author: Lawrence, C. C. J.

text:
    HUMBERT THURSTON C. SCOTT-HUNTINGTON, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF AMERICO C. SCOTT-HUNTINGTON, DECEASED, PLAINTIFF, v. OSCAR PEARSON AND ERNEST T. HAND, Jr., DEFENDANTS.
    Decided July 25, 1933.
    Tor the rule, James I. Bowers.

    Opposed, George W. Allgair.

   Lawrence, C. C. J.

This was a suit under the Death act tried before the court and a jury at the Somerset Circuit. A verdict was returned in favor of plaintiff for the sum of $4,425. Defendants took out the present rule to show cause and argued for a new trial on the ground that the verdict was contrary to the weight of the evidence, both as the issue of negligence and contributory negligence, and that the amount of the award was excessive..

The cause of action involved the death of a boy about ten years of age, as the result of being struck by an automobile owned by the defendant Pearson, in which he was at the time, and driven by the defendant Hand. The accident occurred on a public highway leading from Somerville toward Heshanic in front of a country school during the noon hour while the children were out in the yard. Some of them wore playing with a hall and it was thrown through the gateway of a hedge fence, which partly surrounded the yard, and rolled out to the center of the road. The Scott-Huntington boy ran after it, followed apparently by three other children. The latter evidently seeing the approaching automobile ran back to the gateway, but the former went on, although warned by one or two of the children to come back, reached the middle of the road and was seen to bend over to pick up the ball, when startled by the sound of the horn of the automobile, he straightened up and stood as though dazed. When the car was within four or five feet of him, he suddenly jumped or stepped in front of it. The driver pulled the car sharply to the left, but not in time to avoid striking him. He was knocked down and fatally injured. The vehicle went first to the left side of the highway, striking a telephone pole, and then across to the right side, where it stopped after running into the hedge fence, a distance of twenty-five or thirty feet beyond the place of the accident. The parents of the boy were his survivors and the suit was brought in their behalf, pursuant to the statute.

Counsel for defendants urged, under the rule, that there was no evidence whatever of negligence on the part of the driver of the automobile and that the only permissible inference of fact that could have been drawn was that the boy’s own negligence was the proximate cause of his being struck. It was accordingly insisted that the trial judge should have controlled the case and taken it from the jury as a matter of law on the motion for a nonsuit or for a direction at the close of the trial. This seems not to be so, however, considering the age of the boy and the speed of the car at the time.

The driver’s own statement was that he saw four children run out of the yard when the automobile was one hundred feet away and going at forty miles an hour; that three of them turned back, hut the fourth went to the center of the road and leaned over to pick up something; that, as the horn of the car was sounded, the boy straightened up and stood still, whereupon he pulled the car to the left, and when it was four or five feet from the boy, he suddenly jumped or stepped in front of it and was hit. He (the driver) was not able to say what rate of speed the automobile was reduced from the time he first saw the children to the place of the accident. He had applied the brakes, although the car had gone some distance after striking the boy. There was some testimony to the effect that the school building could have been seen, in the conditions existing at the time, at a distance of several hundred feet from the direction in which the car was being driven. While it did not appear that either of the defendants made any observation as the automobile approached, they testified that the hedge about the school yard obscured the view of it and that no sign indicated the presence of a school zone. This appears to have been discovered by them after the accident, the driver stating that in fact he was looking ahead and making no special observation in driving along as to the locality through which they were passing. It is apparent, however, that the speed at which the automobile was being driven at the time, in its causal relation to the accident, became a question for the jury. Ferris v. McArdle, 92 N. J. L. 580, 581; 106 Atl. Rev. 460; Nichols v. Grunstein, 105 N. J. L. 363; 144 Atl. Rep. 593; Balog v. F. M. Mitchell Motor Co., 3 N. J. Mis. R. 1000; 130 Atl. Rey. 441; Eastmond v. Wachstein, 4 N. J. Mis. R. 966; 135 Atl. Rey. 67, and DeLucia v. Bleha, 5 N. J. Mis. R. 501; 137 Atl. Rep. 428. In the circumstances of the case, a review of the evidence leads to the conclusion that the verdict, as reflecting the finding of the jury on the question of the negligence of the defendant driver and the contributory negligence of the boy, was not so clearly contrary to the weight of it as to justify disturbing it.

It was also argued that the award of $4,425 was excessive. This does not appear to be so, considering the age of the boy and his physical and mental characteristics, under such cases as Runz v. Hartman, 2 N. J. Mis. R. 149; Genatt v. Bentz, 4 Id. 375; 133 Atl. Rey. 75; Hoar v. Public Service, 4 N. J. Mis. R. 716; 134 Atl. Rey. 184; Amabile v. Crane, 5 N. J. Mis. R. 149; 135 Atl. Rep. 692; Jorgensen v. Wilberg, 6 N. J. Mis. R. 79; 139 Atl. Rep. 904, and Fedor v. Kuehne Chemical Co., 8 N. J. Mis. R. 298; 149 Atl. Rep. 827. The rule to show cause will be discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ELMER J. SINNAMON, PROSECUTOR, v. CITY OF WILDWOOD, IN THE COUNTY OF CAPE MAY, ET AL., RESPONDENTS.
    Submitted January term, 1933
    Decided July 25, 1933.
    Before Justices Parker, Lloyd and Heiier.
    For the prosecutor, A. J. Capiero and Edward F. Merrey.

    For the respondents, Harry Tenenbaum {Carl Kisselman, of counsel).
   Per Curiam.

A writ of certiorari was allowed in this case to test the alleged removal of the prosecutor as the sanitary engineer of Wildwood. Wildwood operates under its own charter and the Home Buie act of 1917, and is governed by a city commission under the Walsh act of 1912.

Sinnamon, the prosecutor, was oppointed by the commission as sanitary engineer of the city on November 25th, 1930. He was a world war veteran and claims that under the Tenure of Office act he could not be removed.

The term of office of the commissioners appointing him expired in May, 1932, when a new set of commissioners was chosen. When elected the new commissioners requested Sinnamon’s resignation. It was refused and he was notified by letter from the city clerk that one Weir had been appointed as his successor. The commissioners adopted a resolution appointing Weir on May 24th, 1932. On October 3d of the same year, after the writ in this case had been allowed, the office of sanitary engineer was abolished.

The prosecutor contends that he held a position for an indefinite term and that the various tenure of office statutes protected him from removal except for cause or if the position were abolished. The respondent replies that the prosecutor did not hold a position, but that a sanitary engineer is an officer holding for a definite term, to wit, the life of the term of the commissioners by whom he was appointed, and that later the office was abolished and the duties simply transferred to the city engineer without extra pay for the services.

The resolution of October 3d, 1932, would appear to be effective to terminate the office or position (whichever it was) and to confer the duties on the city engineer, so that action now looking to reinstatement would seem to be futile in its effects, except possibly to create a claim for services, and as there is no claim that services have been performed, no recovery could be had for these. Keegle v. Hudson County, 1 N. J. Mis. R. 583; affirmed, 102 N. J. L. 219; 130 Atl. Rep. 919; Fitzpatrick v. Passaic, 105 N. J. L. 103; 143 Atl. Rep. 728.

The notification in May, however, was not, we think, a legal removal of the incumbent, and it is, therefore, so determined.


text:
    HOMER W. DEAKMAN AND T. RICHMOND WELLS, PARTNERS TRADING AS DEAKMAN-WELLS COMPANY, RESPONDENT, v. THE ODD FELLOWS HALL ASSOCIATION OF JERSEY CITY, PROSECUTOR.
    Submitted January 18, 1933
    Decided July 25, 1933.
    Before Justices Parker, Lloyd and Heher.

      For the prosecutor, Melosh, Morten & Melosh.

    For the respondent, Autenrieth, Gannon & Wortendylce.

   Per Curiam.

The question in this case is whether under the ordinary writ of execution a levy may be made upon funds of the defendant deposited in bank. A writ of execution was issued out of the Circuit Court of Hudson county in the form directed by section 1 of the act respecting executions (2 Comp. Stat., p. 2243) which directs :

“That in every writ of execution, which shall be issued against lands, tenements, hereditaments and real estate, the sheriff or other officer to whom said writ may be directed, shall be commanded' that of the goods and chattels in his county of the party against whom such execution issues, he cause to be made the debt, damages and costs or sum of money mentioned in said execution; and if sufficient goods and chattels of' the said party cannot be found in his county, that then he cause the whole or the residue, as the case may require, of the said debt, damages and costs, or sum of money to be made of the lands, tenements, hereditaments and real estate whereof the said party was seized.”

Under the Practice act of 1903 (Comp. Stat., p. 4106), one recovering judgment could have such execution as he is entitled to against the body or the goods, or against the goods and lands of the party against whom the judgment was recovered.

In 1915, a supplement to the execution act was passed in chapter 115. By section 1 of that act rights and credits of a defendant in execution were made subject to levy, and thus the law respecting executions stands today.

In the act of 1915 it is provided that nothing contained therein shall impair any provision of the act to which it is a supplement. Ho modification of the form of the writ is directed or indeed authorized. Under the form used executions have been habitually issued for nearly twenty years and under these writs the rights and credits of debtors due to them from others have been taken in execution and availed of to satisfy judgments, and this fact is not without hearing on the interpretation which the courts should place upon the legislation.

When the legislature, without modifying the form of the writ of execution or authorizing the courts to modify it to suit supplementary legislation, incorporated within its purview additional objects upon which it could operate, it is fair to assume that the writ in its then form was intended to be continued and to be operative in its effects so as to include the additional subjects.

As the various proceedings taken in the court below turned for their validity upon the determination of the question already discussed, and as we have determined that these proceedings for the reasons already adduced were valid, the writ will he dismissed.


text:
    ANNA MONTWID, PROSECUTOR, v. GRACE MONTWID AND JOSEPH SIEGLER, JUDGE OF JUVENILE AND DOMESTIC RELATIONS COURT OF ESSEX COUNTY, RESPONDENTS.
    Argued January 18, 1933
    Decided July 25, 1933.
    Before Justices P aeree, Lloyd and Hehee.
    Por the prosecutor, Ghild & Shipman.

    Por the respondents, Robert R. Eiernan.

   Per Curiam.

In this review we are asked to set aside an order of the Domestic Relations Court of Essex county requiring the prosecutor to pay $4 a week for the support of her grandchild.

The return of the writ discloses that the prosecutor upon the complaint of one Grace Montwid was required to make payment in the first instance of $6 per week, which sum was paid for a number of weeks when on application of the prosecutor the order was reduced to $4 per week.

The proceedings were taken in pursuance of the authority conferred by chapter 257 of the laws of 1929 establishing a Juvenile and Domestic Relations Court. The purpose of this statute, among others, is to protect the growing youth of the country which shall not have attained the age of sixteen years, and upon the court is conferred jurisdiction to deal with the domestic relations of such children and the responsibility for their care and support, and in doing so it is authorized to hear and determine these relations in summary manner in cases where the gravamen of the complaint is failure to provide support.

This the court, from the return, appears to have done in the present case. Tn the absence of invalidity appearing upon the return or otherwise properly presented to us, the order of the court below will not be disturbed upon legal grounds.

The testimony taken on the trial is not before us, although the prosecutor has presented in her brief excerpts from what purports to be a considerable amount of testimony taken at that time. If such testimony was presented and it was deemed essential it should have been made a part of the return. If, however, we are to examine this purported proof we think the court was justified in imposing the order which is sought to be reversed.

The contention of the prosecutor that under such cases as Ackerman v. Ackerman, 55 N. J. L. 422; 27 Atl. Rep. 807; no personal right for support arises under the poor laws of the state, and that consequently the Juvenile Court was without authority to impose an order at the instance of the complaining witness in the cause, is decided to the contrary in Glassman v. Essex County, 9 N. J. Mis. R. 519; 154 Atl. Rep. 722.

The order is affirmed.


text:
    I. LATIMER LAWRENCE, RECORDER, CALVIN HILL, OVERSEER OF THE POOR, AND TOWNSHIP OF HOPEWELL, RESPONDENTS, v. THOMAS EGBERT STEWART, PROSECUTOR.
    Submitted January 18, 1933
    Decided July 25, 1933.
    Before Justices Paekee, Lloyd and Hehee.
    Por the prosecutor, Nathan N. Schildkraut and Henry M. Hartman.

    Por the respondents, Gassel R. Ruhlman.

   Per Curiam.

This is a rule for a writ of certiorari to review a judgment of the recorder in Hopewell township adjudging the prosecutor guilty of being the putative father of an unborn bastard child.

The case was heard before the recorder, the defendant appeared and submitted to the order by giving bond for support of the child as required by the statute, first entering a plea of non vult. All this happened in March of last year. The present rule was made in the December following. The affidavit upon which the rule was granted recites his hearing on March 16th and his conviction on the 22d, says he expected and intended to have a jury trial, and refused to plead on that ground; that the evidence adduced was not sufficient to warrant his conviction; that he was not guilty; that he believes the testimony of the complaining witness was the result of collusion between her and her father; that he believes the recorder committed legal error by acting on an illgal complaint and warrant.

These facts do not call for allowance of the writ at this late date, nor do they call for serious discussion of reasons why it should not be allowed.

The rule is, therefore, discharged.


text:
    ROBERT HENDERSON, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE TOWNSHIP OF LYNDHURST AND THE CIRCUIT COURT OF BERGEN COUNTY, RESPONDENTS.
    Submitted January 18, 1933
    Decided July 25, 1933.
    Before Justices Lloyd and Heheb.
    For the prosecutor, Robert Henderson.

    For the respondents, Leo F. Reilly.

   Per Curiam.

The writ in this case was to review the validity of an assessment in the sum of $978.95 by the commissioners of Lyndhurst township on property standing in the name of Frazier, and others, as trustees for the prosecutor. The assessment was made and approved by the Circuit Court and the claim of the prosecutor for damages to his property by reason of the improvement disallowed.

Twenty-eight reasons for reversal are filed by the prosecutor. The first of these is that Bogle, a member of the governing body, was an officer of one of the corporate owners of a property assessed. It is not clear that this fact is established but if it were it would, in our judgment, in nowise disqualify him from sitting to determine the assessment of the property here involved.

The second and third reasons urge that the assessment was a joint one for street and sidewalk improvements. It is difficult to see just what the assessment is for. There is no copy of an ordinance printed in the state of the case but the prosecutor includes one at the end of his brief. Since then the respondent has supplied what purports to be a certified copy of the ordinance. Although irregular as a return, from this it appears that an ordinance was passed providing for the grading and directing the laying of sidewalks, the contract for which appears to have been made. No attack, however, is made on the proceedings up to the act of assessment. We see nothing in this that was contrary to law. The case of Whitaker v. Dumont, 90 N. J. L. 383; 101 Atl. Rep. 561, is predicated upon a wholly different state of facts and a different state of the law.

It is next said that interest could not be included in the township’s claim. This is not true. Davis v. Newark, 54 N. J. L. 144; 23 Atl. Rep. 276.

It is said that the maps made by the engineers did not show the rear boundary line of the parcels bordering on the improvement. The maps exhibited in the case do show such boundaries, but if otherwise, such failure would not be fatal. The boundaries of the prosecutors lands are clearly defined and the allowance of the writ expressly limited to the assessment against it.

Another contention is that the report fails to fix and determine the amount, if any, of the damage to the prosecutor’s property. Unless such damage appears the commissioners would not be obliged to assess it, and in any event the assessment is presumed to be the net benefit accruing to the property assessed.

The remaining contentions seem to call for no special discussion. They are highly technical and without merit. There would appear to be no substantial reason for supposing that the prosecutor has been called upon to pay other than the just portion of a burden equitably and justly assessed between himself and other property owners benefited by the improvement, and in the absence of such substantial claim, the court will not be astute to relieve the property owner at the expense either of the community or his co-owners upon grounds so purely technical as those here presented.

The assessment is affirmed.


text:
    MARY MILLER, PROSECUTOR, v. NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS ET AL., RESPONDENTS. NANCY KEHOE, PROSECUTOR, v. NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS ET AL., RESPONDENTS.
    Submitted January 18, 1933
    Decided July 25, 1933.
    Before Justices Pabker, Lloyd and Heher.
    Por the prosecutors, Merritt Lane.

    Por the respondents, William A. Stevens and Robert Peacoch.

   Per Curiam.

The prosecutors in these cases were convicted of violation of section 10 of the act to regulate the practice of medicine and surgery (1 Cum. Supp. Comp. Stat., p. 1872), and writs of certiorari were allowed to review the convictions. In substance the charges were practicing medicine and surgery without a license, Mary Miller being the principal and Nancy Kehoe her assistant in such practices.

Mary Miller has a license to practice chiropractic only. The proofs show that Mrs. Miller had an office and treating rooms at 327 Park avenue, Paterson, with the sign “Dr. Mary Miller” on the window and the words “Dr. Miller” on the door mat; that she diagnosed the ailments of the witnesses and prescribed a diet of food and soda as a medicine, and administered electric treatments, which treatments were also given by Nancy Kehoe. Some of the treatments were for a fibroid tumor as diagnosed by Mrs. Miller, in which she changed the dressings; one for cancer, one for gall bladder and bronchial trouble. In one instance at least she directed the administration of opiates at the direction of a physician she called on the telephone. In addition to the foregoing she advertised herself as Dr. Miller under the classified list of physicians in the city directory.

It is needless to say that under the authority of numerous cases of which it is only necessary to cite that of State Board v. Livesey, 140 Atl. Rep. 444; affirmed, 105 N. J. L. 255, this constituted the practice of medicine without a license.

The prosecutors contend, however, that because the act of 1920 (Pamph. L., p. 15), which defined “chiropractic” was repealed, there is now no legal definition of the word and therefore the prosecutors were not offending. Even though the legislature has not since defined the work this does not deprive it of all meaning and did not prevent a conviction in the Livesey case. The dictionary definition (Webster’s New International) is “the practice of adjusting the joints, especially of the spine, by hand, for the curing of disease.”

It is next argued that Mrs. Miller was a graduate of an electro-therapeutic school and had practiced for fourteen years prior to the adoption of chapter 221 of the laws of 1921 (page 706) and that she came within the exception of section 9 of that act. It is sufficient to say that the proofs intended to invoke this exception were wholly insufficient. The school appealed to was not proved to be. of “good standing” nor was Mrs. Miller practicing when the act was first passed in 1903. Section 9, page 495.

The rules of the board, if any, are not printed nor identified so we cannot say that the court erred in their rejection.

The suggestion unconstitutionality of the general act is not argued and perhaps wisely in view of numerous cases in this court and the Court of Errors and Appeals to the contrary.

The judgments are affirmed, with costs.


text:
    FIRST NATIONAL BANK OF BOUND BROOK, NEW JERSEY, RELATOR, v. EDGAR T. ESTERLINE, N. JOSEPH ENGLEBERT AND JOSEPH E. JAMES, ASSESSORS OF THE BOROUGH OF LAVALLETTE, AND THE BOROUGH OF LAVALLETTE, IN THE COUNTY OF OCEAN, NEW JERSEY, RESPONDENTS.
    Argued October 5, 1932
    Decided July 25, 1933.
    Before Justices Pabkee, Lloyd and Campbell.
    For the relator, Ira F. Smith.

    For the respondents, Leon Beussille, Jr.

    For the Municipal Finance Commission, William A. Stevens (Arnold Frye, of counsel).
   Per Curiam.

The petitioner is the holder of several judgments against the borough of Lavallette upon which execution had been issued without avail, and upon which thereafter a peremptory writ of mandamus was, on September 9th, 1932, awarded by this court to compel the assessing authorities of the borough to assess and raise by taxation sufficient funds to liquidate these judgments. On the evening of the same day and before the writ was served the borough council passed a resolution calling upon the Municipal Finance Commission, a body created under chapter 340 of the laws of 1931 (page 830) as amended by chapter 236 of the laws of 1932 (page 519) to function in the borough.

Under section 103 the commission shall function in the municipality upon the filing in the office of the clerk of the Supreme Court of a certified copy of a resolution such as adopted by the borough council. The resolution in question was filed with the clerk on September 13th, 1932.

The present application is for a rule on the mayor and council of the borough to show cause why an order commanding obedience to the writ of mandamus should not issue, and why the petitioner should not have certain moneys on deposit applied to its judgments.

Except for the fact that the Municipal Finance Commission was not functioning in the borough when the writ of mandamus was served, but came into control a few days thereafter, the conditions here presented do not differ from those presented in the cases of Oak Securities Co. v. Township of North Bergen and Hourigan v. Township of North Bergen, Nos. 221 and 222 of the October term, 1932, of the Supreme Court, already determined and reported in 11 N. J. Mis. R. 194; 165 Atl. Rep. 74.

This simple difference we do not regard of importance in view of the reasons expressed in the cases cited. It may be added it is difficult to see that any force would be added to the writ of mandamus already in existence by any order that the respondent be compelled to obey it, and as to the application of funds in bank such application would be in conflict with one of the purposes of the legislation creating the finance commission, viz., equality in liquidation of the debts of a defaulting municipality.

For the reasons given in the cases referred to, the present application is denied.


author: Unger, S. C. C.

text:
    LENA GOLDBERG, ADMINISTRATRIX OF THE ESTATE OF BENJAMIN GOLDBERG, DECEASED, PLAINTIFF, v. MORITZ FISHER AND ROSE FISHER, DEFENDANTS.
    Decided July 21, 1933.
    For the plaintiff, Zucker ■& Goldberg.

    For the defendants, Nathan H. Berger.

   Unger, S. C. C.

The plaintiff has brought on before me as a Supreme Court commissioner, by notice of motion and affidavits, an application for an order striking out the answer of the defendants. The motion is to strike the answer upon the grounds that it is in part sham and in part frivolous. No application for a summary judgment is made, and the affidavits submitted on behalf of the plaintiff do not conform with the requirements of the Supreme Court rules relating to affidavits and the verification of the cause of action upon a motion for summary judgment.

The suit is on a bond accompanying a mortgage given to secure the payment thereof. The complaint alleges that the obligors, Moritz Fisher and Eose Fisher who are the defendants, conveyed the mortgaged premises to Fisher Grocery Company, a corporation. The deed of conveyance contained a provision to the effect that it was made “subject to a mortgage held by the Mutual Savings Fund Harmonia in the amount of $8,500, and a second mortgage upon which there is now due the sum of $1,900.” The bond upon which this action is brought was given in connection with the last mentioned mortgage.

The complaint further alleges that the first mortgage was foreclosed and that the property was purchased at a sheriff’s sale by the holder of that mortgage for a sum less than the amount adjudged to be due on the first mortgage, so that nothing was realized by the present plaintiff upon its second mortgage and that a deficiency is due thereon to the extent of the entire unpaid balance. The complaint charges that there is due the sum of $1,900 besides interest, which the defendants have refused to pay. The answer denies the last mentioned allegation and puts the plaintiff to her proof upon the allegation that she is the executrix of Benjamin Goldberg, deceased, to whom the defendants originally executed and delivered the bond and mortgage. The answer admits the other allegations of the complaint, and sets up six separate defenses.

At the outset the question arises whether or not a Supreme Court commissioner is authorized to entertain a motion to strike out an answer and defenses. Rule 92 of the Supreme Court, set up as one of the several rules relating to preliminary references, provides that the Supreme Court may designate for each county one or more of the Supreme Court commissioners, “who shall have the authority herein given.” By force of this rule, promulgated in 1912, the designation by the Supreme Court of any person as a Supreme Court commissioner vests in the latter the authority thereafter given. Rule 93, adopted in June, 1926, gives to the Circuit Court judges of this state theretofore or thereafter appointed Supreme Court commissioners authority to hear and determine all motions preliminary to trial as specified in rules 94 and 95, and in such other rule thereafter promulgated. This is a distinct provision and nowise dependent upon rule 92.

Rule 94, likewise adopted in 1912, gives to “such commissioners respectively,” authority to make such orders as the court might make and as may be just in respect to the following matters, subject to appeal after final judgment: Objections to pleadings, amendments thereof, striking out pleadings, and leave for additional pleadings. Settlement of issue. Bills of particulars. Admissions. Interrogatories. Discovery of and inspection of books, papers and other documents. Examination of parties before trial. Any other interlocutory matter preliminary to and in preparation for trial. (Rule 63, Practice act, 1912, as amended June, 1926.)

By force of the foregoing rules the authority is conferred on a Supreme Court commissioner to make an order with respect to the matters therein enumerated. Such authority is sufficient to cover the present motion, which presents an "objection to pleadings” and an application to strike out an answer.

Returning to the merits of the application, it appears from the affidavits that the plaintiff duly qualified as executrix of the estate of Benjamin Goldberg, deceased, before the surrogate of Essex county, New Jersey, but nothing is contained in the affidavits submitted on behalf of the defendants on this subject.

The affidavits of the plaintiff charge that there is due on the bond and mortgage the sum of $1,900 with interest from Apiri 15th, 1932, and that the defendant Moritz Fisher admitted to the attorney for the plaintiff that this sum was due, in a conversation had at the office of the attorney shortly before suit was instituted. The affidavits further substantiate the allegations of the complaint that demand for payment was made upon the defendants and the latter failed to comply with the demand. This allegation of demand for payment and refusal on the part of the defendants to make payment is denied by the answer, but the denial is not substantiated by the affidavits submitted by the defendants and will therefore be stricken out as sham. An issue of fact is raised, however, upon the allegation that the sum of $1,900 with interest is due. The affidavits of the defendant set up that when the mortgage loan was made the mortgagee exacted a bonus in the sum of $625 in violation of the Usury act. The claim is made that the defendants are entitled to a credit for this amount and for the sum of $420 representing interest paid on the mortgage loan. Although under the statute the defendants would at most be entitled to a credit for such interest ,as was paid in excess of the legal rate, and not for all interest paid (Hintze v. Taylor, 57 N. J. L. 293; 30 AM. Rep. 551; Kohn v. Kelly, 76 N. J. Eq. 132; 79 Atl. Rep. 419; Kobrin v. Hull, 96 N. J. Eq. 41; 124 Atl. Rep. 365), an issue of fact is raised as to the amount presently due to the plaintiff.

It is contended by the plaintiff that the defendants are estopped from pleading usury because they conveyed the mortgaged premises to Fisher Grocery Company, a corporation, and in the deed of conveyance it was recited that the conveyance was made subject to a second mortgage upon which there is due the sum of $1,900, the reference being to the mortgage given together with the bond upon which this action is brought. No estoppel is brought about between the mortgagor and mortgagee by such a transaction. The mortgagor’s grantee is precluded from setting up the defense of usury under such circumstances because he has retained out of the purchase price a sum sufficient to pay the mortgage debt in the amount provided for in the deed of conveyance. But as to the mortgagor no similar or equivalent situation exists. The taint of usury is not removed but still exists in all its original force. There is no showing that the original mortgagor waived his right to set up the defense of usury. It is still available to the plaintiff. Scull v. Idler, 79 N. J. Eq. 466; 81 Atl. Rep. 746; Berk v. Isquith Productions, Inc., 98 N. J. Eq. 608; 131 Atl. Rep. 526.

That affidavits may be considered upon an application to strike out the whole or part of an answer as being sham, notwithstanding the fact that no application for a summary judgment accompanies such a motion is evident from section 15 of the Practice act of 1912 which -provides among other things:

“(a) Subject to rules, any frivolous or sham defense to the whole or to any part of the complaint may be struck out; or, if it appears probable that the defense is frivolous or sham, defendant may be allowed to defend on terms. Defendant, after final judgment, may appeal from any order made against him under this section.”

In Eisele & King v. Raphael, 90 N. J. L. 219; 101 Atl. Rep. 200, Mr. Justice Bergen, speaking for the Court of Erros and Appeals, said of this section:

“This section being made expressly 'subject to rules’ must be read in connection with rules 80 to 84 inclusive, relating to the entry of summary judgments. Rule 80 provides that The answer may be struck out and judgment final may be entered upon motion and affidavit as hereinafter provided, unless the defendant by affidavit or other proofs shall show such facts as may be deemed, by the judge hearing the motion sufficient to entitle him to defend.’ ”

Rules 80 to 84 inclusive, referred to by the Court of Errors and Appeals, provide for the presentation of affidavits on application for the entry of a summary judgment. Reading section 15 of the Practice act together with rules 80 to 84, it is manifest that in moving to strike the whole or a part of an answer upon the ground that it is sham, the question whether or not it is sham is to be determined by affidavits to be submitted by the parties. It is open to the defendant to show by affidavits or other proof, facts which shall be deemed by the judge hearing the motion to be sufficient to entitle the defendant to defend. An allegation that a defense is sham connotes that it is false in fact. Obviously the determination of such a question is to be decided by a consideration of facts, appropriately presented by affidavits or other competent proof. Gee v. Independent Bonding and Casually Insurance Co., 109 N. J. L. 563; 162 Atl. Rep. 644.

The first separate defense alleges that the plaintiff agreed with the defendants that she, the plaintiff, would attend the sheriff’s sale and purchase the premises and thereby satisfy the indebtedness of the defendants to the plaintiff; that the defendants relied on this promise and failed to attend the sheriff’s sale, resulting in the premises being sold for an amount below the true value of the premises. This defense, if true, does not amount to a release of the bond obligation, or to an agreement that the plaintiff would not hold the defendants on the bond if they remained away. It is not alleged that any consideration supports the agreement alleged to have been made. These statements do not constitute a defense and will be stricken out as frivolous.

The second defense alleges that the plaintiff’s intestate exacted a usurious bonus in the sum of $625 for which the defendants are entitled to a credit and that they are likewise entitled to a credit of $420 representing interest paid on the allegedly usurious transaction. As has already been stated, an issue of fact is presented by the affidavits to the extent that they allege payment of a bonus and of interest in excess of the legal rate.

The third defense alleges that there has not been a complete exhaustion of the mortgaged premises by the sheriff’s sale. This defense is embraced within the fifth and sixth defenses and will be considered together with them.

The fourth defense alleges that the complaint does not set forth a cause of. action. In my opinion it does. It is not lacking in any essential allegation, and the schedules annexed to it contain copies of the bond and mortgage. This defense is frivolous.

The fifth defense alleges that the action is prematurely brought, contending that the plaintiff did not comply with the provisions of the statute which requires foreclosure of a mortgage before the institution of an action upon an accompanying bond. The plaintiff’s second mortgage was wiped out by the foreclosure of the first mortgage embracing the same premises, and under these circumstances it was unnecessary for the plaintiff to first foreclose her mortgage before proceeding upon the bond. The statute has no application to such a situation where the plaintiff was a party defendant to the action to foreclose the prior mortgage. McCall v. Yard, 9 N. J. Eq. 358; Seigman v. Streeter, 64 N. J. L. 169; 44 Atl. Rep. 888; Echikson v. Zalenski, 106 N. J. L. 508; 150 Atl. Rep. 335, and the cases therein cited. As a result of the foreclosure of the first mortgage, the plaintiff held her bond unsecured by collateral. This defense is frivolous and will be stricken out.

The sixth and last defense is that the defendants are entitled to the benefit of an act which permits the court to determine the amount due on the bond and mortgage by deducting from the mortgage debt the fair value of the premises at the date of the sheriff’s sale. I assume that this defense is predicated upon the amendment to the act of 1880 by chapter S2 of the laws of 1933. If so, this statute has been declared unconstitutional by Mr. Justice Parker in the unreported case of Lincoln Mortgage and Title Guaranty Co. v. Brunton Piano Co., and I am bound by his decision. The result of these conclusions is that there is no valid defense to so much of the plaintiffs claim as is represented by the difference between $1,900 and the alleged payment of a bonus of $625 and interest in excess of the legal rate.

I will sign an order in accordance with these conclusions.


text:
    SAMUEL BARON, APPELLANT, v. LOUIS BARON, RESPONDENT.
    Submitted May 12, 1933
    Decided July 20, 1933.
    Before Justices Parker, Lloyd and Perskie.
    For the appellant, George Rothstein.

    For the respondent, Marie Townsend.

   Per Curiam.

This ease arises out of an automobile accident. The plaintiff was an invited guest in the ear of the defendant, who was his brother; and as the car approached a street opening to the right and was within about twenty-five or thirty feet of it going at thirty miles an hour, another car emerged from the street at about the same speed, according to the testimony. The defendant swung his car to the left but was unable to escape the other car, which struck defendant’s car and caused the injuries to the plaintiff. Three alleged errors are set up in the specification filed in this cause. The first is that there was error in ordering a nonsuit; the second, that there was error in directing the jury to render a judgment of nonsuit; and the third, that there was error on refusing to admit in evidence the judgment record in another case brought apparently by the two parties to this case as plaintiffs against the owner and driver of the other car, the purpose being to show thereby that the negligence of the defendant as respects the plaintiff had been adjudicated.

The record of the case in question is not laid before us so we have no way of judging whether or not it was at all relevant to the present controversy or competent evidence therein. Normally, it would bear merely upon the negligence of the third party, and perhaps, upon the contributory negligence of the present defendant in his own suit, which, of course, would not bind a passenger in his car. However, it is unnecessary to pursue the subject for the fundamental reason that where documentary evidence rejected in the court below is not presented to the appellate court, it is impossible to saj whether there was error in so rejecting it.

With regard to the specification that there was error in directing the jury at the conclusion of the plaintiff’s case to render a judgment of nonsuit, we are confronted with a similar situation. The case, although stenographically reported, shows no instructions whatever to the jury.

We think there was error in directing a nonsuit. As to this, the case certified by the court shows that “at the close of the plaintiff’s case, upon motion of the defendant, a non-suit was granted, to which decision the plaintiff duly excepted.”

We think it clear that the evidence, which was, of course, uncontradicted, presented a jury question. The plaintiff’s ear was proceeding toward the south. It was going at thirty miles an hour when within twenty or twenty-five feet of the intersection of the lane called Isaac’s lane, entering from its right. The other car was in plain sight, there being an unobstructed view, and would presumably have the right of way. This, in our judgment, presented ample evidence of want of care on the part of the defendant in approaching the crossing. For this reason the judgment will be reversed, to the end that a new trial be had.


text:
    JAMES HANRAHAN, RESPONDENT, v. ELIZABETH-UNION-HILLSIDE-IRVINGTON LINE, APPELLANT, AND EASTERN CARRIER, INCORPORATED, DEFENDANT.
    Submitted May 12, 1933
    Decided July 20, 1933.
    Before Justices Pabkeb, Lloyd and Perskie.
    For the appellant, Charles A. Rooney.

    Por the respondent, Francis A. Gordon.

   Per Curiam.

The plaintiff recovered a judgment for injuries to his corner store at the southwest corner of Cherry and Orchard streets, in Elizabeth, due to a collision between the northbound bus of the appellant and the westbound truck of the other defendant, Eastern Carrier, Incorporated. There was a judgment against both defendants, the second not appearing.

The substance of the appeal is that there was no evidence on which to predícate a finding of negligence as against the appellant by the trial judge sitting without a jury. We think the claim is not well founded. An attack is made upon the testimony of one of the witnesses who testified he saw the accident, on the ground that he had told the police officer that he knew nothing about the case and had not seen the accident; but whatever impeachment may be in that fact, the force of that impeachment was for the trial judge. It was open to him to find that the bus of the appellant proceeded at a high speed across Orchard street from south to north in the face of the truck coming from its right. The truck driver may well have had the right of way in view of the Traffic act, and his testimony indicates that the appellant’s bus suddenly appeared in front of him; that he was obliged to throw his truck over to his left in an attempt to avoid a square collision with the bus; that he struck the bus on the right rear, and as a result of the collision the truck-landed in the show window of the drug store.

The questions of negligence were purely questions of fact, and for the determination of the trial judge, sitting without a jury, and we think that we are not in a position to disturb his conclusions thereon.

The judgment will accordingly be affirmed.


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    LORETTA ALLEN, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF-RESPONDENT, v. FREDERIC TATUM ET AL., DEFENDANTS-APPELLANTS.
    Submitted January 27, 1933
    Decided July 15, 1933.
    Before Justices Bodine and Dostges.
    Por the appellants, Durand, Ivins <& Carton.

    Por the respondent, Quinn, Parsons •& Doremus.

   Per Curiam.

This is an appeal from a judgment of the Monmouth County Court of Common Pleas entered upon the verdict of a jury after a trial before Judge Truax. There was a rule to show cause on the ground of the excessiveness of the verdict, which rule reserved exceptions and was subsequently discharged.

Plaintiff’s decedent, who was her son, was killed as the result of a collision between an automobile driven by him and owned by plaintiff, and a car owned by the defendant Tatum and driven by the defendant Falaradeu.

Decedent was operating the Ford car on a state highway near Middletown, New Jersey. While ascending a long hill, the car ran out of gasoline and stopped about five hundred feet from the top. Decedent alighted and attempted to turn the car around by pushing it downhill backwards and turning the wheel. In this manner he got his car across the road and partly on that side of the road ordinarily used by southbound traffic. The accident occurred at five-thirty p. m. on October 28th, 1931. Defendant’s car came over the brow of the hill, attempted to pass to the rear of the Ford, struck decedent and his car, killing the decedent. There wore two passengers in the Ford who testified for the plaintiff to the above facts. It appeared that Falaradeu was blind in his right eye. Falaradeu testified that when he first saw the Ford he was three hundred feet away and its lights were on bright. He was going twenty-five or thirty miles an hour and could see decedent starting to push the Ford backwards. He slowed up to twenty miles an hour. His testimony is rather confusing and at one point he says he feared a collision when four or five hundred feet away but could not stop despite the fact that his brakes were good and had recently been relined. Then he said he apprehended danger when three hundred feet away; next shortened it to one hundred to one hundred and twenty-five feet; then to twenty-five feet, at which point he applied his brakes but could not stop although by this time he said he was going only ten miles an hour.

Plaintiff offered testimony to the effect that the Ford was only three feet over the center of the road and that there was a space of twenty-one feet in the rear of -it for a car to pass.

1 and 2. The first two points argued concern questions permitted to be asked an actuary over objection of defendants. These questions were:

“Q. At the age of nineteen years what is the expectation of living according to the accepted tables of mortality?”

“Q. What capital sum would have to be invested at four per cent, interest to provide weekly payments of a nominal sum of $10 for forty-three years, the fund being extinguished at the end of that time?”

The basis of the objection is that such questions rely upon and presented to the jury the situation that the decedent would be legally required to contribute money to his mother for the rest of their joint lives. However, the judge charged the jury to the contrary, and merely told them they might consider this testimony. He said, “also, ladies and gentlemen, it seems to me as reasonable men and women you would consider whether or not the boy would continue to keep up that obligation all his life. We are dealing with probabilities and uncertainties.”

3. Upon cross-examination, a witness for plaintiff, being asked why he had made a certain statement previously, replied, “just to get rid of the insurance man, I guess.” Thereupon, motion was made for a mistrial and the denial of this motion is alleged now to be error. This is a matter of discretion and there is nothing to indicate abuse of that discretion. The plaintiff had nothing to do with eliciting the mention of insurance and made no attempt to benefit by it. Furthermore, the trial court charged the jury to disregard any such reference. There was no error in this ruling.

4. That it was eror to refuse to direct a verdict for defendants. The motion was upon the ground of lack of proof of negligence and the display of contributory.negligence by decedent as a matter of law. The recital of facts above is sufficient to indicate that both of these questions were for the jury. The testimony of Falaradeu alone could be said to raise inference of his negligence, and if the testimony of plaintiff’s witnesses to the effect that the rear of the Ford projected only three feet over the center of the road be true, then surely the negligence, of decedent did not appear as a matter of law.

5. The next point is that the court erred in charging the jury that “the law does say that there is an obligation on the part of the child to support the parents when they are in necessitous circumstances.” The court charged that the parents were not entitled to any earnings of a child after majority, and then went on to state that when the parents were a charge upon the state the overseer of: the poor can compel support from the children. This is true, although probably immaterial to this case. However, it was harmless because the court mentioned this merely as a matter of exposition and did not charge the jury they should return a verdict on any such basis. The question submitted to the jury was the amount the mother was entitled to before decedent reached his majority, and the amount the son would probably contribute thereafter.

6. This point challenges a long excerpt from the charge wherein the court commented upon the evidence of the insurance actuary. The complaint appears to be that commenting upon this evidence and not upon other elements properly to be considered on the question of damages, placed undue emphasis upon the figures of the actuary. A reading of the excerpt leads to the opposite conclusion and 'to the belief that the court was trying to lessen the weight and importance •of this testimony. In effect he told the jury that any guess they might make would, in his opinion, be as accurate as he figures of the actuary. There was no harmful error in the portion of the charge complained of.

7. That the court erred in charging: “And I apprehend that in discussing this case if a man saw a woman with a baby carriage standing in the middle of the road and did not stop because he had a right to run forty miles an hour would not necessarily mean he could go right on ahead. He must show common sense and drive as he should under the circumstances in which he found himself.”

These words were used by way of illustrating the effect of the motor vehicle law. What the court was saying was that a driver does not have the absolute right to go the limit speed permitted by law under all circumstances, but must observe conditions and use reasonable care. It was purely an illustration and the court did not charge any direct application to this case, nor could the jury infer that defendant ffalaradeu was under the same duty as a man who approached a baby carriage at forty miles an hour. It does not seem to be a situation where a principle of law, correct in itself but inapplicable to the facts of the ease, was charged as being controlling, such as was condemned in Lambert v. Trenton, &c., Traction Co., 3 N. J. Mis. R. 237; 127 Atl. Rep. 674.

The judgment is affirmed, with costs.


text:
    WINFIELD FINE, Sr., PROSECUTOR, v. BOROUGH OF MILLTOWN, CHARLES V. L. BOOREAM ET AL., RESPONDENTS.
    Submitted January 18, 1933
    Decided July 25, 1933.
    Before Justices Parker, Lloyd and Heher.
    For the prosecutor, Joseph H. Fdgar.

    Por the respondents, Fred W. De Voe.

   Per Curiam.

The prosecutor seeks to have his position as janitor of the borough hall of Milltown from which he claims to have been illegally removed, restored to him.

It seems that a janitor for the hall had been appointed and confirmed by the borough council on each succeeding' Mew Year’s day for the preceding twenty-two years. In September, 1931, Junker, the then incumbent, died and the prosecutor was on the 14th of that month appointed to succeed him. On January 1st, 1932, one Brindle was appointed to the position.

It is contended by the prosecutor that he held for an indefinite term, and being an exempt fireman, under the Tenure of Office acts, could not be removed.

Wo find it unnecessary to consider the legal phase of prosecutor’s term. Prom the depositions taken under stipulation of the parties we think it fairly appears that the prosecutor voluntarily surrendered the position and returned the keys to the building on the 31st of December, 1931. This presented a question of fact which was rightly determined adversely to the prosecutor and the writ is dismissed.


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    HOWARD S. AUSTERMUHL, PROSECUTOR, v. BOROUGH OF COLLINGSWOOD, RESPONDENT.
    Submitted January term, 1933
    Decided July 25, 1933.
    Before Justices Parker, Lloyd and Heher.
    Por the prosecutor, Albert 8. Woodruff.

    Por the respondent, John A. Penn.

   Per Curiam.

The rule in this case is for a writ of certiorari to review an ordinance of the borough of Collingswood providing for the regulation and use of fences and fence materials, and providing a penalty for the violation thereof. The ordinance prohibits the erection of any fence above four feet in height without the permission of the board of commissioners and requires the removal of existing fences not conforming to the provisions of the ordinance, if so directed by the board of commissioners. Under this a fence previously erected by the prosecutor was directed to be removed or altered to conform to the ordinance.

Proofs were taken in pursuance of the rule and apparently from these it would appear that the ordinance as to the prosecutor’s property was illegal under such cases as Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285; 62 Atl. Rep. 267, but without so deciding at this stage of the proceedings, it is sufficient to say that the writ will be allowed.


author: Carney, J.

text:
    Second Judicial District Court, Hudson County,
    LOUISE McCURNIN AND WILLIAM McCURNIN v. B. & J. REALTY COMPANY.
    Decided July 17, 1933.
    Por the plaintiff, Andrew J. Markey.

    Por the defendant, Louis P. Brenner.

   Carney, J.

This action was instituted by the plaintiff and her husband, against the defendant, to recover for personal injuries to herself, and for medical expenses incurred by her husband. The state of demand alleged that the defendant maintained a portion of its premises (reserved for the common use of tenants) in a defective and ruinous condition. The defendant filed a counter-claim, by which it sought to recover the sum of $450 for rent due and owing to it by plaintiffs (and admitted by plaintiffs to be due). A motion was made by plaintiffs to dismiss the counter-claim on the ground that it was a claim for liquidated damages and could not be thus set off against plaintiff’s claim for injuries. Decision was reserved on plaintiff’s motion, there being no necessity for taking testimony on the same, in view of the plaintiff’s admission of the amount due on the counter-claim.

The situation thus presented calls for a determination as to whether or not, in an action to recover for unliquidated damages, the defendant is permitted to counter-claim for liquidated damages.

The pertinent sections applicable are: Section Ho. 60 of the District Court act, which among other things provides:

"If the defendant have any account, demand or cause of action against the plaintiff, he shall be permitted to discount, set-off or counter-claim the same against the account, debt or demand of such plaintiff.” Pamph. L. 1916, p. 540; Pamph. L. 1922, p. 230; Pamph. L. 1927, p. 499.

Section No. 12 of the Practice act of 1912, which, among other things:

“Subject to rules, the defendant may counter-claim or set-off any cause of action; * * * but in the discretion of

the court, separate trials may be ordered; or if counter-claim cannot be conveniently disposed of in the pending action, the court may strike it out.”

Section No. 68, of the District Court act, which provides:

“The practice of the Circuit Courts in so far as applicable, shall apply to the District Courts.” * * *

It will be observed that section No. 60 of the District Court act was amended in 1922. A change was made by inserting (after the word “demand”) the words “or cause of action;” and by inserting (after the word “set-off”) the words “or counter-claim;” thus giving rise to the popular erroneous notion entertained and dispelled in Rebenfield v. Friedberg, 3 N. J. Mis. R. 93; 127 Atl. Rep. 187, and Doyle v. Corn, 8 N. J. Mis. R. 865; 152 Atl. Rep. 329, that a claim for unliquidated damages could be set up against a claim for liquidated damages.

An examination of the acts of the legislature above referred to, clearly indicates the manifest trend of legislation to prevent, as far as practical, the multiplication of' legal controversies; these acts have given to courts broad powers in determining the question of permitting a defendant in a cause to counter-claim.

It would therefore appear that these enactments should be liberally construed, so that legal controversies might be speedily and finally determined according to the substantive rights of the parties.

I am therefore of the opinion that the counter-claim filed herein should be, and the same is hereby allowed as an offset against the recovery obtained by the plaintiffs. The recovery obtained by the plaintiffs was for $500 and the amount offset will be $450 (the amount admittedly due upon the counterclaim) ; and judgment will be entered in accordance with these views.


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    LLOYD GLASSMEYER, PLAINTIFF-APPELLANT, v. THE PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-RESPONDENT.
    Submitted January 27, 1933
    Decided July 29, 1933.
    Before Justices Bodine and Donges.
    For the plaintiff-appellant, Paul Koch.

    For the defendant-respondent, Wall, Haight, Carey é Hartpence.

   Per Curiam.

The plaintiff appeals from a verdict directed by the court in favor of the defendant. The complaint shows that the plaintiff, a commuter on the defendant’s road while waiting to board a train at the defendant’s station, was negligently injured by reason of the improper operation of the defendant’s train known as the “preference freight,” or because of the improper maintenance of the tracks and roadbed on which the freight train was running.

The plaintiff proved that his injuries were occasioned by the derailment of part of the “preference freight” and by the demolishment of the railroad station. The court, in denying a motion for a nonsuit, treated such proofs as constituting a prima facie case of negligence. 10 Corp. Jur. 1036.

The defendant’s proof, however, indicated that the occurrence was due to a defect in a refrigerator car owned by a connecting carrier. One of the brake heads and shoe of the car fell into a frog at a switch along defendant’s tracks derailing ten cars. These derailed cars damaged the station. The brake gear and journals were tested before the train started, and the proofs indicated that the falling of the mechanism was due to a latent defect which could not have been revealed save by dismantling in the shop. The carrier, therefore, demonstrated by uneontradicted proofs that the injury occurred without negligence on its part. Anderson v. Erie Railroad Co., 68 N. J. L. 647; 54 Atl. Rep. 830; 10 Corp. Jur. 1036. A carrier is not liable for an injury due to a latent defect not discoverable by the exercise of reasonable care. Dougherty v. Pittsburgh, 213 Pa. 346; 62 Atl. Rep. 926; Western Maryland Railroad Co. v. State, 95 Md. 639; 53 Atl. Rep. 969. It is manifest that a railroad company accepting a car from a connecting carrier cannot separate every part of its mechanism and subject the same to a shop test designed to reveal the integrity of the metal parts. The defendant, by uncontradicted proofs, having rebutted the presumption of negligence, the direction of a verdict in its favor was proper.

The hypothetical question propounded to an expert witness called by the defendant possibly offended the rule laid down in Shoemaker v. Elmer, 70 N. J. L. 710; 58 Atl. Rep. 940. Even so, the judgment should not be reversed since evidence properly admitted and uncontradicted demonstrated that the accident was due to a latent defect not discoverable by the exercise of reasonable care under the circumstances.

The judgment is affirmed.


text:
    JOHN JOHNSON AND MARY JOHNSON, PLAINTIFFS-APPELLANTS, v. JOHN RIVARA AND DOMENICO PRATO, DEFENDANTS-RESPONDENTS.
    Submitted January 27, 1933
    Decided July 28, 1933.
    Before Justices Tbenchabd, Case and Beogan.
    For the appellants, Judson B. Salisbury (Frederick W. Mattocks, of counsel).
    For the respondents, Huckin $ Huckin.

   Per Curiam.

This is an appeal from a judgment of the District Court of the Third Judicial District of the county of Bergen in favor of the defendants below.

The record discloses that Mr. and Mrs. Johnson, the appellants here, gave $500 as a down payment to the defendants (appellees here) on account of the purchase price of fifteen acres of land lying on the west side of the state highway in Palisades, New York. The preliminary memorandum relating to this transaction is informal, reciting merely that the purchase price of $43,000 shall be payable, $2,000 on the signing of a proper contract of sale which was to be executed on May 2d, 1931, $7,500 additional on the passing of title, fixed for June 29th, 1931, and the balance by the execution of a purchase-money mortgage. The only other provision in this memorandum is that “the part of said property taken by the State of New York for a state highway shall be excepted from said conveyance.”

The complaint alleges that the plaintiffs paid the defendants $500 and defendants agreed to enter into a contract to sell and convey to plaintiffs these said lands at Palisade, and that defendants never executed the contract and plaintiffs have demanded the return of the $500 and said sum has not been repaid.

The court, sitting without a jury, decided that the plaintiffs were not entitled to the return of the money deposited and, consequently, entered a judgment in favor of the defendants. The plaintiffs appeal on quite a number of grounds, most of which are not argued; consequently, they will be considered as having been abandoned. Sargeant Bros. v. Brancati, 107 N. J. L. 84; 151 Atl. Rep. 843.

We should observe at the outset that the points which are argued in the brief are not included in the grounds of appeal in question as they appear in the printed state of case. There are, however, two typewritten pages, which are sent us from the clerk’s office, purporting to be a specification of points for appeal, but there is nothing to show whether or not these points were served upon opposing counsel and they are quite different from the grounds of appeal that appear in the state of case. Counsel for the appellees does not answer these grounds point for point in his brief and this perhaps indicates that they were not served. However, since no objecction is made we will resolve the matter in favor of the appellants and consider the points argued. The practice, however, is not' approved.

The appellants say in their first point that since there is no denial of any material facts judgment should have been rendered in favor of plaintiffs-appellants for the amount of the down payment and reasonable expense for search fee and survey.

This statement by the appellants’ counsel is not accurate. There was an issue on material facts. • There was testimony which the court, sitting without a jury, apparently believed, that the plaintiffs did not want to-take the property; that they feared they couldn’t conduct a business on the property in question. Manifestly, there was a fact issue involved here. This ground for reversal therefore is not sound.

The second point made is that there was a material modification of the original contract which justified the refusal to sign the tendered contract and therefore there should have been a recovery of the down payment.

This likewise is not the fact. The receipt or memorandum, which was signed by the parties in contemplation of the contract, recites that the down payment was on account of the purchase of the land in question, describing it, and a schedule of the payments to be made thereunder, the contract to contain “all details” of the transaction. The plaintiff, Johnson, according to his own testimony, never went to the office of counsel for the owners of the property at the time appointed; did not tender the amount called for at the time appointed for the signing of the contract; in fact, remained away from the other party in interest, and it seems clear that unless he performed in accordance with the agreement of the parties or made a tender of performance he was not in a legal position to rescind the contract. Eckhause v. Berwyn Estates, 104 N. J. Eq. 416; 146 Atl. Rep. 65; affirmed, 106 N. J. Eq. 276; 148 Atl. Rep. 917.

Assuming that there were defects in the title, it is well settled that the vendor should be allowed a reasonable time to perfect his title. Time was not the essence of this agreement. This is and has been the well settled law in this state for some time. Larkin v. Koether, 101 N. J. Eq. 176; 137 Atl. Rep. 849; affirmed, 102 N. J. Eq. 329; 140 Atl. Rep. 920. The rule in the case last cited likewise disposes of the other points that have been raised by the appellants in their brief since they are of exactly the same character and nature.

Tor these reasons, the judgment under review will be affirmed, with costs.


author: Pee Cueiam.

text:
    PHILIP KAHALA, PLAINTIFF-RESPONDENT, v. WILLIAM F. ALDRICH AND ATLANTIC CITY STEEL PIER COMPANY, DEFENDANTS, AND WILLIAM F. ALDRICH, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided July 28, 1933.
    Before Justices Tbenchard, Case and Beogan.
    Bor the respondent, Albert N. Shahadi.

    Bor the appellant, Thompson & Sanstein.

   Pee Cueiam.

The plaintiff below brought suit against William B. Aldrich and the Atlantic City Steel Pier Company for wages alleged to be due arising out of the defendants’ breach of contract. A voluntary nonsuit was entered as to the Atlantic City Steel Pier Company. The state of case presents the following situation:

The plaintiff alleges that he was employed by the defendants to work at the steel pier in Atlantic City as a swimmer and diver for the following days: May 28th, 29th and 30th; June 4th, 5th and June .11th, and 12th, 1932, at the rate of $5 per day, and commencing June 18th, 1932, for a period up to and including September 5th, at a weekly wage of $40.

The plaintiff says that he worked on those particular days and in addition thereto for one week beginning June 18th, 1932, but that on June 25th, 1932, was discharged and that his damages up to September 3d, 1932, amounted to $411.43. He made demand for this sum and was refused; he tried to get other employment without success. This testimony as to the employment for a definite period was corroborated by plaintiff’s wife.

On behalf of the defense, Mr. Aldrich, who conducted all the dealings with the plaintiff; testified that at no time had he entered into any agreement to employ the plaintiff for any definite period of time; that the plaintiff agreed to help out with extra work on the ship known as “Steel Pier,” but that on Sunday, June 27th, plaintiff was late for work and had lost the bathing suit with which the defendant, Aldrich, had furnished him; when the defendant admonished him that he would have to be more careful about bathing suits, plaintiff became insulting, calling the defendant names, speaking very loudly and rapidly in the Hawaiian tongue and that at the end of the day’s work he discharged the plaintiff.

On the cross-examination of this defendant, plaintiff’s counsel asked if he did not have a contract with the Atlantic City Steel Pier Company requiring him to furnish a certain number of Hawaiian musicians and divers from June 18th to September 5th, 1932, which question was objected to. The court allowed the testimony over defendants’ objection. The witness said that he had such a contract.

After additional testimony from other witnesses as to the altercation between the plaintiff and the defendant Aldrich the defense rested and the court awarded a judgment to the plaintiff for the full amount of his claim.

The sole ground of appeal here is that it was error for the court to have received the testimony as to whether or not the defendant Aldrich had a contract with the Atlantic City Steel Pier Company.

We think that the question was irrelevant and was foreign to the issue, namely, whether or not there was a contract between the plaintiff and the defendant. Evidence to be relevant must bear upon the issue joined between the parties. We do not think, however, that the admission of this evidence was harmful. The court, sitting without a jury, apparently believed the plaintiff’s story. He testified he was hired for a specific time and that he was discharged without cause. If the court had believed the story of the defendant Aldrich he would have found in his favor and this he might have done even though he believed that there had been a hiring for a specific time, since he could have found under the facts presented that the defendant was justified in breaching the contract. The case was essentially one of fact and it was within the province of the court to determine the facts in accordance with his belief from the testimony produced.

We find no error and the judgment therefore will be affirmed, with costs.


text:
    WALTER F. CLIFTON, PLAINTIFF, v. OCEAN COUNTY NATIONAL BANK OF POINT PLEASANT BEACH, NEW JERSEY, A NATIONAL BANKING CORPORATION, DEFENDANT.
    Decided July 29, 1933.
    For the plaintiff, Lloyd G. Biddle.

    For the defendant, Charles Clifton, administrator of the estate of Caroline Clifton, deceased, Anschelewitz, Frankel & Barr.

   Lawrence, C. C. J.

This is a' replevin suit tried before me, without a jury, by consent of the parties, at the Ocean Circuit. The facts are: on March 3d, 1933, plaintiff deposited with the defendant bank for safe keeping a tin box, containing some jewelry, $80 in money, title deeds to certain real estate in the name of his mother, Caroline Clifton, insurance policies and other papers. On the deposit being made, the bank gave to plaintiff a receipt of which the following is a copy:

“Ocean County National Bank of Point Pleasant, $3.00 per year. New Jersey Not negotiable.

Safe deposit vaults.

Received from Walter P. Clifton, of Point Pleasant Borough, N. J., (no payment received) one black tin box, locked and tagged ‘Property of Walter P. Clifton, Point Pleasant, N. J., the contents of which is unknown to the Bank, but is represented by the depositor to be valuable papers and jewelry, and which is to be delivered only to Walter P. Clifton.’ It is understood and agreed by and between the Bank and the depositor that the value of the property above referred to does not exceed......dollars. When such a package shall have been delivered to the depositor by the Bank, all its liability therefor shall cease.

Ocean County National,

C. Ballinger.

This receipt to be returned when above property or any portion thereof is withdrawn.”

On the day after the above transaction, Mrs. Clifton, the mother of plaintiff, died, and Charles Clifton, an elder son, was later appointed administrator of her estate. He gave notice to the bank that the box and contents belonged to his mother’s estate and demanded its delivery to him. Thereupon the bank refused to deliver to the plaintiff on demand and the presentation of the receipt. The present suit was then brought by him against the bank which filed an answer denying his right to it. The administrator of the estate then intervened and was allowed to come in as a defendant and file an answer laying claim to the box and contents. As indicated the case was submitted to the court, without a jury, for determination.

The position of the bank at the trial was that all it desired was to be protected as against the conflicting claims of the plaintiff and the administrator. The proofs sufficiently disclosed that Mrs. Clifton had given the box and contents, with the key to plaintiff on the day before she died, in circumstances which requires the application of the rule laid down in Laing v. Durand, 84 N. J. Eq. 404; 93 Atl. Rep. 884; VanWagenen v. Bonnot, 72 N. J. Eq. 143; 65 Atl: Rep. 239; Keepers v. The Fidelity Title and Deposit Co., 56 N. J. L. 302; 28 Atl. Rep. 585, being distinguished, in that the evidence here indicates a delivery of the box, key and contents by Mrs. Clifton directly to plaintiff. The conclusion is that he is entitled to possession of the box and contents, upon surrender of the receipt to the defendant bank. It was conceded in his behalf at the trial that as to title deeds, insurance policies and business papers, such as receipts for bills paid by Mrs. Clifton in her lifetime, no claim could be made by him and that they were not affected by the gift. The only question here involved related to the jewelry, small amount of money and other tangible personal property, contained in the box. Judgment may be entered for possession of the box and contents accordingly.


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    EMMA F. SMITH, GUARDIAN OF WILLIAM J. SMITH, A LUNATIC, RELATOR, v. PENSION COMMISSION OF THE POLICE AND FIREMEN’S DEPARTMENTS OF THE CITY OF ATLANTIC CITY, RESPONDENT.
    Submitted October 14, 1932
    Decided August 1, 1933.
    Before Justices Paekee, Lloyd and Hehee.

      For the relator, Glenn & Glenn.

    For the respondent, Joseph B. Perskie.

   Per Curiam.

William J. Smith, now a lunatic, on July 3d, 1926, was appointed a “special temporary policeman” of Atlantic City, without compensation, for a period ending September 30th, 1926. An examination by the departmental surgeon disclosed that he was physically fit. On October 15th, 1926, the employment was terminated. On December 22d, 1926, he was again appointed as a policeman and continued in service until February 13th, 1929, when he was dismissed for derelictions of duty. Relator insists that the misconduct which brought about his dismissal was the result of an impaired mentality due to a head injury alleged to have been suffered by Smith while engaged in the performance of his duty at a fire in the Iroquois Hotel building, in Atlantic City, on April 16th, 1928. Subsequent to his dismissal, Smith enlisted in the United States army, and remained in military services for about one year, when he returned to Atlantic City. On November 19th, 1930, he was committed to the Atlantic County Hospital for the Insane, where he is now confined. It is conceded that he suffers from dementia praecox of a paranoiac type. The medical experts are in agreement that this could not have resulted from the injury claimed to have been sustained at the fire. The cause of this mental condition is not disclosed, and the inference is that it is unknown to medical science. An application for disability pension was presented to the respondent on January 26th, 1931, by Smith’s guardian. It is conceded that the application was denied by the commission.

The rule directs the respondent commission to show cause why a peremptory or alternative writ of mandamus should not issue, commanding the respondent pension commission “to pay to said relator the amount of pension due to her up to the present time and to place her name upon the roll of pensioners so that she may receive her pension [thereafter] in accordance with the provisions of chapter 160 of the laws of 1920.”

Respondent insists that the application should be denied for the following reasons, viz.: (1) Smith was not a member of the department at the time of the application by his guardian, and (2) the permanent disability alleged must have been received in the performance of duty, and the evidence fails to show that Smith’s mental condition resulted from the performance of duty.

We deem it unnecessary to pass upon the questions thus raised. The decision of the question whether the relator was entitled to a pension is committed to the pension commission (Pamph. L. 1920, p. 324, § 2), and all that this court can direct to be done, by mandamus, is that the commission should proceed to consider the question in the manner provided by the statute. The rule to show cause in the instant case is, therefore, too broad, and the applicant is manifestly not entitled to a writ commanding the respondent commission to place her name upon the roll of pensioners. Simmons v. Policemen’s Pension Commission of Deal, 8 N. J. Mis. R. 408; 150 Atl. Rep. 245. See, also, Simmons v. Policemen’s Pension Commission, Deal, 111 N. J. L. 134; 166 Atl. Rep. 925. Nor is the applicant entitled to a mandamus directing the pension commission to act in the premises. The commission acted pursuant to the statute, and denied the application.

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


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    H. G. VOGEL COMPANY, A CORPORATION, PLAINTIFF-APPELLANTS, v. HYMAN LIPSCHITZ ET AL., DEFENDANTS-APPELLEES.
    Argued January 17, 1933
    Decided July 29, 1933.
    Before Justices Bodine and Donges.
    Eor the plain tiff-appellant, Maurice Bernstein.

    For the defendants-appellees, David M. Litwin (Harry Green).

   Per Curiam.

The plaintiff appeals from a judgment in favor of the defendant. The record returned discloses besides the judgment and the pleadings, a colloquy of counsel with the court, and a document purporting to be an exhibit, but not so offered or marked. There is neither testimony or stipulation of fact. We can find no exception taken to any ruling of the trial court and would, therefore, have no basis to reverse if the judgment were entered in a form of proceeding known to us.

The learned trial court evidently regarded the matter as incomplete because he suggested at the close of the colloquy, that if counsel contemplated an appeal from his judgment the case would be reopened to the end that the record might be completed.

The appeal is therefore dismissed.


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    WILLIAM SOHN AND GERTRUDE SOHN, HIS WIFE, PLAINTIFFS-APPELLEES, v. HARRY KATZ AND HERBERT KATZ, DEFENDANTS-APPELLANTS.
    Submitted January 27, 1933
    Decided July 29, 1933.
    Before Justices Bodine and Donges.
    Por the defendants-appellants, Mark Townsend, Jr.

    Por the plaintiffs-app ellees, Joseph T. Lieblich.

   Per Curiam.

The plaintiff William Sohn was engaged in painting a house when he met with the injuries for which he recovered damages. The house being painted adjoined the property of Mrs. Bose Katz. The lots were narrow and the plaintiff placed his ladder in the Katz yard, whether by permission or otherwise seems immaterial under the proofs. The defendant Herbert Katz, driving his father’s car home for lunch, saw the ladder near the Katz driveway. On his way to the garage he passed the ladder, observed its position and the painter on it. Having finished lunch he entered the car in order to drive to the railroad station to meet his father. Backing the car down the driveway, and looking merely at the grass he struck the ladder, and the plaintiff fell from the top suffering severe injuries.

The trial judge submitted the issues of negligence and contributory negligence to the jury.

The landowner’s duty of care toward a licensee or trespasser are not here involved. Of course, the landowner is not bound to anticipate the presence of a stranger upon his lands and is, therefore, not negligent in failing to protect a trespasser from injury. In this case, however, Herbert Katz did know of plaintiff’s presence upon his mother’s lands. He cannot, therefore, escape liability merely because he chose to back the car without looking where he was going. The father is liable for the negligence of his son while driving his car for his purposes.

Knowing of the presence of the painter and the ladder, the case is similar to that of a locomotive engineer seeing a flock of cattle or a carriage upon the railroad’s right of way. Liability cannot be avoided because the operator of the automobile chose not to look, when he could have done so and by so doing would have avoided the injury which resulted from his carelessness. Telfer v. Northern Railroad Co., 30 N. J. L. 188. The defendants cannot set up the plaintiff’s trespass, if it were such, upon the lands of another as an excuse for their own willful, unnecessary or negligent acts. 1 Shearm. & R. Neg. (6th ed.) § 97; Guinn v. Delaware and Atlantic Telephone Co., 72 N. J. L. 276; 62 Atl. Rep. 412.

The trial court could not have taken the case from the jury and the charge given, in so far as it is before us by appropriate exception, appears to have been, if anything, more favorable to the defendants than was required by law.

The judgment is affirmed.


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    MAYBELLE V. GORDON AND WILLIAM E. GORDON, PLAINTIFFS-APPELLEES, v. ROLLO TRANSIT CORPORATION, BODY CORPORATE, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided July 29, 1933.

      Before Justices Bodine and Donges.
    Por the defendant-appellant, Applegate, Stevens, Foster <& Reussille.

    Por the plaintiffs-appellees, Quinn, Parsons & Doremus (Theodore D. Parsons).

   Per Curiam.

The plaintiffs recovered a judgment for injuries suffered by reason of one of the plaintiffs (a married woman) being thrown by a sudden jerk against the arm of a seat of one of defendant’s buses. She was a passenger and was changing her seat to join some friends who had just boarded. The testimony indicates a jerk occasioned by the driver shifting from first to second gear.

Of the grounds of appeal none raise legal questions. PTo specific grounds were stated to the trial judge as a basis for the motion to nonsuit or direct a verdict. "We should not, therefore, reverse because he denied the motion. Wood v. Public Service Corp., 74 N. J. L. 51; 64 Atl. Rep. 980.

Por the first time, it is argued that the injury was the result of an unavoidable accident. The proofs do not so indicate, but we may not consider the matter because no such suggestion was made to the trial judge.

On appeal, this court will not review the weight of evidence. Burket v. Ellis, 105 N. J. L. 560; 143 Atl. Rep. 347.

Lastly, error is assigned because the trial judge refused to charge a certain request. The record does not disclose the request. We cannot draw upon our imagination to reverse a judgment. Cornish v. Jenks, 109 N. J. L. 87; 160 Atl. Rep. 521.

The judgment will be affirmed.


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    EDWARD DeSANTIS et al., PLAINTIFFS, v. NATIONAL BISCUIT COMPANY, A CORPORATION, ET AL., DEFENDANTS.
    Decided July 29, 1933.
    For the rule, Cox & Walburg.

    Opposed, Giordano, Golden <& Hurley.

   Lawrence, C. C. J.

This was an accident case, tried before the court and a jury, at the Monmouth' Circuit, involving injuries to the boy plaintiff, at the time about ten years of age, when struck and knocked down, while riding a bicycle, at a street intersection in Long Branch, by a delivery truck owned by the defendant company and driven by an employe, who was also made a party defendant. The evidence at the trial justified the jury in finding the issue of negligence against the defendants, together with a like result as to the alleged contributory negligence of the boy. An award of $13,000 was made to him and of $1,080 to his father.

Under the rule to show cause taken out in behalf of defendants, the only question argued was the excessive character of the verdict in favor of the boy, on the ground that his injuries were not such as to support it, thus indicating partiality or prejudice or a sympathetic attitude on the part of the jury. No question was raised as to the award to the father.

The boy’s injuries consisted of a fracture of the left jaw, which required three operations before it healed, some evidence of an abnormal protrusion of the lower lip, due to such injury, although not entirely clear in this respect; an injury to the right clavicle which was pulled away from the socket, and resulted in a deformity still present at the time of the trial; four broken ribs and contusions and lacerations about the body and head; and a suggested concussion, with shock and a consequent neurosis. The boy was laid up for a very considerable length of time, and apparently experienced a great deal of pain. At the trial he appeared rather dull and not entirely responsive. The award, however, does appear to be excessive, considering such cases as Buckley v. Goldberg, 9 N. J. Mis. R. 1076; 157 Atl. Rep. 245; Rodriquez v. Ricker, 9 N. J. Mis. R. 1115; 156 Atl. Rep. 916; Masci v. Young, 9 N. J. Mis. R. 1137; 157 Atl. Rep. 82; Butryn v. Public Service, 9 N. J. Mis. R. 1145; 157 Atl. Rep. 87; Kalogerakas v. Public Service, 10 N. J. Mis. R. 175; 158 Atl. Rep. 408; Green v. Sun Oil Co., 10 N. J. Mis. R. 233; 158 Atl. Rep. 735; Riebel v. Liddle, 10 N. J. Mis. R. 437; Marshall v. Hipp, 10 Id. 622; 160 Atl. Rep. 82.

In the circumstances, if consent be given to a reduction of the verdict for the hoy plaintiff to $10,000, the rule to show cause will be discharged, otherwise it will be made absolute as to damage only. Since no question was raised as to the award to the father, the rule will he discharged as to him.


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    EMANUEL ARTALE AND MAMIE ARTALE, HIS WIFE, PLAINTIFFS, v. COLUMBIA INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Argued January 17, 1933
    Decided July 28, 1933.
    Before Justices Tkenchard, Case and Brogan.

      For the defendant, Arthur T. Vanderbilt.

    For the plaintiffs, Joseph T. Lieblich.

   Per Curiam.

Motion is made by Joseph T. Lieblich, a counselor-at-law of this state, appearing pro se, for leave to file a petition in conformity with chapter 201 of the laws of 1914, to determine the amount, if any, due him on an attorney’s lien. He prays a rule that the matter be referred to the Circuit Court judge of Bergen county to determine the amount due him under such lien.

In the record before us, it appears that Mr. Lieblich had served this petition upon his own clients, who were plaintiffs in the case in which he represented them (Emanuel Artale and Mamie Artale, his wife, plaintiffs, v. Columbia Insurance Company, defendant); that the defendant, Columbia Insurance Company, a corporation, had initiated a proceeding in equity, the character of which does not appear in the state of case before us.

It also appears that an order was made by the chancellor, on the advice of Vice-Chancellor Backes, that the said defendant, Joseph T. Lieblich, “be and he hereby is granted leave to file a counter-claim for the determination of the ■existence and quantum of an attorney’s lien and that the defendant, Joseph T. Lieblich, be and he hereby is restrained from proceeding in the New Jersey Supreme Court with a petition seeking the determination of the existence and quantum of an attorney’s lien.”

To determine the validity and amount due of an attorney’s lien, proceeding may be had either at law or in equity, the proper practice being set out in an opinion by Mr. Justice Parker, speaking for the Court of Errors and Appeals, in a •ease between these same parties. Artale v. Columbia Insurance Co., 109 N. J. L. 463; 162 Atl. Rep. 585.

If the parties be willing, and the consent of Vice-Chancellor Backes obtained, to whom, apparently, reference of the •equity proceeding, mentioned above, was made, an order may be entered referring this matter, in accordance with the rules of this court, to the said Circuit Court judge of Bergen county, as prayed, in order that the several questions raised by the petition may be determined by the court either with or without a jury as the parties may elect. Otherwise the present rule will be discharged so that this matter may be heard and determined by the Vice-Chancellor having jurisdiction, in accordance with the practice of that court.


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    CITY OF BAYONNE, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT, LEHIGH VALLEY RAILROAD COMPANY ET AL. (272); EAST JERSEY RAILROAD AND TERMINAL COMPANY ET AL. (273); UNITED NEW JERSEY RAILROAD AND CANAL COMPANY ET AL. (274); CENTRAL RAILROAD COMPANY OF NEW JERSEY ET AL. (275). WILLIAM A. STEVENS, ATTORNEY-GENERAL, PROSECUTOR, v. STATE BOARD OF TAX APPEALS, LEHIGH VALLEY RAILROAD COMPANY ET AL. (276); CENTRAL RAILROAD COMPANY OF NEW JERSEY ET AL. (277); EAST JERSEY RAILROAD AND TERMINAL COMPANY ET AL. (278). CITY OF BAYONNE, PROSECUTOR, v. STATE BOARD OF TAX APPEALS, CENTRAL RAILROAD COMPANY OF NEW JERSEY ET AL. (279); EAST JERSEY RAILROAD AND TERMINAL COMPANY ET AL. (280; UNITED NEW JERSEY RAILROAD AND CANAL COMPANY ET AL. (281); LEHIGH VALLEY RAILROAD COMPANY ET AL. (282).
    Argued November 29, 1932
    Decided August 5, 1933.

      Before Justices Parker, Lloyd and Heher.
    For the prosecutors, Edward P. Stout.

    For the East Jersey Railroad and Terminal Company, Aaron A. Melmker.

    For the other railroad companies, Robert J. Bain.

    For the United New Jersey Railroad and Canal Company, Albert O. Wall.

   Per Curiam.

These eleven cases are based on the claim that certain railroad real estate in Bayonne, consisting of main stem and second-class property in No. 280, main stem only in Nos. 276, 277 and 278, and second class property in the other cases, were valued too low by the state board. In Nos. 272, 273, 274 and 275 the valuations attacked are for 1930; in the other cases they are for 1931. As heretofore in cases of this character, there is a great mass of conflicting expert testimony on valuations. The board seems to have accorded, in general, less weight to the testimony of the experts for the prosecutors than to that of the railroad witnesses. That was its undoubed right; and, looking at the testimony in print, we are unable to see that the appraisement of that testimony was without justification. In many cases, the board adopted the figures of the railroad witnesses; in one or two, it cut even below them. In a number of cases it simply rested on its original valuations.

The board commented on the general depression in all values which became acute in 1929 and was in full force in 1930 and 1931. We think the comment was pertinent and justified. A nation-wide, not to say world-wide, situation of that kind is perforce a matter of common knowledge, and it would be folly to pretend to ignore it.

There are twenty-nine numbered parcels, and nine lettered parcels. We have given to all of them the best examination that the pressure of other equally important work permits.

In Case A, the nine and eighty-one hundredths acre tract, the original valuation for 1930 was $150,270 and for 1931, $171,675. On review the board adopted the latter figure for both years. The experts for prosecutors valued it at $245,000 and for the railroad at $196,200. The board was not required to accept either figure, and was entitled to rest on its own figures for 1931, and to refuse to consider a sale of neighboring property in 1928 as controlling.

Taking up the numbered cases, which follow in the brief for prosecutors, we find that the original valuations for 1930 and 1931 agree with the railroad valuations in Nos. 1, 24 and 25. We see no good reason for disturbing them.

In Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, the board adhered to its own original valuations, which carried a substantial increase in 1931 over 1930.-

In Nos. 12, 13, 14, 15, 16, 17, 19, 20, 22, 23, 26, 27, 28, the original 'figures for 1930 were less than those for 1931, and on review, the 1930 figures were raised to equal 1931; and in 15, 16, 19, 20, were substantially larger than the railroad figures.

In No. 18 the question was whether the total valuation should be $80, $100, $120 or $200. The board originally fixed $120 for 1930 and $100 for 1931, and in view of testimony for the railroad company cut the 1930 valuation to $100. Just why this should be deemed of sufficient importance to argue in this court, we fail to see.

In No. 21 the original total valuation for both 1930 and 1931 was $4,642. The state experts claimed $9,090, and those for the railroad, $3,636. The board, unaffected by either set of experts, let its own original value stand, as it had a right to do.

In No. 29 the original value was $36,320 for 1930. The state experts doubled this for both years; the railroad witnesses conceded $45,400 which the board adopted for 1930. In 1931 the acreage had increased about twenty-six per cent. and the board increased the valuation to $57,325 or at the same rate.

The other parcels, lettered B to K, inclusive (omitting the letter I) were reviewed only for 1931.

As to parcel B the original and final valuation agreed with the railroad estimate of $194,985, which according to the state claim, should be $649,950 or over thrice as much. Even the attorney-general, prosecutor, does not claim any such valuation, but argues from certain acreage valuations that the total should be $389,970, or exactly double the board valuation, i. e., at $30,000 an acre instead of $15,000.

In the case of parcels C, D, E, E and G, the board adhered to its original valuations, unaffected by testimony for prosecutor which set figures in all but one case at more than double the board’s figures, or by testimony for the railroads which in one case agreed with the board, and in the others stated figures twenty to twenty-five per cent. less. In the case of parcel G, the prosecutor now concurs in the board’s valuation, notwithstanding his own witnesses.

In the case of parcels H and J, the board adhered to its valuation, which agreed with that of witnesses for the railroad company.

In the case of parcel K the railroad valuation was slightly above the board’s original figure, which remained unchanged.

To recapitulate roughly the results, the board at first fixed its own valuations according to its best judgment and in the light of such information as was available. When appealed to for a review it received evidence offered by the parties, considered it, and as a fact-finding body gave this evidence the weight to which the board considered it entitled. In no case did the board lower its valuations, though the railroads, or some of them, were also appellants. In most, if not all, of the cases it adhered to its own valuations for 1931; in part of them did the same with those of 1930; in other part raised the 1930 valuations to the 1931 figure.

The rule is settled in condemnation cases involving ascertainment of values of land by a jury, that the fact-finding body is not bound to either the high or the low figure in evidence, but may adopt an intermediate one. Doughty v. Somerville, &c., Railroad Co., 22 N. J. L. 495, 498, 499; State Highway Commission v. Dover, 109 Id. 303, 307; 160 Atl. Rep. 749; State Highway Commission v. Lincoln, &c., Corporation, 110 N. J. L. 190; 164 Atl. Rep. 476. Moreover, it was both the right and the duty of the board and its members to use their own knowledge and judgment in the appraisal of values. As we said in United New Jersey Railroad, &c., Co. v. Board, 103 N. J. L. 33 (at p. 37): “The valuations of these properties were made by the unanimouse vote of the state board, and in that situation the court has said, valuations made by a unanimous board should not be set aside unless it is entirely clear that the evidence will not fairly support them.”

It is several times asserted in the brief that there was “palpable error” on the part of the board. We see no such palpable error; but seem to see on the contrary an honest and conscientious attempt to do full justice as between the parties.

The judgments under review will be affirmed, with costs as against the city of Bayonne only.


author: Donges, J.

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    ROBERT J. ECCLES, PROSECUTOR, v. TOWNSHIP COMMITTEE OF EGG HARBOR TOWNSHIP, DEFENDANT.
    Decided August 7, 1933.
    Before Justice Donges, sitting alone, pursuant to the statute.

      For the prosecutor, William I. Garrison.

    For the defendant, Thompson & Hanstein.

   Donges, J.

This writ seeks a review of an ordinance of the township of Egg Harbor establishing a board of assessors) adopted June 20th, 1932, under the authority of chapter 312 of the laws of 1926.

The prosecutor was elected at the election of November 3d, 1931, as tax assessor for a term of three years commencing July 1st, 1932, to succeed himself. On June 30th, 1932, the township committee adopted an ordinance creating a board of assessors to take over the duties theretofore incumbent upon the tax assessor.

Chapter 312 (Pamph. L. 1926) provided: “From and after the passage of this act, and its acceptance or adoption as hereinafter provided, it shall be lawful for any township or borough by its township committee or its mayor and council to appoint a board of three assessors of taxes to appraise and value the property of said township or borough * * *. Such board of assessors shall perform all the duties imposed by law upon assessors in townships and boroughs.” There follow provisions for the duties, method of appointment, term of office, fixing of compensation by the governing body, &c. Then the act provides: “This act shall only become operative in any township or borough when its provisions are accepted by ordinance enacted by the governing body of such township or borough * *

Two grounds for setting the ordinance aside are argued by prosecutor. First, that the statute relied upon by respondent is unconstitutional, and, second, that its provisions were never accepted by the respondent.

It is argued by prosecutor that the act of 1926 referred to is unconstitutional in that it violates the rule laid down in Booth v. McGuinness, 78 N. J. L. 346; 75 Atl. Rep. 455; McCarthy v. Walter, 108 N. J. L. 282; 156 Atl. Rep. 772, and other cases cited, in that it imposes an alien will between that of the legislature and the municipality to be governed by providing for acceptance by the governing body of the township. However, in Hayes v. Hoboken, 93 N. J. L. 432; 108 Atl. Rep. 868, Mr. Justice Black, speaking for the Court of Errors and Appeals, pointed out a clear distinction between a ease of this kind and those relied upon to establish the unconstitutionality of the Pension act there under attack. Speaking of the scope of Booth v. McGuinness, supra, the court said:

“This court held that act was the delegation of legislative power to municipal corporations and it is not valid when submitted to the governing body of such municipality only. Here we have no such procedure, but only the acceptance by a municipal corporation of the provisions of a legislative act* which does not carry the delegation of legislative powers. This is a vital distinction, from a constitutional standpoint* as was pointed out in that case.”

A similar situation is presented in the instant case. There is no delegation of legislative power. The act of the legislature is a complete enactment on the subject, defining the powers and duties of the board of assessors and leaving to the governing body of the municipality only the power to accept its provisions.

In Worth v. Westfield, 81 N. J. L. 301; 80 Atl. Rep. 104, the Supreme Court held that an amendment’to the Towns act creating a board of assessors upon acceptance of the act by the governing body, was not in contravention of the doctrine of Booth v. McGuinness, supra. McCarthy v. Walter, supra, does not deal with the question involved in this case.

On authority of Hayes v. Hoboken, supra, and Worth v. Westfield, supra, I conclude that the act of 1926 does not violate the constitution in the respect complained of.

The other point argued is that the ordinance in question did not accept the provisions of the above mentioned statute. It did not use the word “accept,” but by its terms it did accept and put into effect the statute, and no other construction could be put upon it than that the statute’s-“provisions are accepted by ordinance,” which is the language of section 4 of the statute of. 1926.

The writ is dismissed, with costs.