text:
    IRING D. EASTMOND, BY BENNIE B. EASTMOND, HIS NEXT FRIEND, AND BENNIE B. EASTMOND, INDIVIDUALLY, PLAINTIFFS, v. HARRY B. WACHSTEIN, DEFENDANT.
    Decided November 19, 1926.
    Negligence—Injury to Boy Less Than Nine Years Old While Crossing Street, Caused by an Automobile—Court’s Denial of Nonsuit on Ground of Contributory Negligence Sustained —Boy was Not Required to Exercise Same Degree of Care as an Adult—Question of Contributory Negligence in Cases of Injury to Persons of That Age Usually One For Jury— No Error in Charge That “It is the Duty of the Driver of An Automobile to Use Reasonable Care to Avoid Injuries to Others, and it is a Breach of That Duty to Fail to Stop the Machine or Slacken Its Speed When That is the Only Way in Which Injury to Others Can be Avoided.”
    On defendant’s rule to show cause.
    Before Gummeee, Chief Justice, and Justices Kalisoh and Campbell.
    For the rule, Congleton, Stallman & Hoover (Charles W. Weeks, of counsel).
    Contra, James W. Gillespie (Perkins & Drewen, of counsel).
   Pee Cueiam.

There was a verdict in the Hudson Circuit for the infant plaintiff for the sum of $5,000 against the defendant, and a verdict ^against the latter for $1,500 in favor of the infant plaintiff’s mother.

The infant plaintiff at the time he met with his injury was eight years and six months of age. On the 25th of February, 1924, in the neighborhood of six o’clock in the afternoon, while in the act of running across Kearny avenue, a much frequented public highway, forty-eight feet in width, between the curbs, in the town of Kearny, he was struck and seriously injured by an automobile operated by the defendant along the avenue.

There was proof that the infant plaintiff had almost crossed the highway, and had only a few feet more to reach the sidewalk, when he was run into by the defendant’s automobile and knocked down. There was also testimony to the effect that the automobile was being driven along the highway at an excessive rate of speed, estimated to have been between twenty-five and thirty miles an hour; that though the defendant immediately applied the brakes when he discovered the boy, the car sped on for a distance of twenty-five feet from the place of impact before it was halted.

This was the phase of the plaintiff’s case when it was rested. On behalf of the defendant, a motion for a nonsuit was made upon the ground that the plaintiff was guilty of contributory negligence, which motion was denied.

The refusal to grant a nonsuit was proper. There was nothing appearing in the testimony, on part of the plaintiff, which would have warranted the trial judge to have taken away from the decision of the jury the question whether, under the conditions then existing in the public highway, the infant plaintiff exercised that degree of care reasonably to be expected of a child of his age, intelligence and experience.

He was not required, as a matter of law, to exercise the same degree of care and caution to avoid injury as is required of adults under similar circumstances. 29 Cyc. 535. In Fitzhenry v. Consolidated Traction Co. (Court of Errors and Appeals), 64 N. J. L. 674, No. 2 of the syllabi reads: “In actions for injury to a child of that degree of responsibility, when so crossing a street railway, the question of contributory negligence is generally one for the jury, but when it appears beyond dispute that the child in its attempt to cross acted in entire disregard of the degree of prudence which may reasonably be expected from one of his years, and has thereby contributed to the collision that caused the injury, then, the question, contrary to the usual rule, becomes one for the court.”

In the present case it is argued, on behalf of the defendant, that since it appeared on the plaintiff’s case that the infant plaintiff had been cautioned by his mother of the danger to be encountered by automobile vehicles in crossing Kearny avenue, which he crossed in going to and from school, at least four times daily, he was made fully aware of the danger to be apprehended in crossing the avenue, and, hence, when he saw or could have seen the offending automobile approaching at the time it reached Locust avenue, a distance of more than two hundred feet away from the point where -he started to run across the street, his conduct in that regard was per se negligent, and, as such negligent act contributed to his injury, he was debarred of the right to a recovery. This contention is palpably unsound. It is a matter of common knowledge that there is hardly ever a time when an automobile cannot be seen "approaching on the public street from one direction or another. What was said in Newark Passenger Railway Co. v. Block, 55 N. J. L. 605, by Mr. Justice Magie, speaking for the Court of Errors and Appeals (at p. 613), is pertinent here: “Its claim is that such observing must be extended to any approaching car, no matter how distant. But this is obviously an exaggerated notion of the duty required. The most prudent man would never suppose himself required to thus observe. If such a rule or duty were adopted and practiced in a crowded city, the crossing "of many streets would be barred to pedestrians for a great part of the time. The general rule to which we have recurred does not justify this excessive view of the duty required. It will require one crossing the roadway on foot to extend his observations only to the distance within which vehicles proceeding at customary and reasonably safe speed would threaten his safety.”

The fact that the infant plaintiff could have seen the car approaching at the time he was crossing the avenue was only a circumstance which must be considered with other circumstances present as to whether or not he exercised that degree of care or caution that could be reasonably expected from a child of his age.

In Consolidation Traction Co. v. Glynn, 59 N. J. L. 432, the plaintiff, an adult, who was afflicted with deafness, but who saw a trolley car coming about three hundred feet away, before he started to leave the sidewalk and cross the street, Mr. Justice Yan Syckel, speaking for the Court of Errors and Appeals (at p. 433), said: “The company had no right to propel its cars at such a rate of speed as was incompatible with the safe and customary use of the street by others who have equal rights with the company upon it. It was therefore a question of fact for the jury to settle whether the plaintiff, in the exercise of reasonable prudence and caution, should have apprehended that the car was coming at a high rate of speed that it would reach him before he cleared the tracks, and to determine whether a prudent man, with the right to presume that the company would exercise due care on its part, would have proceeded to cross the street under the circumstances presented on behalf of the plaintiff." And, so, here the defendant had no right to propel his automobile at such a rate of speed as was incompatible with the safe and customary use of the street by others, a,nd the infant plaintiff was under no legal duty to apprehend that the ear was coming at such a high rate of speed that it would reach him before he reached the sidewalk.

After the close of the entire case a motion was made on behalf of the defendant that a verdict be directed in his favor upon the same ground as was advanced for a nonsuit. This motion was denied, and, we think, properly so. The burden of establishing that the plaintiff was chargeable with negligence contributing to his injury was on the defendant. We percieve nothing in the testimony of the defendant which disclosed a legal bar to the submission of the questions of negligence and contributory negligence to the decision of the jury-

Next, it is urged that the verdict is contrary to the charge of the court and against the weight of the evidence. We find this assertion to be devoid of merit.

Lastly, it is argued that the court erred in charging the plaintiff's request: “It is the duty of the driver of an automobile to use reasonable care to avoid injuries to others, and it is a breach of that duty to fail to stop the machine or slacken its speed when that is the only way in which injury to' others can be avoided.”

We perceive no error in this instruction to the jury. The criticism made on this excerpt of the court’s charge is that it placed upon the defendant driver an absolute duty to slacken the speed of the car or to stop it so as to avoid an accident without regard to the conduct of the plaintiff. But a plain reading of the entire charge shatters this contention.

The rule to show cause is discharged, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SIMON SCHMIDT, PLAINTIFF-APPELLANT, v. IDA A. KYLE AND PAUL KYLE, DEFENDANTS-RESPONDENTS.
    Decided November 19, 1926.
    Attachment—Trial Judge on Motion Set Aside the Writ, the Only Question Before the Court Being the Sufficiency of the Affidavit Upon Which the Validity of the Writ Rested —Held, on a Motioh to Quash, the Court Will Not Consider the Validity or the Justice of the Plaintiff's Claim—Order Quashing Writ Set Aside.
    ■On appeal from the Essex County Circuit Court.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the appellant, Corn & Silverman.

    For the respondent, James R. Nugent.

   Per Curiam.

At the instance of the plaintiff-appellant here, a writ of attachment was issued out of the Essex County Circuit against the defendants, Ida A. Kyle and Paul Kyle, husband and wife, and respondents here. The basis of the attachment is an affidavit of the plaintiff, which affidavit, in substance, states that Ida Kyle and Paul Kyle are not, to their knowledge or belief, resident in the State of New Jersey, and that they owe to the affiant $900, as nearly as can be specified. Real estate owned by Ida A. Kyle was attached under the writ. The printed ease does not disclose that any proceedings were taken after the return of the writ, namely, notice of the attachment by" publication as required by section 20 of tbe Attachment act (1 Comp. Stat., p. 142), in cases where no appearance has been entered. No appearance was entered on behalf of either of the defendants. Notwithstanding, five weeks later, after the issuance of the writ, the complainant filed his complaint, setting forth as his demand, as in an ordinary action at law. On the 29th of September, 1924, the defendants obtained a rule to show cause before the Essex County Circuit Court why the writ of attachment should not be set aside and for nothing holden. The order was based upon affidavits made by the defendants, Paul and Ida A. Kyle. These affidavits bear date September 9th, 1924. They deal solely with the meritorious question as to whether the defendants or either of them are or is indebted to the plaintiff. Without asking permission to specially appear, defendants’ counsel gave notice of a motion to the plaintiff’s attorneys that he would move to set aside the writ of attachment for the following reasons—first, the action is based upon a contract purporting to be made by four joint debtors, two of whom reside in New Jersey; second, the suit is for unliquidated damages; third, the defendants are not parties to the contract upon which the attachment is based; fourth, the defendants have incurred no liability to the plaintiff and are'not indebted to him in any amount.” The notice also contained the following: “Take notice, that a certified copy of the record of the contract, the basis of the attachment [the original being in the plaintiff’s possession], and the pleadings and other papers filed in the above-stated cause, as well as the papers filed in the office of the clerk of this court, in the case of Simon Schmidt v. William Koch, Winifred Koch, Ida A. Kyle and Paul Kyle, will be used upon the argument of the rule to show cause in this case.”

Upon the return of the rule to show cause the trial judge heard the testimony of one William A. Koch as to the merits of the transaction between the attaching creditor and the defendants in attachment. It is true that the counsel of defendants made no objection and participated in the examination, nevertheless, it cannot be overlooked that the examination into, and trial of, the merits of the case was without precedent and without the jurisdictional power of the court.

As a result of the proceedings had before him the trial judge decided that the writ of attachment must be set aside. The only question properly before the court was the sufficiency of the affidavit upon which the validity of the writ rested.

In Anspach v. Spring Lake, 58 N. J. L. 136, Mr. Justice Dixon, speaking for the Supreme Court (at p. 138), says: “But in the more recent eases, the true rule seems to have been uniformly declared to be, that on a motion to quash the court would not consider the validity or justice of the plaintiff’s claim, and so try in a summary and collateral investigation the main issues between the parties.”

In Woods v. Southern Life and Trust Co,, 87 N. J. L. 202, Mr. Justice Swayze, speaking for the Court of Errors and Appeals (at p. 204), says: “Ordinarily,” as was said by the Supreme Court in Anspach v. Spring Lake, supra (at p. 138), “the validity of the claim should not be tried on a motion to discharge the defendant or his property from a suit.” To do so deprives the 'plaintiff of his right to trial by jury in case the claim is contested, and it would require a clear case of abuse of the process of attachment to justify the court in interfering in this summary way. The learned judge then points out that where it clearly appears “that the only question involved is a question of law, and the law has been settled adversely to the plaintiff, the court may quash the writ.”

Now, this does not appear to be so in the present case, for the learned judge in his oral decision makes it plain that whether William A. Koch, who signed the contract out of which the plaintiff’s claim arose, was the attorney in fact of the defendants was a factual question and he decided it as such.

The order quashing the writ of attachment is set aside, with costs.


text:
    ELIZABETH BERGLUND, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF RUTH BERGLUND, DECEASED, PLAINTIFF-RESPONDENT, v. HENRY HILD AND ARTHUR HILD, DEFENDANTS-APPELLANTS.
    Decided November 19, 1926.
    Negligence—Death Finally Resulting From an Automobile Accident Caused by the Upsetting of the Car in Which Plaintiff’s Decedent, an Invitee, was Riding—Question of Negligence of Driver of Car was One For Jury—Whether His Car was Hit by Another, as Well as Whether Plaintiff’s Decedent Died as the Result of Accident or From Other Cause, Also For Jury.
    On appeal from the Hudson County Circuit Court.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Por the appellants, McDermott, Enright <& Carpenter.

    Por the respondent, Margolies & Manetti {William E. Decker, of counsel).
   Per Curiam.

There was a verdict in favor of the plaintiff below against the defendants below for the sum of $4,975 in the Hudson County Circuit Court, and judgment having been entered on the verdict the defendants appeal from such judgment upon two grounds—first, that the court erred in refusing to grant defendants’ motion for nonsuit; second, refusal of the court to grant defendants’ motion for a direction of a verdict in favor of the defendants. The action wás brought under the Death act and resulted in the judgment as above stated.

The refusal of the motion to direct a verdict for the defendants is the only ground of appeal argued in the brief of counsel of appellants, and we gather from the brief that the ground of appeal based upon the refusal of the court to grant a nonsuit is abandoned. It is considered in appellants’ brief that Janitschek’s testimony, standing alone, might have been -sufficient to take the case to the jury. This concession is further emphasized by the grounds advanced by the defendants for a direction of a verdict in their favor, which grounds are set forth in appellants’ brief and are made the basis of the appellants’ contention, that the court committed legal error in refusing to direct a verdict for the defendants. The grounds urged for such direction, and repeated here, áre-—first, that it now appears conclusively that the cause of the upsetting of appellants’ car was the blow that it received ,on the left rear wheel and fender from another car; second, that Ruth Berglund recovered from the injuries she received in the accident, and that her death was not due to the accident, but to chronic endocarditis.” It appears that the trial judge, at the time he denied the motion, stated to counsel that it was a jury question and that he may have an exception. The record does not show that an exception was taken to the ruling. But be that as it may, the attempt is made to argue the case as if it were before us on a rule to show cause. The questions argued related to matters of fact which were for the jury’s determination.

A brief summary of the facts is, that the deceased was an invitee, riding in the appellants’ car; that Henry Hild, one of the appellants, was driving the car; the night was dark; the headlights of the automobile were lit; Janitschek, who was a passenger in the car, says that the car was being driven very fast; that h'e spoke to Hild not to drive so fast'; that the latter paid no heed to the request. Janitschek then says: “Just before we got to the turn, I should judge about thirty or forty feet before we got to the turn, we were going pretty fast, and Mr. Hild happened to notice the turn and he said, ‘Oh, my God! I can’t make it,’ and he put on his brakes * * *. Well, the car skidded, and when it got to the turn Mr. Hild tried to make the turn, the left turn, and the car was still going at such a speed that it left the road and it went over.” The defense was, testimony of Hild, the driver of the car, that when he came to the curve he saw the light of another automobile coming in the opposite direction and he applied his brakes “and edged to the right and sort of got off the road to give the other car room to go by, and as 1 did so he struck the rear left wheel” and this caused the car to upset. This alleged fact appears from the testimony of other witnesses to have been in dispute.

Whether the plaintiff’s decedent died as a result of the injury she received in the accident was also a jury question. The decedent had been a sufferer before the accident fropa endocarditis, and the physician who attended her was asked: “Would you say that the endocarditis would have been sufficient to produce the physical decline which resulted in death ?

“A. No. I think Ruth would have been alive to-day if it had not been for the injuries received.”

The views herein expressed lead to the conclusion that the judgment should be affirmed, with costs.


text:
    THE STATE v. HAROLD BERRY.
    Decided November 20, 1926.
    Crimes—Manslaughter—Gross Negligence in Driving Motor Vehicle Resulted in Death of Driver’s Passenger—Clearly a Jury Question to Determine Whether the Car was Being Driven With Gross Disregard For the Safety of Others— Verdict Not Against Weight of Evidence—No Error in Judge’s Charge.
    On error to the Essex Quarter Sessions.

      Before Gummbbe, Chief Justice, and Justices Trenchakd and Mintubn.
    Eor the plaintiff in error, John W. McOeehan, Jr.

    For the state, John 0. Bigelow, prosecutor of the pleas.
   Per Curiam.

The defendant was convicted upon an indictment charging him with manslaughter. He was driving an automobile along High street, in the city of Newark, in which the decedent, one Wilson, was a passenger. His car collided with another automobile, and then ran across the sidewalk to and against a building standing there, with the result that Wilson received a fracture of the skull, causing death.

The first ground upon which we are asked to set aside this conviction is that the trial court erroneously refused to direct a verdict of acquittal at the close of the state’s case, and also refused a motion for such direction at the close of the whole case. This contention seems to us to be without merit. The testimony clearly made it a question for the jury to determine whether the defendant was driving his car in such a way as to exhibit a gross disregard for the 'safety of himself and his passenger.

It is further argued that, if it be considered that the case was one for the jury, the verdict of conviction was against the weight of the evidence. Our examination of the testimony leads us to the opposite conclusion.

The only other grounds upon which the plaintiff in error relies for a reversal of the judgment are directed at the charge to the jury and at the refusal of the trial court to charge certain requests submitted on his behalf. Our examination of the instructions complained of leads us to the conclusion that they are without legal support. As to the requests to charge: We think that they were charged in substance, so far as the plaintiff in error was entitled to have the matters referred to therein submitted to the jury; but, if we had reached the opposite conclusion, we would not feel justified in reversing this conviction. The case comes before us under the one hundred and thirty-sixth section of the Criminal Procedure act. That section provides that a person convicted of a criminal offense who sees fit to take advantage of the privileges and benefits conferred by the statute shall not be entitled to a reversal of a judgment given upon any indictment “for any error except such as shall or may have prejudiced the defendant in maintaining his defense upon the merits.” If it be assumed that there was error in the refusal to charge the requests submitted, we are entirely satisfied that such error could not have prejudiced the defendant in maintaining his defense.

Our examination of the charge itself leads us to the conclusion that it is not erroneous as to any of the matters referred to in the assignments of error. But, if we had found otherwise, we should not consider that the conviction under review should be reversed for that reason. As has just been stated, only such errors as or may have been prejudicial to the plaintiff in error in maintaining his defense will justify a reversal; and the alleged errors in the charge, that are relied upon by counsel, are none of them of that character.

The judgment under review will be affirmed.


author: Pee Cueiam.

text:
    PESHINE REALTY COMPANY v. JOHN G. SCOTT, BUILDING INSPECTOR, ET AL.
    Decided November 20, 1926.
    Zoning—Stores in Residential Section—Case Within the Nutley Case, Ignaciunas v. Risley—The Appeal to the Local Board of Adjustment was Taken Before the Passage of the Act of 1926, Giving General Powers to the Board—Mandamus the Proper Remedy.
    On demurrer to return to an alternative writ of mandamus.

      Before Gummere, Chiee Justice, and Justices Treitchard .and Mintuen.
    Eor the relator, Saul & Joseph E. Cohn.

    Eor the defendants, Walter C. Ellis.

   Pee Cueiam.

The relator applied to Scott, the building inspector of the city of East Orange, for a permit allowing the erection of a two-story brick structure, containing four stories on the first' floor and two living apartments on the second floor, upon a piece of property owned by it, fronting upon Park avenue, in •that city. The inspector refused to issue the permit upon the sole ground that the zoning ordinance of the city prohibited the erection of such a building in that part of the-municipality in which the relator’s lot was located. The relator then appealed to the board of adjustment of the city, and that body affirmed the action of the inspector, and for the reason upon which his refusal was based. An alternative writ of. mandamus was then prayed for and allowed.

On the facts recited, which are admitted in the return to the alternative writ, we are of the opinion that the refusal to issue the permit was without legal justification, and that, under the doctrine of the Nutley case, a peremptory writ should issue.

It is suggested that proper procedure would require the relator to sue out a certiorari to review the action of the board of adjustment instead of applying for a mandamus against the building inspector. It, however, has been decided in the cases of Losick v. Binda, 3 N. J. Mis. R. 420, and Lutz v. Kaltenback 4 N. J. Adv. R. 341, that boards of adjustment have no power to pass on the legality of the action of the building inspector, and that their attempt to do so is a mere nullity. This being so, the present procedure was proper, as was held in the cited-cases.

The application for the permit, its refusal, the appeal to the board of adjustment, and the action of the latter on that appeal, all of them took place before the enactment of chapter 315 of the laws of 1926, page 526; and, consequently, that statute—which vests in boards of adjustment general powers of review in cases of appeal of the action of building inspectors—has no application to the present proceeding.

A peremptory writ will issue, commanding the building inspector to grant the permit applied for.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. FRANK DUNN, PLAINTIFF IN ERROR.
    Decided November 24, 1926.
    Crimes—Seduction—There was Requisite Proof of Pregnancy— Also Testimony of Negative Nature of Complaining Witness’ Reputation For Chastity—Testimony Presented a Jury Question.
    On writ of error to the Mercer Sessions.
    Before G-ummbbe, Chief J usticb, and Justices Trenchard and Minturn.
    For the plaintiff in error, Romulus P. Rimo.

    For the defendant in error, William, II. Geraghty.

   Pee Cueiam.

The defendant was convicted of seduction, and sentenced to the reformatory. The reasons assigned for reversal are that there was no corroboration of the complaining witness as to pregnancy, and no legal proof adduced to the complaining witness’ good repute for chastity.

It must suffice to state that the requisite proof of pregnancy was amply supplied by the circumstances of the case. Such proof, while circumstantial in character, under the rules of evidence, is sufficiently convincing where it is otherwise free from reasonable doubt.

Witnesses testified to the good reputation of the prosecutrix for chastity, but on cross-examination admitted that they had never heard her reputation in that respect discussed. It has been held that even negative proof of that character affords some evidence of reputation, which, in the absence of proof of a mere positive character, is sufficient to create a presumption that her character is at least normal. 1 Phil. Ev. 470; 40 Cyc. 2198, and cases; State v. Brown, 64 N. J. L. 418.

The testimony adduced presented a jury question, and the case was properly submitted to them. The judgment of conviction should be affirmed.


author: Pee Oueiam.

text:
    FREDERICK J. SCHAFNACHER v. GRAY BUS LINE, INCORPORATED, AND PUBLIC SERVICE RAILWAY COMPANY.
    Decided November 24, 1926.
    Negligence—injury to Passenger of Motor Bus in Collision With Trolley Car—Verdict in Favor of Trolley Company and Against Bus Company For $11,000—Facts Considered, and Award Held Excessive—Reduced to $7,000 or New Trial Ordered.
    On rule to show cause.
    . Before Gtjmmere, Chief Justice, and Justices Trenchard and Mixturx.
    For the rule, Freeman Woodbridgc.

      Contra, Charles A. Rooney.

   Pee Oueiam.

The action was tried in the Middlesex Circuit before the court and jury, where a verdict was rendered in favor of the defendant Public Service Eailway Company, and against the Gray Bus Line, Inc., for $11,400, which then obtained this rule.

The plaintiff was riding as a passenger in a bus of the Gray Bus Line, Inc., on the right side of the road. In order to avoid a pile of sand in the road, the bus was swerved to the left on a single line of trolley tracks, located in the middle of the road, and then proceeded to return to the right of the road, and had about cleared the tracks when the rear end of the bus came in collision with a trolley car, approaching from the opposite direction. The collision took place about midnight, upon a stormy night. There was evidence that the trolley car had come to a complete stop, but, apparently, owing to weather conditions, had been drifting on the tracks when, due to the sudden turning of the bus, the collision occurred. It is urged that the Gray Bus Line, Inc., was not negligent under the circumstances, but that, manifestly, under the settled rule, presented a jury question.

It is finally argued that the damages are excessive. The plaintiff, twenty-four years of age, was employed as a clerk at the monthly wage of $116.70, and received a weekly income of $35 as a baseball pitcher. He received severe injuries which are recounted seriatim in the testimony, from the effect of some of which he has not yet recovered. He has expended in an effort to be cured over $1,000, and has lost, from inability to work, over a similar sum. The verdict thus represents about $9,000 for his pain and suffering and inability to labor.

Our review of the testimony leads us to conclude that the verdict is excessive, and that it should be reduced to the sum of $7,000. If the plaintiff will agree to accept that sum in satisfaction of the verdict, the rule will be discharged; if he decline so to do the rule will be made absolute upon the question of damages only.


text:
    JAN PESANT v. PHILTON KRAMER.
    Decided November 24, 1926.
    Negligence—Injury to Pedestrian by Motor Vehicle While Waiting For Trolley Car—Conflict of Testimony Properly Submitted to Jury, Who Must Determine.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Por the rule, Ward & McGinnis.

    Contra, Kellogg & Chance.

   Per Curiam.

The action was • tried in the Passaic Circuit before the court and a jury, and the verdict went for the defendant, the plaintiff obtaining a rule to show cause.

The plaintiff brought this action to recover for injuries caused by being run into by the defendant’s motor car, while the plaintiff was standing in the highway at Broadway and Fifty-fourth street, in East Paterson, at five-thirty 'A. m., waiting for a trolley car. The only reason advanced by the plaintiff in support of the rule is that the verdict is against the weight of the evidence.

The plaintiff’s evidence was that he was standing on the side of the road, off the amicite, when he saw the defendant’s approaching car four hundred feet away; that he was looking in the opposite direction for a trolley car, and that without warning he was hit in the back by the defendant’s auto, causing the injuries complained of.

The defendant’s evidence was that he was proceeding with his car at ten miles an hour on the right side of the road; that he saw the plaintiff when five hundred feet away, and blew his horn when one hundred feet away; that he again blew his horn when fifty feet away, and that when he was about to pass, the plaintiff suddenly stepped to the left and into the mud guard of the defendant’s car, thereby sustaining the injuries alleged. That situation, manifestly, presented a question of fact, and under the well-settled rule was for the jury to determine.

The rule will be discharged.


text:
    CLARA REITHEL AND WILLIAM REITHEL, PLAINTIFFS, v. JOHN FRANK, DEFENDANT.
    Decided November 24, 1926.
    Negligence—Automobile Collision—Question of Excessive Damages Only—Facts Considered and Held Not Excessive.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Frank Q. Turner.

    Contra, Francis A. Cordon.

   Pee Cueiam.

The only question presented and argued in the brief of the defendant’s counsel is, that a verdict obtained by Clara Eeithel, the female plaintiff, against the defendant in this court, at the Union Circuit, for the sum of $41,000 for injuries suffered by her through defendant’s negligence, is excessive, and that a verdict of $1,900 obtained in the same action by William Eeithel, husband of the female plaintiff, for damage done to his automobile and for loss of consortium and for moneys expended by him for doctors, nurses and medicine incurred by reason of injuries sustained by his wife, due to the defendant’s negligence, is also excessive.

The automobile in which the female was riding collided with the defendant’s automobile. The liability of the defendant to respond to the plaintiffs in damages is not denied.

From the testimony it appears that though the plaintiff, prior to the accident, was suffering from nervous condition, she was in other respects in the enjoyment of good health; that she was able and did perform her household duties. She is forty-two years of age. At the time of the accident she was enceinte. As a result of the collision she had a severe hemorrhage and a miscarriage; she was in bed six weeks and was kept indoors in the neighborhood of two months; she suffered a falling of the stomach, which ailment requires the constant wearing of an abdominal support; that she has been, and still was, incapacitated from performing her household duties, and that her nervous condition has been greatly augmented. We are not prepared to say that taking into consideration the altered physical condition and the pain and suffering she had endured that the award of the jury is excessive.

We are also of the view that the verdict in favor of the husband is not excessive. He paid $100 for medical attendance upon his wife; $40 for medicines and $145 for repairs to the automobile. In addition to these expenditures the jury could properly take into consideration the additional outlays that the husband would probably be put to by reason of the continued ailments of his wife, and, moreover, to compensate him for the loss of the society, comfort and assistance of his wife.

The rule to show cause is discharged, with costs.


text:
    EMMA EDER AND WILLIAM EDER v. PUBLIC SERVICE RAILWAY COMPANY.
    Decided November 24, 1926.
    Negligence—Injury to Passenger of Trolley Car Through the Breaking of a Strap—Excessive Damages Only Question— Facts Considered and Rule Discharged.
    On rale to show cause, Essex Circuit.
    Before Gummere, Chiee Just toe, and Justices Tren chard and Minturn.
    For the rule, Joseph Coult.

      Contra, Heine, Bradner & Laird.

   Per Curiam.

The action was brought in the Essex Circuit by plaintiff and his wife to recover damages for injuries caused by the breaking of a strap in defendant’s trolley car, on October 4th, 1924, while the plaintiff was traveling as a passenger therein. The husband joined in the action for consequential damages. The jury rendered a verdict for the wife for $2,000, and in favor of the husband for $1,729. The only reason urged in support of the rule is that both verdicts are excessive.

The plaintiff has been suffering from mucus colitis, an intestinal disorder, before the accident, and had taken irrigating treatments from May 24th, 1924, with diminishing frequency. During the treatments she gained seventeen pounds in weight, and was in good condition at the time of the accident, but after the accident she remained in bed seven weeks with severe muscle strain of the back and extreme weakness in the legs. Sixteen months after the accident it was still necessary for her to use a cane, and she lost twenty pounds in weight, and her flushing treatments continued without the same response as before the accident, because of the shock she then sustained.

The husband expended' for doctors $157; for domestic help, $317; drugs, $103; for flushing treatments, $305; making a total of $681.

It is urged that plaintiff’s doctor, who advised the treatments for the intestinal trouble, stated his opinion at that time to be that it would take a considerable time, perhaps years, to affect a permanent cure, and that therefore the expenses incident to the medical services and flushing treatments incurred after the accident should not be charged to the defendant. Assuming this to be a controverted fact in the case, the question of damages was still one for the jury, and unless brought within the recognized exception of obvious prejudice or passion upon the part of the jury, no cause is apparent for disturbing their verdict.

The rule will be discharged.


text:
    WILLIAM DWYER, BY NEXT FRIEND, THERESA DWYER, AND THERESA DWYER, INDIVIDUALLY, PLAINTIFF-RESPONDENT, v. NEW YORK TELEPHONE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Decided November 24, 1926.
    Negligence—Injury to Twelve-Year-Old Boy Through Collision on Street With Defendant’s Automobile—Evidence Clear That Car was on Wrong Side of Street, at Night, Without Lights—Facts Considered and Award Held Not Excessive.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.

      Eor the rule, Smith & Slingerland.

      Contra, John A. Matthews.

   Pee Cueiam.

The infant plaintiff, appearing by his mother, as next friend, and his mother in her own.right, brought their action, jointly, against the defendant company in this court to recover damages from the latter, as a result of injuries sustained by the infant plaintiff on the 27th day of October, 1923, at Newark, New Jersey, through the alleged negligence of the defendant company’s servant. The case was tried in the Essex Circuit, and eventuated in a verdict of $4,000 for the infant plaintiff, and a verdict of $1,000 for his mother, the female plaintiff. The matter is before us on the defendant company’s rule to show cause. The reasons presented in the printed case are: "1. The verdict rendered by the jury was against the weight of the evidence. 2. The damages found by the jury in favor of the plaintiff were excessive. 3. The verdict in this cause should have been for the defendant and not for the plaintiffs, as rendered by the jury.”

The infant plaintiff, at the time of the happening of the accident, was between twelve and thirteen years of age. On the evening of the 27th day of October, 1923, in the neighborhood of eight-fifteen o’clock, the defendant’s driver, operating its automobile wagon, ran into a toy wagon upon which the infant plaintiff was seated at the curb of Ogden street, and as a result the infant plaintiff was painfully and seriously injured.

There is no substance in the contention of defendant’s counsel that the verdict is against the weight of the evidence. The proof was clear and plenary that the automobile was being driven on the left-hand side of the street, where it had no right to be, under the Traffic law, and was without lights, gave no warning, and was otherwise being propelled in a manner regardless of the safety of children who were in the street.

Nor do we think that either verdict is excessive. The infant plaintiff was thrown from the toy wagon upon which he was seated and was rendered unconscious; he had a lacerated wound of the scalp, a contusion of his right hip and right side, abrasions of the face, and was in the state of concussion and shock, so that Dr. Randall, who rendered first aid, called for an ambulance and the lad was conveyed to the city hospital, where he remained nine days, and after his discharge was under the medical treatment of Dr. Randall for several weeks. There was also proof coming from Dr. Cahill that he found a bulging of the muscles on the right side attached to the iluim, that is the bone that runs around the waistband; that the muscles attached on that side were bulging, which indicated to the doctor that some time or another they were torn, but that they have healed, but will leave that side weak, and affect his lifting power. Dr. Cahill’s examination was made more than two years after the lad suffered the injuries. The doctor also testified that the infant plaintiff had not fully recovered from the injury to his head, and gave as his opinion that the swaying of the lad’s body indicated that there was still some brain irritation going on. There was also testimony to the effect that the infant plaintiff’s muscles were torn in such a way that though they are healed they never get back to normal. In view of the fact that the lad’s usefulness and earning power will be more or less impaired as a result of his injuries, and since his mother is entitled to his earnings until he is twenty-one years of age, unless he is sooner emancipated, the verdict in her favor will not be disturbed.

The rule to show cause is discharged, with costs.


text:
    ABRAM PATTERSON, INDIVIDUALLY AND AS NEXT FRIEND, v. JOHN CALANDRIELLO.
    Decided November 24, 1926.
    Negligence—Injury to Boy by Motor Vehicle—Driver of Car was Son of Owner—Question of Extent of injury and Permission of Owner to Operate Car Both Controverted and Properly For Jury.
    Before G-ummere, Chiee Justice, and Justices Tkenchard and Minturn.
    For the rule, Heine, Bradner & Laird.

      Contra, Edward W. Wise.

   Per Curiam.

The action was tried in the Monmouth Circuit before the court and a jury, and a verdict went for the infant plaintiff for $3,000 and for the father for $1,000. The defendant obtained a rule to show cause.

The action was brought by the plaintiff’s father for himself and on behalf of his five-year-old son, to recover direct and consequential damages for injuries to the infant caused by being struck by the defendant’s automobile.

The defendant’s first reason urged is excessive damages, and is based upon the assumption that hernia from which the child is suffering was not due to the accident. But that was a controverted fact question, and the jury found otherwise.

It is next urged that there was error in the refusal of the court to direct a verdict on the ground that there was no relationship of master and servant proved at the time of the accident.

The fact was that defendant admitted ownership of the car, which was kept for family use, and his son was authorized to drive it for that purpose.

At the time of the accident the car was being driven by defendant’s seventeen-year-old son, Michael, who was on the way to meet one Hayes, in order to teach the latter to drive a car, and in the car with Michael were his brother and a friend.

The defendant’s explicit testimony was that his son Michael asked permission to take the car • ont to teach Mr. Hayes how to drive, and that the defendant consented thereto.

On defendant’s cross-examination he was asked—

“Q. When he [the son] came and asked you, according to your statement, about teaching Joe Hayes, you told him to go ahead and teach him, didn’t you?

"A. Yes, sir.”

Hayes had been a friend of the defendant for same years, and had done work for him.

The evidence upon this point was subject to contradictory interpretations, and that situation, manifestly, created a jury question, and is controlled in all essential aspects by such cases as Missell v. Hayes, 86 N. J. L. 348, and Mahan v. Walker, 97 Id. 304.

The rule will be discharged.


text:
    ADDIE D. WEST AND JOSEPH R. WEST, PLAINTIFFS, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEFENDANT.
    Decided November 24, 1926.
    Negligence—Injury as Result of Railroad Accident—Only Ground For Rule the Excessive Nature of the Award of $12,500— Facts Considered and Award Reduced to $10,000 or New Trial Ordered.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.

      Por the rule, William A. Barhalow and Tomlinson De Voe (George Holmes, of counsel).
    Oontra, Quinn, Parsons & Doremus.

   Pee Cueiam.

There was a verdict at the Monmouth Circuit in favor of the female plaintiff against the defendant company for $12,500, and a verdict in favor of her husband, co-plaintiff, against the defendant company for $600. The defendant was allowed, at the Circuit, a rule to show cause why the verdict should not be set aside and a new trial granted. The only reason presented here for setting aside the verdict is stated as follows: “Because the verdict is excessive.” In the brief of counsel of the defendant the verdict in favor of the husband is not attacked. The verdict for the female plaintiff is assailed upon the ground of its being excessive. She was injured in a railroad accident. The defendant did not contest its liability.

The contested factual question between the parties was as to the extent and duration of her injuries. She was thirty-eight years of age at the time she met with her mishap. At that time she was in the employ of the Stembach store, in Long Branch, in charge of the corset and underwear department, and receiving $25 a week salary. She was injured on May 21st, 1925, and the case was tried on the 4th of December, 1925. The injury she sustained was to her right knee. There was testimony to the effect that the injury was a very painful one; that an operation would correct the restricted motion in the knee joint, so that she would have, at least, sixty per cent, use of the knee joint; that such an operation would cost $1,000. Her loss in wages up to the time of the trial amounted to $650, and the jury was warranted in taking into consideration any prospective loss that she might sustain by reason of her injury. We have, therefore, reached the conclusion that if she will consent to a reduction of the verdict in her favor to the sum of $10,000 the rule to show cause will be discharged, with costs, otherwise it will be made absolute.


author: Pub Curiam.

text:
    FRANKLIN G. SHOEMAKER, PLAINTIFF, v. EDWARD ELIN AND HELEN ELIN, DEFENDANTS. FRANKLIN G. SHOEMAKER ET UX., PLAINTIFFS, v. EDWARD ELIN AND HELEN ELIN, DEFENDANTS. MARY E. DUNICAN, PLAINTIFF, v. EDWARD ELIN AND HELEN ELIN, DEFENDANTS. AMELIA L. WEDEKIND, PLAINTIFF, v. EDWARD ELIN AND HELEN ELIN, DEFENDANTS. WILLIAM JACKSON COOPER, PLAINTIFF, v. EDWARD ELIN AND HELEN ELIN, DEFENDANTS.
    Decided November 24, 1926.
    Negligence—Motor Vehicle Collision—Four Suits Against Defendants—All Injured Parties in Car of One of the Plaintiffs—Awards For All Plaintiffs, Which was Claimed Inade- ■ quate and a Rule to Show Cause Allowed Them—Facts in Each Case Considered, and Award in Each Held Inadequate —New Trial in Each Case Ordered on Amount of Award Only.
    On plaintiffs’ rules to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rules, Alexander B. De Seva {Alexander Simpson, of counsel).
    Contra, John S. Applegate & Son.

   Pub Curiam.

These actions were tried together in the Monmouth Circuit, and resulted in verdicts for the respective plaintiffs against the defendants in the following amounts: Por Pranklin G. Shoemaker, $250; Pranklin G. Shoemaker and wife, $200; Mary E. Dunican, $5,000; Amelia L. Wedekind, $250; William Jackson Cooper, $800.

A rule to show cause was allowed, at the Monmouth Circuit, in each ease, why the verdict therein should not be set aside upon the ground of inadequacy of the damages.

The actions arose out of a collision which took place at Asbury Park, on August 8th, 1924, between an automobile belonging to Edward Elin, and driven by his wife, Helen Elin, and a motor car owned by the plaintiff Cooper, and driven by the plaintiff Pranklin C. Shoemaker. All of the plaintiffs were in the latter car at the time of the collision, and all were injured, and each one received a verdict as abovt? stated.

We think the damages in each case were grossly inadequate. In the case of Mrs. Mary Dunican, it appeared that the injuries she sustained, as a result of the collision, were a "fracture of the fourth dorsal vertebra, fracture of the base of the neck, of the backbone, and tearing off of the protuberance to which muscles are attached for the hip.” In plain terms, she sustained a broken back, of that portion between the upper parts of the shoulder blades and the spine; she was in the Long Branch Memorial Hospital from August 8th, 1924, till May 12th, 1925. During six months of the time her entire body was in a plaster cast and one leg; when she left the hospital she was unable to walk without the aid of crutches or a brace. At the time of the trial, about fifteen months after she received her injuries, she was only able to walk a few steps with the aid of a brace, to prevent her bearing weight, and crutches, and with human assistance. The prognosis of Dr. Moffatt, in respect to Mrs. Dunican’s further physical condition, resultant from her injuries, was that he expected her to "improve to some extent; that is, to the extent that eventually she may be able to do away with the crutches and possibly go from room to room with a cane,” and that he was not certain as to that; but that was the best he could hope for. The doctor’s bill, exclusive of the hospital’s, up to the time of the trial, was $560. The hospital expense is $2,296, and her other expenditures amount to $143. So that in deducting these items it appears that the jury awarded her about $2,000 as compensation for her past and future pain and suffering and altered physical condition. The verdict is so obviously inadequate that it shocks the sense of justice. The verdict is set aside and a new trial ordered as to damages only.

Now, as to the verdict of $800 in favor of Mr. Cooper. He was eighty-one years of age at the time of the trial. He was the owner of the car. According to the testimony of Dr. Beveridge, Mr. Cooper was in good physical condition before the áccidént. The physical injuries he sustained “were various bruises and contusions about the body and an injury to his left side, and especially his left hip.” The doctor further testified that as a result of the injuries Mr. Cooper became “very helpless; absolutely helpless.” He was not out of bed for a month, and, after that, another month elapsed' “before he could move about any to help himself;” that he, the doctor, noticed a change in the physical condition of Mr. Cooper from that it had been before the accident, in that Mr. Cooper was both mentally and physically enfeebled, which, condition the doctor ascribed to the injuries, and which condition he opined would be permanent.

As to the damage done to the automobile, it is conceded in the brief of defendants’ counsel that $400 was adequate compensation for the property damage, but even if this be so, the award of $400 for pain and suffering and the permanently altered physical and mental condition of Mr. Cooper is so absurdly out of proportion to what is commonly understood in sound sense to be proper and adequate compensation, that it necessitates the setting aside of this verdict as grossly inadequate. The verdict is set aside and a new trial ordered as to damages only.

We next come to the consideration of the alleged inadequacy of the verdict of $250 to Mr. Shoemaker. We have reached the conclusion, in view of the nature of the injuries sustained by him, that this verdict is clearly inadequate, and for that reason is set aside and a new trial granted as to damages only. We have also arrived at the same result as to the verdict of $200 in favor of Agnes Shoemaker, who, according to the evidence, was injured about her spine, and her right hand, the ring finger being broken and crushed, and part of it being gone; she had a big laceration of the breast and a cut on the right side of her nose. She was under the treatment oí Dr. Beveridge for a period of three weeks, and she was also under treatment of Dr. Wardell, who attended Mrs. Shoemaker ten days after she received her injuries up to the time of the trial, and whose bill for medical services was $250. This verdict is set aside and a new trial ordered as to damages only.

The verdict of $100 in favor of Amelia L. Wedekind, who suffered a fractured rib on the right side, a wrenched back and had cuts and bruises on her body, and was under treatment of Dr. Beveridge for three weeks, is obviously so grossly inadequate as to need no comment. This verdict is set aside and a new trial ordered as to damages only.


text:
    DAVID HERSTEIN AND ROSE HERSTEIN, PLAINTIFFS, v. JOSEPH K. CHOATE ET AL., RECEIVERS OF THE MORRIS COUNTY TRACTION COMPANY, DEFENDANTS. OSCAR GLASS, PLAINTIFF, v. JOSEPH K. CHOATE ET AL., RECEIVERS OF THE MORRIS COUNTY TRACTION COMPANY, DEFENDANTS.
    Decided November 24, 1926.
    Negligence—Injury to Passenger in Automobile in Collision With Trolley Car—Though Defendants Claim Accident was Result of Negligence of One of the Plaintiffs, They, Apparently, are Content to Have Rule Limited to Amount of Damages in Each Case—Facts Considered and Held, That While Award Might Have Been Greater, it is Not Plainly Inadequate.
    On rules to show cause, Essex Circuit.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturh.
    Por the plaintiffs, Kessler & Kessler.

    Eor'the defendants, King & Vogt.

   Per Curiam.

These two actions were brought against the receivers of the Morris County Traction Company to recover compensation for injuries which the plaintiffs alleged they received in a collision between a trolley ear of the defendants and an automobile driven by David Herstein, in which his wife, Bose, and the other plaintiff, Oscar Glass, were riding.

In the Herstein case, the trial resulted in a verdict in favor of Bose Herstein, the wife, for $2,500, and a verdict in favor of the defendants as to the claim of the husband, David Herstein. In the Glass case the jury found in favor of the plaintiff, and awarded him $200.

In the Herstein case the defendant’s receivers applied for a rule to show cause why the verdict in favor of Eose Herstein should not be set aside, which rule was granted as to damages only. In the Glass case a rule was obtained based on the contention that the verdict in his favor was grossly inadequate.

Counsel for the defendants argues that both the verdicts under review should be set aside, because the proofs strongly support the contention that the accident happened solely through the negligence of Herstein, who was driving the automobile in which the plaintiffs in that case were riding. As to the verdict in the Glass case, the finding of the jury as to liability is not challenged, and the only question presented is the adequacy of the damages.

In the Herstein case the defendants, apparently, were cohtent to have the rule to show cause limited to the question of damages only, and having accepted that limitation, while we have the power, we are under no obligation to consider any other contention.

Mrs. Herstein received a laceration in front of the right ear, which required two stitches; she sustained bruises over the bridge of her nose, on her right arm and on her hand; she was compelled to have her arm put in splints as a result of the accident, where it remained for some time. In addition to this, the jury was justified in finding that she sustained bruises on her chest, and that her accident produced a shock to her nerves, from which she had not entirely recovered at the time of the trial. She kept her bed for three weeks, and suffered pain for at least five weeks, and during that period was unable to perform her household duties.

One of the physicians testified that she was suffering from intercostal neuralgia, and other technical ailments indiseipherable to the average mind, from all of which it is reasonable to conclude that the verdict was not at all'excessive.

In the Glass ease the jury evidently did not believe that the injuries which he claims resulted from the accident were the result thereof, or that they were as serious as he claimed.

We are inclined to think that while the verdict might be much greater without being excessive, it is not so plainly inadequate as to justify our interference under the well-settled rule applicable to such a situation.

The rules to show cause will be discharged.


author:
Harry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LOUISE RHINEHART, PETITIONER, v. MICHAEL STILLMAN, RESPONDENT.
    Injury to Hip of Employe—Question Whether the Employment was Casual—Upon Examination of Facts, Held to be Regular—At Time of Injury Respondent Wanted to Cali Doctor, Petitioner’s Doctor, but She Declined, Asking Instead to be Taken Home—Respondent Therefore Furnished No Medical Assistance—-Petitioner Treated by Physician, but Injury Became Worse—Held, Entitled to Compensation and Payment of Medical Bilis, Also Opportunity for Further Hearing in Regard to Permanent Injury Resulting From Possible Shortening of Leg.
    Eor the petitioner, Irving W. Vanderhoff.

    Eor the respondent, Hopkins & Herr.

   FINDING OF FACTS AND DETERMINATION.

Mrs. Michael Stillman, wife of respondent, desired to employ someone in her home while she was away to have an operation for appendicitis. On or about October 19th, 1925, Mrs. Stillman called a friend of hers, a Mrs. Bessie B. Ryan, a witness for respondent. She asked Mrs. Ryan if Mrs. Ryan knew anyone who could help her out for a couple of weeks, and Mrs. Ryan said she thought she did. Mrs. Ryan -called up the petitioner on the telephone, and asked her if she would like to have work for a couple of weeks to help Mrs. Stillman out, who was sick, and Mrs. Rhinehart stated that she would.

Mrs. Ryan testified that Mrs. Rhinehart had worked for her for years, sometimes by the day, sometimes by the week, and that Mrs. Rhinehart had done sewing for her once a week for a good many years. Mrs. Ryan also testified that Mrs. Rhinehart had worked for other people in the vicinity, namely, a Mrs. Pond, a Mrs. Solomons and a Mrs. Baker. This is all taken from the testimony of witness for respondent.

Mrs. Stillman testified that all the arrangements of the' hiring were made with Mrs. Ehinehart by above witness. Mrs. Stillman testified that Mrs. Ehinehart on the first day of her work assisted in ripping petticoats. This corresponds with the petitioner’s statement that she was a seamstress. In addition, Mrs. Stillman stated that Mrs. Ehinehart helped in the preparation of a meal. This corresponds; with Mrs. Eyan’s testimony that Mrs. Ehinehart would do any kind of work. The contention of counsel for respondent is that this was a casual employment. Counsel for petitioner and counsel for respondent both cite the case of Hubbe v. Lynch, 36 N. J. L. J. 87. “Taking into consideration all the circumstances attending the contract of hiring and the nature of the services in each case,” as suggested by Judge Martin in this case, it would appear that the employment in this case is regular, not casual.

Doctor Pinneo, a witness for petitioner, testified that petitioner would be under treatment for at least eight months from the time when he began treatment, which was on November 23d, 1925.

Witnesses for respondent testified that immediately after the accident they offered to telephone to Doctor Pinneo, the petitioner’s family physician, to call him for treatment of ■Mrs. Ehinehart, or to call any other doctor she wished, or to take her to a hospital, hut petitioner would not wait and insisted on being taken home immediately, and that neither the petitioner, nor anyone for her, ever requested' the respondent to furnish her with medical care or attention; that they did not hear from petitioner, or anyone on her behalf, until they received a letter from petitioner’s counsel. Petitioner offered no evidence to contradict this.

The respondents did not provide any medical services.

The daughter of petitioner on the day of the accident attempted to call the same doctor, Dr. Pinneo, but the doctor was out of the city and could not be secured that day. In the interval, and until November 23d, 1925, petitioner was under the care of a Doctor Hahren, who did nothing for petitioner except to advise her to rub liniment on her hip.

Dr. Twinch, a witness for the respondents, testified that had petitioner’s hip been properly set and put in a plaster cast immediately after the accident, she would probably have entirely recovered at the day of the hearing. No evidence was offered on behalf of petitioner to contradict this.

Later, and on or about November 23d, 1925, Doctor Pinneo began treatment, and had continued treatment up until the time of the hearing, and expected to continue further treatment. Doctor Pinneo testified that the charge for his services for treatment was two hundred ($200) dollars to date; that his charge for testifying was fifty ($50) dollars. The testimony shows that the hospital bills were one hundred and forty-eight dollars and seventy-five cents ($148.75), plus twelve ($12) dollars for a special nurse. Mrs. Ehin6hart testified that she had expended thirty-five ($35) dollars for a brace; four dollars and ninety-five ($4.95) cents for shoes for brace; fifteen ($15) dollars for X-ray; two dollars and fifty ($2.50) cents for crutches. Daughter of petitioner testified that she had expended twenty-two ($22) dollars for drugs and sick-room supplies used in the treatment of petitioner. The total of these medical charges is four hundred and seventy-one dollars and twenty ($471.20) cents. There is testimony on the part of the respondent that the wages were fifteen ($15) dollars per week, and on the part of the petitioner that the wages were seventeen ($17) dollars per week. I find that the wages were fifteen ($15) dollars per week.

It is therefore ordered on this 7th day of July, 1926, that judgment be entered in favor of the petitioner for temporary disability from October 27th, 1925, to November 23d, 1925, and for eight months from November 23d, 1925, a period of thirty-eight and three-sevenths (38 3/7) weeks, at the rate of ten ($10) dollars per week, making three hundred and eighty-four dollars and twenty-nine cents ($384.29). It is further ordered that the medical expenses in the amount of four hundred and seventy-one dollars and twenty cents ($471.20), be charged against respondent.

Doctor Twineh, a witness for respondent, testified that there was two inches shortening in petitioner’s limb. Opportunity will therefore be given petitioner for further hearing and further determination of the temporary and permanent disability and further medical expense, following termination of the thirty-eight and three-sevenths (38 3/7) weeks of temporary disability.

Counsel for petitioner is allowed the sum of two hundred ($200) dollars for attorney’s fees, to be assessed against the respondent.

Harry J. Goas,

Deputy Commissioner.


text:
    FANNY OEHLER AND WILLIAM OEHLER, PLAINTIFFS-APPELLANTS, v. L. BAMBERGER & COMPANY, DEFENDANT-APPELLEE.
    Decided November 24, 1926.
    Torts—Alleged Injury to Plaintiff by Defendant’s Agent Who Unjustly Annoyed Plaintiff, Which Annoyance She Claims Resulted in an Attack of Apoplexy—Held, That Case is Not Within the Rule Which Limits the Liability of the TortFeasor to Such Damages as May be Anticipated as the Natural and Proximate Consequence of the Tort.
    On appeal from the Essex Common Pleas.
    Before Gummere, Chief Justice, and Justices Trenchard and Mrs turn.
    For the plaintiffs-appellants, George A. Henderson.

    For the defendant-appellee, Schneider & Schneider.

   Per Curiam.

The trial court directed a nonsuit upon the following facts: A salesman of the defendant company visited the residence of the plaintiff for the purpose of selling to Mrs. Oehler a vacuum cleaner. She refused to purchase it, but he left it with her and promised to return and take it away. Some four or five months later he returned and instead of removing it, demanded payment for it, which Mrs. Oehler refused. The agent, in his persistence, threatened her arrest if she did not pay the purchase price. In this situation Mrs. Oehler became so frightened that she was stricken with an attack of apoplexy, which she alleges was the direct and proximate result of the agent’s conduct, and for that personal injury she, with her husband, brought this suit to recover damages from the agent’s principal.

We think the ruling of the trial court was legally correct. The physical ailment which may have resulted from mental worry in such situation is not comprehended within the settled rule of damages which limits the liability of a tortfeasor to such damages as may be anticipated as the natural and proximate consequence of the tort. A threat of the Character alleged, where the tort-feasor is not in possession of knowledge which would lead him to reasonably anticipate that the person involved is other than normal, cannot be made the basis for abnormal damages such as are alleged here. Justesen v. Pennsylvania Railroad Co., 92 N. J. L. 257.

The judgment appealed from will therefore be-affirmed.


text:
    ABRAHAM POTASH, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Decided November 24, 1926.
    Zoning—Case Within the Rule of Ignaciunas—Peremptory Writ Allowed.
    On writ of mandamus.

    Before Gummere, Chiee Justice, and Justices Trenchard and Minturn.
    Por the relator, Milton J. Pinlcelstein and Philip J. Schotland.

    Por the respondents, Walter P. Pilis.

   Per Curiam.

The application is for a-peremptory writ of mandamus to compel the building inspector of East Orange to issue a building permit to the relator, as owner of certain lands in that city. The facts are not substantially variant from the situations presented in cases decided by this court and the Court of Errors and Appeals, like State v. Nutley, 99 N. J. L. 389, where the legal right of the relator to the relief asked was recognized.

Por the same reason a peremptory writ of mandamus will be ordered in this ease.


text:
    CAROLINE ZIEGLER, PLAINTIFF-RESPONDENT, v. ADOLPH BONINE, DEFENDANT-APPELLANT.
    Decided November 24, 1926.
    Negligence—Pedestrian Injured by Motor Vehicle—Evidence to Show That Pedestrian was Carefully Crossing Street on Stormy Night and was Struck by a Car Whose Driver Had Ample Opportunity to Observe Her Situation—Held, That the Question of Contributory Negligence was One For the Jury.
    On rule to show cause, Hudson Circuit.
    Before Gummere, Chief Justice, and Justices Trenchabd and Minturn.
    Por the defendant-appellant, Tiffany, Brugler & Wittreich.

    Por the plaintiff-respondent, Hirsehberg & Rubenstein.

   Per Curiam.

The case was tried before the court and jury, and a verdict was rendered for the plaintiff. To reach their verdict under the testimony, the jury evidently concluded that the plaintiff, about nine-thirty o’clock upon a stormy and snowy night, stood on the southeast corner of Bergenline avenue and Twenty-fourth street, in West New York, awaiting an opportunity to cross the street, which is generally a busy thoroughfare; that she looked iu both- directions along the avenue, and observing no vehicles approaching, attempted to cross to the southwest corner; that while engaged in that effort, and after a trolley car had passed and before she reached the nearest car track, she was struck by a motor car driven and owned by defendant, which was proceeding in a general easterly direction along Twenty-fourth street. The woman, apparently, was standing or walking in or near the centre of the street, and was confronted with a snow storm and a dangerous crossing, upon a busy thoroughfare, at a late hour of the night, engaged in a careful effort to cross the street, when the defendant, who had ample opportunity, apparently, to observe her situation, collided with her. Under such circumstances the question of negligence and contributory negligence must be solved by the jury, and neither a nonsuit nor a direction would have been legally justified. Nepodensky v. West Jersey Railway Co., 85 N. J. L. 336; Daly v. Case, 88 Id. 295.

The rule to show cause will be discharged.


text:
    SHIRLEY REALTY COMPANY, ETC., v. CITY OF EAST ORANGE ET AL.
    Decided November 24, 1926.
    Zoning—Case Within Rule of Ignaciunas—Peremptory Writ Awarded.
    On application for a peremptory writ of mandamus.

    Before Gumslebe, Chief Justice, and Justices Trenchabd and Mintubh.
    Eor the writ, Jacob Lubetkin.

      Contra, Walter C. Ellis.

   Pee Cueiam.

The record presents the usual circumstances attending an application for a permit to build, which was refused under the provisions of the usual zoning ordinances, in East Orange. The case is res judicata under the opinion of this court, affirmed in the Court of Errors and Appeals, in the so-called Nutley case. State v. Nutley, 99 N. J. L. 389.

The peremptory writ of mmdamus will therefore be awarded.


text:
    STATE, EX REL. THOMAS J. O’REARDON, v. C. FRANKLIN WILSON, JUDGE, ETC.
    Decided November 30, 1926.
    Prosecutors of the Pleas—Constitutional Office, but Powers and Duties are Prescribed by the Legislature—Under .Act of 1911, as Amended in 1922, the Attorney-General Shall Attend Personally or by an Assistant, Whenever a Justice of the Supreme Court Shall so Request For Prosecuting the Criminal Business of the State in the County Designated— Upon Such a Request the Attorney-General Attended, Through an Assistant, at Morris County—Held, That the Prosecutor of That County During That Time was, in Effect, Suspended From the Performance of His Functions, and Could Not Approve Bills For the Employment of Assistants —Held, Further, That if This Were Not so a Mandamus Would Not Lie to Compel the Approval of Such Bills by the County Judge—He Could Only be Directed to Determine the Justice and Fairness of the Bills. •
    On return to-alternative mandamus.

    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    For the relator, Elmer W. Bomine.

    For the respondent, Charles A. Bathbun.

   Per Curiam.

The relator, O’Reardon, was employed by Mr. Bolitho, who then held the office of prosecutor of the pleas of Morris county to perform certain duties connected with the investigation of alleged violations of the criminal law occurring in that county. These duties were performed by him during the months of March, April and May, 1925, and he presented bills to Mr. Bolitho for payment for such services and for expenses incurred in their rendition. Mr. Bolitho approved the bills, and they were then submitted to Judge Wilson, of the Court of Quarter Sessions, the present respondent, for his approval, pursuant to the requirement of section 95 of our Criminal Procedure act. Comp. Stat., p. 1850.

The latter refused either to approve or disapprove the bills, and the relator then applied to this court for a mandamus to compel Judge Wilson to certify the hills for payment. An alternative writ was thereupon allowed, and Judge Wilson in his return thereto has set up, among other matters, that the employment of the relator by Bolitho during the period in which the alleged services were rendered was without legal warrant, and bases this assertion upon the following facts: Mr. Justice Parker, of the Supreme Court, presiding in the several courts of Morris county, on February 19th, 1925, submitted a request in writing to the attorney-general of the state to attend personally, or by such assistant as he might select, in the county of Morris, “for the purpose of prosecuting the criminal business of the state therein, including the investigation of alleged crimes and misdemeanors, attending before the criminal courts and grand juries of said county, preparing indictments for crimes and misdemeanors in such county and trying the same.” Pursuant to this request, the attorney-general designated Mr. Wilfred H. Jayne, Jr., as his assistant, “to perform and carry out the duties mentioned and set forth in said request, in the county of Morris.” This designation was made on the 19th of February, 1925, and, under the authority conferred by it, Mr. Jayne went to Morris county on the next day and took charge of the criminal business of that county. Notwithstanding this designation of Mr. Jayne and his action thereunder, Mr. Bolitho assumed to continue to act as prosecutor of the pleas to some extent, and apparently without objection on Mr. Jayne’s part.

In our opinion, the determination of the matter before us depends upon whether or not the legal effect of the action of the attorney-general was to suspend Mr. Bolitho for the time being from the further performance of the duties attached to the office of prosecutor of the pleas of Morris county. For, if that was its effect, Mr. Bolitho could not, by refusing so to regard it and assuming to perform to some extent the duties connected with the office, impose upon the county any liability to pay expenses incurred by him in the unauthorized performance of those duties.

It seems clear from a reading of the. provisions of the designation by the attorney-general of Mr. Jayne as his assistant, coupled with the terms of Mr. Justice Parker’s request, that the effect of that designation was to suspend Mr. Bolitho from taking any part in the prosecution of the criminal business of the county during the period of Mr. Jayne’s service there as assistant to the attorney-general. This being so, the vital question underlying the determination of the case is whether this power of suspension resided in the attorney-general.

The constitution of 1844 recognizes the existence of the office of prosecutor of the pleas, and provides for the 'filling of that office and the term thereof. It does not, however, specify any of the duties or powers of the incumbent. Shortly after the adoption of the constitution, and in April, 1846, the legislature passed an act providing that there should be appointed for each county some fit person, who should be an attorney and counselor-at-law, and whose duty it should be to prosecute the pleas of the state in such county in the absence of the attorney-general, and to do and perform such acts and things in behalf of the state in and about such prosecutions as the attorney-general might or ought to do if personally present. Nix. Dig. 49. In 1854 (Pamph. L., p. 131) the powers and duties of prosecutors of the pleas were enlarged by legislative enactment. This statute provides that after its passage “the criminal business of the state shall be prosecuted exclusively by the prosecutors of the pleas, except in counties where for the time being there may be no prosecutor or where the prosecutor desires the aid of the attorney-general.” No change was made in the law in this regard until 1911, when the legislature made it the duty of the attorney-general, whenever a justice of the Supreme Court should so request, “to attend personally, or by his assistant, in any county of the state, for prosecuting the criminal business of the state therein, including the investigation of alleged crimes and misdemeanors, the attendance before the criminal courts and grand juries of the county, the preparation of indictments and the trial of indictments for crimes and misdemeanors.” Pamph. L. 1911, p. 325. This statute was amended in January, 1922 (Pamph. L., p. 11), so as to authorize the attorney-general to designate such assistant as he might see fit to act for him in the performance of the duties above recited. It is apparent from a reading of these statutory provisions that, in superseding Mr. Bolitho in the performance of the duties and the exercising of the powers of the office of prosecutor of the pleas of Morris county, the attorney-general was quite within the scope of the authority conferred upon him by the legislature; and our consideration of the matter has led us to the conclusion that the constitution, by necessary implication, has left the determination of the question of the scope of the powers and the duties attached to the office of prosecutor of the pleas entirely to the legislative body, together with the right to determine whether, under unusual conditions, those powers and duties shall temporarily be exercised and performed by the attorney-general, either personally or by his designated assistant, instead of by the holder of the office.

It follows, as the result of the views which we have expressed, that the action of the attorney-general in superseding Mr. Bolitho was taken under legislative sanction; that during the period of his suspension Mr. Bolitho was without authority to act in the performance of the duties or the exercise of the powers of his office, either personally or through assistants designated by him; and that, therefore, the application for a peremptory writ must be denied.

It may be well to add that, even if we had reached a different conclusion as to the authority of Mr. Bolitho to employ the relator during the period covered by the latter’s-service, we should not have felt justified in issuing a peremptory mandamus directing the respondent to approve the bills for the relator’s alleged services and expenses. The purpose of section 95 of the Criminal Procedure act, above referred to, is to protect the county against unwarranted expenditures made by the prosecutor of the pleas by requiring the judge of the Court of Quarter Sessions to ascertain and determine whether a given claim, when presented to him for his approval, is a just and valid, one. In the present case, as has already, been pointed out, the respondent refused to consider the relator’s claim upon the single ground that the prosecutor of the pleas had no power to incur the obligation represented by it. In this situation, the limit of the power of the Supreme Court would be to direct the respondent to take up the consideration of the relator’s claim and determine whether it was fair and just; and, if he so found, then to approve it for payment.

Peremptory writ refused.


author: Pee Cubiam.

text:
    STATE, EX REL. DAVID CONKLIN, v. C. FRANKLIN WILSON, JUDGE, ETC. STATE, EX REL. MAX REIDLER, v. C. FRANKLIN WILSON, JUDGE, ETC. STATE, EX REL. JOHN P. WALSH, v. C. FRANKLIN WILSON, JUDGE, ETC. STATE, EX REL. FREDERICK HUBERT, v. C. FRANKLIN WILSON, JUDGE, ETC. STATE, EX REL. DANIEL ALLEN, v. C. FRANKLIN WILSON, JUDGE, ETC. STATE, EX REL. ARTHUR J. McDONNELL, v. C. FRANKLIN WILSON, JUDGE, ETC. STATE, EX REL. EDWARD L. CLARK, v. C. FRANKLIN WILSON, JUDGE, ETC.
    Decided November 30, 1926.
    On return to alternative mandamus.

    Before Gummere, Chief Justice, and Justices Trenohaed and Mintuen.
    Por the relators, Elmer W. Romine.

    Por the respondent, Charles A. Rathbm.

   Pee Cubiam.

Por the reasons stated in the opinion delivered at the present term in the case of State, ex rel. O’Reardon, v. C. Franklin Wilson, Judge, &c., the allowance of the peremptory writs asked for by the respective relators will be denied.


author: Egan, J.

text:
    Hudson County Orphans Court.
    In the matter of the estate of Catherine Cassidy, deceased.
    [Decided November 24th, 1926.]
    Wills—Probate—Caveat on Grounds of Improper Execution of Undue Influence and of Lack of Testamentary Capacity— Evidence Considered and Found to Sustain Neither Contention—Some Evidence of Limited Mental Capacity Probably Due to Age, but Not Sufficient to Justify the Allegation.

      Mr. James Erwin, for the proponents.

      Messrs. Hershenstein & Finnerty, for the caveators.
   Egan, J.

On August 19th, 1924, Catherine Cassidy, a woman of approximately eighty years of age, died.

She had been suffering from cancer, from about the fall of the year of 1923. In January, 1924, she was confined to her bed, suffering from the ailment, and practically remained there until the time of her death.

On February 20th, 1924, she executed a last will and testament, which will was offered for probate. Against its probate a caveat was filed and the grounds of objection to its probate were as follows:

First—Improper execution of the paper purporting to be a will;

Second—Undue influence;

Third—-Lack of testamentary capacity.

Many hearings were held at which testimony was offered by the caveators in support of their objections to the probate of the instrument. Testimony was offered by the proponents, favoring its legality.

The will was prepared by Mr. J ames Erwin, an experienced and reputable attorney, who was one of the witnesses to. its execution with Mary V. Sharkey, an employe in his office.

An examination of the testimony shows that the execution of the will was surrounded with all the proper statutory and legal elements and requisites. There is. not the slightest doubt in my mind that the will was properly executed.

The second ground of objection—undue influence—seems to be without merit. There is not a scintilla of evidence to show that the decedent, the testatrix, was influenced in the slightest degree. The burden was upon the caveators to show that some person exercised a control over the mind of' the testatrix, or practiced an importunity, which she could not resist. Loveridge v. Brown, 3 N. J. Adv. R. 1050. Such proof is absolutely lacking. I am satisfied that there was absolutely no undue influence used in the execution of the will.

The third ground of objection raised by the caveators against the probate of the will is lack of testamentary capacity. The family doctor who treated the decedent was of the opinion that the testatrix prior, at the time, and subsequent to the execution of the wij.1, lacked testamentary capacity. There is testimony to the same effect from some members of the family and of relatives of the decedent. Against that contention the proponents submitted convincing evidence to the contrary. They showed, to my mind, that the decedent, at the time of the execution of the will, fully comprehended the property she sought to devise, that she comprehended the objects of her bounty, and that she thoroughly understood the meaning of the business in which she was at the time engaged. In re Freeman’s Will, 1 N. J. Mis. R. 642.

On January 24th, 1924, testatrix transacted business with her daughter, who was a witness for the caveator, and executed a conveyance of real estate to her. Her mind was keen and alert, then. At or about the time of the execution of the will, and for some time before, as well as afterward, she discussed matters of usual and common interest with the members of her family and with her spiritual advisor. She joked about matters and discussed affairs with the counsel who prepared and witnessed her will, at the time of its execution.

I cannot incline to the belief that the decedent lacked testamentary capacity. The fact that the decedent, at times, acted and spoke peculiarly may he indicative of mental decay, but they do not establish mental incapacity. All the attending circumstances must be considered, and if, out of it, it appears that decedent was capable of recollecting what her property consisted of, and who, in consequence of ties of blood or friendship, should be the objects of her bounty, and h^d a mind sufficiently sound to enable her to know what disposition she wanted made of her property, after her death, she is deemed competent.. Ward v. Harrison, 3 N. J. Adv. R. 470.

Taking into consideration the facts surrounding the illness of the decedent, her mental status and the execution of the instrument, I have come to the conclusion, and do decide, that the paper-writing offered in evidence is the last will and testament of Catherine Cassidy, deceased, and it shall be admitted for probate as her last will and testament, and I will sign an order in conformity with these findings.


author: Bacres, Y. C.

text:
    Francesco Donadio, complainant, v. Giovannina Stanziale et al., defendants.
    [Decided December 6th, 1926.]
    Conveyances—Resulting Trusts—Complainant Had Title to Land Put in Name of Friend—Friend Died, His Heir Died, and Title Passed to His Heirs Next of Kin, Who Conveyed to Defendants—Defendants Brought Ejectment Suit Against Complainant Who was in Possession—Ejectment Suit Stayed by This Action to Impress a Trust For Benefit of Complainant—Facts Reviewed and Held, That Complainant Has Made Out His Case.
    On final hearing.

      Messrs. Howe & Davis, for the complainant.

      Mr. Ovidio 0. Bianchi and Messrs. Donohue & O’Brien, for the defendants.
   Bacres, Y. C.

On December 26th, 1911, Dante Mauro conveyed a vacant lot, the premises involved in this suit, to Francesco Ciampi, subject to a mortgage of $800. The complainant, Donadío, claims he paid the consideration price of $200, and that the title was taken in the name of Ciampi in trust for him, and he prays that it be so decreed. Ciampi died leaving a son, who is now also dead. The title devolved upon two cousins in Italy as his heirs-at-law. They conveyed to the defendant Giovannina Stanziale, who brought an action in ejectment in the Essex circuit against the complainant, which was stayed on the filing of the bill. Mrs. Stanziale, a sister of Mrs. Ciampi, knew of the complainant’s claim and possession when she got the heirs to convey, which she alleges was for a valuable consideration, but how much is not divulged.

Donadío wanted to build a home. He had enough to pay for the lot but had to secure money on a mortgage to build the house. His wife was in Italy. And, perplexed, he consulted his lawyer, Mr. Bianchi, who advised taking the title in the name of^ his friend, Ciampi, and Ciampi consented. The contract for building the house was undertaken in Ciampi’s name, and he and his wife executed a bond and mortgage to a building and loan association to obtain the necessary funds. The $800 mortgage was paid off and the balance used .for construction. The contractor abandoned the work and Donadío finished the job. He personally dug the cellar, and purchased the material and paid for it, and engaged the mechanics and paid them. The money raised by the building and loan mortgage was used as far as it would reach and he paid the balance. He paid the monthly dues to the building and loan association until the mortgage was paid off, and he paid the annual tax and water rates. His wife joined him in 1913 or 1914. He has occupied the house since it was finished in August, 1912. The Ciampis lived there too. Ciampi died in October, 1912, and his widow and son continued. His son died in 1914, and the widow stayed on until shortly before she passed away in 1915 or 1916. Donadío and Ciampi were close friends. He boarded with them for years before he built the house, and after that until his wife came. After the son died it was thought that his mother was his heir, and she executed a deed to Donadío for the property. These thihgs are all affirmed by Donadío, and his story is supported by others. Mauro, who conveyed to Ciampi, says that Donadío negotiated for the lot, and the deal was made with him'. He first met Ciampi at Howe & Davis’ office when the deed was executed by him and his wife. Donadío had arranged the time and place, and he was there, but not in the room when the consideration was paid by Ciampi and the deed delivered. He remained in the outer office. Bianchi, the lawyer, testified that Donadío came to his office with Ciampi and told him he was about to buy the lot and build, and wanted the title searched, and that he advised that it better be done when the building loan mortgage was taken, that the deed to the lot should not be taken in his and his wife’s name (she was out of the country but was expected to arrive soon, as she had been vised by the consul at home) because he would not be able to raise the money on a mortgage to build, and further, that the title be taken in the name of a trusted friend, and that Donadio suggested Ciampi and Ciampi agreed. A representative of Alexander Neil & Company says Donadio bought windows, frames, doors and moldings from his firm for the job and paid cash. The plumber says he ordered work amounting to nearly $300, and, after payment on account by the building and loan association, the balance of $110 was paid by Donadio in $10 lots, and that it took him two years to pay it. The painter says he was hired by Donadio, and that he paid him $100 for the work. The dealer in lumber and masons’ material, who had sold material to the defaulting contractor, testified that Donadio also bought material from him arid paid him some cash—some coming from the building loan mortgage. He further says that he always believed Donadio to be Ciampi. He evidently knew of the Ciampi contract with the defaulting contractor. The treasurer of the building and loan association testified that Donadio paid the monthly dues and that he was usually the first in line on pay night.

That Donadio paid the purchase price we have only from his lips, and that Ciampi actually paid over the $200 at the time the deed was delivered is admitted by him, but he says he gave it to Ciampi in the outer room of Howe & Davis’ office just before the transfer was made. And there is no reason to doubt it. All the established circumstances, to which allusion has been made, bear him out. He said he saved the $200 and carried it on his person. He had a bank account in which he had made a single deposit of $100 a year before, which, in a measure, it is argued, discredits his assertion that he had accumulated the additional sum. He earned $14 a week and was frugal. It is not improbable. And the pride of possession and gratification in the touch of money, strong in some people, may answer the other criticism.

A few days before the transfer of the lot to Ciampi he, Ciampi, withdrew all his savings, $314.22, from his bank, and Donadio witnessed the withdrawal card, and the implication is that it was used to pay the purchase price. Why was all drawn if only $200 was required? Donadio explains that ■ Ciampfs wife was ill and in consultation with a New York specialist and about to undergo a surgical operation, and that the money was drawn to meet the expenses. There is nothing to controvert this.

After Mrs. Ciampi conveyed to Donadio she filed a bill to set aside the deed for fraudulent procurement (Docket 40-375), all parties, including the lawyers, believing she held the legal title by inheritance from her son. In his answer Donadio denied the fraud and set up the consideration to be $700, and the argument is that his failure to then set up his equitable ownership refutes his present contention. Bianehi, the solicitor, gives a satisfactory explanation. He was called in to draft the deed. Donadio’s equitable claim was recognized and rehearsed at the time. Bianehi says he was inexperienced and thought that a then present valuable consideration had to be stated, and that $700 was reached as the amount that Donadio had advanced from time to time to Mrs. Ciampi, during her widowhood while ill and living with him, for medical aid. When the suit was brought charging forgery, in effect, Bianehi contented himself with joining issue and was prepared to meet it. The case never came to trial, possibly because Mrs. Ciampi died, or, mayhap, the lawyers discovered by that time that she had had no title to convey. The shortcoming of his lawyer in failing to set up his equitable claim he then had, and has now proved, is of no probative force against Donadio at this time.

Objection was made to the testimony by Donadio of transactions and statements with Ciampi, the deceased, as not competent under section 4 of the Evidence act (Comp. Stat. p. 2218) because the heirs-at-law who conveyed to the defendant Stanziale were parties to the suit in a representative capacity. They are not heirs of Ciampi; they are heirs of his son, and if they had been heirs of Ciampi the testimony would have been admissible. They were joined in the bill not in a representative capacity, but merely as owners of the land against which the complainant has preferred his equitable claim. McKinley v. Coe, 66 N. J. Eq. 70, and cases there cited. The complainant has made out his case of a resulting trust. Phillips v. Phillips, 81 N. J. Eq. 459; affirmed, 83 N. J. Ey. 345.

Decree for complainant.