text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, RESPONDENT, v. LEROY JOHNSON, PROSECUTOR.
    Submitted January 27, 1928
    Decided May 2, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Elmer W. Romine.

    For the respondent, Edward L. Katzenbach, attorney-general, and Grover O. Richman.

   Per Curiam.

This case is presented under a writ of certiorari directed to the judge of the District Court of the city of Elizabeth. It brings up for review a judgment of that court holding that the prosecutor, Leroy Johnson, was guilty of violating section 10 of the act entitled “An act to regulate the practice of medicine and surgery, &c.,” approved May 22d, 1894, as said section was amended by an act approved April 8th, 1921. The complaint alleged that the prosecutor did violate said section as amended in that he did commence and continue the practice of medicine and surgery within the meaning of section 8 of said act, as said section 8 was amended by an act approved April 12th, 1915, without first having obtained and filed a license for such practice issued by the state board of medical examiners. The complaint was made by a member of said state board of medical examiners. A warrant was issued. The defendant appeared. He demanded a jury. A jury was refused. Testimony was offered by which it was shown that the prosecutor had offices at 270 Morris avenue, in the city of Elizabeth. There.was a sign on the door, “Leroy Johnson, D. C.” There was another sign, “Chiropractor.”

Mary De Yitto was examined by him and he told her she had arthritis and stomach trouble. He then had her disrobe and used an electric current upon her. He then twisted her shoulders about. He pronounced the treatment finished. Another witness, Helen Babkewicz, testified to receiving the same treatment. Other witnesses also testified substantially to the same effect. At the conclusion of the state’s testimony a motion to direct a verdict for the defendant-prosecutor was made, the substance of which was that because of the limited title of the original act the legislature could not extend the act by amendments to include offenses which were not embraced in the original definition of the offenses in the act of 1894, and that the amendments were too broad and were not intended by the legislature to apply to any other method of healing outside of the use of drugs or medicines or the performance of surgical operations. The motion was denied. The defendant did not testify. No testimony was offered in his behalf. The defendant’s case was rested. The court pronounced the defendant guilty and imposed a fine of $200 as he had been previously convicted of the same offense.

The first point argued for the prosecutor is with reference to the denial of the motion referred to. The prosecutor insists that the Medical act can only apply to those who actually practice medicine or surgery and that the amendments are unconstitutional because they have been extended to include offenses not embraced in the original act of 1894. We consider the title broad enough to include the offenses under the amendments to the act. As was said by Mr. Justice Van Syckle in the case of State v. Town of Union, 33 N. J. L. 350: “The unity of the object must be sought in the end which the legislative act purposes to accomplish and not in the details provided to reach that end.” The same idea was expressed by Mr. Justice Garrison in Moore v. Burdett, 62 Id. 163, when he said the title of an act was a label and not an index.

The question of the denial to the defendant of a jury trial is argued. This question was lately considered in the case of State Board of Medical Examiners v. Beuttell, 131 Atl. Rep. 89. It was held in that case that the defendant was not entitled to a trial by jury.

It is next argued that the record of conviction is defective. We think it is not. It was not necessary to set out the evidence in the form of conviction under chapter 221 of the laws of 1921 (Pamph. L. 1921, p. 710), which provides for a form of conviction to be used in cases of this character.

We are of the opinion that the evidence introduced at the trial was under the adjudicated cases ample to sustain the conviction. The prosecutor-defendant pretended to diagnose physical ailments. He treated those ailments with electrical treatments, all without any warrant in law so far as we are able to discover. He also gave what is commonly recognized as chiropractic treatments. He had no license to practice in this state as a chiropractor.

The judgment of the District Court is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ROSEHILL CEMETERY ASSOCIATION, PROSECUTOR, v. CITY OF LINDEN ET AL., RESPONDENTS.
    Submitted January 27, 1928
    Decided May 2, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Reed & Reynolds.

    For the respondents, Whittemore & McLean.

   Per Curiam.

This case is on certiorari. The writ brings up for review an assessment for benefits against lands of the Rosehill Cemetery Association, the prosecutor, in the city of Linden, in the county of Union, made under an ordinance of the board of commissioners of the city of Linden for the laying of sidewalks on the easterly side of Edgar road. The prosecutor is a corporation organized under the act entitled “An act to authorize the incorporation of rural cemetery associations and regulate cemeteries.” 1 Gomp. Stat., p. 372. The sidewalks were laid in front of a part of the cemetery. The assessment was made under the provisions of article 25, chapter 152, of the laws of 1917.

The prosecutor claims an exemption from assessments under section 8 of the Cemetery act. This section provides: “That the cemetery lands and property of any association formed pursuant to this act * * * shall be exempt from all public taxes, rates and assessments.” This exemption has been before our courts and was recently passed upon by this court and later by the Court of Errors and Appeals in the case of Irvington v. Independent New Jersey Verein, 3 N. J. Mis. R. 102. The Independent New Jersey Verein was-a cemetery corporation organized under the act mentioned. The assessment was a local assessment for paving. It was held by the Circuit Court that the cemetery association was exempt from assessment for local improvements under section 8 of the said Cemetery act. This case controls, we think, the present case unless there can be a distinction drawn between sidewalks and street paving.

This the respondents endeavor to do. Eor their .support of this proposition they rest upon the case of Agens v. Newark, 37 N. J. L. 415, in which the opinion of the Court of Errors and Appeals was rendered by Chief Justice Beasley. We do not think this case supports the respondents’ contention. This case held (1) that there was a difference between an assessment for the improvement of a sidewalk and for the improvement of a road bed; (2) that a sidewalk is regarded as an appendage to and part of the premises to which it is attached, and is so essential to the beneficial use of the premises that its improvement may well be regarded as a burden belonging to the ownership of the land, and the order for such improvement as a police regulation, and (3) that an assessment for a street pavement can be made to the extent only of the peculiar benefits to the property assessed. These holdings do not, in our opinion, prevent the legislature from exempting the property of cemetery associations from sidewalk assessments. They have no bearing upon or relevancy to the question herein involved.

The respondents, to sustain the assessment, also reply upon the fact that article 25 of the Home Eule act deals exclusively with sidewalks. It gives municipalities the right to pass ordinances regulating and providing for the construction of sidewalks at the cost and expense of the owner or owners of the land in front of which the said improvement shall be made. Article 25 does not, however, expressly repeal section 8 of the Cemetery act. To support their contention, the respondents must rely upon an implied repealer. Implied repealers are not favored. Hotel Registry Realty Corp. v. Stafford, 70 N. J. L. 528. The new law must be inconsistent with the old law to impliedly repeal it. There is no inconsistency between article 25 and section 8 of the Cemetery act. The latter act is upon a subject not embraced in article 25 of the Home Eule act. Both acts can stand together. We consider section 8 of the Cemetery act in no way affected by article 25 of the Home Eule act.

The respondents finally argue that the assessment should be sustained because the cemetery association only owned a one-half interest in the property abutting on Edgar road upon which the sidewalk was laid. The deed was made by Harry Ernest to the prosecutor. While it conveys only a one-half interest in the property to the prosecutor it gives to the prosecutor a power of sale of the remaining half interest on condition that fifty per cent, of the sale price be turned over to Harry Ernest, or his assigns. This is merely, in our opinion, a method of securing payment and amounts to nothing more than if the entire property had been deeded and a purchase-money mortgage given by the grantee containing a provision as to the release of lots when sold. There were, of course, obstacles to such a method in property to be used for cemetery purposes. We do not see that the form of the deed alters the situation as to the exemption.

In view of the broadness of the exemption from assessments upon cemetery property given by the construction of section 8 of the Cemetery act in the cases of Irvington v. Independent New Jersey Verein, supra, and Newark v. Mt. Pleasant Cemetery, 58 N. J. L. 168, we are of the opinion that the assessment should be set aside.

The assessment is accordingly set aside.


text:
    MARY AND ANTHONY KELLY ET AL., PROSECUTORS, v. MAYOR AND ALDERMEN OF JERSEY CITY ET AL., RESPONDENTS.
    Argued January 18, 1928
    Decided May 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutors, Warren Dixon.

    For the defendants, Thomas J. Brogan and Frank J. Reardon.

   Per Curiam.

The assessment must be set aside for the fundamental reason that the judge of the Circuit Court erred in refusing to hear testimony offered by the prosecutors with relation to the alleged excessive amount of the assessments.

The statutory scheme as provided by article 20 of the Home Rule act of 1911, pages 311, 318, is that the commissioners of assessment, when notified of the completion of an improvement, are to examine it and then fix a time and place for hearing the parties interested; they are to give notice by advertisement and mailing, &c. These steps were taken. Some claim is made that the notices by mail were not received and, perhaps, were not sent out; but the statute takes care of this feature, so that it need not be considered here. The board of assessment commissioners held a hearing, some persons came and objected; no evidence was taken at that time, and the board confirmed the assessment.

Under the Home Rule act, the next step would be to certify the assessment to the governing body (Pamph. L. 1911, p. 381, § 27), and for that body to give notice and hold a hearing. But, with respect to first-class cities, the act of 1925 (Pamph. L., p. 239) substitutes the Circuit Court for the governing body (p. 242, § 3, f 2), so that, instead of the assessment commissioners reporting to the city commissioners or other governing body, they are to report directly to the Circuit Court, which holds the hearing as of course, at which all parties concerned may be heard.

This course of procedure was considered by the Court of Errors and Appeals in Breckenridge and Tichenor v. Newark, 95 N. J. L. 436, wherein the same statute was applied and the critical question in that ease was what kind of a hearing was to be held by the city commissioners upon receiving the report of the assessment commissioners. It appears (at p. 439) that “property owners who had been assessed by the commissioners of assessment appeared before the city commission pursuant to notice of hearing, objected to the confirmation of the assessment' and offered to sustain their objections by evidence. The city commissioners refused to hear evidence. This was an error * * *. This error is fatal. It cannot be cured by the fact that there is an 'appeal to the Court of Common Pleas from the amount of the assessment. What the landowner is entitled to is the judgment of the city commissioners as to the liability of the land to assessment as well as to the amount * *

The only possible difference between the case cited and that sub judice is that since the former case was decided the legislature has intervened by substituting the Circuit Court for the governing body; but the rule, of course, is the same. It appears in this case that the Circuit Court judge ruled that he would hear any testimony theretofore offered before the commissioners of assessment, and also any testimony relative to the failure to give proper notice, or otherwise affecting the jurisdiction of the commission, but that he would not hear any witnesses not produced before the commission unless such witnesses were offered for the purpose of proving either that no notices were received or that the commission failed to take such other proper legal steps as were necessary to give it proper jurisdiction.

Following the rule laid down in Breckenridge v. Newark, this ruling of the Circuit Court was erroneous, and the confirmation of the assessment by the Circuit Court is, accordingly, set aside.


text:
    DOMINICK FERRARO, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Submitted January 27, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Henry H. Fryling.

    For the appellee, Arthur T. Dear.

   Per Curiam.

This is an appeal from a judgment of $221.55 for damages to appellee’s automobile caused by a collision with a trolley car of the appellant.

Two grounds for reversal are urged.

1. Error in trial court in refusing to nonsuit and direct a verdict in favor of appellant upon the ground that there was no evidence of negligence and upon the further ground that appellee was guilty of contributory negligence.

We think both of these presented jury questions and that the action of the trial court was therefore not erroneous.

2. Error in receiving in evidence a bill for repairs of appellee’s car without proof that the charges therein. were proper, necessary and reasonable.

This was error. The mere production of a bill without proof that the charges therein contained were proper, necessary and reasonable is within the hearsay and self-serving rule and not permissible.

There was some evidence produced as to the reasonableness of some of the charges contained in this bill but not as to all and therefore the error was not fully cured.

The judgment must be reversed but as the error was upon the question of damages only, and is in our judgment separable within the meaning of rules 131 and 147 of this court, a venire de novo will be awarded upon the question of damages only (Holsapfel v. Hoboken, 92 N. J. L. 193), the judgment in other respects being affirmed.


text:
    JOSEPH CAPUZZI, PLAINTIFF-APPELLEE, v. ERIE RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted January 27, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, Hobart & Minard.

    For the appellee, no appearance.
   Per Curiam.

The plaintiff below, in traveling over a highway crossing of the appellant, contended that because of the condition of disrepair of such crossing the automobile which he was operating was turned from its course and upon and along the right of way of the railroad, and while in that position was struck and damaged by a locomotive. ' The action was to recover damages to the automobile and appellee has a judgment for $125, which it is urged should be reversed for two reasons:

1. Because the proofs do not show that the proximate cause of the happening was a condition of disrepair of the crossing.

We find, however, that there was proof in this direction warranting and requiring the submission of that question to the jury.

2. Because the only proof of ownership of the automobile was by parol, and should have been by and through a bill of sale as required by Pamph. L. 1919, ch. 168, as amended by Pamph. L. 1920, ch. 247.

No authority is cited in support of this contention, and we think that proof of ownership by parol was sufficient and not error.

The judgment below is affirmed.


text:
    STATE OF NEW JERSEY, EX REL. JOHN M. BENSON, RELATOR, v. WILLIAM WEILER, RESPONDENT.
    Submitted January 27, 1928
    Decided May 1, 1928.

      Before Justices Parker, Minturn and Campbell.
    For the relator, Leo S. Carney.

    For the respondent, John H. Cooper.

   Per Curiam.

This is a contest under section 4 of the Quo Warranto act, and involves the alleged office of clerk to the board of assessors of the town of Kearny. The principal answer made is that the clerkship of the board of assessors is not an office nor even a position, because it was never created in the legal manner, but is merely an employment.

The facts are that on August 31st, 1921, the relator was appointed by resolution as clerk to the board of assessors, and his salary was fixed at $1,500; that he took an oath of office and attended to the duties imposed upon him; and that during a six months’ leave of absence without pay the respondent was appointed clerk of the board of assessors, and on the last day of the six months’ leave of absence, by resolution, the relator was discharged. He claims immunity from summary discharge on the ground that he is an honorably discharged soldier and entitled to the protection of the Yeteran act.

It seems to be clear that under the Town act of 1895 there is no such office -as clerk to the board of assessors erected by the statute.

■ It also seems clear that under that act offices may be created by the governing body, but, in such case, only by ordinance. The Home Rule act of 1911 seems to contain a similar provision.

The act of 1923 (Pamph. L., p. 306), is invoked by the relator, but that statute does not legalize offices to be created by resolution; it merely refers to the fixing of salaries in that manner.

Wé are clear that there was no lawful office of clerk to the board of assessors of which the relator was in occupancy, and, in that situation, the action of quo warranto is inapplicable, because it relates only to public office. Harris v. Corker, 89 N. J. L. 31.

The case being at issue on the pleadings did not go to a jury for the trial of any issue of fact, but certain facts have been stipulated and submitted to us for our determination, which is that the respondent is entitled to judgment.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. NICHOLAS GIARDONI, PLAINTIFF IN ERROR.
    Submitted January 27, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff in error, James Mercer Davis.

    For the defendant in error, George M. Hillman.

   Per Curiam.

Plaintiff in error was convicted under an indictment charging carnal abuse and indecent assault.

There are but two questions urged—

1. Error in permitting the complaining witness Elizabeth Jess, a girl of eleven years of age, to be sworn and testify.

We are satisfied that the trial court was well within its discretion in taking the action complained of, and there was therefore no error.

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

This ground is not before us, as the record presents no such assignment of error nor specification of cause, and. further because the state of the case does not contain the certificate of the trial judge necessary'' to bring the matter before us under section 136 of the Criminal Procedure act.

The judgment below is therefore affirmed.


text:
    ALOYSIUS McMAHON ET AL., RECEIVERS OF DAVID GRIMES, INCORPORATED, PLAINTIFFS-APPELLEES, v. AMERICAN RAILWAY EXPRESS COMPANY, DEFENDANT-APPELLANT.
    Submitted January 27, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the appellant, William B. Harley.

    For the appellees, no appearance.
   Per Curiam.

This was an action to recover damages to radio sets claimed to have been damaged by the express company. There seem to have been eighteen shipments, the total damage claimed being $182.25. Testimony was produced as to three shipments only, and the trial judge sitting without a jury found for the appellees in the full amount of their claim.

Of the three cases in which proofs were presented the first was a shipment to the Michigan Music Shop, Detroit, in which the damage claimed was $8, and this was not contested by the appellant; the second was a shipment to B. and M. Electric Company, Chicago, where the proof was that the express company found and reported the shipment improperly packed, and that the damage was caused by a fall of the box, and the third was a shipment to the Bell Knap Hardware Company, Louisville, Kentucky, where there was simply proof of damage and nothing more.

We are asked to set aside this judgment upon the ground that the trial court erred in refusing motions to nonsuit and direct a verdict, because there was no proof that the goods were in good condition at the time of their delivery to the ■express company.

There is no question but that there must be proof of good ■condition at the time of delivery to carrier or a receipt from carrier acknowledging receipt of goods in good condition. Gude v. Pennsylvania Railroad Co., 77 N. J. L. 391.

Such proof was. not produced as to the second and third shipments as to which evidence was taken before the trial ■court, but it does seem to appear that the appellant admitted ■or conceded its liability as to the first shipment.

But for this the appellant would have been entitled to a nonsuit or direction of verdict in its favor. The difficulty is, however, that both of these motions were directed to the entire claim of the appellees without eliminating the first item or shipment. Under such circumstances it was not •error for the .trial court to refuse these motions, and, as the judgment is not attacked for any other reason or alleged error, it must be affirmed.


text:
    NEW JERSEY LAMP WORKS, APPELLEE, v. McCULLOUGH-GENTLE TRUCKING COMPANY, APPELLANT.
    Submitted January 27, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.

      For the appellant, Jerome J. Dunn.

    For the appellee, Maurice S. Maurer.

   Per Curiam.

The action was for goods sold and delivered. The original demand declared upon a book account, showing simply dates and amounts with no items of the merchandise covered by the charges.

Subsequently an amended demand was filed containing a copy of the book account fully itemized.

Appellee has a judgment for $250.

Eeversal of this judgment is urged upon three grounds—

1. Because the amended state of demand was not served upon appellant, and appellant was forced to trial over objection as to such non-service of demand.

The state of the case before us is entirely silent as to any objection of this character having been made.

2. Because the plaintiff below failed to produce its books to prove the account upon which it was seeking recovery.

But this was not necessary. Books of account, if proved, may be good evidence, but are “not the best evidence so as to exclude parol proof.” Stuart v. Burlington County Farmers Exchange, 90 N. J. L. 584.

Further than this the state of case shows: “Plaintiff proved the doing of the work, the price and part payment by the defendant. Defendant admitted that the work was done, or was supposed by it to have been done, the price and the receipt by defendant of the radiators the plaintiff proved had been repaired by plaintiff, but objected that the plaintiff did not produce its books in evidence. As the case was tried' on the claim of work done, which has been testified to in detail for plaintiff, the objection was overruled.”

Under such circumstances there was no error in the direction complained of.

3. Error in refusal to direct a verdict for appellant.

As there is proof supporting the judgment in favor of the appellee, there was no error in the trial court, reviewable here, in refusing to find in favor of appellant.

The judgment below is affirmed.


text:
    ADOLPH GADEK, PROSECUTOR, v. JOSEPH KUGLER, INSPECTOR, ETC., AND BOARD OF ADJUSTMENT OF THE CITY OF LINDEN, RESPONDENTS.
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the rule, Stephen P. Piga.

      Contra, Wittemore & McLean.

   Per Curiam.

This is a rule to show cause why a writ of certiorari should not issue to review the finding and judgment of the board of adjustment of the city of Linden.

We conclude that a writ should be denied and the rule to show cause discharged. For this there are several reasons.

1. That the attorney for the applicant is not a counselor-at-law, and, therefore, not entitled to prosecute this rule. Moore v. Bradley Beach, 81 N. J. L. 395.

2. The applicant is in laches in applying for the writ.

This is so if his contention is correct that service of notice of appeal upon the secretary of the board on September 11th, 1921, was proper, or whether the respondents’ contention is correct that the appeal was instituted when the hoard undertook to receive it on September 22d, 1921.

3. That the applicant for the writ had no notice of the finding of the hoard of adjustment.

Whether or not such notice was in exact accord with the requirements of the statute need not for present purposes be considered. Applicant’s brother, who is conceded to have been his agent in the matter, was present when the' board announced its finding, and such notice to the agent was notice to the applicant.


text:
    ALFRED H. LEAVENGUTH ET AL., PROSECUTORS, v. TOWN OF WEST ORANGE ET AL., RESPONDENTS.
    Submitted January 17, 1928
    Decided May 2, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, Whiting & Moore.

    For the respondents, Grosso, Brundage & Anderson.

   Per Curiam.

This case is presented to this court upon a writ of certiorari. The writ brings up for review a final assessment against lands of the prosecutors certified by a report of the board of assessment commissioners of the town of West Orange. The basis for the assessment is the laying of water mains and water connections on Mt. Pleasant avenue, in the town of West Orange. The facts presented in the record are unusual. The town of West Orange does not own a municipal water plant. It procures its supply of water from the Commonwealth Water Company. On February 24th, 1925, a petition was presented by owners of lands situated on Mt. Pleasant avenue to the town commissioners asking that they extend the eight-inch water main on Mt. Pleasant avenue from the then westerly terminus of the water main in said avenue westwardly to the Livingston-West Orange line. This petition was read at this meeting. The board of commissioners directed the mailing of notices of intention to each of the several owners of property abutting on Mt. Pleasant avenue along the line of the proposed extension. They also caused to be published a, notice with 'reference to the extension of this water main and of the intention to hold a public hearing on the matter on March 10th, 1925.

A public hearing was held on this date. The mayor asked if there were any present who desired to enter objections to the laying of the extension to said water main. No one present desired to be heard in opposition. An ordinance was then introduced for the laying of the water main and passed upon first and second readings, and held over for the third reading and final consideration on March 24th, 1925. At this meeting no objection was made to the passage of the ordinance, and it-was accordingly passed. The town of West Orange then entered into an agreement with the Commonwealth Water Company by which the water company contracted to lay the eight-inch main, and the town agreed to deposit with the water company the sum of $11,629.39, which the water company was to retain until new customers were connected to the main. As the property of each new consumer was connected an amount equal to three and one-half times the normal annual revenue from such consumer was to be returned to the town of West Orange.

After the water main had been put in, and some two years after the inception of the proceedings, there was a report of final assessment. This final assessment charged the property owners with their pro rata share as found by the board of assessment for the cost of the water main and water connections. Then for the first time the prosecutors, many of whom had made the application for the water main, questioned the proceeding.

We feel that it is unnecessary to consider the question whether or not the ordinances and proceedings under review are legal. The prosecutors in our opinion are in laches. They knew from the very inception of the proceedings the entire transaction. There was no attempt to conceal the transaction on the part of the municipality. The prosecutors wanted the extension of the water main laid. They made no objection at the various hearings held in the matter. They stood by and saw the main laid. Many of them used it. Now, after wanting the main, obtaining it, using it, they seek to set aside the assessment. Over two and a half years elapsed before any opposition was evidenced. The case appears to us to be a clear case of laches on the part of the prosecutors. They will not be permitted to now object to the validity of the proceedings. The leading cases which, we think, support the position we take, are Graham v. Ocean City, 98 N. J. L. 426; Burstiner v. East Orange, 3 N. J. Adv. R. 215; 4 Id. 1858; Durrell v. Mayor and Council of the City of Woodbury, 74 N. J. L. 206.

The writ is accordingly dismissed.


text:
    DOUGLAS RUBB, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. CESTA CHIESA AND ANNIBALE DEREGIBUS, DEFENDANTS.
    Submitted January 27, 1928
    Decided May 3, 1928.
    Before Justices Parker, Minturn and Campbell.

      For the rule, Thomas F. Meaney.

    Contra, Charles A. Rooney.

   Per Curiam.

We are asked to set aside the verdicts in this matter for four reasons—

1. Because of refusal to nonsuit.

2. Because of refusal to direct a verdict in favor of the defendants.

The grounds for both of these trial motions were the same, namely, because there was no proof of a collision between the automobile of the defendants and the bicycle ridden by the plaintiff Douglas Rubb, and because the proofs established the contributory negligence of the latter as a matter of law.

We find the proofs to be such as to have made the denial of both of these motions proper.

3. Because the verdicts are against the weight of the evidence.

This we do not find to be so.

4. Because the verdict of $4,000, in favor of the hoy Douglas Rubb, is excessive.

This is a verdict which may be said to be generous, but we do not find it to he excessive in the sense and to the extent warranting us in setting it aside or suggesting a reduction.

The rule to show cause is therefore discharged.


text:
    WILLIAM H. CAMPBELL AND R. CURTIS ROBINSON, RELATORS, v. CITY OF OCEAN CITY AND J. REEVES HILDRETH, CLERK, RESPONDENTS.
    Argued October 5, 1927
    Decided May 2, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the relators, Cole & Cole.

    For the respondents, F. Stanley Kreps and Emerson L. Richards.

   Per Curiam.

This case was presented to this court on a rule to show cause why a writ of mandamus should not be allowed requiring the clerk of Ocean City to return the relators, William H. Campbbell and E. Curtis Eobinson, as duly elected commissioners of the city of Ocean City, elected at a commission government election held on May 10th, 1927.

The city of Ocean City in October, 1911, adopted the provisions of the Commission Government act (chapter 221 of the laws of 1911). Three commissioners were elected in 1911. They met and organized on October 17th, 1911. Three departments were created as provided in said act. At regular intervals of four years each elections for commissioners were held.- Three commissioners were always elected. In May, 1927, an election was held. Joseph G. Champion received one thousand four hundred and forty-two votes, E. W. Edwards one thousand three hundred and fifty-seven votes, John E. Trout one thousand two hundred and ninety-one votes, William H. Campbell one thousand two hundred and eighty-one votes and E. Curtis Eobinson eight hundred and seventy-eight votes. The first three named were declared elected commissioners, qualified and have duly conducted the municipal affairs of Ocean City.

William H. Campbell and E. Curtis Eobinson now claim that five commissioners instead of three should have been elected by reason of the enactment of chapter 145 of the laws of 1924, which is entitled “An act respecting cities of the fourth class,” and provides for the nomination and election of commissioners elected therein. This act was designed to-further the re-election of a commissioner of Atlantic City had occupied for sometime the position of' mayor. The act of 1924 provides for the election of a director of public affairs (the mayor) and four other commissioners. The contention of the relators is that under this act, which is a general act applicable to cities of the fourth class, Ocean City should have elected in May, 1927, five commissioners. A writ of mandamus is sought to place in office the relators as duly elected commissioners.

This case was not decided at the opening of the January term, 1928, of the Supreme Court for the reason that the relators in the present case had instituted quo warranto proceedings against the three commissioners holding office. The last mentioned case was number 313 of the January term, 1928. It was referred to the same part of the Supreme Court as had under consideration the instant case. The consideration of the questions raised in both these cases has become unnecessary in our opinion by an act of the legislature passed at its present (1928) session, which has been approved by the governor, and took effect immediately. Of the passage of this act and its provisions we take judicial notice. The act provides as follows:

“All elections heretofore held in any city of the fourth class having a population of not more than ten thousand inhabitants, which said elections were held pursuant to the provisions of an act entitled 'An act relating to, regulating and providing for the government of cities, towns, townships, boroughs, villages and municipalities governed by hoards of commissioners and improvement commissions in this state/ which said act was approved April 25th, 1911, the title of which was amended to read as above set forth by an act approved April 2d, 1912, are hereby validated, ratified and affirmed.”

The purpose of its enactment is clear from its perusal. It was designed to cure the defect, if any, of the election of commissioners in Ocean City in May, 1927. It would be a work of supererogation to consider in view of the enactment of this statute the contentions of the relators.

The rule to show cause is discharged.


text:
    STATE, EX REL. WILLIAM H. CAMPBELL ET AL., RELATORS, v. JOSEPH G. CHAMPION ET AL., RESPONDENTS.
    Submitted January 17, 1928
    Decided May 3, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relators, Cole & Cole.

    For the respondents, F. Stanley Kreps and Emerson L. Richards.

   Per Curiam.

This case is before this court on a demurrer to a writ of quo warranto. The proceedings were instituted for the purpose of determining the right of the respondents to the office of city commissioner of Ocean City. It is a companion case to number 204 of the October term, 19.27, of this court. Por the reasons expressed in said case, number 204, it has become useless to consider the contentions in the present case.

The demurrer to the answer is overruled.


author: Katzenbach, J.

text:
    E. J. LAVINO & COMPANY, PLAINTIFF, v. NATIONAL SURETY COMPANY, DEFENDANT.
    Decided May 7, 1928.

      For the motion, Carr & Carroll.

      Contra, William T. Read.

   The opinion of the court was delivered by

Katzenbach, J.

In the above case I allowed a rule to show cause why a judgment entered by default against the defendant should not be opened and the defendant be permitted to file an answer. Under this rule depositions have been taken. The suit was instituted by E. J. Lavino & Company, a corporation (hereinafter referred to as the plaintiff), against the Fational Surety Company (hereinafter referred to as the defendant), upon a bond given by the Fational Surety Company, as surety, to the county of Camden under chapter 75 of the laws of 1918. William M. King was the successful bidder for constructing walks, steps, drives and drainage appurtenances in connection therewith at the Camden County Tubercular Hospital located at Lakeland, in the township of Gloucester, in the county of Camden. King and the county of Camden entered into a contract for the performance by King of the work specified. The contract was dated December 11th, 1925. On the same day King, as principal, and the defendant, as surety, executed and delivered a bond to the county of Camden in the penal sum of $30,008.26. The condition of the obligation was that if King should well and faithfully perform his contract and pay all lawful claims of subcontractors, materialmen and laborers, for labor performed and materials furnished in the performance and completion of said contract, then the obligation was to be void.

Between April 17th, 1926, and June 9th, 1926, the plaintiff supplied material for this contract to the amount of $3,280.67. After King entered into the contract a corporation was formed by King, Harold P. Pox and Albert R. Mc-Feill, known as the Eox-King Construction Company. The purpose of the corporation was to engage in the construction business. The corporation was to obtain new work and also to take over certain contracts which King had entered into. One of these contracts was the contract with the county of Camden for the work at the tuberculosis hospital. The corporation was formed prior to the plaintiff’s furnishing any material for use at the tuberculosis hospital. It appears as if the material furnished by the plaintiff had been ordered by the Eox-King Construction Company. It was evidently considered, however, by the construction company inadvisable to assign this contract to the construction company. There appears in the minute book of the board of directors of the construction company, under date of March 4th, 1926, the minutes of a special meeting of the board of directors held on that day, in which a resolution reading as follows was adopted:

“It appearing that William M. King has contracts in his own name and now in the course of construction as follows:

Borough of Audobon .............. $4,033

City of Burlington................ 5,392

Blackwood, N. J................. 30,000

And that said contracts will be financed and completed by this company, and it is advisable to carry the same on in the name of William M. King, said William M. King offering to complete the contracts for the company in his name and to. turn over and pay to the company the proceeds therefrom.”

The Blackwood contract mentioned in the resolution was the contract with the county of Camden.

The work under the contract proceeded. The county of Camden as the work progressed paid to William M. King various sums of money. These checks were endorsed by King and then endorsed, “For deposit only — Eox-King Construction Company,” showing that the intention as expressed in the above resolution was being carried out. On June 9th, 1926, King received a check for $9,698.49, which he endorsed and collected. King did not turn over the proceeds of the check to the construction company. This produced financial trouble for the construction company. At first a receiver of the construction company was appointed. It was later adjudged a bankrupt and a trustee of its property was elected in bankruptcy proceedings. Immediately after the receipt by King of the money upon the check given on June 9th, 1926, there was served upon the clerk of the board of freeholders of the county of Camden a notice, dated June 17th, 1926, which recited that on the 4th day of March, 1926, King assigned and transferred to the Fox-King Construction Company the contract mentioned, and that all moneys due thereon and to become due thereon were to be paid to the Fox-King Construction Company and not to William M. King. Five days later another notice was served which recited that the contract stood in the name of William M. King, and that the notice of June 17th was withdrawn, canceled and rendered null and void and the county authorized to pay moneys due or to grow due on said contract to two trustees, lawyers representing the conflicting interests. These notices were served before the receiver was appointed and bankruptcy proceedings taken. No assignment of the contract has been produced or accounted for. The testimony is not clear as to whether an assignment was actually executed.

In order to open a judgment the defendant must show two things — surprise and merits. Schwenk v. DeMaio, 79 N. J. L. 189. In the present case the evidence of surprise is not clear and convincing. It appears that the attorneys of both parties met frequently at a club in Camden for luncheon and some banter took place between them about the case. I would, however, overlook the weakness of the testimony as to surprise if I considered that the defendant had shown that it had to the suit a meritorious defense. The bond sued upon, as has been stated, was given under chapter 75 of the laws of 1918. The act is entitled “An act to protect persons performing labor or furnishing materials for the construction, alteration or repair of public works.” It provides that it is the duty óf a municipality entering into a contract for municipal work not only to require the usual bond, but that there should be imposed by the bond the additional obligation to assure the payment by the contractor and by all subcontractors of moneys due for labor performed and materials furnished in the construction, erection, alteration or repair of such buildings, work or improvement. A right of action under the third section of the statute is given against the surety to airy person, firm or corporation to whom any money shall be due on account of having performed any labor or furnished any materials in the construction, erection, alteration or repair of any such building, work or improvement, upon furnishing to the surety on said bond within the time stipulated a statment of the amount due.

The bond itself states that it “shall be for the benefit of any materialman or laborer having a just claim.” No question has been raised that the plaintiff did not furnish the material for which it seeks payment. The defense sought to be interposed is that the defendant has been released because the contract was assigned by King to the Eox-King Construction Company, and it is claimed that the bond only protected materialmen and laborers so long as King was the contractor. It affords no protection after the contract was assigned by King. This proposed defense is highly technical. In the long list of authorities submitted by defendant’s counsel to show, that a surety is favored in the law, there is no case cited which has any similarity in facts to the present one. In fact, I do not see how any could be cited. The statute is designed for the benefit of those furnishing materials and labor for a public work. In the broadest language possible this intention is shown by the statute and by the language of the bond, of which the form is embodied in the statute. The question in this case seems to me to be whether the plaintiff actually furnished the materials it claims to have furnished for the work comprised in King’s contract. There has been no evidence submitted, as has been mentioned, which shows that the plaintiff did not furnish the materials. The surety was responsible. for the payment for these materials under its bond whether ordered by King or by the construction Company. If the construction company ordered the materials it was acting, it seems to me, under the resolution of March 4th, 1926, as the agent of King. But if the construction company furnished the materials and did the work called for by the contract in the role of an assignee, it would, in effect, be either the contractor or a' subcontractor, and the bond is for the protection of those furnishing materials to a subcontractor to the same extent as if the materials were furnished to the contractor. The defendant does not deny that the materials were furnished for the work at the tuberculosis hospital. Whether they were furnished to King through the agency of the construction company, or whether furnished to the construction company for work done by it, makes no difference. When a surety signs a bond containing the broad provisions of the bond sued upon, taken in connection with the provisions of the law, it is presumed to know the extent of its liability. The extent of the defendant’s liability in this case included payment to the plaintiff for the materials it furnished. I see no meritorious defense which can be interposed.

The rule to show cause will be discharged.


text:
    JOHN WRATCHFORD, PROSECUTOR, v. TOWNSHIP OF MILLBURN, GEORGE H. WILSON, JAMES PENOYER, WELLINGTON CAMPBELL, JOHN D. McCOLLUM AND PALMER BRADNER, RESPONDENTS.
    Submitted January 27, 1928
    Decided May 10, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Alfred A. Stein.

    For the respondents, Jerome T. Congleton.

   Per Curiam.

This is a writ of certiorari bringing up for reviéw a resolution passed by the township committee of the township of Millburn, after the trial and hearing of certain charges preferred against John Wratchford, a patrolman of the township of Millburn, dismissing him from his position as patrolman.

At the trial, had upon notice to the accused and in' his presence, the evidence reasonably tended to show (1) that the accused, on January 5th, 1923, was absent from his post of duty from ten-fifty p. m. to eleven forty-five p. m. ; (2) that the accused on January 31st, 1923, was absent from his post of duty from two-twenty A. m. and thereafter. These two offenses, among others, were charged against the accused and he was given due notice thereof.

With respect to the two charges mentioned, as we have indicated, the proofs were ample to justify the township committee in finding him guilty upon such charges. The testimony, which it would serve no useful purpose to detail in the absence of denial, clearly and satisfactorily supported the finding. It is noteworthy that the accused, although present and represented by counsel who participated in the trial, did not see fit to testify himself or to call any witnesses. The principle governing this phase of this case is that where the evidence on which the accused is found guilty furnishes a rational basis for the judgment this court will not interfere. Alcutt v. Board of Police Commissioners, 66 N. J. L. 173.

Counsel for the accused argues that the rules of the police department forbidding “gross neglect of duty” were not served upon him. Assuming, without deciding, that this was necessary upon a charge of this kind, it is sufficient to say that the evidence justified the inference that the rules were served upon him.

The resolution brought up for review will be affirmed, with costs.


text:
    GEORGE DETTLINGER, PROSECUTOR, v. TOWNSHIP OF OCEAN, A MUNICIPAL CORPORATION, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF OCEAN, THE BOARD OF HEALTH OF THE TOWNSHIP OF OCEAN, AND WILLIAM B. JEFFREY, CLERK OF THE TOWNSHIP OF OCEAN, DEFENDANTS.
    Submitted January 27, 1928
    Decided May 10, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Ward Kremer.

    For the defendants, Harry Truax.

   Per Curiam.

This matter conies up by writ of certiorari. The prosecutor of the writ seeks to set aside a resolution passed by the township of Ocean and by the board of health of such township January 1st, 1927, dividing the township into two plumbing inspection districts.

It appears that, in supposed compliance with an ordinance, the prosecutor was appointed plumbing inspector in the township in January, 1920, and served until January 1st, 1927, when the resolution under review was passed. The effect of the passage of that resolution was to give the prosecutor one of the created districts and one Walter Brown the other. The prosecutor seems to argue that the resolution should be set aside because it is depriving him of his salary as pluming inspector, and is in violation of chapter 212 (Pamph. L. 1911), which provides that no person holding a position or office under the government of any township, whose term of office is not now fixed by law and receiving a salary from such township, who is an exempt fireman, shall be removed from such position or office except for good cause shown after trial and hearing. If that be the contention of the prosecutor, we think the answer is that the prosecutor did not receive a salary. He merely received fees.

Again the prosecutor urges that the resolution is in violation of chapter 262 (Pamph. L. 1921), which provides that no sanitary inspector holding a license as provided for by the Board of Health act (Comp. Stat., p. 2656), after five consecutive years of service in the employ of any local board of health, shall be removed from office or reduced in pay or position except for just cause after a public hearing.

We think the answer to that is that this prosecutor did not hold such a license for five consecutive years prior to his so-called reduction by this resolution, and so is not entitled to the benefit of the act of 1921. That such is the proper construction of the act is evident when we consider that paragraph 60 of the Board of Health act (Comp. Stat., p. 2675) provides that no local board of health shall appoint any person as sanitary inspector who is not the holder of such a license.

The writ will be dismissed, with costs.


text:
    PHILIP F. HOLETON, PROSECUTOR, v. BOROUGH OF NEWFIELD, DEFENDANT.
    Argued May 1, 1928
    Decided May 14, 1928.

      Before Justices Minturn, Black and Campbell.
    For the prosecutor, Herbert C. Bartlett.

    For the defendant, Avis & Avis.

   Per Curiam.

The certiorari in this case was allowed to review an ordinance of the borough of Hewfield, in Gloucester county, dated September 19th, 1927, providing for the vacation of a portion of Helena street. The prosecutor writes down five reasons for setting aside the ordinance. First. Because Helena street has been a public street for over forty-five years, and the rights of the public acquired therein cannot be taken away by the ordinance. Second. The owners of the property on Helena street will be injured by the passage of the ordinance. Third. The ordinance takes public property and gives the same to private individuals. Fourth. The ordinance deprives the public of its rights in the street. Fifth. In other respects the ordinance is illegal and unjust.

The portion of Helena street vacated is between the right-of way of the West Jersey and Seashore Railroad Company and Church street, some nine hundred and ninety-five and seventy-two hundredths feet. The ordinance was passed in accordance with subdivision b, section 1, article 22, chapter 155. Pamph. L. 1925, pp. 392, 394.

Our reading of the record leads us to the conclusion that the Case is brought within the rule applied by this court in the ease of Kean v. City of Elizabeth, 54 N. J. L. 462. An extended discussion of the facts would serve no useful purpose. We can find nothing in the record that would justify the statement that the ordinance takes public property and gives the same to private individuals.

Our conclusion is that the ordinance is sustained as valid. The certiorari is dismissed, with costs.


text:
    LOUIS RUBENSTEIN AND ARTHUR RUBENSTEIN, PROSECUTORS, v. CITY OF BAYONNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND HUGH MONTAGUE & SON, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, RESPONDENTS. LOUIS RUBENSTEIN AND ARTHUR RUBENSTEIN, PROSECUTORS, v. CITY OF BAYONNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND JOSEPH W. BUCKLEY, RESPONDENTS.
    Decided May 8, 1928.
    Before Mr. Justice Minturn.
    For the prosecutors, Charles Rubenstein.

    For the respondents, James Benny.

   Per Curiam.

The application for writs of certiorari in these casos is denied.


text:
    REBECCA KOPLIN, RELATOR, v. VILLAGE OF SOUTH ORANGE AND EVERETT W. BIRD, BUILDING INSPECTOR OF THE VILLAGE OF SOUTH ORANGE, DEFENDANTS.
    Submitted June 3, 1927
    Decided May 14, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Feit & Feit (Louis J. Feit, of counsel).
    For the defendants, Riker & Riker (Thomas F. Fitzsimmons, of counsel).
   Per Curiam.

On November 9th, 1926, the relator applied to the building inspector of the village of South Orange for a permit for the erection of a nine-story apartment house for the accommodation of seventy-three families on property owned by her at the northwest corner of South Orange avenue and Stanley road in that village.

The building inspector refused such permit on the ground (which is true in point of fact) that the zoning ordinance of the village, passed March 20th, 1922, prohibited the erection of the type of building proposed on the land in question, in that it was to be an apartment house in a residential district and exceeded in height the limitation contained in the ordinance, and failed to comply with the set-back provisions of the ordinance.

On March 5th, 1927, the relator obtained this rule to show cause why a writ of mandamus should not issue commanding the building inspector and the village of South Orange to issue such permit.

We think that the writ must be denied.

The relator contends that the provisions of such ordinance prohibiting such building are not within the police powers of the state.

But, at a special election held on September 20th, 1927, there was submitted to the voters of this state a proposed amendment to the constitution of the state which provided as follows:

“The legislature may enact general laws under which municipalities, other than counties, may adopt zoning ordinances limiting and restricting to specified districts and regulating therein buildings and structures according to their construction, and the nature and extent of their use, and the exercise of such authority shall be deemed to be within the police power of the state. Such law shall be subject to repeal or alteration by the legislature.” See Pamph. L. 1927, p. 818.

That amendment was approved and ratified by the voters on September 20th, 1927, and took effect October 18th, 1927. See Fitzgerald’s Manual, 1928, p. 60.

On April 3d, 1928, pursuant to the power conferred by that amendment to the constitution, the legislature adopted chapter 274 of the laws of 1928 (which took effect immediately), and is entitled “An act to enable municipalities to adopt zoning ordinances limiting and restricting to specified districts and regulating therein buildings and structures, according to their construction, and the nature and extent of their use, and the repeal of sundry zoning laws.”

That act provides, among other things, as follows:

“General Purpose. Any municipality of this state may, by a zoning ordinance, limit and restrict to specified districts, and may regulate therein, buildings and structures according to their construction, and the nature and extent of their use, and the exercise of such authority, subject to the provisions herein contained, shall be deemed to be within the. police power of the state. The authority conferred by this act shall include the right to regulate and restrict the height, number of stories and sizes of buildings and other structures, the percentage of lot that may be occupied, the sizes of yards, courts and other open spaces, the density of population and the location and use and extent of use of building and structures for trade, industry, residence or other purposes.

“4. Districts. For any or all of said purposes the governing body or board of public works may divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings or other structures. All such regulations shall be uniform for each class or kind of buildings or other structures throughout each district, but the regulations in one district may differ from those in other districts.

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

“7. Existing Zoning Ordinances Saved. Wherever any municipality shall have adopted an ordinance or ordinances prior to the adoption of this act, for any of the purposes set forth in this act, such ordinance or ordinances shall continue in effect as if they had been adopted under the provisions of this act; and it shall not be necessary in such cases for the governing body or board of public works to appoint a zoning commission as provided by section six herein. All such ordinances shall remain in full force and effect, except in so far as they are inconsistent with the provisions of this act, until they shall have been amended or repealed by the governing body or board of public works.”

Of course we take judicial notice of that statute.'

We have made no reference to other provisions of the statute because, for present purposes, we do not deem it essential so to do. But we make pointed reference to the provisions contained in section 1 to the effect that ordinances adopted prior to the adoption of the act, for the purposes set forth in the act, shall continue in effect as if they had been adopted under the provisions of this act and shall remain in full force and effect, except in so far as they are inconsistent with the provisions of this act, until they shall have been amended or repealed.

The effect of that provision of the statute, adopted pursuant to the constitutional amendment, would seem to be that the provisions of the ordinance of the village of South Orange (now in question) as to zoning for residential purposes, and as to the height of buildings and set-backs, are deemed to be within the police powers of the state, if made with reasonable consideration “to the character of the district and its peculiar suitability for particular uses, with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality,” and not otherwise unreasonable.

In the present ease there is nothing to show (as we read the stipulation as to the facts) that such provisions were not so made, and there is nothing to show that they are unreasonable.

If it be suggested for any reason that section 7 of the Zoning act does not have the retroactive effect which we have indicated, nevertheless the result in this case, so far as this court is concerned, will be the same, because this court is bound to deny the permit sought upon principles declared in the Supreme Court in the case of Rohrs v. Zabriskie, 133 Atl. Rep. 65. In that case the relator applied to the superintendent of buildings of the village of Ridgewood for a permit to erect a five-story apartment house on the corner of Prospect street and West Spring avenue in that village. That application was refused upon the ground that the land was located in a zone in which the erection of such a building was prohibited by the zoning ordinance. Subsequent to this refusal the governing body of the village passed an amendment to its building code ordinance and thereby prohibited the erection of an apartment house of more than three stories unless it should be of fireproof construction. The questions before the court were, first, whether the last-named ordinance was a valid exercise of the police power, and see-only, if it was, then whether it was a bar to the relator’s alleged right to compel the issuing of a permit because passed subsequent to the application therefor.

The court determined that the ordinance was a valid and reasonable exercise of the police power; and as to the second question, the coiu-t said: “Assuming that the ground upon which the superintendent refused to issue the permit was unsubstantial, and that the action of the board of adjustment was not justified under the statute, will this court, when confronted with an ordinance passed in the valid exercise of power conferred upon the municipality, disregard its existence and direct a permit to be granted to this relator to erect a building of the character described in her application, although its erection will be a threat to the public safety, merely for the reason that such ordinance was not passed until after the conclusion of the hearing before the board of adjustment and its action thereon? We have no doubt but that this question should be answered in the negative. Admitting that the ordinance does not have a retroactive effect, so far as buildings in the course of erection are concerned, it is clearly applicable where the process of construction has not yet been begun. The power to issue a writ of mandamus is a discretionary one [Jones Co. v. Guttenberg, 48 Atl. Rep. 537; 66 N. J. L. 58; O’Hara v. National Biscuit Co., 54 Atl. Rep. 241; 69 N. J. L. 198], and it would be abuse of that power for this court to direct the municipality to grant a permit for the erection of a building the existence of which, if erected, has already been declared by legal authority to be a menace to the safety of the community.”

Accordingly, the court in that case denied the writ of mandamus.

We believe that the principle declared in that decision is conclusive of the present case in this court. It therefore follows that the writ applied for must be denied. For we believe it to be immaterial whether the changed conditions arise from an intervening valid municipal ordinance (as in that case) or from a statute enacted pursuant to an amendment of the constitution of the state, as in this case. Under the authority of the Zabriskie case the writ of mandamus being discretionary, there can be no vested rights that control the exercise of that discretion, unless a permit is issued and work actually commenced thereunder.

The result is that the rule to show cause in the present ease will be discharged and the writ of mandamus denied accordingly.

Having .reached the conclusion stated, we deem it highly important to all parties in interest to announce it promptly, and we do so in this somewhat informal manner in order to enable the relator to avail herself of the earliest possible opportunity for review if a review is desired. And if a review is desired, the relator is hereby given permission to enter a rule allowing and directing the molding of the pleadings so as to permit of such review.


text:
    PATRICK LONG, PROSECUTOR, v. BERT DALY, DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY OF THE CITY OF BAYONNE, ET AL., RESPONDENTS.
    Argued May 1, 1928
    Decided May 14, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Feinberg & Feinberg.

    For the respondents, James Benny.

   Per Curiam.

This writ brings up for review a judgment of dismissal of the prosecutor as a member of the police force of Bayonne.

There are several reasons advanced and argued why this judgment should be set aside.

1. Because there was no proof of a manual of rules which the prosecutor was charged with violating.

We think, however, that this is without substance and can be distinguished from Kelly v. Bishop, 119 Atl. Rep. 6, cited by prosecutor.

In that case the complaint was directly based upon violations of specific sections of the rules and regulations of the police department and the existence of such rules and regulations was not established.

In the present case the complaint is—

“To the Director of Public Safety:

I hereby charge Patrick Long with conduct unbecoming, an officer and gentleman and conduct subversive of good order and discipline.

SPECIFICATIONS.

In that the said patrolman, Patrick Long, on date of May 6th, 1927, at three-thirty a. m., did assault Harry Clancy,, a citizen of Bayonne, without just cause or provocation.

Being in violation of of the manual of rules and regulations of the police force of the city of Bayonne.”

Here a crime is charged, and while in the last paragraph of the complaint rules and regulations of the police force are referred to, the gravamen of the complaint is the assault charged. It will be noted that no specific rule and regulation is charged as having been violated as in Kelly v. Bishop, supra.

2. There was no proof of any properly signed complaint having been filed in the office of the municipal officer or board having charge of the department in which the alleged complaint arose, as required by statute.

We think the statute in this respect was complied with.

The complaint was read into the record of the case. The affidavit upon which it was based was not because of objection of counsel for prosecutor. 8. O., 11, 12. Complaint, charge and service thereof are shown in return to the writ, pages 3, 4 and 5.

3. The presentation of charges against prosecutor was improperly delayed for two months, and prosecutor was denied a reasonable opportunity to prepare a defense to the charges made against him.

We do not find any showing upon the part of the prosecutor that he was prejudiced in his cause or the defense he made against the charges.

4. There was no competent or creditable evidence upon which the prosecutor could be adjudged guilty; he was dismissed from the police force on charges which were false.

5. There was an unreasonable abuse of discretion exercised by the director of public safety in dismissing the prosecutor from the police department.

If the evidence before the trial body presents a rational, legal and substantial basis for the finding this court will not disturb such finding. Alcott v. Trenton, 66 N. J. L. 173; affirmed, 67 Id. 351; Ayers v. Newark, 49 Id. 170; Cavanagh v. Hoboken, 59 Id. 412; Reilly v. Jersey City, 64 Id. 508.

We find the proofs before the commissioner of public safety, who tried the cause to be of the character so called for, and for this reason his conclusion will not be disturbed.

6. The director of public safety had no jurisdiction to try the prosecutor for the offense in question, and hence the conviction and dismissal were unlawful.

The objection seems to have been that it must appear that the board of commissioners by resolution specifically placed the power to act in the commissioner of public safety, and that such action was not taken .nor had.

Prosecutor concedes that under Crane v. Jersey City, 90 N. J. L. 109, the director of public safety has the power, sitting alone, to try charges of this character where the board of commissioners have, by resolution, conferred upon him such judicial powers.

A copy of a resolution purporting to be of such character was offered in evidence and marked over objection of attorney for the prosecutor upon the ground that it was merely a copy and that proof should be made by the original records. A copy certified by the city clerk would have been competent.

We do not find this resolution sent up with the return to the writ, and, therefore, cannot determine whether it was so certified or not.

By depositions taken under the writ resolutions of this character were proved and admitted.

We think it entirely unimportant whether proper proof of such authority was made at the trial or not so long as it now is established that such authority existed in fact at the time of the trial.

7. The prosecutor is a world war veteran and did not receive the protection to which he was entitled under chapter 124, laws of 1919.

8. The director of public safety was prejudiced and biased and the prosecutor did not receive a fair and impartial trial.

We are unable to find anything of legal or factual substance in either of these reasons.

9. The conviction as shown by the return to the writ is irregular, improper and illegal.

We are likewise unable to find- anything substantial in this reason.

The writ will be dismissed.


text:
    BOARD OF TRUSTEES AND BOARD OF MANAGERS OF BLAIR ACADEMY AND BLAIR ACADEMY, PROSECUTORS, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANTS.
    Argued May 3, 1928
    Decided May 14, 1928.
    Before Justices Mintuen, Black and Campbell.
    For the prosecutors, Wayne Dumont and Jehiel G. Shipman.

    For the defendant Taxing District of the Township of Blairstown, Egbert Rosecrans.

    For the defendant State Board of Taxes and Assessment, Edward L. Katzenbach, attorney-general.
   Per Curiam.

The certiorari in this case was allowed to review an order or judgment of the state board of taxes and assessment, dated January 10th, 1928, reinstating a certain assessment made by the taxing district of the township of Blairstown, in the county of Warren, for the purpose of taxation for the year 1927, which order or judgment of the state board of taxes and assessment set aside and reversed the judgment of the Warren county board of taxation filed July 16th, 1927, canceling the said assessment. The ground or basis of the judgment of the state board of taxes and assessment was, there was “no proof produced before the board indicating that any of the parties claiming the exemption (i. e., for school purposes), and holding the legal or equitable title to the property in question, are incorporated or organized under the laws of New Jersey and authorized to carry out a purpose for which this exemption may be allowed,” as provided for in the General Tax act. Pamph. L. 1925, p. 537, § 203 (4). The property is owned as a subsidiary to the Presbytery of Newton, New Jersey, under three trust deeds, Exhibits P-1, P-2 and P-3. An academy, school or institution of learning is operated under these trust deeds under the control of the Presbytery.

It is entirely settled to claim exemption the facts must clearly bring the case within the terms of the statute. Nothing can be left to implication. A statute granting immunity from taxation must be strictly construed.

Our reading of the record satisfies us that the judgment of the state board under the facts as disclosed by the record was proper. The result is the judgment of the state board is affirmed and the certiorari is dismissed, with costs.


text:
    TRUSTEES OF THE PRESBYTERY OF NEWTON, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DEFENDANT.
    Argued May 3, 1928
    Decided May 14, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Francis Child and Jehiel G. Shipman.

    For the defendant Taxing District of the Township of Blairstown, Egbert Rosecrans.

    For the defendant State Board of Taxes and Assessment, Edward L. Katzenbach, attorney-general.
   Per Curiam.

This is a companion case to number 256 of the present May term of the court. The certiorari was allowed to review an order or judgment of the state hoard of taxes and assessment dated February 14th, 1928, denying the application of the prosecutor, trustees of the Presbytery of Newton, to be made a party to certain proceedings pending before the state board, i. e.j case number 256, as stated above. The application of the prosecutor was denied, on the ground, in substance, that the case had been heard, a conclusion reached and a judgment entered- restoring the assessment. The Presbytery failed to file an appeal with the county hoard, and now, when the case is closed, seeks to assert its claim.

Parties claiming exemption from taxation should act promptly in pursuit of whatever remedy the statute affords. It is no answer to say that someone else, not entitled to relief, was making the claim. To grant the motion would permit a new party to appear and file an appeal with the state hoard, not only out of time, but by a party not before the epunty board. It is too late to admit a new party to these proceedings.

With the conclusion reached and the reasons given by the state board of taxes and assessment we agree. The order, or judgment, of the state board of taxes and assessment is affirmed, with costs.


text:
    WALDWICK COAL AND LUMBER COMPANY, A CORPORATION, ET AL., PROSECUTORS, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF WALDWICK, AND GEORGE CHRISTMAN, Jr., RESPONDENTS.
    Submitted March 17, 1928
    Decided May 15, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, Maurice D. Emont (Paul Rittenberg, of counsel).
    For the respondents, Wright, Van Der Burgh & McCarthy.

   Per Curiam.

This writ of certiorari brings up for review an ordinance of the borough of Waldwick entitled “An ordinance providing for the vacating of a portion of Prospect street, in the borough of Waldwick, New Jersey.” The ordinance in question passed its first and second reading on March 3d, 1927, at which time a resolution was passed by the council of the borough directing that a notice of intention to consider the ordinance be published in accordance with the law, and that the final passage of the same be considered at a meeting to be held March 24th, 1927. On March 24th, 1927, after hearing certain objectors, a motion was made and carried that the hearing be closed. The record, however, further discloses that a further resolution was carried providing for further action on the ordinance on March 30th, 1927. However, the record discloses no meeting on March 30th, 1927, or any adjournment of the pending ordinance. The record further discloses that, nevertheless, the ordinance was considered on April 7th, 1927, and was passed at that time.

Although the ordinance appears to have been adopted on April 7th, 1927, it does not appear that it was ever presented to the mayor thereafter for approval. The record does disclose, however, that the ordinance in question was approved by the mayor on March 24th, 1927.

We think, therefore, we have before us for review an ordinance which was finally passed after it was approved by the mayor, and an ordinance which the record shows was not presented to the mayor for his approval after the final passage thereof.

Such an ordinance cannot stand, because not in conformity with section 27 of the Borough act (Pamph. L. 1897, p. 296), which provides:

“That every ordinance passed by the council * * * shall within five days after the passage thereof [Sundays excepted] be presented to the mayor, and the report of the clerk shall be conclusive evidence that such ordinance * * * has been so presented; if he approves it he shall, within five days [Sundays excepted] after its receipt by him, sign and file it with the borough clerk,” &c.

There is another difficulty with this ordinance as we read the record, and that is that it does not appear that the notice of intention to pass the ordinance was ever published as required by law.

The ordinance will be set aside, but without costs.


text:
    HAROLD L. DECKER, PROSECUTOR, v. AUGUSTUS C. NASH, RECORDER, ETC., ET AL., DEFENDANTS.
    Argued May 1, 1928
    Decided May 14, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Earl A. Merrill.

    For the defendants, Paul Q. Oliver.

   Per Curiam.

The writ of certiorari was allowed in this case to review the finding of a jury on January 20th, 1928, that the prosecutor, Harold L. Decker, was guilty, in that he did make or cause, suffer or permit, “alterations to be made” in a house known as No. 141 Harrison avenue, in the town of Westfield, without having first applied for and obtained a permit therefor from the inspector of buildings in violation of section 3 of article 11 of a general ordinance, number 65, of the town of Westfield.

The prosecutor files five reasons on which he relies for setting aside the conviction of the prosecutor.

We have examined the record with the reasons assigned for setting aside the conviction, together with the briefs of the parties filed with the oral argument. Our conclusion is, the reasons are without legal merit. They call for no extended discussion.

The reasons are — Eirst, the affidavit of Erank B. Moffett, on which the summons was based, is based upon hearsay. This does not seem to he so. Second, the complaint is in the disjunctive form. Third, the recorder refused to charge the meaning of the word “alteration.” Fourth, because the jury brought in a verdict of guilty. Fifth, because the recorder imposed sentence. This reason is not discussed in the brief.

The conviction of the prosecutor brought up by the writ of certiorari is affirmed and the writ dismissed, with costs.


text:
    THE STATE, EX REL. INTERSTATE LUNCH WAGONS, RELATOR, v. MAYOR AND COUNCIL OF THE BOROUGH OF DEMAREST AND GUSTAV MULLER, INSPECTOR OF BUILDINGS OF THE BOROUGH OF DEMAREST, RESPONDENTS.
    Submitted June 3, 1927
    Decided May 15, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Edward A. Kenney.

    For the respondents, Wright, Van Der Burgh & McCarthy.

   Per Curiam.

On February 5th, 1937, the relator applied'to the inspector of buildings of the borough of Demarest for a permit to build a lunch building or stand on property owned by it in that borough. The building inspector refused such permit on the ground (which is true in point of fact) that the zoning ordinance of the borough prohibited the erection of the type of building proposed on the land in question, in that the ordinance zoned the land in question for certain types and kinds of buildings within which was not comprehended a lunch building or stand.

On March 11th, 1927, the relator obtained this rule to show cause why a writ of mandamus should not issue commanding the inspector of buildings and the mayor and council of the borough of Demarest to issue such permit.

We think the writ must be denied.

We believe that the factual situation which the record discloses brings this case within our decision in Koplin v. Village of South Orange, 6 N. J. Mis. R. 489. Moreover, the -record shows that the plans and specifications did not comply with the building code.

The result is that the rule to show cause in the present case will be discharged, and the writ denied accordingly.

Having reached the conclusion stated, we deem it important to all interests concerned to announce it promptly, and we do so in this somewhat informal manner in order to enable the relator to avail itself of the earliest opportunity for review if review is desired. And if a review is desired, relator is hereby given permission to enter a rule allowing and directing the molding of the pleadings so as to permit of such review.


text:
    GEORGE F. FUTLON, RELATOR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY, FRANK HAGUE, MICHAEL I. FAGAN, WILLIAM B. QUINN, ARTHUR POTTERTON AND JOHN J. BEGGANS, BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, AND EDWARD SPOERER, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Submitted November 3, 1927
    Decided May 15, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, L. Edward Herman.

    For the respondents, Thomas J. Brogan and Charles Hershenstein.

   Per Curiam.

On May 16th, 1927, the relator (as stated in his brief) applied to the building inspector of the city of Jersey City for a permit for the erection of a two-story fireproof building, the first story to be used for five individual garages and the second story to be used as a paint and repair shop for automobiles, on property owned by him known as lot number 18 in city block 551, extending from Palisade avenue through to Hoboken avenue in Jersey City; and the testimony shows that the second story was to house a steam-heating plant designed for the heating of other buildings.

The locus in quo is zoned by ordinance of Jersey City for residential purposes, and the application being for non-residential purposes, the matter was referred to the board of commissioners, and that board, after a hearing, denied the permit on the ground that a fire hazard would be created thereby and that the building would be detrimental to the health, welfare and. public safety. Thereafter the relator obtained this rule to show cause why the board of commissioners and the superintendent of buildings should not be commanded to grant such permit.

We think that the writ must be denied.

The factual situation of the present case we think brings it within our decision in Koplin v. Village of South Orange, 6 N. J. Mis. R. 489. The result is that the rule to show cause in the present case will be discharged, and the writ denied accordingly.

Having reached the conclusion stated, we deem it important to all parties in interest to announce it promptly, and we do so in this somewhat informal manner in order to enable the relator to avail himself of the earliest possible opportunity for review, if a review is desired. And if a review is desired the relator is hereby given permission to enter a rule allowing and directing the molding of the pleadings so as to permit of such review.


text:
    LOUIS SOSNOW AND HYMAN ADELMAN, RELATORS, v. ALBERT E. PANCOAST, BUILDING INSPECTOR OF THE TOWNSHIP OF MAPLEWOOD, AND THE TOWNSHIP COMMITTEE OF THE TOWN OF MAPLEWOOD, RESPONDENTS.
    Submitted June 3, 1927
    Decided May 15, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relators, Merritt Lane.

    For the respondents, Samuel D. Williams and J. Harry Henegan.

   Per Curiam.

The relators applied to the building inspector of the township of Maplewood for a permit for the erection of stores upon a property owned by them which is a triangular piece of ground formed by the intersection of Revere avenue and Concord avenue in the township of Maplewood. The building inspector refused to grant the permit upon the ground (which is true in point of fact) that the erection of stores upon the property of the relators would be in violation of the zoning ordinance of the township which zoned the property in question of the relators as a single family residence district.

On January 22d, 1927, the relators obtained this rule to show cause why a writ of mandamus should not issue commanding the building inspector and the township committee of the township of Maplewood to issue such permit.

We think that the writ must be denied.

We believe that the factual situation which the record discloses brings this ease within our decision in Koplin v. Village of South Orange, 6 N. J. Mis. R. 489.

The result is that the rule to show cause in the present case will be discharged and the writ denied accordingly.

Having reached the conclusion stated, we deem it important to all parties in interest to announce it promptly, and we do so in this somewhat informal manner in order to enable the relators to avail themselves of the earliest possible opportunity for a review, if a review is desired. And if a review is desired, relators are hereby given permission to enter a rule allowing and directing the molding of the pleadings so as to permit of such review.


text:
    FRANK L. D’ELIA, RELATOR, v. FRANK HAGUE, JOHN SAUL, JOHN BEGGANS, MICHAEL I. FAGAN AND WILLIAM B. QUINN, BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, AND JOHN SAUL, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Submitted June 3, 1927
    Decided May 15, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Maurice J. Cronin (Joseph W. Henry, of counsel).
    For the respondents, Thomas J. Brogan and Charles Hershenstein.

   Per Curiam.

On July 20th, 1926, the relator applied to the building department of the city of Jersey City for a permit for the erection of a one-story brick public garage upon the premises known as lots numbers 3, 4, 5, 6, 7 and 8, city block 1841, county block 768, in the city of Jersey City, and further known as Nos. 247 to 257 Sip avenue, Jersey City. The building department refused to issue such permit, and the matter was thereupon brought before the board of commissioners of Jersey City. The commissioners denied such application upon the grounds (1) that it would endanger the health and safety of the residents of the neighborhood; (2) would be a fire hazard, and would depreciate the value of residential property in the iipmediate vicinity.

On January 8th, 1927, the relator obtained this rule to show cause why a writ of mandamus should not issue commanding the building department and the board of commissioners of Jersey City to issue such permit.

We think that the writ must be denied.

It is stipulated that the land upon which this garage was sought to be erected was zoned by ordinance of Jersey City as a residential district.

We are therefore constrained to think that this case falls within our decision in Koplin v. Village of South Orange, 6 N. J. Mis. R. 489.

The result is that the rule to show cause in the present case will be discharged and the writ of mandamus denied accordingly.

Having reached the conclusion stated, we deem it important to all parties in interest to announce it promptly, and we do so in this somewhat informal manner in order to enable the relator to avail himself of the earliest possible opportunity for review, if a review is desired. And if a review is desired, the relator is hereby given permission to enter a rule allowing and directing the molding of the pleadings so as to permit of such review.


text:
    HAROLD L. DECKER, RELATOR, v. FRANK B. MOFFETT, BUILDING INSPECTOR OF THE TOWN OF WESTFIELD, AND THE TOWN OF WESTFIELD, NEW JERSEY, DEFENDANTS.
    Submitted February 16, 1928
    Decided May 16, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Earl A. Merrill.

    For the defendants, Paul Q. Oliver.

   Per Curiam.

On September 23d, 1927, the relator obtained from the building inspector of the town of Westfield a permit to build an addition to the dwelling house No. 552 Boulevard owned by him in that town. Thereupon he proceeded to build the addition otherwise than in accordance with the plans and specifications for which the permit had been issued, and to make alterations in the main building without having first obtained a permit for that work. For this offense against the building code of the town he was tried before the recorder and convicted and fined, and paid the fine.

The building code of the town of Westfield provides that upon conviction of a violation thereof “the permit shall stand revoked until such time as the ordinance is complied with.” In this situation the relator, without removing the violations, on December 14th, 19.27, applied orally apparently for a new permit showing certain plans and specifications. Section 5 of the building code provides that every application for a permit must be in writing and prescribed what must be set forth, and that the application must be verified by the affidavit of the person making the same. Therefore, when the relator asked for this second permit, the building inspector denied the same, and he was justified in that course for three reasons — first, because the application for the new permit was not in writing, signed and verified as required by the ordinance; secondly, because the violations had not been removed as required by the ordinance before a new permit can be granted, and thirdly, because there is no satisfactory proof in the record that the plans and specifications for which the permit was sought are in compliance with the building code. Moreover, the evidence indicated that it was the intention of the relator to make the building into a two-family house, in such fashion as to conflict with the ordinance of the town of Westfield zoning the land in question to one-family dwellings as therein defined. In the latter posture of the case, in view of the fact that the town of Westfield has a board of adjustment, the proper remedy of the relator, if any he has, is by appeal to the board of adjustment. Chancellor Development Co. v. Senior, 4 N. J. Mis. R. 633.

Our conclusion is that the writ of mandamus cannot be awarded and the rule is accordingly discharged, with permission to the relator, if he desires to review this action, to enter a rule, allowing and directing the molding of the pleadings so as to permit of such review.


text:
    ROCCO BELLOFATTO AND MICHAEL DE PONTE, PROSECUTORS, v. BOARD OF ADJUSTMENT OF THE TOWN OF MONTCLAIR AND THE TOWN OF MONTCLAIR, A MUNICIPAL CORPORATION OF THE COUNTY OF ESSEX, DEFENDANTS.
    Submitted February 16, 1928
    Decided May 16, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, Thomas Brunetto.

    For the defendants, George S. Harris.

   Per Curiam.

On June. 6th, 1927, the prosecutors applied to the acting inspector of buildings of the town of Montclair for a permit to erect a one-story hollow tile building fifteen by twenty feet, sixteen feet high, to be used as a gasoline service station, on property owned by them in that town at the southwest corner of Valley road and Jerome Place.

That application was refused on the ground (which was true in point of fact) that the zoning ordinance of the town prohibited such a service station in the zone in which the property in question was located, except as the same might be excepted by special exception by the board of adjustment.

The prosecutors thereupon, on the same day, took an appeal to the board of adjustment, and that board, on June 16th, 1927 refused to make an exception in favor of the prosecutors and affirmed the decision of the acting inspector of buildings.

Thereupon, on June 25th, 1927, the prosecutors obtained this writ to review the “decision” of the board.

We think the decision of the board cannot be disturbed.

The powers of the board of adjustment were defined by chapter 146 (Pamph. L. 1924, p. 324), and chapter 315. Pamph. L. 1926, p. 526. Thereunder the board had power, among other things, to make special exceptions to, and in specific cases make such variance from, the terms of the ordinance as would not be contrary to public interest, where, owing to special conditions, a literal enforcement would result in unnecessary hardship, and so that the spirit of the ordinance should be observed and substantial justice done; and further, to determine whether the ordinance, so far as it affected the use of the property in question, tended to promote the public morals, health, safety or welfare, and if it did not in such instance, might modify or vary any requirement thereof. The board was also given power to administer oaths and compel attendance of witnesses.

Such board, when it acts, acts judicially on a lawful ascertainment of facts. Bilt-Wel Co. v. Dowling, 5 N. J. Mis. R. 180.

The presumption is that the requirements and regulations of the ordinance are reasonable unless the contrary is shown (Burg v. Ackerman, 5 N. J. Mis. R. 96), and there is a further presumption that the action of the board was right. Silvester v. Princeton, 5 N. J. Adv. R. 1801. It follows, therefore, that the action of the board in refusing to vary or modify the terms of the ordinance will not be disturbed unless its action is shown by lawful evidence to be wrong. Oxford Construction Co. v. Orange, Ibid. 729.

In the present case the board determined “that the variance requested by the appellants from the terms of the ordinance would, in this case, be contrary to public interest, in that it would tend to further congest traffic at an already dangerous corner and would constitute a fire menace to surrounding residential property, while a literal enforcement of the provisions of said ordinance will not result in unnecessary hardship, as the said premises are available for many other classes of buildings. That the ordinance, so far as it affects the erection of the proposed building on said premises, does tend to promote the public morals, health, safety and welfare.”

Now, we find nothing in the record before us to justify us in disturbing that determination. So far as the record shows, the prosecutors offered no evidence whatsoever having a tendency to show that the finding of the board of adjustment was wrong; and neither does anything in the stipulation as to facts overcome the presumption that the board’s action was right.

The writ will be dismissed, but without costs.


text:
    IN RE APPLICATION OF DANIEL A. GOTTHOLD FOR PERMISSION TO TAKE THE BAR EXAMINATION.
    Decided May 16, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the petitioner, Thomas J. Hamm.

   Per Curiam.

Rule 2 of state board of bar examiners provides that “the certificates and other evidences of preliminary education mentioned in Supreme Court rule 4 (d) must be submitted to, and approved by, the state commissioner of education, before being filed.”

The petitioner says that he accordingly submitted the required certificates and other evidence.

The commissioner declined to approve same because they were insufficient in his opinion.

The petitioner, thinking that such refusal was erroneous, appealed to the board of bar examiners, and that board decided against him. He now contends before this court that both decisions were erroneous, but we do not think that is so.

The averments in the petition'do not show a compliance with rule 4 (d). The board of bar examiners properly pointed out that the facts said to show graduation from a college or university are insufficient for the purpose. The petitioner, however, contends that he is relieved from a compliance with rule 4 (d) by virtue of rule 5 (b), which provides that “when such attorney has been actively engaged in the pactice of law in such other state for a period of not less than ten years, a compliance with paragraph d of rule 4 shall not be required of him.”

But a sufficient answer to such contention is that accepting the averments of the petition as true, they do not show that the petitioner “has been actively engaged in the practice of law” in another state for such period of ten years.

The result is that the petition must be denied.


text:
    IKE GERSHONOWITZ AND PHILIP GERSHONOWITZ, RELATORS, v. THE MAYOR AND ALDERMEN OF JERSEY CITY, FRANK HAGUE, ARTHUR POTTERTON, J. BEGGANS, MICHAEL I. FAGAN AND WILLIAM B. QUINN, BOARD OF COMMISSIONERS OF JERSEY CITY, AND EDWARD J. SPOERER, SUPERINTENDENT OF BUILDINGS OF JERSEY CITY, RESPONDENTS.
    Submitted November 3, 1927
    Decided May 16, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the relators, Gross & Gross (Isaac Gross, of counsel).
    For the respondents, Thomas J. Brogan and Charles Hershenstein.

   Per Curiam.

On June 21st, 1927, the relators applied to the superintendent of buildings of Jersey City for a permit for the erection of a building containing five stores on the ground floor thereof and six apartments above the same, on land owned by the relators and known as lots lettered G, H, J, K, L, M, N and 0 in city block 1278% in Jersey City.

The superintendent of buildings refused to grant relators such building permit, but referred the application to the board of commissioners of the city of Jersey City. The city commissioners, so far as the record discloses, did not approve of the application as relators contend that they did. On the contrary, the record shows that such application was not accompanied by any plans or supecifications, and that later, on July 19th, 1927, plans and specifications were filed with the superintendent of buildings, together with a written application for a permit. This application was referred to the board of commissioners as required by the fire hazard ordinance, the building in question being for non-residential purposes. The commissioners considered this application from week to week until August 23d, 1927, when they deferred the matter and have not since acted upon it. No doubt such action, or failure to act, is tantamount to a refusal of the application.

On September 20th, 1927, the relators obtained this rule to show cause why the superintendent of buildings and the mayor and aldermen of Jersey City should not be required by mandamus to grant the permit.

We think that the writ must be denied.

It is stipulated that the land in question "is zoned in accordance with.the ordinance of Jersey City for residential purposes.” See Record, p. 23.

The factual situation as disclosed by the record brings this case, we believe, within our decision in Koplin v. Village of South Orange, 6 N. J. Mis. R. 489. The result is that the rule to show cause in the present case will be discharged and the writ of mandamus denied accordingly.

Having reached the conclusion stated, we deem it important to all the parties in interest to announce it promptly, and we do so in this somewhat informal manner in order to enable the relators to avail themselves of the earliest possible opportunity for review, if a review is desired. And if a review is desired, relators are hereby given permission to enter a rule allowing and directing the molding of the pleadings so as to permit of such review.