author: AinsEKSON, S. C. C.

text:
    HENRY SALZMAN AND MINNIE B. SOBEL (NEE MINNIE BISGAER), PLAINTIFFS, v. WILLIAM C. ROBINSON AND AMELIA ROBINSON, HIS WIFE, DEFENDANTS.
    Decided April 1, 1932.
    For the plaintiffs, Feld c(? Weiss.

    For the defendants, Levenson, Comen & Levenson.

   AinsEKSON, S. C. C.

This action was begun by attachment to recover upon a bond the deficiency resulting from the foreclosure of an accompanying mortgage under the provisions of an act entitled “An act concerning proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of mortgaged premises thereunder.” Pamph. L. 1880, p. 255; 3 Comp. Stat., p. 3420, and the supplement thereto ; Pamph. L. 1907, p. 563; 3 Comp. Stat., p. 3423.

The matter now comes before me upon a motion to strike out the joint answer filed by the defendants upon the ground that it is sham. The defendants have not filed any affidavits in support of their answer and at the argument of the motion necessarily conceded that the sufficiency of their entire answer depends upon the efficacy of the second and third separate defenses set forth in said answer.

These separate defenses .are interrelated and allege in substance 'that the plaintiffs did not file a notice of their intention to institute this suit, in accordance with the statute in such case made and provided, and that the notice alleged to have been filed in attempted compliance with said statute was defective and improper.

The notice referred to is required by section one of the above mentioned supplementary act {Pamph. L. 1907, p. 563; 3 Comp. Stat., p. 3423, § 51), which provides as follows:

“So judgment shall be entered by confession on any bond where a mortgage has or may hereafter be given for the same debt, or in any action on said bond unless prior to the entry of judgment, if same shall be by confession; or prior to the beginning of such action; if the proceedings be by action, there shall be filed in the offices of the clerk of Common Pleas except in counties where there is a register of deeds and mortgages, then in the office of the register of deeds and mortgages of the county in which the lands described in the mortgages given with such bonds are situate, a written notice of the proposed judgment or action setting forth the court in which it is proposed to enter such judgment or begin such action, the names of the parties to such bond and to such judgment or action, the book and page of the record of the said mortgage, together with a description of the lands or real estate described therein.”

It is not disputed that a notice was filed by the plaintiffs in the Bergen county clerk’s office where the lands described in the mortgage accompanying the aforesaid bond are situated. The only criticism directed against this notice by the defendants is that it states that an action is about to be commenced in the New Jersey Supreme Court, Passaic county, whereas the summons and complaint in this action are entitled in the New Jersey Supreme Court, Hudson county. It is, therefore, insisted that the notice is of no effect because the plaintiffs instituted suit in a county other than that set forth in their notice, and as the provisions of the above quoted statute are mandatory, this action cannot be maintained.

The difficulty with this contention is that it overlooks the fact that the foregoing statute merely requires the designation of the court in which it is proposed to begin the action, and not of the venue where the issues are to bo eventually tried by a jury. The notice in the case sub judice designates the New Jersey Supreme Court as the forum in which the action is to be brought. The words “Passaic county,” added thereto, merely designated the venue where the actual trial will be held, and this may be changed by the court at any time. 3 Comp. Stat., p. 4115, § 203. There is only one Supreme Court in this state, and all papers in all actions therein, wherever the venue is laid, must be filed with the clerk of said, court at Trenton, who, at the appropriate time, sends a transcript of all pleadings to the county,where the venue is laid for use at the trial. The lien of a judgment therein is effective throughout the state, so that notice that an action is to be brought in the New Jersey Supreme Court when filed in the proper county, would be effective notice to any title searcher examining the records of that county with respect to lands situated therein.

The defendants rely upon the cases of Penn Co. v. Marcus, 95 Atl. Rep. 766, and Neu v. Rogge, Ibid. 632, to sustain their contention. Neither of these cases is in point however. In the first the notice filed failed to set forth any court in which it was proposed to enter the judgment. In the second case no notice at all was filed before instituting suit, and after judgment by default had been entered and motion made to open same, it was held that such notice could not be filed nunc pro tunc. In the instant case, as already noted, the court in which it was proposed to institute this action was designated, but the venue where it was proposed to have the trial take place was stated to be in a county different from that mentioned in the complaint filed in said court.

That such a situation would not militate against the legal effectiveness of the notice filed is apparent when we consider the object which the legislature had'in view in providing for a lis pendens in such cases. Section 3 of the act of 1880, supra, provides in effect, that upon the entry of judgment for the deficiency on the bond, such judgment automatically opens up the foreclosure decree and sale thereunder, and gives the judgment debtor the opportunity to redeem by paying in full the amount for which the decree was rendered, &c., provided he brings suit for redemption within six months after the entry of such judgment against him. Such a situation made the titles to mortgaged lands purchased under foreclosure sales uncertain and precarious; for, under the act of 1880, there was nothing to prevent an action from beiiig commenced and a judgment entered, not only in the court oí the county where the lands is situated, but in the Supreme Court, or in any County Court or District Court, if within its jurisdictional amount, or even in a foreign jurisdiction, and hence a prospective purchaser might find nothing on record effecting the property in the county where the land is situated, and thus such purchaser, though he exercised the greatest diligence and caution, might be led into the purchase of a defeasible title. And this is the main evil which the aforesaid supplementary act of 1907 (Pamph. L. 1907, p. 563; 3 Comp. Stat., p. 3423), requiring notice of Us pendens to be filed in the county where the lands are located, was intended to remedy. Neu v. Rogge, supra. Undoubtedly the notice in the instant case, having been filed in the county where the land in question is situated, and designating the court in which this action was actually begun, sufficiently complied with the purpose of the last mentioned act, even though the complaint in this action designated a different county for the trial of the issues involved than that stated in the notice of Us pendens.

The defendants’ answer will, therefore, be stricken out as sham, and an order may be presented in accordance with the conclusion thus reached.


source: Caselaw Access Project

author: Ackerson, S. C. C.

license: Public Domain

text:
    MORRIS PEARLMAN, WILLIAM REGER, PEARL ALBERTS, BETTY PEARLMAN, JOSEPH PEARLMAN AND MINNIE PEARLMAN, PLAINTIFFS, v. FRANK TRUPPO, DEFENDANT.
    Decided April 1, 1932.

      For the plaintiffs, Pearlman <& Pearlman.

    For the defendant, Carey & Lane.

   Ackerson, S. C. C.

This action is to recover damages resulting from a collision between the automobile of the plaintiff Morris Pearlman and that of the defendant, Frank Truppo. A discontinuance has been entered as to all the plaintiffs except Pearlman. The defendant, Truppo, now moves for leave to file an amended answer so as to include a fifth separate defense of res adjudícala arising out of the circumstance that one, Helen Lerman, a passenger injured in Pearlman’s car at the time of the collision, having heretofore sued both Lerman and Truppo as co-defendants, recovered a judgment against Lerman alone, but judgment of nonsuit was entered in favor of Truppo, the present defendant. The latter, therefore, insists that such judgment is res adjudícala upon the question of his liability for negligence in the present action.

In the former action no counter-claim or cross-pleading was'filed by either defendant as against the other. The plaintiff therein, Helen Lerman, charged that the accident was caused by the negligence of both Pearlman and Truppo. They each filed separate answers denying liability and claiming the accident was caused by the negligence of the other defendant or some other person.

It is fundamental and universal that the former judgment proffered as res adjudícala in a subsequent suit must have been rendered in an action in which the parties to the subsequent suit were adverse parties. What is meant by adverse parties scarcely needs definition. Its significance is apparent from the expression itself. They must be opposite parties to an issue between them. The issue must be proffered by one and controverted by the other. They must be arrayed on opposite sides of the issue which must be raised by appropriate cross-pleadings between the defendants themselves, so that each may have control of the proceedings to enable him to exhaust the question of liability inter sese. It is not enough that they, by their separate answers, deny liability and claim that the accident was due to the negligence of the other as such pleading only goes to answering the claim of the plaintiff and tenders no issue to which the other defendant may demur or reply to or join issue upon so as to settle the liability one to the other. Bakula v. Schwab et al. (Wis.), 168 N. W. Rep. 378; Merrill v. St. Paul City Railway Co., (Minn.), 212 Id. 533; Snyder v. Marken, 116 Wash. 270; 199 Pac. Rep. 302; 22 A. L. R. (Anno.) 1272; Self v. International Railway Co., 230 N. Y. Supp. 34; Pullman v. Greater Eagle Wet Wash Laundry Co., 243 Id. 55; Erie Railroad Co. v. Muffalo, &c., Traction Co., 221 N. Y. Supp. 680; affirmed, 246 N. Y. 625; 159 N. E. Rep. 677; Trotter v. Klein, 249 N. Y. Supp. 20; Westfield Gas & Mill Co. v. Noblesville & E. Gravel Road Co., 13 Ind. App. 481; 55 Am. St. Rep. 244; 41 N. E. Rep. 955; Wiltrout v. Showers, 118 N. W. Rep. 1081.

In the case of Baleula v. Schwab et al., supra, the court in considering who are adverse parties said:

“There was no issue between Schwab and Wilkenson” (co-defendants in a tort action). “The plaintiff was endeavoring to hold both. It was the endeavor of each to escape liability to the plaintiff. Each might have sought to escape this liability by fastening the blame upon the other, but in no other sense were they adverse parties. Schwab did not have control of the proceedings to enable him to exhaust the question of Wilkenson’s liabilitj7.”

In Merrill v. St. Paul City Railway Co., supra, the court in discussing the same question in a tort action, where two parties had been joined as co-defendants, said:

“Each” (defendant) “answered, denied negligence, and claimed the other’s negligence was the proximate cause of plaintiff’s injuries. The defendants offered evidence to sustain their respective claims. But why? Because they were offering matter in defense of plaintiff’s claim. The only issue is between plaintiff and each of the defendants, who were made parties at the will of plaintiff, who could have dismissed as to either*, and the other could not have been heard to complain. The co-defendant were not, in law, adverse parties simply because they were not by the pleadings arrayed on opposite sides. The fact that, each sought to escape liability by attempting to fasten the blame upon the other does not make them adverse parties.”

The case of Trotter v. Klein, supra, is directly in point. The judgments relied upon as res adjudicata were recovered in a former suit brought by passengers in an automobile involved in a collision with another car against the drivers of the respective cars. In the course of the opinion the court said:

“The judgments in the actions by the passengers against the plaintiff, and the defendant, in the instant case, who were parties defendant in the former actions, are not admissible as evidence in this action, and the judgments are not res adjudicata as to the issues involved in the instant case. While in the action by the passengers the parties here were sued as joint tort feasors, the issues involved were between the plaintiffs in those actions there were neither pleadings nor issues litigated as between the two defendants. The judgments in those actions did not determine as between the plaintiff and the defendant in this action the negligence of the latter and the freedom of negligence of the former. Such issues were neither presented nor litigated. Neither of the plaintiffs in the former actions is a party to the present action, and the question litigated in each of those actions was the negligence of either or both the defendants toward the plaintiff. There was not involved the issue as to the negligence of either defendant toward the other. They were not obligated in the former trials to establish their claims as against one another. The possibility that in this action a result may be obtained which will be inconsistent with the judgments in the former actions has no bearing upon the question involved.”

It seems to me that an important element which negatives the application of the doctrine of res adjudicata in the case sub judice, is the fact, that under the pleadings in the former action, neither defendant was in a position to control the proceedings so as to establish any rights as against the other. They were both made parties at the will of the plaintiff who might have dismissed the suit as to one and the other could not have complained. The plaintiff might have favored one defendant over the other without recourse. It is, of course, true that under section 12 of the Practice act of 1912 {Pamph. L. 1912, ch. 231, p. 379), the parties to this action might have raised the issue of liability as between themselves in the former suit, by means of a counter-claim, but they were not obliged to do so, as the plain terms of that section make such a course permissive and not mandatory.

It is apparent, therefore, that the remaining parties in the present action were not adverse parties in the former action in which they appeared as co-defendants, and that the judgment therein is not res adjudicata in the instant case. This is even more apparent when we consider that one of the essential elements to constitute res adjudicata is a right of appeal from the judgment. Merrill v. St. Paul City Railway Co., supra. It is settled in this state that where two defendants are charged as joint tort feasors, and one is discharged, even if erroneously, the other is not entitled to urge the error by an appeal, the question being whether he himself is liable and not whether the other defendant is, in the absence of any counter-claim or cross-pleading, raising the issue of liability as between the defendants themselves. Rose v. Squires, 101 N. J. L. 438. So in the instant case the plaintiff, Pearlman, had no right to appeal from the judgment of nonsuit rendered in favor of the present defendant in the former suit wherein they were both defendants and wherein no issue was directly and appropriately raised between them respecting any liability one to the other. Such former judgment is not therefore res adjudicata.

Defendant’s motion for leave to file an amended answer is therefore denied.


author: Pee Cueiam.

text:
    ROBERT TARLOW & SON, A CORPORATION OF THE STATE OF PENNSYLVANIA, PLAINTIFF-APPELLEE, v. HENRY BETCHEN, INDIVIDUALLY, AND HENRY BETCHEN, TRADING AS VENTNOR DELICATESSEN, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANT-APPELLANT.
    Submitted January 29, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff-respondent, Seymour Cantor.

    For the defendant-appellant, Bolte Tripician.

   Pee Cueiam.

This is an appeal from a summary judgment of the Atlantic City District Court and an order striking as sham the defenses pleaded in an action upon a promissory note dated November 7th, 1930, made by the defendant to the order of the plaintiff.

The defenses were as follows: (1) An agreement that the note should be paid in merchandise; (2) a discharge in bankruptcy; (3) failure of consideration. These defenses were regarded by the District Court as good on their face, since they were struck as sham. National Surety Co. v. Mulligan, 105 N. J. L. 336. This was a proper view of the law. Chaddock v. Vanness, 35 Id. 517; McCormack v. Williams, 88 Id. 170; Cockrell v. McKenna, 104 Id. 592; Gaddis v. Gaddis, No. 411 January term, 1932.

Our examination of the affidavits on the motion to strike, which are here challenged for insufficiency, leads us to the conclusion that they were not sufficient to support the action of the trial court, and that there were disputed questions of fact which could only be settled after a trial. Levine v. Aetna Casualty and Surety Co., 107 N. J. L. 381; 153 Atl. Rep. 395.

The judgment below is reversed.


author: Per Curiam.

text:
    ANNA C. PRATT, PLAINTIFF-APPELLEE, v. ELMER T. BLEY, DEFENDANT-APPELLANT.
    Submitted January 29, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff-appellee, Edivard R. McGlynn.

    For the defendant-appellant, Hugo Woerner.

   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff. The action was brought to recover the rent reserved in a written lease. The facts appear to be that the plaintiff’s predecessor in title owned certain lands and premises in Kearny, and leased them to the defendant. The lease contained a covenant that the landlord would construct a building having an area of two thousand four hundred square feet. Such building, however, was not constructed, but one having an area of two thousand and thirty-five square feet was built and occupied by the defendant, who paid for some years the rent reserved, when, as he claimed, he suddenly discovered the discrepancy and stopped payment of rent.

• The sole defense to the present action was that there was a constructive eviction. How this can be when the defendant was never possessed of more than two thousand and thirty-five square feet of space we cannot see. Since the defendant could have determined by simple measurements whether the building complied with his contract that circumstance offsets, to our mind, any credit that might otherwise attach to the testimony of the sudden discovery of the discrepancy after years of occupancy. The settled facts seems to us to indicate an acceptance of the building as built. This question was submitted in the brief and although not essential to the decision, we pass upon it.

The other points deserve no mention.

The judgment is affirmed, with -costs.


text:
    ARTHUR F. SMILLIE, PLAINTIFF-APPELLEE, v. LOUIS LERNER, DEFENDANT-APPELLANT.
    Argued January 19, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff-respondent, Jack Altshuler.

      ■ For the defendant-appellant, Sol Eigen and Heller <& Boss.

   Pee Cueiam.

The plaintiff had judgment in an action brought to recover damages for false arrest and imprisonment and malicious prosecution. The case was tried without a jury. The defendant appeals and submits several points for reversal. We find no merit in the first two, which allege error in the refusal of a nonsuit and in the finding of a verdict in favor of the plaintiff.

We conclude, however, that there must be a reversal. Defendant’s counsel called as a witness^ an attorney-at-law, who had advised the defendant before the prosecution in question was instituted. Plaintiff’s counsel moved for the exclusion of the defendant from the court room while this witness was testifying. The motion was granted and an exception taken.

The right of a party to be present in court when a ease in which he is interested is being tried, seems too fundamental to admit of dispute. If a defendant may be excluded from a trial involving his right and privileges his interest may be seriously jeopardized. The pertinent rule is stated in 38 Gyc. 370, as follows: “It is settled that a party to an action, or his attorney, who is a witness in the case, cannot be put under the rule for the exclusion of witnesses, and the doctrine applied, although the parties are numerous.”

Some of the cases support the doctrine that the proper rule is that where a defendant is to be called as a witness, he must be first called while the other witnesses are excluded. This would seem to be wholesome. The advantage of the exclusion of witnesses is thereby obtained and the disadvantage of the exclusion of a party in interest does not occur, since there can be no reason for the exclusion of the defendant after he has given his testimony. In the case under consideration, the plaintiff’s attorney having secured, by his own motion, the exclusion of the defendant from the trial of the case he cannot cast the burden of the mistake upon his adversary, who did not first call the defendant. The plaintiff secured the exclusion of the defendant from the court room and that he was not entitled to do. The defendant was thereby deprived of the right to confer with his counsel and to direct his defense. In this, we think, there was substantial error.

The judgment below is- reversed.


text:
    F. E. COMPTON & COMPANY, A CORPORATION, PLAINTIFF-APPELLANT, v. S. VAUGHN HULSE AND “MARY” HULSE, HIS WIFE, THE NAME “MARY” BEING FICTITIOUS AS HER TRUE FIRST NAME IS NOT KNOWN TO PLAINTIFF, DEFENDANTS-APPELLEES.
    Submitted January 29, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    Bor the plaintiff-appellant, Lord <& Lord.

    Bor the defendants-respondents, Samuel H. Gooen (Saul Tischler, of counsel).
   Pee Cueiam.

This is an appeal from an order of the Orange District Court setting aside a service of process. The return by the constable is as follows: “The said defendants S. Vaughn Hulse and cMarj',’ his wife, not being found, I served the within summons and state of demand November 17th, 1931, by leaving copies thereof at their residence with a member of their family above the age of fourteen years, informing her of its contents. George H. Yates, constable.”

Section 45 of the District Court act (2 Comp. Slat., p. 1966), so far as pertinent, provides as follows: “The summons shall be * * * served * * * by reading the same to defendant and delivering to him a copy thereof, if he or she shall be found, and if not found by leaving a copy thereof at his or her dwelling house or place of abode, in presence of some person of the family, of the age of fourteen years, who shall be informed of the contents thereof, * *

The affidavits upon which the motions were made are obviously bad. Therefore, there is nothing for us to look at beyond the return of the constable. We agree with the learned trial judge that the return does not show compliance with the statute.

The legislature has said in section 45 of the District Court act that the service could be made at the dwelling house or place of abode. The word “residence” used in the return does not follow the statute or mean the same thing. The statute requires service at the dwelling house or place of abode, for the very obvious reason that a residence may be a place where one does not dwell or abide. Cadwalader v. Howell, 18 N. J. L. 138.

“The statute does not direct service to be made at the ‘residence’ of the defendant, but at his dwelling house or usual place of abode, which is a much more restricted term. As was said in Stout v. Leonard, 37 N. J. L. 492, many persons have several residences which they permanently maintain, occupying one at one period of the year and another at another period. Where such conditions exist a summons must be served at the dwelling house in which the defendant is living at the time when the service is made.” Mygatt v. Coe, 63 N. J. L. 510, 512; 44 Atl. Rep. 198.

The judgment below is affirmed with costs.


author: Pee Curiam.

text:
    WALKER E. MORRISON (AMENDED TO MABEL MORRISON, ADMINISTRATRIX OF THE ESTATE OF WALKER E. MORRISON, DECEASED), PLAINTIFF-APPELLEE, v. WILLIAM H. RUSSELL COMPANY, OR WILLIAM H. RUSSELL, INDIVIDUALLY, IN THE ALTERNATIVE, DEFENDANT-APPELLANT.
    Argued January 19, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    Por the plaintiff-respondent, Ward <& McGinnis.

    Por the defendant-appellant, Nicholas Martini.

   Pee Curiam.

The plaintiff had judgment for $304.31 in the Passaic District Court. The case was tried before the court without a jury. The action was for salesman’s commissions alleged to have been earned by the plaintiff’s husband in his lifetime. The court allowed commissions at the rate of twenty-five per cent, on the gross sales. The plaintiff’s proofs showed that the deceased was to be paid twenty per cent, commissions on goods sold by him and an extra five per cent, was- to be paid for fair and honest dealing. However, the case is entirely barren of affirmative proof of fair and honest dealing; hence it was error to allow the extra five per cent, commission.

The plaintiff, as before indicated, sued in a representative capacity. She did not testify to any transaction with or statement by her intestate bearing upon the issues involved. 2 Comp. 8tal., p. 2218. She did call the defendant to prove the contract and the amount due thereunder to her intestate, and did testify to a conversation which she had with the defendant after her husband’s death. This, however, did not open the door to the defendant to prove conversation which he claimed to have had with the deceased. Hence, the ruling by the learned trial judge upon evidence offered was correct.

We find no merit in the other points submitted.

The judgment below will be reversed so far forth as there is included therein commission for the extra five per cent., not proved to have been earned.

The judgment is, therefore, affirmed in the sum of $70.14, the balance found after deducting from the recovery below five per cent, of the total sale receipts in question.


text:
    HENRIETTA M. CORIN, PLAINTIFF-APPELLEE, v. S. S. KRESGE COMPANY, A MICHIGAN CORPORATION, DEFENDANT-APPELLANT.
    Submitted January 20, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff-respondent, Harry 8. LaPof (I. Victor Klen&ri, of counsel).
    For the defendant-appellant, Edwards, Smith & Dawson.

   Per Curiam.

■ The plaintiff sued to recover damages for personal injuries suffered by reason of the defendant’s negligence in serving to her cole-slaw in which there was a piece of broken glass. The defendant maintained a restaurant in connection with its store. The plaintiff entered this restaurant, took a seat at the counter and ordered a platter of fish and cole-slaw. She testified: “While I was eating the cole-slaw, I felt something funny in my throat and grit in my teeth. I immediately took the stuff out; that is, I had been eating some of it before I noticed. I found a piece of glass in the stuff that was in my mouth, and also had just a little bit of blood. After I spit out all this food. Q. In eating, before you noticed what happened, some of the food got in your stomach? A. Yes, because it scratched my throat, and my mouth was very gritty between the teeth. That, of course, caused me to start spitting out the food. In spitting out, I found a piece of glass. * ' * After you had eaten the food substance, what did you do? A. I immediately went to Dr. Polizzotti. * * * ' Q. Tell us about this piece of glass you took out of your mouth. What did it look like—its size, how large was it? A. I should judge it was the size of my finger nail. * * * It was like a piece of glass chipped out of something.”

A duty is imposed upon a restaurant keeper in this state to use reasonable' care to see that food served in his restaurant shall be free from injurious substances and fit for human consumption. Niski v. Childs Co., 103 N. J. L. 464; 135 Atl. Rep. 805. The presence of portions of a broken electric light bulb imbedded in a loaf of bread, the bulb being of a sort similar to those used in defendant’s bakery, raises an inference of negligence upon the part of those operating the bakery. DeGroat v. Ward Baking Co., 102 N. J. L. 188. The presence of a portion of a suspender strap contaminating a bottle of coca cola raises an inference of negligence upon the part of those bottling the beverage. Rudolph v. Coca Cola Bottling Co., 4 N. J. Mis. R. 318; 132 Atl. Rep. 508. The presence of an iron bolt in a mince pie raises an inference of negligence upon the part of those preparing the mince meat. Sheehan v. Menkes, 8 N. J. Mis. R. 867; 152 Atl. Rep. 326.

In Friend v. Childs Dining Hall Co., 231 Mass. 65; 120 N. E. Rep. 407, the court said: “The plaintiff introduced evidence tending to show that the defendant kept a restaurant in Boston, which she entered and ordered of a waitress of the defendant from its menu, “New York baked beans and corned beef.’ This food was served to her and she sat at a table to eat it. She further testified: T started to eat the food and there were two or three dark pieces which I thought were hard beans, that is baked more than the others, and I put two in my mouth and bit down hard on them * * * I was hurt * * * I took those things out of my mouth and found they were stones.’ * * * The question is whether the plaintiff was entitled to go to the jury. * * * Our conclusion is that, whether the transaction established on the evidence between .the plaintiff and defendant is to be treated as a sale of food, or as a contract for entertainment where the defendant simply “utters his provisions’ (to use the neat phrase of Parker v. Flint, 12 Mod. 254, employed more than two centuries ago) for the benefit of the plaintiffs there was. a case to be submitted to the jury.”

The doctrine of warranty in restaurant cases was, of course, definitely repudiated in Niski v. Childs Co., supra.

The Massachusetts court decided in Ash v. Childs Dining Hall Co., 231 Mass. 86; 120 N. E. Rep. 396, that a tack in blueberry ''pie raises no inference of negligence by reason of the fact that the tack was small, similar to those used in the manufacture of blueberry boxes, and was of a color so similar to the berries that it might have become imbedded in one of them and not have been noticed, however great care may have been used in their preparation.

It is argued by the appellant that glass might become imbedded in cabbage, and hence remain unnoticed in the preparation of cole-slaw. However, the analogy with the facts in Ash v. Childs Dining Hall, supra, does not appeal to us. If cabbage is washed and cut with care it is difficult to perceive how a portion of glass could remain to injure the throat and mouth of the person to whom it was served. The presence of glass in cole-slaw seems to more nearly resemble stones in baked beans.

It seems to us after examining all the proofs that there was enough shown to raise an inference of negligence in the preparation of the cole-slaw. The weight of evidence was for. the trial court. “This court will not review the findings of the District Court upon questions of fact beyond inquiring whether there was any legal evidence upon which the finding might be based. Williams v. Contracting Co., 74 N. J. L. 105; Pratt v. Union National Bank, 81 Id. 588; Tapscott v. McVey, 83 Id. 747.” Sheehan v. Menkes, 8 N. J. Mis. R. 867.

The judgment will be affirmed, with costs.


author: Mackay, C. C. J.

text:
    ARTHUR C. DUNN AND MARY ZEMAN, PLAINTIFFS, v. PARKER & GRAHAM, INCORPORATED, DEFENDANT.
    Decided April 6, 1932.
    For the plaintiffs, Ward ■& McGinnis (by Louis Santorf).

    For the defendant, Lindabury, Steelman, Zink <& Lafferty (by James L. Lafferty).

   Mackay, C. C. J.

The plaintiffs sought to recover for damage done to the building at Paterson, Hew Jersey, by defendant’s steam shove]. The action as originally instituted was tried on June 25th, 1931, and at that time the Erie Railroad Company was also a party defendant. At the close of plaintiffs’ ease a judgment of nonsuit was entered as to the Erie Railroad Company with leave to the plaintiffs to amend the complaint and bring the action on for trial at a later date. The jury rendered a verdict in favor of the plaintiffs and against the defendant, Parker & Graham, Incorporated, for $2,180. The plaintiffs’ proofs showed damage to the extent of $2,395.

Defendant seeks a new trial on the following grounds: Eirst, that the damages are excessive; and second, that there is newly discovered evidence. The newly discovered evidence is to the effect that the plaintiffs contended at the trial that Bennett Brothers repaired the damaged building and neither of them could be found to testify as witnesses at the trial. Defendant now produces an affidavit to the effect that Bennett Brothers have been found and that the value of their services was much less than that claimed.

I do not think a new trial can be had on the ground of newly discovered evidence because it appears that when this case was tried on June 25th, 1931, the plaintiffs’ witnesses testified and one of them, Mr. Weisbrod, an expert, stated that in his opinion the cost of repairing the damaged building was between $2,000 and $2,200. Defendant at that time had knowledge that Bennett Brothers could not be found. Another expert was produced, to testify as to the damage yet no attempt was made to locate the Bennett Brothers between that time and the date of trial on January 20th, 1932.

“A court will not grant a trial upon the ground of newly discovered evidence unless it be shown—first, that such evidence would probably have changed the result of the trial; second, that it was unobtainable by the exercise of due diligence for use at the trial; third, that the evidence is not merely cumulative.” Christie v. Petrullo, 101 N. J. L. 492; 128 Atl. Rep. 853.

It may be true that the defendant comes within the first and third rules as laid down but does not meet the second requirement. I think when the defendant ascertained in J une of 1931 that Bennett Brothers could not be located, it was then its duty to use reasonable diligence to obtain them or one of them as witness or witnesses in the cause. This not having been done a new trial cannot be granted on the ground of newly discovered evidence.

As to the verdict of the jury in the sum of $2,180, it appears from the testimony that the jury could have found that the damage to the building for repairing the foundation and porch, &c., ¿mounted to $2,200, less an allowance of $200, which would make $2,000, and it could have found that the painting contract amounted to $200 and the cost of replacing the trees $15.

Counsel for defendant seems to be of the opinion that because a witness testified specifically that the damage done to the building was $2,180, that that was the jury’s verdict without taking into consideration the $200 reduction, but I cannot take this to be the fact because the jury also had the right to consider the $200. painting item and the $15 item for trees. Just how they made these deductions is not quite clear; yet I cannot constitute myself as the jury to determine its method of reaching this particular result. Bor these reasons the rule to show cause will be discharged.


author: Bkown, S. C. C.

text:
    JOSEPH INTROCASSO, PLAINTIFF, v. FLORENCE JASPER, EXECUTRIX OF THE ESTATE OF HARRY JASPER, DECEASED, DEFENDANT.
    Decided April 7, 1932.

      For the plaintiff, Gross & Gross.

    For the defendant, Ueyman & Heyman.

   Bkown, S. C. C.

There were no affidavits furnished by either party concerning the motion to strike. The motion is directed to the entire complaint and is therefore in the nature of a general demurrer and not a special demurrer addressed to each count of the complaint. If the complaint discloses a cause of action in any count the motion should be denied.

For the purpose of this motion the court considers that the condition of selling the Bayonne property and realizing cash is a part of and should be read with the foregoing part of schedule A, as conditions upon which Jasper acquired the plaintiff’s interest in the Jersey City property and admitting, though not deciding, that the conditions of the sale of the Bayonne property and realizing cash therefrom are conditions precedent to liability attaching; nevertheless, the motion cannot prevail for the reason that the first count states an absolute refusal to sell on the part of Jasper or his successor in interest. There being no proof to the contrary on the motion this allegation of the pleading presents a situation where the plaintiff, in substance, charges the defendant prevented the fulfillment of the conditions by refusing to sell. If the proof at the trial discloses that the defendant refused to sell the Bayonne property then a question for the jury to determine the liability of the defendant would arise. The second count charges that the defendant agreed to repay the money within a reasonable time and has failed to do so.

In the brief for the defendant the court is requested to determine that the second count is based upon the allegations in the first count. If the defendant wanted to make the request in his brief effective he should have furnished proof on this motion that such was the case. While the court might be strongly drawn to the conclusion that both counts are based upon the same set of facts in the absence of proof as to this similarity the court is bound, on this motion, to draw all reasonable inference in favor of the allegations as they appear in the second count and they do set forth a cause of action.

The complaint stricken by Judge Oliphant was entirely different from the complaint now under discussion. For the foregoing reasons the motion will be denied, without costs.


text:
    THOMAS C. REISER, PROSECUTOR, v. THE INHABITANTS OF THE CITY OF PLAINFIELD, A MUNICIPAL CORPORATION, C. BENSON WIGTON, E. KENDALL MORSE, SEYMOUR PERKINS, MICHAEL D. O’KEEFE AND HENRY H. BROWER, CONSTITUTING THE BOARD OF ADJUSTMENT, AND JOHN S. DAHL, INSPECTOR OF BUILDINGS, DEFENDANTS.
    Argued October 8, 1931
    Decided April 8, 1932.
    Before Justices Tren chare, Daly and Donges.
    For the prosecutor, Bussell Fleming.

    For the defendants, J. Henry Crane.

   Per Curiam.

This writ of certiorari brings up for review a resolution of the board of adjustment of the city of Plainfield denying the prosecutor, Thomas C. Keiser, permission to convert a present single family dwelling at Ko. 305 West Seventh street, Plainfield, into a funeral establishment on the first floor and a residence on the second floor.

It appears that the property is located in “B” residential zone of the city of Plainfield, and that the building inspector denied the permit on the ground that to grant it would be a violation of the zoning ordinance. An appeal was taken to the board of adjustment to vary and modify the provisions of the zoning ordinance and to grant the permit.

The appellant himself in his appeal set out that the granting of the permit would violate the ordinance. The board of adjustment sustained the building inspector and denied the petition of the prosecutor. The prosecutor has assigned eleven reasons why this action of the board of adjustment should be reversed. We think, so far as substance is concerned, they may be shortly considered.

First, it is claimed that the decision was arbitrary and unreasonable. We cannot say that it was. The board held a hearing. There seems to have been some sort of testimony, and petitions, both for and against, from neighbors, schools, churches, hotels and owners of apartment houses. The testimony is not presented to us in full, but only what purports to be a synopsis thereof. It appears that the street is a busy street of moderate width and part of the county highway, already much congested by traffic of vehicles and pedestrians, and particularly school children. In view of what appeared, or may well have appeared, to the board in respect to traffic conditions, we cannot say that the refusal of the board of adjustment to interfere was arbitrary or unreasonable. There is a presumption that the action of the board was right (Sylvester v. Princeton, 104 N. J. L. 18), and we do not think it can be said to have been overcome in this case. The finding of the board will not be set aside, unless without support in fact or law. Jannarone v. Board, 9 N. J. Mis. R. 210; 153 Atl. Rep. 256.

It is said that the zoning ordinance is invalid. We think it is not. On the contrary it was expressly continued by chapter 274 of laws of 1928, and that act was upheld in that respect in Frank J. Durkin Lumber Co. v. Fitzsimmons, 106 N. J. L. 183; 147 Atl. Rep. 555.

It is next said that the decision of the board was illegal because not made at a public hearing and because no specific reasons were given. We think there is no merit in that contention. The statute does not require the board to specify its reason for its action. It gave a public hearing, and the mere fact, if it be a fact, that the members of the board after hearing considered the case, in private conference, is immaterial.

The writ will be dismissed, with costs,


author: Pee Ctjbiam.

text:
    MARGARET McCARRON, PLAINTIFF-RESPONDENT, v. ERIE RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted January 29, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    Por the plaintiff-respondent, George Gold.

    Por the defendant-appellant, Hobart & Minard (George S. Hobart and Augustine J. Kelly, of counsel).
   Pee Ctjbiam.

The plaintiff had judgment for $250. The case was tried before the court without a jury. The plaintiff suffered injuries, when she fell, while walking along the railroad right of way after alighting from a train of the Susquehanna Bail-road Company, which had come to a stop at a point some distance from the defendant’s Jersey City terminal.

The plaintiff; who was employed in New York, had an Erie railroad commutation ticket between Paterson and New York. On December oth, the day of her injury, she boarded the Susquehanna train at Paterson and her ticket was subsequently punched by the conductor. The train came to a stop before it reached the Jersey City terminal of the Erie railroad. When nearly all the passengers had alighted, the plaintiff got off and started to walk along a small wooden footpath between the tracks, when she tripped and fell, suffering the injuries of which she complained. Some of the platform boards were missing; the engine was letting off steam; the train crew were shouting cautionary words, and although she was walking carefully and watching her steps the accident happened.

We incline to the view that there was sufficient proof to justify the finding of the court below that the plaintiff was a passenger. She had paid her fare to the Erie railroad, and was riding on a train furnished for her transportation upon which her commutation ticket was- accepted. She was bound to the Erie terminal and had a contract with that road for her transportation. See, generally, 10 Corp. Jur. 610; Ross v. Pennsylvania Railroad Co., 106 N. J. L. 536; 138 Atl. Rep. 741.

Further, it seems that the proofs support the finding of negligence. “In the absence of special circumstances the carrier performs its whole duty by conveying the passenger to his destination and giving him notice and a reasonable opportunity to leave the train.” 10 Corp. Jur. 830. “The carrier is bound to exercise care in securing the safety of the passenger while boarding and alighting from its cars or other conveyances, and the degree of care required in the discharge of this duty is the highest care, or the care which a very prudent person would use under the circumstances, that is, that high degree of care which is required with reference to the transportation of passengers; and where a carrier misleads a passenger with reference to time, the place, and the safety of boarding or alighting, it is liable for the injuries sustained.” Ibid. 924.

There was testimony that there was a wreck ahead; the train was delayed in pulling into the station; the passengers were all alighting and there were trainmen and employes who were permitting such action to be taken, and who were guiding and cautioning the passengers who had so alighted. This is not a case where the passenger had reached the street, or a point of safety outside the station, but a case where there was a permissive exit at a place not generally provided for the purpose but made necessary because of the wreck. The court could find from the proofs a failure to exercise the care required under all the circumstances. The mere existence of the pipe and defective planking is .not the negligence complained of, but the failure to use due care for her safety, by reason of the permissive use of the way in question.

Under the facts proved the plaintiff was not a trespasser. The railroad permitted her to leave the train in the same way that other passengers had gone, and, as before indicated, the contract of carriage obligated the railroad to carry her with due care to her destination.

The facts proved justify the conclusions of the court below. The judgment is affirmed, with costs.


author: Pee Ctjeiam.

text:
    CHARLES STEWART AND VIOLA GREENER, PLAINTIFFS-APPELLANTS, v. WASHINGTON CAMP NO. 7, PATRIOTIC ORDER, SONS OF AMERICA, DEFENDANT-RESPONDENT.
    Submitted January 26, 1932
    Decided April 8, 1932.
    Before Justice Campbell, Lloyd and Bodine.
    For the plaintiffs-appellants, Philip M. Chamberlin.

    For the defendant-respondent, Richard C. Chamberlain, Jr.

   Pee Ctjeiam.

The plaintiffs are half-brother and half-sister of one Albert T. Stewart, who in his lifetime was a member of the defendant fraternal society organized under the laws of this state.

The statute, controlling defendant’s organization, provides that fraternal beneficiary associations may provide death benefits for “the families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon, the members.” 1 Comp. 8tat., p. 197.

The statute exempts fraternal beneficiary associations from the provisions of the insurance laws of this state. Such organizations have been given special consideration under our laws for nearly eighty years, because of their benevolent and charitable acts.

The defendant’s by-laws provide for payment of death benefits to the widow and next of kin, or legal representative of a deceased member, and if there be none such, provision is made for the expenditure of the benefits, or some part thereof, for the expenses of the last illness, funeral expenses and a grave marker. Stewart left neither a widow or children, but he made a will by which he appointed Edwin Cooke executor. Cooke qualified, and payment of the death benefits, which amounted to $500, was made to him. The plaintiffs sought payment to them. The case was tried before the District Court without a jury, upon an agreed state of facts. The sole question is whether the judgment should have been entered in favor' of the plaintiff.

The statute above adverted to was enacted March 11th, 1893, and went into effect immediately. Prior thereto, fraternal organizations of similar purpose, had been regulated under the Revision of 1875, and the supplements thereto. Pamph. L. 1853, p. 355; Pamph. L. 1855, p. 770; Pamph. L. 1873, p. 31; 1 Gen. Stat., p. 149.

By supplement to the Revision of 1875 {Pamph. L. 1883, p. 57), it was provided that it should be lawful for such association to pay the death benefits to the husband, wife, father, mother, brother, sister or legal representative of such member after his or her death

Mr. Justice Magie, speaking for the Court of Errors and Appeals, in Golden Star Fraternity v. Martin, 59 N. J. A. 207 (at p. 212); 35 Atl. Rep. 908, respecting this later enactment, said: “It appears that it was designed to empower such associations to contract to pay Meath benefits’ according to their rules and by-laws, but the contract is to be limited to-the payment of such death benefits, after the death of the member, to certain specified relatives or connections of the member or to his or her legal representative. It is obvious that such a contract is of the nature of a contract of life insurance. But so far as it provides for the payment of death benefits to the near relatives and connections of the deceased member as a gratuity to them, it is life insurance having a benevolent purpose. Authority to make such contracts of life insurance, in my judgment, could be conferred upon such associations under the title of this act. But the act also authorizes a contract to pay death benefits to the legal representative of a deceased member. When there is no context to indicate that the phrase legal representative’ is to be taken as meaning some other relative, it is to be considered as meaning the executor or administrator of a deceased person. Lodge v. Weld, 139 Mass. 499. A contract to pay death benefits to the member’s executor or administrator is obviously a contract of ordinary life insurance. Upon the member’s death his estate would be increased by the sum thus contracted to be paid, and the transaction would have no benevolent or charitable feature whatever. Authority to make such a contract is not, in my judgment, within the title of this act.”

It is to be noted that our present statute (1 Comp. Stat., p. 197), does not provide for payment to the legal representative of a deceased member. Section 9 of the general act for the incorporation of associations not for pecuniary profit (Pamph. L. 1898, p. 422), provides as follows: “It shall be lawful for associations incorporated under this act, where their certificate of incorporation so specifies, to provide for the relief of disabled or destitute members or their families and to maintain a fund for that purpose, or to contract with their members to pay death benefits according to the rules or by-laws adopted by such associations, and to agree to pay the same to the husband, wife, father, mother, son, daughter, brother, sister or legal representative, of such member, after his or her death, which contract the beneficiary therein named shall have full legal power to enforce in proceedings at law or equity.”

The Supreme Court said in Ryan v. Firemen’s Benevolent Association, 77 N. J. L. 399, 401, that Pamph. L. 1898, p. 165, did not authorize a charitable institution to assume the functions of a life insurance company and pay benefits in a way different from that provided under the laws in existence at the time of their organization. The defendant was organized October 29th, 1895.

By chapter 76, Pamph. L. 1899, sundry acts relating to corporations not for pecuniary profit and sundry acts relating to fraternal beneficiary societies were repealed, but the pertinent portion of the act of 1893 appears not to have been disturbed. Further it was in identical form embodied .in an amendment of 1907. Pamph. B., p. 435. The defendant was therefore confined to making of contracts for payments to the families, heirs, blood relatives, &e. Stewart having such a contract, payment should have been to the next of kin since there was no widow. Vice-Chancellor Heed made such distribution in Radient Temple v. William R. Piper, 62 N. J. Eq. 565.

Advisory Master Kocher (In re Beidelman’s Estate, 4 N. J. Mis. R. 549; 133 Atl. Rep. 873) so construed the funeral benefit contract before him as entitling the widow to the proceeds thereof rather than the executor. He said: “There appears to be no reported case directly in point. The case of Carpenter v. Alert Council, reported in 26 N. J. L. J. 373, comes the nearest in point. In that case the by-laws provided that the payment shall be made to the widow or near relative of the deceased. There was no widow, and the court construed the 'near relative5 to be the next of kin, and excluded the administrator or executor of the deceased from any claim upon the funeral benefit. It was held, however, that the mere fact that the administrator paid the funeral expenses out of the estate was an irrelevant circumstance; the direction of the constitution and by-laws as to payment, being explicit, must be obeyed.55

Further, “the law is settled, that it is not within the power of either a member of such a corporation, or of the corporation itself, or of the two combined, to divert any pa.rt of the fund raised or accumulated for the benefit of the beneficiaries named in the statute under which the corporation is organized, to any other person, or to apply it to any other purpose than that authorized by such statute authorizing the formation of corporations to accumulate a fund to be paid to the widows -and children of deceased members, the corporation can only pay the fund to the widows and children of deceased members, and if it should make a promise to pay any part of it to any other person, its promise would be void. Its promise would not only be ultra vires, but in direct contravention of the purpose of the statute from which the corporation derived both its corporate existence and power. And a member of such a corporation is equally powerless to divert from its appointed channel that part of the fund of the corporation which becomes payable on his death.” American Legion of Honor v. Smith, 45 N. J. Eq. 470.

Notwithstanding the provisions of the by-laws, which we cannot and do not regard as conferring a right upon the defendant to choose to make payment either to the executor or to the next of kin, the law is well settled that Pamph. L. 1893, p. 232 (1 Comp. Stat., p. 197), controlled the defendant’s incorporation and limited its contracts to such as had a benevolent or charitable feature. The defendant could not, under its charter, make contracts which would increase the estate to be administered in behalf of its members.

Since the statute under which the defendant was organized gives it no power to make payment of death benefits to the legal representatives of deceased members, payment to such legal representative is no bar to an action by the beneficiaries who sue in their own right.

The judgment is reversed, with costs.


text:
    BENJAMIN SENOFSKY, PLAINTIFF-APPELLEE, v. HARRY FRECKER, DEFENDANT-APPELLANT.
    Submitted January 26, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.

      For the plaintiff-appellee, Heller & Boss.

    For the defendant-appellant, McCarter & English.

   Pee Curiam.

This is an appeal from a judgment for $500 rendered by a jury in the Clifton District Court.

On May 9th, 1931, the plaintiff and defendant were driving their respective ears in opposite directions on Wall street, Passaic. They neared each other as they approached the point where Ninth street intersects. The defendant intended to continue along Wall street rather than turn into Ninth street. The plaintiff intended to make a left-hand turn across defendant’s path into Ninth street. It was while effecting this purpose that the collision occurred resulting in personal and property injuries.

The trial judge submitted to the jury the issue of negligence and contributory negligence. He charged that the degree of care required under the circumstances in this case was reasonable care. The defendant requested him to charge that the plaintiff turning left across traffic must use great care. His refusal so to do is before us by appropriate exception.

In the case of Day v. Beyer, 5 N. J. Mis. R. 1069, the court said: “If the defendant intended to cross a line of -traffic to get into Wyoming • avenue he was obliged to use great care and seek an opportune time.” That ease came before the court on defendant’s rule for a new trial.

The three requests refused were intended to be framed upon the rule stated in that case, and were in the following form:

“1. If you find that the plaintiff, Benjamin Senofsky, intended to make a left-hand turn and cross the path of oncoming traffic to get into Ninth street, you will then ask yourselves whether he used great care and sought an opportune time in doing so, for he cannot recover unless he did use great care and did seek an opportune time.

“2. If you find that the plaintiff, Benjamin Senofsky, and the defendant, Harry Frecker, were both traveling along Wall street in Passaic, and approaching each other from opposite directions, and that the plaintiff intended to turn left into Ninth street, then the plaintiff cannot recover a verdict unless ho used great care and sought an opportune time to make his left turn in front of the defendant.

“3. The fact that the plaintiff’s car collided with the car of the defendant while the plaintiff was making a left-hand turn in front of the defendant is some evidence that the plaintiff did not use great care and did not seek an opportune time in making his left-hand turn, and this is to be considered by you in deciding whether the plaintiff is to be denied recovery because of a failure to use great care and choose an opportune time in making a left-hand turn.”

The judge charged the jury in the language of the requests, but substituted the woi’ds “reasonable care” for “great care,” because he stated that he could not find the expression “great care” in any of the Court of Errors and Appeals decisions. In the third request, he also substituted the words “may or may not be some evidence” for the words “some evidence.”

Appellant argues that in the absence of contrary authority the rule laid down in Day v. Beyer, supra, was controlling and that the jury should have been instructed as requested. Tt is, of course, obvious to a reasonable man driving a motor car that although he has a perfect right, in the absence of contrary regulation, to make a left-hand turn and cross a line of traffic, still if he fails to exercise the care commensurate with the great risk he is taking a collision will follow, unless the oncoming driver exercises more care than he. Therefore, the rule of great care and choice of an opportune time is founded in the necessities of the ease, and is imposed upon a person turning across a line of traffic.

Chancellor Magie said in Kelly v. Bergen County Gas Co., 74 N. J. L. 604, 606: “It has repeatedly been held in this court that corporations maintaining wires which carry strong and dangerous currents of electricity owed a duty to exercise a high degree of care to prevent injury thereby to persons who, in the exercise of a lawful right, may come in contact with them * * *. A like duty devovles upon a corporation which maintains such wires in places not public streets, where there is a reasonable' probability that persons, in performing work, may come in contact with them * * *. Corporations whose wires do not carry ■ dangerous currents are held to a similar duty where they maintain their wires in places in which they may come in.contact with other wires and be so charged with dangerous currents.”

Circumstances may and do require the exercise of a high degree of care as Mr. Justice Minturn stated in Fogarty v. Jersey City, 76 N. J. L. 459. Turning left against oncoming traffic requires extreme caution. Dieriner v. Shepard, 6 N. J. Mis. R. 186. The care commensurate with the risk may be a high degree of care. “By consensus of opinion of text-writers, on the law of negligence, and by judicial decisions, high degree of care denotes no more than degree of care commensurate with the risk of danger.” New Jersey Fidelity Insurance Co. v. Lehigh Valley Railroad Co., 92 N. J. L. 467, 470. Certiorari denied, 249 U. S. 600.

“The duty of care is commensurate with the danger present in a situation or incident to an operation or instrumentality, and a person engaging in an act which the circumstances indicate may be dangerous must take all the care which prudence would suggest to avoid injury. The greater the danger the greater is the care required, so that a very high degree of danger calls for a very high degree of care, which, however, amounts merely to ordinary care in view of the situation and circumstances. Wliat would be ordinary care in a case of extraordinary danger would be extraordinary care in a case of ordinary danger, and what would be ordinary care in a case of little danger would fall below the required standard in a case of great danger.” 45 Corp. Jur. 696.

Since the proofs showed that the plaintiff was about to do that which the court has said required the exercise of great care and extreme caution, because of the great danger involved, it seems to us that the defendant was entitled to have the jury instructed that the circumstances of this case called for the exercise of great care, and that although great care may denote no more than a case commensurate with the risk where the risk is great, the care to be exercised must also be great. The charge did not make this point sufficiently clear, and in this there was error.

The judgment is reversed, with costs.


text:
    LENA BERMAN, PLAINTIFF AND APPLICANT, v. AMERICO V. ALEXANDER, DEFENDANT AND RESPONDENT.
    Argued January 20, 1932
    Decided April 8, 1932.
    Before Justices Teen chard, Daly and Donges.
    Dor the plaintiff, Joseph T. Lieblich.

    Dor the defendant, Addison P. Bosenkrans.

   Per Curiam.

This is an application for a writ of certiorari to review “the entire record and proceedings” in a case originally begun in the Court of Common Pleas of Passaic County which resulted in a verdict in favor of the plaintiff, which verdict on a rule to show cause the Common Pleas Court (after having been removed to discharge the rule) set aside on the ground that the same was the result of bias, passion and prejudice on the part of the jury.

Having examined the affidavits upon which the application is based, we conclude that the writ of certiorari applied for should not be granted, and it is accordingly denied, with costs on this motion.


author: Ackekson, S. C. C.

text:
    JAMES MITCHELL, INCORPORATED, A CORPORATION, ETC., PLAINTIFF, v. JOSEPH SPINGARN AND SPINGARN REALTY CORPORATION, A CORPORATION OF NEW JERSEY, DEFENDANTS.
    Decided April 8, 1932.
    For the plaintiff, Atwood G. Wolf.

    For the defendants, Lichtenstein, Schwartz & Friedenberg.

   Ackekson, S. C. C.

This matter comes before me upon defendants’ motion to strike out the third count of the complaint upon various grounds, among them being the charge that the said count is frivolous, uncertain, vague and indefinite, and multifarious, based upon conclusions and not facts and so framed as to prejudice, embarrass and delay a fair trial.

It is unnecessary to go into this matter further, however, than to say that it is impossible, from reading the criticized pleading to determine whether it is founded upon fraud or breach of contract, and whichever theory is adopted, the pleading is so uncertain, vague, indefinite and obscure as to prejudice, embarrass and delay a fair trial, and will, therefore, be stricken out. The plaintiff may, however, have ten days from April 5th, 1932, in which to file an amended complaint, if it desires so to do.


text:
    LUCIA BUSCHE, PLAINTIFF-RESPONDENT, v. NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted January 29, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff-respondent, G. Gerson Isenberg.

    For the defendant-appellant, Hobart & Minard (George 8. Hobart and Augustine J. Kelly, of counsel).
   Per Curiam.

The plaintiff had judgment in an action tried before the court. The suit was brought to recover damages for fire loss. The defendant appeals and submits five grounds for reversal as follows: (1) The court erred in refusing defendant’s motion for a nonsuit or a direction of verdict; (2) in excluding certain testimony; (3) in the admission of certain testimony; (4) in admitting Exhibit P-1 in evidence, and (5) there was no legal proof of value.

The respondent has not seen fit to furnish us with a brief. As too frequently happens in this court, a map is returned with the record in form so large that no desk exists big enough to hold it and all pertinent marks are withheld as though essential facts could be discovered only in the most difficult possible manner.

The plaintiff owned a tract of fifteen acres of woodland which was burned over. The land abutted on the southerly side of defendant’s right of way. The fire occurred on May 4th, 1930. Neighbors first observed the fire along and to the north of the railroad track after the noon train passed by. The season was dry; the weeds along the right of way had not been cut back; the wind was somewhat from the west; the engine emitted sparks—“they were out of reason.”

The railroad offered proof that the equipment was standard; frequently inspected and in good order. The trainmen testified that they saw a fire before they came to the place in question and that it appeared to be a brush fire started for the purpose of spring cleaning by some of the farmers on land in the vicinity not part of the railroad right of way.

1. We think that there was proof that the fire originated in a spark from the engine. Wiley v. West Jersey Railroad Co., 44 N. J. L. 247. The credibility of the witnesses was for the trial court and though sparks are not as visible by day as by night, clouds of dense stuff out of all reason emanating from an engine smokestack does not to our minds negative testimony of sparks. The witnesses further testified to weeds and cut grasses along the right of way, although the rails were laid upon a cinder bed. There was no attempt made to clear up the weeds and cuttings which accumulated in the ditches and furnished an ever-present source of danger and annual fires.

“The plaintiff must prove circumstances which render it probable and not merely possible that the defendant is at fault. But when it is said that the circumstances must exclude the inference that the damage was due to a cause for which the defendant is not responsible, it is not meant to change the rule that ordinarily governs in civil cases and to force the plaintiff to exclude such inference beyond doubt. All that is required is that the circumtsances should be so strong that a jury might properly on grounds of probability rather than of certainty exclude the inference favorable to the defendant. The question arises only where the evidence is circumstantial and where probability may be all that is attainable.” Austin v. Pennsylvania, Railroad Co., 82 N. J. L. 416.

Wo cannot see from all the proofs that the judgment was due to speculation upon the causes of the fire. We think the proofs established that it was probable that the fire was caused by defendant’s fault, and that, therefore, the weight and credibility of the testimony was for the trial court sitting without a jury.

2. One of the plaintiff’s witnesses was subjected to a searching cross-examination. The trial court, quite properly on appropriate objection, checked the examination when it seemed to transcend the usual bounds essential to the testing of credibility. In that we see no harmful error. “The judge may see to it that the examination of witnesses is conducted in an orderly manner, and a large discretion is given to him in controlling such examination.” 38 Cyc. 1315.

3. The admission of certain testimony as to the width of the defendant’s right of way where the fire first occurred was harmless, as we view the case, granting that it was hearsay. Although the railroad company failed to show more than its tracks along a map of the countryside, there was testimony indicative of a right of way along which the tracks were laid and upon which the dried and cut grass had been allowed to accumulate. It is a perfectly well known fact that railroad rights of way afford 'accommodation for the easy operation of trains and include more than the mere space for the laying of ties and rails. The witnesses living in the vicinity placed the fire along the right of way. If they placed it on Smith’s land or Brown’s land that would be some proof of the fact.

4. We do not think the Exhibit P-1 was properly received in evidence, but in view of the foregoing its receipt was not harmful.

5. Assuming that the true rule governing the measure of damages is as contended by the appellant—“the measure of damages for the destruction of fruit, shade, ornamental, or growing trees of shrubbery is the difference between the value of the land before and after they were destroyed.” Cleveland School District v. Great Northern Railway Co., 126 N. W. Rep. 995—still we think the market value of the standing timber was an element in determining the damages to the freehold. The number, size and value of the trees were elements to consider. The weight and credit to attach to the testimony of the witnesses, as to value, was for the trial court. Though the transactions were few and the details vague, we cannot say that no credit could attach to the testimony. In view of all the testimony, there seems to us to be sufficient evidence as to the extent of injury to the freehold to support the judgment.

The judgment below is affirmed, with costs.


text:
    ST. MARY’S HOSPITAL, PLAINTIFF-RESPONDENT, v. NORMAN PAXTON, DEFENDANT-APPELLANT.
    Submitted January 29, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff-appellee, Solomon S. Sollcy.

    For the defendant-appellant, August W. Bode.

   Pee Cueiam.

This is an appeal from a judgment in favor of the plaintiff in the sum of $32.70. The case was tried before the District Court without a jury, and involves no new principles of law. The plaintiff sued to recover for hospital fees and services rendered to defendant’s wife. The defendant did not dispute the bill beyond testifying that he was separated from his wife, had published a newspaper notice that he would no longer be answerable for her bills, and had not expressly or impliedly authorized the expenditure.

“Where the husband and wife are living in a state of separation, the presumption is against the authority of the wife to bind the husband by her contract. Under such circumstances the general rule is that the husband is not liable. To this rule there are two exceptions pertinent to this inquiry, the first of which is where husband and wife separate and live in a state of separation by mutual consent, without any provision for her maintenance or means of her own for her support; the other, where the wife leaves her husband under the stress of his misconduct of such a character as in law is regarded as a justifiable cause for the wife’s quitting her husband’s society. In such cases, the presumption being against the liability of the husband for the wife’s contract, the burden of proof is upon the party seeking to enforce against him a liability for her contract. He must show affirmatively the special circumstances which shall fix the responsibility on the husband in order to establish his cause of action.” Vusler v. Cox, 53 N. J. L. 516, 518. See, also, Strawbridge & Clothier et al. v. Sigle, 73 Id. 419; Wanamaker v. Ulizio, 102 Id. 166.

We cannot find any proof that the husband was the deserter. Therefore, wo must assume that there was a separation by mutual consent, and the record is absolutely barren that the wife was without means for her support and no provision had been made therefor.

The judgment is reversed.


author: Pee Oueiam.

text:
    THOMAS MARGIASSO ET AL., PLAINTIFFS-APPELLEES, v. HOME BUILDING AND LOAN ASSOCIATION, DEFENDANT-APPELLANT.
    Submitted January term, 1932
    Decided April 9, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellees, no appearance.
    For the appellant, Louis A. Crowley.

   Pee Oueiam.

This is an appeal from a judgment of the Clifton District Court in an action to recover damages for the breach of a contract for a mortgage loan.

Appellant urges three grounds for reversal.

1. That there was no contract established.

From the state of ease agreed upon it is apparent that there were proofs before the trial judge to support his finding that there was a contract.

2. That appellees suffered no damages, and

3. That there is no legal basis for the judgment.

To these the answer is also that the state of ease shows that there were proofs legally justifying the finding.

The judgment under review is affirmed, with costs.


text:
    MICHAEL BETTS, PLAINTIFF, v. “THE MACCABEES,” DETROIT, MICHIGAN, A CORPORATION, DEFENDANT.
    Submitted January term, 1932
    Decided April 9, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    Por the rule, Charles C. Stalter.

    Contra, Joseph T. Lieblich.

   Pee Cueiam.

The defendant is a foreign corporation and service of the summons and complaint upon it was made by service of the same upon the secretary of state.

Por want of an affidavit of merits judgment by default was taken. This judgment we are asked to open and permit a trial of the issues raised by the complaint and the answer filed by the defendant, which answer was filed within time.

Our examination of the proofs brings us to the conclusion that the failure to file the affidavit of merits was due to an oversight and mistake and that the defendant had a meritorious defense.

The judgment should, therefore, be opened to permit a trial of the issues raised by the pleadings.

Such an order may be taken.


author: .Pee Cueiam.

text:
    MAX REIMAN, TRADING AS ORIENTAL VERMIN EXTERMINATING COMPANY, PLAINTIFF-APPELLEE, v. ESSEX CHAIR COMPANY, DEFENDANT-APPELLANT.
    Submitted January term, 1932
    Decided April 9, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    Por the appellee, William, Harris.

    Por the appellant, Herman L. Fast.

   .Pee Cueiam.

The action was to recover the balance of the consideration of a contract for the extermination of rats from the factory of the appellant. The cause was tried by the District Court judge, without a jury, and resulted.in a judgment in favor of the plaintiff below.

Appellant urges two grounds why this judgment should be reversed.

• 1. The suit was prematurely brought.

This is without substance. By the express terms of the contract failure to pay the monthly installments made the entire balance due immediately. There was proof of nonpayment of installments from which the court was justified in finding such acceleration of payment of the consideration of the contract.

2. The court erred in finding that the rats were exterminated.

It is here urged that the proof in this direction on the part of the plaintiff, upon whom the burden rested, was that there were no rats, which is merely negative evidence, having no probative value in the face of affirmative evidence of the presence of rats.

The situation is not like unto that in Holmes v. Pennsylvania Railroad Co., 74 N. J. L. 469; Horandt v. Central Railroad Co., 78 Id. 190, and Boylan v. Meeker, 28 Id. 274, cited by appellant.

In the present case the proofs said to be negative evidence were not such but, in fact, affirmative, based, as is said, upon actual examination and investigation. The weight to be given to this as well as to the contrary evidence upon the part of the defendant below, was for the trial judge to determine.

The judgment under review is affirmed, with costs.


text:
    KATE C. WARDELL, PLAINTIFF, v. LOUIS WARSHOFSKY, ETC., DEFENDANT.
    Submitted January term, 1932
    Decided April 9, 1932.
    Before Justices Campbell and Lloyd.
    For the plaintiff, David Goldstein.

    For the defendant, William L. Edwards.

   Pee Cueiam.

In an action for damages for alienation of affections a judgment was entered for $15,000 against the defendant on September 23d, 1931. Although the defendant had filed an answer by his attorney, he and his attorney did not appear when the cause was called for trial and the finding of the jury was predicated upon the proofs of the plaintiff and witnesses produced by her.

On October 10th, 1931, defendant noticed the plaintiff of an application to be made to a justice of this court on October 12th, 1931, for an order to set aside this judgment and the levy under an execution issued under such judgment.

Upon a hearing of the matter the justice denied the application and an order to that effect was made October 13th, 1931.

On November 30th, 1931, the justice made an order directing that the execution issued under such judgment be stayed and the cause retried, upon the defendant depositing with the clerk of this court $4,000.

On December 1st, 1931, the plaintiff served notice upon the defendant of an application to be made to the justice on November 30th, 1931, to set aside his order of November 30th, 1931. After hearing the parties the justice denied the motion and signed such an order on December 7th, 1931.

Notice was then given by the plaintiff of an application to be made to this court to set aside the orders of November 30th and December 7th, 1931, and so that is the matter now before us.

Points 1, 2, 3 and 4 treat of the proceedings before the justice as an application for a new trial, and being so the proceeding was improper and not in accordance with the rules of this court.

But this is a false premise. The proceeding was not for a new trial but for an opening of the judgment so that the defendant might have his day in court and present and urge his defense.

Point 5 is that the order of November 30th, 1931, is legally ineffective because made and entered without notice to the plaintiff.

It seems to have been without direct notice, but the entire matter seems to have been thoroughly reheard and reconsidered on December 7th, 1931, upon the application of plaintiff to set aside such order so that we are unable to see how the plaintiff has been prejudiced by failure to have notice of the application for the order of November 30th, 1931.

Point 6 is that the order of November 30th, 1931, is without force because of a contrary previous order of October 13th, 1931.

This is not so. It is always open to the judge or the court to reverse and correct or modify orders in matters of this character.

The remaining point is that orders for new trials cannot be made except upon the showing of surprise and merit.

This was a matter for the consideration of and settlement by the justice making the orders, and the presumption is that he passed upon them in exercising his discretion in making the orders.

But aside from this the facts satisfy us that there was presented and shown both surprise and merit.

The application to set aside the orders is denied.


text:
    MALCOLM L. GADDIS, PLAINTIFF-RESPONDENT, v. MORTIMER C. GADDIS, DEFENDANT-APPELLANT.
    Submitted January term, 1932
    Decided April 9, 1932.
    Before Justices Campbell, Lloyd and Bodine.

      For the respondent, Frederick M. Barnes.

    For the appellant, Hiram Elfenbein.

   Per Curiam.

This was a suit upon a promissory note of $300 made by the defendant to the plaintiff. The defense was a total lack of consideration, to substantiate which, the defendant testified to the giving to him by the plaintiff of a note of $500 upon the maturity of which the plaintiff paid $250 and interest, but that to do so the defendant gave or loaned him the note in suit which was discounted by the plaintiff and credited to his bank account in order to make good his check for $250, payment on account of defendant’s $500 note.

This $500 note was proved and marked for identification. Subsequently defendant offered it in evidence and the trial judge refused the offer.

Points 1 and 3 urged for reversal are respectively error in refusing to nonsuit and to direct a verdict in favor of the appellant.

There was no error in the rulings upon these motions. There were disputed questions of fact which required jury action both at the time of moving the nonsuit and requesting the direction of verdict.

Point 2. That it was error for the trial judge to refuse to admit in evidence the note of $500. (Exhibit D-S for identification.)

We think this is so. It was what may be termed a piece of physical evidence, which by examination and reading would tend to corroborate the defendant’s testimony.

Point 4 is that the trial court erred in charging the jury, “that the burden of proving the failure of consideration was upon the defendant who has to prove this by the preponderance of the evidence and that if such was not proven by him by the preponderance of the evidence then they could find for the plaintiff * *

This instruction was erroneous and placed upon the appellant a prejudicial and harmful burden.

Section 24, Negotiable Instruments act (3 Comp. Siat., p. 3738) provides, “every negotiable instrument is deemed prima facie to have been issued for a valuable consideration * *

This simply makes for a prima facie presumption of consideration accorded by the statute which otherwise the holder of the instrument would be called upon to establish by proof. If there is no proof to the contrary, it stands and is controlling. If there is proof to the contrary, however strong, a jury question is presented. McCormack v. Williams, 88 N. J. L. 170.

Under this provision of the statute the plaintiff has the prima facie presumption of valuable consideration, subject to being rebutted and overcome. The burden of going forward with such proof is upon the defendant, but in the end, and ultimately, the burden is that of the plaintiff by proof plus the presumption as against proof by the defendant to the contrary to establish consideration by a fair preponderance of the evidence. That burden never shifts to the defendant.

An instruction to this effect seems to have been approved in Cockrell v. McKenna, 104 N. J. L. 592, 595.

For these reasons the judgment under review is reversed.


text:
    ALBERT E. SLEIGHT, PLAINTIFF-APPELLANT, v. BOARD OF EDUCATION OF THE CITY OF PATERSON, DEFENDANT-RESPONDENT. HENRY B. CROSBY, PLAINTIFF-APPELLANT, v. BOARD OF EDUCATION OF THE CITY OF PATERSON, DEFENDANT-RESPONDENT.
    Argued January 20, 1932
    Decided April 9, 1932.

      Before Justices Campbell, Lloyd and Bodine.
    Por the appellants, William B. Gourley.

    Por the respondent, Harold D. Green.

   Pee Cueiam.

These cases are similar, if not identical, in character and they are before us upon judgments final resulting from the striking out of complaints.

The complaints aver that the respective appellants performed services for the appellee in preparing plans and specifications for two certain proposed new school buildings, basing their right of recovery for reasonable worth and value upon the estimated costs of such respective buildings against which demands each gives credit for the sum of $4,000 paid on account of such services.

The defendant below answered and counter-claimed, and in such answers reserved the right to “object that the complaint discloses no cause of action, as defendant was unable to enter into any contract or incur any obligation with plaintiff, as alleged, as defendant had no money appropriated or authorized for such purpose.”

The trial court struck out the complaints.

In each instance the finding was, “on the ground that it discloses no cause of action.”

We must assume that this finding was based upon the objection contained in the notice reserved in the answer, namely, “as defendant had no money appropriated or authorized for such purpose.”

This is urged here by the appellee under sections 61, 74, 75 and 76 of the General School law (4 Gomp. Btat., pp. 4743, 4746, &c.), and further under section 129, of the same act (4 Gomp. Stat., p. 4769), as to which latter insistence we think the appellee may have and take nothing, because it was not included in or comprehended, nor for anything we have before us, urged or argued below. (Kules 42 and 43, Practice act, 1912.)

But this is of no moment as all of the objections are, in effect, that the alleged contracts are ultra vires the power and authority of the board of education to enter or engage in.

The appellants advance and urge three grounds why these judgments are erroneous and should be reversed. They are:

1. An architect can recover on a quantum meruit for services rendered by him to a city board of education, at its request, in the preparation of plans and specifications for a contemplated school building.

2. The board of education had power to engage plaintiffs and they were not bound to scrutinize the corporate proceedings concerning their compensation.

3. K"or could the defendant prevail if the question here touched the allegation of ultra vires as set out in the respective answers. (1) We think that point one is fully and completely answered against the insistence of appellants by Board v. Montclair, 76 N. J. L. 59; Montclair v. Baxter, Ibid. 68; Ely v. Newark, Ibid. 532; Wendell v. Hoboken, Ibid. 499; Niles v. West New York, 70 Id. 1; Fletcher v. Board, 85 Id. 1, and Potter v. Metuchen, 9 N. J. Adv. R. 393.

That there were no funds legally available to meet the obligations under these contracts is definitely determined by the stipulations of counsel entered into at the time of the argument of these causes before this court and made a part of the record and state of case, namely:

“That the board of education did not prepare and deliver to each member of the board of school estimate a statement of the amount of money estimated to be necessary for the purpose of paying the architect in these eases nor did the board of school estimate fix and determine the amount necessary for this purpose nor was any special appropriation made for such purpose.”

Further, there is nothing in the record before us establish-

ingy or even suggesting, that the board of education had any other appropriation or fund in hand which could be legally devoted to such purposes. (2) In substantiation of point 2, appellants cite Bigelow v. Perth Amboy, 25 N. J. L. 297; Wentink v. Passaic, 66 Id. 65, and Potter v. Metuchen, supra.

An examination of these cases and a comparison of them with the facts and circumstances of the eases sub judice will immediately, show that thejr are inapplicable. (3) Finally the appellants urge that even if their contracts were ultra vires, inasmuch as they fulty performed them, the board of education, is estopped from urging such plea or ground as a bar to their actions, citing Board of Education v. Surety Co., 83 N. J. L. 293.

But we conclude that appellants misconstrue this case. There the board of education had entered into a contract with one Steelman to erect a school building and he, as principal, with the Empire State Surety Company, as suretjr, had entered into a bond for the faithful performance of such contract. For failure of performance of the contract by Steel-man, the board of education brought suit upon the bond and the defendants pleaded, in bar of the action, that the eofatract was ultra vires because prior to the making thereof the plans and specifications had not been submitted to and approved by the state board of education. It was held by the Supreme Court that such plea was no bar to the action because the board of education in its complaint averred full performance of the contract on its part.

Appellants cite the Mowing portion of this opinion: “It is settled in this state that a corporation cannot avail itself of the defense of ultra vires when the contract has been in good faith fully performed by the other party and the corporation has had the full benefit of the performance. Camden and Atlantic Railroad Co. v. Mays Landing and Egg Harbor City Railroad Co., 48 N. J. L. 530. The same rule holds e converso. If the other party has had the benefit of a contract fully performed by the corporation, he will not be heard to object that the contract and performance were not within the legitimate powers of the corporation. Chester Glass Co. v. Dewey, 16 Mass. 94; Rutland and Burlington Railroad Co. v. Proctor, 29 Vt. 93; Union National Bank v. Matthew's, 98 U. S. 621; Parish v. Wheeler, 22 N. Y. 494; Whitney Arms Co. v. Barlow, 63 Id. 62. And this is true with relation to municipal as well as private corporations. Mayor, &c., New York v. Sonneborn, 113 Id. 423, 426; City of Buffalo v. Balcom, 134 Id. 532."

An examination of these cases demonstrates that not in a single one of them was the plea of ultra vires urged by the municipal corporation but by others against such a corporation or otherwise private, business corporations only, were involved.

Further, appellants entirely misconceive the situation in the case cited by them.

In this state the right of a municipal corporation to plead ultra vires in a cause such as that before us seems never to have been denied but, to the contrary, has always been upheld and permitted. N. J. & N. E. Telegraph Co., 34 N. J. Eq. 117; affirmed, Ibid. 580; Hackettstown v. Swackhammer, 37 N. J. L. 191; Potter v. Metuchen, supra.

While it may be said that there is a diversity in the holdings in the several states the substantial finding is in accord with the policy and doctrine in this state. 21 C. J. 1214, § 218, tit. “Estoppel,” also § 194, p. 1194, same title; 13 Id. 506, §§ 451, 454, tit. “Contracts44 Id. 122, § 2225, tit. “Municipal Corporations.”

But however, and whatever, the rule may be in other jurisdictions it is in this state firmly established that such plea is always at the hand of a municipal corporation.

We conclude, therefore, that the judgments under review should be affirmed.