text:
    SOUTHERN POWER COMPANY AND DUKE POWER COMPANY, PROSECUTORS, v. CARLO D. CELLA AND CIRCUIT COURT IN AND FOR COUNTY OF ESSEX, RESPONDENTS.
    Argued October term, 1928
    Decided December 7, 1928.
    Before Justices Minturn, Black and Campbell.
    Eor the prosecutors, John Milton.

      In Propria Persona, Carlo I). Celia.

   Per Curiam.

The legal question presented in this ease is before us on a writ of certiorari which is intended to review an order of the Essex County Circuit Court, appointing appraisers to determine the market value of fourteen shares of stock issued by the Southern Power Company, and held by the respondent Carlo D. Celia at the time of the merger of the said corporation with the Duke Power Company.

The agreement of merger was filed in the office of the secretary of state December 3d, 1927. On December 29th, 1927, a petition, in which the Southern Power Company was named 'as defendant, was filed for the appointment of appraisers under sections 108 and 108a of the General Corporation act. The court on the same day fixed January 14th, 1928, as the day of hearing on the said petition and directed that a copy of the order, together with the petition, be served on the Southern Power Company on or before January 4th, 1928. On January 3d, 1928, the court allowed an amendment to the petition, naming the Duke Power Company as defendant, and praying that an order be made prescribing notice of hearing to be given to the said corporation. The court ordered that at least six days’ notice of hearing on January 14th, 1928, be given to the Duke Power Company. A notice of hearing was served on the Southern Power Company on December 29th, 1927, and on the Duke Power Company January 4th, 1928.

On January 14th, 1928, after hearing, the court made an order appointing the appraisers. The first reason assigned against this action is that the Southern Power Company was neither a proper nor necessary party to the proceedings. The application for the appointment of appraisers was made on December 29th, 1928, within the time prescribed by the statute. The petitioner then acquired a status in court that entitled him to pray for and recover whatever was connected with and become a necessary incident of the relief afforded by the statute. The amended petition set up no new and distinct cause for relief, and the mere unnecessary description of the Southern Power Company as defendant in nowise prejudiced the Duke Power Company.

The next reason assigned is that the application for appointment of appraisers was not made in the manner provided by the statute, in that the petition failed to allege that neither of the merging corporations had a right to- exercise any franchise for public use, or that the petitioner attended the stockholders' meeting, and did not vote in favor of the merger, and made no mention of the location of the chief office of the corporation.

The statute provides an informal proceeding in matters of this character, which does not require an adherence to the strict rules of pleading. If the petitioner by not attending the stockholders' meeting and voting in favor of the merger estopped himself from asserting, or waived, any right to the relief afforded by the statute, such fact could have been advanced at the hearing as a reason for not appointing the appraisers.

The next reason assigned is that the notice given was not within the time prescribed by the provisions of the statute. The pertinent language of the statute upon this subject (section 108a) is as follows: “Such dissenting stockholder * * * may at any time within thirty days after the adoption and filing of the agreement of consolidation apply by petition to the Circuit Court, on reasonable notice, to be prescribed by said .court, to said consolidated corporation, for the appointment of three disinterested appraisers to appraise the full market value of his stock.”

The prosecutor contends that this section requires that the petition must be filed, the notice of hearing given, and the hearing had all within thirty daj^s of the filing of the merger agreement. With this construction of the act we do not agree, but apprehend that the reasonable and proper construction of the statute is that the petition be filed within the thirty days, whereupon the court will fix a time and place for the hearing and prescribe the notice to be given to the consolidated corporation.

In construing a somewhat analogous section of the Traction act in the case of New Jersey and Hudson River Railway Co. v. American Electrical Works, 82 N. J. L. 391, Chancellor Pitney held that “the section contemplates a simple procedure, beginning with a mere petition followed by reasonable notice to the company and without elaborate refinements of any kind. The section ought, to be liberally construed in aid of the proposed remedy, and the procedure under it ought not to be hampered by the imposition of technical conditions that are not expressed in its language.”

Our construction of the act in question leads us to the same conclusion. For that reason we think the action of the Circuit Court should be affirmed, and the writ of certiorari is therefore dismissed.


source: Caselaw Access Project

author: Katzenbacji, J.

license: Public Domain

text:
    J. WARNER DUNPHEY, PLAINTIFF, v. JOSEPH L. WEINER, INDIVIDUALLY AND TRADING AS GARDEN STATE OIL COMPANY, DEFENDANT.
    Decided December 13, 1928.
    For the motion, Jacob L. Furer.

      Contra, Riggins & Davis.

   The opinion of the court was delivered by

Katzenbacji, J.

The plaintiff instituted a suit against Joseph L. Weiner, individually and trading as Garden State Oil Company, to recover upon a hook account. An answer was filed. The answer denied the indebtedness and that the same was due, and set up as a separate defense that any work done by the plaintiff for the defendant was done pursuant to contract. The plaintiff filed a reply. The plaintiff subsequently moved to strike out the answer as sham or frivolous. The motion was set down for September 11th, 1928. On that day it was postponed. Later in October the plaintiff was ready to argue the motion but counsel for the defendant were not present.

I am satisfied from the affidavits submitted by the plaintiff that there is no defense to this action. This is strengthened by the fact that no affidavits for the defendant have been filed notwithstanding the time given for that purpose. The difficulty which I have in following my inclination is due to an opinion in the case of Great American Indemnity Co. v. Gronowicz et al., 6 N. J. Mis. R. 821. In this case it is pointed out that where the plaintiff has elected to reply, he cannot thereafter make a motion to strike out the defense. I am, therefore, obliged to deny the motion.


author: Per Curiam.

text:
    CYRIL J. MOGAB, PLAINTIFF-APPELLEE, v. ANTRIM MOTOR COMPANY AND ATLANTIC MOTOR FINANCE COMPANY, BOTH CORPORATIONS OF THE STATE OF NEW JERSEY (JOINTLY, SEVERALLY AND IN THE ALTERNATIVE), DEFENDANTS-APPELLANTS.
    Argued May 1, 1928
    Decided December 7, 1928.
    Before Justices Teenciiard, .Kaltscii and Lloyd.
    For the appellants, Thompson & Hanstein.

    For the appellee, George T. Naame and Paul M. Salzburg.

   Per Curiam.

This is an appeal from a judgment of the Atlantic City District Court entered by the trial judge, sitting without a jury, in favor of the plaintiff against the Antrim Motor Company and the Atlantic Motor Finance Company, for damages for fraud and misrepresentation made in the sale of an automobile. The defendants appeal.

At the trial the facts as found by the judge, upon ample evidence, established the following matters:

The Antrim Motor Company, being the owner of the automobile in question, invited the plaintiff to the second floor of its place of business to examine such automobile, the plaintiff having first been interested in one on the first floor of the Antrim company’s building. The machine on the first floor pleased the plaintiff and he was ready to purchase the same when the company’s salesman told him that that particular machine was sold, but that there was one on the second floor which was better and could be sold to him at even a better price. It was represented to him also that this price was below the standard sales price and that the model on the second floor was the same as that on the first floor, namely, 1925. The plaintiff then agreed to purchase the automobile on the second floor on installments. In order to do so the other defendant the Atlantic Motor Einance Company became a party as vendor, under a conditional sales agreement. In this agreement it was also represented that the model of the car was ' 1925 and its serial number also was changed to meet the condition of a 1925 model. Plaintiff took the car and retained it in his possession, making a number of payments under the conditional sales agreement, when the plaintiff’s brother, an automobile salesman, examined the car and found the markings of the serial number and model at variance with those set forth in the bill of sale. It was also found that the car was of the year 1924 and of less value than a 1925 car. When this was discovered plaintiff refused to make further payments and demanded an allowance for -the difference between the value of the two cars. This defendants refused to do, and the Atlantic Motor Einance Company took possession of the car. This suit resulted after such loss of the car by the plaintiff.

The grounds urged for reversal are that the judge erred in refusing a nonsuit or directing a verdict for the defendants; that interest was included in the judgment; that the complaint fails to set up a cause of action against either company; that there was no evidence of fraud on the part of either company; that no joint judgment would lie against the defendants.

In our judgment there is no merit in any of these grounds of appeal. We think there was ample evidence of fraud on the part of both the motor company and the finance company; the first acting through its agents, misrepresented the model and value of the car actually being sold, and this misrepresentation was adopted by the finance company when it falsely inserted the stipulation in the contract as to serial number and model. Therefore, we think that neither the motions for nonsuit or direction could have been granted. Eor the same reason we think it is not tenable that the complaint is insufficient.

As to the point that interest was included, it is sufficient to say that this does not appear in the record of the judgment as returned to us. And in view of this fact we are not disposed to consider what is the effect of the- stipulation of counsel as to the action of the clerk in entering the judgment.

Nor do we think there is aim merit in the final point that there was no concert of action between the parties defendant. It seems to us that a jury, and consequently the judge sitting as such, was entitled to find that the parties defendant were actuated by the common purpose to unload this inferior car on the plaintiff at a superior price, and as part and parcel of this scheme the one conceived the misrepresentation and made it, and the other adopted and ratified it.

The judgment is affirmed, with costs.


author: Pee Curiam.

text:
    THE TOWNSHIP OF MORRIS, IN THE COUNTY OF MORRIS, STATE OF NEW JERSEY, PLAINTIFF, v. JOSEPH HARRIS & SONS, INCORPORATED, DEFENDANT.
    Decided December 14, 1928.

      Before Justices Treiíchard, Kalisch and Lloid.
    For the rule, Frank 0. Turner.

      Contra, John M. Mills.

   Pee Curiam.

A verdict was rendered in the Morris County Circuit Court in favor of the plaintiff, and against the defendant, for the sum of $1,998 as damages sustained by the plaintiff's automobile, which was used for fire purposes.

The first point argued in brief of counsel of defendant is that the verdict is excessive. We do not think it is. There was proof that the market value of the chassis was $300. The Hale pump cost $1,500. It cost $300 for'mounting the pump on the chassis. The automobile also contained chemical tanks, ladders, fire extinguishers and hose carriage, &c.

There was proof that the fire apparatus at the time of the accident was in first-class condition—as good as new, including the paint. There was also proof that as a result of the accident the apparatus was considerably damaged. The chassis which cost $300 was sold for $100. The Hale pump was so damaged as to become valueless. The ladders, fire extinguishers, lanterns and other equipments were broken. The pump alone cost $1,500 and was an entire loss, besides, it cost $300 for mounting it on the chassis.

Next, it is argued that the verdict is against the weight of the evidence. There is no merit in this contention. There was testimony tending to show that the driver, who was operating a Reo speedwagon, with pneumatic tires, with a two-wheel trailer behind, on a clear day, with both windows opened, the truck being empty, and with an unobstructed view, and who, if he had been exercising due care, should have seen and heard the fire apparatus coming down the road, with the siren and bell ringing, and as he was only driving the truck at a speed of six or eight miles an hour, could have stopped within five feet. There is testimony tending to show that he simply slowed down and deliberately drove out into the middle of the roadway with the twelve-foot trailer in the rear, in front of the plaintiff’s fire apparatus.

The third point made is the court erroneously charged the jury as follows: “Of course, there is also this, that if in exercising his judgment at the moment he erred and made a mistake * * * and if that situation so called upon him to exercise that judgment, there would be no negligence on his part.”

This quoted extract from the judge’s charge is garbled. What the trial judge said on the subject was this: “I have been requested to charge by counsel of defense in this case that if the driver of the fire apparatus chose, as the term is, the lesser of two evils, and thereby the collision in question was occasioned solely by reason thereof, then there can be no recovery as against the defendant. Of course, there is also this, that if in exercising his judgment at the moment he erred and made a mistake, I am obliged to say to you that you could not hold him therefor for contributory negligence, and if that situation so called upon him to exercise that judgment, there would be no negligence on his part; in other words, if he found himself in that situation while driving that truck as the result of negligence of defendant’s driver, bearing in mind what I have said to you about contributory negligence there could be no recovery.”

Thus, it is to be observed that the failure of counsel to fully quote what the trial judge said pertaining to counsel’s request to charge and simply quoting the portion of the charge which the latter characterizes as erroneous and prejudicial to the defendant, lends an erroneous impression as to the accuracy of the legal principle, enunciated by the trial judge on the facts of the case, and tends to be misleading.

The legal rule stated by the trial judge was properly applicable to the facts developed by the testimony in the cause.

The fourth and fifth points argued in brief of defendant’s counsel are—first, that the trial judge “erroneously refused to direct a verdict in favor of the defendant;” and second, “the verdict is contrary to the charge of the court.”

We regard both points as being utterly destitute of merit.

The rule is discharged, with costs.


author: Pek Cukiam.

text:
    JOSEPH R. HOLZMAN, PLAINTIFF-RESPONDENT, v. FRED W. YUENGLING, DEFENDANT-APPELLANT.
    Decided December 14, 1928.
    Before Justices Tkenci-iakd, Kalisch and Lloyd.
    For the appellant, William TyacJce.

    For the respondent, Meyers & Lesser.

   Pek Cukiam.

There was a directed verdict in the Essex County'Circuit Court in favor of the plaintiff below and against the defendant below. The action was brought on a bond in the penal sum of $5,000, and which bond was given in connection with a mortgage of $2,500, to recover a deficiency remaining due on the bond after the sale of the premises upon which the said mortgage rested.

The facts of the case are briefly these: A prior mortgage was foreclosed and the plaintiff was made a party defendant. A final decree was entered, followed by execution and sale of the premises thereunder, by the sheriff of Essex county, on January 11th, 1927, to the Myles Realty Company. The property was bid ill at a price sufficient to cover the first mortgage, and this left a deficiency of the entire amount due plaintiff on his junior bond and mortgage. On March 30th, 1927, the plaintiff brought his action in the Essex County Circuit Court upon his bond, but did not, prior to commencing said action, file any notice in the office of the register of Essex county of the proposed action or of an action pending. The case came on for trial, and it appearing that no such notice of the commencement of plaintiff’s action was filed by him, either prior to or afterwards, counsel of defendant, after plaintiff had rested his case, moved for a nonsuit on the ground that there was no evidence that the plaintiff had filed the required notice in the register’s office of the county of Essex, prior to the commencement of his action. The motion was also denied.

At the conclusion of the entire case, attorney for defendant moved for a direction of a verdict on the same ground upon which his motion for nonsuit was based, and this motion was denied.

It is the overruling of these motions which constitutes the two grounds of appeal. They may be considered together. The question, growing out of the facts as detailed, is whether a statutory notice, such as is required by the act of 1907, page 563 (3 Comp. Siai., p. 3423), applies to a bond secured by a junior mortgage, where the mortgaged premises have been sold under foreclosure of a prior mortgage.

We do not think that this can be any longer an open question, since the decision of Schmidt v. Frey (Court of Errors and Appeals), 86 N. J. L. 215, where, under circumstances analogous to those present in the case sub judice, it was held that the provision of the statute relating to notice before commencing an action was not applicable. The cited ease is controlling here.

The judgment is affirmed, with costs.


author: Pee Cueiam.

text:
    JOSEPH G. PICO, PROSECUTOR, v. THE BOROUGH OF NORTH ARLINGTON, IN THE COUNTY OF BERGEN; ARTHUR G. FLEISCHER AND DAVID K. HAMMELL, COMMISSIONERS OF ASSESSMENT OF THE BOROUGH OF NORTH ARLINGTON, DEFENDANTS.
    Argued October term, 1928
    Decided December 20, 1928.
    Before Justices Mintuen, Black and Campbell.
    For the prosecutor, William.Simon (Spaulding Frazer, of counsel).
    For the defendants, Charles J. McCarthy.

   Pee Cueiam.

This is an application upon a rule to show cause for a writ of certiorari to review an ordinance adopted by the borough of North Arlington, in the county of Bergen, on May 13th, 1925, entitled “An ordinance to establish the legal grade of, and to grade and construct a six-inch reinforced concrete pavement, a bluestone curb and a five-foot concrete-sidewalk in Hedden Terrace from Ridge road to River road, in Prospect avenue, Eainnount avenue, William street, River-view avenue and Bathhurst avenue between the northerly and southerly line of the property of Hedden Building Company, in the borough of North Arlington.”

Section 3 of the ordinance provides that “the said grading, curb and sidewalk shall be constructed and laid at the expense of the owner, or owners, of the land in front of which the said grading, curb and sidewalk shall be so established, made, constructed and laid. The portion of the said grade and sidewalk that lies in the angles of the intersection of streets shall be laid and constructed at the expense of the owner, or owners, of the adjoining lands.”

After due advertisement for bids a contract for the work was awarded by the borough on June 1st, 1925. On April 4th, 1927, a statement of the cost of the improvements was referred to the local assessment commissioners in order to estimate and assess the benefits conferred on the adjoining lands. The assessment commissioners held a public hearing on May 17th, 1927, and filed their report on June 14th, 1927.

At the time of the passage of the ordinance, the entire tract of land benefitted was owned by the Pledden Building Company, which company petitioned for the improvement, and Thereafter notice of the proposed sidewalk improvement was mailed to that company.

The petitioner procured title to his lot by deed dated April 22d, 1926. The depositions taken under the rule show that printed notice of the public hearing by the assessment commissioners concerning the assessment, the cost of grading, and the laying of the curb, pavement and sidewalk was mailed to him, and that the hearing was duly advertised in the public press. The record shows that no objection to these proceedings was made at the public hearing before the commissioners, nor did the petitioner appeal to the Circuit Court for the purpose of presenting his objections in accordance with the provisions of the statutes governing that subject, but that on November 17th, 1927, more than five months after the confirmation of the assessment report of the commissioners, the petitioner applied for a writ of certiorari to review the proceeding.

We do not think it necessary, under the circumstances, to deal with the technical legal accuracy of the procedure of the prosecutor as argued in the briefs, because we think he is clearly debarred by his laches from contesting the proceedings at this date. The rule of law upon this subject is well settled by repeated adjudications of this court and the Court of Errors and Appeals.

In the case of McKevitt v. Hoboken, 45 N. J. L. 483, it was laid down: “A person whose rights were affected by the act of the common council under this provision could not remain quiescent until a large sum of money had been expended by color of it, and then invoke the aid of the law to throw the burden upon the entire community. The law required diligence, and a party who stands by and sees a work of this character in the course of construction, attended by the incurrence of indebtedness or the expenditure of money, waives his right to take those objections which, if properly interposed, would have stopped the work and saved the expense.” Citing Green v. Jersey City, 13 Vr. 118; Browne v. Logan, 14 Id. 421; H. L. & I. Co. v. Hoboken, 7 Id. 291. And the court continues: “By force of the rule established by these and a number of other cases, the prosecutor is held to be precluded from,attacking any step in these proceedings pending the execution of the work.”

And substantially to the same effect it was declared in Durell v. Woodbury, 74 N. J. L. 206, that “where a city has been permitted to go on and incur the expense of the improvement without objection as to the validity of the improvement ordinance, and then proceeds to assess the benefits, it is too late for a party thus assessed to object to the assessment on the ground of the invalidity of the original ordinance.” This language was cited and approved by this.court in Graham v. Ocean City, 98 Id. 426, where seven months were allowed to elapse before the prosecutors took the initial step to attack the proceedings providing for the improvement, and the court there observed “the prosecutors are in no position to attack the ordinance, because of their laches.” That, conclusion of the law applies with equal force to the situation here presented.

The rule to show cause will therefore be discharged.


text:
    THE STATE OF NEW JERSEY, EX REL. JOHN COLFER ET AL., PROSECUTORS, v. THOMAS KENNEDY ET AL., DEFENDANTS.
    Argued October term, 1928
    Decided December 20, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutors, Charles II. Boemer.

    For the. defendants, James J. JIurner.

   Per Curiam.

This writ of certiorari brings up for review the action of the Passaic board of taxation in striking from the assessment list submitted by the Paterson commissioners of taxes and assessments, such assessments as were made upon motor vehicles within the provisions of the 1927 amendment (Pamph. Ij. 1927, p. 90) to the General Tax law, exempting from taxation “all motor vehicles registered by the motor vehicle department of the State of New Jersey, and upon which registration fees have been paid,” &c.

The prosecutors contend that the amendment is violative of the constitutional provision that “property shall be assessed for taxes under general laws and by uniform rules, according to its true value.”

The general rule governing such a situation has been laid down as follows: “By a number of decisions it has been held not only that this constitutional provision does not require that all property shall be taxed, but also that the legislature may select certain classes of property for taxation, or may exempt certain classes of property from taxation, provided in each case the legislative object be accomplished by general laws- that are uniform as to all of the class.” Tippett v. McGrath, Collector, &c., 70 N. J. L. 110; affirmed, 71 Id. 338.

In the case of Tippett v. McGrath, ubi supra, the following language is used: “The decisions construing this constitutional provision, in so far as they have sanctioned classifications as the basis of legislation either for taxation or exemption, have done so upon the express ground that such classifications were based upon features that inhered in the property itself, or in the purposes to which it or its usufruct was devoted.” Page 113.

In the case of Central Railroad Co. v. Board of Taxation, 75 N. J. L. 120, Mr. Justice Pitney observed: “The constitutional provision is satisfied by a uniformity that obtains without discrimination throughout a class of property set apart on reasonable grounds for separate treatment.”

So, it has been observed, “what classes of property shall be taxed and what shall be exempted, except as restricted by the constitution, is a question that rests within the discretion of the legislature. It is within the legislative authority to exempt from other forms of taxation property which pays a specific tax, whether or not the tax is levied on the property itself or on the right to use it in a certain way.” Jasnowski v. Board of Assessors, 191 Mich. 287; 157 N. W. Rep. 891; Comas Stage Co. v. Kozer, 104 Ore. 600; 209 Pac. Rep. 95.

There were reasonable grounds in the legislative mind for creating a separate class of motor vehicles, causing them to be registered and pay a license fee, and exempting them from an ad valorem tax. Such automobiles, it is to be observed, were not onty subjected to a privilege or exceptional tax peculiar to their status or use, but for their operation required the use of gasoline, upon which the legislature had imposed a sales tax. A ease which is of recent origin and very informative upon this phase of taxation is Salem Co. v. State Board, 97 N. J. L. 386; affirmed, 98 Id. 570.

The result of our consideration of the entire subject-matter is that the writ of certiorari should be dismissed.


author: Pee Cubiam.

text:
    ROBERT E. L. LEWIS AND MATHILDE G. LEWIS, RELATORS, v. BOARD OF COMMISSIONERS AND INSPECTOR OF BUILDINGS OF THE BOROUGH OF AVON-BY-THE-SEA, RESPONDENTS.
    Argued October term, 1928
    Decided December 20, 1928.
    Before Justices Mintitkn, Black and Campbell.
    Belator, in person, Robert B. Lewis.

    For the respondents, Samuel 7. Hampton.

   Pee Cubiam.

This is an application on a rule to show cause for a mandamus commanding the board of commissioners and inspector ■of buildings of the borough of Avon-by-the-Sea to issue to the relators a permit to erect upon property in said borough belonging to them, at the site specified, a private garage of the dimensions and description set forth in the petition and diagram referred to therein.

The relators allege that they have complied with all of the requirements of the ordinance of the borough relating to the issuing of such permit, but that the commissioners have refused to issue the permit for the reason that the erection of a garage as described in the petition and the diagram would violate the last paragraph of section 2 of the ordinance, and would violate section 19 thereof.

The provisions of the ordinance referred to are as follows: “Sec. 2. On all streets running in an easterly and westerly direction in the borough private garages shall be constructed not less than seventy-five feet from the curb line of the street. On all streets running in a northerly and southerly direction private garages shall be constructed not less than thirty feet from the curb line of the street, and the permit for such construction shall be approved by this board of commissioners ; except in cases where lots are fifty feet deep, then such garage is to be erected on the rear of said lot.”

Section 19 of the building ordinance is as follows: “All buildings east of Fifth avenue, in the borough of Avon-by-the-Sea shall be not less than three feet from the side lines.”

The relators are the owners of two adjoining lots, one of which is on the northeast corner of Third and Lincoln avenues. Each lot has a frontage of fifty feet on Lincoln avenue and extends in depth one hundred and forty feet to an alleyway twenty feet in width. On the interior lot is located a large frame dwelling, in the rear of which is a garage. The corner lot is vacant, except that the porch of the dwelling encroaches thereon.

Thd relators, without applying for a permit, began the erection of another garage on the interior lot about fift3r-five feet from the curb line of Lincoln avenue, and one foot from the easterly line of their property. The garage was planned to be thirty-two feet long, with doors at both ends to provide means of ingress and egress to and from Lincoln avenue, and to and from the alleyway in the rear.

The building ■ inspector stopped the construction of the garage because no permit therefor had been granted. A subsequent application for a permit was- denied on the ground that the erection of the proposed garage was in violation of the zoning provisions contained in the sections of the building ordinance already referred to.

The first reason of the relators for the granting of the writ in this case is that the zoning amendment to the constitution and the statute enacted in conformity therewith are not applicable because the permit was applied for before the enactment of the statute. This question is res adjudicada, in this court, and was decided adversely to the contention of the relator in the case of Koplin v. South Orange, 6 N. J. Mis. R. 489; 142 Atl. Rep. 235.

The next point contended for by the prosecutor is that the erection of the proposed garage was not in violation of section 2 of the ordinance, in that the garage was to be erected at a point over thirty feet from the curbstone of Third avenue. The site selected by the relators for the erection of the garage wras on the interior lot at a point within the prescribed seventy-five feet from the curb line of Lincoln avenue, on which avenue the said lot fronted, as did also the house located thereon, as well as the proposed garage.

We find no merit whatever in the contention that the word “buildings” in section 19 of the ordinance was not intended to include garages, since obviously garages are buildings.

The next point urged is that section 19 of the ordinance discriminates between property owners east of Fifth avenue and those west of Fifth avenue. It was stipulated in the case that Avon is a summer resort, and that a majority of the houses east of Fifth avenue are vacant eight or nine months each year, while practically all of the houses west of Fifth avenue are occupied during the entire year. It is a matter of common knowledge that vacant houses are considered a more hazardous fire risk in insurance circles than those that are occupied. The houses are vacant in winter, when it is more difficult for fire apparatus to be moved over snow and ice covered streets. These facts supply sufficient justification for the area classification made in the ordinance, and we therefore see no merit in that point.

It is next urged that section 2 of the ordinance discriminates between owners of property facing on streets running in different directions. It appears that the blocks on streets running in an easterly and westerly direction are five hundred feet long and that lots fronting on such streets are one hundred and forty feet deep and extend to alleyways in the rear, whereas blocks on streets running in a northerly and southerly direction are only three hundred feet long, and the lots fronting thereon are, for the most part, about fifty feet in depth, being substantially divisions of corner lots. We think this situation provides an ample basis for the classification and separate treatment provided for in the ordinance, and Ave therefore see no substantial basis for this contention.

It is next argued that there is a discrimination between those who have built their houses before and those who have constructed them after the passage of the ordinance. The ordinance does not discriminate as to garages or other buildings erected after its enactment, but deals with the situation as the ordinance may apply to conditions existing after its enactment.

We have examined all the reasons advanced by the relators in favor of the rule, and have discussed them as far as we deem it necessary for the purpose of ascertaining the substantial merit of those that we think most pertinent; and we find no merit in any of the remaining contentions. In so far as the erection of the proposed garage by the relators is concerned, we find the ordinance to be a proper exercise of the police power of the municipality.

The rule in the case will therefore be discharged.


text:
    RICHARD RANDION, PLAINTIFF, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEFENDANT.
    Submitted October term, 1928
    Decided December 20, 1928.
    Before Justices Minturn, Black and Campbell.
    Eor the plaintiff, Salvatore F. La Corte and Louis J. Feit.

    Eor the defendant, William A. Barkalow.

   Pee Curiam.

This suit was brought to recover damages for personal injuries. The complaint alleges the defendant was engaged in interstate commerce; that on the 18th day of January, 1921, the plaintiff was employed as assistant station boy at removing and loading mail into and from cars on the mail trains operated by the defendant company, at its eastbound Plainfield station; that the plaintiff slipped upon the truck and fell between the truck and the baggage coach, the cause of the slipping upon the truck platform of the truck was due to the faulty condition of the platform of the truck and the iron band binding the platform boards upon the truck, of which the defendant company had prior notice, but neglected to remedy the same, charging negligence in that respect as the cause of the plaintiff’s injuries. The trial resulted in a verdict for the plaintiff for $3,000. The defendant obtained a rule to show cause and writes down eight reasons for a new trial. The view, which we take after reading the testimony, renders it unnecessary to consider only one of the reasons, viz., the verdict was contrary to the clear weight of the evidence. This we think is so. The only issue submitted by the trial court to the jury was a duty to provide “a safe truck,” if you come to the conclusion that this truck was not in a defective condition, that ends the case—the plaintiff has no claim whatever.” This was the sole issue upon the question of the defendant’s negligence. To support the affirmative of that issue, the plaintiff was sworn and a witness, Fred H. Lanning, the night baggage agent at the Plain-field station, he testified, among other things, the plaintiff “slipped and fell off the truck.” This testimony is rather unsatisfactory, both as to accuracy and truthfulness, in some of the details. As against this, the defendant produced four witnesses, Frank 0. Webster, John Urquhart, Joseph Faulkaver and Tobias Nolan.

Our conclusion is the rule to show cause should be made absolute and a venire de novo should issue.


text:
    ANNIE BOYLE AND FRANCES DILLEY, PLAINTIFFS-RESPONDENTS, v. NATIONAL UNION BANK OF DOVER, DEFENDANT-APPELLANT.
    Argued May 2, 1928
    Decided December 21, 1928.
    Before Justices Tbenchabd, Kalisch and Lloyd.

      For the appellant, King & Vogt (Elmer King, of counsel).
    For the respondents, Leon E. Cone.

   Pee Curiam.

This action was brought by plaintiffs to recover from the defendant bank $2,249.64, representing the amount of money which the bank paid out to Patrick Boyle’s administrator upon his death, then in the bank to the credit of “Patrick Boyle or Annie Boyle or Fannie Boyle.”

The general situation was this: The bank account, which was an ordinary commercial account, was originally opened by Patrick Boyle in his own name. After two deposits had been made by him he ordered the bank to add the names of his daughters (the plaintiffs) and this was done and the account then stood in the name of “Patrick Boyle or Annie Boyle or Fannie Boyle.” Thereafter the account was added to' from time to time by the deposit of funds, almost, if not entirely, of Patrick Boyle, and from time to time three withdrawals were made from the account. Upon the death of Patrick Boyle the defendant bank paid out to his administrator upon his check the balance to the credit of the account, and this suit is brought to recover that amount, the plaintiffs claiming by way of a gift from Patrick Borde in his lifetime. At the close of the case, at which the foregoing matters appeared, together with some other evidence hereafter to be mentioned, the defendant moved for a direction of a verdict in its favor upon the ground that there was no evidence of a gift to the plaintiffs. That motion the trial judge denied. The case being then submitted to the jury they found for the plaintiffs for the full amount claimed, with interest and costs, and the defendant bank appeals.

Our examination of the evidence fails to disclose any evidence of an effective or perfect gift.

It will be observed at once that the account was not one of joint tenancy. The word “or” negatives the idea of a joint tenancy. Morristown Trust Co. v. Capstick, 90 N. J. Eq. 25; affirmed, 91 Id. 152.

Now, with respect to the evidence claimed to show a gift: There was evidence produced by the plaintiffs that after adding the names of his daughters to the account and before his death, Patriqk Boyle stated, in effect, that he had deposited the money for his daughters, and it was theirs and they could do as they liked with it. There was also evidence that sometime thereafter and before his death Patrick handed the bank book to his daughter Prances and told her “to keep it and take care of it,” and that it was in her possession at the time of her father’s death.

It is this evidence, as we understand the argument, which plaintiffs contend justified a finding of a legal and perfect gift.

We do not so view it.

In Stevenson v. Earl, 65 N. J. Eq. 721, it was declared that “in order to legalize such a gift, there must be not only a donative intention, but also, in conjunction with it, a complete stripping of the donor of all dominion and control over the thing given.” In other words, in order to create a perfect gift the donor must part with the possession of and dominion over the property; there must be an absolute abnegation of power over the subject of the gift. Schick v. Grote, 42 Id. 352; Cook v. Lum, 26 Vr. 375. Now in the present case it appeared conclusively that Patrick Boyle retained dominion over the property. It appeared conclusively by the undisputed evidence that the bank account was of the ordinary commercial kind; that the production of the bank book was entirely unecessary for the withdrawal of moneys from the account, and that under the rules and practices of the bank any one of the three persons named in the account could draw upon it by check without more. In such circumstances neither the evidence of plaintiffs’ possession of the bank book nor the testimony to the effect that Patrick stated that he “deposited the money for his daughters and that they could do with it as they liked,” justified a finding of a legal and perfect gift, since plainly Boyle did not part with his dominion over the property. Stevenson v. Earl, 65 N. J. Eq. 725.

The judgment will be reversed.


text:
    PHILIP BRENNER, PLAINTIFF-APPELLANT, v. HAZEL MOUNT, DEFENDANT-APPELLEE.
    Submitted May 12, 1928
    Decided December 21, 1928.
    Before Justices Then chard, Kalisch and Lloyd.
    For the appellant, Joseph C. Paul.

    For the appellee, Earley, Cox & Walburg (William E. D. Cox, of counsel).
   Per Curiam.

This is the appeal of the plaintiff below from a judgment of nonsuit.

At the trial the following matters of fact appeared.

On October 13th, 1926, one William Moore was employed by the plaintiff, Philip Brenner, and on that day, while acting within the scope of his employment, he was struck and injured while upon a public street by an automobile driven by the defendant, Hazel Mount.

On or about October 27th, 1926, the Zurich General Accident and Liability Insurance Company, the insurance carrier of the plaintiff, sent to the defendant on behalf of the plaintiff the following letter:

“To Albert & Hazel Mount,

200 Goldsmith Ave.,

Newark, N. J.

Please take notice that on or about the 13th day of October, 1926, William Moore, while employed by Philip Brenner, received injuries claimed to be due to your negligence, the accident happening at or near 54 Walnut street, Newark, N. J. If under the Workmen’s Compensation law it becomes necessary for the employer or liis insurer to make any payment 'of workmen’s compensation benefits or to pay medical, surgical or hospital expense, or similar expense, we shall look to you for reimbursement, and any direct settlement that may be made by you with the injured man or his attorney will not release you from liability for payment made or expense incurred by the employer or insurer.

Zurich General Accident and Liability

Insurance Company.”

Thereafter, and before March 7th, 1927, the insurance earlier above referred to entered into an agreement with the .injured man to pay him, and did pay him, compensation for temporary disability and his medical bills. It is stipulated 'that “on March 7th, 1927, the defendant, without notice other than that of October 27th, 1926, of any agreement upon the part of the plaintiff or his insurance company, to pay compensation to the said William Moore, settled the claim of the said William Moore against her for $2,100,” and paid him that amount. It further appeared that prior to the payment of this,sum, her attorney who effected the settlement for her got in touch, over the telephone, with the insurance carrier of the plaintiff and endeavored to compromise any alleged claim which the carrier might feel it had by reason of its compensation payments and the payment of medical bills for which this suit was subsequently brought, the attorney advising the insurance carrier that he believed they had no legal claim because of the fact that the notice served was defective. During that telephone conversation the attorney was told that the insurance carrier claimed $383.

We think that the judgment of nonsuit must be affirmed because there was no compliance on the part of the' plaintiff with section 23-F of the Workmen’s Compensation act. Pampli. L. 1919, p. 212, ch. 93. The Workmen’s Compensation act, originally enacted in 1911, and the amendments and supplements thereto, prescribed not only the duty of an employer to an injured employe, but also provided a procedure to be followed by the employe and the employer in determining their respective rights and duties under the statute. Section 23-F, the section admittedly involved in this case, prescribes the duty of a third person injuring an employe to the employer and prescribes the procedure by which such employer can acquire a right to reimbursement from the third party.

That statute provides that in order to acquire a right against the third party to be reimbursed by the third party for the compensation paid that “such employer shall file with the third person or corporation so liable, at any time prior to payment, a statement of the compensation agreement or award between himself and his employe,” and therefore it was incumbent upon the employer (the appellant here) to follow that procedure, and that he did not do.

The language of the section, in effect, calls for written notice. The only written notice given by the appellant to the third party prior to the date of settlement did not advise the third party of anjr agreement to pay compensation or of any award for compensation, but on the other hand negatived by its own language the idea that there was an agreement to pay compensation or an award for compensation. The letter stated: “If under the Workmen’s Compensation law it becomes necessary for the employer or his insurer to make any payment * * Such a notice was, therefore, not the one contemplated by the Workmen’s Compensation act, for it did not state to the third party any agreement to pay compensation or award for compensation.

The appellant, realizing this, tried to overcome this defect in two ways: First, he introduced evidence to show that although written notice was not given to the third partjq still oral notice was given to her attorney.

This was not proper notice, for, as we have pointed out, the statute calls for the filing of a notice, which requirement can only be fulfilled by filing a written notice.

Secondly, the appellant argues that on March 7th, 1928, on the date on which the third party settled the claim of the injured employe, there was no agreement by him to pay compensation. Such was not the fact. There was an agreement in force at that time and it is so admitted by the appellant in the agreed state of the case as we read it.

The judgment will be affirmed, with costs.


author: Donges, J.

text:
    Camden County Circuit Court.
    JOHN J. DENES, PLAINTIFF, v. R. M. HOLLINGSHEAD COMPANY, DEFENDANT.
    Submitted December 12, 1928
    Decided December 20, 1928.
    For the plaintiff, D. Trueman Stackhouse.

    For the defendant, Starr, Summerill & Lloyd.

   Donges, J.

Motion is made to strike the complaint in this case.

The complaint discloses that plaintiff was employed by defendant; that in the course of his employment he suffered a slight injury to his leg; that defendant undertook to render treatment to his leg; that defendant so improperly, unskillfully and negligently treated the leg, by the use of improper, alkaline, acred and irritating lotions, that plaintiff’s leg became ulcerated and permanently disabled.

Defendant insists that the only remedy is under the Workmen’s Compensation act, and alleges that the injuries complained of arose out of and in the course of his employment, and cites Newcomb v. Albertson, 85 N. J. L. 435, and Lundy v. Brown & Co., 93 Id. 469.

The complaint alleges a set of facts that indicate that the condition complained of is not the result of accident, but is the result of entirely different causes, namely, negligence in treatment. I am unable to distinguish between a negligent act of the employer, not related to the accident which rendered the treatment necessary, and the negligent act of a surgeon in the treatment of an injury. One is no more the result of the accident than is the other. The condition complained of is not the proximate result of the accident, but is alleged to be the proximate result of an act not related to the happening of the accident.

I have been unable to find any case precisely in point, nor has the diligence of counsel supplied me with any authority. The case of Smith v. International High, &c., Co., 98 N. J. L. 574, is authority that only such conditions as result from an accident are to be recovered for under the Compensation act. To the same effect is Liondale Bleach Works v. Riker, 85 Id. 426. In these cases it is held that disease or conditions which result from and in consequence of accidental injuries are part of such injuries. But these cases are distinguishable from cases, like the instant one, where the allegation is that the condition or disease complained of would not and did not result from the injury received, but resulted wholly from an intervening negligent act.

The motion to strike the complaint is denied.


text:
    SALINE FREEMAN, PROSECUTOR, v. FRANK HAGUE ET AL., DEFENDANTS.
    Submitted October term, 1928
    Decided January 4, 1929.
    Before Justices Minturn, Black and Campbell.
    Eor the prosecutor, Richard Doherty.

    Eor the defendants, Thomas J. Brogan.

   Per Curiam.

The certiorari in this case was allowed to review a resolution adopted April 10th, 1928, by the board of commissioners of Jersey City, rescinding a permit theretofore issued by Edward J. Spoerer, superintendent of buildings, on January 17th, 1928; being permit No. 36,249, to the prosecutor, Saline Ereeman, for the erection of a one-story brick garage, for five pleasure cars, fifty by twenty by ten feet high, at No. 127 Clerk street, Jersey City, New Jersey.

The facts out of which the controversy arose are these: The board of commissioners passed a blanket resolution on December 13th, 1927, concurring in the recommendation of the superintendent of buildings, “as per the attached list of applications for building permits;” “that permission be granted to the following applicants to do such work,” &c. This was done, apparently, because these enumerated applications, on their face, seem to be of the type that would not require a public hearing. This application was erroneously included in the recommendation of the building department.

After the permit had been issued, a petition signed by thirty-eight of the property owners or residents in the vicinity, i. e., on Clerk street, between Carteret and Claremont avenues, opposed the construction of the building or garage. The board of commissioners ordered a public hearing to be held.

The prosecutor was notified to appear at the meeting of the city commissioners to be held on April 10th, 1928, for the consideration of the matter of revoking the permit. Record, page 21. The work was commenced about April 2d, 1928; on April 6th work was stopped. The facts that developed at the hearing resulted in the passage of the resolution under review rescinding the permit. Record, page 13.

The resolution rescinding the permit recites that an investigation by the commission discloses the fact that the permit was erroneously granted in violation of the ordinance passed June 3d, 1924. The only question involved in the case is, whether the city commission had the power and a right to rescind the permit under the ordinance passed June 3d, 1924 Í

The title of the ordinance is, “An ordinance to regulate the erection and alteration of all buildings and structures to be used or designed to be used for any purpose other than as residences or for living apartments.” The third section provides: “After the board of commissioners has inspected or has caused to be inspected the premises mentioned in the application filed,” &c. This, as stated above, through an error, was not done. It also provided “that if permission is granted same will not jeopardize life, limb or public health and will not increase the fire hazard in the locality,” &c. “The board shall have the power to direct the building department to issue all necessary building permits,” &e. The prosecutor argues that under the ordinance the board of commissioners had no power to revoke the permit.

It seems to us that under the facts as stated above, the board of commisioners had an implied power to revoke what had been granted through a mistake and to correct the error. The case of Citizens Holding Co. v. The Board of Adjustment of the City of Newark, No. 249, the present October term of the Supreme Court is distinguished from this on the facts.

The resolution dated April 10th, 1928, by the board of commissioners of Jersey City rescinding a permit theretofore issued by Edward J. Spoerer is affirmed and the writ of certiorari is dismissed.


text:
    PERCY L. TEED, PROSECUTOR, v. THE BOROUGH OF ROSELAND ET AL., RESPONDENTS.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintuhx. Black and Campbell.
    For the prosecutor, Arthur B. Seymour.

    For the respondents, Walter G. Brandley.

   Pee Cueiam.

This writ brings before us for review the proceedings and judgment of the mayor and council of the borough of Rose-land, dismissing from office the prosecutor as borough recorder.

The return to the writ shows that at the organization meeting of the borough on January 1st, 1928, the prosecutor was nominated as borough recorder “for the ensuing year,” and such nomination was confirmed by the borough council.

At a meeting of May 35th, 1938, the chairman of the public safety committee presented a draft of a letter addressed to the prosecutor defining or attempting to define his duties, and after approval thereof it was directed that it be sent to the prosecutor.

Such letter was as follows:

“Mat 36, 1938.

Mr. Percy L. Teed,

Borough Eecorder,

Eoseland, N. J.

Dear Sir: Complaints have been made by the police committee of the borough of Eoseland that you have taken upon yourself the duties of investigating acts in the borough of Eoseland violating either state or local laws.

Under the Borough act, which prescribes the duties of the recorder, it is incumbent upon you to hear all criminal cases, cases of bastardy, relief, removal and settlement of the poor, breaches of the peace, vagrancy, disorderly conduct and-violations of the borough ordinances which are brought before you for trial. Any investigation upon your part before the trial of the case amounts to a prejudgment of the case and may be grounds for reversing a decision made by you.

The borough council must insist that you perform the duties vested in you by reason of your office and do not go beyond those duties to the extent that your conduct may be prejudicial to justice.

This letter is sent 3rou in accordance with a resolution of the borough council adopted at the meeting of May 35th.”

At a special meeting held June 39th, 1938, at which one of the councilmen, the chairman of the public safety committee, presented a Mr. Mooney, of Jersey City, who he explained had been induced by the recorder to sign a complaint against the chief of police for driving his car without his permission. It seems that thereupon Mooney was questioned and the return to the writ contains the statement that he “explained that he had no intention of making a complaint in the matter, that, however, Teed called on him at his place of business and requested that he sign such complaint. He stated that Teed called on him at least three times before he finally signed the complaint, and only on Teed’s statement that if he would not make the complaint somebody else would, and that in that case he, Mooney, would have to appear in court as a witness. Upon further questioning by members of the council, Mooney stated that he had not seen the chief drive his car and that he knew nothing more about the matter than what Teed told him.”

Upon motion of the chairman of the public safety committee the council ordered that a set of charges prepared by the public safety committee be served upon the recorder and that he be granted a hearing on July 6th, 1928.

The charges were served upon the prosecutor and he was given notice of a hearing to be held July 6th, 1928.

The charges were as follows:

“To the honorable mayor and council of the borough of Roseland:

“Complaint filed with the mayor and chairman of the public safety committee in connection with numerous investigations made by the public safety committee have resulted in the following charges by the said committee against Percy L. Teed in the conduct of his office as recorder:

“(1) He has examined and investigated before trial the matters pending before him, disqualifying himself from acting as an impartial judge, and by such improper action usurped the function of the police department, destroying the morals of the entire police force.

“(2) He has without warrant induced the making of a charge against the chief of police, Charles Schweinfurth, resulting in his arrest, embarrassing the public safety committee and bringing to the borough cheap notoriety humiliating to the residents of the borough and their official representative.

“We therefore recommend that a hearing and opportunity be given to the said Percy L. Teed to disprove such charges.

“That the finding of the committee after such hearing be referred to the borough council together with its recommendations as to the proper action to be taken.”

The first count of the charge was abandoned at the hearing and the prosecutor was found guilty under the second count and the council adopted a resolution removing him from office, declaring the office vacant and requiring the turning over to the borough clerk of “all dockets, books and insignia of office and other property of the borough of Roseland.”

The prosecutor files five reasons why these proceedings and judgment should be set aside.

Reasons one and two go to the same point, namely, that the borough council was without authority to bring the prosecutor to trial for violation of his duties as recorder and was without power to remove him before the expiration of his term of office.

Under these reasons the prosecutor’s contention is that he was not appointed under section 3 of the Borough act (1 Comp. Slat., p. 229), but under chapter 260, Pamph. L. 1927, and that such latter act controls and invests the borough (Council with no such authority as it undertook to exercise.

We think this contention is without legal force.

'The return to the writ clearly indicates that the appointment of prosecutor was made under section 3 of the Borough act, supra. That this must be so is clearly shown by reference to Pamph. L. 1927, ch. 260, supra, which distinctly provides for the appointment of a recorder for the term of five years “by resolution” of “the governing body of any borough of this state.” ’ It is plain that if this statute is to be taken advantage of such intention must be evidenced by affirmative action, that is by resolution of the governing body. No such action is shown to have taken place.

The appointment was therefore made under section 3 of the General Borough act and it is unnecessary to consider whether the power of removal in that section continues and exists if the appointment had been made under Pamph. L. 1927, ch. 260.

The remaining reasons, the third, fourth and fifth, go to the same point, namely, that the complaint upon which the prosecutor was tried, convicted and removed from office, does not set forth any justifiable reasons or violations of duties for which he could be removed, nor was there any evidence of any such acts of omission or commission for which he could be removed from office.

We think these contentions are without factual and legal force. The proofs establish that the prosecutor went to great lengths to secure the making of a complaint against the chief of police, using the actual or assumed power of his office to coerce and practically compel the complaining witness to make the complaint.

The result of such acts was the creating of a discordant condition in the police and law enforcement department of the borough, and we think j ustified the removal of prosecutor under act under which he was appointed which provides, “all officers shall hold office during the pleasure of the council * *

The proceedings under review are affirmed and the writ dismissed.


text:
    LAKE & RISLEY COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. LEMUEL STILL, BUILDER; EDWARD L. GALLOWAY AND LOUISE H. GALLOWAY, OWNERS, DEFENDANTS-APPELLEES.
    Decided January 4, 1929.

      Before Justices Trektchard, Kalisch and Lloyd.
    Eor the appellant, Carlton Godfrey and William B. Garrison.

    Eor the appellees, Cole & Cole.

   Pee Cubiam.

Prom the state of the case, as settled by the court, it appears that the defendants Edward L. Galloway and Louise H. Galloway were the owners of premises known as No. 407 North Ohio avenue, Atlantic City, New Jersey, being the premises upon which the lien is' claimed, and consists of a two-story frame dwelling house about twenty-five feet in width and about fifty feet in depth; that said defendant engaged the defendant Lemuel M. Still, as builder, to make certain improvements to said building, that the general nature of said improvements is as follows: Two rooms were added on the front of said premises; on the ground floor a store about ten feet by sixteen feet built of cement block; on the second floor a sun parlor ten feet by sixteen feet; that the changes to the building were made “out in front” and “up” as expressed by the witnesses; that the-lateral side lines of the building were not disturbed and remained unchanged; that the lateral frontage of the building remained unchanged, and that the improvement was not a lateral addition.”

This being the state of the proof, counsel of defendants moved to dismiss the lien and complaint, as to Edward L. Galloway and Louise H. Galloway, owners, on the ground that these changes and improvements were in law, alterations and repairs and not additions.

The trial judge granted the motion as to the defendants named, relying on Updike v. Skillman, 27 N. J. L. 131.

In the case cited, Chief Justice Green (at p. 132) says: “An addition erected to a former building, to constitute a building within the meaning of the Mechanics’ Lien law (Nix. Dig. 487, ¶ 5) must be a lateral addition. It must occupy ground without the limits of the building to which it constitutes an addition, so that the lien shall be upon the building formed by the addition, and, the land upon which it stands.”

“An alteration in a former building by adding to it heighth or to its depth or to the extent of its interior accommodations is an alteration, merely, and not an addition, within the contemplation of the act.”

Testing the undisputed facts of this case by the decision in Updike v. Skillman, supra, the conclusion is inescapable that the nature of the work did not constitute an addition. The case cited is controlling.

Judgment is affirmed, with costs.


author: Pee Ctjeiam.

text:
    CRANE COMPANY, PLAINTIFF-RESPONDENT, v. WILLIAM G. ROYER ET AL., PARTNERS, DEFENDANTS; WILLIAM G. ROYER, INCORPORATED, PROSECUTOR.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mtntukn, Black and Campbell.
    For the prosecutor, Philip M. Chamberlin.

    For the respondent, Maxwell A. Kraemer.

   Pee Ctjeiam.

This writ brings np for review the proceedings under a claim of property levied upon under an execution issued out of the Trenton City District Court under a judgment obtained therein by the Crane Company against William G. Royer, Sr., on February 1st, 1928.

The finding of the jury was against the prosecutor upon its claim of property.

Seven reasons for setting aside the finding are filed and they are argued under three heads.

First, that it was error to permit the constable who made the levy and who was the sole witness of the judgment creditor to attend the jury. We find no merit in this.

Second, that the writ of execution and the levy thereunder were returned into court after the return day of the writ. We do not see how this is before us.

Third, that the finding of the jury is contrary to the evidence; that there is no evidence to support it and that the trial judge erred in refusing to direct a finding in favor of the prosecutor.

Upon this point we find in favor of the prosecutor. It is most evident that the goods claimed were the property of William G. Royer, Incorporated, which came into existence November 5th, 1927. Such goods and chattels came to it through either William G. Royer or Anna T. Royer, the proceeding under which such transfer was made being fully shown in the proofs by the records of the corporation. The proofs before us fail to show that the goods were in the personal possession of the judgment debtor at the time of the levy.

In proper cases the trial judge has power to direct. City Bank v. O’Mara, 88 N. J. L. 499.

We think such a situation was presented here and he should have directed the jury to find in favor of the prosecutor. Also finding, as we do, that the finding of the jury is without proof upon which it can be supported, such finding is set aside, with costs.


text:
    HILLSIDE BUS OWNERS’ ASSOCIATION ET AL. v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintürn, Black and Campbell.
    'For the rule, Nicholas 8. Schloeder.

    Contra, William R. Speer and John W. Queen.

   Per Curiam.

We find that the writ applied for should not be allowed. 'The rule to show cause is therefore discharged.


text:
    HILLSIDE BUS OWNERS’ ASSOCIATION ET AL. v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Minturn, Black and Campbell.
    For the rule, Nicholas S. Schloeder.

    Contra, William, II. Speer and John W. Queen.

   Per Curiam.

We find that the writ applied for should not be allowed. 'The rule to show cause is therefore discharged.


text:
    HILLSIDE BUS OWNERS’ ASSOCIATION ET AL. v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintuen, Black and Campbell.
    Por the rule, Nicholas 8. Schloeder.

    Contra, William H. Speer and John W. Queen.

   Pee Cueiam.

We find that the writ applied for should not he allowed. The rule to show cause is therefore discharged.


author: Pee Cdeiam.

text:
    HUDSON COUNTY BUS OWNERS’ ASSOCIATION ET AL. v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintuen, Black and Campbell.
    Por the rule, Barison & Barison.

    Contra, William H. Speer and John W. Queen.

   Pee Cdeiam.

We have reached the conclusion that the writ applied for should not he allowed.

The rule to show cause is therefore discharged.


text:
    BAYARD L. DUNKLE, PLAINTIFF, v. FLOYD S. CLARK, DEFENDANT.
    Decided January 4, 1929.
    Before Justices Teencharb, Kabisoh and Lloyd.
    For the rule, IF. Holt Apgar.

      Contra, William N. Cooper.

   Pee Curiam.

An action was brought in the Supreme Court by the plaintiff against the defendant to recover the amount due upon two promissory notes, one of which is dated September 15th, 1925, payable at the First National Bank, Milltown, New Jersey, in three months after date, to the order of the Trenton Patent Manufacturing Company, and is for the sum of $450, with interest as per cent, per annum, and bears upon its face the statement for “value received,” and is signed by Floyd S. Clark, the defendant. The other note is dated October 15th, 1925, and is for the sum of $475, but otherwise is of the same tenor of the note above referred to, and this note is also signed by Floyd S. Clark, the defendant. The action resulted in a verdict for the defendant.

The plaintiff’s complaint alleges, in substance, that both of the notes referred to were purchased by the plaintiff from the payee, the Trenton Manufacturing Company, Incorporated,, a corporation, for value, and was endorsed by the payee to-the plaintiff, and that the plaintiff is the owner of them.

The defendant, in his awner, sets up two defenses: Eirst,. that the notes were given for stock in the Trenton Manufacturing Company, sold by its agent who fraudulently represented the financial condition of the company in stating that the stock was in a corporation “that'had assets, was successful,” and was “conducting a going business, and that the-business was prosperous- and making money” * * * whereas “all of which statements were untrue and false; that-the corporation had no assets, was not successful, did not conduct a going business, was not prosperous, and had no-money, and that these false and fraudulent representations-were well known to the plaintiff, he being, at that time, an officer of the corporation, and knew that the said misrepresentations were made in order to obtain the notes from the-defendants,” and secondly, that the plaintiff paid no value for the notes, but that the same were turned over to him, after maturitjr, for the sole purpose of collecting the same, &e.”

In his replication to the answer plaintiff joined issue.

Erom the testimony it appeared that the two promissory notes sued upon were renewals of a note or notes given by the defendant Clark to the Trenton Manufacturing Company for the purchase of stock of that company, at which time plaintiff was the treasurer of the company, and thus presumably informed of its financial soundness.

A review of the testimony discloses that the Trenton company was not in a prosperous condition, but was in actual financial distress at the time the representations were made by one Alexander, who was the accredited agent of the company for the sale of its stock, and which representations a jury was warranted in finding, induced the defendant to give his notes for the purchase of the stock, and that the plaintiff was aware, as early as the year 1923, and before the stock was sold to the defendant by Alexander, that the latter was making misrepresentations as to the financial soundness and prosperity of the company, but nevertheless was con-tinned in the employ of the company as the selling agent of its stock.

We are nnable to say that the result arrived at by the jury is so beyond the weight of evidence that it can be fairly said that the verdict was the result of partiality, passion, mistake or prejudice.

We have examined the other reasons presented for a new trial and find no merit in them.

The rule to show cause is discharged, with costs.


text:
    NEWARK ATHLETIC CLUB, PROSECUTOR, v. BOARD OF ADJUSTMENT OF NEWARK, NEW JERSEY, AND SAYBROOK HOLDING COMPANY, DEFENDANTS.
    Argued October 3, 1928
    Decided January 3, 1929.
    Before Justices Minturn. Black and Campbell.
    For the prosecutor, William II. Osborne.

    For the defendants, Saul & Joseph E. Cohn.

   Pee Cueiam.

On August 29th, 1927, the Saybrook Holding Company made application to the superintendent of buildings for a permit to erect a commercial or public garage at 13-23 Say-brook Place, in the city of Newark.

On August 30th such application was refused by the superintendent of buildings, who made the following notation on the application: “8/30/27 Rejected—-Public Garage—Not permitted at this site.”

The structure was proposed to be erected in a district not zoned against such class of structure unless the conditions were such as to make an amendment of the zoning ordinance known as section 6a applicable.

That section provides:

“Under no circumstances shall a permit be issued for the erection or enlargement of a public or commercial garage, as defined in the fire prevention code of the city of Newark, or for a motor vehicle service station or for the conversion of any premises not so used to be used for such purposes, in any district, whether it be a business district or an industrial district, if any part of the lot or plot in question is situated wthin a radius of two hundred feet of:

1. A public school.

2. A duly organized school giving regular instructions at least five days a week for eight or more months a year.

3. A hospital.

4. A church.

5. A theatre or opera house or other building used or intended to be used for theatrical or operatic purposes or for public entertainment.

6. A public library, or

7. A public art museum.”

The applicant on August 30th, 1927, filed an appeal from such refusal of the superintendent of buildings to the board of adjustment. The matter came before that body on September 15th, 1927, and was laid over to October 6th, 1927, which day being a Hebrew holiday, it was further continued to October 7th, 1927, when the board of adjustment by its judgment found that the decision of the superintendent of buildings should be reversed and the permit granted.

This writ brings up for review such finding and judgment of the board of adjustment.

Seven reasons are advanced by the prosecutor why this judgment should be set aside.

Amongst these are some that are not proper reasons. For instance the third reason is: “The prosecutor is directly interested in the situation, as its property is affected and it has the right to raise any question raised by this reason.”

This goes to the question of the status of the prosecutor which seems to be in no wise contested by the defendants.

The first reason is that the board of adjustment reached its determination without taking any proofs as required by law.

It appears, without contradiction, that the board heard no evidence but based its conclusion as to the facts entirely upon an inspection and examination of the premises and locality and suroundings by all the members of the board.

Whether or not this was proper or sufficient under Chancellor, &c., Co. v. Senior, 4 N. J. Mis. R. 633; Hendey v. Ackerman, 5 N. J. Adv. R. 600, and Marvin v. Westfield, 5 N. J. Mis. R. 668, we think is unimportant inasmuch as the matters before the board of adjustment did not go to the questions raised in those cases but purely and solely as to whether the amendment to the zoning ordinance, section 6a, supra, applied to the case in hand.

The second reason is: “The building superintendent, the transportation department and the traffic department of the city of Newark are all opposed to the erection of this garage; the congestion in Saybrook Place and vicinity is so great that this garage will materially interfere with traffic conditions—traffic jams there have reached the saturation point.”

This is immaterial and of no consequence to the matter before us because as before stated the structure in question is not prohibited by the zoning ordinance of the city of Newark unless it bo by section 6a, supra.

Eeason six is: “The burden is on defendants to show the erection is proper, and they have not established that fact by any proofs of any kind.”

The soundness or unsoundness of this proposition we are not passing upon because we think it unnecessary in view of the matters we will later pass upon.

Eeason seven is general: “The board of adjustment should have affirmed the refusal of the building department and should have refused the permit instead of granting it. The board’s determination is illegal and should be set aside.”

To this our answer is that the conclusions we have reached as to the remaining reasons, four and five.

Eeasons four and five insist that the permit should have been refused by the board of adjustment as it was properly refused by the superintendent of buildings because the building of the prosecutor is used for public entertainment and the Trinity Parish House is a church and a school, all within the intendment of section 6a, supra.

If these contentions, or either of them, were true, both structures are within the prescribed distance of two hundred feet of the proposed garage structure.

But from the proofs before us we conclude that neither contention is sound in fact or law.

Turning first to the Trinity Parish House, which, it is contended, is a church and a school, we find the purposes and uses to which it is put is to conduct the Sunday school of Trinity Parish, at which there are prayers read, hymns sung, the reading of scripture and bible instruction, twice each Sunday except during July and August. There is choir practice every night in the week except Friday. There are church committee meetings and church social functions held there and services for deaf mutes held once a month except during Lent. In this building are also held meetings of the young people of the church, the women’s auxiliary and boy scouts. Meetings of the vestry are also probably held in this building. Trinity Church is located at Military Park, at Broad and Sector streets, a block and a half away from the parish house.

The reports and digests are peculiarly barren of judicial definitions of church edifices.

In 11 C. J. 763 it is said a church edifice is “a building in which people assemble for the worship of God and for the administration of such offices and services as pertain to that worship.” The same definition is to be found in 7 Gyc. 130.

In 1 Bouv. Did. 486 a church is defined as “a society of persons who profess the Christian religion. Den v. Bolton, 12 N. J. L. 206, 214; Stebbins v. Jennings (Mass.), 10 Pick. 193; German Reformed Church v. Seibert, 3 Pa. 282; St. John’s Church v. Hanns, 31 Pa. 9. The place where such persons regularly assemble for worship. Blair v. Odin, 3 Tex. 288.”

In 37 Gyc. 943 the phrase “place of public worship” in the statutes exempting church property is construed as meaning a house or building which is actually and exclusively used for the holding of reilgious services or one which is principally so used, where any other uses to which it may be put are either related- to the religious or charitable work of the congregation or else are only incidental or occasional and not a source of revenue. And therein it is further said: “3. It is well settled that a rectory or parsonage built and owned by a religious society is not exempt from taxation as a 'place of public worship’ unless such rectory or parsonage is used for no other purpose than as a residence for the priest or minister, who occupies it rent free, and although it is situate on the same lot as the church, nor is it exempt because of the fact that occasional religious services are held there or that a room or a part of it is set aside as a chapel, or that it is also used for meetings of the vestry and associations connected with the church or that other acts connected with the work of the church such as the hearing of confessions, performing of marriage ceremonies, &c., are sometimes performed there.” Citing amongst other cases from other jurisdictions. State v. Axtell, 41 N. J. L. 117; State v. Krollman, 38 N. J. L. 323; State v. Lyon, 32 N. J. L. 360.

We conclude therefore that from nothing in the proofs before us does the Trinity Parish House come within the legally accepted definition of a church as referred to by section 6a of the amendment to the zoning ordinance. Nor do-we find anything which brings it within such ordinance under the designation of “2. A duly organized school giving regular-instructions at least five days a week for eight or more months-a year.”

Turning finally to the prosecutor itself, does it come within the designation in such ordinance: “5. A theatre or opera house or other building used or intended to be used for theatrical or operatic purposes or for public entertainment.”

The contention of the prosecutor is that it is a place used, “for public entertainment.”

This is an organization of about four thousand members-where, aside from the usual social club activities, boxing bouts are held, attracting four hundred to five hundred persons, for which there is an admission charge of $1.10 and $2.20. Under the rules of the club guests are required to be-accompanied by members, but in practice it is found that-this is not strictly observed, but that members purchase tickets- and give them away. There are also swimming and bowling and basketball contests and dances held which other than members may attend if, under the rules of the club, they are attended by members.

This rule seems to be more breached than observed.

The club holds no license from the city of Newark as a. place of public amusement.

We conclude that it is not a place of public amusement-under section 6a amending the zoning ordinance.

We further conclude that whatever may have been the legal duty or requirement of the board of adjustment to take proofs; and base its judgment thereon its judgment in the absence-thereof being right should not be reversed.

The judgment under review is affirmed and the writ of certiorari discharged, with costs.


author: Pee Cuiuam.

text:
    CITIZENS HOLDING COMPANY, PROSECUTOR, v. THE BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, RESPONDENT.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintttrn, Black and Campbell.
    For the prosecutor, Benjamin M. Weinberg.

    For the respondent, Jerome T. Congleton and Charles M. Myers.

   Pee Cuiuam.

The situation presented is that the prosecutor applied to the superintendent of buildings of the city of Newark for a permit to erect a gasoline and oil filling station on lands on the westerly side of Stuyvesant avenue, in Newark. The application was refused on the ground that the district in which such lands were situated was zoned for residences only.

An appeal was taken to the board of adjustment and that body on January 5th, 1928, reversed the ruling of the superintendent of buildings and granted the application for the permit.

On January 12th, 1928, the board of adjustment reconsidered its action of January 5th and denied the application for the permit. It appears that the permit had not been issued after January 5th and before January 12th. It further appears that after the action of January 5th the prosecutor entered into a contract for the construction work, but because of the action of the board of January 12th his contractor had released him from such contract.

It appears that the meeting of January 12th was-held at the request of the city commissioners.

An application of this character for a gasoline and oil station on this property had twice before been made and refused. On each of the former occasions one of the city commissioners had appeared before the board and objected to the granting of the permit.

On January 5th he did not appear and object, and one of the members of the board of adjustment who on January 5th voted to grant the permit did so not knowing it was the same property for which twice before a permit had been refused.

The first reason advanced for setting aside this finding is that the board of adjustment having a rule prohibiting the reconsideration of a case within three months after action thereon it could not legally suspend such rule and reconsider its action of January 5th.

Exactly what this rule is does not appear. It may or may not apply to a situation such as that before us.

Prosecutor admits that the board has power to suspend the rule when public necessity demands it and does not urge the reason further than to say that in the present case it was unfair to do so and take interested parties by surprise.

The second and remaining reason urged is that the board had no power to take the action of January 12th in revoking the permit which it had directed to be issued by its action of January 5th.

The insistence of the prosecutor seems to be that the board having once formally acted upon and decided the appeal it is powerless to reconsider such action and rescind its order except where such judgment was the result of fraud or deception.

Of the eases cited by prosecutor, Montefiore Cemetery Co. v. Newark, 3 N. J. Mis. R. 1100; Peerless Oil Co. v. Hague, 4 Id. 148, and Nelson Building Co. v. Greene, 5 Id. 331, the property owner in each case had acted under the permit or license and expended moneys in furtherance of the project licensed.

A like situation prevailed in the cases cited in Montefiore v. Newark, supra, viz., Hudson Tel. Co. v. Jersey City, 49 N. J. L. 303, and Phillipsburg Electric Co. v. Phillipsburg, 66 Id. 505.

We think the cases of Lantz v. Hightstown, 46 N. J. L. 103; Decker v. Board of Excise, 57 Id. 603, and Vanaman v. Adams, 74 Id. 125, are applicable. These were all cases in which it was undertaken to revoke licenses to sell liquor. In the latter of these cases it is held:

“By previous decisions of this court it is held that the licensing body cannot revoke a license after the day upon which it is granted, except for statutory causes * * * or upon the ground of fraud.” A statute then existing specifically set forth and therefore limited the grounds for revocation of such licenses. All of these cases hold that if the application for the license was so defective as to strike at the jurisdiction of the board or court granting it the remedy is by review, in the Supreme Court, by certiorari.

In the case before us there is no suggestion of fraud practiced by the prosecutor or any other person. The only ground for the reversal of the board’s previous action is that, as before stated, one of its members voting to grant the permit testifies that he did not,know or recall that it was the same location for which a permit had been twice before denied and did not know that one of the city commissioners still stood opposed to the granting of the permit. This member of the board testified in these proceedings as follows upon the question of why he voted January 5th to grant the application and changed his vote at the January 12th meeting: “Well, it was based upon what I had done previous—that I had voted against it because it was a residential zone; voted twice against the same thing; and then the third time it was not called to my attention or it was not on the minutes of our board that that same application was denied twice, and that led me to believe it was a new one. There was a difference of a year, I think, between these two.” * * * “Well, I had well remembered, because City Commissioner Gillen came before the board and protested against it with objectors and just as that resolution said there, that covered everything I had to say and if I had known the third time it was the same application I would have voted against it instead of voting for it” * * *. “I said when I was called before their board [city commissioners] that the city commissioners are responsible to the people for any action we might take and they came to us on two occasions previously and naturally if I had known that, I would not have voted for it. That was my mistake, which I admit.”

This same member, however, had previous to the meeting •of January 5th visited the premises with his associates on the board and examined it and its surroundings.

We think the situation is as held in Lantz v. Hightstown, supra, as follows (at p. 101) : “Now I am of opinion that when a license is granted at a session of a body constituted like the common council, and there is no reconsideration of that action during the session, there can be no review of that action at a subsequent meeting, on the ground that the body which granted the license erred upon some question of law or fact, unless the power of revocation is conferred by legislation.”

The facts in this case'raise a situation distinguishing it from Freeman v. Hague et al., 7 N. J. Mis. R. 41.

The judgment under review and the proceedings to reconsider the judgment of the board 'of adjustment of January 5th, 1928, are set aside, with costs.


text:
    WILLIAM H. MOORE, PLAINTIFF-APPELLEE, v. ANTHONY R. RENSING, DEFENDANT-APPELLANT.
    Decided January 4, 1929.
    Before Justices Trenchakd, Kalisch and Lloyd.
    For the appellant, Thomas Brunetto.

    For the appellee, no brief filed.
   Per Curiam.

This is an appeal from a judgment rendered in the First Judicial District Court of the county of Essex, for the plaintiff below against the defendant below, the trial judge sitting without a jury.

The plaintiff below sued to recover from the defendant below damages alleged to have been sustained by the former as the result of an assault and battery alleged to have been ■committed upon him hv the latter.

To the plaintiff’s action, defendant filed a counter-claim, alleging defendant committed an assault and battery upon him, the defendant, at the time and place as alleged in the plaintiff’s state of demand, when an assault and battery was ■committed upon him by the defendant.

According to the plaintiff’s testimony, he was sitting in an automobile, behind the steering wheel, and at which time .an argument was taking place between one Reynolds and the defendant, the latter standing along side of the plaintiff’s automobile.

Plaintiff testified that in the course of the argument between him and Reynolds, the former appealed to the plaintiff, after he, the defendant, had said to Reynolds: “Well, you know it is a ease of when you get the right material you can do a right job with it,” and turning toward the plaintiff, said, “Isn’t that so, Bill ?” whereupon the plaintiff remarked: “Well, Rensing, I generally give my men the material to do their job. You know that when you worked for me,” to which Rensing replied: “You are a liar; I never worked for you.” “It passed back and forth two or three times, and the first thing I knew got hit on the left side of my mouth which loosened up my bridgework on the left-hand side right through the window of the car” * * * that he, the plaintiff did not strike a blow until he was knocked down two or three times and got upon his feet and tried to strike back. There was also testimony to the effect that the plaintiff was pulled out of the car in such a manner that he, the plaintiff, fell upon his hand and shoulder, dislocating it.

Erom the testimony the trial judge was warranted in finding that the defendant wras the aggressor, and that after plaintiff was dragged out of the car by defendant, and was knocked down two or three times, the fight was continued between them by mutual consent.

There are eight specifications of errors presented.

The first is that the damages awarded by the trial judge are excessive.

This specification cannot be considered upon appeal. It is a matter to be considered in the court of first instance, upon an application to the trial judge to set the verdict aside and grant a new trial, on the ground that the damages awarded are excessive. This it appears was not done.

Moreover, the trial judge was warranted in finding, under the evidence, there was no legal justification for the assault and battery committed upon the plaintiff by the defendant; and also in addition to awarding compensatory damages for the injuries sustained by the plaintiff, could properly award punative damages.

The second point relied on is, that the assault and battery committed upon the plaintiff by the defendant was provoked. If the trial judge believed the plaintiff’s version, as to how the trouble started, then the trial judge was warranted in finding as a matter of fact and of law that there was no legal justification for the striking of the plaintiff by the defendant while the former was sitting in the automobile.

The third point made is that the injuries were received by the plaintiff, while defendant was defending himself against plaintiff’s assault.

This presented a question of fact for the trial judge to determine and his finding thereon is not reviewable, since there was testimony which tended to show plaintiff’s injuries were received before a general fight started between the plaintiff and defendant.

The foirrth and fifth specifications are not argued in the brief of counsel of appellant. Moreover, neither specification of error is a valid one. The fourth cannot be considered for if there be any .evidence to support the finding of the trial judge, the verdict will not be disturbed. The fifth is without merit, since there was testimony from which the trial judge could properly find that the appellant was the aggressor in the assault committed upon the plaintiff. This view disposes of appellant’s sixth point that the trial judge should have determined that he plaintiff-appellee was the aggressor.

The seventh and eighth specifications of errors are without merit.

Whether or not defendant-appellant established his counterclaim was a mixed question of law and fact. The facts were in dispute. Since the trial judge could properly find from the testimony adduced at the trial that plaintiff failed to sustain his counter-claim, the court’s finding in that regard is not reviewable here.

Judgment is affirmed, with costs.


text:
    NEW JERSEY ALUMINUM COMPANY, PLAINTIFF-RESPONDENT, v. CHARMS COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintuen, Black and Campbell.
    Por the appellant, Charles S. Smith and Merritt Lane.

    "Eor the respondent, William A. Wachenfeld.

   Pee Curiam.

This is an appeal from a summary judgment entered upon the striking out of the second paragraph of the answer filed in this cause.

The parties entered into a written lease on November 1st, 1923, for premises 699-711 Springfield avenue, Newark, for a term of five years. Defendant occupied the premises until May, 1927, when it vacated but continued to pay rent to and including September, 1927.

The action was brought to recover the rent for October, November and December, 1927, amounting to $3,735.40, and an increase in cost of insurance amounting to $835.02.

The lease contained the following provisions:

“It is further agreed between the parties hereto that all interior repairs to the said premises shall be made at the cost and expense of the lessee except to the roof of said building, repairs to which shall be made and paid for by the lessor,” and

“Lt is expressly understood and agreed that said lessee is to take over said buildings in the condition in which they are at the present time; that said lessee make all repairs, alterations, changes of any kind at its own expense during the continuance of this lease as hereinafter set forth * * *.”

The defendant answered and counter-claimed.

The answer admits the lease and by its second paragraph denies any rent due because it says the premises became unsuitable for its business by disrepair and faulty repair of the roof.

We are not in this appeal concerned with the remaining portion of the answer because it is directed at the right of the lessor to recover extra cost of insurance and the summary judgment under review is for rent only. Neither are we here concerned with the counter-claim.

The second paragraph of the answer was struck out because it presented no facts constituting a legal defense to the action for rent.

Appellant urges that it presented facts amounting to constructive eviction and at least presented a question of fact.

We think not and that on the contrary the question involved is settled by Stewart v. Childs Co., 86 N. J. L. 648. There was, therefore, no error in striking out this portion of the answer and in ordering summary judgment.

Appellant further contends that if the answer was not sufficient leave should have been extended to it to amend. The case before us does not show any application for such leave and it is therefore not a matter that may be argued here.

The judgment below is affirmed, with costs.


text:
    SAMUEL ATKINS, PLAINTIFF-APPELLEE, v. HUMPHREY PRICE AND ROBERT S. PRICE, TRADING AS PRICE BROTHERS, DEFENDANTS-APPELLANTS.
    Decided January 4, 1929.
    Before Justices Tbenchaed, Kalisoh and Lloyd.
    Eor the appellants, Kellogg & Chance.

    Eor the appellee, Feinberg & Femberg.

   Pee Cueiam.

The prime question raised on this appeal is whether the testimony adduced in the cause was sufficient in law, to entitle the plaintiff to have the facts of the case submitted to a jury for its determination.

There was a motion for a nonsuit and a motion for a directed verdict for the defendant, both of which motions were denied, and we think properly so.

If the plaintiff’s version of the happening of the accident is true, then the appellant’s driver was guilty of negligence. On the other hand, if the testimony of the driver of appellant’s truck is true, then there was no negligence on his part, and the accident was solely the result of the plaintiff’s negligence.

According to the plaintiff’s story he was proceeding south with his car on Arlington avenue at a speed of about fourteen miles an hour, at five-forty o’clock, or thereabouts in the evening, at which time it was dark, and when he had reached the corner of Union street, he says he looked to his right and could see about twenty feet, and seeing no vehicle or person approaching, he continued his course across, and when the front end of his car was past the south corner of Union street, appellant’s truck, without any lights, came out of the street and crashed into the rear end of the plaintiff’s car with such force as to carry it completely across the street against a telephone pole.

Now, if this story be true it is difficult to perceive on what reasonable theory any negligence can be attributed to the plaintiff, either as a matter of law or of fact.

The testimony of the driver of appellant’s truck is to the effect that he was operating the truck at about four miles an hour, and upon reaching the intersection of Union street and Arlington avenue, stopped and looked both ways; that he saw a car a block away from his left and thereupon continued to proceed across Arlington avenue; that he was about three-quarters across Arlington avenue when he was hit by the plaintiff’s automobile, sideways.

Of course, if the accident happened as testified to by appellant’s driver, then there was no negligence on his part, and atiy injury which the plaintiff sustained was solely due to his own carelessness.

These diverse statements as to how the accident happened raised a question of credibility of the witnesses, which question was pre-eminently one for the jury to decide. There is nothing contained in the plaintiff’s testimony which allowed a permissible inference to be drawn that he was guilty of negligence contributing to his injury, because he did not discover in the dark a truck which had no lights upon it coming out of the intersecting street, before he started to cross with his automobile. At most it was a jury question.

Judgment is affirmed, with costs.