text:
    JOHN MAYHER AND MARY A. MAYHER, HIS WIFE, RESPONDENTS, v. PETER BRUNNER, APPELLANT.
    Submitted May term, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, George F. Losche.

    For the respondents, De Turck & West.

   Per Curiam.

This was an action in the District Court to recover damages for the alleged deceit of the defendant in representations as to stucco materials in the house which he was about to sell to the plaintiffs. The ease was tried before the judge without a jury and a judgment rendered for- the plaintiff.

Appellant contends that the court erred in receiving evidence of misrepresentation, in receiving in evidence a guaranty given by the producers of this stucco as to its qualities, and finally in refusing a nonsuit.

The contention on the first point is that the evidence should have been excluded under the rule in Naumberg v. Young, 44 N. J. L. 343, because not embodied in a written agreement of sale.

The rule against parole evidence to vary a written agreement does not apply to fraudulent representations made to induce the making of such agreement. While it is true that the contract between the plaintiff and the defendant contains a written guaranty as to the stucco for the period of one year from date of closing title, the plaintiff was not obliged to rely wholly on this contractual obligation and to forego reliance on the false representations, but could depend on the truthfulness of the statements to the extent that they were not fraudulently or deceitfully made. Was, therefore, the proof of fraudulent misrepresentation sufficient to .justify a finding in favor of the plaintiff? We think not.

The proofs were that Brunner said that the stucco in the house was first class; that he had been building houses and knew the stucco to be first class, and it is only on this representation that the plaintiffs can predicate a claim. The further statement that plaintiffs would have no trouble was merged in the written agreement.

There was proof that in this particular instance the stucco failed of its purpose. It cracked and fell from the house. This, however, falls short of establishing that the representation as to the qualities of the stucco itself was false; .indeed ¿he expert called by plaintiff testified that the fault was with the workmanship and'not with the material; and even if we assume that the representation can be so construed as to include the workmanship there was no proof that the defendant was willfully deceiving the plaintiffs or that the statement was fraudulently made. He did not make the stucco, nor did he put it on the building; it was a manufactured product and put on by an independent contractor. In these circumstances we think the plaintiff failed to establish a case and that the court should have granted the motion for nonsuit.

The judgment is reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GEORGE N. CLARK, PLAINTIFF, v. CHARLES W. SQUIRES, DEFENDANT.
    Submitted May 11, 1928
    Decided November 30, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiff, Thomas Brown.

    For the defendant, Winfield S. Angleman.

   Per Curiam.

The rule is founded upon a claim that the damages allowed the plaintiff were inadequate, and we conclude from examining the case that this claim is correct. Clark is a wholesale milk dealer and sued for milk supplied to the defendant under an oral'agreement for thirty cans a day at $2.80 a can; and the defendant admitted receiving milk to the extent of $2,917.60, for which he had not paid.

The defense was a counter-claim, viz., that Clark had agreed to deliver thirty cans a day, that he defaulted in that agreement, that deliveries gradually diminshed and presently ceased altogether, so that defendant was required to buy elsewhere at higher prices, and for this he counter-claimed to an amount which if allowed would wipe out the plaintiff’s claim. The plaintiff’s reply to this was that he had not delivered the thirty cans because the defendant failed to pay him at the time specified and thereby breached the contract on his part; and particularly that the defendant gave him checks which came back unpaid, &c. All this was duly laid before the jury. The trial judge paid particular attention to the counter-claim and advised the jury in his charge that according to the testimony of the defendant the damage due to his being compelled to buy at a higher price, if the jury so found, did not exceed $897.20. The plaintiff’s counsel figures it at a still lower sum, but if either was right, the verdict should have been for a considerably larger amount than was actually returned, viz., $1,302.26, which counsel for the defendant does not, as we read his brief, undertake to explain. Taking the case at its best for the defendant, the verdict was plainly inadequate and must be set aside and a new trial awarded on the ground of damages only.


text:
    ANNA BROMBACHER, ADMINISTRATRIX, ETC., PLAINTIFF, v. JOURNEYMEN BARBERS INTERNATIONAL UNION OF AMERICA, DEFENDANT—PROSECUTOR IN CERTIORARI.
    Submitted October term, 1928
    Decided November 30, 1928.

      Before Justices Minturn, Black and Campbell.
    For the prosecutor, O’Brien & Tartalsky.

    For the defendant, Irwin Rubenstein.

   Per Curiam.

A writ of attachment was issued out of the District Court of the Pirst Judicial District of the county of Hudson. The judge of that court refused to quash the writ upon application. The certiorari was allowed to review that determination. The reason urged for setting aside such determination by the District Court is because the Local Union No. 362, Journeymen Barbers International Union of America had no money or property belonging to the Journeymen Barbers International Union of America. This is not a sufficient reason for setting aside or quashing the attachment, if properly issued. If property not belonging to the defendant has been attached it may be returned upon a proper proceeding.

The judgment of the District Court of the Pirst Judicial District of the county of Hudson is affirmed, with costs..


text:
    HUDSON COUNTY BUS OWNERS ASSOCIATION ET AL., PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., DEFENDANTS.
    Submitted October term, 1928
    Decided November 30, 1928.

      Before Justices Minturn, Black and Campbell.
    For the rule, Barison & Barison.

      Contra, William E. Speer, Leland Taliaferro and John W. Queen.

   Per Curiam.

A rule to show cause was granted in this case, why a writ of certiorari should not be allowed to review an order made by the board of public utility commissioners, dated August 14th, 1928, approving the application of the Public Service Transportation Company to operate seven (7) auto buses between and including Secaucus and Weehawken, Hudson county, New Jersey. The town council of the town of Secaucus had previously passed a resolution revoking and rescinding the municipal consent, which had been previously given by it to the'Public Service Transportation'Company to operate auto buses through the town. The board of public utility commissioners held this revocation by the town of Secaucus was unlawful, and rightfully so as we think; under Pamph. L. 1926, p. 221, ch. 144; because of the fact that it was done without notice and hearing and without the approval of the board, and further determined that the municipal consent granted to the petitioner by the town of Secaucus is still in effect in its present form. The hoard found from the evidence submitted and determined that the consents granted to the petitioner for the operation of seven auto buses are necessary and proper for the public convenience, and properly conserve the public interest, and approves the same upon six conditions therein set out, which are not now necessary to 'state, to a decision of this case. ••

Three points are urged by the prosecutor for the allowance of the writ. One and three, the board of public utility commissioners were without jurisdiction to make the order sought to be reviewed, dated August 14th, 1928. Not so, under Pamph. L. 1911, p. 384, § 24. Second, the order made by the board of public utility commissioners does not conform to the municipal consents. We think it is unnecessary to pursue a discussion of these points in detail. They are without legal merit.

We are satisfied with the decision of the board of public utility commissioners, as set out in the printed book on pages 5 to 10.

The rule to show cause is therefore discharged, and the alowance of a writ of certiorari is refused.


text:
    STATE OF NEW JERSEY, DEFENDANT-RESPONDENT, v. MARY MOHWINKEL, PROSECUTOR.
    Submitted October term, 1928
    Decided November 30, 1928.
    Before Justices Minturn, Black and Campbell.
    For the writ, Grossman & Kwalick.

    For the respondent, Abe J. David, prosecutor, and Walter C. Tenny, assistant prosecutor.
   Per Curiam.

This is an application for a certiorari to test the validity of an indictment, returned by the Union county grand jury, charging Mary Mohwinkel for illegally voting. The application is based on the ground that the indictment is insufficient in law because it does not sufficiently inform the prosecutor, Mary Mohwinkel, of the nature and cause of the accusation against her. Not so. The indictment is in the exact words of the statute. This has been held, not only in this court, but by the Court of Errors and Appeals, sufficient. The rule is, that an indictment for a statutory crime is sufficient if the offense is charged in the words or language of the statute. State v. Thatcher, 35 N. J. L. 445; State v. Halsted, 39 Id. 410; State v. Brand, 77 Id. 486; State v. Morris, 98 Id. 621.

If a defendant wants a more specific description, he is at liberty to demand a bill of particulars. State v. Pennsylvania Railroad Co., 84 N. J. L. 550; State v. Grossman, 95 Id. 499. A bill of particulars under the statutory form of an indictment meets the common law requirements of a more specific description of the offense. State v. Bolitho, 103 Id. 262; 136 Atl. Rep. 172.

We find no arguable question presented by the record. The certiorari is therefore denied.

By a written stipulation, it is agreed that the question involved in all of the enumerated cases below is identical, i. e., the cases marked numbers 241, 242, 243, 245, 246, 247 and 248, October term, 1928, of the Supreme Court, and the same disposition is to be made in those cases as is made by the court in this case, No. 244.

The application for a writ of certiorari is denied in this case, and in each of the above enumerated cases.


text:
    DOUBLE TROUBLE COMPANY, PROSECUTOR, v. BOROUGH OF SOUTH TOMS RIVER, DEFENDANT.
    Submitted October term, 1928
    Decided November 30, 1928.

      Before Justices Minturn, Black and Campbell.
    For the rule, Howard Ewart.

      Contra, David A. Veeder.

   Per Curiam.

A rule was allowed in this case why a writ of certiorari should not be issued out of the Supreme Court to review a certain ordinance of the borough of South Toms River, known as ordinance No. 10, providing for the improvement with concrete curbs and sidewalks on both sides of Atlantic City Boulevard, and on both sides of portions of South Main street, in the borough of South Toms River, Ocean county, as a local improvement; undert Pamph. L. 1917, pp. 370, 375, §10; 2 Cum. Supp. Comp. Stat. 1924, p. 2194; Pamph. L. 1925, p. 392.

The prosecutor asks for the writ on three grounds — first, it is alleged protests were filed with the borough council by owners of lands that would be affected under the ordinance, constituting more than two-thirds in assessed valuation of all the lands to be assessed for the improvement, as provided by Pamph. L. 1917, p. 375, § 10. Second, the ordinance was passed by the borough council without any determination that such local improvement is a public necessity, in which case the municipality may undertake such local improvement notwithstanding such objection, as provided by the statute. Pamph. L. 1917, p. 319, art. 20, § 10. The Home Rule act, as amended by Pamph. L. 1922, p. 201; Mead v. City of Passaic, 2 N. J. Mis. R. 953. Third, the borough failed to give the ten days’ notice required by the. statute and gave only nine'days; Pamph. L. 1917,'p. 374, § 9.

Without attempting definitely to decide these questions, it is sufficient to say that the record as presented to us raises an arguable question which entitled the prosecutor to a writ, and therefore a writ of certiorari is allowed to issue.


text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PLAINTIFF—DEFENDANT IN CERTIORARI, v. WILLIAM H. O’NEILL, PROSECUTOR.
    Submitted October term, 1928
    Decided November 30, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Elmer W. Romine.

    For the defendant in certiorari, Edward L. Katzenbach, attorney-general of New Jersey.
   Per Curiam.

The writ of certiorari in this case was allowed to review the conviction of the prosecutor, William H. O’Neill,, in the District Court of Camden.- The defendant was charged with the violation of Pamph. L. 1921, pp. 702, 708, § 10, the act to regulate the practice of medicine and surgery.

The prosecutor is a licensed osteopath practicing. at Cam•den, New Jersey. He filed eleven reasons for a reversal of the judgment in the Camden District Court, which are argued under four heads in the prosecutor’s, brief. First. The medical 'law-can only apply to those who actually practice medicine -and surgery. The Medical act has no jurisdiction over .any other form of healing, where the practitioner is licensed. It is not necessary on this point to follow the prosecutor’s argument, because if we understand the point correctly, the Court of Errors and Appeals in the case of State Board of Medical Examiners v. DeYoung, 140 Atl. Rep. 676; 6 N. J. Mis. R. 231; affirmed, 6 N. J. Adv. R. 1603; and this court, in the case of State Board of Medical Examiners v. Baudendistel, 6 N. J. Mis. R. 249, on appeal No. 23, October term, 1928, Court of Errors and Appeals, have held a licensed osteopath in practicing osteopathy is limited by the statute. The Medical act applies to those who practice medicne and surgery within the meaning of the act. Gillard v. Manufacturers Insurance Co., 93 N. J. L. 215, under that case, the title of the act which is comprehensive in character is sufficient.

Second. The complaint is defective. No so. The complaint charges the defendant with a statutory offense in the language of the statute. This is all that is required. State v. Morris, 98 N. J. L. 621; Lowrie v. State Board of Dentistry, 90 Id. 54.

Third. The prosecutor, being a licensed osteopath of New Jersey, is exempt from the provisions of the Medical act under which he was prosecuted. This is disposed of by what is said under point one, and in addition to that, what this court said in the recent case of State of New Jersey v. Watters, No. 202, October term, 1928, not yet reported, is pertinent, to wit: The difficulty with the proposition is that the defendant is limited by statute to the practice of osteopathy, which is specifically defined by the statute and by .the decisions, and does not bring him within the general term of a regularly licensed physician.

Fourth. The prosecutor had a legal right to use electrical appliances. Not so. State Board of Medical Examiners v. DeYoung, supra; affirmed, 6 N. J. Adv. R. 1603. 'The prosecutor does not claim that he comes within the exception to Pamph. L. 1921, pp. 702, 707, § 9, i. e., that he has been continuously engaged in giving treatment by electricity during the past fourteen years.

• The judgment of the Camden District Court is affirmed, with costs.


text:
    ERMA CAUL AND JOSEPH A. CAUL, PLAINTIFFS, v. ERNEST MARKS AND JOSEPH MARTONE, DEFENDANTS.
    Submitted May 11, 1928
    Decided November 30, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiffs, Robert Newton Crane.

    For the defendants, Cohen & Klein.

   Per Curiam.

This is an automobile collision case. The only ground urged for a new trial is that the amount of the verdict is excessive and contrary to the weight of the evidence as to damages. The suit is by a married woman for personal injury and by her husband per quod. The verdict in her favor was for $3,000 and in his favor for $250. He claimed injury to the automobile as well as medical expenses and loss of consortium, but the judge excluded the former item. The husband paid about $50 for doctors’ bills and was deprived of the services and society of his wife in whole or part for several weeks. Under the circumstances, it is claimed that a verdict of $250 was excessive; but we think the jury was entitled to place some sort of money value on the foregoing deprivation, and are unable to say that the amount found in favor of the husband was excessive.

Now, as to the wife, the circumstances of the accident have a bearing on the amount of damages. The accident occurred in this way: Plaintiffs’ car, driven by the husband, was proceeding easterly on East Front street, Plainfield, and about to cross the intersection of Westervelt avenue. We gather that Westervelt avenue runs north and south until it reaches Front street, and stops at that point, but that on the south side of Front street opposite the end of Westervelt avenue is something that is called a driveway. The defendants’ automobile truck was moving southerly on Westervelt avenue into Front street and undertook to turn to its left or easterly into Front street. Just as it was coming into Front street, there were two cars coming from the east on the north side of Front street, and the truck made a wide, sweep to get around in front of the first of these cars which had to put on the brakes with power in order to avoid striking it, and then swung eastward just in time to pick up the plaintiffs’ car on the south side of the street. Plaintiff endeavored to make a turn into the driveway to get away from the truck, but failed, the truck catching the hinder part of the plaintiffs’ car and smashing it up against a tree, throwing Mrs. Caul all around in the car, smashing all the glass, partially breaking one rib, as the jury were clearly entitled to find, cutting her upper lip through in the middle and severing the septum of the nose, leaving a permanent scar, generally shaking her up and bruising her, and leaving her in a very nervous and apprehensive state so that she has headaches and does not dare to go out in the car with her husband any mote. The accident took place'on August 8th, 1927, and the trial was had on the 27th of March, 1928. We might add that the’ woman was in bed for two or three weeks and suffered a great deal of pain.

From the foregoing facts it seems very evident to us that the female plaintiff was quite seriously injured; and, after a careful consideration of the case, we do not feel justified in disturbing this verdict.

The rule to show cause will be discharged.


text:
    BERTHA BELL, PLAINTIFF, v. HARRY SMITH AND HARRY SMITH, INCORPORATED, DEFENDANTS.
    Submitted May 11, 1928
    Decided November 30, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiff, Feder & Rinzler.

    For the defendants, William, B. Davidson.

   Per Curiam.

This was an action of deceit in that the defendant persuaded the plaintiff to buy an automobile on the representation that it was a 1924 model, when, in fact, it was a 1923 model. The plaintiff sued for and recovered the difference in value. The trial was before the judge without jury, and the defendant rested on the plaintiffs’ evidence.

It is settled in this class of cases that where there is any evidence to support the finding of the trial judge, this court will not interfere with that finding. The question, therefore, is whether there was any evidence to support the finding of deceit. It is, of course, true as noted by the trial judge that the plaintiff before purchasing the automobile was warned by her brother-in-law that the car was not a 1924 car, but, as the judge also points out, the plaintiff chose to rely rather on the representations made by the defendant than on the warning from her- brother-in-law. Hence, this is not a ease of the plaintiff’s not relying on the representations and buying thereafter as a result of an independent investigation. If it were such a case, there should not be a recovery; but the finding of the trial judge is express that she bought because, and only because, of what the defendant told her. The fact that another theory of the case is open on the evidence cannot make any difference in the result.

The rule to show cause is discharged.


text:
    VINCENT J. DeSALVIO, PLAINTIFF-RESPONDENT, v. LUCY BARBATO RAFFONE, INDIVIDUALLY AND AS ADMINISTRATRIX, DEFENDANT-PROSECUTRIX.
    Submitted October term, 1928
    Decided November 30, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutrix, Charles C. Giffoniello.

    For the respondent, Meyer Q. Kessel.

   Per Curiam.

A certiorari was allowed in this case to review a judgment in, the District Court of the Second Judicial District of Essex county, New Jersey. The following are the pertinent facts on which the judgment is sought to be set aside:

The action was brought by summons in the Second Judicial District Court of Essex county, on July 11th, 1927. A state of demand was properly filed and on July 26th, 1927, when the case appeared on the list for trial, there was a “No appearance” noted in the record.

It was subsequently restored to the list for November 16th, 1937. The defendant filed a demand for a jury. The case was adjourned from time to time, but was definitely set down for trial on April 11th, 1938, and, in accordance with the defendant’s demand for a jury, a venire was issued on April 9th, 1938, returnable on the trial date, April 11th, 1938.

The jury demanded by the defendant was summoned and the case was on the trial list on April 11th, 1938, but the defendant failed to appear; neither did her attorney appear. This appears in the docket record of the District Court, and is admitted by the defendant.

In the absence of the defendant and her attorney, on April 11th, 1938, the plaintiff entered a second “No appearance,” and on April 35th, 1938, entered judgment. Between April 11th, 1938, and April 35th, 1938, no attempt was made by the defendant or her attorney to find out what, if anything, had occurred on April 11th, 1938. As stated above, it appears by the record that the jury demanded by the defendant was summoned and the case set down for trial before the jury on April 11th, 1938. When the defendant and her attorney failed to appear, on the trial day, the defendant lost any right to a trial by jury.

On May 35th, 1938, a rule to show cause returnable June 1st, 1938, was allowed and filed by the trial court. On June 15th, 1938, the rule to show cause why the judgment should not be reopened was heard. On June 30th, 1938, the rule was dismissed by the trial judge, almost a year after the case was instituted.

In this situation we think the trial judge was justified in hearing and deciding the case. The defendant seems to think the trial court was bound to wait indefinitely for the defendant to appear, or at least wait upon the convenience of the defendant.

The certiorari is dismissed, with costs.


text:
    LEON OBERTZ, BY VICTORIA OBERTZ, HIS NEXT FRIEND, AND VICTORIA OBERTZ, INDIVIDUALLY, PLAINTIFFS, v. LOUIS GINSBERG AND LOUIS HYMAN, TRADING UNDER THE FIRM NAME AND STYLE OF THE MIDDLESEX GLASS COMPANY, DEFENDANTS.
    Submitted May 11, 1928
    Decided November 30, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiffs, David T. Wilentz.

    For the defendants, Frank G. Turner.

   Per Curiam.

The infant plaintiff was struck by the defendants’ auto truck as it was turning a corner. There was a verdict in his favor for $1,500 and for his mother per quod of $500. The reasons assigned are that the verdicts are excessive and particularly because the injuries claimed are not shown to be due to the accident.

In view of the fact that it is not claimed that a verdict in favor of the plaintiffs was against the weight of the evidence, we are not concerned with the circumstances of the accident, and, therefore, necessarily assume that some verdict in favor of the plaintiffs was proper. With respect to the amount of damages, it appeared on the trial that the boy plaintiff was slow of comprehension and hard of hearing; his mother said he had always been slow witted. This would seem to account for the inconsistence in his story about what doctors had treated him. It was clear that just after the accident he had been treated by a general practitioner who dealt with superficial injuries, cuts, scratches and bruises, and testified that he noticed nothing about the boy’s nose or ear that required treatment, and. that nothing was said to him about them. Some six months later the boy was taken to a specialist who examined the nose and ear, and found, as he testified, that the ear drum had been broken and the break had healed over with thin tissue, but not as it should he, and that the nose had been rather badly broken, one nostril being entirely stopped and the other partially so, and that an operation would be required to remedy the condition at a cost of $100. An X-ray to test whether there had been a fracture of the skull resulted negatively. Thetrial judge seemed to -have considerable doubt whether these injuries were the result of the accident, but left this to the jury, and it -is plain that the jury found that they were. If this finding was a proper one, the verdicts could not be called excessive, as troubles with the nose and ear are now generally recognized as serious in character and requiring careful attention.

Prom an examination of the case, it is quite reasonable to infer that the boy was stupid when he was examined by the first doctor, and possibly that the latter failed to give the case the thorough examination that might have been given to it and which would, in all reasonable probability, have resulted in the discovery of these serious injuries in time to deal with them more effectively. However this may he, there is no reason to charge this result upon the plaintiffs.

Our conclusion is that the rule should be discharged.


text:
    NICK MEALO, ADMINISTRATOR AD PROSEQUENDUM OF JOHN MEALO, DECEASED, PLAINTIFF, v. SITLEY & SON, INCORPORATED, A CORPORATION, DEFENDANT.
    Argued May 2, 1928
    Decided November 30, 1928.
    •Before Gummebe, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiff, Norman W. Harker.

    For the defendant, Ralph N. Kellam.

   Per Curiam.

Plaintiff’s decedent, a little hoy of six, was run over and killed at the intersection of Pourth and Washington streets, in Camden, at about four p. m. The complaint was specific in averring, and the evidence for plaintiff tended to show, that the boy was crossing Washington street from south to north, on the easterly side of Pourth street on the crosswalk. The complaint further charged that the truck was moving easterly on Washington street, but the evidence for plaintiff was to the effect that the truck came up Pourth street in a northerly direction, turned easterly into Washington street, and struck the boy as he was crossing toward the north.

The witnesses for defendant told a very different story. As to the boy, they said that he was wearing a home-made paper mask in anticipation of Hallowe’en, and was playing around the school annex on the east side of Pourth street adjoining the northeast corner, after school had ended; that defendant’s horse-drawn truck was moving eastwardly along Washington street at reasonable speed, when the deceased suddenly darted across Washington street from north to south '(just the opposite direction to that claimed by plaintiff), veering toward the east to head off the truck, and struck the left flank of the near horse, fell, and the wheels went over him.

We have examined the testimony with care and conclude that the weight of evidence is clearly with defendant’s theory of the occurrence. Even the circumstances are corroborative, e. g., the boy’s home was south of Washington street, and the truck had come from a loading station to the northwest of the place of the accident, and, hence, would naturally not be traveling north on Eourth street. Both the number and credibility of the witnesses appear to us to sustain the defendant’s theory of the case. The verdict plainly cannot stand on the theory of the complaint and we deem it generally against the weight of evidence. The rule will he made absolute and the cause remanded for a new trial with leave to plaintiff if desired to amend by substituting or adding a count based on defendant’s theory of the direction in which boy and truck were respectively moving.


text:
    LOTTIE CAMEL AND FRANCIS CAMEL, PLAINTIFFS, v. FRANK SYLVESTER ET AL., DEFENDANTS.
    Submitted May 11, 1928
    Decided November 30, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.

      For the plaintiffs, John A. Matthews.

    For the defendants, Child, Shipman & Plumer.

   Per Curiam.

The only reason argued is that the damages were excessive, and we consider that for this reason the rule to show cause should be made absolute. The plaintiff had a verdict of $2,000, and her husband a verdict of $500 for loss of her services. The injuries as claimed were sustained because of the female plaintiff having been so jolted in a taxicab as to bring the top of her head in contact with the roof of the taxicab. This, as she claims, resulted in the serious injuries presently to be mentioned.

The plaintiff kept a little store in Dover and kept it open in the evening. Her husband was something of an invalid. She was accustomed to go home after closing the store in a taxicab owned by the defendant Sylvester and operated by the defendant Jack Sehazer. . One evening in January she ordered the taxicab and started home in it. There had been snow melting and freezing again. A street which was to be crossed had on it two car tracks, and alongside of each rail was a deep rut with frozen snow on each side. Mrs. Camel’s claim was that the taxicab bumped so over the. ruts that it banged her head against the roof and gave her a headache, broke her false teeth, made her deaf in one ear, and brought on serious trouble of the nervous system. The jury seems to have taken her story at its face value.

We have read the evidence with care and conclude that the claim of damages cannot be supported. It seems perfectly clear that most of this trouble is chronic. The plaintiff had had goitre Avhich required an operation, and at another time a floating kidney, which also required an operation. She was a sufferer from arterio-sclerosis and blood pressure. She claimed to have weighed one hundred and twenty pounds before the accident, and lost forty-eight pounds. It was conceded that the taxicab bumped over the ruts, and that the plaintiff complained at the time and must have had quite a blow on top of the head; but in our estimation a verdict of $2,000 because of this, in view of the plaintiffs previous condition of health, is preposterous.

The rule to show cause will be made absolute, but as the only ground urged is excessive damages, the new trial should be with reference to damages only.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HENRY STERNFELD, ALIAS ARTHUR KASSIN, PLAINTIFF IN ERROR.
    Argued May 1, 1928
    Decided November 30, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the defendant in error, Archibald C. Hart, prosecutor of the pleas.
    For the plaintiff in error, Jacob E. Max.

   Per Curiam.

The indictment was in three counts: (1) Bringing into this state bonds stolen by him in New York. Pamph. L. 1917, p. 78; 1920, p. 480. This was waived at the trial. (2) Bringing into this state bonds received by him in New York with knowledge that they had been stolen. This was ignored by the jury who convicted expressly on the third count, which was for receiving in the county of Bergen and State of New Jersey.

The trial court was asked, and refused, to take the case from the jury on the second count, on the ground that assuming he received the bonds in New York there was no proof that he knew or should have known they were stolen, and no proof that he brought them into the state; and was likewise asked and refused to take the case from the jury on the third count, on the ground that there was no proof of defendant having received the bonds in Bergen county.

We are not particularly concerned with the action of the court on the second count, because as already noted, there was no conviction on that count. With respect to the third count, we consider that there was error in refusing to direct an acquittal. We have examined the evidence with care, and find it utterly barren of any testimony to show that defendant received the bonds in Bergen county. This was essential to a conviction under the third count. State v. Wyckoff, 31 N. J. L. 65, 67.

The judgment must be reversed.


text:
    LOUIS BELASCO, RELATOR, v. MAYOR, ETC., OF JERSEY CITY ET AL., DEFENDANTS.
    Submitted October term, 1928
    Decided November 30, 1928.
    Before Justices Minturn, Black and Campbell.

      For the relator, Jacob J. Singer and Samuel Cooper.

    For the defendants, Thomas J. Brogan.

   Per Curiam.

In this case a permit was refused relator to build a garage on a plot of ground located on and known as No. 196 Fair-view avenue, Jersey City. A rule to show cause was allowed, why a writ of mandamus should not issue directing a permit to be granted. The only question to be determined is whether or not the erection of the garage, so that it will face Appollo street, at the dead end of that street, and with ingress and egress to the garage from Apollo street, violates the city ordinance of Jersey City. The board of commissioners of Jersey City, New Jersey, at its meeting, March 20th, 1928, held that such a permit would be in violation of the ordinance. The ordinance provides, paragraph 12: “Private garage is hereby defined to mean a building not more than twenty-five feet in width, not more than twenty (20) feet in depth, not more than eleven (11) feet in height, and to be erected on the rear line of the lot to store a pleasure automobile for the accommodation of the owner or tenant residing on said property.”

Paragraph 8 provides: “A private garage, unless same shall be built on the rear line of lot or plot paralleling the street on which it fronts.”

We do not agree with the city commissioners in the construction of the ordinance made by that body, viz., such a building on the place designated by the relator facing Apollo street would be a violation of the ordinance. The rear line of the lot No. 196 Fairview avenue is no less the rear line of that lot, because it happens to be opposite the dead end of Apollo street. That is a mere incident. That fact does not change the plain wording of the ordinance.

The result is, a peremptory writ of mandamus should issue as prayed for.


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    LOUIS HOFFMAN AND SABINA HOFFMAN, PLAINTIFFS, v. ROSE SMITH, JAMES SMITH AND HARVEY APGAR, DEFENDANTS.
    Submitted May 11, 1928
    Decided November 30, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiffs, Feinberg & Feinberg.

    For the defendants, William, B. Stites and Furst & Furst.

   Per Curiam.

This action arises out of a collision between two automobiles in Plainfield on May 6th, 1926. The plaintiff Sabina Hoffman was a passenger in the car of ■ defendant Smith, driven by the defendant Rose Smith, and moving westerly on Pifth street, Plainfield, about seven-thirty a. m. This car collided with a Maxwell car owned and driven by the defendant Apgar, which was going south on the westerly side of Park avenue and about to cross Pifth street. The suit is against Apgar and also against Mrs. Smith and her husband, as to which last there was a nonsuit which does not now concern us. Much of the evidence in the case was directed to the question whether Mrs. Smith was at fault or Apgar was at fault or both were at fault. The court sent the case to the jury in both aspects' and the jury found a verdict in favor of both the defendants.

We are unable to see how this verdict can stand. The plaintiff Mrs. Hoffman was a mere passenger in the Smith car, having no responsibility with respect to its management and, consequently, could not be charged with contributory negligence except on the theory, usually very tenuous in cases of this kind, that there was something that she might have done as the accident became imminent to preserve her own safety. So far as respects the negilgence of the several defendants, it is, of course, fairly clear that when an accident of this kind happens, one or the other or both of the drivers of the automobiles are fairly to be charged with negligence, and a verdict in favor of both of them at the hands of the jury can reasonably be accounted for on no other theory than that the jury were unable to make up their minds as to which one of the two defendants was responsible and compromised by finding the plaintiff enttiled to recover as against neither. We may say from our examination of the evidence that whether or not Apgar was liable, there was considerable evidence to indicate the liability of Mrs. Smith, who was driving an eight-cylinder high-speed car, admits that she saw the Maxwell coming down the street from her right, in which direction it would probably have the right of way, and that she speeded up and attempted to get across ahead of it. All this, however, must be settled by another jury; we cannot undertake to determine the liability on this rule, but content ourselves with pointing out the foregoing testimony as an indication that when the jury absolved both defendants they clearly went outside of their province.

The rule to show cause will be made absolute.


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    ROSE E. KELLER ET AL., RELATORS, v. BOARD OF COMMISSIONERS OF THE TOWN OF IRVINGTON ET AL., RESPONDENTS.
    Argued October term, 1928
    Decided November 30, 1928.
    Before Justices Minturn, Black and Campbell.
    For the relator, Donald M. Waesche (Marie A. Sullivan, of counsel).
    For the respondents, Charles H. Stewart.

   Per Curiam.

This is an application for a writ of mandamus requiring the respondents to grant to the relators a permit to install gasoline tanks and pumps, and to construct a building on the relators5 premises, located on the corner of Springfield avenue and Harrison Place, in Irvington.

The plot upon which the relators desire to construct the gasoline service station is located in a business zone, as laid out and defined in a zoning ordinance of the town of Irving-ton, a section of which ordinance provides that a building may be used as a gasoline supply station in a business zone.

An ordinance numbered 132 of the town of Irvington provides for the regulation and control of the storage, use and sale of explosives, combustible and inflammable material, and also contains a section requiring a license in order to keep, sell, use or handle such material, including gasoline.

The relators submitted an application for a license to keep such inflammable and explosive materials upon their premises, and the license was refused by the commissioner of public safety of the town, upon the grounds that the location of a gasoline station upon the relators’ premises was hazardous to public travel, and because there were already three gasoline stations in the immediate neighborhood, which were sufficient to supply the public requirements. This latter reason has been abandoned upon the argument, so that the only ground upon which the refusal of the permit to keep combustibles is based is that a gasoline station at that particular corner would be a public menace, because of the increased traffic congestion thereat. This was one of the reasons given to justify the refusal of a building permit in a somewhat similar case. Morgan v. Board of Commissioners of Collingswood, 6 N. J. Adv. R. 84.

Whether this reason, standing alone, would warrant the refusal of the license applied for under the ordinance we do not think it necessary now to decide. Larkin v. Schwaab, 242 N. Y. 330; 151 N. E. Rep. 637, 640.

The writ of mandamus will not lie to compel the issuance of a building permit in this instance, because no application for such permit has been made. English v. City of Asbury Park, 115 Atl. Rep. 64.

Conceding for the purposes of the case that the town superintendent of buildings stated that he would not issue a permit for the construction of a gasoline supply station until a license to keep combustibles had first been obtained, we are pointed to no provision of the building code of the town requiring such license as a condition precedent to the issuance of a building permit. The superintendent of buildings upon independent advice, or upon his own volition, may peradventure have changed his mind upon this subject, and might have granted the permit if the same has been applied for.

It may also be remarked that the court would not be inclined to grant the writ of mandamus to compel the issuance of a license for the keeping of combustibles before the plans and specifications for the service station had been submitted to the proper department for approval.

The writ of mandamus in any event is a discretionary writ and will not be allowed in doubtful cases, and unless the clear legal right to the same is made manifest by the applicant; nor will it be ordered when the result of its operation would be to create disorder and confusion rather than to settle or remedy a clear existing legal right. High Extr. Rem. 47; State v. Newark, 35 N. J. L. 396; Secaucus v. Kiesewetter, 83 Id. 227.

The result is that the application for a writ of mandamus will be denied.


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    THE STATE, EX REL. JOSEPH EGGIE, RELATOR, v. THE BOARD OF COMMISSIONERS OF THE BOROUGH OF AUDUBON ET AL., RESPONDENTS.
    Argued October term, 1928
    Decided November 30, 1928.
    Before Justices Minturn, Black and Campbell.
    For the relator, Oscar B. Redrow.

    For the respondent, R. Wayne Kraft.

   Per Curiam.

The present proceeding is an application for a writ of mandamus to compel the issuance of a building permit for the erection of a building to be used in connection with a gasoline or service station on the White Horse Pike, one hundred and twenty-five feet north of King’s Highway, in the borough of Audubon.

The material facts are not seriously disputed and are as follows:

Eor nearly two years the relator has conducted a gasoline station on the premises in question and has used a building on the adjoining lot for business purposes in connection with the gasoline or service station. The automobile service station as proposed would be erected about one hundred feet from the new Central Theatre, which has a seating capacity of one thousand two hundred and forty persons. When the theatre was constructed there were also constructed several store buildings immediately adjoining the theatre, two of which were immediately used for garage and service stations and have since continued in that service. Across the street there was-a garage constructed for some years before the erection of the theatre.

Shortly after the adoption of the ordinance in question a permit was issued for the erection of an apartment house and garage within the prohibited area.

On March 25th, 1924, several years after the erection of the theatre and store buildings, the borough of Audubon adopted a zoning ordinance which, among other things, provided that no garage or service station should be erected within two hundred feet of a theatre, school, church, hospital, library or public museum.

It is the relator’s contention that the denial of the building permit to him under these circumstances is not a proper exercise of the police power.

It is manifest that similar ordinances have been upheld as proper regulations under the general police power conferred upon municipalities. The police power, it has often been said, is indefinable and depends upon the circumstances concerning health, life and public comfort in any community. The cases throughout the states and in the United States courts are numerous upon this subject, and nothing can be gained for present purposes by referring to them specifically. Cooley Const. Lim. 830.

The cases cited upon the brief for the respondent in support of this contention are among the most recent expositions of the law in this state upon that subject. Schait v. Senior, 117 Atl. Rep. 517; Johnston v. Hague, 136 Id. 407; Savitz-Denbigh Co. v. Bigelow, 134 Id. 557; Koplin v. South Orange, 6 N. J. Mis. R. 489, especially the latter case which it seems to us is dispositive of the question here presented.

The mere fact that a permit was inadvertently issued shortly after the passage of the ordinance presents no valid reason why this court should issue an order and by mandamus compel the issuance of a permit to the relator in manifest violation of the provisions of the ordinance. A writ of this character in any event is within the sound discretion of the court, and will not be ordered where its purpose will result in a clear violation of the local ordinance, when the same is otherwise valid; nor will it be ordered to compel officials to perform a duty which is essentially vested by law, under all the circumstances of the case, in their sound discretion, and which is reasonably supported by the testimony. High Extr. Rem. 47; State v. Newark, 35 N. J. L. 396; Secaucus v. Kiesewetter, 83 Id. 227.

The result is that the application for the writ will be denied.


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    ALICE C. HILES AND HENRY J. HILES, Sr., IN HIS OWN RIGHT, AND HENRY J. HILES, Jr., INDIVIDUALLY, PLAINTIFFS, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT. HENRY J. HILES, Sr., PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Submitted May 11, 1928
    Decided November 30, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiff, William C. French.

    For the defendants, Henry H. Fryling.

   Per Curiam.

The plaintiffs who were riding in an automobile on a public highway were injured by a trolley car of the defendant running into it from its left at about nine-twenty p. m. The jury found a verdict in favor of each plaintiff, and on this rule it is claimed that there should have been a nonsuit or, failing that, that the verdicts were against the clear weight of the evidence.

The Glassboro Pike, also known as the Delsea Drive, runs substantially north and south and is crossed by another road called Cooper street or the Almonesson road at an angle of about sixty-six degrees. Cooper street runs, roughly speaking, northwest and southeast. South of Cooper street and parallel with it at a distance of a few feet is the private right of way of the defendant running through open fields at this point and crossing Delsea drive just south of the highway crossing. The car in which the plaintiff was riding was, as we have said, proceeding south and had crossed Cooper street, and was crossing the track of the defendant when it was sfruck. There were no gates or signal at the crossing of the trolley line.

The circumstances of the accident as the jury were entitled to find them were about as follows: The car was owned and driven by the plaintiff Henry J. Hiles, Jr., and his father, mother and younger sister were passengers in the car, none of them having control over his operation. The whole party were on their way to their summer home, and the car was packed full of baggage. There was a Eord car ahead of the plaintiff’s car which had held them back, but which stopped either just north or just south of Cooper street and signalled the Hiles car to pass, which it proceeded to do, and the occupants of the plaintiffs’ car suddenly became aware of a trolley car approaching on their left, coming out of a field on one side and crossing the road to a field on the other. Their claim was that they did not know there was any trolley line there; that there was no headlight on the car (and in this they are corroborated by one or more witnesses, although it is denied by the defendant), and that, seeing it was too.late to escape, young Hiles swung to his right as much as he could, and the right front of the trolley ear struck just about at the driver’s seat of the automobile and swung it around into the ditch. It appeared that the trolley car was being driven by a learner under instructions of a regular motorman. This learner testified on the trial that the plaintiff ran into the side of his ear toward the rear, but this seems to be negatived by the testimony showing that the lights of the automobile were uninjured, and also that the front door of the trolley car was thrown off of its rollers.

The case presented an unusual conflict of testimony which it was the function of the jury to resolve, and we are unable to say that they disregarded their duty in the premises. As to Mr. and Mrs. Hiles, there is no fair question of contributory negligence, as they were passengers as already noted, their son owning the car; and even as to Henry, Jr., who was driving the car; we are not disposed to disturb this verdict. Upon the testimony, the jury were entitled to say, notwithstanding the contradictions, that the trolley car had no headlight burning and that it crossed the road at considerable speed without any light or sound, and that Henry, Jr., the driver, was not shown to have been lacking in due care.

The result is that the rule must be discharged.


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    WILLIAM BAXTER AND HENRIETTA BAXTER, PLAINTIFFS, v. PUBLIC SERVICE TRANSPORTATION COMPANY, DEFENDANT.
    Submitted May 11, 1928
    Decided November 30, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiffs, John J. Breslin, Jr.

    For the defendant, Henry H. Fryling.

   Per Curiam.

The two reasons assigned were that the verdict was against the weight of evidence and that the damages are excessive. The second reason is expressly abandoned; hence, we are concerned only with the question whether the verdict was against the weight of evidence. The suit arises out of a collision between an automobile driven by Miss Grace Baxter, the daughter of the two plaintiffs, a young woman seventeen years old at the time, and an auto bus of the defendant company driven by their servant. The burden of argument on behalf of the defendant is that the accident was due solely to Miss Baxter’s negligence in suddenly turning to the left across the road in front of the bus which was close behind her without looking back or giving any warning signal. If this was clear upon the evidence, it might well be that the rule should be made absolute, although, even in this aspect, it should be remembered that the plaintiff William Baxter was not the owner of the car, but it was owned by his wife, and that he was a mere passenger in the car, so that as to him the defense of contributory negligence is largely out of the case.

The accident occured on Eidge road, an important highway in the county of Bergen. A Miss Leonard had been visiting the Baxters at their home, and apparently Grace undertook to drive Miss Leonard to her own home. Whether this be so or not, it was proposed that William Baxter, who was manager of a chain store some blocks to the south on the east side, was to be taken down to the store for the purpose of checking up on conditions and seeing that all was right, it being six o’clock p. M. on May 31st, which was a Monday and a legal holiday. At all events, the car was on its way southward and, principally or incidentally, Baxter was to alight on the east side of the road in front of the store.

There were some half dozen witnesses for the plaintiffs and about the same number for the defendant. The evidence, as usual, is contradictory, but all seem to agree on these facts: That Eidge road is a wide road with a twenty-foot amiesite roadway in the middle and about the same amount of dirt road on each side, with no trolley tracks at this point. There were several vehicles in motion in the neighborhood, and all were going south. The car in which the plaintiffs were riding crossed streets known as Third avenue, second avenue and New York avenue. William Baxter’s store was about seventy-five feet south of New York avenue on the east side of Eidge road and opposite a cemetery. The plaintiffs’ theory of the case is that the Baxter sedan was well ahead of the bus going south and intending to turn across the road and draw up in front of the store, facing north and making a full turn without backing. Behind it was another pleasure car, and behind that the bus which had been trying to pass the other pleasure ear; that Miss Baxter, after passing New York avenue, drew over somewhat to the right and wholly or partly off the amiesite so as to get room to turn, looked back in her mirror, put out her hand as a signal, saw nothing behind and started the turn; the other pleasure car passed on her right and she was across the amiesite and her front wheels were on the easterly dirt part of the road, her car squarely across the road, when the bus, instead of going behind her like the other private car, pulled to its left and hit the Baxter car about at the rear door. The defendant’s witnesses differ as to the distance between the car and bus before the turn, some saying that it was a very few feet and that Grace gave no signal, that the windows of the sedan were closed, and that the bus driver did the best he could. The driver himself testified that he saw her pull over to the right and did not know whether she was going to park there or what she was going to do; that he was about fifteen feet behind when she started to turn, and blew no horn.

In a situation of this kind it was, in our estimation, plainly open to the jury to say that the driver of the bus, observing the conditions ahead of him, was required to use more caution than he did use in making sure as to what the ear ahead of him was likely to do. Our conclusion is that the jury properly decided the ease, both as to questions of negligence and contributory negligence, and the rule to show cause will, therefore, be discharged.


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    FRANK J. DURKIN LUMBER COMPANY, PROSECUTOR, v. GEORGE FITZSIMMONS, RECORDER, ETC., ET AL., DEFENDANTS.
    Submitted October term, 1928
    Decided November 30, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, James Larkin Hughes and Merritt Lane.

    For the defendants, John B. Brown.

   Per Curiam.

The writ of certiorari was allowed in this ease, to review the judgment of conviction of the prosecutor, for the violation of certain provisions of an ordinance of the town of Belleville, known as the “Zoning Ordinance;” adopted September 3d, 1923. The prosecutor files nineteen reasons for setting aside the judgment of conviction. The reasons are argued under five heads in the prosecutor’s brief.

The complaint charged the prosecutor with maintaining on the premises on the southerly side of John street, in the town of Belleville, a lumber pile or building material storage yard, which it used in connection with its lumber business carried on in another part of the premises, located in the town of Bloomfield, and, that the maintenance of such a lumber pile and use thereof was the use of the premises as “a building material storage yard,” within the meaning of section 14 of the ordinance.

That section required a “certificate of occupancy.” It provides: “No land shall be occupied or used and no building, &c., occupied or used iu whole or iu part for any purpose whatsoever until a certificate of occupancy shall have been issued by the superintendent of buildings stating that the premises or building complies with all the provisions of the ordinance.” No building or premises may be occupied until such certificate shall have been issued. The prosecutor was convicted by the recorder of Belleville of violating the ordinance on the 1st, 7th, 12th, 16th and 19th days of March, 1928, for not obtaining a certificate of occupancy, as required by the ordinance.

Eight reasons filed by the prosecutor for setting aside the conviction under the ordinance are, the ordinance or the conviction thereunder is in violation of the constitution of the United States or the constitution of New Jersey or both. Not so. We have read the argument made on behalf of the prosecutor on this point with interest and care. It fails to satisfy us that is so. We cannot find any argument to support or sustain the contention. The constitution (Pamph. L. 1928, p. 820) and the legislation passed in pursuance thereunder (Pamph. L. 1928, p. 696), are applicable. Koplin v. Village of South Orange, 142 Atl. Rep. 235; 6 N. J. Mis. R. 489.

We find no merit in the other reasons filed for setting aside the conviction. They call for no extended discussion. It may be possible that with so many reasons urged we have overlooked a good one. Let that he as it may. Piling lumber, as it may affect injuries to children, for an illustrative case see Vanderbeck v. Hendry, 34 N. J. L. 467. The zoning ordinance of the town of Belleville is not unreasonable in its application to the prosecutor’s lands. The ordinance is presumed to be reasonable, and the burden is on the prosecutor to show its unreasonableness.

The conviction of the prosecutor by the recorder of the town of Belleville brought up by the writ of certiorari is affirmed, with costs.


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    ALEXANDER MARKOWSKI, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION, DEFENDANT.
    Submitted May 11, 1928
    Decided November 30, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiff, Heine, Bradner & Laird.

    For the defendant, Henry H. Fryling.

   Per Curiam.

This is a second trial of this case. See 135 Atl. Rep. 783; 5 N. J. Mis. R. 182. The plaintiff was a helper on a truck loaded with empty five-gallon cans, and which was moving westward on Paterson Plank road between Jersey City and Paterson on or near the Hackensack meadows. There is a single trolley track on the north side of the road and another on the south side, the road for ordinary vehicles being in the middle. It does not show that the trolley line operated by the defendant owns its right of way, and apparently the space devoted to the track is simply a part of the highway between the side lines assigned to trolley tracks and for economy left unpaved as in other cases. As the truck was progressing, something went wrong with the load of cans which, according to the testimony, was sagging over to the right or towards the trolley track, and the driver of the truck prepared to stop for the purpose of having the difficulty remedied. The plaintiff was sitting on his right on the front seat; he put out the mechanical arm indicating caution to anything coming up behind, the truck pulled over a little to its right, but not on the track, and stopped, whereupon the plaintiff got out on the right-hand side for the purpose of attending to the shifted load. His testimony is that before getting down he looked back and saw nothing within thirty feet, and thereupon stepped down and immediately saw the car coming, tried to escape, but, to use his phrase, “was rolled” between the car. and the truck. The evidence indicates that while the car did not hit the truck itself, it caught part of the load that was sagging, and that this collision, now using the language of the motorman, “coiled” the window screen on the left side of the car, smashed some cans, tore off the canvas cover and carried away several hooks. The car crowded past the truck until it overlapped considerably in front of it.

While the present suit is not for damages to the truck but for personal injuries to the plaintiff, the above evidence has been epitomized for the purpose of indicating the situation with respect to the negligence of the motorman touching the truck which, in our estimation, the jury might fairly say betokened negligence toward the plaintiff. The motorman knew or should have known that this truck was in front of him and so close as to make it dangerous to undertake to pass; that the mechanical arm was out and that the truck was at a stand still. Such a situation ordinarily prompts a motorman to slow down the car almost to a stand still and pass the standing truck with the greatest caution to avoid .collision of any kind. This is a matter of common knowledge to anyone riding on a trolley car. In such a situation, furthermore, it is not iinreasonable to say that the motorman should anticipate that someone would be getting off the truck and on the side away from the ordinary traffic of the road and not where he was liable-to be struck by other automobiles going in either direction. We conclude, therefore, that as respects the operator of the trolley car, a fair case of negligence was presented.

With respect to the contributory negligence of the plaintiff, the case is more difficult. It is a general principle, of course, that contributory negligence is a defense and must be proved by way of evidence. The question seems to be whether the plaintiff should have made absolutely sure that nothing was coming, or, when he testified that he looked back, whether that testimony was true in view of the fact that he admitted on the first trial that he did not look back. The jury had the whole situation before them, and, for the second time, found in favor of the plaintiff; so that while, if this were the first trial, we might be disposed to set aside the verdict, on well settled principles we feel that a second concurring verdict should not be 'set aside.

Counsel for defendant challenges a portion of the charge which was not excepted to on the trial, and which it is claimed was erroneous. It is pointed out, however, on the other side that this is substantially taken from our decision in Camden and Atlantic Railway Co. v. Preston, 59 N. J. L. 267, and we think that it was not error to charge under the circumstances as the court did charge.

The rule to show cause will be discharged.


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    STRAUSS CONSTRUCTION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, RELATOR, v. BOARD OF TENEMENT HOUSE SUPERVISION OF THE STATE OF NEW JERSEY, RESPONDENT.
    Argued October term, 1928
    Decided November 30, 1928.

      Before Justices Minturn, Black and Campbell.
    For the relator, Schumann & Schumann.

    For the respondent, Edward L. Katzenbach, attorney-geneoral.
   Per Curiam.

The relator is the owner in fee-simple of a tract of land, situated in Jersey City, with a frontage on Sherman Place of ninety-eight feet ten inches, together with certain rights, powers and privileges in and over two strips of land, one •eight feet in width, lying along and contiguous to the westerly line of said tract, and the other twenty feet in width, lying .-along and contiguous to the easterly line of said tract, and is •desirous of erecting upon said tract a five-story brick apartment house, using said eight-foot and twenty-foot strips of land for the purposes of court yards to the main building. Eor this purpose the relator applied to the board of tenement 'house supervision of the State of New Jersey, for a permit for the erection of said proposed building. The application for the permit was denied on the ground that such use of said •eight and twenty-foot strips of land for such purposes was in violation of the law; and the application presented to the •court at this time is for a peremptory writ of mandamus •directing the board of tenement house supervision and commanding and enjoining it to issue the necessary permit as requested by the relator.

It will be observed that the relator’s title to the lots last ■described is based entirely upon easements which it claims in and over the same premises. The easement in the eight-foot -strip along the westerly side of relator’s plot was founded in .an express grant. The legal rights of the relator in the twenty-foot strip of land arise in virtue of the fact that the relator’s predecessor in title, one John Mehl, Jr., while holding title to the plot now owned by the relator, as well as the plot to the east of said premises, conveyed the easterly plot to one Linus V. Schaefer by deed containing a clause which provided that neither the grantee, Schaefer, nor his heirs, personal representatives or assigns, will erect or permit to be erected on the premises any building within twenty feet of the rear line (being the easterly line of the relator’s plot), but shall keep such strip of land open and unoccupied, except that light, open fences, not more than six feet in height, may be built to enclose the said strip as a courtyard.

John Mehl, Jr., subsequently conveyed the plot of which the relator is now the owner, the deed including all the rights reserved by the deed made to Schaefer in and over the twenty-foot strip.

In this situation the relator submitted for approval to the board of tenement house supervision, plans for the erection of a five-story apartment house, which plans were disapproved by the board because of a lack of necessary courts on the sides of the building.

The relator’s claim is that he has the legal right to use the eight-foot and twenty-foot strips as or in lieu of courtyards. Whether or not he has such right is a debatable question and should be presented for consideration and settled before the right of the relator can be considered sufficiently clear to warrant the grant of a writ of mandamus, which is never granted excepting where the question presented is free from doubt. State v. Newark, 35 N. J. L. 396; Secaucus v. Kiesewetter, 83 N. J. L. 227; High Extr. Rem. 12.

For instance, it has been held that where the owner of two lots conveyed one of them with the restriction that no building should be erected thereon within a certain distance of the other lot, such reservation creates an easement in the lot granted for the benefit of the second lot. Herrick v. Marshall, 66 Me. 435; 19 C. J. 911.

And so it has been held that the right to the enjoyment of the easement will pass as appurtenant to the lot in respect to which it was created. Coudert v. Sayre, 46 N. J. Eq. 386.

The factual situation thus presented it is manifest creates a legal question as to the validity of the relator’s rights for the purposes in question, as related to the Tenement House law. The board of tenement house supervision in this instance examined the plans and specifications submitted and refused to approve the same, giving the relator the reason therefor which was that the plans did not show sufficient courts, as required by the Tenement House act. The Tenement House act (4 Qomp. fitat., p. 5323) defines with sufficient particularity the meaning of a court in connection with construction of a tenement house building, and the respondent in this instance has attempted to follow that definition by refusing to approve the plans and specifications submitted.

The object of a writ of mandamus under such circumstances would be to compel the board, in the face of its investigation and conclusion, to issue the permit applied for by the relator, and as we have already observed, the relator’s right to the issuance of the permit under the circumstances presented by the case is not sufficiently clear to warrant the granting of the application. Eor this reason the application for the writ will be dismissed.


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    BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, PLAINTIFF IN CERTIORARI, v. EDWARD L. STOCKTON, DEFENDANT. BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, PLAINTIFF IN CERTIORARI, v. BENJAMIN R. FAUNCE, DEFENDANT.
    Submitted October term, 1928
    Decided November 30, 1928.

      Before Justices Minturn, Black and Campbell.
    For the prosecutor, Edward L. Katzenbach, attorney-general of New Jersey.
    For the defendants, Robert Peacock.

   Per Curiam.

The writs of certiorari were allowed in these cases to review judgments of nonsuit rendered by the Court of Common Pleas of Burlington county. The defendants Edward L. Stockton and Benjamin E. Eaunce were charged with the violation of section 2 of an act entitled “An act to regulate the practice of pharmacy in this state.” 3 Oomp. Siat. of N. J., p. 3943.

The defendant Benjamin E. Eaunce was the owner of a store No. 217 Bridgboro street, Eiverside, New Jersey. The defendant Edward L. Stockton, who made the sale, was a clerk in Eaunce’s employ. The statute (section 7) makes the owner equally liable with the seller. The nonsuit was granted by the trial court on the ground that there was no evidence to identify the defendants, i. e., no identification. Our reading of the testimony taken at the trial reveals sufficient identification. A witness, Mildred Menkler, testified: “Whom did you see? A. Edward L. Stockton.” Eecord, page 11, line 21; page 14, line 13. “Q. Who opened it (i. e., the door) ? A. Mr. Stockton.” Page 14, line 36. "Q. What was said when you reached-the living room? A. Mr. Stockton called Mr. Eaunce, and Inspector Austin had a conversation with him,” &e. Page 24, line 29. “I saw a man who told me he was Edward L. Stockton, the seller,” &c., and met a man there, i. e., in the living-room, “who said he was Eaunce, the proprietor.” “Q: Did you see Mr. Eaunce that day? A. I did.” Eecord, page 25, line 32.

So, page 26, line 27, “I asked him if he was the sole owner, and he said he was the sole owner; Stockton was in his employ.”

This, with the record of the case under the case of State Board of Medical Examiners v. Buettel, 102 N. J. L. 74, was ample proof to identify the defendants.

The judgment of the Burlington County Court of Common Pleas is reversed in each case and a new trial awarded.


text:
    MOUNTAIN ICE COMPANY, PROSECUTOR, v. MARGARET DURKIN ET AL., DEFENDANTS.
    Submitted October term, 1928
    Decided November 30, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Emil Neblo.

    For the defendants, Coult, Satz & Tomlinson.

   Per Curiam.

This is a workmen’s compensation case. The certiorari was allowed to review a judgment of the Essex Court of Common Pleas, affirming an award made in the workmen’s compensation bureau to the petitioner, as the widow and children of Martin Durkin, deceased. It is sought to reverse the judgment on the ground that the petitioner’s case is entirely barren of any proof of an accident. So, it is argued, there is nothing to indicate that at the time of the alléged injury the decedent was doing any particular thing as a part of his work or otherwise. Fot so. The record discloses these facts: The deceased was discovered by Michael Bohen, a fellow-worker, about ten-thirty a. m., February 27th, 1927, in Fo. 1 storehouse on prosecutor’s premises lying on the floor; he was in an unconscious condition; was carried to the boiler room of the plant and later to the City Hospital. He was received at the City Hospital almost totally unconscious. There were lacerations on the forehead; no evidence of alcohol or intoxication. Decedent died on March 2d, 1927. Dr. Harrison Martland performed an autopsy on the body the following day. He gave the cause of death as follows:

“I found the man died as the result of traumatic cerebral multiple hemorrhages due to a blow or external violence, which he received in the front part of his head where there was a large laceration. He also had a fracture of the pelvis.”

The deceased worked as a watchman and fireman for the prosecutor, and at the time immediately preceding the accident from which death resulted, his hours were from seven A. m. until three r. m. every day except Sunday, when his hours were from seven a. si. to seven p. si. He left the plant of the company on Saturday, February 26th, 1927, and was to return on Sunday, the following morning, at seven a. m. Joseph Burness, another night watchman employed by the company, testified that on the night of February 26th he closed all the doors of the plant; that he opened the front door between six-thirty A. si. and seven A. si. Sunday morning, expecting Durkin to come in sometime between six-thirty and seven o’clock. Fo. 1 storehouse, where Durkin’s body was found, adjoined another building in the plant, known as the blower room; between the blower room and the storehouse there was a door opening from the storehouse into the blower room. This doorway entered the storehouse at a point about thirty-five feet above the floor of the latter, and gave access to a platform about three feet wide and about four or five feet high. The deceased was found in an unconscious condition, almost directly beneath this platform. On -the other side of the door, entering the blower room, there were steps leading to the floor of that room. Durkin, when found, was dressed in his street clothes; it was customary, when he relieved Burness, for him to go upstairs, change his clothes and come down to the boiler room. The locker room was upstairs; to get to the locker room one had to pass through the tank into the blower room, and the locker room was at the head of the boiler room. One might get there by an elevator.

The presence of the body, bearing injuries which would result from a fall immediately beneath the platform thirty-five feet above, from which an open door led to a room to which he had access, raises a legitimate inference that he died as the result of a fall from the platform. The deceased was a watchman; the very character of his employment would require him to enter any portion of the company’s premises, where his presence might be of benefit to his employer’s interest. A case in point is that of Atchinson v. Colgate Company, 3 N. J. Mis. R. 451; affirmed, 102 N. J. L. 425; so is Manziano v. Public Service Gas Co., 92 Id. 322.

What was said by this court in a recent case (not yet reported, Pearson v. Armstrong Cork Co., No. 207, October term, 1938) is pertinent; when two independent and distinct tribunals, such as these, have examined the facts and heard the testimony, we do not think that a conclusion so reached should be lightly disturbed by this court.

It is next urged that the judgment should be reversed, because it was error to allow Dr. Harrison Martland to answer a hypothetical question, that the injuries testified to by him could come from a fall from that platform. Assuming this question to be incompetent, the judgment should not be reversed for that reason, because the answer could not have changed the result. In addition to this, at page 49 of the record, the deputy compensation commissioner said: “I will allow the question, of course, in my finding, if I cannot assume these facts, then, of course, I shall throw out this evidence. You may answer it, doctor.”

The judgment of the Essex County Court of Common Pleas is affirmed.


text:
    ASBURY PARK, A MUNICIPAL CORPORATION, RELATOR, v. THE TOWNSHIP OF NEPTUNE, IN THE COUNTY OF MONMOUTH, AND EDGAR PHILLIPS, BUILDING INSPECTOR, RESPONDENTS.
    Argued October term, 1928
    Decided December 6, 1928.
    Before Justices Minturn, Black and Campbell.
    For the relator, Durand, Ivins & Carton.

    For the respondents, Cook & Stout.

   Per Curiam.

This case is, by its circumstances and testimony, related to case number 215 of the present term, which has been considered with it.

The material facts in the case are that the city of Asbury Park is the owner of sixty acres of land located in the adjoining township of Neptune. The land was purchased a number of years ago and was allowed to remain in an unimproved condition by the city, with the exception of a building erected thereon and maintained at one time by Asbury Park as an isolation hospital.

The city of Asbury. Park was desirous of erecting on the tract an incineration plant for the disposal of garbage and other refuse at an approxiate cost of $130,000, and the officials of the two municipalities entered into negotiations as to the location of the proposed plant. The negotiations terminated in the refusal of the township of Neptune to consent to the erection of the incineration plant, and thereupon the city of Asbury Park formally applied to the township of Neptune and to the building inspector thereof for a building permit, which permit was likewise refused.

The respondent the township of Neptune now contends that under the provisions of the Home Rule act a municipality may not erect a garbage disposal plant in another municipality without the latter’s consent, and that therefore the obtaining of such consent is a condition precedent to the right of the municipality seeking the privilege to obtain a building permit for the erection of such plant.

The relator argues that the prohibition of the act, section 7, is only against acquiring lands for such purposes in another municipality and has no reference to the construction of buildings upon such lands when already acquired, as in this instance, for many years, and that the section is therefore inapplicable to the conditions existing in the case sub judice, inasmuch as the relator already owns the land in the adjoining municipality and has been such owner for a period of years.

It is clear from this situation that where the right of the city of Asbury Park is not clear and free from doubt, as it certainly is not under this statute, a peremptory mandamus will not issue to compel the township of Neptune to perform an act which may be classed at least as of doubtful legal character. What the future may bring forth may give rise to a different question, but at present the right to mandamus is not so clear under the statute invoked and the facts of the case as to warrant its issue at this time.

In the ease of Usskay v. Dill, 92 N. J. L. 327, it was stated: “To warrant the issuing of the writ in any case the right of the petitioner to it must be clear, and the public duty sought to be enforced must be clear and specific. The right is never granted in a doubtful case. State v. Newark, 35 Id. 396; High Extr. Rem. 52; Secaucus v. Kiesewetter, 83 N. J. L. 227.

The rule will therefore be discharged.


author: Smith, J.

text:
    Essex County Circuit Court.
    NEW YORK CENTRAL RAILROAD COMPANY, A CORPORATION, PLAINTIFF, v. ERSELIO STANZIALE, DEFENDANT.
    For the plaintiff, Wall, Haight, Carey & Hartpence.

    For the defendant, J. Victor D’Aloia.

   Smith, J.

This case was referred to the Circuit for trial and has been submitted on an agreed statement of facts.

The suit is brought to recover freight and other attending charges for a shipment made by one Conforti and consigned to the defendant. After shipment was made and before delivery the defendant sold the goods while in transit to one Corrado, to whom the bill of lading was delivered, and the sale was made subject to all freight charges. The plaintiff knew of this sale and delivered the goods to Corrado without collecting the freight.

Primarily the consignor is liable for the payment of freight charges. Pennsylvania Railroad Co. v. Townsend, 90 N. J. L. 75. This liability continues regardless of the fact that the goods may have been sold by the consignor or that the railroad fails to collect the freight charges from the consignee. The railroad, of course, has the right to insist upon the payment of freight before delivery. The bill of lading contains a further provision with regard to who is liable for the freight. This is section 1 of the contract terms and conditions contained on the back of the bill of lading. The important parts of the provision are as follows:

“Section 1. The owner or consignee shall pay the freight and average, if any, and all other lawful charges accruing on said property; but, except in those instances where it may lawfully be authorized to do so, no carrier by railroad shall deliver or relinquish possession at destination of the property covered by this bill of lading until all tariff rates and charges thereon have been paid.”

The mere fact that the person is named a consignee or is the owner of the goods does not render him liable for the payment of freight. Pennsylvania Railroad Co. v. Townsend, supra. To hold the owner or consignee he must acquiesce or agree to the bill of lading by some express or implied agreement, and the exercise of dominion over the goods is sufficient to render him bound by the bill of lading.

The defendant became owner of the shipment and was the named consignee. He did not take delivery of the goods but sold the goods subject to the payment of freight. He, of course, became bound by the terms of the bill of lading in doing this, but his liability does not extend beyond the terms of the'provision of the bill of lading under which he is held liable.

The plaintiff knew of the sale and delivered the goods to the purchaser without collecting the freight. Section 1 of the terms of the bill of lading provides that the owner or consignee shall pay the freight, but it has the further provision in the same sentence that the railroad shall not deliver or relinquish possession at the destination of the property covered by the bill of lading until all tariff rates and charges thereon have been paid. The named consignee and owner, in disposing of the property and notifying the railroad of the sale, may rely upon this provision as protecting him against liability for the payment of the freight.

The case of New York Central Railroad Co. v. Rose Lumber Co., 234 N. Y. 261, which has been relied upon as rendering the named consignee liable where the property was delivered to a third person, is not an authority covering this case. In that case the delivery to the third person was upon order of the consignee, and it might well be that the railroad might assume that the person to whom delivery was made was merely the agent of the consignee. The court, in its opinion states, in referring to the notice which the defendant gave to the railroad company advising them as to the delivery to the third person, that the language in the letter was not contractual, and says: “It is unnecessary to consider what would be the rights of the parties if the plaintiff had been chargeable with notice before the delivery of the goods by it, that the defendant was not the owner of the goods.”

I therefore find that the defendant, on notifying the railroad company that the goods had been sold subject to the payment of freight, was released from liability for the payment of freight under section 7 of the terms of the bill of lading, it being the duty of the plaintiff to collect the freight from the new owner on delivery to him, or from the consignor.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HAROLD BROWNE, PLAINTIFF IN ERROR.
    Decided December 6, 1928.
    Before Justices Trencbard, Kaltsch and Lloyd.
    For the plaintiff in error, Theodore Strong.

    For the defendant in error, John E. Toolan, prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was convicted in the Middlesex County Qnarter Sessions on an indictment, based on section 51 of the Crimes act, charging him with lewclness. The judgment prononneed on this conviction is that the plaintiff in error he placed on probation for the full term prescribed by law.

The case is before .us for review on strict writ of error and bills of exception.

The record discloses assignments of errors and additional assignments of errors, and then a statement, which is as follows : “Said plaintiff in error, having caused the entire record of the proceedings at the trial to be certified and returned with this writ of error, hereby specifies the following additional causes upon which it relies for a reversal of said judgment,” &c.

This statement is followed by twenty-five reasons for a reversal. These reasons cannot be considered.

There is nothing in the printed case which indicates that the cause has been brought up for review under the one hundred and thirty-sixth section of the Criminal Procedure act.

The review of the judgment will therefore be confined to the errors properly assigned and argued in the brief of counsel for plaintiff in error.

It is not denied that the act which the plaintiff in error was charged with having committed, constituted lewdness under the statute.. The defense interposed was a denial of the commission of the act.

The only witness produced at the trial to testify to the commission of the act was the complainant, a boy of about eleven years of age. If the jury believed his testimony it was sufficient to warrant the conviction of the accused of the crime of which he stood indicted.

The denial by the accused of the commission of the crime presented a factual question, which was in the province of the jury to decide.

Taking'up the brief of counsel we find he seeks to discuss, under his reasons for reversal, questions which he would have been entitled to raise if the case were brought here for review under the one hundred -and thirty-sixth section of the Criminal Procedure act, but as this does not appear to be'so, the reasons presented must be ignored.

The only reference in the brief to any assignments of errors is the statement of counsel of plaintiff in error; “that owing to the press of haste the assignments of errors and the ex1 ceptions'were much confused. The reasons for reversal (page 45) and tlie additional reasons (page 49) will be taken up in their order, many of them embodied in ihe assignments of errors.” And the further statement of counsel, at the conclusion of the brief, as follows: “The foregoing reasons are also relied on by way of assignments of errors when embodied in them.”

This latter statement assumes that the court is to go through the record and ascertain what reasons presented in the printed ease, and in the brief of counsel, properly embody assignments of errors.

This is not the function of a court. Counsel must present his assignments of errors in such form that each of them shall point out specifically the error relied on.

None of the assignments of errors is specifically argued in the brief of counsel before us, except the one that assigns that the verdict is against the weight of the evidence. We have read the testimony and find no merit in that contention. This leads to the result that the judgment must be affirmed.

Judgment is affirmed.


author: Pee Cubiam.

text:
    GREAT FALLS POWER COMPANY AND DUKE POWER COMPANY, PROSECUTORS, v. LEON A. ANDRUS AND CIRCUIT COURT, IN AND FOR COUNTY OF ESSEX, RESPONDENTS.
    Argued October term, 1928
    Decided December 6, 1928.

      Before Justices Misttubn, Black and Campbell.
    Eor the prosecutors, J ohn Milton.

    Eor the respondents, Carlo D. Celia.

   Pee Cubiam.

The writ of certiorari in this case brings up a state of facts substantially similar to those existing in number 218 of the present term, excepting that the petition for the appointment of the appraisers was submitted on January 3d, 1928. The thirty-day limit within which to make the application expired on January 2d, 1928, which was a legal holiday under the provisions of the laws of this state.

The reason urged for a reversal of the situation presented by the action of the court below is that the petition was presented out of time. In Atlantic City v. Feretti, 70 N. J. L. 489, it was held by this court that the Holiday act did not interdict sessions of the court on a legal holiday, but that its effect was to make holidays dies nouj as are Sundays, in so far as the transaction of business in the public offices of the state or county is concerned.

The common practice in commencing suits by petition is to file the petition with the clerk of the court, and it has been held that to file a petition in the clerk’s office is to “apply by petition to the court.” Hudson Electric Light Co. v. Town of Hudson (Mass), 40 N. E. Rep. 109.

The court not being in session on January 2d, the petitioner might therefore have filed his petition with the clerk, were it not that the statute made the day dies non.

In Cressy v. Parks, 75 Me. 387; 46 Am. Rep. 406, it was observed: “The true rule on this subject is laid down in In re Gosweiler’s Estate, 3 Penn. 200, as follows: ‘Whenever by a rule of the court or an act of the legislature a given number of days are allowed to do an act or it is said one act may be done within a given number of days, the day on which the rule is taken or the decision is made is excluded, and if one or more Sundays occur within the time they are counted, unless the last day falls on Sunday, in which case the apt may be done on the next day.’ To the same effect is the opinion of the Supreme Court of Rhode Island in Barnes v. Eddy, 12 R. I. 25.”

The case of Edmundson v. Wragg, 104 Pa. St. 500; 49 Am. Rep. 590, is to the same effect.

The liberality of view expressed in these cases upon the point raised herein is such as to lead us to the result that the action of the Circuit Court in this respect should be affirmed, and the writ of certiorari is therefore dismissed.


text:
    THE TOWNSHIP OF NEPTUNE, IN THE COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION, AND THE BOARD OF HEALTH OF NEPTUNE, PROSECUTORS, v. CITY OF ASBURY PARK, A MUNICIPAL CORPORATION, DEFENDANT.
    Argued October term, 1928
    Decided December 6, 1928.
    Before Justices Mintujin, Black and Campbell.
    Por the prosecutors, Cook £ Stout.

    Por the defendant, Durand, Ivins £ Carton.

   Per Curiam.

A rule to show cause why a writ of certiorari should not he granted in this cause was duly allowed, and the case has been considered in connection with (¡ase number 224 of this term.

The rule was granted for the purpose of reviewing an ordinance alleged to have been passed and adopted by the board of. commissioners of the city of Asbury Park, on the 12th day of June, 1928. The title of the ordinance is “An ordinance authorizing and providing for the construction of a building and necessary apparatus and equipment, for use as an incinerating plant for the purification and disposal of garbage, trash and other waste matter, making an appropriation therefor, and authorizing the issuance of temporary improvement notes or bonds to pay for the same.”

The prosecutor and the defendant are neighboring municipalities in Monmouth county, and the defendant Asbury Park owns a tract of land in Neptune township which it acquired some years ago, and upon which it has erected and maintains an isolation hospital. Joint conferences were held by both the municipalities on the question of the point of location of the incinerating plant on the lands of the defendant and the matter of constructing a new roadway to the location. The reasons assigned by the prosecutors' are four in number, but they all relate to the cognate question and may be considered under the contention that Asbury Park never obtained the consent of the township of Neptune to build an incinerating plant for the purification of garbage, &c., within the territorial limits of Neptune township, and the ordinance is therefore ultra vires.

Briefs on both sides have discussed the merits of this legal proposition at some length, but we do not find it necessary, as we view the case, to do more than state that the state of the case shows that the ordinance was approved on second reading June 12th, 1928 (Exhibit A, state of the case, pages 5 and 6), with the date for final reading and passage fixed for June 26th, 1928.

We do not find anything in the record which would lead us to infer that the ordinance was taken up and considered by reading and finally passed on June 26th, the day to which the matter was adjourned for final passage. Our inference from the record therefore is that the ordinance was never finally passed and that the application for this writ is therefore premature and must be denied.

The rule to show cause will therefore be discharged.


text:
    ARTHUR FREILITZSCH, PROSECUTOR, v. BOARD OF EDUCATION OF THE CITY OF BAYONNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, RESPONDENT.
    Argued October term, 1928
    Decided December 6, 1928.
    Before Justices Mjntuen, Black and Campbell.
    For the prosecutor, Charles Bubenstein.

    For the respondent, James Benny, city counsel.
   Pee Cubiam.

The hoard of education of the city of Bayonne appointed the prosecutor herein as chauffeur to its superintendent of schools at a salary of $2,100 per year beginning May 24th, 1926. On May 19th, 1927, the board of education, by resolution, terminated the prosecutor’s employment as of May 23d, 1927.

The prosecutor appealed to the commissioner of education and to the state board of education, and thereafter was granted this writ to review the resolution terminating his employment.

His claim is that being an honorably discharged veteran of the World War at the time of his appointment he was protected from removal from his employment by virtue of the Soldiers’ and Sailors’ Tenure of Office act, commonly referred to as The Veteran act.

The respondent contends that The Veteran act as amended did not at the time of the prosecutor’s appointment, or at any time since that period, include employes of boards of education.

The original act (Pamph. L. 1907, p. 37) did not include employes of boards of education, nor did the amendment thereto. Pamph. L. 1919, p. 289.

In 1922 (Pamph. L. 1922, p. 395) the amendment of 1919 was amended to include within its scope “any person now holding a position or office under any board of education of this state.”

In 1926 (Pamph. L. 1926, p. 477) an act was passed omitting mention of employes of boards of education, and including within its protection, inter alia, members of the New Jersey state militia who had served in the World War, and who had received honorable discharges.

The 1926 enactment was entitled’ “An amendment to an act to amend an act entitled ‘An act regarding soldiers, sailors and marines honorably discharged from the United States service,’ approved March 27th, 1907.”

Section 1 of the act provided: “Section 1 of an. act entitled fAn act regarding soldiers, sailors and marines honorably discharged from the United States service, approved March twenty-seventh, one thousand nine hundred and seven, and amended April eleventh, one thousand nine hundred and nineteen,’ is hereby amended,” &c.

The prosecutor contends that the object of the act was to amend the act of 1919; but we observe that that intention was not expressed or embraced in the title, and therefore the argument violates the constitutional inhibition that every law shall embrace but one object, and that shall be expressed in the title.

The objection thus raised to the title of the act would have been met by adding at the end of the title the words “which said amendment was approved April 11th, 1919.”

In Moore v. Burdett, 62 N. J. L. 163, it was held that the date of the passage or approval of an act need not be inserted in the title of a repealing act.

The rule of law governing this subject is contained in the following statement from a recognized authority: “The general rule is that where an act is amendatory or supplemental of a former act, if the subject of the original act is sufficiently expressed in its title and the provisions of the amendatory or supplemental act are germane to that subject, it is sufficient that the title of the amendatory or supplemental act contains a specific reference to the original by its title and declares the act to be an amendment or supplement to the original act.” 25 R. O. L. 869.

So it has been held in this state that it is enough if the title is so phrased as to give sufficient notice to the legislature and (die public as reasonably to lead to an inquiry into the body of the bill to ascertain what changes are proposed in the existing law.” Schmalz v. Wooley, 57 N. J. Eq. 303.

In pursuance of the argument of the prosecutor we have considered his contention that the act does not comply with the constitutional provisions as to the entitling of acts, and in the reasons so urged by him we find no merit.

The next contention advanced by the prosecutor is that the acts of 3922 and 1926 are independent and cumulative on the subject. While this may be conceded for the purposes of argument, it is a general rule of statutory construction that when a later inedependent statute deals generally and fully with the subject-matter of an earlier statute it affords decided evidence of a legislative intent to abrogate and repeal the older legislation. Haynes v. Cape May, 52 N. J. L. 180; Roche v. Jersey City, 40 Id. 257; DeGinther v. New Jersey Home, &c., 58 Id. 354.

The acts of 1922 and 1926 are both, in effect, amendments of the original act of 1907, and manifestly the later amendment must prevail.

In view of these conclusions regarding the construction of this legislation we find it unnecessary 'to consider the question of the character of the relator’s employment, as to whether it was an office or a position, and the term of the employment, as discussed in the briefs.

The result of our consideration of the question presented is that the writ of certiorari should be dismissed.