author: Cutlek, J.

text:
    NEW YORK CENTRAL RAILROAD COMPANY, A CORPORATION, PLAINTIFF, v. SINGER MANUFACTURING COMPANY, DEFENDANT.
    Submitted July 11, 1925
    Decided August 22, 1925.
    Common Carriers — -Liability For Payment of Freight Charges— Consignor Primarily Liable — Contract of Shipment or Terms of Bili of Lading May Change Such Liability — Defendant Consigned Freight to Consignee Over Plaintiff’s Road — Consignee Paid Amount Demanded by Plaintiff and Became Insolvent Before Error in Amount Due Plaintiff was Discovered — Contract and Bill of Lading Examined and Held That Nothing Appeared to Modify Rule Regarding Consignor’s Liability — Judgment For Plaintiff.
    Action at law.
   The opinion of the court was delivered by

Cutlek, J.

The plaintiff is a corporation of the State of New York, authorized to do business in the State of New Jersey, and having its principal office in New Jersey at Weehawken. '

The defendant is a corporation of the State of New Jersejr, having its office and principal place of business at Trumbull and Second streets in the city of Elizabeth, this state.

On or about September 4th, 1920, Philip E. Wright entered into an agreement with the Hudson Valley Foundry Company, a corporation of'the State of New York, having its principal place of business at Kingston, New York, whereby the Hudson Valley Foundry Company agreed to purchase, and the said Wright agreed to sell, a carload of Netcong pig iron at a stipulated price per ton (2,240 pounds) f. o. b. car, Netcong, New Jersey.

The pig iron to fill this contract was purchased by the said Wright from the defendant at Netcong, New Jersey, and the said Wright, after the purchase of said iron, directed this defendant to ship the same by rail, consigned to the Hudson Valley Foundry Company, Kingston, New York.

On September 4th, A. d. 1920, the defendant, pursuant to said instruction, delivered said pig iron to the Delaware, Lackawanna and Western Eailroad Company, whereupon there was issued by said railroad company a bill of lading covering said pig iron. The defendant, by its duly authorized agent, signed this bill of lading as shipper..

On or about the same day the said Wright entered into another agreement with the Hudson Valley Foundry Company whereby the Hudson Valley Foundry Company agreed to purchase, and the said Wright agreed to sell, a second carload of Netcong pig iron at the stipulated price per ton (2,240 pounds) f. o. b. car, Netcong, New Jersey.

. The pig iron to fill this contract was also purchased by the said Wright of the defendant at Netcong, New Jersey, and the said Wright, after purchasing the same, directed the • said defendant to ship-the said last-mentioned pig iron by rail consigned to the Hudson Valley Foundry Company, Kingston, New York.

On September 4th, 1920, pursuant to such instruction, the defendant delivered said pig iron to the Delaware Lackawanna and Western Eailroad Company, whereupon there was issued by said railroad company a bill of lading covering the said last-mentioned pig iron.

This defendant, by its duly authorized agent, signed this last-mentioned bill of lading as shipper.

On or about the 5th day of September, 1920, the said Wright entered into a third agreement with the Hudson Valley Foundry Company, whereby the Hudson Valley Foundry Company agreed to purchase, and the said Wright agreed to sell, a third carload of Neteong pig iron at a stipulated price per ton (2,240 pounds) f. o. b. ear, Netcoag, New J ersev.

The said Wright, after purchasing the pig iron to fill this third order from the defendant, directed the defendant to ship it by rail consigned to the Hudson Valley Foundry Company, Kingston, New" York.

On September 5th, 1920, the defendant, pursuant to the last-mentioned instruction, delivered the last-mentioned pig iron to the Delaw'are, Lackawanna and Western Eailroad Company, whereupon there was issued by said railroad company a bill of lading covering this third shipment of iron.

The defendant, by its duly authorized agent, signed this third bill of lading as shipper.

All three bills of lading tvere delivered by the defendant to said Wright, who forwarded them to the Hudson Valley Foundry Company.

No freight charges were demanded of or paid by the defendant at the time of the delivery of these consignments of pig iron, or any of them, to the Delaware, Lackawanna and Western Eailroad Company.

Each of these shipments of pig iron was transported by the Delaw-are, Lackawanna and Western Eailroad Company from Neteong, New .’Jersey, to Bergen Junction, New Jersey, and from thereby the Erie Railroad Company to Little Perry, New Jersey, and from there by the plaintiff to Kingston, New York, where, on or about September 24th, 1920, upon surrender by the Hudson Valley Poundry Company of the three bills of lading covering the three shipments of pig iron, the plaintiff delivered the same to the consignee, the Hudson Valley Poundry Company.

At the time of the delivery of the pig iron the plaintiff demanded and received from the Hudson Valley Poundry Company, as freight charges and war tax, -on the first shipment-$58.34, on the seco:rd shipment $59.27, and on the last shipment $58.26, which sums were all that was then claimed to be due as freight charges and war tax on said shipments.

Subsequently, the plaintiff learned that, through error of one or more of its employes ox of the employes of its connecting carriers, the amount for freight collected on said shipments, respectively, was less than the amount which should have been collected in accordance with the' existing tariff, classifications and regulations pertaining to such shipments.

At the time the said iron was so transported and said services were so performed, the plaintiff and its connecting carriers were common carriers for hire, and engaged in interstate traffic, and at least thirty days prior to such transportation and services, or any part thereof, had filed with the interstate commerce commission, and at their stations, tariffs, classifications and regulations showing the rates and charges for the transportation and services aforesaid, and had established said rates and charges, which they deemed reasonable and proper as applicable to such transportation and services, and computed in accordance with the provisions of said tariffs, classifications and regulations, the charges for said transporation and services and tax should have been on the first shipment $120.85, on the second shipment $121.93, and on the last shipment $117.88.

At the time of these deliveries, and for four months thereafter, the Hudson Valley Foundry Company was solvent, and paid all its bills in due course of its business.

Since that time, and prior to the institution of this suit, the Hudson Valley Foundry Company became insolvent and is no longer in business, and is without any property out of which any portion of the balance now claimed to be due for excess freight on the said shipments can be satisfied.

At the time the Hudson Valley Foundry Company became insolvent and prior thereto, neither the plaintiff, nor either of the connecting carriers, had knowledge or had received notice that the said property so transported had been purchased by the said Wright from the defendant or had been sold by the said Wright to the Hudson Valley Foundry Company, or that the said Wright, after the purchase of said pig iron, directed the defendant to ship it, or any part of it, to the Hudson Valley Foundry Company, or that the defendant was not the owner of said pig iron, or any of it, at the time it was delivered by the defendant to the Delaware, Lackawanna and Western Railroad Company, and the bills of lading issued therefor, nor had they made any inquiry in respect thereto.

All claims of the connecting carriers of the plaintiff for freight and other charges bjr reason of the transportation of this pig iron has been assigned to the plaintiff. Demand was made upon the defendant by the plaintiff: to pay the difference between the amount of freight charges and war tax, in accordance with the provisions of the published tariffs, classifications and regulations aforesaid, and the amount paid by the Hudson Valley Foundry Company on each of said shipments, which difference amounted on the first shipment to $62.51, on the second shipment to $62.66, and on the last shipment to $59.62, or a total of $184.79, no part of which the defendant has paid or is willing to pay.

This suit wa.s therefore instituted by the plaintiff on September 12tli, 1923, to enforce the payment of this balance. There are no disputed facts, and the question to be decided is, can the plaintiff, under these facts, recover against the defendant ?

Both the counsel for the plaintiff and the defendant in their briefs have referred to the case of Louisville and Nashville Railroad Co. v. Central Iron and Coal Co., in which, the judgment of the Circuit Court of Appeals for the Fifth Circuit was affirmed by the United States Supreme Court, 1924. 265 Z7. S. Rep. 59.

In some respects that case was similar to this one. The Supreme Court said, among other things, in that case:

“But delivery of goods' to a carrier for shipment does not, under the Interstate Commerce act, impose upon a shipper an absolute obligation to pay the freight charges.”

In the same case the court also said in its opinion:

“Nor does delivery of goods to a carrier necessarily import, under the general law, an absolute promise by the shipper to pay the freight charges. We must, therefore, determine what promise, if any to pay freight charges, was, in fact, made by the Central company.”

Again, the Supreme Court said in that case:

“To ascertain what contract was entered into we look primarily to the bills of lading, bearing in mind that the instrument serves both as a receipt and as a contract.
“Originally, the person from whom the goods are received for shipment assumes the obligation to pay the freight charges, and his obligation is, ordinarily, a primary one.
“This is true even where the bill of lading contains, as here, a provision imposing liability upon the consignee. For the shipper is presumably the consignor;- the transportation ordered by him is presumably on his own behalf, and a promise by him to pay therefor is inferred [that is, implied in fact] as a promise to pay for goods is implied when one orders them from a dealer. But this inference may be rebutted, as is the case of other contracts. It may be shown by the bill of lading, or otherwise, that the shipper of the goods was not acting in his own behalf ; that this fact was known by the carrier; that the parties intended, not only that the consignee should assume an obligation to pay the freight charges, but that the shipper should not assume any liability whatsoever, or that he should assume only a secondary liability.”

While these two eases are somewhat similar, there is a difference in the facts, which changes the situation. The Supreme Court found in this Central Iron and Coal ease that—

“The bills of lading acknowledged receipt of the coke from the Central company.
“But it did not sign them. Nor was it described therein as the consignor. There was no clause by which the shipper agrees expressly either to pay the freight charges or to guarantee their payment. The goods received were not declared to be deliverable to the Central company’s order. On the contrary, the form of the bills of lading indicated that it was neither the owner nor the person on whose behalf the shipment was being made.”

Under this state of facts the Supreme Court affirmed the finding of the Circuit Court of Appeals of the Fifth Circuit that there could be no recovery.

In the present case all three bills of lading have, among others, the following condition:

“The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery,” which was one of the conditions in the hills of lading in the Central Iron and Coal Company case.

In the present ease the defendant signed all three bills of lading, designating itself in each one of them as the “shipper,” and a shipper unless the contrary appears is presumably tlie consignor.

Nothing appears in the bills of lading in this case to indicate that the defendant was not the owner or the consignor of this pig iron, or that the Delaware, Lackawanna and Western Bail road Company was to look to some other person as the owner or consignor from whom the freight and other charges could he collected if the consignee did not pay the same.

There is nothing in these bills of lading'that would in any way indicate that Wright had any interest in this pig iron.

There was an implied promise on the part of this defendant when it shipped this pig iron and signed the hills of lading as shipper, without notifying the carrier that it was neither the owner or consignor of this pig iron, to pay the freight and other charges.

The fact-that the consignee accepted this pig iron, and paid .the freight charges and war tax then demanded, does not .relieve the defendant from liability.

Neither does the fact that an error was made by the plaintiff, or one of the other carriers, which resulted in the delivery of this pig iron to the consignee without the payment of the full freight charge and war tax, or that the consignee became' insolvent before the institution .of this suit, relieve this defendant from the obligation to pay these excess charges; neither is the plaintiff estopped from recovering, because it allowed the consignee to become insolvent before it instituted this suit. It has been held that “no contract of the carrier would reduce the amount legally payable, or release from liability a .shipper who had assumed an obligation to pay the charges; nor could any act of omission of the carrier [except the running of the statute of limitations] estop or preclude it from enforcing payment of the full .amount by a person liable therefor.” Louisville and Nashville Railroad Co. v. Central Iron and Coal Co., 265 U. S. Rep. 59; Pittsburgh, C. C. & St. L. Railroad Co. v. Fink, 250 U. S. Rep. 677.

The conclusion reached is that the plaintiff can recover the amount of this excess freight and other charges amounting to $184.79, with interest.

As nothing was said on the oral argument, or mention made in the briefs as to when the interest would begin to run, I will allow the parties ten days to present briefs on this question, if they so desire, and will withhold the signing of the findings of facts and postea until that time.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WILLIAM H. BARKHORN & COMPANY, RESPONDENT, v. CARLO ZINNO, APPELLANT.
    Argued May term, 1925
    Decided October 28, 1925.
    Sale of Goods* — Lumber Purchased by Defendant-Date of Sale and Delivery Appears1 — Delivery of “Extras” Found to Have Been Made — Apparent That Defendant Personally Ordered the Goods or, at Least, Ratified, the Purchase — There Being Delivery and Acceptance as Well as Part Payment, Case Not Within Statute of Frauds.
    On appeal from the Orange District Court.
    Before Justices Parker, Minturn and Black.
    For the appellant, Gaetano M. Belfatto.

    For the respondent, Louis Weiss.

   Per Curiam.

This action was tried without a jury in the District Court of Orange, and judgment in the amonnt of $288.83 was rendered for plaintiff.

The suit was for a balance of the purchase price of lumber sold and delivered to defendant.

It is objected by the defendant that the complaint does not state a cause of action, because the date of the sale and delivery of the lumber is not alleged. It is sufficient to remark that the date of sale appears in an itemized statement attached to and made part of the complaint.

It is next contended that there was no proof of sale or delivery of the "extras” included in the amount recovered. The court, from the evidence, found otherwise, and the question was one of fact.

It is claimed by the defendant that the evidence conclusively shows that the architect was not authorized to act for him. The court found that the lumber was ordered by the ■defendant. Tlie evidence is not actually before us, but there is sufficient from which a jury could find that the defendant personally ordered the goods, or that, if the architect ordered the purchase, that such act was ratified by the defendant.

It is argued that the contract, if any, should have been in writing. There was a delivery and acceptance of the material, as well as a part payment, and those facts manifestly take the case out of the statute of frauds.

The final contention is that the court should not have reopened the case after a motion for a nonsuit had been made. This was a matter resting in the trial court’s discretion, and presented no basis for legal error.

The judgment will be affirmed.


author: Pee Cubiam.

text:
    ANGELO MONICA, PLAINTIFF-APPELLEE, v. ANGELINA DI BENNEDETTO, DEFENDANT-APPELLANT.
    Argued May term, 1925
    Decided October 29, 1925.
    Landlord and Tenant — Tenant’s Suit on Breach of Covenant— Tenant Notified by Building Inspector to Vacate Because of Unsafe Condition — Lessee Disregarded Notice and was Afterward Ejected by Landlord Who Proceeded to Demolish Building — Landlord Under No Duty in Absence of Contract to Make Repairs — Measure of Damages — Profits in Illegal Sales in An Illicit Business Cannot be Considered as Basis of Damages — Real Measure of Damage was Difference Between Market Value of the Unexpired Term at Time of Eviction and Rent Received For the Premises. 0
    On appeal from the Essex County Circuit Court.
    Before Justices Parker, Minturn and Black.
    Por the plaintiff-appellee, Edward R. McGlynn.

    Por the defendant-appellant, Howe & Davis.

   Pee Cubiam.

The action was brought by a tenant against his landlord for a breach of the covenant of quiet enjoyment contained in a lease dated April 1st, 1922, for three years, with an option to renew for two years.

The lease covered the first floor, consisting of a store, and the second floor consisting of living rooms in a building in the city of Orange. The third floor was rented to a stranger to the action.

On March 1st, 1924, the tenant received a notice from the building inspector to vacate the premises on April 1st because of its dangerous condition.

The ordinance under which the notice was given provided that the council must first adjudge the premises unsafe, and then that the building inspector notify the occupants, and then provided for a compulsory removal by the chief of police. This procedure, however, was not followed, and from that fact emanates the trouble. The plaintiiMessee disregarded the notice, and on April 14th, 1924, the defendant and her son ordered plaintiff out, and proceeded to demolish the building.

The first point contends that there was error in the charge in this direction, viz., “the landlord had to exercise reasonable care to keep the exterior walls and the roof and the foundation of this building in repair.”

The court stated, also, that as the building was demised to two tenants, the landlord reserved these parts of the building for the common use of the tenants. This, obviously, was error, because the landlord Is under no duty, in the absence of contract, to repair the building for the tenant’s use.

The second point, urged as error, is that the court erred in charging that the plaintiff could recover for disbursements made for improvements or repairs, if they found that defendant disregarded her stipulation in the lease to make such repairs in order to place the premises in tenable condition. The difficulty is that a broach of this stipulation was not declared upon, nor were these items claimed as special damages. At most, if such items were within the contemplation of the parties at the time of the execution of the lease, the plaintiff could only recover for such improvements, in the proportion that the residue of the term bears to the entire term.

It is also urged that the court overruled questions asked of the building inspector, as follows: “Had an application been made to you for a permit for repairs to that building would you have granted it?” “Did you notify the landlord to remove the building?” These questions manifestly were relevant upon the question of damages.

The measure of the special damages (in addition to the $10 moving expense) was the value for the business for 'the residue of the term as provided in the lease, unless the jury should find from the evidence that the lease would have been terminated sooner by authority of law, or by destruction of the' subject-matter.

It is next urged that there was error in overruling questions put to the patrolmen, viz., “Did you find [or get] any wine or whiskey [or other intoxicating liquor] on the premises.” Such commodities, obviously, were contraband in law, and profits in their illegal sales cannot be considered as a- basis for damages resulting from an illicit business.

It is urged, also, that there was no error in the refusal to charge as follows: “Loss of prospective profits cannot be recovered in this case.”

The evidence was that plaintiff was unable, after a reasonable effort, to find another store in the neighborhood, and that he thereupon was obliged to enter another business. Loss of profits, as such, was not the measure of damages. The business was destroyed and not interrupted, and loss of profit was therefore admissible as an element to prove the value of the business. The court charged, however, in effect, that the plaintiff could recover, for loss of earnings. Loss of time or earnings was not properly in the case as a subject-matter for damages. Then, too, the evidence of loss or profits was, obviously, uncertain and entirely remote.

The real measure of damage was the difference between the market value of the unexpired term at the time of the eviction, and the rent reserved for the premises. The undisputed evidence was that the building was unsafe, and that it would probably collapse during the spring thaw, thus destroying the subject-matter of the controversy. If the premises had no rental value, and were incapable under the situation of producing a return, no general damages were recoverable.

For these, reasons the judgment should be reversed.


author: Pee Cueiam.

text:
    THE STATE, EX REL. ENGLEWOOD THEATRICAL ENTERPRISE, INCORPORATED, RELATOR, v. ROBERT S. TIPPING, C. CORTLANDT HAY, ARTHUR S. COOKMAN, GEORGE J. FAULKNER, CHARLES H. GREENBERG, CONSTITUTING THE COMMON COUNCIL OF THE CITY OF ENGLEWOOD, COUNTY OF BERGEN AND STATE OF NEW JERSEY; H. V. D. MOORE, MAYOR OF THE CITY OF ENGLEWOOD, AND ROBERT JAMIESON, CITY CLERK OF THE CITY OF ENGLEWOOD, DEFENDANTS.
    Submitted May 15, 1925
    Decided November 5, 1925.
    Municipalities — Licenses — Theatres — Application For License, Building Not Yet Erected — Application Denied by Common Council — Fee Returned — Respondents Filed No Brief — Application Has No Reference to Erection of Building — Record Does Not Show Reason For Refusal in Such An Uncertain Situation, Only An Alternative Writ of Mandamus Will Be Awarded.
    Before Justices Trenohard, Katzenbach and Lloyd.
    For the relator, David Boblcer (Harry .Unger, of counsel).
    For the defendants, F. Hamilton Reeve and William N. Beufert.

   Pee Cueiam.

This is a rule to show cause why a peremptory or alternative writ of mandamus should not issue to compel the common council and mayor of Englewood, and the city clerk, to issue to the relator-“a license to conduct a theatre at 16 to 22 Palisade avenue,” in the city of Englewood, which license was refused.

The city ordinance, by section 1, provides that no> person or persons or corporation shall “establish or maintain within the limits of the city of Englewood any pubic show or exhibition of a permanent character without first obtaining a permit from the council.” Section 2 provides “that any person or persons or corporation desiring such permit must make written application for the same, stating the character of such show or exhibition, and the location where the same is to be held,” and also provides for “the payment of a fee of $50, payable annually.”

It is by no means clear that the application in the present case states the character of the show or exhibition. The first application merely says that relator “makes application for a theatre license. We propose to erect an up-to-date theatre with stores and office, 16-22 Palisade avenue, Englewood.” This application, having been made before the relator was incorporated, and having been denied, a second application was made a few weeks later, and, after incorporation, saying merely that relator “makes application for a theatre license; said theatre to be erected on 16, 18, 20, 22 West Palisade avenue, Englewood, New Jersey.”

The fee required by the ordinance was paid and returned when the second application was refused for reasons which do not clearly appear.

We have no brief for the respondents, and, as matters now stand, we are not definitely advised, either by the record or otherwise, as to the reason for the refusal. The building where the show is to hold forth apparently has not as j^et been erected, but the application is not for a permit for erection. It is, as we have stated, an application for a theatre license at a place in the city where it is proposed to erect a building.

In such state of uncertainty as to factual situation, the most that the relator can properly Jiope to obtain is an alternative writ of mandamus, and that will he awarded.


text:
    MAX WASSERMAN AND FRANK SMITH, PROSECUTORS, v. THE STATE OF NEW JERSEY AND WILLIAM V. O’DRISCOLL, JUDGE OF THE SECOND CRIMINAL COURT OF JERSEY CITY, RESPONDENTS.
    Submitted May 15, 1925
    Decided November 12, 1925.
    Disorderly Persons — -Common Thieves and Pickpockets Frequenting Public Resorts — Validity of Complaint Unquestioned— Decision Affirmed.
    On certiorari, &c.
    Before Justices Tren chard, Katzenbach and Lloyd.
    Por the prosecutors, Hyman Brodsky and Edward M. Salley.

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

   Per Curiam.

Upon a complaint, the validity of which is not questioned, the prosecutors of this writ were convicted by the Second Criminal Court of Jersey City of being common thieves and pickpockets, and to have been frequenting and attending a railroad depot, a place of public resort, for the unlawful purpose of stealing, an offense denounced by section G of the act concerning disorderly persons {Comp. Slat., p. 1928), and were adjudged to be disorderly persons pursuant to that section of that act.

The defendants below" bring up for review such conviction, and the sentence imposed thereon.

Upon examination we perceive that this case is substantially similar to that of Rothman v. State, of this term and this day decided. The questions raised are the same. We think that the decision of that case controls this, and therefore the proceedings of the court below will be affirmed, with costs.


text:
    JACOB COHEN, PROSECUTOR, v. STATE OF NEW JERSEY AND WILLIAM V. O’DRISCOLL, JUDGE OF THE SECOND CRIMINAL COURT OF JERSEY CITY, RESPONDENTS.
    Submitted May 15, 1925
    Decided November 12, 1925.
    Disorderly Persons — Common Thief and Pickpockets Frequenting Public Places — Allegation of Insufficiency of Evidence Sustained and Conviction Set Aside.
    On certiorari, &c.
    Before Justices Trenchard, Katzeotsach and Lloyd.
    Eor the prosecutor, Hyman Brodslcy and Edward M. Salley.

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

   Per Curiam.

Upon a, complaint the prosecutor of -this writ was convicted by the Second Criminal Court of Jersey City of being •a common thief and pickpocket, and to have been frequenting and attending a railroad depot, a place of public resort, for the unlawful purpose of stealing, an offense denounced by section G of the act concerning disorderly persons (Comp. tUot., p. 19:38), and was adjudged to be a disorderly person pursuant to that section of that act.

The defendant below brings up for review such conviction, and the sentence imposed therein, and now argues, among other things, that “there was not sufficient evidence on which to base the conviction.”

AVe think that there was not. In our judgment the evidence set forth in the record of conviction does not show or tend to show that the defendant was a common thief and pickpocket.

The conviction and sentence in question will therefore be set aside.


author: Oaeerey, J.

text:
    Essex County Court of Oyer and Terminer.
    State of New Jersey v. Harrison W. Noel.
    [Decided October 8th, 1925.]
    Crimes — Murder—Insanity—Competency of Defendant To Go on Trial — Experts Find Defendant Suffering From Dementia Praecox or Mental Deterioration — Defendant Found Capable of Understanding His Position and Advising With Counsel— Mere Incapacity to Fully Understand Legal Rights and to Make Known to Counsel All Facts Material to Defense is Not Sufficient Ground For Delaying Trial — Impossible to Lay Down Fixed Rule.
    On indictment for murder.

      Mr. J. Victor D’Aloia, assistant prosecutor of the pleas for Essex county, for the state.

      Mr. Merrill Lone, for the defendant.
   Oaeerey, J.

Harrison W. Noel has been indicted, charged with the murder of Raymond Pierce. The defense contends that the prisoner is insane and not able to comprehend his position or to rationally consult with counsel in the preparation of a defense. Therefore, the precise question raised and decided in these proceedings is the mental state of the defendant at this .time, and only with relation to the issue raised by the defense.

In State v. Peacock, 50 N. J. Law (at p. 36), Mr. Justice Reed, speaking for the supreme court, said:

“It is undoubtedly the law that a person who, by reason of insanity, is unable to comprehend his position, and of making his defense, cannot be placed upon trial for a crime. If the court, either before or during the progress of such a trial, either from observation or upon the suggestion of counsel, has facts brought to its attention which raises a doubt of the condition of defendant’s mind in this respect, the question should be settled before another step is taken. The method of settling this preliminary question where it is not the subject of statutory regulation is within the discretion of the trial court. The court can itself enter upon the inquiry, or submit the question to another jury empaneled for that purpose.” The court cites the case of Freeman v. People, 4 Den. 9.

In the above-cited case Justice Beardsley says, in discussing the New York statute with reference to its similarity with the common law rule:

“If, therefore, the person arraigned for a crime is capable of understanding the nature and object of the proceedings going on against him, if he actually comprehends his own condition in reference to such proceedings and can conduct his defense in a rational manner, he is, 'for the purpose of being tried, deemed sane, although on some other subjects his mind be deranged or unsound.”

During, the hearing, which lasted five clays, the testimony of eleven physicians and three laymen was heard, and, in addition to their evidence orally, the transcripts of at least four physicians, containing their examinations of the defendant in the form of questions and answers, were read into the record. The hospital record concerning the prisoner during his confinement at Overbrook from March 12th, 1925, until his leaving there on Juno 28th, 1925, together with the report of Dr. -Slocum, in charge of the Craig House, Beaeonon-the-Huclson, at which place the defendant stayed from July 18th, 1923, until September 29th, 1923, were also introduced as evidence. Of necessity, the hearing made relevant considerable evidence as to the defendant’s mental state prior to the third day of September, 1925, at which time Pierce met his death, but- not on the theory that the defendant’s state of mind, as found prior to that time, would be conclusive or dispositive of the case under the issue as framed. Therefore, the order of the juvenile court committing the defendant, under date of March 24th, 1925, may be treated only as evidence in the case justifying Noel’s admission to Overbrook Hospital pursuant to an order made bjr a court of competent jurisdiction. Neither the findings of that court nor the evidence supporting its conclusions are binding on this court in this inquiry.

A complete incorporation of the medical testimony would serve no purpose in this memorandum. However, a few excerpts of the testimony will be noted.

Dr. LeRoy G. Kirkman, a physician of splendid reputation, examined the defendant on five occasions, the first on the 12th of September and the last on the 19th. He is of the opinion that the defendant is mentally capable of appreciating the predicament he is in, predicating his views upon the story the defendant told him touching upon the happenings of the crime and not finding that he is suffering from any delusions or hallucinations or confusion in his mental processes. ' '

Dr. Edward W. Martens, the physician at the jail, is of the same opinion, it being based upon an observation of the defendant from day to day at the Essex county jail.

Dr. Walter S. Washington, an alienist, examined the defendant at the court house on September 10th. The entire examination, in the form of questions and answers, was offered in evidence in addition to his oral testimony on the stand. Dr. Washington found his apprehension was good, his orientation perfectly normal, his memory, especally for recent events, was remarkably good, and that he gave a connected, coherent statement of his personal history and family history. In answer to the specific question why he left Harvard College, he said he left there to earn money; that he was envious of the students because they had a lot of money. In response to the question whether or not he though it was wrong to shoot people and kill them his answer was, "yes.”

Dr. Ambrose P. Dowel, a specialist in nervous and mental cases, was offered by tlie state, and testified as to three examinations of the defendant made by Mm at the county jail. As the result of these examinations, he is of the opinion that the defendant appreciates his predicament, and that he can aid counsel in the prepartion of a defense. One of the examinations of the defendant by Dr. Dowel was the day after he was brought to tire court house to plead. Ho detailed to Dr. Dowd the happenings, and in response to this question by Dr. Dowd, “Did you expect to plead to a charge?” answered, “Yes. I was to plead to a charge for murder and kidnapping. Q. But you did not plead? A. No. The lawyers are going to renew their argument on Monday. I don’t know whether I will be taken down or not. Q. How are you gong to plead ? A. It doesn’t make any difference how I plead. They have my signed confession. Captain Mason has it.”

Another witness, Dr. Christopher C. Beling, an alienist of reputation, examined Noel on the 21st and 22d of September. He, too, is of the opinion that the defendant is mentally capable of appreciating and realizing the predicament he is in: that he is charged with murder, and that lie is mentally' capable of aiding his counsel in the preparation of a defense. Dr. Reling’s examination was, in part, as follows: “I asked him liow he came to do what he had done and he said, ‘Well, do you want me to tell yon? 1 planned to get the money.' I said, ‘You tell me your story/ and then he started to tell me what he did. He said that after he had committed the crime — he said after he had killed the little girl, he had gone to the bank — he had gone to the post office and deposited a postal card informing an Edward Brown that they must get the money the next day and take the eight twenty-two train in the morning going to Philadelphia, and when they saw a red balloon at the railroad track they were to throw this money out, $4,000. He said he had gone there and waited and had held np the balloon and nobody threw the money, so he came back. I asked him, ‘How did you conceive this idea of taking this child, kidnapping this child for- ransom ?’ T remember/ he said, ‘the Philadelphia case where two men used a buggy and kidnapped a child. Of course, I did not use a buggy/ He said/‘I used an automobile/ I asked him also how he-felt about himself, as far as his own health was concerned, a2id he said, ‘I feel all right/ He said, T never felt right ever since they did a puncture on my spine in the hospital, and when I came out of the hospital I felt that the top of my head was off. I had a sensation in my head/ He said when he went to the hospital he was all right, lie knew everything that transpired in the hospital, except for a few days, when he was very much excited, when he did not have his clear recolleetio22. I asked hiin if he knew that it was wrong to kill a child and he said, ‘Yes, I know it is wrong/ I said, ‘Why did you kill her ?’ ‘Because I did not want to be seen with her. If I had been seen with her they would have got me/ I said, ‘Do you know what the punishment is for killing a person V He said, ‘Yes, it is the electric chair/ ”

On cross-examinations all of the physicians called by the state, with the exception of Dr. Markens and Dr. Washington, testified that the defendant was suffering from dementia praecox, but, - with all of this, they were of -the opinion that a dement praecox could appreciate circumstances surrounding him and could rationally consult with counsel.

Dr. George Davies, a physician of experience in mental cases, testified 021 behalf of the defe2ida2it. His first co2itact with him was February 25th. On that occasion he made an examination of Noel and was one of the physicians to certify to the temporary commitment at Overbrook. Dr Davies made an examination of the defendant on the 30th of September, during the progress of this hearing,. accompanied by Dr. Thompson. The defendant detailed his whereabouts to Dr. Davies from the tÍ2ne he left the hospital in June. I21 response to a question by Dr. Davies concerning the killing of Pierce, the- defendant said he remembered it. The doctor testified that all through his exa2nination he encountered much - difficulty in getting answers from the defendant due to his- hesitation in replying. - He did say, as a reason for- killing Pierce, that he needed the automobile, and that if the decedent had been a white man he would have killed him just the same. He told the doctor that the place of killing was in a quarry. He further told the physician that he remembered killing a little girl, and he thought it would do him a lot of good, and that it would make him like-'other people and make him enjoy talking like other people. He was further asked if he realized that he could be punished for what ho did, and he said he was told that he would he liable to be punished by death for it. As a result of this examination and his knowledge of the defendant. Dr. Davies is of the opinion that he is not able, rationally, to consult and assist counsel in the preparation of a defense, and he is suffering from dementia praecox. The doctor defined dementia praecox as a term applied to a group of mental cases characterized by mental d eter io rat i o n.

Dr. Thompson examined the defendant on the 28th, at the time of Dr. Davies’ examination. Dr. Thompson, at this examination, asked if they tried to harm the defendant at Overbrook, to which the defendant answered: “I used to think so, hut I do not think so now.” The defendant further said that lie thought they were trying to make a superior being out of him, and that he thought he was a superior being; that he thought he was a second Christ. The doctor further questioned him as to whether or not he felt at any time in his past life up to the present time that he was mentally deranged or of an insane mind. The defendant said that he believed that at periods when he was in Overbrook and periods before that, but to-day he does not know whether his mind is sound or not, and he does not think that his mind was sound at the time of the commission of the crime.

Dr. William B. Pritchard, an alienist practicing in New York City, produced by the defense, testified that he was introduced to the defendant at the county jail by Mr. Barber. The witness further testified that he explained to Noel that he was a specialist, and that the purpose of his visit was to form an opinion as to the mental condition of the defendant, and that he asked the defendant if he knew who his counsel was, to which the defendant answered, “Mr. Lane.” Dr. Pritchard is of the opinion that the defendant is insane and is a dement praecox and lacks capacity to rationally appreciate the circumstances or the position he is in, and that he cannot consult or advise with counsel. He predicates his opinion upon a history of the case as indicated by the records at Over brook and an examination of the defendant himself.

Dr. Frederick C. Horsford, a physician of reputation, practicing in the city of Newark, was also called by the defense. He made an examination of the defendant on September 28th and reached the conclusion that the defendant was insane and suffering from dementia praecox; that he could not rationally appreciate the situation he was in, and that he could not rationally consult with counsel and assist in the preparation of a defense.

Dr. McDonald, of national reputation, examined the defendant at the county jail September 22d. He, too, concluded that the defendant was insane, basing this opinion upon the personal examination and an examination of the history of the defendant while at Overbrook Hospital and while at Beacon, New York, and that he was suffering from dementia praecox, and that the defendant's reason was impaired so that he could not rationally advise counsel or assist in the preparation of his trial. At the time of Dr. McDonald's visit to the jail, Mr. Barber introduced Dr. McDonald. Comment on this is later noted.

As pointed out, the court is not called upon to determine whether or not the defendant was insane at any time prior to or at the time of the commission of the offense with which he is charged, and, assuming that the record shows that the defendant was suffering from some form of insanity justifying his commitment to Overbrook under date of March 24th, 1925, the language of the chief-justice in State v. Spencer, 21 N. J. Law (at p. 202), is pertinent:

“Proof that a man has at some former period of his life been afflicted with such insanity as would render him an unaccountable being, and exonerate him from punishment, is not sufficient, if it also be proven, or comes out in the evideuce, that he has at any time since been so far restored to his right mind as to he capable of.moral action and of discerning between right and wrong. Otherwise, a man who had once been out of his right mind, might ever afterwards commit any crimes he chose without being held responsible for it. If it were true' that insanity never left a man after once clouding his mind, then it would be enough to exculpate him to prove that he had once been insane. But it often occurs that men have turns or “spells” of insanity, and then enjoy intervals of entire soundness of mind. Now, although they would be excusable for what they did in a paroxysm of madness, they are by no means excusable for what they do when they have their senses.”

In United States v. Chisolm, 149 Fed. Rep. 284, the question was presented whether one not entirely sane could be put on trial in a criminal case. The court held there that if he comprehends his own position with reference to the proceedings, and has 'such possession and control of his mental power, including the faculty of memory, as will enable him to testify intelligently and give his counsel all the material facts on the criminal act charged against him, he was subject to trial.

It was also held, discussing capacity and comprehension, that mere incapacity to fully understand legal rights, and to make known in an intelligent manner to his counsel all the facts material to the defense, is not a sufficient ground for refraining from proceeding to trial. State v. Arnold, 12 Iowa 479.

In United States v. Chisolm, supra, the court said:

“It is impossible to lay down any fixed rule, as a matter of law, as to any particular state of facts which will unerringly demonstrate sanity, or the contrary condition of the human mind, or the degree of aberration which, when found to exist, exempts an accused person from criminal responsibility, or unfits him to rationally aid in his defense, when arraigned for a crime. * * * But whether or not an individual’s departure from general rules governing human action demonstrates such' aberration of mind as exempts him from criminal responsibility, or shows unfitness on that account, to be placed on trial, depends upon the circumstances of the particular case; and is to be gathered, not merely from the act for which he is arraigned, but must also be determined and tested in view of every other fact and circumstance which sheds light upon the condition of the defendant’s mind at the period as to which the inquiry is directed.”' See S'A. L. B. 95, 96.

The term to consult with counsel, or to consult with anyone, is a relative one. To what degree one may consult with another is more or less dependent upon the subject-matter and the information on the given subject.

The supreme judicial court of Maine said: “To consult is to apply for direction or information, to ask for. advice, to discuss something together, to deliberate.” Hewey v. Metropolitan Insurance Co., 62 Me. 600.

A careful reading of the testimony, aided 'by my observation and conversation with the defendant, and not being unmindful that the physicians, both for the state and defense, are' of the opinion that the defendant is suffering from some form of mental deterioration at this time, leads me to the conclusion that the defendant’s appreciation of his predicament is apparent, and that he comprehends his position with relation to the crime charged against him.

It has been urged that no reliance could be placed upon my thing that he might tell counsel, but the court has no way of determining that at this time. The testimony, both in the form of the transcripts-marked in evidence and the oral testimony of the physicians for the state and the defense, is replete with responsive answers to questions propounded to the defendant. The statement made by him to the prosecutor’s office was examined into and many facts were found to exist in keeping with the statement. It seems to the court that'the solution of this matter up to the stage of this hearing has been 'due to the reliability of the defendant’s story as told by him.

There has been much stress laid upon the defendant’s muteness, both as a symptom of dementia praecox and as a hindrance to counsel in the preparation of his defense, and, while there was much hesitation in the defendant’s answers to the various questions put to him, it seems Mr. Howard C. Barber, associate counsel, had little difficulty in conferring with the prisoner. At the time of introducing Dr. MacDonald to the defendant on the 2M of September, he said: “This is really the first private conference we have had. Dr. McDonald wants to talk to you, and I want you to talk to him just as you would talk to me.” The answers to Dr. McDonald’s questions following this conversation seems to have been freely made, and they lacked the hesitancy which characterized some of the questions put to him at other examinations.

As pointed out at the beginning of this memorandum, the issue here is a narrow one, and, deciding the precise question framed, this court is of the opinion that the prisoner is able to comprehend his position and to make a rational defense.

Therefore, he is remanded, with a direction that his guilt or innocence under this indictment shall he determined by a jury.


author: Harrt J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    PETER MARCISIN, PETITIONER, v. E. I. DU PONT DE NEMOURS & COMPANY, RESPONDENT.
    Alleged Injury to Wrist by Falling Into a Paint-mixing Vat— Respondent Claimed Injury Resulted From. Fall on Floor While Intoxicated — Evidence Indicated That Injury Did Not Occur as Petitioner Alleged — Intoxication Not Determined Though There Was Evidence to Sustain Respondent’s Contention.
    For the petitioner, Jerome Alper.

    For the respondent, Abel Klaiv.

   H: ❖ H« H' H« Hi Hi

The facts in this case show that the petitioner, Peter Marcisin, was in the employ of the respondent on April 9th, 1925, at the respondent’s plant, located at 256 Vanderpool street, Newark, New Jersey, at the rate of thirty-six dollars ($36) per week; that, from the petitioner’s testimony, he sustained a fracture of his right wrist by falling into a wooden vat or tub described as being, approximately, from seven to nine feet in height and from five to six feet in diameter, which contained an agitator, being a pole in the centre of the tub or vat with wooden paddles extending therefrom to the edge of the tub or vat, and which is made to travel in a circular motion by means of an electric motor; that, in attempting to stop the circular motion of the agitator, the petitioner slipped into the tub or vat before he had succeeded in stopping the same; that these events occurred on the evening of April 9th, 1925, at about eight p, m., and that at the time thereof the tub or vat contained a quantity of paint described by the petitioner as being, approximately, two feet in depth.

That at the time when the petitioner slipped into the tub or vat, as set forth above, the agitator was moving; that he immediately climbed out of the same, tied a handkerchief around his injured wrist, changed his clothes and reported to the night superintendent at the respondent’s plant; that the night superintendent ordered him to go home and report to the plant' physician the following morning for treatment.

The parties hereto stipulated that a physical examination of the petitioner discloses a permanent disability of ten per cent, loss of the right hand.

The petitioner then rested his case.

The night superintendent at the respondent's plant, called on behalf of the respondent, testified that the petitioner presented himself at about seven-thirty p. m. on the night of April !)th. 19.25, and claimed io have sustained an injury to his right hand by virtue of having fallen on the floor while in the course of his employment. The night superintendent further testified that, in his opinion, the petitioner was in an intoxicated condition, and that he would have sent the petitioner home even if he had not displayed his injured hand; that the petitioner was dressed in his street clothes, that his hand was bandaged, and that his face and hands were free from any paint.

On the petitioner’s own testimony there was some question as to whether he could have sustained the injury to his hand in the manner which he described. I am satisfied that if the petitioner liad fallen into the tub or vat, as described by him. he would have sustained severe bodily injuries, and, in all probability, might have been killed by being caught in the rotary motion of the agitator which he described as being still in motion when he fell into the same. After hearing the testimony of the night superintendent, I am satisfied that the injury could not have occurred as described by the petitioner. I, therefore, deem it unnecessary to determine' the question as to whether or not the petitioner was intoxicated at the time of the alleged injury, although convincing evidence to ibis effect was produced on behalf of the respondent. The petitioner has failed to satisfy me that he received the injury to his wrist while in the course of his employment with the respondent.

* * # * * i'fi #

And compensation is hereby disallowed.

Harrt J. Goas, Deputy Commissioner.


text:
    AARON RIPS, PROSECUTOR, v. ABRAHAM LEVITAN ET AL., RESPONDENTS.
    Submitted June 9, 1925
    Decided November 17, 1925.
    Judgments — Jurisdiction of District Court — Service of Process— Service Made by Leaving Copy of Summons at Defendant’s Home With His Wife by Sergeant-at-Arms — Wife Denied Receipt, ' But Proofs Satisfy Court of Legality of Service— Judgment For a Larger Amount Than Summons Demanded Though For An Amount Within Court’s Jurisdiction — In Absence of Defendant, Judgment Cannot be Entered For Amount Greater Than That Set Forth in Summons.
    On.writ of certiorari.

    Before Justices Trenohard, Katzenbach and Lloyd.
    Eor the prosecutor, G'. Earl Brugler-.

    Eor the respondents, Abraham Levilan.

   Pee Cueiam.

The writ of certiorari was granted in this case to test, the validity of a judgment rendered against the prosecutor in the Second District Court of Hudson county. The judgment was taken by default, and it is claimed, first, that the trial court was without jurisdiction because the process was not legally served; second, that the judgment was' invalid because rendered in a larger amount than the sum demanded in the summons, and third, that the action, being by an attorney to recover for professional services, the court was without jurisdiction to hear the case in the absence of proof of service of a bill before suit brought.

As to the service of the. summons the return and testimony of the sergeant-at-arms of the court is to the effect that it was served on the prosecutor by leaving a copy at his usual place of abode with the prosecutor’s wife, she being' over fourteen .years of age. While the wife denied receipt of the writ the proofs satisfy us that it was legally served, and, even if it were otherwise, the official return could not he thus attacked. Castner v. Styer, 23 N. J. L. 236.

The second point has more merit. The summons demanded $300 damages and the judgment recovered was for $331. While both amounts were within the jurisdiction of the District Court and within the amount claimed in the state of demand filed in the cause, it has been held that, in the absence of the defendant, no judgment can be entered in the District Court for an amount greater than that set forth in the summons. Drake v. Mowder, 89 N. J. L. 306. As stated in the opinion filed in the case cited, “if the legal status which he [the defendant] is thus permitted to assume, be subject without his knowledge or consent to be changed to his detriment, a situation is presented which admits of an enforced liability upon an absent defendant, the extent of which can be determined only by the limitation of the court’s jurisdiction.

This conclusion makes it unnecessary to consider the third reason for reversal.

The judgment will he reversed and a new trial awarded.


text:
    THE STATE, EX REL. TREAT INVESTMENT COMPANY, INCORPORATED, RELATOR, v. FREDERICK BIGELOW, SUPERINTENDENT OF BUILDINGS OF THE CITY OF NEWARK, AND OTHERS, RESPONDENTS.
    Argued October 7, 1925
    Decided November 17, 1925.
    Zoning — Stores in Restricted Territory — Board of Adjustment Affirmed Building Inspector’s Refusal to Grant Permit: — Case Within Rule of Ignaciunas v. Risley — Peremptory Writ Awarded.
    On rule to show cause why a writ of mandamus should not issue.

      Before Justices Then chard, Katzenbach and Lloyd.
    For the relator, Isadore H. Colion.

    For the respondents, Jerome T. Conglalon and Charles M. Myers.-

   Per Curiam.

This case is before us on a rule directed to Frederick Bigelow, superintendent of buildings of Newark, to show cause why a, peremptory or alternative writ of mandamus should not issue requiring the issuance of a permit to the relator for the erection of a building containing stores and dwellings on Wainwright street in that city. The parties have stipulated the facts, and from them it appears that the relator is the owner of a plot of land on Wainwright street containing ñfty-nine and ten hundredths feet in front and one hundred feet'in depth; that an application was made to the respondent, superintendent of buildings, for a permit, and the legal fee tendered therefor. The application was refused on the ground that the proposed building was forbidden by a zoning ordinance of the city. The relator then appealed to the board of adjustment of the city, a board created by ordinance in pursuance of chapter 146 of the laws of 1924. After hearing, the board of adjustment affirmed the decision of the superintendent of buildings and itself°-refused to grant the permit. On this state of facts it is apparent that the refusal of the building inspector was not justified: The construction applied for conies clearly within the decision of the Court of Errors and Appeals in the case of Ignaciunas v. Risley, 2 N. J. Adv. R. 852, and that these rights could not be impaired through establishment of a board of adjustment is established by the decision of the same court in the case of Losick v. Binda, No. 102, May term, 1925.

The relator is entitled to a peremptory writ of mandamus and the same is awarded.


text:
    NATHAN SLAMOWITZ AND JOHN PALARA, RELATORS, v. JOHN JELLEME, INSPECTOR OF BUILDINGS OF THE CITY OF PASSAIC, AND THE BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC, RESPONDENTS.
    Argued October 7, 1925
    Decided November 17, 1925.
    Zoning — Apartment-houses in Restricted Territory — Relators Made Application With Consent and Approval of Owner— They Pursued Necessary Steps to Obtain Permit — They Exhausted Their Remedies by Appeal — Board of Adjustment Cannot Try Constitutional Rights of Relator.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Trenchard, Katzenbach and Lloyd.
    For the relators, Ward & McGinnis.

    For the respondents, Thomas E. Duffy and Frederick S. Raazenhofer.

   Per Curiam.

A rule was issued in this case requiring the respondents to show cause whir a peremptory or alternative writ of mandamus should not be awarded to compel the issuance oí a building permit to the relators. Under permission granted in the rule depositions have been taken from which it appears that the relators had a contract to purchase from one Sw.an certain lands in the city of Passaic, and that they, with the consent of Swan, made application to the defendant Jelleme, as building inspector of Passaic, for a permit to erect an apartment-house. The application was refused by the im spector on the ground that the relators would not be permitted to build an apartment-house on the lot because of the provisions of a zoning ordinance. The application was for a two-familv apartment-house and the plans therefor were in the possession of the relators, but the inspector refused to' examine them. Further application to the board of commissioners of the city was made, and the relators were informed that a board of adjustment was about to be created before whom they could appear. Upon the creation of this board the relators applied for a permit and were again denied. It is apparent from the depositions taken that this refusal was based solely on the ground that to grant a permit would be in violation of a zoning ordinance forbidding the erection of apartment houses on lands located as were those of the relators.

In the defendants’ brief it is sought to sustain this refusal on several grounds—

1. That the relators were not the owners of the property at the time they made application. The application, however, was made with the consent and approval of the owner, and is controlled by the ease of Reimer v. Dallas, 3 N. J. Adv. R. 1302.

2. That the relators did not follow the necessary steps to get a building permit. We think the evidence discloses to the contrary.

3. That the relators did not exhaust their remedies by appeal. This point is wholly without merit. Upon the refusal by the building inspector relators made application to the board of commissioners, were referred to an adjustment board to be created, and to this board they .applied and were again refused. What more they could have done it is difficult to conceive. The last step, however, they were not obliged to take. • The constitutional rights of the relators were not triable before that body (Losick v. Binda, 3 N. J. Mis. R. 421), and these rights are settled by the case of Ignaciunas v. Risley, 2 N. J. Adv. R. 852, in the Court of Errors and Appeals, and in this court by Nelson Building Co. v. Binda, 3 N. J. Mis. R. 419.

The rule to show cause will be made absolute, to the end that a peremptory writ of mandamus may issue.


author: Pee Curiam.

text:
    WILLIAM DOYNE AND MARTIN H. DOYNE, CO-PARTNERS, TRADING AS PROSPECT PLANING MILL COMPANY, PROSECUTORS, v. MORRIS STOLLERMAN, RESPONDENT.
    Argued May 5, 1925
    Decided November 17, 1925.
    Workmen’s Compensation — Legal Notice to Employer of Accident Found to Have Been Given — Counsel Fees — Act of 1918 Expressly Authorizes Counsel Fees- — Act Held Constitutional —Award of Counsel Fee in This Instance Not in Anticipation of Weekly Payments, Nor, in Effect, a Commutation of Compensation,- — Award Not Directed to be Paid From Funds Due From Employer to Employe — It is in Part a Burden Imposed on the5 Losing Party, in Part An Award Against the Employe Alone.
    On rule to show cause.
    Before Justices Trencuard, Katzenbacii and Lloyd.
    For the rule, Frank G. Turner.

      Contra, Kent & Kent.

   Pee Curiam.

A rule was allowed in this case to show cause why a writ of certiorari should not be awarded to review the proceedings in a workmen's compensation proceeding, heard first in the compensation bureau, and, subsequently, on appeal in the Hudson Common Pleas.

The claim was by Morris Stollerman, an employe of the prosecutors, for an injury to the eye received in the course of his employment. Stollerman was awarded by the bureau $102 for temporary disability, $1,530 for permanent disability, $125 for medical expenses, $46 for disbursements in the suit and a counsel fee of $1,000. These awards were sustained on the appeal except that of the counsel fee, $250, was directed to be paid by Stollerman. An additional counsel fee of $100 was awarded counsel on the appeal.

The first contention in support of the rule is that legal notice of the injury was never given to the employer. The act of 1911, section 15, prescribes that notice of an injury shall be given- the employer within fourteen days. The accident happened on a Friday, and Stollernian notified a Mr. Dovne, one of the 'firm, on the following Sunday, that he “had an accident with the glue, went in his eye,” and “about the brush going into your [his] eye.” While this notice was not-as explicit as might be-desired, we think it fairly apprised the employers of the fact of injury and satisfies the statute.

It is next contended that the allowance of counsel fees was illegal.' Such allowance seems to be expressly authorized by the act of 1918,. section 17, page 435, which enacts that “the official conducting any hearing under this act may, in his discretion, allow to the party in whose favor judgment is entered costs of witness fees and a reasonable attorney fee, when, in his judgment, the services of an attorney were necessary for the proper presentation of the case.” While the fee awarded seems to be large, the power of the bureau and of the court is clear, and in them is lodged the discretion to determine, in the first instance, what is a reasonable amount, and we cannot say the sum fixed is so clearly unreasonable as to require modification.

It is said, however, that the award anticipates the weekly payments, and, therefore, in effect, commutes the compensation to pay fees in contravention of that portion of paragraph 6 of the act .of 1911, as amended by the act of 1913, page 310, which forbids commutation to “make payment to physicians, lawyers or airy other persons,” and we are referred to the decision of this court in the case of Naporowski v. Serrzan, 2 N. J. Mis. R. 113. We think the decision is not applicable to the facts of this case. Seven hundred and fifty dollars of the award against the prosecutors is in nowise a part of, nor dependent on, the awards to the employe, but is a burden imposed on the losing party under section 17 of the act of 1918, supra. Therefore, the question of commutation is by no possibility involved beyond the award of $250, and, as to this item, it is directed to be paid by the petitioner. The judgment does not direct that it be paid from any funds coming from the employer, but is an award against the employe alone. This is in no sense commutation. Stollerman does not complain, and with the payment the employer is not concerned.

It is next argued that chapter 149 is in conflict with the state and federal constitutions. As to fundamental questions, in that it impairs the obligation of contracts or deprives the, prosecutors of due. process of law, the constitutionality of the original act of 1911 has been established by this court in the case of Sexton v. Newark District Telephone Co., 84 N. J. L. 85. Chapter 149 of the laws of 1918 is but a supplement to the original act, and, we think, involves no new question.

It is claimed, however, that the act offends the provision of our state constitution, which requires that legislation shall embrace but one object, and that this object shall be expressed in the title. The title is supplementary to a title which has been in operation since 1911, and, we think, amply restrictive to meet the constitutional requirement. We also think the body of the act follows along valid linos and covers only such matters as are incidental to the object expressed in the title, all of them designed to carry its general purpose into effect. Easton and Amboy Railroad Co. v. Central Railroad Co., 52 N. J. L. 267.

The rule to show cause will be discharged.


author: Per Curiam'.

text:
    AGOSTINO CIPRIANO AND ROSE CIPRIANO, PLAINTIFFS, v. JOSEPH CASALLA, DEFENDANT.
    Argued May term, 1925
    Decided October term, 1925.
    Negligence — -Motor Vehicle Injury to Pedestrian — Not Contributory Negligence Per Se to Walk in the Roadway Instead of On the Sidewalk — Defendant Swerved to Wrong Side of Road, Hitting Plaintiff — In Such Case It is Not Error to Charge That There Was No Evidence of Contributory Negligence.
    On rule to show cause.
    Before Justices Parker, Minturn and Black.
    . For the plaintiffs, John J. Breslin, Jr., and William H. J. Ely.

    For the defendant, Abraham I. Fellman.

   Per Curiam'.

This action was tried before the court and a jury in the Bergen Circuit, and judgment was rendered for plaintiff Rose Cipriano for $2,500 and for Agostillo Cipriano for $500.

The action was brought by husband and wife for injuries to the wife, alleged to have been caused by defendant’s negligence in operation of his automobile.

The plaintiff wife was walking with two companions in a westerly direction, on the right-hand side in the roadway of a bridge in Lyndhurst, at seven A. m., on her way to work. The bridge was two. hundred and fifty feet long and fifty feet wide, and on either side thereof was a sidewalk for the use of pedestrians. The defendant was crossing the bridge, on his right side, in an easterly or opposite direction. His car suddenly swerved to the left, to the wrong side of the road, struck the plaintiff, and then swerved back to the right, crashing into the side of the bridge.

The defendant testified that he looked hack to see what was coming, and his wheel went to the left; that in an effort to avoid hitting plaintiff ho quickly swung to the right, but not in time to prevent the accident.

The first reason for the rule is error in the court’s charge that there was no evidence of contributory negligence. Ordinarily, the mere walking in the roadway, instead of on the sidewalk, is not contributory negligence per se. 12 Ann. Cas. 1018, and cases; Lynch v. Public Service Railway Co., 82 N. J. L. 712. The question, ordinarily, is one of fact for submission to the jury, but in the instant case it was taken from that category, by the fact that the defendant suddenly came from the right side of the road, and, taking the wrong side, struck the plaintiff. His presence on the wrong side of the road was something the plaintiff was not legally bound to anticipate, and her presence on the street, therefore, as against the defendant’s wrongful act, created no issue of fact for the consideration of the jury. Proximate cause and contributory negligence are questions, ordinarily, for the jury, but where facts are undisputed and susceptible of but one inference, the question then becomes one of law for the court. Mayor, &c., Baltimore v. Ferio, 128 Atl. Rep. (Md.) 353.

The next reason urged is that the amount awarded to the husband ($500) vras excessive. The wife’s injuries consisted of an oblique fracture of tibia of right leg, which left a three-quarter-inch shortening of the leg. She was confined in hospital in splints for two weeks, and had a cast on at home for three weeks. There was evidence that she would be unable to do heavy housework, such as washing or scrubbing, for three or four years.

The husband’s expenditures to the date of trial were $202. The doctor and hospital bills -were $37 and the domestic help $22o.

We think the ease presented a jury question, and that the damages, in view ol the extent of the injuries, cannot be said to be excessive in law. The rule will be discharged.


author: Porter, J.

text:
    Essex County Court of Common Pleas.
    Michael J. Cody v. New York Telephone Company. James J. McGrath v. New York Telephone Company.
    [Decided November 12th, 1925.]
    Negligence — Failure of Telephone Company to Make Prompt Connection With Fire Department in Case of a Fire Alarm —Evidence Showed Seventeen Minutes Delay — Evidence Did Not Show Delay to be, the Cause of Loss of Building — To Hold the Company Responsible, Clear Weight of Evidence Must Show More Than Probable Responsibility — It Must be Shown That But For the Negligence the Loss Would Not Have Occurred.
    On action at law. On motion to nonsuit.

      Mr. George A. Henderson, for the plaintiff.

      Messrs. Smith & Slingerland (by Mr. Frederick W. Smith), for the defendant.
   Porter, J.

The facts in this case, briefly, as the court understands them, are that Mr. Cody was awakened from his sleep at about twenty minutes of five, on the morning of May 6th, 1921, by some man passing along the street shouting “fire.” Presumably be saw the fire in the garage. Miss Schill, who lived across the street, says that she was also awakened from sleep by a shout of “fire” that she heard from a passer-by oil the street. That was the first alarm that was given, so far as the evidence goes, of the existence of this fire. Mr. Cody says that he immediately jumped out o'f bed, looked out of the window and saw flames through the window of the garage next door, which was owned by him and rented to the other plaintiff, Mr. McGrath, who conducted a garage there, and in which was stored eighteen or twenty automobiles, lie immediately, without waiting to put on any garments, went out into the hall and took up his telephone receiver in an attempt to get a connection by telephone with the fire department. lie knew the number of the telephone of the fire department, number two, so he shouted through the telephone “number two,” and kept repeating it. Receiving no response he then shouted through the telephone, “fire,” repeatedly. His married daughter was asleep in a bedroom across the hall, and she was awakened from her sleep, not by the shout of the man on the street that had caused Mr. Cody to be awakened, but by her father at the telephone; presumably she awakened as soon as her father began to talk through the telephone. She immediately got up and picked up lier bathrobe, but did not wait to put it -on in her bedroom, but put it on as she was traveling through the hall toward her father, who was at the telephone. Her baby was asleep in the bedroom in which her father slept. Her father told her that the garage was on fire and she took the receiver from him in an effort to get the operator, without success. Then she dropped the receiver and went in, got her baby, and, without dressing any more than she had, as I recall the testimony, went out with her baby in her arms to Miss Schill’s house.

Mr. Cody very honestly and very properly refuses to testify as to the number of minutes that he was trying to get the telephone company. He says that he would not hazard an estimate of the time. It seemed like a long time to him. It seems to me that it could not have been a very long time, because, if I am right in my understanding of the testimony, the daughter was awakened immediately when he began calling the operator/ as I assume that he did not shout in any too gentle a voice, he being in an excited condition, and that she got out to the telephone almost immediately, so there could not have been much space of time that elapsed from the time Mr. Cody began telephoning to the time his daughter took the telephone from him. She was unwilling to state the length of time. In one part of her testimony she said she did not suppose it took ten seconds to get to her father. She was not willing to testify as to the number of minutes that she was unsuccessful in getting her connection.

Fow, on the other hand, Miss Schill says that she is employed in industrial work where she is engaged in piece work, and that by reason of that fact she is trained with respect to the observance of the passage of time; that the first thing that she did, immediately upon being awakened by the shouts of fire in the street, was to attempt to get into connection with the telephone company, and that it took, as I recall her testimony, some three minutes, as she estimates the time, and another minute and a half after she got the central operator before she got the connection with the fire department and gave the alarm.-

The little boy, Tony, says that he carries papers; that he awoke on the morning of the fire and left his bedroom and walked out to the kitchen, where there was an alarm clock, to see whether it was time to go out and get his papers, and that he observed that it was twenty minutes to five by the kitchen clock; that he left his clothes in the kitchen the night before when he undressed; that the kitchen was illuminated bv flames' from the garage, which was around the corner from his house. . He could look across the yard and see the garage; he called to his father, and his brother, and his brother'got up and partially'dressed and ran out to'the signal box to send in an alarm, and Tony stayed in the house, dressing and ■watching the fire, waiting for the firemen, and watching the clock. His testimony corroborates that of the firemen with respect to the time that the firemen got there, a minute or two after five. The firemen testify that they got the alarm by telephone at three minutes of five, or thereabouts, some seventeen minutes after the fire was first discovered.

Mr. S chill, Miss S chill’s brother, says that he got up and saw the fire, and that it was then a quarter of five, and that the paper train went up at two minutes past five, at which time the firemen were arriving. He also says that when the firemen came the fire had assumed large proportions, and it was necessary to send in another alarm, and, further, that the building was practically destroyed.

That, in brief, is as the court understands the facts.

Let us assume that, for the purpose of this motion, that there has been proof of a delay of several minutes in the communication by Miss Schill with the telephone company, and inability entirely by Mr. Cody and his daughter to communicate with the telephone company at ail. Let us further assume that, from the facts as I have stated them, there was negligence on the part of the company to promptly answer the telephone and make the connection. Let ns assume, further, that the pleadings are in proper form, in that you have properly stated the cause of action.

There is a case reported in another state where the telephone company was held responsible under these facts: A man’s wife had given birth to a child and had a hemorrhage, anti the doctor told the husband that if there was any recurrence of bleeding he was to immediately telephone him. The hemorrhage resumed, and the husband could not make connection with the telephone company, and his wife bled to death. The testimony further was that had the doctor been notified promptly — it being shown that he was in his office— he could have gotten there within a certain time and that he could have saved her life by stopping the hemorrhage. Now, there was something that was ascertainable; there was something that they knew about. He had previously stopped the hemorrhage and would have been able to do so again. This case is not analogous.

To hold the telephone company liable the plaintiffs must Show by the clear weight of the evidence that there was more than a possible, or even a probable, responsibility. The plaintiff must show that, but for the negligence of the defendant, the loss would not have occurred, and the facts necessary to establish this connection between negligence and loss must not rest upon uncertainty or indeterminate premises. A thing not susceptible of proof cannot be made the basis of a recovery in an action at law.

The alleged negligence is too remote in law from the fact of the destruction by fire of his building to constitute such loss a proximate cause. Nothing appears from the evidence that the building would not have been destroyed but for the alleged negligence of the telephone company. The defendant did not start the fire. No one knows how long the fire had been raging nor how extensive -it had become, 6r how near it was, when discovered, to oil or other highly inflammable material, and, therefore, whether, if the firemen had promptly arrived, the building would have suffered any less damage than it did.

It has not been shown that the city was under a legal duty to furnish water for putting "out the fire, or by sending its fire apparatus for the purpose of putting out the fire. It has not been shown that plaintiffs could have maintained an action against the city of Orange for its negligence if it had been negligent in not promptly responding to the alarm, aside from your failure to show that there was any obligation on the part of the telephone company to have given prompt connection, because of its franchise, its contract or otherwise.

Time was precious in this ease.' Who can say how many minutes meant the destruction of this building under the prevailing Circumstances. ' Suppose the telephone connection had been made promptly, would the firemen have answered promptly-; was the fire apparatus suitable? None of these intervening agencies were under the control of the telephone company. Each of these agencies must be linked together in a line of causation in order to connect it with the loss. How far would the fire have spread at the time the firemen would have been likely to have reached the scene if the telephone connection had been promptly is left, by the evidence, a matter highly speculative.

For these reasons the motion for a nonsuit is granted, and an exception is allowed the plaintiff in each case.

That leaves it unnecessary to pass on the question of the sufficiency of the pleadings.

Exception noted as ground of appeal.


author: Buchanan, Y. O.

text:
    Thomas Hassall, complainant, v. Unitco Pottery Company, defendant.
    [Decided November 20th, 1925.]
    Corporations — Insolvency—Assessment of Shareholders — One Shareholder Claims Unpaid Balance of $700. of His Subscription of Twenty-five Shares Should Not be Collected, First, Because There Were Misrepresentations Regarding Their Value. — If So He Elected Not to Rescind Contract— Second, Because He Was Prevented From Performing His Contract to Pay For the Shares in Services — Agreement Provided That Payment Must be Made in Cash or Services, But Does Not Specify Who Shall Elect as Between Cash and Services, Nor Has Defendant Shown That He Made Any Election —Third, Subscription For Twenty-Five Shares is Divisible— Subscription Not Divisible and Defendant Cannot Claim Ownership in Only 18 Shares! — Other Defendants Who Paid Subscriptions in Property Found to Have Conveyed Property of Fair Value of Their Subscriptions.
    On proceedings to levy assessment against stockholders.

      Mr. Norman T. Rogers, receiver, pro se.

      Mr. Ilaruey Salterthwaile, for the respondents, Denelsbeck et al.

      Mr. Walter II. Bacon, Jr., for the respondent Hassall.
   Buchanan, Y. O.

The receiver of the insolvent Unitco Pottery Company has filed a petition for an order to levy an assessment against the respondent stockholders or subscribers to stock of the insolvent company in respect of alleged unpaid portions of the purchase price of the stock. All of the stockholders have appeared on the return of the order to show cause. No formal answers to the petition were filed, but by consent of all parties the affidavits filed by respondents were deemed answers, and the determination was to be made from the facts as alleged in the several affidavits and the additional testimony taken in open court.

It appears on the hearing that the receiver has sold all the asests and collected all the accounts except two, aggregating $123.25; that he has paid all the preferred claims except $59.75; that there are claims of general creditors aggregating $1,146.25; that he has on hand $1,302.80, plus the two uncollected accounts receivable, which are in process of settlement. If the net receipts from these latter be estimated at fifty per cent,, and allowance be made for the further accrual of interest on the claims of creditors up to the time when payment thereof can be made, it is evident that the receiver would have, if the claims be paid, only about $100 to cover the taxed costs of complainant and of the receiver and the receiver's compensation and his future expenses, and the expense of possible litigation in enforcing the assessment if one be made.

The sum required to meet these additional disbursements cannot be ascertained with exactitude, it must needs be reasonably estimated at a figure adequate to cover them. Holcombe v. Trenton White City Co., 80 N. J. Eq. 122. The additional sum required in the present ease reasonably appears to be about $1,000, and T so determine.

The next question for determination is whether there are .unpaid stock subscriptions or stock issued without full payment, and, if so, the names of such stockholders and the amounts respectively due from them. It appears that the respondents William G. Amisson, Sr., John Morgan, William G. Amisson, Jr., and Joseph G. Uenelsbeck were the original incorporators, and each subscribed for twenty shares of stock (par value $100 per share), which was subsequently issued to them. The respondent, Hassall, later subscribed for twenty-five shares, -which was issued to him.

Considering first the Ilassal] situation: The subscription contract between him and the company was that he should buy twenty-five shares at $100 per share, pay $1,800 in cash and pay the balance of $700 “within one year from this date, October 13th, 1924, in cash or services or in part each.” He' received the stock and paid the $1,800 on October 14th, 1924. Admittedly, he has never paid the $700 either in cash or in services or otherwise.

He contends, in the first place, that he was induced to purchase this stock by the false representations of the president of the company, and, hence, he should be relieved from liability. One sufficient answer is that it does not appear that the representations which he says were so made to him, were, in fact, untrue. Another equally sufficient answer is that, even if misrepresentations were made, he did not elect to rescind, but, on the contrary, has elected to affirm the contract. He it was who filed the bill against the company asking decree of insolvency, and in that bill he alleges himself a stockholder. True, he says he holds only eighteen shares, but the contract was an indivisible one for twenty-five shares. He cannot split it up. His first contention is without merit.

His second contention is that he was prevented by the company from performing his agreement to pay for the stock. He saj^s he was employed by the company as its general manager in October, 1924, and so continued for eleven weeks, and was then discharged by the company without fault on his part, and has not since been given the opportunity to perform services for the company. Taking all this to be true, there is nothing therein to excuse him from payment for the stock. He does not say, nor does it appear, there was c any contract by the company to employ him for any particular length of-time as general manager. The contract for the stock does not provide that payment shall be by services as general manager. Neither does the contract specify whose shall be the right to elect as between cash and services. But assuming that that right was to be Hassalks, he has not shown that he made any such election, nor has he shown even that he ever made any tender or offer to perform services of any kind.

I cannot see how this contention could avail Hassall even in a suit against him by the company itself, still less can it suffice in a proceeding by the receiver for the benefit of unpaid creditors.

It is evident, therefore, that there is $700 due from respondent Hassall for unpaid balance on his stock subscription.

As to the other four respondents, their contention is that their original stock subscriptions of $2,000 each were fully paid by property conveyed by them to the corporation. Consideration of the rather considerable evidence on the point leads be to the conclusion that the weight thereof indicates that the property so conveyed was of the fair value of, at least, $8,000 at that time.

There is therefore no unpaid balance in respect of stock due from these four respondents.


text:
    DANIEL BOZZA, PLAINTIFF-APPELLEE, v. PETER LEONARDIS, JERRY LEONARDIS AND LOUIS LEONARDIS, INDIVIDUALLY, AND TRADING AS PETER LEONARDIS & SONS, DEFENDANTS-APPELLANTS.
    Argued January 7, 1925
    Decided October 15, 1925
    Filed November 20, 1915.
    Contracts — Sale of Merchandise — Agreement to Accept Goods at Railroad Weight at Point of Delivery — Afterward a Large Shortage Was Found to Exist — Judgment For Plaintiff Buyer in Excess of His Claim — First Ground of Appeal, That Verdict is Against Weight of Evidence, Cannot be Considered Upon Appeal — Allegation of Admission of-Illegal Testimony Regarding Memoranda Not Sustained — Verdict in Excess of Claim May be Corrected by Filing Remittitur For Excess— Nonsuit on Ground That Agreement Was to Accept Railroad Weight Properly Refused, Since Plaintiff Was Entitled to Show the Railroad Weight Was Wrong.
    On appeal from the Essex County Circuit Court.
    Before G-ummere, Chief Justice, and. Justices Parker and Katzenbacit.
    For the defendants-appellants, Edward Sehoen.

    Eor the plaintiff-appellee. Fast & Fast {Frank B. Bozza, of counsel).
   Per Curiam.

This is an appeal from a judgment of the Essex County Circuit Court recovered by the plaintiff. On October 9th, 1920, the plaintiff and defendants entered into an agreement by which the plaintiff bought a carload of Concord grapes at $150 per ton, to be delivered at Newark, New Jersey. The agreement provided that the plaintiff was to pay for the grapes according to the railroad weight of the contents in the Oar. The car arrived and the railroad weight was said to be thirty-two thousand pounds. From this weight there was to be deducted the weight of the trays and baskets in which the grapes were packed. This amounted to two thousand five hundred and seventy-two pounds, leaving the net weight twenty-nine thousand four hundred and twenty-eight pounds. The plaintiff upon the arrival of the grapes weighed them. He claimed he found a shortage of nine thousand and seventy-one pounds. Upon the discovery of this shortage the plaintiff contends that the defendants agreed to make good the deficiency in weight by delivering other grapes or paying cash. This suit was instituted to recover the amount of the overcharge. This case can best be considered by a reference to the grounds of appeal.

The first ground is that the verdict of the jury was against the weight of the evidence. This ground cannot be considered on an appeal. We have nothing to do with the weight of the evidence.

The second ground is that illegal testimony was admitted by the trial judge when he admitted memoranda made by the plaintiff showing the weight of the grapes as weighed by the plaintiff. No exception appears in the record of the case to the court’s admission of these memoranda. This was pointed out at the argument of the case. By a stipulation now produced, it appears that an exception was taken to the court’s admission of the memoranda. The consideration of the admissibility of the memoranda must, however, be confined to the scope of the objection. The objection made was lengthy, but appears to be that the memoranda were immaterial. It is now argued that the memoranda were not of themselves evidential, and could only be used to refresh the plaintiff’s memory. This contention will not be considered, as it was not made a ground of objection. If it be true that, before the payment was made, the defendants agreed to refund any excess due shown by the reweighing either in cash or grapes, then the memoranda were not immaterial to the issue. We have therefore reached the conclusion that there was no error in the admission of the memoranda in evidence which we can consider.

The third ground of appeal in that the verdict of the jury was contrary to law, because the total am unt sued for was $560, whereas the verdict was for $7BB.97. 'That a verdict and judgment for greater damages than the declaration claims are erroneous' is entirely settled. Excelsior, &c., Co. v. Sweet, 59 N. J. L. 444. But, as was pointed out in that case, such an error may be corrected by the plaintiff’s remitting the exclusive damages, and, if such a remittitur were entered, this court would amend the judgment accordingly. The plaintiff in the instant case concedes that he is not entitled to recover any more than the amount claimed in the complaint, and is willing to have the verdict and judgment reduced accordingly. This can be done in the manner which will later, in this opinion, be pointed out.

The fourth and last ground of appeal is that a nonsuit was improperly refused. The nonsuit was based upon the clause of the contract by which railroad weight was to be accepted by the parties. Railroad weight is the combined weight of the merchandise and car from which there is subtracted the weight of the car. After this motion was made the court permitted the ease to be opened for the purpose of supplying the weight. The court then made' some suggestions regarding an amendment of the pleadings and offered to the defendants to continue the case if the amendment oppressed them. Counsel for the defendants then stated that they would prefer to go on and finish the case. The case then proceeded. The record discloses the following statement: “Defendant’s counsel' prays air exception to the refusal of the court to nonsuit. Exception noted as ground of appeal.” There is no reason given for the motion to nonsuit except that it was previously made. There was assent given by the defendant’s counsel to the new issue suggested by the court. In view of this, it seems to us that there can be no sound contention that the case was controlled by the railroad weight. The plaintiff was entitled to show that the railroad weight was wrong and to produce his evidence upon the alleged contract to refund.

If the plaintiff will, within ten days from the filing of this opinion, file a remittitur in this court remitting the excessive amount of the judgment recovered by him in the Essex County Circnit Court, the judgment of that court will he affirmed, with costs.