text:
    ROSE BARRESE, ADMINISTRATRIX OF FRANCESCO BARRESE, DECEASED, PETITIONER AND DEFENDANT IN CERTIORARI, v. STANDARD SILK DYEING COMPANY, RESPONDENT AND PROSECUTOR IN CERTIORARI.
    Submitted May 14, 1932
    Decided November 10, 1932.
    Before Justices Teenchakd, Case and Beogan.
    Bor the prosecutor in certiorari, Edwin Joseph O’Brien.

    Bor the defendant in certiorari, Benjamin L. Stein, Nathan Rabinowitz and William, Sheps (Benjamin L. Stein, of counsel).
   Pee Cueiam.

This writ brings up for review a judgment obtained by the petitioner under the Workmen’s Compensation act (Pamph. L. 1911, p. 136), on account of the death of Brancesco Barrese, who was employed by the Standard Silk Dyeing Company. 10 N. J. Mis. R. 892; 161 Atl. Rep. 653.

The decedent was employed as a dyers’ helper and relief watchman. Among the duties of the decedent as watchman, were the special ones of stopping all “fooling” or skylarking on the premises of the company and of guarding the property of his employer from vandals.

On Saturday, September 20th, 1930, at about three-thirty o’clock in the afternoon, the decedent was sitting in the “time room” of the company’s plant, conversing with one Nicholas Chirico, one of the employes of the company. While so conversing, one Joseph Oakley, a truck driver employed by the company, entered the “time room” and began “fooling” with Chirico, swinging him around in a swivel chair, and there ensued considerable rough and vulgar talk between Oakley and Chirico. The latter, taking a knife from his pocket, threatened to cut Oakley. Then Oakley left the “time room” and, while on the outside but still within the gates, pulled a revolver from his holster, while Chirico was standing in the doorway. Thereupon the decedent, in an effort to stop the altercation and “fooling” between Oakley and Chirico, called out “stop.” Chirico then walked to the decedent and stood talking to him for two or three minutes, when the decedent was wounded by a bullet which came through the window from the revolver of Oakley. The decedent thereafter died on his way to the hospital.

The foregoing matters of fact were found by the deputy commissioner and were quite justified by the great weight of the evidence. He also found that the accident was one arising in the course of the employment, and we think rightly. The decedent was doing what he was employed to do during the time which he was employed, and at the place where he might reasonably have been at that time. Bryant v. Fissell & Co., 84 N. J. L. 72; 86 Atl. Rep. 458.

Also, we think the decedent met his death by reason of an accident which arose out of his employment, as the deputy commissioner found. The decedent was charged with the duty of stopping all skylarking and fooling between employes of the company within the gates. This implies that when such fooling occurred in the presence of the decedent, the decedent was to adopt such means and methods as to him appeared sufficient and reasonably certain to put an end to it.

An accident arises out of the employment when, as here, it is something the risk of which might have been contemplated by a reasonable person when entering the employment, as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. A risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment or an extraordinary risk which is only indirectly connected with the employment, owing to the special nature of the employment. Bryant v. Fissell & Co., supra; 86 Atl. Rep. 458.

It is reasonable to presume that a person charged with stopping fooling between co-employes might sometime be assaulted, either willfully or sportively, by the persons whose fooling the decedent may attempt to stop. The decedent’s employment was - a special one, connected with which were extra hazards and special dangers.

This case is clearly to be differentiated from the case of Hulley v. Moosbrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007, upon which the company relies. In that case, two employes engaged in an altercation, having no duties with respect to the stopping of such occurrence. In the instant case, the decedent was specifically charged with the duty to stop or attempt to stop such occurrences, and was performing his duty at the time of the accident. In the Hulley case, however, the court said, “it [an accident] arises out of the employment when there is apparent to- the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is requested to be performed and the resulting injury. Hnder this test, if the injury can be -seen to have followed as a natural incident to the work and .to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment. * * * The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relationship of master and servant. It need not have been forseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.”

Counsel for the company contends that the decedent should have done something in addition to what he did to constitute performing his duty in the furtherance of his master’s business. But we think it cannot reasonably be said that in order to be entitled to compensation, a watchman charged with the duty to stop fooling between employes of his master, should actually take physical hold of the employes engaged in an act of fooling or flourishing dangerous weapons. The question of how an employe fulfills the duties imposed upon him by the master is immaterial in such a case as this so long as the employe is actually engaged in his master’s business and is fulfilling his duties in a manner which to him appears reasonable.

In the case of Emerick v. Slavonian Roman Greek Catholic Union, 93 N. J. L. 282; 108 Atl. Rep. 223, a bartender selling intoxicating liquors in his employer’s saloon was shot and killed by a patron because of and during a dispute regarding the price of drinks which the decedent sold to such patron and the price of which he was attempting to collect from the patron. The decedent was shot and killed by the patron during such dispute and the court held in that case: “The trial judge was justified in concluding that decedent’s death arose out of his employment.”

The foregoing observations in effect dispose of every question raised and argued. The company’s contention, made in the brief, that the deputy commissioner erred in finding that the wages of the decedent were $35 per week, is not raised by any reason for reversal.

The judgment below will be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HEYWOOD HOLDEN, PROSECUTOR, v. THE MAYOR AND COUNCIL OF THE BOROUGH OF NORTH ARLINGTON, COUNTY OF BERGEN, STATE OF NEW JERSEY, ET AL., RESPONDENTS.
    Argued October term, 1932
    Decided December 19, 1932.
    Before Justices Parker and Lloyd.
    Por the prosecutor, Bruch & Bigel.

    Por the respondents, Breslin & Breslin, John Milton and Charles L. Hedden.

   Per Curiam.

The writ in this case was issued to test (1) the validity of certain contracts made by the borough of North Arlington with the owners of property situate in that borough for the construction of sewers on the lands of the owners; (2) the validity of a resolution of the mayor and council of the borough on the 4th of March, 1932, pertaining to the acceptance of the sewers constructed under these contracts; (3) certain other resolutions similarly adopted, setting forth the value of such construction and requesting the owners to accept the amounts specified in the resolutions in satisfaction of the agreements above referred to; (4) an ordinance adopted by the same authorities June 28th, 1932, for the issuance of bonds in the sum of $152,000 to raise moneys to pay the amounts due on the sewer contracts between the borough and such owners.

As would be inferred from the foregoing recital the several contracts were entered into and the sewers were constructed. By the resolution adopted March 4th, 1932, it was resolved that the sewers be accepted; that proper steps be taken to ascertain their reasonable cost and value and requesting the passage by the legislature of legislation authorizing the borough to take the necessary steps to legally obligate the borough. The legislation was sought and was enacted in chapter 163 of the laws of 1932, page 289.

Various reasons are urged for setting aside the contracts, the various resolutions and the ordinance. .Tt is said that the contracts themselves were beyond the power of the borough to make and this is clearly so, but respondents claim that they were validated by the legislation subsequently enacted. It is said that the act itself is unconstitutional; that in any event it does not validate the contracts and finally that the terms of the act for the performance of which only could the borough justify the passage of the resolution of March 4th, 1932, or the ordinance for the issuance of bonds, were not complied with in that the value of the work has never been certified by the municipal engineer.

We think it unnecessary to discuss any of the reasons urged except the last. The validating act in its first section reads as follows:

“All agreements heretofore entered into by any municipality with landowners for the construction of lateral or connecting sewers, whereby the municipality agrees to pay to the said landowners the reasonable value thereof as of the time of the incorpoi*ation of the said lateral or connecting system with the general sanitary system installed in said municipality, shall be valid and binding upon the said municipality, notwithstanding the fact that it was beyond the power of the said municipality to make the said contract; provided, that the said lateral or connecting sewers have been constructed and are in use and the requirements of said contract with respect to the submission of the plans and specifications have been complied with, and the value of the work has been certified by the municipal engineer.”

The right to issue bonds provided for in the second section is based upon the performance of the conditions as set forth in section one.

It will be noted that the application and utilization of the statute is predicated upon the fact that the “value of the work has been certified by the municipal engineer.” We find in the record returned no adequate compliance with this condition. The nearest approach to a certificate such as required by the act it is claimed by the respondent was supplied in the certificate (if such it may be called) of the borough enT gineer at the time of the completion of the sewers at various dates prior to January 1st, 1930, as attached to certain schedules. These, however, are nothing more than statements of the work done on account of the contracts and the proportion of payments due under the contract, together with a statement of the engineering fees paid, and are obviously insufficient. The statute required that the value of the work be certified by the municipal engineer, and contemplated, as we think, that this certificate should be given by the engineer subsequent to the passage of the act and before the contracts shall become valid and binding upon the municipality. There is here no certificate subsequent to the passage of the act and certainly no certificate as to the value of the work. It appears that the contracts when originally made were entered into without advertising and without the invitation of bids. The contract price could certainly afford under such conditions no evidence of the value of the work; much less could the certificate of the then engineer as to the proportions of the work done as to the contract price afford evidence of such value.

As stated, it is unnecessary in the view we take to consider the constitutionality of the act or. the question as to the validity of the contracts either apart from the act or under it, but upon the ground that the conditions of the act have clearly not been complied with, the action taken by the municipality in attempting to take over and pay for various sewers was illegal.

Since the arguments were presented and the briefs were filed our attention has been called to chapter 111 of the laws of 1929 (page 180) which purports to ratify and confirm any obligation or contract thertofore created or entered into without advertising or awarding to the lowest responsible bidder for the doing of work or furnishing materials, supplies or labor, where the sum expended exceeds $1,000, and respondent urges that the contracts are validated thereby, but we think the statute is inapplicable to the present situation and was not intended to apply to contracts such as were here entered into.

In this case the contracts were not for the “doing of work or the furnishing of any materials, supplies, or labor,” but for the purchase of sanitary sewers as completed structures. The purpose of the act was to require the payment of sums of money normally due on definite obligations for definite amounts in excess of $1,000 for the purposes specified only where the protective feature of advertising had been omitted and the award was not made to the lowest bidder.

The five resolutions adopted on May 3d, 1932, and the ordinance adopted June 28th, 1932, are hereby set aside.


text:
    WALTER HARMON AND ARTHUR REGALIA, TRADING AS HARMON & REGALIA, PARTNERS, PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY, AND THE PUBLIC SERVICE CO-ORDINATED TRANSPORT, RESPONDENTS.
    Argued October term, 1932
    Decided December 19, 1932.

      Before Justices Parker and Lloyd.
    Por the prosecutors, Nicholas S. Schloeder.

    Por the respondents, John A. Bernhard and Charles S. Straw.

   Per Curiam.

On January 31st, 1931, prosecutors presented an application to the board of public utility commissioners for the “transfer of a local permission to operate auto buses between North Bergen and Journal Square, Jersey City, and intermediate points,” running through various municipalities. The application was denied in May following, and some months later the prosecutors presented a new application for an amended order to enable them to apply to this court for a writ of certiorari.

The first application set forth a permission from the Boulevard commissioners of Hudson county, issued to Walter Harmon, one of the petitioners, but set out no approval of a transfer to the present petitioners. In the renewed application it was set forth that “an application for a rehearing was made at which time an additional fact was offered, namely, that the Hudson county park commissioners, successors to the board Of boulevard commissioners, consented to the transfer of the original consent granted March 26th, 1925, to Walter Harmon, said consent to transfer being dated March 10th, 1931.”

The consent to transfer is not printed in the record and it is difficult to determine just what is meant by the last quoted paragraph of the petition. The board of utility commissioners, however, seems to have understood it as averring that the park commissioners had consented to a transfer of the right to operate from Harmon to the petitioners, Harmon and Regalia, and to have again denied the application, and that on the ground that the consent of the municipalities through which the route ran had not consented to its operation. So far as appears no title to the buses themselves was ever transferred from Harmon to the partnership.

Passing difficulties arising from the various petitions themselves as possible barriers to favorable action by the utility commissioners, such as the failure to establish an approval of the transfer to Harmon and Eegalia, or to establish that the alleged partnership had any interest in the bus or its route, we think the court properly held that the law contemplated a municipal consent to operation within the confines of a municipality through which the route may run. Chapter 144, laws of 1926, page 220. Section 2 of this act provides that “no auto bus * * * shall be operated or run * * * wholly or partly along any street in any municipality, whether such operation is over a route wholly or partly within the territorial limits of such municipality, * * * until the persons owning or possessing the right to use the same shall obtain the consent of the board or body having control of public streets in such municipality for such operation and the use of any street or streets in such municipality;” and the act further provides that a consent so granted should not become effective and operation permitted until the holder shall file a bond with the chief fiscal officer of the municipality by which said consent was granted to protect persons injured or killed, and that the license may ‘Tie revoked by the board or body of the municipality.”

In the present instance no consent was ever obtained from the municipal authorities and the utility commissioners properly refused the application, on the ground stated in the opinion filed by that tribunal.

Even were the situation otherwise we could not see our way to set aside the action taken by that body for the following reasons:

(1) It was not adequately averred or proved that Harmon and Eegalia ever received a transfer from Harmon, or

(2) That Harmon and Eegalia ever received from the Hudson county park commissioners a transfer;

(3) Such applications are addressed to the discretion (in its approval) of the board of public utility commissioners and there is certainly nothing to impugn the integrity of the board in a refusal on such an application as is here presented. The fact that counsel representing Public Service Co-ordinated Transport, during the progress of the hearing, agreed that the only question was as to the sufficiency of the consent, does not make it so, and cannot aid the prosecutors. So far as appears, Public Service Co-ordinated Transport had no interest or concern in the matter, much less authority to agree to facts upon which the board could act.

The order of the board of public utility commissioners is affirmed.


author: La Coete, J.

text:
    First Judicial District Court of Union County.
    ALBERT S. KESHEN, PLAINTIFF, v. NAT OLSAN, DEFENDANT.
    Decided October 4, 1932.
    For the plaintiff, Harrison B. Johnson.

    For the defendant, Garl Olsan.

   La Coete, J.

In this matter plaintiff was the owner of three automobiles and owed the defendant a sum of money for supplies furnished for the operation of said automobiles. Defendant seized the three cars through a constable engaged by him and plaintiff upon requesting the amount due was given a sum which included the amount due for the supplies plus $30 being a fee of $10 for each car to the constable for seizing the said automobiles. The plaintiff paid the actual amount due for the supplies to the defendant and demanded the cars; possession was refused and this replevin suit was instituted by the plaintiff and the amount in difference, $30, together with $10 as security for the costs, was deposited with the clerk of the court and the question arises as to whether or not a garagekeeper acting under the Garagekeepers’ Lien act is authorized to employ a constable for the purpose of seizing automobiles upon which he (the garagekeeper) may have a lien and may thereafter add the charges of said constable for his service to the amount due under the lien. The matter depends upon the interpretation of the said act and being a matter of law, was submitted on argument and memoranda.

1. Section one of the Garagekeepers’ Lien act is mainly concerned with a statement of the cases where the garage-keeper shall be entitled to a lien. And in that respect states that the garagekeeper shall be entitled to a lien upon the motor vehicle “for the sum due for such storing, maintaining, keeping or repairing of such motor vehicles or for furnishing gasoline, accessories or other supplies therefor.” This statement in the statute designates in w> uncertain terms, for what the garagekeeper is entitled to a lien, but there is nothing mentioned to the effect that his lien shall include any fees to a constable or any other agent he may hire, in fact the words constable or agent are not even used in the section nor any word or words which would imply the word constable. Further the section provides that the garagekeeper “may without process of law, detain such motor vehicle.” The legislative intent here is to give the garagekeeper the lien and right to detain, without having to resort to legal procedure which would require time and some expenditure. It will also be noted that by this section the garagekeeper, not his agent or constable or anyone else in his behalf but only he himself may detain the motor vehicle on which the sum is due.

2. Section 2 of the act gives the garagekeeper the right to seize such motor vehicle in these words, “the person or corporation having said lien may, without further process of law, but after demand of payment of claim either personally or by registered mail if owner’s address is known, seize the motor vehicle, or part or parts thereof, wherever the same is or are found within the State of Hew Jersey; provided, however, that such seizure can be made without the use of force and in a peaceable manner.” Here the legislature has explicitly given the right to seize such a motor vehicle to “the person or corporation having said lien.” The section goes on to give the owner the right to replevy his car when seized upon complying with certain conditions and provides that the writ shall command the sheriff or any constable or sergeant-at-arms to take possession, &c., and further that the bond required be written in favor of the sheriff, constable or sergeant-at-arms to whom the writ is directed. Then follow provisions for trial, &c. The mention of the word constable here has nothing to do with the question at issue. The constable only comes into the picture when the owner starts a replevin action. Under this section the legislative intent is that the right to seize is given to the person or corporation having the lien and the legislature having the further idea in mind of giving this right to the garagekeeper without due process of law, quite naturally would not have in mind the fees of constables as it was contemplated that the garage-keeper himself would do the seizing.

3. The third section provides for public sale where the owner does not repossess the motor vehicle and directs how the proceeds of the sale shall be disbursed. Here again the garagekeeper is given the right to sell without process of law. The word constable is not nor is any word implying constable used anywhere in the section, and a strict interpretation of the section would indicate that no constable could make the sale but such right was explicitly given to the garagekeeper.

There is a provision in this section that out of the proceeds of the sale the expenses of the sale shall be paid and a close study of the section indicates that the only expense would be advertising the date and place of sale as required. There is not even a provision requiring a constable to conduct the sale nor to pay the fees of such constable if he acted at a sale.

4. Constable fees are fixed by statute. Some of the acts providing such fees are: “the District Court act,” “the Attachment act,” “the act to Begulate Dees,” “the Small Cause act,” but in each act mentioned the fees are paid by the moving party and each act contemplates legal procedure, and in the course of the litigation, if he is successful, he is entitled to his costs and this by virtue of statutes providing for same. Ho fees have been fixed for the seizure of ears by constables in the Garagekeepers’ Lien act, and as no legal procedure is contemplated on the part of the garagekeeper, such costs cannot be charged to the owner of the car.

5. The legislative intent of the act in question taken as a whole is to give to the garagekeeper a special remedy which may be pursued immediately and without delay, cost or resort to the courts, and nothing can be read into the statute which is not already there in definite terms. ZSTo fees are contemplated by the act as are here sought to be recovered and there is no other act by reason of which recovery can be had for such fees. The act contemplates the garage-keeper’s detaining, seizing and selling, and not his agent or some other hireling. If the legislature had intended that the owner should be charged with such fees it would in no uncertain terms have fixed the amount thereof and designated who was to be charged with payment thereof, and would have directed what person could detain, seize and sell such motor vehicle on behalf of the garagekeeper. Therefore the constable in this matter acted as the agent of the garagekeeper and there is no legal obligation for the owner of the automobiles to pay his fees.

Judgment for the plaintiff.


author: Pee Cueiam.

text:
    JOHN POST, PROSECUTOR, v. JAMES S. ANDERSON, MAYOR AND DIRECTOR OF PUBLIC SAFETY OF THE VILLAGE OF RIDGEWOOD, AND THE BOARD OF COMMISSIONERS OF THE VILLAGE OF RIDGEWOOD, RESPONDENTS.
    Argued October term, 1932
    Decided December 19, 1932.
    Before Justices Pabkee and Lloyd.
    For the prosecutor, J eróme J. Dunn.

    For the respondents, Thomas L. Zimmerman, Jr.

   Pee Cueiam.

The application in this case is for a writ of certiorari to review the conviction of John Post, a member of the Ridge-wood village police force, of conduct unbecoming an officer in violation of a rule of the police manual, in that he had intercourse with a person named, causing her to become pregnant.

The first point made is that Anderson, director of public safety of the village of Eidgewood, was not qualified under the law as the tribunal to try him, inasmuch as the rules contemplate trial by all of the commissioners.

The difficulty with this contention is that chapter 275 of the laws of 1915, page 495 (which amends the statute popularly known as the Walsh act) has been construed by this court and the Court of Errors and Appeals to the contrary. In Foley v. Orange, 91 N. J. L. 555, it was declared that section 4 of the act takes from the board of commissioners jurisdiction to try charges against a police officer and vests such jurisdiction in the commissioner of the department of public safety; that the statute was imperative and self-executing. This decision has been followed on repeated occasions. Hand v. Wildwood, 8 N. J. Mis. R. 498; 150 Atl. Rep. 828; Mee v. Montclair, 9 N. J. Mis. R. 46; 157 Atl. Rep. 447. Rules of the commissioners to the contrary were, therefore, unavailing.

It is next urged that evidence received tending to establish the guilt of the officer was improperly received. This evidence consisted of the dying declaration of a girl to the effect that the prosecutor was responsible for her pregnant condition. This evidence was clearly inadmissible. 22 Corp. Jur. 258, but this does not justify setting aside the order of dismissal inasmuch as other evidence heard by the director was amply sufficient, as we think, to establish the guilt of the prosecutor. Crane v. Jersey City, 90 N. J. L. 109; 103 Atl. Rep. 678, where it was said that “the admission of illegal testimony in cases tried by a special tribunal * * * would not have the effect to invalidate the findings of that tribunal so, long as it appears that there is competent testimony in the case to support such findings.”

The application is denied.


text:
    PETER GUNNE AND MICHAEL J. DANIHER, PROSECUTORS, v. BOROUGH OF GLEN RIDGE AND ANDREW H. MIELE ET AL., DEFENDANTS.
    Argued November 29, 1932
    Decided December 19, 1932.
    Before Justices Parker, Lloyd and Heher.
    For the prosecutors, Robert H. McCarter.

    For the defendants Miele Brothers, Grosso, Brundage £ Anderson.

    For the defendants, James P. Mylod.

   Per Curiam.

The prosecutors applied for and obtained a blank questionaire furnished to prospective bidders by the borough, with a view to bidding on a garbage removal contract, which the said borough was about to award. The application for the questionaire was made on Friday; the contract was to bo awarded Monday. They returned it with answers the next morning and were then told that their answers did not come up to the requirements of the questionaire in that they had not had a three-year contract for similar work within five years. They were refused the specifications, with the result that they were unable to bid, and the contract was awarded to Mielo Brothers, the other respondents, on the following Monday, which was August 8th. The contract itself was to become operative on September 1st, but was actually entered into on August 12th.

The first attack on the award made by the prosecutors was by notice to the borough and the successful bidder given on August 20th of an application to the Chief Justice for a writ of certiorari, which application he granted. In the meantime the successful bidders had made elaborate preparations and incurred considerable expense and obligated themselves still further in preparation for the carrying out of the contract which naturally called for very prompt and adequate preparation.

The attack on the proceedings is based on two propositions:

1. That a municipality is not authorized by Pamph. L. 1926, p. 301, to demand a questionaire on garbage contracts. We think this is without substance, and that the supplement of 1926 applies to all contracts to be entered into by a municipality other than a county where the expenditures are above the statutory minimum.

2. That the questionaire in its form is unreasonable and therefore not justified under the act of 1926. We find it unnecessary to decide this point for reasons presently to be stated, and for present purposes may assume it to be well taken.

As against the right of the prosecutors to relief, the respondents say that in addition to what they claim to be the reasonable character of the requirements, the prosecutors were guilty of laches; and we concur in this view. There is no attack on the Iona fides of the proceeding. There were a number of bidders who qualified, and the contract was awarded to the lowest bidder after proper advertisement. There is no attack on the good faith of the engineer or of the borough counsel in the preparation of the questionaire. Under the circumstances it was incumbent on the prosecutors to act with extreme diligence if either as disappointed applicants for the specifications or as taxpayers they desired to test the validity, either of the award that was made, or of the refusal of the specifications. For eleven days the borough and the contractor were in ignorance of any attack on the award or the contract, the performance of which had to be begun with adequate equipment and working force within three weeks, during which time preparations by the successful bidder were in progress.

Laches is, of course, a relative matter. What might be reasonable delay in one case might be quite unreasonable in another. This court held, in Bullwinkel v. East Orange, 4 N. J. Mis. R. 593; 133 Atl. Rep. 744, that an attack on the award of a garbage contract should be made with the utmost promptitude, and if practicable, at the very outset. Under the circumstances here present we think the delay was so unreasonable as to constitute legal laches justifying dismissal of the writ. Such will be the order.


author: Bodine, J.

text:
    HARRY COULTER, ADMINISTRATOR AD PROSEQUENDUM OF LEROY COULTER, DECEASED, PLAINTIFF, v. NEW JERSEY PULVERIZING COMPANY, DEFENDANT. LILLIAN M. CLARK, EXECUTRIX OF THE ESTATE OF ASHBY F. CLARK, DECEASED, PLAINTIFF, v. NEW JERSEY PULVERIZING COMPANY, DEFENDANT.
    Decided December 21, 1932.
    For the plaintiffs, Samuel Greenstone.

    For the defendant, Howard Ewart (Franklin II. Berry, on the brief).
   The opinion of the court was delivered by

Bodine, J.

The present actions were brought under the Death act. The defendant answered that the actions were barred by the statute of limitations. The plaintiffs moved to strike the answers and the defendant moved to strike the complaints. The defendant’s motion must be granted and the plaintiffs’ denied.

The question here presented is whether the representatives may sue under the Death act when their decedents’ right of action for the same negligence complained of in the action under the Death act was barred by limitations at the time of the decedents’ deaths.

That the two actions are separate and distinct is well settled in this state. Cooper v. Shore Electric Co., 63 N. J. L. 558; 44 Atl. Rep. 633; Soden v. Trenton and Mercer County Traction Co., 101 N. J. L. 393; 127 Atl. Rep. 558.

The Death act, so far as pertinent, is as follows (italics mine) : “That whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and im, every such case the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured * * *. Every action * * * shall be brought * * * in the' name of an administrator ad prosequendum of the decedent whose death gives rise to the claim under the act * * * except where such deceased dies testate, and his or her will is probated, the executor or executors therein named, who qualify, shall bring, institute or make such action, proceeding, or claim * * *; and provided further, that every action shall be commenced or sued within two years after the death of such deceased person and not after * * *.” Pamph. L. 1917, p. 531.

It is, of course, arguable that since the actions are separate the only bar to the action under the Death act is the bar contained in the act itself. But the statute only gives an action if the decedent had one. In the present cases, the decedents’ actions were lost by lapse of time. Since the decedents had no cause of action their representatives had none. Had the decedents satisfied their claims the representatives could not have asserted a non-existing cause of action. The statute of limitations is as much of a bar as a release. This is the interpretation given by English courts to the enactment upon which our statute was modeled.

“The cases appear to establish the general principle that, where an action could not have been brought by the deceased person, it cannot be maintained in respect of the same accident by his representative. In this case the deceased could not have maintained an action against the defendants at the time of his death, or at any time more than six months after the neglect which was said to have caused the injury to him.” Williams v. Mersey Docks and Harbour Board (1905), 1 K. B. D. 804, 808.

If this were not so, if decedent lingered for twenty years and made no move, his representative could then assert a right of action to recover for an injury forgotten by everyone but the injured, who had slept on his rights for twenty years. Such could not have been the legislative intention.

“The statute cannot be construed to give the widow a greater right than the husband would have if living. The plaintiff’s husband extinguished his right of action by failing to assert it within the two-year period fixed by the statute. A right of action can be extinguished as effectively by the statute of limitations as in any other way.” Howard v. Bell Telephone Co., 306 Pa. 518; 160 Atl. Rep. 613, 615. See, also, Kelliher v. New York Central and Hudson River Railroad Co., 212 N. Y. 207; 105 N. E. Rep. 824, and the very recent case of Flynn v. New York, New Haven and Hartford Railroad Co., 283 U. S. 53. The many authorities to the contrary seem unconvincing. Suffice it to follow the rule established in England, New York, Pennsylvania and the Supreme Court of the United States.


author: Sooy, C. C. J.

text:
    GUY B. SHEPARD, LIQUIDATOR OF THE AMERICAN BANK AND TRUST COMPANY, A FLORIDA BANKING CORPORATION, PLAINTIFF, v. AUGUSTUS HILTON, FRANK W. HILTON AND JOHN HILTON, DEFENDANTS.
    Decided December 24, 1932.
    For the plaintiff, T. Millet Hand.

    For the defendants, Harry Tenenbaum.

   Sooy, C. C. J.

This case is submitted to me for trial without a jury upon a stipulation of facts which is filed herewith.

It is stipulated that, on August 1st, 1927, defendants executed a promissory note and delivered it to plaintiff bank, the note being in the sum of $5,500, payable on October 1st, 1927; that the note was not paid at maturity, but, by reason of credits, was reduced to $2,414.93.

The Bank and Trust Company “having closed its doors,” the present plaintiff was duly appointed as liquidator and as such brings this suit.

When the note was delivered to the now defunct bank, it was accompanied by certain securities which were deposited as collateral security for the payment thereof.

The issue for my decision is raised in the third defense as set up in defendants’ answer as follows:

“Said note was created in the State of Florida, and together therewith there was given by defendants with securities to an amount in excess of the amount of the promissory note, and under the law of Florida, no claim can be made for any deficiency which may result from a failure to collect the amount of security assigned for the payment of a promissory note.”

Plaintiff, by the stipulation, “contends that the defendants are only entitled to credit to the extent that the plaintiff bank was actually able to collect on the securities pledged with the note, which is stipulated to be in the sum of $3,085.07.”

Defendant contends in the brief filed in their behalf that, in 1920, Florida adopted the Uniform Negotiable Instrument act. I do not have access to the Florida act nor have its exact terms been quoted and I am, therefore, privileged to assume that its terms are the same as those contained in the original Uniform act. I am unable, in that act, to find any provision supporting the contention of defendant.

I further find that defendants’ contention with respect to the law of Florida is not supported by the decisions of the courts of that state.

In Taylor v. American National Bank of Pensacola, 57 So. Rep. 678, the Supreme Court said:

“As a general rule the promise to pay, as evidenced by a promissory note, is one distinct agreement and if couched in proper terms, is negotiable, while the pledge of real estate to secure that promise, as evidence by a mortgage, is another distinct agreement which is not intended to affect the promise to pay, but only to provide a remedy for the failure to carry out such promise. The holder of a note may, if he sees fit so to do, discard the mortgage entirely and bring an action on the note.”

And again, in E. J. Sparks Enterprises, Inc., v. Christ-man, the same court, 117 So. Rep. 388, said:

“Where there is a promissory note and a mortgage given to secure the payment of the note, the payee or holder of the note has the right to discard the mortgage and resort to an action at law on the note, unless it should be otherwise provided in the note or mortgage. Chapter 11993, acts of 1927, does not change this rule of law.”

My attention is called to Williams v. Van Werter, 60 So. Rep. 184, as being contrary to the reasoning set forth in the cases above cited but I find no such ease either at the page or in the volume cited.

I therefore find that the taking of collateral security did not and does not defeat plaintiff’s recovery in this case.

' In defendant’s brief reference is made to an alleged agreement between plaintiff bank and the defendants whereby defendant agrees to surrender to the plaintiff all the collateral security which had been deposited with it, said surrender to be in full satisfaction of any balance due on the note. Under the stipulation as that instrument is before me, this defense is not available. The issue for me to decide is that set forth in the stipulation and not such issues as may be raised by way of written argument or brief. See paragraph 7 of the stipulation as above quoted.

I therefore find in favor of plaintiff, on this branch of the case, in the sum of $2,414.93, with interest at ten per cent., as provided by the note.

The note in suit provides for the payment of a “reasonable attorneys fee,” if the note be collected “by law.” From the evidence submitted I find that $250 is a reasonable fee and as such may be included in the amount awarded to the plaintiff.

I will sign a postea in accordance with the above findings.


author: Lawrence, J.

text:
    CHARLES GLASSER, PLAINTIFF, v. DODGE BROTHERS CORPORATION, A FOREIGN CORPORATION, DEFENDANT.
    Decided November 30, 1932.

      Por the plaintiff, Morton G. Steinberg.

    Por the defendant, Reginald V. Spell.

   Lawrence, J.

This suit was submitted to me, without a jury, at the Ocean Circuit, for the determination on a stipulation of facts. On October 28th, 1930, plaintiff purchased of the local selling agents of the defendant, at Lakewood, a commercial truck manufactured by it, under a conditional sales contract. He made the required down payment, took it into his possession and used it until January loth, 1931, when, while driving it along a highway, suddenly and without warning the drive shaft, which connects with the transmission, fell to the ground, causing the vehicle to be caught in such a position as to force it over and damage it. Plaintiff alleges that defendant warranted and represented that the truck was fit and proper to be used for commercial purposes, without any defect in its construction such as caused the accident stated, and he seeks to recover the cost of the repairs. In a second count in the complaint, the introductory matter in the first count is repeated and the allegation is made that by reason of the defective, inferior and poor workmanship and labor, and because of the inferior and defective material and construction of the truck, the accident occurred, causing plaintiff to go to the expense of hiring another truck and to lose certain business of a profitable nature that he otherwise would have had.

Defendant denies liability and rests its case on the terms of the conditional sale contract, under the authority of McCabe v. Standard Motor Construction Co., 106 N. J. L. 227; 147 Atl. Rep. 466. An examination of the contract discloses that plaintiff acknowledged delivery and acceptance of the vehicle, with the equipment “in its present condition, after thorough examination” and without any express or implied warranties unless written thereon, and there were none. It is evident, therefore, that the case in its general aspect is similar factually to the cited case which apparently controls.

Counsel for plaintiff, however, argues that Heckel v. Ford Motor Co., 101 N. J. L. 385; 128 Atl. Rep. 242, applies. But that was a case sounding in negligence, in which it was held that the manufacturer of an article, not inherently dangerous, yet may become so when put to an intended use, owes to the public the duty of employing care, skill and diligence in its manufacture and of using reasonable diligence to see that it is reasonably fit for the purpose for which it is intended. A contractual relation, in such circumstances, it was pointed out, is not necessary to charge responsibility. Here the complaint is grounded on an implied breach of warranty of fitness arising out of the conditional sale agreement which expressly precludes such implication.

Plaintiff having misconceived his cause of action, it follows that a judgment of no cause, so far as the present suit is concerned, should be entered in favor of defendant.


author: Newman, J.

text:
    First Judicial District Court, Monmouth County.
    BANKER’S CAPITOL FURNITURE COMPANY, A CORPORATION IN AND OF THE STATE OF NEW JERSEY, PLAINTIFF, v. CHARLES HALL, MARY HALL, HIS WIFE; ARTHUR G. ROGERS, INDIVIDUALLY; ARTHUR G. ROGERS, TRADING AS “ROGERS STORAGE WAREHOUSE,” AND ARTHUR G. ROGERS, TRADING AS “ROGERS AUTO VAN SERVICE,” DEFENDANTS.
    Decided December 22, 1932.
    For the plaintiff, Alfred Rosenburg.

    For the defendants, Abe Simmel.

   Newman, J.

This is an action of replevin brought by Banker’s Capitol Furniture Company, a corporation, against Charles Hall, Mary Hall and Arthur G-. Rogers, a warehouseman.

The property involved was sold by the plaintiff on conditional bill of sale to the defendant Charles Hall. The defendant Charles Hall placed the goods and chattels in storage with the warehouseman, Rogers, who claimed a warehouseman’s lien for unpaid storage charges and refused to deliver the same to the plaintiff until said storage charges were paid to him. The plaintiff refused to pay the charges to the defendant Rogers. Demand for and refusal of possession was conceded. The defendants Charles Hall and Mary Hail interposed no defense.

During the course of the trial the plaintiff proved ownership of the property and proved the conditional sale of the property to Charles Hall.

Though recorded, the bill of sale was in such form as to be ineffective as notice to anyone, and the plaintiff is therefore in a position of being the holder- of an unrecorded bill of sale and the question therefore arises whether under the Conditional Sales act a warehouseman’s lien is good against the holder of an unrecorded bill of sale.

At common law the rights of the conditional vendor were .superior to the rights of anyone acquiring title to or a lien upon the property from the conditional vendee, and the common law rule remains unchanged except as changed by chapter 310 of the laws of 1919, usually referred to as “the Uniform Conditional Sales act.”

With the exception of the classes named in section 5 of said act as read with section 1 the unrecorded bill of sale is good as against all other persons.

The words, “purchaser,” “mortgagee,” “pledgee,” and “acquires by attachment or levy a lien,” have in law fixed and definite meanings and cannot in any way be enlarged so as to include the lien of a warehouseman.

The only other question arising is whether section 38B of the Uniform Warehouse Receipts act gives a warehouseman a lien superior to that of the conditional vendor. The two acts must be considered separately. Section 28B of the Uniform Warehouse Eeceipts act cannot enlarge or be itself enlarged by the Uniform Conditional Sales act.

At common law upon a conditional sale of chattels followed by delivery of possession to the vendee, the reservation of title in the vendor until the contract price is paid is valid as against creditors of and bona fide purchasers from the vendee, unless the vendor has conferred upon the vendee indicia of title beyond mere possession, or has forfeited his rights by conduct which the law regards as fraudulent. The same rule would apply under this act to a bailment by a conditional vendee with the warehouseman. There is nothing in the case to indicate that the vendor gave the vendee any indicia of title beyond mere possession.

I therefore find that the plaintiff is entitled to possession and award judgment therefor.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNA SCHUSTER, PETITIONER, v. PERRYMAN ELECTRIC COMPANY, RESPONDENT.
    Decided October 15, 1932.
    For the petitioner, Samuel Spingarn.

    For the respondent, Joseph G. Paul.

   A petition having been filed by the petitioner wherein she alleged that on October 12th, 1929, while in the office of the respondent, in the course of her employment and performing her usual duties as cashier, the office was held up by bandits and suffered a shock.

The respondent filed an answer denying that said disability was compensable under the terms of the Compensation act and the matter came on before me for a hearing, in an agreed stipulation of facts, to wit :

“Assuming that while petitioner, who is employed as a cashier by the respondent, is pursuing her duties in respondent’s office, armed bandits enter the office and point revolvers at her causing her to faint from the fright, and that as a result of the shock sustained by her, she loses her voice, is such loss of voice compensable under the provisions of the Workmen’s Compensation act?”

I have carefully studied the arguments presented in brief form by Samuel Spingarn, attorney for the petitioner, and by Joseph C. Paul, attorney for the respondent, and have examined several cases in this state and other states and have come to the conclusion that the petitioner did not sustain an accident arising out of or in the course of her employment.

The case of Ward v. West Jersey Seashore Railroad Co., reported in 65 N. J. L. 383; 47 Atl. Rep. 561, holds as follows:

“Apprehension of personal injury, not in fact received, which is caused by the negligent act of another, will not support an action, even when physical suffering follows as a consequence of the fright.”

The facts in that case are that the plaintiff, while traveling along a public highway at a point where it was crossed by the defendant’s railroad, was permitted, without warning from the defendant, to drive upon the crossing in the face of an approaching train; that the gates by which the crossing was protected were raised when he drove upon it but were carelessly and improperly lowered by the defendant’s gatekeeper before he was able to pass entirely over, whereby he was subjected to great danger of being run down and killed by said train; and that, by reason of the danger at which he was thus exposed, he was shocked, paralyzed and otherwise injured. The court then proceeds to outline the law as exists in several other states and adopt the prevailing view of those states.

The case of Oehler v. L. Bamberger & Co., reported in 4 N. J. Mis. R. 1003; 135 Atl. Ref. 71, shows that a salesman of the defendant had sold a vacuum cleaner to the plaintiff and he came to her home to collect for same and while sitting in a chair, threatened to have her arrested if she did not pay for it and as a result the plaintiff was stricken with apoplexy and there was no physical contact between the said salesman and the plaintiff. The court held:

“Liability of tort-feasor is restricted to such damages as may be anticipated as natural and proximate consequences of tort.”

Schneider, in his work on the Workmen’s Compensation law, volume 1, page 416, says:

“Fright, without actual physical injury, is not sufficient to sustain an award of compensation under the Michigan act.”

For these reasons, I find and determine that the petitioner did not sustain an injury within the contemplation of the Workmen’s Compensation act of the State of New Jersey. .$$$$$$ *

John C. Wegnee,

Deputy Commissioner


author: Eldredge, C. C. J.

text:
    THE FIRST NATIONAL BANK AND TRUST COMPANY OF WOODBURY, NEW JERSEY, A CORPORATION, PLAINTIFF, v. WILLIAM C. EVANS, DEFENDANT.
    Decided December 24, 1932.
    Before Henry H. Eldredge, Circuit Court judge.
    For the plaintiff, Austin H. Swackhamer.

    For the defendant, Robert J. Tail Paul.

   Eldredge, C. C. J.

The plaintiff in the above-entitled cause brings suit against the defendant to recover the sum of $2,000 alleged to be due on a certain promissory note made and delivered to the said plaintiff on January 23d, 1930. Defendant in his answer admits all the allegations of the complaint but sets up a counter-claim based upon the following alleged facts.

Prior to September, 1928, the counter-claimant was indebted to the plaintiff in certain sums of money, and to secure a portion of that indebtedness created a bond and mortgage in the sum of $10,000 to the plaintiff covering certain farm land, and to further secure the said indebtedness a fire insurance policy was delivered to the plaintiff at its request under which $8,500 of the said insurance covered real estate subject to the mortgage held by the plaintiff. Title to the property described in the mortgage subsequently, in September, 1928, became vested in the plaintiff as trustee, and it was later conveyed, in December, 1928, by the said plaintiff, trustee as aforesaid, to the W. C. Evans Company. It is alleged that at this time the plaintiff, by its officers and agents,' advised the counter-claimant that the policy of insurance would be properly changed by them to show and protect the interest of all the parties. The policy was always in the possession of the plaintiff, but it failed to have the policy properly endorsed to show its own interest as mortgagee until August 8th, 1929, and failed at all times to have the interest of the W. C. Evans Company as owner endorsed thereon.

A fire occurred in the premises August 24th, 1929, which completely destroyed the building covered by the insurance policy. By reason of the change of ownership not being endorsed on the policy, the insurance company failed to pay the W. C. Evans Company as owner, but by reason of the mortgagee clause paid the plaintiff the amount of its mortgage and took an assignment thereof. The insurance company now holds the counter-claimant’s bond in the sum of $20,000, conditioned for the pajonent of $10,000 and is foreclosing the mortgage.

Counter-claimant alleges that through the failure on the part of the plaintiff to carry out its agreement with him, he was deprived of the opportunity of requiring the insurance company to pay plaintiff in satisfaction of its liability to him the sum of $10,000 and thus procure a reduction of said mortgage by the amount of said payment.

A motion is now made by the plaintiff to strike out the answer and the motion is resisted by the defendant, who filed his affidavit setting forth in greater detail the facts above mentioned and alleging in particular an agreement on the part of the plaintiff bank through its agent to have the policy endorsed in such a manner as “to see that the interest of everyone would be properly protected.” Counter affidavits are filed denying such an agreement.

The weight to be given these affidavits will not be passed on by the court in the present proceeding, but raise a question of fact to be decided by a jury. Our question is to determine whether, assuming the facts stated in the defendant’s affidavit to be true, he sets up a good cause of action in his counterclaim.

Defendant alleges that while there was no original obligation on the part of the plaintiff to have placed upon the policy an endorsement protecting all parties in interest and while no obligation would have arisen even though the promise had been made if the plaintiff had done nothing, nevertheless when it assumed to perform a gratuitous service for the defendant it rendered itself liable if it negligently performed that service and the defendant suffered injury thereby.

The doctrine upon which this claim is based is firmly established in our law. Chancellor Kent, in Thorne v. Deas, 4 Johnson (N. Y.) 84, stated the rule thus:

“By common law a mandatary or one who assumes to do an act for another without reward is not answerable for omitting to do the act and is only liable where he attempts to do it and does it amiss. In other words, he is liable for misfeasance but not for non-feasance.”

In the case of LaBrasca v. Hinchman, 81 N. J. L. 367; 79 Atl. Rep. 885, the court states the same principle in the following language:

“If a party makes a gratuitous engagement and actually enters upon the execution of the business and does it amiss through want of duo care, by which damage ensues to another, an action would lie for misfeasance.”

To the same effect see Nilsson v. Abruzzo, 107 N. J. L. 327; 153 Atl. Rep. 486, decided in 1931.

Applying this principle to the state of facts set up in the counter-claim supported by the defendant’s affidavit, it would appear that if a jury should find there existed the alleged agreement on the part of the bank through the action of its officers or agents that it would have the policy endorsed to see that the interest of everyone would be properly protected, and that in so doing months afterward it had only the interest of itself protected and failed to have the interest of the defendant included, then it might properly be found guilty of misfeasance and liable to the defendant therefor.

The motion to strike the counter-claim will be denied.


author: Jayne, S. C. C.

text:
    CARMINE DeSANTIS AND AGNESE DeSANTIS, PLAINTIFFS, v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, A CORPORATION OF THE STATE OF PENNSYLVANIA, AND BOARD OF PUBLIC UTILITY COMMISSIONERS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY ET AL., DEFENDANTS.
    Decided January 9, 1933.
    Por the motions, William A. Stevens, attorney-general, for the state highway commission; John A. Bernhard, for public utility commissioners.

      Contra, Clarence A. Ward, for the plaintiffs.
   Jayne, S. C. C.

To summarize the material allegations of the lengthy complaint in the above-entitled action, it may be said that the plaintiff Carmine DeSantis alleges that on May 15th, 1928, he was and continues to be the owner of certain premises situate on Springfield avenue, in the borough of New Providence, Union county, New Jersey, upon which he had erected a building containing many stores, from the rental of which he received a substantial income. He complains that in the spring and summer of 1932, the defendant Delaware, Lackawanna and Western Railroad Company, “with the consent, permission, approval and order” of the defendants the Passaic and Delaware Railroad Company, the borough of New Providence, board of chosen freeholders of the county of Union, board of public utility commissioners of the State of New Jersey and the state highway commission of the State of New Jersey, in the elimination of a grade crossing in that vicinity, made such physical changes in Springfield avenue in front of his premises as to detrimentally interfere with the previous access to his property, and that as a result of the construction of a tunnel and the erection of certain fences at that location incident to the elimination of the crossing, the value of his land and the building thereon has been materially depreciated. The plaintiff avers that the defendants have thus rendered Springfield avenue unavailable for public travel in front of his premises and have, moreover, taken possession of a part of his lands for which they have failed and neglected to compensate him. The complaint asserts the claim that the plaintiffs, Carmine DeSantis and Agnese DeSantis, his wife, have, in consequence of the acts so alleged, sustained special injury in the circumstances and they demand damages.

The complaint contains ten counts, and the allegations hereinbefore generalized are made part of each count. The eighth count is intended to state the cause of action of the plaintiff Carmine DeSantis, against the board of public utility commissioners. The ninth count contains the averment of this plaintiff against the state highway commission. The tenth count declares the interest of the plaintiff Agnese De-Santis in the property so alleged to have been damaged and embraces the allegations of all the other counts of the complaint in support of her claim for damages.

A motion is made in behalf of the board of public utility commissioners to strike out the complaint against this defendant. A like motion is made in behalf of the state highway commission. Several reasons are assigned in support of the respective motions which present the contentions, first, that the complaint fails to allege a cause of action against these two defendants, and secondly, that these two defendants are each agencies of the State of New Jersey and that an action cannot be prosecuted against them without the consent of the state.

An examination of the complaint discloses that the plaintiffs allege that the board of public utility commissioners and the state highway commission are municipal corporations. Not so. The complaint alleges that the acts which resulted in damage to the property of the plaintiffs were committed by the Delaware, Lackawanna and Western Railroad Company, and that such acts were committed by the railroad compny “with the consent, permission, approval and order” of the other defendants, including the board of public utility commissioners and the state highway commission. Turning to the eighth count of the complaint, which is intended to allege the cause of action of the plaintiffs against the board of public utility commissioners, it will be observed that the liability of this defendant is alleged to rest upon an order made by this board on June 17th, 1931, by which the board confirmed and ordered the elimination of the grade crossing and agreed that the State of New Jersey should bear fifty per centum of the cost of the work so performed and of any damages to adjacent property resulting from such work. The order of the board of public utility commissioners of June 17th,-1931, to which reference is made in the eighth count, is not a part of the complaint, but a certified copy of this order was produced at the argument of these motions and it was understood by all counsel that the order should be considered in the determination of these motions in the same respect as if the order formed a part of the complaint. It therefore becomes apparent that the order made by the board of public utility commissioners on June 17th, 1931, represents the final determination of the public utility commissioners in a proceeding under the provisions of chapter 101 of the laws of 1930. The proceeding, therefore, under the provisions of this statute, related to the elimination of a railroad grade crossing in which a public highway other than a state highway and the tracks of a railroad cross each other at the same level. Pamph. L. 1930, p. 347. The highway was obviously, from the information gathered from the complaint and the order, not a state highway, and accordingly the allegation set forth in the ninth count of the complaint that the state highway commission, by virtue of these proceedings and by virtue of the statutes of this state, became obligated to pay fifty per centum of the cost of the work, including damage to adjacent property, constitutes the assertion of a conclusion which is unsupported by the facts alleged in the complaint and is untenable in law.

It may be contended, however, in behalf of the plaintiffs that the complaint is sufficiently broad in its allegations to comprehend the charge that these two defendants participated in the commission of acts of trespass upon the property of the plaintiffs to the damage of the plaintiffs. The complaint conspicuously discloses that any alleged participation on the part of the public utility commissioners and the state highway commission in the elimination of this grade crossing was in the performance of a duty of a public character, and the counsel for the plaintiffs points to no legislation which, in modification of the well-settled rule, affords the plaintiffs a right of action in such circumstances.

However, the defendants board of public utility commissioners and state highway commission are undoubtedly stare agencies. Board of Tenement House Supervision v. Schlechter, 83 N. J. L. 88; 83 Atl. Rep. 783; Stephens v. Commissioners of Palisades Interstate Park, 93 N. J. L. 500; 108 Atl. Rep. 645; Nesbitt v. Board of Managers of New Jersey Agriclultural Experiment Station, 10 N. J. Mis. R. 19; 157 Atl. Rep. 551. In this situation, an action against these defendants is in substance and in effect an action against the State of New Jersey. It is an established principle of our law that the sovereign state cannot be sued in its own courts without its consent. The right to prosecute an action against the state must be founded upon permission and consent, and counsel for the plaintiffs in this action fails to indicate any statute which warrants the prosecution of this action. It is contended that the authority for this action is inferentially granted by the legislature as a result of the enactment of chapter 101 of the laws of 1930. This contention is in conflict with the equally well settled principle of law that no public right can be taken away or protection of sovereign rights surrendered by mere inference or legal construction. Moreover, it may be said to be a fundamental rule of construction that what is not clearly granted by the state is withheld. Accordingly, the statute to which reference is made does not grant the requisite consent to owners of private property to maintain an action against these state agencies to recover special damages occasioned by the performance of public duties.

Accordingly, the motion made in behalf of the board of public utility commissioners to strike out the eighth count and the tenth count of the complaint, intended to allege a cause of action against this defendant, is granted and the motion made in behalf of the state highway commission to strike out the ninth count and tenth count as against this defendant is likewise granted.


author: Reger, J.

text:
    Somerset Orphans Court.
    IN THE MATTER OF THE ESTATE OF MERCIE J. YOUNG, DECEASED.
    Decided November 29, 1932.
    For the executors and first cousins, Hugh K. Gaston.

    For the second cousins, Peer & Mohr, Byman Herr and Arthur I. Robinson.

   Reger, J.

The final account of the executors of the last will and testament of Mercie J. Young, deceased, was passed and allowed by this court on September 30th, 1932, and a petition is now presented to the court for an order of distribution of the residue of the estate of decedent.

From the stipulation of facts filed, it appears that there remains in the hands of the executors to be disposed of under the residuary clause of said will, the sum of $13,769.39, and that the testatrix left her surviving no brother or sister, nor the issue of a brother or sister, no father or mother, no uncle or aunt, but that she left her surviving seventeen first cousins on the paternal side and one first cousin on the maternal side, and that she also left her surviving a number of children of deceased first cousins and others who were related in a more remote degree than first cousins, in all, thirty-seven persons in addition to the eighteen first cousins.

The determination of the questions raised by this application requires a construction of the residuary clause of the will of decedent, which reads as follows:

“All the rest, residue and remainder of my estate I give,, devise and bequeath to my next of kin to be divided between them equally as nearly as may be, share and share alike.”

The principal question presented is: Do the first cousins-take under this bequest to the exclusion of those related in. a more remote degree?

On behalf of the first cousins it is contended that the-phrase “next of kin” should be construed as meaning the-nearest in blood to the decedent; while on behalf of the-other relatives it is claimed that the phrase should be construed to mean those who in cases of intestacy take under the-New Jersey statute of distribution.

The particular section of our statute of distribution which it is claimed should control the distribution reads as follows:

“If there be no husband or widow, child or any legal representative of any child, nor a parent, brother or sister, nor the representative of a deceased brother or sister, then all of the estate to be distributed equally to the next of kindred, in equal degree, of or unto the intestate and their legal representatives as aforesaid.” Pamph. L. 1918, ch. 63, p. 181.

Apparently the appellate courts of New Jersey have not construed the words “next of kin” standing alone and unqualified in a bequest by will of personal property, but the question has been passed upon by the courts of other states in this country and by the English courts. There is- a hopeless conflict of authority in the decisions of these courts.

One line of cases hold that the words “next of kin” mean the nearest blood relations according to the law of consanguinity, and another line of cases hold that the words “next of kin” mean those entitled to take under the statutory distribution'of intestate estates.

In support of the rule last mentioned it is argued that the words “next of kin” have acquired a technical meaning; that that technical meaning requires distribution according to the statute regardless of whether they be in fact nearest of kin, and that these words must be construed to have been used in this technical sense rather than in their popular and ordinary sense.

Support for this argument is found in several eases cited from other jurisdictions.

Among these cases are: Slosson v. Lynch, 43 Barb. (N. Y.) 147; Murdock v. Ward, 67 N. Y. 387; Luce v. Dunham, 69 Id. 36; Tillman v. Davis, 95 Id. 17; New York Life Insurance Co. v. Hoyt, 161 Id. 1; New York Life Insurance Co. v. Winthrop, 237 Id. 93; Godfrey v. Epple, 100 Ohio St. 447; Close v. Benham, 97 Conn. 102.

In view of the numerous decisions that next of kin is synonymous with nearest of kin, it would appear from a careful reading of the cases above cited that the meaning attributed to the words next of kin in some of these cases is a forced and strained construction to meet the exigencies of the particular case and to prevent those relatives by blood or marriage from being disinherited who would ordinarily have been the natural objects of testator’s bounty and who if he had died intestate would have shared in his estate.

It is a well-recognized rule of construction that all words contained in a will must be given effect so far as possible; that doubts must be resolved in favor of the testator having said what he meant; and that when words are plain and clear when read in their ordinary sense, they must control. Kutschinski v. Sheffer, 109 N. J. Eq. 659; 158 Atl. Rep. 499; Woodruff v. White, 78 N. J. Eq. 412; 79 Atl. Rep. 304.

As was said by Vice-Chancellor Garrison in the case last above cited “the words used in a will must be taken in their natural meaning; the court is called upon to construe what the testator has said and not to supply language, and thereby make him say what he did not say.”

If it be conceded that technical terms used in a will must be given their technical meaning I am unable to find that the words “next of kin,” when used in a bequest, have acquired any technical meaning in New Jersey other than what the words themselves import.

“Next” means nearest. “Kin” means blood relationship. Next of kin, therefore, means nearest blood relations. 2 Jarm. Wills (5th ed.) 643.

In the ease of Swasey v. Jaques, 144 Mass. 135, Judge Field, speaking for the court, said: “It is certainly difficult to distinguish between the expressions ‘next of kin,’ ‘nearest of kin,’ ‘nearest kindred’ and ‘nearest blood relations,’ and primarily the words indicate the nearest degree of consanguinity and they are perhaps more frequently used in this sense than in any other.”

In the leading English case of Elmsley v. Young, 2 Myl. & K. 780, it was held that the phrase next of kin in an indenture of trust, applied to the next of kin in the stricted sense of the term including persons entitled by representation under the statute. In this case Lord Cottenham said: “If next of kin means those who would take under the statute, it must include in many cases those who are not next of kin.”

This same principle was laid down by the House of Lords in the case of Withy v. Mangles, 10 Cl. & F. 215, and settled the question in England.

In Clark v. Meck (Mich.), 28 L.R. A. 479, it was held that under a bequest to nearest of kin of testator, his brothers and sisters take to the exclusion of children of deceased brothers and sisters. The finding of the court was expressed in the opinion as follows:

“In the absence of a contrary intent a gift to next of kin is a gift to the nearest of kin in the strictest sense, excluding persons who, under the statute of distribution, would be entitled to take by representation.”

To the same effect are the following cases in other jurisdictions: Leonard v. Haworth, 171 Mass. 496; 51 N. E. Rep. 7; Larson v. Chicago, &c., 160 Ill. App. 247; De-Graffenreid v. Iowa Land & T. Co., 20 Olka. 687; 95 Pac. Rep. 624; Hearn et al. v. Hastings et al. (Del.), 152 Atl. Rep. 129; Morse v. Lowe, 182 Mich. 607; 148 N. W. Rep. 970; Redmond v. Burroughs, 63 N. C. 242; Smith v. Egan, 258 Mo. 569; 167 S. W. Rep. 971; Arm. Cas. 1915D, 723.

In New Jersey, Vice-Chancellor Backes, in the case of Barrett v. Egbertson, 92 N. J. Eq. 118; 111 Atl. Rep. 326, construed the words “next or nearest of kin on my father’s side” to mean the class nearest in blood. In the opinion of the vice-chancellor he said:

“A gift to ‘next of kin/ simpliciier, has not received judicial consideration by the courts of this state. In England, after a long struggle, it was finally decided in favor of the civil law acceptation, as against the definition of the statute of distribution, that ‘next of kin’ means the class nearest in blood. Elmsley v. Young, 2 Myl. & K. 780; Withy v. Mangles, 10 Cl. & F. 215. In this country, Massachusetts, in Swasey v. Jaques, 144 Mass. 135; Fargo v. Miller, 150 Mass. 225; Keniston v. Mayhew, 169 Mass. 166; Leonard v. Haworth, 171 Mass. 496; North Carolina, in Jones v. Oliver, 38 N. C. 369; Simmons v. Gooding, 40 N. C. 382; Harrison v. Ward, 58 N. C. 236; Redmond v. Burroughs, 63 N. C. 242; Michigan, in Blark v. Mack, 161 Mich. 545; 126 N. W. Rep. 632; Missouri, in Smith v. Egan, 258 Mo. 569; 167 S. W. Rep. 97; New Hampshire, in Galloway v. Babb, 77 N. H. 259; Maryland, in Graham v. Whitridge, 99 Md. 248, 289, follow the English rule of construction.”

After referring to some of the New York cases hereinbefore cited he said by way of dictum:

. “Were I called upon, in the case at hand, for an opinion upon this sharp point, I would be troubled to accept the New York doctrine, for the primary conception of ‘next of kin’ is the class nearest of blood, and such is the language of the statute, ‘to the next of kin in equal degree/ following the rule of the civil law, which is modified by letting into the distribution a remoter degree, not, however, advancing that degree. And to impute to a testator an intention to import into the class of nearest in blood others who are not, without something in the will indicating that intent, would be to write, not to construe, the will. Dufy v. Hargan, 62 N. J. Eq. 558; 50 Atl. Rep. 678. A bequest to ‘my next of kin’ according to the laws of New Jersey, is an illustration of such intention. The North Carolina and Michigan cases argue along this line with impressionable force.”

In Locke v. Locke, 45 N. J. Eq. 97; 16 Atl. Rep. 49, Vice-Chancellor Bird held a bequest to “nearest relatives” to mean brothers, to the exclusion of nephews and nieces. He said: “When a testator uses plain everyday English to express his meaning there cannot be any risk of doing violence to his understanding of it by taking him at his word.”

Nor do the words as used in the statute of distribution import any different meaning than those who are in fact next of kin. The language of the New Jersey statute is “next of kindred of equal degree of or unto the intestate and their legal representatives as aforesaid.” The use of the phrase “and their legal representatives” shows that the legislature recognized the distinction between those who were next of kin and those who were of more remote kinship and who are termed their “legal representatives.” So that to hold that the testatrix in this ease by using the phrase next of kin meant to include not only the next of kindred but their legal representatives as well, would be to give the words a technical meaning not recognized by the statute.

“In Redmond v. Burroughs, 63 N. C. 242, in which it was argued that ‘next of kin’ are technical words used in the statute of distributions, and so must be given such signification, rather than as meaning nearest'of kin, it is said: “If next of kin were the technical words so used in the statute, it would be difficult to resist the argument. But there lies the error. Next of kin are not the words used in said statute to denote those who take. If they were, then only the living nieces and nephews would take as being next, nearest of kin, as between them and the children of deceased nieces and nephews. But the words used are not ‘next of kin’ but next of kin who are equal in degrees, and those who legally represent them. It will be seen, therefore, that to bring the terms used in the will within the technical words used in the statute of distributions, the words ‘and those who legally represent them’ would have to be added. "We are of the opinion that the terms used in the will, ‘next •of kin,’ mean ‘nearest of kin,’ and that the living nieces and •nephews take to the exclusion of the legal representatives of .deceased nieces and nephews.”

Nor do I find that the decisions of our New Jersey courts have given them such a technical meaning when appropriately used in a will in a bequest of personalty.

There is a line of cases in New Jersey holding that where a testator directs his estate to be divided among his heirs .and the estate consists wholly or in part of personal property, that the word heirs will be construed to mean the next of kin in the sense of distributees under the statute of distribution. Meeker v. Forbes, 84 N. J. Eq. 271; 93 Atl. Rep. 887; Trenton Trust and Safe Deposit Co. v. Donnelly, 65 N. J. Eq. 119; 55 Atl. Rep. 92; Welsh v. Crater, 32 N. J. Eq. 177; Scudder v. Van Arsdale, 13 N. J. Eq. 109.

It is vigorously contended by counsel for second cousins that because our courts have construed the word “heirs” when used in connection with a bequest of personalty to mean distributees under the statute of distribution that the words “next of kin” should be so construed. But this does not necessarily follow. Webster defines the word heir to mean:

“One who receives, inherits, or is entitled to succeed to the possession of any property after the death of its owner; one in whom the title to an estate vests on the death of the proprietor; one on whom the law bestows the title or property of another at the death of the latter.”

Bouvier’s definition is:

“He who is born or begotten in lawful wedlock, and upon whom the law casts the estate in lands, tenements, or hereditaments immediately upon the death of his ancestor. Thus, the word does not strictly apply to personal estate.” 1 Bouv. Dict. 746.

So that the courts in construing the word heirs in a bequest ■of personalty are forced to interpret the term as denoting those in whom the law vests that kind of property, namely, those who take personalty under the statute of distribution in cases of intestacy; and, where the property to be disposed •of is real estate, to interpret the term as meaning those who take under the statute of descent.

So while our courts have interpreted the word “heirs,” when used in a bequest of personal property, as equivalent do next of kin, what they mean is that the word heirs in a bequest of personal property will be construed to mean those who are entitled to take under the statute of distribution. This is clearly indicated by Mr. Justice Dixon, in speaking for the Court of Errors and Appeals in the case of Leavitt v. Dunn, 56 N. J. L. 309; 28 Atl. Rep. 590, Mr. Justice Dixon said in that case, referring to the term “heirs:”

“In New Jersey the word has quite uniformly been construed according to the nature of the property dealt with and without much regard to whether it was used in designating original or substituted beneficiaries. When employed in the disposition of personal property it has been generally deemed to indicate the persons appointed by the statute to succeed to such property, citing Scudder v. Van Arsdale, 13 N. J. Eq. 109; Welsh v. Crater, 32 Id. 177; S. C., on appeal, 33 Id. 362; Hayes v. King, 37 Id. 1; Ward v. Dodd, 41 Id. 414; Reen v. Wagner, 51 Id. 1; 26 Atl. Rep. 467. In the opinions delivered in these cases, the phrase 'next of kin’ is frequently used by the judges as their synonym for the word 'heirs’ in the disposition of personal property, but what they mean by the phrase is not merely the nearest kinsman, but the distributees under the statute, including both the widow and those who, by the statute, may represent deceased kinsmen.”

That construction is required because the word heirs has been in such cases inappropriately used and there being doubt as to the testator’s intention it is deemed as most likely to carry out the testator’s intention to construe it as a gift to those who would take under the statute. However, if the meaning of the words used by a testator is clear and the words of gift are appropriately used then no forced construction is necessary.

The language of the testatrix in making this bequest is evidential to my mind, too, that she used the term next of kin in its primary sense. She directs the residue of her estate to be divided between her next of kin equally as nearly as may be, share and share alike. This language, if distribution were to be made to all those comprehended by the phrase in the statute “next of kindred in equal degree and their legal representatives/’ would seem to require an equal division of the residue among the first cousins and the more remote kin, per capita and not per stirpes. Scudder v. Van Arsdale, 13 N. J. Eq. 110; Welsh v. Crater, 32 Id. 174.

In the case of Schenck v. Vail, 24 N. J. Eq. 538, in the leading case on the descent of real property, our Court of Errors and Appeals construed the New Jersey Statute of Descent which provided that under certain contingencies, if the deceased shall “leave several persons all of equal degree of consanguinity to the person so seized, the said lands shall descend and go to the said several persons of equal degree of consanguinity to the persons so seized, as tenants in common, in equal parts, however remote from the person so seized the common degree of consanguinity may be,” &c.

In the argument before the court in that case it was contended that under this statute second cousins were entitled to share in the real estate of decdent with first cousins. Chief Justice Beasley, speaking of this contention, said:

“The statute calls for a distribution in equal parts between ‘said several persons.’ The proposed doctrine requires a division partly between persons and partly between stocks. The inheritance is to go, stirpes. But how does this fulfill the statutory requirement of an equal division among persons? If the estate distributively to two first cousins, and the third passing to the three children of a deceased first cousin, can it be said, with the least propriety of speech, that this is a division between several persons in equal parts? To dispense the property evenly between a number, some taking severally, and others, as a class, taking a single share jointly, would be an equal division; but, just as certainly, it would not be an equal division among individuals. This plaint direction of the statute cannot be rejected.”

While the court was there construing a statute the reasoning is equally applicable to the construction of the clause in the will now under consideration.

It is hard to believe that the testatrix intended that the more remote kin should share equally with the first cousins, in other words, that the residue should be divided into fifty-five parts. Those more remote than first cousins could hardly be said to be the natural object of a testator’s bounty. Frequently second and third cousins are hardly known to the ancestor.

The direction of the testatrix that the residue of her estate should be divided equally between her next of kin share and share alike, tends to convince me that she did not intend that it should be distributed to kinsmen more remote than those who were her next or nearest of kin.

All doubts should be resolved in favor of the testatrix having said what she meant. Marshall, Executors, v. Hadley, 50 N. J. Eq. 547; 25 Atl. Rep. 325; Barnett v. Barnett, 30 N. J. Eq. 595; Kutschinski v. Sheffer, 109 Id. 659; 158 Atl. Rep. 499.

The recognized fact that the will of Miss Young was drawn by counsel learned in the law, who did not see fit to use the words of the statute, next of kindred in equal degree and their legal representatives, and who did not in the draft of the bequest refer either specifically to the statute of distribution, or generally to the laws of New Jersey, is another indication that it was not the intention that distribution should be made under the statute.

A decree will be made directing distribution to the first cousins living at the date of death of the testatrix, and to the personal representatives of any first cousins who have died since the date of death of the testatrix.


author: Smith, C. C. J.

text:
    SINGAC TRUST COMPANY, A STATE BANKING INSTITUTION NOW IN LIQUIDATION, PLAINTIFF, v. CHARLES SOSCHIN AND ETTA SOSCHIN, DEFENDANTS.
    Decided January 12, 1933.
    For the plaintiff, John Milton (Anthony T. Augelli, of counsel).
    For the defendants, Israel B. Greene.

   Smith, C. C. J.

The plaintiff sues the defendant to recover on a promissory note dated October 27th, 1930, in the sum of $3,350 payable two months after date at the Singae Trust Company, and made by the defendant Charles Soschin and endorsed by him and by Etta Soschin, his wife. This note upon its due date, December 29th, 1930, was duly protested, and notice of protest mailed to both defendants addressed to 331 Main Street, East Orange, New Jersey.

The defendant Charles Soschin filed a petition in bankruptcy on October 16th, 1930; was adjudicated a bankrupt on that date and was discharged as a bankrupt on the 19th day of January, 1931. The note of October 27th, 1930, which was given after the adjudication in bankruptcy and before the discharge, was a renewal of a note given previous to the filing of the bankruptcy petition and the adjudication thereon. The renewed note was given by the defendant Charles Soschin individually and was not endorsed by his wife, Etta Soschin.

The original note was for $3,450, and at the time of the making of the note sued on $100 was paid, reducing the indebtedness to $3,350, and the defendant wife, Etta Soschin, endorsed the note. Subsequently, on April 27th, 1931, an additional $25 was paid on account of the note, leaving due thereon the sum of $3,325 together with protest fees of $2.24 with interest from December 29th, 1930.

As to Charles Soschin, the defense is set up that he is discharged by his bankruptcy from the obligation upon the note sued on. He was indebted previous to the adjudication upon a promissory note made to the Singac Trust Company. He then filed a petition in bankruptcy and was adjudicated a bankrupt and subsequently he executed a new note to the order of the plaintiff and paid $100 on account, and the defendant wife, Etta Soschin, endorsed this renewal note. Subsequently the defendant Charles Soschin was discharged as a bankrupt and thereafter a payment of $25 was made on account of the note. It is urged that the note sued on is a renewal of the old indebtedness and is not a new debt. As to this I agree with the defendant’s contention. The new note was merely a renewal of the old. The right to collect a dividend against the bankrupt’s estate remained in the plaintiff, and there is no evidence before me that the parties agreed that this new note should be a discharge of the obligation under the old.

It is urged on behalf of the defendant maker of the note that his discharge in bankruptcy from the original indebtedness discharges his liability upon this note. It is claimed in his behalf that during the period between the adjudication and the discharge the bankrupt cannot agree to remain bound for a debt which is dischargeable by his bankruptcy. This contention I must sustain, because that seems to be the holding of our Court of Errors and Appeals in the case of Holt v. Akarman, 84 N. J. L. 371; 86 Atl. Rep. 408, and followed by our Supreme Court recently in the case of Blade v. Yanowsky, 8 N. J. Mis. R. 221; 149 Atl. Rep. 345, those cases holding that it is a clear policy of the legislature as expressed in tlie eighth section of the act relating to frauds and perjuries that a promise to pay a debt dischargeable in bankruptcy must be made in writing, and that act applying only to promises made after the discharge, the court holds by implication that the statute means that the debt cannot be revived by a promise either orally or in writing before the discharge. These holdings are contrary to the views held by the United States Supreme Court, as set forth in the case of Zavello v. Reeves, 227 U. S. 625. See, also, note to Federal National Bank v. Koppel, 148 N. E. Rep. 379, as reported in 40 A L. R. (Anno.) 1446. The federal rule is that the mere dischargeable obligation is sufficient to sustain a promise to pay a debt dischargeable in bankruptcy, and that the promise may bo made either between the time of the adjudication and the discharge, or after the discharge, and may be made orally or in writing.

I assume, of course, that the contention in this respect would be subject to the state law as to whether or not the promise should be in writing. But on the question of whether or not a promise, if in writing, made between the time of the adjudication and the time of discharge, revives the debt, it is my view that the federal rule is the correct one. But I feel bound by the decisions of our state and therefore hold that the note sued on is ineffective to revive the debt discharged by the bankruptcy because there is no legal consideration for such agreement.

As to the wife, in addition to the husband’s defense, she sets up the defense that she did not receive notice of protest, and that being an endorser she is thereby discharged.

The notice of protest was duly mailed and addressed to 331 Main street, East Orange, New Jersey, the place of the husband’s employment. The wife’s residence was 106 North Arlington avenue, East Orange, the same municpiality. The notice was not received. The address to which the notice was sent was the only one which the trust company had, and that was furnished to the notary. That address was given by the defendant husband, the one who delivered the note to the trust company. The mailing was not only a compliance with the statute, section 108, Negotiable Instruments act, as being mailed to the post office nearest the place of residence where the defendant was accustomed to receive her mail, but was in compliance with section 112 of the same act as being an exercise of reasonable diligence which, if complied with, dispenses with the necessity of the giving of the notice. See Liberty Title & Trust Co. v. Sweeten, 106 N. J. L. 313; 150 Atl. Rep. 422.

I therefore find that the defense that no notice of protest was given is not sustained. Judgment, however, must go in ’ favor of the wife on the ground that this renewal note being without consideration as to the husband, and the wife being an accommodation endorser, she cannot be held liable thereon. I therefore find in favor of both defendants.


author: Pee Cubtam.

text:
    JACOB WEISS, PLAINTIFF-RESPONDENT, v. NATHAN GROSS, DEFENDANT-APPELLANT.
    Submitted May 14, 1932
    Decided January 17, 1933.
    Before Justices Teenchakd, Case and Bbogan.
    For the appellant, Dubrow ■& Sellyei.

    For the respondent, David 8. Jacoby and Emil Stremlau.

   Pee Cubtam.

This is an appeal by the defendant below from a judgment of the District Court of New Brunswick in favor of the plaintiff rendered by the trial judge sitting without a jury.

The plaintiff sued for the recovery of a deposit paid by plaintiff to defendant on a written agreement for the purchase and sale of an automobile which was not delivered (first count) and upon an agreement to rescind the agreement of sale and return the deposit (second count).

The plaintiff admitted the making of the agreement for purchase, dated May 23d, 1929, which called for the delivery of a 6-80 Stearns Knight-Maroon automobile, year of make 1929. IJpon the trial plaintiff introduced evidence that defendant had represented the automobile to be delivered to bo a new car of the above model and not a second-hand one; that the automobile which the defendant tendered for delivery was a second-hand automobile, and that upon plaintiff’s objection the defendant agreed to rescind the contract and to return the deposit money, which was not done.

We think the court did not err (as defendant contends) in permitting plaintiff to answer the question as to whether he was to get a new or second-hand' car. The agreement contained nothing as to the cpndition of the automobile to be delivered, and it was therefore in this respect ambiguous. The language was applicable to a new or a used car. Dordoni v. Hughes, 83 N. J. L. 355; 85 Atl. Rep. 353; Auto Brokerage Co. v. Ullrich, 102 N. J. L. 341; 131 Atl. Rep. 901; Bantin v. Stanley Automobile Agency, 4 N. J. Mis. R. 325; 132 Atl. Rep. 500; Winfield v. Saunders, 6 N. J. Mis. R. 833; 142 Atl. Rep. 907.

We think there was evidence upon which the court could and did find for the plaintiff.

The judgment will be affirmed, with costs.


text:
    HYMAN DRUSKIN, TRADING AS WASHINGTON SERVICE STATION, PLAINTIFF-RESPONDENT, v. T. A. GILLESPIE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 14, 1932
    Decided January 17, 1933.
    Before Justices Then chard, Case and Brogan.
    Bor the appellant, Joseph Kahrs.

    Bor the respondent, Brown & Brown (Solomon Goldman, of counsel).
   Per Curiam.

This is an. appeal from a judgment entered by the trial judge sitting without a jury in the District Court of the First Judicial District of the county of Bergen. He entered judgment for the plaintiff for $400, i. e., $150 on the first count, $250 on the second count.

The state of the case shows that plaintiff was the lessee of land at the northeast corner of Liberty road and Washington avenue, in Bergenfield, upon which he conducts an automobile service station; that there were two entrances, one on Washington avenue and one on Liberty road, and the latter was open to traffic at all times; that on October 23d, 1931, the defendant company dug up the roadbed on Washington avenue north of Liberty road and closed Washington avenue to traffic under the authority of a permit issued by the county of Bergen for the laying of water pipes; that Liberty road was open at all times; that the dirt so dug up was piled along the edge of the road and on the sidewalk adjoining the road; the defendant contended that the dirt had been piled within the county easement and the plaintiff that the dirt was at least in part piled on his property; the court having found against the defendant consequently found that there was an actual encroachment on plaintiff’s premises; that on or about December 8th, 1931, Washington avenue was again opened to traffic and on that date the dirt was replaced in the roadbed.

Judgment was entered on the first count for exemplary or punitive damages for $150. We think that was wrong. The only testimony on this phase of the case was that there was “an actual encroachment on the plaintiff’s premises.” There was no proof of malice, or that the injury was inflicted in a spirit of malice, which is essential to a recovery of exemplary or punitive damages. Bullock v. Delaware, Lackawanna and Western Railroad Co., 61 N. J. L. 550; 40 Atl. Rep. 650.

Judgment was entered on the second count for $250 made up in large part of alleged loss of profits.

We are inclined to think that the evidence as to loss of profits was too remote, speculative and uncertain upon which to base a judgment for loss of profits as was done in this case.

In so far as the factor of gross business entered into the calculation, it is observed that the evidence in respect thereto related to a period of several years during which the business was constantly and greatly diminishing. True, the plaintiff testified that one-half of the business came from Washington avenue north of Liberty road, and one-half from Liberty road and Washington avenue south of Liberty road, but there was no evidence as to that except his naked statement, a statement which the physical situation seemed to negative, and which was obviously a mere guess and probably a mistaken one.

Our consideration of the whole case results in the conclusion that certainly the judgment must be reversed and a venire de novo awarded, the costs to abide the event. It is so ordered accordingly.