text:
    THOMAS MELIA, PLAINTIFF, v. MALICKE BUS COMPANY, A CORPORATION, AND LOUIS GRASO, DEFENDANTS.
    Submitted January 25, 1929
    Decided October 14, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Bodine.
    For the plaintiff, Robert II. Doherty.

    For the defendants, Alexander M. MacLeod and George L. Record.

   Per Curiam.

As we read the evidence in this case, a rule to show cause should have been refused by the trial court. The facts are very simple and are established in large measure by the evidence of the defendants’ servant who was operating the bus that injured the plaintiff.

Plaintiff was crossing Exchange Place, Jersey City, from south to north on a crosswalk and had almost reached the northerly curb line. As he was crossing, the defendants’ bus under the management and control of defendants’ driver named Graso was standing at the northerly curb of Exchange Place about where it joins Montgomery street and facing west. As the plaintiff approached the curb, his route carried him to the rear of this bus, which backed down upon him and injured him.

The défendant claims there is no proof as to how the accident happened; but we think there was ample proof, and that a large portion of it came from the lips of Graso himself. As to the law, it is only necessary to quote the language of the Traffic act (Paviph. L. 1915, p. 288, § 3), reading as follows:

“Before backing, ample warning shall be given, and while backing, unceasing vigilance shall be exercised not to injure those behind.”

The driver testified that although he blew his horn perhaps once before moving, nevertheless, he failed to look back on his left side as he was backing, and the, testimony of the plaintiff was that no signal of any kind was given. In view of the drastic language of this statute, the defendants’ negligence seems clear.

It is claimed that the plaintiff was guilty of contributory negligence. We think this claim altogether unsubstantial. A pedestrian crossing such a street has about all he can do to see vehicles moving forward on his left and other vehicles moving forward on his right without pa3dng special attention to a standing bus pointed awa3r from him, and with respect to which he was entitled to assume that in case it was backed up the mandatory provisions of this statute would be reasonably obeyed.

The rule to show cause will be discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HARRIET A. MORBERG, ADMINISTRATRIX, ETC., PLAINTIFF, v. MORRIS & COMPANY, ET AL., DEFENDANTS.
    Submitted January 25, 1929
    Decided October 14, 1929.
    Before Guinns re, Chief Justice, and Justices Parker and Bodine.
    For the plaintiff, Charles S. Van Aulcen and Addison V. Rosenkrans.

    For the defendants, Wayne Dumont and William, V. Rosenkrans.

   Per Curiam.

The plaintiff’s intestate was killed by a Ford coupe of the defendant, driven by the defendant’s servant, running into him on the main street of Bloomingdale at night as he was crossing the street. The plaintiff has a verdict of $10,000, which is attacked as against the weight of evidence and as excessive. We are unable to see any merit in either of these points, and confess to some surprise that the rule should have been granted at all. The time was about seven-thirty at night, the weather clear, and the street that decedent was crossing, was sufficiently lit to make everything visible. The deceased, though not on a crosswalk, had reached the middle of the street headed for a street leading to his home and, as we read the evidence, was simply run down hv the defendant’s coupe, which threw him up in the air, landing on his head, and killed him. The fact that the left headlight of the coupe was smashed indicates that the deceased was a short step from safety. The testimony of the driver simply is to the effect that he was keeping a good lookout and that the deceased suddenly appeared from nowhere, and that he had no time to do anything. This testimony fails to impress us as particularly worthy of consideration, and we have no hesitation in saying that the verdict was not against the weight of evidence.

As to the damages; the deceased was a man of forty-seven years old, working in a silk factory as a weaver, and earning about $42 a week, with which he supported his wife and himself. It is plain that a very substantial pecuniary injury has' been sustained by the wife as next of kin, and we consider the verdict, under the circumstances, well within the bounds of moderation.

The rule to show cause will be discharged.


text:
    UNIVERSAL FINANCE CORPORATION, PLAINTIFF-RESPONDENT, v. MICHAEL KUNA ET UX., ET AL., DEFENDANTS-APPELLANTS.
    Argued October 1, 1929
    Decided October 14, 1929.
    Before Justices Parker, Black and Bodine.

      For the plaintiff-respondent, Michael G. Alenick.

    For the defendants-appellants, Joseph Zemel.

   Per Curiam.

This suit was brought in the First District Court of Newark. The state of demand declares on a promissory note for $500. The following is a copy of the promissory note sued on.

“$500.00/00 Newark, N. J., 12/18 19¡85
Three months After Date I Promise to pay to the
Order of Fred Waller Five Hundred no Dollars
Payable at Federal Trust Co.
Value received.
Michael Kuna
Eva Kuna
No. Due 3-18-29
with 6% interest
Endorsements
Fred Walter, Springfield, N. J., Box 224.
Universal Finance Corp.
E. F. Hardy, Gen. Mgr. Treas.”

(Note—Capitals indicate part of note printed while Italics indicate part of note written in.)

The case was tried by the judge without a jury resulting in a judgment for the plaintiff for $500. The defendants file four specifications of determinations with respect to which the appellants are dissatisfied in point of law. The fourth is the only one that calls for any discussion, viz.: The court erred in finding that the plaintiff was a holder of the instrument without notice of any defect therein. An examination of the promissory note with the testimony explaining the same shows that the following portions of the note were left blank, when signed by the defendants—$500.00/00—Three months—Fred Walter—Five Hundred no—Federal Trust Co. —with 6% interest.

The claim of the defendants was that they signed a receipt for $200. The trial judge found as a fact this was not so. The findings of fact by the trial court is supported by reliable evidence. With that conclusion of the trial court on the testimony in the record, we concur. The testimony of the defendants is uncertain and unreliable. The case is controlled by the Uniform Negotiable Instrument law. 3 Comp. Skat. p. 3736, §§ 14, 15, 16. The cases of Autographic Register Co. v. Lirio, 6 N. J. Mis. R. 134; Maurer v. Hahn, 6 N. J. Adv. R. 337; Asbury Path Electric Supply Co. v. Megill, 102 N. J. L. 496, are not in point. They are distinguished on the facts.

The judgment of the First District Court of Newark is therefore affirmed.


author: Pee Curiam.

text:
    STEPHEN KEREKES, PLAINTIFF-APPELLEE, v. HARRY STEIN AND MAX EPSTEIN, DEFENDANTS-APPELLANTS.
    Submitted January 25, 1929
    Decided October 14, 1929.
    Before Gummeke, Chief Justice, and Justices Pakkek and Bodine.
    For the plaintiff-appellee, Mark H. Stein.

    For the defendants-appellants, I. Faerber Coldenhorn.

   Pee Curiam.

We find no ground of appeal in this case which, is adequate to support a reversal, even if it be assumed that there was legal error at the trial. The first, second, third, fifth, sixth and tenth point to no ruling by the trial court. The fourth, seventh and eighth are merely general charges of error without any specification of the ruling. The ninth reads as follows:

“Because the action being for trover and a conversion, the value of the stock sought to be replevied should have been determined as to the date of the conversion and not as of the date of the trial.”

This also is insufficient as failing to point out the precise error attempted to be reviewed. We may add that it does not seem to be founded upon any valid exception.

Our courts have many times pointed out the necessity of assigning some ruling of the trail court in point of law or in the admission or rejection of evidence, and also of quoting verbatim, any portion of the charge to which exception was taken and which is alleged for error. A late case on this point is State v. Blaine, 104 N. J. L. 325; Rothstein’s Inc. v. Rothstein, 143 Atl. Rep. 366; 6 N. J. Adv. R. 1460.

The judgment will be affirmed.


text:
    HELMUTH ROBERTS v. MICHAEL VACCA AND LOUIS VACCA.
    Argued January 17, 1929
    Decided October 14, 1929.

      Before Gummere, Chibe Justice, and Justice Parker.
    Eor the plaintiff, Aaron L. Simon.

    For the defendant, William E. Holmwood.

   Per Curiam.

The plaintiff has a verdict of $35,000 as against both defendants as damages for physical injuries sustained on the night of February 12th, 1928, as a result of being struck by an automobile belonging to the defendant Michael and driven by the defendant Louis.

The verdict is attacked as against the weight of evidence, as excessive and as erroneous, because the judge, as claimed, erred in not directing a verdict in favor of the father.

As to the defendant Louis it is not claimed that the verdict was against the weight of evidence with respect to his negligence. However, a short statement of facts will not be out of place. The plaintiff had been driving his own car, with a young woman friend as a passenger, and at some place in the borough of Totowa the vacuum tank under the hood failed to function. Roberts ran his car over to the side of the road as far as practicable in view of the fact that it was winter and the earthen shoulders were muddy and difficult. He raised the hood and located the difficulty and then went and got a bottle which he filled with gasoline, and was in the act of filling up this vacuum tank when defendants’ automobile, driven by Louis, and occupied by another young man and three young women, came from behind and so close to Roberts’ car as to strike Roberts and severely injure him.

As to the general liability of Louis, no point is now made except that the verdict is excessive and, on due consideration, we conclude that it was. It is true that the plaintiff sustained a number of injuries more or less serious, the most severe of which at the present time seems to be a nose so badly injured that, if the evidence for the plaintiff is to believed, he is almost deprived of nose breathing. In addition to this, the scars on his face are a very humiliating disfigurement. Making allowance for the fact pointed out by defendants’ counsel that none of the physicians or surgeons that attended the plaintiff was called as a witness, but that all medical evidence was that of specially employed experts, nevertheless we think that a very substantial verdict was proper, but that $35,000 is obviously excessive. With respect to Louis, if the plaintiff will consent to a reduction of the verdict to $20,000, the rule to show cause will be discharged, otherwise it will be made absolute in the matter of damages only.

The question with regard to the father Michael stands on a somewhat different footing. The claim here made is that at the time of the accident Louis had so deviated from any employment of his father that the latter should not be held responsible for his acts on the principle of master and servant. It was admitted in the case that Louis habitually drove Michael’s car for him and that no one else did. The evidence seemed to show that both had been out that night visiting friends or relatives and that somewhere in the neighborhood lived the three young women. The evidence is plain, and is not seriously disputed, that Michael told Louis to go and get the girls. All the parties lived in Paterson. As we read the evidence, it is plain that the instructions of Michael to Louis were to go and get the young women and take them home. To do this the Yacea car should have proceeded to the northeast. The evidence further shows that when the three young women were loaded into the car some one suggested, and Louis agreed, that they should all go for a little ride before going home, and thereupon this car being driven by Louis, with the three young women and the other young man, started off toward the southwest in precisely the opposite direction. We are asked to hold that for this reason the court should have directed a verdict in favor of Michael. We are not so clear about the facts as to accede to that proposition, but we are clear that the great weight of evidence indicates that Louis, taking this party for a night ride instead of taking them home, was acting contrary to the instructions given him. The case, therefore, seems to come within the rule of Jennings v. Okin, 88 N. J. L. 659; Shefts v. Free, 146 Atl. Rep. 185; 7 N. J. Adv. R. 763, and Wilson v. Mason, 7 Id. 1049. As to Michael, therefore, the rule to show cause will be made absolute.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. CLARENCE BUTLER, PLAINTIFF IN ERROR.
    Submitted May term, 1929
    Decided October 14, 1929.
    For the plaintiff in error, William A. Hegarty.

    For the defendant in error, Orville V. Meslar.

    Before Justices Parker, Black and Bobine.
   Per Curiam.

The defendant was convicted of the carnal abuse of a woman child over the age of twelve and under the age of sixteen. The indictment charges that the defendant committed the offense on May 1st, 1928, at Dover. On December 5th, 1928, the defendant pleaded “not guilty.” On February 18th, 1929, a demand was made for a bill of particulars. The defendant asked for the name of the building where the offense occurred, the time when it occurred, and whether the state intended to prove a time other than the time alleged in the indictment, and if so, what that time was.

The answer to the bill of particulars states the place and fixes the time as the summer of 1928, between the hours of six a. ar. and ten p. m. For obvious reasons, the prosecutor could give no better information. The material witness, who testified that she had frequently been in the company of the defendant, could hardly be expected to fix specific dates.

The trial judge found that the answer was sufficient, and we think this ruling was proper. The rule is laid down in State v. Yanetti, 101 N. J. L. 85, 88.

“In State v. Shapiro, 89 N. J. L. 319, 322, this court Reid that where the date is not of the essence of the offense, it is not necessary to prove that it was committed on the date laid in the indictment. In that respect it is always open to the state to offer proof that the offense charged was committed on any day wihin the period not covered by the statute of limitations.

“We hold that in an indictment for carnal abuse the averment of the time of the commission of the act is formal and not of the essence of the offense, because it is not a legal constituent of the crime, which is a crime whenever committed; and in a prosecution for carnal abuse, proof from which it may be inferred that the offense was committed on the day named in the indictment, or on any day without the statute of limitations, is sufficient to sustain a conviction.”

At the close of the state’s case, the proofs were perfectly clear. True, no precise date was fixed, but the offense was shown to have occurred in the summer of 1928. Under the case of State v. Yanetti, supra, the ruling of the trial judge in refusing to direct a verdict for the defense was proper.

At the close of the case, the refusal of the motion to direct a verdict was proper. True, the state had shown various times when similar offenses were committed between the same parties. The case of State v. Sing Lee, 94 N. J. L. 266, is not in point since in that case it was sought to amend the indictment so as to cover several offenses. In State v. Lanto, 99 Id. 95, the rule is stated:

“In State v. Raymond, 53 N. J. L. 260, it is laid down that wherever defendant’s guilt of an extraneous crime tends to prove against him some particular element of the crime for which he is being tried, such guilt may be shown.

“The commission of the sexual act in one or more instances, we think, tends to prove it in another instance, and our eases so decide.

“In State v. Snover, 65 N. J. L. 289, this court held that in prosecutions for adultery evidence of prior offenses of like character between the same parties is admissible, although it may be shown that the accused was guilty of an extraneous offense. To the same effect are State v. Jackson, 65 Id. 62; State v. Cannon, 72 Id. 46; State v. Girone, 91 Id. 498; State v. Faulks, 97 Id. 408. The three latter cases concern carnal abuse. These are all cases where the criminal acts were between the same parties.” In accord see State v. Calabrese, 99 Id. 312; affirmed, 100 Id. 412.

After carefully considering the ruling of the trial judge on the admission of evidence assigned as error, we conclude that his rulings were well within judicial discretion.

The cross-examination of the physician called in behalf of the defense, was in all respect proper, and it would have been a grave miscarriage of justice if the prosecution had p.ot been permitted to probe into the meaning of the physician’s testimony. The testimony of this physician made necessary the calling of an expert of the defense and the admission of his testimony was both proper and discreet.

The defense having offered medical testimony tending to show that the crime could not have been committed by the defendant, the state was under a duty to offer evidence in rebuttal. Such testimony is not collateral. State v. Claymonst, 97 N. J. L. 345, has no application. Eor the same reasons, we are of the opinion that the rebuttal testimony of Agnes Eeil and Alberta Eobinson was made necessary by the testimony offered in behalf of the defendant.

It is argued that the jury were misled by the portion of the charge in which the court adverted to the statute defining the grades of carnal abuse as dependent upon the age of the child. The law seems to have been charged in a substantially correct manner. Mere inartistic expressions in a part of a charge cannot be segregated to invalidate the whole.

The trial judge refused to charge the defendant’s fifteenth request. This request related to the weight to be accorded to reputation testimony. The trial judge had substantially charged the point in accordance with the law in his main charge. There must be an end to everything, and the trial judge is under no duty to repeat in different form that which he has already said in substance.

Our examination of the whole ease leads us to believe that the verdict of the jury was in accordance with the evidence, and that the appeal should be dismissed.


author: Peb Cueiam.

text:
    JACK I. STONE AND SIDNEY KULICK, PLAINTIFFS, v. HENRY J. DEWARNS, BY HIS NEXT FRIEND, GUARDIAN AD LITEM, HENRY DEWARNS, DEFENDANT.
    Submitted January 25, 1929
    Decided October 14, 1929.

      Before Gummebe, Chief Justice, and Justices Paekeb and Bodine.
    Eor the plaintiffs, Aaron L. Simon.

    Eor the defendant, George E. Cutley.

   Peb Cueiam.

This case arises out of a collision between two automobiles on the Hudson county boulevard. The plaintiff Stone with plaintiff Kulick as a passenger was going south; and the defendant, who was headed north, proceeded to turn to the west to his own léft into a street called Traphagen street, which turn would take him across the front of the Stone car. Each driver undertook to cast the blame upon the other, but the fact is that the Stone car hit the defendant’s car on the right run board. Stone sued for damage to his car and loss of profits from its use, and Kulick sued for personal injuries. The defendant counter-claimed against Stone for damages to defendant’s car. The jury found no cause of action for either plaintiff against the defendant, and no cause of action for defendant on his counter-claim. There is no rule to show cause as to Stone.

Eor the plaintiff Kulick it is argued on this rule that inasmuch as the jury found against Dewarns’ counter-claim they necessarily found that the defendant was guilty of contributory negligence, leading to the conclusion, and in support of this testimony, was admitted to show that the defendant agreed to pay for the damage to Stone’s car. This argument seems sound unless we are to take the verdict as meaning that the jury considered neither party to have been negligent. The testimony, however, hardly supports any such theory of the case, and in our judgment, the rule as to Kulick should be made absolute. The ease is ngt unlike Hoffman v. Smith and Apgar, 6 N. J. Mis. R. 1090; and the legal situation of the plaintiff is similar to that discussed in Lange v. New York, Susquehanna and Western Railroad Co., 89 N. J. L. 604.


author: Pee Cukiam.

text:
    SALEM GLASS WORKS v. MARGRET MULLER (IMPLEADED, ETC.).
    Argued January 16, 1929
    Decided October 14, 1929.
    Before Gummeee, Chief Justice, and Justice Pakicee.
    Eor the plaintiff, Harry B. Cooper.

    Eor the defendant, Joseph Silverstein.

   Pee Cukiam.

The suit in its present aspects is against the alleged endorser of two trade acceptances in the hands of the plaintiff as a holder in due course. The only question argued is one of fact, and is whether the endorsements appearing to be those of the defendant, Margret Muller, are her proper endorsements. She is a woman over eighty years of age and, being sworn as a witness, denied the genuiness of her signature, and it was not claimed that it had been signed by anyone else with her authority. The witness Wentworth for the plaintiff testified with much particularity about visiting Mrs. Muller at her house and seeing her sign the two endorsements, using a pen and ink which her grandson, Eay Muller, according to Wentworth’s testimony, produced for that purpose. This is the only evidence before us of the genuiness of Mrs. Muller’s signature and it is flatly contradicted by her testimony. Eay Muller was not sworn by either party as a witness, no expert of any handwriting was called in, nor was any ordinary witness who claimed to be familiar with Mrs. Muller’s signature or with her handwriting. Mrs. Muller, at the suggestion of her counsel, made specimens of her writing at the trial which were put in evidence and which were used by the jury, but are not submitted to us, nor are the trade acceptances nor the photostatic copies thereof which seem to have been used at the trial. Under these circumstances we are clear that the verdict of the jury on this question of fact should not be disturbed, even though the court charged the jury (erroneously as it seems to us) that the burden was upon Mrs. Muller to show that her signature was fraudulent. The remarks of the court touching the age of the defendant and the possibility that the Court of Chancery should look over her interests, may have been superfluous and perhaps ill-advised; but in our judgment they are not a sufficient justification for setting aside this verdict.

The rule to show cause will therefore be discharged.


text:
    METROPOLITAN SECURITIES CORPORATION v. JACOB BELSKY (IMPLEADED, ETC.).
    Submitted January 25, 1929
    Decided October 14, 1929.
    Before Gummeee, Chibe Justice, and Justices Paeicee and Bodine.
    For the plaintiff, Harold Simandl.

    For the defendant, John W. Ochford.

   Pee Curiam.

The question in the ease, which is one almost altogether of fact, is whether proper notice was given to the defendant as the endorser on a promissory note. There was some dispute at the trial with respect to the presentment of the note for payment but that point is now waived and the only question now pressed relates to the matter of notice.

Belsky did not add his address to his endorsement and therefore, in the ordinary course of events, the notice intended for him and made out by the notary of the Plainfield bank where the note was made payable, was sent by that bank to a bank in Bayonne, and the latter bank sent out the notice to the plaintiff who was then holder.

No claim is made that Belsky ever received this notice; but the plaintiff’s case rested on the claim that one Mischkin, president of the plaintiff, learned of the non-payment of the note on the day after it was presented and immediately sent an independent notice to Belsky at his proper address in Weehawken. A copy of the alleged notice as printed in the case contains the correct address.

It is not seriously suggested that this notice, if sent, was sent out too late.

In fact, if so sent, it would normally have reached Belsky a day sooner than the notice made out by the notary. The presentment was properly made on May 31st and the notary sent his notices to the Bayonne bank on that day so that they should have reached the bank on June 1st, and the bank should have sent them immediately to Mischkin, who, in all probability, would not have received them until June 2d. Consequently, if Mischkin, learning of the non-payment on June 1st from Bayonne bank, had immediately sent his own notice to the defendant, it would be within due time.

The only question therefore is whether the jury went astray in believing the testimony of Mischkin about sending out this notice. His testimony is attacked in the brief as incredible, but we are unable to say on this rule that it was unworthy of credit. The plaintiff was a finance corporation dealing habitually in paper of this kind and dealing with customers of all classes. It may well be that in self protection, the plaintiff corporation took no unnecessary chances with respect to endorsers on its paper. Furthermore, it is pointedly suggested that if Mischkin was going to swear falsely about sending out the notice from his own office, he might with equal plausibility have sworn to sending out the notices received from the bank.

The rule to show cause will be discharged.


text:
    CONSOLIDATED PLAN OF NEW JERSEY, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. MEYER SHANHOLTZ, MOLLIE SHANHOLTZ AND ADOLF PALKOWITZ, DEFENDANTS-APPELLEES.
    Decided October 14, 1929.
    Before Justices Parker, Black and Bobine.
    For the plaintiff-appellant, Lewis S. Jacobson.

    For the defendants-appellees, Jacob I. Polhowitz.

   Per Curiam.

The plaintiff below, a loan company organized under the act of 1914, brought suit upon a promissory note. The District Court entered a judgment in favor of the defendant and the plaintiff appeals. The note, so far as pertinent, provides' as follows:

“New Brunswick, N. J., January 18, 1929.

“We, the undersigned jointly and severally, for value received, promise to pay to the order of Consolidated Plan of New Jersey, Inc., at its Office, 137 Albany street, New Brunswick, N. J., the sum of one hundred fifty dollars * * * in monthly installments * * * until * * * the * * * balance * * * shall be paid, together with interest on all unpaid balances of said principal, at the rate of three per cent, per month. * * *

“Upon default in the payment of the whole or any part of this note, the undersigned jointly and severally further agree to pay * * * all reasonable costs including attorney’s fees that may be incurred in collecting the whole or any part of this note, said attorney’s fees to be fixed at fifteen ($15) dollars plus fifteen (15%) per cent, of the amount of such sum of principal and interest then due, provided, the same shall not be construed to charge any or all of the undersigned to obligate them to pay any interest charges, bonus, fees, expense or demands of any nature whatsoever in excess of that now allowed by chapter 49 of the laws of 1914 of the State of New Jersey and the amendments thereof.”

The plaintiff’s state of demand seeks the recovery of the principal due upon the note, with interest at the rate of three per cent, a month and the attorney’s fees called for in the note.

The District Court held the note void as a violation of Pamph. L. 1914, ch. 49, § 5. The act in question is entitled: “An act to define, regulate and control the business of the making of loans or advancements of money in sums of three hundred ($300) dollars or less in amount, and to regulate the assignment of wages when given as security for any such loan or advancement.”

Section 5, so far as pertinent, provides: “No such licensee shall charge or receive of the borrower or borrowers, of any other person on his, her or their' behalf, a greater rate of interest than three per centum per month. Such interest shall not he payable in advance and shall be computed on unpaid balances. No charges, bonus, fees, expense or demands of any nature whatsoever other than interest as above provided shall be made upon such loans or advancements except upon the actual foreclosure of the security or upon the entry of judgment.”

Section 6 is as follows: “The violation of any provision of this act shall be a misdemeanor, and if such violation be by a corporation, then such violation shall be a misdemeanor on the part of any person participating therein as a representative or agent of said corporation. Every loan in connection with such violation shall have occurred shall be absolutely null and void, and the borrower shall be entitled to recover from the lender any or all sums paid or returned on account of or in connection with such loan.”

Obviously, if it were not for the provision in the note that it is not to be construed to violate the statute in question, the exaction of the forbidden fee would render the instrument void.

“Commercial paper cannot be based on any consideration which is a violation of an express statutory provision.” 8 Corp. Jur. 243.

The legislature having forbidden the making of charges, fees and demands other than interest upon these small loans, the lender has exacted that in the instrument which, under the statute, renders his note void. By saying in the note that the exaction is not to be construed as a violation of the legislative prohibition does not save the situation. We are not construing the note as an exaction of that which is forbidden. The note itself calls for that which is forbidden, and the lender having sought that which he was not entitled to cannot be heard to say that that which he seeks he does not seek. Legislative enactments are not to be played fast and loose with, and corporations who violate the law cannot be heard to say that they did not intend that their violations of the law should be construed as such. They, like all others, must stand or fall by their own acts.

The judgment below is affirmed, with costs.


author: Pee Cueiam.

text:
    JOSEPH A. CLARKEN, PLAINTIFF, v. LEWIS ROSENBERG, DEFENDANT.
    Argued January 17, 1929
    Decided October 14, 1929.
    Before Gummeee, Chief Justice, and Justice Paeicee.
    Por the plaintiff, Lionel P. Krisieller.

    Por the defendant, Salvatore La Corle.

   Pee Cueiam.

Plaintiff recovered a judgment for the amount charged for medical and surgical attendance rendered to a Mrs. Carew at the request, as alleged, of the defendant. The defense was a denial of the making of any promise to pay, and also that the promise, if made, was collateral and not in writing.

The circumstances are a little out of the ordinary. It appears that Mrs. Carew was a patient of the defendant who is a dentist, and that the defendant was desirous of making use of Mrs. Carew as an exhibit in his line at some meeting in Yew York, and, accordingly, invited her to go there. Por some reason, Mrs. Carew’s car was used for the trip, but at her request the defendant, Eosenberg, drove the car, and while on the way there was a collision as a result of which Mrs. Carew’s nose was very badly fractured and she was taken to the hospital, and attended in the first instance by a young interne named Sbarra. Defendant, Eosenberg, was also taken to the same hospital for injuries of his own, and while there inquired about Mrs. Carew, and said to Doctor Sbarra, according to the testimony, “see to it that the nose is fixed up right and get the right man to do it and I will take care of the bill.” Sbarra thereupon, in view of these instructions, employed the plaintiff who was visiting surgeon at the hospital and who took charge of the case and attended to Mrs. Carew in regular course. Plaintiff and defendant had no direct communication with each other, and plaintiff testified that the orders he received were those transmitted by Doctor Sbarra. Plaintiff admitted that he knew Mrs. Carew was a married woman, but never saw her husband, although he visited her at her home for treatment after she left the hospital. There are other circumstances in the case on which it is unnecessary to dwell at this time.

The first reason urged is that the court erred in refusing to nonsuit, and stress is laid on the fact that plaintiff did not testify that Sbarra told him the defendant was his employer. That, however, would not, in our estimation, lead to a nonsuit. It is also urged that the evidence shows a collateral promise. Our view is to the contrary. If the testimony above recited is to be believed, it would seem fairly clear that the defendant assumed the immediate responsibility for the surgeon’s bill, that' he authorized Sbarra to employ a proper surgeon, and that the plaintiff accepted the employment with that understanding.

The second reason is the failure of the court to direct a verdict, and this is controlled by the same considerations just stated.'

Reasons 3 to 7 go to the weight of evidence. The questions in the case were for the jury, and we are unable to say that they reached a wrong finding on the evidence.

The last reason is that the damages are excessive. The amount claimed was $900, and the jury found a verdict for that amount. We are similarly unable to say that this verdict was excessive. The injuries were very severe and required the best of skilled treatment over a somewhat extended period.

The rule to show cause will be discharged.


author: Per Curiatvt.

text:
    PHILIP CITRIN AND SAMUEL ELKIN, TRADING AS CITRIN & ELKIN, PLAINTIFFS-RESPONDENTS, v. MICHAEL J. TANSEY, DEFENDANT-APPELLANT.
    Decided October 14, 1929.
    For the defendant-appellant, Michael J. Tansey and Francis J. Tansey.

    For the plaintiffs-respondents, Benjamin Gershenson.

    Before Justices Parker, Black and Bodine.
   Per Curiatvt.

A suit was brought upon two promissory notes, which the defendant had given to Nelson and Duchin, who were' doing painting and paperhanging work on his farm at Colts Neck. These notes were given to the plaintiffs in payment for paint and merchandise.

The defendant offered himself as a witness in an attempt to show that the plaintiffs were not holders in due course for value. His testimony was to the effect that a man who said he was Citrin, whom he could not identify, said that the notes were put in for collection.

The District Court judge quite properly took the case from the jury and directed a verdict for the plaintiff.

The testimony of Mr. Tansey was not legal evidence, such as would bind the plaintiffs. Parties to a suit cannot bo deprived of their legal rights by the statements of someone whom somebody thought might be one of the parties to the suit.

The testimony of Mr. Tansey respecting the giving of the notes violates the parol evidence rule and was quite properly dealt with by the learned District Court judge.

The judgment appealed from will be affirmed, with costs.


text:
    LIDA A. ENDICOTT, EXECUTRIX, ETC., PLAINTIFF, v. HARRY GARFINKEL ET AL., DEFENDANTS.
    Argued October 2, 1929
    Decided October 14, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff, Burton A. Gashill.

    Eor the defendants, Cole ■& Cole.

   Per Curiam.

This suit was brought to recover damages under the Death act. The trial resulted in a verdict for the plaintiff for $20,000 against the defendants Harry Garfinkel and Milton Garfinkel and a verdict in favor of the defendant Timothy Cordery on the counter-claim for $200. The Garfinkels obtained a rule to show cause from the trial court. The defendants write down eight reasons for a new trial. They do not call for any extended or elaborate discussion. The facts shortly summarized out of which the cause of action arose are these: Thomas D. Endicott, the plaintiff’s testate, at or about seven forty-five a. m. of May 14th, 1928, was riding as an invited guest in the Ford automobile of Timothy Oordery. Mr. Cordery was driving his automobile on the paved portion of the xkbsecon Boulevard, a public highway, going in a general easterly direction on the boulevard, in Atlantic City. At the same time, a Chevrolet automobile, owned by the defendant Harry Garfinkel, and driven by Milton Garfinkel, was being operated on Indiana avenue in a general northwesterly direction toward the Absecon Boulevard. A collision occurred between the two automobiles causing the death of Thomas D. Endicott, the plaintiff’s testate. Negligence being charged against the defendants.

That the verdict is against the weight of the evidence may be briefly disposed of under the rule stated in 1 Thomp. Negl. § 1322; cited with approval in the ease of Fox v. Great Atlantic, &c., Tea Co., 84 N. J. L. 728.

Cases of collision on highways almost invariably involve questions of concurrent negligence on the part of both actors. The verdict, as we read the testimony, is not against the weight of the evidence. The verdict of $20,000 seems to us under the evidence clearly excessive and should be reduced to $15,000.

The deceased was fifty-eight years of age at the time of his death. He became a carpenter at the age of eighteen years, thus having been engaged for forty years in the trade.' He was earning $66 per week—according to the American Experience Tables he had an expectancy of fifteen and thirty-nine-one hundredths years. The next of kin consists of the widow, aged fifty-nine, entirely dependent on the deceased; a daughter, Helen Loveland, aged thirty-one, to whom the deceased contributed services in repairing her home without charge; a son, Frank S., aged twenty-nine, to whom the deceased contributed nothing; a daughter, Carrie J., aged twenty-six, who was employed, but to whom the deceased contributed her board and lodging and medical attendance when necessary; a son, Thomas, Jr., aged nineteen, to whom the deceased contributed board and lodging; and last, Rebecca B., aged seventeen, a high school girl, to whom the deceased contributed a home—both board, lodging and clothing.

None of the other reasons for a new trial call for any discussion. If the plaintiff will accept $15,000 a verdict for that amount may stand and the rule discharged, otherwise the rule will be made absolute.


author: Pee Ctjeiam:.

text:
    STANTON M. PASCAL ET AL., PARTNERS, ETC., APPELLEES, v. MONROE D. HESS, APPELLANT.
    Argued October 1, 1929
    Decided October 15, 1929.
    Before Justices Paekek, Black and Bodine.
    Eor the appellant, Lionel P. Kristeller (Saul J. Zuclcer, on the brief).
    Eor the appellee, George Furst.

   Pee Ctjeiam:.

The controlling question is whether the trial court erred in directing a verdict for plaintiff.

Plaintiffs are stock brokers and sued for a balance of $187.50 claimed to be due them from defendant in a stock transaction. The state of demand was in two counts, the first based on the theory of having purchased the sotck for defendant at his request, defendant’s refusal to take the stock and reimburse them ior their cash outlay and commission, and a net loss sustained on their resale of the stock for defendant’s account. The second count was based on the theory of a direct contract of sale and purchase between plaintiffs and defendant, and the refusal of defendant to accept and pay for the stock. At the trial plaintiffs were required to elect on which count they would proceed, and without objecting, elected to proceed on the first, and waived the second. Their claim was therefore restricted to the theory of the first count.

It may well be, though we do not decide the point, that the jury would have been justified in finding that the transaction was of the nature set up in the first count. But wo do decide, that they would have been legally justified on the evidence in saying that it was a direct contract of sale between the parties, which would probably be unenforceable on account of the statute of frauds. The written statement by plaintiffs to defendant confirms a “sale to him.” Their own letter threatening resale and suit speaks of stock “which we sold to you some days ago.” Their final statement after resale and claiming a balance reads in part, “we have sold to you one hundred shares,” &c. The testimony of one of the partners may be taken as treating the matter in the -same way. Plaintiffs did not report purchase price plus commission, and did not charge a commission on resale.

We consider that in the face of such evidence as this, it was clearly erroneous to direct a verdict for the plaintiffs. The judgment will therefore be reversed to the end that a new trial be had.


text:
    MANUFACTURERS TRUST COMPANY OF NEW YORK, PLAINTIFF-APPELLEE, v. MAX WECHSLER, DEFENDANT-APPELLANT.
    Decided October 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker, and Bodine.
    Por the defendant-appellant, Cohen & Klein.

    Por the plaintiff-appellee, John D. Craven.

   Per Curiam.

The plaintiff brought suit on a note purchased for value and before maturity made by the Mohawk Metal Toy Company, Incorporated, of which the defendant, Max Wechsler, was president, to the order of The Perdinand Strauss Corporation endorsed both by the payee and Wechsler individually. The note was duly protested for non-payment and notice of dishonor was given to all save the endorser, Max Wechsler, who is the defendant in this action.

It appears that prior to maturity of the note Wechsler, a creditor, filed a petition in insolvency in the United States District Court against the Mohawk Metal Toy Company, Incorporated, seeking the appointment ,of a receiver and alleging insolvency. The court below held the act of Wechsler an implied waiver of notice of dishonor under section 109 of the Negotiable Instrument act adopted in this state. The answer was struck and summary judgment entered. Section 26 of the Practice act.

It is to be noted that the endorser Wechsler, when he filed the receivership bill in the United States District Court alleging under oath insolvency, put it beyond the power of the corporate maker of which he was president to meet the note at maturity. Further, he knew before maturity that an injunction procured at his instance made it impossible for the maker to pay the note. He knew, therefore, that the note would not and could not be met because of his acts. Such conduct constituted a waiver of notice. O’Bannon Co. v. Curran, 129 App. Div. 91.

Some question is raised as to the lack of proof of plaintiff’s title to the note. On this point the proofs do show that the Ferdinand Strauss Corporaion was a regular customer of the plaintiff and upon the endorsement in its corporate name made by its vice-president the note was discounted and the proceeds placed to its credit. This is enough.

The judgment will be affirmed.


text:
    FREDERICK F. KLAWSON AND CAROLINE KLAWSON, HIS WIFE, PLAINTIFFS-RESPONDENTS, v. JOSEPH MAYO, DEFENDANT-APPELLANT.
    Decided October 16, 1929.
    Before Gun mere, Chief Justice, and Justices Parker and Bodine.
    For the defendant-appellant, John A. Matthews.

    For the plaintiffs-respondents, Messrs. King & O’Brien.

   Per Curiam.

The plaintiffs recovered judgments against the defendant.

Our examination of the testimony in this case leads us to the conclusion that there were disputed questions of fact which were properly submitted to the jury by the trial judge, and that hence there was no error in refusing to nonsuit the plaintiffs nor in refusing to direct a verdict for the defendant. Rush v. Commercial Realty Co., 7 N. J. Mis. R. 337.

The judgment will be affirmed.


text:
    SAMUEL B. THOMPSON, PLAINTIFF-RESPONDENT, v. CENTRAL RAILROAD OF NEW JERSEY, DEFENDANT-APPELLANT.
    Decided October 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Bodine.
    Eor the defendant-appellant, William A. Barlcalow {Be Toe Tomlinson, of counsel).
    Eor the plaintiff-respondent, Bari A. Merrill.

   Per Curiam.

The plaintiff recovered a verdict against the defendant in the sum of $12,500.

Our examination of the testimony in this case leads us to the conclusion that the defendant’s negligence was clearly established, and that the plaintiff was not shown to have been negligent in any particular. Eurther, the damages recovered, in the light of the testimony submitted at the trial, were not excessive.

The rule will be discharged.


author: Siegler, J.

text:
    Essex County Juvenile Court.
    FRANK LA FERRA, OVERSEER OF THE POOR IN BEHALF OF ELIZABETH FINHANDLER, PLAINTIFF, v. WILLIAM SHERWOOD WATTS, DEFENDANT.
   Siegler, J.

The real party plaintiff _ is Elizabeth Einhandler, bringing this action through the overseer of the poor of the city of Newark, complaining that on March 13th, 1924, there was born to the plaintiff, Elizabeth Einhandler, a bastard child, and that the father of said child is William Sherwood Watts, the defendant in this cause.

The proof shows that Mrs. Finhandler was a married woman at the time of the birth of this alleged bastard child, and that her marriage name was Mrs. Samuel Cohen, she having been married to Mr. Cohen in 1912. The proof further shows that Mr. Cohen instituted an action in the city of New York for divorce, and obtained his final decree against Mrs. Einhandler after the birth of the alleged bastard child.

It appears that Mrs. Einhandler made the acquaintance of the defendant sometime in the month of May, 1923, on Broad street, Newark, New Jersey, and that this acquaintanceship ripened into an intimate friendship which continued between these parties until September, 1923. Mrs. Einhandler claims that the defendant is the father of the child, notwithstanding the fact that she had a husband living during the whole period that she was going around with the defendant.

The defendant admits having made the acquaintance of Mrs. Einhandler, as stated by her, and that he had taken her out on many occasions, but denies that he ever had any intimate relations with her. He also says that he severed his relations with her sometime in July or August, 1923, when he heard that she was a married woman.

The legal questions -raised by the defendant are: Eirst, that the child is not a charge on the public, nor is it likely to become a charge on the public, and second, that the plaintiff has failed to prove non-access of her husband.

The examination of the evidence establishes the fact that Mrs. Einhandler is now the owner of real estate consisting of a one-family house in the city of Atlantic City, New Jersey, in which there is an admitted equity of at least four thousand five hundred ($4,500) dollars. The evidence further establishes that the overseer of the poor, at the time he made his complaint, had no knowledge of Mrs. Einhandler’s ownership of this real estate, nor did Mrs. Finhandler supply to the overseer of the poor this information. I am satisfied that if the overseer of the poor had known that Mrs. Einhandler was the owner of this real estate, and owned a clear equity in the neighboorhood of four thousand five hundred ($4,500) dollars, this complaint would not have been made, alleging that this child would likely become a charge on the. public. This, of course, is beside the point just now, because notwithstanding the fact that the plaintiff is able to maintain this child, and the child is not likely to become a charge on the public, it is not for the court to determine this fact, as it is entirely a matter for determination for the overseer of the poor, who brings this action. When the overseer of the poor files a complaint and requests a warrant for the apprehension of a defendant in this kind of proceeding, he acts in a gmm-judicial capacity. The determination of the overseer of the poor that the child would be likely to become a charge upon the county or the city is one that rests solely with the overseer of the poor, and it is not a matter that can be considered by the court. Donnelly, Overseer of the Poor, v. Passaic County, 6 N. J. Mis. R. 247.

Therefore, notwithstanding the plaintiff’s ability to support this child, as appears from the evidence, and that the child is not likely to become a charge on the public, the determination of the overseer of the poor is sufficient to supply the jurisdictional elements to support the complaint.

The second point, that a married woman before she can succeed in a bastardy proceeding must show non-access of the husband. Of course, this is elementary. It is a well-established rule that a child born in wedlock is presumed to be legitimate, and for a married woman to succeed in a bastardy proceeding it is necessary for her to overcome that presumption by showing non-access of her husband. State v. Overseer of the Poor, 24 N. J. L. 533; Powell v. State, 84 Ohio St. 165; 36 L. R. A. (N. S.) 255.

The proof fails to satisfy me that there was no access by Mrs. Einhandler’s husband. Therefore, as far as this cause is concerned, the child was born in wedlock.

Assuming for the purpose of this discussion that the plaintiff has proven non-access of her husband, the plaintiff has failed to maintain the burden of proof that she is charged with to sustain, that is to say, that the alleged bastard child is that of the defendant. Plaintiff, in support of this contention, adduced the testimony of Mrs. Yon Yanderstein and Mrs. Briscoe. Mrs. Aron Yanderstein testified that Mrs. Einhandler visited the apartment of the defendant on week-ends. There is also just as forcible testimony adduced by the defendant through the mouth of Mrs. Allen, who lived on Quitman street, Newark, the place where Mrs. Einhandler made her home during the period from sometime in May to August, 1923, this being the period when the defendant and Mrs. Einhandler went out with each other. Mrs. Allen further says that Mrs. Finhandler went out on several occasions with a Mr. Layton, who called at the house for her, and that on more than one occasion Mrs. Einhandler went away with Mr. Layton, and did not return home those nights. Mrs. Allen further says that Mrs. Finhandler instructed her to tell Mr. Watts, if he came to call for her (Mrs. Einhandler), when she was out with Mr. Layton, that she was on a case; and when speaking about week-end parties, Mrs. Einhandler told Mrs. Allen that “she [Mrs. Einhandler] was good enough for Mr. Watts through the week, but the weekends he [Watts] was not good enough for her.”

■ These meetings with Mr. Layton were taking place during the same period of time that the defendant was meeting Mrs. Finhandler. There is, from the evidence in this case, as much reason to believe that the child is that of Layton as it is of this defendant. At any rate, the evidence fails to convince me that the defendant is the father of this child. The proof should be strong and convincing, before fastening parentage upon a person charged with an offense of this nature. I am not so convinced, after a very careful consideration of all the proof adduced.

The court had the benefit of an inspection of the alleged bastard child offered in evidence. After a thorough comparison with the defendant, I cannot find either resemblance or features which are similar.

I find that the defendant, William Sherwood Watts, is not the father of the alleged bastard child, and I further find that he is not guilty of the charge made in the complaint against him.


text:
    CATHARINE ZITO AND ANTHONY ZITO, AS THE HUSBAND OF CATHARINE ZITO, PLAINTIFFS, v. JOHN W. INGERSOLL AND HARRY L. MURPHY, JOINTLY AND SEVERALLY, DEFENDANTS.
    Argued January 17, 1929
    Decided October 14, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    For the plaintiffs, Burton A. Gaskill.

    For the defendant John W. Ingersoll, Thompson & Hansiein.

    For the defendant Harry L. Murphy, Cole & Cole.

   Pee Curiam.

The case arises out of a collision of two automobiles, one owned and driven by defendant Murphy, and the other owned and driven by defendant Ingersoll. The two cars met head on and late at night,'each driver accusing the other of having been on the wrong side of the road. Mrs. Zito, the female plaintiff, was a passenger in the Murphy car and was quite seriously injured and her husband claimed damages by reason thereof.

The first reason argued is that the verdicts were excessive. The verdict in favor of Mrs. Zito, which was against Murphy alone, Ingersoll being ignored by the jury, was for $5,000, and for her husband $1,060. The argument goes principally if not entirely in challenge of the $5,000 verdict. The evidence shows that Mrs. Zito was shot through the window of the Murphy car on the ground, the car fell over on her and she could not be extricated until the car was absolutely lifted off of her by several men. She was in the hospital two weeks, in great pain, the diagnosis being concussion of the brain, contusion at the back of the head, brush burns of the legs and a sacro-iliac sprain. It is common knowledge that an injury to this part of the back is likely to be obscure, persistent and often permanent. On the whole, we are not disposed to say that the verdict is so unreasonably excessive as that the court ought to set it aside or cut it down.

The next point is that the verdict was against the weight of evidence. The argument under this head consists substantially of the claim that Murphy was very drunk, so drunk, in fact, that Mrs. Zito was necessarily aware of it, and that she was guilty of negligence by riding in his car. As Murphy had taken the Zito party from Hammonton to Ocean City in the evening and it was late at night and all parties necessarily had to go home, it is difficult to see what Mrs. Zito could have done under the circumstances except go back in the car in which she came. However, it will be sufficient to say on this point that the question of Murphy’s intoxication was vigorously disputed. The suit being against both Murphy and Ingersoll, each of the defendants claiming that it was the fault of the other, we naturally find in the testimony for Ingersoll that the witnesses say Murphy was intoxicated; on the other hand, Murphy, throughout the case, vigorously protested that he was not intoxicated in any degree whatsoever, and there is corroboration of this by his wife and a Mrs. Barefoot, who was sworn as a witness, and both of whom were in the Murphy car. The jury certainly did not act unreasonably in concluding that the suggestion of Murphy’s intoxication as a basis for contributory negligence of Mrs. Zito was not satisfactorily made out.

The third and fourth grounds are based on the refusal of the court to charge two requests founded on the hypothesis of Murphy being intoxicated and Mrs. Zito knowing the fact. The court charged fully on this phase of the case and told the jury in effect that if, under the circumstances, she accepted passage in the Murphy car, she would be chargeable with the consequences which might be expected to arise by reason of that intoxicated condition and added that that defense was open both to Ingersoll and to Murphy. This, in our judgment, fairly covers the substance of the two refused requests.

We conclude that the rule to show cause should be discharged.


author: Pek Cukiam.

text:
    WILBUR A. KLEIN, PLAINTIFF-RESPONDENT, v. CHARLES GAFFNEY AND EDWARD GAFFNEY, DEFENDANTS-APPELLANTS.
    Decided October 16, 1929.
    Before Gummere, Chief Justice, and Justices Pakkek and Bodine.
    Eor the defendants-appellants, Rogers & Johnson.

    Eor the plaintiff-respondent, Thomas II. Brown.

   Pek Cukiam.

The plaintiff leased from the defendants a garage in the town of Kearny. Under the terms of the lease, which was in writing, $1,050 was deposited with the landlords as security for the faithful performance of the covenants in the lease. After an alleged eviction, this action was brought to recover so much of the security so deposited as was due. The jury returned a verdict for the plaintiff.

It appears that the tenant was constantly in arrears and was constantly allowed to continue, upon payment of the arrearages of rent due until September 16th, 1926, when the following notice was given:

“To Wilbur A. Klein:
“You are hereby notified that your tenancy of the premises known as No. 852 Kearny avenue, Kearny, New Jersey, is hereby terminated and at an end because of your failure to pay yo'ur rent for September,. 1926, as provided for in your lease made between yourself and Charles Gaffney and Edward J. Gaffney covering the demised premises.
“And demand is hereby made that you remove from said premises occupied by you within three days after service of this notice upon you.
“Dated September 16th, 1926.
Charles Gaeeney & Edward J. Gaeehey.”

The plaintiff complied with this request and delivered up possession.

The trial court left it to the jury to say whether the lease was terminated by this notice and compliance therewith, or whether it continued the landlords entering under the lease.

If the lease continued, the plaintiff was not entitled to recover, and the defendant’s motion for a nonsuit or a directed verdict should have been granted.

When the notice was given, the tenant was in default. Under the terms of the lease the landlords could have. entered and evicted the tenant, but they elected to notify him that the tenancy was at an end and the tenant complied with this notice. Certainly, the trial judge quite properly treated the notice of September 16th, 1926, as evidence of an election by the landlords to terminate the lease. Hence, there was no error in leaving the case to the jury. In United Cigar Stores Co. v. Heithaus, 132 Atl. Rep. 655, there was no such notice.

It seems immaterial that prior to September 16th, 1936, the landlords had, on accepting rent, required the tenant to stipulate that such acceptance was not a waiver of the terms of the lease. It was important that they preserve their rights when they took possession not some months before.

It seems hardly necessary to comment on the action of the trial judge in striking testimony as to the length of time the premises remained vacant after the termination of the lease. Such testimony was immaterial on the issue before the court.

The judgment will be affirmed.


text:
    MARY SCHOR AND JOHN SCHOR, HER HUSBAND, ET AL., PLAINTIFFS, v. ALVIN J. WILLIAMS, DEFENDANT.
    Decided October 16, 1929.
    Before Gumheee, Chief Justice, and Justices Paekee and Bodine.
    Eor the defendant, Wayne Dumont and William V. Rosenkrans.

    Eor the plaintiffs, Aaron L. Simon.

   Pee Cueiam.

Our examination of the testimony in this case leads us to the conclusion that the accident was caused solely by the negligence of the driver of the plaintiff’s car, and was not contributed to in any way by any negligence of the defendant.

The rule should be made absolute.


text:
    JOHN FISHER, PLAINTIFF-RESPONDENT, v. PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Decided October 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Bodine.
    Eor the defendant-appellant, Bourgeois & Coulomb.

    Eor the plaintiff-respondent, Worth •& Worth.

   Per Curiam.

Our examination of the testimony in this cause leads us to the conclusion that the accident was contributed to by the negligence of the plaintiff’s servant.

The rule should be made absolute.


text:
    EDITH BUTLER AND WILBUR BUTLER, PLAINTIFFS, v. WILLIAM HOHNSTRATER AND SIGGE SCHILLER, DEFENDANTS.
    Decided October 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Bodine.
    Eor the plaintiffs, Charles A. Otto, Jr. (Louis C. Lehman, Jr., of counsel).

      Eor the defendant William Hohnstrater, McCarter & English.

    Eor the defendant Sigge Schiller, Earley, Cox & Walburg.

   Pee Curiam.

The plaintiffs recovered verdicts against the defendants.

Onr examination of the testimony leads us to the conclusion that the negligence of the drivers of the cars of both defendants was clearly established, and that the damages awarded were supported by the evidence produced at the trial.

Both rules will be dismissed.


text:
    ISABEL M. McGRATH AND WILLIAM A. McGRATH, PLAINTIFFS-APPELLEES, v. OLIVER FRAKE, DEFENDANT-APPELLANT.
    Decided October 16, 1929.
    Before Gummeee, Chief Justice, and Justices Parker and Bodine.
    Eor the defendant-appellant, Applegate, Stevens, Foster, Leonard & Reussille.

    Eor the plaintiffs-appellees, Cook & Stout.

   Per Curiam.

The plaintiffs recovered judgments against the defendant. The sole ground of appeal is that the trial judge improperly charged the jury with respect to contributory negligence. We think that the trial judge correctly charged the point. Durant v. Palmer, 29 N. J. L. 544 (at p. 547).

The judgment will be affirmed.


text:
    FANNIE ROTH, PLAINTIFF, v. ISIDORE BRUSSELL AND PHILIP BRUSSELL, PARTNERS, TRADING AS I. AND P. BRUSSELL, DEFENDANTS.
    Decided October 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Bodine.
    For the plaintiff-appellant, Aaron L. Simon.

    For the defendant-appellees, Frank G. Turner.

   Pee Curiam.

The plaintiff, Fannie Roth, recovered a verdict in the sum of $700 in an action in tort for personal injuries in the Passaic Circuit Court.

Our examination of the testimony leads us to the conclusion that the verdict of the jury is not against the clear weight of the evidence nor contrary to the charge of the court, or so clearly inadequate as to justify a new trial.

The rule will he dismissed.


text:
    JENNIE ZUSI AND FRANK ZUSI, PLAINTIFFS, v. FREDERICK MURWEIS, MAUD LOVETT AND LESTER C. LOVETT, DEFENDANTS. MILLIE HESS AND SAMUEL HESS, PLAINTIFFS, v. LESTER C. LOVETT, DEFENDANT.
    Decided October 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Bodike.
    For the defendant, George L. Burton.

    For the plaintiffs, Quinn, Parsons & Doremus.

   Per Curiam.

The plaintiffs recovered a verdict against the defendants.

Our examination of the testimony adduced at the trial leads us to the conclusion that the negligence of the defendant Maud Lovett was clearly established, and that the injury complained of was not contributed to in any way by the negligence of the driver of the car in which the plaintiffs were riding.

There was testimony that the car which the defendant Maud Lovett was driving was provided by her husband, Lester C. Lovett, and that she had his permission to drive it when she wanted to. This evidence raised a jury question (Missell v. Hayes, 86 N. J. L. 348), which was left to the jury in an admirable charge.

Our examination of the record leads us to the conclusion that the jury’s finding on the question of agency was supported by evidence, and that the refusal of the trial judge to grant a nonsuit, or direct a verdict for the defendant Lester C. Lovett was in all respects proper.

The rule will be discharged.


text:
    ESSEX AND HUDSON LAND IMPROVEMENT COMPANY, A CORPORATION, RELATOR, v. STATE HIGHWAY COMMISSION, RESPONDENT.
    Decided October 16, 1929.
    Before Gummeee, Chief Justice, and Justices Parker and Bodine.
    Eor the relatoT, McCarter & English.

    Eor the respondent, Edward L. Katzenbach and Mark A. Sullivan.

   Pee Curiam.

The facts in this case are so closely similar to those in Cooper v. State Highway Commission, decided July 7th, 1929, that the writ must be denied for the reasons there stated.


text:
    MARY GARINO, JOHN GARINO AND JOSEPH GARINO, PLAINTIFFS, v. EDWARD C. WALKER, DEFENDANT.
    Decided October 16, 1929.
    Before Gummere, Chibe Justice, and Justices Parker and Bobine.
    Eor the defendant, Collins & Corbin (Edward A. Ma/rlcley, of counsel).
    For the plaintiffs, David T. Wilentz.

   Per Curiam.

At the close of the trial, counsel for defendant submitted, among others, the following requests, which were refused:

“1. If the negligence of Joseph Garino was the sole proximate cause of the accident, then the plaintiffs cannot recover, and your verdict must be for the defendant.

“2. If you find as a fact, that the accident was unavoidable, then I charge you that your verdict must be in favor of the defendant.

“3. The mere happening of an accident is no evidence of negligence.”

We think these requests were good in law.

Our examination of the charge of the learned trial judge leads us to the conclusion that these requests were not sub-, stantially charged by him.

This conclusion makes it unnecessary for us to consider the other grounds for reversal submitted in a brief of fifty-eight pages in length.

The rule will be made absolute.


text:
    CORNELIUS F. BEERS, RELATOR, v. BOARD OF CHOSEN FREEHOLDERS OF MORRIS COUNTY AND WILLIAM H. HOSKING, CLERK OF THE BOARD OF CHOSEN FREEHOLDERS OF MORRIS COUNTY, RESPONDENTS.
    Argued October 17, 1929
    Decided October 18, 1929.
    Before Justices Pakkek, Black and Bodine.
    Eor the relator, George A. Henderson.

    Eor the respondents, Howard F. Barrett and John E. Kennedy.

   Pek Cukiam.

The relator, Cornelius E. Beers, filed with the board of freeholders of Morris county a petition purporting to be signed by at least five hundred legal voters of the county requesting the adoption of the Civil Service act.

On September 11th, 1939, the board of freeholders, by resolution, directed the clerk of the board to have the question of the adoption of the act placed upon the ballot for the ensuing November election. Later, by resolution, the clerk of the board was instructed not to proceed in the matter. We are asked to review this action.

Pamph. L. 1915, ch. 17, a supplement to the Civil Service act, so far as pertinent, provides as follows: “Whenever there shall be presented to the clerk of the governing body of any municipality of this state a petition as provided in section 31 of the act to which this act is a supplement, it shall be the duty of said clerk fifteen days thereafter to give public notice that the question of the adoption of the Civil Service act will be duly submitted to the legal voters of the said municipality at the next regular election, and to make public notice thereof. * * * 2. In the event of any clerk refusing or neglecting to take such action within such prescribed time, then the state board of civil service commissioners, or any member thereof, may make application to a judge of the Court of Common Pleas holding court in the county in which said municipality is located, for an order directing and compelling the submission of the question involved in said petition, as required by law; and said judge of the Court of Common Pleas shall hear said matter summarily.”

Our view is that the statute is comprehensive and affords a remedy. The statute provides that any citizen or taxpayer in the event of the refusal or neglect of the clerk to act may apply to the Court of Common Pleas in the county for such order as may he required by law. Until the remedy provided by the statute has been exhausted, we fail to see why we should act.

The rule will be discharged.


author: Pee Cubiam.

text:
    BUILDING TRADES PAINT AND SPECIALTIES CORPORATION, PROSECUTOR, v. WILLIAM R. BEILIG, DEFENDANT.
    Argued October 3, 1929
    Decided October 17, 1929.
    Before Justices Pakkek, Black and Bodine.

      Eor the prosecutor, Raymond R. Berry.

    Eor the defendant, Rowe & Davis.

   Pee Cubiam.

The writ brings up an injunctive order of the Orange District Court, and incidentally the proceedings in the case of which that order was a step.

Plaintiffs recovered a judgment against one Levengard in the First District Court of Newark, issued execution, there was a levy on personalty, and the property was advertised for sale, when defendant began an attachment suit against plaintiffs, in the Orange court, and on his application that court made an order restraining the prosecutor and the officer holding the execution from proceeding thereon; and later on, refused, on application of the prosecutor, to vacate that restraint; whereupon this writ of certiorari was allowed.

The order in question will be set aside, with costs. Whatever may be the right of Beilig to attach the rights and credits of prosecutor, we are unable to see any jurisdiction in the Orange court to interfere with the execution of the process of a court of co-ordinate jurisdiction. Indeed, counsel for defendant admit this but say they have discontinued the attachment suit “without prejudice, however, to the right of the plaintiff [Beilig] to commence a new suit.” Notwithstanding this, we think prosecutor is entitled to the action of this court specifically vacating the injunctive order under review; and rule may therefore be entered overruling the same and setting it aside, with costs.


text:
    FRANK J. MATISOVSKY, JOSEPH J. BRUMBERG AND MAX J. SCHLEIDER, AND NATHAN EILEN, TRADING AS ART FURNITURE COMPANY, PLAINTIFFS, v. FIDELITY PHENIX FIRE INSURANCE COMPANY ET AL., DEFENDANTS.
    Argued October 9, 1929
    Decided October 18, 1929.
    Before Justices -Parker, Black and Bodine.
    Eor the plaintiffs, Joseph T. Lieblich.

    Eor the defendants, Arthur T. Vanderbilt.

   Per Curiam.

Max J. Schleider and Nathan Eilen, trading as the Art Furniture Company, were insured against fire loss in their Clifton warehouse by the defendant companies. On May 13th, 1937, a fire occurred resulting in considerable damage. After the fire a non-waiver agreement was entered into between the assured and the companies, whereby the damages were fixed at $9,000 and the total value of the insured property was set at $15,000.

The agreement provides that it shall not be or claimed to be an admission of liability on the part of the companies, and that the ascertainment of the loss was without prejudice to any defenses and subject to all and singular the terms and the conditions of the policies upon which the claim was made.

On May 35th, 1937, the insured assigned to Frank J. Matisovsky, trustee, $3,000 of the money due under the policies, and on June 1st, 1937, a further assignment was made of the remaining moneys to Joseph J. Brumberg. The insured and the assignees brought the present action, which resulted in a verdict in favor of the defendants.

Seven reasons are assigned for setting aside the verdict. The first four are to the effect that the verdict was contrary to the evidence, and that the defendants had not offered any proof to establish their defense. In the proof of loss, the insured stated that the cause of the fire was unknown. Under the terms of the policies a materially false statement by the insured touching upon any matter relating to the subject-matter, whether before or after the loss voided the policies. Seven tire covers filled with gasoline and paper bags filled with excelsior and gasoline were found by the firemen scattered over the premises. The Clifton fire chief filed a complaint against the insured and they were indicted by the grand jury. After the complaint was filed, the chief was told by the insured that if the papers retracted the published story of the fire he or his wife could have anything they wanted in the store. The insured were in financial straits before the fire and after the fire they went into bankruptcy.

It seems to us that there was ample proof to justify the verdict of the jury.

The last three reasons challenge the verdict because it was the result of feeling, bias or prejudice. The cross-examination of the assignee, Joseph J. Brumberg, as to his acquaintance with the suspicious circumstances before he took his assignment seems pertinent and not prejudicial. The examination was not to prove the fact but to prove the assignee’s state of mind at the time he advanced money for the assignment.

The charge of the learned trial judge was a clear and impartial submission of the issues in the case. We believe that the facts and circumstances proved are ample to sustain the, verdict and that the same was not the result of feeling, bias or prejudice.

The rule will be discharged.


text:
    GEORGE SHAW, PLAINTIFF, v. VERMONT MARBLE COMPANY ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided October 21, 1929.
    Before Gummere, Chive Justice, and Justices Kalisch and Campbell.
    Eor the rule, James D. Carton.

      Contra, Cook & Stout.

   Per Curiam.

The defendant was engaged in moving large pieces of marble weighing one thousand pounds and upward from the ground to the eighth or ninth floor of a new building of the electric light company at Asbury Park. They were moved by means of an elevator. The pieces were too large to be placed in the usual manner on the platform of the elevator and were accordingly placed in a diagonal position thereon. At each floor a plank had been placed so that laborers in wheeling barrows from the elevator would not break the concrete flooring. Columns at or near the floor entrance of the elevator had been tiled. Thirteen loads had been hoisted when on the fourteenth load as the elevator reached the sixth floor, a piece of tiling became dislodged and fell down the shaft injuring the plaintiff. He sued for such injuries as he received and has a verdict for $18,500.

This verdict we are asked to set aside because it is against the weight of evidence and there is no evidence of negligence and finally because it is excessive.

We conclude that the proofs do not warrant us in setting aside the verdict for any of these reasons.

The rule will therefore be discharged.


text:
    MARGARET D. FITZGERALD, PLAINTIFF-RESPONDENT, v. JOHN K. GORE ET AL., DEFENDANTS-APPELLANTS, AND YELLOW CAB, INCORPORATED, DEFENDANT.
    Submitted May term, 1929
    Decided October 21, 1929.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellants, Edward B. McGlynn.

    Eor the respondent, James F. X. O’Brien and Joseph Couli.

   Per Curiam.

The plaintiff below was a passenger in a car of the defendant, Yellow Cab, Incorporated, which came into collision with a car of the defendants Gore and Cook, and plaintiff being injured brought suit against all three defendants.

The trial of the issue resulted in a nonsuit in favor of the Yellow Cab, Incorporated, and a verdict in favor of plaintiff and against the other defendants for $800.

We are asked to reverse this judgment upon two grounds.

Eirst, because it was error to nonsuit in favor of the defendant, Yelow Cab, Incorporated.

This does not present a ground of error for reversal. Newman v. Fowler, 37 N. J. L. 89; Public Service Railway Co. v. Matteucci, 6 N. J. Adv. R. 1545.

Second, that it was error to refuse to direct a nonsuit in favor of the remaining defendants, the appellants here.

The proofs present facts and circumstances from which their negligence, causing the happening could be found, thus presenting a jury question. There was, therefore, no error in refusing to nonsuit as to them.

The judgment under review is therefore affirmed.


text:
    CARRIE WOLF, PLAINTIFF, v. ALBERT BAUER ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided October 21, 1929.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Alexander MacLeod and William, P. Braun.

      Contra, Palmer & Cooper.

   Pee Curiam.

Plaintiff has a verdict for $7,500 for personal injuries which we are asked to set aside because it is urged that it is against the weight of the evidence and because it is excessive. It is not against the weight of the evidence. While plaintiff sustained painful and severe injuries we are satisfied that the verdict is excessive.

If she will consent to a reduction of the verdict to $5,000 the rule ¿will be discharged, otherwise it will be made absolute and a venire de novo awarded upon the question of damages only.


text:
    MABEL KOSTURKO ET AL., PLAINTIFFS, v. JAMES ANTON WISSE, DEFENDANT.
    Submitted May term, 1929
    Decided October 21, 1929.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Peter J. McGinnis.

      Oontra, Jacob Schneider.

   Pee Cueiam.

This was an action seeking to recover damages alleged to have been caused by the negligent operation of a motor car by the defendant. The trial of the issue resulted in a verdict in favor of the defendant below.

By the present rule the plaintiffs seek to have such finding against them set aside for the reason, as urged, that it is against the weight of the evidence.

We conclude that the proofs presented such a question as not to warrant the setting aside of the settlement thereof and finding thereon by the jury.

The rule is therefore discharged.


text:
    MAMIE TUMINELLO ET AL., PLAINTIFFS, v. SAM DAVIDA, DEFENDANT.
    Submitted May term, 1929
    Decided October 21, 1929.

      Before Gummeke, Chiee Justice, and Justices Kalisch and Campbell.
    Eor the rule, Salvatore F. La Corte.

    Contra, Louis P. Longobardi.

   Pee Cueiam.

On Sunday, July 3d, 1927, the infant plaintiff, a girl twelve years of age was visiting at 119 Chestnut Place, Roselle Park. There were a number of others present, including the defendant and one Joe Barino. The defendant was discharging a small pistol using .22 calibre blank cartridges.

As _ the pistol was discharged the defendant caused the empty shells extracted to drop to and remain upon the pavement where the .party was assembled. At the same time Barino, a member of the party, had some sort of a bomb or torpedo which he was throwing to the pavement and discharging. The plaintiff was injured by an empty shell, such as defendant was using, lodging in her eye, necessitating the removal of her eye. Suit was brought against the defendant, Davida, a trial of which resulted in a verdict in his favor. This we are asked to set aside upon the ground that it is against the weight of the evidence.

It is not only difficult but impossible for us to see how in the discharging of the pistol, by the defendant, the empty shell would or could be propelled through the barrel of that weapon so as to cause the injury in question. It is more likely that, from some cause, one of the empty shells upon the pavement, perhaps by the explosion of the torpedoes, was forced from its position and into the eye of the plaintiff.

A most careful examination and consideration of the proofs leads us to the conclusion that we are not warranted in disturbing the verdict.

The rule will therefore be discharged.


text:
    FRANCES S. DILATUSH ET AL., PLAINTIFFS, v. JACOB PROWN ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided October 21, 1929.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, C. Gasewell Heine.

    Contra, Harold McDermott and Theodore D. Parsons.

   Per Curiam.

The only reason urged for setting aside the verdicts of the plaintiffs Anna H. Dilatush and E. Louise Dilatush is that they are excessive. We do not find them to be so. Both received painful injuries, some of which are permanent.

The rule is discharged.


text:
    ALBERT HEIMROTH, PLAINTIFF, v. SAMUEL R. WALSH, DEFENDANT.
    Submitted May term, 1929
    Decided October 21, 1929.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.

      Eor the rule, Frank Turner.

    Contra, James D. Carton.

   Pee Cueiam.

The plaintiff was in the Fenimore Hotel, Asbury Park, for the purpose of making repairs. The defendant was the lessee of the hotel and it was open for and doing business.

Plaintiff, in going about his work of examining for repairs necessary to be made, having occasion to go to the roof, attempted to enter the passenger elevator at the first floor. The door was open. He stepped in and fell down the shaft, the elevator cage not being at that floor. He received injuries for which he sued and has a verdict for $20,000.

This verdict we are asked to set aside because the defendant was guilty of contributory negligence, because it is against the charge of the court, because it is against the weight of evidence and because prejudicial error was commited in admitting certain evidence.

We conclude that none of these grounds is so substantial as to warrant us in setting aside the verdict.

The rule is therefore discharged.


text:
    THE STATE, DEFENDANT IN ERROR, v. CHARLES AGNEW, Jr., PLAINTIFF IN ERROR.
    Argued May 7, 1929
    Decided October 21, 1929.

      Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    Eor the defendant in error, Louis A. Repetto.

    Eor the plaintiff in error, Ulysses G. Styron.

   Pee Cueiam.

The plaintiff in error was charged under three separate indictments as follows:

Under No. 10823, in two counts, with atrocious assault and battery and assault with intent to rob Kathryn A. Stilz on December 2d, 1927; under No. 10825 with breaking and entering by night, breaking and entering by day, and entering without breaking, all and each with intent to steal and receive stolen goods, on December 2d, 1927; and, under No. 10824, with atrocious assault and battery upon Charles B. Stilz, on January 4th, 1928.

Without any action or motion upon the part of the prosecutor and against the objection of the plaintiff in error the trial judge required that the three indictments should be consolidated and the plaintiff in error be tried under all three at the same time. The result of such trial was a conviction of the defendant below under all three and the imposing of sentence.

This judgment is attacked upon the ground, amongst others, that need not be considered, that it was error to consolidate these indictments and require the defendant below to ° stand trial upon all three at one time.

Our conclusion is that this was error requiring a reversal of the judgment, particularly so because the charge under indictment No. 10824 had no bearing upon the crimes alleged and charged under the other two indictments.

The judgment under review is therefore reversed.


author: Pee Cubtam.

text:
    ANNA MORTON, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. HARDMAN-WILKIE CONSTRUCTION COMPANY ET AL., DEFENDANTS. ANNA MORTON, ADMINISTRATRIX, PLAINTIFF, v. HARDMAN-WILKIE CONSTRUCTION COMPANY ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided October 21, 1929.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Ralph E. Cooper.

    Contra, Raymond E. Taylor and William E. Ilolmwood.

   Pee Cubtam.

The Hardman-Wilkie Construction Company was the owner of a one-ton Eord truck which on September 28th, 1927, was operated by and in the control of Hugh M. Wilkie, as its agent and servant. On that day he carted a load of stone sills to the Kearny fire house, at Kearny avenue, in Kearny.

The material was delivered to the rear of the fire house on Maple street. The truck was run upon the rear of the lot and turned around so that it faced Maple street. Being upon a grade sloping toward Maple street, it is said, the rear wheels were blocked, the emergency brakes applied and the motor stopped. This is disputed, however. Three men in the employ of the mason contractor who was doing the work on the fire house unloaded the sills. Some fifteen or twenty minutes after this work was completed the truck was seen to be in motion, proceeding toward Maple street. The driver, the defendant Hugh M. Wilkie, was not upon it but was running after it. ‘ The truck proceeded to and over Maple street and into and along Alexander street where it ran over Peter Morton, plaintiff’s decedent, injuring him so that he died from such injuries.

A trial of the cause resulted in verdicts in favor of the plaintiff and against the Hardman-Wilkie Construction Company, the owner of the truck, and against the plaintiff and in favor of Hugh M. Wilkie, the driver and servant of the owner of the truck.

Three reasons are advanced why the verdict in favor of Hugh M. Wilkie should be set aside.

One only requires our consideration and that is that the. verdicts are clearly inconsistent, and this is so. The verdicts against the owner ■ are not sustainable except upon the theory of respondeat superior. It is claimed that the proofs show that the brakes on the truck were not in proper condition and that this was the cause of the happening. A careful examination of the proofs does not disclose any such situation.

The rule to show cause is therefore made absolute.


author: Pee Cttbiam.

text:
    JERSEY PUBLISHING COMPANY, RELATOR, v. JOHN McCUTCHEON, STATE COMPTROLLER, RESPONDENT.
    Argued October 24, 1929
    Decided October 25, 1929.
    Before Justices Pabkeb, Black and Bodtne.
    Eor the relator, John G. Flanigan.

    For the respondent, William A. Stevens, attorney-general.
   Pee Cttbiam.

An alternative writ of mandamus having issued, and return having been made thereto, motion is made to strike out the return on four (4) stated grounds, three of which amount to saying that the defenses set up in the return, or some of them, are sham; and the fourth, that the second and third defenses are “not sufficient answer to respondent’s refusal to permit the inspection of the documents and records set out in the writ * * * which amounts to saying that the defenses are legally inadequate.

It is settled in this court that in mandamus proceedings, objections to the legal sufficiency of the return may be taken only by demurrer. McAllister v. Atlantic City, 90 N. J. L. 93; Van Duyne v. Senior, 5 N. J. Mis. R. 158. It becomes unnecessary therefore to consider at this time the legal merit of the second and third defenses.

With respect to the claim that the defenses are sham, i. e., not made in good faith, it goes to all of the defenses and the motion is to strike out the entire return. Hence, if the motion fails as to any of the defenses, it fails altogether. We are clear that fet least some of the four defenses are meritorious, and are by no means clear that they are not advanced in good faith, to say the least.

These views lead to a denial of the motion.


text:
    HENRY H. WEINBERGER ET AL., PROSECUTORS, v. PASSAIC COUNTY COURT OF QUARTER SESSIONS ET AL.
    Decided October 25, 1929.
    Eor the state, D. Frederick Burnett.

    For the defendants, John A. Matthews.

   Pee Cubiam.

Application is made herein for the allowance of writ of certiorari to review the action of the Passaic County Court of Quarter Sessions with regard to an alleged order of that court made on the fifth day of October, 1929, respecting six certain indictments then pending against the applicants.

The court has carefully examined the reasons urged for the allowance of the writ applied for and has reached the conclusion that the application should be denied.


text:
    MARY BELAWSKY ET AL., PLAINTIFFS, v. GEORGE N. THOMAS, DEFENDANT.
    Argued October 2, 1929
    Decided October 29, 1929.
    Before Justices Parker, Black and Bodine. ..
    Eor the plaintiffs, Cole & Cole and Adolph Stern.

    Eor the defendant, Leroy W. Loder.

   Per Curiam.

The complaint in this case charges the defendant, a practicing physician, with performing an operation upon Mary Belawsky without her consent and a further charge, that the operation was unskillfully and negligently performed. The trial resulted in a verdict for the defendant. The plaintiffs obtained a rule to show cause why a new trial should not be granted, alleging newly discovered evidence. This evidence was obtained by an autopsy, after the death of the plaintiff, Mary Belawsky. The autopsy revealed, so it is claimed, that no ventral suspension operation was done or performed. Evidence was taken under the rule which has been submitted to the court for our consideration. A reading of the evidence leads us to the conclusion that the rule should be discharged. The rules under which a new trial will be granted, on the ground of newly discovered evidence, are fully and quite thoroughly discussed in this court, in the case of Hoban v. Sandford, &c., Co., 64 N. J. L. 426. Under that case we find no sufficient reason for disturbing the verdict of the jury.

The rule to show cause is therefore discharged.


text:
    ANNA BORETH, ADMINISTRATRIX AD PROSEQUENDUM OF HARRY O. BORETH, DECEASED, PLAINTIFF, v. CARL KISSELMAN, DEFENDANT. DANA BORETH AND OSCAR BORETH, BY THEIR MOTHER AND NEXT FRIEND, ANNA BORETH, AND ANNA BORETH IN HER OWN RIGHT, PLAINTIFFS, v. CARL KISSELMAN, DEFENDANT.
    Argued January term, 1929
    Decided July 3, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    Por the rules, Bleakly, Stockwell ■& Burling, McCarter & English and Albert 8. Woodruff.

      Contra, Walter 8. Keown.

   Per Curiam.

These are rules for new trials allowed to the defendant in the cases of Anna Boreth, administratrix of Harry 0. Boreth, and Dana Boreth, Oscar Boreth and Anna Boreth against Carl Kisselman to recover damages for personal injuries sustained in a collision between an automobile driven by Kisselman and an automobile driven by Harry 0. Boreth on the Marlton pike between Ellisburg and Marlton. There were large verdicts in favor of the plaintiffs.

The reason urged for new trial is that the jury’s finding on liability was against the weight of the evidence.

Our conclusion is that the verdicts are so clearly against the weight of the evidence that they must be set aside. The accident arose in this wise: The defendant’s car was pro-

ceeding from Camden out the Marlton pike at nine .p. at. daylight saving time, on June 22d, 1927. Harry Boreth was driving his car toward Camden on the same night; having with him on the back seat of the car his wife and two infant children. In the defendant’s car were 'Kisselman and three companions. In the collision that occurred Boreth was killed and Mrs. Boreth and the two children sustained severe personal injuries.

Plaintiff’s contention was that as they were proceeding in opposite directions, defendant’s car crossed the road from its own side and collided with the car in which the plaintiffs were riding.

Defendant’s proofs were to the effect that the right front wheel of plaintiff’s car came off and ran out into a field; that the axle dragged to the ground and that the car swerved to its left side, causing the right side of plaintiff’s car to collide with the left front of defendant’s car. Photographs of the cars and marks on the road where the fallen axle had dragged strongly evidenced the truth of this contention. If, as seems clear, the collision occurred between the left front wheel of the defendant’s car and the right front wheel of the plaintiff’s ear it is difficult, if not impossible to accept the plaintiff’s version of the accident, and this being true, the rule for new trial will be made absolute.


text:
    ANNA V. RAY, LUCILLE E. RAY, BY JAMES A. RAY, HER NEXT FRIEND, AND JAMES A. RAY, INDIVIDUALLY, PLAINTIFFS, v. YELLOW CAB, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, AND RUSSELL J. SMITH, DEFENDANTS.
    Decided November 4, 1929.
    Before Justices Teenchaed, Kalisch and Lloyd.
    Eor the rule, Palmer & Cooper (John W. Palmer, of counsel).

      Contra, John A. Bernhard (Joseph Coult, of counsel).
   Pee Cueiam.

This is on a rule to show cause why the postea, signed by the Circuit Court judge, of a verdict rendered in favor of the plaintiffs against the defendants, should not be amended to correct an alleged mistake of the foreman in announcing the verdict.

The postea recited the following: “The cause having been heard and submitted to the jury, they returned their verdict as follows: “Eor the plaintiff, Anna V. Bay, against both defendants, Yellow Cab, Incorporated, and Bussell J. Smith, in the sum of $3,500; for the plaintiff James A. Bay against both defendants, Yellow Cab, Incorporated, and Bussell J. Smith, in the sum of one thousand dollars, and for the plaintiff, Lucille E. Eay, by James Eay, her next friend, against both defendants, Yellow Cab, Incorporated, and Eussell J. Smith, in the sum of five hundred dollars.”

The ground upon which the application for an amendment of the postea is made, is, that the foreman made a mistake in delivering the verdict, in that it was the intention of the jury that the plaintiffs should receive sums aggregating ten thousand dollars, and not five thousand dollars.

A careful reading of the testimony discloses, that when the verdict was delivered, the foreman handed to the clerk of the court, who received the verdict, a memorandum containing the verdict, agreed upon by the jury, which memorandum reads: “Eor the plaintiffs against both defendants, Mrs. Eay $3,500, Mr. Eay a thousand dollars, Miss Eay five hundred dollars.”

Eor the plaintiffs it is contended, that it was the intention of the jury to find a verdict of $3,500 against each defendant. It appears from the court’s charge, however, that the jury were particularly instructed as follows: “You cannot apportion the damages between the two defendants. It is for you to decide whether or not you are going to hold one, both, or neither. If you hold both, then your verdict will be in one amount for each plaintiff and not divided between the two defendants. If one defendant is liable, or both defendants are liable, they are liable for all the damage that was done.”

The testimony taken under the rule fails to show that there was any mistake made by the foreman in announcing the verdict, agreed upon by the jury. The memorandum precludes any such notion. But, it is further insisted, that it was the intention of the jury to have rendered a verdict of $3,500 for the plaintiff, xlnna Y. Eay, against each defendant. The exact thing the court specially instructed the jury it could not do.

It is well settled that a jury may not be permitted to impugn its verdict. The effort here made is not to.correct a mistake, i nadvertance, or clerical error in the rendering of a verdict, but to impeach the verdict on the ground that the jury misapprehended the legal effect of such verdict. See Peters v. Fogarty, 55 N. J. L. 386 (at p. 387).

Furthermore, the first headnote of the cited ease, at page 386, reads as follows: “An application to amend a postea

should be made to the trial judge and the court in banc should not entertain such a motion unless the matter is referred to the court by the judge.55 This was not done in the instant case.

We have, however, considered the case as presented, and arrived at the result that the rule to show cause should be discharged.


text:
    TESSIE CAUFELD ET AL., PLAINTIFFS, v. SIDNEY METZENDORF ET AL., PARTNERS, ETC., DEFENDANTS.
    Decided November 4, 1929.
    Before Gummere, Chief Justice, and Justices Parker, and Bodine.
    For the rule, Carey & Lane.

    Contra, David T. Wilentz.

   Per Curiam.

Tessie Caufeld, a little girl eight years old, was knocked down and injured by a truck of the defendants while she was leaving the ice house of the latter. The trial resulted in a verdict for $18,000 in her favor and an award of $1,000 to her father, who joined as a plaintiff in the action.

The first contention made before us on behalf of the defendants is that the finding of the jury that the accident was a result of the carelessness of the defendants’ truck driver was contrary to the clear weight of the evidence. Our examination of the testimony satisfies us that the finding of the jury upon this point should not be interfered with.

The next contention on the part of the defendants is that the award to this little girl of $18,000 is grossly excessive. We think that this is so, and that the verdict in her favor should be reduced to $10,000, if such reduction is accepted by her representative; if not, the rule to show cause will be made absolute.

Lastly, it is contended that the award of $1,000 to the father is excessive. In our opinion, the award is a reasonable one.

If consent is given to the reduction of the verdict in favor of the girl to the amount which we have indicated, the rule to show cause will be discharged; otherwise, it will be made absolute.


text:
    SAMUEL SANSEVERE ET AL., RESPONDENTS, v. JOHN SONZOGNI, APPELLANT.
    Decided November 4, 1929.
    Before Gukmeee, Chief Justice, and Justices Paeker, and Bobine.

      Eor the appellant, Beynier J. Wortendylce, Jr.

    Eor the respondent, John J. Oarlin.

   Pee Cubiam.

This suit was brought to recoven compensation for personal injuries alleged to have been sustained by the plaintiff Samuel' Sansevere, a little child about three years old, he being run down by an automobile truck of the defendant; and for the- expenses incurred by his mother, the co-plaintiff, as the result of the child’s injuries. The trial resulted in a verdict in favor of each of the plaintiffs, and the defendant has appealed from the judgment entered thereon.

The first ground upon which we are asked to reverse this judgment is that the trial court erroneously permitted the defendant’s witness, Wenz, who was driving the truck that struck the child, to be asked certain questions with relation to certain statements made by him to a police officer after the happening of the accident. The ground of the objection to the admission was that it was incompetent for the purpose of showing the liability of the defendant, the statement or admission made by the driver to the police officials not being of the res geslae. But the sole purpose of this testimony, as was stated by counsel for the defendant, was the contradiction of the evidence given by Wenz on the witness stand on his direct examination, he having been called as a witness by the defendant. The testimony was clearly competent, in our opinion, for the purpose of discrediting the witness.

The verdict which is the foundation of the judgment now under review was rendered at a second trial of this cause, and it is argued that the present judgment should be reversed because the court, after the rendition of a verdict by the jury at the first trial, granted a rule to show cause on the application of the plaintiffs, based upon the inadequacy of the award; whereas, as counsel for the defendant contends, the new trial should have been granted without any such limitations. This, however, is not properly before this court for consideration on the appeal from the present, judgment. Moreover, the contention is without merit because of the fact that the defendant waived any objection to the limitation of the rule by taking part in the new trial without protest.

The only other ground upon which we are asked to reverse this judgment is 'that upon the return of a rule to show cause which was allowed to the defendant after the second trial, the court refused to reduce the award of $25,000 to the infant plaintiff to $15,000. It is enough to say in disposing of this, that the question as to whether the amount of the verdict is excessive is one that cannot be raised upon an appeal from the judgment entered thereon.

We conclude that the grounds of reversal are without substantial merit and that the judgment under review should be affirmed.