION, DEFENDANT.
    Decided November 7, 1931.
    Eor the plaintiff, Harry Joelson.

    Eor the defendant, Benjamin L. Stein.

   Mackay, C. C. J.

This action was tried before the court and a jury June 9th, 1931, in the Passaic Circuit Court. The plaintiff sought to recover from the defendant the sum of $1,607.27, with interest from March 30th, 1930, amounting to $128.56, making a total of $1,735.83 for work, labor and services upon the goods mentioned in the complaint in this case, between December 30th, 1929, and March 5th, 1930. Work on some of the goods was at the rate of fifteen cents a yard and some at seventeen and one-half cents per yard. The defendant claims that the price of the work to be done was not fifteen cents and seventeen and one-half cents per yard respectively, but thirteen cents per yard for all of the work done.

If the only evidence on the part of the defendant had been that the price of thirteen cents was the amount which plaintiff charged because of the fact that it was shown on the written memoranda referred to on pages 4, 5 and 6 of the testimony, I would be inclined to agree with the plaintiff’s contention that the verdict is contrary to the entire weight of the evidence and the result of prejudice or mistake, but there is testimony on page 8 and elsewhere that the plaintiff’s authorized agent, Neslin, expressly agreed that it should be thirteen cents per yard. This leads to the conclusion that insofar as the plaintiff’s direct claim against the defendant is concerned, the verdict should not be disturbed.

The defendant charged by way of counter-claim, that on February 20th, 1930, by agreement between the plaintiff and defendant, the defendant delivered silk merchandise to the plaintiff for which the plaintiff at that time agreed with the defendant to pay the sum of $2,202.89, and that in pursuance of this agreement the said silk was delivered to the plaintiff and that the same has not been paid for.

The evidence in the case, however, does not conform to the counter-claim, because the evidence presented by defendant outlines a situation which shows that the plaintiff did certain work and labor and that the same was not satisfactory; that plaintiff said, with reference to the goods upon which the work had been done: “You try and sell the goods and let me know,” and, to the question: “How many pieces were there that you complained about?” the answer was: “There were forty-seven.” The testimony following then shows, simply as a conclusion, that defendant tried to sell them and would lose fifty cents a yard, and plaintiff said: “You had better send them back, charge them to me back.”

It therefore affirmatively appears that defendant’s counterclaim is based upon the fact that plaintiff did certain work on forty-seven pieces of goods, and the work having been done in such manner that the goods were damaged and a loss would result of fifty cents per yard, that plaintiff thereupon agreed to take the goods at seventy-one and one-half cents per yard.

Testimony is then adduced to show that no work was done by the plaintiff on twenty-seven pieces of the forty-seven pieces mentioned, nor was any part of the twenty-seven pieces ever on defendant’s premises, and further, that the twenty-seven pieces referred to were in the possession of the Capo Silk Dyeing Company. The mere fact that one man may have been president of the Trio Dye Works and the Capo Silk Dyeing Company does not make them one and the same company.

Mr. Buyer, the principal witness, and in fact the only witness for defendant, testified that the dyeing was never done by the plaintiff company; that the pieces were sent to the Capo company and the Capo company said it could improve them, and that the Capo company returned the goods to the defendant by its truckman and defendant refused to accept them. The goods are and have been ever since in the possession of the Capo company ready to be delivered to defendant.

From this evidence it appears that it was not a direct sale of goods, but a taking over at a certain price goods which it is claimed plantiff damaged while doing work thereon for defendant.

Defendant's counsel in his brief says: “At the trial the evidence produced on behalf of the defendant, in support of its counter-claim was—by Mr. Buyer, that the plaintiff dyed forty-seven pieces of silk for defendant; that the goods were defectively dyed;" &c. This is not so.

A verdict cannot be supported upon a theory of the law contrary to that upon which the case was submitted to the jury. Sensfelder v. Stokes, 69 N. J. L. 86; 54 Atl. Rep. 517; Cook v. American, &c., Gunpowder Co., 70 N. J. L. 65; 56 Atl. Rep. 114.

The evidence must show a case within the legal rules upon which the court submits the case to the jury. Bowlby v. Town of Phillipsburg, 83 N. J. L. 377; 84 Atl. Rep. 1051.

I realize that the court should not set a verdict aside even although in its opinion the jury might, upon the evidence, have found otherwise. Knickerbocker Ice Co. v. Anderson, 31 N. J. L. 333.

To justify the setting aside of a verdict as against the weight of the evidence, it must be so clear as to give rise to the inference that it was the result of mistake, passion or prejudice. Floersch v. Donnell, 82 N. J. L. 357; 82 Atl. Rep. 733; Queen v. Jennings, 93 N. J. L. 353; 108 Atl. Rep. 379.

Erom the theory upon which the case was submitted to-the jury and the testimony that was adduced at the trial, as-aforementioned, I am of the opinion that the great and overwhelming weight of the evidence, including Mr. Buyer’s-admissions on cross-examination, is that twenty-seven pieces-of goods were not dyed by plaintiff, and that the verdict on the counter-claim is the result of mistake or prejudice.

It may be that defendant will see fit to allow for the-twenty-seven pieces and reduce the verdict or judgment on the counter-claim to that extent. If not, the rule to show-cause as to the counter-claim will be made absolute and a. venire de novo issue.

The rule to show cause on plaintiff’s direct claim is-discharged.


author: Eldredge, J.

text:
    CELLIZED FLOORS, INCORPORATED, PLAINTIFF, v. GLENS FALLS INDEMNITY COMPANY, A CORPORATION OF STATE OF NEW YORK, DEFENDANT.
    Decided November 6, 1931.
    For the plaintiff, Riggyns ■& Davis.

    For the defendant, Starr, Summerill Lloyd.

   Eldredge, J.

On or about the third day of October, 1929, in accordance with the terms of an act of the legislature of New Jersey (Pamph. L. 1918, p. 203), known as “An act to protect persons performing labor or furnishing materials for the construction, alteration or repair of public works,” approved February 16th, 1918, the defendant Glens Falls Indemnity Company as surety entered into a bond to the board of education of the city of Bridgeton, Cumberland county, New Jersey, together with Joseph Costanza and Edward Costanza, partners, trading as Costanza Brothers as principal. The condition of said bond was for the payment by the contrator and by all subcontractors of all claims for labor performed or materials furnished in the construction of the work called for by a contract entered into between the board of education of Bridgeton and Costanza Brothers.

Prior thereto, namely, on the 25th day of September, 1929, the plaintiff in the present suit entered into a contract in writing with the said Costanza Brothers for the furnishing of certain materials and the performance of certain labor upon the Bridgeton junior high school in question, which materials and labor were to be furnished and performed in accordance with the terms and specifications of the contract with the school board above referred to for the price or sum of $9,453. Subsequent thereto, a supplemental contract was made between the plaintiff and Costanza Brothers providing for extra work and materials amounting to $954.84, and there was also an additional claim for extra labor and materials amounting to $25, making a total due the subcontractor, the plaintiff in this case, of $10,432.84. On account of this amount, the plaintiff was paid certain sums and it allowed certain credits, so that there was a balance due of $1,586.17.

Several days prior to March 16th, 1931, Costanza Brothers made and delivered to the plaintiff their check, bearing the above date, in the sum of $1,561.67, payable to the plaintiff^ order. At the time of the delivery of the check, the plaintiff in this suit executed the regular release of liens, discharging the land and buildings from any liability for its claims. The plaintiff, in due course of business, deposited the check in question, but when it was presented to the American National Bank of Camden, New Jersey, the bank upon which the check was drawn, payment was refused for lack of sufficient funds of the said Costanza Brothers, and the said check was duly protested for non-payment thereof, and the plaintiff has never been paid.

On or about April 9th, 1931, final settlement was made by the board of education of Bridgeton with the said Costanza Brothers, and at that settlement, a representative of the defendant company was present, and upon the statement by Costanza Brothers that all claims against them for work done and materials furnished were paid, the said representative consented to the payment by the board of education of the balance due the said Costanza Brothers upon the original contract. The affidavits disclose the fact that at the time this final settlement was made, the defendant in this ease had no knowledge whatever to the delivery of the post-dated cheek in March to the plaintiff;, or of its non-payment when presented to the bank.

The plaintiff; now seeks to recover from the defendant company under the additional bond above referred to, and in answer to its complaint, the defendant sets up two defenses. The first is that the acceptance of the check by the plaintiff constituted payment by Costanza Brothers and hence the defendant has no further obligation. The second is that the plaintiff, having accepted the check and signed the release of liens, is estopped from now setting up the fact that it lias not been paid.

The first ground seems to the court to be wholly untenable.

The mere acceptance of the check would not constitute payment, particularly so if it be post-dated, which happened in the instant case. A post-dated check is never more than a written promise to pay at some future date. “A cheek or promissory note, either of the debtor or third person, received for a debt, is not payment, if not itself paid except in cases where it is positively agreed to be received as payment.” Freeholders of Middlesex v. Thomas & Martin, 20 N. J. Eq. 39.

WTiatever inferences might be drawn from the circumstances surrounding the delivery of the check in question had it been immediately payable, certainly the very fact that it was post-dated negatives its acceptance as payment for the amount due under the contract and the discharge of Costanza Brothers. The affidavit of Jeannee M. Salvatore, bookkeeper for Costanza Brothers, is too indefinite on this point to be given much weight, and whatever may be its value is more than overcome by the affidavit of William E. Livezey, Jr., president of the plaintiff company.

The first defense being thus disposed of, it remains to consider the second, namely, the estoppel. The defendant alleges that by reason of the signing of the release of liens, it was induced to permit payment by the school board to Costanza Brothers, who, at the time of settlement, alleged that all claims were paid and signed an affidavit to that effect.

In order that the defendant may take advantage of the ■doctrine of estoppel, it must appear that the conduct of the plaintiff was either intended to deceive the defendant or was of such a nature that a reasonably prudent person would have been deceived by it; secondly, the defendant must have acted upon the conduct; and in the third place, the defendant company must have been without knowledge of the real facts. If it had knowledge of the truth or had means by which with reasonable diligence it could acquire knowledge, it cannot claim to have been misled by relying upon the conduct of the plaintiff. In applying these principles two things are to be borne in mind. In the first place, no actual receipt was ever given by the plaintiff for payment alleged to have been made to it. All that was signed or executed by the Cellized Floors, Incorporated, was a release of liens, the effect of which was to discharge the land and buildings, and was in nowise to release Costanza Brothers from their obligation to make payment under their contract. An examination of the instrument in question discloses that fact. In the second place, the affidavit attached to and made part of the release of liens, executed by Costanza Brothers, would not be binding upon the plaintiff and was to the knowledge of the defendant untrue. All claims had not been paid, as stated in the affidavit, and of this fact the defendant had knowledge. Mr. Frederick C. Black, superintendent of the company’s office in Philadelphia, who was present at the settlement, states in his affidavit filed for the purpose of this motion, that “at the time of final settlement, all creditors of Costanza Brothers who had not signed the release of liens were paid in full from the moneys in the hands of the board of education aforesaid.” His own affidavit then discloses the fact that all claims had not been paid as was stated in the affidavit referred to by counsel for the defendant and relied upon by him in this case.

A representative of the defendant company was present when the settlement was made by the school board with Costanza Brothers, and an examination of the release would have disclosed its nature. The particular purpose of the act of the legislature providing for an additional bond is to assure the payment of the materialmen and laborers, and there is nothing in the release that relieves the defendant company from its obligation. Materialmen and laborers are not protected in a bond given by tlie contractor for the faithful discharge of the covenants of the contract, and this additional bond is given for the express purpose of protecting them. The mere giving of a release of liens upon the lands and building would not of itself be such an act as would discharge the defendant company, particularly where it had every opportunity to inquire as to the nature of the instrument given.

Under facts which are practically identical with those contained in the present case, the Superior Court of the State -of Pennsylvania in the case of School District of the Borough o£ Eidley Park, Delaware county, Pennsylvania, to the use oí M. D. Gould, Incorporated, v. Seaboard Surety Company, in an opinion filed December 12th, 1930, held the surety company liable.

This court, for the reasons above slated and in complete agreement with the principles enunciated in the Pennsylvania decision just referred to, will make an order striking the answer.


author: Ackeeson, S. C. C.

text:
    LENORE RODRIQUEZ, BY ANTHONY RODRIQUEZ, HER NEXT FRIEND, AND ANTHONY RODRIQUEZ AND AURORA RODRIQUEZ, HIS WIFE, PLAINTIFFS, v. WILLIAM RICKER, DEFENDANT.
    Decided November 10, 1931.

      For the plaintiffs, Frank W. Heilenday.

    For the defendant, Collins & Corbin.

   Ackeeson, S. C. C.

This matter comes before me upon-a rule to show cause why the verdict of $10,000 in favor of the plaintiff Lenore Rodriquez and the verdict of $1,000 in favor of the plaintiffs, Anthony Rodriquez and Aurora Rodriquez (father and mother of the plaintiff Lenore), should not. be set aside and a new trial granted upon the grounds that, the verdicts are contrary to the weight of the evidence and excessive.

I have read the transcript of the testimony in this case-very carefully and the testimony at the trial is still fresh in my mind and I cannot say that the verdicts for the plaintiffs-are against the weight of the evidence.

I believe, however, that the verdict of $10,000 in favor of' the plaintiff Lenore Rodriquez is excessive. Taking the-testimony most favorable to her she sustained a cut on the-right cheek and lip which resulted in a permanent scar with numbness in the same above the lip, also likely to be permanent; a cut on the head; contusions and abrasions of both knees and contusions to the sacral region. She lost about twenty-three pounds in weight and has been very nervous since the accident, and has had to go to her doctor on the average of once a month since the accident. Six teeth were-loosened and the enamel rods on four of these teeth were-fractured, which may result in the loss of these teeth. She-suffered a great deal of pain and could not eat solid food for three weeks after the accident. She still feels weak and tired when working. The scar on the face necessitated six stitches and the scar is still very apparent although not amounting to a bad disfigurement.

In the case of Schwartz v. Pyle, 144 Atl. Rep. 323, a verdict of $1,000 in favor of a young girl who received wounds on the nose and chin requiring eight stitches was held not inadequate. The court indicated that a large recovery might have been justified. In the case of Katz v. Hyman & Oppenheim, 153 Atl. Rep. 264, a verdict of $5,000 in favor of a boy for wounds on left cheek caused by flying glass in an automobile accident and requiring dressing for nearly two months and twelve stitches together with other superficial wounds requiring no suturing, which did not seriously involve nerves or muscles was reduced to $1,500. On the other hand in the case of Squier v. Barlow, 149 Atl. Rep. 67, a verdict awarding $5,000 to a twenty-year-old girl for lacerations of the eyeball and cheek requiring six stitches resulting in a permanent sear and numbness from the bottom of the scar to the mouth, and disfiguring her face, and for nervous shock resulting in occasional nervous spells, was held not excessive.

With these cases in mind it is not difficult to reach the conclusion that a verdict of $10,000 for the plaintiff in the case sub judice is excessive, and the issued cases lead quite naturally to the conclusion that a verdict of $5,000 would have been ample under all of the circumstances of the case.

The verdict of $1,000 in favor of the young woman’s parents is not excessive, however, as the jury is justified in finding a probable loss to them of wages, medicinal expenses, &c., approximating that sum.

A rule absolute will therefore issue as to the damages to Lenore Rodriquez only, uni ess, within twenty days from the date of the entry of an order hereon, the plaintiff Leonore Rodriquez consents to reduce the verdict in her favor to the sum of $5,000, in which case the rule will be discharged.


text:
    MYRTIE C. VAN KEUREN, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. ERIE RAILROAD COMPANY ET AL., DEFENDANTS.
    Argued October 6, 1931
    Decided November 9, 1931.
    Before Justices Tbenchaed, Daly and Donges.
    Eor the application, Hobart & Minard.

      Contra, Alexander Simpson.

   Pee Ctjeiam.

Plaintiff has a verdict and defendants seek a rule to show cause why the verdict should not be set aside and a new trial granted.

Upon consideration of the matters presented, we conclude that the application for a rule to show cause should be denied.

The application is denied, with costs.


author: Pee Cubiam.

text:
    ALFRED H. HAZLEY, RELATOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY AND FRANK HAGUE, MICHAEL I. FAGAN, WILLIAM B. QUINN, JOHN BEGGANS AND ARTHUR POTTERTON, MEMBERS OF THE BOARD OF COMMISSIONERS OF JERSEY CITY, RESPONDENTS.
    Submitted May 15, 1931
    Decided November 12, 1931.

      Before Justices Tben'Chabd, Daly and Dodges.
    Eor the relator, John Milton.

    Eor the respondents, Thomas J. Brogan (Frank J. Rear-don, of counsel).
   Pee Cubiam.

This is a rule to show cause, directed to Jersey City, requiring it to show cause why a writ of mandamus should not issue commanding Jersey City to issue a permit to Alfred II. Hazley for the erection of three one-story brick buildings to contain sixty-four individual garages on property of Hazley in Jersey City.

The proofs indicate that the three buildings would in effect constitute one property containing sixty-four individual garages (and a caretaker’s apartment) one story in height and of brick, with concrete base and asphalt roof, the garages being separated from one another either by an eight-inch concrete wall or a four-inch concrete block wall, and occupying, all told, about twelve thousand square feet of land, owned by the relator, which land appears to be in the rear of lots of other owners fronting upon Eowler and other avenues, reached by a driveway from Fowler avenue, and being approximately in the center of a block bounded by Fowler avenue, McAdooavenue, Sterling avenue and Stevens avenue.

The application for the permit was made ori July 15th, 1930, and was denied on August 19th, 1930, for the reason that the land in question was “zoned for residential purpose's and that the said garages would create a commercial proposition in such residential neighborhood, and further that said garages would be detrimental to the health, welfare and public safety of that cominunily.

We think that the decision of the board of commissioners should be sustained. The zoning ordinance of March 21st, 1922, zoned the land in question as a residential section and prohibited the erection therein of a group of garages such as was proposed.

But the relator says that the ordinance was unconstitutional depriving the relator of his property without compensation. We think not..

The ordinance of 1922 in force at the time the application in question was made, must be given effect in view of the constitutional amendment of September 20th, 1927, and of chapter 274 of laws of 1928, as a valid exercise of the police power and a reasonable enactment in the interests of health, welfare and public safety. The decision of the board of commissioners to the effect that the buildings in question would be detrimental to public welfare and safety seems justified in view of the fact that the land in question is not only zoned as a residential section, but the street fronts surrounding the land in question seem to be to a considerable extent built and lived upon.

The application for mandamus will be denied and the rule to show cause discharged, with costs; with permission given to the relator to mould the pleadings for the purpose of review, if a review is desired.


text:
    EMMA C. ANDERSON, RELATOR, v. THE TOWNSHIP OF SCOTCH PLAINS, IN THE COUNTY OF UNION; ALEXANDER MUIR, GEORGE L. DELATOUR, Jr., AND ALEXANDER CAMPBELL, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF SCOTCH PLAINS, RESPONDENTS.
    Submitted May 15, 1931
    Decided November 12, 1931.

      Before Justices Treychard, Daly and Douges.
    Eor the relator, Bassin & Bassin (Harry Wellchek, of counsel).
    Eor the respondents, Walter L. Hetfield, Jr. (Francis A. Gordon, of counsel).
   Per Curiam.

This is a rale to show cause requiring the township of Scotch Plains to show cause why a writ of mandamus should not issue directing the respondents to issue a permit to the relator “for the construction and/or maintenance of any tanks or other containers for the storage of gasoline and for the erection and maintenance generally of a gasoline service station.”

The application was denied by the township committee, and we think properly so. Ordinance 24 of Scotch Plains provides that the township committee “in its discretion may refuse to grant permits for the construction or maintenance of any (such tank or other container, if, in its judgment the same would bo detrimental or dangerous to the best interests of the township.” That language, notwithstanding the criticism of the relator, we think is not objectionable. It calls for the exercise of a reasonable judgment of the committee.

Now let us see whether the judgment exercised was a reasonable judgment as the respondents contend, or an abuse of discretion as the relator contends. The relator neglected to submit any plans showing the location of the tanks and their size, although section 8 of the ordinance expressly requires the applicant so to do when applying to the township committee under this ordinance. Even at the time of the hearing the relator did not know the size of the tanks, although she then said there would be three tanks.

We think the committee could not well be expected to grant a permit for three tanks without knowing what size they would be.

Moreover, section 4 of Ordinance No. 9 requires that plans and specifications for plumbing work for the building which relator proposed to erect shall be filed separately with the board of health of the township and be approved by the proper officer of the board. No such plans or specifications were so filed and no such approval was had.

In Keller v. Commissioners of Irvington, 143 Atl. Rep. 738, the court pointed out that a writ to compel the issuance of a permit to keep combustibles should not be granted before the plans and specifications of the service station had been submitted to the proper department for approval.

Other objections to the issuance of the writ of mandamus applied for have been argued, but, in view of what we have already said, it seems unnecessary to discuss them.

The writ applied for must be denied for the reasons given, and the rule to show cause discharged, with costs.


author: Bodine, J.

text:
    GEORGE T. NEWELL, Jr., INCORPORATED, A CORPORATION OF NEW JERSEY, PROSECUTOR, v. THE WORKMEN’S COMPENSATION BUREAU OF THE STATE OF NEW JERSEY, HOLDEN BY W. H. STUBB, ESQUIRE, DEPUTY COMMISSIONER OF LABOR, RESPONDENT.
    Decided November 12, 1931.
    Eor the rule, Crawford Jamieson.

      Contra, V. Claude Palmer.

   Bodine, J.

The compensation bureau awarded compensation from December 28th, 1928, to February 10th, 1931, a period of one hundred and ten weeks and four days, at $20 a week.

Burton Kipple, age sixty-six, filed Ms application for compensation. lie based his claim upon the fact that while in the course of Ms employment he raised a can of ashes and got a sharp pain in his back.

Kipple having died before the hearing before the commissioner, the only testimony of the occurrence is by a fellow-workman, Peter Leone, whose pertinent testimony is as follows: “We got half way up the steps and he hurt his hack-lie almost lot go o l the can but he held on to it, but almost dropped it. 1 asked him if he could make it the rest of the way up and he said he could. * * * Q. Did he come hack to work after that time? A. Yes, he worked about a week, I guess, a week.” The date of the occurrence is fixed as of December 24th, 1928. There was testimony that shortly thereafter the man did not work and suffered pain in his back.

The medical testimony, in behalf of the petitioner, was given by Dr. Eugene Coffee, an osteopath, who first attended the petitioner on May 11th, 1929. He found an ankylosis of the lower dorsal and upper lumbar vertebrae of the spine, and continued to give osteopathic treatments until November 2d, 1929, when he advised the petitioner that he could find possibly more help in other treatments. The doctor testified that the injury which he found could be due to a severe crushing strain.

The defendant called two witnesses: Dr. Maurice Charnock, who examined the petitioner on Eebruary 1st, 1929, and attributed his condition to a chronic arthritis of the spine due to a focal infection, and testified the condition had been of slow development and had existed prior to December 24th, 1928. He was corroborated by Dr. Eichard B. Ernest.

The question is, therefore, whether there was sufficient proof of an accident arising out of and in the course of the employment to justify the finding of the commissioner. These findings are not to be lightly disturbed. Mountain Ice Co. v. Durkin, 144 Atl. Rep. 6; Berman v. Levenstein, 154 Id. 110.

The employer had, if there was an accident, the burden of proving that the back hurt because of the previously existing arthritis. Atchison v. Colgate & Co., 128 Atl. Rep. 598. There was, however, not proof of an accidental occurrence beyond Leone’s testimony referred to. Prosecutor contends that such testimony shows no accident. There is no proof that the man was doing anything unusual or that anything transpired save a complaint about a sore back while carrying the ashes from the cellar. It is suggested that this proof is as consistent with the prosecutor’s theory that the man was a vicim of arthritis and had been such for a long time as with the petitioner’s theory that an accident occurred when he suffered from a sharp pain in his back when he raised a pail ©f ashes. Dr. Coffee called the injury an ankylosis resulting from a severe crushing strain, but the proofs show also that it could have been caused by arthritis.

It seems that on the proofs adduced the defendant is entitled to a writ. Johnson v. Ulster Iron Works, 153 Atl. Rep. 95.

A writ of certiorari will be allowed returnable before the court on the third Tuesday in January.


author: Pee Curiam.

text:
    GIFFORD OIL COMPANY, INCORPORATED, PLAINTIFF-RESPONDENT, v. ELIAS SOURASKY, DEFENDANT-APPELLANT.
    Submitted May 15, 1931
    Decided November 13, 1931.
    Before Justices Teenciiaed, Daly and Donges.
    For the appellant, Levenson, Gomen & Levenson (Ahe D. Levenson, of counsel).
    For the respondent, John L.< Ridley.

   Pee Curiam.

This is the appeal of the defendant from a judgment entered on a verdict in favor of the plaintiff company in the Hudson County Circuit Court.

Only two points were argued by the appellant: (1) that the judge erred in denying a nonsuit; and (2) that he erred in refusing to direct a verdict for the defendant.

The suit was to recover for goods sold and delivered. The defendant answered that he was not indebted to the plaintiff in any amount and that the plaintiff did not sell and deliver to him any merchandise.

The only question at the trial was whether the oil was sold to Sourasky or to a corporation in which he was largely interested.

At the trial both tire president and the manager of the plaintiff company testified to a preliminary conversation they had with the defendant. They both testified in effect that defendant personally came to them and said that he was buying the goods and that he would pay for them; that they examined his credit and extended the credit to him; that the goods were delivered to him on his credit; that the credit of the corporation in which he was interested was never examined; that all dealings were had with him (Sourasky) respecting orders, prices and deliveries, and that he said that he would be personally responsible.

It is true that much of such testimony given by plaintiff’s witnesses was denied by the defendant. However, it may also he fairly said that there were admissions in the defendant’s own testimony from which the jury, if they saw fit, might have found from that alone that he was dealing personally on his personal account and on his own individual credit.

It is therefore quite plain that upon the whole case it was open to the jury to find, as they did, from the evidence, a contract between the plaintiff and the defendant, and that the promise was original and not collateral. Herendeed Mfg. Co. v. Moore, 66 N. J. L. 74; Ridgeway v. Corporation Liquidating Co., 71 Id. 676. It follows that the motions to nonsuit and to direct a verdict for the defendant were properly denied.

The judgment will be affirmed, with costs.


author: Bkown, S. C. C.

text:
    THE ORDINARY OF THE STATE OF NEW JERSEY, PLAINTIFF, v. VICTORIA G. BOYER AND AUGUST MARCHAND, DEFENDANTS.
    Decided November 14, 1931.
    For the plaintiff, McDermott, Enright <£• Carpenter.

    For the defendant August Marchand, Harry Perhel.

   Bkown, S. C. C.

This matter is presented on the plaintiff’s motion to strike the “Fourth Separate Defense” of defendant’s answer on the ground that the same is sham. The moving party has presented proof that the allegations in the defense mentioned are sham. There being no answering affidavits it follows that the motion to strike should prevail.

An order may be presented in accordance with this finding.


text:
    HENRY LEDERER, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Submitted May 15, 1931
    Decided November 16, 1931.

      Before Gummere, Chief Justice, and Justices Parker and Case.
    Eor the plaintiff, Feder & Rinzler.

    Eor the defendant, William F. Vosseller.

   Per Curiam.

This is an accident case in which plaintiff has a verdict of $1,000. The sole reason urged is that the verdict is against the weight of evidence. We think that it is. Plaintiff’s claim was that he was a passenger and boarded a trolley car operated by the defendant when the same had stopped to let him on, and that while he was in the act of boarding, the car started with a sudden, unusual and violent jerk which thew him to the floor, inflicting personal injuries. The evidence shows that his ankle was broken; that he was in the hospital for several days; that his leg was in a plaster cast for about seven weeks; that he was confined to the house for about, five months after the accident and then walked on crutches, afterwards with a cane, and that it was over a year before he could dispense with the cane. The plaintiff claimed that in addition to the pain and suffering, &c., he lost his weekly commissions as an insurance man, averaging $30 to $35 a week for a period of six months.

The evidence on the part of the defendant tended to show there was no jolt of the car but that the car had not yet come to a stop when plaintiff attempted to jump on and get ahead of two women who were waiting to board it, and that he turned his ankle in so doing. Several witnesses, including the conductor and the two women in question, testified substantially to these facts, and the plaintiff’s own story was seriously impeached by apparently credible testimony of physicians and others that he had stated the injury was due to his slipping on the platform on a banana peel or something of that kind.

We think the verdict of the jury has the usual earmarks of a compromise verdict because it would seem that if the company was liable, the verdict should have been considerably more than was returned by the jury. Our conclusion is that the verdict was clearly against the weight of the evidence and should be set aside.

The rule will accordingly be made absolute.


author: Peb Cueiaii.

text:
    THE STATE, EX REL. WILLIAM SPECK, RELATOR, v. GEORGE MOSELEY, RESPONDENT.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Guaoieee, Oiiiee Justice, and Justices Pabicee and Case.
    For the relator, Wright, Vanderburgh & McCarthy.

   Peb Cueiaii.

Assuming the information to have been duly filed by leave of the court, wdiich the printed book does not show, it challenges the right of respondent, Moseley, to hold the office of patrolman in the paid police department of the borough of Fairview, on the ground that when appointed he was over the age of thirty-five years. There is a general demurrer.

The attack is obviously founded on a series of statutes purporting to be amendments of section 2 of “An act respecting municipal police departments * * *,” approved April 23 st, 1915. Pamph. L., p. 688. See Pamph. L. 1926, p. 600; 1927, p. 495; 1928, p. 387. But as we have twice distinctly held, these so-called amendments were futile, .because at the time they were enacted the act of 1915 on which they were based had been repealed and was no longer in existence. Pamph. L. 1917, ch. 204 (at p. 665). See Mulsoff v. Sloat, 8 N. J. Mis. R. 554; 151 Atl. Rep. 113, and Wentzell v. Steelman, 8 N. J. Mis. R. 503; 151 Atl. Rep. 116. These eases are dispositive of the matter so far as we are now concerned. The respondent is entitled to judgment on the demurrer, with costs.


text:
    COOPER COLES, PLAINTIFF, v. PEOPLES GAS COMPANY, A CORPORATION, AND CHARLES D. PROSSER, DEFENDANTS.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gtjmmere, Chief Justice, and Justices Parker and Case.
    Eor the plaintiff, Waddington & Mathews.

    For the defendant Peoples Gas Company, Biggins & Davis.

   Per Curiam.

This matter is on defendant Peoples Gas Company’s rule to show cause why a verdict of $1,800 rendered against it and in favor of the plaintiff in the Salem Circuit and a verdict of “no canse for action” awarded to the co-defendant, Charles D. Prosser, should not be set aside and a new trial granted. Exceptions taken by the prosecutor at the trial were reserved. On the oral presentation before us the prosecutor, apprehensive that the inclusion of its rule against Charles D. Prosser might involve its exceptions, waived that branch of its argument.

The action is for the killing, by gas escaping from the prosecutor’s pipes, of six shade trees, two of which are on plaintiff’s property and four of which are on the side of the highway on land recently sold by the plaintiff to the state for highway purposes.

The prosecutor’s reasons under the rule are that the verdict of the jury in favor of the plaintiff is contrary to the charge of the judge at the trial as to damages, and that the damages found by the jury for the plaintiff are excessive.

A legal question arose at the trial as to whether the plaintiff had such an easement in the four trees along the highway, notwithstanding the same were rooted in ground of which the fee was in the state, as that he could maintain an action against a wrong-doer who destroyed them. The trial court, influenced bj' the case of Donahue v. Keystone Gas Co., decided by the New York Court of Appeals and reported in 73 N. K. Rep. 1108, held that the plaintiff could maintain such an action and accordingly denied the prosecutor’s motion for a nonsuit as to the four trees, allowing an exception to the ruling, and later charged the jury to like effect, granting an exception to that ruling also. In the course of that portion of the charge the court said:

“I charge you that the sale of the land upon which the trees stood, should not be considered by you in determining whether or not the plaintiff is entitled to recover for the loss of these four trees. You ma)'-, however, take that sale into consideration, with respect to the question of damage done to the farm.”

The jury followed that instruction and made an award consistent therewith to the plaintiff. We fail to grasp the force of prosecutor’s first point. If an erroneous legal proposition was stated to the jury for its guidance, the prosecutor will obtain its remedy in pursuing its exceptions.

The amount of the damages was in dispute. Prosecutor’s witnesses placed it as low as five hundred or six hundred dollars. Witnesses for the plaintiff placed it from fifteen hundred dollars to two thousand dollars. The jury awarded eighteen hundred dollars. Apparently they believed the plaintiff’s witnesses. They were entitled so to do. We may scarcely find fault with the jury for lawfully performing its function. Again, if the standard set by the court for the jury action was legally wrong, the prosecutor’s redress will be had in following up the exceptions which are reserved from this ruling.

The rule to show cause is discharged, with costs.


text:
    MARION AGNES WOOD AND J. O. WOOD, HER HUSBAND, PLAINTIFFS, v. FRED T. SEVING, DEFENDANT.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummere, Chief Justice, and Justices Pabkkr and Case.
    Eor the plaintiffs, Ralph N. Kellam.

    Eor the defendant, George M. Hillman.

   Pee Curiam.

This matter is before us on defendant’s rule to show cause why the verdicts rendered in the Burlington Circuit for the plaintiffs should not be set aside and a new trial granted. The action was to recover damages growing out of an automobile collision. The jury awarded $1,000 to Marion Agnes Wood for personal injuries, $347 to her husband, J. 0. Wood, for loss of Mrs. Wood’s services and for incidental disbursements, and $364.75 to Mr. Wood for damages to his automobile.

On the return of: the rule defendant argues that the verdicts of $1,000 and $347 were excessive and “not based upon or warranted by the evidence.” Inasmuch as the liability of the defendant was plainly a jury question and the brief of the defendant does not touch upon that subject, we conclude that it is the amounts of the verdicts which, according to the defendant’s contention, were not warranted by the proofs. It is in evidence that Mrs. Wood sustained broken ribs, which were strapped and which for some months partially incapacitated her, and also that her right kidney and bladder were so injured that the kidney will have to be removed, and that she frequently visited physicians, and spent several days in a hospital. The propriety of the rulings by which some of this evidence was, over objection, admitted is not before us. With such proofs in the record we are unable to say that the award to Mrs. Wood was excessive. The proofs also include the payment from Mr. Woods funds of $127 or more in and about, the recovery of Mrs. Wood; in addition to which there was; a loss of consortium which can scarcely be calculated to the* nicety of a dollar. Therefore, we are not disposed to disturb the verdict of $347 for Mr. Wood. The verdict for property damage was warranted by the evidence and is not made the subject of attack in defendant’s brief.

The rule will be discharged, with costs.


text:
    THE STATE, DEFENDANT IN ERROR, v. FRED REGNA, PLAINTIFF IN ERROR.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Eor the plaintiff in error, Samuel L. Hirschberg.

    For the state, John Drewen, prosecutor of the pleas.
   Per Curiam.

Notwithstanding an apparent record of conviction of the crime of embezzlement in this case, our examination of the proceedings on the trial makes it clear that the plaintiff in error was not tried for that crime, and the prosecutor so concedes. The record of course imports verity, and technically is controlling until amended by the trial court. But to save tedious procedure we think the practical course is to reverse the judgment shown by the record before us and remand the cause to the trial court, for a further disposition of the matter.

Let the judgment be reversed accordingly.


author: Pee Cueiam.

text:
    ANNA DEGARBRIS AND HUSBAND, PLAINTIFFS, v. LEONARD GEROME AND FLOCKHART FOUNDRY COMPANY, DEFENDANTS.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummebe, Chief Justice, and Justices Paekee and Case.
    Eor the plaintiffs, Ezra W. Karhus.

    For the defendants, James L. Handford.

   Pee Cueiam.

The female plaintiff was struck by defendants’ motor car while crossing a road and was injured. The jury awarded a verdict in her favor of $200 and to her husband, per quod, $300.

The plaintiffs claim that the verdict is inadequate; the defendants, that there should have been a verdict in their favor.

Our reading of the testimony satisfies us that if the plaintiffs were entitled to any damages the amounts found are plainly inadequate; but on the other hand the right to a recovery is in our view most doubtful. Our conclusion is that there should be a new trial at large, whereat the questions both of liability and quantum of damages may be retried.


text:
    FLOWER HILL CEMETERY COMPANY, PROSECUTOR, v. TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, RESPONDENT. MACPELAH CEMETERY ASSOCIATION, PROSECUTOR, v. TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, RESPONDENT.
    Argued May 6, 1931
    Decided November 16, 1931.
    Before Gummere, Ciiiee Justice, and Justices Parker and Case.
    Eor the prosecutor Plower Hill Cemetery Company, John H. Sheridan.

    Por the prosecutor Macpelah Cemetery Association, Percy G-. Britt.

   Per Curiam.

The respective prosecutors own lands in the above-named township which are devoted to cemetery purposes and consequently under the statutes as expounded in numerous decisions, are exempt from assessment for local improvements. Notwithstanding this exemption, the township undertook to assess said lands for the' construction of a sewer, &c., and these writs were allowed.

The law seems perfectly clear and the township was not even represented by counsel at the argument.

Let the assessments be set aside, with costs in each case.


text:
    ANTHONY MASCI, PLAINTIFF, v. CHARLES YOUNG, DEFENDANT.
    Decided November 16, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Eor the plaintiff, Aaron L. Simon.

    For the defendant, Kellogg <& Chance.

   Per Curiam.

Plaintiff obtained a verdict, at the Passaic Circuit, against the defendant in the amount of $14,000 for personal injuries received in an automobile accident.

The single question before us on defendant’s rule to show cause why a new trial should not be granted is the claim that the damages awarded by the verdict are excessive.

Plaintiff is seventy years of age, a tailor by occupation, employed on piecework basis. Before receiving the injuries sued upon he made between two and three coats a week and earned between $23 and $25 for each coat. The principal injury was a comminuted fracture of the leg which caused the plaintiff to be twice placed in a cast, the first time for six weeks and the second time for about two and one-half months. In addition, some teeth were loosened and later came out, and there were a laceration of the scalp and a brain concussion. In the healing process of the fractured leg there appears to have been an overlapping of the bone, resulting in a shortening of the leg of an inch and a half with a probable percentage of impairment in the plaintiff’s capacity for following his trade.

Our consideration of all the circumstances of the case, including the age of the plaintiff, brings us to the conclusion that the verdict was excessive. If the plaintiff will consent to a reduction of the verdict to the sum of $10,000, the rule will be discharged; otherwise the rule will be made absolute and a new trial ordered.


author: Pee Citbiam.

text:
    MARIE HEBERT ET AL., PLAINTIFFS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT AND HARRY SCHIFFMAN AND MORRIS SOLOMON, DEFENDANTS.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before G-ummeke, Chief Justice, and Justices Pakkek and Case.
    Eor the plaintiffs, Aaron L. Simon.

    Eor the defendants holding the rule, Elmer W. Bomine.

    Eor the defendant Morris Solomon, Herbert B. Baer.

   Pee Citbiam.

This is a ease of collision between a public service bus going south and a private automobile driven by plaintiff Victor Hebert, going north on Lexington avenue, Passaic, just north of the point where Hamilton avenue comes in from the southeast. Defendant Solomon was also proceeding south on Lexington avenue in his own autbmobile. The evidence makes it fairly clear that there was some confusion as between Solomon’s car and the bus, as a result of which the bus and Hebert’s car came together, damaging the latter car and injuring Hebert’s wife, who was then pregnant and suffered a miscarriage in consequence of the accident, and slightly injuring a Mrs. Martin, who was riding in the Hebert car. There was a verdict in favor of Mrs. Hebert of $5,000; of her husband, $500; for Mrs. Martin, $150, and for her husband, $50, all as against the corporate defendant and the bus driver. Solomon was acquitted by the jury. The reasons now assigned are simply that the verdict was against the weight of evidence, and is excessive.

The testimony is confused, particularly as neither Hebert nor his wife nor Mrs. Martin gave any account of the circumstances of the accident, and plaintiffs’ counsel relied mainly on the bus driver and Solomon as witnesses. We have examined the evidence with care, and do not feel that we can reach a better result than the jury did. A substantial point in dispute was whether the Solomon car came up from behind and cut across the front of the bus from right to the left and perhaps back again, or whether the bus prior to the accident came up behind the Solomon car and passed it on its left and encroached on the roadway where Hebert’s car was coming north, whether out of Hamilton avenue or turning out of Sherman avenue, a cross street intersecting at this point, does not appear.

The verdict is not so clearly wrong as to justify us in interfering with it as against the weight of evidence. Nor are the awards to Hebert and the Martins excessive. The verdict for Mrs. Hebert, however, we think is excessive. It is plain that no permanent injury was done to her, as she was in normal health at the time of the trial, barring a complaint of nervousness.

The rule as to all plaintiffs except Mrs. Hebert and as to-Solomon will be discharged. As to Mrs. Hebert it will be-made absolute unless she consents to scale her verdict to-$2,500, in which case it will be discharged.


text:
    NORA MARSHALL, MARIE JOSEPHINE MARSHALL AND LEO MARSHALL, PLAINTIFFS, v. HYATT ROLLER BEARING COMPANY, A CORPORATION, AND LAURIE COPPEN, DEFENDANTS.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummere, Chibe Justice, and Justices Parker, and Case.
    For the plaintiffs, Charles A. Rooney.

    Eor the defendants, Reynier J. Wortendylce, Jr.

   Per Curiam.

This case comes up on plaintiffs’ rule to show cause why a. new trial should not be granted as to amount of damages only..

Plaintiff Leo Marshall owned and operated an automobile occupied also by the two other plaintiffs, his mother and wife, respectively, which, as it was crossing the intersection of Warren and Seventh streets in the town of Harrison, from ■east to west, was struck in the rear by the truck owned by the corporate defendant and driven by the remaining defendant, and going north. Verdicts were given in the amount ■of $700 to Marie, $500 to Nora and $300 to Leo.

The main issue in the cause was whether the more or less .serious physical condition which the women claimed to have experienced after the accident was due to the accident. The contest was over the severity of the injuries, whether certain present physical manifestations on the part of the women are the result of the accident or due to other causes.

The testimony adduced by the plaintiffs would support the contention that the accident was responsible, but reputable medical testimony produced on behalf of the defendant is to the opposite. Dr. Hector testified in effect that the only result of the accident so far as Mrs. Marie Josephine Marshall was concerned was a little discomfort in her hand and that the remaining troubles from which the plaintiff suffered, namely, a spreading of certain pelvic bones, was the result of childbirth, not from a blow to the external part of the body, and that the myocarditic condition from which Nora Marshall suffers is not due to the accident either as an initial or aggravating cause. Those contentions were fought out before the jury and the jury apparently believed the defendants’ side of the case.

Tailing marked superiority in the evidence on the part of the plaintiff, which we do not find, we think we should not set the verdict aside. The husband’s verdict might perhaps have been larger but, taking into consideration that the much greater part of the medical expense was due apparently on the jurors’ finding, to causes other than the accident, and that the loss of consortium is also to such other causes, the award to the husband was not so grossly inadequate as to require a new trial.

The rule will be discharged.


text:
    JOSEPH ORDZIEJEWSKI, PLAINTIFF-PROSECUTOR, v. RUTH M. ELVIN, DEFENDANT-RESPONDENT.
    Decided November 16, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    For the plaintiff-prosecutor, Isadore Rabinowitz.

    For the defendant-respondent, Charles C. Stalter.

   Per Curiam.

This case comes up on plaintiff’s rule to show cause why a verdict in the amount of $750 rendered for the plaintiff and against the defendant at the Passaic Circuit should not be set aside on the ground of inadequacy and a new trial granted as to damages only. The single reason presented is. that the damages awarded by the jury are inadequate. Whether or not the damages are inadequate depends upon the extent and permanency of the injuries as determined by the jury. The evidence presented by the plaintiff is divergent. That of the attending physician reflects a less serious condition than that of a specialist who did not render professional services to the plaintiff and whose single examination of the plaintiff was shortly preceding and apparently for the sole purpose of the trial. We are in doubt as to whether the verdict is so plainly inadequate as to justify our interference. Herstein v. Choate, 4 N. J. Mis. R. 996. But the defendant does not resist a trial de novo. Such a direction may be made on the present rule (Doucha v. Hamilton, 8 N. J. Mis. R. 890), and we think that the problem of the case may best be met by that solution.

The verdict will be set aside in toto and a new trial granted.


text:
    TIMOTHY O’LEARY, BY NEXT FRIEND, RESPONDENT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, APPELLANT.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummeee, Chief Justice, and Justices Paekee and Case.
    For the appellant, James J. Iliggms.

    For the respondent, Joseph F. S. Fitzpatrick.

   Pee Cueiam.

The plaintiff, a man non compos mentis, was seriously injured late one night at the Hoboken trolley car terminal of the defendant, adjoining the Lackawanna railroad station, on the ground level. At that point there is a loop in the track, which running from west to east about parallel with and south of the street, curves to the north, crosses the sidewalk substantially at a right angle and runs out into the street, curving toward the west. Just east of the curve of the loop there is a building which hides outgoing cars from view of anyone on the sidewalk to the eastward until they begin to cross the sidewalk. Plaintiff who had been on the sidewalk east of the loop, came into collision with a car which came out from behind the building and was crossing the sidewalk. He had a verdict and judgment which are now before us on this appeal.

On the rather voluminous evidence.in the ease, a number of questions of fact were presented which involved serious contradictions in the evidence but which we need not here consider. It is sufficient to say that in our estimation the judgment is vitiated by material error in the charge of the trial court, to which exception was taken and which is laid before us in the grounds of appeal. The court charged in part: “It was the duty of the operator of this trolley car to operate it at such a rate of speed as to have the same under control, so that if it became necessary to stop the car, or slacken its speed in order not to injure the plaintiff, he could do so.” This, in our judgment, was unwarranted in law. It placed on the motorman an absolute duty at all events so to regulate his car as to avoid injuring the plaintiff. It was harmful, because the evidence raised serious questions of careless behavior on the part of the plaintiff, and even hinted at an attempt at suicide. It was not withdrawn, or legally countervailed by anything else in the charge.

In Geyer v. Public Service Railway Co., 98 N. J. L. 470, which appears to be relied on by both sides, the Court of Errors and Appeals sustained the refusal of the trial court to charge an essentially similar request, by saying “it was too broad, since it placed improperly the whole burden of avoiding a collision upon the motorman, without any regard to the recklessness of the driver of the other vehicle.”

Another passage in the charge, in which the court seems to have left it to the jury to say whether plaintiff was under any duty at all to look for a car coming out from behind the building, is attacked as contrary to the uniform trend of our decisions, but we find it unnecessary to deal with it further than to suggest that the general rule requiring some observation on the part of persons of full age and sound mind is well settled. Whether it should apply without qualification in the case of a feeble-minded person is another matter.

Eor the error above noted, the judgment must be reversed to the end that a venire de novo issue.


text:
    FRANCES BUTRYN ET AL., PLAINTIFFS-RESPONDENTS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION, AND GARFIELD-PASSAIC TRANSIT COMPANY, A CORPORATION, DEFENDANTS-APPELLANTS.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummebe, Chief Justice, and Justices Partcer and Case.
    Eor the plaintiffs-respondents, Patten ■& Amlicke {Joseph J. IFeinberger, of counsel).
    Eor the defendant-appellant Public Service Co-ordinated Transport, Henry II. Fr-yling {William F. Vosseler, of counsel).
   Per Curiam.

The plaintiff Prances Butryn was painfully injured on July 21st, 1929, while a passenger in a bus belonging to the Garfield-Passaic Transit Company, as a result of a collision between the bus and a trolley car of the Public Service Coordinated Transport. Other plaintiffs joined with Mrs. Butryn in the action. Amongst such was Felix Butryn, her husband, who sued for and received incidental damages because of the wife’s injury. A verdict of no cause of action was rendered as to Garfield-Passaic Transit Company. The case comes before us on a rule to show cause granted at the instance of Public Service Co-ordinated Transport, which rule runs only to the point that the verdict of $8,000 in favor of Mrs. Butryn is excessive.

The plaintiff received bodily contusions and nervous shock as well as a laceration of the left nasal bone, but her chief injury was to the right arm, including the shoulder and hand. There subsisted at the time of the trial an impairment of the usefulness of the right arm, claimed by the plaintiff’s physician to be thirty per centum and by the defendant’s physician to be fifteen per centum of normal usefulness. The plaintiff was under medical attention until shortly before the trial, which was December 3d, 1930. Prior to the accident she had been able to do her housework and perform certain employment at a woolen mill for which she earned $13.50 per week. There was proof to the effect that she had been unable to resume her work in the factory and that she had not been able to function fully in her own housework. The action in Mrs. Butryn’s behalf does not include expenses incident to her treatment or recovery.

We believe that under the proofs the verdict of $8,000 was excessive. If plaintiff will consent to a reduction of the verdict to the sum of $6,000, the rule will be discharged; otherwise the rule will be made absolute and a new trial granted.


author: Pee Cukiam.

text:
    CHARLES C. McKEAGUE, PLAINTIFF, v. THE ATLANTIC CITY AND SHORE RAILROAD COMPANY, A CORPORATION, DEFENDANT.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the plaintiff, William, I. Garrison.

    Por the defendant, Bourgeois & Coulomb.

   Pee Cukiam.

This is on defendant’s rule to show cause why the verdict ■ol $1,000 rendered against it at the Atlantic Circuit should not be set aside and a new trial ordered. The reason assigned is that the verdict is against the overwhelming weight ol the evidence on the question of liability and is the clear result of passion, prejudice and mistake on the part of the jury. Plaintiff’s Chevrolet automobile, driven by plaintiff, wa's demolished by a collision with defendant’s electrically-driven work car at the intersection of defendant’s tracks with Ocean Heights avenue in Atlantic county. In addition, the plaintiff received personal injuries. The acts of negligence .alleged in the complaint were the allowing of the warning signal at the intersection-to become out of order, the operation of defendant’s car without sounding a warning whistle •or bell on approaching the crossing and the driving of the ear •at an excessive rate of speed.

It was stipulated between the parties that the defendant had the status of a steam railroad. The case, therefore, went to the jury with the instruction that the defendant had the right to operate its trains at such speed as it deemed necessary. There is now no dispute concerning that proposition ■of law.

The evidence brought into the case a further suggestion of negligence in the fact that the defendant maintained a freight house on its lands near the intersection of the highway and the railroad track in such manner as to partially ■obstruct the view. The convincing testimony on this point is that on approaching the tracks the user of the highway, just before reaching the shed, had an unobstructed view in the direction from which the work car approached of fourteen hundred feet and that after passing the shed, for the distance of twenty-one and a half feet between the shed and the nearest rail of the track on which the work car was propelled, he had a yet more extended vision.

With the exception of the negative testimony of one witness who admits that he was paying no attention to the circumstance, the proof that the warning signals located at the crossing were out of order and failed to work is found entirely in the testimony of the-plaintiff. Without detailing the testimony to the contrary, we express our conclusion that the-weight of the testimony is decisively to the effect that the-warning signals at the crossing were actually operating and that the whistle on the work car was blown on approaching-the crossing.

The testimony of the plaintiff was that he had stopped his automobile to make an observation for an approaching-train and had just gotten under way and was traveling at. the rate of two miles an hour when he was ten feet from the-tracks. At that point, namely, ten feet from the tracks,, he had a clear view up the tracks of over a mile. We fail to understand how the plaintiff, had he been in the exercise-of reasonable care, could have failed to see and to hear the-warning signals, or to stop his automobile in due season to-avoid the accident. By the great weight of the testimony he was guilty of negligence, without which the accident would not have occurred. It is unnecessary for us to determine-whether the defendant was free of negligence, or was guilty of negligence to which the negligence of the plaintiff materially contributed.

The rule will be made absolute.


author: Per Cuetam.

text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PROSECUTOR, v. ANNA F. CITARELLA, RESPONDENT.
    Submitted May 15, 1931
    Decided November 13, 1931.

      Before Justices Tbenciiaed, Daly and Doistges.
    Eox the prosecutor, 'William A. Stevens, attorney-general, and Robert Peacock, assistant attorney-general.
    Eox the respondent, Frank B. Bozza.

   Per Cuetam.

This writ of certiorari brings up the action of the trial judge of the Second District Court of Newark in adjudging the defendant not guilty in an action brought by the State Board of Medical Examiners charging the defendant, Citarella, with the violation of section 10 of the act to regulate the practice of medicine, &c., in that defendant did commence and continue the practice of medicine and surgery within the meaning of section 8 of the act without having first obtained a license therefor.

The defendant was convicted at the first trial and was then granted a new trial by the trial judge apparently upon the ground that the trial was heard in the absence of the defendant. At the new trial the judge gave judgment in favor of the defendant and against the plaintiff.

We think that was erroneous. There was ample and undisputed testimony upon the part of the state board to the effect that the defendant was not licensed; that her place was furnished like a hospital, with instruments, compartments and beds; that she treated various witnesses for various complaints by the use upon the bodies of the witnesses of electrical appliances after having diagnosed their condition as various diseases. In one case she treated a woman for anemia after taking her blood pressure with an instrument; in another case she treated a woman for rheumatism and strained muscles. The defendant did not take the witness-stand and produced no witnesses in contradiction of the testimony upon the part of the state board that she used three or four different kinds of electrical instruments in the treatment of witnesses. Such evidence uncontradicted not only justified but required a finding of violation of the provision of the statute of which complaint was made. The proceeding was civil and not criminal in character. The rules of procedure peculiar to civil jurisdiction were applicable. State Board v. Van Burens, 77 N. J. L. 433; State Board v. Roche, 102 Id. 262; Lowrie v. State Board, 90 Id. 54; State Board v. Johnson, 141 Atl. Rep. 591.

The judgment below will be reversed and a new trial awarded.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN DONNARUMMA, PLAINTIFF IN ERROR.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummeee, Chief Justice, and Justices Pabkeb, and Case.
    Eor the plaintiff in error, A. Michael Lepore.

    Eor the defendant in error, John Drewen, prosecutor (Harlan Besson and Edward J. Madden, on the brief).
   Pee Cubiam.

John Donnarumma, plaintiff in error, defendant below, was convicted in the Hudson County Court of Quarter Sessions on indictments charging him with keeping a disorderly house and accepting the earnings of a prostitute. The record comes up at the instance of the defendant below under section 136 of the Criminal Procedure act. The prosecutor contends that the record is not properly certified; but we find it unnecessary to consider that question.

The only assignment of error is that the verdict is contrary to the weight of the evidence, and in support thereof it is argued that the verdict was the result of mistake in that the jury failed to weigh the evidence and of prejudice against the plaintiff in error, whom we shall call the defendant, because of his business, which is said to be that of keeping a spaghetti restaurant, and of his foreign extraction. As to the latter contention, it is sufficient to say that there is not the slightest indication in the record that prejudice, either for the reasons named or otherwise, entered into the jury verdict. The defendant concedes that the woman whose earnings are said to have been received by him was a prostitute and that she was regularly employed by the defendant in the capacity of waitress. The evidence sustains a finding that on at least two occasions this woman was used on defendant’s premises for purposes of prostitution, on each of which occasions $5 was paid, of which $3 went to the woman and $2 to the defendant. The substances of this testimony, it is true, came from the woman herself, but it was sufficient with the corroborating circumstances otherwise proved to sustain the jury’s verdict.

The judgment below will be affirmed.


text:
    CAROLINE J. RYERSON, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN RYERSON, DECEASED, PLAINTIFF, v. PAUL LEISEL, DEFENDANT.
    Submitted May 15, 1931
    Decided November 16, 1931.

      Before Gummere, Chief Justice, and Justices Parker and Case.
    Eor the plaintiff, Collins & Corbin (Edward A. Marlcley and Howard F. McIntyre, of counsel).
    Eor the defendant, Leo E. Duff (Frank K. Runyon, of counsel).
   Per Curiam.

Plaintiff as administratrix ad prosequendum received a verdict of $7,500 at the Hudson Circuit for the death of her husband. The decedent, while crossing Communipaw avenue at the intersection of Monticello avenue, was struck by an automobile owned and driven by the defendant. His death was the result of that accident. The only testimony was that of the defendant himself, called as a witness on behalf of the plaintiff with respect to the accident, and that of the plaintiff, who testified to the actual death of her husband and also to her husband’s earnings and contributions to the household. The case comes up on defendant’s rule to show cause why a new trial should not be granted upon the grounds that there was no evidence of any negligence on the part of the ■defendant and that the verdict of the jury was excessive.

The defendant testified that he was driving at about twenty miles an hour in a built-up section where the houses were less than one hundred feet apart; that only the cowl lights ■on his car were lit; that the decedent, when the witness first saw him, was in the act of crossing the street directly in front of the defendant’s automobile and eight feet distant therefrom; that defendant cannot say that he signaled by blowing the horn but that the brake which the defendant sought to apply was the emergency brake, and that alter defendant’s car struck the decedent, the car continued for its length before stopping. We find no evidence of the use, or the attempted use, of the service or foot brake. Indeed there is no proof of the actual application of the emergency brake. The testimony of the witness is that he “went down for the brake.” It is obvious, of course, that some braking appliance was applied because the ear was ultimately brought to a stop, but we consider that there was sufficient in the defendant’s testimony, having regard to the traffic, the character of the neighborhood, the view had by the defendant and his failure to stop the car, and indeed all of the attendant circumstances, to sustain the jury in finding negligent operation.

The evidence showed earnings by the decedent of $45 per week, but it is not clear that he had any actual dependents except his wife. The testimony is that there are nine children but that only two of them live at home. One of the two is a daughter, who is working and contributes from twenty-two to twenty-four dollars a week to the household, and the other is a son, who, because of the death of Ms wife, lives at home and pays his board. The remaining children are married and live elsewhere. A grandson fourteen years of age lives in the household, but the fact of dependency upon the decedent is not manifest. That portion of plaintiff’s brief which relies upon the figures of mortality tables has no foundation in the proofs.

We consider that the verdict is excessive and should be reduced to the sum of $5,000. If the plaintiff will consent to a reduction of the verdict to that amount, the rule will be discharged; otherwise the rule will be made absolute.


text:
    J. EDMUND LINZMAYER, PLAINTIFF-APPELLANT, v. ARTHUR T. PHAIR, DEFENDANT-RESPONDENT.
    Decided November 16, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    For the plaintiff-appellant, Applegate, Stevens, Foster & Reussille.

    For the defendant-respondent, Henry K. Golenboclc.

   Per Curiam.

This is an appeal by the plaintiff from a judgment against him and in favor of the defendant on a directed verdict in the Monmouth County Common Pleas Court.

The four grounds of appeal stated by the plaintiff as reasons for reversal may be resolved into the single proposition that the court erred in directing the jury to bring in a verdict for the defendant. The reason given by the court for so ruling was that the plaintiff was guilty of contributory negligence in that the negligence of the defendant in driving, as the evidence was, at the speed of thirty-five miles per hour through a fog so heavy that the headlights of the car did not illuminate to the view of the plaintiff, sitting in the front seat beside the driver, for a distance of more than seven or eight feet ahead was imputable to the plaintiff in that the latter, though knowing the danger, did not bring that danger to the attention of the defendant. Aside from the incidental facts that the plaintiff was not himself an automobile driver with such peculiar knowledge of driving conditions as comes to such a one, and had not the benefit of the clearer vision that the windshield wiper brought to the man at the wheel, there arc further salient facts that take this case out of the realm where the court is justified in finding contributory negligence as a matter of law.

Plaintiff and defendant, friends, were driving in defendant’s car, with defendant at the wheel, through a dense fog, by night, and at a speed, as already stated, of approximately thirty-five miles per hour. At an intersecting highway, through which the route of the parties lay, were two corner lights, both of which focused on the intersection. As defendant attempted to make the turn and lifted his foot from the accelerator to slow up the car, the accelerator stuck. Plaintiff testifies positively that that incident happened, and defendant says that he believes it did. Plaintiff further testifies that defendant reached down to pull the accelerator up with his hand and in so doing lost control of the car. Defendant testifies that he “took his eyes off the road for a second to pull it up” with his foot. It was at that instant that the car left the road and hit a tree, with injury to the plaintiff. To what extent did the fixed lights at the intersection, regardless of the projecting power of the automobile headlights, give the driver fair warning of his location? It is common knowledge that the extent to which a light at or near the observer will illuminate the surroundings by projection is not a criterion as to the illumination given by a, more distant light over the space between it and the observer. Did defendant’s acts with respect to the accelerator and his handling of the car in that emergency constitute negligence and, if so, was that crisis entirely or measurably independent of the fog condition ? We think that those and like questions were clearly for the jury to determine and that the court erred in taking that function from them.

Judgment below will be reversed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ABRAHAM HENIG, PLAINTIFF IN ERROR.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.

      Abraham Renig, pro se.

    Eor the defendant in error, Joseph L. Smiih, prosecutor.
   Per Curiam.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the Essex Special Sessions before Judge Brennan, sitting without a jury, under an indictment charging him with uttering and delivering, with intent to defraud, to one Julian Broder, a check drawn by the defendant upon a bank wherein the defendant to his knowledge had not then sufficient funds or credit for the payment of the check. Pamph. L. 1919, ch. 72. The case comes up at the instance of the defendant under strict writ of error and also under the one hundred and thirty-sixth section of the Criminal Procedure act.

The first point presented by the defendant is that there was error on the part of the trial judge in refusing to permit the following question to be asked the defendant: “What kind of a clock was it?” The question had relation to a clock purchased by the defendant of Broder and which was one of the articles for which the check was given in payment. The reason given for the asking of the question was that corroboration would thus be had for the defendant’s story that the clock was too big to be carried away by him and that he had therefore left it and later returned with a conveyance thus confirming a portion of the defendant’s story. Ho harm came to the defendant by the overruling of the question for the reason that the substance of such an answer as would have been competent was already in the testimony from the lips of the witness as follows: “It was a heavy clock and I didn’t have a conveyance. I came there afterwards and took it, on the 18th.”

The next point presented by the defendant is that the court erred in refusing to permit the witness Scheck to answer the question: “Was there any explanation given to you by Mr. Henig as to the need for that check?” Scheck was the attorney of Eosenthal & Klein, insurance brokers, who had secured the issue of a life insurance policy to Henig, upon which policy Henig was endeavoring to obtain a cash payment. The date of the check which was the subject of the indictment was December 18th, 1929. The payment involved in the question was not received by the witness until January, 1930. The question which the court overruled sought to elicit a remark made by the defendant at a time still subsequent to the receipt of that payment by the witness. We consider that the question was not relevant to the issue being tried.

Points three and four are that the court refused to direct a verdict of acquittal and that the verdict is contrary to law and against the weight of the evidence. We consider that there was ample evidence before the court sustain a finding that the defendant uttered and delivered a check in payment for merchandise on a bank with which he had no account and no credit and that the prima facie force given by the statute to this situation was at no time overcome.

The judgment below will he affirmed.