author: . G-ummeke, Chief Justice.

text:
    HARRY UNGER, PROSECUTOR, v. ABRAHAM HOCHMAN AND THE DISTRICT COURT OF THE CITY OF EAST ORANGE, RESPONDENTS.
    Decided May 10, 1926.
    Chattel Mortgages—Conditional Bilis of Sale—Judgment—Levy —Claim of Property Under Levy—Question Turned on the Construction of Two Instruments, Whether They Were Chattel Mortgages or Conditional Bills of Sale—Instruments Were Called Bills of Sale, but Provision was Made for the “Vendor” to Retain Property Under Lease and Which Provided for Payment of Debt in Monthly installments; This Instrument was Recorded—Chattel Mortgage Affects Transactions, Where the Title, Not the Possession, is Transferred, Conditional Bill of Sale Operates Where the Possession, Not the Title is Transferred—Present Transaction Operated as a Chattel Mortgage Though Denominated a Bill of Sale, and as the Affidavit was Defective it may be Attacked by a Judgment Creditor.
    On certiorari.

    Before G-umheke, Chief Justice, sitting alone, by consent of counsel.
    For the prosecutor, Harry TJnger, pro se.

    For the respondents, Harry Oreen.

   The opinion of the court was delivered by

. G-ummeke, Chief Justice.

The respondent Abraham Hochman recovered a judgment in the East Orange District Court against the Jersey Leather Trimming Company. An execution was issued on this judgment, and a levy made on property of the defendant. The prosecutor then filed a claim of property, and the question of the validity of the claim was tried out in the District Court, with the result that a judgment was entered in favor of Hochman, the plaintiff in that action. The present writ was allowed for the purpose of testing the validity of that judgment.

My examination of this case leads me to the conclusion .that it was properly decided, for the reasons stated in an opinion filed in the District Court by M. E. Judge, the judge of that tribunal, of which the following is a copy:

“Plaintiff in the above-entitled case secured judgment, issued execution and levied upon the property of the defendant. Harry Unger filed a claim of property and called a jury. As the only question involved turned upon the construction of two documents, as to whether they constituted a chattel mortgage or- a conditional bill of sale, the court dismissed the jury and reserved decision on the point of law.

“The judgment creditor claims that the documents in question constituted a chattel mortgage, and, as such, was void, because of the absence of an affidavit of consideration. Claimant asserts that they should be construed as a conditional bill of sale.

“While the distinction between a conditional bill of sale and a chattel mortgage is a somewhat technical one, I have come to the conclusion, after a careful study of the cases, that the documents amounted to a chattel mortgage.

“There was a real estate mortgage on the property of the defendant held by the claimant, Mr. Unger, and, in consideration of the cancellation of this real estate mortgage, defendant gave a bill of sale, absolute on its face, to Unger, and Unger gave back what purported to be a lease providing that defendant should pay a certain amount each month for a period of six months, as rent of the chattels covered by the bill of sale, $500 to be paid the first month and $300 each month thereafter, payment of which was covered by notes, and, if all payments were made, at the expiration of the period and upon a further payment of $236.04. Unger was to transfer his title back to the defendant Jersey Leather Trimming Company. ...

“■While this transaction purported, on the face of it,' to be a bill of sale, I think, under the decisions, it amounted to a chattel mortgage.

“The Chattel Mortgage act covers transactions where the title, but not the possession, is transferred; the Conditional Sales act operates upon transaction where the possession, hut not the title, is transferred. In re B. & B. Motor Sales Corp., 277 Fed. Rep. 808.

“In the present case the Leather Trimming Company had possession of the goods in the first instance and transferred their title to Unger, and Unger gave back what is called an agreement of lease, which was recorded as a chattel mortgage, which merely provided for the payment of the debt in installments. The title, not the possession, was what was transferred, and it was designed solely to secure the payment of money. The purpose of the transaction is further indicated by the fact that it replaced another mortgage on the realty, which tends to show that it was meant to be a mortgage on the chattels.

“In Hastings v. Fithian, 71 N. J. L. 311, it was held that a bill of sale made by K. & S. to Eithian, and a certain writing simultaneously given by Eithian to K. & S., which was an agreement by Eithian to turn over to K. & S. the net proceeds from the sales of the goods mentioned in the bill of sale, after Eithian had repaid himself advances previously or thereafter made, constituted a chattel mortgage, which was held to be invalid because not recorded. The court said:

“ 'The transaction, therefore, presented all the elements that have ever been deemed necessary to constitute a mortgage, an indebtedness, a transfer of property by the debtor to the creditor to insure the payment of the debt, and a right in the debtor to have all that remains after the debt is paid. Those circumstances inevitably create a right to redeem after the debt is paid.’ Citing Shields v. Lozear, 34 N. J. L. 496; Crane v. DeCamp, 6 C. E. Gr. 414; Pace v. Bartles, 2 Dick. Ch. Rep. 170.

“The court then distinguished the case of Wilmerding, Hoguet & Co. v. Mitchell, 42 N. J. L. 476 [cited by claimant in this case], saying:

'"The instrument, claimed to be merely a mortgage, gave the creditors other rights than that of making their debt out of the property, and for that reason was held not to be a mortgage; but no such condition exists here.’

“In that case Wilmerding, Huguet & Company were supplying raw material to J. Wade & Company, and had also advanced, from time to time, a considerable sum of money. J. Wade & Company needed money to complete the stock of raw material on hand, and executed an absolute bill of sale of all chattels to the Wilmerding-Huguet Company. The document then went on to provide that the Wilmerding-Huguet Company should continue to supply raw material, should sell the finished product, and, after deducting all outlays and charges, pay the excess, if any, to' the J. Wade & Company, as full compensation for their services. The court, in that case, said:

“ 'Whenever a transaction of this character resolves itself into a security for a debt it is a mortgage. The right of redemption must exist to constitute a mortgage, so that the debtor shall be entitled1 to a release of his property on the payment of the debt. The form of the conveyance is not a controlling circumstance, where the right of redemption is established. In this agreement, the right to redeem, upon the payment of a sum due to the plaintiff, is absent. It was a continuing agreement by the express terms of it. * * * Plaintiff could have successfully resisted any attempt of Wade & Company to take the goods off their hands by a tender of the sum found due to them upon an accounting.’

“In other words, the court held that there was something more involved than the arrangement to secure the loan of money, that there was a real, bona fide and continuing contract in addition, on the one side to supply raw material and sell the finished product, and upon the other to manufacture the raw material into the finished product.

“It seems to me that this case is distinguished from the case under consideration, also, because there is nothing in the so-called lease but an agreement to pay for the use of their own chattels, and a provision to redeem when the full amount was paid. See, also, Straus v. Commercial Delivery Co., 113 Atl. Rep. 604; affirmed, 92 N. J. Eq. 290.

“While, as stated before, the question as to whether a transaction is, in fact, a chattel mortgage or a conditional sale, is a somewhat close one. I think the cases cited above, and the general trend of the decisions in this state, is to hold that if a transaction is, in fact, a chattel mortgage, the act requires both a verification by the affidavit of the mortgagee and a recording, and if there is a failure to comply with either of the above requirements, it may be attacked by a judgment creditor of the mortgagor, who has secured a judgment and issued execution, as in this case.

“In accordance with the above judgment for possession will be entered in favor of Hochman, the judgment creditor, and against the claimant herein.”

For the reasons stated in that opinion, the judgment under review will be affirmed.


source: Caselaw Access Project

author: Per Cubiam.

license: Public Domain

text:
    MICHAEL T. KULIGOWSKI, APPELLANT, v. WILLIAM E. McCULLOUGH, RESPONDENT.
    Submitted January 22, 1926
    Decided May 7, 1926.
    Sale of Real Estate—Agent’s Commission—Written Agreement Provided for Payment of Commission if Sale was Consummated—Sale was Never Consummated—Judgment for Defendant Affirmed.
    On appeal.
    Before Justices Parker, Minturn and Black.
    For the appellant, Sol. Kantor.

    For the respondent, Jacob S. Karkus.

   Per Cubiam.

This suit was brought to recover a broker’s commission under a written contract dated October 6th, 1924, for selling the property known as No. 271 High street, Perth Amboy, New Jersey.

The case was tried by the court without a jury, resulting in a judgment for the defendant.

The contract contained this clause:

“1 hereby agree with Mr. KuligowsM, real estate broker, to-pay him a commission of $300 for selling my property known as 271 High St., Perth Amboy, N. J., to Mr. Weisberger, also of Perth Amboy, N. J. Price $15,000, to be paid if title is consummated.

Oct. 6, 1924.

W. E. McCullough.”

The state of the case shows that the title was never consummated.

We think the precise question involved on this appeal is the same as was discussed and decided in the case of Feldman v. Holden, No. 413, January term, 1926.

For the reasons stated in that case, the judgment in this case is affirmed.


author: Pee Ctjeiam.

text:
    RICHARD M. LOTT, RESPONDENT, v. METROPOLITAN AUTO SALES COMPANY, APPELLANT.
    Submitted January 22, 1926
    Decided May 7, 1926.
    Motor Vehicle—Sale—Agreement to Deliver Original Bill of Sale in Compliance With Statute—Bill of Sale Never Delivered— Judgment for Plaintiff Affirmed.
    On appeal.
    Before Justices Parker, Minturn and Black.

      For the appellant, Cohen & Klein.

    For the respondent, William Greenfield.

   Pee Ctjeiam.

This suit was brought to recover $400, paid on the 5th of March, 1925, as part of the purchase price of a 1923 Nash automobile, serial No. 272438, under an agreement to deliver the original bill of sale for the automobile in compliance with the New Jersey statute.

The ease was tried by the court without a jury, resulting in a judgment for the plaintiff for $400. The court found that the bill of sale as agreed was never tendered or delivered. As we read the record the questions in dispute were questions of fact for the trial court to determine. That court found for the plaintiff and we find no reversible error in the record. The case is clearly distinguished from that of Asotzky v. Kropnitzky, 98 N. J. L. 344. The judgment of the District Court is affirmed.


text:
    ABE FELDMAN ET AL., RESPONDENTS, v. JACOB HOLDMAN, APPELLANT.
    Submitted January 22, 1926
    Decided May 7, 1926.
    Sale of Real Estate—'Broker’s Commissions—Agreement Provided for Payment of Commission Upon Acquirement of Title and Passage of Deed—Deed Did Not Pass—Judgment for Plaintiff Reversed.
    On appeal.
    Before Justices Paeicee, Mintuen and Black.
    For the appellant, William Greenfield.

    For the respondents, David K. Bernstein.

   Pee Ctjeiam.

This suit was brought to recover a broker’s commissi on under a written contract, dated April 19th, 1925, to sell the property known as Nos. 931, 933 Bergen street, Newark, New Jersey.

The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $300.

The contract contained this clause: “It is expressly understood and agreed that I shall not be liable for the payment of the aforesaid commission unless and until I, my heirs or assigns, shall acquire title to said premises, and a deed, therefore, pursuant to the terms of the contract, bearing even date herewith, made between the undersigned and Messrs. Einkelstein & Kaplan, the owners thereof.” The state of the case sent up in the record shows that no contract for the sale of the property was ever signed,- or- the title acquired, or a deed for the property tendered or delivered.

In the case of Lehrhoff v. Schwartsky, 2 N. J. Mis. R. 353; 125 Atl. Rep. 496, it was said, undoubtedly, a vendor may protect himself against paying commissions until an actual sale of the property has been made by the passing of title by using words to that effect.

The meritorious question before us, therefore, is, Does this paper-writing clearly express the intention of the parties that the brokers agreed, if the client concluded at any stage of the proceedings not to take advantage of the fruits of their labor, he would not have to pay them a commission? The contingency seems to us to be so plainly put that we ought to construe the paper as intended to meet the precise situation which has arisen. So construed, the plaintiffs are not entitled to a commission. A like question is involved in the case of Kuligowski v. McCullough, No. 423, of the present term.

This leads to a reversal of the judgment under review.


author: Pee Cukiam.

text:
    BEATRICE GREENBERG, ADMINISTRATRIX, ETC., RESPONDENT, v. LOUIS WEISBERG ET UX., APPELLANT.
    Submitted January 22, 1926
    Decided May 7, 1926.
    Sale of Real Estate—Recovery of Deposit—Vendor Agreed at His Own Expense to Secure a Building and Loan Mortgage —This He Failed to do—Plaintiff's Judgment to Recover Deposit Affirmed.
    On appeal.
    Before Justices Paekek, Mintukn and Black.
    Por the appellant, Isserman & Isserman.

    Por the respondent, Aaron Levinsione.

   Pee Cukiam.

This suit was brought to recover a deposit of $1,000 paid under a written agreement dated May 15th, 1924, for the sale and purchase of premises known as Nos. 34%, 36, 38 Yesey street, Newark, New Jersey, for $17,500. Title to be passed on Jufy 15th, 1924. The contract provided that the defendants were to procure, at their own expense, a building and loan mortgage for $8,000; that if the defendants were unable to procure the mortgage, then, at the option of the plaintiff, the contract was to become null and void. The case was tried in the Essex Connty Circuit Court, resulting in a directed verdict for the plaintiff.

There are three grounds of appeal filed; the first two refer to the overruling two questions, both of which were designed to change or modify the terms of a written contract by parol in violation of the well-established rule of evidence. Johnson v. Buck, 35 N. J. L. 338. This was not error. The third ground of appeal, error in directing a verdict by the trial court in favor of the plaintiff. The undisputed evidence shows the failure to close the title was because the defendant’s failure to comply with the terms of the contract as to the amount of mortgage which they were to obtain before conveying the property. It was to be subject to that mortgage, viz., $8,000, which the plaintiff refused to accept otherwise. This was not error.

Finding no error in the record the judgment of the Essex County Circuit Court is affirmed.


author: Per Curiam.

text:
    KAZIMIERZ LAZAREK ET UX., RESPONDENTS, v. AARON SHAPIRO, TRADING, ETC., APPELLANT.
    Submitted January 22, 1926
    Decided May 7, 1926.
    Assault and Battery—Action Grew Out of a Sale of Furniture on Installment Plan—Judgment for Plaintiff Affirmed.
    In tort.
    Before Justices Parker,- Mint den and Black.
    For the appellant, William A. Lord.

    For the respondents, William Greenfield.

   Per Curiam.

This case was brought in the First District Court of Newark to recover damages for an alleged assault and battery upon Stella Lazarek, wife of the plaintiff Kazimierz Lazarek. The case was tried by the court without a jury resulting in a judgment for the plaintiffs for $100.

The cause of action grew out of the sale of furniture to the plaintiffs on the installment plan. A mistake had been made as to the amount of money due.

The state of the case set up on appeal shows that the questions involved on the trial of the case were questions of fact for the trial judge to determine. We find no error in the record and no legal reason for disturbing the judgment.

The judgment of the District Court is therefore affirmed.


author: Pee Cubtam.

text:
    ESTHER E. HOUGH, PLAINTIFF, v. WILLIAM E. OGDEN ET AL., DEFENDANTS.
    Submitted January 22, 1926
    Decided May 7, 1926.
    Conspiracy—To Retain Plaintiff in Hospital for Insane—Verdict for Plaintiff Alleged to be Against Weight of Evidence and Excessive—Held, Not to be Against Weight of Evidence, but to be Excessive and Ordered to be Reduced—Action Against Two Physicians.
    On rule to show cause.
    Before Justices Paeicbb, Mintukn and Black.
    For the plaintiff, Ward & McGinnis.

    For the defendants, Mackay & Mackay and Edwards & Smiih.

   Pee Cubtam.

The trial of this case resulted in a verdict of $5,000; under the charge of the trial court this was compensatory damages only.

The defendant obtained a rule to show cause reserving the exceptions taken at the trial. Two reasons are assigned for a new trial—first, because the verdict is contrary to the weight of the evidence; second, because the Verdict of the jury is excessive. Our reading of the evidence leads us to the conelusion that the verdict is not against the weight of the evidence, but that it is excessive and should be reduced to $3,000. The suit was brought against the defendants and two others charging a conspiracy to have the plaintiff confined in the state hospital for the insane at Morris Plains. The defendants were the physicians who signed the certificate, which is the basis of the suit under Pamph. L. 1918, pp. 343, 372, §§ 404, 405. The plaintiff was taken from the Bergen county jail on May 14th, 1921, to the hospital at Morris Plains and released and discharged by order of Judge Zabriskie, of the Bergen County Court of Common Pleas, on July 14th, 1921, as not insane. There had been a previous hearing before Vice Chancellor Stevenson on June 7th, although, no adjudication as to her sanity was made, she was released in the custody of her father. She was thus confined twenty-one days. As stated, the verdict is not against the weight of the evidence. There .is ample evidence that these defendants failed in the performance of an important and serious duty under the act. Pamph. L. 1918, p. 372, §§ 404, 405. But as the jury found by their verdict there was no malice, we think a reading of the entire case shows that a verdict of $5,000 is excessive. If the plaintiff will remit the excess, the verdict may stand for $3,000, in which case the rule will be discharged, otherwise it will be made absolute as to damages only.


author: Pee Ctteiam.

text:
    WALTER F. REINHAUS, RESPONDENT, v. WILLIAM PATRICK, APPELLANT.
    Submitted January 22, 1926
    Decided May 7, 1926.
    Negligence—Injury to Automobile—Defendant Filed Counterclaim—Judgment for Plaintiff—No Reversible Error Found.
    On appeal.
    For the appellant, Qollins & Corbin.

    For the respondent, Feinberg & Feinberg.

   Pee Ctteiam.

This suit was brought in the Bayonne District Court to recover damages for injury to an automobile caused by a collision with the defendant’s automobile on the 13th of September, 1925, on Broadway and Sixteenth street, Bayonne. The defendant filed a counter-claim. The case was tried by the court without a jury, resulting in a judgment for the plaintiff for $500. The questions involved were questions of fact. We find no reversible error in the record in admitting alleged illegal evidence under the case of Hintz v. Roberts, 98 N. J. L. 769, or in giving judgment for $500 for the plaintiff. The judgment of the District Court is affirmed.


text:
    MICHAEL ZANZONICO, RESPONDENT, v. YELLOW CAB COMPANY, A CORPORATION, APPELLANT.
    Submitted January 15, 1926
    Decided May 4, 1926.
    Negligence—Taxicab Collision With Bicycle—Bicycle is a Vehicle Having Legal Rights of a Vehicle, and Driver of Cab was Required to Yield Right of Way to Another Vehicle Com-ing From His Right—Plaintiff was Not Obliged to Stop—No Contributory Negligence Shown.
    On defendant’s appeal from the District Court.
    Before Justices Parker, Minturn and Black.,
    Eor the respondent, Anthony A. Calandra.

    Por the appellant, Carl T. Freggens.

   Per Curiam.

. The plaintiff recovered a judgment for damages for personal injuries sustained by reason of a collision with an automobile owned by the defendant operated by one of its servants coming into collision with a bicycle upon which the plaintiff was riding. The sole ground of appeal is that the trial court, at the close of plaintiff’s case, refused to grant a motion for nonsuit made upon the ground that plaintiff was guilty of contributory negligence as a matter of law.

The plaintiff was proceeding southerly in Wallace street, Newark, on his bicycle, and, coming to Bank street, saw the defendant’s automobile coming up at a fast rate of speed on his.left one hundred feet or so away. Plaintiff did not stop to let the automobile pass him, but went on and came into collision with the right front wheel of the motor.

The motion to nonsuit for contributory negligence necessarily concedes primary negligence on the part of the driver of the automobile. Apparently, plaintiff saw it in time to stop; and it appeared, without contradiction, in the case, that the sight of plaintiff’s loft eye was somewhat impaired. The argument seems to he that the. plaintiff should either have stopped and let the motor have the right of way to which by law the plaintiff was entitled if he arrived at the place of crossing in dne time; or, secondly, that the plaintiff ought to have kept his vision fixed on the defendant’s motor to the exclusion of other objects and dangers.

Our examination of the ease leads us to conclude that there was a question of fact’ in regard to contributory negligence which was for the determination of the judge sitting as a jury. His bicycle is recognized by law as a vehicle, and, consequently, had the rights of a vehicle under the Traffic act. This being so, the driver of the motor was required to yield the right of way to another vehicle coming from his right under normal conditions. The case of McCormick v. Hesser, 77 N. J. L. 173, is relied on by appellant, but this is not controlling, because it was the case of a pedestrian. The present case falls more nearly within the lines of Minarcsik v. Blank, very recently decided in this court, 4 N. J. Adv. R. 515. Contributory negligence being a defense, the burden of proof was on the defendant, and, under well-settled principles, if there was any question of fact to he determined in connection with the claim of contributory negligence, the judge’s finding thereon is conclusive upon this court.

The judgment will accordingly he affirmed.


text:
    JACK RUBENSTEIN, PROSECUTOR, v. GEORGE P. NIMMO, SHERIFF. CLARENCE MILLER, PROSECUTOR, v. GEORGE P. NIMMO, SHERIFF.
    Argued April 20, 1926
    Decided May 8, 1926.
    On habeas corpus.

    Before Justice Parker.
   I conclude that on the face of the papers before me, these men are not legally charged with a criminal offense; they will, accordingly, be discharged and the bail exonerated.


text:
    JERSEY LAND COMPANY, A CORPORATION, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted January 30, 1926
    Decided May 16, 1926.
    Zoning—Garage in Restricted Territory—Testimony was Taken From Which it Appears That the Appellants are Willing to Agree That the Garage Shall be Used Only for Renting for the Storage of Private Cars and That the Entrance Shall be Arranged in a Particular Place—Nature of Factual Situation Debatable, and Peremptory Writ Not Justified but Alternative Writ May Issue.
    On rule to show cause why a writ oí mandamus should not issue;
    Before Justices Trenchard and Katzenbach.
    Eor the relator, Leber & Buback.

    Eor the respondents, Walter C. Ellis.

   Per Curiam.

This is a rule directed to the building inspector of East Orange and the city of East Orange, requiring them to show cause why a writ of mandamus shall not issue commanding them “to issue a permit to Jersey Land Company for the erection of a garage building upon a plot of land situate in the city of East Orange” and described in the rule by metes and bounds, and thereby showing a front upon both Park avenue and Spring street.

Leave was given in the rule to take testimony, and testimony was taken.

The application for the permit is not printed in the record, and neither are the plans laid before us. But by the depositions it appears generally that an application and plans were presented to the inspector, and he refused to issue the permit upon the ground that the property was by ordinance zoned against a public garage, and the ordinance returned shows that is so. Certain parts of the testimony tend to show that the garage building proposed was intended to be erected and used as a public garage. Eelator argues that, in any event, such ordinance provisions are legally ineffective to justify a refusal of the permit. It also argues, and its depositions in certain parts tend to show, that the garage proposed is not a public garage, but a private garage, and private garages under certain conditions named in the ordinance it appears are allowed by the ordinance in the zone in which relator’s property lies. Whether the circumstances of the present ease are such as to permit the erection of a private garage is uncertain, under the evidence. We have also indicated that it is uncertain, under the evidence, whether the use intended and proposd is for a public garage or a private garage, some of the evidence indicating the former and some the latter. In this connection we are informed by the depositions of one of the relator’s witnesses that the application for the permit had a'notation that the applicant was willing that the “permit be granted upon condition that there would not be kept, stored or sold in the garage any gasoline or other inflammable substances.” At one point in the depositions the relator agrees that it “is willing to accept a building permit for the proposed garage, subject to a further condition that he will not maintain or operate a repair shop in the garage structure, that he will not accommodate any transient patrons, but that the garage will be used exclusively to accommodate pleasure cars privately owned by arrangement with the owners under a monthly tenancy basis,” and further agrees “to accept a building permit on condition that the only entrance to and exit from the garage building be from the easterly side of Spring street.” In connection with the last mentioned topic it is observed that the general tendency of the depositions is to show that the only entrance and exit was to be on Park avenue.

We have said this much for the purpose of pointing out the uncertain and debatable state of the factual situation, and thereby indicating why we do not think that the relator has made out such á case on the present record as entitles it to a peremptory writ of mandamus; but we do think that on this rule to show cause sufficient facts appear to justify the issue of an alternative writ, which, as a matter of practice, may be demurred to, or the return demurred or pleaded to, and an issue made by which the rights of the parties may be determined, and the decision of this court reviewed, if desired. Schnitzler v. New York Transit Co., 76 N. J. L. 171.

An alternative writ of mandamus will issue.


text:
    JACOB TRAUBMAN, APPELLANT, v. JOSEPH L. SEVESTRE, RESPONDENT
    Submitted January term, 1926
    Decided May 17, 1926.
    Landlord and Tenant—Tenant Removed Without Giving Due Notice—Alleged That Landlord Waived Notice—Landlord May Waive Such Notice—Question One of Fact Only—Verdict for Defendant Affirmed.
    On appeal.
    Before Justices Parker, Minturn and Black.
    Eor the appellant, Michael H. Feldman.

    For the respondent, Joseph L. Sevestre.

   Per Curiam.

This suit was brought in the District Court of Elizabeth to recover a month and one-half month’s rent, $81.50, of a five-room apartment in No. 328 Morris avenue, Elizabeth, New Jersey. The tenant moved out without giving the three months’ written notice required by the statute. Pamph. L. 1923, p. 144. The case was tried by the court without a jury, resulting in a judgment for the defendant on the ground that the landlord had waived the notice. This was a question of fact. The statute provides that any provision of a lease whereby a lessee or tenant waives any provision of the act shall be deemed against public policy and void. But the landlord is not denied the right to waive such notice. We do not review questions of fact. Paonessa v. Ruh, 78 N. J. L. 253.

The judgment of the District Court is affirmed.


text:
    JOHN MEYER, PROSECUTOR, v. CITY OF PERTH AMBOY, WILLIAM C. WILSON, MAYOR OF THE CITY OF PERTH AMBOY; PHILIP P. COSTELLO, CITY CLERK OF THE CITY OF PERTH AMBOY, AND AMEDEO SCALA, DEFENDANTS.
    Submitted January 30, 1926
    Decided May 15, 1926.
    Municipalities—Permit to Sell Gasoline and Oil Questioned— Permit Has Expired and Prosecutor Has Not Shown How He Has Suffered—The Mere Fact Governing Body May Have Exceeded Power Gives no Right of Action Unless Prosecutor Has Sustained Some Injury.
    On certiorari, &c.
    Before Justices Teen chard and Katzenbach.
    Eor the prosecutor, Wight, Wight & Golenboclc.

    Eor the defendants, Leo Goldberger.

   Pee Ctjeiam.

The prosecutor seeks to challenge by this writ a permit granted by the mayor and city clerk ol the city of Perth Amboy, on December 29th, 192b to Amedeo Scala, authorizing him to manufacture, store, keep or sell in the premises at the northeast corner of Washington street and Amboy avenue, for a period of not more than one year, gasoline and oil.

Since the permit expired by its own terms, on December 29th, 1925, and the prosecutor did not see fit to submit the matter to this court until the January term, 1926, after the expiration of the permit, it would seem that this court ought not be called upon to decide the purely academic question presented to it.

There is another reason why the writ should be dismissed. One may not review by certiorari proceedings of municipal officers where not shown to have suffered a special injury. Erom an examination of the depositions it is observed that the prosecutor has given no testimony as to how he will suffer any special injury, or any other injury for that matter, nor has any testimony been given by anyone tending to show that the prosecutor will suffer any special injury peculiar to himself. The mere fact, if it be a fact, that the common council, in the passage of the ordinance and the acts of the mayor and clerk under color thereof, have exceeded their power, gives no right of action to the prosecutor until he sustains some special injury. Montgomery v. Trenton, 36 N. J. L. 79; Oliver v. Jersey City, 63 Id. 96; Seaman v. Perth Amboy, 116 Atl. Rep. 22.

The writ will be dismissed, with costs.


text:
    STATE OF NEW JERSEY, EX REL. THE JERSEY LAND COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, RELATOR, v. CITY OF EAST ORANGE, A MUNICIPAL CORPORATION, AND JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted January 30, 1926
    Decided May 13, 1926.
    Zoning—Building Prohibited by the Zoning Ordinance—Case Within ignaciunas v. Risiey—Writ Awarded.
    On rule to show cause why a mandamus should not issue.
    Before Justices Trenchard and Katzenbach.
    For the relator, Thomas Brunetto.

    For the respondents, Walter Q. Bilis.

   Per Curiam.

This is a rule to show cause why a peremptory or alternative writ of mandamiis should not issue commanding the city of East Orange and the building inspector thereof to issue a permit to the relator to build and erect a two-story brick building upon the lot No. 97 Harrison street, in East Orange.

The case comes up on an agreed, state of facts, and it thereby appears that there is no sufficient reason for the refusal of the permit.

It appears that the refusal of a permit was grounded upon the fact that the relator’s proposed building was to contain stores and apartments, and the land in question was zoned against such a building by ordinance, it being in what is described as the “large volume residence district.”

The state of facts discloses plainly that the provision of the ordinance in question is ineffective to bar the relator’s building. Such, we think, is the undoubted effect of the case of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 389, there being no relation at all between the provisions in question and public health, safety and general welfare.

A peremptory writ of mandamus will be awarded.


text:
    E. & M. LAND COMPANY, PROSECUTOR, v. THE BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, NEW JERSEY, AND FREDERIC BIGELOW, SUPERINTENDENT OF BUILDINGS OF THE CITY OF NEWARK, RESPONDENTS.
    Argued January 20, 1926
    Decided May 13, 1926.
    Zoning—Apartment-house in Restricted Territory—House Within Provisions of Tenement-House Law—Arbitrary Provisions of City Pertaining to Size, Lot, etc., Not Within Police Power— Court Unwilling to Say as Matter of Law Without Proof That Apartment-Houses Promote Immorality—Certiorari Not the Proper Remedy to Secure Building Permit.
    On certiorari, &c.
    Before Justices Trainchaed and Katzenbacii.
    Eor the prosecutor, Charles Jones.

    Eor the respondents, Jerome T. Congleton and Charles M. Myers (Fred G. Sticlcel, Jr., on the brief).
   Per Curiam.

This is a certiorari bringing up “a certain decision rendered September 3d, 1925, by the board of adjustment of the city of Newark, New Jersey, relative to an appeal to said board by E. & M. Land Company from the rejection by Frederic Bigelow, superintendent of buildings of the city of Newark, of an application for a permit to erect on Custer place, one hundred feet west of Meeker avenue, on a lot known and designated as 10 Custer place, Newark, belonging to the said companjq a three-story brick apartment-house to be occupied by twelve families.”

The resolution brought up affirmed “the decision of the superintendent of buildings” and denied the application for a permit.

It appears that the apartment-house in question was to be forty feet high, and in the Weequahic Park section of Newark. The plans were approved by the tenement-house commission. The superintendent declined to grant the permit because it violated the limitation of the zoning ordinance as to height, percentage of lot to be occupied and number of families to be housed. We think that these limitations, in the particular circumstances of the present case, are illusory and arbitrary, and are ineffective to bar the building in question. Scola v. Senior, 130 Atl. Rep. 882; Plymouth Co. v. Bigelow, 129 Id. 203; Jersey Land Co. v. Scott, 126 Id. 173. They, obviously, bore no relation to the public health, safety or the general welfare.

In the brief it is argued that these zoning limitations were within the police power, and are justified by increased fire hazard, alleged lack of school facilities and alleged lack of sewerage facilities. These contentions, in circumstances like the present ease, have been, in effect, hitherto decided to be without merit. Ingersoll v. South Orange, 3 N. J. Adv. R. 1407; affirmed, 3 N. J. Mis. R. 335.

It is further said that the zoning against apartment-houses is justified, because they promote immorality. But we are unwilling to say, as a matter of law, and without proof, that apartment-houses may be discriminated' against in a zoning ordinance solely on the theory that they promote immorality.

The action of the board of adjustment in sustaining the refusal of the superintendent of buildings to grant the permit will be set aside. This action, however, does not give to the prosecutor the right to which he is entitled, namely, a building permit for the erection of the building in question. Certiorari is not the proper remedy to secure the prosecutor his rights. Falco v. Kaltenbach, 3 N. J. Mis. R. 333. The proper remedy is mandamus. It seems probable that it will not be necessary for the prosecutor to apply to this court for such writ in view of the position of the respondents, which, as we understand it, is to the effect that if this court holds that the action of the board of adjustment was unwarranted, a permit will be forthwith granted to the prosecutor. The action of the board in affirming the action of the superintendent of buildings of the city of Newark in refusing to issue the permit to the prosecutor is set aside, with costs.


text:
    E. & M. LAND COMPANY, PROSECUTOR, v. THE BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, NEW JERSEY, AND FREDERIC BIGELOW, SUPERINTENDENT OF BUILDINGS OF THE CITY OF NEWARK, RESPONDENTS.
    Argued January 20, 1926
    Decided May 13, 1926.
    On certiorari, &c.
    Before Justices Tbenchard and Katzenbacii.
    For the prosecutor, Charles Jones.

    For the respondents, J eróme T. Congleton and Charles M. Myers (Fred G. Glided, Jr., on the brief).
   Per Curiam.

Our examination of. the record and the briefs and arguments of counsel results in the conclusion that the questions raised in this case are the same as those raised and decided in No. 212 of the present term between the same parties, with the exception that here the application was for a permit to erect a three-story brick apartment-house on premises on the north side of Elizabeth avenue, two hundred feet west of Meeker avenue, to be known as Nos. 459 and 461 Elizabeth avenue, Newark, New Jersey.

The decision in No. 212 controls' this. The observations made in that case are appropriate to this.

The action of the board in affirming the action of the superintendent of buildings of the city of Newark in refusing to issue the permit to the prosecutor is set aside, with costs.


author: Kalisch, J.

text:
    ELEANOR M. STUERWALD, PLAINTIFF, v. DAVID STARR FURMAN, SOMETIMES SPELLED “PFIRRMAN,” DEFENDANT.
    Decided May 11, 1926.
    Bail—Mo.tion to Quash—Affidavit on Which Capias was Based was Entitled in the Cause When no Such Cause was Pending—This is Fatal to Its Validity—Writ is Quashed so That Defendant be Re-arrested.
    On motion to quash. On order for bail.
    Before Justice Kalisch, sitting at chambers.
    For the motion, Furst & Furst.

    Contra, McCarter & Fnglish.

   The opinion of the court was delivered by

Kalisch, J.

This matter comes before me on notice given on behalf of the defendant to the .plaintiff’s attorneys to vacate an order, to hold the defendant to bail, as having been improvidently issued, and in support of'the motion, the following reasons are presented:,

“1. The capias therefore was made on non-sufficient affidavits. 2. The affidavit on which the capias based was ■entitled in the case when no cause was pending. 3. That it does not set forth a cause of action upon which a capias may be issued. 4. That the order of the Supreme Court commissioner fails to adjudicate sufficient cause for holding the defendant to bail.”

The affidavit of the complaint, which is the basis of the order and the issuance of the capias, is styled in the “Supreme Court, Union county, Eleanor M. Steuerwald, Plaintiff, v. David Starr Eurman, sometimes spelled ‘Pfirrman,’ Defendant.” The deposition commences with the averment, “I am the plaintiff in the above-entitled action.” With the exception of the averments that she became acquainted with the defendant, David Starr Eurman, and that from October, 1918, we were known as Mr. and Mrs. David Starr Eur-man,” she refers to him as if he were defendant in an action pending in the Supreme Court brought by the affiant against him, whereas there was no such action pending at the time. Annexed to her affidavit are two affidavits, each of which bears the caption, “Action at Law,” without mentioning the court or parties. The affidavit of John Gregory is made on information and belief, and is of no probative value. The other affidavit, by Esther Elizabeth Meyer, adds no force to the matters set forth in the affidavit of complainant. There are also appended to the complainant’s affidavit an exemplified copy of the marriage license issued in Washington, District of Columbia, to the complainant, and David S. Eurman, a certificate of the city clerk of the city of Newark, certifying to a record in his office of the marriage of the complainant to C. David Pfirrman, on December 3.1st, 1912, a copy of the divorce proceedings instituted by Karl David Pfirrman against Elizabeth Pfirrman, formerly Esther Elizabeth Meyers, on February 11th, 1919, and a copy of the record of its dismissal on the petitioner’s application on May 4th, 1923. All these matters were before the Supreme Court commissioner at the time the application was made to him to hold Eurman to bail to answer unto the complainant in an action at law. It is not pretended that an action at law was pending at the time the affidavits were presented to the commissioner for his judicial determination. The well-settled practice was and is to state in the moving affidavit where an order to hold to bail is applied for preliminary to bringing an action at law, that the complainant or affiant is about to commence an action at law, &c. I am unable to distinguish the legal posture of the instant case from that presented in Potter v. Cook, 30 N. J. L. J. 206, where it was held that to entitle a complainaiit’s affidavit as being in a cause, when no such cause was pending, is fatal to its validity. This legal rule was enunciated by Mr. Justice Joel Parker sitting as a Circuit Court judge, but the soundness of his decision has been recognized by our Supreme Court in several cases, the latest instance of which is the case of Vitalano v. Roffo, 3 N. J. Adv. R. 1135. The other questions raised need not be considered, for the reason that, for the defect pointed out in the moving affidavit, the order to hold to bail may be set aside, and, following the practice adopted in; Perry v. Orr, 35 N. J. L. 302, in order that the plaintiff’s remedy be not defeated, the writ.is quashed, so that the defendant may be re-arrested.


author: Campbell, J.

text:
    HARRY PERLOFF v. ISLAND DEVELOPMENT COMPANY.
    Decided May 10, 1926.
    Sale of Real Estate—Verbal Agreement and Payment of Cash Deposit—Dispute Over Terms of Further Payments and Plaintiff Rescinds and Demands Return of Deposit—Defendant Pleads Terms of Agreement and Presents Factual Situation Not to be Decided by the Court—Parol Agreement for Sale of Lands Cannot be Enforced—If Defendant Refuses to Perform, Plaintiff May Recover Moneys Paid—If Defendant is Ready to Perform He is Entitled to do so and is Not Liable to Repay Deposit—The Terms of Contract, Accordingly, Must be Settled—Answer Will Not be Stricken Out.
    On motion to strike out answer and for rule for summary-judgment.

      For the plaintiff, Biggins & Davis.

    Eor the defendant, Thompson & Hansiein.

   The opinion of the court was delivered by

Campbell, J.

The complaint alleges—

1. That on June 15th, 1925, plaintiff paid to defendant $7,800, being ten per cent, of the purchase price of $78,000 for twenty-two (22) lots to be conveyed to the plaintiff.

2. That the agreement was verbal and beyond the payment of $7,800; the balance of the purchase price was to be secured to defendant by a bond and mortgage for the term of three years, without interest, with all taxes to be paid by the defendant.

3. That on July 20th, 1925, plaintiff received from defendant written, unexecuted contracts of sale for such lots, naming plaintiff and his wife as purchasers and the defendant as seller, and that the terms of purchase set forth therein are not the terms verbally agreed upon, but provided for stated payments over a period of time until fifty per cent. of the purchase price had been paid with the remaining fifty per cent, to be secured by a bond and mortgage payable in three years.

4. Upon discovering this variance between the oral agreement and the proposed written agreements plaintiff demanded of defendant the return of the $7,800 paid, and rescinded his agreement to purchase, and defendant refused to return the said sum of $7,800.

This defendant answered and has asked leave to file an amended answer. I will consider the amended answer, as it is in all particulars identical with the original answer, with the exception of the addition of paragraphs 4 and 5 to the affirmative defenses.

The answer generally denies all the allegations of the complaint.

Under affirmative defenses the defendant pleads—•

1. The cause of action is within the statute of frauds.

2. The terms of purchase were—

Ten per cent, on making the contract.

Ten per cent, in three months.

Ten per cent, in six months.

Ten per cent, in nine months.

Ten per cent, in twelve months, and balance to be secured by a purchase-money mortgage payable in three years.

3. Plaintiff’s laches in repudiating contract prohibited him in so doing.

4. Any contract as alleged by plaintiff was without authority of the board of directors of the defendant.

5. Defendant has been at all times and is willing to perform its contract with the plaintiff, and has never defaulted therein.

A motion has been made to strike out the answer and for summary judgment.

The notice of such motion sets forth—

1. That the general denial contained in it is “frivolous, impertinent and untrue, and is so framed as to hinder, em-. barrass and delay a fair trial.”

2. That as to each of the affirmative defenses they set forth “no valid, legal, just and meritorious defense.” Affidavits in support and in opposition to the motion have been presented.

Defendant urges that this is not the class of action in which a proceeding to strike out the answer and enter summary judgment may be had. While the conclusion reached makes a finding upon this point unnecessary, yet I think there can be no question as to the right to have such remedy. Rule 57 of the Practice act of 1912 and rule 80 of this court, adopted in pursuance thereof, provide “when an answer is filed in an action brought to recover a debt or liquidated demand arising—

“(a) Upon a contract, express or implied, sealed or not sealed * * *.”

The demand, $7,800, is liquidated, being the sum paid to defendant on account of the purchase price, and, if there be a right of, recovery, it is upon an implied contract in law.

But I conclude that the motion to strike out the answer cannot prevail.

Without going into any extended details, the situation is this—

1. Plaintiff alleges a parol agreement of purchase upon certain definite terms.

2. Defendant, at least, denies that the terms of purchase, as alleged by the plaintiff, are, in fact, the terms.

3. From the affidavit proofs upon this motion it may be that defendant will contend that the agreement did not rest in parol, but took the form of a written memorandum known as an Agent’s Receipt.

These are all factual questions which, in my judgment, should not be decided by me upon this motion upon the affidavit proofs before me.

The primary legal principles involved in this matter, apparently, are—

1. That a parol agreement for the sale and purchase of lands is void and cannot be enforced.

2. If the defendant refused to perform such agreement the plaintiff may have his action to recover the moneys paid to defendant. Smith v. Smith, 28 N. J. L. 208 (at pp. 216, 217), and cases therein cited; Eaton v. Eaton, 35 Id. 290 (at p. 293).

In 27 C. J. 350, § 438, it is said: “When the vendor under an oral contract declines to perform and sets up the statute of frauds, an action at law will lie against him for any part of the purchase price which he has received * * *. It is essential to a recovery under the rule that the payment shall have inured to the benefit of defendant; that plaintiff shall not have received the value of the payment from use and occupation or other benefits, and that defendant shall have refused to perform. If the defendant is ready, able and willing to perform his part of the contract he is entitled to do so, and is not liable upon an implied contract to repay what he has received under the contract.”

So, it will be readily seen that it is important -to determine what the contract between the parties is, and, that being determined, then whether defendant has or does refuse to perform according to its terms, or whether, for want of meeting of minds or other cause, no contract arose.

These are all matters involving serious and important questions of fact, requiring solution by a jury under proper instructions as to law applicable.

The application for leave to file the amended answer is granted, and, as this motion has been dealt with as if relating to the amended answer, the motion to strike it out is denied.


author: Per Cubiam:.

text:
    MARY A. O’BRIEN, PROSECUTOR, v. ALBERT A. FREY AND LOUIS F. BUTTNER, ESQUIRE, RECORDER OF THE BOROUGH OF KEANSBURG, COUNTY OF MONMOUTH, STATE OF NEW JERSEY, RESPONDENTS.
    Argued January 22, 1926
    Decided May 11, 1926.
    On application for writ of certiorari.

    Before Justices Tbenoitard and Katzenbach.
    Eor the prosecutor, Kwrkus & Karlcus.

    Eor the respondents, Leo J. Warwick.

   Per Cubiam:.

Our examination of the affidavits discloses that there is presented by the applicant for consideration a fqirly debatable question, and, accordingly, the writ of certiorari will be allowed.


text:
    DAVID L. HELLER, RELATOR, v. TOWNSHIP OF MAPLEWOOD AND REINHART O. OSTERMAN, BUILDING INSPECTOR OF THE TOWNSHIP OF MAPLEWOOD, RESPONDENTS.
    Argued January 22, 1926
    Decided May 11, 1926.
    Zoning—Retail Stores in Residence District—Case Within Ignaciunas v. Risley.
    On alternative writ of mandamus.

    Before Justices Treuchard and Katzenbach.
    For the relator, Howe & Davis.

    For the respondents, Samuel D. Williams.

   Per Curiam.

This is an application for a writ of mandamus. There is an alternative writ, a return to the alternative writ, a demurrer to the return and a rejoinder.

There is thus disclosed a situation as follows: The relator is the owner of a tract of land on the easterly side of Ridge-wood avenue, in the township of Maplewood, having a frontage of fifty feet and a depth of one hundred feet. On this property he wishes to erect a row of three retail stores. The relator duly made application to the building inspector of the town, submitting an application, in writing, with plans and specifications, and tendered the legal fee required. The matter was then referred to the township committee, which refused to grant the permission, and the building inspector then returned the plans, specifications, application and fees.

The reason for the refusal was that the zoning ordinance in force forbids the erection of retail stores on the premises in question, the.property being located in what is known as a “single family residence district.”

We think this case falls directly within the rule laid down in Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 125 Atl. Rep. 121.

We think the relator is entitled to judgment, and that a peremptory writ of mandamus should be awarded.


author: Pbb Cubiam.

text:
    ERNEST S. ROLL, RELATOR, v. TOWNSHIP OF MAPLEWOOD AND REINHART O. OSTERMAN, BUILDING INSPECTOR OF THE TOWNSHIP OF MAPLEWOOD, RESPONDENTS.
    Argued January 22, 1926
    Decided May 11, 1926.
    On alternative writ of mandam.us.

    Before Justices Tbenchabd and Katzenbach.
    Eor the relator, Howe & Davis (Edward L. Davis, of counsel).
    For the respondents, Samuel D. Williams.

   Pbb Cubiam.

This is an application for mandamus. There was an alternative writ, a return to the alternative writ, a demurrer to the return and a rejoinder.

Thereby it is disclosed that the relator is the owner of a tract of land on the east side of Valley street, in the township of Maplewood, having a frontage of about one hundred and three feet. On this property he wishes to erect a row of five retail stores. He made application to the building inspector of the township, submitting an application, in writing, plans and specifications, and tendering the legal fee required. The matter was then referred to the township committee, which refused to grant permission, and the building inspector thereupon returned the plans, specifications, application and fees.

The reason for this refusal was that a zoning ordinance in force forbids the erection of retail stores on the premises in question, the property being located in what is known as a “single family residence district.”

We think this case falls directly under the case’ of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 125 Atl. Rep. 121.

We think the relator is entitled to judgment, and that a peremptory writ of mandamus should be issued.


author: Pee Cueiam.

text:
    ABRAHAM RUDNEVITZ, RELATOR, v. FREDERIC BIGELOW, SUPERINTENDENT OF BUILDINGS OF THE CITY OF NEWARK, AND THE CITY OF NEWARK, RESPONDENTS.
    Submitted January 30, 1926
    Decided May 11, 1926.
    Zoning—Apartment-House and Stores in Residential District— Building Exceeded Height and Size to Size of Lot Provided in Ordinance—Held, That Questions Had Ail Hitherto Been Decided Adversely to Contention of Defendant—Reasons Bore no Relation to Health, Safety and the General Welfare.
    On rule to show cause why a writ of mandamus should not issue.
    Before justices Tbenohakd and Katzenbach.
    Eor the relator, Harry Levm.

    Eor the. respondents, Jerome T. Congleton and Charles M. Myers.

   Pee Cueiam.

This is a rule to show cause directed to the superintendent of buildings of the city of Newark and the city of Newark, requiring them to show cause why a peremptory or alternative writ of mandamus should not issue commanding such superintendent to issue a permit to the relator for the erection of a three-story apartment-house upon lots belonging to the relator on Osborne Terrace, in Newark.

We have before us a brief stipulation of facts showing, amongst other things—(1) that the superintendent of buildings refused a permit on the ground that the building violated the zoning ordinance in that the building provided for stores in a residence zone; (2) that the relator appealed to the board of adjustment and that board refused to consider the appeal and referred the same back; (3) that the superintendent of buildings again refused on the ground that the building would be contrary to the zoning ordinance in that it exceeded the height allowed for the district in which the premises are, and exceeded the percentage of area allowed for a building in the district in which the premises are, and that it did not provide for a set-back, as provided in the zoning ordinance in which the premises are situate.

The questions here presented have all hitherto been squarely decided by the Supreme Court adversely to the contention of the defendants. Thus, the ground upon which the superintendent of buildings refused the permit, in the first instance, was insufficient. Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 389. The several grounds upon which, apparently, the board of adjustment refused to act, and upon which the building superintendent later again refused the permit, were not well taken, because the provisions of the ordinance respecting the height of buildings, the limit of coverage of area by buildings, and the provision for set-back at the point in question, bore no relation to public health, safety and the general welfare in the particular circumstances of the present case. Scola v. Senior, 3 N. J. Adv. R. 1800; Plymouth Co. v. Bigelow, 129 Id. 203.

A peremptory writ of mandamus will be awarded.


text:
    FRED W. SERBE AND F. W. SERBE & COMPANY, INCORPORATED, PROSECUTORS, v. THOMAS McCRACKEN, RESPONDENT.
    Submitted January 30, 1926
    Decided May 15, 1926.
    Workmen’s Compensation—Application for Writ of Certiorari to Review Finding of Compensation Bureau and of Common Pleas Court—No Substance Found in Claim of Lack of Jurisdiction—Proofs do Not Reveal a Fairly Debatable Question of the Intoxication of the Petitioner—Evidence Supports Finding That Accident Did Grow Out of the Employment— Appeal was Properly Dismissed.
    On rule to show cause why a writ of certiorari should not issue.
    Before Justices Trenohard and Katzenbaoh.
    For the prosecutors, Frank G. Turner.

    For the respondent, Meyer M. Semel.

   Per Curiam.

This is a workman’s compensation case, the compensation bureau having found in favor of ’the petitioner, and an appeal to the Court of Common Pleas of Essex having been dismissed and the award of the workmen’s compensation bureau confirmed.

We have now before us a rule to show cause “why a writ of certiorari should not issue to review the proceedings in the workman’s compensation proceeding herein.” We see no reason for granting the writ.

The first point made by the prosecutor is that the workmen’s compensation bureau was without jurisdiction to hear and determine the cause. After considering carefully what has been said upon that topic, we think there is no substance in the point.

The next point is that the proofs show that the accident to the petitioner-respondent grew out of his intoxication, and that his intoxication was the proximate cause of the accident. We have examined the proofs and find there is no fairly debatable question upon this point.

The third point is that the alleged accident to the petitioner-respondent did not arise out of and in the course of the employment. The finding below was that the accident did arise out of and in the course of the employment, and we think that finding is, not only supported by the evidence, but the matter is not fairly debatable.

The fourth and last point is that there was no ground for dismissing the appeal. We think that there was. Such an appeal may properly be dismissed if not prosecuted in accordance with the provisions of the act. This appeal was not so prosecuted, and, we think, was properly dismissed.

The rule to show cause is discharged and the writ denied, with costs.


author: Pee Curiam.

text:
    ABRAHAM RUDNEVITZ AND JACOB RUBY, RELATORS, v. THOMAS J. DOWLING, INSPECTOR OF BUILDINGS OF THE CITY OF ORANGE, DEFENDANT.
    Submitted January 29, 1926
    Decided May 4, 1926.
    Zoning—Stores and Apartment-Houses in Restricted Territory— Plans Conform to Building Code—-Case Within Ignaciunas v. Risley.
    On rule to show cause why a peremptory or alternative writ of mandamus should not be issued.
    Before Justices Tbenchaiid and Katzenbach.
    For the relators, Harry Levin.

      Eor the defendant, William A. Calhoun (Spaulding Frazer, of counsel).
   Pee Curiam.

This is a zoning case. It is before this court upon a rule to show cause why a peremptory or alternative writ of mandamus should not issue to command Thomas J. Dowling, inspector of buildings of the city of Orange, to issue permits to Abraham Eudnevitz and Jacob Euby, the relators, for the erection of certain buildings in the city of Orange. A stipulation of the facts is embodied in the state of the case. From this stipulation of facts it appears that the relators are the owners of five tracts of land on Heywood avenue and Lincoln avenue, in the city of Orange; that they presented to the inspector of buildings of Orange plans and specifications for the erection of buildings containing stores and apartments upon the first and third tracts, and for apartment-houses on the second, fourth and fifth tracts; that the plans and specifications complied with all the requirements of the building code of Orange; that permits were refused because the premises of the relators were allocated in the zoning ordinance of Orange to a residential district in which the erection of stores and apartments was prohibited. In view of the fact that the sole question involved is whether a store and apartment-house or apartment-houses can be located in residential zone, we are of the opinion that this case is controlled by Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 99 Id. 389, and the cases which have followed this decision.

A peremptory writ of mandamus is awarded to the relators.


author: Peb Cubiam.

text:
    THE STATE, EX REL. TENEZ CONSTRUCTION CORPORATION, RELATOR, v. SAMUEL GARNER, INSPECTOR OF BUILDINGS OF THE TOWN OF BLOOMFIELD, AND MAYOR AND COMMON COUNCIL FOR THE TOWN OF BLOOMFIELD, DEFENDANTS.
    Argued January 21, 1926
    Decided May 4, 1926.
    Zoning—Store and Apartment-House in Restricted Territory— Alleged to be Against Public Policy, as the Building Would Cut Off the View of Drivers of Automobles, Thus Promoting the Occurrence of Accidents—Argument Specious—A Residence Would Produce the Same Result, and Owner of Property Cannot be Deprived of His Rights in Such a Manner—■ It is the Duty of Drivers of Motor Vehicles to Use Reasonable Care in Their Driving.
    On rule to show cause why a peremptory or alternative writ of mandamus should not issue.
    Before Justices Thenc haed and Katzenbach.
    For the relator, Harry Levin.

    For the defendants, Raymond F. Davis.

   Peb Cubiam.

This case is before us on a rule to show cause why an alternative or peremptory writ of m,andamus should not issue to direct Samuel Garner, inspector of buildings of the town of Bloomfield, to issue a permit to the relator, the Tenez Construction Corporation, for the erection of a building upon premises owned by the relator at the southeast corner of Franklin street and Berkeley avenue, in the town of Bloomfield. The parties have stipulated the facts.

It is agreed that the relator is the owner of the tract in question; that on May 9th, 1925, it duly submitted plans and specifications for the erection of a brick apartment-house two stories in height, with two stores on the ground floor. The plans and specifications were rejected upon the sole ground that the zoning ordinance of the town of Bloomfield had zoned the town so as to place the relator’s property in a residential district. The property is located at the corner of two prominent thoroughfares. The brief of the respondents presents the argument that if the proposed building is erected it will shut off the view, of the drivers of automobiles driving west of Franklin street and driving north on Berkeley avenue, and thereby increase the danger to life and limb of those riding in the automobiles. Hence, the refusal to issue the permit was justified on the ground of public safety.

This argument is specious because the ordinance does not prevent the erection of residences on the relator’s property. Eesidences would cut off the view of automobile drivers as effectively as an apartment-house with stores upon the ground floor. Furthermore, a landowner cannot be deprived of using his property for the purpose of erecting a building thereon, because the erection of the building would cut off the view of approaching automobiles. It is the duty of the drivers of automobiles approaching a corner to use reasonable care as to the manner of their approach. If this be done accidents will not occur. The case under consideration falls within the decision of Ignaciunas v. Risley, 98 N. J. L. 712, which was affirmed and reported in 99 Id. 389. Counsel for the respondents cites the decisions of the courts of other states in his brief which are not in accord with the decisions reached in this state in the case above referred to. We must adhere to the decisions of New Jersey on this question.

A peremptory writ of mandamus is awarded to the relator.


text:
    ED. FLECKENSTEIN & SONS, PROSECUTOR, v. CLARA RADANKE, RESPONDENT.
    Submitted January 30, 1926
    Decided May 15, 1926.
    Workmen's Compensation—Certiorari to Review Finding of Compensation Bureau and Common Pleas Court—Evidence Examined and the' Various Contentions of Prosecutor Not Sustained—Employe Gave Notice of His Injury, and Going Home was Treated by Physician, Soon After Which Peritonitis, Resulting from the Injury, Caused His Death—Writ Denied.
    On application for a writ of certiorari.

    Before Justices Teenchaed and Katzenbach.
    For the prosecutor, Franlc G. Turner.

    For the respondent, William F. Holmwood.

   Pee Ctjeiam.

This is an application for a writ of certiorari to review the action of the Hudson Common Pleas Court in affirming an award of the workmen’s compensation bureau in awarding compensation to the petitioner for the death of her husband.

The husband of the respondent died June 10th, 1924. Up to February 29th, 1924, he had been employed by the prosecutor. On that day he complained of having been hurt in pulling an elevator cable. It also appears that immediately thereafter he complained to his employer. Prior to that time his health was good and he worked every day. When he complained to his employer his employer told him to go home. He went home and never again returned to his employment. He laid down awhile and then went to the doctor the same evening, complaining of pain in his stomach, which came after the heavy lifting. The doctor advised rest and a bandage. In March he was operated upon, and that disclosed peritonitis due to the injury. He died later as a result of the injury. Such, we think, is the effect of the great weight of the evidence.

We have examined the evidence in view of the various contentions of the prosecutor, which are (1) that there was no accident; (2) that deceased was not injured, in an accident arising out of and in the course of the employment; (3) that deceased did not die from the injury, and (4) that the workmen's compensation court had no jurisdiction. We find no merit in them, and think there is presented no fairly debatable question. .

The writ is, accordingly, denied, with costs.


text:
    SOL. J. WALLACH, APPELLANT, v. LOUIS STEIN. APPELLEE.
    Decided May 21, 1926.
    Corporations—Uniform Stock Transfer Act—Constitutionality— Act Not Challenged in the Trial Court, and Question Cannot be Argued in the Supreme Court for the First Time.
    On petition for re-argument.
    Before Justices Parker, Minturn and Black.
    Eor the appellant, Harry Unger.

    Eor the appellee, Philip J. Bchotland.

   Per Curiam.

Appellant has asked for a re-argument on the ground that a constitutional question, which was first called to the attention of counsel at the main argument in this court, was not discussed by them by supplemental brief or otherwise, because they understood the court would advise them in case argument on that point was desired.

An insuperable difficulty about hearing counsel on this point is that the matter would not be properly before us, because the constitutional question was not raised in the trial court. The Uniform Stock Transfer act, a section of which it is desired to attack, was relied on by that court, and was not challenged as to its validity in any way. That being the case, the question should not be argued here for the first time. Borough of Park Ridge v. Reynolds, 74 N. J. L. 449.

The application for re-argument will therefore be denied.


text:
    THE STATE, DEFENDANT IN ERROR, v. CLEMENS LASOWSKI, PLAINTIFF IN ERROR.
    Argued January 22, 1926
    Decided May 11, 1926.
    Crimes—Carnal Abuse—Twenty-four Specifications for Reversal Considered and Judgment Affirmed.
    On error to the Union Quarter Sessions.
    Before Justices Parker, Minturn and Black.
    For the plaintiff in error, Louis J. Feil.

    For the state, Walter 0. Tenney, assistant prosecutor of the pleas (Abe J. David, prosecutor, on the brief).
   Pee Curiam.

Plaintiff in error was convicted upon an indictment based on section 115 of the Crimes act, charging carnal abuse of a certain child under the age of twelve years, and brings this writ of error. The entire proceedings had at the trial court are certified under section 136, of the Criminal Procedure act, and twenty-four specifications for reversal are assigned and argued, identical with the same number of assignments of error.

No. 1. Refusal to quash the indictment for omitting to specify that defendant was a “male.” The indictment followed the language of the statute (“any person who shall,” &c.), and as carnal abuse necessarily connotes debauchery of the female organs by the male organs, the male sex of defendant was, necessarily, implied in the charge. See State v. Hummer; 73 N. J. L. 714, 719.

2, 3, 4. Questions put to the child by prosecutor, and allowed over objection, relating to maltreatment by defendant on former occasions. Such evidence in this class of cases is permitted. State v. Snover, 65 N. J. L. 289; State v. Cannon, 72 Id. 46; State v. Faulks, 97 Id. 408. It is further argued that the questions, or some of them, were leading. The allowance of such questions is discretionary, and we find no abuse of that discretion working any “manifest wrong or injury” to defendant.

5 and 7. Allowing the child’s mother to state conversations with defendant tending to indicate his guilt of the charge being tried, when such conversations included misconduct with another of her children. The proposition seems to be that because of this feature; the entire conversation was incompetent as involving evidence of other crimes. Such, we think, is not the rule. In 5 Wigm. Ev. 209, the text indicates that when the statement contains mention of another crime committed by accused, if such mention is part of one entire statement, the allusion to the other crime will not vitiate the compentency of the confession. This accords with the text of 16 C. J. 723, § 1481, which adds that if the part bearing on the other crime is separable, it should be excluded. The same idea appears also at p. 635, § 1263. Conceding for present purposes the correctness of this qualification, an examination of the testimony given by the mother shows that the admission, or confession, included both children collectively, and could not be subdivided. The judge took the proper course in admitting it, with a caution to the jury that, so far as it related to the other child, it was not evidential, and to disregard it in that aspect.

6. Admission of a question objected to as leading, because a specific date was included. This question had previously been put without including the date, and had been objected to on that ground. The inclusion of the date was the defendant’s own doing, and he, therefore, cannot complain. Bahrey v. Ponialishin, 95 N. J. L. 128, and cases cited.

8. The question to the mother on cross-examination, as to whether she went to a lawyer, was within the discretionary control of the court.

9. A question challenged as leading. We need add nothing to what has been said above in this particular.

10. Permitting repetition of a question in another form, after an unexpectedly adverse answer. This was also discretionary; and in cases where the state’s witnesses exhibit unanticipated and surprising lapses of memory and changes in testimony, the interests of justice require that considerable latitude be given to counsel, so long as there is no impropér intimidation.

11. Exclusion of a question to the father on cross-examination as to whether his wife had told him of alleged improper advances made to her by defendant, she having testified to them. Such a question would, doubtless, have been proper on her own cross-examination, but had no relevancy to his direct testimony. The exclusion was proper.

13. The state was required to prove, in order to make a case under the statute, that defendant was of the age of sixteen years or over, and the prosecutor called defendant as a witness to his own age. His counsel 'objected to his being sworn even on that point, and the court uttered some rather indignant comments to which exception was taken, and directed the prosecutor to get a doctor to inspect him and testify to his age. That the remarks of the court were what would naturally be made, appears by the fact that shortly afterwards the defendant took the stand on his own behalf and stated that his age was sixty-three, though appearing on his papers as fifty-eight or fifty-nine. As the only question was whether he was sixteen or more, the jury were as competent as the court to form an opinion of the tactics of counsel in attempting to suppress a perfectly obvious fact. We have examined the transcript with care and fail to see how defendant could possibly have been prejudiced under the circumstances.

14. The court excluded questions put to a witness called for defendant, as to whether at the time of the arrest the father and mother of the child appeared friendly to defendant, “whether there was an action on their part to show a sort of friendliness to Mr. Lasowski.” The question was excluded as involving a conclusion, and it is now urged, without other argument, that the court “prevented counsel from showing the relationship between the mother * * * and the plaintiff in error,” excluding any inquiries in that regard. This, however, is not the fact.

15, 16 and 24. Refusals to direct acquittal, and that the verdict was against the 'weight of evidence. There wás clearly a jury question .as to the guilt of defendant, and we certainly cannot say the verdict was against the weight of evidence, in the face of the specific testimony of the child herself.

17. The charge on reasonable doubt was correct; it was principally taken from State v. Linker, 94 N. J. L. 411, and the added comment by the court was in nowise inconsistent with the rest of the instruction.

Numbers 18 to 23, inclusive, involve comments on the evidence, one or more of which are claimed to be argumentative. All this is within the province of the court, so long as he does not undertake to' control the jury on the facts. State v. Overton, 85 N. J. L. 287, 294. No such control was intimated; on the contrary, it was fully and explicitly disclaimed. As to No. 22, stating to the jury erroneously, as claimed, that defendant said he was on his knees, the statement was correct, as the defendant testified, “I fall on my knees, I said, 'My God is the witness for me, I never do nothing to your family.’ ”

The judgment will be'affirmed.


author: Pet; Cuetam.

text:
    STATE OF NEW JERSEY, RESPONDENT, v. LOUIS O. RAY, PROSECUTOR.
    Argued January 21, 1926
    Decided May 4, 1926.
    Motor Vehicles—Drunken Drivers—Act Constitutional—Arrest Not Illegal—Defendant Not Illegally Detained After Second Adjournment—Judgment Affirmed.
    On writ of certiorari.

    Before Justices Tkejstchakd, Katzenbach and Lloyd.
    For the prosecutor, Edward M. & Runyon Golie.

    For the respondent, J. Harry Hull.

   Pet; Cuetam.

This case is before us upon a writ of certiorari directed to William A. Smith, recorder of the town of Nutley. The writ brings up the conviction of Louis A. Ray for a violation of subdivision 3 of section 14 of the Motor Vehicle act. This is the portion of the act which makes it an offense for a person to operate a motor vehicle when under the influence of intoxicating liquor.

On November 13th, 1925, a complaint was made to the recorder of the town of Nutley by Cornelius J. Arensman that Louis A. Ray, of the town of Nutley, had on that day violated the section of the Motor Vehicle act above referred to. The complaint was sworn to before the recorder, who on the same day issued a warrant for the arrest of Ray. The warrant ivas served. Ray wras produced in court. The respondent was held in bail to appear on November 20th, 1925. On that day, at the request of the prosecutor, the recorder adjourned the hearing to December 4th, 1925. On December 4th, 1925, the prosecutor appeared with his counsel. A further adjournment until December 11th was asked for on the ground that the defendant was entitled to an adjournment for a period not exceeding thirty days. This adjournment was refused. Counsel for the defendant then moved to dismiss the indictment on the following grounds: First, that the statute (chapter 208 of the laws of 1921) and its supplements and amendments was • unconstitutional in that it denied to the defendant the right of trial by jury, and in that it violated the fourteenth amendment of the federal constitution with, reference to due process of law; second, that said act was unconstitutional because it violated the provision of the New Jersey constitution requiring that every law shall embrace but one object, which shall be expressed in its title; third, that the amendment to the act contained in chapter 211 of the laws of 1924 was unconstitutional for the reason that it authorized a workhouse sentence without a trial by jury; fourth, that the said amendment of 1924 was unconstitutional in that it amended the act of 1923, which is unconstitutional; fifth, that the court' was without jurisdiction to try the case because the complaint was defective—(a) in that it referred to the general amendment and supplements of the act of 1921 without specifying the particular amendment or supplement under which the defendant was to be tried, and (b) in that the complaint and warrant failed to state with sufficient definiteness the time and place of the alleged violation; sixth, that the proceedings were illegally instituted by an arrest before a complaint and without warrant, and not by an officer in whose presence the act had been violated.

These motions were denied, and the' prosecutor then announced that he would, not participate in ,a trial. The recorder then heard testimony to the effect that, on November 13th, at about three v. m., Cornelius J. Arenson parked a Ford car on the south side of Center streét, in the town of Nutley, close to the curb in front of the house owned by one Frederick S. Heisley, designated as 414 Center street;' that Arenson went into Mr. Heislev’s house, and, at four-forty p. m., saw through a window a crowd collected on the sidewalk. He went out and found his car damaged in the rear on the left side. The car of Eay was thirty feet in front of his and was damaged in the front. Eay was on the sidewalk, intoxicated. There was also testimony to the effect that Eay was standing by the side of his car after the accident, drunk. Eay got into the car and was in the act of starting his engine when arrested. Testimony was also offered that Eay told the officer who arrested him, Prank Jamison, that he had hit a car. Eay, upon being taken to police headquarters, said: “I was driving the car, but I ain’t drunk.” There was further evidence of Eay’s intoxication offered, including the testimony of a physician. The prosecutor, upon this evidence, was found guilty and sentenced to thirty days in the county jail.

Three of the seven reasons filed for reversal of the conviction are abandoned. The first reason argued is that the Motor Vehicle act is unconstitutional, because it imposes a jail or workhouse sentence for six months without a jury trial. The point as to a trial by jury has been considered and disposed of in the cases of State v. Rogers, 91 N. J. L. 212, and State v. Shaw, 1 N. J. Mis. R. 82. The case of State v. Shaw was decided after the opinion in the case of Katz v. Eldredge, 97 N. J. L. 123, upon which the prosecutor relies, was decided. In the present case the sentence of the prosecutor was thirty days and not six months, so that the question as to the constitutionality of a six months’ sentence is not properly before us for decision.

The second point argued by the prosecutor is that the complaint is defective. The contention is that the complaint only refers to subdivision 3 of section 14 of the Motor Vehicle act, whereas it should have referred to the particular amendment or supplement under which the proceeding was brought. The complaint makes reference to the amendments and supplements of the act. This is sufficient. This point was decided in the case of State v. Rosenbloom, 3 N. J. Mis. R. 1713, which holds that the objection that the complaint charged operation of a motor vehicle while under the influence of liquor in violation of Pamph. L. 1921, p. 643, § 14, 3, and did not charge violation of the aforesaid act, as amended by Pamph. L. 1923, p. 297, was without merit. The case of State v. Bailey, 3 N. J. Mis. R. 298, is to the same effect.

The third point argued by the prosecutor is that the proceedings were instituted by an illegal arrest, and are therefore void. This point is based upon the fact that the officer who arrested Eay did not see Eay driving the car at the time the accident occurred. Erom this jt is argued that the arrest was not authorized by the Motor Vehicle act, which authorizes an arrest without warrant only by an officer in whose presence the law has been violated, or on a sworn complaint. We think there are two answers to this contention. The first is that Eay admitted to the officer that he had been driving the car when he said, “I hit the car.” The second is that Eay got in the car and started the engine when the officer was present. Eay was intoxicated. This, we think, was an act which is included within the term “operation,” which is the word used in the Motor Vehicle act. The arrest was proper, because, in the presence of the officer, Eay was operating a car when intoxicated. There is also in this connection another ground which warranted the original arrest. This was the intoxication of Eay. It was lawful to have arrested him upon this ground. When taken to the recorder’s office a complaint was made by the owner of the car which Eay had struck. The proceedings from this point were in accordance with the portion of the statute which provides for an arrest upon a sworn complaint.

The next point raised by the prosecutor is that the conviction is void, because the defendant was illegally denied the' second adjournment. Section 26 of the Motor Vehicle act provides as follows: “Any hearing to be held pursuant to this act shall, on the request of the defendant, be adjourned for a period not exceeding thirty days from the return day named in any summons, or from the return of any warrant, or from the date of any arrest without warrant.” We deem the proper construction of this section to be that it fixes a time beyond which an adjournment shall not be granted. The prosecutor had asked for an adjournment. This adjournment had been granted. While the adjournment was for less than thirty days, it was assented to by the defendant. The statute in question does not make it obligatory for a magistrate to grant a series of adjournments for the full period of thirty days. We see no merit in the prosecutor’s contention in this respect. We have considered all the points argued. The conviction and judgment is affirmed.


author: Newman, J.

text:
    Passaic County Circuit Court.
    JOS. MELIS AND ANGELO ANTUZZI, TRADING AS MELIS & ANTUZZI COMPANY, PLAINTIFFS, v. MAN GOLDSTEIN, BUILDER AND OWNER; SAMUEL EICHENBAUM, OWNER; SAMUEL SLAFF, OWNER AND MORTGAGEE, ET AL., DEFENDANTS.
    Decided May 11, 1926.
    Mechanics’ Lien—Time to Issue Summons Expired on Sunday— Summons was Issued on Monday—Held, Within the Time— Rule Applies to Acts to be Done by Parties as well as Things to be Done by the Court—Mechanics’ Lien Act Which Requires Summons “Within Four Months” Does Not Exclude Last Day.
    On motion to nonsuit, &c.
    Eor the plaintiffs, Vincent J. Paterno.

    Eor the defendants, Ward & McGinnis and Weinberger & Weinberger.

   Newman, J.

This case was originally before me on motion to amend the lien claim, which amendment I denied for the reason that as the last work was done on September 11th, 1924, the time to issue a summons expired on January 11th, 1925, and the summons was not issued until January 12th, 1925, in which event I held that the lien had been discharged by the statute.

When the matter came on for trial, motions for nonsuit were made by the defendants other than the builder, based upon that same ground. That motion for nonsuit is resisted now for a reason which was not raised on the former motion, viz., that January 11th, 1925, falling on Sunday, the summons was properly issued on January 12th, 1925. This question was not raised or discussed on the former motion to amend.

On the question of issuing the summons on Monday, Jauaury 12th, 1925, 1 adopt the language of Chief Justice Green in Stryker v. Vanderbilt, 27 N. J. L. 68, in speaking of the delivery of a deed, that such construction is “plainly the one best calculated to subserve the interests of the parties,” * * * and that “a similar rule should be adopted in construing statutory proceedings requiring acts to be done by parties in the course of judicial proceedings.”

It is suggested that such rule does not obtain as to acts to be done by parties, but only as to things to be done by the court, but in Von de Place v. Weller, 64 N. J. L. 155, the present Chief Justice suggests that it is doubtful whether such distinction rests upon any solid foundation, and 1, therefore, hold that, on that ground, it was sufficient to issue the summons on January 12th, 1925.

It is further urged by defendants that, regardless of the question of Sunday, the lien was discharged because the summons should have issued on the 10th of January, 1925, or before the last day of the four months from the doing of the last work.

It is- true that section 18 of the Mechanics’ Lien act provides that the summons shall issue within four months from that date, but those words do not operate to exclude the last day of the four months’ period. Otherwise, if an act was to be done within one day of a certain event, the act would have to be done on the day of the event, the statement of which seems to demonstrate the unsoundness of the argument. The motion for nonsuit will therefore be denied.

Plaintiffs move to amend their complaint by adding other counts, setting up that certain other defendants agreed to pay the indebtedness. The indebtedness seems to be incurred by a contract in writing, specifically set up in the original complaint, and for that reason the motion to amend by adding other counts will be denied.

The case will be put on the list of cases for trial for the week of May 17th, 1926.


author:
Charles E. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN KEWRA, PETITIONER, v. PENNSYLVANIA RAILROAD COMPANY, RESPONDENT.
    Eor the petitioner, Alex. B. DeSevo.

    Eor the respondent, Harry C. Brown.

   A petition in this case having been filed on July 16th, 1926, and an answer on August 9th, 1926, the case was set down for a hearing June 17th, 1926.'

Adjournments were granted from time to time by requests of the attorneys for both the petitioner and the respondent until September 24th, 1926.

After hearing the testimony of the petitioner and witnesses, I find that the petitioner and respondent were, at the time of the alleged accident, December 25th, 1925, engaged in interstate commerce, and that the Workmen's Compensation Bureau of the State of New Jersey has no jurisdiction in the matter.

* * ❖ * * * J*i

Charles E. Corbin,

Deputy Commissioner.


text:
    THE STATE, DEFENDANT IN ERROR, v. JOSEPH FERO, PLAINTIFF IN ERROR..
    Submitted January 29, 1926
    Decided May 4, 1926
    Filed May 19, 1926.
    Crimes—Disorderly House—Gambling—Evidence Clearly Establishes Nature of House—Ownership Denied by Defendant— Evidence Tending to Identify Him With Ownership Properly Admitted—Evidence Properly Submitted to Jury—Verdict Not Against Weight of Evidence—Judgment of Conviction Affirmed.
    On writ of error.
    Before Justices Trenohard and Katzenbach.
    For the plaintiff in error, Alex. 11. Desevo (Alexander Simpson, of counsel).
    For the defendant in error, Wilfred II. Jayne.

   Pee Curiam.

This case is before us on a writ of error. The writ brings up a judgment of the Ocean County Quarter Sessions. The plaintiff in error, Joseph Fero, was indicted by the grand jury at the April term, 1925, of the Ocean County Oyer and Terminer for the keeping of a disorderly house at 429 Fourth street, in the township of Lakewood. The indictment contained five counts. The gravamen of the indictment was that the house was one to which persons resorted for betting upon the event of horse races, and that the practice, commonly known as bookmaking, was conducted therein. The period covered by the indictment was from November 1st, 1924, to the date of taking the inquisition, April 21st, 1925. The st.ate at the trial offered testimony that the sheriff and his deputies entered the premises in Lakewood on February 27th, 1925, and on April 13th, 1925. On the first occasion twenty-three men were found assembled in two rooms on the second floor of the house. In these rooms were installed four telephones with tables and chairs. Slot machines, poker chips, playing cards and racing charts were taken by the sheriff. On the second occasion seven men were assembled in the premises. Three racing charts and a number of smaller slips of paper, upon some of which appeared in writing names also appearing on one of the racing charts, were taken. The charts set forth the names of horses entered in races at Bowie, Maryland, Miami, Florida, and Havana, West Indies.

Witnesses were produced by the state who testified to the making of bets on the premises. There was testimony to the effect that habitual gaming with dice was conducted on the premises. The evidence that it was a gaming-house could not be questioned.

The defense of Fero was that he was not the proprietor of it. His contention was that one by the name of Lester Megill was the proprietor. A safe with the name of Joseph Fero marked upon it was found upon the premises. Some of the habituees of the establishment testified that they had seen Fero in the house. It is true that his visits were casual and short. Fero admitted that' he had leased 'the premises and had paid rent therefor. He denied that he had paid the rent for the period covered by the indictment. He contracted with the public service corporations for electric light and telephone service. His defense, as stated, was that, although he had been previously connected with the establish-. ment, he was not conducting it during the period covered by the indictment. He admitted that he was upon the premises during this period; that he had seen Mr. Megill, and that he had disposed of the safe to Mr. Megill. The case was submitted to the jury. The jury returned a verdict of guilty.

The case is before this court upon a strict writ of error, and also upon specification of causes for reversal under the one hundred and thirty-sixth section of the Practice act. The latter number thirty-four, as do also the assignments of error. Most of these have not been argued by counsel for the plaintiff in error. Those unargued will therefore be considered abandoned. State v. Sabato, 91 N. J. L. 370.

The first point argued by the plaintiff in error is with reference to the admission in evidence of Exhibit S-12. This exhibit is a telephone bill of the New York Telephone Company. It is made out to J. Eero, 420 Eourth street, Lakewood, New Jersey. It was seized by the sheriff on the occasion of his first raid upon the premises. The contention of the plaintiff in error is that this bill is dated July 8th, 1924, and, therefore, was inadmissible, because the dates alleged in the indictment were for maintaining a disorderly house between November 1st, 1924, and April 21st, 1925. This argument, however, fails, because a photostat copy of the bill which is annexed to the state’s brief shows that it is dated January 8th, 1925, and not July 8th, 1924. One of the items covers toll service between December 21st and December 31st. The copy printed in the record is dated July 8th, 1924. It is incorrectly printed. The date of July 8th, 1924, is clearly erroneous. This is shown by the photostat copy. A bill dated July 8th, 1924, would not be likely to include an item for toll service from December 21st to December 31st. The bill, we think, was rendered during the period covered by the indictment, and was properly admitted in evidence.

The next point argued by the plaintiff in error is that the trial court refused to direct a verdict of acquittal on the motion of counsel for the defendant at the close of the state’s case. In his brief counsel for the plaintiff in error reviews the testimony and contends that the witnesses failed to show that the defendant had control of the premises, and that he permitted it to be used as a gambling-house. The evidence has already been referred to. In State v. Bindenagle, 60 N. J. L. 307, it was held that error could not be assigned upon an exception taken to the mere refusal of the court in the trial of a criminal indictment at the close of the evidence for the state or on the part of the defendant to instruct the jury to acquit. This case was similar to the case under consideration. The indictment in the Bindernagle case was for keeping a disorderly house, where betting on horses was conducted. This court in that case held that the question was a jury question. The assignment of error in the present case affords no basis for the consideration of this point.

The plaintiff in error must, therefore, rely upon his specification of cause for reversal. In view of the testimony both as to the character of the place and as to the connection of the defendant with it, we fail to see where the defendant suffered manifest wrong or injury in the denial of the motion. The evidence submitted by the state made it clearly a case for the jury.

The next point raised is that the verdict is against the weight of the evidence. A reading of the evidence satisfied me that there is no merit in this contention. Weighed as presented to the jury, the evidence fully justified the verdict.

Thé judgment of conviction is affirmed.


text:
    JAMES R. NUGENT, PROSECUTOR, v. FLORENCE E. CAHILL ET AL., RESPONDENTS.
    Submitted January 29, 1926
    Decided May 4, 1926
    Filed May 19, 1926.
    Taxes and Assessments—Martin Act Sales—Certiorari After Two Years—Deed Under Martin Act Sale Made Seventeen Years Ago—Statute Precluded Review by Certiorari for Two Years ' —Respondent’s Contention That This Provision is Not in Force by Reason of the 1925 Act Relating to Writs of Certiorari, Not Sustained—Such Contention Would Give Retroactive Effect to Latter Act.
    On writ of certiorari.

    Before Justices Teen chard and Katzeneach.
    For the prosecutor, James B. Nugent.

    For the respondents, Herbert Boggs.

   Pee Curiam.

This case is before ns upon a writ of certiorari. The writ brings up for review a deed executed by J. H. Bacheller, comptroller of the city of Newark, to Florence E. Cahill, dated September 12th, 1907, conveying certain salt meadow lauds, and the proceedings relative to the execution and delivery of said deed. It appears from the state of the case that Florence E. Cahill and John Francis Cahill, her husband, sold the said premises in December, 1907, to Stewart Lindsay, and conveyed the same to him by deed. In June, 1920, Alexander Archibald, director of revenue and finance, acting as comptroller of the city of Newark, sold the said premises for unpaid taxes under the Tax act of 1918, to the city of Newark, and executed to the city a certificate of sale therefor. Thereafter the city assigned the certificate of sale to the Franz Realty Company, which, subsequently, assigned the same to the prosecutor in this case.

The respondents urge that the writ was improvidently allowed. We have reached the conclusion that this point is well taken. The sale to Florence E. Cahill and the tax deed made to her were made in pursuance of the provisions of the act known as the “Martin act” (chapter. 112 of the laws of 1896). The second section of this act provides that no writ of certiorari shall be allowed and no action brought to contest or set aside any deed given pursuant to the provisions of the act, or to recover possession of the land conveyed by such deed after two years from the execution of the deed. In the case under consideration seventeen years have elapsed since the execution of the deed. In answer to this point'the prosecutor contends that this provision is no longer in force by reason of the amendment of section 14 of the act relative to writs of certiorari made in the year 1925. Pamph. L. 1925, p. 77. This act provides as follows: “No writ of certiorari shall he allowed to review any sale of land to enforce any assessment or tax, or any sale where assessments and taxes have been included together, unless such writ be allowed within eighteen months from the date of such sale; provided, however, that this shall not apply to any proceedings taken after the sale, by the purchaser or holder of the tax sale certificate, under any statute of this state to procure a deed or perfect title.”

To support the prosecutor’s contention the above provision must be construed as retroactive. It does not in terms apply to pre-delivered deeds or to proceedings taken before its passage. We think it was not the legislative intent to give by this act the right to review deeds and proceedings long since had, and by litigation to throw doubt upon titles theretofore valid and unassailable.- In the absence of any words expressing a contrary intention a statute will be construed to operate prospectively. Crucible Steel Co. v. Polack Tire Co., 92 N. J. L. 221. A statute will not be construed as retroactive unless its nature precludes any other reasonable interpretation. Spencer v. Middlesex County Tax Board, 95 Id. 5. Statutes are not retroactive unless the language thereof admits of no other construction. Public Service Electric Co. v. Public Utility Commissioners, 87 Id. 128. It was held in the ease of DeRaisnas v. Cahill, 97 Id. 565, that the Certiorari act limited the time for the allowance of a'writ of certiorari to review a tax deed to three years. The writ of certiorari in the instant case will be dismissed as having been improvidently issued.