author: Lawrence, C. C. J.

text:
    CHARLES D. SMITH, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MARY ELIZABETH SMITH, DECEASED, PLAINTIFF, v. JAMES D. KIRBY, DEFENDANT.
    Decided September 25, 1933.
    For the rule, Durand, Ivins & Carton.

    Opposed, Quinn, Parsons & Doremus.

   Lawrence, C. C. J.

This suit arose under the Death act, and involved the negligent driving of an automobile by defendant’s brother, Malcolm, and in which his grandmother, Mary Elizabeth Smith, was riding at the time. She received injuries of which she died. The jury found for plaintiff and against the defendant and assessed the damages at $2,000. Under the rule to show cause why a new trial should not be granted, it was argued that the verdict was contrary to the weight of the evidence, particularly as to the responsibility of the defendant who was not in the car. The circumstances appear to have been that sometime before the occurrence Malcolm desired to purchase an automobile. Not having enough money, his grandmother advanced the necessary funds, largely because the car would be subject to their joint use. He was a minor and the registration license was taken out in the name of the defendant, who was of age. It was not clear at the trial whether the bill of sale was also in his name, as it was not produced and Malcolm stated that he thought it was in the name of his grandmother. Defendant’s answer, however, as drafted by his attorney, indicated that both the title and the license were in his name. He did not appear at the trial nor was he otherwise examined. Both boys made their home with the grandparents. James (the defendant) also had a car of his own. After it was purchased, the car in question appears to have been driven by Malcolm and used by Mrs. Smith whenever she desired. On the day of the accident Mrs. Smith expressed a desire to go and look at a forest fire some distance from their home. Malcolm offered to drive her and James said, according to the former, “take the car and take her out,” while Mr. Smith’s statement at the trial was that James said, “Malcolm, take my car and take grandmother down there.” In fact, he took the car which he and his grandmother had purchased and was using it at the time of the accident for one of the purposes for which it had been bought. Malcolm was not made a party defendant, but it was open to the jury to find that his negligence was the proximate cause of the injuries to Mrs. Smith. An issue stressed was whether, in the circumsances stated, the general presumption of agency between the owner and driver of an automobile involved in an-accident had been sufficiently rebutted to justify a verdict for defendant; also whether Mrs. Smith was, under the evidence, shown to have been a mere licensee in the car, because of her request to be taken on the journey.

An examination of the record discloses, however, that the real question was whether there was evidence from which the jury could properly have found that the relation of principal and agent or master and servant impliedly existed between the defendant and his brother at the time of the accident, with the result that the latter’s negligence could have been imputed to the former. Considering the state of the proofs, the verdict does not appear to have been justified, in view of the holding in Doran v. Thomsen, 76 N. J. L. 754; 71 Atl. Rep. 296. As a matter of fact, there was uncontradicted testimony to the effect that Mrs. Smith and her grandson Malcolm were the real owners of the ear with the right to use it and that the defendant took title to it as a convenience for them; that on the day in question she expressed the wish to be taken for a ride; that Malcolm volunteered to drive, and that James permitted or acquiesced in the use of the car. As between Mrs. Smith and Malcolm, had she not died, a cause of action arose because of his negligent driving, and so to her surviving husband under the Death act, but not so as against the defendant. The use of the car as to him at most was permissive and neither the relation of principal and agent nor master and servant as between him and his brother was shown. It was said in Doran v. Thomsen, supra (at p. 762), that an essential element in the creation of the relation of master and servant as a matter of implication, so far as third persons are concerned, is that the use of the vehicle must be in furtherance of and not apart from the master’s service and control, and that a distinction must be made between a mere permission to use and a use subject to the control of the master and connected with his affairs. In its general discussion of the relation of principal and agent and master and servant the cited case also appears to be applicable. So considered, it seems apparent that the evidence offered at the trial of the present suit failed to show that defendant could be held legally responsible in either relation for the negligence charged. The fact that he held title to the automobile would not of itself suffice, taking into account the other features of the case developed by the proofs. The conclusion is that the rule to show cause should be made absolute.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JAMES GOODMAN AND LEWIS MOLNAR, PROSECUTORS, v. FRANK H. EGGERS, JUDGE OF THE FIRST CRIMINAL COURT OF JERSEY CITY, RESPONDENT.
    Submitted May 12, 1933
    Decided September 27, 1933.

      Before Justices Case, Bodine aud Donges.
    Bor the prosecutor, Raskin <& Hornstein (Isidore Horn-stein) .

    Bor the respondent, James A. Hamill (Charles A. Rooney).

   Per Curiam.

The writ brings up for review a conviction of the prosecutors under section 1 of the Disorderly Persons act. 2 Comp. Stat., p. 1926. The prosecutors were in a taxicab when stopped, and had in their possession $4,500 in worthless cashier’s checks used admittedly as a “flash.” They did not appear to have a fixed abode and could not give a good account of themselves.

Section! of the statute relates to paupers, beggars, family deserters, those who practice palmistry, vagabonds and other undesirables. No objection was made to the complaint and the men stood trial. The sufficiency of the charge cannot now be considered. State v. Rosenblum, 102 N. J. L. 125; 130 Atl. Rep. 614.

The record indicates that the prosecutors had flown from Washington to Newark to get a check, won in gambling on a Blorida boat, certified. They could give no account of where they were going, and the home addresses which they gave were fictitious. The evidence indicates they were vagabonds. Webster’s new International Dictionary defines a vagabond to be: “One who wanders from place to place, having no fixed dwelling, or, if he has one, not abiding in it; a wanderer, especially such a person who is lazy and generally worthless and without means of honest livelihood.”

Obviously, these men fall within this definition. A conviction under the first section of the act can be sustained. The circumstance that they rode in a cab makes them no less vagabonds than if they went on foot. The big circumstance is that they had no fixed dwelling so far as can be discovered, and went about from place to place without visible means of support. Such persons are an obvious menace. The statute was intended as a speedy means of dealing with those who traveled around without a fixed abode and without any visible means of support.

The judgment is affirmed.


text:
    FRANK BLUE, PLAINTIFF-PROSECUTOR, v. JOHN L. SNITZLER, OVERSEER OF THE POOR, DEFENDANT.
    Submitted May 12, 1933
    Decided September 27, 1933.
    Before Justices Case, Bodine and Donges.
    Bor the plaintiff-prosecutor, G. Raymond Lyons.

    Bor the defendant, Thomas H. Eagerty.

   Per Curiam.

The writ in this case brings up for review a judgment of filiation in an action by the overseer of the poor tried in the Quarter Sessions before a jury.

The first reason for reversal relates to the action of the trial court in sustaining an objection to the following question addressed to defendant’s witness, Marie Becza: “Do you know what her [the complainant’s] reputation is for truth and veracity in the neighborhood?” It clearly appeared from the testimony that the word “neighborhood” referred to the “neighborhood” where he had resided.

It was open to the defendant to impeach, if he could, complaining witness’ testimony by showing that her reputation for truth and veracity was poor. 7 Corp. Jur. 989; State v. Polhemus, 65 N. J. L. 387; 47 Atl. Rep. 470. The foundation for the question was well laid. State v. Baldanzo, 106 N. J. L. 498; 148 Atl. Rep. 725, and the exclusion of the question was reversible error, if manifest wrong and injury was done to the defendant. We do not think it can be said that the error was harmless, although the proceeding was a civil one. Montclair v. Eason, 92 N. J. L. 199; 104 Atl. Rep. 291. It was essential that the plaintiff establish the truth of the charge. The defendant was harmed when he was precluded from showing the reputation of the complainant for truth and veracity.

Even though the proceeding in the Quarter Sessions was a trial de novo, there was no harm in asking the defendant on cross-examination if he had denied the charge as made in the recorder’s court. It was a relevant inquiry as to his conduct on a former occasion when he had an opportunity to testify and failed so to do.

The charge of the court was not an invasion upon the rights of the jury. The comments of the court upon the testimony are within the bounds of the evidence. The issues were finally submitted to the jury in such a way that they must have realized that the facts must be found by them from the evidence, as they recalled it, before a verdict could be reached.

The judgment is reversed.


author: Mountain, C. C. J.

text:
    ATLANTA TABLE COMPANY, A CORPORATION, PLAINTIFF, v. JOSEPH BRENNER, TRADING AS BRENNER DESK COMPANY, DEFENDANT.
    Decided September 30, 1933.

      For the plaintiff, Tumarhin & Kasen.

    For the defendant, George H. Rosensiein.

   Mountain, C. C. J.

There was a difference of opinion between the parties to this action as to how much the defendant owed the plaintiff. Before the action was commenced the defendant tendered $220 to the plaintiff. The plaintiff refused this amount and commenced suit. The defendant immediately-paid $220 to the clerk of this court and pleaded tender. It appeared that tender had been made by sending a check to the plaintiff, which the plaintiff had in its possession at the time of the commencement of this action. At the trial the plaintiff obtained a verdict for $220 and application is now made to this court to award the defendant costs. This is in accordance with the common law for Mr. Blackstone, in his commentaries on the laws of England says in the chapter on pleading: “If, after the money paid in, the plaintiff proceeds in his suit, it is at his own peril; for, if he does not prove more due than is so paid into court, he shall be nonsuited and pay the defendant costs; but he shall still have the money so paid in, for that the defendant has acknowledged to be his due.”

By the terms of the Practice act of this state, costs usually follow a judgment, although they may be disregarded in the discretion of the gourt.

It is contended that the deposit of the tender should have been made subject to a rule of court. That is not the practice in the Court of Chancery (Neldon v. Roof, 55 N. J. Eq. 608, 612; 38 Atl. Rep. 429), and is made unnecessary by the provisions in our Practice act relating to tender. The law enunciated by Mr. Blackstone still prevails and the defendant will be awarded costs.

This opinion is given in accordance with an order of Mr. Justice Parker referring the matter to me.


author: Perskie, J.

text:
    HOWARD MILLER ET AL., PLAINTIFFS-RESPONDENTS, v. EDWARD WEINER ET AL., DEFENDANTS-PROSECUTORS.
    Argued August 16, 1933
    Decided August 21, 1933.
    Before Justice Perskie, at chambers, pursuant to statute.
    Por the defendants-prosecutors, Robert A. Lederer.

    Por the plaintiffs-respondents, Franklin B. Berry.

   Perskie, J.

This matter comes before me, on the return of a writ of certiorari to review a writ of attachment issued in purported compliance with paragraph 2, section 84, of the Practice act of 1907, as amended, and all proceedings had thereunder.

The plaintiffs’ action instituted against the defendants-prosecutors, was based upon injuries and damages caused them through the alleged negligence of the defendants. It was an automobile accident case.

Among the reasons assigned for the quashing of the writ of attachment and setting aside or vacating all proceedings thereunder, was the following: “Reason 2. It does not set

forth sufficient evidential facts as to non-residence and inability to serve with a summons.”

The affidavit upon which the writ of attachment was awarded relating to non-residence and inability to serve the summons, is as follows (paragraph 7 of complaint) : “Said Edward Weiner and Prank Weiner are not, to deponents knowledge and belief residents at this time in the State of New Jersey and summons cannot be served upon them in this state.” The point is well taken. The affidavit is fatally defective. It is barren of “evidential facts” showing that the defendants are not only non-residents of this state, but, also that a summons cannot be served on them. Hisor v. Vandiver, 83 N. J. L. 433; 85 Atl. Rep. 181; Jaudel v. Schoelzke, 95 N. J. L. 171 (at p. 177); 112 Atl. Rep. 328; Goeringer v. Young, 4 N. J. Mis. R. 859; 134 Atl. Rep. 756; Jones v. Ellis, 5 N. J. Mis. R. 1028; 139 Atl. Rep. 419; Henry v. Freeman, 7 N. J. Mis. R. 263; 145 Atl. Rep. 107.

The aforesaid determination makes it unnecessary to treat the other reasons assigned. Accordingly the writ of attachment will be quashed and the proceedings had thereunder set aside, with costs.


text:
    ASLAN COHEN, PLAINTIFF, v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, BODY CORPORATE, DEFENDANT.
    Decided October 3, 1933.
    Tor the rule, Durand, Ivins & Carton.

    Opposed, Ward Eremer.

   Lawrence, C. C. J.

Plaintiff brought suit against the defendant company to recover compensation for injuries received from a fall into an excavation under the floor in a store about to be opened by the company, on Main Street, in Asbury Park. The excavation had been made in connection with the heating and electrical systems being installed and which had not at the time been fully completed. A trap door provided to cover the excavation when not in use was therefore open. This door and excavation are located at the end of a counter on the right side of the store as one enters. According to plaintiff, he went into the store to purchase a can of sardines, walked over to the counter to examine articles on the shelves at the back and not observing the open trap door fell into the excavation and was injured. At the trial which was before the court and a jury at the Monmouth Circuit, a sharp issue was raised as to plaintiff’s purpose in entering the store and the company’s liability. The defense was that the store was not yet open for business, but was still in process of being equipped, that plumbers and electricians were still at work and that goods were being carried in from trucks in front of the building and piled on the floor, but that none of them had yet been placed on the shelves, particularly on those back of the counter which plaintiff approached. While there was a sign on the top of the building and one or two on one of the show windows and the entrance door was open, no customers were either in the store or being served, since the place had not yet been arranged or set aside for that purpose; that, as a matter of fact, a store occupied by the company for several years, separated from the new store by an alley, was still open and its business being carried on there.

Plaintiff, it appeared, was and is a peddler by trade and had been engaged for some time in and about Asbury Park, selling linens and occasionally neckties. According to two of the employes of the company who were in the new store at the time, assisting in carrying in and placing the merchandise on the floor, when plaintiff entered he had neckties on one arm and a package or bundle under the other; that he asked if any one wanted to buy any neckties and received a negative answer, but that he walked toward the counter as if to spread them on it and that his foot slipped into the excavation into which he fell. Both testified that there were no goods on the shelves and that the store was not ready for customers. Nothing appears to have been said by plaintiff as to his desire to purchase anything for himself, nor did he himself say at the trial that he had made any such purpose known to anyone in the store. A truck driver who was helping in unloading a truck entered the store behind plaintiff and stated that he saw that he had neckties on his arm, and that he saw him walk toward the counter and sidestep into the excavation. The manager for the company, who was in the old store at the time of the accident, stated that he was called immediately after the accident; that he went to the new store, found that plaintiff had fallen, saw the neckties and that he (plaintiff) had been in the old store just before and had sold him some of the neckties, but had said nothing as to buying anything for himself. He further stated that there were no goods on the shelves in the new store and that it was not yet ready for customers. Other witnesses produced at the trial also testified that no business was being done in the new store; that there were no goods on the shelves; and that electricians, plumbers and others were still working there. There was no real attempt to discredit this testimony or to show that the witnesses were not worthy of credence.

Notwithstanding the testimony offered in behalf of defendant, the jury rendered a verdict in favor of plaintiff. Defendant took out the present rule to show cause and argued for a new trial on the ground that the verdict was contrary to the weight of the evidence, since no liability had been shown on the part of defendant, either on the theory of an implied invitation to plaintiff to enter the store, or on the theory of a licensee as to whom defendant had been guilty of willful negligence.

A careful review of the record o£ the evidence received at the trial leads to the conclusion that the verdict does indicate some degree of partiality, together with a sympathetic attitude on the part of the jury. The evidence offered in behalf of defendant could not have been arbitrarily ignored, and in the circumstances the rule to show cause should be made absolute and a new trial granted.


text:
    AMERICAN GROCERY COMPANY, RESPONDENT, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, APPELLANT.
    Submitted May 12, 1933
    Decided October 3, 1933.
    Before Justices Paekee, Lloyd and Peeskie.
    For the appellant, Frederick B. Scott.

    For the respondent, Reuben P. Goldstein.

   Per Curiam.

The defendant appeals from a judgment obtained against it in the District Court of Hudson county. The action was for the alleged negligence of the defendant railroad company in attempting to get the plaintiff’s truck on a ferry boat at Christopher street, Jersey City.

The ground of appeal is that there was no proof of negligence, and particularly under the state of demand filed in the ease, and that the court should either have entered a nonsuit or directed a verdict for the defendant at the trial of the case.

The state of demand is not printed in the state of the case, but the appellant adds what it claims is a copy at the end of its brief. We cannot sanction this unauthorized and unwarranted method of attempting to get a part of a record before us. The state of the case properly certified is alone the record that can be used on the appeal.

Disregarding this attempted interpolation and assuming that the proofs were in conformity with the pleadings, we think there was evidence of negligence in what the defendant did with respect to the assistance given to get the plaintiff’s truck on the boat. The facts developed were that the plaintiff’s driver was attempting to get his truck on the ferry boat. The tide was high and the truck, as is not uncommon perhaps, was unable to make the grade. The railroad company operated the ferry, and with probably a three-fold motive — to get a fare, to assist plaintiff to get his truck upon the boat, and to remove an obstruction from its slip — called upon the chauffeur of another truck for help, and the latter hitched his truck to the front of plaintiff’s truck and attempted to pull it on the boat. The proofs tending to show negligence were that this truck in some stage of the effort, having started, stopped suddenly without warning causing' a collision with the plaintiff’s moving truck, damaging it to the extent of $250, which amount was conceded.

In this we think there was proof from which negligence could be inferred, and the chauffeur of the assisting truck being the agent of the appellant, it was responsible for his act.

The respondent contends that in any event the appellant is not entitled to have its appeal considered because no exception was taken to the ruling on the motions that the court control the case by nonsuit or direction, but this is not so. The case was tried by the judge without a jury and chapter 62 of the laws of 1916 (page 109) provides that “any error made by the court in giving final judgment in the cause shall be subject to change, modification or reversal without the grounds of objection having been specifically submitted to the court.” As, however, we have reached the conclusion that negligence was adequately proved, it is unnecessary to further consider this point.

The judgment is affirmed, with costs.


text:
    LOUIS VALENTINE, PLAINTIFF, DEFENDANT IN CERTIORARI, v. FRANKLIN SURETY COMPANY, INCORPORATED, AND IN THE ALTERNATIVE LLOYDS CASUALTY COMPANY, INCORPORATED, DEFENDANTS, PROSECUTORS IN CERTIORARI.
    Submitted May 12, 1933
    Decided August 29, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutors, Schneider & ■Schneider (Samuel Press).
    For the defendant, Ovidio O. Bianchi.

   Per Curiam.

The writ brings up for review the refusal of the District Court of the city of Orange to set aside the service of process upon the Commissioner of Banking and Insurance as attorney for two foreign insurance companies doing business in this state. Process and the statutory fee were received by the commissioner. But the record does not disclose that process was served as required by the statute. 2 Comp. Stat., p. 2855, § 70 (3) and p. 2857, § 64. In fact, the process was not served. The process which the commissioner, as attorney, may accept is the process which “may be served” and “is served.”

The jurisdiction of the District Court was co-extensive with the confines of the county of Essex, and its process did not run into the county of Mercer. 2 Comp. Stat., p. 1962, § 29.

The order under review will be set aside.


text:
    THOMAS WOOD & SONS, INCORPORATED, RESPONDENT, v. CLARA MEMELAAR, JACOB SCHURMANS, JOHN FABER, APPELLANTS.
    Submitted May 12, 1933
    Decided October 3, 1933.
    Before Justices Pabkeb, Lloyd and Pebskie.
    Por the appellants, Joseph V. Fumagalli and Peter Iiofstra.

    Por the respondent, Thomas Brunetto.

   Per Curiam.

Defendants appeal from two judgments obtained against them in the Passaic District Court. The actions were in replevin to obtain the possession of certain farm appliances in one case and twenty cows in the other.

Two points are raised on the appeal: (1) that the court below was without jurisdiction, and (2) that the title to the property was in the defendants or one of them and not in the plaintiff.

As to the jurisdiction, we think it is not before us. The question of jurisdictional value in each case, on which the contention here rests, was specifically waived in the court below.

As to the second point, plaintiff was a creditor of Schurmans, one of the defendants, and on September 7th, 1932, obtained two judgments against him, issued executions against the stock replevined, and bought it in at a constable’s sale. He then instituted the present actions for its possession.

In the meantime Schurmans sold the stock by bill of sale to the defendant Memelaar, but apparently deeming the sale invalid by reason of the Bulk Sales act, on September 2d, 1932, made a general assignment of all his assets for the benefit of creditors to Baber. This assignment was recorded on the morning of September 7th. It was later in the same day that plaintiff’s executions were issued.

The trial judge rendered judgments for the plaintiff, ruling in effect that the assignment was a nullity and that, therefore, the title to the stock remained in the defendant Schurmans.

Ho opinion appears to have been filed in the court below, but it would seem that its findings in favor of the plaintiff were based on the ground that certain provisions of the Assignment act were not complied with by the assignee between the date of the assignment to him and the levy of the plaintiff’s execution several days later, and that this rendered the assignment void.

We think this view is unsound. If it were otherwise any failure of the assignee in the performance of the duties prescribed by the statutes, some of which extended over periods of weeks and months, could be made not only the basis of revocation of the trust, but a basis of declaring the deed invalid because of such dereliction.

The execution and delivery of the deed of assignment was effective to vest the title to the assignor’s property in the assignee. The various provisions of the Assignment act (Comp. Stat.) pp. 144, 116 and its supplements) impose sundry duties and obligations on the assignee, among them that he shall forthwith record the deed of assignment, that he shall forthwith give notice by advertisement that the assignment has been made, that he shall forthwith exhibit to the surrogate of the county a true inventory and value of the estate, and forthwith enter into bond with the ordinary of the state for the faithful performance of his duties, but these are not conditions precedent to the passing of title. They are directory only and do not affect the efficacy of the deed. Scull v. Reeves, 3 N. J. Eq. 84.

That the statute was not intended to affect the title is evident from so much of section 3 as provides that until an inventory, valuation and a bond are filed by the assignee he shall not proceed to the discharge of his trust further than necessary for the preservation of the assigned estate without the order of the court, thereby implying the full sufficiency of the assignment to effect transfer of the estate to the assignee upon the execution and delivery of the deed.

The judgments are reversed.


text:
    ADAMA ALOIA, RESPONDENT, v. PLAINFIELD UNION WATER COMPANY, APPELLANT. PASQUALE ALOIA, RESPONDENT, v. PLAINFIELD UNION WATER COMPANY, APPELLANT.
    Submitted May 12, 1933
    Decided October 3, 1933.
    Before Justices Pakkek, Lloyd and Pekskie.
    Por the appellant, Francis A. Gordon.

    Por the respondents, Benjamin Gordon (of Elizabeth).
   Per Curiam.

The suits were tried together. The respondents are husband and wife. The wife claimed damages because of stepping into a hole in the sidewalk which she alleged to have been negligently created by the defendant. The husband claimed damages per quod. Each plaintiff had a judgment.

On the evidence there was reasonable ground to believe that the suits were not brought in good faith, arising out of such facts as that the company discovered the water meters inside the plaintiffs’ houses had been tampered with, and removed them to the outside; and that there had been difficulty about collecting certain charges in connection with the matter.

All this was of course settled by the jury, and but for a ruling on evidence which we deem harmfully erroneous, there would seem to be no good ground for reversal. But with the matters in evidence as just stated, it further appeared that the accident was on December 19th, 1931, Mrs. Aloia was practically recovered inside of two months, the injury was not permanent, and that suit was begun about February 2d, 1933. In this conditon of the evidence she was asked on cross-examination: "Why did you wait so long before you sued the water company?” This was objected to and overruled, and an exception entered.

We think this exclusion was erroneous, and clearly within the decision of this court in Davenport v. Patterson, 98 N. J. L. 65; 118 Atl. Rep. 708. The good faith of the suit was plainly in question, and defendant was entitled to an explanation of the delay.

This leads to a reversal in the wife’s case, and as that of the husband hangs on her right of recovery, to a reversal in his case also. The cases will be remanded to the District Court for a new trial.


text:
    JACK H. REMINGTON, PROSECUTOR, v. LAUTER PIANO COMPANY ET AL., DEFENDANTS.
    Submitted May 12, 1933
    Decided October 3, 1933.
    Before Justices Pabker, Lloyd and Perskie.
    Por the prosecutor, Herman L. Fast.

    Por the defendants, Flias A. Xanter.

   Per Curiam.

The state of the case is rather confused, and there is no return to the writ of certiorari in proper form. Prom the case and briefs we gather that prosecutor wishes this court to set aside an order in the District Court opening a judgment, and on the ground that the application to open the judgment and allow a new trial was made more than thirty-days after rendition of the judgment. Comp. Stat., p. 1959, § 17. See Schubert v. District Court, 10 N. J. Mis. R. 414; 159 Atl. Rep. 615; Clarke v. Lubin, 4 N. J. Mis. R. 518; 133 Atl. Rep. 405. The answer is that the application was within the statutory exception, as based on newly discovered evidence.

Assuming there is a record before us, there is no proof on the issue of fact that we should consider. The affidavits for and against allowance of the writ have spent their force. Linzmayer v. Baird, 5 N. J. Mis. R. 362; 136 Atl. Rep. 510. This is elementary. Moreover, the evidence taken at the first trial is not presented. Clarke v. Lubin, supra. In short, there is nothing before us to support the prosecutor’s claim. The writ is dismissed, with costs.


author: Andrew J. Whinery, Surrogate.

text:
    Essex County Surrogate's Court.
    IN THE MATTER OF THE ESTATE OF CATHERINE CROCIANI, DECEASED.
    Decided October 7, 1930.
    For Julio Crociani, J. Spielman and J. Randolph Woodruff.

    For Toiw Marinari et al., Haines ■& Chanalis {Patricio J. Maloney).

   On June 6th, 1930, Catharine Longinotti, also known as Katie Longinotti or Catherine Crociani, died. On June 11th, 1930, Julio Crociani applied to the surrogate for letters of administration, alleging that he was her husband, and pursuant to his application, letter of administration were duly-issued to him by the surrogate of Essex county. On June 25th, 1930, Tony Marinari, a brother of the decedent, filed a petition with the surrogate, asking revocation of the letters of administration issued to Julio Crociani, alleging in said petition that Julio Crociani was not the husband of the decedent, and that he had obtained the letters of administration by fraudulent representation to the surrogate that he was her husband.

This petition was filed with the surrogate, pursuant to chapter 133, page 293 of the laws of 1917 (Cum. Supp. Comp. Stat., pp. 146, 208), which statute provides, among other things, that the surrogates of the several counties are given the power and authority to open, vacate, modify, or set aside a decree or order made in their court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause.

Following the filing of such petition, a day was fixed for the hearing of the matter and citations were duly issued. The hearing consumed three days. No objection was made by Julio Crociani as to the jurisdiction of the surrogate on the first day of said hearing, but on the second day an informal objection was made by him as to such jurisdiction. Upon the conclusion of the case this objection was renewed and argued. Each party has filed briefs concerning the jurisdiction of the surrogate and this phase of the case is being decided before the merits of the case are determined by the surrogate.

(1) The respondent, Julio Crociani, asserts that the surrogate is without jurisdiction under the statute of 1917 because the petition for revocation was filed within twenty days from the date of the issuance of the letters of administration and that within that period of time the petitioner had a right of appeal from the decree of the surrogate to the Orphans Court. It is further asserted that the purpose of the act of 1917 is solely to permit the surrogate to correct or remedy a situation occasioned by fraud or other sufficient cause where the aggrieved party has no other remedy, and that, if other remedy can be had by the aggrieved party, the surrogate is without jurisdiction.

The statute itself contains no such limitation; it is general in its wording. It merely provides that the surrogate may set aside a decree or order in his court for cause. No limitation of time is made as to when an application for such revocation shall be made. While it is true that the petitioner had a right of appeal to the Orphans Court from the decree of the surrogate for twenty days after June 11th, it also appears from the wording of the statute that he might likewise petition the surrogate himself to revoke the decree. In other words, it seems from the wording of the statute that the jurisdiction of the Orphans Court on appeal and of the surrogate for revocation of the decree is concurrent and not exclusive within that period of time.

In November, 1916, the Court of Errors and Appeals of New Jersey decided the case of Mellor v. Kaighn, 89 N. J. L. 543; 99 Atl. Rep. 207, and in this case the court held that when a surrogate grants a decree of probate of a will, his power is exhausted and he cannot open or vacate his decree for any cause, the only remedy being an appeal to the Orphans Court. Prior to this decision it had been generally assumed that the surrogate held a regularly established court and had power to open, modify or vacate any decree which he had made for fraud, mistake, or other sufficient cause. Steele v. Queen, 67 N. J. L. 99 ; 50 Atl. Rep. 668; Crawford v. Lees, 84 N. J. Eq. 324; 93 Atl. Rep. 201. Following the decision in the case of Mellor v. Kaighn, the legislature enacted the statute of 1917, which specifically grants to the surrogate the power to open, vacate, or set aside a decree or order made in his court.

While the validity of the statute of 1917 has never been directly adjudicated, the statute has been mentioned in the cases of McCormack v. Burns, 89 N. J. Eq. 274; 105 Atl. Rep. 70, 71, and In re Frank’s Will, 93 N. J. Eq. 405; 114 Atl. Rep. 857. In the McCormack case, application was made to the court of equity to set aside a decree of probate on the ground of fraud. Vice-Chancellor Lewis held that a court of equity had no jurisdiction to try cases involving fraud in the procurement of a will, but he said: "It may be that under this act (1917 statute) the; complainants, if they succeeded in establishing fraud in the procurement of this will might find their remedy; but I am not called upon to pass, on the question of whether, in this case, they can take advantage of that act, or whether it would be constitutional to allow them to do so.”

In the case In re Frank’s Will, the question determined was whether an appeal should be taken to the Orphans Court or to the Prerogative Court from an order of the surrogate revoking his decree of probate and the letters issued thereon, which revocation by the surrogate was made under the statute of 1917. Vice-Chancellor Learning says: "Prior to the act of March 26th, 1917 (Pamph. L. 1917, p. 293), the surrogate could not entertain a petition to vacate an order of probate which had been made by him. Mellor v. Kaighn, supra; 99 Atl. Rep. 207. It is here conceded that that act conferred that power.”

(2) From the above two cases, it thus appears that Vice-Chancellor Lewis did not consider the validity or constitutionality of the act of 1917, and that Vice-Chancellor Learning conceded that the act conferred the power stated therein upon the surrogate. Under article 6, section 4, paragraph 2 of the constitution of 1844, the surrogate was made a constitutional officer. This made him an independent officer whose duties are prescribed by the legislature. His jurisdiction is statutory and extends to such matters as are specifically mentioned in statutes passed by the legislature. His power and duties are now devolved and provided for in the Orphans Court act (3 Comp. Stat. 1910, p. 3809 et seq.), of which the statute of 1917 is a supplement. Mellor v. Kaighn, 89 N. J. L. 543, 546; 99 Atl. Rep. 207. It is clear, therefore, that by virtue of the statute of 1917, the surrogate has full power to set aside, modify, or revoke a decree made by him.

In the Matter of Clement’s Appeal, 25 N. J. Eq. 508, the Prerogative Court held that the Orphans Court had power to revoke letters of guardianship issued by the surrogate where such letters were obtained by fraud or misrepresentation. It would thus appear that a decree of the surrogate may be set aside by him by virtue of the statutory power conferred upon the surrogate, or may be set aside by the Orphans Court under its general powers.

In this case, the petitioner, on June 25th, 1930, had the option of an appeal from the decree of the surrogate to the Orphans Court of Essex county, or of a petition to the surrogate to revoke the letters of administration which had been issued to Crociani. If the argument of Crociani that the appeal to the Orphans Court was at that time the only remedy open to the petitioner should be sustained, the petitioner has no remedy, because the time for such an appeal has long since elapsed. The very purpose of the statute of 1917 was to enable tbe surrogate to revoke a decree which had been obtained for fraud, or through some other mistake or error. If the proofs in this case show the existence of fraud or misrepresentation in obtaining the decree from the surrogate, the surrogate retains jurisdiction to set aside his former decree and to correct the error made by the presentation of such fraudulent misrepresentation. It is therefore held that within the period of twenty days, after the decree of the surrogate, the Orphans Court can obtain jurisdiction of the matter by an appeal, or the surrogate may, under the statute of 1917, upon proper application and proofs, set aside his decree and, after that period of twenty days during which an appeal could be made to the Orphans Court, the surrogate then retains jurisdiction to cure an error or mistake made by virtue of his former decree.

It is therefore held that, in this case, the surrogate has jurisdiction to hear and determine the matters brought before him upon the petition to revoke and set aside the decree for letters of administration heretofore granted to Julio Croeiani upon the estate of the decedent.

Andrew J. Whinery, Surrogate.


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    SAWER GLOWACKY, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MICHAEL GLOWACKY, DECEASED, PLAINTIFF, v. SHEFFIELD FARMS COMPANY, INCORPORATED, DEFENDANT.
    Submitted May 12, 1933
    Decided October 3, 1933.
    Before Justices Paekeb, Lloyd and Pebskie.
    Por the plaintiff, Alexander Simpson.

    Por the defendant, Autenrieth, Gannon & Wortendyhe.

   Per Curiam.

In 1926 there was a reversal by this court of a judgment for the plaintiff in the Common Pleas Court of Hudson county, the remittitur being that the case “be proceeded with according to law and the practice of said court.” No final judgment was rendered in the Supreme Court. In the meantime on appeal from this judgment of reversal to the Court of Errors and Appeals it was affirmed and the record was remitted to the Supreme Court in 1927.

There the record remained until March 4th, 1933, when a new judment of reversal was entered and a remittitur taken out sending the case back to the Common Pleas to be pro-ceded with in accordance with said judgment and the practice of that court.

The present motion is that the Supreme Court direct the Common Pleas of Hudson county to enter judgment for the defendant. This court is without jurisdiction. The case in question is out of this court by virtue of the remittitur. There was no final judgment in this court and no order from this court which has been disobeyed, and we cannot in this summary way direct the course of action in the trial court. The Court of Common Pleas is entitled to proceed to judgment in the cause. Prom final judgment an appeal will lie when all the errors or failures below can be reviewed.

The motion is denied, with costs.


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    JOHN H. BORGER & COMPANY, RESPONDENT, v. EMANUEL GOFFMAN AND REUBEN ZIMMERMAN, APPELLANTS.
    Submitted May 12, 1933
    Decided October 3, 1933.
    Before Justices Parker, Lloyd and Peeskie.
    • Por the appellants, Nat N. Kranzler {Herman W. Kurtz, of counsel).
    Por the respondent, David Bernheim {Joseph J. Corn, of counsel).
   Per Curiam.

The appeal in this ease is from a judgment awarded the plaintiff in the Pirst District Court of Newark. The case was heard by the judge sitting without a jury and was on a written guaranty made by the defendants for the purchase of goods to be made by Goffman & Kochman, and reading as follows:

“We, the undersigned, in consideration of John H. Borger & Company, a New York corporation, and or HeinemanHaman Inc., a New York corporation, giving merchandise to Paul Goffman and Alex Kochman, trading as Goffman & Kochman, for a sum not to exceed four hundred ($400) dollars, agree to pay to John H. Borger & Company, Inc., and or Heineman-Haman Inc., provided that Paul Goffman and Alex Kochman, trading as Goffman & Kochman, do not pay for merchandise so received by them within ten days after receipt of said merchandise.

This liability on our part shall be joint and several and shall continue for a period of six months from date hereof.

Dated March 15, 1932.

Kate Goeeman,

Emanual Goeeman,

Hyman Kaplan,

Al Kochman,

Reuben Zimmerman, M. D.”

The defenses were that there was no sale to Goffman & Kochman and that the guaranty was never accepted by the plaintiff.

The appeal is without merit. The paper-writing, as the trial judge said, partakes more of the nature of an original undertaking rather than a guaranty. Assuming, however, that it is the latter, it was given to one Ohesler and Paul Goffman, one of the guaranteed firm, and was delivered to the plaintiff. The plaintiff then sold the bill of goods to Goffman & Kochman and they failed to pay. Hence this suit. That the goods were sold was admitted at the trial; also that there was a balance of $250, less a credit of $55.50 due.

In arguing the second point citation is made by appellants of numerous cases holding that an offer of guaranty must be accepted by the other party before it becomes binding, and no criticism can be made of them, but the present contract was more than an offer; it was a direct guaranty by the defendants of purchases to be made by the firm of Goffman & Kochman of the plaintiff corporation or another corporation therein named; it was made for the benefit of whichever of the two should make the sales, and when it came into the hands of the plaintiff and was acted upon by it in the sale of the goods, we think it became binding on the defendants and they were rightly held bound by it.

The judgment is affirmed, with costs.


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    EUGENIE DE BUCK ET AL., PROSECUTORS, v. TOWN COUNCIL OF SECAUCUS ET AL., RESPONDENTS.
    Submitted May 12, 1933
    Decided September 15, 1933.
    Before, Justices Case, Bodine and Donges.
    Bor the prosecutors, Edward Stover.

    Bor the respondents, John E. Degelmann.

   Per Curiam.

Application is made for a writ of certiorari to review an ordinance of the town council of the town of Secaucus, adopted Bebruary 28th, 1933, for the opening and widening of Chestnut Place, in said town, as a local improvement.

Brom the facts submitted, we conclude that the prosecutors have not made such showing as warrants the allowance of the writ.

The application is, therefore, dismissed.


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    GIANT TIGER CORPORATION AND MORTIMER KRINZMAN, PROSECUTORS, v. THE BOARD OF COMMISSIONERS OF THE CITY OF TRENTON, DEFENDANT.
    Submitted May 12, 1933
    Decided October 3, 1933.

      Before Justices Case, Bodine and Donges.
    Bor the prosecutor, Henry M. Hartman.

    Bor the defendant, Romulus P. Rimo and Charles E. Bird.

   Per Curiam.

The writ of certiorari brings up a supplement to the city ordinance regulating traffic, which supplement was passed April 7th, 1933, and, except for paragraph 2 which simply provides a penalty, consists only of the following:

“That no vehicle not actually engaged in receiving or discharging passengers or merchandise shall be ranked and/or parked on either side of St. Joes Avenue, between Meade Street and Olden Avenue, or on Meade Street, between Prince Street and St. Joes Avenue, or on Olden Avnue, between Prince Street and the bridge crossing the Delaware & Earitan Canal, or on Breunig Avenue, between Olden Avenue and the end of said street at the property known as the Ajax Plant.”

The Giant Tiger Corporation operates a market in a building on St. Joes avenue, in the city of Trenton, formerly occupied by the Ajax Eubber Company. Giant Tiger Corporation and Krinzman, a lessee of one of the stalls within the market, prosecute the writ and charge that the ordinance is void because unreasonable, discriminatory and arbitrary. It may be fairly inferred from the proofs that the ordinance was passed with this particular enterprise pre-eminently in mind. Indeed, defendant’s brief takes the definite position that “it was the clear duty of the municipality, in the circumstances disclosed by the evidence, to prohibit the use of the streets named in the ordinance as an incident to the business conducted by the prosecutors;” although we are noticed to no incidental use of the streets except for the parking, by customers, of cars while making purchases and the bringing of the purchases to the cars. The ordinance affects, and affects only, the street on which the market is located and all sections of streets approaching thereto. The ordinance does not regulate parking on the affected streets; it prohibits parking absolutely at all hours of the day and night and throughout the week. The business transacted at the market is done chiefly by persons who come in automobiles. The ordinance, if enforced, would destroy the business of the market.

St. Joes avenue has a width of thirty feet from curb to curb; Meade street and Olden avenue of thirty-six feet from curb to curb. St. Joes avenue consists of a single long block extending from Meade street to Olden avenue. Breunig avenue consists of a short block running from Olden avenue to certain railroad tracks, and its width is not given. Comparing with business streets in the heart of the business section of Trenton, Front street is about six feet narrower than St. Joes avenue; Hanover street of the same width at one end and two feet narrower at the other; State Street between Broad and Warren streets about five feet wider than St. Joes avenue. On none of these streets is parking prohibited. On Front street, between Warren and Montgomery, the time during which a car may be parked is limited and confined to one side of the street between Broad and Montgomery. On Hanover street parking is confined to one side of the street. On State street parking is permitted on both sides and is unlimited as to time. There is no public street in the city having a width of thirty feet or more between curb lines, other than those named in the ordinance under review, where parking is absolutely prohibited. And this, although the neighborhood with which we are concerned is industrial and neither residential nor business; at least such is the evidence.

It is said on behalf of the city that authority for the passage of the ordinance is given by Pamph. L. 1928, art. 16, ch. 281, § 1, commonly known as the Traffic act, and that it became the duty of the municipality, in view of the number of cars brought to the area by the prosecutors’ trade and because of the traffic conditons, to prohibit the use of the named streets for parking purposes. Yet Abram Swan, director of public works of the city of Trenton, and a witness for the defendant, testified thus: "Q. Now, then, if there is a traffic condition there, couldn’t it be remedied by the placing of a traffic policeman there? A. It may be in part. Q. Or by red lights or signal lights, by lights? A. I don’t think there is any question about that; it could be.”

The city of Trenton operates two open-air markets, one on South Warren street and one on Morris avenue. Police officers are regularly assigned to regulate and direct traffic there, and parking is not prohibited in any of the thoroughfares in the neighborhood of either of the markets. There is also an enclosed market privately operated on Pront street, known as the Washington Market, with stall spaces for fifteen concessionaires. Parking is permitted on the southerly side of Pront street between South Warren street and South Broad street for a period of two hours on the block in which the market is located. This is a one-way street, and the market is located in the business section of the city.

We recognize that the parking problem is serious and perplexing and that the effort of municipalities to solve the problem should not be unnecessarily interfered with; but the existence of a problem may not be made a cloak for discriminatory or arbitrary action. The question of the reasonable character of an ordinance is for the court, and the court will not hesitate to declare an ordinance void if it is plainly unreasonable. Kohr Bros. v. Atlantic City, 104 N. J. L. 468; 142 Atl. Rep. 34; McGonnell v. Commissioners of Orange, 98 N. J. L. 642; 121 Atl. Rep. 135; Morgan v. Orange, 50 N. J. L. 389; 13 Atl. Rep. 240. The burden is upon the prosecutors to show that an ordinance was unreasonable, and we think that they have carried that burden. The city imposed upon the immediate situs of the prosecutors’ business drastic ordinance provisions that are not applied elsewhere in the city, though like or greater traffic problems, do exits in other portions of the city. The director of public works concedes that traffic lights would unquestionably remedy the traffic conditions. We consider that the ordinance brought up by the writ is unreasonable and discriminatory and therefore void in toto.

The rights, if any, of owners of lands abutting the highway, with respect to public parking privileges are not involved and are not passed upon.

The ordinance is set aside, with costs.


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    JULIA CONNOLLY, RESPONDENT, v. PALISADES REALTY AND AMUSEMENT COMPANY, APPELLANT. RITA FRAZIER, RESPONDENT, v. PALISADES REALTY AND AMUSEMENT COMPANY, APPELLANT.
    Submitted May 12, 1933
    Decided October 3, 1933.
    Before Justices Parker, Lloyd and Perskie.
    For the appellant, Walter W. Hubley, Jr. (William P. Braun, of counsel).
    For the respondents, Thomas J. Stanton.

   Per Curiam.

These cases were instituted to recover damages for personal injuries received by plaintiffs while availing themselves of an amusement in the defendant’s park, such injuries being alleged to be due to its negligence. Judgments were accorded the plaintiffs and the defendant appeals alleging that there should have been a nonsuit because (1) there was no proof of negligence; and (2) there was no proof that the park was operated by the defendant.

The plaintiffs entered a building in the defendant’s park and took a ride on one of a number of small cars known as “Dodge Em” cars. These are small cars bound around the edges with rubber and intended to be operated by the patron through electric current transmitted from wires overhead.

The object of this type of amusement is that the patron may ride around the enclosure, bumping into and being bumped into by other cars, following, however, certain arrows marked for direction, and observing posted signs prohibiting head-on collisions.

" The. plaintiffs’ proofs tended to show that two different parties, each occupying a similar car were on the floor and that they were repeatedly bumping into the plaintiffs’ car and coming from a direction different from that indicated by the arrows; that under these circumstances the plaintiffs repeatedly appealed to the attendants on the floor for protection but were only laughed at. Finally they were struck with such force from in front that they were both injured, and the present actions resulted.

The defendant urges in support of the motions for non-suit that there was no proof of negligence and that it was not proved that the appellant operated the park.

In the case of Gardner v. G. Howard Mitchell, Inc., 107 N. J. L. 311; 153 Atl. Rep. 607, it was held that when a person enters into a sport of this sort he takes the chance of injury through its normal operation. He does not, however, take the chance of conduct endangering the safety of its patrons if such conduct is in violation of the rules governing the sport and within the knowledge and control of those in charge of the amusement.

While the proofs showed that the movement of- each individual car was controlled by its occupants they also showed that the entire power of the operation of all the cars could be shut of by the attendant in charge. Under the proofs it could be inferred that the plaintiffs were subject to bumping in violation of the rules with the knowledge and without the interference of the attendants, and that finally this resulted in the severe collision which caused the injuries. Such obviously was not a risk assumed by plaintiffs when they entered the car.

On the second point as to the responsibility -for the operation of the park, it is sufficient to say that this point was not raised in the trial of the case and cannot be considered here.

The judgments, are affirmed, with costs.


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    GENERAL CONTRACT PURCHASE CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH WELTCHEK, DEFENDANT-PROSECUTOR.
    Argued May 3, 1933
    Decided September 27, 1933.
    Before Justices Case, Bodine and Donges.
    For the defendant-prosecutor, Elias D. Hunt and Harry WeltcheTc.

    For the plaintiff-respondent, Green & Green and Jra J. Katchen.

   Per Curiam.

The prosecutor of this writ was arrested upon a capias. He filed a bond and petitioned the court for a discharge under the Insolvent Debtor act. 2 Comp. Stat., p. 2824. The notice of the time and place fixed for the final hearing was not published as required by the statute. 2 Comp. Stat., p. 2826, § 7. The court properly refused a discharge. We need not pass upon other irregularities suggested.

The writ will be dismissed.


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    ELIZABETH BRANDSTEIN AND HARRY BRANDSTEIN, HER HUSBAND, RESPONDENTS, v. THE IRONBOUND TRANSPORTATION COMPANY, APPELLANT.
    Submitted May term, 1933
    Decided October 3, 1933.

      Before Justices Parker, Lloyd a,nd Perskie.
    For the appellant, Maurice J. McKeown and Milton Bruch.

    For the respondents, Elias G. Willman.

   Per Curiam.

The appeal in this case is by the defendant from a judgment of the First District Court of Newark in favor of'the plaintiffs.

The single ground of appeal is that the court refused to permit a question asked by defendant’s counsel of the plaintiff Elizabeth Brandstein, the question being: “And did you receive compensation from the Public Service as a result of the accident?”

The plaintiff had been a passenger in a Public Service Coordinated Transport bus and was injured by a collision between the bus in which she was riding and a bus of the defendant company. At the trial the defendant sought to show that the plaintiff, in consideration of the payment of a certain sum of money, had signed an agreement not to sue the Public Service Company, claiming that it was entitled to show this payment in mitigation of damages against the present appellant. Cases throughout the country and in the federal courts are cited to show that while a covenant not to sue is not a release of one tort feasor absolving other tort feasors, any payment made under such an agreement is admissible in mitigation of the plaintiff’s claim against other defendants.

The difficulty is that in the case of Fast v. Pecan, 11 N. J. Mis. R. 258; 165 Atl. Rep. 281, this court decided exactly to the contrary and held that subtsantially the same question here presented was properly overruled. That ruling is by a co-ordinate branch of this court and cannot be disregarded here.

The judgment is affirmed, with cost.


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    JAMES PETRELLA, PROSECUTOR-DEFENDANT, v. THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF HUDSON, RESPONDENT-COMPLAINANT.
    Submitted May 12, 1933
    Decided September 27, 1933.
    Before Justices Case, Bodine and Donges.
    For the prosecutor-defendant, Jacob J. Singer (Abraham Levitan).

    For the respondent-complainant, James A. LLamill.

   Per Curiam.

The writ brings up the conviction of the defendant, Petrella, under section 6 of the Disorderly Persons act. 2 Oomp. Stat., p. 1928. There is nothing in the record to show that he was a common thief, burglar or pickpocket — the characterization of the statute. The defendant does not appear to ever have been convicted of picking pockets, burglary or thieving. He does appear to have been a bad sort and was previously convicted of two assaults and a violation of the Mann White Slave act. He was looking around, he says, for dope when he was arrested. We regret we cannot sustain the conviction, but he does not come within the purview of the statute.

The conviction is reversed.


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    ELIZABETH KELLNER TOWNE, NANCY CLARA TOWNE, NATHAN H. BERGER AND NATHAN H. BERGER AND EDITH K. TOWNE, NOW KNOWN AS EDITH K. AITKEN, EXECUTORS AND TRUSTEES UNDER THE LAST WILL AND TESTAMENT OF WILLIAM H. KELLNER, DECEASED, PLAINTIFFS IN CERTIORARI, v. JANE KELLNER AND FEDERAL TRUST COMPANY, THE EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF CLARA KELLNER, DECEASED, DEFENDANTS IN CERTIORARI.
    Argued May 12, 1933
    Decided September 27, 1933.
    Before Justices Case, Bodinb and Donges.
    Bor the plaintiffs in certiorari, Nathan H. Berger.

    Bor the defendant in certiorari Jane Kellner, Braelow & Tepper.

    Bor the defendant in certiorari Bederal Trust Company, Linddbury, Steelman, Zink <& Lafferty.

   Per Curiam.

The writ .of certiorari will be dismissed. The question sought to be raised in limine may be considered in an appropriate tribunal after final judgment;


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    FRED KIESOW, Jr., BY NEXT FRIEND, ET AL., RESPONDENTS, v. NEW JERSEY AND NEW YORK RAILROAD COMPANY, APPELLANT.
    Argued and Submitted at May term, 1933
    Decided October 13, 1933.
    Before Justices Parker, Lloyd and Perskie.
    Por the appellant, Edward, A. M oriel ey and Howard F. McIntyre.

    Por the respondents, Nathan Goldman.

   Per Curiam.

No. 454 is the appeal proper, and No. 472 is a motion to dismiss the appeal. No. 454 was submitted without argument subject to the motion, and we have only the brief for appellant. The motion to dismiss was argued by both sides but briefed only by respondents.

The action arose out of an accident at a railway crossing, in which the infant plaintiff was injured, apparently slightly, as the verdict in his favor was for $125 and in favor of his father, who sued per quod, was for $29. While the expense of prosecuting the appeal even successfully must amount to considerably more than is needed to pay the judgment, the moral as well as legal right to a review is indubitable. However, counsel taking an appeal in such a small case are held to the same duty of diligence and correct practice as in a large one. By the statute as amended in 1915 (Pamph. L., p. 549; Cum. Supp. Comp. Stat. 1924, p. 983), the right of appeal is conditioned upon the appellant entering into bond to be approved by the judge, within twenty days after the “determination or direction” with which appellant is “dissatisfied.” This condition of the statute was not met. The trial and judgment were on February 3d; the bond was approved and filed March 8th, or thirty-three days thereafter. It was intimated at the argument of the motion, subject to contradiction, that respondent waived the right to take advanage of the delay. It was further intimated that the waiver was in writing, but such writing was not produced nor was its absence satisfactorily explained. Consequently we should not take notice of it. Section 11, Practice act 1903 (revision of 1877, page 850, section 14; N. J. L. xii). For want of a proper bond the appeal must be dismissed. Cohen v. Peoples Insurance Co., 5 N. J. Mis. R. 700; 138 Atl. Rep. 112. See Seiler v. Simpson, 76 N. J. L. 450; 69 Atl. Rep. 971.

This disposes of the case. We may add that of the four grounds of appeal, the first is faulty as containing two propositions of law, one of which is sound. Slate v. Bove, 98 N. J. L. 350; 116 Atl. Rep. 766; affirmed, 98 N. J. L. 576; 119 Atl. Rep. 926. The fourth is too general to point out any ruling of the trial court. The second is similar in character. As to the third, the action of the trial judge merits criticism. One fundamental dispute of fact in the case was whether the flashlights on the crossing were working or not. After defendant’s counsel had examined one or two witnesses on the point, he stated that he had at least twelve more witnesses. “The court: I refuse to permit you to call them.”' (Exception prayed and allowed.)

Assuming what is not entirely plain, that these twelve witnesses were to testify on the material point and exonerate defendant of negligence, particularly as contributory negligence was not in the ease because plaintiff was a mere passenger on his employer’s truck, it was plainly the duty of the court to allow counsel to call them. See Dierkes v. Hauxhurst Land Co., 80 N. J. L. 369, 374; 78 Atl. Rep. 361. But if there was error, the case is not before us in such wise as to permit a review of it. For the reason above given the appeal will be dismissed.


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    SCHELLHORN BROTHERS REAL ESTATE AGENCY, INCORPORATED, RESPONDENT, v. NATIONAL LIBERTY INSURANCE COMPANY OF AMERICA, APPELLANT.
    Submitted May 12, 1933
    Decided October 3, 1933.
    Before Justices Parker, Lloyd and Perskie.
    For the appellant, McDermott, Enright & Carpenter (Carl S. Kuebler, of counsel).
    For the respondent, George Bothstein.

   Per Curiam.

The action in the District Court was for unearned premiums on alleged cancellation by the insured of fire policies issued to Albert and Alma Blum as owners, with a rider providing that any loss be payable to the Hudson County National Bank as mortgagee, as its interest might appear. There was a judgment for the plaintiff in the trial court and the defendant appeals.

The facts are few and simple. The policies were ordinary fire policies conforming to our state law. The Blums endeavored to obtain the policies from the bank to substitute policies of another company but failed. They then gave formal notice of cancellation to the company and the bank, offering to supply the insurance company with affidavits or other proof as to the whereabouts of the policies and their inability to surrender them. The insurance company refused to return the premium claiming that there was an outstanding interest of the bank with which it had a contract made with the consent of the assured and as part of the contract of insurance, and for the added reason that the policies were not surrendered.

It is conceded by the respondent that the contract is not only between the insurance company and the owners but is also with the bank, but it contends that by the terms of the policies the assured has a right with or without the consent of the mortgagee to cancel and demand return of the premium; and that where, as in this case, it is unable to surrender the policies, the law overlooks such failure and permits recovery without such surrender. A number of cases are cited to sustain the latter proposition where there is no third interest involved, but we find it unnecessary to pass upon the question in view of our conclusions as to the rights of the parties under the terms of the policies respecting cancellation.

As to the main contention that the assured under the terms of his contract had an arbitrary power of cancellation, we think this is not sound. There are two provisions of the policies and one of the rider which seem to have pertinency. Those of the policies are as follows:

“This policy shall be canceled at any time at the request of the insured, or by the company by giving five days’ notice of such -cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company by giving notice it shall retain only the pro rata premium.

“If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisons and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto.”

That of the rider reads:

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

Without elaborately arguing the point it seems to us that these policies with the rider are in effect a tri-partite agreement in which the owners have their interest in the property protected against fire subject to the prior right of the mortgagee to be protected for its losses. It is, therefore, outstanding in a legal sense in the hands of both the owners and the mortgagees. The right of cancellation as given by the first quoted clause is subject to the condition that if there is a mortgagee clause, that brings the mortgagee in as a party in interest without whose consent the policy cannot be canceled. Such was the construction of a similar provision in a Yew York statute by the Appellant Division of the Supreme Court of that state in Lewis v. London and Lancaster Fire Insurance Co., 18 Misc. (N. Y.) 116. To all intents and purposes when the policy was issued in the name of Blums as owners, with loss payable to the bank as mortgagee, both were parties insured, and by clause 2 the conditions of the policies are made applicable. Among these is that respecting cancellation and this implies joinder of the mortgagee as a party insured. That this is the meaning is also indicated by the mortgagee clause where it treats the mortgagee on a different basis of notice from that of the owner.

The judgment is reversed.


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    LEILA LANGDON, PROSECUTRIX, v. BOROUGH OF NETCONG, DEFENDANT.
    Argued January 17, 1933
    Decided October 17, 1933.
    Before Justices Parker, Lloyd and Hewer.
    Por the prosecutrix, John M. Mills.

    Por the defendant, Howard F. Barrett.

   Per Curiam.

It is plain on the facts, and is admitted by counsel both on argument and in the briefs, that the prosecutrix held neither an office nor a position, but a mere employment, renewed annually, and from which she was discharged, wrongfully as she claims, while the year was running.

She sued for her salary in the District Court, and there was a nonsuit. Perhaps that was correct; in any event it is not before us for review. But it is clear to us that there is here no case for a certiorari, but rather one of an employer discharging an employe engaged by the year, while that year was running. The relation was contractual, and for breach of that contract an action for damages is the proper remedy. Cramer v. Water Commissioners, 57 N. J. L. 478; 31 Atl. Rep. 384; Hardy v. Orange, 61 N. J. L. 620; 42 Atl. Rep. 581.

The writ will be dismissed, with costs.


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    RAYMOND HEETNER, PROSECUTOR, v. CITY OF NEWARK, DEFENDANT.
    Submitted January term, 1933
    Decided October 17, 1933.
    Before Justices Parker, Lloyd and Heher.
    Por the prosecutor, Samuel E. Kresch.

   Per Curiam.

We are clear that a writ should be allowed. It may be presented accordingly.

Counsel have apparently stipulated that in case of allowance the court shall proceed and decide the case as on final hearing on briefs to be furnished by the respective parties. However, we cannot accede to this method of disposition, particularly as no brief has been submitted for the city, and we are not apprised that counsel for the city consent that the conviction in question be set aside.

Let a writ issue and return in the usual course.


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    LAWRENCE A. BURNS, RELATOR, v. PATROLMEN’S BENEVOLENT ASSOCIATION OF NEW JERSEY ET AL., DEFENDANTS.
    Submitted January term, 1933
    Decided October 17, 1933.
    Before Justices Parker, Lloyd and Heher.

      For the relator, Merritt Lane.

    For the defendants, Edward F. Merrey.

   Per Curiam.

We conclude that an alternative writ should be allowed, and to that extent the rule to show cause will be made absolute. The case seems similar to Eastern Bergen Local, No. 45 v. New Jersey State Patrolmen’s Benevolent Association, 10 N. J. Mis. R. 330; 159 Atl. Rep. 91.

A writ may be presented accordingly.


author: Brogan, Chief Justice.

text:
    MARGARET BLAIR, PROSECUTRIX, v. JEROME J. BRADY, DIRECTOR OF PUBLIC SAFETY OF THE CITY OF BAYONNE, NEW JERSEY, RESPONDENT.
    Decided October 13, 1933.
    Before Brogan, Chief Justice, sitting alone pursuant to statute.
    For the prosecutrix, William Bubin.

    For the respondent, Alfred Brenner.

   The opinion of the court was delivered by

Brogan, Chief Justice.

This writ, argued before me by request of both parties, brings up for review the action of Jerome J. Brady, director of public safety of the city of Bayonne, in dismissing the prosecutrix, Margaret Blair, as a policewoman of the city of Bayonne.

The return to the writ discloses that the governing body of the city of Bayonne created, by ordinance, its police depart-1 ment on June 8th, 1926. That ordinance (among the appropriate offices and positions created) authorized the appointment of two policewomen at a definite salary. It was from time to time amended but not in any particular which concerns the issue in this case except as hereinafter mentioned.

On December 27th, 1927, the ordinance in question was further amended so as to include, among the positions authorized, a secretary with the rank of policewoman, and on January 16th, 1928, the said Margaret Blair was appointed secretary to the director of the department of public safety in the police department of said city of Bayonne, by the then director of that department. The appointee, who is the prosecutrix of this writ, thereafter qualified in the manner required by law and continued as secretary to the director of public safety in the police department until May 20th, 1931.

On May 19th, 1931, the respondent, having been elected a member of the board of commissioners of the city of Bayonne, was, by resolution of the governing body, assigned to the office of director of public safety and on the following day he transferred the prosecutrix to the detective bureau of said department, where she rendered service as a policewoman until August 22d, 1932.

On this last mentioned date, an amendment to the police department ordinance was adopted, abolishing certain positions in the department, among them that of secretary, for reasons of economy and the prosecutrix was thereupon notified that she was dismissed, inasmuch as the office of secretary, had on that day been, by ordinance, abolished.

It is conceded that no charges were preferred against or hearing given, the prosecutrix, nor was any reason assigned for her dismissal other than that the position she held had been abolished.

The determination of this case resolves itself down to a single question. It is not contended by the prosecutrix that the creation of the position of secretary to the director of public safety (police department) with the rank of policewoman authorized the appointment of a third policewoman instead of the two specifically mentioned in the ordinance itself. It would seem as though the words “with the rank of policewoman” were intended to fix her status as to salary only. If it were otherwise the ordinance would have been so amended that the naming of a third policewoman would have been authorized. It is likewise not disputed but that two policewomen had been appointed and were functioning, prior to the appointment of the prosecutrix as secretary and subsequent to her dismissal.

It is argued, on behalf of the prosecutrix, that her appointment constituted her a member of the police department of the city of Bayonne and she became “immune from dismissal” except in accordance with the provisions of article 16, chapter 153, laws of 1917, which provides that a member of the police department may not be summarily dismissed except for just cause and after charges have been preferred and a hearing given and determination made; and further, that the abolition of the position of secretary did not terminate the employment of the prosecutrix nor affect her status; also that she was an employe of the department and as such protected by tenure of office; also that she was at least a de facto officer or employe and entitled to the benefit and protection of the Tenure of Office act; also that the prosecutrix was not dismissed for reasons of economy.

As to the first reason advanced, it is of course true that if the prosecutrix became a member of the police department she could not be summarily dismissed without just cause except by the abolition of the office or position. But in this case this is exactly what was done. The governing body was well within its right in abolishing this position for the purpose of economy. Moser v. North Bergen, 10 N. J. Mis. R. 315; 159 Atl. Rep. 630; Paddock v. Hudson Tax Board, 83 N. J. L. 360; 83 Atl. Rep. 185; Harker v. Bayonne, 85 N. J. L. 176; 89 Atl. Rep. 53; Colgarry v. Water Commissioners, 85 N. J. L. 583; 89 Atl. Rep. 789; Buckley v. Guttenberg, 87 N. J. L. 434; 95 Atl. Rep. 130.

As to the second and third reasons, it is true that the prosecutrix did not occupy the secretarial post at the time that it was abolished (since she had been transferred from that post on May 20th, 1931), but it is also true that with the abolition of that position, there remained no arguable ground upon which she could be said to continue as a policewoman for the obvious reason that there existed no authority whatever for the employment of a third policewoman.

It is next argued that the prosecutrix was a de facto officer or employe. If there was no office or employment for her to occupy she could not be a de fado officer or employe. There can be no de facto officer without a de jure office.

It is next argued that the dismissal of the prosecutrix for reasons of economy is unfounded. A reading of the record does not bear out this charge. On the contrary, the record indicates that economies effected in the department of public safety were substantial and the testimony fails to show that the action taken with respect to the abolition of this position was not in good faith.

The court will not substitute its judgment on matters of this kind that concern the regulation of the internal affiairs of municipal departments for the judgment of those selected by the people and charged by law with the duty of regulating such affairs, in the absence of a clear showing of bad faith.

The writ will therefore be dismissed, with costs.


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    SUPERIOR FINANCE CORPORATION, APPELLANT, v. JOHN A. McCRANE MOTORS, INCORPORATED. RESPONDENT.
    Submitted May term, 1933
    Decided October 19, 1933.

      Before Justices Parker, Lloyd and Perskie.
    For the appellant, Feder & Binzler.

    For the respondent, Cohn <& Kohlreiter.

   Per Curiam.

This is an appeal from a judgment in the District Court. Forty-three specifications of determination with which the appellant, plaintiff below, is dissatisfied are filed, nine of which are argued.

The action was on a guaranty of a promissory note drawn to the order of J. A. McCrane Motors Company and endorsed and guaranteed by the latter and one Di Franko, not a party to this litigation.

There was a judgment in the court below in favor of the defendant. The defenses were in substance that the note had been paid and that it was accompanied by the conditional sales agreement of an automobile, the terms of which had not been complied with, and that recovery on the note was conditional thereon.

The points argued for reversal are in substance that the' conditional sales agreement was irrelevant to the issue, that it was improperly submitted to the jury for consideration, and that there was no proof of payment.

We think both of these points are properly taken. As to the first, there was error in the instruction to the jury bjr the judge with respect to the- effect of the conditional sales agreement as a defense to the action on the note. There was no proof showing that the note and the agreement, which were received in evidence, had any relation in a contractual sense the one to the other.

As to the second, the defendant’s contention was that a clerk in the office of the plaintiff’s attorney had agreed with the maker to compromise the amount due on the note, and that this released the guarantors. While there was proof of such an agreement there was no proof of authority in the clerk to make it, and it is well settled that an attorney having a claim for collection cannot compromise it except upon express authority of the client. Watts v. Frenche, 19 N. J. Eq. 407; Trenton Street Railway Co. v. Lawlor, 74 Id. 828; 71 Atl. Rep. 234. Much more would this be true when applied to the clerk of such an attorney.

For these reasons the judgment will be reversed.


text:
    CHARLES J. CRAWN, PLAINTIFF, v. JOHN YANAVOK AND CHARLES YANAVOK, DEFENDANTS.
    Decided October 17, 1933.
    For the rule, King & Yogi (Harold A. Price.)

    Opposed, Gebhardl ■& Gebhardt.

   Lawrence, C. C. J.

The rule to show cause taken out in this case defendants is made to rest .upon the theory that the verdict of the jury was so manifestly the result of prejudice or partiality that it ought to be set aside. In other w'ords, it is urged with considerable emphasis that the verdict should have gone for defendants instead of in favor of plaintiff, under the weight of the credible evidence on all the issues raised. On first impression, this would appear to be so, but a careful review of the record of the evidence received at the trial indicates that the rule applicable is that a verdict is not to be set aside whore pure questions of fact are in controversy, even though, in the opinion of the court, or if it had. been serving as a jury, a different result might have been reached on the evidence; unless it gives rise to the inference,, under the clearly apparent weight of the credible evidence, that the verdict was the result of mistake, passion, prejudice or partiality. Boesch v. Kick, 97 N. J. L. 92, 97; 116 Atl. Rep. 799; Palumbo v. Pennsylvania Railroad Co., 10 N. J. Mis. R. 204, 210; 159 Atl. Rep. 322.

The circumstances, out of which the litigation arose, were that on February 29th, 1932, plaintiff was employed as a laborer, and had been for three or four months, with others by the state highway department, in excavating dirt and rock from an embankment along route No. 31. When ready for carting, the material would be loaded on trucks (engaged of the owners who operated them either themselves or with their own employes as drivers) to which were attached by chain or cable drags upon which the rock was placed. They would then be moved to the highway and so over it about one thousand feet to a place where a fill was being made and there dumped. Three or four of the men would accompany each truck to see that the material did not fall from it or the drag, and to assist in unloading at the fill. If any of the material did fall upon the highway, the truck was stopped and it was gathered by the men and replaced, so keeping the pavement clear of it. Because of this evident requirement, coupled with the fact that the loaded drag was attached to it, the vehicle would not be driven at more than three or four miles an hour. It had been the custom of the men, during the time the excavating had been going on, to get upon the slowly moving truck when it reached the highway, one of them riding in the cab with the driver at times and the others standing on a runningboard. The jury could have found that this had become a common practice known to the owners and drivers of the trucks, particularly the defendants, the owner and driver of that here involved; also that it was part of the method of carrying on the work, since it appears to have been the duty of the laborers to the number necessary to accompany the trucks, and that no instructions had been given them that they must not get upon them.

On the day in question, it had been snowing and had turned to rain. Some slush had, it seems, accumulated on the highway which had become somewhat slippery. Defendant’s truck had been loaded with dirt and a drag with rock thereon attached. The outfit was moved by the driver to the highway and had gone a distance of about seventy-five feet in the direction of the fill, when at least three of the men, including plaintiff, went from the embankment to the road for the purpose of getting on the truck. Whether he walked or ran was the subject of varying testimony at the trial. As he reached for the handle on the door of the cab, according to his statement, of which there was some corroboration, the truck gave a sudden and unusual jerk, throwing him off. He fell to the pavement and rolled partly under the vehicle, the right rear wheel of which went over the middle of his body, fracturing his left leg, “splitting” his pelvis and causing •other internal and external injuries. When picked up, his body was against or wedged under the front of the drag. Considering the injuries, the pain and suffering, the length of time he was incapacitated, his loss of earnings, and the medical, surgical and hospital expenses, the award of $11,000 by the jury was not regarded as so excessive as to call for any special argument under the rule to show cause, and the court does not find that it is so clearly excessive as to require reduction or the direction of a new trial on that ground.

Three points were stressed, however, on the argument for a new trial: Hirst, that plaintiff in getting on the truck on prior occasions, and his attempt to do so at the time of the accident, was a mere licensee to whom the driver owed no duty other than to refrain from any act of willful negligence, of which there was neither claim nor evidence; second, the claim that there had been a sudden and unusual jerking of the truck causing him to fall was not shown or supported by any credible evidence; and, third, that the accident, as disclosed by the greater weight of the evidence, was due to plaintiff slipping as he attempted to get on the moving truck, and was entirely disassociated from any fault on the part of the driver who was not shown to have had any knowledge of the presence of plaintiff at the side of the truck at the time.

Point No. 1, it seems, is controlled by tbe rule followed in Cleaves v. Yeskel, 102 N. J. L. 621; 133 Atl. Rep. 393, in which a factual situation similar in some respects to that here considered appeared. The jury could have found, consequently, that plaintiff’s relation to defendant’s truck was something more than that of a licensee; also that the driver as well as the owner were charged with knowledge that the men were accustomed to get upon the moving truck, in order to go along and assist in replacing dirt or rock that might fall upon the pavement and to unload at the fill; likewise that this had become the settled practice and procedure with the assent and allowance of defendants in order to facilitate the performance of the work in hand. They according^ owed plaintiff the duty of exercising ordinary and reasonable care in the operation of the truck at a time when he was on it or about to get upon it, to the end that he should not be injured by reason of the driver’s negligent disregard of such duty.

Since the jury appears to have found the existence of such a duty, under the evidence, points two and three relate also to controversial questions of fact which were subject to its determination. The testimony as to whether the truck gave a sudden and unusual jerk while plaintiff was getting on, due to its negligent operation by the driver, and so threw him off, or whether there was no such jerk and he slipped and fell through no fault of the driver, including plaintiff’s alleged admissions and statements after the accident, was contradictory in its nature. But there was testimony in the ease, which,' if the jury believed, as it apparently did, would give support to the verdict, and the court is quite unable to say, in the circumstances, that it was so manifestly the result of mistake, passion, prejudice or partiality as to justify disturbing it. The verdict is accordingly deemed subject to the rule indicated in Boesch v. Kick, supra, and the rule to show cause will be discharged.


text:
    EDITH JACOBS, PLAINTIFF, v. MAY SCHWEINERT, DEFENDANT.
    Submitted May term, 1933
    Decided October 19, 1933.
    Before Justices Pabkee, Lloyd and Pebskie.
    Por the plaintiff, Edward Thomas Moore (8tallo Vinton, of the New York bar, of counsel).
    Por the defendant, Duffy ■& McGuire (Merritt Lane, of counsel).
   Per Curiam.

The defendant has a rule to show cause why the complaint filed in the case should not be stricken out on the ground that it does not disclose a legal cause of action.

The action is by the plaintiff who had been engaged to marry one Joseph J. Gottman to recover damages from the defendant for maliciously inducing Gottman to break this engagement, and to break a contract to repay certain moneys which she had loaned him.

The complaint, among other things, alleges that the defendant, knowing of this engagement and of the large loans of money made to Gottman, and “wrongfully contriving and wickedly intending to induce said Gottman to break said agreement to marry and said agreement to repay said loans, and thereby to injure the plaintiff, with malice did undertake a course of conduct to bring about the breach by said Gottman of said agreements.” It goes on to allege then that she endeavored to secure the love of Gottman to herself, to deprive plaintiff of the same, to injure her and deprive her of the support and maintenance she would be entitled to as Gottman’s wife; that she took him into her home and provided him with his maintenance, necessaries and expensive luxuries, traveled with him and cohabited with him and persuaded Gottman to withdraw from the plaintiff the love and affection the latter had previously enjoyed from him. The consequence of which was that Gottman broke the engagement and plaintiff lost part of her money by reason of his being lulled into indolence through the defendant’s generosity.

In Van Horn v. Van Horn, 52 N. J. L. 284; 20 Atl. Rep. 485, this court seems to have recognized the principle that the malicious inducement to the breaking of a contract (that is where actual ill will toward the plaintiff is exhibited — see page 287) constitutes a cause of action. Such malice, we think, is disclosed in the complaint and the rule to strike out is therefore discharged.


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    BERTHA SELLERT, ADMINISTRATRIX OF THE ESTATE OF JOHN SELLERT, DECEASED, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLANT.
    Submitted May term, 1933
    Decided October 19, 1933.
    Before Justices Parker, Lloyd and Perskie.
    Por the appellant, Perkins, Hrewen <& Nugent.

      For the respondent, Isaac W. Seiler {Maurice O. Brigadier, of counsel).
   Per Curiam.

This ease is to recover double insurance by reason of alleged accidental death. There was a verdict in favor of the plaintiff, and the insurance company appeals.

The grounds urged for reversal are that there were no proofs of death made in compliance with the terms of the policy of insurance, and that there was no adequate proof that the insured came to his death from accidental causes apart from all others.

John Sellert had a policy of insurance with the Metropolitan Company upon which the face of the insurance would be paid if death were due to natural causes, but if death were due to “bodily injuries solely through external, violent, and accidental means * * * the company will pay in addition to any other sums due under the policy * * * an accidental death benefit equal to the face amount of insurance.”

The history of the case discloses that Sellert was either taken sick or injured on January 6th, 1930, and died on February 17th following. After the death the proofs of loss indicating disease as the cause of death were presented and the company paid the straight amount of the policy. A few months later an additional claim was made against the company for the death benefit due to death from accidental causes. The company refusing payment, the present suit was instituted.

The proofs of loss comprise a number of affidavits from which it appears that on the morning of January 6th, 1930, a fall was heard in the hallway of the house of the deceased, and later in the morning the deceased was found unconscious lying on the cellar floor near the steps. There were marks on his face, head and body, his mouth and nose were filled with blood and his hip was injured. All of this tended of course to indicate that there had been a fall and presumably that this was due to accident. When the trial came on substantially the same proofs were presented in the form of testimony of the witnesses with additional proof of a fracture of the skull coming from the defendant’s medical expert. Against this the company offered the earlier proofs of loss. They also produced medical testimony tending to show that the death was due to natural causes and not to injury.

A fair question of fact was thus presented to the jury on both questions. We have had other cases quite similar as to the sufficiency of evidence in this class of cases, the most recent being Runyan v. Commonwealth Casualty Co., 9 N. J. Mis. R. 487; 154 Atl. Rep. 397, where it was held that proofs no stronger required submission to the jury.

The judgment is affirmed, with costs.


text:
    ABE L. MORRIS, RESPONDENT, v. HANS MULLER, APPELLANT.
    Submitted May term, 1933
    Decided October 19, 1933.
    Before Justices Parker, Lloyd and Perskie.
    Por the appellant, Edward Stover.

    Por the respondent, Milberg <& MiTberg (Charles DeF. Besore, of counsel).
   Per Curiam.

The action in this case was instituted to recover a loss resulting from defendant’s alleged negligence in drawing a chattel mortgage which proved to be defective. At the conclusion of the proofs each party moved the court for direction of a verdict in his favor. The trial judge, conceiving that this removed the case from the jury’s consideration, proceeded to determine it himself and found in favor of the plaintiff. From the judgment rendered on this finding the defendant appeals.

A number of grounds are urged for reversal. The first of these is that the court was in error in withdrawing the case from the jury, and according to the rule adopted in this state in Hayes v. Kluge, 86 N. J. L. 657; 92 Atl. Rep. 358; Bank v. Smith, 91 N. J. L. 531; 103 Atl. Rep. 862, this was undoubtedly so. This, however, does not work a reversal of the case. The evidence discloses that Muller, the defendant, was a real estate agent and notary public and was requested by the plaintiff to draw up a chattel mortgage to secure a loan made to his son-in-law. The mortgage was drawn, executed and recorded but subsequently held void by the Court of Chancery with respect to the goods and chattels described in it because of a defect in the affidavit setting forth the consideration, and Levy, the mortgagor, having gone into bankruptcy, the property covered by the chattel mortgage was sold free of that instrument. No part of the consideration money being paid to the plaintiff, Morris, on the mortgage, the present action resulted. '

The drawing of a chattel mortgage requires no small degree of skill as the cases in this state abundantly show, and it is the duty of one undertaking the service not only to use ordinary skill in drafting the document, but he assumes to have the reasonable qualifications necessary to the performance of the service. During the trial the defendant was examined as to these qualifications and from this it appears that he was totally ignorant of the essential requisites; even the existence of the statute authorizing the creation of chattel mortgages; that he only knew of the requirements of an affidavit of consideration from the printed matter in the form and that outside of the printed matter (and presumably what this indicated) he knew nothing about what should be in the mortgage or how it should be drawn.

From the proofs it not only appeared that the chattel mortgage was defectively drawn but that the defendant was wholly devoid of the qualifications and skill to draw it. This being true, it demonstrated that the plaintiff’s loss was due to the negligence of the defendant and that if the judge had submitted the case to the jury he would have been obliged to instruct it to find in his favor. If so instructed, the jury would have been legally compelled to follow that instruction, and if it had disregarded the instruction, the judge would have been obliged to enter the verdict which it had instructed the jury to give. Instead of so instructing them he found directly for the plaintiff himself. The result would therefore be the same in either form of procedure and the defendant suffered no legal injury by the action of the judge.

The second point urged, whether the defendant was practicing law unlawfully or not, as remarked by the judge in his conclusions, is without merit. The facts of the case must determine the parties’ rights and not the comment of the judge criticising the defendant’s conduct.

It is claimed that chapter 268 of the laws of 1928 (page 676), which is a criminal statute prohibiting the practice of law without a license, and which in section 5 provides that “the provisions of this act shall not apply * * * to persons engaged in the leasing, sale or exchange of real or personal property * * * in so far as may relate to legal documents * * * nor shall this act apply to the drawing of deeds, bonds, mortgages, * * * by * * * a licensed real estate broker,” protected the defendant. This is obviously without substance. The question is not whether the defendant was violating any law in drawing the mortgage in question but whether he was negligent in undertaking a service for which he was clearly not qualified.

It is urged that the decree in Chancery was improperly admitted as inadequately proved. Even if so, it does not affect the result. The affidavit was itself presented and exhibited its own sufficiency.

It is also urged that the plaintiff himself was guilty of negligence. We think this does not appear. The defendant was a licensed real estate broker as well as a notary public. Without being a lawyer he might well have had the qualifications necessary to draw a chattel mortgage. According to defendant’s testimony he was asked by the plaintiff’s brother-in-law if he could do a quick favor and make out a chattel mortgage. The defendant replied that he was just going out and there was no girl there and of course he was not a lawyer, but he could write it out in longhand which he proceeded to do, charging $1.50 for the service. He had been in the habit of drawing up chattel mortgages, having forms in his office for the purpose. He drew real estate contracts and leases as well as real estate mortgage, charging for the service. The statute quoted above seems to contemplate that certain legal papers may be drawn by one so engaged without being charged with the illegal practice of law, and we cannot say that the plaintiff was at fault in seeking his service.

Other points raised on the appeal are without merit and require no discussion.

The judgment is affirmed, with costs.