text:
    EDWARD C. CORDERY, PLAINTIFF-APPELLANT, v. AMERICAN RAILWAY EXPRESS COMPANY, DEFENDANT-APPELLEE.
    Decided June 7, 1927.
    Common Carriers — Breaking of a Model While in Transportation — Judgment for Plaintiffs for Extra Expense in Operating Damaged Model by Hand and for Express Charges, But No Award for Cost of Restoring to its Original Condition— From this Plaintiff Appeals — Held, Error to Have Refused to Admit Evidence to Show this Loss and to Instruct Against its Recovery, Also Against Recovery for Loss on Original Contract for Use of Model.
    On appeal from the Atlantic County Circuit.

      Before Justices Pabkeb and Campbell.
    For the appellant, Elwood O. Weeks.

    For tlie appellee, 8. Paul Ridgway.

   Per Curiam.

The action was for the purpose of recovering damages arising out of breakage and damage to a model to be used to show accident scenes. In addition to breakage some parts were lost. The shipment was made from Pleasantville, New Jersey, to Albany, New York.

Appellant was under contract to construct, deliver and exhibit the model in Albany, for which he was to receive a stipulated lump sum of $1,375. Because of the- lost and damaged parts he was unable to completely and satisfactorily perform his contract. Instead of operating the device by electricity he was obliged to do so by hand.

He was also obliged to return the model to his shops at Pleasantville, New Jersey, and rebuild it. His extra expense in operating by hand power and the express charges to Albany amounted to $115.69, for which amount he has a verdict and judgment.

From this judgment he appeals assigning four amended reasons for reversal in place of the original reasons one to six inclusive.

These grounds for reversal relate to alleged erroneous rulings of the trial judge in overruling the following questions:

1. “What was the value of the model to you?”

Eespondent contends that this is not properly before us because no exception was taken to the ruling excluding it. This question, however, appears twice. First on pages 24 and 25 of the state of ease, where an exception was taken, and again on page 26 where no exception was taken.

The ruling was neither harmful nor prejudicial, under the circumstances, which were that appellant was paid in full the amount of his contract with the State of New York, with the exception of $200 and that he constructed the model, the cost of which work, &c., he testified to at page 38.

2. “How much do you say that the shafting that was lost and the pulley brackets to which you have referred here are worth ?”

This question as it appears in the state of case had added to it the words “to you” so as to call for a value to appellant.

This ruling was not erroneous for the reason already expressed and further because immediately following the ruling excluding this question the witness testified that it cost him over $1,500 to reproduce the model.

3. (a) “What did you pay on the return of the model to Pleasantville ?”

The ruling excluding this question from being answered was erroneous because it appears to have been necessary to return the apparatus to appellant’s shops at Pleasantville in order to make the necessary repairs and therefore such cost was an element of damage.

(6) “Except for the damage that happened were you .to take the model back to Pleasantville ?”

The ruling excluding this question was also erroneous.

4. (a) “Do you know what the departure work, including the material and time on it, amounted to ?”

(6) “Do you know whether, if you had reproduced the exact first model without any departure on the second occasion, it would have required more time or less time than was put in on the second model ?”

Both of these questions were proper and it was error to exclude them because appellant had already testified what the cost of rebuilding was and that certain changes were made -in the second model. In order to show a necessary and perhaps large item of loss he was entitled, if he could, to make answer to these questions.

The next ground for reversal is number 1 of the original grounds filed and is directed at the following portions of the court’s charges:

(a) “The only damage which the express company is answerable for is the damage that would compensate the plaintiff for the lost goods and for moneys expended by the plaintiff in making repairs and hiring additional necessary help.”

(6) “The court instructs you as a matter of law that there can be no recovery on the part of the plaintiff in this case for any expenses incurred by him in creating and making a new design which was to be exhibited and was exhibited over there at a future time.”

To excerpt “a” above set out must be added the following to make the quotation of the judicial instruction complete and exact, namely, “and the amount so expended by the plaintiff was testified by him as being $115.69.”

Such instruction was erroneous. Appellant was entitled not only to this sum of $115.69 but also to the cost of restoring the model to its original condition, including the cost of transportation back to his shop and the loss on his original contract which was $200. He was not, of course, entitled to recover the expense of changes in the second model wherein it was different from the first.

Ground eight is directed at the refusal of the trial court to charge appellant’s requests, but there seems to have been no exceptions taken to this action.

The final ground is number nine, that the verdict is against the weight of the evidence. This is not a proper ground of appeal.

The judgment is reversed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    SAMUEL SELIGSON v. LOUIS WICHNER AND JACOB MILLER.
    Decided June 7, 1927.
    On plaintiff’s rule for new trial, &c.
    Before Justices Parker and Campbell.
    For the rule, Aaron L. Simon.

    Contra, Joseph C. Paul.

   Memorandum.

The original application before us was to dismiss the rule to show cause for lack of prosecution. Upon the argument, leave was asked and granted upon terms to perfect the proceedings under the rule. These terms, it is urged, have not been complied with.

Whether the terms imposed have been complied with or not is immaterial because we have considered the matters raised under the rule to show cause and find no reason for setting aside the verdict.

The rule to show cause will therefore be discharged, with costs.


author: Flannagan, J.

text:
    Essex County Orphans Court.
    In the matter of the estate of Edward McDowell, deceased.
    [Decided May 12th, 1927.]
    A next of kin or.other interested party will not be permitted to set aside the will of a monomaniac, where it is shown that his insane delusion did not affect the decedent’s testamentary disposition as to such objector, though it did affect provisions of the will as to another person who was a next of kin but who interposed no objection to the will.

      Mr. Ralph E. Lum, for the appellant.

      Messrs. Child, & Shipman, for the respondent Art Students League.

      Mr. Robert M. Boyd, Jr., for the respondent Montclair Trust Company.
   Flannagan, J.

This is an appeal from the probate by the surrogate of Essex county of the alleged last will and testament of Edward McDowell, deceased. The alleged will was executed August 4th, 1925. The ground of appeal is that the deceased lacked testamentary capacity.

The deceased was a man of considerable means, possessing some $25,000 in personalty and having the power under his father’s will to dispose, by his own will, of the income of some $200,000, which income he himself enjoyed thereunder during his lifetime.

He was in poor health, had little occupation, did some painting, was much interested in- art and spent a large part of his time in travel with his wife, who was his devoted and almost constant companion.

To those with whom he came in ordinary contact he betrayed no mental peculiarity amounting to any disorder; he ordinarily attended to his own investments and went about his daily affairs in a way which might be called irritable, finnicky, suspicions and perhaps eccentric, but nothing more.

He was, however, a monomaniac, the subject being his wife’s loyalty.

The testator was twice married. His widow, whom he married in 1913, was some years his junior, being his second wife. His first wife he had divorced on the ground of adultery, and he was under the fixed delusion that his second wife was inconstant in her affection and loyalty to him.

He had told his wife that she was to succeed to his wealth, but without indicating to her any change in his intention; he employed a stranger, who was a New Jersey attorney, to malee the will in question without her knowledge, cutting her off with $5,000 and leaving the remainder of his estate to the Art Students League of New York in memory of his father and in trust for the education of deserving and talented art students abroad and providing that this disposition should stand notwithstanding the birth thereafter of any children.

At one time, suddenly leaving his wife, he secretedly went to Europe and wrote his sister not to disclose his whereabouts. Nevertheless, immediately upon his arrival in Europe he cabled his wife to join him there, which she did.

At a time when a physical examination by a physician of his wife was required he stood outside the door with a drawn revolver; he employed a lawyer and caused his wife to be frequently shadowed by detectives; caused certain slips of paper, written by a Japanese servant in that language, to be translated, suspecting that they concerned his wife; discussed his wife’s fidelity with an officer of the bank with which he did business, and left a letter to be delivered to her after his death.-referring to a man in Switzerland and indicating his jealousy of her in respect to attentions from him or others.

It is not maintained that there are anjr facts upon which any suspicions or accusations against his wife could be rationally founded. She was constant in her affection and loyalty and in spite of all her reasoning he persisted in harboring his insane notion against her.

The deceased died childless, possessed of no real estate and leaving his widow as his only next of kin. There is no doubt but that deceased’s monomania affected his will as to the provision concerning his wife and that it was the direct cause of those provisions.

There is no objection raised, however, by the widow to the probate of the will but the appeal is taken by decedent’s married sister, Mrs. E. Clayville-Smith, who is the sole objector to its probate.

The sister claims to- be interested because under the provisions of her father’s will the Income from the $200,000 above referred to passes to hex in the absence of the exercise by her brother (the deceased) of the power of disposition thereof. If no valid will by bim exists, then no power of disposition has been exercised.

In May, 1913, some two years prior to the making of the instant will, the deceased had employed a New York lawyer, who was his regular- counsel, to prepare a will. The draft of this will (which, apparently, was never executed) made no provision for the sister and left her nothing, as does the instant will. The sister was already well provided for by her father’s will, enjojdng the income upon some $200,000 for life, and though she lived in Baltimore and the deceased was ordinarily unoccupied and was frequently in or about New York City, they had not seen each other for a period of some nine years before deceased’s death though writing to each other from time to time. The only occasion during the nine years preceding his death when the deceased saw any member of his sister’s family was a recent one when the sister’s daughter was in New York and was invited with a friend of hers to luncheon by decedent, and when at or about the same time, she, with the same friend, stopped for a week at the hotel in Summit, New Jersey, where the deceased was staying, not as his guest but at her own expense.

It is quite manifest that the deceased had no desire to leave Ms sister anything. If he had, it would have been reflected in the draft of one or the other of these wills. The natural result of the monomaniacal delusion, which excluded the wife from any substantial part of his bounty, would be. to invite a testamentary disposition favorable toward the sister rather than to prejudice or repel one. Moreover, it was not altogether unnatural that the decedent who had studied art at the Art Students League, who was himself an artist, interested in art matters and whose father was interested in art before him, should have preferred to create from his father’s estate a trust in memory of his father for the education of art students, rather than to further enrich a sister who was married, well provided for in her own right, and whom he had not seen, or made the slight effort necessary to see, for a period of nine years before his death.

' I am fully satisfied that although his partial derangement affected the mind of the deceased adversely to his wife and rendered him incapable of right reason as to her he was fully competent to reason rightly in regard to his sister and that his monomania had no adverse effect whatever upon his testamentary attitude towards her.

Under these circumstances the question is whether the court will refuse probate of the will at her instance alone.

Two views are suggested: First, that if a will is affected by an insane delusion, then it is the product of an insane mind, hence,, is invalid, and any heir, next of kin or interested party is entitled to have it so declared. Second, that an insane delusion to be fatal to a will of a monomaniac must not only affect the will but must adversely affect the objector.

The objector, in the instant case (the sister, Mrs. ClayvilleSmith), takes the first view while the proponent urges the second, contending that the presence of the delusion against the loyalty of the wife, not having adversely affected decedent’s disposition towards the sister, does not entitle the sister to set aside the will in the absence of objection on the part of the wife.

A single ease, that of Stackhouse v. Horton, 15 N. J. Eq. 202, is cited by proponent in support of that contention. That case was decided in the prerogative court by the then ordinary, Chancellor Green.

In the Stackhouse Case the will of one Esther Horton was attacked on the ground of testamentary incapacity due to an alleged insane delusion applicable to her nephew, Silas Horton, and no one else. Silas Horton was not an heir-at-law or next of kin but the testatrix was under a moral obligation to devise to him a certain farm, and up to the time of the occurrence out of which the supposed delusion was alleged to have arisen, she had recognized such obligation and declared her intention to fulfill it. She, however, in her will excluded Silas entirely. The case, as I read it, was decided upon three grounds — first, that a court will not refuse probate of a will unless by so doing it can restore the caveator to the position which he has lost by the intervention of the instrument. That the caveator, Silas Horton, not being an heir-at-law, it would therefore be of no avail to him to set the will aside and it would therefore not be done at his instance; second, that as to the caveators, who were heirs-at-law, since it was shown that the insane delusion against Silas Horton did not operate to affect the decedent’s testamentary disposition toward them, the instrument would not be set aside at their instance; third, that no insane delusion actually in fact existed in the mind of testatrix since there were facts and circumstances before her from which as a foundation the conclusions she drew could rationally be drawn, though such conclusions may have been erroneous.

If the decision in the Stackhouse Case is based upon the second ground, it is controlling on this court in the instant case. It is contended it was not a ground of the decision.

The discussion by Chancellor Green in connection with the second ground is interspersed in the opinion with the discussions of the other grounds. I will, for charity, attempt to separate, as far as possible, the language discussing the second ground, as follows (all italics ours) :

“In examining this question it is important that we should consider the connection which existed between Esther and Silas Horton and ascertain how the fact of Esther Horton’s partial derangement, confined to her nephew [Silas], can legally affect the disposition of the decedent’s estate; for a person may be a monomaniac — the subject of a partial derangement towards a particular individual — and this derangement may be the cause of depriving such individual of the bounty of a testator which he otherwise would have enjoyed and yet the will be valid and obnoxious to no principle of law. Instance the case of an individual having two sons, his only heirs-at-law, and a nephew to whom he is under peculiar moral obligations to leave, a liberal portion of his estate. He acknowledges his obligations and he intends that his nephew shall be an object of his bounty and shall share with his legal heirs his whole property. He suddenly conceives the notion that his nephew has become a king or an inheritor of immense wealth, and under this vain delusion he makes his will leaving his whole estate to his sons, to one of them two-thirds and the remaining third to the other, the proportion between the two sons being in nowise affected or having no connection with the delusion towards the nephew. Can the validity of such a will be questioned? Gui bono-f Not by the nephew * * *. Nor cam, the son who takes the lesser portion of the estate impeach the will for the delusion in no way affected the disposition made to him,'. * * * Silas Horton is not an heir-at-law of the decedent. The inquiry is therefore a proper one, what interest has Silas Horton in the question; and as to the other caveators, did the delusion if any existed toward Silar Horton, affect in any way the dispositions made by the decedent of her property in respect to them? * * *” (Pages 225, 226.)

The court, taking up the first ground, then shows how the delusion affected the interest of Silas Horton, but that to set aside the will would be of no avail to him. Continuing, the court says:

“Hoes anyone else show that such delusions affected his interest in the decedents estate?

“Susan MeCullum [an heir-at-law], who caveats against this paper, is a sister of decedent. It is proved that Esther Horton’s state of mind toward Silas has in no manner affected her interest. She gets by this will, if sustained, $100. By four other wills executed by the decedent and canceled, one as early as 1843, nothing was given to his sister. Aaron Horton, a brother and heir-at-law, gets $100 by this will. Nothing has been given to him by any of the prior wills. Curtis Coe, another heir-at-law, being one of the children of a deceased sister, who also has filed a caveat, takes nothing by this will. Neither he, his mother nor any of the family had been mentioned in any of the wills of decedent. It is proved, as clearly as any such fact can be established, that the feelings of Esther Horton towards her nephew did not in any way affect these caveators. I feel perfectly satisfied in coming to the conclusion that if the derangement or monomania towards Silas Horton did exist, as contended for, it is no objection to> admitting this writing to probate.” (Page 227.)

Could this language have been used by the ordinary unless it was the court’s intention to hold as one of the grounds of the decision that the caveators, heirs-at-law, were not entitled to have probate of the will refused where it appeared that the alleged monomaniacal delusion did not concern the testatrix’s testamentary inclination towards them? I am of opinion that the answer must be in the negative.

It is argued for appellant, that the Stackhouse decision turns upon the question whether the delusion affects an heir-at-law or person who can be restored to the position he has lost by the intervention of the instrument. This is, of course, true as to the first ground of the decision, but as to the second ground the decision plainly turns upon the question whether or not the delusion affects adversely the objector who seeks to set it aside. It is plain that the insane delusion, as assumed, affected Esther Horton’s will, and that but for such delusion she would have made a very different one; nevertheless, as the heirs-at-law, who filed caveats, were not affected adversely by the delusion they were not permitted to have the will set aside on the ground that the delusion affected the will. The appellant attempts to distinguish the Stackhouse Case on the further ground that the monomania in that case was with respect to a person who had no interest, whereas in the instant case the wife against whom the monomania existed is interested, being a next of kin. The test is not, that the delusion be with respect to an heir-at-law or next of kin. This is plain without illustration, but a modification of the illustration used by Chancellor Green furnishes an instance which makes this obvious. In the chancellor's illustrations, a nephew, who is not an heir-at-law or next of kin, was insanely believed by testator to be “a king or the inheritor of immense wealth.” He was therefpre excluded by testator from his bounty. Let us modify the illustration by assuming the monomania to have been, that the nephew, who was in fact a king and immensely wealthy, had suddenly become a pauper and that under that vain delusion testator left him substantially his entire fortune. It is patent that either of the decedent’s sons would then have been entitled to set the will aside though the monomania was with respect to one not an heir-at-law or next of kin.

It would seem from all that was said in the Stackhouse Gase that in order to set aside the will of a monomaniac the following situations must coincide:

First. The delusion must be of such a character as to have affected or been an operating cause of the testamentary disposition made.

Second. The court must be in a position to restore the objector to an advantage or position, which he has lost by the interposition of the instrument.

Third. It must not appear that the delusion did not affect testator's testamentary disposition toward the objector.

The appellant cites In re Long, 89 N. Y. Supp. 555, a case decided by the surrogate of Kings county, New York, in 1904. The case is entirely in point and sustains the appellant’s present contention, though one passage in the opinion somewhat weakens it. This passage suggests that the opinion may have been based to some extent upon the particular statute of New York under which the surrogate was proceeding. The surrogate says:

“By code section 2622 the surrogate is required, even if there is no contest, ‘to inquire particularly into all the facts’ showing an intention to only admit a will of a perfectly sane person to probate.” (Page 559.)

The surrogate further says: “As the contest is always made by the party disinherited, I am unable to find any ease similar to this.” (Page 559.)

Counsel for the respective parties now before this court seem to find themselves in a very similar position as the surrogate did, since the only eases cited, which seem to me in point, are the two already referred to. An examination by the court has proved equally unsuccessful.

I find that the Stackhcmse Case has been frequently cited in the courts of our state; six times by the court of errors and appeals and four times by the prerogative court. While never, of course, cited upon the precise point now before this court, it has always been cited with approval. Entertaining the views above expressed as to the holding of our prerogative court in that case, the appeal herein must fail and the will must be admitted to probate.


author: Donges, J.

text:
    Camden County Circuit Court.
    JOHN O. WILSON AND DANIEL B. FRAZIER, PLAINTIFFS, v. THOMAS M. CORNBROOKS, DEFENDANT.
    Decided May 31, 1927.
    Ejectment — Landlord and Tenant — Covenant Against Sub-letting Without Consent — No Provision Relating to Assignment of Lease — Lease was Several Times Assigned — Question Here is Whether Defendant Holds Under an Assignment or a Sub-Lease — In Cases of Assignment There is Privity Between Landlord and Assignee But No Privity Between Landlord and Sub-tenant — Held, That Where Lessee Reserves Right of Re-entry Upon Failure to Pay Rent or Upon Violation of Covenants He Does Not Part With Entire Term or Estate and the Rendition of Such a Contingent Reversionary Interest Creates a Sub-Tenancy — The Fact That a Document is Named an Assignment Does Not Make It Such — The Document Examined and Held to be a Sub-Lease — Held Further, That There is Not Sufficient Justification for Alleging That Plaintiffs Waived Their Right of Re-entry if the Document be Held a Sub-Lease.
    Eor the plaintiffs, 8iarr, Summerill & Lloyd.

    Eor the defendant, Marshall H. Diverly and Floyd Ii. Bradley.

   Donges, J.

This is an action in ejectment. Defendant sets up a right to possession under (1) an alleged assignment of lease, and (2) waiver by plaintiffs of right to possession, if the agreement is a sub-letting and not an assignment. Plaintiffs move to strike out the answer.

The complaint was amended to omit any claim for mesne profits, so that the suit is for possession only. Depositions were taken and the questions raised are fully submitted.

The following facts appear: On February 13th, 1919, George W. Jessup executed a lease to Automobile Sales Corporation of premises 525-527 Market street, Camden, New Jersey, for a term of ten years, from February 1st, 1919, to February 1st, 1929, upon payment of a monthly rental of $185.

The lease contained a provision that the lessee shall not “underlet said premises, or any part thereof, nor permit any person or persons to occupy the same, or any part thereof, nor use or permit any part thereof to be used for any other purpose than automobile business, nor make or suffer to be made any alterations therein, without the written consent of the said party of the first part.”

February 13th, 1925, Jessup conveyed the premises to George E. Tanner, Incorporated, and by sundry conveyances the title became vested in plaintiffs, and was held by them at the time this suit was instituted. During the pendency of this suit, plaintiffs have conveyed the property. On the oral argument, defendant insisted that the conveyance by plaintiffs, after suit brought, would defeat a recovery, but this fact is not pleaded, and defendant does not urge the point in his brief; hence, if there is any merit in it, it will be considered as having been abandoned.

The interest of Jessup in the aforementioned lease was conveyed by sundry assignments to plaintiffs.

The lease was assigned by Automobile Sales Corporation, the original lessee, to Neel-Cadillac Company, on January 31st, 1920, for a consideration of $1, with the written consent of the lessor, Jessup, endorsed on the lease.

In October, 1923, Neel-Cadillac Company, executed a paper purporting to assign its lease to John F. Brown, Jr., in consideration of monthly instalments of $350, for the remainder of the term, and recites that it is made “according to certain terms and provisions in said original lease contained.” Brown paid $350 monthly to Neel-Cadillac Company, which in turn, made the monthly payments of $185 each to Jessup, or to liis grantees.

In December, 1923, Brown executed a paper purporting to assign the lease to Willbert Motor Company, in consideration of monthly payments of $350 each to Neel-Cadillac Company. The purported assignment provided that it was “subject to the terms and provisions in said original lease contained and also all the estate, right, title and term of years yet to come, claim and demand whatsoever, of, in, and to or out of the same of the said John E. Brown, Jr., subject to the regular payment by the said Willbert Motor Company of the successive instalments of rent herein, above duly set forth, as the same becomes owing to the assignor herein, all of which the said Willbert Motor Company hereby stipulates to make to and through the Neel-Cadillac Company, punctually when due.”

While plaintiffs insist that the transfers from Neel-Cadillac Company to Brown, and from Brown to Willbert Motor Company, were, in effect, a sub-letting, they base no right to recover possession thereon, because as is stated in plaintiffs’ brief, “Jessup and the intervening owners between him and the present plaintiffs, accepted rent from Neel-Cadillac Company, with the knowledge that some arrangement existed between the latter and Brown and Willbert Motor Company, but only while the last-named company was in possession of the demised premises.”

In October, 1925, Willbert Motor Company entered into an agreement with the defendant, Thomas M. Cornbrooks, under which said Cornbrooks entered into possession of the demised premises about November 1st, 1925, and continues in possession. Defendant agreed to pay to Willbert Motor Company the sum of $525 each month. The rent due November 1st, 1925, of $185, was paid by Neel-Cadillac Company to plaintiffs.

Some time hereafter plaintiff became aware of the possession of Cornbrooks, and, on January 30th, 1926, commenced this suit, alleging that defendant holds under a subletting, contrary to the provisions of the lease. Defendant insists that he holds by assignment, and not as a sub-tenant, and, in any event, that plaintiffs have waived any right to possession if there was a sub-letting. These two questions are fairly raised by defendant’s answer, and both sides agree, are the only meritorious ones to be decided.

Admittedly, if this agreement is an assignment, defendant is entitled to possession. Field v. Mills, 33 N. J. L. 254; Braunstein v. McCrory, 116 Atl. Rep. 707; Union Lodge v. Evans Co. et al., 131 Id. 880.

1. Does this paper effect an assignment of the lease or a sub-letting ?

The paper says that Willbert Motor Company “for and in consideration of the sums hereinafter mentioned, doth hereby assign, transfer and set over unto Thomas M. Cornbrooks, of West Collingswood, Camden county, New Jersey, all its right, title and interest of, in and to a certain indenture of lease dated the 13th day of February, a. d. 1919, made by and between George W. Jessup, of Camden, New Jersey, and the said Automobile Sales, Corporation, covering all the premises known as 525-527 Market street, in said city of Camden, State of New Jersey, comprising a garage in the rear, a salesroom in the front and a workroom on the second floor front, with the appurtenances, for the term of ten years from the 1st day of February, 1919, to the 1st day of February, 1929, under the terms and conditions in said indenture of lease,” &c.

It is recited, inter alia, that the consideration for the agreement is—

1. That the defendant shall pay Willbert Motor Company each and every month during the remainder of the term the sum of $525.

2. That the defendant is permitted, in so far as such permission is within the power of the Willbert Motor Company to grant, to use the premises for the purposes set forth in the original lease, and, not to permit it to be used otherwise, without the written consent of Willbert Motor Company.

3. That defendant may assign the lease, but not underlet the premises.

4. That Willbert Motor Company will leave certain chattels on the premises for the use of Cornbrooks, during the balance of the term.

5. That defendant, “his representatives, assigns or other parties designated by him to occupy said premises,” shall have peaceful possession, to the end of the term, “so long as the said Thomas M. Cornbrooks shall make the monthly payments hereinbefore provided for.”

6. That the Willbert company pay Neel-Cadillac Company $350 a month, and produce evidence of such payment.

7. If Willbert company fails to pay Neel-Cadillac Company defendant may pay direct to Cadillac company, any amount due under prior agreement, and charge same to Willbert company.

8. If Neel-Cadillac Company begins any proceeding for ejectment of defendant, or possession, due to failure to pay any monthly instalment due Neel-Cadillac Company, then rights of Willbert company shall cease, and defendant may negotiate directly with Neel-Cadillac Company, or any other parties, for the making of a new lease, without notice to Willbert company.

9. Willbert company agrees that, upon making the payments provided for, defendant may remain in lawful possession for the balance of the term.

10. If defendant defaults in payment or in the perform-' anee of any covenant, the assignment shall become void, and the Willbert company, without notice, may take posses-session of the premises from any occupant thereof, and may re-enter and have possession thereof in the same manner as if the assignment had not been made.

The fact that the paper under which defendant holds is called an assignment will not make it such, if, in fact, the status of defendant thereunder is that of a sub-tenant.

The Willbert company reserved the right of the re-entry for breach of the terms of the contract.

Blackstone thus defines the two grants (2 Bl. Com. 327) :

“An assignment is properly a transfer, or making over to another, of the right one has in any estate; but it is usually applied to an estate for life or years. And it differs from a lease only in this — that by a lease one grants an interest less than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents and purposes in the place oí the assignor.”

I have not been able to find, nor has my attention been called by counsel to any case in New Jersey dealing with the question here involved.

Chief Justice Green, in Potts v. Delaware Water Power Co., 9 N. J. Eq. 592 (at p. 618), says: “The assignment of a lease is properly the transfer of the interest of the tenant. This is its popular as well as its appropriate and legal meaning.”

Chief Justice Beasley, in Field et al. v. Mills, 33 N. J. L. 258, distinguishes the status of the landlord and assignee, and of the landlord and sub-tenant and points out that in the case of assignment there is privity of estate with the landlord, whereas there is no such privity between the landlord and the sub-tenant. Vice Chancellor Pitney, in Firth v. Rowe, 53 N. J. Eq. 520, in concluding that the instrument involved was an assignment and not a sub-lease seems to have reached this conclusion because “it was given for the precise unexpired term of the lease, and reserved precisely the same amount of rent as did the original lease.”

This question has been variously decided in other jurisdictions. Indeed, there is such conflict of authority that reconciliation is utterly impossible.

The better view, it seems to me, is that where the tenant reserves the right of re-entry upon failure of his. transferee to pay rent or upon violation of covenants, he does not pari with his entire term or estate, and that the retention of such contingent reversionary interest creates a sub-tenancy.

Tested by this rule, it is impossible to conclude that the instrument sub judice is an assignment.

By this instrument it is provided that Cornbrooks, the grantee, shall pay to his grantor, monthly, a sum greatly in excess of the rent reserved in the original lease; that Corn-brooks shall have such possession as his grantor is able to give, but shall not permit the premises to be used for any purpose except the automobile business, or make any alterations without the written consent of the grantor, Willbert Motor Company; that he may assign the lease, but may not sub-let; that he shall have the use of certain chattels not included in the original letting; that he shall have possession only so' long as he makes the payments provided in the instrument under consideration; that Willbert Motor Company will pay to original lessee, by assignment, the payments due on prior transfer;' that, if Willbert company fails to make payment to original assignee, Cornbrooks may make such payment and credit same on amount due to his grantor; that Willbert company will protect Cornbrooks in his possession, against any failure of prior lessees to perform their undertakings; that if Cornbrooks defaults in payments or in the performance of any of the covenants, not of the original lease, but of the instrument in question, his grantor shall have the right to re-enter and have possession “as if this assignment had not been made.”

Every provision of this instrument tends to create a relationship between the grantor therein and 'defendant, and in no sense can be construed as creating privity of estate between the original landlord and the defendant. The landlord has no right of action against the defendant for unpaid rent. The right to re-enter is clearly and distinctly reserved to Willbert Motor Company for any breach of the conditions of the instrument, and no right is reserved to the original landlord to possess the property for failure of the defendant to perform the conditions of the lease. Assignment of a lease creates privity of estate between the landlord and the assignee. Field v. Mills, supra.

I conclude, therefore, that the instrument under consideration, executed by the Willbert Motor Company, conveying the premises in question, reserving a right of re-entry and withholding a part of the term or estate granted by the original lease, and reserving to itself or its grantors, the right to pay the rent, and containing other provisions inconsistent with the granting of the entire interest of said grantor, was a sub-lease and not an assignment.

2. The second question is, have plaintiffs waived a right to possession ?

It is admitted that plaintiffs cannot succeed by reason of any breach of the original lease because of any assignment or sub-letting- prior to the grant to defendant.

Defendant urges that because of the so-called assignments prior to the one to the defendant, the plaintiffs have waived the provision of the original lease against sub-leasing.

It must be borne in mind that the covenant in the original lease was against sub-letting and not against assignment. The first transfer was consented to by Jessup, original lessor. The others were not consented to. If they were assignments they were not in contravention of the original lease.

Defendant cites West Shore Railroad Co. v. Wenner, 70 N. J. L. 233, as authority for the statement that if the landlord waived one sub-letting the condition against sub-letting is at an end. The opinion of Mr. Justice Dixon in that case, does not go so far. On the contrary, he held that the subletting to Bindernagle by the assignee, Wenner, was the first violation of the condition against sub-letting, and that such condition was not discharged.

Vice Chancellor Foster, in Miller v. Newton-Humphreville Co., 116 Atl. Rep. 325, adopts the rule stated in 18 A. & E. Enc. L. 681, as follows: “If the lessor consents to a sub-letting, the sub-lease is, of course, valid, though the lease expressly forbids all sub-letting, but the consent of the lessor to one sub-letting, or the waiver of one breach of the covenant against sub-letting is no defense to a breach of the covenant by another and distinct sub-lease.”

The rule is thus stated in 35 Corp. Jur. 984: “The waiver of a breach of a covenant against sub-letting affords no warrant for subsequent breaches of this covenant.”

Despite the apparent conflict of authority, I believe the above to be an accurate statement of the law.

This view reduces the question of waiver to the last transaction. Upon this question both sides have taken proofs and submitted for determination the question of fact as to whether there was a waiver by plaintiffs.

Cornbrooks was to have possession on November 1st, 1925. On October 30th, 1925, he wrote a letter on the stationery of Willbert Motor Company to the plaintiff Wilson, requesting some repairs, and signed himself "T. M. Cornbrooks, Assignee.” This letter was received in Wilson’s office on October 31st. On November 2d, Wilson received a check from Neel-Cadillac Company for the November rent. There is some question whether Wilson, or his agent, Stannert, interviewed Cornbrooks during November, but there is denial by Stannert of these interviews. On November 23d, 1925, Cornbrooks again wrote referring to his letter of October 30th, and stating he held a lease -on the property. This letter was answered under date of November 27th, in which it was stated the landlord had no knowledge of any change of tenant and requested the assignment be forwarded. On November 30th, Cornbrooks replied stating he had an assignment of the original lease. On December 4th, Wilson wrote requesting the production of the original assignment. On December 5th, Cornbrooks answered that he did not want lease to go out of his hands, but tendered an opportunity for inspection at his office or at Wilson’s office.

On December 8th, Mr. Stannert first saw the so-called assignment, and copied some of its terms, and, on advice of counsel, had another inspection and copied the paper. Notice for possession was served on defendants on January 29th, 1926, and this suit was commenced the next day. The defendant never tendered, rent to plaintiffs. After November 2d, 1925, the plaintiffs did not cash any checks received from Neel-Cadillac Company.

Under the circumstances, I am of opinion that there was not any failure on the part of plaintiffs to act with reasonable promptness — first, to ascertain the true situation, and, second, to assert their rights against defendant. The plaintiffs assuredly were guilty of no conduct from which any person could conclude that they were assenting to the occupancy of their premises by the defendant.

These views lead me to conclude that the defendant’s answer does not present a meritorious defense, and should be stricken out.'


author: Per Curiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. SILVIO SANTINI, PLAINTIFF IN ERROR.
    Decided June 7, 1927.
    Crimes — Selling Liquor — No Error Found in Admission of Testimony — Ample Proof of Sale — Judgment Affirmed.
    On error to the Cumberland, County Court of Quarter Sessions.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the plaintiff in error, Wescott & Weaver (Ralph W. Wescott, of counsel).
    For the defendant in error, Thomas G. Tuso, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was convicted in the Quarter Sessions court of Cumberland county on an indictment charging him in one count of unlawfully selling liquor for beverage purposes and in another count for having in his possession, unlawfully, liquor for beverage purposes. Numerous grounds are urged for a reversal of the judgment. First, that there was no proof of the commission of the crime alleged in the indictment by the plaintiff in error. There was ample proof that liquor was sold by the plaintiff in error and that he had a legal possession of liquor to be used for beverage purposes. Second, that the verdict is against the weight of the evidence. We do not think it is. The third ground is that the court erred in refusing to allow the withdrawal of a juror because upon the demand of the- state for the arrest of a witness for the defense, while the said witness was under cross-examination by the state.

What took place was that on cross-examination of a witness, the prosecutor said: “You stay right here, Mr. Parent, you take charge of this man. He will tell you where he got the whiskey if he can. The Court — Strike that out. Mr. McDonald — I take exception right now to the remarks of the prosecutor. Mr. Tuso — I withdraw the remarks. Mr. McDonald — I ask to withdraw a juror. Court — I will deny that motion. The remarks have been withdrawn and stricken out.”

While the remarks of the prosecutor were highly improper, the court immediately upon the asking of the questions, struck them out, and the prosecutor immediately withdrew the remarks. It was then that counsel asked to withdraw a juror. This application was not proper. The application should have been made to the court to declare a mistrial; but even if the defendant was entitled to ask for the withdrawal of a juror, since it appears that the remarks were withdrawn and stricken out by the court, there is nothing left for the plaintiff in error upon which to base a ground for reversal. Moreover, we are unable to perceive any prejudicial injury to the defendant in his defense on the merits of the case.

We have examined the remainder of the assignments of errors and specification of causes for reversal and find them to be without substance.

Judgment is affirmed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LOUIS WEISSMAN AND IRVING OMONICK, PLAINTIFFS IN ERROR.
    Decided June 7, 1927.
    Crimes — Obstruction of Justice — Instructions to Jury After Retirement — Question Submitted in Writing to Attendant, Telephoned to the Judge, Who Answered Over the Phone “Yes” —This Word was Written on Paper Containing Question and Returned to the Jury — Held, so Irregular, and so Likely to be Prejudicial, and so Charged With Harm, That Judgment Must be Reversed.
    On error to the Hudson County Quarter Sessions Court.
    Before Justices Kaliscii, Katzenbach and Lloyd.
    Eor the plaintiffs in error, Feinberg & Feinberg and Matorice C. Brigadier.

    Eor the defendant in error, J ohn Milion, prosecutor of the pleas.
   Per Curiam.

The plaintiffs in error, together with one Patrick Leehan, were indicted by the Hudson county grand jury for a conspiracy to prevent and obstruct justice, &c. Patrick Leehan was acquitted. The plaintiffs in error were convicted.

There is a single assignment of error which presents the facts and the legal question arising therefrom, and upon which facts the plaintiffs in error rely for a judgment of reversal.

The assignment reads as follows: “That, after the jury, before whom the issue of facts in the above-entitled cause were tried, had retired to their room for the purpose of considering and weighing the evidence and arriving at a verdict in the said cause, the deputy sheriff, in whose care and custody the jury had been entrusted during their deliberation, and who had been sworn when the jury was entrusted to his custody, by the prescribed oath, in response to a knock from the room, in which the jury was deliberating, opened the door of said room and received from the foreman of the jury, a paper upon which the following request for instructions from the court, was written: 'May the jury convict two of the defendants and acquit the third ?’ The deputy sheriff received said request or for instructions and without having any communication whatever with any of the jurors closed the door of the jury room and handed the said written request to the sergeant-at-arms of the said court. The sergeant-at-arms immediately telephoned to the judge, who had retired to his home and repeated the request over the telephone to the said judge, and the said judge instructed him to write the answer 'yes’ upon the said written request for instructions and returned the same to the jury. That thereupon the said sergeant-at-arms delivered the said papers with requests for instructions and answer aforesaid, to the deputy sheriff, in charge of the said jury, who in turn, knocked on the door and transmitted the paper to the foreman of the jury and immediately closed the door, without having any conversation or further communication with the jury. This request for instruction was desired by the jury at about seven o’clock in the evening. The fact that further instructions were desired by the jury was not communicated to the defendant or counsel for the defendants who was in the court room adjoining the jury room when the request for instructions was desired.”

This assignment follows a stipulation between the counsel of the state and of defendants as to the facts concerning the matter of inquiry by the jury, and what occurred at the time.

We think this case is controlled by the case of State v. Duvel, 4 N. J. Mis. R. 719, where it was held by this court that a procedure of this character was so irregular and so likely to be prejudicial to a defendant and so charged with possibilities of harm and abuse as to require a reversal. On appeal to the Court of Errors and Appeals in the cited case, the judgment of the Supreme Court was affirmed at the February term, 1927. 5 N. J. Adv. R. 890.

Judgment is reversed, to the end that a venire de novo bp. awarded.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE CLAYPOOLE, PLAINTIFF IN ERROR.
    Decided June 10, 1927.
    Crimes — Conspiracy to Obstruct Justice — No Error in Refusal to Quash Indictment Nor to Arrest Judgment on Ground That Defendant Only was Charged, This Being Contrary to Facts — No Error in Court’s Action Granting Severance of Trial, Section 64 of the Criminal Procedure Act Not Applicable and the Matter of Severance Within Sound Discretion of Court — Assignment of Error or Stipulation of Cause For Reversal Must Set Out the Subject-Matter of the Objection With Such Distinctness and Particularity That This Court May be Informed of the Error Relied Upon — Many Points For Reversal Considered and Judgment Affirmed.
    On error to Morris County Court of Oyer and Terminer.
    Before Justices Kalisoh, Katzkkbach: and Lloyd.
    Eor the plaintiff in error, William A. Dolan.

    Eor the defendant in error, Albert, H. Holland, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was convicted in the Court of Oyer and Terminer of Morris county on an indictment charging that he, with Raymond Tillotson and Andrew McDonough, together with divers other persons of evil minds, whose names are as yet unknown to the grand inquest, willfully', maliciously, knowing, corruptly and unlawfully did combine, unite, confederate, conspire and bind themselves together by agreement to pervert and obstruct justice and the due administration of the law of the State of New Jersey.

The record of the case shows that there was a motion made on behalf of the plaintiff in error, George Claypoole, to quash the indictment, which motion was subsequently, after the conviction of the plaintiff in error, supplemented by a motion in arrest of judgment, both of which motions were denied by the trial judge, and we think properly so. The ground of the motions was that but one defendant is charged on the allegation of conspiracy. But this statement is contrary to the fact, for the indictment expressly charges a conspiracy between the three persons mentioned in the indictment and with other persons unknown to the grand jury, to pervert and obstruct justice and the due administration of the law of the State of New Jersey. Prom the record it further appears that on motion of the prosecutor of the pleas, on behalf of the State of New Jersey, for a severance, the motion was granted, resulting in putting the plaintiff in error on trial alone.

This action of the trial judge is assigned as a ground for reversal, in that in the absence of proof that other defendants charged were dead, convicted or impossible to apprehend, there could not legally be a severance. To sustain this contention it is argued that the return to the indictment shows only the defendant Claypoole was tried, and the two other defendants, Tillotson and McDonough, appeared as witnesses in the case, and as they were not convicted, therefore the plaintiff in error could not be properly tried and convicted. This contention, manifestly, overlooks the fact that the indictment as above indicted not only charged conspiracy between the persons mentioned therein bjr name, but also with persons unknown to the grand jury, and, hence, it is obvious that the objection advanced by counsel is without legal force.

But it is further urged by counsel that a severance in a conspiracy case is not lawfully permissible since it is expressly forbidden by section’ 64 of the Criminal Procedure act (Revision of 1898). Comp. Stat. 1910, p. 1841.

This section provides that where two'or more persons are or shall be jointly indicted for the same offense, except for conspiracy, and such indictment before the trial thereof has been or shall be removed into the Supreme Court of this state, by certiorari or otherwise, any one of said persons on application to Supreme Court, upon affidavit that some one or more of said persons so jointly indicted with him * * * is or are * * * a material witness or witnesses for him on the trial of said indictment * * * shall, by order of said Supreme Court, be allowed a trial separate from the person or persons whom he shall so name as such material witness or witnesses.

It is quite evident, from the language of the statute, that it does not apply to a situation which confronted the trial judge. The statute is only applicable to indictments, which by writ of certiorari have been removed into the Supreme Court by an indicted individual or individuals for the purpose of making a motion before that tribunal for a severance.

The provision of the statute neither expressly or impliedly applies to a situation where a motion for a severance is sought in the court of first instance, on behalf of the state. The unquestioned practice in this state for more than fifty years has been for a severance to be granted in the court of first instance on application of the state. The exercise of this power has always been regarded as a matter resting in the sound discretion of the court. The following reported cases in which severances were granted on application of the state, the right not being questioned, are: Brien et al. v. State, 32 N. J. L. 414; Noyes v. State, 41 Id. 418, 429; affirmed, 43 Id. 672. Both of these cases were conspiracy cases. State v. Sabato, 91 Id. 370; State v. Taylor, 92 Id. 135; State v. Herbert, 92 Id. 341, 343; State v. Gregory, 93 Id. 205; State v. Faure, 98 Id. 18.

Under the third point, on the brief of counsel of plaintiff in error, it is argued that the court improperly admitted in evidence statements made by other than the co-conspirators. The third assignment as well as the third specification of cause for reversal does not give the name of the witness and does not set forth the testimony asserted to bo improperly admitted, and therefore cannot be properly considered. It has been repeatedly decided by this court, and the Court of Errors and Appeals, that an assignment of error, or specification of cause for reversal, in order to be valid in law, must set out the subject-matter of the objection with such distinctness and particularity so that the court may be informed of the error relied on without being compelled to search through the entire record for the name of the witness and the testimony objected to. It is true that in the brief of counsel he has set forth with particularity the name of the witness and the testimony objected to, but we find upon reference thereto, in the written record, that it was subsequently struck out by the trial judge. We have not examined other parts of the testimony given by this or any other witness, to which testimony the brief says “objection was made,” for the reason that the testimony objected to has not been specifically assigned as error or specified as a cause for reversal.

Under points four, five, six and seven of the brief on behalf of the plaintiff in error, counsel argues that requests seven, eight, nine and ten, as submitted by -the defendant, state concisely and correctly the rule of law which govern the duty of a juryman in arriving at a verdict, &c. Referring to assignments four, five, six and seven, we find that they are couched in the most general language. Assignment four will serve as a specimen of the other requests: “Pour. Because the trial court erred in refusing to charge specifically the defendant’s seventh request to charge.” What that request was, does not appear, nor is the specific error pointed out in the refusal to charge the request, and this blemish is present in five, six and seven of the assignments.

Under the eighth assignment of error, counsel on behalf of plaintiff in error assigns as a ground for reversal that the court improperly stated to the jury that the defendant said to alleged conspirators: “Go out now and collect from these men fifty or a hundred dollars apiece or whatever they can pay and let them know that if they pay we will see to it that no further proceeding against them will be had and the evidence quashed.”

It is clear from the statements preceding and following the criticized statement, contained in the charge of the trial judge that the latter statement was not intended and could not convey to the jury that it was testimony in these words employed by the trial judge proceeding from the lips of the plaintiff in error, but was rather in the nature of a paraphrase of all the testimony adduced in the case on behalf of the state, relating to the conduct of the plaintiff in error and to his conversations with his alleged co-conspirators, and their conduct of the latter in carrying out the former’s instructions to them.

The trial judge said in the beginning of his charge: “* * * and with that idea in mind, according to the state’s claim [and I am merely indicating the state’s claim here without expressing my own view in the matter], Claypoole had a meeting with these two men, McDonough and Tillotson, and gave them a sheet of typewritten paper, with a half a dozen or more names, one marked S-I” and said: (here follows the language used by the trial judge, and objected to as not being accurate).

It is also to be observed that at the close of the court’s charge the court said to the jury “that the court did not give the jury its view of the case, but merely undertook to state the state’s case, and it is for you to find out what the facts are.”

Under point eight of his brief, counsel of plaintiff in error urges that other statements contained in the court’s charge were erroneous. We find no assignment of error nor specification of cause for reversal based upon such alleged errors, and therefore we cannot properly deal with the matter.

The ninth assignment of error is too indefinite and uncertain to receive consideration by the court. It fails to set out what the court said on the subject relating to the testimony of McDonough and Tillotson, so that if there was error in the charge of the trial judge, the specific error is not disclosed.

Under the tenth assignment of error it is argued that the state refused to furnish an adequate bill of particulars, 'and the defendant had no fair opportunity to prepare for trial.

The bill of particulars printed in the record, inter alia, contains in substance a demand on the state to furnish the plaintiff in error with the evidence intended to be relied on in the trial of the indictment against him. Of course^ this was palpably an improper demand. The other matters contained in the bill were answered. Furthermore, if the state had refused, upon a proper demand, to furnish the plaintiff in error with a bill of particulars, the proper course upon such refusal was to apply promptly to the court in which the cause was pending for a further bill. It appears that nothing was done by counsel of plaintiff in error until the case wias moved for trial, and then a demand was made for a further bill, and it appearing that the bill of particulars asked for related to the furnishing by the state of the evidence to be relied on by it, on the trial of the cause, the demand was properly refused. We think, also, that the demand for a further bill of particulars came too late, and might well have been refused on that ground alone.

Lastly, it is argued under the eleventh specification of cause for reversal that the verdict is against the weight of the evidence. A careful reading and consideration of the testimony leads us to the conclusion that there was ample evidence to warrant a fair-minded jury to reach the conclusion that the plaintiff in error was guilty, as charged in the indictment.

Judgment is affirmed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. CHARLES BLAIME, PLAINTIFF IN ERROR.
    Decided June 10, 1927.
    Crimes — Manslaughter—Death Through Motor Vehicle Accident —Defendant Charged With Driving His Car so That it Caused the Death of Two Men Who Were Repairing Their Own Car on the Other Side of the Street, a Very Wide Street, and Failing to Stop Until the Defendant’s Car Collided With a Fence Some Distance Beyond — No Error Found in the Admission of Testimony Relating to Maps; to Negligent Driving of Defendant’s Car Before the Collision, Since the Defendant was Charged With Being Intoxicated; to the Charge Relating to the Law of Negligence, or to Other Parts of the Charge.
    On error to Morris County Quarter Sessions Court.
    Before Justices Kaltsch, Katzenbach and Lloyd.
    For the plaintiff in error, John W. McG-eehan, Jr. (John M. Mills, of counsel).
    For the defendant in error, Albert H. Holland, prosecutor of the pleas.
   Per Curiam.

This case comes before us on a strict writ of error and under the one hundred and thirty-sixth section of the Criminal Procedure act. The plaintiff in error was convicted in the Morris County Court of Quarter Sessions on an indictment charging him with manslaughter, in that he did feloniously kill and slay Charles Haggerty and Charles Cramer.

The facts of the case are that on the 23d day of March, 1926, between eleven o’clock and midnight, the plaintiff in error was driving an automobile (a Buick sedan) on the road between Mount Tabor and Morris Plains, in Morris county, going in a southerly direction. The deceased, Charles Cramer and Charles Haggerty, were driving a Ford roadster going in a northerly direction on the same road, and, according to the testimony, had stopped their car along the hard amasite surface, a few inches therefrom and parallel thereto, to change the left rear tire of their car. It appears that while they were engaged in this operation they were struck by the car of the plaintiff in error; that the decedents had not finished their operation was evident from the fact that the pump was found still attached to the tire after they were struck. The amasite road at this point is one hundred and fifty feet wide, with dirt shoulders five feet in width on either side. As the plaintiff in error approached the car of the deceased, he suddenly swerved to the left across the road and collided with the car of the deceased on its left side, striking both Cramer and Haggerty, and dragging them along the side of the road for a distance of about ten feet, killing Cramer instantly, and Haggerty died within a few minutes afterwards, as the result of his injuries. The car after the collision was continued on its course down the left side of the road for some distance, when it gradually left the road and finally smashed against a wire fence where it stopped.

It appears from the testimony of the plaintiff in error that he was propelling his motor car at a speed of twenty to thirty miles an hour at the time when his car was about eight hundred feet distant from the place where it collided with the automobile of the decedents, and where both of them were knocked down and killed, and that he saw, when his car was at the aforementioned distance away from the place of the collision, the automobile of the decedents, but his car kept right on its course, and in one part of his testimony he says: “Well, it looked to me as if they were standing at the rear of their car looking at the left rear wheel, and it appeared to me as if the one man just stepped backwards across the road. And the other man, I thought he walked up alongside the car and stepped on the running board.”

The testimony was that after the collision and the running down of the decedents the car proceeded on its mad career for a distance of one hundred and fifty feet, smashing against a wire fence, after having scraped several trees and knocked down a sapling. There was also testimony to the effect that the plaintiff in error was intoxicated. There were no witnesses present at the time the collision occurred, except the plaintiff in error. There was, however, proof coming from several witnesses who testified that shortly before the collision they were passed by a Buiek sedan of the character and description of the car of the plaintiff in error, and which they say they saw going at a very fast rate of speed.

The first point made is that the court erred in overruling the objection of counsel of plaintiff in error to the introduction in evidence of a certain map, which map contained markings and memoranda thereon showing matters and things which were claimed to be improperly on the map. It appears that when the map was admitted, the court told the jury: “The map is admitted, of course, and ladies and gentlemen of the jury, you are not at the present time to pay any attention to the three objects marked on the map to which Mr. McGeehan objected, until they are proven. You are not to pay any attention to the three marks he mentioned.”

The prosecutor then and there consented to have them stricken off the map and from the consideration of the jury, and everything with reference to the matter of the wheels of Chief Hodge’s car, the prosecutor stating that he expected “to get Chief Hodge to testify himself, when he will then indicate that point on the map.” Of course, this could not be harmful error, since the court instructed the jury to disregard it and the state consented to have the marks stricken from the map.

The second point made is that the court erred in overruling the objection of the plaintiff in error to the following question put to the witness Edward Howell: “Q. All right, what did you see the officer do? A. I saw one of the officers, Lover or Hodges, place the foot standard of the pump in the depression in the amasite road and it fitted exactly. It was a pump similar to this with a TP-shape movable foot standard.”

It is apparent that the latter part of the answer went beyond a response to- the question put to the witness, but on examination of the record, we fail to find that any motion was made, on behalf of the plaintiff in error, to have that portion of the answer, volunteered by the witness, struck out. The record discloses that the objection made by counsel to the question was limited, solely, as to its competency, in that it “was not binding upon the defendant and that any evidence found on the 29th of March would be inadmissible as being too remote.” It is evident that the objection was not aimed at the question put to the witness, but was directed at his answer thereto^ and as to "that, as already said, no motion was made to strike out that portion of the answer, volunteered. Furthermore, we do- not think the objection made was a good one. Of course, while remoteness of testimony relating to a subject-matter undér investigation may affect its probative value, the remoteness of it, however, does not, per se, render it incompetent.

The third point relied on for a reversal is, “that the trial judge erred in admitting, over the objections of counsel of defendant, testimony as to the manner of operating a certain automobile at a point remote from the scene of the accident, to wit: Between one and one-half to three miles from the point of the accident and without first proving the identity of the ear in question to have been that of the plaintiff in error.”

There was proof that the automobile in question was identified as the one which the defendant was operating. The fact that this identification was not made before the testimony was adduced as to the operation of the car before the collision took place is of no consequence, since the objection made goes only to the order of the coming in of the proof, and as there was proof introduced which tended to show that it was the car of the plaintiff in error, the objection is devoid of any legal force.

The further ground urged, that it was error to admit such testimony because it related to the negligent operation of the automobile by the plaintiff in error, at a point between one and a half and three miles from the scene of the collision, seems to us to be substantia], since the conduct of the plaintiff in error in operating the automobile was a matter of pertinent inquiry on the question of his sobriety.

The fourth point relied on for reversal is, that the court erred in refusing to charge the eighth request which reads as follows: “To convict on the ground of negligence on the part of the defendant, there must be shown more gross and culpable negligence than is sufficient to render a defendant liable in a civil suit for not exercising that care which a reasonable and prudent person would exercise.”

The trial judge fully and accurately charged the law governing the nature of the negligence essential to be established, where death results from the negligent act, in order to constitute such negligence criminal in character. We have a statute which declares that the driving of an automobile by a person intoxicated shall be a misdemeanor. The court very properly left it to the jury to say whether what happened was brought about by the condition of intoxication of the plaintiff in error, and if so, and that circumstance entered into the reckless operation of the automobile, then the killing of the decedents would be manslaughter.

The driving of an automobile by a person intoxicated is an unlawful act, and if the death of a person is attributable to the unlawful act, that, in law, constitutes manslaughter.

Under the fifth point, it is urged that the court erred in refusing to charge the ninth and tenth requests. The trial judge was under no legal duty to charge the subject-matter of these requests, since from a reading of the charge it appears that he had already clearly stated the legal principle governing the facts developed by the testimony, and furthermore he was under no legal obligation to apply the legal principle already stated to conditions of fact postulated by defendant’s counsel, particularly where such conditions do not include all the circumstances which would influence the conclusion of the jury. Consolidated Traction Co v. Chenowith, 61 N. J. L. 554.

Again we find it necessary to state that the twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth and nineteenth assignments of errors, as well as the twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth and nineteenth specifications of causes for reversal do not comply with the legal rule, in that each of them fails to set forth the subject-matter of the request alleged to have been refused to be charged.

We take occasion also to point out here that the eighth, ninth and tenth requests considered by us are not set forth in either the assignments of errors or in the specifications of causes for reversal.

Judgment is affirmed.


text:
    Essex County Court of Oyer and Terminer.
    STATE OF NEW JERSEY v. RAYMOND BLACK ET AL.
    Decided June 6, 1927.
    A combination to monopolize is not per se indictable since the repeal of chapter 13 laws of 1913.
    On motion to quash an indictment.
    For the state, Joseph L. Smith (John O. Bigelow, of counsel).
    For the defendants, William A. Wachenfeld, Harold Simandl and Benjamin M. Weinberg.

   Flannagan, J.

The indictment alleges a combination to monopolize, for the members of a certain association, the sale at retail of kosher meat and to control the retail price thereof.

The methods which the defendants are alleged to have undertaken to employ were two — first, by preventing competitors from obtaining certain certificates or signs, customarily used and signifying that meats offered are prepared kosher, and, second, by preventing competitors from obtaining kosher meats from wholesalers.

Such certificates or signs, it is alleged, may be furnished by a rabbi or by the organization known as Yaad Hakashruth.

It is alleged that the conspiracy contemplates the impoverishment and ruin of competitors but this adds nothing to the allegation of intent to monopolize, for every attempt to monopolize must necessarily be taken to contemplate and involve, in order to maintain the monopoly, the destruction of the business of competitors, if not in presentí then in futuro; for the moment, an outsider establishes a like business monopoly ceases to exist, so that competitors, as they appear from time to time, must be disposed of.

It is further alleged that a purpose of the monopoly was to enhance the retail price of kosher meat, but it is not alleged that it was intended to do so to the extent of unreasonableness. The allegation that prices were merely to be enhanced also adds nothing. The characteristic of uncontrolled monopoly is its ability to control and' vary prices at will from those which the natural course of supply and demand would establish. This control, unless in the meanwhile human nature be revolutionized, must sooner or later, when favorable opportunity presents, normally result in the enhancement of prices.

Three overt acts are alleged to have occurred in execution of the conspiracy and to effect the objects thereof — first, one of the conspirators, on June 8th, 1926, solicited an employe of a wholesale dealer (who was not a member of the association) not to sell to any retailers except members of the association; second, two of the conspirators, on September 2d, 1926, made the same solicitation of another wholesale dealer (not a member of the association) ; and, third, still another conspirator, on September 6th, 1926, refused to sell to a retailer who was not a member of the association.

It is not alleged that these requests to wholesalers, outside the association, not to sell except to retailers in the association, were accompanied by any violence, threats, fraud or compulsion, or that they amounted to anything more than persuasion. Nor is it alleged that the refusal of the member of the association to sell to a non-member covered anything more than a single sale> or that such refusal was because the proposed purchaser was not a member, or that it was based on anything more than persuasion.

It is not pretended or alleged that the conspirators controlled the rabbis or Vaad Hakashruth or were to prevent the obtaining of certificates from them, or obstruct the obtaining of kosher meats from wholesalers by any particular means. It is not alleged that violence, intimidation, fraud, deceit, or any other illegitimate means, was contemplated to be used, nor is it indicated that any means except persuasion was proposed.

There would be nothing illegal in the members of the association endeavoring to persuade the rabbis .and the Yaad Hakashruth that their facilities were ample and that additional retail stores would, by over-competition, result in a deteriorated and less healthful service; and there would be nothing illegal in the members of the association trying to persuade wholesalers to sell their supply to them on the ground that their financial responsibility and terms of payment were better than what their competitors were in a position to offer.

There is therefore no charge in the indictment of any criminal, illegal or illegitimate methods to be employed by the conspirators to accomplish their purpose, and the question which remains is the broad one, whether or not it is per se criminal in this state to combine to establish a monopoly.

Since the repeal by chapter 143 of the laws of 1920, of chapter 13 of the laws of 1913 (one of the famous “Seven Sisters” so-called), there is no statute in New Jersey making it criminal to create a monopoly.

This is not questioned by counsel for the state in the brief which he has prepared with much ability and learning, but he contends that a conspiracy to monopolize was criminal at common law and hence is indictable in New Jersey. The question presented is whether or not this claim is well founded. The scope of criminal conspiracy at common law has been widely discussed and the difficulty of defining is well recognized. Wright Cr. Consp. & Agr. (London, 1873), 66, 67; 2 Steph. Hist. Cr. L. (England) 227, 229; State v. Bienstock, 78 N. J. L. 256 (at p. 269).

Whether a conspiracy to monopolize is criminal at common law has never been directly passed upon by the courts of New Jersey, but it has been touched upon here and widely discussed elsewhere.

In the eighteenth and nineteenth centuries under the common law and statutes as then existing, it would seem that in England the defendants might have been indictable for such a conspiracy, but largely because of statutes. 3 Steph. Hist. Cr. L. (England) 226, 227.

Under the modern British law, however, it has been held that a combination of persons in a trade to keep outsiders from pursuing that trade is not unlawful. Mogul S. S. Co. v. McGregor (1892), L. R. App. Cas. 25, 35, 40, 41, 60.

The most conspicuous ease discussing the question as to whether a conspiracy to monopolize was criminal at common law is one in which the opinion was 'written by Chief Justice Taft (then Circuit Judge). His remarks were by way of dicta, but they form the basis of many of the decisions since that time. He says:

“Contracts that were in unreasonable restraint of trade at common law were not unlawful in the sense of being criminal or giving rise to a civil cause for damages in favor of one prejudicially affected thereby, but were simply void and were not enforced by the courts. Mogul S. S. Co. v. McGregor (1892), L. R. App. Cas. 25; Hornby v. Close, 2 L. R. Q. B. 153; Chief Justice Lord Campbell in Hilton v. Eckersly, 6 El. & B. 47; Justice Hannen in Farrer v. Close, 4 L. R. Q. B. 602, 612;" United States v. Addyston Pipe and Steel Co., 85 Fed. Rep. 271, 278, 279; affirmed, 175 U. S. 211.

I am quite satisfied that the weight of authority outside the State of New Jersey supports the chief justice's view. State v. Van Pelt, 136 N. C. 633, 652, 656; Macauley v. Tierney, 19 R. I. 255, 264; State v. Scollard, 126 Wash, 335, 339, 340; Transportation Co. v. Oil Co., 50 W. Va. 612, 617, 627; Bowen v. Matheson, 96 Mass. 499, 502, 504; Cote v. Murphy, 159 Pa. 420, 425, 432; Buchanan v. Kerr, 159 Pa. 433, 435; Bohn Manufacturing Co. v. Hollis 54 Minn. 223, 232, 234; Harris v. Commonwealth, 113 Va. 746; National Protective Association v. Cumming, 170 N. Y. 315, 321, 333; Paine Lumber Co. v. Neal, 244 U. S. 459, 471; Bossert v. Dhuy, 221 N. Y. 342, 358, 360.

In New Jersey, as already stated, there is no ease directly in point, but the dictum of Chief Justice Taft is approved in a dictum by Vice Chancellor Stevens in McCarter v. Firemen's Insurance Co., 70 N. J. Eq. 291, 293, 294, where the Vice Chancellor says:

“In the case of United States v. Addyston Pipe and Steel Co., 29 C. C. A. 147, Judge Taft, in an exhaustive and illuminating opinion on the subject of contracts in restraint of trade, says: ‘Contracts that were in unreasonable restraint of trade at common law were not unlawful in the sense of being criminal’” (at p. 293).

The case was appealed to the Court of Errors and Appeals and the Vice Chancellor’s decision was there reversed by a vote of seven to four (see 74 N. J. Eq. 372), but the question of the criminality of a conspiracy to create a monopoly (not being involved) was not touched upon by the majority. The minority, however, consisting of the Chief Justice and Justices Siwayze, Eeed and Bergen, in an opinion written by Mr. Justice Swayze^ say, in referring to the contract then before the court (and so far as criminality is concerned, by way of dicta) —

“Even if the contract were invalid, 1 agree with the learned Vice Chancellor that the only effect is that it is unenforeible. It is sufficient to justify that view to quote from the famous opinion of Judge Taft, upon which the learned Vice Chancellor relied. United States v. Addyson Pipe and Steel Co., 85 Fed. Rep. 271. The court said that contracts that were in unreasonable restraint of trade at common law were not unlawful in the sense of being criminal, &c. 74 N. J. Eq. 372 (at pp. 411, 412).”

A very thorough and instructive discussion by Arthur W. Allen is found in the 23 Harvard Law Rev. (1909-10), tit. “Criminal Conspiracies in Restraint of Trade,” 531. The author, after reviewing fully the English and American decisions upon the common law, reaches the following conclusion (at p. 547) :

“The difficulties of framing any fair rule of definition brings one inevitably to the conclusion that the best solution of the problem is to say with Judge Taft that trade agreements are not punishable under the rules of the common law, and then to look to the legislature to pass adequate and -definite measures to protect the public.”

The weight of authority outside this state, supported by the dicta in New Jersey above quoted, leads me to hold that a conspiracy to monopolize -was held at common law not to be criminal.

The case of State v. Bienstock, 78 N. J. L. 256, referred to by both sides, is not in point. It holds that a combination to count and tally three hundred ballots as cast at a primary election for delegates to the state and- congressional district elections, -which were not in fact actually cast or voted,-was a criminal conspiracy at common law. It would be difficult to see how such a conspiracy -could be regarded otherwise than as- a cheat and- a fraud upon the public.

The discussion in that .case was as' to-whether" or not the principles of the common law, when applied to the state of fact disclosed, required that an indictment be quashed though the question involved had never been raised at common law and, probably, under the conditions existing at common law could never have arisen. 78 N. J. L. 276, 277. In the instant case no -fraud or cheat is -alleged and the question. is as to what has already been decided at common law.

It is urged in behalf of -the state that the - court should lean toward the state in considering the motion, for the reason that, while the defendants can review a decision denying-the motion, if the court should grant the motion and-quash the indictment, the state cannot review such action, and would thus be left helpless.

It is quite true that a motion to quash, as a general rule, is addressed to the discretion of the court and is not reviewable on writ of error, but this rule “is not applied when the motion is rested upon the failure of the indictment to charge a crime,” as is the fact in the instant case (State v. Mandeville, 88 N. J. L. 418) and the state has, therefore, the right of appeal. Moreover, the state has a complete remedy in equity by injunction at the -instance of the attorney-general. McCarter v. Firemen’s Insurance Co., 74 N. J. Eq. 372.

The indictment should be quashed.


text:
    JOSEPH THOMPSON, PLAINTIFF-RESPONDENT, v. THOMAS PETROZZELLO AND DOMENICK PETROZZELLO, TRADING AS PETROZZELLO BROTHERS, DEFENDANTS-APPELLANTS.
    Decided June 17, 1927.
    Negligence — Motor Vehicle Injured Because of Unsafe Condition of Highway Under Reconstruction — Defendants Had Left an Excavation Unguarded During the Night — There was Proof That There was no Barrier nor Red Light Seen — Such a Condition Constituted a Public Nuisance — Contributory Negligence Cannot Successfully be Set up Where the Tort Consists of a Public Nuisance — Contributory Negligence in Such a Case and Assumption of Risk Distinguished — Judgment For Plaintiff Affirmed.
    On appeal from the East Orange District Court.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor the appellants, Millón M. Unger.

    Bor the respondent, Howard F. Barrett.

   Per Curiam.

This appeal is before us on a state of the case settled by the trial judge of the East Orange District Court.

The case as settled is as follows: “The action was in tort to recover damages to plaintiff’s automobile when it met with an accident on Bollinson street, in West Orange, New Jersey.

Eollinson street is a public highway in West Orange, New Jersey, running north and south and was paved with amesite up to the southerly curb of Pillot Place, West Orange, New Jersey. Brom that point and thence south to Hazel avenue, a distance of several hundred feet, the defendants, who were paving contractors, were laying a smooth concrete pavement. At the point where amesite pavement ended, and new concrete pavement commenced, the defendants had, for a distance of four feet, piled on earth to a height of six inches, and then sloped it d.own with a drop of one and one-half inches per foot.

The contract and specifications of the defendants with the village of West Orange called for the laying of a six-inch concrete road, and on August 1st, 1925, the date of the alleged accident, the contractors were about ready to pour concrete.

The plaintiff’s son, Joseph Thompson, on the night of August 1st, 1925, was driving his father’s automobile from Livingston, New Jersey, and was'headed for South Orange, New Jersey. The automobile was a seven-passenger car, and filled to capacity.

The night was clear and the automobile was being operated at about fifteen miles an hour. Lights of car were lighted. The occupants of the car were, including the driver, seven in number, and friends of the plaintiff or his family. All the occupants of the ear were in court and testified. Their testimony was that they were traveling about fifteen miles an hour, when all of a sudden the car dropped into a hole, rolled a foot or so and stopped dead. They all got out of the car, found that front wheels of car were in an excavation or depression. That there was no barrier across the street, nor red light across the road. That there was a red light on a concrete mixer on the side of road some few feet to the rear of the car. With the aid of a flashlight they saw oil leaking, and that the pan under crank case was bent. The car could not be moved and had to be towed to their home. Some two weeks later it was repaired. The driver of car further testified that he had never driven in this street before.

The defendants bring on their witnesses, Mr. Samuel De-Manci, an employe of Petrozzello Brothers; Mr. James Petrozzello and Peter Schmitt. Samuel DeManci testified that on August 1st, 1925, at about four o’clock in the afternoon, he put a barrier across the southerly cross-walk of Rollinson street and Pillot Place, and placed on it three lanterns, filled with kerosene and lighted. Said he came the next morning and found lanterns all lit and barriers in same position as he had left them the night before. James Petrozzello testified that there were two lights on mixer on the side of road and three lights oil the barrier across the road. He testified he was on job Sunday morning and found it same as it was the night before. Peter Schmitt testified that he made it his duty to see lanterns were filled, and that barriers were put up every night, three lights on them. That he did not get to the job until Monday morning.

At close of plaintiff’s case, counsel for the defendants moved for a nonsuit on the following grounds:

“1. Evidence failed to disclose any legal liability on part of defendants.

“2. The plaintiff was guilty of contributory negligence.

“3. The plaintiff had failed to make out a prima facie case.

“Motion of nonsuit denied.”

Exception to court’s ruling taken and granted, and at close of case defendants moved for a judgment in their favor on the following grounds:

“1. The evidence failed to disclose any legal liability on part of defendants.

“2. The plaintiff was guilty of contributory negligence.

“3. Plaintiff had failed to make out a prima facie case.

“4. Defendants were free of negligence.

“I found the defendants guilty of negligence alleged in the state of demand and assessed the damages in the sum of $300, and judgment was entered in favor of plaintiff and against the defendants for that sum.

“Case settled and signed by me this 6th day of November, 1926.

“William V. Rafferty,

“Judge of East Orange District Court.”

The first point urged in appellant’s brief is, that the evidence failed to disclose any legal liability on the part of the defendants-appellants. According to the state of the case the defendants made an excavation or depression in a public highway, and according to the testimony adduced on part of the plaintiff, they left the excavation or depression unguarded in the night time, whereby the plaintiff’s automobile, which was being operated along the road at a speed of about fifteen, miles an hour, dropped into the excavation and was damaged. ■

There was proof, on part of the plaintiff, that there was no barrier or red light across the road. This became a disputed question of fact for the trial judge to decide. Of course, there being testimony -that the defendants made the depression or hole in the public highway and that they failed to properly guard it, the trial judge was warranted in finding that there was negligence on part of the defendants for which they were answerable in damages to the plaintiff, unless he disentitled himself from a recovery by ’his own negligence proximately contributing t.o his injury.

Such a condition existing in the highway, as testified to by the plaintiff and his witnesses, constituted a public nuisance. It goes without saying that if the plaintiff saw a barrier and a red light displayed and deliberately disregarded the warning and thereby was injured, -he would be debarred of a recovery. The burden of establishing such a’ defense was on the defendants.- The trial judge, sitting as a jury, found the defendants guilty of negligence and found for the plaintiff and assessed his. damages at $300. This finding negatived the contention • on behalf of the defendants that the plaintiff was guilty of contributory negligence. ,

We are not to be understood as intimating that contributory negligence can be successfully set up as a defense where the tort consists of a public nuisance. In such a case, as that of a nuisance, where a person knows of the danger and voluntarily assumes the risk thereof and sustains an injury, it is well settled by the cases, under the doctrine of assumption of risk, he is debarred of a recovery.

Lastly, it is argued that there was no evidence to sustain the assessment of damages in the sum of $300. The answer to this is, that the finding of the court that the damages were $300 will be presumed to rest upon competent proof if nothing appears to the contrary. O'Neill v. Pearse, 87 N. J. L. 382; Smarak v. Legusse, 91 Id. 57.

Judgment is affirmed, with costs.