text:
    JOSEPH ROCCA, PLAINTIFF-APPELLANT, v. FRANK CALABRESE, DEFENDANT-APPELLEE.
    Submitted February 5, 1925
    Decided October 7, 1925.
    Sale of Real Estate — Deceit:—Alleged Fraudulent Misrepresentation Regarding Condition o.f Cellar — Alleged Fraudulent Misrepresentation Regarding Amount of Principal To Be Secured by Second Mortgage — Nonsuit Sustained.
    ■On plaintiff’s rule to show cause.

      Before Gtjm'meee, Chief Justice, and Justices Pakkee and Kateenbach.
    Pot the plaintiff-appellant, Gaetano M. Belfatto.

    For the defendant-appellee, Egidio W. Mascia.

   Per Curiam.

This is substantially a suit for deceit in the sale of real estate by the defendant to the plaintiff. The trial judge awarded a nonsuit and allowed the plaintiff a rule to show cause, which is now before us for decision.

The first count of the complaint is based on alleged fraudulent misrepresentation by the defendant that, at the time of the execution of the contract of sale, the defendant fraudulently represented that the cellar of the premises was waterproof, and that plaintiff was induced to execute the contract by reason of that fraud.

.The second count is based upon alleged fraudulent representation as to the amount of principal to he secured by a second mortgage which was executed by the plaintiff at the time of closing title, the allegation being that by this misrepresentation the plaintiff was induced to sign a mortgage for &500 more than he thought the paper called for. This count does not seem to have been pressed at the trial.

The third count is for loss of time and profits, and expenses incurred in trying to keep the cellar free of water after the plaintiff had taken title to the property. This, of course, is dependent upon the first count, and is realty an extra claim for damages by reason of the alleged fraud on which the first .count is based.

The trial judge, in awarding a nonsuit, intimated the opinion that plaintiff could not have been decived by any fraudulent misrepresentation as to the cellar being watertight, because there was water in the cellar at the time the plaintiff made the contract, and that plaintiff saw it; secondly. as to the agreement to make it water-tight, this, under all the evidence, was made, if made at all, before the contract was signed, and ought to have been included in the written contract; consequently, under the rule that all previous negotiations are held merged in the written contract, the plaintiff could not recover on it.

Our examination of the case leads us to the same conclusion as that reached by the trial judge, and the rule to show cause will accordingly be discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PHILIP COHEN v. CYZAM REALTY COMPANY.
    Decided October 7, 1925.
    Sale of Real Estate — Breach of Contract Found — Court Did Not Error in Charging That if Jury Found For Plaintiff He Might be Reimbursed For Amount of Recovery Paid, Also the Loss of His Bargain.
    Befofe Gummbre, Chief Justice, and Justices Parker and Ivatzenbach.
    For the rule, James A. Hamill.

      Contra, John F. Gough.

   Per Curiam.

This was an action brought to recover the loss alleged to have been sustained by the plaintiff by reason of the breach by the defendant of a contract for the sale of land in Jersey City, the defendant being the intending vendor and the plaintiff being the intending purchaser. The trial resulted in a verdict in favor of the plaintiff, his damages being assessed at $3,566.'

The first contention submitted to us as a reason for making this rule absolute is that there was no breach by the defendant of the contract referred to. Onr examination of the case satisfies ns that there is no merit in this contention. It is further argued that, even if there was evidence supporting the claim of the plaintiff that the contract was broken, the defendant jiroved by the preponderance of the evidence that this was not so in fact. We cannot say, after examining the proofs, that the finding of the verdict that the contract was broken by the defendant is contrary to the clear weight of the evidence.

The only other point argued is that the damages awarded by the jury are excessive, due to the fact that the court erroneously charged the jury on the question of the measure of damages. The charge of the court was that the plaintiff, if the jury should find in his favor, was entitled to be reimbursed the amount of money which he had paid on account of the purchase price of the property, and also the loss of his bargain — that is, the difference between the market value of the property and the purchase price provided by the contract, if the jury should find that the market value was in excess of the purchase price. This instruction was in accordance with the rule laid down by the Court of Errors and Appeals in Brown v. Honniss, 70 N. J. L. 260, and the damages were assessed by the jury on the basis of this instruction. We conclude, therefore, that this point is without merit.

The rule to show cause will be discharged.


text:
    NAZERA HADDAD ET UX. v. PUBLIC SERVICE RAILWAY COMPANY.
    Decided October 7, 1925.
    Negligence — Accident in Alighting From Trolley Car Through Sudden Starting of Car — Verdict Not Excessive — Judge Did Not Charge Regarding Testimony Which Had Been Stricken Out, But With Reference to Testimony of Another Which Had Been- Admitted Without Objection.
    On defendant's rule to show cause.
    Before Gummere, Oi-iiep Justice, and Justices Parker and Jyatzbfbach..
    Por the rule, Leonard J. Tynan.

      Contra, William IF. Evans.

   Per Curiam.

The female plaintiff, while alighting from a trolley car of the defendant company, was thrown to the ground by the alleged negligent starting of the car. The suit was brought by herself and husband to recover compensation for the injuries to her and for the expenses incurred by him; as well as compensation for'the loss of her society. The jury awarded the wife $2,500 and the husband $500. The liability of the defendant company was admitted at the trial.

We are asked to set aside these verdicts upon the ground that they are excessive because of the fact that they were based to some extent upon illegal testimony given by a medical expert, one Dr. Willis, who was called by the plaintiff. Tt is asserted by counsel that although this illegal testimony was stricken ont it was subsequently referred to by the court in the charge to the jury as a matter to he considered in fixing the damages. The basis of this contention is contrary to the fact. Dr. Willis, having testified that his examination disclosed that the woman was suffering from retroversion of the uterus expressed the opinion that this condition was probably due to the accident. Upon motion of defendant’s counsel this expression of opinion was struck out. The doctor further testified that in order to restore the woman to her former health she would have to undergo an operation. At the close of the case the court, in dealing with the question of damages, used the following language in the charge to the jury: “There is testimony tending to show that in order to cure herself of the ills which she alleges she suffers as a result of the accident it will lie necessary for her to undergo an operation, and if that be true, of course, she would he entitled to a reasonable compensation for any pain or suffering- which she would ho obliged to undergo by virtue of that operation, and, further, if that operation was necessary, and was undergone, the husband would be entitled to compensation for that expense.” This instruction, which is the subject of counsel’s criticism, is not based at all upon the expression of opinion by the physician as to the probable cause of the woman’s condition, but upon the testimony which she had afterwards given, which was admitted without objection, and the competency of which is not challenged.

The only other ground for making this rule absolute which has been argued before us is that the evidence did not .justify the jury in concluding that the woman’s condition, that is, the retroversion of the uterus, was due to the accident. There was evidence supporting this finding a.nd we cannot say that the proofs to the contrary were of such a character as to justify us in setting aside the verdict on the ground that it was contrary to the weight of the evidence in this respect.

The rule to show cause will be discharged.


text:
    ROBERT C. WILSON, PLAINTIFF, v. FERDINAND KUHN, DEFENDANT.
    Submitted March 13, 1925
    Decided October 7, 1925.
    Negligence — Motor Vehicle Collision — Circumstances of Collision Reviewed — Primary Negligence Clearly Shown — Contributory Negligence Not So Clear, But Fairly a Jury Question Not To Be Interfered With — Damages Not Excessive.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    Por the plaintiff, Whiting & Moore.

    Por the defendant, Joseph G. Paul.

   Per Curiam.

The plaintiff, while driving his motor car, was severely injured by coming into collision with,the motor car of the defendant on the road between Morristown and Mendham. The accident occurred comparatively early in the morning. The defendant was a business man doing business in Passaic, and was on his way to business at the time. His car was a large Locomobile, driven by a hired chauffeur, and, according to the testimony of the plaintiff, was running about fifty miles an hour at the time of the accident. The Morristown-Mendham road runs, substantially, east and west. The plaintiff was employed on a private place situate on the south side of the road, and was driving northward out of the place so as to reach the Morristown-Mendham road. This private place was shut off from the road by a hedge about three, four or five feet high, on top of a bank two to three feet high. There was a space of about eight feet between the hedge and the concrete strip. The plaintiff’s testimony does not seem to state what kind of a hedge it was, but the accident occurred on the 28th of January.

The plaintiff’s story of the accident was, substantially, this: That it was a cold morning; that he was on low speed until he got to the top of a grade, and, on reaching the top, shifted to second speed and proceeded in that speed until he got out in the road. He then testified as follows:

“As I approached the road I kept looking both ways. You can see through that hedge when you are back a distance from it and looking at it in right angle, or nearly a right angle. You can see through it. As you get closer to it, and begin looking at it at a more oblique angle, you can’t see through it, but T looked as much as I could, and as I approached the road I sounded my horn. * * * Q. How fast were you going' at that time? A. Well, it is slightly down grade. This drive was a little bit down grade approaching the road, and, as I neared the road, I threw off the power altogether — that is, I put my foot on the clutch, let the car just .drift down at the speed of, T should say, six .to eight miles an hour. * * * As I was back up the driveway I could see through the hedge for a short distance, and — but as you approach the lane, you come — the nearer the end of the lane you come — the less you can see, because you are looking very nearly parallel with the road, and there is more hedge to see through, and near the end you come to a blind spot where you' simply can’t see anything except the road directly in front of you. Then as I — until you get with your eyes just even with the hedge, then you get your first real view of the road. You can see all the way; you can see up the road then.”

The above is plaintiff’s testimony as to the conditions. Plaintiff testified that, as he was emerging on the road, he blew his horn; that he suddenly saw the defendant’s car close on: that that ear swerved to the left and the front cleared him, but that the rear skidded and caught the front of the plaintiff’s car and swung it over to the right; that the defendant’s car went on and the rear wheels fetched up in the bank on the left side of the road some sixty to ore hundred feet down/and one wheel collapsed. The defend-, ant’s driver admitted that he knew about this side road and passed it every day. He claimed, however, that the plaintiff’s car ran into his right side as he was going by. This raised a controversy which, of course, had to be settled by the jury. Defendant’s driver also claimed that defendant’s car was going only about twenty or twenty-two miles an hour, but admitted that the car was in fourth speed forward, and this fact alone serves to discredit his testimony to some extent.

The reasons assigned here are that the verdict was excessive, that the trial judge erred in refusing to grant a non-suit, both for absence of negligence of the defendant and because of evidence of contributory negligence of the plaintiff; third, that the judge refused to direct a verdict on these same grounds; fourth, that the verdict is against the weight of the evidence; fifth, that it is against the clear weight of the evidence, and sixth, that it is contrary to law.

■We find it necessary to consider only two of these reasons, weight of evidence and alleged excessiveness of damages.

As to primary negligence, we consider that little needs to be said. If the jury believed the plaintiff’s testimony as to the speed of the defendant’s car, corroborated to some extent by the circumstances that it was running in fourth speed forward, and the further circumstance that, in endeavoring to avoid the plaintiff’s car, it swung clear around and dished one wheen against the bank on the other side of the road, they were clearly entitled to 'find that that car was negligently driven.

As to contributory negligence of the plaintiff,' the case is somewhat more troublesoms, but, after careful consideration, we reach the conclusion that it was clearly a jury question, and, being a jury question, the jury cannot fairly be said to have disregarded the great weight of evidence in failing to find that the plaintiff contributed by his own negligence to the injury. It is, of course, undeniable that the plaintiff’s view was considerably obstructed, although not entirely cut olí, by the hedge as he was emerging upon the road. It is also undeniable that there was a comparatively short space between the hedge and the road in which to stop the plaintiff's car at the sight oí danger. But it is fairly clear that it could not be said, as a court question, that the plaintiff was under any obligation to stop his car before coming out on the road, get out of it, and go outside the hedge on foot and look up and down the road before proceeding. He seems to have been moving with a great deal of caution, if his story was true. He was going only six or eight miles an hour, without any power on, his car was drifting by the force of inertia, and, possibly, somewhat by gravity; and the case seems to have been one Cor the application of the rule that he was not required to extend his observation beyond a point where vehicles moving at a lawful speed would threaten his safety. If the defendant’s- car was, in fact, traveling at fifty miles an hour on a down grade from Mend-ham to Morristown, the jury might fairly have said that it was this excessive speed that was alone responsible for the catastrophe', because, if that car has been proceeding within the stalutory speed, which was all that the plaintiff was required to expect it to he doing, both cars might readily have been handled so as to avert any accident. The evidence left it fully open to the jury to find that the plaintiff’s car was struck by that of the defendant, and that the defendant’s car was not struck by that of the plaintiff. It is to be noted, also, that the plaintiff’s car was coming from the defendant’s right, and although, perhaps, the statute is not specifically applicable, the situation was similar to two cars meeting at intersecting streets.

On the whole, we are not disposed to disturb this verdict on weight of evidence. And as to damages, the verdict was not a heavy one, being for $2,625, of which $2,000 can be charged up to personal injury and pain and suffering, the rest being, in effect, applicable to expense. The plaintiff at the time of the trial seems to have completely recovered, but he was very severely injured and was in the hospital for a considerable period. We are unable to say that the verdict was so excessive as to require this court to set it aside, or to put the plaintiff to the option -of accepting a reduced amount.

The rule to show cause will be discharged.


text:
    GLADYS MORTIMER, PLAINTIFF, v. CARL R. KEPPLER, DEFENDANT.
    Decided October 19, 1925.
    Malpractice — Erroneous Treatment Resulting in Loss of Leg — . Defendant Alleges Several Respects in Which Verdict is Against Weight of Evidence, None of Which Are Sustained — No Error Found in Charge, Either As To Nature of Operation or to Damages — Misstatement As To Age of Plaintiff Not Material.
    On rule Eor new trial.
    Before Gummere, Chief Jcstice, and Justices Kalisch and Campbell.
    For the plaintiff, Vanderbilt & He-dden.

    For the defendant, Wall, Haight, Garmy & Harlpence.

   Per Curiam.

This is an action for damages for alleged malpractice, and plaintiff has a verdict for $8,000.

Defendant has a rule to show cause why the verdict should not be set aside.

The complaint was originally in two counts. The first charging negligence in an operation and treatment thereafter resulting in the necessity of an amputation of a portion of plaintiff’s right leg, and the second charging negligenee in the care and treatment of plaintiff after such operation requiring a second amputation of a further portion of plaintiff’s right leg.

At the opening of the trial plaintiff was permitted to amend the complaint by adding a third count alleging an express contract to effect a cure, and charging a breach thereof.

Defendant answered denying all negligence and also denying an express contract to effect a cure and any breach thereof.

Plaintiff, at the age of ten years, became afflicted with tuberculosis of Loth hips and was treated for a period of two years at St. Mary’s Hospital, in Brooklyn, and when she left the hospital, although she used crutches, she was cured of the active tubercular condition. About six months later she was able to discard the crutches and was able to walk with a slight limp. She seems to have been able to engage in play and other activities with other children, and after finishing her studies in grammar school she entered high school, traveling from her home in Brooklyn to Bay Ridge by trolley. Thereafter she obtained employment with the Brooklyn Rapid Transit, requiring her to walk around from department to department on different floors of the building. Subsequently, the family moved to Belleville and she obtained employment with the Commercial Casualty Company, in Newark. She traveled to and from her work daily by trolley.

The testimony would indicate that in 1921 she was a healthy young woman except that she had complete ankylosis of her left hip and partial ankylosis of the right and a misplacement of the right leg.

■ In the latter part of 1921, plaintiff, learning that the eminent surgeon, Dr. Adolph Lorenz, was conducting a clinic in Newark, she obtained a letter from the secretary of Senator .Frelinghuysen to the defendant, requesting him to bring plaintiff’s case to the attention of Dr. Lorenz and secure her ►admission to Dr. Lorenz’s clinic, which vvas held at the office ■of defendant.

Plaintiff went to defendant with the letter on December 36th, 1921. Defendant told her that her condition was of such a minor character as to make it unnecessary for her to go to Dr. Lorenz, but that he could perform the operation himself.

Plaintiff told defendant that she had been treated, at the age of ten, in St. Mary’s Hospital, Brooklyn, by Dr. Hatch, •for hip -trouble, and that she was now eighteen years of age.

Defendant directed her to have fin X-ray made of her hips, which she did, and returned with her mother to defendant’s office in January, _ 1922. After examining the X-ray defendant told them he would manipulate the right leg and would have to use a chisel and hammer on the left; that the operation was a minor one; that plaintiff would have to spend five days in the hospital, would be able to go back to work in two weeks, entirely cured and able to walk as well as he walked.

On February 17th, 1,922, defendant 'operated on plaintiff. Immediately thereafter she was in -intense pain. Subsequently, her right foot and lower leg became gangrened, and on April 1st, 19.22, her right leg was amputated 'at a point just above the ankle. The stump did not heal, and again, on November 1st, 1922, there was a further amputation to a point just below.the knee. Plaintiff, although giving her age to defendant as eighteen years, was at the time about twenty-four and'one-half years old. This seems not to have been a deliberate misstatement, but due to lack-of'knowledge and confusion as to her age.

Defendant argues that the verdict is against the weight of the evidence because—

(a) In detailing to the defendant doctor the history of her condition prior to the operation she misinformed him as to her age — giving it as eighteen, whereas she admitted the fact that she was over twenty-four and one-half years 'of age, and as a result his diagnosis was based on the false assumption that the condition of her hips had endured for six and one-half years less than was the case.

(b) The operation which the defendant performed was a manipulation technically known as modelling redressment, and was not the operation of brisement force.

(c) The plaster cast was not the canse of the circulatory disturbance.

(dj The weight of the evidence is that there was some injury either to the femoral artery or to a large blood vessel.

(e) Idle weight of the evidence was that there was no express contract to effect a cure.

As to misstatement of age, there is ample evidence warranting a finding that the difference of six and one-half years, was immaterial.

Our consideration of the testimony leads ns to the conclusion that the verdict is not against the weight of the evidence.

Next, defendant urges error in the charge in the following language:

“The operation being a so-called bloodless operation for the purpose of correcting an ankylosis or a partial ankylosis or stiffening of the right hip joint.”

It is urged that this was misleading to the jury because the operation was to obtain a better position of the right leg and contemplated the occurrence of ankylosis in the right hip.

But we think it cannot be said that the jury was misled. When the whole charge is read, reasonable men could not have been misled nor could they in anywise have misunderstood.

Again, that the charge as to diagnosis, was prejudicial because it left the jury to say whether the diagnosis was wrong. The portion of the charge complained of is: “As to the matter of diagnosis — if you find that the defendant in this case did not use reasonable skill and diligence in diagnosing the plaintiff’s ailment, and that this error in diagnosing led him to perform an operation which was improper under the circumstances, and that this operation resulted in an injury which brought on a gangrenous condition in the leg, necessitating the amputation of the lower portion, your verdict should be for the plaintiff * *

There was a question as to whether the diagnosis was Perthe’s disease, under which an operation could safely be performed, while if tuberculosis was the original cause of the hip trouble then such opeartion could not be safely performed. Under such circumstances the charge was proper.

■ Finally, the court permitted plaintiff’s counsel, in opening to the jury, to malee statements indicating an attempt by the defendant to compromise the cause of 'action, which were highly prejudicial to the defendant.

The objection made to the opening was ineffective. Mistrial is discretionary.

Proper practice is to request court to instruct jury against improper remarks and upon court’s refusal to take an exception thereto. Smith v. Brunswick Laundry Co., 93 N. J. L. 436.

As to alleged incompetent evidence we think it was competent.

It was not shown to have been made without prejudice; and was made before action commenced and not at solicitation pf plaintiff, but of defendant.

The rule to show cause is discharged, with costs.


author: Pek Cuhiam.

text:
    BOROUGH OF LINDEN, NOW CITY OF LINDEN, PLAINTIFF, v. MARYLAND CASUALTY COMPANY, DEFENDANT.
    Decided October 19, 1925.
    On rule for new trial.
    Before Gummeke, Cliiee Justice^ and Justices Kalisch and Campbell.
    For the plaintiff, Whittemore & McLean.

    For the defendant, Frank O. Turner.

   Pek Cuhiam.

This was a suit upon a bond given to secure the faithful performance of a sewer construction contract.

Plaintiff has a judgment upon verdict for $1,347.63, and defendant has a rule to show cause why the verdict should not be set aside and a new trial granted, assigning several reasons therefor, our examination of which leads us to the conclusion that the verdict should not be disturbed.

The rule to show cause is discharged, with costs.


author: Pee Cueiam.

text:
    CHARLES MURADIAN, ADMINISTRATOR AD PROSEQUENDUM, PLAINTIFF, v. JOSEPH PAGANESSI, DEFENDANT.
    Decided October 19, 1925.
    On rule for new trial.
    Before. Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiff, Gross & Gross.

    For the defendant, McDermott, Enright & Carpenter.

   Pee Cueiam.

This is an action to recover damages under the Death act, •resulting in a Verdict for the plaintiff in the sum of $100.

Plaintiff has a rule to show-cause why such verdict should not be set aside as inadequate.

We ffnd it to be so inadequate that it must be set aside.

The rule to show cause is therefore made absolute, with costs.


author: Peh Cueiam.

text:
    MARY MULHORN AND GEORGE MULHORN, PLAINTIFFS, v. PUBLIC SERVICE TRANSPORTATION COMPANY, DEFENDANT.
    Decided October 19, 1925.
    Negligence) — Injury to Passengers of Motor Bus, Husband and Wife — Excessive Damages Alleged — Award of Wife’s Not Excessive — If Husband Files Amended Complaint, Increasing Demand to Cover Personal Injuries, Rule Will Be Discharged.
    On rule for new trial.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiff, William G. French.

    For the defendant, Ralph N. Kellam.

   Peh Cueiam.

This was an action to recover damages arising out of an accident, alleged to be due to the negligence of the defendant in operating a. bus in which the plaintiffs were passengers.

Mary Mulhorn, the wife, has a verdict for $5,000, and George Mulhorn, her husband, has a verdict for $2,500.

The defendant has a rule to show cause why the verdicts should not be set aside. The sole ground urged is that the verdicts are excessive.

Under the complaint, as contained in the state of the case, the husband claims damages only for loss of services and consortium of his wife, and the cost of effecting a cure of the wife. His verdict seems to be based upon personal injuries suffered by him also.

The verdict in favor of the wife, Mary Mulhorn, is not excessive, and the rule to show cause as to her verdict is discharged, with costs.

If the husband, George Mulhorn, will file an amended complaint increasing his demand so as to cover injuries suffered by himself, then the rule to show cause as to his verdict will be discharged, with costs, otherwise it will be made absolute.


text:
    PETER HANS, PLAINTIFF, v. FRANK KNAPTON, DEFENDANT.
    Decided October 19, 1925.
    Negligence — Personal Injury From Motor Vehicle — Evidence in Dispute, But Involved Injury to Plaintiff While Stepping From Car On Atlantic City Road, by Being Struck by Car Going in Opposite Direction — Verdict For Plaintiff Not Against Weight of Evidence Nor Excessive.
    On rule for new trial.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiff, William G. French.

    For the defendant, Walter 8. Keown.

   Per Curiam.

This is an action for damages for personal injuries growing out of a happening on the White Horse pike near Hammonton.

Plaintiff was riding in the car of one Del Ducca, and was on his way from Atlantic City to Camden. The car in which he was riding had been driven off the paved portion of the highway and was stopped opposite a refreshment stand which was located on the opposite side of the road. It was on Sunday, June 24th, 1923/ and the traffic was heavy both from Atlantic City and toward .Atlantic City.

The defendant was driving his car toward Atlantic City. The evidence beyond this is in dispute. The plaintiff claims that when the ear in which he was riding was driven off of the roadway and stopped, it was for the purpose of permitting him and the owner of the car to go across the roadway to get some coffee. Plaintiff says that he got out of the car on the right-hand side, walked aroxmd the back of the car and was standing just on the paved portion of the highway about two feet from the left-hand side of the car in which he had been riding, and that the owner of the car had gotten out of the ear from the left-hand side, at the driver’s seat, and was also standing close to the car or upon the running board. Plaintiff further contends that the next thing he knew was that he was struck and- that he then became unconscious.

The testimony of other occupants of the car in which plaintiff was riding and of one Mrs. Bennett is that defendant drove his car out of the line in which he was proceeding toward Atlantic City, and, going at a high rate of speed, attempted to pass a number of cars ahead of him, and in doing so drove over to the left-hand side of the roadway and struck plaintiff while he was standing close to the car from which he had alighted.

The contention of the defendant is that he did pull out of line, but that that was some half a mile or more before reaching the point of the accident, and that for some time before reaching the point of accident he had again gotten into line on the right-hand side of the highway and was proceeding in the string of other cars at a rate of eighteen or twenty miles per hour, and that when he reached the point of accident the plaintiff came out suddenly from behind a car proceeding in the opposite direction toward Camden and ran into the left side of defendant’s car and so became injured.

Plaintiff has a verdict and judgment thereon for $3,000, and defend an j; has a rule to show cause for a new trial and raises really two points—

.1. That the verdict is against the weight of the evidence.

2. That the verdict is excessive.

We find, that the verdict is not against the weight of the evidence and is not excessive.

The rule to show cause is therefore discharged, with costs.


text:
    FERDINAND COIRIN AND RYAN E. WISEMAN, PLAINTIFFS, v. ANDREW GAUL, JR., DEFENDANT.
    Decided October 19, 1925.
    Negligence — Alleged Improper Care In Installing- Gas Fixtures, Causing Leakage Which Became Ignited, Causing Destruction of Building — Evidence in Dispute Properly Admitted— Verdict Not Against Weight of Evidence.
    On rule for new trial.
    Before Gummere, Ohiee Justice, and Justices KalisCH land Campbell. ■
    Eor the plaintiffs, Vanderbilt & Redden.

    For the defendant, Morrison, Lloyd & Morrison.

   Per Curiam.

This is an action to recover damages for the value of a dwelling-house destroyed by fire, resulting from an explosion of illuminating gas.

Defendant was installing electric wiring, and his employes had removed gas fixtures during their work and had rehung them or had attempt so to do at the end of the day’s work.

The controversy goes entirely to a northeast bedroom on the second floor in which certain household effects were stored.

The contention of the defendant is that the fixture in the room was rehung and tested for .leaks. Upon the occupants of tlie house retiring for the night and smelling gas the husband secured a lighted lantern to make an investigation. On entering the room above referred to he was overcome by the gas, and an explosion took place, resulting in a fire that completely consumed the building. The plaintiff has a verdict and judgment, and the defendant has this rule to show cause for a new trial, urging three reasons for reversal:

1. That the piece of gas pipe (Exhibit PI) should not have been admitted in evidence.

This was identified by one Gardner, who three days after the fire made an examination of the premises and was able to trace the entire gas system and found it intact, and all fixtures attached, except the outlet of the northeast bedroom, to which no fixture was attached, and Exhibit P 1 was the outlet for that room.

We think it was properly admitted; its probative value being for the jury to determine.

2. That plaintiff should have been nonsuited.

This was reserved as a ground of appeal in the rule to show cause, and we are not required to consider it, and therefore have not done so. Faragasso v. Inirocaso, 98 N. J. L. 583.

3. That the verdict is against the weight of the evidence.

We do not find this to be so.

The rule to show cause is therefore discharged, with costs.


text:
    JOHN HURLEY AND ESTHER McNICHOLS, PLAINTIFFS, v. MICHAEL STERNICK, DEFENDANT.
    Decided October 19, 1925.
    Negligence — Injury to Team, to Load and to Person, by. Collision With Motor Truck-^-ldentlty of Truck Questioned, But Verdict Held Not Against Weight of Evidence — No Material Question Raised Regarding Time of Accident — Verdict Not Excessive.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisci-i and Camfbell.
    For the plaintiffs, Armstrong & Mullen.

    For the defendant, Kalisch & KaMsch.

   Per Curiam.

This is an action for negligence happening on Communipaw avenue, in Jersey City, in the early morning of June 28th, 1923.

The plaintiff Hurley was driving a team drawing a hay wagon containing a mower and rake, and was run into from the rear by an auto truck claimed to be owned by the defendant.

One of the horses was injured and made useless. The wagon, rake and mover were damaged beyond repair. Hurley received personal injuries and so also did his helper, the other plaintiff, McNichols.

The verdict for Hurley is $1,000 and for McNichols $100.

Defendant has a rule to show cause, and urges three reaeons :

1. That the verdict is against the weight of the evidence. The principal point is that the only evidence of ownership of the motor truck was the license No. X13615. This number was given by plaintiff Hurley to his attorney, and the latter telephoned the defendant, asking him if he was the owner of such a licensed truck. Defendant testified he sent his son to his garage to ascertain whether he had a truck with such a license number, and the son, upon returning, advised defendant that such was the license number of his truck.

We cannot say from this that the verdict was against the weight of the evidence.

There also seems to be some point raised as to whether the happening was June 27th, 28th or 29th.

This seems to arise from the fact that it happened after midnight and because of the manner of keeping the police blotter from six p. At. to six A. At. of each day. We think it was shown that the happening was in the early morning of June 28th, 1923, and the verdict is not against the weight of the evidence in this particular.

2. That the verdict was contrary to law. Under this it is urged that there was error in the trial judge permitting the plaintiff to question jurors as to their interest in insurance companies. Bannach v. Liebman, 119 Atl. Rep. 629; Heiler v. Goodman, 92 N. J. L. 415; Bradley v. Cleary, 86 Id. 338.

Directions of mistrial are discretionary with the trial j udge.

3. That the verdict is excessive.

The testimony shows a loss from damage to personal property alone amounting to $570. We doi not think that, under these circumstances, a verdict for $1,000, including these or ■some of these items, and compensation for pain and suffering and disability is excessive.

The rule to show cause is discharged, with costs.


text:
    JOSEPH I. LEVY, PLAINTIFF-APPELLANT, v. NICHOLAS G. HAMPTON AND HOWARD W. HAMPTON, DEFENDANTS-APPELLEES.
    Decided October 19, 1925.
    Landlord and Tenant — Rent and Counter-claim For Lack of Heat — Judgment on Counter-claim — Admission of Illegal Evidence Alleged But Not Sustained — Not Error For Defendant to Testify From Memorandum When Original Books Are in Court — Damages May Be Assessed to Time of Trial.
    On appeal from the Atlantic County Circuit Court.
    Before G-ummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellant, Carlton Godfrey and William J. Garrison.

    Eor the appellees, Bourgeois & Coulomb.

   Per Curiam.

This is an action that was .brought to recover rent under a lease guaranteed by the defendant Nicholas G. Hampton, the tenant being Howard W. Hampton, who, upon application, was admitted as a party defendant, who answered and filed a counter-claim seeking to recover damages for loss alleged to have been caused by improper or defective heating plant.

The rent was paid in advance of the trial of the cause and the trial of the case was entirely upon the counterclaim, upon which plaintiff has a verdict and judgment for $2,500, from which this appeal is taken.

There are four grounds relied upon:

1. The admission of illegal evidence. The question objected to is—

“Q. What effect did the inability to heat your house have upon your future business ?”

The objection to this seems to have been that it called for facts relating to a time subsequent to the commencement of the action. This question was not answered, but one similar was—

“Q. What effect did the inability to heat your house have upon your future business, I mean on the business after that season, whether it had any effect on your ability to do business this year?
“A. Most surely, yes.
“Q. Now, what was the effect?
“A. It had the effect that I have not been able to get and hold any steady business this year.
“Mr. Garrison — Now, I ask to have that stricken out.”

We do not think that the question was objectionable, but, if it was, the question objected to was not answered, and when it was put in the amended form there was no objection to it.

2. That it was error to permit the defendant to testify from a memorandum taken from his original books when his books were in court.

We find no error in this.

3. This is included under the second point above raised, and is directed to alleged loss of the business of certain school teachers, but this ground is not now available, because the trial judge, at page 318, specifically instructed the jury that this testimony was not useable and in the following language:

“In the absence of proof that Miss Sheldon was authorized to procure accommodations for other teachers, there can be no recovery for those other teachers, because they failed to procure accommodations at defendant’s hotel.”

4. That is was error for the court to refuse the testimony of George W. McKay. There was no error in this. The testimony was incompetent and the court properly ruled against its admission.

5. That is was error for the court to refuse to charge defendant’s fourth request.

That request is:

“There can be no recovery for damages alleged to have been sustained by the defendant beyond the date of his filing his counter-claim.”

But this is not so.

Under rule 7, Practice act 1912, damages may be assessed to the time of the trial. Garrison v. Borough of Fort Lee, 92 N. J. L. 566.

The judgment below is affirmed, with costs.


author: Ingersoll, Y. C.

text:
    Robert Berry, complainant, v. Thomas E. Stewart et al., defendants.
    [Decided October 22d, 1925.]
    NOTE — ¡Syllabus in this case has not yet been officially approved by the court.
    Sale of Land — Specific Performance by Vendor Asked — Tender Not Mad.e Until Day Following Day Fixed in Agreement For Delivery — Provision Making Time the Essence of Contract Not included Therein — Defendant Offered Much Testimony to ¡Prove That Time Was of Essence — Defendant Did Not Call Complainant’s Attention to ,Time, and Evidently Hoped That Settlement Would Not Be Made — Held, That Delay Was Through Error, That Complainants Were Ready to Perform Contract and that Testimony That Time Was of the Essence is Not Convincing.
    On bill for specific performance. On final hearing.

      Mr. John C. Seed, for the complainant.

      Mr. William Charlton, for the defendants.
   Ingersoll, Y. C.

On the 23d day of February, 1923, the defendant Thomas O. Stewart, being the owner of a tract of land in Atlantic City, described in the bill of complaint, entered into an agreement in writing with the complainant, wherein he agreed to convey said lands and premises to the complainant for the sum of $12,000. The consideration was to be paid— $500 upon the signing of the agreement, the assumption of a mortgage then existing of $4,500 — $3,500 in cash upon the delivery of the deed, and the creation of a purchase-money mortgage for $6,000, payable within one year.

The settlement and the delivery of the deed was to be made on or before April 23d, 1923.

William Charlton, the solicitor of the defendant Stewart, is an equitable owner of an undivided one-half of the premises in question. Mulock, the manager of Befg & Ulizio, real estate brokers in Atlantic City, testified that Stewart & Charlton listed for sale, among other properties, the said land in the office of Berg & Ulizio.

On the day in question Mulock notified Mr. Charlton’s office that he had a purchaser for .the land. In response to this notice Charlton & Stewart called at the real estate office, and Mulock submitted an offer which was accepted. Mulock then presented Berry’s check for $500 and the contract for sale, which'had been signed by Berry and was -in Mulock’s possession.- The agreement called for settlement sixty days from the date of the agreement.

Mr. Charlton testified that he and Stewart called at the real estate office about five o’clock on the said 23d day of Pebruary, 1923, in reference to certain property owned by Berg, and met*Mr. Berg of the firm, Mr. Mulock and Mr. Roberts, a salesman. He denied that this property was listed with the firm, but that he knew Mulock “was going to try to sell them.”

Roberts informed them that he had a client for the ground in question, and produced the agreement signed by Berry; that he read it over and said to Roberts and Mulock, “We have Berry’s signature, and we can’t go back and ask him to make a new contract, to sign again.” He had either gone away or was going away. “He said you know us, and you know we will make settlement on the day * * I said, “You know what happened in the Quslcaden Case, when you were two weeks late and we were lenient, and let you go there.” I said, “I want time of the essence put in there, because I want you to know we are going to hold you strictly to this agreement.” I think Mulock had the check. He said, “Oh, yes, these things only happen once, we will be absolutely certain to get there.” I said, “Who is Berry; what is his business.” Now, I am not certain whether it was Roberts or Mulock that said, “He is a wealthy man from Philadelphia now living here.” I said, “You know we are not interested in selling to speculators — what is this man’s intention to do with the property.” Then either Eoberts or Mulock made a remark about this man stating he had consulted, or was about to consult, contractors for the purpose of building a garage or show room on this boulevard. Q. Who do you mean by “he ?” A. Berry had. I asked again if he was a man of means and really intended to use the property, and was told again that he was, and then Mr. Stewart and I retired for a moment until we had a conversation between ourselves. We came back from the conversation and I again said we hold you strictly to the day of this time, although time is not of the essence under the contract. Mr. Stewart then signed. I took the cheek; I took the copy of the contract which had been handed me, and we went away.

Between the date of the agreement and the time for settlement Mr. Eoberts called Mr. Charlton on the ’phone and asked for an extension for a couple of weeks, which request, after consultation with Stewart, was refused.

Mr. Stewart testified: “I think we wore in Ulizio’s office for about fifteen minutes, talking about some ground at Trenton and Atlantic avenues which we were trying to trade for the Waggoner Hospital. After we came out Mr. Mulock said, ‘I have an offer of $125 a foot for Albany avenue.’ I said, ‘No, I don’t think I will consider that on Albany avenue. I wouldn’t give it a thought.’ One word led on to another, then, finally, showed me the agreement. They said, ‘You better sign this now, everything is alright.’ I read the thing over; the first thing I noticed about the agreement that time of the essence was not in there. I asked why that was not in there. Mr. Eoberts spoke up and said that was an oversight on their part. He said this party is alright, and it will be alright. I said that will have to be in before I sign it. Mr. Eoberts then spoke up and said this man had made a good deal of money and now he is living down here. This agreement he had shown me; it already had been signed and witnessed. He said Berry was just leaving town and he didn’t want to go back to him with a new agreément. I said I wanted a few minutes to talk to Charlton. Charlton and I went to one side and talked this matter over. The result of it was I signed the agreement.’’ The following questions and answers followed: Q. There was no conversation as to who Berry was? A. Yes, sir; I asked who Berry was. Q. Who. did they say he was ? A. Mr. Eoberts told me he was a wealthy man from Philadelphia and was living down here' now. I asked what his idea was to do with the ground. He told me his idea was to put up a nice building, sort of an automobile showroom and a garage. I said, “Are you sure ?” I said, “I want no speculation with my ground. I can speculate with it myself.” He said, “There is nothing of that sort in the deal, this man is perfectly O. K.” Q. You believed, did you, that Mr. Berry was going to build a building on this ground? A. I had no reason to doubt either Mr. Mulock or Mr. Eoberts. Q. Now, you say you had said you wanted time as the essence of the contract — did . Charlton say anything about when settlement was to be made? A. Mr. Charlton told them he would insist on settlement on the 23d day of April. In other- words, live up to the contract word for word. He also told them, “You know we helped out with the Cuskaden matter — you were two weeks late, and we let you get away with it that time. There will be no extension in this contract.” Q. You mean no delay? A. No delay in this contract. Mr. Eoberts- insisted everything would be O. K. Q. .After the signing of the agreement, on the 23d day of April or February, was there ever a time when the question of extension of time was discussed? A. The only time the question of time was discussed with me was to Mr. Charlton. I have never seen Mr. Mulock or Eoberts to talk to since the 25th day of April. That was in the Waggoner Hospital, outside of two days ago I met Mr. Eoberts in Charlton’s office. That is the first time I have'seen them to speak to.

On the 23d day of April Stewart appeared at the office of the title company, where the settlement was to be made with the deed, prepared to make the settlement. He went there at eleven o’clock,- back again at one-thirty and back again at two-thirty, and then remained until, possibly, five o’clock. Neither Berry', nor anyone representing him appeared, and Stewart made no effort to get into communication with him, and states that certain things had happened; he did not consider “it was his place to notify them;'’ that he was there prepared to make settlement, because he felt he was compelled to make it irrespective of what he knew.

Mulock testified that he ordered the search for the settlement for Mr. Berry, and that the title company gave him April 24th for settlement.

Mr. Ulizio, of Berg & Ulizio, testified as follows: “Mr. Charlton and Mr. Stewart came to my office to see me on a business matter, talked to mo for awhile, about half-past five or six o’clock. I was just about getting ready to go home. As I stepped out of my private office into the main office, there was Mr. Stewart, Mr. Charlton, Mr. Mulock, Mr. Roberts, and 1 don’t know whether there was anybody else there or not. They were having a discussion about an agreement. I said, ‘What’s the argument?’ Somebody said, ‘About Mr. Berry.’ I don’t remember the exact words, but Mr. Stewart didn’t want to sign the agreement for some reason or other. I said, ‘Why not, is anything wrong with it?’ Then they related about another piece of ground — 1 don’t know the piece of ground — something about being late, and I turned to Mr. Mulock, ‘Herman, what about this.’ He said, ‘Oh, this is alright, Berry will settle. He will settle on the date. This is absolutely alright.’ I said, ‘Stewart go on, if Herman says it is alright, it is alright, isn’t it.’ They were discussing the date, of settlement and time. Something about'being late on somebody else. I didn’t get it clear. 1 was about going home; it was something about the time or another purchase of being late, and Tom said we won’t wait a day with it, or Charlton said it, I don't know which it was, either one. They were all talking about the time. I got in just about the middle of the discussion. I wasn’t there from the beginning. Something about a building, or something. Q. You heard some talk with reference to a building? A. Yes, sir; they said the man was going to build or he was going to build, I don’t know. He was going to build, and he had to settle, and the mortgage was to be taken before the time. Q. in other words, you heard either Mr. Mulock or Mr. Roberts discussing a question of the erection of a building on this piece of property? A. They were all talking about it. I don’t just know which was talking about it. Q. Did you, at that time, know who Berry was? A. No, I did not.. Q. At the time of the discussion down at your office, did you have any conversation with Mr. Roberts as to who Mr. Berry was and who was buying this property? A. No. Q. Did Mr. Roberts tell you what his interest in this property in question was — how he was interested in it? A. Why, some time not so long ago he said he was interested in a property with Berry. That is only lately — some months after that. Q. Did that conversation have reference to the property that is now in suit? A. Yes, that was it. Somebodjq I don’t know whether it was Mr. Mulock or Roberts, T thought Stewart was a friend of yours.’ I said, ‘Why, what’s the matter ?’ They told me about this party being late or something of that kind, and they said the girl had made a mistake at the title company — had a mistake of the date — I don’t know just how it was. They talked to me about it. I said, ‘If we made a mistake, we are responsible for it.’ They said they didn’t know how Mr. Berry was going to take it. He was a Philadelphia man and he was buying a lot of stuff and had- a lot of money, and they were afraid of getting in wrong with Mr. Berry, and I said, ‘Why, if we are in the fault, we will have to stand for our mistake.’ I said, ‘I will go to see John Reed,’ then Mulock talked about it., I heard no more about it-until this morning. Stewart came down and subpoenaed me about it. That’s all I know about it. Q. Did Roberts ever tell you anything with-reference to whether he, Roberts, was directly interested in this deal with Berry? A. Yes, he told me that just — just when — I don’t remmber. The discussion came out — we were talking about different properties. I wanted Berry to come in on something and he said another time. He was interested with Berry in this thing and would like to get it straightened ont. Q. Lid he say how lie was interested with Berry? A. No, he didn’t say that.”

Mr. Barrett, the secretary of the title company, testified that “Mulock ordered the search and asked if it could be finished up on the 24th of April, and we gave them the date to correspond with the application.”

Muloek testified that they made no misrepresentation, and Roberts denies Charlton’s testimony as to the representation that was made as to who Berry ivas, and what he was going to do with this property. On April 24th, Berry and his representative was at the title company, prepared to make settlement. and so notified Stewart, who refused to convey, basing the refusal estirely upon the ground that “time was of the essence of the contract,” and that the dale of settlement was April 23d.

Time1 was not made of the essence by the contract itself, and, from the testimony, I am not satisfied that it was ever so made. The complainants were ready to complete their contract, and did tender themselves ready to do so on the day following the time set forth in the contract. I am convinced that that delay was through an error as to the time. The defendant evidently hoped that settlement would not be made on the day fixed, and, evidently, did not call complainant’s, or his representative’s, attention to their error in time, in order that he might claim a default in the settlement. I am convinced that the prayer of the hill should be granted, and will advise a decree to that effect.


author: Lngeesoll, V. C.

text:
    Mary A. Leyrer Smith, personally and as executrix of the estate of Mabelle L. Seguin, deceased, complainant, v. Bankers Trust Company et al., defendants.
    [Decided November 2d, 1925.]
    Corporate Shares — Ownership—'Fraud Alleged — Testatrix Was Owner of Certain Shares Which Her Husband Had Transfered to Another, Upon Demand of Wife They Were Retransfered, the New Certificate Being in Name of Both Wife and Husband — Certificate Remained in Possession of Wife Until Her Death — Held, To Be a Part of Her Estate, That Husband Has No Interest Therein.
    On bill, &c. On final hearing.

      Mr. 8. Paul Ridgway, for the-complainant.

      Mr. John B. Slack, for the defendant Norcum L. Seguin.
   Lngeesoll, V. C.

Mabelle L. Seguin, the deceased daughter of the complainant, by her last will and testament devised and bequeathed all her estate, except the sum of $100, to her husband, and appointed her mother, the complainant, executrix of the said will.

In her lifetime, the said Mabelle L. Seguin was the owner of five shares of the capital stock of the Bankers Trust Company, as evidenced by certificate of stock No. él.

I am satisfied that the defendant Norcum L. Seguin, the husband of said Mabelle L. Seguin, without authority and by fraud, caused the said certificate No. él to be canceled and a new certificate, No. 57, to be issued in the name of one Winslow L. Taylor.

In the meantime, or shortly thereafter, the said Mabelle L. Seguin, ascertaining and believing that her husband was conducting himself and his and her affairs in a manner fraudulent and inimical to her interests, insisted that the certificate of slock for said five shares of stock be placed in her eustodj', and in such maimer as to be under her control. Thereupon, the said husband obtained possession of said certificate of stock No 57, and on or about September 7th, 1920, caused the same to lie canceled and a new certificate, No. 60, was issued in the name of “Mabelle L. Seguin or Norcran L. Seguin.”

This certificate he delivered to his wife, who received it and placed it in her safe deposit box in the Boardwalk National Bank, where it remained until after her death.

It is clear that this stock was the property of the deceased; that the husband, without authority, caused the certificate, which was originally in the name of the wife, to be canceled and a new certificate to he issued to Taylor; that'when accused by the wife of his fraudulent conduct, the husband obtained control of the certificate and caused the new certificate to he issued in their joint names. He evidently had no authority to do this, hut did the wife, by accepting it and keeping possession of it for at least several months, estop herself during her lifetime, and her representative since her death, from claiming the ownership in its entirety of said shares of stock. '

There is nothing in the evidence to indicate, that Mrs. Seguin’s attention had been called to the fact that the certificate was not in her name alone. I am convinced that the stock was her property, and that, upon her demand, the husband regained control of it, had the new certificate issued and delivered to her. It was her’s — he had no interest in it, and the court will not now lend its aid to assist him in securing this stock after his wife’s death — this wife who was compelled to take severe measures to obtain it from him, when he had it illegally in his possession.

There is no proof that she accepted the stock in the tw« names as a compromise. I am constrained to believe that he, in causing the stock to be issued in the two names, was continuinghis attempt to control the stock, and that he cannot now take advantage of the fact, that she retained possession of the stock without taking action thereon.

I will advise a decree in accordance with these views.


author: Bacices, Y. G.

text:
    Richard A. Wright, individually and as substituted administrator of the estate of Richard Wright, deceased, complainant, v. John Staubach, executor of the estate of Flora Wright, deceased, defendant.
    [Decided November 2d, 1925.]
    Actions — Joining Two Actions — Under Present Rule — Under Rule 26 (Chancery) Complainant May Join Any Causes of Action Subject to Other Rule, and Under Rule 19 An Executor May Join His Personal Claim by Leave off Court, and Without Leave if Personal Claim Arose With Reference to Estate of Decedent — No Difficulty Found in Granting. Relief by a Single Decree if Complainant Sustains His Allegations.
    Messrs. Pomerehne, Laible '<& Kauiz, for the complainant.

      Messrs. Childs, Young & Howe, for the defendant.
   Bacices, Y. G.

The bill discloses that Richard Wright died intestate, leaving a widow and the complainant, his son; that the widow was appointed administratrix; that upon the payment of the funeral bill and administration expenses certain cash on deposit in the name of the decedent was transferred to the name of the.widow and the complainant; that later the complainant gave to the widow additional moneys in trust, which she deposited to their joint credit; that the widow withdrew the funds so on deposit and converted them to her own use; that she died leaving a will bequeathing her estate to the defendant, Staubach, whom she appointed executor. The prayers are that the executor account and pay over what may be due to the complainant individually and also what may be due him as substituted administrator of his father’s estate.

Under the old practice the joining of these actions would not be tolerated. Under rule ,‘¿6 of this court (December 1st, 1916), “the complainant may join any causes of action,” subject, however, to the provisions of other rules. Section 19 provides that by leave of the court a claim by an executor may be joined with his personal claims, and without leave of the court if his personal claim arose with reference to the estate of his decedent. The two actions are properly joined.

Section 59 requires that when separate causes of action are joined the statement of the second shall be prefixed with the words “second cause of action,” and the several paragraphs should be numbered. The complainant has not observed this rule, but as the two causes of action are so closely related and arise out of the same state of facts, and are pleaded so that there can be no confusion, compliance with the rule will he dispensed with under rule Ho. 4, reserving that right to the court.

As I view the pleadings, the complainant claims two-thirds of the money of his father’s estate deposited by his widow, administratrix to her and his joint account, on the theory, that the deposit was a part distribution of the estate and an appropriation by the administratrix to the use of herself and the complainant. He also claims the moneys entrusted by him to her and so deposited. As substituted administrator he seeks an accounting of his predecessor’s stewardship.

If the complainant sustains the allegations of the bill there can be no difficnlty in granting the relief by a single decree.

Motion denied.


text:
    JOHN E. McMURTRY ET AL., PARTNERS, ETC., AS JOHN E. McMURTRY & COMPANY, PLAINTIFFS, v. FARM SERVICE EXCHANGE, INCORPORATED, DEFENDANT.
    Decided October 19, 1925.
    Sale of Goods — Commissions—Counter-claim For Damages Due to Loss Attending Failure to Sell According to Instructions— Second Trial — Both Trials Resulting in Verdict For Defendant on Counter-claim — Second Trial Will Not Be Set Aside Except Under Very Unusual Circumstances — Such Circumstances Not Apparent Here. ■
    On rule for new trial.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the plaintiffs, John Wahl Queen.

    For the defendant, John Millón.

   Per Curiam.

The suit was brought by the plaintiffs to recover $909 claimed to be due for commissions and other charges under a contract made with the defendant to sell wool consigned by the latter to the plaintiffs. The defendant answered, claiming that the commissions had not been earned, because of the failure of the plaintiffs to perform the conditions of the agreement which they were required to perform in order to be entitled to commissions. They also counter-claimed, setting, up, first, that after the failure of the plaintiffs to sell the wool promptly on commission, in accordance with the terms of the contract, the parties got together, and that the defendant sold to the plaintiffs the wool which had not been disposed of for $11,451; that plaintiff paid the $5,451 on account of the purchase-money, leaving a balance due of $6,000. They also set up an additional counter-claim that, after there had been a delay on the part of the plaintiffs for many months in disposing of the wool, the defendant ordered them to sell the same forthwith; that this order was not complied with; that the plaintiffs delayed for a long time in disposing of the wool; that, in the meantime, the market price had fallen considerably, and that they had suffered damages by reason of the failure to obey this direction to the same amount as -was averred in the first count of the counter-claim.

This is the second trial of this issue. The first trial resulted in a verdict for defendant, and upon a rule for a new trial that verdict was set aside and a new trial ordered. The second trial resulted, also, in a verdict against the plaintiff on its cause of action and in favor of the defendant on the counter-claim, the jury awarding $3,794.11.

On the hearing had on the first rule this court concluded, from an examination of the testimony, that the verdict of the jury was against the clear weight of the evidence, either on the claim of a sale made to the plaintiffs or on the cliam of the failure of the plaintiffs to observe the direction to sell, under the circumstances, which we have already stated. Apparently, the testimony submitted is not different from that taken at the first trial.

The first contention is that we ought to set this second verdict aside as against the weight of the evidence. Lt must he conceded that the question whether there was a sale to the plaintiff, or whether there was a failure on the part of the plaintiffs to sell at the market as directed by the defendant was for the jury, and, ordinarily, this court will not disturb the second verdict on the ground that it was against the weight of the evidence on the question of liability except under very unusual circumstances. This is the doctrine of Brown v. Paterson Paper Co., 69 N. J. L. 474. We see nothing unusual in this case different from the cited one.

The only other point which is argued before us is that the verdict was contrary to lawn We do not know just what this means. The verdict of a jury is based upon the instructions of the trial court with relation to what the law is, and they are bound to accept it as the judge gives it to them. If the judge errs in his charge to the jury, the proper course is to except to the- alleged erroneous instructions. If this is not done, the verdict, based upon the instructions, cannot he attached as being contrary to law.

The rule to show cause is discharged, with costs.


text:
    KATIE WOYNAROWSKI, PLAINTIFF, v. METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT.
    Decided October 19, 1925.
    Insurance — Life—Tuberculosis at Time of Receiving Policy — Untruthful Representations Regarding Employment — If Representations False, in Fact, ‘Were Willfully Made by Insured, Policy is Voided — If Questions Were Not Understood, False Answers Were Not Willfully Made — Verdict Not Contrary to Evidence, to Charge, Nor the Result of Passion, Prejudice or Partiality — No Error in Charge.
    On rule for new trial.
    Before Gummere, Chiee Justice, and Justices Kalisch and Campbell.
    Por the plaintiff, Elmer E. Brown.

    Por the defendant, McQarier ,& English.

   Per Curiam.

This is an action on a policy of insurance on the life of Nicholas Woynarowski. The application fox the policy was made April 5th, 1933. Policy issued April 14th, 1933, and •the insured died December 8th, 1933, of tuberculosis.

Plaintiff has a verdict, and defendant has a rule to show cause why a new trial should not be granted.

It may at the outset be conceded that insured died of tuberculosis, and that he was suffering from that disease and had been treated therefor by a physician before the application for the policy, and we think it must also be conceded that at the time of the application he knew and must have known that he had such disease.

Six reasons are urged. The first five may be considered together, and they are—

1. The verdict is contrary to the evidence.

2. The verdict is contrary to the weight of the evidence.

3. 'Ihe verdict is contrary to the charge of the trial judge.

4. The verdict is the product of passion, prejudice and partiality on the part of the jury.

5. The trial judge erred in denying the defendant’s motion to direct a verdict for the defendant.

Particular complaint is made that the weight of the evidence is against a finding that insured’s representations that he was then employed by Benjamin Moore & Company, bad not been attended by a physician within two years, and bad never bad certain enumerated diseases, including tuberculosis, were not fraudulently made.

Tt may further he stated that insured at the time in question was not in the employ of Benjamin Moore & Company, and bad not been for some months.

These were representations, and unless fraudulently made did not void the policy, but if willfully untrue they were fraudulent and voided the policy. Duff v. Prudential, 90 N. J. L. 646.

But in the present case there was question as to whether the examining physician actually put these questions to the insured, and if that was done whether he understood them.

Insured was Polish, and while it is said that he could speak and understand English it is fair to assume that his knowledge of the language was limited.

Tf the questions were put to him and. he understood them, then beyond question he was guilty of “willful untruths,” and his representations were fraudulent and at least those as to his condition of health, &c., were material and the policy was voided and the motion to direct the verdict-should have resulted in a direction in favor of defendant. Guarraia v. Metropolitan, 90 N. J. L. 682; Prahm v. Prudential, 97 Id. 206; Kerpchak v. John Hancock, &c., 97 Id. 196.

We find that the refusal to direct a verdict against the plaintiff was proper, and that the verdict is not against the weight of the evidence.

This leaves the objection to the following portion of the charge:

“It is claimed that these questions were never actually put to him * * * that is a question of fact that the court is leaving to the jury * * *. If the questions were not put.to him then that is; a different proposition.”

Now, this is not all the court said. In full, it is: “It is claimed that these questions were never actually put to him. Then, if they were put to him, it was done in such a speedy and rapid way they were put and because of his lack of complete familiarity with the language, and that it was impossible for fourteen (14) questions to be put so. that this man could understand them and answer them within the time that the doctor says it took to put those fourteen questions and get the answers. That is a question of fact that this court is leaving to the jury. If this man made answer to any of those questions that I have referred to and he gave an untruthful answer and he knew it was untrue at the time he made it then, gentlemen, solemnly it is your duty to hold, as the law holds, that that voids this solemn contract; but if he did not understand those questions, or if the questions were not put to him, then that is a different proposition.”

We can find no error therein. If he did not understand the questions there could be no willful falsity, and if they were not asked at all, surely there could be none, because then the answers were not his.

The rule to show cause is discharged, with costs.


author: Pee Curiam.

text:
    ALBERT J. SIEGLER, PLAINTIFF-APPELLANT, v. NEW AMSTERDAM CASUALTY COMPANY, DEFENDANT-APPELLEE.
    Decided October 19, 1925.
    Insurance — Workmen’s Compensation — Cancellation of Policy For Non-payment of Premium! — insured’s Broker Assured Him That Payment Made Would Make It All Right — Later, Audit of Insured’s Books Required Additional Premium Payment— Subsequent Accident — Directed Verdict For Defendant Not Set Aside, It Being Held That Due Notice of Cancellation Had Been Given, That Broker’s Assurance Did Not Protect the Policy, and That the Untruthfulness For Reason of Cancellation Was Immaterial Since a Reason Was Not Necessary.
    On appeal from the Essex County Circuit Court.
    Before Gumuere, Ohtee Justice, and Justices Kali,son and Campbell.
    Por the appellant, Cohen & Klein.

    Por the appellee, Edwin. T. Smilh and Raymond Dawson.

   Pee Curiam.

This is an appeal from a judgment upon a directed verdict in favor of the defendant at the Essex Circuit.

Appellant secured through his broker, Horwitz, an indemnity policy insuring him against employer’s compensation in the defendant company. Such policy was dated May 19th, 1923, and expired May 19th, 1924, unless sooner canceled. The insurance ran to appellant as a mason. The estimated premium was $27. This ,,was paid by appellant until August 24th, 1923, and was paid by him to his broker, Horwitz, and by the latter to Eichhorn, the representative of the insurance company, on August 27th, 1923.

On September 26th, 1923, the insurance company, under the terms of the policy, gave appellant notice that the policy would be canceled on and after October 7th, 1923, and that such cancellation was because of non-payment of premium. Horwitz claims that, on being notified of this by appellant, he took up the matter with Eichhorn, who replied, “don’t worrjq it will be alright.”

Subsequently, an audit of the appellant’s books or time sheets wjis made from the date of the policy, May 19th, 1923, to October 27th, 1923, the cancellation date, for the purpose of determining the total premium to be paid for the period from May 19th, 1923, to October 7th, 1923, and this was fixed at $22.94>,in addition to the advance premium of $27.

On December 14th, 1923, one Robert Dixon, a carpenter, was injured, and the compensation bureau fixed the amount to be paid at $1,386.38. That judgment was entered March 31st, 1924. An informal hearing seems to have been had in December, 1923, and the formal hearing March 6th, 1924.

One Harry Kruvant, a brother-in-law of the appellant, was the original respondent in this proceeding, and appellant applied, to be added as a respondent. The judgment of the compensation bureau appears to have been against Kruvant only.

Notice of the injury to Dixon was not given to the insurance company by .appellant until February 16th 192^, and the additional premium before referred to was not paid by appellant to his broker, Horwitz, until February 13th, 192^.

Appellant contends that the cancellation was ineffective because—

1. It is not shown that ten days elapsed between receipt of the.notice and the 'date fixed for cancellation, October 7th.

2. That if the notice was proper the statement of Eichhorn, the representative of the insurance company, that it would be alright, abrogated and anulled the cancellation.

3. Because the reason given in the notice — non-payment of premium — was untrue.

.Wethink none of these has any substances because—

1. It is admitted that the notice of cancellation was received and appellant had no loss until long after the date fixed, for. cancellation. ■

2. Whatever effect the statement of Eichhorn may have had, it was nullified by the subsequent audit, fixing of additional premium and the payment thereof.

3. The untruth-fulness of the reason for cancellation was immaterial, because, under the terms of the policy, no reason was required to he assigned.

Appellant next contends that there was error in overruling a question to Ilorwitz: >

“Q. What information did you convey to Eichhorn regarding the nature of the policy and the work to he, covered by the policy?”

Such ruling was proper. Plaintiff was suing upon the contract as written, and it was immaterial in this action what the prior negotiations -were.

Finally, the appellant contends it was error in permitting Ilorwitz to answer the question:

“Q. So yon knew the purpose of that audit was to make audit after the cancellation notice, didn’t you?”

We can see nothing harmful in this. The witness was appellant’s broker, and liad acted for him and was acting for him at the time of the audit and the cancellation of the policy.

On both grounds the direction was proper and the judgment is affirmed, with costs.


text:
    J. O’NEILL FAIRLEIGH AND JOSEPH MORTON, EXECUTORS OF THE LAST WILL AND TESTAMENT OF WILLIAM HIGGINS, DECEASED, PROSECUTORS, v. NEWTON A. K. BUGBEE, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, DEFENDANT.
    Submitted June 9, 1925
    Decided October 5, 1925.
    On writ of certiorari.

    Before Justices Trencard, Katkenbach and Lloyd.
    Eor the prosecutors, Bcammell & Besore.

    For the defendant, Edward L. Kalzenbach.

   Pee Curiam.

After a full examination of this case we have reached the conclusion that the judgment of the Prerogative Court should be affirmed, for the reasons expressed in the opinion delivered by Vice Chancellor-Buchanan, and reported in 2 N. J. Adv. R. 843.


text:
    EDWARD DOOLING, WILLIAM DOOLING, DENNIS DOOLING AND JOHN DOOLING, PLAINTIFFS-RESPONDENTS, v. FELIKE DRAGRIN, DEFENDANT-APPELLANT.
    Decided October 20, 1925.
    Appeals — Judgment by Default — Appeal on Ground That Judgment Was Contrary to Clear Weight of Evidence, Contrary ' to Law, Excessive, Not in Conformity With Complaint, and That Judgment Was More Than Pleadings Justified — Appeal Dismissed.
    On appeal from the Hudson Common Pleas Court.
    Before Gummere, Chief Justice, and Justices Kaliscii and Campbell.
    Eor the appellant, Arthur B. Seymour.

    Eor the respondents, Joseph F. L. Fitzpatrick.

   Per Curiam.

The plaintiffs below obtained a judgment by default against the defendant below ill the County Common Pleas of Hudson county, from which judgment he gave notice of appeal to this court.

The grounds of appeal are stated to be as follows:

1. The judgment is contrary to the clear weight of the evidence. 2. It is contrary to law. 3. It is excessive. 4. It is not in conformity with the complaint and is not justified by the complaint. 5. The plaintiff is not entitled to judgment for more than $875 upon the pleadings and evidence.

The state of tho case discloses that judgment was entered on December 23d, 1924, and it was not until March 20th, 1925, that the defendant-appellant caused a notice to be given to the plaintiffs of an application to be made on the 26th day of March, 1925, to the Court of Common Pleas for a rule to show cause why the judgment should not be set aside upon the following grounds:

• 1. That the judgment was improvidently entered. 2; That the judgment is unjust. 3. That the said judgment is improperly entered and is more than can lawfully be entered under the pleadings in ,the action. 4. Upon the grounds shown in the affidavit hereto annexed.

The matter came on for a. hearing before that court, practically as a motion to set aside the judgment, which motion was refused and an exception was taken and allowed. Counsel of appellant relies on his stated five grounds of appeal, the first three of which, namely, that the judgment is contrary to the clear weight of the evidence, contrary to law and is excessive, have no proper place in a ease upon appeal. Upon the assumption that the two remaining grounds of appeal, namely, that the judgment is not in conformity with the complaint, and' that upon the pleadings the plaintiff was not entitled to a judgment for more than $875, and, therefore, there was error in the record, and thus laid a basis for an appeal,, an inspection of the complaint and judgment entered thereon conclusively contradicts the appellant’s assertion and proves the appeal to be frivolous.

The appeal is dismissed, with costs.


text:
    JOSEPH KELLER, PLAINTIFF, v. JOHN McNULTY, DEFENDANT.
    Decided October 20, 1925.
    Negligence — Motor Vehicle Injury to Invited Passenger — Defendant Warned by Passenger of Danger Resulting From His Driving — Collision Resulted in Passenger’s Injury — Verdict For Defendant Against Clear Weighitl of Evidence.
    On plaintiff’s rule to show cause.
    Before G-ummeee, Chief Justice, and Justices Kalisoh and Campbell.
    Eor .the rule, Aaron L. Simon.

      Contra, Frank Q. Turner.

   Pee Cueiam.

The defendant was the owner of an automobile. On the night of August 17th, 1923, the plaintiff and one Dennen were invited to ride with the defendant in his automobile. They accepted the invitation and the three sat abreast on the front seat of the car, the defendant operating the car. As they were proceeding along White Oak Ridge road, a public thoroughfare, in Short Hills, and the car was being propelled at a speed of about twenty-two miles an hour, Dennen observed two lights on a car parked on the right-hand side of the road and in the path of the defendant’s automobile, and called the defendant’s attention to it by saying, “Look out, Johnny, for that car ahead, I see a light,” to which the defendant replied: “All right, I am watching.” The defendant admitted that his attention was called to the car ahead when about one hundred and fifty feet from the place of the collision; that he looked for a car but could not see it plainly, and that he did not see it till he got within ten feet of it, and, as he finally put it: “When I got on top of it,” with the result that he crashed into it, whereby the plaintiff received painful and serious injuries. He also admitted that there was a red light on the rear of the car. There was also testimony that the road was fairly well lighted. A fair reading of the testimony fails to disclose any legal defense against the plaintiff’s right to a recovery. The verdict of the jury was against the clear weight of the evidence. Upon what theory of the evidence the jury could properly find a verdict for the defendant has not been suggested.

The rule to show cause is made absolute, and a trial de novo is awarded.


text:
    DAVID L. HELLER, RELATOR, v. VILLAGE OF SOUTH ORANGE AND IRA T. REDFERN, BUILDING INSPECTOR OF THE VILLAGE OF SOUTH ORANGE, DEFENDANTS.
    Submitted June 9, 1923
    Decided October 5, 1925.
    Zoning — Stores in Restricted Sections! — Case Governed by Ignaciunas v. Risley — Restrictions Not Valid Exercise of Police Power, But the Taking of Private Property For Public Use.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Teen chard, Katzenbach and Lloyd.
    Eor the relator, Howe & Davis {Edward I. Davis, of counsel).
    Eor the -defendants, Biker .& Biker {Thomas E. Fitzsimmons, of counsel).
   Per Curiam.

This case is before this court on a rule to show cause why a peremptory writ of mandamus should not issue requiring the village of South Orange and its building inspector to issue a permit to the relator for the erection of seven retail stores, to be of brick construction, on property owned by the relator at the corner of Irvington avenue and Ward place, in the village of South Orange.

The state of the case contains an agreed state of facts. Erom the facts agreed upon it appears that, on November Both, 1924, the relator applied to the building inspector of the village of South Orange for a permit for the erection of the row of stores. The application was made in writing and the required fees tendered. The building inspector refused the permit on the ground that the zoning ordinance of the village of South Orange, passed March 20th, 1922, the erection of retail stores upon the lot owned by the relator was forbidden.

The question thus presented has been decided adversely to the defendant in a number of cases, of which the leading case is Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 2 N. J. Adv. R. 852.

The ordinance in question further provides as follows: “In residence ‘A’ and residence ‘O’ districts no part of a building shall be higher above the curb level than the distance it sets back from the street line of the street on which it faces, and the front yard set-back distance to the main front wall shall not be less than twenty-five feet, except that on a corner lot the set-back distance from one street line may be reduced to not less than fifteen feet.” The relator’s property is included in this inhibition. The provision is, in our opinion, illegal. It is not a valid exercise of the police power. It is the taking of private property for public purposes without just compensation being made to the owner. It falls within the doctrine laid down in the case of Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285; see, also, St. Louis v. Hill (Mo.), 21 L. R. A. 226.

As this court said in the case of Eaton v. Village of South Orange, decided October 1st,' 1925, “the fact that there is ‘considerable traffic — automobile and otherwise — at the intersection of the streets on which the property in question fronts,’ does not justify the restrictions in question.”

A peremptory writ of mandamus is awarded. In case an appeal is desired, an application will be entertained for an order for the moulding of the pleadings.


text:
    CURTIS-WARNER CORPORATION, PROSECUTOR, v. THOMAS GORMAN ET AL., DEFENDANTS.
    Submitted June 9, 1925
    Decided October 5, 1925.
    Workmen’s Compensation — Injury to Employe Trivial at First; Later, Pneumonia and Gangrene, With Amputation of Two Toes — Relator Claims Gangrene Result of Pneumonia — Evidence to Support Employe's Contention That It Resulted From the Accident — 'Not Function of This Court to Weigh Testimony — Verdict For Employe Will Not Be Set Aside.
    On writ of certiorari.

    Before Justices Trenchard, Katzenbach and Lloyd.
    Por the prosecutor, Edwards & Smith (Raymond Dawson, of counsel).
    Por the defendants, Henry Carless.

   Per Curiam.

The writ of certiorari in this case brings up for review the ¡record in a workmen’s compensation case decided by the Essex County Court of Common Pleas. The testimony shows that Thomas Gorman was, on January 19th, 1924, an employe of the prosecutor, Curtis-Warner Corp. He was a carpenter. He was working on that day on a synagogue in the city of Newark. A block of timber four by four inches square and fourteen feet long fell on his left foot, bruising it. He gave notice of the accident, which at first seemed trivial, to the representative of his. employer. He continued to work until February 9th, 1924, when he was obliged to cease work on account of the injury. He then contracted pneumonia, and gangrene set in at the place where the block of timber had fallen upon his foot. His big toe and the toe next to it had to be amputated.

Gorman filed a petition with the compensation bureau, and hearings were had on October 28th and November 7th, 1924. The result of these hearings was a finding and determination by the bureau that the petitioner had sustained the injury complained of: that the same arose out of and in the course of his employment, and that he was entitled to a sum for temporary and permanent disability. An appeal was taken to the Essex County Court of Common Pleas. The Court of Common Pleas decided the same as the compensation bureau. A writ of certiorari removing the record to tin's court was thereupon applied for and allowed.

The contention is made upon the part of the prosecutor that Gorman failed to show by a preponderance of the evidence that he me.t with the accident. While it is true that the burden is upon the petitioner to prove such facts as will entitle him to compensation, yet, a reading of the testimony loads ns to the conclusion that the petitioner did prove the necessary facts, namely, that he was employed by the prosecutor; that a block of timber struck him upon the foot; that lie notified a representative of his employer at the time of the accident; that while the injury did not seem to be anything more than trivial in the beginning it developed to such an extent that Gorman was obliged to go to- the hospital; that he had pneumonia; that gangrene set in at the point of injury, and that he lost a portion of his foot. The prosecutor contends that the gangrene was the result of the pneumonia and not of the accident. The prosecutor offers the testimony of physicians of long experience and high professional standing to the effect that the gangrene was not the result of the accident. On the other hand we find in the record testimony to the contrary. It is not the function of this court to weigh testimony. This court cannot set aside a finding of fact where there is evidence in the record to support it. Kauffield v. Pfund & Sons, 97 N. J. L. 335; Geisel v. Regina Co., 96 Id. 31.

As there is evidence which supports the findings of the Essex 'County Court of Common Pleas, the judgment of that court will be and is accordingly affirmed.


text:
    MITCHAEL MARGUES, PLAINTIFF-RESPONDENT, v. LEWIS MIR, DEFENDANT-APPELLANT.
    Decided October 20, 1925.
    Evidence — Translation of Foreign Letter — Partial Translation Objected to — If Objection Was Valid It Was Removed by the Interpreter, Who. on Cross-examination, With Apparent Acquiescence of Counsel, Translated the Remaining: Part of Letter.
    On appeal from the Hudson County Court of Common Pleas.
    Before Gummebe, Chief Justice, and Justices KLalisch and Campbell. ■
    Eor the appellant, Joseph M. Alsofrom (Morris W. Lieberman, of counsel).
    Por the respondent, Alex. R. Desevo (Alexander Simpson, of counsel).
   Pee Cueiam.

This is an appeal from a judgment of the Hudson County Common Pleas Court in favor of the plaintiff and against the defendant for the sum of $2,120.

Although there are three grounds of appeal set forth in the state of the case, the only one argued and relied upon in the brief of counsel of appellant is the second ground, which relates to an alleged overruling by the trial judge of an objection made by defendant’s counsel to the following question : “Q. Will you tell me whether or not that paper which you hold in your hands- is a true translation which you made at your leisure with books of reference before you, and which you could make more accurately than by a mere oil-hand sight translation.” A reference to the printed case does not disclose that this question was objected to. It was answered by the witness in the affirmative, and, thereupon, plaintiff’s counsel put to the witness the following question: “Q. Now, tell us what is the exact translation of that paragraph in so far as it relates to the loss of the notes.” This question was objected to upon the ground that the question did not call for a full translation, and that the witness had already made 'a. translation on the stand, and that the defendant’s counsel should have an opportunity to examine and ascertain whether it is a better or fair translation. Thereupon the court directed the paper to be handed to the defendant’s counsel so that his client could examine the translation to ascertain whether it was a better or fair translation. This direction was complied with, and after such examination defendant’s counsel said: “I object still that the question calls for only a translation of part of the original letter, and also that the translation referred to here is only a part of the original letter.” The court said: “I will allow the matter to stand as it is,” to which ruling an exception was taken.

The original letter was written in Spanish by the defendant, who admitted writing the same to the plaintiff. It is to be observed that the objection to the question was based upon the ground that the translation about to be read by the interpreter was of only a part of the letter, but even if this objection was a valid one, the error, if any, in the ruling, was cured, when the interpreter, upon cross-examination by defendant’s counsel, in relation to the translation of the letter, was asked by plaintiff’s counsel to translate and read the rest of the letter, which was done with the apparent acquiescence of defendant’s counsel. The judgment is affirmed, with costs.


text:
    JOHN CLEMENSHAW, PLAINTIFF, v. JOHN RIZZO, DEFENDANT.
    Decided October 20, 1925.
    Negligence — Motor Truck Collision With Pedestrian Crossing Street — ¡Pedestrian Observed Traffic As It Properly Should Have Moved — Charge That He Was Guilty of Contributory Negligence in Not Looking In Other Direction Not Sustained —¡No Error in Court’s Refusal to Direct Nonsuit, or in Parts or Court’s ¡Charge — Verdict Not Contrary to Weight of Evidence.
    On defendant’s rule to show cause.
    Before G-ummebe, Chief Justice, and Justices Kaíisoh and Campbell.
    For the rule, Mendelsohn & Mendelsohn.

      Contra, William I. Lewis and John O. Benson.

   Pee Cueiam.

The plaintiff sued the defendant in an action in tort to recover- damages for injuries sustained as a result of the defendant’s negligence in operating a motor truck along Eiver street, in the city of Paterson, by colliding with the plaintiff, who at the time was lawfully crossing said street. The plaintiff obtained a verdict against the defendant for the sum of $5,000.

Under the rule to show cause why the verdict should not be set aside the defendant presents these reasons: 1. Because the trial court refused to direct a nonsuit. 2. Because the court refused to direct a verdict of no cause of action. 3. That the verdict was contrary to the weight of the evidence. Í. Because the court charged the jury: “Now, of course, a man would be exercising one degree of care if he looked from one place, and he would be exercising another degree of ca-ré if he looked from another place or if he did not look at all.” 5. Refusal of the court to charge the jury: “If you find that the plaintiff stepped off the curb without looking, and did not look until he was struck by the car he was guilty of contributory negligence.”

Our examination of the testimony leads us to the conclusion that the motion for 'a nonsuit and for a direction of a verdict for the defendant were properly denied. There was testimony from which a jury was warranted in finding that the injury of the plaintiff was caused through the defendant’s negligence, solely. Nor can we say that the verdict is so clearly against the weight of the evidence as to justify its being set aside. We perceive no error in the court charging the jury: “Now, of course, a man would be exercising one degree of care if he looked from one place, and he would be exercising another degree of care if he looked from another place, or if he did not look at all.” The criticism of counsel is, that the charge embodied in it as a proposition, of law that mm ivould he exercising a certain degree of care even if he did not look at all. This abstract comment upon the evidence was proper in view of the testimony, for it appeared that the plaintiff had reached that part of the highway and was looking in the direction from which the traffic would properly come, and was not looking in the direction from which traffic, in the proper use of the highway, was not reasonably expected to approach, when he was collided with by the defendant’s truck which approached on that part of the highway where, according to the Traffic law, it had no right to he, and where the defendant had no reason to expect it to be, and where no timely warning was given of its approach.

The trial court properly refused to charge the jury defendant’s request: “If you find that the plaintiff stepped off the curb without looking, and did not look until he was struck by the car, he was guilty of contributory negligence.” The trial judge had fully charged on the subject requested. Moreover, the trial court is not obliged, though especially requested to do so, to apply a legal principle, which it clearly states to the jury, to conditions of facts postulated by the defendant’s counsel particularly where such conditions do not include all the circumstances which should influence the conclusion of the jury. Consolidated Traction Co. v. Chemowilh, 61 N. J. L. 554.

Eule is discharged, with costs.


text:
    THE STATE, PAUL A. KLINGES, PROSECUTOR, v. THE COURT OF COMMON PLEAS, RESPONDENT.
    Decided October 21, 1925.
    Motor Vehicles* — Drunken Driver — Conviction Held Not to Have Been Unfair, Improper, Unjust, Nor Without Regard to Evidence — Constitutionality of Act Again Sustained.
    On certiorari.

    Before Justices .Kalisch, Black and Campbell.
    Por the prosecutor, Maja Leon Berry.

    Por the respondent, Edward L. Katzenbach, attorney-general.
   Per Curiam.

The prosecutor was convicted before a justice of the peace in the county of Ocean on a complaint charging him with operating “a motor vehicle on the public highway while under the influence of intoxicating liquor and narcotic and habit-producing drug.” &c., and upon said conviction was sentenced to the county jail for thirty days. From this judgment the prosecutor appealed to the Common Pleas Court of Ocean county, which tribunal, after a hearing, found him guilty, and sentenced him to thirty days’ imprisonment in the county jail.

The case is "brought here for review on certiorari, and the reasons presented for a reversal of the judgment are:

1. Because the conviction is unfair, improper and unjust. 2. Because said conviction was made without regard and contrary to the weight of evidence. 3. Because said, conviction was had under subdivision 3, section 14, chapter 208, public laws.of 1921, and said section is unconstitutional, because it is contrary to the provisions contained in article 4, section 7, paragraph 4 of the constitution of the State of New Jersey, and, in other respects, said act is unconstitutional for various reasons.

Under these reasons it is argued — first, that the testimony was insufficient upon which to convict, and secondly, that subdivision 3, section 14, chapter 208 of the public laws of 1921, as amended and supplemented, is unconstitutional. Neither of these contentions appears to us to be sound. There was proof that the prosecutor was intoxicated while operating the automobile upon the public highway, and the proof was sufficient in that respect to authorize a conviction under the statute upon that ground.

As to the contention that chapter 208 of the public laws of 1921, as amended, is unconstitutional, because it provides for a punishment of an imprisonment of not less than thirty days and not more than six months in the common jail of the county wherein the offense was committed, without the intervention of a jury trial, is without force, since it has been decided to the contrary in Katz v. Eldridge, 97 N. J. L. (at p. 157), and, therefore, is no longer open here for discussion.

Judgment is affirmed, with costs.