author: Pee Cueiam.

text:
    MARY HEINSMANN, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN HEINSMANN, PLAINTIFF, v. HARRY (OR HENRY) KUMPF, DEFENDANT.
    Argued January 22, 1931
    Decided February 5, 1931.
    Before Justices Pabker, Campbell and Bodine.
    Eor the plaintiff, C. Richard Allen.

    For the defendant, Robert Peacock.

   Pee Cueiam.

A previous verdict in favor of the plaintiff was set aside as against the weight of evidence upon the question of negligence of the defendant. Heinsmann v. Kumpf, 150 Atl. Rep. 924; 8 N. J. Mis. R. 372. At the second trial the plaintiff was again successful and the trial judge allowed the present rule.

The reasons filed are somewhat unusual in character, but may be considered, in fairness to the defendant, as setting up that the verdict was against the weight of evidence as respects the negligence of the defendant, and also with regard to the contributory negligence of the plaintiff.

Plaintiff’s intestate was a passenger on a public bus proceeding from Camden towards Atlantic City on the road known as White Horse Pike, at about six o’clock in the evening of a June day. The bus stopped at or near the corner of a cross street known as Linden avenue for the purpose of letting off some passengers, of whom the deceased was one. All the testimony is to the effect that the right wheels of the bus were off the concrete, but that the left wheels were on it, and most of the body of the bus as well. At this point the concrete is twentjr-nine feet wide, and, consequently, fourteen and one-half feet in width on each side of the centre of the road. As the bus was standing there, and apparently after most of the passengers had alighted that desired to do so, the defendant, driving his own car, sitting alone on the front seat, with his wife and sister-in-law on the rear seat, came up behind and undertook to pass the bus while it was still at a standstill. Defendant admitted that he approached the bus at about thirty-five miles an hour but claimed that he took his feet off the accelerator and that his car slowed down to twenty miles or something less and that he did not apply his brakes until he was even with the front of the bus and saw the deceased directly in front of him, only a-foot or two away, in the act of crossing the road, and, as the defendant claims, running. At this point he applied his brakes for the first time. His car struck the deceased somewhat to the left of the centre of the front bumper and threw him over the left mudguard, and the body lay about the centre of the road when picked up.

Some of the witnesses testified that there was a space of only two to three feet between the bus and the car as the latter passed it, and a simple calculation will indicate that this was in all probability true; for the car itself was slightly less than six feet wide and the bus considerably wider, and with only the right wheels off the concrete leaving a passing space at the centre of the road, it can readily be seen that there was very little room left between the car and the bus.

In this situation, it seems reasonably clear to us that the jury were entitled to find negligence on the part of the defendant in undertaking to pass, at a speed of twenty miles an hour, a standing bus from which passengers had just alighted, in view of the fact that one or more of those passengers would be likely to cross the street and, as often happens, in front of the bus instead of waiting for it to go by. We consider that the jury might well say that it was the duty of the defendant, in the exercise of proper care, to anticipate such an occurrence and to provide for it. As to the contributory negligence of the deceased, that, in our estimation, was also a jury question; and apparently this court seems to have considered it unnecessary to deal with it on the previous rule. Contributory negligence is a matter of defense and the burden of proving it is on the defendant.

In view of these circumstances and the important rule of law that the court will hesitate before setting aside a second verdict on substantially the same evidence, we conclude that the present rule should be discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ANNA DURR, PLAINTIFF, v. FREEHOLD CONSTRUCTION COMPANY, DEFENDANT.
    Decided February 6, 1931.
    Before Gummere, Ci-iiee Justice, and Justices Trenchard and Lloyd.
    For the rule, James Mercer Davis.

      Contra, 8. Busting Leap.

   Per Curiam.

The plaintiff brought suit to recover from the defendant compensation for the loss sustained by her through the burning of her house and furniture, her claim being that the fire was caused by sparks emitted by a road-roller of the defendant company, which was being operated by its servants in.the construction of a road adjoining the plaintiff’s dwelling. The jury found a verdict in her favor.

Counsel for the defendant urges as a ground for making the present rule absolute that the plaintiff failed to sustain the burden of proof on the question of the defendant company’s liability. The argument in support of this contention is that the fire might have started in the attic of the house, for which, of course, the defendant would not have been responsible, or it might have started from sparks escaping from an engine owned and operated by the Pennsylvania Eailroad Company, whose tracks through Woodstown, in Salem county, where the plaintiff’s property was located, were adjacent to that property, and that there was no preponderance of the evidence against either one of these theories. Our examination of the proofs sent up with the state of the case satisfies us that the jury was justified in finding that the fire started on the shingle roof of the plaintiff’s house and on the side next to the road which was being constructed by the defendant company and opposite to the side where the railroad company’s right of way was located. The fact that the fire started on the roof eliminates the theory that it might have begun in the attic. As to the suggestion that it might have been caused by sparks from an engine of the railroad company, the proofs show that only two locomotives passed the plaintiff’s property between one and five o’clock, p. M.; that the screens on them had been frequently inspected, and that inspections were made almost immediately after the fire, which showed that the screens were then in good order. The competency of this testimony was not challenged. .The fire occurred between four and five o’clock in the afternoon, and the jury was justified in finding from the evidence referred to that the fire was not caused by sparks escaping from a locomotive of the railroad company. In addition, the proofs showed that the screen over the defendant’s road-roller, which was operated by steam, was in a dilapidated condition, there being, among other things, a hole in it as large as a man’s fist, and that live sparks escaped through this hole and through other defective parts of the screen. The proofs further showed that the wind at the time of the fire was blowing from the direction where this road-roller was operating and toward the house of the plaintiff. In our opinion, the facts recited justify the jury’s verdict that the defendant company was responsible for the occurrence of the fire.

The only other ground upon which we are asked to make the rule absolute is that the verdict was excessive. The allowance was for $2,800. We consider that the proofs fully supported the conclusion that the damage to the house and the furniture therein was at least equal to that amount. It is argued before us that, in determining the amount which the plaintiff was entitled to recover, the jury should have taken into consideration that the property was insured, and that the insurance company and the plaintiff had settled her claim under the policy for the sum of $1,932. This, however, we consider to be entirely immaterial and not a matter for the consideration of the jury. The plaintiff was entitled to recover from the defendant company the full amount of the loss caused by its wrongful act. She is only entitled, however, to retain so much of the amount recovered as will, in addition to the moneys received from the insurance company, total that sum. The balance she will hold in trust for the insurance company.

We conclude that, for the reasons stated, the rule to show cause should be discharged.


author: Pee Oueiam.

text:
    STATE OF NEW JERSEY v. SAMUEL HOFFMAN AND TOUFEEK BAROODY.
    Decided February 26, 1931.
    Before Gummeee, Chief Justice, and Justices Teenchaed and Lloyd.
    Eor the plaintiffs in error, Ulysses G. Styron.

    Eor the state, Louis A. Repetto, prosecutor of the pleas.
   Pee Oueiam.

The plaintiffs in error, Samuel Hoffman and Toufeek Baroody, were convicted on an indictment charging them with violating section 65 of the Crimes act hy keeping a place to which persons resorted for the purpose of betting upon horse races.

The principal ground upon which the conviction is attacked before us is that the trial court, at the close of the testimony, refused to charge the jury that, even if it were satisfied beyond a reasonable doubt from the evidence produced that book-making and pool selling were practiced in the premises of the plaintiffs in error, and that they had knowledge of such practices, it must acquit unless it was satisfied beyond a reasonable doubt by the evidence that the defendants kept this place with intent that persons should resort there for such practices. As was declared by .this court in the case of State v. O'Donnell (No. 1 of the May term, 1930), the refusal to charge that, in order to justify a conviction for violation of the statute, the proofs must show not only that the defendants kept a place to which persons resorted for betting, but also that it was the intent of the defendants that persons should resort to such place for that purpose, was legal error; following the rule upon this subject laid down by this court in the case of State v. Ackerman, 63 N. J. L. 456, and by the Court of Errors and Appeals in the case of State v. Terry, 91 N. J. L. 539. It is argued on behalf of the state that the decisions referred to do not support the request, for the reason that it required the jury to acquit unless it was satisfied beyond a reasonable doubt of the existence of such intent on the part of the defendants. We cannot concur in this view. Both of the decisions quoted declare that the intent of the keeper of the place that persons should resort thereto for betting, &c., is essential to his guilt; and, in our opinion, the existence of an essential fact, upon which the guilt of the defendant is predicated, must be proved beyond a reasonable doubt.

The judgment under review will be reversed.


text:
    ALEX GAIZ, PROSECUTOR, v. NEW JERSEY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS ET AL., RESPONDENTS.
    Argued January 20, 1931
    Decided February 27, 1931.
    Before Justices Papkes, Campbell and Bodine.
    Eor the prosecutor, Herman D. Edelson.

    Eor the respondent, (no brief).
   Pee Cueiam.

This writ has for its purpose the bringing up for review the conviction of the prosecutor for a violation of the act entitled “An act for the prevention of cruelty to animals," approved March 11th, 1880 (Pamph. L. 1880, p. 212), and its supplements and amendments.

The act complained of occurred in the borough of Franklin Lakes, in Bergen county.

The defendant-prosecutor resided in the borough of Hale-don, Passaic county.

The proceeding was initiated by summons returnable before a recorder of the borough of Oakland, in Bergen county.

The proceeding before us is not in the condition it should be, viewed from many standpoints, and for that reason the writ might very properly be dismissed.

There is, however, just a single ground urged which may fairly be said to require the judgment of this court.

That point is that under the statute (Pamph. L. 1929, p. 312) an amendment to the act for the prevention of cruelty to animals, supra, jurisdiction over violations is conferred as follows: That any person who shall violate the statute “shall forfeit and pay such sum not to exceed one hundred dollars, together with costs, as the court shall determine, to be sued for and recovered in an action of debt with costs of suit by any person or persons in the name of the New Jersey Society for the Prevention of Cruelty to Animals, in any criminal District Court of the county where the defendant resides or in which the offense was committed, or, if no such court, before any justice of the peace, recorder or police magistrate of the municipality wherein the defendant resides or where the offense or offenses were committed, or before any District Court in cases where the defendant resides ip or where the offense or offenses were committed in any municipality in which there is located a District Court; where the offense or offenses were committed in a municipality having no justice of the peace, recorder, police magistrate or District Court, then such person or persons shall be tried before a justice of the peace, recorder or police magistrate in the municipality wherein the defendant resides or before any justice of the peace, recorder or police magistrate within the county where the offense or offenses were committed. In cases where the defendant resides in or whore the offense or offenses were committed in a municipality in which there is located a District Court, the jurisdiction of such District Court shall not be exclusive but shall be concurrent with the jurisdiction of the recorders or police magistrates of such municipality.”

The record before us requires us to take judicial notice of the fact that criminal District Courts exist in Bergen county. Pamph. L. 1926, p. 337, and Pamph. L. 1926, ch. 211, p. 354.

That being the situation, the respondent, recorder of the borough of Oakland, before whom the complaint was lodged and who heard the matter was without jurisdiction over the offense under Pamph. L. 1929, p. 312, supra, and such proceedings were therefore without legal justification and ineffective and in the face of proper objection thereto by the prosecutor, must be set aside.

The judgment will, therefore, be set aside.


author: Lawrence, S. C. C.

text:
    KATHERINE L. WELLBROOK, PLAINTIFF, v. OCEAN COUNTY TRUST COMPANY, ADMINISTRATOR OF THE ESTATE OF MARTIN WELLBROOK, DECEASED, DEFENDANT.

      Eor the motion, Howard Ewart.

      Contra, Wilfred H. Jayne, Jr.

   Lawrence, S. C. C.

This is a motion to strike the complaint in this suit, on the ground that it does not state a cause of action. The interesting question is whether a widow can, in the circumstance stated, take the entire sum recovered under the Death act to the exclusion of the next of kin.

The complaint alleges that Martin Wellbrook died intestate on March 28th, 1929, leaving a widow (the present plaintiff) and four grown children (by a former marriage) as his next of kin. His death was due to injuries received in an automobile accident. On February 24th, 1930, Mrs. Well-brook took out letters of administration ad prosequendum in accordance with the supplement to the Death act (Pamph. L. 1917, ch. 180, p. 531), and instituted a suit against certain defendants named, alleging that her husband’s death was due to their negligence. The complaint filed therein contained the routine and usual allegations required, but stated that he died intestate, leaving her, the widow, surviving, without naming the adult children as next of kin, although it did allege in a succeeding paragraph that the widow and next of kin suffered pecuniary loss by reason of his death. An answer was filed, issue joined, and the case came on for trial at the Ocean Circuit on September 19th, 1930. At the trial, it is stated, plaintiff’s evidence as to damages was confined to the pecuniary loss suffered by the widow, for the reason alleged that the surviving next of kin were of full age, were not then and for some years had not been dependent upon decedent or received any financial aid, gain or advantage whatever from him, and it is accordingly pleaded in the present complaint that they as next of kin did not have at the time of their father’s death any reasonable expectation of pecuniary advantage from the continuance of his life. It is further alleged that during the progress of the trial, and after plaintiff’s testimony was in, defendants tendered in settlement $1,800, which, in the language of the complaint, “the plaintiff, Katherine L. Wellbrook, as administratrix ad prosequendum, considered adequate and acceptable in compromise of the damages alleged and sought to be recovered from the defendants in said action, whereupon a juror was withdrawn and a mistrial declared.”

Subsequently, letters of administration on the estate of the deceased were issued to the defendant trust company, to which as general administrator the sum in question was paid apparently in settlement of the claim, and by which a receipt presumably in the nature of a release was given to the defendants in the action. Thereafter, the general administrator, conceiving that it was so required by law, paid Mrs. Wellbrook, as the widow, $600, or one-third of the amount, but refused to turn over to her the remainder, claiming its legal duty to be to distribute it to the next of kin as provided by the statute in relation to the distribution of personal property left by persons dying intestate.

She accordingly brings this suit against the defendant administrator to recover the remainder of the sum paid in settlement, alleging—as indicated—her right to it by reason of the absence of proof at the trial of any financial aid rendered by deceased to the next of kin immediately prior to his death and as a consequence no inference in fact could have been drawn by the jury of any pecuniary loss to them within the recognized rule. It does not appear that they were present at the trial or represented otherwise than by the administratrix ad prosequendum, who evidently regarded her individual interest as solely involved.

It is argued, in behalf of defendant, however, that the complaint does not set forth a cause of action for several reasons: First, that the original suit which resulted in the settlement in question could not have been maintained for the benefit of the widow alone, inasmuch as there were next of kin surviving, even though adult, and since a loss to them was alleged in the complaint; second, that the administratrix ad prosequendum had no lawful authority to make the settlement; and third, that the general administrator is not permitted to distribute the money received, whether by settlement or recovery in any other way than as directed by the statute, which is that “the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property by persons dying intestate.”

There is nothing in the present complaint to show that the defendants paid the money in question for any other purpose than a settlement of the claim laid against them, or that the general administrator, the defendant here, had any knowledge that the sum so received by it was to be regarded as a fund recovered under the Death act, but not to be distributed pursuant to its direction. It is in fact stated that the suit brought by'the administratrix ad prosequendum, although on a complaint alleging a loss to the widow and next of kin, resulted in a mistrial, and there was therefore no finding of the jury that such loss was to her alone and not to all of them.

The cause of action attempted to be set up in the complaint does appear to be misconceived, doubtless due to the familiar and long standing judicial interpretation that the recovery under the act is to be limited to the deprivation of a reasonable expectation of a pecuniary advantage to be derived from a continuance of the life of the deceased, which is thought to be wholly gauged on proof offered at the trial of recent financial contribution or aid during the lifetime of the deceased and immediate^ prior to his death, although the statute provides that such damages shall be fair and just, but with reference to the pecuniary injury resulting from the death to the “wife and next of kin.” The pleader evidently failed to distinguish the rule and the effect of the proof justifying the award. The only instance in which the widow may take the whole of the sum recovered appears to be indicated in the amendment of 1897 (Pamph. L., ch. 56, p. 134), where decedent leaves him surviving no children or descendants of any children and no parents. See, also, statutes cited below and Distribution act. 2 Cun. Supp. Comp. Stat., p. 2629.

Chronologically, it may be said that there has been no change in the former respect since the original act of 1848 (Pamph. L., p. 151), providing that the sum recovered in every such case shall be for the exclusive benefit of the widow and next of kin. See Rev. 1877, p. 294; 1 Gen. Stat. 1895, p. 1188; Pamph. L. 1897, ch. 58, p. 134; Pamph. L. 1907, ch. 149, p. 386; Pamph. L. 1908, ch. 322, p. 721; 2 Comp. Stat., p. 1907; Pamph. L. 1913, ch. 287, p. 586; Pamph. L. 1917, ch. 180, p. 531; 1 Cum. Supp. Comp. Stat. 1924, p. 927; Cum. Supp. Comp. Stat. 1930, p. 446.

In the old case of Paulmier, Admr., v. Erie Railroad Co., 34 W. J. L. 151, 155 (cited in Hackney v. Delaware and Atlantic Tel. Co., 69 Id. 335; in Brown v. Honniss, 74 Id. 501, 516, and other cases), Chief Justice Beasley said: "The subject is not devoid of perplexity. The language is so general and indefinite that it leaves wide room for judicial construction. But I am satisfied that the interpretation just indicated is not admissible. It is in opposition to the generality of the provision contained in the first section of the act and to the special provision of the second section. Thus, an action is given in every case where liability would have resulted if death had not ensued, whereas the construction contended for insists upon a liability only when a certain class of persons survive the deceased. In the second section, the act directs a distribution of damages fin the proportion provided by law in relation to the distribution of personal property left by persons dying intestate;’ but the provision is obviously impracticable on the hypothesis that particular classes of persons are alone entitled. Eor example, in the present case, the mother, if impoverished, would have been entitled to the support of her son; the two brothers had no such claim and therefore, according to the view under consideration, had no right to a share of the damages occasioned by the death, the result being that under these circumstances the mother would take the whole sum recovered. But such a distribution of the proceeds of the suit is entirely inconsistent-with the distribution of the property among the next of kin of an intestate. The contention of counsel of defendants-would make the mother the sole recipient of the benefits of the action; but the statute authorizing the action declares, in clear terms, that the money recovered shall go to the next of kin as in case of intestacy, and by this rule each of the-brothers would have an equal interest with the mother. It-seems to me that it is not possible to effectuate the act on this basis. It also seems to me that the literal language of the statute is to be followed, that is a right of action exists,, if death had not ensued; and that all of the next of kin who would take in case of intestacy belong to the class of persons who it is competent for the jury, under the given circumstances, to say have sustained a pecuniary injury resulting from the death of their kinsman.”

Other pertinent authorities on the subject are Telfor v. Northern Railroad Co., 30 N. J. L. 188, 199; Demarest v. Little, 47 Id. 28, in which it appeared that the next of kin were grown children, self supporting, a daughter married,, and that there was no proof of any financial assistance to-them individually, but the verdict was allowed to stand at a reduced figure; Hackney v. Delaware and Atlantic Tel. Co., supra; Carter v. West Jersey and Seashore Railroad Co., 76 Id. 602, 604, involving a mother’s care of children, where-it was held that the statute did not require the plaintiff to-show that the next of kin would probably have received from the deceased contributions of money or things purchased with money. Stagg v. McCann, 95 N. J. Eq. 53, widow’s right to-entire recovery, as against mother’s claim by virtue of late statutory enactment, no children surviving; McGlone, Admr., v. New Jersey Railroad and Transportation Co., 37 N. J. L. 304, holding that next of kin need not be specially named in the pleading; and Harris v. Johnson, 6 N. J. Mis. R. 700; 8 Id. 842, referring to conjectural and uncertain nature of damages.

Prom these authorities it would seem that the damages recoverable under the Death act are not to be conclusively determined by required proof at the trial of pre-existing dependency or periodic pecuniary aid from the intestate prior to his death. The fact that the next of kin may have been self-supporting evidently does not prohibit them from sharing in the recovery which becomes on payment subject to distribution as directed by the statute in cases of intestacy. Snedeker v. Snedeker, 164 N. Y. 58; 58 N. E. Rep. 4. It is the future deprivation or loss of the so-called reasonable expectation of financial advantage from a continuance of the life of the deceased that appears to be involved in such a case.

As stated in the present complaint, the suit instituted by the plaintiff as administratrix ad prosequendum may perhaps be regarded as abortive, in view of the resultant mistrial, and the fact that she appears to have been concerned with her individual interest, without a realization that the surviving children of decedent (by a former marriage) likewise had interests, and that their rights, unless formally surrendered or at least actually determined by the verdict of the jury, could not be disposed of in the informal manner indicated.

In any event, what the general administrator is required to do with the fund recovered, since it is to be assumed that it is controlled by the statute, seems clear. The result is that in the absence of legislation supporting or authorizing it, the action sought to be set up in the present complaint does not appear capable of being legally sustained. The motion to strike will be granted, but without costs.


author: Matthews, J.

text:
    First Judicial District Burlington County.
    PATRICK J. SULLIVAN, PLAINTIFF, v. HAROLD A. WALBURN, DEFENDNT.
    For the rule, Lester A. Drenlc.

      Contra, Furman A. DeMaris.

   Matthews, J.

This matter comes before the court on a rule to show cause obtained by the defendant why a judgment by default against him in this cause should not be vacated. The judgment was entered on January 29th, 1931.

The application for the rule and the affidavit in support thereof do not show that the defendant had any meritorious defense or that there was any surprise, and the sole ground upon which the rule was obtained and argued is that the service of process was not in accordance with the requirements of the statute for service of summons in the District Court, and therefore void.

The return on the summons by the sergeant-at-arms shows as follows: “The said defendant, Harold A. Walburn, not being found, I served the within summons January 24th, 1931, by leaving a copy thereof at his dwelling house or place of abode with Thelma Fisher, a member of his family above the age of fourteen years, informing her of its contents.”

The statute covering the service of summons in District Courts provides in part that it shall be served by reading the same to the defendant and delivering to him a copy thereof, if he or she shall be found, and then states:

“And if not found, by leaving a copy thereof at his or her dwelling house or place of abode, in the presence of some person of the family, of the age of fourteen years, who shall be informed of the contents thereof. * * *”

It is apparent upon the face of the return that there has been full and substantial compliance with the statute. Therefore, it would seem that a rule to show cause is the proper procedure to be followed in such a case. Mygatt v. Coe, 63 N. J. L. 510.

There would seem to be no difference between the words “person of the family” and “member of the family.” Heilemann v. Clowney, 90 N. J. L. 87. (See remarks of the court on page 90.)

The affidavit submitted by the defendant on the rule and the only testimony before the court submitted by him reads in that part which is pertinent to the issue as follows: “The said Thelma Fisher is not a member of my family and never has been. She at times attends my home as a nurse maid. Said summons was not served upon any member of my family nor upon myself.”

It will be readily seen that the statements contained in this affidavit with one exception are matters of legal conclusion, i. e., that Thelma Fisher is not a member of the defendant’s family and that, incidentally, is the exact question which the court has to decide. The only exception is the statement: “She at times attends my home as a nurse maid.” Whether this alone would have been sufficient to have sustained the defendant’s contention is at least doubtful, but the court is not called upon to decide that point for the reason that the situation has been somewhat amplified by the affidavits of Thelma Fisher herself and Loberta Gladney, her mother, submitted by the plaintiff. Both affidavits are uncontradicted and show that Thelma is eighteen years of age and a senior at high school; that during the summer of 1930 she worked at the home of H. A. Walburn in Eiverton and was there quite regularly and that during this period part of the time stayed there over night and part of the time, to use her own words, “I stayed at home over night.” The affidavits further disclose that during part of that time Thelma stayed in Mr. Walburn’s office to answer the telephone, &c. Since the summer of 1930 Miss Eisher has been at the Walburn home about twice a week on the average and her duty is to take care of “their little girl when they are not at home.” The affidavit of Loberta Gladney states as follows:

“Eor the past few months she [Thelma] has been employed as a nurse maid by the Walburns to care for their little girl when they go out. She is employed by them now on an average of about twice a week.”

Obviously, then, during the summer of 1930, when Miss Eisher was working quite regularly at the Walburn home, she stayed “at home” over night. The only reasonable inference which can be drawn from these affidavits is that neither during the summer of 1930 nor at the time that the summons in this case was served did Thelma Eisher regard the home of the Walburns as her home, but obviously from the statements in the affidavits she had some other place of residence which she regarded as “home.”

The sole question, therefore, to be decided is whether a girl who is employed by the defendant about twice a week regularly as a nurse maid, and who does not reside with the defendant, can be considered a member of the family within the meaning of the statute.

I think it is clear that the word “family,” as used in this statute, is undoubtedly utilized in a broad sense and does not confine itself to blood relatives of the defendant who are residing at his home. In this connection it is interesting to note that the Practice act covering the services of summons in the higher courts provides: “A copy whereof shall be served on the defendant in person, or left at his usual place of abode.” It will, therefore, be seen that less formality in the service of summons in the higher courts is required by statutory language than in the District Court. This fact cannot affect the specific requirement in the District Court •act, of course, but it would seem to lend weight to the argument that the term “family” should be given the broad construction in the interpretation of the latter act, and if one is to accept the statements of the court in Heilemann v. Clowney, supra, as indicative of the view the courts of this state would take if the question were directly presented, the actual requiremeiius of service would be practically the same, for Mr. Justice Parker, in delivering the opinion, says:

“In so ruling, we do not wish to be understood as sanctioning the practice of slipping a writ under a door, or tossing it into an open window, or otherwise physically ‘leaving’ it at •defendant’s usual place of abode without delivering it to some person thereat. While not deciding the point, we know of no case in which such practice has been recognized in the absence of a statute permitting the affixing of the writ to the front door or the like. The universal practice in this state has been to deliver it on the premises to some member of defendant’s family who is sui juris. This is the express requirement of the Justice Court and District Court act.”

While counsel has been unable to cite any cases directly in point in this state, or in fact from any other state, the view that the word “family” in such a statute as this should be given a broad construction is sustained by cases cited from other states, and, inferentially, that conclusion can be reached from the decisions in Mygatt v. Coe, supra, and Sweeney v. Miner, 88 N. J. L. 361.

Many and variegated definitions of “family” have been used by the courts, among which are the following collated in 35 Corp. Jur. 664: The collective body of persons living in one house or under one head or manager; a collective body of persons, consisting of parents or children, or other relatives, domestics or servants, residing together in one house or upon the same premises; a collective body of persons living together in one house or within the curtilage; a collective body of persons who form one household under one head and one domestic government; those, who live under the same roof with the pater familias, who form his fireside; all members of the household living under the authority of the head thereof; a household composed of parents or children, or other relatives, or domestics and servants; an entire household; a household; members of the domestic circle; any group of persons constituting a distinct domestic body; the personnel of the home.

Analyzed, these definitions mean practically the same thing and it can be readily seen that either by direct statement or inference there is one common denominator—that of “living” or “residing” together.

These definitions, together with the cases above cited, and also the reasonable construction to be put upon the statute in force during the year 1818, cited by plaintiff, and referred to in the case of Cobb v. Decker, 4 N. J. L. 133, can bring about but the distinct conclusion that domestic servants, when living or residing in the establishment are included in the term “family” for the purposes of this statute. I cannot accept the defendant’s theory that the use of the words “white person of the family” used in the early statute referred to were designed by the legislature to establish a public policy of gentle and generous consideration for the human fraility of white gentlemen of that age in having meritricious relations with fpmale colored servants or slaves and the sometimes unfortunate attendant result of illegitimate offspring of a “high yellow” coloring.

The term “family” has even been held to include lodgers or boarders living in one house. L. J. Mueller Furnace Co. v. Driebelbis (Mo.), 229 S. W. Rep. 240, cited by defendant.

It may be that Miss Fisher in this case is not such a. casual employe as would deprive her of the benefits of the Workmen’s Compensation act, but that of itself would not. necessarily constitute her a member of the family. Nor do I think would the mere regularity of her employment, because-in' such case a person who came in once a week or once a month or once every six months regularly would fall in the same category, and I do not think this is what the act contemplates. There may also well be situations in which a domestic servant spent his or her full working time with his or her employer and in the evenings went to his or her own home. Could it be said that even though such servant performed duties of a domestic character that he or she should be considered a member of the family? In other words, had Miss Eisher in this case continued down to the time of the service of the summons to be employed as a nurse girl in the defendant’s home regularly every day, but still having a home of her own to which she usually went, although not always, to sleep and to spend her spare time, would that have made any change in her status? The question is not of the regularity or character of the employment alone, but whether or not in carrying out such employment she becomes substantially a member of the defendant’s household, that she resides or lives together with the remainder of defendant’s domestic establishment, in the same house or upon the same premises or within the same curtilage.

I realize that from a practical standpoint, the position of Thelma Eisher in this home during the time that she was there might be exactly on a par with that of a nurse girl or servant who continually and permanently resided with the defendant, and, therefore, so far as this time was concerned and during which the summons was served she was in the same position as a member of the family, as defined in the cases. But I do feel, not finding any authorities going this far, and such service being in the nature of service substituted for persona] service, that the construction of the phrase “family” should not extend further than the length to which it lias already been stretched by decisions down to the present time.

Obviously, the intent of the statute is to have the summons served in such manner as it will reasonably reach the defendant in the normal course of events. On the other hand, this is not the sole requirement, because it has been held that the fact that the service was brought to the attention of the defendant by some other means does not cure a defect in the statutory requirements of service. 21 R. C. L. 1280, ¶ 23.

The use of the words “person of the family” clearly contemplates service upon someone who, because of his or her permanent position in the household and so affiliated therewith, would be likely to deliver the summons to the defendant in due course.

I am therefore led to the following conclusions:

1. That the term “family” as used in the statute will include a domestic servant under certain conditions.

2. That a domestic servant, to be included within the term “family,” must be one who substantially makes his or her residence or home with the defendant so as to become a part of the collective body residing together in one house or upon the same premises or curtilage.

3. That a person who is employed twice a week regularly by the head of the household as a nurse girl and who does not reside with such head of the house, but has an independent home of her own, as was the position of Miss Fisher in this case, cannot be construed as a person of the family sufficient to satisfy the statute.

The rule to show cause is made absolute and the judgment vacated.


author: Dungan, C. C. J.

text:
    Essex County Circuit Court.
    CHARLES D. WRIGHT, ADMINISTRATOR OF THE ESTATE OF NELLIE WRIGHT, DECEASED, PLAINTIFF, v. KROYDON COMPANY, A CORPORATION, DEFENDANT.
    For the defendant, Kellogg & Chance.

    For the plaintiff, Smith & Slingerland.

   Dungan, C. C. J.

This is an action by a Michigan administrator of the estate of Nellie Wright, whose death is alleged to have been caused by the negligent operation of an automobile which collided with her in the State of Michigan, as the result of which she died November 1st, 1927. The summons and complaint were issued October 31st, 1930, three years, less one day, after the death resulting from the accident.

The complaint was answered and a reply filed on behalf of the plaintiff, both of which raise points of law, which the defendant’s attorney now moves to have determined under rule 40 of the Supreme Court, which is as follows:

“Demurrers are Abolished. Any pleading may be struck out on motion on the ground that it discloses no cause of action, defense or counter-claim, respectively. The order made upon such motion is appealable after final judgment. In lieu of a motion to strike out, the same objection, and any point of law [other than a question of pleading or practice] may be raised in the answering pleadings, and may be disposed of at, or after, the trial; but the court, on motion of either party, may determine the question so raised before trial, and if the decision be decisive of the whole case, the court may give judgment for the successful party or make such order as may be just. (Eule 26, Pr. act 1912.)”

The plaintiff claims that this motion is controlled by rule 30 of the Supreme Court, which gives the order of pleadings as follows:

“30. Order of Pleadings.

The order of pleadings shall be—

1. Complaint;

2. Motion addressed to the complaint;

3. Answer;

4. Motion addressed to the answer;

5. Eeply.”

And that after the answer is filed such a motion cannot be made, and cites as authority Apfelbaum v. Pierce et al., 126 Atl. Rep. 738, and Klughaupt v. Acquackanonk Water Co., 126 Id. 739, but in both of those cases the motions were to strike out the complaints, and therefore the court could have reached no other decision under rule 30; but in this case the motion is made, not to strike out the complaint, but to determine the questions raised by the pleadings, before trial, under rule 40, which course seems to be approved by the decision in Lehigh Valley Railroad Co. v. United Lead Co., 102 N. J. L. 545.

It may be added that there may be some doubt whether a motion to strike out the complaint would have been proper under rule 30, as in actions at law the bar of the statute of limitations is a defense, and that defense “is not available unless set up by plea” (Callan v. Bodine, 81 N. J. L. 240— at p. 242), unless the cause of action be one which did not exist at common law, but is one which “has been created by statute which fixes a time within which the action must be brought as an essential element of the right to sue.” Ibid. However, since the right of action in case of death is one created by statute, it may be that advantage of the statute of limitations may have been taken by motion to strike out the complaint; but, that is not the course pursued by the defendant, and having elected to answer, and then to move to have the points of law determined “before the trial,” I think he is within his rights.

The most important question raised is whether or not the plaintiff’s action is barred by the New Jersey statute of limiaations, as provided by section 8 of the Death act (Comp. Stat., p. 1908), which requires that: “Every such action shall be commenced within twenty-four calendar months after the death of such deceased person.” Admittedly this action was not commenced within that time; but the plaintiff contends that since there is no express limitation of time within which such an action may be brought in the State of Michigan, where the cause of action arose, and that it might be brought there at any time within three years, which is the time within which it might have been brought if death had not ensued, that the plaintiff’s right of action is not barred by the New Jersey statute.

There is no doubt but that the questions of whether or not a right of action survives the death of a person injured in the State of Michigan, and to whom, in that event, the action survives, rest upon the laws of that state; but it is equally well established that the rule with relation to the remedies for enforcing rights of action is that they are regulated by the law of the state where such remedies are pursued, and not by the law of the state where the cause of action arose. Summerside Bank v. Ramsey, 55 N. J. L. 383; Jaqui v. Benjamin, 80 Id. 10; Smith v. Smith, 90 Id. 282.

The case of Jaqui v. Benjamin, supra, particularly applies this rule to statutes of limitation.

I find, therefore, that this action, which was not commenced within twenty-four calendar months, as required by the Death act of this state, is barred by that limitation.

Since this decision is decisive of the whole case, it is not necessary to decide the other questions raised, but upon the finding that the action is barred by the statute of limitations of New Jersey, I give judgment for the defendant.


author: Smith, C. 0. J.,

text:
    Essex County Circuit Court.
    MARIO VATTANI, ADMINISTRATOR AD PROSEQUENDUM, ETC., PLAINTIFF, v. BONIFACIO DAMIANO, ADMINISTRATOR, ETC., DEFENDANT. MARGARET LO RE, ADMINISTRATRIX, ETC., PLAINTIFF, v. BONIFACIO DAMIANO, ADMINISTRATOR, ETC., DEFENDANT.
    Eor the motion, Milton M. Unger (by Leonard J. Emmergliclc). ,

    Eor the defendant in opposition to motion to strike out defense, Collins & Corbin (by James B. Emory). '

   Smith, C. 0. J.,

sitting as Supreme Court commissioner.

By consent the answer was amended setting up a new defense. A motion is now made to strike out this defense as frivolous.

The plaintiffs bring their suit under the Death act to recover damages by reason of the death of the deceased while riding in an automobile operated by the defendant’s intestate. The ninth separate defense sets up the facts that a judgment was obtained against the New York and Long Branch Railroad arising out of the same accident, and that it has been satisfied.

The negligence, I assume, under which the recovery was had against the New York and Long Branch Kailroad, was a failure to properly guard the crossing.

The judgment, while entered before a jury in open court, was by consent and by stipulation. The judgment was amended so as to provide that the entry and satisfaction thereof should be without prejudice to the right of the plaintiff to maintain and prosecute an action or actions against any person or persons other than the defendants therein, for damages resulting from the death of the plaintiff’s decedent caused by the collision referred to in the complaint; and without prejudice to the right of plaintiff to receive satisfaction and take proceeding to satisfy any judgments which may be secured by plaintiff in any such actions against any person or persons other than the defendants therein.

The ninth separate defense charges that the satisfaction of said judgment discharges any further claim for damage against the defendant herein, the plaintiff being entitled to but one satisfaction for the loss. Were it not for the amendment to the judgment, the satisfaction of the judgment would discharge the defendant, who was one of the tort feasors, as the law is undoubtedly well settled that satisfaction against one or more joint or several tort feasors discharges any other tort feasor for the same claim for damage. The question here presented is whether or not the reservation or limitation entered in the judgment by consent can relieve the effect of the satisfaction of the judgment against the New York and Long Branch Eailroad Company. The law is well settled, I think, in this state, that where there is a payment by one tort feasor and a covenant not to sue is given, that this settlement does not release other tort feasors, the reason being either that it was not the intention of the parties that the claim for damages should be satisfied, and in fact, as between the parties it was not satisfaction of the claim for damage, or that the party to whom the covenant not to sue was given, was not under a liability to the plaintiff, but merely buying his peace. It has also been held, that a release, even under seal, which contains a reservation as to its effect so that it shall not be considered as a discharge of liability of other joint tort feasors, should be construed as a covenant not to sue so as not to bar a right of action against other tort feasors. But I do not think it necessary for me at this time to go into a consideration as to what the authority is in New Jersey with regard to these questions, because assuming that these reasons all apply to a release, we are not confronted with just that question. We have here a ease where a judgment has been entered and the question as to that judgment is whether or not a reservation which has been contained in it may be considered in limiting its force and effect.

The judgment has the force and effect of a determination that the defendant is liable for the tort and that the amount of the judgment is the amount of the damage done by the tort. The payment of the judgment is a satisfaction of both the liability and the damage.

It is well said in the case of Brown v. White, 29 N. J. L. 514 (at p. 515), dealing with the case of where several persons were bound under one obligation, and holding that the assignment of the judgment was not discharged of the liability of others: “Before a debt can be satisfied, it must appear that something was done which the parties in fact intended should satisfy it, or which the law considered to be evidence of such intention.”

While here we have the ease where it appears that the parties did not intend that the judgment should be satisfaction, we are met with the conclusion of law that the judgment is in fact a determination that the liability is satisfied.

It seems to me, therefore, that the reservation contained in the judgment is nugatory, as it would in fact nullify the judgment itself, and therefore the ninth separate defense set up by the defendant states a good and valid defense and bar to the action of the plaintiffs.


author: Holland, J.

text:
    Morris County Common Pleas.
    GEORGE E. SNYDER, PETITIONER-APPELLANT, v. FRANK MORGAN, TRADING AS KAY’S CLUB, RESPONDENT-APPELLEE.
    Eor the petitioner-appellant, William A. Hegarly.

    For the respondent-appellee, Mantel & Eaplon.

   Holland, J.

The petitioner-appellant was engaged as a bartender by the respondent, and on September 6th, 1929, was hit in the face with a bottle when he refused or was unable to serve whiskey to five or six ruffians, who invaded the barroom where he was employed, causing the loss of his left eye; for which injury compensation is claimed. A petition was duly filed, and after a hearing, was dismissed by the workmen’s compensation bureau. An appeal to this court is taken.

Petitioner contends that his employment was merely to sell near beer, but a reading of the evidence in the case is convincing, and I find, that the contract of hiring was to dispense liquor in violation of law, and that the terms of the original contract of employment were never changed.

The contract to act as a bartender for the sale of liquor was an illegal one, and both the employer and employe were subject to indictment and conviction for conspiracy to violate the prohibition laws.

In the case of Hetzel v. Wasson Piston Ring Co., 89 N. J. L. 201, the Court of Errors and Appeals held that the Workmen’s Compensation act did not apply to contracts ■which the legislature had already prohibited the parties from making. And in the case of Boyle v. Splinter, 101 Id. 91, Chief Justice Gummere, speaking for the Court of Errors and Appeals, stated:

“It is only in those cases where the contract of hiring is valid that the Workmen’s Compensation act is applicable. Contracts which are prohibited by express legislative enactments do not come within the cognizance of the bureau.”

The petitioner-appellant contends that he is entitled to prevail in his compensation claims under Pamph. L. 1922, ch. 257. This act provides a right of action to any person or to the estate of any decedent who sustains an injury or damage caused by any intoxicated person, or by reason of the intoxication of, or the sale of any intoxicating liquor to any person in violation of law. Obviously, it does not affect the Workmen’s Compensation acts, but applies to the long and dreadful train of injuries and damages which are likely to result, either to the consumer or to innocent third persons from the illegal dispensation of liquor. Such a case is Josefa Boniewsky, Administratrix, v. Polish Home of Lodi, affirmed by the Court of Errors and Appeals in 103 N. J. L. 323.

The petitioner-appellant also endeavors to raise the question concerning the proper ratification and adoption of the eighteenth amendment to the United States constitution; but this is not the proper court in which to agitate that controversy. Suffice it to say that whether the eighteenth amendment is held to be valid or not, it would have no effect upon the case at bar. The law in this state is clearly set forth in the “Act concerning intoxicating liquor used or to be used for beverage purposes.” Pamph. L. 1922, ch. 255, p. 615, generally designated as the Hobart act. This law is a state enactment and does not depend for its validity upon the eighteenth amendment. Under the Hobart act a contract to act as a bartender for the unlawful sale of liquor is illegal, and is without the benefit of the protective Workmen’s Compensation laws.

The judgment below is affirmed.


author: Pabkee, J.

text:
    JOSEPHINE DE LAINE, PROSECUTOR, v. LOUIS HARRIS AND EDWARD A. QUAYLE, JUDGE OF THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE COUNTY OF MORRIS, DEFENDANTS.
    Decided January 19, 1931.
    Before Mr. Justice Pakiceb at the Morris Circuit.
    Por the prosecutor, Robert S. Harlgrove.

    Por the defendants, J. Ezra Newmarh.

   The opinion of the court was delivered by

Pabkee, J.

The fundamental and controlling obstacle to allowance of a writ in this ease is that the landlord and tenant proceedings in the District Court pursuant to Comp. Stat., p. 3070, et seq., are entirely regular on their face, and that the prosecutor not only did not require proof of the facts which according to the first section of the act authorize such proceedings against the tenant (in this case, a monthly tenancy, non-payment of rent, and demand served) but did not either personally or by counsel appear on the return day of the summons. Judgment of ouster was accordingly entered on the affidavit, the sufficiency of which, in form, is conceded. The present application is directed to showing after such judgment that the affidavit was not true, and that in fact there was no relation of landlord and tenant because of a written contract between the parties for the sale and conveyance of the premises by Harris to the prosecutrix, payment to be made in installments. A copy of this paper is before me. It does not in terms authorize the vendee to go into possession, but this is clearly to be inferred from a provision that in case of default, the payments made shall be considered as rent for use and occupation, and that for the purpose of eviction the prosecutrix shall be a monthly tenant and subject to the. law applicable to that situation.

Such an agreement does not create at any stage the relation of landlord and tenant (Gray v. Reynolds, 67 N. J. L. 169), even when it expressly so provides. Young v. Columbia Investment Co., 77 Id. 410. If at the return of the summons the tenant had appeared and this agreement had been proved as the sole evidence of the relation between the parties, the proceeding should have been dismissed. But where a tenant does not appear, or appearing does not demand proof other than the original affidavit, the resultant judgment is impregnable to certiorari if the summons was properly served and the affidavit is sufficient on its face. This is elementary. Brick v. Burr, 47 N. J. Eq. 189, 193; Watson v. Idler, 54 N. J. L. 472, 473; Roberts v. McPherson, 62 Id. 165; Hankins v. Maul, 63 Id. 153. Counsel for prosecutor argues that on the facts as he claims they actually are, there was no jurisdiction. But it is to the uneontradicted facts as exhibited to the District Court in the affidavit that that court and this court look for its jurisdiction; and as they were not then denied or challenged, they stand as proved for the purpose of supporting the judgment of ouster. The ease of Handelman v. Harris, 93 N. J. L. 66, relied on by counsel, has no application; for in that case the justice of the peace had been deprived by statute of any right or power to hear such cases at all, and had no more jurisdiction to receive a landlord’s affidavit than the sheriff or the county clerk.

The rule will be discharged, with costs. Prosecutrix is not without remedy, as the statute makes the “landlord” responsible in damages for a wrongful eviction. Pamph. L. 1903, p. 29; Comp. Stat., p. 3074, 18 g.


author: Gummere, Chief Justice.

text:
    VINCENT CONTI AND JOSEPH INGALA v. PIETER ALEA. VINCENT CONTI AND JOSEPH INGALA v. SAMUEL B. MARTIN. PIETER ALEA v. SAMUEL B. MARTIN.
    Decided February 26, 1931.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the defendant Samuel B. Martin, Collins ■& Corbin.

    Eor the defendant Pieter Alea, Abraham, I. Feltman.

    Eor the plaintiffs Conti and Ingala, Weinberger & Weinberger.

   The opinion of the court was delivered by

Gummere, Chief Justice.

The plaintiffs Conti and Ingala were injured while riding in an automobile owned and operated by Alea, after nightfall, and which overturned while being driven along a state highway route which was being constructed in the borough of Hardystonville, in Sussex county, by the defendant Martin. The claim of these two plaintiffs was that the road at the place where the accident occurred was dangerous to public travel; that the contractor, Martin, had taken no steps to warn travelers on the highway of this dangerous condition; and that the accident was due to his neglect to do so. They further claimed that the defendant Alea, who was driving the car in which they were riding, was careless in failing to observe the dangerous condition of the highway, and that his neglect to do so contributed to the happening of the accident Alea’s suit against Martin was based upon the contention that the accident occurred solely by reason of the failure of the latter to take any steps to provide reasonable notice to travelers upon the highway of the unsafe condition thereof.

These cases were all tried together, and, after the testimony had been completed and the court had charged the jury, the latter retired to consider its verdicts. After it had retired the trial judge directed the clerk to receive the verdicts, and announced that the court would remain open for that purpose. After having made this announcement, the trial judge left the court room and returned to his home. Some hours after the jurjr had retired, it returned into court and announced that it had found the following verdicts: In the case of Conti and Ingala against Martin, “in favor of the plaintiffs in the sum of $1,500 against the defendant;” in the case of Conti and Ingala against Alea, “in favor of the plaintiffs in the sum of $1,500 against the defendant;” in the case of Alea against Martin, “in favor of the plaintiff in the sum of $300 against the defendant.” The clerk thereupon, by necessary inference, refused to receive these verdicts, for upon their rendition he, instead of discharging the jury from further service, directed the members to return to the jury room, and after they had done so telephoned to the judge who had tried the cases, informing him what verdicts had been received in each of them, and the judge thereupon, apparently considering that the verdicts were improper, returned sometime later into court, sent for the jury, and further instructed it with relation to the issues involved, and then directed it to return to its room, which it did. Sometime later the jury came back into court, and then rendered verdicts entirely different from those originally found by it.

The principal contention on the part of the defendants is that the procedure above outlined was without legal justification, and we are of opinion that this contention is sound. In the case of Folkner v. Hopkins, 100 N. J. L. 189, the trial judge, after charging the jury, left the court house, directing the clerk to keep the court open and to take the verdict of the jury when that body returned into court to render it. The jury, after a consideration of the proofs in the ease, returned into court with a verdict, which the clerk refused to accept, instructing the jury that it was not justified, and sent the jury out for a further consideration of the cause. Subsequently the jury returned into court with a different verdict. In dealing with this situation, the court said: “The action of the clerk as above set forth was clearly without legal warrant. Section 160 of our Practice act provides that after the jury has gone from the bar to consider of its verdict, The court may direct that the verdict be taken by the clerk in open court in the absence of the judge, and may order that the court remain open for that purpose.’ The power of the clerk under the conditions named is strictly limited by the statute, and that is to take such verdict as the jury shall render, without regard to whether or not it is in accordance with the instructions delivered to that body by the court, and without regard to whether or not the finding can be legally justified. * * * It is no concern of his officially whether the verdict can be upheld, or whether or not judgment can be entered upon it. He cannot legally refuse to accept a verdict, but must take it as rendered.”

The principle laid down in the cited case is, in our judgment, applicable to those now before us. The action of the clerk of the court was clearly in violation of this principle, and requires that the verdicts now under consideration should each of them be set aside and a new trial in the cases ordered.


text:
    STATE OF NEW JERSEY v. LENA PEDAGOG.
    Decided February 26, 1931.
    Before Gummere, Chiee Justice, and Justices Trenchard and Lloyd.
    For the plaintiff in error, Michael S. Preclcer.

    For the state, Joseph L. Smith, prosecutor of the pleas, and Simon L. Pisch, assistant prosecutor.
   Per Curiam.

The plaintiff in error, Lena Pedagog, was convicted upon an indictment charging her with taking money from one Hilda Benninger for bringing a man to her room in the house of the defendant, in which the Benninger woman was a tenant, for the purpose of prostitution.

The first ground upon which we are asked to reverse this conviction is that the trial court erroneously admitted testimony tending to show the commission by the plaintiff in error of an earlier and similar offense. It appears, however, from the state of the case, that after the admission of this alleged illegal testimony, the trial court said to counsel for the plaintiff in error, who had objected to its admission: “I will grant your motion with regard to this conversation. I will strike it out, and the jury will be instructed to disregard it,” It seems to us that this action of the trial court entirely cured the alleged erroneous admission of this testimony, and that what was said by the court was intended as, and was in fact, an instruction to the jury to disregard it.

It is next urged that the trial court erred in charging the j ary that certain vital facts in the case were undisputed. The instruction complained of was as follows: “There are two things in this case which seem to he undisputed. The first is that this girl was a prostitute, and the second is that she was living in this apartment house” (that is, the house of the defendant). It was conceded by the defendant herself while on the witness-stand that the girl was living in her apartment house as her tenant at the time when the offense charged in the indictment was alleged to have been committed, and the girl herself on the witness-stand admitted that she was a prostitute, and her testimony on this point was not controverted. In view of these facts, it seems clear to us that the court was entirely justified in saying that these two facts seemed to be undisputed.

The only other ground for reversal is that the verdict is against the weight of the evidence. Our examination of the testimony sent up with the writ of error satisfies us that this contention is without merit.

The conviction under review will be affirmed.


text:
    STATE OF NEW JERSEY v. LOUIS O’DONNELL.
    Decided February 26, 1931.
    Before Guyoieee, Chief Justice, and Justices TkenciiAiiD and Lloyd.

      Eor the plaintiff in error, Ulysses G. Styron.

    For the state, Louis A. Repello, prosecutor of the pleas.
   Pee Cueiam.

Louis O’Donnell, the plaintiff in error, was indicted for a violation of section 65 of the Crimes act (Comp. Stat., p. 1766), which provides that “any person or corporation that shall keep a place to which persons may resort for engaging in pool-selling and book-making upon the event of any horse race, or other race or contest, shall be guilty of a misdemeanor.” The indictment charged that the defendant kept a place to which persons could and did resort for engaging in the practices specified in the statute. The trial resulted in a verdict against the defendant, and the latter has sued out the present writ of error to review the validity of the judgment of conviction entered on that verdict.

The principal ground upon which we are asked to reverse the conviction under review is that the court erroneously refused to charge two requests submitted on behalf of the plaintiff in error. The first is as follows: “It is not sufficient that the state prove only that the defendant kept a place where it was possible for persons to resort for betting, nor the keeping of a place to which persons do, in fact, resort for betting, but the proof must go further and show the intent of the defendant that persons shall resort there for betting.” The second request is quite similar in effect, and is in the following words: “The defendant cannot be convicted under the indictment unless you find he was the keeper of the place where people could and did resort for betting on horses, and that it was the intent of the keeper thereof that people should resort there for that purpose.”

The court not only refused to charge these requests, but instructed the jury that if the defendant kept a place to which persons might resort for engaging in book-making upon the running, pacing or trotting of horses, he was guilty of a violation of the statutory provision referred to.

In our opinion, the refusal to charge the requests submitted was injurious error, and that error was emphasized by the instruction given to the jury as above recited. In the case of State v. Ackerman, 62 N. J. L. 456, the Supreme Court held that the statutory provision referred to did not import the keeping of a place to which it was possible for persons to resort for betting, nor the keeping of a place to which persons did in fact resort for betting; that the fair import of the provision is that the intent of the person keeping the place must be that other persons shall resort to it for betting; and that this intent of the keeper is essential to guilt. In the later case of State v. Terry, 91 Id. 539, the Court of Errors and Appeals approved the construction put upon the statute in the Ackerman case, and held that the intent of the keeper of the place that persons should resort thereto for betting was essential to his guilt.

The decision of the Court of Errors and Appeals is binding upon this court. The refusal to charge the requests was in disregard of the rule laid down in the Terry case, and for that reason the conviction under review must be reversed.

Eeaching this conclusion, we have found it unnecessary to consider any of the other grounds upon which a reversal is sought.


text:
    ANNA KOLEZAR, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN KOLEZAR, DECEASED, PLAINTIFF, v. CRAIG HOFFMAN AND GROVER HOFFMAN, INDIVIDUALLY, JOINTLY, OR IN THE ALTERNATIVE, DEFENDANTS.
    Argued October 9, 1930
    Decided February 21, 1931.

      Before Justices Case, Daly and Donges.
    For the plaintiff, Sidney J. Benjamin.

    For the defendants, James I. Bowers.

   Pee Cueiam.

The motion is for change of venue from the Union County Circuit to the Somerset County Circuit. The cause of action arose in Somerset county. In or about the month of January the plaintiff instituted suit in the Somerset County Circuit of the Supreme Court against the defendant, Craig Hoffman. At that time admittedly the plaintiff and both of the present defendants resided in Somerset county. As that action was about to go to trial it was discontinued. The plaintiff then instituted suit in the Union Circuit for the same cause of action and in addition added Grover Hoffman as an additional defendant. The grounds for the motion are that the plaintiff was not at the institution of the present suit, though she claimed so to be a resident of Union county and was in fact a resident of Somerset county, and that the defendants and practically all of the witnesses to be called reside in Somerset county; from which, as a matter of right as well as of convenience, it is urged that the venue be changed. It was conceded on behalf of the plaintiff at the argument that a fair trial may be had in Somerset county. The action is transitory and answer has not been filed. The evidence is quite persuasive that the residence of the plaintiff had not been changed from Somerset county. Furthermore, the court believes that the convenience of the parties and the convenience of the trial would be bettter served by changing the venue to the county of Somerset; and the venue will be changed accordingly. Force v. Carr, 9 N. J. L. J. 311; section 202 of the Practice act of 1903; 3 Comp. Stat., p. 4113.


text:
    FRANK M. SPRAGUE, RELATOR, v. BOROUGH OF SEASIDE PARK ET AL., RESPONDENTS.
    Argued January 20, 1931
    Decided February 24, 1931.
    Before Justices Parker, Campbell and Bodine.
    For the relator, Isaiah Mattach.

    For the respondents, Waller Carson.

   Per Curiam.

The relator, claiming to be a regular police officer of the respondent borough by a tenure indefinite in duration, asks for a mandamus to compel recognition of that tenure and particularly payment of his salary since January 1st, 1930, Avliieh has been withheld. For the borough the principal claim is that his last tenure was only for the year 1929, expiring with that year, and that he was not reappointed. As to this last there is no doubt; but relator claims that in 1929 he was appointed without limitation of term, and is entitled to serve during good behavior.

The facts are stipulated; and from the stipulation it appears that relator had served the borough for many years and had been appointed annually at the organization meeting in January. In June, 1921, he was appointed for an unexpired term until the end of that year. In 1923, 1924 and 1928 he was appointed for the current year; in 1922, 1925, 1926, 1927 and 1929 he was appointed without designation of any term. The minute of January, 1930, reads as follows: “The question of creating a police department was discussed, and it was decided not to take action on same, but to continue the former method of appointing police officers, except that only one officer be appointed for the entire year and two additional officers to be appointed during the summer months, the time for which the additional officers are to be appointed to be decided later.”

We fail to see any legal authority for the practice of the borough in making police appointments for a year or any other limited term. Apparently the one-year tenure provided in the Borough act of 1897 (Pamph. L., p. 286, § 3; amended Pamph. L. 1908, p. 104; Comp. Stat., p. 229) was continued notwithstanding the indefinite Tenure act of 1913 (Pamph. L., p. 75), considered by us in Moore v. Bradley Beach, 87 N. J. L. 391, in which we held a borough marshal immune from summary removal. If this act of 1913 had been still in force at the time of, say the unrestricted appointment of 1922, and particularly that of 1929, it would have resulted in an indefinite tenure for relator, on the authority of the Moore case. When the Municipalities act of 1917 (Pamph. L., p. 319, et seq.) was enacted, the act of 1913 was expressly repealed (at p. 673), but the Municipalities act took its place, and says at page 359 that “the officers and men employed in every municipal police department shall severally hold their respective offices * * * during good behavior,” &c. We held further in the Moore case that the words “police department” were not restricted to a department created by ordinance; and this answers a point made for respondent.

Two other points are made: The first, that relator was appointed in 1929 as a “special policeman;” but we see nothing in the stipulated facts to indicate this. On January 5th, 1929, Frank M. Sprague and Peter Zisgen were appointed as “Police Officers” and confirmed as such. Secondly, that the office was abolished in the interest of economy in 1930. The minute of that year is quoted above. It says nothing about abolishing any office, but proceeding apparently on the assumption that the term of police officers appointed in 1929 had expired, undertakes to appoint one for the whole year and two for the summer months. No office is abolished, and no intent to abolish is indicated.

We conclude that during 1930 the relator was a police officer of the borough, and as such, having tendered service, he is entitled to his pay and to recognition of his status. No point is made as to whether the proper remedy has been pursued, and we have not considered that question.

A peremptory writ will be awarded, with costs, but to preserve a right of review the record may at the option of respondent be moulded so as to present an alternative writ and judgment on a demurrer to the writ or the return, as the case may be.


text:
    THE TOWNSHIP OF MILLBURN, IN THE COUNTY OF ESSEX, A MUNICIPAL CORPORATION, PROSECUTOR, v. WILLIAM A. SMITH, JUDGE OF THE ESSEX COUNTY CIRCUIT COURT, TRAVIS H. BROWN, Jr., AND OTHERS, DEFENDANTS.
    Argued January 20, 1931
    Decided February 13, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutor, Reynier J. Worteniyhe, Jr.

    Eor the defendants, Whiting <& Moore.

   Per Curiam.

The Circuit Court set aside an improvement assessment for ■ benefits to certain lands in Millburn township alleged to-arise from the construction of a storm water drainage system.

The lands affected by the assessment set aside at the Circuit are on a hillside above Wyoming avenue, where the drainage-system in question was constructed. The lands are above and do not face upon that thoroughfare. No direct connection with the drain is afforded and it in no sense relieves the land from surface water passing over it.

The proofs before the Circuit Court rebutted the presumption of benefits arising from the assessment. Home Eule act as amended. Pamph. L. 1917, art. 20, p. 383, § 30. Without the storm water sewer Wyoming avenue could not have been paved without great risk of damage when heavy storms occurred. But in no way are the lands in question shown to be benefited by this improvement.

“The benefit which will justify such an assessment must be a present appreciable benefit * * *; when an assessment on property is certified to have been imposed for benefits, it will be presumed that the property has been in some mode benefited, and the presumption can only be overcome by clear and cogent proof; if it thus appears that property assessed for a sewer has been afforded neither kind of drainage, or no-drainage which it had not previously possessed, such presumption will be overcome.” Morris v. Bayonne, 53 N. J. L. 299, 305.

Even though we did not agree with the findings of fact under review, we would be loath not to sustain them if there was evidence to support them. Hoboken v. Babbitt, 2 N. J. Mis. R. 505; affirmed, Hoboken v. Greenberg, 101 N. J. L. 406.

The certiorari will be dismissed.


author: Pee Ctteiam.

text:
    EUGENE W. MORRIS, RELATOR, v. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, AND ARTHUR J. HAMLEY, TREASURER OF THE COUNTY OF MIDDLESEX, RESPONDENTS.
    Argued January 20, 1931
    Decided February 13, 1931.
    Before Justices Paekeb, Campbell and Bodine.
    Eor the relator, David T. Wilentz.

    Eor the respondents, William A. Stevens.

   Pee Ctteiam.

The relator seeks a writ of mandamus directing the civil .service commission to certify his pay as a process server in the sheriff’s office, Middlesex county, for the last half of September and the whole of October, 1930. The case comes before us on an agreed state of facts.

The Civil Service act of 1908 (Pamph. L. 235) had been adopted in Middlesex county and the relator was successful in a competitive examination held for the position of process server. He received a temporary appointment July 14th, 1930, for the vacation period. Prior to his appointment, the sheriff had abolished three positions held by court attendants, and the civil service commission placed the names of those who had held the position of court attendant upon the preferred eligible list for process server. The sheriff will not appoint one of those whose name appears on the preferred eligible list as process server, and the civil service •commission will not certify relator’s pay.

The propriety of the action of the commission in placing-the names of the former court attendants upon the preferred, eligible list is challenged. The determination of this question is unnecessary to the decision of this case, and perhaps-should have been raised on certiorari.

Since the relator received a temporary appointment July 14th, 1930, he held over after two months’ temporary service,, and is not entitled to certification. Shalvoy v. Johnson, 84 N. J. L. 134.

The rule will be discharged.


text:
    PAUL C. SCHOTTE, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE TOWN OF IRVINGTON, DEFENDANT.
    Argued January 23, 1931
    Decided February 13, 1931.
    Before Gummeee, Chief Justice, and Justice Campbell.
    Eor the prosecutor, Edward A. & William A. Schilling.

    Eor the defendant, Charles H. Stewart.

   Pee Cueiam.

A consideration of the facts presented and the arguments; of counsel made brings us to the conclusion that the application for the writ should be denied.

Such an order may be had and entered.


author: Case, J.

text:
    THE FIRST NATIONAL BANK OF CARTERET, NEW JERSEY, A CORPORATION, PLAINTIFF, v. ANNA MAE TURNER AND NELSON M. TURNER, DEFENDANTS.
    Decided January 31, 1931.
    Eor the motion, Francis A. Monaghan.

      Contra, B. Lewis Kennedy.

   The opinion of the court was delivered by

Case, J.

The statement of the several defenses annexed to and made part of the answer is prolix and involves many extraneous and irrelevant matters. But from it I gather the following allegations: That after maturity, to be precise on August 18th, 1930, the note sued upon, as produced for the inspection of the defendants, then bore the following, and only the following, writing on the back thereof: “Eor value received I hereby guarantee payment of principal and interest of the within note and waive protest thereon: Boynton Lumber Co., D. E. Boynton, Secretary;” that the note as now presented by plaintiff bears simply the endorsement: “Boynton Lumber Co., D. E. Boynton, Secretary;” that there has therefore been a substitution or a change since the maturity of the note changing the nature and effect of the endorsement; that in any event D. E. Boynton, secretary, is not the fiscal agent of the company with authority to endorse and that consequently the endorsement is not that of the payee; that defendants have a meritorious defense to the note as against the payee; that for reasons deducible from the above the plaintiff is not a holder in due course and that the defendants’ defense is therefore available as against it. The supporting affidavit is also prolix and argumentative, but nevertheless the above-mentioned allegations are fairly well sustained therein and they are not specifically denied by the plaintiff. I am inclind to think that such a defense should not be summarily struck on motion.

Moreover, the reason assigned by plaintiff for the motion to strike is merely the comprehensive generality that the answer is “sham and frivolous and filed for the purpose of delay.” A pleading cannot be both sham and frivolous. National Surety Co. v. Mulligan, 105 N. J. L. 336. And it should not be left to the court to critically examine a lengthy pleading to determine just where and how the attorney intended one or the other criticism to be applied.

The motion is denied, with costs.


text:
    JOHN YANKOWSKI ET AL, PROSECUTORS, v. CITY OF EAST ORANGE ET AL., RESPONDENTS.
    Argued January 20, 1931
    Decided February 5, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutors, M. Francis Keating.

    Eor the respondents, Walter G. Filis.

   Per Curiam.

This is an application for a writ of certiorari to review an ordinance of the city of East Orange for the widening of certain streets and proceedings thereunder by the board of assessment commissioners in awarding compensation to prosecutors for land taken for such improvement and the confirmation thereof by the mayor and city council.

The grounds urged are, generally speaking, failure to give prosecutors notice by mailing of the proceedings leading up to the adoption of the ordinance and improper and insufficient notice of the meetings and hearings of the assessment commissioners and the mayor and city council.

Reference to the statute, Home Rule act (Pampli. L. 1917, ch. 152), readily discloses that all that is required is that “the notice shall briefly state the object of the meeting Jji sji ))

This it seems to us was complied with and met by the notices given.

It is also to be observed that throughout those sections of the act relating to proceedings of this character there is this provision:

“Failure to mail the notice in this section required shall not invalidate the above proceedings.”

This has been definitely construed. Sherman et al. v. Long Branch, 9 N. J. Mis. R. 75.

The application for the writ is denied.


author: Pee Cubiam.

text:
    CHARLOTTE BOHLIN ET AL., PLAINTIFFS, v. MAURICE DEBARI ET AL., DEFENDANTS.
    Decided February 6, 1931.

      Before Gummebe, Chief Justice, and Justices Teenchakd and Lloyd.
    Eor the rule, Harry H. Walburg and John J. Francis.

    Contra, Henry Carless.

   Pee Cubiam.

The plaintiff Charlotte Bohlin, while riding in a car driven by her son, Lester, and owned by him, was injured in a collision between it and a car owned and driven by Maurice DeBari, the accident occurring at the corner of Cedar and Main streets, in the borough of Ridgefield Park. She brought suit against the drivers of thes two vehicles, her husband joining therein to recover compensation for the expenses to which he had been put by his wife’s injuries and the loss of her society and services The trial resulted in a verdict in favor of Mrs. Bohlin, the jury awarding her $25,000, and also in favor of her husband, the jury awarding him $7,500. These awards were made against Lester Bohlin, the son of the plaintiffs, the jury absolving DeBari from any liability for the accident.

Our examination and consideration of the testimony in this case leads us to the conclusion that the proofs clearly showed that the accident was largely the result of the negligence of DeBari in the driving of his car; that the verdict acquitting him of responsibility was without legal justification; and that the action of the jury in exoneratng him from liability and holding the plaintiffs’ son solely responsible for the collision indicates that its verdict was the result of passion or prejudice on its part.

Eor this reason, the rule to show cause will be made absolute.


text:
    EDWIN C. JONES ET UX., PLAINTIFFS, v. PEOPLES RAPID TRANSIT COMPANY, INCORPORATED, DEFENDANT.
    Decided February 6, 1931.
    Before Gummeee, Chief Justice, and Justices Tben•chaed and Lloyd.
    For the rule, DeVoe Tomlinson.

      Contra, Benjamin Gordon.

   Pee Cueiam.

This suit was brought by Edwin C. Jones and his. wife, Emma, to recover compensation for injuries received by them while they were riding as passengers in an auto-bus owned and operated by the defendant company. As the bus was crossing the intersection of Edgar road and Kenneth avenue, in the city of Elizabeth, an automobile, which was being driven by one Martin, collided with it, and as a result of the collision the bus skidded to one side and crashed into a telegraph pole. Both of the plaintiffs were injured as the result of this accident, and the trial resulted in verdicts in their favor, the jury awarding Mrs. Jones $2,950 and her husband $500.

The first ground upon which we are asked to set aside these verdicts is that the finding of the jury that the accident was the result of negligence on the part of the driver of the bus is contrary to the clear weight of the evidence, the proofs showing that the collision resulted solely from negligence on the part of Martin, who was driving the automobile which collided with the bus. Our examination of the-testimony satisfies us that it clearly appeared that the collision was the result to some extent of the negligence of the-driver of the auto-bus, and that, consequently, the jury was-justified in so finding.

It is next contended that each of the verdicts is excessive. We do not consider them to be so, in view of the character of the injuries inflicted upon the several plaintiffs and their seriousness.

The only other contention is that the court erred in charging the jury on the question of the obligation of a common, carrier with relation to its passengers. The statement of the court was that passengers “are entitled to the highest degree of care in the management of such vehicles” (that is,, auto-buses), “in order that no person shall be injured or damaged.” It is argued that this instruction puts a greater burden upon a common carrier than the law justifies; that the legal rule is that a carrier must exercise a high degree of care, but not the highest degree of care necessary for the protection of passengers against injury. We are not impressed with this contention. The obligation of the carrier is to use a degree of care as high as is necessary for the protection of passengers against injury, and that, in our opinion, is the meaning of the instruction complained of, notwithstanding the ill-advised use of the word “highest.”

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


author: Pee Curiam.

text:
    BENJAMIN GUTOWSKI, PLAINTIFF, v. HYMAN GOLDBERG ET AL., DEFENDANTS.
    Decided February 6, 1931.
    Before Gummeee, Chief Justice, and Justices Trenchard and Lloyd.
    For the rule, Aaron Heller.

    Contra, Jacob L. Bernstein.

   Pee Curiam.

The defendants were the owners of a tenement house on River street, in the city of Paterson. The plaintiff was a tenant, occupying rooms on the third floor of the building. About half-past eight in the evening of March 2d, 1929, while descending the stairway from the third to the second floor, he fell, owing to the defective condition of the stairway, and received the injuries for which he sued. The hall and stairway were dark, no lights having been lit there. The trial resulted in a verdict in favor of the plaintiff.

The first ground on which we are asked to make the present rule absolute is that the trial court erred in refusing to non-suit the plaintiff, and also in refusing to direct a verdict for the defendants. The basis of this contention is that the plaintiff not only knew of the absence of the lights at the time of the accident, but that he also knew that the defendants had previously refused, and continued to refuse up to the time of the accident, to keep these lights burning during the evening, and that, therefore, the defendants were not guilty of negligence producing the accident in failing to keep the hall lights on. It is further argued in support of this contention that, admitting the stairway to have been in a defective condition at the time of the accident, this fact did not impose liability upon the landlords, in the absence of knowledge on their part of this condition, unless it appeared that it had continued long enough to charge them with notice, and that there was no proof of either actual or constructive knowledge of the fact.

We think that the motions to nonsuit and to direct a verdict for the defendants were properly refused. The Tenement House act of 1904, section 126, provides that: “In every tenement house now existing or hereafter erected a proper Tight shall be kept burning by the owner in the public hallways, and in every tenement house over two stories high such a light shall also be kept burning upon the second floor from sunset each day until ten o’clock each evening.” In our opinion, the deliberate ignoring by the defendants of the duty imposed upon them by this statute constituted gross negligence on their part, and they cannot avoid responsibility merely because of knowledge on the part of the tenant that they were disregarding their statutory duty. As to the other ground urged in support of this contention, it is enough to say that, under the proofs in the case, the question of the knowledge of the defendants of the existence of ‘the defective condition of the stairway was one to be determined by the jury, and not by the court.

The only other contention argued as a ground for setting aside the verdict is that the trial court failed to charge the jury on the law of contributory negligence. If counsel had desired the court to instruct the jury as to the law on this phase of the case, he should have submitted a request for such instruction. In the absence of such a request, the omission of the instruction does not constitute legal error. Counsel having failed to make the request, he cannot now take advantage of that failure.

The rule to show cause will be discharged.


author: Pee Cuetam.

text:
    FRANCISCO FIUMEFREDDO v. SARAH SPELLMAN ET AL.
    Decided February 18, 1931.
    Before Gummeke, Chief Justice, and Justice Campbell.
    For the rule, George S. Hobart and John H. Selser.

      Contra, Alexander Simpson.

   Pee Cuetam.

Plaintiff while, or immediately after, alighting from a trolley car at Avenue C and Fifteenth street, in Bayonne, was struck down by one, or the other, of two trucks that were proceeding in the same direction as the trolley car on which he had been a passenger.

He was severely injured and brought suit against three parties. Plaintiff was the only party appearing and defending.

The action resulted in a verdict in favor of the plaintiff and the defendant has this rule under which she is seeking to set aside such verdict, urging and arguing twelve reasons under five points, viz.:

1. The defendant’s motion for nonsuit and directed verdict should have been granted on the ground that there was no evidence of negligence chargeable to the defendant within the issues raised by the pleadings.

2. The defendant’s motions for nonsuit and directed verdict should have been granted on the ground that the plaintiff was guilty of contributory negligence.

We find no error under either of these grounds. There was proof of negligence requiring submission of the cause to the jury and the question of the negligence of the plaintiff was one likewise requiring a finding by that body.

3. The trial judge erroneously submitted to the jury issues of negligence not charged in the pleadings.

4. The trial judge erroneously instructed the jury with respect to the duty of the defendant’s servant to give warning under the circumstances developed in the evidence.

Eeading the charge with the complaint and the proofs we find no such error.

5. The verdict of the jury is against the clear weight of the evidence on the issues of negligence and contributory negligence.

We do not reach this conclusion.

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


text:
    MENNEN HAT COMPANY, INCORPORATED, A CORPORATION, PLAINTIFF, v. STANLEY STORES, INCORPORATED, A NEW JERSEY CORPORATION, DEFENDANT.
    Decided February 20, 1931.
    Eor the plaintiff, Stein, McGlynn & Hannoch.

    For the defendant, Morris Spritzer.

   The opinion of the court was delivered by

Case, J.

Plaintiff moves to strike defendant’s answer and for summary judgment. The issue will sufficiently appear infra. Plaintiff is a wholesale merchant, incorporated under the laws of, and with its principal place of business in, the State of New York. Defendant is a New Jersey corporation and maintains, as its only places of business, retail stores in the cities of New Brunswick and Perth Amboy. On October 10th, 1929, defendant, in the person of Max Levinston, treasurer and director, entered the State of New York for the express purpose of purchasing merchandise for defendant’s said stores, went to plaintiff’s sales rooms at 57 Thirty-eighth street, New York City, and there placed an order for hats to be shipped to the defendant at its New Brunswick store. The hats were shipped by plaintiff and received by defendant but were not paid for. Plaintiff billed defendant for the goods and a dispute arose as to whether or not the goods were shipped in larger quantity than ordered and as to whether or not the bill was for goods in excess of the actual shipment. Levinston went to plaintiff’s establishment in New York with respect thereto and while there was served with summons in a suit thereon in the Municipal Court of the city of New York. The suit was vigorously defended on the merits. Jurisdiction was not questioned. At the trial Levinston and other witnesses appeared for the defense. Judgment for $450.28 went for the plaintiff. Appeal was taken for the defendant, and cost security in excess of $500 was deposited. The judgment was reversed on appeal and the deposit was consequently returned to the defendant. A second trial followed at which the same witnesses as before, and in addition one of defendant’s saleswomen, testified. Again judgment was rendered for the plaintiff in the sum of $450.28. The judgment was docketed in the Supreme Court of the State of New York and the present suit is on that judgment.

Defendant argues that statutes providing for service on foreign corporations do not apply unless the corporation is present or “doing business” therein; that defendant’s entry into the State of New York for the purpose of purchasing materials incident to defendant’s trade was not “doing business” therein; that consequently service upon its treasurer was not service upon the defendant and that, therefore, the judgment may not be made the basis of an action in the State of New Jersey. It further asserts that the defense to the suit in New York was without the knowledge or assent of Levinston’s fellow officers and directors and was personally maintained by Levinston for reasons of his own; and that the deposit on appeal was from Levinston’s own funds.

I am not impressed by defendant’s contention that its treasurer was, within the terminology of our cases, merely “accidentally” within the jurisdiction of the New York courts. Defendant cites Moulin v. Insurance Co., 24 N. J. L. 222. But it is said in the course of that opinion (at p. 234): “Any natural person who goes into another state carries with him all his personal liabilities; and there is quite as much reason that a corporation which chooses * * * to authorise contracts to be made in another state, should be regarded as thereby voluntarily submitting itself to the action of the laws of that state, as well in reference to the mode of commencing suits against it, as to the interpretation of, the contracts so made.” The defendant entered into the State of New York for the purpose of making, and did there make, a contract of purchase. It thereby submitted itself to the jurisdiction of that sovereignty so far as to be liable to a suit therein in regard to that contract, when summoned according to the laws of the state. National Condensed Milk Co. v. Brandenburgh, 40 N. J. L. 111. The point is neither made nor argued that the defendant was not summoned to the New York action in accordance with the laws of that state. It appears, therefore, that even though the defendant was not “doing business,” according to the accepted use of that term, in the State of New York, it nevertheless had submitted itself to that jurisdiction with respect to this particular contract. It is unnecessary to consider the nature and effect of the appearance in and the defense to the New York action.

The motion is granted.