text:
    GEORGE J. DAVIS AND ISADORE SOLOMON, TRADING AS DAVIS-SOLOMON COMPANY, PLAINTIFFS-APPELLEES, v. CLINTON M. FREEMAN, DEFENDANT-APPELLANT.
    Argued November 8, 1923
    Decided February 19, 1924
    Husband and Wife — Liability of Husband for Wife’s Necessities —Plaintiff Must Show the Necessity of the Articles for One in the Particular Station in Life — Appeal From Order of District Court Setting Aside Verdicts — Appeals Can Only be From Final Judgment — Power of District Court to Set Aside Verdict Should be Exercised With Caution.
    On appeal from the District Court of the city of Orange.
    Before Justices Iyauiscii and Katzenbacii.
    Por the defendant-appellant, Burnett, Sorg, Murray & Duncan (by George It. Bailey).

    For the plaintiffs-appellees, Simon Englander.

   Per Curiam.

The appellant, the defendant below, appeals from an order of the District Court of the city of Orange, setting aside a judgment rendered for the defendant and granting to the plaintiffs a new trial.

Edna D. Freeman was the wife of Clinton M. Freeman, the defendant below. Mrs. Freeman was the owner and possessor of two fur coats, one a baby caracul, trimmed with Australian oppossum; the other a grey squirrel. These coats had just been renovated by the plaintiffs at considerable cost.

Notwithstanding the possession and ownership of these two outer garments, Mrs. Freeman yearned for another fur coat to protect her body from the winter winds. She ordered the plaintiffs to make her one of Hudson seal. Four hundred and twenty-five dollars was to be the price. This coat was delivered to her and, strange as it may seem, was a perfect fit. The purchase of the coat, however, resulted in a disagreement with her husband, who was not on very friendly terms with his wnfe at the time, having just instituted a suit against her on the ground of adultery. Under the circumstances, Mrs. Ereeman was tactful, at least, -with her husband, and returned the coat.

The plaintiffs then instituted suit against Mr. Ereeman for the value of the coat. One of the plaintiffs, Mr. Davis, and Mrs. Ereeman testifiedj to the purchase of the coat. There was no evidence offered to show that the third fur coat was a necessary for Mrs. Ereeman, or the financial worth of Mr. Ereeman. Counsel for Mr. Ereeman offered no testimony. A motion to nonsuit was made and denied. The case was submitted to -the jury, which found a verdict for the defendant.

After the verdict in favor of the defendant the court allowed to the plaintiffs a rule to show cause why a new trial should not be granted. The plaintiffs contended, first, that the verdict was against the weight of the evidence, and secondly, that a statement made by the counsel for the defendant in hiS' opening, to the effect that he desired the jury to carefully examine the testimony of Mrs. Ereeman, in the event of her becoming a witness, because there might be some animus on her part, as Mr. Ereeman had brought a divorce against her on the ground of adultery, naming a specific co-respondent, had prejudiced the jury against the plaintiffs.

Upon the return of this rule the court held that the verdict should be - set aside and a new trial granted on the ground that the opening remark of the defendant’s counsel, which has been quoted, was improper and probably had prejudiced the jury. The court also held as an additional reason for granting a new trial that there was no evidence presented by the defendant to meet the testimony made by the plaintiffs and their witnesses. The order setting aside the verdict and granting a new trial has been appealed to this court.

We think the remarks made by the defendant’s counsel in his opening were improper, but no exception was taken thereto at the time they were made, and no request was made of the court to withdraw a juror and declare a mistrial. The plaintiff’s counsel preferred to continue the case. To grant a new trial on this ground was not, however, in our opinion, proper because the plaintiff’s counsel could not continue with the trial of the case and speculate with his chances of success, and then if he failed to obtain a verdict ask the court to set aside a verdict for the defendant on the ground of the impropriety of a remark of opposing counsel to which he had not objected at the time it was made. It is similar to a case where counsel know of some misconduct of a jury and without notifying tire court at the time of learning of the misconduct continue with the trial.

In the case of Consolidated Ice Machine Co. v. Trenton Hygiene Ice Co., 57 Fed. Rep. 898, the jury had, during the trial, examined ice made by the defendant company. This was known to counsel for the defendant. They went on with the trial without calling the court’s attention to the matter. A verdict was returned against the defendant. An application for a new trial was made on the ground of this misconduct. It was held that the defendant had waived its right to object thereto and could not have a new trial on this ground.

In the present case the plaintiffs waived whatever right they had by continuing the trial after the remarks were made by the defendant’s counsel without objection of their counsel thereto. In our opinion the trial court was also not justified in setting aside the verdict on the second ground assigned by the court for granting a new trial. The defendant had a right not to put in any evidence if he and his counsel believed that the evidence of the plaintiff was not sufficient to sustain a verdict. There was. no evidence, as has been stated, of the financial ability of Mr. Freeman or of his station in life, from which it could be determined whether or not the coat was a necessary. To hold a husband responsible for goods purchased by his wife it is necessary to show the wife’s authority to make the purchase, or the husband’s ratification of the purchase, or that the article purchased was a necessary. McCreery & Co. v. Martin, 84 N. J. L. 626. It seems to us that where a husband has supplied his wife with two fur coats, that the third fur coat can hardly be deemed a necessary, especially in the absence of evidence as to the wealth or station in life of the husband.

The trial court, in our opinion, should not have set this verdict aside. But we think that the rule to set aside the verdict is not the subject of an appeal to this court. An appeal to this court must be from a final judgment of the District Court. The setting aside of the verdict simply left the case in the situation in which it was before the trial. Counsel for the appellant argues that the trial judge abused his discretion in setting aside the verdict. We do not think this is a question which this court can take cognizance of in the present situation of the case. A-District Court judge has by statute the power to set aside verdicts. This power is an important one and should be exercised with thought and caution. As there will be a retrial of this case we have thought it best to go somewhat into the law of the case. The rule will be dismissed, for the reason given.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    MADISON TRUST COMPANY, A CORPORATION, PLAINTIFF, v. CESILIUS SWENSON, DEFENDANT.
    Argued November 8, 1923
    Decided February 19, 1924
    Judgment — Order—Striking Out Counter-claim and Entry of Summary Judgment Appealable — When Claim is Admitted and Affidavits Taken Under the Rule Showed No Merit to Counter-claim, Order for Judgment will be Sustained.
    On rule to show cause.
    Before Justices Kalisch and -Katzenbacii.
    For the plaintiff, Charles A. Railibun.

    For the defendant, Kessler & Kessler.

   Pee Cueiam.

This matter comes before us on a rule to show cause why a summary judgment entered against the defendant should not he opened and the defendant permitted to file a counterclaim which was struck out at the time of entering of the judgment. The suit was instituted on February 17th, 1923, and was based upon four demand promissory notes, each for the sum of $5,000, two dated February 20th, 1917, and two dated February 28th, 1917, made by the defendant to his order and endorsed by the defendant and purchased by the plaintiff.

The defendant, as appears from the affidavits taken under the rule in this case, was an acquaintance of Theodosius B. Morris, former treasurer of the plaintiff company. Mr. Morris was a forger. By his forgeries he caused the plaintiff large losses. He was indicted, pleaded guilty and was sentenced to the New Jersey state prison.

The defendant, in addition to the moneys obtained from the obligations upon which this action is founded, had obtained approximately $153,000 from the plaintiff on drafts made from December 27th, 1916, to March 6th, 1917. These drafts were drawn by the defendant to his order and endorsed by him, and then fraudulently accepted by Morris in the name of the Madison Trust Company. The defendant, after the drafts had been accepted in the manner mentioned, caused the drafts to be negotiated at different banking institutions in the states of New Jersey and New York, and received the money therefor. The plaintiff was obliged to pay these drafts.

The defendant held a chattel mortgage of $100,000 upon a vessel known as the “Augustus Welt.” One Jacob C. Stines was the owner of the vessel. This mortgage had been assigned to the plaintiff, but the assignment was conditional. Later an absolute assignment of this $100,000 mortgage was given by the defendant to the plaintiff. The plaintiff refers to this assignment as a bill of sale. Jacob C. Stines then transferred title of the vessel to one Henry G. Peters, who transferred the title to the Augustus Welt Corporation. In June, 1917, the vessel was sunk by a German submarine.

In the present suit on the promissory notes the defendant admitted in his answer the making of the notes. He filed a counter-claim for $105,000 for moneys collected by the plaintiff for advance freight charges upon goods to be transported by the “Augustus Welt” and for the conversion of the “Augusus Welt” by the plaintiff.

On (motion the counter-claim was struck out and a summary judgment was entered. The Supreme Court justice who made the order then allowed a rule to show cause why the judgment should not be opened and the counter-claim reinstated. The testimony taken under this rule fails to show that there was any money paid in advance freight to the plaintiff. If moneys were paid they could not have been paid for the benefit of the defendant, as he was never at any time the owner of the vessel. Only the owner of the vessel or one operating it under a charter party would be entitled to any advance freights, assuming that the plaintiff had received them.

There is nothing in the testimony which shows that the plaintiff had converted the “Augustus Welt” to its use. The title- to the vessel at the time it was sunk was in the Augustus Welt Corporation.

The order striking out the counter-claim and entering a summary judgment is an appealable order. In the absence of anything in the affidavits taken under the rale which shows merit in the counter-claim, and in view of the fact that the making of the notes is admitted by the defendant in his answer, we think the order made striking out the counter-claim and entering judgment was proper. The rule to show cause is discharged, with costs.


author: Per Curiam.

text:
    RICHARD J. McDONNELL, PLAINTIFF, v. GEORGE DU CLOSS, DEFENDANT.
    Argued November 9, 1923
    Decided February 19, 1924.
    Judgment — Summary, Motion to Enter — Plaintiff Presents Affidavits Under Rule Supporting Claim — Defendant Presents No Answering Affidavits — Under Rule Plaintiff May Enter Summary Judgment.
    Oil motion for summary judgment.
    Before Justices Kalisoh and ICatzenbaoi-i.
    Por the plaintiff, John D. McMullin.

    For the defendant, Emerson Richards.

   Per Curiam.

This case is before us on a motion to enter summaiy judgment. The action was instituted upon a foreign judgment.

The complaint sets forth in the first paragraph thereof that on October 5th, 1923, the plaintiff entered in the Court of Common Pleas, No. 3, of Philadelphia county, in the State of Pennsylvania, an action in which final judgment was entered against the defendant in favor of the plaintiff for the sum of $16,780, and $1.75 costs.

The second paragraph states that the defendant has not paid said sum or any part thereof.

In the third paragraph the plaintiff demands said sum with interest from July 5th, 1923.

The defendant filed an affidavit of merits and an answer in which he denies the first and third paragraphs of the complaint and admits the second paragraph, and set up that no notice of any kind in the Pennsylvania suit was given to him, and that he was not served with any summons or process out of the Penns3rlvania court in which the judgment was entered. The plaintiff now asks upon affidavits that a siumnaiy judgment be entered against the 'defendant in this ease. Accompanying the affidavits is an exemplified copy of the Pennsylvania judgment, showing that it was entered upon a power of attorney given with a promissory note, made by the defendant to the plaintiff. This power of attorney authorized and entering of a judgment in any comt of record of Pennsylvania or elsewhere.

The defendant presents no answering affidavits. The situation thus presented is covered by rule 80 of the rules of Hie Supreme Court, which reads as follows: “When an answer is filed in an action brought to recover a debt or liquidated demand arising (a) upon a contract express or implied, sealed or not sealed; or (b) upon a judgment for a stated sum; or (c) upon a statute; the answer may be struck out and judgment filial may be entered upon motion and affidavit as hereinafter provided, unless the defendant by affidavit or other proofs shall show such facts as may he deemed, by the judge hearing the motion, sufficient to entitle him to defend. .'Rule 57. Practice act, 1912.”

The defendant having failed to show, by affidavit or other proofs, facts sufficient to entitle linn to defend the plaintiff, is entitled to enter a summaiy judgment. Snell is the order of the court.


text:
    THEODORE ACHENBERG, PLAINTIFF-APPELLEE, v. PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Argued November 8, 1923
    Decided February 19, 1924.
    Negligence — Trolley Collision With Motor Truck — Evidence Admitted of Amount of Damage to Truck Based on Price Lists of Four Years1 Previous Venire de Novo Awarded.
    On appeal from the District Court of Perth Amboy.
    Before Justices Kalisch and Katzenbach.
    Eor the defendant-appellant, Leonard, J. Tynan.

    Eor the plaintiff-appelle, Thomas L. Hanson.

   Per Curiam.

This is an appeal from a judgment of the District Court of the city of Perth Amboy. The action was instituted by the plaintiff to recover from the defendant damages to the plaintiff’s truck caused by a collision with the defendant’s trolley car. The plaintiff claimed that the defendant’s car was being operated in a negligent manner. A judgment was rendered by a jury for $325.

The single question presented and argued on this appeal is the propriety of a ruling made by the trial court in permitting, over objection, a witness to testify as to the cost of the repair of the plaintiff’s truck. The truck was a three and one-half ton Selden truck. After the accident some slight repairs were made to it. It was used for three or four trips and then laid up and had not been repaired at the time of the trial. A witness, George Simon, testified that he was in the garage business and repaired automobiles; that he was familiar with the Selden truck; that he never had sold or bought any truck of this make and had not repaired one during the past year; that he thought he had repaired two of them; that he gave the plaintiff an estimate of what it would cost to put the truck in condition again. He then stated that the estimate which lie had given included the cost of parts taken from a 1918 catalogue of the Sel den truck; that these parts, together .with the work necessary to be done to put the truck in serviceable condition, would cost $570. It is a matter of common knowledge that the prices in catalogues are subject to various discounts and that the list prices, so called, are not the prices for which the listed articles can be obtained. The catalogue was also five years old. If the list prices were subject in 1918 to no discounts these prices would not be likely to be the prevailing prices in 1923. It would not have been proper to offer the catalogue in evidence, and, therefore, in our opinion, the court erroneously allowed the estimate given by the witness to be admitted, since it in part contained elements obtained from sources of knowledge which were inadmissible. A witness to be properly qualified to testify in such a matter must be familiar with the current market prices of the parts covering which he is testifying.

While the jury did not, as would appear by its verdict, accept the estimate of Mr. Simon, yet it may have been taken into account in reaching a verdict and so the defendant-appellant may have been harmed -by its admission. These views lead to a reversal of the judgment and the issue of a venire de novo.


author: Stickel, Jr., J.

text:
    Essex County Court of Common Pleas.
    State of New Jersey v. James L. Mason.
    Motor Vehicles — Driving While in an Intoxicated Condition— The Statutes, Rights of Defendant, Power of Court, Appeal, Etc., Considered at Length.
    On appeal from the Irvington recorder’s court opinion.

      Mr. Charles H. Stewart, for the state.

      Mr. Harold Simandl, for the defendant.
   Stickel, Jr., J.

The defendant was convicted before the Irvington recorder’s court for driving an automobile while under the influence of intoxicating liquor and sentenced to thirty days in the county jail. He appealed to this court and the case has been retried.

The evidence entirely satisfies me that the defendant was driving the automobile while he was under the influence of intoxicating liquor, and the only questions in the case are those relating to the validity of the complaint and to the jurisdiction of the recorder and this court to try the de•fendant.

. The return of the recorder shows that the defendant was arrested without a warrant, on .July 16th, 1923, and was released upon depositing $100 to secure his appearance at a hearing before a magistrate. On Juty 20th, 1923, at the request of the defendant, the hearing was adjourned to July 27th, 1923, at which time the defendant not appearing when the case was called his deposit was forfeited. Later lie appeared and the hearing was set for August 3d, upon which date defendant appeared, a complaint was sworn to, defendant pleaded not guilty thereto, a motion to dismiss it was made and denied, the case tried and defendant found guilty. The defendant on the same day having been sentenced to thirty days in the county jail, a notice of appeal .was filed and a motion to-reinstate the forfeited bail granted.

The portion of section 31 of the Motor Vehicle act (P. L. 1921 ch. 208) called into question in this case reads as follows:

“Arrest without warrant.; detention of person; hearing. Any constable or police officer, or motor vehicle inspector, or the commissioner of motor vehicles is hereby authorized to arrest, without war-' rant, any person violating in the presence of such constable, or police officer, or motor vehicle inspector, or the commissioner of motor vehicles any of the provisions of this act, and to bring the defendant before any magistrate of the county where such offense is committed. The person so offending shall be detained in the office of the magistrate until the officer making such arrest shall make oath or affirmation, which he shall do forthwith, declaring that the person under arrest has violated one or more of the provisions off this act, and specifying the provision or provisions violated, whereupon said magistrate shall issue a warrant returnable forthwith, and the said magistrate shall proceed summarily to hear or postpone the case as provided in sections twenty-six and twenty-seven of this act.”

The recorder’s return, read in the light of this section, indicates that in some respects the section was not strictly complied with. The arresting officer did not detain the defendant until tlie making of the complaint by the officer; did not make the complaint forthwith; but instead the policio authorities, in the absence of the magistrate, released the defendant for subsequent appearance before the magistrate.

This failure of the police to detain the accused until complaint made, to make the complaint forthwith, and their act-in releasing the accused for subsequent hearing, the defendant contends, deprived the magistrate of the right to later take a complaint against the defendant and to try him for the violation for which he was arrested.

Ill other words, the defendant contends that he should have been detained in custody until a magistrate could be located before whom a complaint could be made forthwith by the officer, a warrant issued forthwith by the magistrate and the case summarily tried, or postponed, that bail should have been denied him meanwhile, and that his release upon making a deposit to secure his subsequent appearance illegal, all of which matters deprived any magistrate of jurisdiction to try the case, and despite the court’s conviction that the defendant is guilty in fact requires it to find for the defendant because of this point of law.

Such a destructive construction of' the statute must find plain and unambiguous language to support it else it will not be adopted.

And section 31 does not contain language supporting such a construction. Indeed, I am unable to find anything in the section or in the statute which prohibits the course followed in this case, in view of the evident fact that the magistrate was not in his office. The section merely seeks to outline the procedure to be followed by the officer (and if he locates a magistrate, if the1 magistrate is in his office), the duty and power of the- magistrate. Nothing is said as to what shall take place if the officer cannot locate a magis- _ trate, if the magistrate is not in his office. The statute does not provide in such case that the accused shall be held or that he shall be released. But the manifest purpose of the section being effectively and yet in an orderly manner to enforce the law (for if a peace officer could not arrest a speeder, for instance, without a warrant, the enforcement of this law would be seriously hampered) it is not to be assumed that in giving a peace officer the right to arrest for a violation committed in his presence the legislature intended to diminish or impair the constitutional right of making bail. See Bryan v. Comstock (Ark.), 220 S. W. Rep. 475; 9 A. L. R. 1346.

And, as that would be the effect of adopting the defendant’s construction of the section, as that would mean that an accused charged with merely a fineable offense must, while still presumptively and perhaps, in fact, innocent, spend a night in jail, though able and ready to give bail, and as the language permits of a construction which would allow of the release of an accused on bail, where a magistrate cannot be located, that construction, being the more reasonable one, the one more consonant with the purpose of the act, will be adopted. For it must be realized that this section applies not alone to driving a motor vehicle while under the influence of liquor, but to all motor vehicle violations, such as speeding, overloading, failure to carry lights and similar infractions, most of which are only punishable by fine.

But even though the construction of the defendant should be adopted these provisions are not of the essence of the judicial procedure, are not mandatory, but plainly directory. Chief-Justice Beasley in the case of Proprietors of Morris Aqueduct ads. Jones, 86 N. J. Law 206, in considering whether a certain provision was a directory one or a mandatory one, said that he was sure “that the following proposition is established by the large majority of these authorities, viz.: ‘That every requirement o£ the act must have the full effect the language imports unless such interpretation of the words will lead to great inconvenience, injustice or a subversion of some important object of the act.’” Judging the instant’ question by this text, is it not patent that to give to the provisions in question the mandatory construction which defendant contends for would lead to great inconvenience, injustice and to a subversion of an important object of the act, and, therefore, that the legislature must have intended the provisions to be directory merely? Is it not clear that to hold that a literal compliance with these provisions is necessary as a condition precedent to the attaching of jurisdiction to try the defendant would lead to great inconvenience in requiring the magistrates to he always at their offices, or so near at hand as to be always available, or to great hardship in that if they were not always available the defendant must remain in custody without the right to bail until they were located, or to the subversion of the right of arrest without a warrant, after. certain hours, due to the probable unavailability of the magistrate and the instinctive dislike of the authorities in such circumstances to make an arrest which might require the offender to remain in custody over night?

Chief-Justice Beasley, in the case mentioned, cites the case of Morrell v. Buckley, Spenc. 668, where the provision requiring the clerk, on issuing a writ of attachment, to enter in a book to be kept for that purpose the names of the parties and the time of issuing ,and sealing the writ, was held to be merely directory. The court said: “The ground of that judgment is that although the duty imposed on the clerk is expressed in clear terms it'could not have been the design to make the legality of the proceedings depend on the obedience of the officer to this mandate. The inconvenience. and unjust consequences'of such a circumstance would have been so great as to forbid the court from concluding that such a purpose was intended, in the absence of express terms or something equivalent, compelling such a construction.” “This is an illustration,” Chief-Justice Beasley says,, “of the plain text being controlled by the plain spirit of the law.” So, here, it could not have been the design of the legislature to make the legality of the proceedings depend on the obedience of the officer to the claimed mandate of the statute, particularly when such mandate is not clear and when the construction of the defendant would run counter to the instinct and experience of every police officer, to allow a man bail in almost every case, even of crime, not to speak of motor vehicle violations.

Moreover, these provisions are enacted for the benefit of a defendant, to insure prompt hearing and the disposition of the charge, and if he choses to waive these benefits certainly he may do so and when he procures his release on bail for subsequent hearing, when he secures adjournments, and when, after conviction, he applies to the court for a reopening of the bail forfeiture, and his request is granted, to say that the doing of the very acts he requested to be done, or by which he benefited, may be availed of by him to bar further proceedings against Mm is to state, it seems to me, an absurdity. It is plain that the jurisdiction of the court over the defendant has been recognized and any right to object to it waived. It is also interesting to note that the objection to the complaint was taken after the plea of not guilty had been entered thereto.

In connection with this matter of waiver the case of Jackson v. Burdge, 116 Atl. Rep. 727, is interesting. In that case the statute provided that a person guilty of cruelty to animals and arrested without a warrant by the officer should be taken to the nearest magistrate or justice of the peace, and the court, after holding that the act in question did not give exclusive jurisdiction to the nearest magistrate, but that any magistrate might determine the matter, made this significant statement: “Thirdly — The provision of the statute is obviously for the benefit of the accused. This benefit the accused may waive if he sees fit.”

And, finally, the defendant having a right of review by certiorari, a proceeding in the nature of certiorari under section 35 of the Motor Vehicle act, and a right of appeal to this court,'and a trial de novo here, and having elected to appeal and have his trial de novo, has thereby waived the instant question of jurisdiction.

In State, Steinlein, Pros., v. Folwell, 53 N. J. Law 176; 20 Atl. Rep. 1079, the court said: “Where-the court for the trial of small causes had no jurisdiction over the subject-matter of the action relief can be had either by ceHiorari or by appeal. Williamson v. Middlesex Common Pleas, 42 N. J. Law 386. But when the cause of action is within the jurisdiction of the court and there was lack of jurisdiction over the party appealing, by reason of irregular adjournments, the taking of an appeal operated as a waiver of the irregularity. The remedy was by certiorari.”

Again, in State, Dunn, Pros., v. Overseers of the Poor of South Amboy, 32 N. J. Law 275, the court, in considering a similar question, said (at p. 280) : “The order of the justices must show their jurisdiction, and having shown that, all the rest is procedure. If the justices have no jurisdiction their proceedings are void and the defendant may prosecute for any attempted enforcement, or he may bring certiorari directly to the justices and have their orders reversed; but then there can be no appeal. But if the errors of the justices are mere errors of procedure he must elect one of two alternatives. Pie must either certiorari and -reverse for these errors of procedure or appeal to the sessions and retry his cause upon the merits; but he cannot take both courses. If he appeals the sessions,have jurisdiction and their order supersedes and nullifies the order of. the justices.” And, again (at p. 283) : “This was a proceeding before the sessions, by way of appeal, which from its very nature requires a new trial upon the merits, and where the sessions ought not to reverse, where it appeared that the justices had jurisdiction of the subject-matter, unless the error was such as prevented a fair trial before the sessions on the merits of the case.” And in Hurff v. Overseer of the City of Camden, 38 N. J. Law 287 (at p. 288), Mr. Justice Dixon says: “The plaintiff’s appeal gave them [the sessions] jurisdiction, and on that appeal they had no concern with the' mistakes in procedure below.” See also Vannoy v. Givens, 23 N. J. Law 201; State, Tompkins, Pros., v. Schomp, 45 N. J. Law 488 (Supreme Court); Schomp v. Tompkins, 46 N. J. Law 608; Barclay v. Brabston, 49 N. J. L. 629; 9 Atl. Rep. 769.

And the applicability of these decisions and the reasoning therein is emphasized in offenses like the present one, when it is realized that prior to the Motor Vehicle act of 1921 such offenses were punishable under the Disorderly Persons act, and the trials had thereunder reviewable either by the justice of the supreme court holding the circuit in the county in which the trial was had or by the judge of the court of common pleas' in such county, not by ' trial de novo, but through an examination of the complaint, warrant, proceedings and record of conviction by the justice or judge, “that, the legality of such proceedings and conviction might be reviewed and determined,” and if illegal, set aside; while in 1921, when the offense was changed to a motor vehicle violation under the Motor Vehicle act adopted that year, a trial de novo on appeal to this court was provided for, as well as a right of review identical with that provided when the offense was a disorderly act, except that the supreme court justice alone was vested with such reviewing jurisdiction. See section 35’ of the Motor Vehicle act, (P. L. 1921 ch. 208). The division and separation of reviewing authority and subject-matier, it seems to me, indicates a legislative adoption of the rationale of the cases cited wholly at variance with a right in the defendant to have this court do more than try this case on its merits, jurisdiction of the subject-matter being present as here.

The next point made is that the complaint is defective in that it charges that the defendant did operate- a motor vehicle “while under the influence of intoxicating liquor, and narcotic and habit-producing drug,” and in that the act charged (or permit, as the case may be) to have been violated is section 3 of the act of 1921; whereas that section was amended in 1923. P. L. 1923 ch. 136. The only change made by the amendment was to provide that the imprisonment should be in the common jail of the county where the offense was committed.

Vow, in view of the case of State, Roeber, Pros., v. Society for the Prevention of Cruelty to Animals, 47 N. J. Law 237, it is the law that the complaint, being the foundation of the proceeding, must conform to the statute, and objection may be taken to it on appeal. But the objection to the complaint in that case went to the jurisdiction of the court over the subject-matter. The complaint as drawn in that case fails to exhibit jurisdiction over the subject-matter. The objections here, however, do not go to the jurisdiction of the subject-matter, but are purely, it seems to me, defects in form which, under the cases heretofore cited, are waived by an appeal for a trial on the merits.

But in any event, the ease having been tried below as a charge of driving while under the influence of intoxicating liquor, the language “and narcotic and habit forming drug” may be rejected as surplusage, particularly as only one offense is sufficiently charged. State v. Middlesex, &c., Traction Co., 67 N. J. Law 14; 50 Atl. Rep. 354; while the claim that the complaint is defective because it does not allege that the offense is a violation of chapter 208 of P. L. 1921, and the amendments and supplements thereof and thereto, that is, that there is no express or 'general reference to amendments and supplements to the act, is completely answered by the case of Drew v. West Orange, 64 N. J. Law 481; 45 Atl. Rep. 787, and State v. Cooney, 72 N. J. Law 76; 60 Atl. Rep. 60, in which latter case, in considering a similar objection to an indictment, the court said: “Bespecting the third reason, we think the averment of the indictment that the primary election to which it refers was held under the act of April 14th, 1903, legally imports that it was held under that act as amended by the act of April 5th, 1904, such being the form of the statute when the election was held.”

In the cited case of Drew v. West Orange the court said: “In contemplation of law an act and its supplements are but one act for the purpose of construction,” citing two cases. It then proceeds: “It follows that the title of a public statute may property be used to denote the law embodied in the original enactment, as modified by its amendments and supplements.”

Finding no merit in the objections made to the proceeding, and being satisfied on the facts of the guilt of the defendant, I find him guilty of driving an automobile while under the influence of intoxicating liquor, in violation of section 3 of chapter 208, P. L. 1921, as amended by chapter 136 of the laws of 1923.


text:
    SCHNYDER ET AL., PROSECUTORS, v. McGOVERN, COUNTY CLERK. HERMANN, PROSECUTOR, v. STOEBLING, CLERK OF THE HUDSON COUNTY BOARD OF ELECTIONS.
    Decided February 26, 1924.
    Special Election — Writs Allowed Without Stay — Order to Stay Here Applied For — Denied on Ground that More Harm than Good Would be Accomplished.
    On certiorari. On motion for stay ponding,argument and decision.
    Before Justices Tren chard, Parker and Campbell.
    For the prosecutors, Warren Dixon.

    For the respondents, John J. Fallon.

   Per Curiam.

The two writs bring up an order for the holding of a special election for determining whether certain municipalities of Hudson county shall be consolidated, and procedure taken by the county board of elections in preparation for such election. The justice that allowed the writs did so without stay, and at the argument we were asked to overrule this course and order a stay, in order to avoid alleged useless expense, and for other reasons.

We think that in the status of the matter as it came to us a stay would do more harm than good, and would in practical effect amount to setting aside the whole election for the time being; so that we feel constrained to deny it, subject to any action that may app'ear proper after the briefs are in and the case fully examined.


author: Pee Cukiam.

text:
    ALBRECHT BECHMAN ET AL. v. BOARD OF PUBLIC UTILITY COMMISSIONERS.
    Decided February 27, 1924.
    Auto Bus — Operation Over Route on Licenses Granted Prior to March 15th, 1921 — Operators Directed by Street Commission to Extend Route — No Consent of Utility Commission Obtained — Such Consent Held Necessary.
    On certiorari.

    Before Gtjmmeee, Chief Justice, and Justices Mintuen and Kalisoh.
    Eor the prosecutors, George F. Seymour, Jr.

    For the board of public utility commissioners, John W. Queen.

   Pee Cukiam.

This writ brings up for review an order of the board of public utility commissioners, dated December 27th, 1923,’ directing the prosecutors to stop'the operation of auto buses on Springfield avenue, Irvington, between the corner of Lyons and Springfield avenues in that town, and the comer of Forty-third street and Chancellor avenue therein, a distance of over half a mile.

The situation disclosed by the proofs is as follows: The prosecutors, with the consent of and under licenses granted by the' municipal authorities of the city of Newark and those of the town of Irvington, acquired prior to March 15th, 1921, had been operating, from the time of the giving of tliose' consents and the issuing of those licenses, up to the time'oí the making of the order complained of, a line of auto buses from the Hudson and Manhattan tube'station, in Newark, to the comer of Lyons and Springfield avenues, in Irvington. In the year 1922 the prosecutors were directed by the street commissioner of Irvington, acting under the authority of the governing body, to extend their line from its original terminus, at Lyons and Springfield avenues* along Springfield avenue to the comer of Forty-third street and Chancellor avenue; and, in compliance with this instruction, the prosecutors thereafter ran their auto buses over the extended route.

The question presented for solution is whether or not the prosecutors are authorized to operate their auto- buses over the extension of their route without first obtaining the authority of the board of of public utility commissioners to do so. By the act of 1911 (Pamph. L. 1911, p. 374) the public utility hoard is vested with general supervision and regulation of and. jurisdiction and control over public utilities; but this jurisdiction did not then embrace the regulation -of and control over the operation of jitney Duses. In IS23, however, the original act creating the board was amended so as to include within its jurisdiction every individual, co-partnership, association, corporation or joint stock company that should then or thereafter own, operate, manage rr control within the State of Yew Jersey any “auto bus, commonly called jitney, the route of which, in whole or in part, parallel? upon the, same street the line of any street railway.” This jurisdiction was limited, however, by a provision in the amendment that nothing contained in it should “extend the powers of the board of public utility commissioners to include any supervision and regulation of, or jurisdiction and control over, the operation of any auto bus, commonly called jitney, over its present route under and in accordance with the consent of che municipal authorities granted therefor prior to March 15th, 1921.” Pamph. L. 1921, p. 390.

It is conceded by the prosecutors that both their original route and the extension thereof in the town of Irvington are located upon a street over which a street railway has been constructed and is now operated, and that such construction and operation long preceded the 15th of March, 1921. Yothwithstanding this fact, however, the prosecutors contend that they are within the terms of the excluding provision. the argument being that the granting of the consent and the issuing of the license under which they were running their buses over the original route antedated the time limit fixed by the amendment, and that the extension of its route made no change in its identity, i. ev that it is the same route over which they were running at the time of the enactment 'of the amendment. But this argument overlooks the fact that the provision does not exempt from the jurisdiction of the public utility commissioners the operation of auto buses over their then present routes without more. To be exempt from such jurisdiction the owners of a jitney bus line must not only operate it over the same route used by them at the time of the enactment of the amendment, but that operation must be carried on “under and in accordance with the consent of the municipal authorities granted therefor prior to March 15th, 1921.” Assuming for the purpose of the decision that the extension of a route does not change its inherent characteristics (a proposition which, we think, is at least doubtful), the prosecutors do not come within the protection of the amendment unless they can show that they -are running their buses over the extended route, under a consent of the municipal authorities granted prior to the date declared in the statute. Not only have they failed to show this, bnt the undisputed fact is to the contraríe The route over which they had municipal consent to run prior to March 15th, 1921, terminated at Lyons and Springfield avenues, and at that time they had no authority to operate beyond that point. This being so, the prosecutors could not lawfully operate their line of jitney buses beyond that terminus without first obtaining authority from the board of public utility commissioners to do so.

The order brought up by the writ will be affirmed.


author: Pee Ciikiaji:.

text:
    GENERAL MERCHANDISE EXCHANGE, INCORPORATED, PLAINTIFF-APPELLANT, v. JOSEPH GOLDMAN, DEFENDANT-APPELLEE.
    Decided March 1, 1924.
    Negotiable Instruments — Consideration Presumed — Open to Rebuttal — Testimony Tending to Establish no Consideration is Question of Fact for Trial Judge (Without Jury) to Determine and not Reviewable — When There is Any Testimony Supporting Defendant and None Supporting Consideration Except the Presumption.
    On appeal from the Bayonne District Court.
    Before Justices Katas ch: and Katzenbach.
    For the appellant, Gross & Gross.

    For the appellee, Dembe & Dembe.

   Pee Ciikiaji:.

This is an appeal from a judgment rendered in favor of the defendant, in the Bayonne District Court, the trial judge sitting without a jury.

The plaintiff’s action was based upon a promissory note made and given by the defendant to the plaintiff for the sum of $405.18, dated New York, April 7th, 1915, and payable one month after date at defendant’s office, 495 Broadway, Bayonne. The note was in due form.

The plaintiff’s action was instituted on April 28th, 1921, within a few daj’S of five years from the time the note ma: tured. The state of the case discloses that on or about January 4th, 1916, a petition in bankruptcy was filed against the defendant, in which proceeding the plaintiff was scheduled as one of the defendant’s creditors for the sum of $22.50; that on or about the 3d of March, 1916, the defendant filed a petition for composition with his creditors, which was successful, and the composition was confirmed on June 16th, 1916, by an order of the United States District Court. It also appeared that the composition agreement was not signed by the plaintiff herein. The state of the case further shows that when the case came on for trial, the execution of the note and the signature of the defendant'being admitted, the note was offered in evidence and the plaintiff rested his case. The defendant was then sworn in his own behalf, and testified that between the 4th day of January, 1916, and May 16th, 1916 (the record has it as of the date of the note, but the fact is that the note was dated April 7th), he had no business dealings with the plaintiff; that the note was given to obtain the plaintiff’s signature to' the composition, who told defendant that it would give its signature thereto' provided he gave it, the plaintiff, a note for the payment of the amount he owed it, including some of the accounts that the plaintiff sold through him, which accounts the defendant explains thus: “I bought some merchandise through them” (evidently meaning plaintiff corporation) “from different people.” It also appeared by Exhibit I) 1 of the state of the case that the'plaintiff was listed as a creditor by defendant for $22.50. This testimony does not appear to have been challenged or contradicted by the plaintiff, notwithstanding the statement of the trial judge made by him in his finding, that the defendant is evidently contradicted in saying that the purpose of giving the note was for the purpose of securing the signature of the plaintiff because the official records show that the plaintiff’s signature was never procured. What the defendant testified to was as follows: “When I went to the General Merchandise Exchange to get their signature, thc-y told me they would give me their signature, providing I gave them a note for the payment of the account owed them, including some of the accounts they sold me through. I bought some merchandise through them from different people.” Thus it is to be seen that what the defendant testified to was a promise made by the plaintiff, which he might readily have believed it would perform. The production of the composition disclosed that the plaintiff did not sign it, and no testimony was offered on part of the plaintiff to explain whether or not such promise was made and why the plaintiff did not sign the composition agreement.

That the defendant was under the impression that the plaintiff signed the composition agreement is made clear from his testimony. That he might have been honestly mistaken as to that fact, after a lapse of five years, is easily conceivable.

The trial judge found, and we think properly, that at the time the note was given there ivas due and owing to the plaintiff only $22.50, which would have been wiped out, and was wiped out, by the approval of-the composition agreement; that the testimony of the defendant stands unrelated as to the fact that at the time the note was executed, that no business transactions had taken place between the plaintiff and the defendant.

The plaintiff did not see fit to establish that there was any consideration given by it to the defendant for the note, but relied on provisions of the Negotiable Instruments act, one of which provides that every negotiable instrument is to be deemed prima facie, to have been issued for a.valuable con sideration, and the other that absence or failure of consideration is a matter of defense as against any person not holding in due course, &c.

Of course, the presumption that there was consideration is open to its being rebutted, and when there is testimony tending to establish that there was no consideration, an issue of fact is presented for the trial judge to determine, and his finding on a question of fact, supported by testimony, is not reviewable here.

The fact that the burden of establishing the lack of consideration is upon the defendant, who asserts it, does not abrogate the legal rule that where there is any testimony tending to support the finding of a trial judge on a question of fact, such finding is not properly reviewable.

"We think that the finding of the trial judge that the note sued upon was without consideration is supported by testimony, and therefore the judgment of the District Court is affirmed, with costs.


text:
    EVA LEVY, DEFENDANT, v. JAMES C. DAVIS, DIRECTOR GENERAL OF RAILROADS, PROSECUTOR.
    Argued November 7, 1923
    Decided March 3, 1924.
    Workmen’s Compensation — Pleadings in Litigation in Federal Court Admitting Employment and Setting up Intrastate Employment Properly Admitted — Where a Common Pleas Judge is Changed During Appeal, the New Judge is not Empowered to Give Final Judgment Under the Statute Unless it Appears that Both Sides Submitted the Case to His Determination.
    On certiorari.

    Before Justices Trenohard and Parker.
    Eor the prosecutor, Collins & Gorlin.

    Eor the defendant, Samuel Greenstone.

   Per Curiam.

This is a workmen’s compensation case, and the writ brings' up an award made in the Court of Common Pleas on appeal from the decision of the commissioner of labor. The points assigned and argued are: first, that there was no proof that decedent was engaged in intrastate commerce at the time of his death; second,- there is no'evidence to support the finding that the accident arose out of and in the course of the employment; third!, there is no evidence to support a finding that decedent was employed by the Lehigh Valley Railroad Company at the time of his death; fourth, that the record of a suit in the United States District Court for the Eastern District of New York was admitted without including the testimony and charge of the trial judge; fifth, that if such admission was not illegal, it is not evidential that deceased was employed in intrastate commerce; sixth, irregularity in procedure in that the decision in the Court of Common Pleas was made by a judge who had not heard the ease.

It appears from the petition and answer the deceased was in the employ of the defendant as a pier fioatman, and while walking along the dock fell off and was drowned. The allegations of the petition were that deceased was carrying a coal pail from the dispatcher to the boatman’s shanty. The answer claims that defendant was walking along the dock waiting to he assigned to a float. In either aspect, it seems to us that a fair question of fact, at least, was raised as to whether he was at the time in the course of his employment. That he died by an accident at such time is indisputable. This seems to dispose of the second point.

As to the first point, it was, of course, for the petitioner to show that deceased was engaged in intrastate commerce. If we assume that the record and pleadings of the litigation in the United States court were properly admitted, we find that they contain an allegation on the part of the defense admitting the employment, hut specifically denying that the employment was in interstate commerce. It seems to us that this is sufficient under the case of Lincks v. Erie Railroad Company, 91 N. J. L. 166, to- support a finding of fact that deceased was not in interstate commerce, but was working in intrastate commerce. It is now argued that the present plaintiff is suing personally and in the federal litigation was suing in ,a representative capacity; hut this seems to he no reason why the present plaintiff may tiot take advantage of the admission on the record. It is also argued that the defendant in the federal court was not the same as the present prosecutor. Each was the director general of railroads, and one was merely the successor of the other; so it would seem plain that any admission by the predecessor would hind the successor.

We cannot agree in the proposition that the record and judgment of the New York federal court case was inadmissible without the inclusion of the testimony and charge of the trial judge. We think it is elementary that that is no part of a judicial record and that it would probably have been erroneous to admit such testimony and charge if offered.

The point in the case that seems really important relates to a change of judges in the Court of Common Pleas pending the appeal. It appears from the state of the case that all the evidence on the appeal was taken before Judge Doherty, who resigned without having signed judgment, or made any determination as to the facts or law, and that thereafter the case was taken up by his successor, Judge Lazarus, and that the latter made the finding and judgment. We agree with the prosecutor that Judge Lazarus was not empowered to do this under the statute (Comp. Stat., p. 1727, § 101), but can only sign judgment in a case already determined. That the case had not been determined is plain from his recital at the very beginning of Iris finding. “The above matter coming on for hearing and having been submitted to me for decision, I hereby find 'from stipulations and evidence, as follows.” But this 'Very recital, indicating that there had been no previous determination, contains also the basis for support of the present judgment. Both sides contend that this court will take judicial notice of the official character of Judge Lazarus as judge, and in this we concur. Therefore, when he certifies thus formally that the matter had been submitted to him for decision, we can make no other inference than that the parties had asked him to take it up and decide it, presumably on the evidence theretofore taken. There is nothing in the record to show that either party objected to this course, nor has there been anjr request made to this court to have the judge of the Common Pleas certify anything differently from what he has already certified. On this branch of the case our conclusion is, therefore, that on the face of this record, Judge Lazaras, as the successor of Judge Doherty, was requested by both parties to take up and decide the case on the evidence submitted to his predecessor, and had accordingly done so. This is entirely within his powers if the parties consented thereto and, apparently, they did. Similar submissions are a matter of almost every-day occurrence.

The result is that the judgment brought up will be affirmed.


text:
    JOHN C. CADIEN, PROSECUTOR, v. BOARD OF EDUCATION OF THE BOROUGH OF CLIFFSIDE PARK, DEFENDANT.
    Argued November 8, 1923
    Decided March 3, 1924.
    Elections — Special, to Consider Several Questions Relating to Schools — Ballots Which Failed to Provide a Free Expression Considered and Insufficiency Sustained.
    On certiorari.

    Before Justices The ntciiard and Parker.
    For the prosecutor, Nicholas 8. Schloeder.

    For the defendant, Edtward A. Kenney.

   Per Curiam.

This writ of certiorari was taken out to review a special election relating to the purchase of land for a new school, or the condemnation of the same, the building of a new school, alterations of an old school, and for a vote upon the proposed issue of bonds to pay for one or all of these enterprises. The attack is on the election procedure and the sufficiency of the ballots under the statutes. Principally, it is said that the ballots were in the alternative, confusing and ambiguous.

Two statutes seem to be involved. One is that relating to the authority of the board to purchase or condemn land. Comp. Stat., pp. 4751, 4752, ¶ 4, 5. Respecting this legislation, it is important to note the proviso in paragraph 4 that the board of education shall have power to purchase, sell and improve school grounds, and to make, lease, enlarge, improve, repair or furnish school buildings, and to borrow money therefor with or without mortgage, provided that for any such act it shall have the previous authority of a vote of the legal voters of the district. Paragraph 5 relates to condemnation of land and contains a similar proviso that before beginning any proceedings for taking and condemning land and other property, the board of education shall have the authority of a vote of the legal voters of the district. These powers seem to have been considered in Fuller v. Board, 78 N. J. L. 107, where it was held that a vote authorizing the purchase did not have the effect of authorizing acquisition by condemnation. The point to be noted at this time, however, is that the question of purchase or condemnation, or both, was one to be considered specifically by the legal voters of the district.

The other statute bearing on the matter relates to the issue of bonds. This is section £¡7 of the same School act as latterly amended in 1922. Pamph. L., p. 396. This provides that the legal voters of any school district may, either at the annual meeting or a special meeting, by majoritjr of ballots cast, authorize the board to issue bonds for the purpose of taking and condemning land for school purposes or building a school house or school houses, &c. The act goes on to prescribe the maturity of the bonds, payment by installments, average maturity, and a number of other things which we think need not be considered at this time for reasons presently to be stated. The form and contents of the ballot are provided for generally by the act of 1921, page 161.

The special ballot distributed to voters contained three propositions; proposition one was to purchase or take and condemn for a school house lot certain described land at a cost not to exceed $19,000, and thereon to build a new school house, and furnish and equip the same at. a cost of not over $172,000, or a total of $191,000. Proposition two was for the installation of a new steam plant in school number three, and certain alterations, in all not over $25,000. Apparently, this is not specifically attacked in this case. The above propositions are manifestly based on paragraphs 4 and 5 of section 86 above referred to. Proposition three relates to the bonds, and runs thus:

If proposition one is adopted and proposition two is not adopted, then there shall be one hundred and ninety-one bonds of a thousand dollars each to mature in a, specified manner.

If proposition two is adopted and proposition one is not adopted, then twenty-five bonds of a thousand dollars each, with similar specification.

If propositions one and two are both adopted, then there shall be two hundred and sixteen bonds of a thousand dollars each, with a corresponding specification of maturities.

It will be observed that proposition three was in triplicate, and the voter was required to vote “yes” or “no” to that proposition as a whole. He «could not vote “yes” for the $191,000 and “no” to the $25,000. The whole of proposition three was tied up to such action as was taken on propositions one and two. In other words, instead of proposing the purchase of land and building of a school at $191,000 in one proposition, and leaving it to the voters then to say whether bonds should be issued for that purpose or not, and instead of proposing to the voters the installation of a steam plant for $25,000 and leaving it to them to say whether that improvement should be paid for by bonds or not, they were restricted by proposition three to che choice between paying for all of such improvements as were authorized by the issue of bonds, or of issuing no bonds at all. We are quite unable to see how a voter could express Lis views intelligently and, at the same time, effectively upon the questions that he was entitled to vote on by any such ballot as this, and for this reason we think the election will have to be set aside.

The other points raised merit some notice, although not essential to the decision. As to the alleged alternative contained in proposition one of buying or condemning land, we think this is justified by what was said by this court in Fuller v. Chatham, 78 N. J. L. (at p. 110). We also incline to think that the newspaper mentioned was circulating in the school district in the sense intended by the statute. As to the so-called electioneering notice that was sent out, it might be considered an unfair method of influencing an election, but we fail to see any illegality in it.

It is suggested that that prosecutor is disqualified because he voted “aye” on all the propositions, and is, therefore, estopped to challenge the result of the election. The case of Brown v. Street Lighting District, 69 N. J. L. 485, is invoked on this point. That case goes no further than to hold that the prosecutor, by participatin himself in the election, was estopped to attack the validity of the notice, and we are unwilling to extend the ruling beyond the limit set in that case.. We do not think that the 'prosecutor was required to abstain from voting as a condition precedent to his right to say that he was required to vote an invalid ballot.

Eor the reasons above given, the election and the results thereof will be set aside.


text:
    JOHN SERZAN, PROSECUTOR-RESPONDENT, v. FRANK NAPOROWSKI, RESPONDENT-PETITIONER.
    Submitted December 6, 1923
    Decided March 3, 1924.
    Workmen’s Compensation — Award of Deputy Commissioner of Counsel Fees and of Disbursements to be Paid Forthwith Out of Petitioner's Last Payment of Compensation — Held, That There was No Authority to Award Counsel Fee in That Manner and No Authority to Award “Disbursements” at all.
    On certiorari.

    Before Justices Trencitard, Parker and Campbell.
    For the prosecutor, Frank G. Turner.

    For tile respondent, Samvel Greenstone.

   Per Curiam.

This is a workmen’s compensation case. There was an original award which was reopened on application of petitioner, and after hearing witnesses, including medical experts, as to the extent of injury, the deputy commissioner awarded nineteen weeks at $12 per week as temporary disability, and two hundred weeks at $12 per week as permanent disability, adding the requiremnt that “the attorney for the petitioner is entitled to a counsel fee of $275, together with disbursements of $260, to be paid by the respondent forthwith out of petitioner’s last payment of compensation and to be credited as compensation paid by the respondent.” Tie attack now made is on this clause, requiring this total of $535 to be paid forthwith.

We think the deputy commissioner had no jurisdiction to make the award in this form.

As to counsel fee, the statute seems to authorize an award in addition to the weekly compensation (Pamph. L. 1918, p. 435, § 17); but this was not done. Or the attorney could be paid by weekly installments (Pamph. L. 1913, p. 310), unless there be a commutation of the award of compensation. Rut if it be conceded that there was any attempt at commutation in this case (and this is at least doubtful) it is obnoxious to the express provision of the act which says commutation shall not be allowed to make payment to physicians, lawyers or any other persons. The sole purpose of this part of the award is to pay a lawyer, and of the other part, as shown and conceded, to pay the expert medical witnesses. As to these latter there is no recognition at all in the statute of such claims.

In Jensen v. Woolworth Co., 92 N. J. L. 529, the Court of Errors and Appeals sanctioned commutation to pay for an operation to save petitioner’s life; but that is a very different matter.

We conclude that there was no authority to award a counsel fee in the manner attempted in the adjudication, and as to the so-called “disbursements” no authority whatever. As prosecutor is legally injured by being required to anticipate weekly payments in this manner, the award, so far as it calls for payment of counsel fees and disbursements, will be set aside.


author: Per Guriam.

text:
    CHARLES M. KESLER ET AL., PROSECUTORS, v. ATLANTIC COUNTY ET AL., RESPONDENTS.
    Argued November 8, 1923
    Decided March 3, 1924.
    Road Contracts — Specifications Not in Accordance With the Act of 1918, in That It Does Not Contain Necessary Provision for Wages for Inspectors — Uncertainty Regarding the Name of Bidder or Bidders.
    On certiorari.

    Before Justices Trenciiard and Parker.
    Eot the prosecutors, Cole & Cole.

    For the respondents, Enoch A. Rigbee.

   Per Guriam.

This is a certiorari to review a resolution of the board of freeholders of the county of Atlantic, dated August 8th, 1923, which reads, in part, as follows:

“Be it resolved that a contract for the reconstruction of the Absecon Boulevard be and is hereby awarded to C. PI. Earle a£ the total lump sum bid of $935,711.71, this being the lowest regular bid submitted in response to public advertisement,” &c.
“Be it further resolved that the county solicitor be and is hereby authorized and directed to prepare a contract * * *. Contract awarded subject to sale and delivery of bond to be issued for the payment of said improvement.”

The awmrd of the contract is attacked for two reasons, and our conclusion is that both are well taken. The first reason is that the resolution in question is based on specifications which do not comply witli the act of 1918, chapter 185. That act provides (section 504, on page 577) that every contract for any work requiring inspection shall contain a provision for deduction from the contract price of wages to be paid by the said county to inspectors for any number of days in excess of the number stated in the specifications as the number of working days to be allowed for the completion of such work. So far as the contract is before us, it contains no such requirement. There is a provision for payment of inspectors by the contractor in ease of extension of time; but the prosecutor argues, and as we think properly, that this is not sufficient to cover delays that are not acceded to by the county. It is further argued for the defense that there is a penalty of $100 per day for delay and that that substantially protects the county as though the statutory clause were present; but it cannot be said that this penalty clause was intended for any such purpose, and all reasonable assumptions are that it was intended to secure the completion of the contract on time.

It is further argued for the respondent that this requirement of the statute calls for the insertion of the provision in the contract and that as yet no contract has been made. It is true that the contract has not formally been executed; but it is ripe for execution, and its execution was prevented only by the interposition of the present writ.

Now, the situation as between the parties is as follows: The specifications and forms for bid, name and certificate of surety, contract, contractor's bond and justification of surety were, prepared by the, county engineer, advertised as fequired by law, and the bids were presented in due course, opened and read, and “C. H. Earle'' appeared to be the lowest bidder. The specifications take up some eighty-five pages of the printed case. It was upon these that the bids were submitted arid considered and the resolution of award was made. The argument now is that as the act requires this provision in the contract it will be sufficient if it be inserted in the contract when that document is prepared for formal execution. We think, however, that this would be adding a new condition after the terms of the contract had been definitely settled by the specifications and the bids. The bids were based upon the specification and nothing else. Those specifieations provided, apparently, for everything that was to he stipulated between the parties, including the form of surety bond and sufficiency of sureties, &c. No contractor could be compelled to agree la a formal contract to such a stipulation as that quoted from the statute, as, in fact, the only contract that could properly be made based upon the specifications and the bids is that the contractor will perform the work according to the specifications. We think, therefore, that a resolution based upon specifications not complying with this feature of the statute should not be allowed to stand.

The other objection to the award of the contract is based upon the uncertainty and ambiguity with regard to the name of the bidder or bidders. The successful bid was signed “Cnrroll H. Earle and Ealph D. Earle, trading as fC. H. Earle,’ ” in compliance with the parenthetical instruction printed on the bid, that if bid is by a partnership, all partners should sign; if by a corporation, the properly authorized officers must sign. It is plain that the bidder was a parinership. The award was to “C. K. Earle,” without specifying whether it was a partnership or an individual; but when we come to examine the presentation of a surety by the successful bidder it reads as follows:

“1 herewith submit the name of the surety company, authorized to do business in the State of New Jersey, which will become suretv on the bond, as called for in the notice to bidders, and these specifications, in the event that the contract is awarded to Me, 'and its certificate setting forth its authority and its consent to become surety on the bond.”

This is, on its face, the proffer of a surety by an individual and it seems plain to us that if the 'resolution should he upheld O. II. Earle would be entitled to present a surety bond covering only his acts as an individual and that, perhaps, the county would be bound to accept it.

These two considerations leave the contractual condition of the parties at least in such a state of dubiety as in our judgment to require this court to set aside the resolution.


text:
    DOMINIC ROSE, PETITIONER, DEFENDANT IN CERTIORARI, v. WAGNER CONSTRUCTION COMPANY, RESPONDENT, PROSECUTOR IN CERTIORARI.
    Argued November 7, 1923
    Decided March 3, 1924.
    Workmen’s Compensation — May the Commissioner Set Aside His Judgment Already Entered in County Clerk’s Office and Order a Retrial? Held, That He Has That Power.
    On certiorari.

    Before Justices Trenoi-iard and' Parker.
    For the prosecutor, Gollins & Gorlin.

    Eor the defendant, Morris W. Lielerman.

   Per Curiam.

This is a certiorari to the award of compensation by the deputy commissioner of labor. The fundamental question raised is whether that commissioner has jurisdiction to open a judgment entered by him and to order a retrial. Such was the action taken and, although the case has not been reheard, this writ was allowed. There may be some question as to whether certiorari in such a case will lie before final judgment on the rehearing; but we have deemed it better to consider this matter on its merits.

The petitioner was working at the Jersey City yards of the Erie Bailroad; Company when his leg was accidentally crushed in a turntable and had to be amputated. Claiming to be the employe of the Erie Bailroad Company, and on the theory that the injury had been sustained in interstate commerce, he brought suit in the federal court in New York under the federal statute. The trial of .that suit was apparently delayed and, while it was pending, he brought the present action under the Workmen’s Compensation act against both the Erie Eailroad Company and the Wagner Construction Company in the alternative. Those companies appeared for trial on the day set, and petitioner did not appear. The deputy commissioner, after granting an adjournment of a few hours, went on with the ease in the afternoon in the absence of petitioner. The Wagner Construction Company admitted that it was the employer and consented to the compensation award; the Erie moved for and obtained a dismissal. The deputy commissioner thereupon signed a judgment, which was entered as required by the statute in the county clerk’s office. The claim of Lie prosecutor is that the jurisdiction of the commissioner ended at this point. However, counsel for petitioner went after-wards to the deputy commissioner and obtained from him an order vacating his previous order for judgment and setting aside “all judgments entered in any court,” and placing the ease again ori the commissioner’s calendar for hearing. It is claimed that the deputy commissioner had no power to take this action and that the previous judgment should stand irrevocably, except as affected by right of appeal. It is also-claimed that after the judgment had been docketed or entered in the county clerk’s office the commissioner lost all power over it.

We cannot agree to the proposition that the commissioner’s power over his judgment ceased because it was docketed in the county clerk’s office. As we read the statute, it did not become a judgment at all until so docketed or entered, and its entry in the county clerk’s office- was no different from the entry of a judgment in the Court of Common Pleas or in the Circuit Court. That office is the depository of the records of both courts and, under the statute, of the disposition by the commissioner or deputy commissioner, of these compensation cases; so that if he had jurisdiction to open the judgment at ail the mere fact that it had been entered of record in the county clerk’s office would not affect that jurisdiction.

We are brought, therefore, to the question whether there was jurisdiction to open the judgment, and we conclnde that there was. It is argued for petitioner, by analogy, that the powers of district courts to open judgments and award a new trial indicate a similar power here. But it must be remembered that in the case of district courts there is a statutory authority in that regard. On the contrary, in the case of justices’ courts, it was plain that they had no power to award new trials, and it was for that- very reason that the Supreme Court was liberal in setting aside judgments of justices’ courts on certiorari in cases of surprise. A reading of the old decisions in Terhune v. Barcalow, 11 N. J. L. 40, 42, and of Combs v. Johnson, 12 Id. 205, will elucidate this point.

But we consider that the statute does confer power to open such judgments, if not expressly, yet by plain implication. Section 11 of the act of 1918, page 433, both in its form as there enacted, and as amended in 1921 (page 733), provides that “the judgment of the said bureau shall be final and conclusive between the parties, and shall bar any subsequent action or proceeding, unless reopened by the said bureau or appealed as hereinafter provided.” It is argued for the prosecutors that the subsequent portion of the statute contains no provision .with respect to reopening judgment and does contain provisions with reference to appeal, and that we should, therefore, conclude that, because there is no provision for reopening as thereinafter provided, there can be no reopening. Our reading of the statute leads to precisely the opposite result. Talcing the provision as a whole and in connection with its context, our construction of the same is that the clause “as hereinafter provided” refers to the appeal and not to the reopening; in other words, that a correct construction of the sentence calls for a comma after the word “bureau.” So read, there is, as we have just said, a plain implication of power to reopen, and this implication is in 'no way impaired by the previous provision in section 10 with respect to modifying awards of compensation.

We conclude, therefore, that the writ should be dismissed.


author: Pee Curiam.

text:
    LEO STEIN, RELATOR-APPELLANT, v. THE CITY OF LONG BRANCH ET AL., DEFENDANTS-APPELLEES.
    Argued November 8, 1923
    Decided March 3, 1924.
    Building Regulations — Municipalities—Zoning—Application for Permit, Requisites of — Peremptory Writ Allowed.
    On rule to show cause why a writ of mandamus should not issue requiring the building inspector of the city of Long Branch to issue permits for the erection of six dwelling-houses upon a tract of land owned by the prosecutor lying between Ocean avenue and the Atlantic ocean, having a frontage on the avenue of two hundred and ten feet and a depth of about six hundred feet.
    Before Justices Treno hard and Parker.
    For the relator-appellant, Howe & Davis.

    For the defendants-appellees, Robert 11. McCarter and Thomas P. Fay. .

   Pee Curiam.

The tract lies in a section which has for many years been devoted to large and expensive private residences, one of which, as wo understand the case, formerly stood on this very tract, but was destroyed by fire. The relator laid out his tract of land for subdivision by running a roadway down the middle of it and leaving on each side of this roadway three building plots, two of' which were one hundred and eighty feet front and the third one hundred and sixty feet front by eighty-five to ninety-five feet deep. His intention was to build a one-family house on each. Some of these houses were to he of the so-called bungalow type. It is conceded, or undisputed, that the plans filed met the requirements of the building ordinance of the city as then in force; but it appears that a zoning ordinance was then in contemplation and that the building inspector, while he received the plans without objection, held them without action thereon for some time, and finally turned them over to a committee on zoning-. This committee seems to have returned the plans to the relator stating that the applications were refused, and about a week thereafter the city passed a zoning ordinance which, if valid, will prevent the erection of more than one house on the entire tract now in question. It provides that in that section of the city all buildings should be erected on one lot of land one hundred and fifty feet front by two hundred and fifty feet in depth, should be two- and one-half stories high, and should cost not less, than $15,000, and that no-bungalow or one-and-a-half story buildings should be erected, and only one house on any lot as now laid out on Ocean avenue. These provisions seem to make it quite plain that the intention was to preserve the shore-front properties in their existing condition without reference to the desires of the owners, so that on this tract of about three acres the owner would be prohibited from building more than one house, that to cost at least $15,000, and to be, apparently, two and one-half stories high, neither more nor less.

Apart from the questions mooted with respect to the zoning ordinance, certain technical objections to the issue of this writ are made. The first is that by the act of 1917, page 102, it is provided that the department shall not receive or file any plans or specifications unless the same bear the seal of a licensed architect of the State of New Jerse3q or in lieu thereof, an affidavit sworn to by the person who drew or prepared the same. The facts are that the plans submitted by the relator .did not bear the seal of a licensed architect, nor were they verified by the statutory affidavit; consequently, it is argued that, although the inspector accepted his plans and made no objection thereto-, he acquired no right to have them favorably acted upon. On this point we think the act is merely directory, and that, to- all intents and purposes, the plans were received and filed, and that, inasmuch as it appears without question that the plans were actually made by a licensed architect who had a seal and merely neglected to put the seal on them, and as rhe point was never made until this action was begun, it ought not to prevail now.

Another technical objection is that no map of the lot subdivisions was hied in the connty clerk’s office. Certain statutes are cited, but we are unable to see that they require any such filing as a condition precedent to submitting plans or to building on the property. The evident intent of the act of 1913, page 119, is to prevent the dedication of public streets until the municipality has an opportunity to approve the layout. So, also, the act of 1917, page 768, forbids the filing of a map unless certain monuments are placed in the ground. Neither of these seems to be relevant to the present controversy. The situation of the prosecutor, therefore, at the time the zoning ordinance was enacted, was that of tire owner of real estate who desired to bnild upon it and had’ qualified himself to secure a permit in every respect except the immaterial one of having an architect’s seal on his plans. AYe think the subsequent passage of a zoning ordinance'did not affect this right. See Paffendorf v. Lyndhurst, 1 N. J. Misc. Rpts. 290 (No. 16).

But apart from this, the restrictive provisions of the zoning ordinance, as above quoted, we think are clearly unreasonable, and, therefore, unconstitutional. Handy v. South Orange, 118 Atl. Rep. 838; Dorison v. Saul, 118 Id. 691; Vernon v. Westfield, 46 N. J. L. J. 297.

The relator is entitled to a peremptory writ.


text:
    CARMINE PERCELLO, PROSECUTOR, v. OCEAN GROVE CAMP MEETING ASSOCIATION OF THE METHODIST EPISCOPAL CHURCH, DEFENDANT.
    Argued November 7, 1923
    Decided March 3, 1924.
    Licenses — 'Trades and Businesses of Municipalities — Special Charter of Ocean Grove Contains Power to Regulate Such Matters, Notwithstanding Its Territorial Boundaries Are Included Within Those of Neptune Township.
    On certiorari.

    Before Justices Trenchabd and Pabker.
    Eor the prosecutor, Charles E. Cook.

    For the defendant, Robert H. McCarter.

   Pee Curiam.

The question raised in this case is whether the Ocean Grove Camp Meeting Association could legally and constitutionally enact an ordinance relating to the licensing of trades, businesses, occupations and employments in Ocean Grove. Such an ordinance was passed and approved on January 19th, 1923, and the prosecutor, having failed or neglected to take out a license as required thereby, was sued for a penalty in the District Court of the First Judicial District of Monmouth County. Before the suit was tried he applied for and obtained the present writ, and as the attack made is upon the jurisdiction of the defendant to enact any such ordinance at all, and it consequently goes to the entire ordinance, the award of a certiorari before conviction was proper.

The territory over which the Ocean Grove Camp Meeting Association claims jurisdiction is within the boundaries of the township of Neptune. That township has a licensing ordinance also, and the prosecutor took out the desired license (which was to sell ice-cream cones) from the township authorities and paid the fee for the same. This ordinance was passed in 1915. In 1922 (Pamph. L., p. 351) the legislature passed an act entitled “An act respecting licenses in incorporated camp meeting associations,” which provides, among other 'things, that the board of trustees, directors or managers of any camp meeting association heretofore incorporated nncler the laws of this state shall have power to make, enforce, amend and repeal ordinances to license and regulate various, trades and industries, including peddlers and itinerant venders of merchandise. No question is raised but that the business of the prosecutor is covered by the purview of this act. The ordinance above referred to, as passed January 19th, 1923, specifically covers the business of dispensing ice-cream cones.

The reasons seem to be all directed to the power of the legislature to authorize the association to enact such an ordinance. They may be epitomized as follows: That the statute is unconstitutional as a special law respecting the internal affairs of Neptune township, and as also granting to the camp meeting association, as a private corporation, certain exclusive privileges; that it is, in effect, a delegation of police powers to a private association; that it purports to attach a religious test to municipal franchises; that the classification of camp meeting associations is illusory. Other reasons assigned are that the original character of the association in 1870 conferred no licensing powers; that the township of Neptune has exclusive powers; that two municipal corporations cannot occupy the same space at the same time; that the territory called Ocean Grove was never incorporated; that the charter of 1870 was repealed in 1879, and that any attempt to restrict the municipal powers of the township of Neptune is unconstitutional and void.

We incline to think this last reason is hardly pressed with seriousness. As to the others, the fundamental idea underlying all of them that are worthy of consideration is that camp meeting associations are not a legitimate class of ímmicipalities with respect to which legislation purporting to be general municipal legislation can be enacted.

If this be so, it seems strange that the invalidity and unconstitutionality of legislation affecting camp meeting associations as a class have not been discovered before. They have been treated by the legislature as a class in municipal legislation for many }rea.rs, in fact, sincé just after the constitution of 1875. Comp. Stat., p. 354, etc. In 1878 there was an act giving license powers to camp meeting associations (Comp. Stat., p. 358), including huckster's and peddlers of merchandise and provisions. This act was attacked in the case of Grover v. Ocean Grove Camp Meeting Association, 45 N. J. L. 399, but it is noticeable that the attack was not based on any question of special legislation and went solely to the powers contained in the body of the act in relation to liquor licenses, and this on the ground that the title of the act did not cover that point; and this, was what the court decided. Later, in 1887, came an act with regard to licensing of vehicles in camp meeting associations. Comp. Stat., p. 362. In 1894 there was enacted another act, conferring certain powers of government on the managers of camp meeting associations, by section 8 of which (Comp. Stat., p. 365) it is provided that everjr such board of trustees, directors or managers shall have full power and authority to make, establish and enforce ordinances regulating the granting of all licenses and fixing the fees to be paid therefor which, by any laws of this state now in force or hereafter passed, they may have authority to grant, and to fix and prescribe penalties for the violation of such ordinances, &c. This act was considered by this court in the case of Slocum v. Camp Meeting Association, 39 N. J. L. 110; and, again, it is noticeable that the question discussed and substantially the only question was whether the association could delegate to a magistrate the power to fix a fine for the infraction of an ordinance requiring a license to sell fruit. There seems to have been no hint on the part of either counsel or the court that the statute itself was an infraction of the constitution.

So far as relates to the status of Ocean Grove as a municipal corporation, we need go no further than to quote the language of the present Chief Justice in McCran v. Ocean Grove, 96 N. J. L. 161, where it was said that that corporation by its charter was constituted a body corporate and politic.

As an abstract proposition we think there is little or no merit in the attack on the constitutional status of the act now under consideration. But even if we were inclined to think it somewhat vulnerable in that regard, the existence of other acts in pari materia, unchanged for a period of nearly fifty years, should clearly turn the scale in favor of its support. Butler v. Commonwealth Tobacco Company, 74 N. J. Eq. 423; Commonwealth Roofing Company v. Riccio, 81 Id. 486, 489, and cases cited.

The writ will be dismissed.


text:
    IRA D. FULMER ET UX., PLAINTIFFS-RESPONDENTS, v. WILLIAM J. TEMPLE, DEFENDANT-APPELLANT.
    Argued November 8, 1923
    Decided March 4, 1924.
    Negligence — -Motor Vehicle — Injury to Pedestrian — When Both Driver and Pedestrian Stopped and Signaled the Other to Go Ahead and There is Evidence that Driver Was the Last to Signal, Jury Must Determine the Question of Negligence as well as of Contributory Negligence.
    On appeal.
    Before Gooiebe, Chief Justice, and Justices Mintubn and Black.
    For the appellant, William E. Holmwood.

    For the respondents, Martin P. Devlin.

   Per Curiam.

This was an action for personal injuries. The trial resulted in a verdict for $1,000 in favor of the husband and a verdict of $1,350 in favor of the wife. The plaintiff Ada Eulmer, on August 9th, 1921, was walking on West Hanover street, in the city of Trenton. When she reached the corner of that street and Willow street the defendant’s automobile was traveling south on the latter street. Mrs. Eulmer, who was in company with a friend, started to cross Willow street in front of 'the automobile. She stopped and the car stopped. The driver of the car, Mrs. Temple, motioned her to go ahead. She, in turn, motioned the car to come on, and, after signaling backward and forward, they apparently both started about the same time, and Mrs. Eulmer was nun down.

The first contention is that on these facts there should have been a nonsuit or the direction of a verdict, because there was no proof that the accident was the result of carelessness on the part of Mrs. Temple, the driver of the car, and also because the'plaintiff ivas guilty of contributory negligence. Apparently, both women became confused by reason of the interchange of signals. But there Avas evidence that the last signal Avas given by Mrs. Temple-^-that is, that she Avas the last one to signal the other AAroman to go ahead — and that fact makes it a question for the jury to say whether, having giA'en that signal, and the plaintiff having acted upon it, the former was not negligent in starting the car. And this is equally true with relation to the alleged contributory negligence of Mrs. Eulmer. Both of the questions Avere for the jury to deal with as questions of fact.

The only other question is whether the husband Avas liable for an injury resulting while his Avife was driving the car, which he owned, but he himself not being present. The proofs showed that his wife, Mrs. Temple (and apparently himself) lived with his mother-in-law, Mrs. Page, at her home, and that the car Avas kept there. There were in the car at the time of the accident not only.Mrs. Temple, but her mother and her sister, and they were out pleasure riding at the time of the accident according to Mrs. Temple’s testimony. The facts bring the case within, the scope of the doctrine of Missell v. Hayes, 86 N. J. L. 348, and that the husband having purchased the car for the pleasure of the family, and having authorized his wife to take it out whenever she wanted to for a pleasure ride, that makes him responsible under the doctrine of the case referred to.

The judgment of the Mercer County Court of Common Pleas is affirmed, with costs.


author: Per Criimt.

text:
    CARAVEL COMPANY, INCORPORATED, PLAINTIFF, v. INTERNATIONAL HIGH SPEED STEEL COMPANY, DEFENDANT.
    Submitted November term, 1923
    Decided March 4, 1924.
    Contracts — Whether Chairman of Board Had Power to Act for Corporation and if Not Whether Hisi Acts Were Ratified by Board, Question of Fact for Jury.
    On rule.
    Before G-tomere, Chief Justice, and Justices Mintuen and Black.
    For the plaintiff, Bilcler & Bilder.

    For the defendant, Richard J. Maclcay and Treacy & Hilton.

   Per Criimt.

The suit in this case was brought to recover damages for the breach of a contract dated on or about May loth, 1920,' by which the defendant agreed ro sell to the plaintiff one thousand assorted gross tons of square corrugated 'concrete reinforcing steel bars, at the agreed, price ranging from $4.25 to $4.50 per one hundred pounds, depending upon the size, iSre. The trial resulted in a verdict for the defendant. The plaintiff obtained a rule to show cause and writes down twelve reasons for a new trial. The case is one wholly of-fact. It seems to turn upon two' points — first, had William Garrow Fisher, chairman of the board of directors of the defendant company, power to act, and if not, second, did the company ratify his acts, and this point grows out of a meeting between a Mr. Horowitz representing the plaintiff and a Mr. Gillette representing the defendant. These two questions were submitted to the jury by the trial judge as questions of fact. We see no reason why the findings of the jury should be disturbed. Eeasons eight to twelve, inclusive, are criticisms of the action of the trial court. While they are the subject of just criticism and cannot be approved, we cannot say, however, they prejudiced the plaintiff's case before the jury-

The rule to show cause is discharged.


text:
    CELIA BILLET, PLAINTIFF-RESPONDENT, v. PENNSYLVANIA FIRE INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Argued November 8, 1923
    Decided March 4, 1924.
    Insurance — Motor Vehicle Theft — Locking Device Endorsement —Device out of Commission at Time of Theft Not Grounds for Avoiding Payment — No Evidence of Value of Car— Court Directed Verdict for Full Amount of Policy — New Trial as to Measure of Damages Only.
    On appeal.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For the appellant, Vanderbilt & Hedden.

    For the respondent, William E. Holmwood.

   Per Curiam.

The suit in this case was brought to recover the value of a BuLek car, which had been stolen, under a policy number 89161, to which had been attached an automobile locking device endorsement, which provides that the insured undertakes during the currency of the policy “to use all diligence and care in maintaining the efficiency of said locking device [ a Tilt-Locking device] and in locking the automobile when leaving the same unattended.” It was shown that the car lock had been out of commission fox at least two weeks before the date of the theft, and that the plaintiff’s husband had left the car in that condition when it was stolen. It is contended by the defendant that this avoids the policy as a matter of law. We think not. This under the evidence was a question of fact for the jury, and it was not error for the trial court not to direct a verdict in favor of the defendant!

The policy of insurance states “the amount of insurance twenty-eight hundred dollars ($3,800).” The trial judge treated this as a valued policy and. directed the jury to find a verdict for the plaintiff for the sum of $3,800. There was no evidence as to the value of the stolen car. This we think was error. Flanagan v. Camden Mutual Insurance Co., 25 N. J. L. 506; Savarere v. Hartford Fire Insurance Co. (New Jersey Court of Errors and Appeals), March 3d, 1934 (No. 56). As the only question with reapect to which the judgment is found to be wrong is the measure of damages, the new trial will be limited thereto. Young v. Society, &c., 91 L. 310. The judgment is reversed and a venire de novo awarded, but limited to the question of damages only.


text:
    MARY C. LEUBUSCHER, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Submitted November term, 1923
    Decided March 4, 1924.
    Negligence — Motor Vehicle Accident — Judgment for Plaintiffs Sustained.
    On rule.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    Eor the plaintiffs, Kalisch & Kalisch.-

    Eor the defendant, Leonard J. Tynan.

   Per Curiam.

This suit was brought to recover damages for personal injuries, loss of personal property and damage to an automobile. The trial resulted in a verdict for the plaintiff Aurelia L. Leubuscher for $1,500; Frederick C. Leubuscher, $300, and May C. Leubuscher, $220. The defendant obtained a rule to show cause and writes down nine reasons for a new trial.

We think it would serve no useful purpose to discuss these reasons in detail. Our examination of the record and the briefs lead us to the conclusion that the issues involved were fully and fairly tried out; that the verdicts were supported by the evidence. The rule should be discharged.


text:
    LEONARD BAUS AND JAMES MEANEY, PLAINTIFFS, v. TRENTON AND MERCER COUNTY TRACTION CORPORATION, DEFENDANT.
    Argued November 7, 1923
    Decided March 4, 1924.
    Negligence — Motor Vehicle Collision With Street Car — Competency of Examination of Medical Witness — Judgment Affirmed.
    On appeal.
    Before Gummerb, Chief Justice, and Justices Mint urn and Black..
    For tlio plaintiffs, Martin F. .Devlin.

    Por the defendant, Kaizenbacli cC Hunt-.

   Per Curiam.

The trial in this case resulted in a verdict for the plaintiff Leonard Bans for $15,000, and for the plaintiff James Meanev for $255. On April 22d, 1922, James Meaney was driving an auto delivery truck on South Clinton avenue. Trenton, and while turning the truck in the street it was struck by car No. 168 of the defendant company, causing the injuries sued for. The plaintiff Leonard Baris was by imitation riding in the truck with James Meaney, as driver. The defendant company files six grounds of appeal in each case, which are identical, and a seventh ground of appeal in the Bans ease. First, error in overruling two questions to the plaintiff Edward Bans. These called for conclusions and were properly overruled. To the first question there was an objection but no exception (at pp. 117, 121). To the witness Martin W. Reddan, “Now, doctor, what marked and familiar symptoms of paralysis agitana is there which does not exist in Mr. Bans’ case?” This question was competent, but it is not injurious error. Pamph. L. 1912, p. 382, § 27. The doctor testified (at p. 150) the plaintiff is not suffering from paralysis agitans. It did not affect the substantial rights of the defendant. The question to the witness Edward J. Pear^ tree, what are the rules of the defendant company with respect to employes making a report of accidents? This is immaterial.

Second, the witness Martin W. Reddan was permitted to answer the following question: “Assuming that this man’s memory were good before the accident, and normal, will you say he is able to recount with a fair degree of aecurac3r at this time the things that happened at the accident,” to which the witness replied, “I don’t think he is competent to giv6 accurate answers.” The plaintiff had already testified that his memory was poor since the accident, and this was corroborated by his wife. This was not error.

Third, error in denying defendant’s motion for a non-suit. Properly denied. Questions of fact involved.

Eourth, error in overruling defendant’s offer to produce and prove a written statement of the accident made by the operator of the defendant’s trolley car. This was clearly incompetent. It requires no discussion.^

Fifth, error in permitting a witness Jennie Martin, when called in rebuttal, to be asked a question which she had answered in direct examination. This was discretionary with the trial court.

Sixth, error in permitting plaintiff’s attorney to state that he wanted the jury to render- a verdict of $15,000 for the plaintiff Leonard Baus. This was not error.

Seventh, error on the part of the trial court discharging a rule to show cause. This needs no discussion.

The judgment of the Mercer County Court of Common Pleas is affirmed in each case,'with costs.