author: Per Ctjriam.

text:
    MINNIE DONSKY, ALSO KNOWN AS MINNIE RAPPORT, PLAINTIFF-APPELLEE, v. STEPHEN SEDLAK AND BARBARA SEDLAK, HIS WIFE, DEFENDANTS-APPELLANTS.
    Submitted October 36, 1925
    Decided January 21, 1926.
    Landlord and Tenant—Action to Recover Rent During Time Before Expiration of Lease the Property Was Vacant—Did Tenants Hold Under Sublease or Assignment?—Evidence Not Sufficient to Justify Decision That They Held Under Assignment—In Many Respects an Under Lease is More Unfavorable to Owner Than an Assignment—An Under Tenant Does Not Put Himself in Privity of Estate With Original Lessor, Nor is He Liable to Him For the Performance of the Covenants Running With the Land, Such as the Covenant to Pay Rent or Keep Premises in Repair.
    On defendant’s appeal from the District Court.
    Before Justices Parecer, Mintoen and Black.
    Por the plaintiff-appellee, David Berman.

    Por the defendants-appellants, Benny & Gruden.

   Per Ctjriam.

This was a suit by landlords against former tenants. The first count of the state of demand set up a sealed lease between the plaintiffs and one Philip Houtz, and alleged that the lease had been assigned to one Spiegal, and by Spiegal to one Cohen, and by Cohen to the defendants; that the defendants vacated the premises during the term, failed to pay the rent, and that the premises are still unoccupied. The second count is for damages for having wrongfully, willfully and maliciously torn down partitions and otherwise injured the demised premises. The trial court found for the plaintiffs in the sum of $300 on the first count and $175 on the second count. •

Only two of the eight specifications for reversal raise any matter calling for our determination; these are the first and •the last. Numbers two to seven, inclusive, are merely propositions of law or fact which do not assert any ruling of the trial court claimed to be erroneous. The last ground is that the court erred in giving judgment for the- plaintiffs for damages done to the demised premises after the defendants-appellants vacated the same. Upon the state of facts as found by the trial judge, it is plain that these damages were not done after the defendants had vacated, but while they were vacating or before they had vacated, and in the presence and under the direction of the defendants, or one of them. Consequently, there was no error in the finding for the plaintiff on the second cdunt. The first count presents much more difficulty because the landlord’s claim was predicated upon an assignment, of the lease, and there is no direct evidence of any assignment. By section 3 of the statute of frauds (Comp. Stat., p. 2610), no lease, estate or interest, either of freehold or term of years, shall be assigned, granted or surrendered, unless by deed or note in writing, signed by the party so assigning, or by act or operation of law. There was no written assignment of the lease, and we fail to find anything that can be called an assignment by operation of law, if there really be such a thing. The state of the case sets forth that the lease as originally made had been assigned by mesne assignment to one Abraham Cohen, although no writing indicating such assignment ox assignments seems to have been put in evidence. It further sets forth that Cohen, about January 39th, 1934, sold the business operated in the premises to Barbara Sedlak, and there is a bill of sale in evidence covering the good-will of the business, stock and fixtures. But there is no language importing an assignment of the lease. Next, Barbara Sedlak, by written instrument, seems to have sold and conveyed to Michael Sedlak the goodwill, stock and.fixtures, and, in turn, Michael Sedlak made his bill of sale under seal, conveying to Mary and Adam Bilicki the stock and fixtures without any mention of goodwill. This is all that is indicated by the. documents. As a matter of fact, Stephen and Barbara Sedlak took possession of the premises at the time of the assignment from Cohen, and remained in such possession until June 14th, 1924; but there is nothing to show that they held under anything more than physical transfer of possession, so that they might have been assignees of the lease, or they might have been merely subtenants. We are unable to see any presumption that they were assignees, especially in view of the fact that under our statute the assignment must be in writing. If they were merely subtenants, or tenants at will, they would be liable for rent, certainly, so long as they occupied the premises, but probably not thereafter, and certainly not until the end of the term created by the original lease. As was said by Chief Justice Beasley in Field v. Mills, 33 N. J. L. 254, 257, 258: “In many respects an under lease is more unfavorable to the owner of the land than an assignment. An under tenant taking the possession does not put himself in privity of estate with the original lessor; nor is he liable to him for the performance of the covenants running with the land— such as the covenant to pay rent or keep the premises in repair.” And the converse of the proposition was illustrated in the more recent case of Cifelli v. Santa-Maria, 79 Id. 354, where the question was whether a party entering the demised premises with the tenant’s consent and thereby substituted in the tenant’s place any exercise a renewal privilege given by the original lease. And it was held that he could not.

The result is that there was nothing in the case on which the judge could determine, as he undertook to determine, as a fact, that as an assignment of the original lease had been made to the defendants; there was, therefore, error in so holding and in holding the defendants liable for $300 for rent of the premises over a period when they were not in the possession thereof, and were not shown to be liable upon the covenants of the original lease.

So far as relates to the item of rent, the judgment will have to be reversed; the question then arises whether it must be reversed in toio. We incline to think that under the rule laid down in Philbrick v. Mundy, 93 N. J. L. 43, and in Horst Co. v. City Brewery, 94 Id. 230, the judgment will be affirmed if the plaintiff will waive the item of rent; otherwise it will be reversed. No costs will be awarded on this appeal.


source: Caselaw Access Project

author: Per .Curiam.

license: Public Domain

text:
    LINDEMAN-CHEVROLET, INCORPORATED, A CORPORATION, PLAINTIFF-APPELLEE, v. RELIABLE WOODWORKING COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October 16, 1925
    Decided January 21, 1926.
    Bailment—Injury to Automobile Loaned to Another—Action Brought For Cost of Repairs—Defendant Claimed True Measure of Damages to be the Difference Between the Value of Car Before and After the Accident, and Plaintiff’s Complaint Amended Accordingly—Defendant Cannot Now Complain Because the Damages Proved Turned Out to Have Been More Than Those Which Would Have Been Proved if. the Original Measure of Damage Had Been Adhered to.
    On defendant’s appeal from the District Court.
    Before Justices Parker, Mtnturn and Black.
    Eor the plaintiff-appellee, William Greenfield.

    Eor the defendant-appellant, Milton M. Unger.

   Per .Curiam.

The only error alleged in this case is the action of .the trial court in allowing an amendment to the state of demand, the result of which amendment was to support a judgment for $500 instead of a judgment for $264.50. The plaintiffs loaned an automobile to the defendant, and, while in its custody, it was badly damaged. The liability of the defendant for this damage was not disputed. The automobile was returned to the plaintiff and put in order at a cost of $364.50, and plaintiff sued defendant to recover that amount. The summons in the action laid the damages at $500, but in the original state of demand it was averred that by reason of the injury “the plaintiff was obliged to, and did, expend the sum of $364.50 in the repair of the said automobile loaned,” &c. Judgment was claimed in $364.50, besides interest and costs. At the trial the plaintiff undertook to prove the cost of repairs as was alleged in the state of demand, but, according to the certificate of the trial judge, “this was objected to by the defendants on the ground that the true measure of damage was the difference in the value of the car before the accident and after the accident. This objection was sustained and the plaintiff given leave to amend its complaint, claiming damages for the difference before and after the accident.” The amendment was, apparently, not put in writing at the time of the trial, but the trial proceeded without it, as often happens in such eases, and without objection so far as appears. Plaintiff went on to prove its damages on the basis urged by the defendant, and the testimony on this point showed that, whereas the automobile before the accident had a value of $900, its value after the accident was only $335, a difference of $575. The court then reserved decision, and a few days later, before the decision was given, an amended demand was filed, claiming “that by reason of the damage to the automobile the same became greatly depreciated in value and a total loss, and, by reason thereof, plaintiff says that it has sustained damage in the sum of $500.” Several days after this the court awarded a judgment for $500, and it is now claimed, as already stated, that the court erred in permitting the amendment to be made.

There is nothing before us to show that any objection was made to the amendment, and it is reasonably evident that an amendment of this kind was contemplated. It is also a fair deduction from the language of the certified state of the case that the trial proceeded as though the amendment had been made, and that the evidence with regard to difference in value was admitted without any objection or suggestion to the court ■ that the damage found could not exceed that claimed in the original state of demand. In other words, the plaintiff was obliged to shift its ground by the defendant’s original objection, and we fail to see how, after the ground was shifted because the defendant insisted upon it, defendant can now claim that, although a different rule was applied at its own instance, the amount to be recovered is to be restricted by the damages first claimed, based on a theory of cost of repairs. In this aspect the case is very similar to Oxford Foundry and Machine Co. v. George A. Myers & Co., 3 N. J. Mis. R. 1212; 130 Atl. Rep. 884. In that case the plaintiff undertook to prove damages based upon the market price of certain sash weights; defendant objected and insisted that the true measure of damages was the difference between cost of production and the agreed contract price. The court acceded to this view and permitted evidence to be submitted on that basis, and on rule to show cause it was alleged that the court adopted an erroneous rule for measure of damages. But this court held that the defendant was not entitled to allege error in an action of the trial court that was taken at its own suggestion and instance. This is substantially the situation in the present case. The appellant, having forced the plaintiff below to abandon the measure of damages suggested in its original state of demand, and to prove a case based on a measure of damages suggested by the defendant, cannot now. complain because the damages proved turn out to have been more than those which would have been proved if the original measure of damages had been adhered to.

The judgment will be affirmed.


author: Pee Curiam.

text:
    HANNAH Y. MILLER, PLAINTIFF, v. WILLARD J. WILLIAMS, DEFENDANT.
    Submitted October 16, 1925
    Decided January 21, 1926.
    Ejectment—Question Involved the Existence of a Particular Monument at the Time the Deed From the Plaintiff to the Defendant Was Executed—All Questions Were Those of Fact, and the Evidence, in Substantial Contradiction, Was Not Sufficient to Justify the Conclusion That the Judgment For the Defendant Was Against the Weight of Evidence or That the Jury Disregarded Itsi Duty.
    On plaintiffs rule to show cause.
    Before Justices Parker, Minturk and Black.
    For the plaintiff, Joseph M. Boseberry & Son.

    For. the defendant, John H. DahlJce.

   Pee Curiam.

This was an ejectment suit, and, although several reasons were assigned for making the rule absolute, substantially ,only one is argued, and that is that the verdict was against the weight of the evidence. The question for consideration by the jury was, in substance, whether an alleged monument described as “a stake and pile of stones” was in existence at the time the deed from the plaintiff to the defendant was executed, and, if so, was at the point claimed in the testimony for the plaintiff. The judge properly instructed the jury that if the monument was in existence, it would control the second course with relation to direction and distance, but if not, the course and distance stated in the deed would control. Plaintiff claimed that defendant, after receiving his deed, had fenced to a line based on this alleged monument, and had, subsequently, reset his fence some distance on land not conveyed to him. Defendant admitted resetting the fence, but claimed that it had been set in the wrong place at first by mistake, and that the resetting was a mere correction of the line, and denied that such line had been fixed by any such monument as claimed by plaintiff, or that he had, subsequently, removed the same as plaintiff alleged.

These were all questions of fact which were properly submitted to the jury; the evidence was in substantial contradiction, and we are unable to say that the verdict of the jury, which evidently adopted the defendant’s theory of the facts, was so greatly against the weight of evidence as to show that the jury disregarded its duty in the premises.

The rule to show cause will, accordingly, be discharged.


author: Pee Cueiam.

text:
    HARRY SCHADEL, PLAINTIFF-RESPONDENT, v. IGNATZ HONIG, DEFENDANT-APPELLANT.
    Submitted October 16, 1925
    Decided January 21, 1926.
    Negligence—Motor Vehicle Collision With Another Motor Vehicle While Standing Parked as Result of Being Forced by a • Trolley Car—Judgment Against Motor Vehicle Driver and For the Trolley Company—No Error Found in the Trial—■ Case Peculiarly One For the Jury.
    On defendant’s appeal from District Court.
    Before Justices Paekee, Mintuen and Black.
    For the plaintiff-respondent, Michctel Breitkopf.

    For the defendant-appellant, Frank G. Turner.

   Pee Cueiam.

The plaintiff’s automobile, standing parked in the daytime at the right-hand curb of Bergen street, Newark, was seriously damaged by Honig’s car being pushed into it by a southbound car of the Public Service Railway Company. Plaintiff sued both Honig and the company, and on the trial the latter was acquitted by the jury and a verdict found against the appellant, Honig. The accident occurred in this way: Bergen street runs north and south; it has one trolley track in it, and there is a space of about eight feet between the track and the curb on each side, or not enough for more than one automobile between curb and track. The plaintiff’s car was parked on the west side of Bergen street, and Honig’s car was parked behind it. Honig got into his car, started the engine and undertook to pull out from behind plaintiff’s car to the left just as the trolley car came from the north, caught Honig behind and pushed his car into that of the plaintiff. The jury absolved the Public Service Railway Company, evidently on the theory that Honig started his car in front of the trolley car when the latter was too close to stop in the exercise of due care. The case was peculiarity for the jury.

The trial court charged, among other things, that “either one or both of these defendants are liable,” and this is said to be erroneous on the authority of Dentz v. Pennsylvania Railroad Co., 75 N. J. L. 893. The reversal in the Dentz ease, however, was based on a portion of the charge wherein the jury was instructed that the collision alone established a presumption of negligence. The instruction in the present case was not based upon any such isolated fact, but upon all the evidence as it appeared in the case, taking the view of it most unfavorable to the plaintiff. There can be no doubt that the plaintiff was entirely without fault, and, as the facts developed on the trial, it was, in our judgment, indisputable that the plaintiff’s automobile would not have been injured except for the negligence of Honig or the Public Service Railway Company, or both.

The second point is that the court refused to nonsuit, and the third, that the court refused to direct a verdict for the defendant. These are covered by what has already been said.

The fourth and last point is that the court erred in excluding a question asked of the motorman, William Terhune, under cross-examination. There has been some testimony in the case that shortly before the accident the motorman had been seen bending over and looking down at his post, as though he were grinding some change out of the cash box. The car was a one-man car. The motorman denied this, and said that he had taken the money out some time before when at a standstill, because of traffic at another corner. Counsel for Honig then asked:

“Q. You say you never take money out of the box while the trolley car is moving? A. The trolley car wasn’t moving.

“'Mr. Boyd (for Public Service)—I object to that question.

' “The Court—Yes, I think that is carrying it a little too far.

“Mr. Turner—He should answer that question whether he does take money out of the box -when the trolley car is moving. We can judge then as to his credibility.

“The Court—No, I don’t think s,o.”

Counsel abandoned the matter at this point and did not even take an exception. Of course, an exception is not necessary to review a ruling in the District Court. Assuming that the matter is in such shape as to be reviewable, we think there was no error in restricting the cross-examination to this extent. In Quellmalz v. Atlantic Coast Electric Railway Co., 94 N. J. L. 474, the Court of-Errors and Appeals dealt with a general question of this kind relating to a general failure of the defendant company to install new controller boxes for several years, and that court held that the question was irrelevant under the well-recognized rule of evidence that other acts of negilgence, like other crimes, are not evidential to show the commission of the particular act of negligence or particular crime. On this theory, a question as to the habits of the motorman with relation to taking money out of the cash box when the car was moving was irrelevant, and, therefore, the question was properly excluded.

These considerations lead to an affirmance of the judgment.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HERMAN COHEN, PLAINTIFF IN ERROR.
    Argued March 3, 1925
    Decided January 23, 1926.
    Crimes—Passing Fraudulent Checks—No Money in Bank to Credit of Defendant, and Never Had Been—Sundry Refusals to Charge Favorable to Defendant Examined and Sustained —-Not Necessary to Allege in Indictment That Demand Had Been Made on Maker Within Five Days to Pay Check and All Costs—Verdict Not Against Weight of Evidence.
    On writ of error.
    Before Justices Parker and Katzenbach.
    Por the plaintiff in error, Kraemer & Siegler.

    Por the defendant in error, John 0. Bigelow.

   Per Curiam.

The defendant below, Herman Cohen, was convicted in the Essex Quarter Sessions of uttering a bad check with intent to defraud. He has sued out a writ of error to review the judgment of conviction. The indictment was founded upon the amendment of the Crimes act contained in chapter 72 of the laws of 1919. Pamph. L. 1919, p. 133. Cohen and the complaining witness Jack Ruderman were acquaintances and business associates. Cohen claimed Ruderman was his partner, which Ruderman denied. It is not disputed that, on October loth, 1923, Cohen drew and delivered to Ruderman a check on the Fidelity Union Trust Company for $85, which Ruderman presented for payment on the following day. The cheek was returned marked “No Account.” Cohen had no account with this bank and never had had. The check was never made good. Ruderman testified that Cohen wanted to buy some clothing but did not have the money, and asked him to cash a check for $85. Ruderman only had $65, so, to oblige Cohen, he went to a hat store and borrowed from its manager, a friend, $20. Ruderman then handed Cohen $85, and Cohen wrote out and handed to him the check in' question. Cohen contended that Ruderman had advanced him from time to time $85, and the check was a memorandum of this indebtedness, which Ruderman agreed to’hold, and not use as a check.

The case is before us under section 136 of the Criminal Procedure act as well as upon a strict bill of exceptions.

The first point urged by the plaintiff in error for reversal is the refusal of the trial court to charge the following request: “Intent to defraud is not a mere misrepresentation such as predicates a suit for the recovery of damages, but involves a criminal intention ad initio, i. e., from the beginning.” It is difficult to understand what this request means. If the defendant obtained $85 by the misrepresentation that the check was good when he knew it was not, the statute makes such a transaction prima facie evidence of intent to defraud. The request does not, therefore, state any accurate principle of law, which the trial court was obliged to charge when requested.

The second ground for reversal is the failure of the trial judge to charge the following request: “That the term check is defined under our statute as ‘a check is a bill of exchange drawn on a bank payable on demand, and must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by 'the delay.’ ” It was uncontradicted that Ruderman presented the defendant’s check for payment the day following its delivery to him. The defendant had no account in the bank. This was not denied. There was not, therefore, any evidence in the case which would have justified the charging of this request. It was properly refused.

The third point presented by the plaintiff in error is the refusal of the trial court to charge the following request: “The failure to make presentation of the check is to be considered by you in the light of the ordinary acceptation of the word check under the criminal statute, meaning thereby that the statute presupposes that the check was given under such circumstances as involved the right of the payee to make presentation within a reasonable course of time, practically on demand. Evidence, therefore, in the case that the check was presented some months later, negatives the state’s outstanding contention of its being a check in the sense of the word check under the statute.” The request inaccurately states the testimony when it says the check was presented “some months later.” The evidence on the subject of presentment has been referred to. The defendant admitted that the check was presented on October 16th, 1923. The court ruled properly in declining to charge the request.

The fourth ground for reversal argued is the refusal of the court to charge the following request: “If you find as a fact from the evidence that Euderman was to your minds in business with the defendant, then you can take into consideration the fact of whether or not the check was given as a mere memorandum between the parties as to the amount paid by Euderman to the defendant out of the partnership fund.” This request calls for a comment upon the evidence which the trial judge was not required to make. The subject-matter of the request was, however, referred to and fully covered in the charge. We see no error in the refusal to charge this request.

The fifth point urged for reversal is the refusal to charge the following request: “Intent to defraud as in this charge must not be of a civil nature, but must be of criminal intention, and, especially, beyond all reasonable doubt.” This is substantially similar to the request considered under the first point. What was said with reference to the former request applies equally to the request under consideration. We think it was properly refused.

The sixth point argued on behalf of the defendant is that the indictment is defective. The statute in the second section thereof contains a proviso as follows: “Provided such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with all costs and protest fees, within five days, after receiving notice that such check, draft or order has not been paid by the drawee. It is contended that this allegation should have been made in the indictment, and that the state should have furnished evidence that the case did not fall within the proviso mentioned. There is no merit in this contention. It is well settled that if there be an exception in the body of the enacting clause, the party relying on the general clause must in such case negative the exception in his pleading, but if the exception be in some other detached clause it need not be negatived or noticed, and the opposite party must set up the exception. Wheatman v. Andrews, 85 N. J. L. 107; Mayer v. State, 63 Id. 35; State v. Marks, 65 Id. 84; State v. Terry, 73 Id. 554; State v. Reilly, 89 Id. 627.

The case of State v. Lee, 126 Atl. Rep. 420, is relied upon by the plaintiff in error. In this case the exception is in the body of the statute.

The seventh point argued for the plaintiff in error is that the state failed on its case to establish facts sufficient to warrant a conviction. There is no assignment of error or specification of cause for reversal which embodies this contention. It was not raised by any ruling or by any motion to acquit the defendant at any stage. The point, therefore, will not be considered.

The last ground argued for reversal is that the verdict is against the weight of the evidence. In view of the testimony that Ruderman, in order to accommodate the defendant, said that he would borrow from a friend the amount which he required to make the full amount requested as a loan by the defendant; that Ruderman did go to the hat store and borrow from its manager the balance needed to give the defendant the sum he stated he required; that the defendant admitted going to the store with Ruderman; that Mr. Hanson, from whom the money was borrowed, corroborated this, leads us to the view that the verdict was not contrary to the weight of evidence.

The judgment of conviction is, accordingly, affirmed.


author: Pee Cttbiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MICHAEL CHIACCIO, PLAINTIFF IN ERROR.
    Submitted October 16, 1925
    Decided January 21, 1926.
    Crimes—Receiving Stolen Goods—Several Points Raised by Defendant Considered and Found Without Merit—Indictment Found in Oyer, and Tried in Sessions Without Order of Transmittal—Held, That Objection is Now Untenable, the Regularity of the Proceedings Not Having Been Challenged at the Time.
    On error to the Somerset Quarter Sessions.
    Before Justices Pabkee, Mintukn and Black.
    For the plaintiff in error, Romulus P. Rimo.

    Por the defendant in error, James I. Bowers, prosecutor of the pleas.
   Pee Cttbiam.

The defendant was convicted on an indictment charging him with receiving stolen goods. There is no certificate of the entire record of the proceedings had at the trial under section 136, and, therefore, the case comes before us as on strict writ of error. We notice a certificate made by the official stenographer, but that has no legal efficacy on this phase of the ease. State v. Ramage, 91 N. J. L. 435. Hence, the first point made that the verdict was against the weight of evidence, is not before us for consideration, as that point can only be urged when the case is brought up under section 136.

The second point is: “The court excluded legal, relevant and competent testimony.” And the fourth, that the court admitted illegal evidence for the state over the objection of the defendant. These assignments of error are futile because they do not specify anything. State v. Oliver, 130 Atl. Rep. 446.

The third point is that the court refused to quash the indictment. This, however, is not reviewable in error. State v. Potter, 83 N. J. L. 428. The court did, in fact, quash the second count of the indictment, but we assume that this assignment is directed to the first count.

The fifth and last point is that the Court of Quarter Sessions had no jurisdiction to try the case because the indictment was found in the Oyer, and there was no order of that court transmitting it to the Sessions for trial. The answer to this is that section 6 of the Criminal Procedure act the Court of Quarter Sessions may receive indictments in the absence of the justice of the Supreme Court, “and all indictments so received which are not triable in the Court of Quarter Session shall be delivered by said courts to the Courts of Oyer and Terminer in their respective counties.” In Winters v. State, 61 N. J. L. 613, it was held in the Supreme, Court that under this language the Court of Quarter Sessions had power to try the indictment without any order from the Oyer. The case was taken to the Court of Errors and appeals (Ibid.), and that court held that it was not necessary to decide the point, because the regularity of the proceedings should have been challenged at the time and was not. Such was the situation in the ease at bar; so that, both for the reason given by the Supreme Court in the Winters ease, which is a precedent for us, and for the reason given by the Court of Errors and Appeals, the objection now taken is untenable.

The judgment will be affirmed.


text:
    REPORTING CORPORATION, PLAINTIFF-APPELLEE, v. HAROLD DESHERE ET AL., DEFENDANTS-APPELLANTS. SAME v. SAME.
    Submitted October 16, 1925
    Decided January 21, 1926.
    Landlord and Tenant—Sealed Lease and an Alleged Assignment From One Defendant to the Other—Distinction Between Sealed and Oral Lease—Allegation That Lease Was Breached by Landlord For Failure to Make Certain Specified Repairs —Facts Considered and Judgment For Landlord Affirmed.
    On defendants’ appeal from the District Court.
    Before Justices Parker, Minturn and Black.
    For the plaintiff-appellee, Nathan H. Berger.

    For the defendants-appellants, McCarter & English.

   Per Curiam.

These two cases are identical in principle. They are suits by a landlord for rent, the only difference between them being that the rent is claimed for a different period in each suit. They were tried together, and turn on the same considerations. The defendants in the case are Harold Deshere and Rose Deshere, his wife. There was a sealed lease running to Harold alone. During the term his wife came into the business in some way not distinctly shown, but she was jointly in possession of the premises with Harold. She set up in her specification of defenses that she had been in possession as assignee of a lease between the plaintiff and the defendant Rose Deshere (this, evidently, means Harold), which lease is dated February 21st, 1924, the plaintiff not having complied with all the covenants of said lease. Such is the language of the specification. No assignment was put in evidence, and Harold testified on the trial that there had not been any. T^he state of demand was in two counts. The first count was for use and occupation; the second sets up the written lease to Harold, who went into business therein under the trade-name of Essex- Talking Machine Company, and that in August following the defendant Rose registered said trade-name in her own name, and said store has nominalty been conducted in the name of said Rose under said trade-name, but that both defendants have been in occupation during the months for which rent is claimed, “and by reason thereof defendants have made an implied contract with the plaintiff to- pay for the use and occupation of said premises a rental of $150 per month, or $450 for the months named in the state of demand.”

The ease does not seem to have been tried on the strict theory of the state of demand. It seems fairly plain that the plaintiff could not recover for use and occupation because of the provisions of the statute. Comp. Stat., p. 3066, § 3. If the lease had not been under seal, the action of use and occupation would lie,' and an oral lease or a written lease, not under seal would be not only evidence, but conclusive evidence of the rental value. Holmes v. Stockton, 26 N. J. L. 93, With the sealed lease the case is different, and, as against the defendant Harold,.the plaintiff must recover on the covenants of that lease, if at all, and was entitled to recover unless the defense hereinafter discussed was made good. As to his wife, Rose, the case is more difficult, but inasmuch as she, has stated on the record that she was assignee of the lease, that seems to be sufficient to support the judgment, notwithstanding her husband’s denial of that fact in the testimony.

A prima facie liability being thus supportable, the defense against it is that the landlords breached a covenant to be performed on their part, and, consequently, are not entitled to recover. That covenant is as follows: “The party of the first part further agrees that before May 1st, 1924 (beginning of the term), and before the rent under this lease shall begin to accrue, it will furnish the demised building for the occupancy of the party of the second part as follows”: Here follows a rather detail specification of certain repairs, improvements and alterations to be made by the landlord. The lease was dated on February 21st.

The court overruled this defense and directed the jury to return a verdict for the plaintiff. This, of course, involves the assumption that the plaintiffs did not make the improvements covenanted to be made, and, therefore, it is necessary to determine, first, the meaning of the covenant, and secondly, whether, if it means what the defendants claim, it was an independent covenant under the ruling in Stewart v. Childs Co., 86 N. J. L. 648. The tenants, in fact, did not vacate the premises, and, consequently, the question of constructive eviction is not in the case.

As a matter of construction, the question, of course, is whether the language of the covenant is to be taken as meaning that the rent shall not begin to accrue unless and until the furnishing in question has been performed, or whether it was intended merely to fix a time by which the covenanted repairs and alterations are to be completed. We think that where a question of rent is involved, any ambiguity in such a covenant as this ought to be resolved against the tenant on the theory that rent is a normal and natural incident to occupancy, so that if it is intended that the tenant is to have the premises rent free until something is done, that fact should be stated in terms too plain to admit of reasonable argument. The trial judge held that the clause was not to be construed as a waiver of the right to rent until the repairs were completed. If, as a matter of fact, they were not completed by the 1st of May, 1924, when the term commenced, it was conceded in the case that the defendants went into occupancy and remained there during the term for which the rent was claimed. Their claim, therefore, was that, because the repairs had not been completed, they were entitled to stay there without paying any rent. This claim we consider ill-founded, and that the judge properly overruled it.

For these reasons the judgment will be affirmed.


author:
Chables E. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIJAH LEE, PETITIONER, v. M. W. KELLOGG COMPANY. RESPONDENT.
    On determination and judgment.
    For the petitioner, I. Boss McCombe.

    For the respondent, George Meredith.

   It was stipulated and agreed that for the purpose of com promising and forever closing the case, the respondent shall-pay to the petitioner the following sum by way of compensation, namely, one hundred and twenty-one dollars and forty-three cents ($121.43), representing a total of seven and one-seventh .weeks for temporary disability. The legal advisor of the petitioner is to receive a counsel fee of twenty-five ($25.00) dollars, which respondent is to pay in addition thereto, and Doctor Hugh White is to receive fifteen ($15.00) dollars in addition thereto for medical services rendered to petitioner, and that the case is to be terminated 'upon this settlement.

Chables E. Corbin,

Deputy Commissioner.


text:
    JOSEPH EHRET, PLAINTIFF-APPELLEE, v. MICHAEL BASSO, DEFENDANT-APPELLANT.
    Submitted October 16, 1925
    Decided January 21, 1926.
    Negotiable Instruments—Promissory Note in Which Plaintiff is Maker and Defendant is Payee—This Does Not Interfere With the True Relations Being'Shown by Parole Evidence— In Renewing Note the Maker of the Original Note Became the Endorser, and the Endorser of the Original Note Became Maker of the New Note—Same Debt Involved.
    On defendant’s appeal from the District Court.
    Before Justices Parker, Minturk and Black.
    Eor the plaintiff-appellee, Philip Chamberlain.

    Por the defendant-appellant, William Beich.

   Per Curiam.

This suit is based upon a promissory note, but involves the unusual feature that the plaintiff is the maker named in the note and the defendant the payee. But this does not stand in the way of the true relations of the parties being shown by parol evidence. Morgan v. Thompson, 72 N. J. L. 244. The circumstances were substantially as follows: The note was a renewal, or given in renewal, of a former note arising out of the following transaction: Ehret sold to a man named Leffever a popcorn machine for $175, receiving no cash. Leffever offered a note, but plaintiff was unwilling to accept it without an endorser, so Leffever procured the defendant, Basso, to endorse it, and a note was made in 1922 by Leffever to the order of Basso for $175, endorsed by Basso and delivered to the plaintiff, whereupon the popcorn machine was delivered to Leffever. The case does not show whether the note was discounted at any bank, but it does show that the note was not paid, and that in some way Basso had notice of that fact. Plaintiff then demanded of Basso payment of the former note, and, as a result of the interveiw, this new note was made in which the plaintiff appears as maker and Basso the payee. There can be no question that, at the time the second note was made, Basso was liable to the plaintiff as endorser, provided he had proper notice of dishonor, and there is no claim that he did not. It seems equally plain that the second note was given as a substitute for this liability of Basso, and, in all probability, to give him more time to pay. The sum of $25 had been paid on the first note, and, consequently, the second was drawn for $150. If the claim is based upon the second note, the action is between the maker and the payee of that note, and, consequently, questions of notice of non-pa3unent are not relevant. But, as was said in Morgan v. Thompson: “The note is a mere item of evidence in the transaction,-and the note is only prima facie evidence of the order of liability of the parties.” Negotiable Instruments act, section 68.

The court was asked to nonsuit on the ground that no' notice of dishonor was given; also on the ground that on the face of the note the plaintiff was maker and could not recover against the payee, and on the ground that, the maker of the former note was Leffever and his name was omitted from the second note; also to direct on the same grounds. The trial court took the proper view of the case and refused both motions and ordered a judgment for the plaintiff. This judgment was manifestly right on the state of facts found by the trial court, and is therefore affirmed.


text:
    WILLIAM DUERRLER, PLAINTIFF-APPELLEE, v. NETTIE S. ROWELL, DEFENDANT-APPELLANT.
    Argued October 7, 1925
    Decided January 21, 1920.
    Slander—Privileged Communications—Court’s Instruction to Jury Made Necessary That Defendant Show Not Only That Communication was Privileged and Uttered With Honest Belief in Its Truth, but Required Also That Statements be Made of the Facts Upon Which the Belief was Based—This Rule was Erroneous, Imposing an Illegal Burden Upon Defendant—New Trial Ordered.
    On defendant’s appeal from the District Court.
    Before Justices Parker, Minturn and Black.
    For the plaintiff-appellee, George A. Henderson.

    For the defendant-apellant, McCarter & English.

   Per Curiam.

The suit was for slander, plaintiff charging the defendant with having called him a “grafter.” Defendant denied that she had made any such statement in that form, but this, of course, was a question for the jury. It appeared, without contradiction, that any language spoken by the defendant at the time charged was spoken at a meeting of the board of managers of the S. P. C. A., and with reference to the question of taking on the plaintiff as a permanent employe. It further appeared that as a casual employe, what might be called a “ehaneeman,” the plaintiff had been compensated by a percentage of the lines collected; as a permanent employe, he would have been on a salary. The characterization of the plaintiff, if uttered at all by the defendant,-was at that meeting and under those circumstances. The plaintiff claimed that, by reason of the words, he lost his promotion, and claimed both compensatory and punitive damages, and the court permitted the jury to assess damages in both aspects. The court was asked to nonsuit and also to direct a verdict for the defendant on the ground that the communication was privileged, and that there was no evidence of express malice. He declined so to do, and charged the jury in part as follows:

“Now, the defendant contends that this was a privileged occasion. I think it was an occasion that would call for privilege. That is, the letter making application for this position was brought up before the executive committee, and .any member would be authorized to lay before this committee any knowledge which he had as to the work or the actions of the applicant provided it was laid before them in a fair-minded way, simply to acquaint them with the qualifications of the applicant. I don’t think it would go to the extent of alleging, without anything at all to support it, that the man was a grafter or a thief, or words to that effect, unless the facts were laid before the committee showing on just what occasion the crime had been committed and what knowledge the person had of it; in other words, laid before them in a fair-minded manner; in other words, without malice.”

There can be no question but that the occasion was privileged. Fahr v. Hayes, 50 N. J. L. 275. Assuming that the words were slanderous per se, a point which we do not decide, it would be for the defendant, under the ruling in the Eahr case, to prove, first, that the occasion was privileged, and secondly, that she uttered the words with an honest belief in their truth; and it would then' be the duty of the plaintiff to show express malice, which, as stated in that case, might be indicated by the fact that “the terms used were utterly beyond and disproportionate to the facts which the defendant has reason to believe.”

We incline to think that a verdict ought to have been directed for the defendant on the facts incontrovertibly shown; but, even assuming that a jury question remained, we consider that the trial court erred in charging as above set forth. The instruction required the defendant to show, not merely that on an occasion concededly privileged, the words were uttered with an honest belief in their truth, but required her further to furnish the other members of the meeting with what might be called a bill of particulars stating the facts on which her belief was based. This rule, if carried out to its logical consequence, would seem to confine a defendant to bare statements of fact from which the hearers would have to draw their own inferences. In the recent case of Kruse v. Rabe, 80 N. J. L. 378, the slanderous words were, “you have taken advantage of this woman,” and a recovery was sustained on the sole ground that the situation and the surroundings justified the jury in disregarding the claim of a privileged occasion; but there was no intimation that the privilege was impaired or lost because the defendant had failed to state the facts on which his conclusion was based.

We think, therefore, that the instructions to the jury imposed an illegal burden on the defendant, and were, therefore, erroneous. And, for this reason, the judgment will be reversed and the case will go back for a new trial.


text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, RESPONDENT, v. GEORGE MAZA, APPELLANT.
    Submitted October 16, 1925
    Decided February 1, 1926.
    Practice of Medicine—Illegal Practice—Demand of a Jury Trial May be Refused—Practicing of Chiropractic in Case at Issue Justified Its Consideration by the Court as a Violation of the Medical Practitioners Act.
    On defendant’s appeal from the District Court.
    Before Justices Pabkeb, Mintue.y and Black.

      For the respondent, Grover O. Éichman.

    For the appellant, Nathan H. Berger.

   Pee Curiam.

This is an appeal from a conviction under the statute relating to the practice of medicine without a license, and the appeal will he dismissed, with costs, for the reasons stated in the per curiam of this court in State Board v. Roche, No 402, of the present term.

If the appeal were not dismissed, the judgment would have to be affirmed, because we consider that none of the points made would he well taken if the matter were properly presented on certiorari.

The first point is that a jury was demanded and refused. This is controlled by State Board v. Buettel, 3 N. J. Adv. R. 1860.

The only other point made is that the evidence failed to show any practicing of medicine or surgery without a license, but merely practicing of chiropractic, and that the defendant was therefore prosecuted under the wrong act. We have examined the evidence and conclude that there was enough in the case to justify its consideration by the court as a violation of the Medical Practitioners act.

For the reasons given, the appeal will be dismissed.


text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PLAINTIFF-APPELLEE, v. GEORGE H. COLEMAN, DEFENDANT-APPELLANT.
    Submitted October 16, 1925
    Decided February 1, 1926.
    On defendant’s appeal from the District Court.
    Before Justices Parker, Minturn and Black.
    Eor the plaintiff-appellee, Grover G. Richman.

    Eor the defendant-appellant, Nathan Hale Berger.

   Per Curiam.

This case is substantially identical with State Board v. Maza, No. 443, of the present term, and for the reasons stated in that case, the appeal will he dismissed.


author: Pee Cuejam:.

text:
    STATE BOARD OF MEDICAL EXAMINERS, RESPONDENT, v. CORNELIUS DE YOUNG, APPELLANT.
    Submitted October 16, 1925
    Decided February 1, 1926.
    Practice of Medicine—Illegal Practice—Cash Bail Instead of Bond—If There was Failure of Jurisdiction on This Ground it was Cured by Defendant’s Appearance—Irrelevant Testimony was Properly Excluded.
    On defendant’s appeal from the District Court.
    Before Justices Parker, Minturk and Black.

      For the respondent, Grover G. Richman.

    From the appellant, J. Vincent Barnitt.

   Pee Cuejam:.

This is an appeal from a conviction under the statute relating to the practice of medicine without a license, and the appeal will be dismissed, with costs, for the reasons stated in the per curiam of this court in State Board v. Roche, No. 402, of the present term. (See Advance Reports.)

If the appeal were not dismissed, the judgment would have to be affirmed, because wre consider that none of the point? made would be well taken if the matter were properly presented on certiorari.

The first point is that the court erred in refusing to dismiss the proceeding because cash bail was taken instead of a bond as provided by the statute. If there was any failure of jurisdiction over the person on this ground, it was cured by the defendant’s appearance in court requesting that a default judgment be opened and that he be let in to defend.

The next point is that a question to Doctor Crimmens as to whether it was a common practice for nurses to administer prophylaxis under doctor’s direction was erroneously excluded. This we deem to be irrelevant and immaterial, and properly excluded.

The last point is that a report from the state laboratory based on a culture of the patient’s throat, sent in by the defendant, was excluded. This was also irrelevant and immaterial.

For the reasons already given, the appeal will be dismissed!.


author: Pee Ctjbiam.

text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PLAINTIFF-APPELLEE, v. C. V. JILSON, DEFENDANT-APPELLANT.
    Submitted October 16, 1925
    Decided February 1, 1926.
    Practice of Medicine—Illegal Practice—Demand for a Jury Trial May be Refused—Enough in. Case to Justify Action Under Medical Practitioners Act Instead of Chiropractors Act.
    Or defendant’s appeal from the District Court.
    Before Justices Paeker, Mintubn and Black.
    Por the respondent, Grover G. Ricliman.

    Por the appellant, Nathan H. Berger.

   Pee Ctjbiam.

This is an appeal from a conviction under the statute relating to the practice of medicine without a license, and the-appeal will be dismissed, with costs, for the reasons stated' in the per curiam of this court in State Board v. Roche, No. 402, of the present term. (See Advance Reports.)

If the appeal were not dismissed the judgment would have-to be affirmed, because we consider that none of the points-made would be well taken if the matter were properly presented on certiorari.

The first point is that a jury was demanded and refused. This is controlled by State Board v. Buettel, 3 N. J. Adv. R. 1860.

The second point is not argued.

The third is that the evidence did not- establish any violation of law, and should be considered with the fourth, that the defendant ought to have been sued under the Chiropractors act. We have examined the evidence and find there-were enough in the case to justify its consideration by the court as a violation of the Medical Practitioners act.

The other points are covered by what has been said.

Eor the reasons given the appeal will be dismissed.


text:
    HARRIET WILLOWS ET UX., PLAINTIFFS, v. MEYER & BUSH COMPANY, INCORPORATED, ET AL., DEFENDANTS.
    Submitted October term, 1920
    Decided January 28, 1926.
    Negligence—Motor Vehicle Collision—Two Defendants Were Joint Tort-Feasors—Judgment Against Both Defendants— One Defendant is Not Entitled to an Instruction That the Jury are Limited to the Evidence Adduced by One Defendant Only.
    On rule, &c.
    Before Justices Parker, Mustturk and Black.
    For the plaintiffs, Edwards & Smith.

    Eor the defendants, John.W. McGeehan and John A. Matthews.

   Per Curiam.

The plaintiffs, Harriet Willows and her husband, Alfred A. Willows, recovered judgments arising out of injuries sustained by the wife in an automobile collision on April 14th, 1919. Harriet Willows, the wife, was riding as a passenger in the jitney bus of the defendant Samuel Adekman. The bi^s collided with the automobile truck of the other defendant Meyer & Bush Company, Incorporated; both were made defendants in the action, and, against both, judgments were recovered. Before the case was tried Mrs. Willows died and the action proceeded in the name of her husband as administrator and individually; resulting, as stated, in judgments against both defendants for $2,500 as administrator and $1,500 individually.

Rules were obtained by each defendant separately, and each writes down nine reasons for a new trial, which are substantially the same. We think the case essentially is, as against both defendants, one of fact, properly submitted to the jury for determination by the trial judge. The reasons do not call for an extended discussion. Suffice it to say, the rules to show cause should be discharged in each case. Por the defendant Samuel Adekman it is urged that the verdict should be set aside, because there was error on the part of the trial court in not charging two requests submitted, one of which was “yon may consider only the testimony of the witnesses called by the plaintiff in the plaintiffs’ ease up to the time that the defendant Adekman rested his ease.” The record shows there was no exception taken for not so charging, and even if such exception had been taken, it was not error to refuse such a request. The defendants are joint tort-feasors, either one or both are liable, hence, one is not entitled to an instruction that the jury are limited to the evidence adduced by one only. The rules in each case are discharged.


text:
    AUGUSTA OLIVER, ROBERT TALBOT AND PATRICK J. O’CONNELL, PROSECUTORS, v. BERT DALY, HARRY HOSFORD, W. HOMER AXFORD, ROBERT J. TALBOT AND PATRICK J. O’CONNELL, BOARD OF COMMISSIONERS OF THE CITY OF BAYONNE, AND THE CITY OF BAYONNE, DEFENDANTS.
    Submitted June 9, 1925
    Decided January 28, 1926.
    Municipalities — Commission Government — When a Commissioner Has Been Assigned to a Department He Cannot, by a Vote of a Majority of the Commissioners, be Turned Out' of the Department or Have the Powers and Duties of That Department so Curtailed as to Make the Commissioner a Mere Figure Head—The Purposes of the Commission Government Act Would Not be Accomplished if a Majority of Commissioners Could Deprive the Other Commissioners of the Powers and Duties of Their Respective Departments.
    On writ of certiorari.

    Before Justices Trenchard, Katzenbach and Lloyd.
    Eor the prosecutors, Gross & Gross (Isaac Gross, of counsel) .
    Eor the defendants, James Benny..

   Per Curiam.

This case is before us upon a writ of certiorari directed to the board of commissioners of the city of Bayonne and the city of Bayonne. The prosecutors of the writ are two of the board of commissioners—Robert J. Talbot, mayor of Bayonne, and Patrick J. O’Connell, director of parks and public safety. The writ brings up for review the validity of six resolutions passed by the board of commissioners on December 2d, 1924, by a vote of three to two. The prosecutors cast the two negative votes.

On April 23d, 1915, the city of Bayonne assumed a new-municipal raiment. On that day a board of five commissioners, elected under the provisions of the Walsh act, were inducted into office. The powers and duties of the respective departments were determined by appropriate resolutions. Each commissioner was assigned to a department. Pour years passed and a new board of commissioners was elected. On November 25th, 1919, the members of the new commission were assigned to the different departments to assume the duties as previously outlined in 1915 for each department. On May 15th, 1924, when another board took control, resolutions were adopted designating Robert J. Talbot as mayor. He thereby was assigned to the department of public affairs. Patrick J. O’Connell was assigned to the department of public safety. Previous to the retirement of the old board of commissioners they had met and selected fifty-one new policemen and firemen. This action was questioned and reviewed. Mayor Talbot was opposed to this action of the old board of commissioners and refused to sign checks for the payment of salaries to the new policemen and firemen. This resulted in the board of commissioners passing the resolutions under review, which stripped Mayor Talbot of all his powers and duties, excepting his duties in connection with the Pree Public Library of the city of Bayonne. A like fate met Commissioner O’Connell. They applied for and obtained a writ of certiorari to review this action. The prosecutors contend that the resolutions are illegal. The Commission Government act provides that the board of commissioners shall determine the powers and duties to be performed by each department, and-shall assign commissioners to the appropriate departments. The act specifies the departments. The object of the Commission Government act was to procure a form of government for municipalities in which politics would be, as far as possible, eliminated. The act was intended to give considerable latitude and discretion to each of the heads of the departments in the conduct of the affairs of that department, without interference of other commissioners. The purpose of this act would not be accomplished' if three commissioners could at any time deprive the other two commissioners of substantially all the duties and powers of the departments to which they had been assigned. The resolutions under review unquestionably do this. In our opinion they are illegal. This view finds support in several cases. In the case of Woolley v. Flock, 92 N. J. L. 65, it was held that the office of presiding officer of the board of commissioners, and as such mayor and director of the department of public affairs, was for a fixed term of four years, and not merely at the will of the board of commissioners. While this case might not be considered identical with the one under review, yet the basic principle is the same. When a commissioner has been assigned to a department he cannot, by a vote of a majority-of the commissioners, be turned out of that department or have the powers and duties of the department so curtailed as to make the commissioner a mere figurehead. The ease of Hendee v. City of Wildwood, 96 Id. 286, is a case in point. In this case Commissioner Hendee was duly chosen as mayor of Wildwood. This made him director of the department of public affairs. The other two commissioners (this being a city governed by three commissioners) endeavored to combine “public safety” with “revenue and finance,” which took the police department out of the hands of the mayor. The resolution seeking to accomplish this was set aside by this court in certiorari proceedings. The judment of the Supreme Court was affirmed by the Court of Errors and Appeals.

The resolutions in question are illegal and are set aside.


text:
    ISAAC GARBER, RELATOR, v. THE BOARD OF HEALTH OF THE CITY OF PATERSON ET AL., RESPONDENTS.
    Argued October 8, 1925
    Decided January 21, 1926.
    Municipalities—Licenses—Chicken Abattoir—Permit Granted Upon Condition That Premises be Put in Conformity to Plans of Health Director—Such Plans Were Conformed to—License Afterward Denied and a New Ordinance Preventing the Licensing of Abattoirs so Situated Adopted—Held, That Conditional Permit Constituted a License When Conditions Were Fulfilled, That the New Ordinance Cannot Affect This Transaction, and that Mandamus to Compel Actual Issuance of License be Issued.
    On rule to show cause for a peremptory mandamus.

    Before Justices Parker, Minturn and Black.
    For the relator, Mendelsohn & Mendelsohn.

    For the respondents, Benjamin J. Spitz, David Q. Smith and J. Vincent Barnitt.

   Per Curiam.

The relator desires a writ of peremptory mandamus requiring the board of health of the city of Paterson to issue to him a license for the operation of what is known as a chicken abattoir at a designated location in said city. The application was vigorously opposed, and the matter has received very earnest and careful consideration.

Normally, and concededly in this case, the issuing of such a license, in the first instanace, would be discretionary with the board of health, and, if it were deemed discretionary at this juncture, we should, of course, be obliged to discharge the rule. The fundamental facts, however, shining through a very considerable smoke cloud raised by the testimony, lead us, without any hesitation, to the conclusion that the license was, in effect, granted, and that, on the’ strength of it, the relator incurred some $7,500 of expense in transforming the premises from an ordinary dwelling or similar building so as to make them adaptable for the specialized use to be made under the license. In doing this he was obliged to rip out partitions and waterproof floors and walls and make other extensive and expensive alterations under the direction of the board of health and its officials over a period of several months, and after he had completed these alterations, and at the end of that time had satisfied the conditions with relation to the granting of the license, it was refused him by a vote of four to three, although originally granted unanimously.

The original move of relator toward this license was taken in the summer of 1924. Application was made in due form to the board of health,, and, as required by the regulations, the application was advertised. At the meeting of September 10th, 1924, the application came up for action and was unanimously approved. One of the difficulties about a proper examination of the case and ascertainment of the facts has been the fact that, although full and copious minutes of all the proceedings of the board seem to have been kept, those minutes were never put in evidence as documents, and the entries therein have had to be gathered up by picking them out of the columinous printed case at various points. On September 10th the motion was made as follows:

“I move you, Mr. President, that this board grant permit for chicken abattoir, provided, however, that the building is constructed in conformity with the plans as submitted to the health director. This permit is not to be granted until the building is finished, seconded by Commissioner Callahan, and carried unanimously.”

This we consider to have been a definite grant of the license, subject merely to the condition subsequent that the relator should put the premises in such condition as. to satisfy the regulations of the board of health relating to chicken abattoirs. It is quite obvious that this was the natural and normal thing to do under the circumstances, for, naturally, no one would take the risk of going to the expense of many thousands of dollars to adapt his premises for those purposes without any assurance from the hoard of health that the license would he had after it was done. So far, therefore, as this resolution goes, it seems to have settled the matter, but at this point commences a series of countermoves, apparently, on the part of opposed business interests looking towards the end of preventing the relator from obtaining his license. We say “opposed business interests,” because neither the board of health nor the city of Paterson is represented by its own counsel on this argument, nor was either represented at the taking of the depositions by counsel. Such counsel as have appeared have been acting manifestly in the interest of private parties who objected to the application for reasons best known to themselves, and those counsel went on the record as stating that the apposition to the license was conducted by them, not only without any expense to the city of Paterson, hut that they guaranteed to indemnify and save harmless the city and the board of health as against all costs in the matter.

At the very end of this meeting of September 10th, and as relator testified, without his knowledge or suspicion, and some time after the resolution in question had been unanimously passed, a petition seems to have been presented by someone, the contents of which, so far as we can discover, were not spread upon the record of the case as of that date, but, as a result of this, another resolution was introduced, reading as follows:

“Inasmuch as the petitioner, whose name heads this petition, is in the abattoir business, I move you, Mr. President, the issuance of a permit to Mr. Garber to conduct an abattoir be laid over until the October meeting.”

There is nothing to show that Garber had any knowledge of this resolution, or that he was there; there is nothing to show that any notice of it was directed to be given to him, and not only is there nothing to show that any notice of it reached him, hut there is positive evidence on his part that he knew nothing about it, and that during that month, and, indeed, until the November meeting was imminent, he was prosecuting his alterations and improvements with vigor and spending large sums of money thereon. No notice was, in fact, given. The October meeting came and relator was not present, nor was his counsel, as they say, and with reason, because neither of them knew anything about'it. The matter of the Garber license came up, and the minutes show a long entry, too long to copy here, reciting that counsel was present representing the signers of a petition objecting to the license, and two or three individuals, who were neighbors, made objections personalty. It was stated, among other things, that there were enough chicken abattoirs already in that neighborhood, and that they were not agreeable .neighbors. The entry then proceeds: “Commissioner Callahan felt that the board should hold up the matter for another month, in that Mr. Mendelsohn, representing Mr. Garber, is not present, and, therefore, the board cannot hear the applicant's argument.

“By Commissioner Mitchell—I move you, Mr. President, that -this matter be laid over for one month. Commissioner Callahan offered an amendment to the motion, which was accepted, as follows: That the secretary be instructed to notify the principals in this case to appear at the next meeting of the board; seconded by Commissioner Murn, and carried unanimously.''

It is somewhat significant, also, that at this meeting the board finally passed, or finally approved, a supplemental ordinance prohibiting any chicken abattoir at any place “not heretofore licensed, unless the applicants show that it is not within fifty feet of any building used wholly or in part as a dwelling.” The passage of this ordinance was invoked on the argument on this rule as a reason for denying the writ.

The relator went on with his repairs and improvements, all under the inspection of a health officer, obtaining from time to time the necessary certificates that the work was property done and according to regulations, and by about November 4th had completed them. One of two minor matters of detail were urged as showing that he had not complied with the conditions laid upon him, but we deem them insignificant and immaterial. In every substantial way the requirements of the board and of its officers have been carried out. He appeared at the meeting armed with his certificates and ready to take and pay for his license. There is some evidence in the case to the effect that four members of the board had been closeted in a private room for some time before the meeting, and that they were the same four who afterwards voted to refuse the license. This is a circumstance, but we do not particularly rely upon it. What is clear is that at that November meeting it appears on the minutes that the question of issuing the permit came up, and the health officer was asked whether the building was constructed in conformity with the ordinance regarding ehecken abattoirs, and the health officer answered in the affirmative. The introduction of the minutes of this meeting seems to have been vigorously resisted by the respondents at the time of taking the depositions, and, consequently, the depositions are not very full on that point, but the secretary of the board of health then read the following motion and resolution:

“By Commissioner Mitchell—I move you, Mr. President, that the permit be not granted; seconded by Commissioner DeLuccia. A roll call proved the following: Ayes, Commissioners Cotton, DeLuccia, Hayes and Mitchell; nays, Commissioners Callahan, Murn and president of the board. The secretary announced the vote, and the president declared the motion carried.

The permit was, accordingly, refused.

It is argued that mandamus is not a proper remedy in this ease, and that the relator should have invoked the writ of certiorari. To this we cannot agree. As was stated at the outset, the issuance or refusal of permits in cases like this, where the matter is intrusted to the judgment of a municipal body, is normally a matter of discretion, and it may be assumed that, in the first instance, it was a matter of discretion in the present case. But the matter had passed the stage of discretion; that discretion had been exercised in favor of granting the permit, and the applicant was notified of that fact and told that the permit was ready for issue upon his compliance with the regulations of the board of health with respect to the structure and arrangement of the building. Having complied with those regulations, the natural, proper and legal step was to issue the permit to him. This was a legal duty devolving upon the board of health in view of its own action.

It is also suggested that the original resolution of September 10th was reconsidered by the later resolution at the same meeting and revoked. We find no such action indicated. On the contrary, we find that the board attempted to lay it over to a subsequent meeting after telling the relator that the license was conditionally granted, and did nothing with it until he had completed his building, at which time the board undertook to nullify its action. Such nullification, in-our view, was nugatory, because the board had effectively estopped itself from any change in the situation except such as might be justified by the failure of the relator to carry out the condition imposed upon him.

Nor is there any material question of fact in dispute. On the facts as we have stated them, and we think they are incontrovertible, the relator was entitled to his license on pajunent of the fee. As to the ordinance of October 8th, that does not change the situation, for it- was an ex post facto ordinance, and not controlling on him or on the board with reference to his license. Reimer v. Dallas, 3 N. J. Adv. R. 1302.

The relator is entitled to a peremptory writ of mandamus, pursuant to the language of the rule to show cause, which will he made absolute.


author: Gummeee, Chief Justice.

text:
    STATE, EX REL. ARTHUR J. BERRY, v. SAMUEL GARNER, BUILDING INSPECTOR, ETC., ET AL.
    Decided January 26, 1926.
    Zoning—Stores in Residential Section—Rule on Ignaciunas v. Nutley Followed.
    On mandamus.

    Argued, by consent, before Gummeee, Chief Justice, sitting alone, pursuant to the statute.
    For the relator, Harry Green.

    For the defendants, Raymond F. Davis.

   The opinion of the court was delivered by

Gummeee, Chief Justice.

The relator applies for a mandamus to compel the building inspector of the town of Bloomfield to issue a permit authorizing the erection of a building containing stores and dwellings at the southeast corner of Newark avenue and Baldwin Place, in that town. The sole ground upon which the issuing of the permit was refused was that the lot upon which the proposed building was to be erected was located in a residential district, and that the zoning ordinance of that town prohibited the erection of such a building in such a district. That ground of refusal was without legal warrant, under the rule laid down in the case of Ignaciunas v. Nutley, 98 N. J. L. 712, and in subsequent decisions. Consequently, the relator is entitled to a peremptory mandamus compelling the inspector to issue the permit.

It will be so ordered.


author: Gummere, Chief Justice.

text:
    STATE, EX REL. ERNEST A. EDDEN, v. SAMUEL GARNER, BUILDING INSPECTOR, ETC., ET AL.
    Decided January 26, 1926.
    Zoning—Stores in Residential Section—Rule in Ignaciunas v. Nutiey Followed.
    On mandamus.

    Argued, by consent, before Gummere, Chief Justice, sitting alone, pursuant to the statute.
    Eor the relator, Harry Green.

    For the defendants, Raymond, F. Davis.

   The opinion of the court was delivered by

Gummere, Chief Justice.

This is an application for a mandamus directed to Samuel Garner, building inspector of the-town of Bloomfield, commanding him to issue a permit to the relator for the erection of a building to contain stores and dwellings upon a lot of land located on the southeast corner of Montgomery and Walnut streets, in that town. The sole ground upon which the inspector refused to issue the permit was that the lot was located in what had been designated by the municipal authorities as a residential district, and that the zoning ordinance of the town prohibited the erection of - such a building in that district. As this is the only ground upon which the permit was refused, it is evident, under the rule laid down in the case of Ignaciunas v. Nutley, 98 N. J. L. 712, and subsequent decisions, that this refusal was without legal warrant.

I conclude, therefore, that the relator is entitled to a peremptory writ of mandamus directed to the inspector, commanding him to issue the permit applied for.


author: Mintuen, J.

text:
    THE STATE OF NEW JERSEY, BY SAMUEL LEVINE, RELATOR, v. JAMES J. KELLY, WARDEN OF THE HUDSON COUNTY PENETENTIARY.
    Decided January 28, 1926.
    Prisoners—Commitment and Discharge—Commitment Found Defective While the Petitioner was Serving Under it; a Second Commitment Concededly Regular Issued—Power of Court to Amend Its Own Record Particularly in Matters of Form is Elementary.
    On application on habeas corpus tor discharge of prisoner.
    Before Justice Mintubn, sitting alone, pursuant to the statute.
    Eor the petitioner, Armstrong & Mullen.

    Por the state, Aloysius McMahon.

   The opinion of the court was delivered by

Mintuen, J.

The application is based upon the fact that after one commitment had been found defective, while the petitioner was serving his sentence under it, a second commitment was issued by the committing magistrate, which is concededly regular, and upon which he is now detained. The power of the court to amend its own record particularly in matters of form is elementary.

The question presented upon an application of this nature is whether the record returned with the body of the prisoner legally justifies his further detention. Since the second commitment was regular, the legality of the record upon this writ obviously is complete, and that is the only question for consideration. If the power of the committing magistrate be made an issue it must be done upon certiorari or other proceeding in which the legality of the act can come directly in issue. The prisoner will be remanded and the writ will be dismissed.


author:
Charles E. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    TONY IADANZA, PETITIONER, v. THE DAVID KAUFMAN & SONS COMPANY, RESPONDENT.
    On determination and rule for judgment.
    For the petitioner, Henry Gambit.

    For the respondent, Richard W. Baker.

   The deputy commissioner was asked to approve this compromise and enter an award on the same.

I, therefore, find and determine that the petitioner, in accordance with the compromise, is entitled to compensation for temporary disability for a period of eight and five-sevenths (8 5/7) weeks, all of which has been paid, and compensation for permanent disability for a period of one hundred and ten (110) weeks based upon twenty-two’ (22%) per cent, of total, four and two-sevenths (4 2/7) weeks of which have already been paid, the compensation rate being seventeen ($17.00) dollars a week, and that his counsel, Henry Gambit, is entitled to a counsel fee of fifty ($50.00) dollars, to be paid by the respondent.

$$$$$$ #

Charles E. Corbin,

Deputy Commissioner.


author: Mintubn, J.

text:
    THE STATE v. ALBERT WEISBORD. THE STATE v. JOSEPH DU BOIS. THE STATE v. JENNIE PIETROSKEY.
    Decided January 28, 1926.
    Disorderly Persons—Loitering—Complaint Defective— Particulars Not Sufficiently Specified.
    Before Justice Mintueit, sitting alone, pursuant to the statute.
    Eor the petitioners, J. George Koven.

    Eor the state, J. Emil Walscheid (by Nicholas Schloeder).

   The opinion of the court was delivered by

Mintubn, J.

The petitioners apply for a summary review of their convictions under the Disorderly act by the recorder of North Bergen. The gravamen of the conviction was that they loitered on the highway and interfered with persons lawfully thereon. The complaints against them are defective, in that the particulars of the offense are not specified with sufficient particularity and certainty to inform the petitioners of the places and circumstances upon which the allegations are founded. The petitioners are entitled to be so informed in order that they may be able to- prepare their defense upon the merits. State v. Hatfield, 87 N. J. L. 124; State v. Allgor, 78 Id. 313.

The result is that the convictions below will be set aside.


text:
    GRANTWOOD LUMBER COMPANY, PLAINTIFF-APPELLANT, v. PATRICK F. HUGHES, DEFENDANT-RESPONDENT.
    Submitted October term, 1925
    Decided January 28, 1926.
    Negligence—Injury to Motor Vehicle While Parked at the Curb —Cannot Say That There was Error In Trial Judgment for Defendant.
    On appeal.
    Before Justices Parker, Minturn aDd Black.
    Eor the appellant, Higgins & Taliaferro.

    Eor the respondent, David A. McBride.

   Pee Curiam.

This suit was brought in the Second Judicial District Court of Hudson county to recover compensation for damages done to an automobile parked at a standstill at the curb, on the easterly side of Park avenue, in the town of Weehawken, on January 25th, 1925. The automobile of the plaintiff was struck by the motor truck of the defendant operating in a northerly direction along Park avenue, causing the damages sued for.

The case was tried by the court without a jury, resulting in a judgment for the defendant. The plaintiff files four specifications of the determination of the court with which the appellant is dissatisfied. We cannot say that the trial judge was wrong in rendering judgment for the defendant under the state of the ease settled by fhe court and sent up with the record.

The judgment of the District Court is affirmed.


text:
    DAVID WILENSKY, PLAINTIFF-RESPONDENT, v. GEORGIA CASUALTY COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1925
    Decided January 28, 1926.
    Insurance—Liability—Insured Did Not Notify Insurer of Recovery of a Judgment Against Him for Which the Insurer was Liable Within Time Provided in Policy for Such Notice— Judgment for Plaintiff Reversed.

      On appeal.
    Before Justices Parker, Minturíst and Black.
    Por the appellant, Frank G. Turner.

    Por the respondent, George Wenger.

   Per Curiam.

This is an appeal from a judgment rendered in the Paterson District Court for $108.60, on July 14th, 1925.

The suit was brought under a policy of accident insurance dated November 17th, 1921, covering the period from November 17th, 1921, to November 17th, 1922, insuring the plaintiff for claims for damages for bodily injury sustained by accident.

The plaintiff claims that Michael Poster, on November 14th, 1922, was injured while riding in his automobile. Michael Poster obtained a judgment against the plaintiff on October 2d, 1924, for $5,000. Plaintiff paid Michael Poster, on December loth, 1924, the sum of $100 on account of the judgment. This is the sum sued for in this suit. Michael Poster obtained judgment against the plaintiff on October 2d, 1924, hut the present suit was not commenced until March 6th, 1925—that is, about one hundred and fifty-four days elapsed between the judgment obtained against the plaintiff by Michael Poster and the time in which the plaintiff brought suit against the insurance company.

The policy of insurance provides (Case, p. 68) that suit must be started against the insurance company within ninety, days from the date of such judgment.

Por this reason we think the judgment of the Paterson District Court must be reversed, and such will be the order of the court.


author: Pee Oukiam.

text:
    LOUIS BURKE, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1925
    Decided January 28, 1926.
    Negligence—Injury to Wagon by Trolley Car and Trailer—Evidence Existed Upon. Which Court Could Give Judgment to Plaintiff.
    On appeal.
    Before Justices Pakkee, Mintubn and Black.
    Por the appellant, Joseph Goult.

    Por the respondent, Jacob J. Singer.

   Pee Oukiam.

The plaintiff had a judgment for two hundred and fifty ($£50) dollars in the First District Court of Jersey City for injuries to himself and his horse. The case was tried by the court without a jury.

° The testimony shows that the plaintiff, on May £5th, 19£5, was driving his horse and wagon loaded with barrels in a southerly direction on Grand street, Jersey City, near Summit avenue, when the defendant’s trolley ear came up back of the plaintiff with a trailer. The two cars were connected by a tow bar eight feet long. The gong was sounded by the first car; the plaintiff turned his horse toward the west, which was to his right, to get out of the trolley tracks; that he was continuing on and had not stopped. He had not completely gotten out of the tracks when he was struck from the rear; the first car proceeded safely past the load of barrels. His wagon was struck by the second car, or trailer. The trial judge gave judgment' for the plaintiff for $250 under the evidence. We think there was evidence from which the court could render such a judgment.

The judgment of the First District Court of Jersey City is therefore affirmed, with costs.


text:
    JOSEPH J. LYNCH, PLAINTIFF, v. JOSEPH ZEILENBACH, DEFENDANT.
    Submitted October term, 1925
    Decided January 28, 1926.
    Negligence—Motor Vehicle Collision—Driver of Defendant's Car was Driving Without Permission to Drive the Particular Car in Question and was Not at Time of Accident on Any Business of Defendant.
    On rule to show cause.
    Before Justices Parees, Mikttuen and Black.
    For the plaintiff, Alfred A. Stein.

    For the defendant, Tiffany, Brugler & Wittreich.

   Pee Cueiam.

The plaintiff obtained a judgment for personal injuries growing out of a collision between an automobile in which he was riding and an automobile driven by Helen Sebbins, the housekeeper of the defendant. The accident occurred on May 19th, 1924, at the intersection of Maple and Summer 'streets, in the city of Elizabeth. The defendant writes dowD five reasons for a new trial—

Eirst. Verdict contrary to the weight of the evidence.

Second. Contary to law.

Third. Contrary to the charge of the court. •

Eourth. Error in refusing to grant the motion for a directed verdict.

Eifth. The damages are excessive.

The undisputed testimony shows that Miss Sebbins had no permission or authority from the defendant to drive the Studebaker car, which caused the plaintiff’s injury, and that she was not driving the car at the time of the accident on any business of the defendant or for his benefit. The case is controlled by the case of Eldridge v. Calhoun, 95 N. J. L. 168, which is directly in point. It should appear that the service performed was for the benefit of both the master and the servant, if the master is to be held liable. Depue v. Salmon Co., 92 Id. 550; so, in Cronecker v. Hall, 92 Id. 450.

The rule to show cause is made absolute.


text:
    NEWTON A. K. BUGBEE, COMPTROLLER, ETC., PROSECUTOR, v. THE BOARD OF HOME MISSIONS OF THE PRESBYTERIAN CHURCH, DEFENDANT. NEWTON A. K. BUGBEE, COMPTROLLER, ETC., PROSECUTOR, v. THE BOARD OF FOREIGN MISSIONS OF THE PRESBYTERIAN CHURCH, DEFENDANT.
    Argued October 8, 1925
    Decided January 28, 1926.
    Taxes and Assessment—Inheritance Taxes—Transfers of Property Made Five Years Before Death of Testator—Inheritance Tax on Such Transfer Set Aside for Reasons Given in Opinion of Vice Ordinary.
    Before Justices Parker, Mtnturn and Black.
    For the prosecutor, Edward L. Eaizenbach, attorney-generai, and Harry R. Coulomb, assistant attorney-general.
   Per Curiam.

The question involved in these cases is whether the several gifts of William E. Honeyman during his life are taxable under section 1, subdivision 3 of the Transfer Inheritance Tax act. 4 Comp. Stat. of N. J., p. 5301; as amended, 2 Cum,. Supp., p. 3573.

Five years before the death of William E. Honeyman he gave and transferred to each defendant the aggregate sum of $0,000 each in three separate amounts and transactions, and on separate dates covering a period of two months. On an appeal from the assessments, the cases were heard by Vice Ordinary Buchanan; he advised a decree that the assessments made against the board of foreign missions should be set aside absolutely; that the assessments made against the board of home missions should be sustained as to the gift of $2,000, made November 19th, 1912, but set aside absolutely as to the remainder.

The Vice Ordinary prepared and filed a learned and persuasive opinion covering the points involved in both cases. We think the decree of the prerogative court in each case ■should be affirmed, for the reasons stated by the learned Vice Ordinary in the opinion filed.


author: Pee Cubiam.

text:
    JOHN S. KINSEY, PLAINTIFF-RESPONDENT, v. SOLOMON BUTZ ET AL., DEFENDANTS-APPELLANTS.
    Submitted October term, 1925
    Decided January 28, 1926.
    Negligence—Injury to an Independent Operator Who, Upon Request, was Making an Estimate on Painting of a Building in Course of Construction—Question of Authority of Agent of Defendant to Request Estimate—Contributory Negligence Alleged—All Questions Were Properly Submitted to Jury.
    On appeal.
    Before Justices Paekee, Mintuen and Black.
    Eor the appellants, William P. Braun.

    For the plaintiffs, William C. Gebhardt & Son.

   Pee Cubiam.

The plaintiff had a verdict of $5,000 in an accident ease. He fell through an unguarded opening of hole in the hallway of the second floor of the unfinished addition to the Hackettstown High School. The defendants are contractors of Allentown, Pennsylvania. A man by the name of Wayne Nester was their superintendent of the construction work at Hackettstown. The plaintiff, on the 22d of August, 1923, was injured. The day before, the plaintiff met Mr. Nester; they had a conversation in which Mr. Nester requested the plaintiff, Kinsey, to go into the building and look over the painting work to be done on the interior of the unfinished building, and to make up an estimate as to what he would do the painting work for. He was then to meet Mr. Butz, one of the defendants, the following morning, to submit the estimate to him. It was while doing this that the plaintiff was injured. The defendants file forty-four grounds of appeal, which are argued under twenty-nine heads in the brief. The first and most important point made in the case is as to the authority of Mr. Nester, as superintendent of the construction work, to bind the defendants by an invitation to visit the unfinished building, for the purpose of making an estimate of the painting work, as being within the scojie of his employment, either expressed or implied. This question was loft clearly and sharply by the trial judge to the jury to determine as a fact from the evidence of the case, and, as we think, rightly, in view oí the testimony of Alvin II. Butz, one of the defendants, at page 194 of the record. He testified as follows: "Q. And you did say to Mr. Nester that he should get a bid? A. That he should solicit bids; yes, sir. We told him that he should get a painting bid on this work. Q. That is before the accident? A. Before the accident. Q. And Mr. Nester was the superintendent? A. That is right. Q. He hired the men there? A. That is right. Q. Discharged the men and paid the men with the money that you supplied him with? A. Yes, sir. Q. And you authorized him to get bids on this work before the accident? A. Before the accident.” True, at page 262, he testified that he authorized Mr. Nester to get the bids after the accident to the plaintiff. "A. Yes, sir, but I have refreshed by memory since, and it is after.”

We find no error in the rulings of the trial court alleged as error in the grounds of appeal. The trial judge submitted to the jury all the controverted questions of fact, such as contributory negligence and the like in a clear and accurate charge for the jury to settle and determine all controverted questions.

Finding no error in the record, the judgment of the Warren County Circuit Court is affirmed.


text:
    JOSEPH L. DIAS, PLAINTIFF-RESPONDENT, v. NEW JERSEY MANUFACTURERS CASUALTY INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1925
    Decided January 28th, 1926.
    Workmen’s Compensation—Defendant, Employer's Insurer, Sent Employer's Injured Employe to Plaintiff for Treatment—Is Plaintiff Bound by Workmen's Compensation Act?—Held, That Only Persons Bound by That Act are the Parties to Statutory Contract, That is the Employer and Employe— Judgment Against Defendant Insurer Affirmed.
    On appeal.
    Before Justices Parker, Mdsttuen and Black.
    For the appellant, Kellogg & Chance.

    For the respondent, Walter C. Ellis.

   Pee Cubiam.

This is an appeal from a judgment of $214 rendered in the East Orange District Court by the judge without a jury. There is no contest as to the amount of the judgment. The suit was to recover for the services rendered by a licensed physician—an eye specialist. The testimony shows that the defendant, the New Jersey Manufacturers Casualty Insurance Company, requested the plaintiff to treat a man by the name of Fred Lauer. The defendant sent a note up with the man stating that the man required treatment and asked him to treat him.

The testimony furth.er shows that Fred Lauer was an employe of Kraeuter & Company, and that Kraeuter & Company was insured by the defendant company.

The only point involved in the case is whether the plaintiff is bound by the Workmen’s Compensation act (Pamph. L. 1922, r. 500, § 11, subdiv. 14), and the case of Moore v. Derees, 97 N. J. L. 378. But in that case (at p. 382) Mr. Justice Swayze, speaking for this court, said: “The parties are hound by all the terms of the statute, and only parties to the statutory contract are bound by its terms or entitled to its benefits. An examination of the statutes demonstrates that only the employer and the employe are parties to the statutory contract. The act of 1911 implies a contract only as between employer and employe, and makes provision quite inapplicable to third parties.” That case does not aid the defendant, it is an authority for affirming the judgment.

The judgment of the East Orange District Court is affirmed, with costs.


author: Pek Curiam.

text:
    MAX L. RUDENSEY, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE TOWN OF MONTCLAIR, IN THE COUNTY OF ESSEX, AND HARRY TRIPPETT, SECRETARY OF SAID BOARD, AND THE TOWN OF MONTCLAIR, IN THE COUNTY OF ESSEX, RESPONDENTS.
    Submitted October term, 1925
    Decided February 2, 1926.
    Zoning—Stores in Restricted Section—Case Follows Ignaciunas v. Risley—Mandamus the Proper Remedy.
    On certiorari, &c.
    Before Justices Teenchabd, Katzenbach and Lloyd.
    Por the prosecutor, Whiting & Moore (Ira G. Moore, Jr., of counsel).
    For the respondents, George B. Beach (John W. Bishop, Jr., of counsel).
   Pek Curiam.

This is a writ of certiorari bringing up for review the order or determination of the board of adjustment of the town of Montclair on the appeal of the prosecutor of this writ from a decision. of the building inspector refusing a permit to the prosecutor for the erection of a building on a lot at the northwest corner of Valley road and Laurel Place, in the town of Montclair.

As we read the record, the sole objection to granting the permit was that the building is designed for use as stores, and an ordinance of the town of Montclair, commonly known as thfe zoning ordinance, purports to prohibit the use of buildings for stores in the district in which this lot of land is located.

We think that the right of the prosecutor to have his building permit is clear under Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 389. Mandamus against the building inspector was his proper remedy, but the board of adjustment, to whom it was unnecessary for him to appeal, had no jurisdiction to deprive the prosecutor of his constitutional right, and the refusal of the board of adjustment brought up by certiorari will be set aside. Steinberg v. Bigelow, 131 Atl. Rep. 114. The testimony relating to the alleged increased fire hazard and alleged danger from increased traffic on the highway we think does not take this case out of the rules declared in Ingersoll v. South Orange, 128 Id. 393; affirmed, 130 Id. 721, and in Eaton v. South Oranqe, 3 N. J. Mis. R. 957.

The order brought up will be set aside.


text:
    LUBOMIR DOMBROWSKI, PLAINTIFF-RESPONDENT, v. JOSEPH OLOWSKI, DEFENDANT-APPELLANT.
    Submitted October term, 1925
    Decided January 28, 1926.
    Contracts—Agreement to Purchase Business With Provision That if Purchaser Could Not Secure a Lease From the Owner, to Refund the Deposit Paid—Judgment for Plaintiff.
    Oil appeal.
    Before Justices Parker, Mtnturn and Black.
    Eor the appellant, Kantner & Kantner.

    Eor the respondent, William George.

   Per Curiam.

This suit was brought in the Second District Court of Jersey City to recover $500, part payment of the purchase price of $2,000 of a grocery and butcher business at No. 219 North Third street, Harrison, New Jersey. The business consisting of the stock, outstanding accounts, including accounts receivable and the good-will of the business. The defendant, as part of the consideration, agreed to obtain for the plaintiff, at defendant’s own expense, a lease upon the premises for the term of three years from September 20th, 1923. The plaintiff went into possession of the business and continued to do business therein until the 26th of September, 1923, when the defendant caused the plaintiff to he evicted, the defendant then took possession of the business, refused to permit the plaintiff to take possession of the same, although demands for possession were made from the plaintiff to the defendant. The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $500. The defendant appeals and files ten specification of error for a reversal of the judgment. Six refer to admitting testimony in reference to the ownership of the premises No. 219 North Third street, Harrison. This evidence was harmless to the defendant. Number three, admitting in evidence Exhibit P1, a. bill of sale of the goods and chattels without calling the subscribing witness thereto. But the state of the case, as sent up with the record, and the court so found, that there was an oral contract to purchase the business, including its accounts and good-will, including an agreement that if the purchaser could not secure a lease from the owner to refund back the deposit paid and sued for. In that aspect of the case the admission of Exhibit P1, without proper proof, was harmless. Campbell v. McCrellis, 73 N. J. L. 271. Eight, nine and ten error in overruling motions to nonsuit and to direct a verdict in favor of the defendant and in rendering judgment for the' plaintiff. These rulings of the trial court were not reversible error. The judgment of the Second District Court of Jersey City is affirmed.


author: Pee Cuhiam.

text:
    ISADORE COHEN, PLAINTIFF-RESPONDENT, v. ISADORE STEIN, DEFENDANT-APPELLANT.
    Submitted October term, 1925
    Decided January 28, 1926.
    Contracts—Plumbing—Counter-claim—Record Examined and no Reversible Error Found.
    On appeal.
    Before Justicés Parker, Minturn and Black.
    Eor the appellant, Schwartz & Schwartz.

    Eor the respondent, Wm. L. Greenbaum.

   Pee Cuhiam.

This suit was commenced in the Orange District Court to recover $500 damages for the breach of a plumbing contract. The defendant filed a counter-claim to recover $500. The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $235. The defendant specified five points, on which he is dissatisfied in point of law.

First. There are no facts in the ease upon which judgment of the court can be supported.

Second, third and fourth. Failure to give weight to the testimony of a witness, Benjamin Cohen.

Fifth. Excluding an answer to the following question: “Q. Did you reopen the floors after you had closed them, in order to have Mr. Benjamin Cohen go on the job ?”

Our examination of the record leads us to the conclusion that no reversal error was committed by the trial judge in rendering judgment for the plaintiff for $235. The judgment of the Orange District Court is therefore affirmed.