author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALFRED B. CRANE, PETITIONER, v. PACIFIC REFINING COMPANY (A BODY CORPORATE), RESPONDENT.
    For the petitioner, Nathan Rabinowitz and Alex Moskovitz.

    For the respondent, Frank G. Turner.

   íji íjí íjí ÍJÍ % íjí

2. That the petitioner was employed for the respondent, in charge of a gas filling station on or about the 19th day of November, 1926.

3. That the petitioner at the time of the injury received for his services wages amounting to $35 per week.

4. That on the 19th day of November, 1926, the petitioner sustained personal injuries as a result of an accident; that the said accident occurred in the following manner: Petitioner testified that he had been employed by the respondent for a period of four months and was the sole person in charge of the gas and oil filling station; that he daily took his lunch along, but occasionally one of the members of his family brought him warm meals during the day, on dishes which his son was in the habit of collecting and returning in his automobile. On this occasion some dishes had collected, and petitioner testified that he took them home in an uncovered basket. Petitioner’s employer had provided him with a canvas bag, in which he was accustomed to put the day’s receipts, taking along with him the collection of the day’s business and bringing it back with him the following morning and turned it over to Mr. Phillips, who had charge of collections of the gas stations of the respondent. On the night in question Crane closed and locked the filling station, as it was his custom to do, at about a little after ten o’clock at night, and walked over his accustomed route to his home in Eairlawn, New Jersey. At the end of the Passaic county end of the Pifth avenue bridge, he set the basket on the ground as he had come to the conclusion that he was being followed, whereupon, on turning around he was confronted by a pistol in the hands of a man masked, with his hat pulled over his eyes, and clothed in what appeared to be a long linen duster, who called out: “Hands up. Give me [or us] your money.” The testimony reveals that petitioner immediately jumped into his assailant and petitioner noticed that at the same time his assailant was accompanied by another man, and then heard a pistol shot and saw a flash of a gun. At this junction the assailants ran away and Crane started after one of them, when he observed a gun shot wound on his arm. He hurried home and ordered his son to drive him to the Paterson General Hospital. In this connection the petitioner, who was the sole witness in the case, testified there was no safe on the premises of the gas filling station; that his clothes were oily and dirty and that he washed himself at home, there being no facilities at the filling station. There is at once presented to us a picture of the typical workingman returning from his day’s work. There is no question that a strong inference can be drawn that the motive of the assailant was to rob Crane of the money that had been collected during the day. It appeared that he had in his possession close to $70, belonging to his employer, which he was required to take home and return the next day, which he was accustomed to do daily, and it further appears that Crane only had thirty or forty cents of his own money, and I do not see how any other inference can be drawn but that the assailant had known of the habits of the petitioner, as above set forth, and was intent upon procuring the proceeds of the day’s receipts of the Pacific Refining Company.

5. Prom the above testimony and the reasonable inference that can be drawn therefrom, I find that the petitioner sustained an accident arising out of and in the course of his employment.

6. That the respondent had actual knowledge of the occurrence of said .injuries.

7. I find, therefore, that the petitioner is entitled to compensation for temporary disability from November 19th, 1926, to December 19th, 1926, amounting to three and one-fourth weeks, at the rate of $17 per week, and total disability of twenty-five per cent, of the loss of an arm, equalling fifty weeks, at the rate of $17 per week, making a total of fifty-three and one-fourth weeks at the rate of $17 per week, which amounts to $905.25.

8. The legal adviser of the petitioner is entitled to compensation, in addition to his costs allowed by law, in the sum of $100, to be paid by the respondent.

9. Costs will be allowed the petitioner.

It is therefore, on this 30th day of June, 1927, ordered that judgment final be entered in favor of the petitioner, Alfred B. Crane, and against Pacific Refining Company, in the sum of $17 per week, for a period of fifty-three and one-fourth weeks.

Harry J. Goas, Deputy Commissioner.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WILLIAM KELLY, PROSECUTOR, v. GEORGE D. CORNISH (AMENDED FROM WILLIAM S. TOPPING), CONSTITUTING THE POLICE PENSION BOARD OF SUMMIT, DEFENDANTS.
    Decided March 9, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Alfred A. Stein.

    For the defendants, Clement K. Corbin.

   Per Curiam.

The prosecutor applied to the police pension board of the city of Summit for a pension under the Police Pension act, which became effective in that city on January 1st, 1920. The board after a hearing made the following finding: “We find that the petitioner, William Kelly, did, in fact, abandon his position as an officer of the police department of the city of Summit, in that from June 29th, 1917, until ‘some time in 19205 and to February 6th, 1921, the date of his petition, he absented himself continuously from any police duty without permission, without leave of absence and without just cause."

By article 16, section 3, of an act concerning municipalities, chapter 152 of the laws of 1917, it is provided, inter alia, “that any member of any such police force who shall be absent from duty without just cause for the term of five days continuously, shall, at the expiration of such five days, cease to be a member of such police force.”

If there was any testimony before the board which tends to sustain the finding, then, according to the settled legal rule, the finding will not be disturbed.

The record before us discloses that the last day of active duty of the prosecutor was April 23d, 1917. The case is replete with incidents of the prosecutor’s absenting himself from doing police duty without permission or without leave of absence and without just cause. There was also testimony in the case from which the board was warranted in finding that the prosecutor had abandoned his position as officer of the police force of the city of Summit, by the potent circumstance appearing, that he applied in 1920 to the mayor for reinstatement, which time was immediately after the Police Pension law had been adopted in that city. It is true that the prosecutor denies that he applied for reinstatement, but as it was a controverted question of fact, its determination was for the board, and its finding will not be disturbed.

The prosecutor’s petition was filed on February 6th, 1921. The board after considering the petitioner’s application, but without giving him a hearing, denied it. Upon review by the Supreme Court the action of the board was set aside on the ground that the matter had been determined against the prosecutor or without giving him a hearing. No further steps seem to have been taken in the matter until 1925, when on June 17th, after a full hearing of the case against the prosecutor, the pension board found that the prosecutor was not entitled to a pension upon the facts developed by the testimony, as above indicated. Ten months later a writ of certiorari was sued out of this court to review the action of the pension board.

Since the testimony tends to support the findings of the board, the writ is dismissed, with costs.


text:
    JOHN S. OWENS, PROSECUTOR, v. CITY OF CAMDEN, JOHN T. CLEARY, JUDGE OF THE CAMDEN CITY POLICE COURT, AND JAMES S. SMITH, CLERK OF CAMDEN CITY POLICE COURT, RESPONDENTS.
    Decided March 9, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Joseph H. Carr and Walter Carson.

    For the respondents, Howard L. Miller.

   Per Curiam.

The prosecutor was convicted in the Camden city police court for a violation of sections 2 and 4 of an ordinance entitled: “An ordinance licensing and regulating any person or persons, firm, partnership, association or corporation carrjdng on any and every kind of business or occupation in the city of Camden, New Jersey,” passed January 22d, 1925, and amended January 29th, 1925.

The essential part of the conviction reads as follows: “That upon a consideration of the stipulation heretofore mentioned and the law pertaining to said complaint, I do convict the said defendant, John S. Owens, of violating sections 2 and 4 of an ordinance entitled ‘An ordinance licensing and regulating every person or persons, firm, partnership, association or corporation carrying on any and every kind of business or occupation in the city of Camden, New Jersey/ passed January 22d, 1925, and amended January 29th, 1925, and sentence the defendant, John S. Owens, to pay to the clerk of this court the sum of $200, the penalty set forth in the said ordinance, and that in default of said pajunent he be committed to the .county jail.”

The complaint on which the prosecutor was tried and convicted charged him that on the 8th day of April, a. d. 1926, in the said city of Camden, while then and there conducting and carrying on the prof ession,' occupation, trade or calling of dentist in said city of Camden aforesaid, he unlawfully did conduct and carry on said profession, occupation, trade or calling without having obtained a license from the department of revenue and finance of the city of Camden, contrary to the provisions of section 2 of an ordinance of the city of Camden entitled (title set forth as above).

Turning to section 2 of the ordinance it will be found that the section refers to more than fifty diverse trades, businesses, professions and vocations, and there is nothing in the complaint to indicate that the character of the act which the accused had performed was such that it brought his act within the description of carrying on and practicing dentistry in the city of Camden.

The-ordinance is of a highly penal nature. The proceeding is a summary one. The settled legal rule is that nothing will be presumed or intended in favor of a validity of a complaint or of a conviction had thereon, in proceedings of this character. The mere statement in the complaint that the accused violated section 2, as a dentist, carrying on or conducting the practice of dentistry, without first having obtained a license for that purpose from the department of revenue and finance of the city of Camden is clearly a conclusion drawn from undisclosed facts.

It is to be observed that the conviction of the prosecutor is for a violation of sections 2 and 4 of the ordinance in question, whereas the complaint only charges the prosecutor for violation of the second section of the ordinance. This is a fatal defect. It is also to be observed that the conviction does not set out of what particular act the prosecutor was convicted, and this is essential so that he may not be again prosecuted for the same violation.

In Salter v. Bayonne, 59 N. J. L. 128, the Supreme Court held that a record of conviction must show on its face every necessary ingredient of the offense, must set out the offense with which the defendant is charged, the names of the witnesses and sufficient of the evidence to show that the offense was committed, upon what evidence the conviction was had, and of what offense the offender was found guilty and the judgment which was imposed. See Asbury Park v. Layton, 69 Id. 559; Orange v. McGonnell, 71 Id. 418; Loper v. City of Bridgeton, 3 N. J. Mis. R. 439.

Counsel of prosecutor also contends that the city was not authorized to pass the ordinance in question.

Having reached the conclusion that the conviction must be set aside, we do not deem it to be necessary to consider whether or not the city was empowered by the statute of 1917, chapter 152 (at p. 358), as amended by the act of 1918 (Pamph. L.), whether in the groups enumerated who may be licensed, by a municipality, one who practices dentistry is included.

Eor the reason given, the conviction is set aside, with costs.


text:
    B. & B. CONSTRUCTION COMPANY, RELATOR, v. W. HOMER AXFORD, DIRECTOR OF STREETS AND PUBLIC IMPROVEMENTS, AND THE CITY OF BAYONNE, RESPONDENTS.
    Decided March 9, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Roberson & Roberson.

    For the respondents, James Benny.

   Per Curiam.

The relator, a corporation, is the owner of premises in the city of Bayonne. The plot has a frontage of eighty feet along the westerly side of Avenue A and a depth of one hundred and thirteen feet on West Thirty-third street.

On January 27th, 1927, the relator filed an application for a building permit for the erection, on the plot mentioned, four three-story brick attached buildings, to be used for stores and dwelling apartments, accompanying the application with plans therefor, with the building inspector of the city of Bayonne, who refused to issue the permit, because a protest had been filed by property owners living in the vicinity of the premises owned by the relator, protesting against the erection of any building to be used as stores. It is conceded that the plans for the proposed building complied with all the requirements of the building code of that city.

It further appears that within ten days after the permit was refused by the building inspector, the relator filed an appeal from the former's refusal to the board of commissioners of the city of Bayonne, which board, by resolution, adopted February 1st, 1927, affirmed the action of the building inspector in refusing to issue the permit.

Testimony taken under the rule to show cause why an alternative or peremptory writ of mandamus should not issue, discloses no valid reason why the building permit is refused.

The only ground of refusal, as has been stated, was a protest filed by property owners living in the locality. Thpre was no testimony that the proposed erection of the buildings was in violation of any city ordinance of Bayonne or that their erection in any wise violated any of the requirements of the building code.

We think, therefore, that a peremptory writ should issue, and it is so ordered.


text:
    MINNIE DRISCOLL ET AL., PLAINTIFFS, v. PUBLIC SERVICE TRANSPORTATION COMPANY ET AL., DEFENDANTS.
    Submitted October term, 1927
    Decided March 10, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Francis A. Gordon.

    For the defendants, Henry H. Fryling.

   Per Curiam.

This suit was brought to recover damages for personal injuries to the plaintiff Minnie Driscoll, and incidental damages to her husband Maurice Driscoll. At the time of the injuries sued for, on the 18th of January, 1926, the plaintiff Minnie Driscoll was a passenger in a jitney bus of the defendant the Public Service Transportation Company, which was being operated along Marshall street, at or near Third ■street, in the city of Elizabeth, when it collided with a trolley car of the defendant the Public Service Railway Companjr, causing the injuries to the plaintiff Minnie Driscoll. Negligence is charged against both companies. The jury so found. 'The trial resulted in a verdict in favor of the plaintiff Minnie Driscoll for $7,500, and for the plaintiff Maurice Driscoll for $1,500, against both defendants.

The defendants obtained a rule to show cause and write down seven reasons for a new trial. The first two reasons are objections to testimony. Three to six, exceptions to the charge. We find no error in these respects. Seven, the verdicts are excessive. This we think is so. The plaintiffs allege that the plaintiff Minnie Driscoll suffers from arthritis. This it seems to us has not been established by evidence to be due to the accident. She had no fractures or bone injury. The verdict of the plaintiff Minnie Driscoll should be reduced to $4,000 and the verdict of the plaintiff Maurice should be reduced to $1,000.

If the plaintiffs will remit the excess, the verdicts may stand for those amounts, otherwise, the rule to show cause will be made absolute.


text:
    ERWIN GERBER, PLAINTIFF-RESPONDENT, v. NATHAN WEINSTEIN ET UX., DEFENDANTS-APPELLANTS.
    Submitted October term, 1927
    Decided March 10, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff-respondent, Harry R. Rinsky.

    For the defendants-appellants, Corn & Silverman.

   Per Curiam.

This suit was brought to recover services rendered by an architect. The complaint consists of two counts, the first count demands $1,000. The second count demands $2,500. The services rendered consist of the drawing, on the 18th of November, 1925, sketches for a four-story apartment house, to be located on the corner of Green and New streets in East Orange, New Jersey. The trial of the case resulted in a verdict for the plaintiff, on the first count, for $1,085 and a non-suit of the plaintiff on the second count. The defendant appeals and files two grounds of appeal — first, error in denying a motion for a nonsuit. No so. Questions of fact were involved, which it was the province of the jury to settle. Second, error in denying the defendants’ motion for'the direction of a verdict — first, because, the contract is for the sale of goods and comes under the Sales act. No so, that statute has no application to the facts of the case. It was an agreement for work, services and materials furnished. Second, because there had been a novation of the agreement, which is the basis of the first count. No so, the facts proven do not show a novation under such cases as Cooke v. McAdoo, 85 N. J. L. 692.

The judgment of the Essex County Circuit Court is affirmed.


text:
    JOSEPHINE NOON, ADMINISTRATRIX, PLAINTIFF, v. THE DELAWARE, ETC., RAILROAD COMPANY, DEFENDANT.
    Submitted October term, 1927
    Decided March 10, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      For the plaintiff, David A. Veeder.

    For the defendant, Frederic B. Scott.

   Per Curiam.

This suit was brought to recover damages nnder the Death act. Also under the provisions of the United States statute, the “Employers’ Liability act.”

The trial resulted in a verdict for the plaintiff for $30,000. The rulé to show cause allowed the defendant reserves all of the exceptions taken by the defendant upon the trial of the cause. The reasons assigned for a new trial are first, the verdict is excessive; second, the verdict is inordinate, the result of bias or prejudice.

The plaintiff’s intestate was twenty-nine years old at the time of his death. He had a life expectancy of thirty-nine years. The widow was twenty-nine years old and their two children were four and six years old, respectively. At the time of the decedent’s death, he was contributing from $120 to $140 each month to his wife for the support of herself and their children. He was a man of good habits, health, character and intelligence. He was sober and industrious. ■ We cannot say the verdict is excessive under the evidence in the record.

The rule to show cause is discharged.


text:
    LENA STRAUSS, ADMINISTRATRIX OF OTTO STRAUSS, AND INDIVIDUALLY, PLAINTIFF, v. ARROW BUS LINE, INCORPORTED, ET AL., DEFENDANTS.
    Argued October 6, 1927
    Decided March 10, 1928.

      Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Mark Townsend.

    For the defendants, Collins & Corbin.

   Per Curiam.

This suit was brought to recover damages for personal injuries. The trial resulted in a discontinuance, by consent of counsel, as against the defendants Arrow Bus Line, Incorporated, and Public Service Transportation Company. A general verdict by the jury of no cause of action, in the case of Lena Strauss, as administratrix of Otto Strauss, against the defendants Short Line Bus Company and Benjamin Eagle-stein. A verdict for $10,000 for the plaintiff, Lena Strauss, against the defendants Short Line Bus Company and Benjamin Eaglestein. The injuries sued for were caused by a collision of the car in which the plaintiff was riding with the defendants5 bus at or about the intersection of Sumner avenue with Delevan avenue, in Newark, New Jersey, on June 13th, 1926. The defendants write down six reasons for a new trial and then an additional five reasons, which refer to newly-discovered evidence, concerning an accident and injuries to the plaintiff on June 12th, 1924, at the city of Buffalo, New York. The record in this ease is voluminous, consisting of eight hundred and thirty-two printed pages of testimony with elaborate briefs.

One fact stands out conspicuously revealed by the testimony taken under the second rule and which was not in evidence at the trial, viz., that the plaintiff had been in a previous accident of like nature on June 12th, 1924. If the attention of the jury had been called to this fact, it would have made a substantial difference in the amount of the verdict. It would serve no useful purpose to review the testimony in the case. Our reading of the record and a careful consideration of the briefs lead us to the conclusion that the verdict should be reduced to $4,000. If the plaintiff will remit the excess, the judgment may stand for $4,000, otherwise, the rule will be made absolute.


text:
    CHRISTOPHER MARZELLA, PLAINTIFF-RESPONDENT, v. THOMAS BONAFEDE ET AL., DEFENDANTS-APPELLANTS.
    Submitted October term, 1927
    Decided March 10, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff-respondent, George W. Litterst and John P. Kirkpatrick.

    For the defendants-appellants, Emil J. Hoos.

   Per Curiam.

This suit was brought to recover the balance due under an oral building agreement, dated November 11th, 1925, and for extras. It was for the alteration and reconstruction of a two-story frame brick store and apartment house, located in the borough of North Plainfield, Somerset county, New Jersey. The plaintiff in the complaint alleges there is due him $7,945. The trial resulted in a verdict and judgment for the plaintiff for $6,581.88. The defendant appeals and files twenty-four grounds of appeal. The first seventeen are alleged errors in admitting testimony over the defendants’ objection. We find no error here. Eighteen, nineteen and twenty, error by the trial court in refusing defendants’ motions for a nonsuit and for the direction of a verdict in favor of the defendants. These motions were properly overruled, as questions of fact were involved. So, the motion for a mistrial. This was discretionary with the trial court. Smith v. Brunswick Laundry Co., 93 N. J. L. 436. Nor do we find any error in the twenty-first, twenty-second, twenty-third and twenty-fourth grounds. These refer to the court’s refusal to charge the first, second, third and fourth requests of the defendants. These were covered by the charge of the trial court, so far as it was proper to charge them. In the main they are too narrow. No. 4 is unsound. The refusal to charge these specific requests as made was not error.

The judgment of the Somerset County Circuit Court is affirmed.


text:
    MAX HERSHOWITZ, PLAINTIFF-APPELLANT, v. SARAH FELDMAN, DEFENDANT-RESPONDENT.
    Argued October 6, 1927
    Decided March 10, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff-appellant, Karkus & Karkus.

    For the defendant-respondent, Thomas Brown.

   Per Curiam.

This suit was brought to recover the amount of two promissory notes of $1,000 each, dated March 26th, 1926, payable to the order of the plaintiff, Max Hershowitz, two months after date, alleged to have been signed by S. Eeldman and E. Feldman. The defendant, Sarah Feldman, answers and says that she did not sign or execute the notes in suit.

The trial resulted in a directed verdict in favor of Sarah Feldman; on the ground that she did not sign the notes; that the money which was borrowed did not go to the personal benefit of Mrs. Feldman; that the money was not used in the business of Mrs. Feldman. The evidence does not justify the conclusion that the money was borrowed by Feldman for the benefit of his wife individually. The plaintiff’s testimony refers to dealings exclusively with Feldman. He repeatedly testified that Feldman borrowed the money. The husband signed the wife’s name to the notes.

The ground of appeal is alleged error by the trial court in directing a verdict in favor of the defendant, Sarah Feldman. In addition to the facts above stated, the case falls directly within the principle of a wife’s non-liability, stated, discussed and applied by this court in the case of the First National Bank of Freehold v. Rutter, 91 N. J. L. 424; affirmed, 92 Id. 621.

The judgment of the Middlesex County Circuit Court is affirmed.


text:
    LEONARD FISCHER, PLAINTIFF, v. C. H. WINANS COMPANY, DEFENDANT.
    Submitted October term, 1927
    Decided March 10, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      For the plaintiff, John E. Toolan.

    For the defendant, Truex & Koch.

   Per Curiam.

This suit was brought .to recover damages for personal injuries. The plaintiff, on July 8th, 1926, was riding in an automobile along St. Georges avenue, in the township of Woodbridge. The defendant was operating an automobile truck on the same road in an opposite direction, but on the left-hand side of the road, when a collision occurred owing, as is alleged, to the negligence of the defendant. The trial resulted in a verdict for the plaintiff for $25,000. The defendant obtained a rule to show cause and writes down three reasons for a new trial, viz.: First, the verdict is against the weight of the evidence. Not so. Second,, the verdict is excessive. Third, error in the charge, the jury could not take into consideration the compensation paid to the plaintiff by his employer, under the Workmen’s Compensation act, in reducing the amount of the verdict the jury might render. This point is not argued in the brief, besides, there is no exception to the charge. The plaintiff had his right hand crushed between the side of the car in which he was riding and the rear end of the truck of the defendant. At the time of the accident, the plaintiff was employed as a plumber’s-helper. He had served his full time. He had taken and passed the required examination to obtain a union card as a journeyman plumber. His wages as helper were $35 per week, as a journejunan plumber; his wages as a plumber would be $12 per day or $60 for a week of five days. His hand is practically useless. He will not be able to do manual work. Dr. Meinzer testified that the plaintiff will never be able to make a living at his trade as a plumber.

We think the verdict is rather excessive. It should be reduced to $18,000. If the plaintiff will remit the excess, the verdict will stand at $18,000, otherwise, the rule will be made absolute.


text:
    GEORGE HAIGHT v. EDWARD DORF ET AL.
    Decided March 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Frank G. Turner.

      Contra, Seufert & Elmore.

   Per Curiam.

The plaintiff brought suit to recover compensation for personal injuries received by him and damage done to his automobile in a collision with a truck belonging to the defendants. The defendants admitted liability, and the jury returned a verdict in favor of the plaintiff for the sum of $1,250.

The only contention made before us is that this verdict is excessive. Our examination of the testimony leads us to the conclusion that the verdict should not be interfered with for this reason. If the jury believed that the personal injuries suffered by the plaintiff and the damage done to the automobile were as testified to by him and his witnesses, the verdict, in our opinion, is moderate. There was no contradictory evidence on the question of the personal injuries received by the plaintiff in the accident.

The rule to show cause will be discharged.


text:
    RACHEL BROFMAN AND HUSBAND ET AL., PLAINTIFFS, v. EDWARD FISHER, DEFENDANT.
    Submitted October term, 1927
    Decided March 10th, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Martin J. Greenblatt.

    For the defendant, Howard L. Miller.

   Per Curiam.

This suit was brought to recover damages for personal injuries, and damages to a Eord coupe. The plaintiff Rachel Brofman was driving the Eord coupe, which was owned by her husband, Chanan Brofman, and in which the infant plaintiff, Samuel Brofman, was riding, on November 29th, 1926, on West Landis avenue, in the township of Landis, when a collision occurred with the defendant’s truck causing the injuries sued for. The trial resulted in verdicts for the plaintiffs.

The defendant obtained a rule to show cause and writes down six reasons for a new trial. Our reading of the record leads us to the conclusion that the rule to show cause should be discharged. None of the reasons call for any discussion, except No. 2, error in refusing to grant a mistrial, when the plaintiffs introduced testimony to show that the defendant was insured. This came into the case when Harry Powell, the plaintiffs’ witness, was asked this question: "Q. What did he say as to any damages? A. Well, he said that he was insured and— Q. Did he say whether he would pay the damages? A. Well, no,” &e. “He said he was insured.” The trial court in the charge said to the jury: “The jury should absolutely eliminate that statement from your mind,” &c. Bradley v. Cleary, 86 N. J. L. 338. The refusal to withdraw a juror and thereby produce a mistrial is a matter that rests in the discretion of the trial judge. Smith v. Brunswick Laundry Co., 93 Id. 436.

The rule to show cause is discharged.


text:
    GEORGE H. BENKHARDT v. NATIONAL ASBESTOS MANUFACTURING COMPANY.
    Decided March 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellant, I. Faerber Goldenhorn.

    For the respondent, James J. Kearney.

   Per Curiam.

The plaintiff brought suit to recover from the defendant the sum of $2,180.2'?, which he claimed to be due to him as a commission for the sale by him of .the products of the defendant company. The trial resulted in a verdict in his favor, and from the judgment entered thereon the defendant has appealed.

Five grounds for reversal are specified. The first is that the verdict is contrary to the weight of the evidence. It is entirely settled that on appeals from the judgments of inferior tribunals this court has no power to pass upon the weight of the evidence. Koch v. Costello, 93 N. J. L. 367; Hunke v. Hunke, 137 Atl. Rep. 419.

The second ground upon which a reversal is asked is based upon the refusal of the trial court to direct a verdict for the defendant upon the ground that there had been an accord and satisfaction of the plaintiff’s claim. This, however, was a disputed matter of fact, the testimony offered on behalf of the plaintiff showing that there had been no such settlement. In this situation, the action of the trial court was entirely justified. Andre v. Mertens, 88 N. J. L. 626.

The third ground is that the charge of the judge was contrary to law. The fourth is that the judge admitted evidence over the objection of plaintiff’s counsel which should not have been admitted. The fifth is that the judge refused to admit evidence sought to be introduced by the defendant. None of these three reasons is sufficiently specific to be entitled to consideration, under the case of Valenti v. Blessington, 96 N. J. L. 498.

The judgment under review will be affirmed.


text:
    FLORENCE DORN v. HYMAN SUSSER.
    Decided March 13, 1928.

      Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Edwin F. Smith.

      Contra, Thomas F. Meehan.

   Per Curiam.

The plaintiff in this case was a tenant of the defendant in an apartment house owned by the latter, in Jersey City. She sued to recover compensation for injuries received by her from a fall upon the stairway leading from the first to the second floor of the apartment house. Her suit is based upon the contention that her fall occurred after sundown on the 26th of October, 1925, and was occasioned by the failure of the defendant to comply with the requirement of the Tenement House act, which imposes upon the owner of an apartment house the duty of keeping the halls and stairways lighted therein from sunset until ten o’clock in the evening.

The plaintiff’s story told upon the witness-stand was that she had been out shopping; that she came back to her apartment on the second floor of the building after sunset and, having entered it, found that the door into the hall would not close and that the lock was broken; that she then went into the parlor, and, after hanging up her hat and coat, went downstairs to tell the janitor of the broken lock, and that the hall and stairway were not lighted, and that while going down the stairway, she fell and received the injuries for which she has brought suit. The jury found a verdict in her favor, thereby declaring that the accident occurred after sunset and was the direct result of the failure of the defendant to light the hall and stairway. Our examination of the case satisfies us that this finding was contrary to the great preponderance of the evidence. The testimony of a number of disinterested witnesses called by the defendant made it perfectly clear that the hall and stairway was sufficiently lighted at the time of the accident for anyone to see where he or she was going, and what the surroundings were. In fact, the plaintiff herself, on her cross-examination, admitted that she could see the steps as she went downstairs. In this sitúation, it is quite plain that the fact that the artificial lights had not been turned on was not the proximate cause of the accident, even if it be assumed (although the evidence strongly preponderates in favor of a contrary view) that it occurred after sundown.

The rule to show cause will be made absolute.


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    MARGARET MAY, ADMINISTRATRIX, v. HENRY McDONALD.
    Decided March 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Hobart & Minard.

      Contra, Alfred Brenner.

   Per Curiam.

This action was brought to recover the pecuniary loss sustained by the widow and next of kin of Philip May, deceased, through his death, which resulted from a collision between a motorcycle upon which he was riding and a motor truck belonging to the defendant, McDonald. The jury returned a verdict in favor of the plaintiff.

The accident occurred at the intersection of Pompton turnpike and Edwards avenue, in Pequannock, at about seven o’clock on the morning of July 19th, 1926. May was traveling along Edwards avenue in an easterly direction. The defendant’s truck was moving along Pompton turnpike in a northerly direction. In other words, the motorcycle was approaching the intersection from the left of the driver of the truck, and the latter had the right of way under ordinary conditions.

Our reading of the case satisfies us that the great preponderance of the evidence supports the conclusion that the accident occurred largely by reason of May’s negligence in failing to observe the statutory right of the defendant’s driver, and undertaking to cross in front of the truck, either because he did not notice its approach, although it reached the intersecting point at practically the same time as he did, or because he concluded to take the risk of passing in front of it.

Eor this reason, we conclude that the rule to show cause should be made absolute.


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    ELLA PETERSEN ET AL., PLAINTIFFS, v. THOMAS E. HUMPHREYS AND PETER ACKERMAN, DEFENDANTS.
    Decided March 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Pearce R. Franklin.

    For the defendant Humphreys, Connolly & Hueston.

    For the defendant Ackerman, James B. Reilly.

   Per Curiam.

The plaintiffs, while riding in a car belonging to the defendant Humphreys and operated by him, were injured by the car running off the road and colliding with a building. Their claim is that this accident was the result of the joint negligence of Humphreys in driving his car and of one Ackerman, who was driving his car in the opposite direction. The trial resulted in a verdict in favor of Mrs. Petersen for $500 against the defendant Ackerman, nothing being awarded to her husband. The jury also found in favor of the defendant Humphreys as against each of the plaintiffs.

The plaintiffs obtained a rule to show cause why the verdict in favor of the defendant Humphreys should not be set aside, and the defendant Ackerman obtained a rule based upon the statement that he was absent at the trial, as well as his attorney and witnesses, because of the fact that counsel for the plaintiffs had failed to notify his attorney when the case came on to be tried, notwithstanding his promise to do so, and that he, Ackerman, had a good and legal defense to the action.

The plaintiffs5 principal contention before us is that the rule against Humphreys should be made absolute because, if Ackerman had been present, they could have shown that Humphreys was, to some extentvat least, responsible for the accident. Assuming this to be so, it affords no ground for setting aside the verdict. They saw fit to move the ease in the absence of Ackerman. If they had desired his presence and his testimony, they should have asked for a postponement, and refusal to move the case when it was called. They saw fit to take the chance of proving their claim against both of the defendants, and, having done this, they must abide the result of their action.

We find nothing of merit in the other reasons upon which we are asked to set aside the verdict rendered in favor of Humphreys.

As to the Ackerman rule: Even if it be assumed that his absence at the trial was due to the reason indicated, he is not entitled to have the verdict against him set aside unless it is shown that he has a valid defense. Warren v. Dilks, 3 N. J. Mis. R. 1232; Dingfield v. McGackin, 4 Id. 117. His attorney swears that he has, and an agent of the insurance company who carried insurance for him also says so. They, however, do not disclose that the defense is, and, consequently, w.e cannot say that a legal defense exists. Counsel suggests that we look at the testimony taken at the trial and determine from it whether or not Ackerman had a valid defense. The jury heard the testimony, and determined that he had not, on the evidence then submitted to it, and we see no reason for dissenting from the finding of the jury in that regard.

Eor the reasons indicated, both rules to show cause will be discharged.


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    VICTOR F. THOMPSON, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY ET AL., DEFENDANT.
    Decided March 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Bourgeois & Coulomb.

    Contra, William C. French.

   Per Curiam.

The plaintiff, while driving his car across the tracks of the defendant railroad company, in Pleasantville, was struck by a train and very seriously injured. The proofs showed that as he approached the crossing the gates were down to protect against a passing train, and that he stopped until the gates were raised; that after the train had passed and the gates were raised he and other automobile drivers started over the tracks, and while doing this he was injured by another train, which was moving in the opposite direction, striking his car. The jury found a verdict in favor of the plaintiff, awarding him $25,000.

The first ground upon which we are asked to make the present rule absolute is directed at the action of the trial court in permitting one Dr. Morgan, an expert witness called by the plaintiff, to answer the following question put to him by the latter’s counsel: “Then I would ask you whether, in your opinion, that condition which you found and have described, and which has been testified to, would be such a condition as might arise from a trauma or a blow?” The criticism upon this question is that it was immaterial whether a “condition such as described therein might possibly arise, for the reason that the verdict should be based' upon facts, or at least probabilities, and not possibilities. Accepting this criticism as sound, the admission of the question was rendered harmless by the answer of the physician, who said that the plaintiff’s condition 'not only might arise from such a trauma or blow, but that it actually did arise therefrom; that the plaintiff’s condition was the actual and direct result thereof.

The only other ground urged for setting this verdict aside is that it is grossly excessive. Nothwithstanding the serious nature of the plaintiff’s injuries and their permanent character, we think that the contention that the verdict is clearly excessive is fully justified.

If the plaintiff will consent to reduce the verdict to $20,000, he may enter judgment thereon for that amount. Otherwise, the rule to show cause will be made absolute.


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    WILLIAM GIRDWOOD ET AL. v. JESSE G. BALDER AND RICHARD CASPER, PARTNERS, ETC.
    Decided March 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Jacob Schneider.

    Contra, Stamler & Kessler.

   Per Curiam.

The plaintiff William Girdwood sued to recover compensation for personal injuries received by him in a collision between an automobile which he was driving, and which belonged to the other plaintiff, with a load of lumber upon a truck of the defendants which had been stalled, or stuck in the mud, while entering the premises of the Eastern Sash Company for the purpose of delivering lumber to their plant, which was located on Morris avenue, in Union county. The other plaintiff, E. Felson Girdwood,- sued to recover compensation for damage done to the automobile, which he owned and which William was driving. The trial resulted in a verdict in favor of the two plaintiffs.

The first ground upon which we are asked to set aside the verdict is that the trial court erred in refusing to grant a nonsuit or direct a verdict in favor of the defendants. The ground of the motion was that the proofs showed conclusively that the accident was solely the result of the negligence of William Girdwood in failing to observe the situation. The proofs showed that this truck belonging to the defendants was stalled across the road. It had a trailer to it. There was room to pass behind the trailer, except for the fact that it was loaded with lumber which projected a considerable distance beyond the rear end thereof. The day was very foggy. There was nothing to indicate the presence of the projecting timbers, no light hung on the end thereof, and no person in charge thereof to warn travelers on the highway of the existing situation. In view of these facts, the trial court considered that the question whether William Girdwood was negligent was not one of law, to be determined by the court, but one of fact, to be settled by the jury. We concur in the conclusion reached by the trial judge upon this point.

The only other ground upon which we are asked to interfere with the verdict is based upon the contention that the trial court erred in allowing three witnesses who were called by the plaintiffs to describe the conditions existing at the scene of the accident after their arrival at that point, they not having reached there until some time after the accident happened, and (as was asserted by counsel for the defendants) there being no proof adduced to show that the conditions had not been changed between the time of the happening of the accident and the time when these several witnesses arrived there. But this assertion is based upon a misapprehension of the proofs. The accident occurred shortly after noon. One of the witnesses called by the plaintiffs had already testified that he was the driver of a bus which traveled backward and forward on Morris avenue; that he passed this stalled truck as early as nine o’clock in the morning; that the wheels were then stuck in the mud; that he made his last trip about three o’clock, and that the truck was still in the situation in which he first observed it. The witnesses whose testimony was objected to all observed the situation concerning which they testified at a time prior to the last trip made by the witness to whom we have just referred.

The rule to show cause will be discharged.


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    METROPOLITAN LUMBER COMPANY v. IVERS-LEE COMPANY.
    Decided March 13, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Stein, McGlynn & Hannoch.

      Contra, Jacob L. Newman and Lionel P. Kristeller.

   Per Curiam.

The plaintiff and defendant entered into a contract, by the terms of which the defendant agreed to manufacture for and deliver to the plaintiff one hundred Arcoil oil burners, as per blue-prints and specifications submitted to it by a Mr. Pulton, the representative of the plaintiff. The price agreed upon was $28,000. The defendant was also to furnish jigs and fixtures to be attached to these burners. The plaintiff brought the present suit to recover compensation for losses sustained by it from an alleged breach of this contract by the defendant. The averment of the complaint is that the defendant delivered to the plaintiff what purported to be fifty of the one hundred Arcoil oil burners so contracted for, but that they were not manufactured in accordance with the blue-prints and specifications referred to in the- contract, and were not manufactured in such a way as to accomplish the purpose for which they were ordered by the plaintiff from the defendant. The defendant filed an answer denying breach of the contract on its part, and asserting that the first fifty of these burners were manufactured by it in accordance with the blueprints and specifications referred to in the agreement and were actually delivered to the plaintiff, and that the other fifty burners had also been manufactured by it in accordance with these blue-prints and specifications, and that delivery thereof had been attempted to be made, but that the plaintiff had refused to accept the same. The defendant also counterclaimed to recover so much of the contract price as remained unpaid upon the fifty burners actually delivered and also the loss sustained by it by the refusal of the plaintiff to accept the delivery of the second fifty. During the trial it was admitted that the Arcoil burners delivered to the plaintiff, as well as those acceptance of which was refused by the plaintiff, were manufactured in strict accordance with the blueprints and specifications furnished to the defendant; and on such admission the trial court directed a nonsuit as to the plaintiff’s claim, submitting to the jury the question of the validity of the defendant’s counter-claim. The jury awarded the defendant $6,740.60, and thereupon the preseiit rule was allowed.

The first contention made before us is that the court, in holding that a judgment of nonsuit should be allowed against the plaintiff, erred, because of the fact that one of the grounds of recovery set out in the complaint was that the oil burners were not manufactured in such a way as to accomplish the purpose for which they were, intended to be used. But, it having been admitted at the trial, as already stated, that these oil burners complied in every respect with the blueprints and specifications, it was no concern of the defendant whether they accomplished the purpose for which the plaintiff ordered them or not. The responsibility in that regard did not rest upon the defendant, but upon the plaintiff.

We conclude, therefore, that the order for the entry of a judgment of nonsuit was proper.

The only other grounds for reversal are directed at two alleged errors in the charge to the jury upon the defendant’s counter-claim. The first criticism is directed at that portion of the charge in which the court stated that, although the defendant contracted to manufacture one hundred of these oil burners from plans and specifications furnished by the plaintiff, it did not agree in writing that they would accomplish any particular purpose. There was no attempt to prove the existence of any such written agreement to that effect, and the statement, therefore, was accurate.

The other instruction complained of related to the examination of these oil burners by Mr. Pulton, the representative of the plaintiff, and his approval of them before their delivery. The instruction was that if the jury found there had been such approval, then there was no implied warranty as regards the defects which such examination by him ought to have revealed. The sole ground upon which this instruction is challenged is that it was erroneous because it disregarded that provision of our Sale of Goods act which deals with the question of the implied warranty of the seller that the goods sold shall be reasonably fitted for the purpose for which they were ordered. That statute, however, has no application to the contract which is the basis of the present litigation. The agreement is not one for the sale of goods, wares and merchandise, but for the manufacture of certain articles by the defendant at the request of the plaintiff, and, as was pointed out by Chief Justice Beasley in Finney v. Apgar, 31 N. J. L. 266, such a contract is not affected by statutory provisions relating to the sale of goods.

Por the reasons indicated, we conclude that the rule to show cause should be discharged.


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    EMMA B. HACK AND HELEN HACK EVANS, RELATORS, v. SAMUEL B. SCALES AND THE BOROUGH OF TENAFLY, RESPONDENTS.
    Decided March 17, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relators, Huckin & Huckin (Thomas J. Huckin, of counsel).
    For the respondents, Wright, Vander Burgh & McCarthy (Le Roy Vander Burgh, of counsel).
   Per Curiam.

Relators are owners of a tract of land in the borough of Tenafly, county of Bergen. The property is situated on the northerly side of Lindley avenue,. having a width of fifty feet both front and rear, and depth of one hundred and twenty feet. The project of the relators is to erect a one-story frame addition to the southwest corner of the dwelling house now located on the land for the purpose of extending and enclosing the porch of said dwelling house; said addition to extend westerly from the present building a distance of five feet and to within nineteen inches from the westerly line of the relators’ premises.

There is a zoning ordinance in force in the borough which forbids the erection of any building in the one-family dwelling district, in which relators’ property is located, within five feet of the side line of said property.

The application for the permit was refused by the building inspector and an appeal was taken to the board of adjustment, which board considered the matter and refused to allow the erection of the proposed addition because it would be within five feet of the side line of relators’ property and thus conflict with the terms of the ordinance.

The relators have not adopted the proper remedy in the present case. The remedy under the facts presented is by certiorari, and not by mandamus. The rule to show cause is discharged.


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    STATE, EX REL. GEORGE ZIEGLER, RELATOR, v. POLICEMEN’S PENSION COMMISSION OF THE BOROUGH OF ALLENHURST, RESPONDENT.
    Decided March 17, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, William L. Edwards.

    For the respondent, Cook & Stout.

   Per Curiam.

This matter is before us on a rule to show cause why a mandamus should not be directed against the Policemen’s Pension Commission of the borough of Allenhurst, requiring it to call to its assistance the aid of the surgeon or physician representing either the police or fire department of the borough, or any other surgeon or physician, provided there is no police or fire department physician, and act in determining by resolution whether the relator is entitled to retire as a police officer of the borough of Allenhurst, and receive a pension, pursuant to the Police and Firemen’s Pension act (Pamph. L. 1920, cli. 160, p. 324), and requiring it to declare the relator’s eligibility to the benefits of the policemen’s pension fund of the said borough.

According to the testimony of the relator, it appears that on August 25th, 1922, while in the performance of his duties as a police officer, he was run into by an automobile on the public highway, in the borough, and as a result, the relator claims he became permanently disabled.

There is some uncertainty in the testimony whether his incapacity to perform his duties as a police officer was and is due to the accident, or arose from a disease.

The relator was about fifty-three years old in 1922. He was appointed a police officer of the borough March 21st, 1914, and served in the capacity of a patrolman from that time on up to the time when he claimed he was injured, August 25th, 1922. It appears that he resumed work as patrolman after he recovered from his alleged injury, but finally quit as such in January, 1923, since which time he performed no services for the borough either as patrolman or in any other capacity.

The borough is functioning under commission government since 1916. There are no records of that period showing the appointment of relator or of any officer of the said borough. The records, however, do show that on the 2d of January, 1924, there were certain police regulations mapped out by the then police commissioner. It appears that no police department was established in the borough until February 9th, 1926, and that the borough did not adopt the provisions of the Police Pension act referred to until Januaiy, 1926, more than three years after the time the relator ceased to act in the capacity of police officer.

From the printed ease, it further appears that the relator, had not been engaged in the performance of any duty as patrolman of the borough nor had he been on the payroll of, and employed by, the borough, nor had he made any claim for any arrears of salary from the time he ceased to perform duty in 1923. After a silence of more than two years he applied to the commissioners of the borough on April 20th, 1925, for a position as deskman, without result, and from then on the matter rested until January 4th, 1927, when he made application, by letter, to the pension commission of the borough of Allenhurst for retirement as police officer, claiming that while on duty on August 6th, 1922, he became completely incapacitated from performing the duties as patrolman of the borough, &c.

The relator’s incapacity, according to his own statement, arose three years prior to the organization of a police department by ordinance of the borough, and the adoption of the Police and Firemen’s Pension act of 1920, supra, and of the organization of the police pension fund. Moreover, it is to be observed that the statute of 1920, supra, provides that it shall not take effect until its adoption by a majority of the voters.

It seems to us, the fact that there was no established police department and no established police fund, at the time of, and during the employment of the relator and the time when his alleged disability arose, and the fact that the statute of 1920, supra, was not adopted until several years after the relator had ceased to perform the duties devolved upon him as a police officer, and there being no declaration in the statute that it shall have retroactive effect, the relator’s application for a pension is without legal support.

The rule to show cause, therefore, is discharged, with costs.


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    CLIFTON JORDAN, PROSECUTOR, v. BOROUGH OF DUMONT, COUNTY OF BERGEN, AND I. B. MILLER, INCORPORATED, DEFENDANTS.
    Decided March 17, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, J. Emil Walscheid.

    For the defendant borough of Dumont, Frederick W. Mattocks.

   Per Curiam.

A writ of certiorari was sued out of the Supreme Court, to bring up for review a certain resolution awarding a contract for the construction of an eight-inch reinforced concrete pavement with integral curb and other improvements on New Milford avenue, in the borough of Dumont, to I. B. Miller, Incorporated, a corporation. The matter is now here for review.

Section 4 of the ordinance under which the proposed improvement is to be made, provides: “That the aforesaid improvement shall be made as a 'local improvement’ and the damages sustained by and the benefits conferred upon the lands affected by said improvement shall be assessed in accordance with the provisions of the statute in such case made and provided.”

Eor the borough it is contended that the prosecutor has no interest in the improvement and has no legal right to prosecute the writ in this case.

For the prosecutor it is contended that the court will indulge in a presumption on a final hearing of a writ of certiorari, that the prosecutor is a taxpayer owning property on the line of the improvement and is affected by the proposed improvement without any proof to that effect, and relies upon the cases of Lantry v. Sage, 69 N. J. L. 560; Rehill v. East Newark and Jersey City, 73 Id. 220; O’Brien v. Public Utility Board, 92 Id. 44; affirmed, Ibid. 587, as supporting his contention.

In the cited cases it appears, however, there was testimony taken and no objection seems to have been made to the legal status of the prosecutors until the cases came on for a hearing. In the present case there is nothing in the printed record to show that there was any testimony taken, and from aught that appears therein the writ was granted in an ex parte proceeding, and no hearing was had on the matter before the case came before us for determination. We think, therefore, the ease sub judice falls within the declaration made by Chief Justice Beasley, in West Jersey Traction Co. v. Camden, 58 N. J. L. 362, who, speaking for the Court of Errors and Appeals (at pp. 364, 365), said: “When a judge is called upon in a proceeding ex parte to allow a certiorari, he must be reasonably assured of two things — first, that there is some illegality to be complained of, and second, that the party seeking the remedy is entitled to it, but the allocatur no more adjudges the one fact than the other. By force of our rule of court such assurance is required to be made by an affidavit, but such oath has no semblance of juridical testimony. The rules of testimony do not apply to it and it is used against the party who has no knowledge of its existence. Such a basis as this is incapable of supporting anything in the nature of a judicial decision; all that it lays the ground for is that the judicial officer resting his opinion upon it may say that there is presented to him a matter that it is proper to put in the course of legal inquiry. The allowance of the writ can have no greater force than that; it can have no effect upon the trial of the issue between the litigants, for when the litigation reaches that stage the prosecutor must, if required, expressly or impliedly prove’ his legal status as the actor in the suit. That this must be so is evident when we remember that it is the legal right of a person in the possession of any valuable thing, to be exempt from all litigation, with respect to it except such as may be waged by someone having an interest in it, and such an immunity is a valuable legal right which cannot in anywise be impaired by an ex parte decision founded on an ex parte affidavit.

There being no proof before us that the prosecutor is a taxpayer in the borough of Dumont, and no proof that the prosecutor would be assessed for any part of the improvement or that the prosecutor is the owner of any land to be affected by said improvement, either in damages sustained or benefits conferred, he is without any legal status to prosecute the writ.

The writ is dismissed, with costs.


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    ERNEST VELLUCCI, RELATOR, v. LOGGIA PIETRO VERRI NO. 11 (ORDER SONS OF ITALY), RESPONDENT.
    Decided March 17, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, J. Victor D’Aloia.

    For the respondent, no appearance.
   Per Curiam.

The relator became a member of the Loggia Pietro Yerri No. 11, Order of the Sons of Italy, when it was organized in 1913, as a mutual benefit association. He was a charter member. In December, 1922, he was elected presiding officer of the organization. In the month of April, 1923, as president, he ordered payment of sick benefits to some members of the respondent, who were entitled to receive the same under the provisions of the by-laws governing the organization. A dispute arose as to the ordering of these payments, whereupon the relator resigned his office as president. He still maintained his membership in the order. Since his resignation from office the relator has tendered his dues, as a member, but respondent has refused to accept them, and refused to recognize him as a member of the society.

On the order to show cause why a peremptory writ should not be granted, testimony was taken, from which testimony it appears that no charges were ever made against relator, nor was he ever suspended or expelled from the order.

There is nothing in the testimony taken under the rule to indicate that there is any basis for the refusal by the respondent of recognizing the relator’s right of membership in the order.

The only ground set up by respondent in justification of its refusal to accept the dues tendered to it by the relator is the secretary’s statement that there was due from the relator a fine imposed upon him by respondent, and that the payment of the fine imposed was a condition precedent to acceptance by the respondent of dues from him as a member and before recognizing him as such.

The action, on part of the respondent, has no basis for its support. The secretary of the order admits that there is no provision for the imposition and collection of such a fine as was imposed on the relator in the by-laws of the respondent.

An alternative writ, therefore, is directed to be issued.


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    HARRY KOLMETSKY v. BERNARD PELLICOFF.
    Decided March 19, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellant, Cole & Cole.

    For the respondent, Thompson & Hanstein.

   Per Curiam.

The plaintiff and defendant entered into a contract, by the terms of which the plaintiff was to make alterations in and additions to an apartment house of the defendant in Atlantic City, furnishing all the material and doing all the work required for that purpose. This contract was in writing, and was made on the 4th of November, 1924, and specified the alterations and additions which were to be made and the price to be paid for the same. Subsequently certain changes and additions not provided in the original contract were ordered by the defendant and the work and materials required therefor were furnished by the plaintiff. This subsequent agreement was oral, and provided that the price to be paid by the defendant for its performance should be adjusted after the building was completed. The present suit was brought to recover the reasonable compensation to which the plaintiff was entitled for the work done and materials furnished under this verbal contract. The trial resulted in a verdict for the plaintiff, the jury awarding him $9,000.

The first ground upon which it is contended that this judgment should be reversed is that it was error for the court to submit the case to the jury upon the theory of a subsequent and independent contract, and that the plaintiff should have been nonsuited or a verdict directed against him for this reason. It is entirely settled by the decision of the Court of Errors and Appeals in Headley v. Cavalier, 82 N. J. L. 635, and subsequent cases, that when it appears that subsequent to the execution of the original contract and during the progress of the work (as was the present situation), the owner and contractor made further agreements with relation to changes or alterations and expressly agreed that a reasonable price should be charged and paid therefor, the jury is entitled to base its action upon the subsequent and further agreements.

The next point is that the court improperly allowed the following question, which was put to the plaintiff: “Now, where you do extra work and the price is to be adjusted after the contract is completed, what is the usual allowance or arrangement as to profit?” The argument is that this question was improper because the right of recovery was limited to the true value of the work done and materials furnished. But, in our opinion, true value necessarily includes a reasonable profit, and testimony as to what “the usual allowance as to profit” is becomes an element in determining what is the reasonable value of the work and labor done and materials furnished; that is, what is a reasonable compensation to be-paid therefor.

It is next argued that the trial court erroneously admitted in evidence bills for materials furnished to, and work done for, the plaintiff by third persons. They were objected to on the ground that they were incompetent unless proved by the people who furnished the materials or did the work. The bills in question were for work done and materials furnished by third persons employed by the plaintiff in the execution of the contract which was the basis of the suit; and, according to the testimony of the latter, had been paid by him. They were confirmatory of his testimony, and were admissible for that purpose, notwithstanding the fact that the persons-who presented them to the plaintiff for payment, and who were in fact paid the amounts called for therein, were not produced by the plaintiff for the purpose of verifying their accuracy.

The last reason for reversal is that the court erred in charging the jury that its verdict must be based upon the supplemental contract and not at all upon the original contract between the parties. The suit was based entirely upon the supplemental contract, and what has already been stated is dispositive of this contention.

The judgment under review will be affirmed.


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    OCEANO MAZZEI v. JERRY H. BENNETT AND NUCAR FORWARDING CORPORATION.
    Decided March 19, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the defendant Jerry H. Bennett, George S. Hobart and Harold F. Dorgeval.

    For the defendant Nucar Forwarding Corporation, John A. Laird.

    For the plaintiff, Theodore Strong.

   Per Curiam.

The plaintiff was a passenger in a bus owned by the defendant Bennett and was injured in a collision between it and a truck and trailer owned by the other defendant, the Nucar Forwarding Corporation. The accident happened shortly after sunrise in November, 1926. The bus came down Franklin street, in the city of New Brunswick, to the Lincoln Highway and turned into the highway. The truck of the forwarding corporation was coming down the Lincoln Highway in the same direction in which the driver of the bus turned. The collision occurred near the intersecting corner, the truck striking the rear of the bus. The claim of the plaintiff was that the accident was the result of the joint carelessness of the drivers of these two vehicles, and the jury awarded him $5,000 against the defendants jointly. Each of the defendants applied for a rule to show cause. The trial court allowed the defendant Bennett a general rule, and granted to the Nucar Forwarding Corporation a rule reserving all exceptions.

Taking up the Bennett case first — The principal contention is that the verdict imposing liability1- on him was against the clear weight of the evidence. Our examination of the testimony leads us to the conclusion that it was not, and that the jury was justified, after a consideration of all the proofs submitted, in imposing liability upon him.

It is further contended that the court should have directed a verdict in favor of Bennett, because there was no negligence in the operation of the bus proved. What we have already said disposes of this contention.

Next, it is argued that the court erroneously charged the jury that, as the plaintiff was a passenger for hire in the bus of Bennett, the obligation rested on the driver to use a high degree of care for his safety. We consider the instruction accurate. In delivering it, the trial judge followed the decision of the Court of Errors and Appeals in the case of Schott v. Weiss, 92 N. J. L. 494.

Next, it is contended that there was error in the refusal of the court to charge the jury that punitive damages could not be allowed as against the owner of the bus. This contention is based upon a misapprehension of fact.

The court, after referring to the question of punitive damages, concluded its statement in that regard with the following words: “So your damages will be limited to such as will compensate the plaintiff for injuries which he has received.”

Next, it is argued that there was error on the part of the trial court in refusing to charge the jury on the subject of proximate cause or to define the meaning thereof. There was no such refusal. Counsel for Bennett took an exception to the charge for the alleged failure of the court to instruct the jury upon this point, but did not submit any request for such instruction. The defendant, therefore, cannot now take advantage of such failure on the part of the court, even if it existed. Liberman v. Drill, 94 N. J. L. 387.

The only other point argued is that the amount of damages awarded — namely, $5,000 — is excessive. Our examination of the testimony leads us to the conclusion that this contention is justified. If the plaintiff will consent to have his verdict reduced to $3,000, he may enter judgment for that amount. Otherwise the rule to show cause allowed Bennett will be made absolute.

Taking up the rule allowed the Nucar Eorwarding Corporation: The only grounds argued by its counsel are that the verdict is against the weight of the evidence on the question of liability and that it is excessive. What we have said with relation to the rule allowed to Bennett is dispositive of these matters. If the plaintiff will consent to reduce the verdict against both defendants to $3,000, this rule will also be discharged. Otherwise it will be made absolute.


text:
    WILLIAM T. THOMPSON, TRADING, ETC., PLAINTIFF, v. JANNARONE CONTRACTING COMPANY, DEFENDANT.
    Submitted October term, 1927
    Decided March 19, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Heine, Bradner & Laird.

    For the defendant, Frank G. Turner.

   Per Curiam.

This suit was brought to recover damages for injuries done to .the plaintiff’s land. The tract of land alleged to have been injured is located in the township of West Orange, county of Essex. It consists of thirty-three acres on the first Orange Mountain laid out as, and to be used as, a golf course. The injuries to.the land were done between April 6th and August 4th, 1925, by blasting rocks on a road or highway known as Prospect avenue, West Orange, along the front and adjacent to the plaintiff’s land. The allegation is, the defendant threw and permitted rocks, stones and earth to be cast upon the plaintiff’s land causing injury to the same and particularly to the second, third, fifth, eighth and ninth courses on holes of the plaintiff’s golf course, thus injuring plaintiff’s property as a golf course.

The trial of the case resultd in a verdict for the plaintiff for $7,558.43. The defendant obtained a rule to show cause and writes down twenty-four reasons for a new trial. It would serve no useful purpose to discuss these reasons in detail, as our reading them, with the record and the briefs of the respective counsel, leads us to the conclusion that they are without legal merit. The rule to show cause should be discharged.

It may not be amiss, however, to refer to three of the reasons, viz. — First, the verdict is excessive. Not so. It is rather conservative under the proofs as we read them. Second, error in striking out the first separate defense, i. e., the blasting was done in a careful and proper manner. This is not a defense to an action of trespass. If unlawful in its own nature, it must continue to be so, however carefully or skillfully it may be done. Bruch v. Carter, 32 N. J. L. 562. Third, error in striking out the second separate defense, i. e., the defendant was performing, under contract, governmental duties for the county of Essex, a municipal corporation of the State of New Jersey. This is not a defense. Whitla v. Ippolito, 131 Atl. Rep. 873. As stated by the trial judge, notwithstanding the fact that the work was being done for a municipal authority, which might not, itself, be liable for such damage, and that it was being done for the benefit of the public. The defendant contractor caused the direct damages to the plaintiff, he must respond in damages. The action of trespass is a possessory action, the one in possession is the apparent owner and entitled to maintain the action. Lehigh, &c., Railway Co. v. Antalics, 81 N. J. L. 685.

The other reasons for a new trial are all alleged trial errors in which we find no sufficient reason for disturbing the verdict of the jury.

The rule to show cause is therefore discharged.


text:
    STANLEY LISS ET AL., PLAINTIFFS, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Submitted October term, 1927
    Decided March 19, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Aaron L. Simon.

    For the defendant, Henry H. Fryling.

   Per Curiam.

This suit was brought to recover damages for personal injuries. The trial of the case resulted in a verdict for the infant plaintiff, Stanley Liss, for $10,000 and a verdict for his father, Michael Liss, for $2,500. The defendant obtained a rule to show cause and writes down nine reasons for a new trial. First and second, error by the trial court in refusing to nonsuit the plaintiff or direct a verdict in favor of the defendant on the ground that no negligence on the part of the defendant had been shown and contributory negligence on the part of the plaintiff had been shown. Third, because the verdicts are contrary to the weight of the evidence. Fourth to ninth, error in the charge of the trial judge. While the charge may be subject to criticism, when considered as a whole, it does not justify a new trial. No exceptions were taken. We find no error here. The accident occurred at Haledon, Passaic county, New Jersey, on October 31st, 1924, at about noon of that day. The plaintiff, Stanley Liss, eighteen and a half years old, was riding his bicycle in a northerly direction on Belmont avenue, closely following a large truck known as a “Bulldog Mack,” when he collided with the defendant’s trolley car proceeding in a southerly or opposite direction.

Stanley Liss, the plaintiff’s version of the occurrence is as follows — Record, p. 13: “I was following this here big truck —food truck — and I was. about thirty to thirty-five feet away, in back of it, keeping all of that distance away, while he was going along Belmont avenue and apast Henry street and towards the bend I still was the same distance that time; and there was a big parked truck parked up and down the gutter, just about two or three feet away from the tracks so the trolley cars could pass; I didn’t see any chance to go that way, so I kept going back of the truck; so I was keeping back of the truck, and this big truck swings over to the trolley tracks about twenty to twenty-five feet away from the standing truck, and I swung out with it, just as soon as the truck had, keeping twenty-five to thirty feet away back all the time, &e., &c., and as the truck was past this here standing truck, &c., I was just about approaching the front of the truck, when I seen this here trolley car coming down very fast— I couldn’t see it go over towards the right because the standing truck was there, so in order not to get hit I kept on going and just when, &c., and as soon as I' could swing over to right I was hit. This is all I remember, I was hit on the left-hand side.”

Anthony Bailo, a witness called by the plaintiff, corroborates this testimony in some of its statements, such as, that there was a truck parked on the right-hand side of the street.

On a motion to nonsuit or direct a verdict for the defendant it admits the truth of the plaintiff’s evidence and every inference of fact, which can he legitimately drawn therefrom, but denies the sufficiency in law. Jones v. Public Service Railway Co., 86 N. J. L. 646, 648.

Under the case of Simpson v. Snellenberg, 96 N. J. L. 518, it was for the trial judge to say whether negligence of the defendant and contributory negligence of the plaintiff may be drawn. It was for the jury to say whether negligence ought to be drawn. The jury by their verdict found the defendant was guilty of negligence and the plaintiff was not guilty of contributory negligence. The defendant’s side of the occurrence was that the boy was holding onto the tailboard of the truck; that he turned out from behind the truck just before the collision onto the trolley tracks; that the truck itself never passed over the right-hand side of the road to the trolley tracks, but kept at a distance of two or three feet to the right of the tracks. The plaintiff argues in the brief that the defendant’s witnesses are inaccurate. A map was exhibited in the case, which shows that the trolley track is a single track, east of the center of Belmont avenue, and that the distance between the track and the curb is eighteen feet. The injuries sued for are the result of a “combination of concurrent circumstances.”

We cannot say that the verdicts are so clearly against the weight of the evidence as to require a new trial. Queen v. Jennings, 93 N. J. L. 353. It is not so clear as to give rise to an inference that the verdict was the result of mistake, passion or prejudice.

The rule to show cause is discharged.


text:
    EDWIN RUBIN ET AL., PLAINTIFFS, v. PIETRO TOMAINI, DEFENDANT.
    Submitted October term, 1927
    Decided March 19, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.

      For the plaintiff, Geran & Matlack.

    For the defendant, Wilbur A. Heisley.

   Per Curiam.

This is an ejectment suit. It was brought to recover a strip of land three feet facing on the street line of the north side of Broadway, in Long Branch, extending thirty-nine and three-tenths feet in depth, six inches wide in the rear, containing seventj1' and seventy-four hundredths square feet. The defense was adverse possession. The case was tried by Judge Rulif Y. Lawrence without a jury. The trial resulted in a judgment for the plaintiff. Judge Lawrence, in the finding of facts and rule for judgment, reviews clearly and at some length the facts together with a summary of the law of adverse possession, in which it is said, in the circumstances, there is nothing to indicate that the original encroachment commencing some time in 1892 was anything more than a mistake or permissive in character, and the encroachment was removed some time in 1924. A protest to the encroachment was made in 1905, a period of nineteen years. There is no clear and convincing proof of adverse possession of the locus in quo to the full extent thereof for the statutory period. Each party under the judgment rendered by Judge Lawrence will have the possession of their respective lots, according to the dscriptions in their title deeds. The lots adjoin each other. The defendant claims title to the strip of land sued for by adverse possession.

A rule to show cause was allowed the defendant. He writes down seventeen reasons for a new trial. In view of the clear review of the facts by the trial court, these reasons call for no extended discussion. They are without legal merit. In addition to the reasons given by the trial court for entering judgment for the plaintiff, the facts show that a prior owner, one Wm. J. Smythe, after his purchase of the defendant’s lot, some time in 1892, mortgaged the property, and the description of the lot in the mortgage followed exactly that of the title deeds. This mortgage was foreclosed in 1919 and the property was sold by the sheriff by a like description. The mortgage did not cover the area which is in dispute. Smythe thereupon surrendered possession to the purchaser, after which by the same description the defendant, Pietro Tomaini, by deed dated April 10th, 1924, recorded in book 1254, page 385, of Monmouth county, acquired his title by the same description. Manifestly, he cannot set up adverse possession. The sheriff, under the execution in foreclosure, conveyed no such title. Smythe’s adverse possession did not accrue to the defendant. See 9 R. C. L. 879, § 46.

The rule to show cause is discharged.


text:
    THE BOROUGH OF EMERSON, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT AND HACKENSACK WATER COMPANY, RESPONDENTS.
    Decided March 22, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, George L. Record and Frank Pascarella.

    For the respondents, Wright, Vander Burgh & McCarthy (Wendell J. Wright, of counsel).
   Per Curiam.

The prosecutor, by writ of certiorari, seeks to set aside a judgment of the state board of taxes and assessment canceling an assessment levied on buildings and other improvements on the lands of the Hackensack Water Company, in the borough of Emerson.

The facts are briefly these: The property of the Hackensack Water Company, in the borough mentioned, was assessed as October 1st, 1925, as follows: Lands, $28,000; buildings and other improvements, $150,000, constituting total value of real property at $178,000.

Upon this assessment being transmitted to the Bergen county board of taxation for revision and correction, the board struck out the assessment of $150,000, and returned the duplicate to the assessor with the item of $150,000 deleted. The assessor filed an appeal with the county board of taxation requesting a reinstatement of the $150,000 assessment, struck out by the board against iCbuildings and other improvements.”

Erom this action of the board the water company appealed to the state board of taxes and assessments, and that board canceled the assessment of $150,000.

It is conceded there are no buildings or structures upon the land of the Hackensack Water Company in the borough of Emerson. The lands in question are mainly under water, a section of which lands comprises a portion of the reservoir extending into several municipalities in which reservoir water is impounded for the purpose of the water company.

The situation being as above stated, the state board held that under the General Tax act (Rev. 1918, ch. 236, § 401) and the rule prescribed by the board in pursuance thereof, that only buildings and other structures on the lands are included as improvements, and since there were no buildings or structures on this parcel of real estate, or elsewhere in the borough belonging to the water company, the assessment in that respect could not be upheld.

In answer to-the petitioner’s petition that the assessment for improvements be canceled, it was contended by respondents before the board, and the contention is repeated here, that the improvements represent expenditures of the water company in excavating land so that it may be made available as a reservoir for the impounding of water.

We are in accord with the view of the state board that if the work done by the company on the land for the purpose which the land was to be used tended to enhance its value, that this circumstance should have been considered in fixing its value and must be considered to have been done.

The water company did not appeal from the assessment of $28,000 against the lands, therefore in the posture of the case as it was before the board there was no other proper course for it to take than to strike out the assessment of $150,000, there being no basis for its support.

The writ is dismissed, with costs.


text:
    HENRY B. EWALD AND WILLIAM EWALD, RELATORS, v. EDWARD J. SPOERER ET AL., RESPONDENTS.
    Decided March 22, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relators, Edward Schwartz (William P. Gannon, of counsel).
    For the respondents, Thomas J. Brogan (Charles A. Rooney, of counsel).
   Per Curiam.

The rule to show cause before us is directed to the respondents why an alternative or peremptory writ of mandamus should not issue directing the respondent to grant a permit for the construction of an oil and gasoline filling station on premises owned by relators, located on the southeast corner of Danforth avenue and the Hudson county boulevard, in Jersey City. The contemplated gas station was to consist of the building, five one-thousand-gallon tanks to be used for gasoline and three two-hundred-gallon tanks to be used for lubricating oil and a safety lift to be used in changing oil in automobiles.

The printed record shows that the relators first made application to the building department of Jersey City for a permit, and afterward applied to the city commissioners of Jersey City, at which time, and after a hearing, the application was rejected.

It appears that an application of the previous owner had also been rejected by the city commissioners.

The two points relied on in brief of counsel of prosecutor are — first, that the refusal to grant relators a permit was an arbitrary ruling, and secondly, that the proposed structure would neither increase the fire hazard in the locality nor jeopardize life, limb or public health.

Neither of the points relied on is supported by the testimony taken under the rule to show cause.

The rule to show cause is discharged.


author: Minturn, J.

text:
    EDWIN B. LOOMIS, PROSECUTOR, v. CITY OF UNION CITY, IN THE COUNTY OF HUDSON, AND PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANTS.
    Decided March 27, 1928.
    For the prosecutor, Nicholas S. Schloeder.

    For the city of Union City, Edward G. Gunther.

    For the Public Service Co-ordinated Transport, William H. Speer.

   The opinion of the court was delivered by

Minturn, J.

My examination of the testimony and the briefs in this case satisfies me that the writ should not go. The writ of certiorari under any circumstances is a discretionary remedy, and where the equities of the case do not warrant it the court is not inclined, as a rule, to grant it. In this case no public convenience will be subserved by granting the writ at this time, in view of the fact that the matter is now before the public utility commissioners for final disposition, and until they shall have disposed of the matter it cannot be said that the writ of certiorari will operate on the entire situation.

The denial of the writ will carry with it the right to counsel for the prosecutor to renew his application before the Supreme Court on the opening day.


author: Lawrence, J.

text:
    Warren County Circuit Court.
    JOHN B. CLINE ET AL., RELATORS, v. THE STATE HIGHWAY COMMISSION OF NEW JERSEY, RESPONDENT.
    For the relators, McCarter & English.

    For the respondent, Fred W. De Voe.

   On petition of relators an alternative writ of mandamus issued out of the Supreme Court commanding respondent to proceed to condemn certain lands described therein, in the event that it intended taking such lands for highway purposes, or to show cause why it should not be required so to do. Respondent answered that the land comprising the locus in quo was in fact part of a turnpike or toll road duly laid out in pursuance and by virtue of a special act of the legislature, entitled “An act to incorporate the Washington Turnpike Company, approved March 3d, 1806; that the road had been surrendered to the public, and the rights and privileges therein had been acquired by respondent by legislative authority as a part of the state highway system. Eelators filed a reply traversing the alleged facts set forth in the answer; whereupon, on the issues thus raised in the pleadings, the proceeding was noticed and came on for trial before the court and a jury at the Warren Circuit. On motion for the direction of a verdict in favor of respondent the court disposed of it as follows:

Lawrence, J.

It appears here that in 1806 certain gentlemen were authorized by special act of the legislature to incorporate the Washington Turnpike Company, for the purpose of operating a toll road approximately twenty-five miles long over a route set forth in the act. It was comprehensive in that it provided for the details of organization, the survey, the acquiring of the necessary land and laying out of the road, such provisions, in other words, as are usually found in the general road acts. Those pertinent to this issue were that within two years surveyors, or, as they were called, commissioners, appointed at the request of the turnpike company, were to lay out the turnpike as the statute provided; that it should not be less than four rods nor more than six wide, and in the middle of such turnpike, so referred to in the act, there should be built an artificial road thirty feet in width with a hard surfaced center of twenty feet. It appears that the survey was made by commissioners duly appointed and filed as required in the office of the secretary of state; that thereupon, the undisputed proof establishes, the turnpike company opened the road in accordance with the act, the artificial portion of which was thirty feet wide with twenty feet thereof hard surface. After being so built, as further provided, the company requested the governor to appoint three commissioners to ascertain whether the road had been actually laid out and built in compliance with the provisions of the statute. Such commissioners were appointed by Governor Bloomfield in 1810, and they certified to him that they had viewed the road and found that the work had been done in strict accordance therewith, whereupon the governor issued a certificate authorizing the company to collect tolls as contemplated by the act, and the proofs show that it proceeded to do so. In actual operation, the traveled portion, undoubtedly, was the thirty feet mentioned in the statute as the artificial part of the turnpike, but I am inclined to the view, as a matter of law, that the actual possession under the survey was four rods wide in the section indicated therein as including the locus in quo and six rods as set forth in other parts of the route shown in such survey. I see no difficulty in arriving at this width. It contains a center line and, under the statute, the width of the turnpike was to be not less than four nor more than six rods wide. At the point of the locus in quo, the land claimed by the relators, it appears it was four rods wide under the survey, and, therefore, a measurement from the center line of the artificial part of the turnpike thirty-three feet on either side would sufficiently and adequately designate the side lines at the locus in quo, that is to say a width of four rods. I am disposd to disagree with counsel for the relators, consequently, that the survey should have been accompanied by a map showing side lines.

And so it appears that this turnpike was opened with the permission of the governor and toll taken for a period of years. Evidently the enterprise was not a financial success, for it further appears that in 1815 the property of the company was sold by the sheriff to an individual and that that individual held title for about eleven years, when he reconveyed it to the company, and it is fair to assume that they retained possession and operated the turnpike for four or five years more, when it was again sold to another person by the sheriff, and this time title was held for fourteen years, when the company recovered it, as indicated by the county clerk’s record. Then, in 1853 (Pamph. L., p. 60), a supplement to the act of 1806 was enacted by the legislature for the purpose of enabling the turnpike company to change the road from a dirt highway to a plank road, upon the condition that there be raised, through the sale of its bonds, to defray the necessary expense, a capital fund of $100,000. It appears, however, that the scheme did not materialize, and it is again assumed that the company was unable to raise the necessary fund. The result was that in 1854 it formally surrendered all its rights and privileges to the public by a cerificate in writing filed in the office of the clerk of Warren county. This was permitted by the supplement of 1853 and the turnpike accordingly became a public highway or road to be “used and maintained and repaired as other roads or highways of this state.”

The question now arises whether anything more was legally surrendered than the traveled or beaten pathway of this turnpike. It is conceded that this, traveled portion was at least thirty feet wide. In any event there seems to be no dispute that the thirty feet held as an artificial roadway is that to which reference has been made as thirty feet and the center line of which is the form for measuring the width of the turnpike as contemplated by the act of 1806. Therefore, it is a question of law whether or not the turnpike company surrendered the additional right or privilege it had to keep the entire width as contemplated by the act — not less than four nor more than six rods — and whether the public as represented by the various townships at the time, acquired anything more than the thirty feet of artificial roadway in the center of the so-called turnpike.

I am constrained to resolve that question in favor of the state for the reason that there was no throwing back of any land, no recapture of any land occupied by the turnpike by the property owners. It became a public highway; that is the law. There was no reversion of any portion of the turnpike, either of the artificial center theretofore made or of the adjoining width. I therefore determine the question as to what became a public highway in favor of the public as represented at that time by the various townships through which the route of the road ran. Later, so far as the locus in quo is concerned, the road was acquired and worked by the county and so held until 1917, when it became a part of the state highway system as route 12. Pamph. L., p. 25; see, also, Pamph. L. 1926, p. 377.

Now, I may say, it has been argued here that there is no proof that land to the extent of four rods or six rods was ever acquired by this turnpike company; that, as a matter of fact, all it did was to build the artificial roadway of thirty feet. I do not believe that the court has the right to make any "sort of an assumption that the company did not acquire an easement or right of way for this road less than four nor more than six rods wide, as indicated by the survey, for the reason that our courts have settled, it seems to me, definitely the principle that a road return made under authority of a statute, whether semi-private, as in this case, or by the public road acts, cannot be collaterally questioned, particularly so when there is found in section 5 of the 1806 act that there is no requirement of the company that it' condemn any land unless some property owner aggrieved by the laying out of the turnpike demanded that it be done. So far as the record discloses no property owner objected to the route and consequently no condemnation proceedings were had, but on the contrary all property owners at the time appear to have acquiesced. It is therefore fair to assume, as a matter of law, that the commissioners who made the survey and the turnpike company officials, in turn, in building the artificial road of thirty feet in the center of the turnpike, complied strictly with the law and acquired all the land contemplated by the act.

I rest my ruling on the case of Humphrey v. Woodstown, 48 N. J. L. 588, 593, 595, where it was held that—

“A road may be opened, used and worked throughout its entire length and yet not used and worked on every foot of its entire breadth, and if the locus in quo, being within the lines of the road, was not actually passed over by the wheels of vehicles, it would not therefore be vacated. It has been settled in this state that encroachment on a highway cannot be legalized by lapse of time. If the public once acquires a right to any part of a road, it cannot be lost by negligence of public officers * * *. To protect highways from encroachments, which it is the business of no one to resist, requires that the public be allowed to resume its rights at any distance of time, disregarding any loss to those who have appropriated it and erected improvements on the public domain.”

Therefore, I hold that the return, as filed in the office of the secretary of state, coupled with the report of the commissioners appointed by Governor Bloomfield, is conclusive that the turnpike company laid out, under the procedure provided by the act of 1806, the turnpike in question, not merely to a width of thirty feet, which was the artificial roadway directed by the act itself, but to a width of not less than four rods in the parts indicated in the survey and six rods in other portions thereof; that being so, then, T further think, as a matter of law, the srrrvey not being susceptible of question or attack here, that the state acquired all the rights and privileges of the turnpike company in that regard and is not obliged to condemn any part of the locus in quo which is and always has been a part of the turnpike as laid.

As a result, my opinion is that the judgment must go against the relators and for the respondent, there being no disputed question of fact involved; holding, as a matter of law, that the width of the turnpike through the locus in quo is, by simple mathematics, to be ascertained by measuring thirty-three feet on either side of the center line of the traveled way. When this is done, it will be found that as certified in the report'and survey of the commissioners, as required by the act, the turnpike was laid four rods (or sixty-six feet) wide, especially at the locus in quo and includes it.

The jury is directed to return a verdict in favor of the respondent and against the relators. (A verdict was so returned and postea signed accordingly.)